In 2008, the American Bar Association (ABA) House of Delegates adopted what it called “GOAL III: Eliminate Bias and Enhance Diversity.” This goal: (1) “Promote full and equal participation in the association, our profession, and the justice system by all persons,” and (2) “Eliminate bias in the legal profession and the Justice System.”
These goals are very important and worthy. The ABA is no longer the kind of organization it once was. The ABA once prohibited black lawyers from membership, and did not lift its rule until 1943. That color ban caused black lawyers, in 1925, to found the “Negro Bar Association,” now called the National Bar Association. A quarter of a century earlier, in 1918, the ABA allowed women to join. It was not until 2015 that the ABA had its first black female president, Paulette Brown, who was only third black lawyer to serve as ABA president in its 136-year history.
The ABA has made remarkable strides in eliminating bias and forcefully acknowledging the need to remove barriers. The problem is how the ABA implements these goals. It does not advance the ball if it removes old barriers while creating new ones.
That is what has happened, with its new rule to eliminate bias in the teaching of Continuing Legal Education (CLE) courses. Most states require lawyers to take a certain number of CLE every year or lose their license. The ABA is a major supplier of CLE courses. Like a huge ship in a small lake, when the ABA moves, we all feel the waves.
In June 2016, in response to the efforts of the ABA’s “Diversity & Inclusion 360 Committee,” the ABA Board of Governors adopted a new ABA Rule for all ABA-sponsored Continuing Education (CLE) Programs. The ABA intends that this new rule be mandatory, not aspirational. It will “take effect March 1, 2017.”
This new rule does not remove barriers to equal opportunity nor does it promote intellectual diversity. Instead, this rule imposes a requirement that each CLE panel has “diversity” based on sexual orientation, gender identification, and so forth.
The ABA expects all CLE programs sponsored or co-sponsored by the ABA to meet the aspirations of Goal III by having the faculty include members of diverse groups as defined by Goal III (race, ethnicity, gender, sexual orientation, gender identity, and disability). This policy applies to individual CLE programs whose faculty consists of three or more panel participants, including the moderator. Individual programs with faculty of three or four panel participants, including the moderator, will require at least 1 diverse member; individual programs with faculty of five to eight panel participants, including the moderator, will require at least 2 diverse members; and individual programs with faculty of nine or more panel participants, including the moderator, will require at least 3 diverse members. The ABA will not sponsor, co-sponsor, or seek CLE accreditation for any program failing to comply with this policy unless an exception or appeal is granted. The ABA implementation date for the new Diversity & Inclusion CLE Policy shall be March 1, 2017.
Note that the favored groups include “race, ethnicity, gender, sexual orientation, gender identity, and disability.” That language leads to the first problem: this new rule is poorly drafted. One would think that lawyers would be good at drafting language, particularly drafting language about practicing law. As individuals, we all are members of some race and some ethnic group. We all have some sexual orientation.
Hence, one might think that every CLE panelist would count toward satisfying the mandated quotas for ABA CLE faculty participants. It would be easier to understand a rule that mandates CLE faculty include members of minority races or ethnic groups. We are all familiar with and understand affirmative action. But to require CLE faculty to include all races is more difficult to understand because we all belong to some race or ethnic group.
While ABA groups must comply as of March 1, 2017, they may comply earlier, so we already have a good understanding of what they ABA really means. One ABA person said, proudly, that she sponsored a program where all but one participant was from a diverse group. Who was the person that did not fit within all the categories? It was a white male, she said. Apparently “white” is not a “race” and “male” is not a “gender.”
The ABA tells us that the requirement of diverse sexual orientation includes people who are Lesbian, Gay, Bisexual, or Transgender (LGBT). The new rule requires that at least 30 percent of all CLE panelists in any ABA-sponsored event must include one of the favored classes, as part of affirmative action. There may not be enough people to go around. The ABA also tells us that only 1.25% of its members fall in this LGBT category.
It will be interesting to see how the ABA will implement this Rule. Assume an ABA official, planning a CLE program on patent law, emails a prospective panelist. Here’s how the conversation might proceed.
ABA: We’d like to invite you to be on our October panel on estoppel rules in patent law. I understand your new article on this issue is brilliant.
PANELIST: Thank you so much. I’d love to attend. I’ve completed additional empirical research since then and I’d be pleased to share that with your audience.
ABA: Great. Tell me, what is your sexual orientation?
PANELIST: Excuse me! What I do in my bedroom is none of your business.
ABA: I’m sorry but we need to know before we can extend the invitation. We’re short one gay and we need a woman. If you are a member of one of those groups, my next question would be which one, so we can, in fairness, exclude members of that group from inclusion on our next program in order to secure diversity from among the diverse groups when filling the few CLE faculty positions for each program. I notice your name is Chris. Is that Christine or Christopher?
PANELIST: What difference does that make?
ABA: I want to know if you are you a woman.
PANELIST: My legal work speaks for itself. What difference does it make if my DNA has two X chromosomes or and X & Y chromosome?
ABA: We’ll ask another person. I’m going to email Ms. Smythe instead.
PANELIST: It’s a free country; you can invite whomever you want, but you told me that I’m the expert in this area.
ABA: Yes, yes, you are, and I know that your work demolished Symthe’s earlier article. You really destroyed her logically. But, you see, we need diversity and you’re not that.
PANELIST: I came to this country 30 years ago, an orphan from Ukraine. I could not speak English and now I’m one of the top patent lawyers in the country. Besides, I disagree with Smythe. A debate between the two of us would offer intellectual diversity.
ABA: We’re not interested in intellectual diversity. As for your immigrant status, a real tearjerker, but that’s not on the approved list. I didn’t know that you would be so rude and difficult. Good-bye.
The ABA means well, but the Board of Governors did not impose a rule that helps train and educate lawyers. The new CLE rule of the ABA means that we will not be sure if the ABA sought to pick the best people, or even considered intellectual diversity.
The ABA seems to want each CLE panel, or a group of CLE panels, to look like the deck of the Star Ship Enterprise, with Klingon, Russians, Chinese, and others working together in harmony. The difference is that in the optimistic future that Star Trek envisioned, we lived in a world (a universe) without prejudice. Each crewmember knew they could rely on the others, because they all got there by merit.
Now, if a CLE panel member performs poorly, the audience feedback may say (and may say wrongly), “you just picked him because he must have fit into some category.” And if the person does well, they may refuse to believe that they could perform without the ABA’s help. That is the soft bigotry of low expectations.
The new ABA requirement is not about equal opportunity; it is about equal results. As for the immigrant panelist who came alone, not knowing the language, the person who picked himself up by his or her own bootstraps—well, that person should lobby the ABA to get on the approved list.