Honorable Federico Hernández Denton
Chief Justice
Supreme Court of the Commonwealth of Puerto Rico 

Harvard Law School Latino Alumni Reunion
and Public Policy Conference:
Advancing a National Leadership Agenda

April 2007

Good Morning.

      I am honored to have been invited to participate in this panel about “Latinos in the Service of our Judicial System” and to be among such distinguished guests. I will give you a brief history of my experience in the judicial branch in Puerto Rico and will try to offer some ideas on how to advance the goal of increasing Latino presence in the legal community.     
   
      After graduating from Harvard College and Harvard Law School I returned to Puerto Rico and started my career in public service as General Counsel of the President of the University of Puerto Rico. Since then I have essentially been dedicate to public service either in the government or in the academy.

From 1969 to 1972 I was Director of the Consumer Research Institute of the Business School of the University of Puerto Rico and in 1973 I was appointed Secretary of the Department of Consumer Affairs of the Commonwealth of Puerto Rico, a cabinet level agency. After leaving the government in 1977 I became a Professor of the Inter American University of Puerto Rico School of Law, and served as Director of the Clinical Program of the Law School and Director of the San Juan Community Legal Services Program until 1984 when I was appointed Dean of the Law School.

       During my years in academia I was also a member of the Governing Boards of the Puerto Rico Bar Association, of the Puerto Rico Legal Services Corporation and of the San Juan Community Legal Services Corporation.

       In 1985 I was appointed Associate Justice of the Supreme Court of Puerto Rico and in 2004 I became Chief Justice.     
      Puerto Rico, as a Commonwealth of the United States, occupies a unique position within the United States federal framework. As American citizens, we have the full protection of the US Constitution, but we also have our own Constitution, laws and judiciary. Our courts are staffed by Puerto Rican judges, our lawyers and prosecutors are Puerto Rican and all business in the courts is conducted in Spanish. Membership in our bar is compulsory, and in order to practice in our courts an attorney must have passed the Bar Exam and be admitted to practice by the Puerto Rico Supreme Court. There is no reciprocity with any of the state bars.

      Although after graduating from Law School I returned to Puerto Rico where I have worked all my life, I have always been conscious of the of the fact that the other halve of our population lives in the mainland United States. I am also very sensitive to the fact that our brothers and sisters been the victims of discriminations and poverty.  The fact that Latinos are underrepresented in all branches of the legal field: law students, law professors, prosecutors, attorneys and judges is also of great concern to me. Statistics show the magnitude of the problem.  According to the US Census Bureau as of December 2006 the Latino population was 42.7 million. Census figures anticipate that by 2050 they will eventually outnumber Asian Americans, Native Americans, and Blacks combined. The Hispanic National Bar Association estimates that as of September 2006 there were over 33,000 US Hispanic attorneys, judges, law professors, legal professionals and law students. According to the American Bar Association about 9 percent of judges and 10 percent of lawyers are members of minority groups, compared with 1 in 4 American workers. For example, in California, roughly 17 percent of judges and lawyers are nonwhite, versus 58 percent of the state's population.

      Of particular concern is the under representation of minorities in both the federal and state courts. Judges as the third branch of government need to be representative of the communities they serve. If the judiciary loses the confidence of the public, its job will be difficult, if not impossible. Ethnic and gender diversity broadens the viewpoints on the bench and leads to a fairer and more credible judicial system. For people to believe in the justice system, to believe that it works it is necessary to have judges who are sensitive to the problems and their necessities.

       Law schools and Latino law students

I have always believed that education is the most important and powerful key to social and political advancement. In the case of minorities, education not only opens the door to a better job, but, even more important, it gives a sense of empowerment. If we want to increase the Latino presence in the legal profession we should start by increasing the number of Latino law students and improving their chances of passing the bar exam. If we want more Latino judges, Latino prosecutors, Latino public defenders, Latino attorneys in public service and private practice, we have to start by increasing the pool from which they can be drawn.

      The efforts to diversify the legal profession started during the late 1960’s and 70’s. These were the early days of affirmative action when law schools around the country responded to the need for diversification of their classes. During these years, the law schools actively and vocally sought minorities. They affirmatively sought applicants from underrepresented communities.

      They understood that the legal profession plays a critical role in the policy making sector of our society, whether decisions be public or private, state or local. It emphasized the fact that lawyers, in making and influencing these decisions, should be cognizant of the views, needs and demands of all segments of society. As such, the educational interest of the state in producing a racially balanced student body at the law school is compelling. Finally, the court concluded that if minorities are to live within the rule of law, they must enjoy equal representation within our legal system.

      Despite the efforts made, the progress in achieving the needed diversity in the law schools and the legal profession was slow and elusive, particularly with regards to Latinos. Some of the factors that had to be taken into account were:

(1) Latino and Latina law students disproportionately came from lower socio-economic families and often ranked in the lower quartile of the class; (2) Latino students suffered a higher than average failure rate from their first attempt at the bar ; and (3) Latinos were disproportionately poor and, thus, required greater financial assistance.

