|
The American legal system has been marked by racial injustice and gender bias, beginning with our nation's foundation. Because of these very genuine inequities, the law becomes a paradigm
of exclusion rather than empowerment for many practitioners as well as those seeking a just remedy through the courts.
From James Madison's milestone debate at the 1787
Constitutional Convention to landmark United States Supreme Court decisions such as Brown v. Board of Education, the legal profession is a vital player in shaping our national
history. Indeed, the law itself writes the script for the ongoing American drama. Legal practitioners and jurists serve as the seminal connection between society and the law. This means
that attorneys and judges possess the power and responsibility to cautiously exercise that power, to humanize or dehumanize our legal system. We can be either the providers or precluders
of equal access to justice for minorities and women, both in the practice of law and in the society the law serves.
America is growing into the 21st century. The legal community,
however, is in danger of losing touch with reality because it simply fails to bear any resemblance to the national population. This dichotomy is predicated by the profession's failure to
eliminate gender and racial inequality based on bias and stereotyping. Put into current perspective, the U.S. Census reports that America is a racially diverse nation made up currently by
30% people of color, and approximately 51% female. Projections are that as a nation, minorities will comprise 50% of the population by the year 2050. In California, that percentage is
predicted to be met before the end of the current decade. Yet the law lingers like a fossilized dinosaur as a profession controlled by a largely white male force of attorneys and jurists.
Statistics show that 90% of the legal community is white and, of that, more than 70% are white men. This obviously is a perverse reflection of what America is and will become in the next
fifty years.
The time to stop paying lip service to achieving diversity in the legal profession is long overdue. As Lazarus Long stated, "a generation which ignores history
has no past - and no future." Our profession, in the pursuit of justice for all races and both genders, must not ignore the past, but address it head-on. This is critical not only to
align the legal community with the general make-up of the population, but also required for fundamental ideals of fairness. Attorneys and jurists should be hired, appointed, elected,
reviewed and promoted on the basis of ability instead of DNA predisposition and skin color.
Likewise, the people served by the legal profession must be treated without bias
because of what they look like. They must be served by addressing the merits of valid legal claims. For all who participate in the legal process, the appearance of justice is as important
as justice itself. But justice will continue to elude participants and our communities at large if the legal profession itself engages in overt and subtle forms of gender-bias and racist
conduct.
Justice Harry Blackmun stated: "in order to get beyond racism and sexism we must first take account of race and gender. There is no other way . . . we must
treat them differently. We cannot - we dare not - let the equal protection clause perpetuate racial and sexual supremacy." Indeed, to allow the equal protection clause of the U.S.
Constitution to continue bias of any sort would be an outward perversion of its intent. Yet in recent years, the nine-member panel of the U.S. Supreme Court has restricted civil rights
for minorities and has ruled against plaintiffs claiming discrimination in employment cases. For example, in January 2000, the Supreme Court undercut the authority of the Justice
Department under the Voting Rights Act in a case which sought to block white bureaucrats from adopting electoral plans which were unfair to black Americans. Proof of a
"discriminatory purpose" was not enough to block such a plan from taking effect. Reno v. Bossier Parish School Board, 528 U.S. 320 (2000). In another case, which has an
obvious adverse legal impact on women, the Court struck down the section of the Violence Against Women Act allowing female victims of sexual assaults to seek recompense from their
attackers in federal court. Justice Rehnquist said that Congress' power to protect a woman's civil rights does not extend to "purely private" acts of violence that do not cross
state lines. That decision in U.S. v. Morrison, 529 U.S. 598 (2000) probably dooms prospects for enacting a national Hate Crimes Act.
Another Supreme Court decision, Board of Trustees of the University of Alabama v. Garrett,
531 U. S. 356 (2001) ruled against a woman claiming discrimination when she was demoted after treatment for breast cancer, tossing out her suit in its entirety. These cases demonstrate
the continuing need to proactively make the judicial system a place where bias is replaced with equal justice. Deborah Rhode, chair of the American Bar Association's Commission on Women
in the Profession properly asserts, "As gatekeepers of our nation's justice system, lawyers should be trailblazers in promoting equality."
