Racism

On Race And The Bar Exam

I am not sure where we, as a legal community, if we are one, are headed.

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A note from Kerriann: This week I am proud to turn my column over to my dear friend Gilbert Bayonne, Esq., to share some of his thoughts on race and the bar exam. I hope he will return soon to share more of his insights and wisdom with us. 

I am a black man in America, the first-born son of Haitian immigrant parents. This article is not the answer to American racism as I do not believe that black Americans should be tasked with solving an age-old problem that we did not create. However, I do believe in the power and great beauty of black narratives told free from the shackles of whiteness.

I do not believe a meaningful conversation can be had about race, racism, and the concept of whiteness without context. In 1857, Chief Justice Roger Taney, in true white supremacist fashion, authored the Dred Scott decision, which legalized the invisibility of black people in America. He wrote, with the confidence of every Karen after him, “[blacks] had for more than a century before been regarded as beings of an inferior order […] and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.” This is neither hyperbole nor am I trolling. Squarely, this is our legacy.

163 years after the Dred Scott decision, we still find ourselves in a fight for the recognition of our humanity against an ideology that has infected all of America’s institutions. My colleague and good friend Kerriann Stout, wrote in response to NY BOLE’s prioritization of first-time bar takers over repeat test takers,  “[New York BOLE] is excluding the most marginalized groups of test-takers, and they aren’t telling us why.” As a graduate of one of the six HBCU law schools in the United States, I would argue that NY BOLE has already answered this question. In that, institutional racism is cyclical and, more importantly, purposive. Taney’s words in 1857, from the highest court in this nation, spoke to America’s commitment to the erasure of black people.

How difficult is it to marginalize the marginalized? According to a Florida International University Law Review study, in 2016 nearly half of black law school applicants (49 percent) were not admitted to a single law school. That share is larger than that of any other racial or ethnic group. Irrespective of whether NY BOLE, or anyone else for that matter, has considered the disparate impact this decision will have across racial lines, this policy bares the odor of racial exclusion, nonetheless. Individuals in the legal community, if we actually are one, have the luxury of dancing around the issue of racial exclusion. The others that Taney spoke of do not share in this luxury.

Personally, I attended Southern University Law Center, a law school founded as a result of a lawsuit filed by the great Charles Hatfield against Louisiana State University in 1946 when he was denied admission to law school solely on the basis of race. Prior to 1946, black students could not study law in Louisiana. Interestingly enough, Hatfield never attended law school. After filing his lawsuit, in the heart of the Jim Crow South, Hatfield received constant death threats. Those threats forced Hatfield and his family to seek refuge in Atlanta, Georgia. His law school dream deferred, he, like many other black heroes, was forced into social martyrdom. The luxury of privilege is that it operates like an account filled with unearned assets that one set of people can pull from at any time. Those privileges come at a great cost. And too often, black Americans, like Hatfield, find themselves on the outside of the promises of this country.

I am not sure where we, as a legal community, if we are one, are headed. However, we do know that history has a way of repeating itself, and societal hierarchies are interlocking. As attorneys, precedent is a tool of the trade. We study its impact, and we are forced to interrogate it from all angles. Is there much distance between the words of Taney in 1857, the deferral of Hatfield’s law school dream, the 49 percent of black applicants denied admission to law school, and NY BOLE’s recent decision? Are these things inextricably tied in the wheel of history? For all the illusions of black progress and advancement in the legal profession, I wonder how far we’ve actually come. Perhaps, time has already answered those questions. 

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Gilbert Bayonne is the founder of The Bayonne Firm where he is committed to the professional and rigorous representation of clients. His experience includes representing clients in Criminal, Immigration, and Civil Law matters.

Kerriann Stout is a millennial law school professor and founder of Vinco (a bar exam coaching company) who is generationally trapped between her students and colleagues. Kerriann has helped hundreds of students survive law school and the bar exam with less stress and more confidence. She lives, works, and writes in the northeast. You can reach her by email at info@vincoprep.com.

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