      Beginning in 1990, the gains that traditional affirmative action measures had achieved were sharply curtailed by successful political attacks. Some states approved legislation whose net result was the elimination of affirmative action programs in public law schools. After the elimination of affirmative action at professional and graduate schools, public institutions law schools saw first-year enrollments of African-Americans and Latinos plunge.

   On the other hand, minority enrollment in private institutions increased. The ABA Commission Report determined that, in 1996, minorities made up a growing proportion of elite law school graduates. While in 1986, only 11.1% of the graduates of elite law school were minorities; in 1996, 25.5% were minorities. This is an important development and the universities that have led these efforts must be congratulated.

      Law schools should recognize the importance of designing and offering curriculum choices that systematically expose Latino students to the legal problems of their communities. There is a need for research seminars in which students can pursue issues of interest to Latinos, such as immigration policy, legal barriers to education, voting rights, and disparate application of criminal laws. There is no doubt that as the composition of the United States changes, law schools need to adjust its curriculum to account for those changes.

      Law schools should also consider sponsoring symposiums in which professors, students, as well as representatives from the Latino community and of the Hispanic Bar participate. These symposiums would serve the double purpose of examining Latino rights, legal institutions, career choices and how legal education can be used to affect change in Latino communities. At the same time, the symposium would educate the Law School community about issues relevant to Latinos and would provide opportunities for the students to develop relationships with Latino lawyers throughout the country, many that practice in communities where students are from.

      Law schools should encourage the study of the different legal cultures of Latin America. How many of you are aware of the fact that during the last ten years Latin American nations have initiated a thorough transformation of their judicial and legal systems from the European inquisitorial system to an oral process more similar to the procedures of the courts in this country. How many of you are aware of the fact that in many countries in Latin American there exist two different legal systems, one for the Indian population and another for the rest of the country.

As Chief Justice of the Supreme Court of Puerto Rican I actively participate in the Conference of Chief Justices of Latin America and this has been one of the most interesting experiences of my life because I have been able to understand the different legal structures of many of the Latin American nations of your parents and your extended families. How much interest is there in law school such as Harvard in the legal systems of Latin America and the changes that are now occurring all over the hemisphere.
 
Law Schools and Latino Faculty Members
     
Equally important is the need to increase the number of Latino professors in our law faculties. We need the voices of Latino scholars to be heard, and their works to be published. Latino professors are indispensable in providing Latino law students the appropriate support to enable them to cope with the pressures of law school. The issue of faculty diversity is also important to non-minority students because it enriches the intellectual discourse and curriculum at any law school.

The Association of American Law Schools (AALS) published a Preliminary Report on the recruitment and retention of minority faculty which follows the progress of all new faculty members in a tenure track position.  The report compares recruitment and retention rates, for white and minority professors hired in 1990-91 and 1996-97, as well as how many achieved tenure in a seven to eight years span.  Their findings reflect the following trends:

      (1) Both absolute numbers as well as the proportion of minority law professors hired decreased in 1996-97 from 1990-91. While in 1990, 125 minority professors were hired (about 30%), in 1996 there were only 47 minority professors hired which is less than 25% of those hired.

      (2) While the gender gap in tenure rates among white professors has diminished, the racial gap in tenure rates has increased to distressing proportions. Among law professors hired in 1990, 74% of white professors were awarded tenure by year seven, as compared to 60% of professors of color. The racial gap is even more for those hired in 1996 where 73% of white professors but only 47% of minority professors were awarded tenure by year eight.

      (3) Some racial groups bore the burden more disproportionately than others. While white and Asian American professors hired in 1996 were 10% less likely than white law professors hired in 1991 to get tenure, Black professors were 13% less likely to get tenure and Latino professors were even more dramatically less likely to get tenure.

      (4) Latino professors bore the burden more disproportionately than other minorities. The data suggests that Latino faculty members are particularly under represented and leave the profession at the highest rate without obtaining tenure. While in 1991, a high of 40 Latino professors was hired, by 1996, only 11 Latino joined the ranks of law professors. This represents a 75% drop. Most disturbing is that the data shows that those Latino professors hired in 1996 had a zero percent tenure rate.

      Some structural factors, as opposed to personal factors, have been identified as curtailing the advancement of minority law professors. These factors are considered structural, rather than individual, in that they stem from the organization of the profession or law school culture. While tenure decisions are highly subjective and individualistic, there is no doubt that they are also affected by the social and structural context.

      The AALS Report has identified the following structural factors as having an effect in the existing racial gap in promotion rates:

      (1) A lack of a critical mass of minority professors in a law faculty. Critical mass means a notable increase in the number of a previously underrepresented group in any given faculty, In order to retain minority professors there needs to be a significant number of persons of color in the staff, administration and student body.  In the absence of a critical mass, minority professors often confront issues of loneliness and lack of support. The token placement of one or two minority professors in a given faculty promotes the view that they are there because of necessary affirmative action hires.

