T. Andrew Brown: ‘Bar Application Question Does Harm to People Who Look Like Me’

T. Andrew Brown: ‘Bar Application Question Does Harm to People Who Look Like Me’

1.25.2022

By David Howard King

“How many more future presidents of the Bar Association will you never know?”  T. Andrew Brown, president of the New York State Bar Association, implored members of  the association’s governing body on Saturday.

Brown was referring to a question on the New York State Bar admission application that asks potential lawyers about their encounters with law enforcement and criminal history. The House of Delegates voted on Saturday to ask that the question be revised, citing how it negatively impacts efforts to diversify the profession and violates the state’s Human Rights Law and Family Court Act.

“There is no benefit. It does no good,” Brown said from his lectern. “If there is some slight purpose, it is outweighed by the harm it does to the people who look like me especially. How many others who look like me fell into this category and were discouraged? If I was discouraged, I would not be standing here right now!”

The legal profession routinely ranks as one of the least diverse in the country. Recent American Bar Association surveys found only 5 percent of lawyers identify as Black and 5 percent as Latino. Meanwhile, while Blacks make up 15 percent of New York’s population, they account for 38 percent of arrests, according to the latest data compiled from the Judicial Friends Report on Systemic Racism in New York Courts.

Eulas Boyd, dean of admissions at Brooklyn Law School, laid out a stunning set of facts to back up his opposition to the question. According to Boyd, the 15 law schools in New York State received nearly 62,00 applications for admissions and offered 15,968 students seats. Out of them, just 335 of the students who attended were Black. That means that fewer than 21 new students for each law school in the state were Black.

“The industry is not diverse enough. We all know that. But neither are its law schools,” said Boyd “Any factor in the pipeline from elementary school on that acts as a headwind to the diversity crisis in the legal industry should be removed. Full stop.”

Some members of the House of Delegates asked for more data to show how many applicants were discouraged from pursuing a career in law due to the question.

David R. Marshall, who chaired NYSBA’s Working Group on Question 26 of the New York Bar Application, which prepared a report on the question for the House of Delegates,  rejected that assertion.

“This is a civil rights issue, which doesn’t depend on how many people are impacted – typically the address minority rights. We make courthouses accessible to disabilities, not because so many people with impairments want access, but because it is required by law and it’s the principled thing to do. It is not a big enough problem? That’s the wrong frame.”

The report approved by the House of Delegates recommends rewording the question to make clear that sealed criminal records, juvenile delinquency and youthful offender proceedings, dismissed cases and arrests that are no longer pending that did not result in a conviction do not have to be disclosed.

Question 26 currently reads: “Have you ever, either as an adult or a juvenile, been cited, ticketed, arrested, taken into custody, charged with, indicted, convicted or tried for, or pleaded guilty to, the commission of any felony or misdemeanor or the violation of any law, or been the subject of any juvenile delinquency or youthful offender proceeding?”

NYSBA is asking that Question 26 be revised to conform with the Human Rights Law and the Family Court Act and that all other questions make clear that applicants do not have to disclose conduct protected by the two laws.

NYSBA’s working group on the question as well as several of the association’s committees — Criminal Justice; Children and the Law; Legal Aid; Legal Education and Admission to the Bar; and Diversity, Equity and Inclusion — and its Young Lawyers Section supported the report. The Task Force on Racism, Social Equity, and the Law co-sponsored it.

This is not the first time that the association recommended changes in the bar admission application. NYSBA led an effort in 2019 to get questions on mental health removed from the bar admission application based in large part on opposition from law school students, who said the inquiries were stigmatizing and discouraged those who needed treatment from seeking it. Chief Judge Janet DiFiore announced in February 2020 that the questions would be removed.

Admissions to the bar is under the auspices of the Appellate Division of the State Supreme Court, which DiFiore oversees.