More Effort Is Needed to Support Legal System Diversity, and 'Fatigue' Is Not an Option
Photo by Neal Bredbeck
Di·ver·si·ty: the condition of having or being composed of differing elements; the inclusion of different types of people (as people of different races or cultures) in a group or organization.
Fa·tigue: weariness or exhaustion from labor, exertion or stress.
—Merriam-Webster.com
In the next few months, a host of important facts and figures will be released by the U.S. Census Bureau. But so far the numbers show us that our country has more people—nearly 309 million—and is more diverse than ever before.
This nationwide count is an essential part of American history. On March 1, 1791, the first Congress passed “an act providing for the enumeration of the inhabitants of the United States.” The first numbers began rolling out five months later. Six questions asked the name of the head of the family and the number of people in each household matching the following descriptions: free white males of 16 years and older (to assess the country’s industrial and military potential), free white males under 16 years, free white females, all other free people (by gender and color), and slaves.
PROGRESS ERODING
We have come a long way, of course, in 220 years. But similar to the earliest count, the 2010 census offers a way to judge progress in the country’s business base. Indications for the legal profession and our system of justice are not good. For example, by all early accounts, Hispanics will be the fastest-growing segment of our population as states with large Hispanic populations—California, Florida, Nevada and Texas—showed some of the biggest gains in real numbers or by percentage. But the legal profession has not kept pace in integrating this or other minority groups.
In December, several weeks prior to the release of the first batch of census figures, NALP issued a report that showed the percentages of both minority and female lawyers slightly declined between 2009 and 2010, a reversal in what had been a continuous upward trend since the 1990s. And the upward trend was important, because minority representation in the law is still disturbingly disproportionate to the number of minorities in today’s American society. About one out of every eight lawyers in firms of 700 or more was a minority, while about one in three was female, the study showed.
Much of the reason for this dip likely revolves around the economy. Many firms were forced to do layoffs or otherwise downsize, and the associate ranks—where young minority lawyers are just getting a foothold in the profession—were especially hard hit. Whatever the reasons, the NALP report and the new census figures send a strong message that this is no time for “diversity fatigue.”
It is clear why fatigue is not an option. A justice system that doesn’t reflect the face of society corrodes a society’s faith in and connection to that system. It threatens rule of law in the United States. A fair justice system is sustained by a legal profession that represents the society it serves. A diverse bar and bench create greater trust in the mechanisms of government and the rule of law.
That is why increasing diversity in the legal profession is so paramount to the ABA, and why the association devotes many resources to the problem. Entities such as the ABA Council for Racial and Ethnic Diversity in the Educational Pipeline, also known as the Pipe line Council, work to get very young students interested in and prepared for careers in the law. There’s the 2009 launch of the initiative “Diversity in the Legal Profession: The Next Steps.” And this year the association created a Hispanic Rights and Legal Responsibilities Commission. A priority of this commission is full integration of Hispanics into the profession.
These ideas and projects can be the right weapons to combat diversity fatigue. The idea behind diversity fatigue is not that the public believes that issues have been resolved, but that it’s too tiring to continue work on a problem without producing better results. For example, women now make up approximately 50 percent of entering law school classes but still constitute less than 20 percent of all partners.
However, lawyers don’t turn their backs on difficult problems. As we do in our practices, we use our advocacy skills, knowledge of the law and networks to make a difference. It can be done with diversity as well. And today’s business environment demands lawyers make a better run at the problem. Whether it’s a practice on Main Street or Wall Street, it makes good business sense to have a workforce that reflects varying backgrounds, perspectives and skills.
Change is constant and there will always be ebbs and flows in the process. As the numbers suggest, more needs to be done to make the legal profession more fully reflect the communities it serves. It’s time to speed the pace of change and make both the legal profession and the justice system more inclusive. We are committed to rising to the challenge.