      (2) Minority professors often do an excessive amount of academic housekeeping chores which include official and unofficial student advising and mentoring,  representing the law school at bar and community events, serving in special task forces that respond to crisis and serving as the token minority in many committees. These academic housekeeping chores are onerous because they are intellectually undervalued; faculty members receive little credit for doing them and leave minority professors with less time and energy to devote to scholarship.

      (3) Minority professors often report the existence or the perception of a double standard in the evaluation of white and minority tenure candidates. Minority faculties sometimes face a heightened scrutiny in the process of being evaluated. Although sometimes unconscious and unarticulated, like the greater service burden imposed on them, in other cases it is obvious by the number of peer reviewers of their classes and the number of law articles required for promotion.

      (4)  Mentoring is crucial for untenured minority faculty. There is a lack of senior minority faculty members in many faculties. The lack of mentoring opportunities is particular detrimental because minority professors have the greatest need for guidance and support since they face special obstacles that range from student racism to isolation.

      (5) Some minority professors have been victims of a racially hostile environment. They have been openly confronted by white students, some have received hate mail and hate and derogative flyers have been circulated on campus.  Sometimes the hostile conduct comes from white faculty members in the form of openly questioning their ability and credentials in front of white students.

      Law schools should make a priority of examining and correcting the above mentioned factors. The need of an integrated faculty, multiracial and multiethnic, where all segments of society are represented, and where there is opportunity for different perspectives to be examined and different voices to be heard, should be the goal of every law school regardless of size and affiliation.

      One very important component of this diversified faculty is the Latino and Latina professors and scholars, especially if one considers that by 2050 Latinos will outnumber all other minorities combined.

      Latino professors are needed on the faculty to reflect the interests and experiences of Latinos in our society. The presence of Latino professors not only helps break the stereotypes non-Latinos hold, it also encourages Latino students to envision themselves as academics and legal critics. When Latino students do not see anyone like them in front of the classroom, it is less likely that they will imagine themselves in such a position. Some talented Latino students who could be legal scholars may never consider a career in teaching simply because they never thought it was within their reach. Latino professors help students imagine themselves in the legal academy because they share common experiences as Latinos.

      The issue of faculty diversity is also important to non-minority students and the presence of Latino faculty will benefit both Latino and non-Latino students alike. The hiring of Latino faculty will enrich the intellectual discourse and curriculum at any law school.  They will bring into the law school setting different experiences and a different way of analyzing and characterizing social issues.

      Latino professors are relevant to improving every student's education. The new perspectives and methodologies that Latino professors bring to law faculties serve all students for whom the current format of legal education does not work. Some familiarity with the Latino community and the issues affecting them will be important to non Latino students when dealing with Latino clients or projects in Latino communities. Creating greater diversity in the faculty is a way to strengthen a climate of tolerance.

      Finally we need a concerted effort from the Law Schools, State and federal Bars, to increase the bar passage rate of Latinos and Latinas in all the different jurisdictions.  Increasing the rate of Latino law students who successfully graduate and pass the Bar exam will serve a double purpose: the legal profession will be more attuned to our demographic ethnic composition and we will improve in quantity and quality the pool from which judicial appointments are made.

      Becoming a lawyer requires more than earning a law degree. Passing the bar examination is the last hurdle that all aspiring attorneys must face before entering the profession. This hurdle is a significant challenge for many, and a permanent obstacle for some. There is a clear disparity between the bar passage rate for non-Latino whites and that for minorities. For example, only 51.7% of all Latino test-takers passed the California bar examination on their first attempt in July 2002, compared to 70.4% of non-Latino whites. Latinos have the second lowest bar passage rates of all minorities in the state of California. Only African-Americans have a lower rate, at 38.5%.

      This difficulty in successfully passing the bar continues to be a serious impediment to achieving diversity in the bar. Many Latinos have a harder time taking standardized tests because: (1) in many cases the elementary and secondary public schools they attend provide inferior training which translates into a disadvantage when applying for college entrance. (2) college education does little to advance their skills in taking standardized tests.
      This is a problem that needs to be addressed. Particularly when some minority students that have failed the bar the first time are considered stars when they join a firm in light of their skill as lawyers. Potential policy changes must be seriously considered by the bar examiners and the courts, which set those policies.

      Before concluding today I want to recognize an extremely important recent achievement in this Law School by a Latino law student. I am of course referring to the election of Mr. Andrew Crespo as the President of Harvard Law Review. We are all extremely proud of this extraordinary accomplishment of a very talented Puerto Rican student of this faculty. His parents must be very proud of this young man and they also deserve our warmest congratulations on behalf of all the Latinos and Latinas who live in this country and contribute to its culture, its economy, its music, its politics and its development.

      Thank you very much.