Miguel A. Méndez and Leo P. Martínez

excerpted from Miguel A. Méndez and Leo P. Martínez , Toward a Statistical Profile of Latina/os in the Legal Profession, 13 La Raza Law Journal 59 (2002) (166 Footnotes)

Lawyers

Latina/os have not matched the gains women have made since the 1970s in increasing their representation in the profession. As will be seen, Latina/os are severely underrepresented in the profession relative to their numbers in the population. And since one in four U.S. residents is projected to be a Latina/o by 2050, the prospects of Latina/os achieving parity in the profession appear to be dismal in the near term.

By parity we mean that point where the proportion of Latina/os in the legal profession equals the proportion of Latina/os in the U.S. population in a given year. As in the case of women, parity is a useful way to assess participation in an elite profession by a group that until recent years has been largely excluded from the American mainstream. In using parity as the pertinent measure, we do not assume that Latina/o lawyers should represent only Latina/os or that Latina/o clients should retain only Latina/o lawyers. Nor are we unmindful that the Census Bureau projects that between 1995 and 2050 Latina/os will add more people to the U.S. population each year than any other group. Spikes in the proportion of any distinct group in America makes achieving parity in the legal profession more difficult. Parity becomes an even more elusive goal if a significant part of the growth consists of individuals who do not qualify for admission to law school under prevailing standards. We recognize that some Latina/o immigrants fall into this category. But in assessing the impact of immigrants on parity, it is important to underscore that the Census Bureau still projects Latina/os as the largest minority group in 2050, comprising almost 19% of the population, even after discounting for immigration after 1994. Finally, we note that by using parity as the departure point we implicitly reject the questionable assumption that, even if given a chance, Latina/os somehow are less inclined than whites to aspire to membership in the legal profession.

Latina/os made up 6.5% of the population in 1980, 9.0% in 1990, and 11.1% in 2000. Yet, Latina/o representation in the legal profession in 1990 was only 2.49%. This is an especially troubling figure because minority representation in the profession increased by almost 50% between 1980 and 1990, from about 5% to 7.45%. Comparing the percentage of Latina/os in the legal profession with the percentage of Latina/os in the U.S. workforce in 1990 does not dispel the alarm. In that year, Latina/os made up 7.76% of the workforce C a figure that most certainly increased by 2000.

If the percentage of Latina/os in the profession approximated the percentage of Latina/os in the workforce in 1990, we would expect to find about 62,535 Latina/o lawyers in that year. Instead, the number of Latina/o lawyers in 1990 was closer to 20,066. If instead the percentage of Latina/os in the profession approximated the percentage of Latina/os in the population, then for that year we would expect to find about 72,528 Latina/o lawyers.

If, as predicted, the number of lawyers in the U.S. topped one million by 2000, then we would expect to find 77,600 Latina/o lawyers using the 1990 workforce figure or 111,000 Latina/o lawyers using the 2000 population projections. Latina/os who practice, teach, and study law know intuitively that our actual representation in the bar is well below either of those projections. Indeed, many of us may have been surprised to learn that our numbers today might be in the 20,000+ range.

The U.S. Census Bureau estimates that the U.S. population will increase from about 275 million in 2000 to about 393 million in 2050. Individuals of Hispanic origin are projected to increase from about 31.4 million to about 96.5 million in that period. By these projections, Latina/os, who made up 11.1% of the population in 2000, will comprise a quarter (24.5%) of the population by 2050. Such a dramatic increase in any underrepresented population would make reaching parity in the legal profession problematical. In the case of Latina/os the challenge might well prove insurmountable. For as we shall see, even if the Latina/o population had stabilized at the 2000 level, reaching parity in the profession at current growth rates will require many more generations than it will take women to achieve parity.

We have been unable to gather the data needed to estimate the time that will be required for the percentage of Latina/os in the legal profession to approximate one in four lawyers. But the inordinate difficulty in achieving this goal is suggested by population/attorney ratios. In 1991 there was one lawyer for every 313 U.S. residents. In 1990, there was one Latina/o lawyer for every 1,115 Latina/os. Data from New Mexico, Texas, and California are not encouraging.

