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Response to Illustration 1: "Are We Legal?"

As a general rule, "exclusive" programs are deemed impermissible by the U.S. Supreme Court. If an employer chooses to implement such a program regardless, it will generally be subject to strict scrutiny. Exceptions may be granted if the program is narrowly tailored to remedy the present effects of past discrimination or implemented to promote diversity. In other words, the program must be necessary to further the organization's interest in diversity and must not unduly restrict access to students who do not meet the race-based eligibility criteria. If such a program is not narrowly tailored, it is likely to be deemed discriminatory under the law.

In this instance, the firm's efforts to provide opportunities for students would be considered permissible inasmuch as, historically, minority group members have been underrepresented in the legal profession. The need to address diversity in the legal profession is critical. Lawyers of color currently make up a little over 10 percent of the legal profession. Although law school enrollments of students of color have increased, the number of African Americans matriculating to law school in the fall of 2005 was the lowest of the previous five years. Also, in 2005, fewer than 400 Native Americans were enrolled in law school.

Without question, racial and ethnic diversity brings value to the legal profession and to the American justice system. Thus, the legal profession has an obligation to break down the institutional barriers that impede access for people of color.

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