Recognizing that disparate
treatment between the races and the sexes exists is the fundamental beginning toward ending the problem, but it is only the first step. Bar associations should develop task forces to
solely address diversity. One of the first law-based organizations addressing the treatment of women in the legal profession was established in 1974 by the Association of Trial Lawyers of
America (ATLA). The Womens Trial Lawyers Caucus seeks to diversify ATLA's membership, since women today still comprise only 16% of ATLA's membership.
Another group, created in
1987, is the American Bar Association's Commission on Women in the Profession. Its original purpose was to assess the status of women in the legal profession, and now it serves as a
national voice for women lawyers. The Commission emphasizes that although there is some progress concerning employment diversity, equally-qualified women who practice law continue to be
paid significantly less than male counterparts. The promotional stratosphere between men and women in the law is also an enormous gulf. Polls continue to demonstrate that women are losing
ground in both equal treatment and pay equity. (American Bar Journal, September 2000). Many state bar polls reflect the same findings. In California, the state bar survey shows
that today 68 percent of California's attorneys are white males. (California Bar Journal, September 25, 2001). Only 15.50 percent of the women attorneys in Oregon became partners
in firms. (Oregon State Bar Bulletin, January 2002).
The numbers for minorities in the profession also show a chasm which demands correction. The total minority
representation in the legal profession is about 10 percent, a figure obviously disproportionate to the general population, and one which is significantly lower than other professions.
While the proportion of law students of color has doubled since 1986, minority law school enrollment has increased only 0.4 percent over the past six years - the smallest increase in 20
years. (Bar None, Lawyers for One America, 2000). Similar statistics are found on a statewide basis. In California, notably one of the nation's most diverse states, minorities make
up only 17 percent of its attorneys. (California Bar Journal, supra). Less than 3 percent of all partners in law firms are racial minorities on a national basis. In Oregon,
attorneys of color comprise a mere 2.66 percent of partners in law firms in the state's largest city, Portland. (Oregon State Bar Bulletin, supra).
The most powerful tool
to effectuate diversity is to eliminate stereotyping and bias at its roots so that it is not given the opportunity to develop. This requires education. Every member of our profession,
from law students to jurists must be enlightened in the area of racial and gender diversity. Law firms and bar associations must go beyond their own doors - inside of which diversity in
hiring, retaining, promoting and recruiting practices should already be implemented - to support at least one law school scholarship program furthering diversity. Attorneys in all sectors
of the profession should also affirmatively seek associations and law schools with mentoring programs which make diversity a goal.
Further, we should be proactively urge Congress
to fully fund the Thurgood Marshall Legal Educational Opportunity Program, demonstrating a commitment to provide equal opportunity for students of color to pursue a legal education.
Education of the legal community must also include mandatory continuing legal education courses in diversity training and eliminating bias. State bar associations must also include
specific requirements for jurists to comply with similar protocols so that courtroom demeanor is free from racial and gender-biases, and creates an honest reflection of justice.
The hurdles are clear: overcoming ignorance and ingrained notions from generations which had limited vision of who could best hold the scales of justice will take time. Nonetheless, we
cannot succumb to the perils of complacency, allowing these preconceived ideas of what an attorney looks like by gender or race to continue. Diversity must be a goal we pursue as people
sworn to uphold a Constitution which decries discrimination. Remaining uninformed gives rise to inexplicable and irrational bias. Our society and profession simply have no room for this.
We are players with different instruments in a legal orchestra, with similar goals to pursue justice and defend liberty. Gender and racial equality in the legal community better reflects
our national population, and is the best way to accomplish that which we swore to uphold the moment we took our oaths as attorneys.
|