In New Mexico the number of Latina/o lawyers more than doubled from 400 in 1988 to 840 in 2000. As a result, the Latina/o population/Latina/o lawyer ratio in New Mexico fell from 1448/1 in 1990 to 911/1 in 2000. More telling, however, is a comparison of the percentage of Latina/os in the New Mexico State Bar with the percentage of Latina/os in the New Mexico population. Latina/os comprised 14% of the active state bar in 1988 and 38% of the New Mexico population in 1990. By 2000, Latina/os comprised 15% of the active bar and 42% of the state's population. As a result, the ratio of Latina/o lawyers to Latina/o population declined from 36.8% to 35.7%. Declines in this ratio (sometimes called here the Aparity ratio ) makes achieving parity an even more difficult goal.

In Texas, the number of Latina/o licensed lawyers increased by 77.4% from 2,283 in 1993 to 4,051 in 2000. As a result, the Latina/o population/Latina/o lawyer ratio in Texas fell from about 1901/1 in 1993 to 1646/1 in 2000. Latina/os comprised 4.2% of the licensed lawyers in Texas in 1993 and 25.5% of the state's population in 1990. By 2000, Latina/os made up 6.0% of the licensed lawyers and 32.0% of the state's population. Consequently, the ratio of Latina/o lawyers to Latina/o population increased from 16.5% in 1993 to 18.8% in 2000. But an improvement in the parity ratio of only 2.3 percentage points over seven years or an average of 0.33 percentage points annually leaves much to be desired. At that annual rate, it would take almost 79 years from 2000 for the Texas Latina/o lawyers to reach parity with the Texas Latina/o population of 2000 (32.0%).

In 1991 Latina/os made up 3% of California's lawyers and about 25.8% of the state's population. By 2001 Latina/os made up 3.7% of California's lawyers and about 32.4% of the state's population. As in the case of New Mexico, the increase in the percentage of California Latina/o lawyers can be misleading. Because the growth rate of California Latina/os outpaced that of California Latina/o lawyers, the result, as in New Mexico, was a decline in the California Latina/o lawyer/California Latina/o population parity ratio, from 11.6% in 1991 to 11.4% in 2001. If that trend continues, attaining parity with the Latina/o population will become an even more elusive goal.

Recent California bar examination data are not a cause for optimism. The data show that the percentage of newly admitted Latina/o lawyers in California has remained fairly stable since 1997. On average, Latina/os comprised 7.4% of the total passing the nine general bar examinations held between February 1997 and February 2001.

The number of Latina/o lawyers is determined principally by the number of Latina/o law students who obtain a law degree. As in the case of the California bar examination data, figures on Latina/o law students do not bode well for the future of Latina/o lawyers. Between 1976 and 1999, the percentage of all students who were Latina/o increased each year by an average of 0.16 percentage points. If we assume that the percentage of all lawyers who are Latina/o increases each year by 0.16 percentage points, it would take almost 54 years from 1990 for the percentage of Latina/o lawyers in 1990 (2.49%) to equal the percentage of Latina/os in the population in 2000 (11.1%). Assuming the same annual growth rate, it would take almost 138 years from 1990 for the Latina/o lawyers to reach parity with the Latina/o population projected for 2050 (24.5%).

The underrepresentation of Latina/os in the legal profession cannot be explained by the overrepresentation of Latina/os in other professions. Latina/os are underrepresented in all professions, with no Latina/o professional group having achieved parity. In 1998 Latina/os made up 4.6% of all professionals. Latina/o economists led with 6.5% representation. All Latina/o professional groups, except dentists (2.0%), were better represented than the lawyers.

Although data on Latina lawyers are sparse, their participation in the profession has increased substantially in absolute numbers. By all anecdotalaccounts, almost all of the Latina/o lawyers were men until the 1960s. By 1990, Latinas comprised one-third of the Latina/o attorneys. In 2001, Latinas made up 30% of the 43 Latina/o federal trial and appellate judges. The increase in Latina lawyers can be misleading, however. Relative to the number of Latinas in the population, they are as rare as are Latino lawyers relative to the number of Latinos in the population.

IV. Judges

Latina/os comprised 2.2% of about 60,000 sitting federal and state judges in 1997. This was a decline from 1990, when Latina/os made up 3.39% of the 32,394 sitting federal and state judges. Data for California show that in 1994, Latina/os comprised 9.3% of the state's 1562 judges. While that figure appears impressive when compared with the national figure for 1997, it must be recalled that Latina/os made up 31.0% of the California population in 1994. The population/judge ratios tell a different story. In 1994 there was one state judge for every 20,194 Californians but only one Latina/o state judge for every 65,246 Latina/o Californians.

