The newsletter of the ISBA’s Standing Committee on Women and the Law
Championing real diversity in a meaningful way
By now, you’ve been inundated with messages about diversity. You’ve attended seminars to augment your understanding, you’ve been on committees to increase diverse opportunities, and you’ve probably had some hand in articulating a policy that embodies diversity. Yet, the topic won’t go away. Like tort reform, the need for a policy is real, no tangible agreement has been reached, and discussion is dominated by extreme examples on both sides with no close consensus. The truth of the matter asserted, which is probably somewhere in the middle, is no closer to being found than the legal definition of obscenity. Much like obscene material, the lack of diversity must be directly in front of you—as an individual—for you to know it when you see it and, then, do something about it. Given the individuality of this method, it is no small wonder that friction occurs from the juxtaposition of an approach that institutionalizes diversity as its mantra. That juxtaposition, as well as the continuing struggle surrounding diversity, produces frustrations at a level that hasn’t been seen since Marbury v. Madison. Some of us don’t quite get it, some of us don’t see the relevance right now, and some of us believe that the right answer need not be further interpreted since changes in the law have allowed all people to participate as full citizens. Just to make the discussion move forward, go away, or at least change tone, we continue to participate in activities aimed at increasing diversity. Wherever you find yourself on that continuum, real and significant ways to encourage diversity do exist.
Increasing diversity doesn’t mean taking something from one person and giving it to another; it is not the redistribution of wealth and resources as we know it. It is not the wedge used by minority populations to peacefully gain advantage by stripping those same advantages from others. Rather, it is the acceptance, appreciation, and propagation of our collective differences in a way that makes sense for everyone. Like the remedies for global warming, some people will go the distance to champion diversity while others will do what is immediately in their comfort zone. And, there’s always a smaller group who will do nothing at all. Usually, nearly everyone will do something. But, what to do? Here are a few meaningful ways to champion real diversity.
• Understand the reason for diversity. The case for diversity is no longer made from the standpoint of deprivation, lack of equality, and atonement for past behaviors. Rather, it is better championed by the ability to increase global competition, accessibility, and the elimination of barriers to achievement.
• Be clear, be fair. Use clear messages, don’t play hide the ball. Though well meaning, people often communicate in ways that assume a particular understanding, background, or upbringing. Don’t assume, based on commonalities, that you are being understood and correctly perceived. And, don’t assume, based on differences, that you are not well understood or incorrectly perceived. Learn to appreciate, know, and accept the individual rather than wait until they prove or disprove the stereotype you have in mind.
• Use the status quo as a guide, not an absolute. This should be easy for us lawyers. The state of things as they are naturally, or the status quo, should be used as a framework upon which to improve. This is much like using the elements of a cause of action; they are a guide, not the gospel. The adversarial system is predicated, in part, on questioning the elements of a particular cause of action and proving or disproving them. To make your case, you use case law, facts, witnesses, and other acceptable forms of proof. The same holds true for diversity. No substantive difference exists between applying analytical techniques for case presentation and applying similar techniques to achieve diversity. For example, the status quo of some of the substantive law committees in ISBA is men of the majority race. Instead of accepting this as a norm, truth, or absolute, the same analytical techniques, using the current structure as a guide, apply to diversify those committees. Just like a case you argue, you must first believe that the outcome you want can be done. And, if you are an effective attorney, you must further bring to bear the belief that after your involvement is complete, it will be done.
• Demand and enforce equitable treatment. Usually, attorneys do not have a problem making demands. In fact, one of the first items we learn to draft in law school is a simple demand letter. The rest of law school, then, is learning to gain and enforce your advantage. The same experience can be applied to diversity. The strength is not in the asking; the strength is in the enforcement, in making diversity work. Making the environment receptive to ideas for implementing real diversity requires more strength than finding the flaws in the ideas that are offered. Holding those who have opportunity, resources, and access accountable for the lack of tangible results requires more strength than a forgive-and-forget attitude regarding real diversity.
At best, it will take all of us to achieve diversity. Hanging in the balance is progress; not just for minority races, but for the human race. As I write this, it’s hard to imagine what might happen if we, as a bar association and as lawyers, haven’t the required strength and commiserate fortitude to champion real diversity in a meaningful way. I hope I never find out. ■