The Approach to Diversity

Posted on October 18, 2012 02:24 by Alison Y. Ashe-Card

“Is dicing the workforce into pre-set categories going to encourage working together,” ponders author Liz Ryan.  In a recent Harvard Business Review article, she describes a recent diversity conference with which she was involved where concurrent sessions were held focusing on women, Baby Boomers, the GLBTQ population, Asians, African-Americans, and the physically challenged.  Ryan suggests, "We are not going to get better at confronting the differences that hamper our ability to work together by separating our people into broad-brush groups... Instead, we're going to get better at celebrating the family backgrounds, religious traditions, and ethnic heritage that our people bring with them to work. We can do that by talking about it — all the time — and by teaching people to talk about the 'sticky human stuff' in general."  She advocates that barriers will be broken down when we actively engage in conversations about our differences.

DRI has demonstrated that it is on the path to becoming a thought leader on the issue of diversity within our profession.  A core centerpiece of DRI’s diversity efforts is the Diversity for Success Seminar and Corporate Expo which will be held on May 30, 2013 in Chicago.  Diversity not only involves how people perceive themselves, but how they perceive others. Those perceptions affect their interactions.  The Diversity for Success Seminar provides a forum for attendees to have courageous, thought-provoking discussions about our differences and the role it plays in our firms, businesses and in the legal profession. 

 

 

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The underlying premise of the U.S. Supreme Court’s precedent in Grutter v. Bollinger is that students benefit from being in a racially diverse educational environment.  As the justices prepare to reconsider the issue of affirmative action in higher education, new research has emerged which examines Grutter’s premise.  The study, “Does Race Matter in Educational Diversity? A Legal and Empirical Analysis,” concludes that law students actually do benefit from racial diversity on campus and that law schools should work to maintain diverse classes.  University of North Carolina School of Law professor Charles Daye conducted the research along with University of North Carolina psychology professor A.T. Panter; University of California, Los Angeles sociology professor Walter Allen; and University of North Carolina at Greensboro professor emeritus Linda Wightman.  Their findings are based on data collected from law schools over a decade. The team surveyed approximately 6,500 incoming students at 50 law schools about their own backgrounds, expectations and experiences. They also conducted periodic focus groups consisting of approximately 200 students throughout their three years in law school.  

The researchers set out to answer two basic questions: Does race make a difference to what students bring to law school? If so, are any differences reflected in the quality of education students receive?  The data shows, resoundingly, that students of different races do come to law school with differences in experience and perception, Daye said.  Perhaps more important, those differences translated into a richer educational experience overall, according to the surveyed students.  "Diversity matters in the way students conduct conversations in class, how they interpret cases, in the way they interact in social settings and with their professors," Daye said.  Critics contend that the study authors used shoddy science to reach predetermined conclusions by relying on self-reporting of law students and assert that the study only demonstrates that students think that diversity helps their understanding of the law.
 
Does race matter in educational diversity and, if so, how do you measure or quantify the difference that it makes?  Does race make a difference to what students bring to higher education?  If so, are any differences reflected in the quality of education students receive?
 

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This fall, the United States Supreme Court will reconsider the issue of affirmative action in higher education for the first time since its 2003 decision in Grutter v. Bollinger.  In Grutter the Court held that, “The Equal Protection Clause does not prohibit the [University of Michigan] Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”  The Court will consider the appeal of Abigail Fisher, a white student, who alleges she was denied admission to the University of Texas because of the color of her skin.  At issue in the Fisher case is whether the Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter, permit the University of Texas at Austin’s use of race in undergraduate admissions decisions. 

The Supreme Court’s decision stands to have great impact nationally.  Numerous amicus briefs have been filed in support of both litigants.  Of note, the University of California (UC) president and chancellors, the state of California, the California Institute of Technology and a group of student organization at UC campuses are among at least 69 organizations that have filed amicus briefs in support of the University of Texas at Austin.  California is one of a few states that have already prohibited affirmative action in college admissions following the passage of Proposition 209 in 1996.  In its amicus brief, UC attorneys argued that the university system’s experience after Prop. 209 “sheds important light on the practical, real-world obstacles faced by universities seeking to obtain the educational benefits that flow from a diverse student body.”  Similarly, the brief filed on behalf of the state of California by Attorney General Kamala Harris observed that if California, a large and diverse state, could not achieve an acceptable level of diversity in its public universities in the absence of race-conscious admissions policies, other states with more homogeneous populations would struggle to an even greater extent.

Despite several initiatives enacted after the passage of the proposition, UC has not been able to reverse the decline in minority admission and enrollment since 1998, when the law went into effect.  Between 1995 and 2009, African Americans consistently represented between 7 and 8 percent of new high school graduates in California.  In 1995, African Americans made up 7.3 percent of admitted freshmen at UC Berkeley, but by 1998, that figure had dropped to 3.2 percent. In 2010 and 2011, it was 3.9 percent. UCLA saw similar results.

