How lawyers can honor Black History Month with action
Lauren Stiller Rikleen.
This February, we mark Black History Month at a time of sharpened focus on institutional racism, the Black Lives Matter movement and a raging pandemic that has disproportionately impacted minority communities.
We also are witnessing a terrifying resurgence of white nationalism, which emboldened an attack on our nation’s Capitol building in January and fueled racist policies designed to prevent Black Americans from voting in the 2020 election.
Our stark reality is that we are living history even as we honor it. Black Americans played an historic role in the November election, but there are unabashed efforts to continue to limit their access to the ballot box.
In response to the increased voter turnout in the 2020 presidential election, the Brennan Center for Justice reports that more than 100 bills designed to suppress voting have recently been filed in 28 state legislatures.
As I look at ways in which the legal profession is honoring Black History Month, I also wonder how history will treat us as we move through these historic times. Will lawyers be the heroes of this story, or will we fail to meet the moment?
There are teaching moments everywhere we look if we are open to their lessons. Every example of institutional racism offers a challenge to the profession. We must examine ourselves, as law firms and as legal organizations, to learn how we can do better internally and how we can make a difference in our nation.
In yet another recent example of the pernicious way that institutional racism operates, a young woman accosted a 14-year-old Black guest at an upscale New York City hotel, accusing him of stealing her missing phone. Keyon Harrold, a prominent Grammy-winning jazz musician, and his son were guests at the Arlo SoHo hotel in New York City.
As they walked through the lobby on their way to breakfast, Miya Ponsetto screamed at and lunged toward Harrold’s son, trying to prevent him from leaving while demanding his phone.
Rather than protect a guest, the hotel manager sought to placate the accuser. Both Ponsetto and the manager demanded the teen show them his phone to prove it was his. Harrold interceded and told his son not to acquiesce as he tried to move them out of the way while videotaping some of the incident. Additional hotel surveillance video showed an even more disturbing scene in which the woman appeared to tackle Harrold’s son.
In the most unsettling moment, the hotel manager claimed he was trying to resolve the conflict when he asked Harrold’s son to let him see the phone so the young man could prove it was, in fact, his own. By doing so, the manager’s behavior empowered the woman who, without a shred of evidence, accused a Black youth of theft and then insisted he prove his innocence.
Harrold described this chilling “show me your papers” moment as an assault on their dignity as Black Americans. He harnessed a critical teaching moment with his clear-headed directive to his son not to give up his phone. Having just emerged from an elevator with him, Harrold understood it was not their job to prove to a menacing woman in a hotel lobby that his son was innocent of her imagined crime.
Ponsetto claimed it was not a racial incident because she also had ordered someone else in the lobby to empty his pockets. If true, the hotel manager was further complicit in her bad behavior because he knew she was lashing out at others, yet he still requested that Harrold’s son prove his innocence as a path of least resistance.
Lessons for lawyers
This example is relevant to all lawyers who talk about eliminating bias in their organizations, without understanding the pernicious ways in which it manifests. Efforts to de-escalate a situation through appeasement can simply encourage more racism. The hotel manager’s job at that difficult moment was to rely on police or hotel security to calm and remove the woman, allowing his hotel guests to move unencumbered.
When giving presentations on unconscious bias, I am always struck by the anecdotes that follow: the stories shared privately of complicity or a failure to intervene when intervention was warranted.
Too often, people share examples of ways their own pain was trivialized when they were told to simply ignore someone’s racist remark passed off as just a bad joke or a misinterpretation. There are always myriad ways in which someone’s lived experience can be devalued by another’s unwillingness to confront his or her own biases.
Shortly after this incident, Ponsetto’s missing phone came to light. She had left it in an Uber, and the driver discovered it and returned it safely. Harrold and his son’s sense of safety and dignity, however, will not be as easily restored. Even Harrold’s status as an acclaimed musician couldn’t protect him and his son from an experience that is so emblematic of racist privileged behavior in America—and so emblematic of experiences that occur each day.
Bias—at both conscious and unconscious levels—may manifest in less obvious ways, but its impact is seen, for example, in the raw data that marks our profession’s failure to hold itself accountable for retaining and advancing Black lawyers. It’s also evidenced in the failure of all organizations that have yet to do the work required to implement systemic change.
Whether it is the failure to create or alter institutions in which minorities can succeed; an attack on a government building by white supremacists; police killings of Black men and women in disproportionate numbers; or minority voter suppression, we are living through a moment when our nation’s lawyers are needed more than ever before to use their power to speak up and take action.
These are the questions we must address: Will the legal profession answer this call at this moment? As we move through this unprecedented and historic time, will all corners of the profession—including law firms and bar associations—use their unique powers to preserve our democracy, protect every person’s right to vote safely and easily, and ensure our workplaces eliminate systemic bias? Or will we let the moment pass through our grasp?
Black History Month should be more than an opportunity to learn. It must be our active call to do more.
This is not about choosing a political side. It is about standing for the democracy we took an oath to protect. Harrold took action and protected his son because the hotel failed to do so. The legal profession has its own opportunity to take action and ensure future celebrations of Black History Month commemorate how institutional racism was finally defeated, led by lawyers who rose to the challenge.
Lauren Stiller Rikleen, president of the Rikleen Institute for Strategic Leadership, speaks, trains, provides expert witness testimony and consults on diversity, inclusion and the creation of a respectful workplace culture. She is the author of two ABA flagship books, The Shield of Silence: How Power Perpetuates a Culture of Harassment and Bullying in the Workplace, and You Raised Us—Now Work With Us: Millennials, Career Success, and Building Strong Workplace Teams. Lauren is also a member of the steering committee of Lawyers Defending American Democracy. She’s also a former member of the ABA Journal’s Board of Editors.
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