Bar Commission Adopts New Policy on Inclusion and Diversity: It is No Longer Black and White

by Rodney G. Snow
With Martin Luther King Jr. Day this month, we should consider how close we are to living the dream – in particular, Dr. King’s dream that his children will “live in a nation where they will not be judged by the color of their skin but by the content of their character.” Please indulge a few observations regarding diversity from an aging white Bar president. Many of you have worked hard at improving diversity in the legal profession, including our law firms and the bench. We have adopted policies, recruited, and trained with the goal of increasing diversity. We have had some success and some failures. Still we have pursued. We thank you for your efforts at inclusion and diversity. Too often you do not get the recognition for what has been accomplished and for what you have attempted to accomplish in the diversity arena. But reevaluation now and then is a good thing for us all.

Last year the ABA published its report on the Presidential Diversity Initiative – “Diversity in the Legal Profession – The Next Steps.” The report deals explicitly with race and ethnicity, gender, sexual orientation, and disabilities. See ABA’s Presidential Initiative Comm’n on Diversity, The Aba’s Diversity in the Legal Profession: The Next Steps, I recommend the report to each of you and believe that you will get a great deal out of it, as did I. Of particular interest in the report is the concept that diversity training is a journey and not a destination. The report describes the advantages of a diverse workforce: “A diverse workforce within legal and judicial offices exhibits different perspectives, life experiences, linguistic and cultural skills, and knowledge about international markets, legal regimes, different geographies, and current events.” Id. at 9.
The ABA report stresses the importance of understanding implicit bias, learning to recognize it and ways to work with it so it does not impact, in a negative way, our decisions. I am hopeful the Bar will sponsor some “implicit bias” CLE and training in the near future. I have encouraged the CLE Advisory Committee to work with the Bar to develop an implicit bias training program.
The ABA report is not particularly complimentary of the legal profession when it comes to race issues. The report states we are less racially diverse than most other professions and that racial diversity has slowed considerably since 1995.
The first step the report urges bar associations to take is to adopt a policy on diversity. To that end, several weeks ago the Bar Commission began developing a new policy statement on diversity, studying other state and ABA inclusion statements. The language (not the concept) was debated by your Bar Commission in vigorous e-mail exchanges, at the Bar leadership retreat at the end of August and again at the October Bar Commission meeting. The Executive Committee then took the suggestions of several Commissioners and proposed a final version of the statement at the Commission meeting on December 2nd, which was held at the Community Legal Center in Salt Lake City. Below is the statement unanimously adopted by the Commission:
Utah State Bar Statement on Diversity and Inclusion
The Bar values engaging all persons fully, including persons of different ages, disabilities, economic status, ethnicities, genders, geographic regions, national origins, sexual orientations, practice settings and areas, and races and religions. Inclusion is critical to the success of the Bar, the legal profession and the judicial system.
The Bar shall strive to:
1. Increase members’ awareness of implicit and explicit biases and their impact on people, the workplace, and the profession;
2. Make Bar services and activities open, available, and accessible to all members;
3. Support the efforts of all members in reaching their highest professional potential;
4. Reach out to all members to welcome them to Bar activities, committees, and sections; and
5. Promote a culture that values all members of the legal profession and the judicial system.
“Inclusion” is the new goal that goes beyond diversity. It has a broader reach, speaking in terms of making people of all backgrounds feel a part of the legal community, not just tolerated by it. We hope the Commission’s statement expresses all of our aspirations. It presents what the Commission would like the Bar as an organization to strive for in a world that is becoming increasingly diverse, complex, divisive, and interesting, all in the same moment. We sincerely hope you will embrace this new policy, talk about it in your organizations and implement its goals.
On October 21st of this year, the Utah Minority Bar Association (UMBA) celebrated twenty years of diversity. Judge Raymond Uno, a founding member of UMBA, was the keynote speaker. Judge Uno is a classic example of hard work and accomplishment. His first job was as a dishwasher at Heart Mountain, Wyoming Concentration Camp where he and his family were incarcerated for three years during World War II. Then he became a gandy dancer (railroad track laborer). He entered the military at age seventeen and became attached to a military intelligence unit. He is a Korean War veteran. He went on to become an attorney and a Third District Court Judge. Other founding members include Judge Glenn K. Iwasaki, Judge Tyrone E. Medley, Judge C. Dane Nolan, and Judge William A. Thorne, Jr. The Bar Commission extends its warm congratulations for the excellent work and progress UMBA has made on behalf of so many minorities.