Figures for the federal bench are not encouraging. The percentage of Latina/os on U.S. district courts was 4.5% in 1992, increased to 5.3% in 1994, decreased to 4.7% in 1997, rebounded somewhat to 5.0% in 1999, and fell again to 4.7% in 2001. Representation of Latina/os on the U.S. courts of appeal showed a consistent improvement, from 2.4% in 1992, 3.0% in 1994, 3.6% in 1997, 4.9% in 1998, 6.2% in 1999, to 6.7% in 2001. Latina/os comprised 8.4% of the appointments to the trial bench and 11.1% of the appointments to the appellate bench in Clinton's first two years in office. However, those appointments dropped to 3.2% and 9.1% in the last two years of Clinton's first term, after the Republicans took over the Senate.

Based on the percentage of Latina/os in the U.S. population in 2000 (11.1%), one would expect to find 73 Latina/os among the 665 sitting federal district court judges in 2001. In 1997, there were only 30 C a figure that increased by one to 31 by 2001. One would also expect to find 19 Latina/os among the 179 court of appeal judges in 2001. In 1997, there were only six. Although the number doubled to 12 by 2001, even that figure is just two-thirds of the 19 circuit court judges one would expect to find if parity were achieved.

Between 1992 and 1999, the percentage of district court judges who are Latina/os rose from 4.5% to 5.0%, or at an average annual rate of 0.07 percentage points each year. Stated differently, at that rate it took Latina/os seven years to move from 4.5% to 5.0% of the district court judges sitting in 1999. At that rate, it would take 87 years from 1999 for the percentage of Latina/o district court judges to match the percentage of Latina/os in the population in the year 2000 (11.1%). At the same growth rate, it would take almost 279 years from 1999 for Latina/o judges to reach parity with the 2050 projected Latina/o population (24.5%).

Between 1992 and 2001, the percentage of lawyers who are Latina/o on the court of appeal increased each year on average by 0.48 percentage points, from 2.4% to 6.7%. Stated differently, at that rate, it took Latina/os nine years to move from 2.4% to 6.7% of the circuit court judges sitting in 2001. At that rate, it would take nine years from 2001 for the percentage of Latina/o Circuit Court judges to match the percentage of Latina/os in the population in the year 2000 (11.1%). Assuming the same rate of increase, it would take 37 years from 2001 for the percentage of Latina/o circuit court judges to reach parity with the 2050 projected Latina/o population.

V. Law Faculty

Less than ten Latina/os attended the first Latina/o law faculty conference convened by Professor Michael Olivas in Albuquerque in 1981. Only four were able to attend the Houston conference held a year later. Professor Olivas' latest survey indicates that by 2001 the number of Latina/o law professors had increased to 140, a number that does not include administrators or visiting clinical law professors or Latina/o professors on the faculty of the three law schools in Puerto Rico. This figure is impressive when one considers that Latina/o law professors could be counted on the fingers of the two hands until the 1980s. Nonetheless, 140 is discouraging when one compares the figure to the numbers provided by the Association of American Law Schools which does count the Latina/o professors at the Puerto Rican law schools. Of the 8043 full-time faculty members at 184 law schools in 1999, 241 or 3% were 'Hispanic.' The percentage falls to 1.7% when Professor Olivas' figure is used.

Based on the percentage of Latina/os inthe U.S. population in 2000, one would expect to find 892 full-time Latina/o faculty members in the 184 law schools.

Long-term trends are not particularly encouraging. In the six years ending with the 1999-2000 academic year, the percentage of all law faculty who are minority at the 184 schools rose from 12.3% to 13.6%, that is, by an average of 0.22 percentage points each year. Assuming that the percentage of Latina/o professors increases at that annual rate, it would take almost 37 years from 1999 for Latina/o law professors to achieve parity with the percentage of Latina/os in the 2000 population (11.1%) if the A.S.L.S. 3% figure is used. Assuming the same rate of increase, it would take almost 98 years from 1999 for the Latina/o law professors to reach parity with the 2050 projected Latina/o population (24.5%).

If Professor Olivas' 1.7% figure is used, it would take almost 43 years from 2001 to reach parity with the 2000 Latina/o population and almost 104 years from 2001 to reach parity with the 2050 projected Latina/o population.

[a1]. Adelbert H. Sweet Professor of Law, Stanford Law School.

[aa1]. Academic Dean and Professor of Law, University of California, Hastings College of the Law.

. Although the alliteration and the poetry are lost in the translation, the proverb literally means that from being said to being done there is much difficulty. A better sense of the proverb is that it is a long way between the setting of a goal and its accomplishment. The proverb aptly captures the long road Latina/os must travel if they are to reach parity in the legal profession.