Is diversity a sufficiently compelling reason to use race in admissions decisions?  Is there a compelling interest in obtaining educational benefits from a diverse student body?  Could a reversal of the Court’s decision in Grutter result in less diverse student bodies at public colleges and universities as has been experienced in California?

 

Alison Y. Ashe-Card

Womble Carlyle Sandridge & Rice, LLC

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According to a recent survey published by the Minority Corporate Counsel Association (MCCA), more women serve as general counsel at Fortune 500 companies in 2011 than ever before.  Women now hold the top legal spot at 21 % of Fortune 500 companies and approximately 16% of these female general counsels identified themselves as minorities.  MCCA President, Joe West, says “The real impact of this news, hopefully, is that it will illustrate to law firms that corporate law departments are serious about inclusion both in word and in deed, and that the time is coming when law firms need to get serious about it as well.”

The numbers of female and minority lawyers are increasing in corporate legal departments because of the transparency requirements put on them by government and the accountability required by consumers and shareholders, says Dr. Arin Reeves, an expert on diversity in the legal field.  While the information in the MCCA report shows positive change, Reeves says it’s dangerous to allow short-term positive change to slow long-term momentum.  “We should be very vigilant that we have a long way to go.  We’re nowhere near represented yet, nowhere near full or unfettered opportunity for women or minorities.”

http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202567037361

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“Show-me-your-papers”

Posted on June 29, 2012 02:23 by Alison Y. Ashe-Card

Earlier this week, the U.S. Supreme Court struck down several key provisions of an Arizona law (SB 1070, Support Our Law Enforcement and Safe Neighborhoods Act) targeting illegal immigrants, ruling the state interfered with congressional authority over U.S. borders, but it let stand a requirement that police check the immigration status of people they stop for traffic or other offenses.  Reaction by law enforcement officials in Arizona, and others, has been mixed.  Police Chief Roberto Villaseñor of Tucson said that he wonders if his agency has been dealt an “impossible mandate,” while Amy Rezzonico, spokeswoman for Arizona’s attorney general’s office said, “I’m pretty sure it will be business as usual to some degree.”  The court left open the possibility that the surviving provision could be challenged, should it lead to prolonged detentions solely to determine immigration status.  "No American should ever live under a cloud of suspicion just because of what they look like. Going forward, we must ensure that Arizona law enforcement officials do not enforce this law in a manner that undermines the civil rights of Americans, as the Court’s decision recognizes," said President Obama.

Marc Miller, a vice dean and law professor at the University of Arizona said, “By making it a mandate and lining up against the warnings of the Supreme Court, it’s created an impossibly difficult question for police and sheriffs.  Are we concerned about racial profiling? Absolutely.”  Will enforcement of this law likely result in racial profiling?  Is it fair to question one’s legal residency or U.S. citizenship simply on the basis of the color of their skin?  What impact will this law have on the Hispanic community and other minority communities?  Are the civil liberties of all Americans at risk?

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This Day In History: June 13th

Posted on June 14, 2012 04:03 by Alison Y. Ashe-Card

On this day in 1967, President Lyndon B. Johnson nominated Thurgood Marshall to fill the seat of retiring U.S Supreme Court Associate Justice Tom Clark, saying that this was "the right thing to do, the right time to do it, the right man and the right place."  The Senate confirmed his nomination on August 30th by a vote of 69-11.  Upon his swearing in, Marshall became the 96th justice and the first African-American to sit on the nation’s highest court.  Only one other African-American, Clarence Thomas who succeeded Marshall, has served as one of the Court’s 112 justices.

 
Marshall, a Baltimore native, graduated from Lincoln University cum laude in 1930 and from Howard Law School in 1939 at the top of his class.  Marshall wanted to apply to his hometown law school, the University Of Maryland School Of Law, but the dean said he would not be accepted because of the school's segregation policy.  He practiced law privately in Baltimore before joining the NAACP as assistant counsel in 1936.  As the NAACP’s chief counsel from 1938 to 1961, Marshall, argued 32 cases before the high tribunal, repeatedly challenging racial segregation, most notably in public education. He won 29 of those cases, including a historic victory in 1954’s Brown v. Board of Education decision when the court, reversing itself, unanimously found that segregated schools violated the equal protection clause of the 14th Amendment.

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The area of a person’s brain responsible for feelings of empathy responds differently to persons of a different race at the neuron level as demonstrated by a MIT study.  Thus, if I perceive you as similar to me simply based on race, then my brain will react with more empathy or compassion than if you were of a different race, and this occurs without our even realizing it.  Similarly, a study conducted in March at UCLA demonstrated that the brain processes empathy towards friends who are experiencing social pain differently compared to strangers enduring the same social pain.  David Rock and Dan Radecki of the Neuroleadership Institute note, “These findings have implications beyond the courtroom. This is something that leaders and managers in any diverse organization need to understand. If you want people from different cultures to collaborate at their best, creating a common ‘in group’ is critical.”  The bad news is that race does matter, no matter how civilized we want to think we are. The good news is that the effect of race can be mitigated with increased awareness.