In light of Martin Luther King Jr. Day this month, some have suggested we should do more as a Bar to honor Dr. King and raise the level of consciousness regarding racial inequality. Most of our universities in the state have sponsored some remarkable activities on Martin Luther King Jr. Day. See A Judicial Invitation, by Judge Lynn W. Davis of the Fourth Judicial District Court regarding Dr. King on page 12 of this issue.
Obviously a great deal of progress has been made. We need only look at our history to confirm the efforts this nation has made to eradicate racial inequality. Let me refer you to an early example that may not be as well known.
Robert Gould Shaw (“Shaw”) was born on October 10, 1837, to a family of wealthy merchants in New York.1 His parents were well-connected progressive reformers and abolitionists. At an early age, Shaw and his parents moved to Massachusetts. Shaw studied in Europe and at Harvard. He joined the Union army as the Civil War was ramping up and eventually became a commissioned officer in the 2nd Massachusetts Regiment. Shaw fought in the battle of Antietam under McClellan against Lee’s armies. It was a horrible battle that resulted in the highest causalities suffered on a single day in all the wars in American history. Shaw was wounded in the battle and fell unconscious. He was awakened by a black grave digger. A week later, January 1, 1863, Lincoln issued the Emancipation Proclamation, freeing the slaves. Shortly thereafter, Shaw was offered the command of the 54th Massachusetts Infantry – a Regiment of African Americans. African Americans from all over the northeast enlisted.
Shaw and his fellow officers were impressed with the discipline and development of their new recruits. On June 30, 1863, Shaw’s men were to receive their Union pay. They were aggrieved to discover that the standard monthly pay and allowance they had been promised had been reduced for “colored regiments” to ten dollars. Shaw was incensed and ordered his men to refuse all pay until full pay was offered to his Regiment. The Union Army acquiesced to Shaw’s demands.
Later, Shaw badgered his superiors into allowing his Regiment to engage in battle with their white brothers. Shaw knew his troops would acquit themselves well in battle and wanted the Union to see firsthand their obvious prejudices were unfounded. The chance came as the Union planned to take Charleston and Ft. Sumter. Having repelled a rebel force on James Island, the 54th was ordered to Morris Island where they were invited to lead an assault on Ft. Wagner – an incredibly dangerous assignment. It was not an order but a request Shaw could have refused. He did as his soldiers expected; he accepted the challenge. “Shaw knew the key to Charleston lay at the end of the beach. If black men could storm the fort and open the door to the birthplace of the rebellion, the symbolism would be enormous.”2 Shaw also had a premonition he would not survive the battle. Still he insisted on taking his African American troops into this historic battle.
On July 18, the 54th marched through thirteen supporting regiments of cheering white troops. Running shoulder to shoulder due to the narrowness of the beach, Shaw’s Regiment charged. As they came within 200 yards of Fts. Wagner and Sumter, Confederate artillery opened fire on Shaw. As they approached within 100 yards, 1,700 Confederate soldiers opened fire on the 54th. They fought on Ft. Wagner’s walls for over an hour before a retreat was ordered. Shaw was shot through the heart as he climbed over the wall at Ft. Wagner. Almost half of the Regiment was killed, wounded or captured.3
Shaw was buried in a common grave with his fallen troops. When a Union officer approached under a flag of truce to claim the body of his fellow officer, it is reported the Confederate commander turned him back saying, “We buried him with his [blacks].” When word of this offense reached Robert Shaw’s father, Francis Shaw, he responded that there could be “no holier place.” Francis Shaw wrote the War Department to insist that his son’s grave not be disturbed.
A nurse who treated some of the wounded after the failed attack noted how anxious they were about the fate of Colonel Shaw and how deeply they grieved when they learned he had perished. “They loved him,” she wrote.4
This small yet powerful piece of history inspires me to do what I can, both as Bar President and as an individual, to “rise up and live out the true meaning of [this nation’s] creed: ‘We hold these truths to be self-evident, that all men are created equal.’” I hope we all can find inspiration in the coming months to live the dream.
1. This summary of Robert Shaw and the 54th Massachusetts Infantry is based on the books, Where Death and Glory Meet: Colonol Robert Gould Shaw and the 54th Massachusetts Infantry; and Blue-Eyed Child of Fortune: The Civil War Letters of Colonel Robert Gould Shaw, both by Russell Duncan.
2. Duncan, ed., Blue-Eyed Child of Fortune.
3. See id.
4. News of the Regiment’s courage caused many African Americans to enlist in the Union Army. By the end of the Civil War nearly 180,000 African Americans had enlisted. President Lincoln expressed that a significant reason for Union victory was attributable to this fact.

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