Come learn about ways to continue to break down the barriers of difference which divide us at the seventh annual Diversity for Success Seminar on June 7-8, 2012 at the Swissôtel Chicago.  Discover how diversity can be used to expand your firm’s base and increase your firm’s value to its clients. 

 

http://blogs.hbr.org/cs/2012/06/why_race_still_matters_in_the.html

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Earlier this week, the United States Senate voted to confirm Paul Watford to the U.S. Court of Appeals for the Ninth Circuit.  The Ninth Circuit is the nation’s largest circuit court with a jurisdiction that covers 62 million residents of California, Nevada, Oregon, Washington, Idaho, Arizona, Montana, Alaska and Hawaii.  Prior to Watford’s confirmation, only one of the twenty-nine seats on the Ninth Circuit was held by an African-American judge, Judge Johnnie Rawlinson, who was appointed by President Clinton.  Only two other African Americans have served on the Ninth Circuit, President Carter appointed Jerome Farris and Cecil Poole, and they served until 1995 and 1996, respectively.  Judge Jacqueline Nguyen was also confirmed this month for a seat on the Ninth Circuit.  She will be the first Vietnamese American and first Asian-Pacific woman to serve on a federal appeals court.  Judge Nguyen will fill a new seat on Ninth Circuit Court of Appeals that has been vacant since it was authorized in January 2009.  

 
While it is encouraging to see greater diversity on the Ninth Circuit, some believe that there is a real judicial vacancy crisis in the federal courts, with more than 75 judgeships currently vacant.  During his presidential campaign, President Obama expressed his desire to diversify the federal judiciary.  Some argue that this crisis is in large part the result of the unprecedented obstruction President Obama's nominees have faced. Presidents Clinton and Bush had just over 200 lower court judges confirmed during their first terms, but after three and a half years of the Obama presidency, the Senate has confirmed only 145 of his judicial nominees.  On May 7th, members of the Obama administration met with community leaders, legal experts and representatives of numerous national organizations, including the Hispanic National Bar Association and the National Bar Association.  The national groups issued a joint statement which read, in part: “This vacancy crisis, which has left 250 million Americans living in communities with unstaffed federal courtrooms, must end, and the confirmation process must not be allowed to be slowed even further by election-year politics. We believe that every nominee submitted by the President this year deserves a yes-or-no vote confirmation vote. Together, we will continue to fight for a fair judiciary and stand with the American people to ensure they have timely access to qualified judges to hear their disputes and have their day in court.”
 
Is there a judicial vacancy crisis in the federal courts?  If so, what impact is it having on President’s Obama’s desire to diversify the federal judiciary?
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Recently, Montana’s chief federal judge admitted to forwarding an email from his court email account that included a racist “joke” involving bestiality and President Barack Obama's mother.  Judge Richard Cebull has since issued a formal apology to President Obama and has asked for a formal judicial review of his actions.  Earlier this week, two members of the House Judiciary called for a hearing to examine the judge’s conduct.  Representatives John Conyers of Michigan and Steve Cohen of Tennessee told Committee Chairman Lamar Smith in their letter that the committee has a duty to investigate the potential consequences of Judge Richard Cebull’s email.   “At a minimum, forwarding this email illustrates poor judgment and of conduct that was unbecoming of a federal judge,” they wrote.  “More troubling, however, is the possibility that public disclosure of the judge’s conduct may not only undermine the public’s view of his personal credibility and impartiality as a judge, but also the integrity of the ... federal judiciary.”

More than 70 percent of President Obama's confirmed judicial nominees during his first two years were "non-traditional," or nominees who were not white males.  That far exceeds the percentages in the two-term administrations of Bill Clinton (48.1 %) and George W. Bush (32.9 %), according to Sheldon Goldman, author of the authoritative book Picking Federal Judges.  "It is an absolutely remarkable diversity achievement," said Goldman, a political science professor at the University of Massachusetts at Amherst.  Are Judge Cebull’s actions an isolated incident or an indication that we still have a long way to go with regard to diversity efforts in the legal profession?

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The Supreme Court of the United States will reconsider the issue of affirmative action in higher education for the first time since its 2003 decision in Grutter v. Bollinger.  In Grutter the Court held that, “The Equal Protection Clause does not prohibit the [University of Michigan] Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”  Today, the Court agreed to hear the appeal of Abigail Fisher, a white student, who alleges she was denied admission to the University of Texas because of the color of her skin.  At issue in the Fisher case is whether the Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter, permit the University of Texas at Austin’s use of race in undergraduate admissions decisions.

The Texas case will be argued in the fall and the changed makeup of the Supreme Court could foretell a different outcome.  Chiefly, Justice Sandra Day O’Connor, who wrote the majority 5-4 decision, has been replaced by Justice Samuel Alito.  Further, Justice Elena Kagan has been recused from the case.  Her recusal is likely a result of the Justice Department’s participation in the case in the lower courts at the time when she served as solicitor general.

What impact, if any, will the changed makeup up of the Supreme Court have on its decision?  Is there a compelling interest in obtaining educational benefits from a diverse student body?  Could a reversal of the Court’s decision in Grutter result in resegregation in public colleges and universities?

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