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Vol. 29, No. 2

Not a Side Issue : NCBP Highlights Ways to Aid Diversity in the Justice System

by Marilyn Cavicchia

All too often, said Kay Hodge, secretary of the National Conference of Bar Presidents, diversity is seen as “that issue over there.” But at NCBP’s Annual Meeting this past August, that issue took center stage, as the subject of the group’s opening plenary.

It’s easy and tempting to look at success stories such as lawyer and rising political star Barack Obama of Illinois, said Charles Ogletree Jr., professor at Harvard University School of Law and chair of the ABA Commission on the 50th Anniversary of Brown v. Board of Education. But there’s still much to be done, Ogletree said, noting that many law firms hire one person of color, almost as an experiment, rather than instituting a comprehensive diversity effort.

Statistics, too, show there’s work to do, Hodge said. While there was an increase in the number of lawyers of color from 1990 to 2000, that increase seemed to reflect changing overall population trends more than a diversifying legal profession. In 1990, Hodge said, lawyers of color made up 7.5 percent of the legal profession and people of color accounted for 19.7 percent of the overall U.S. population; by 2000, the percentage of lawyers of color had risen to 10.8 and the percentage of people of color in the overall population had risen to 24.9.

Hodge dispelled the idea that the shortage of African American lawyers in particular will self-correct as current law students graduate. Of the law students currently enrolled in ABA-accredited law schools across the country, she noted, 20 percent are people of color, but only 7.4 percent are African American.

Important for everyone

Thomas W. Ross, executive director of the Z. Smith Reynolds Foundation, spent 17 years as a trial judge, learning firsthand that “something is going on in our court system.” Ross was disturbed to see time and again that the lawyers in his courtroom were white, as is Ross, and the defendants were people of color. Over time, he said, he couldn’t help but become interested in diversity.

The disparity in arrest rates, combined with class differences and a lack of diversity among lawyers and judges, creates a phenomenon that affects everyone, regardless of race, Ross said. Two-thirds of people of color believe the courts are seldom fair. Eighty percent of all Americans believe the justice system is less fair to poor people, a belief held by 90 percent of African Americans. Seventy-six percent of voters and 26 percent of judges believe campaign contributions affect judges’ impartiality.

“It’s in your best interest to act” to correct this erosion of trust, Ross said. And, while he was mainly discussing how people of color perceive the criminal justice system, he advised civil lawyers to take heed as well. The public does not tend to see a distinction between the criminal and civil courts, he explained—meaning that if someone has a negative perception of criminal courts, they may expand that to include the entire justice system.

“All of us have a duty and a responsibility if we want to restore public confidence in our system,” Ross said.

How bars can help

What can bars do? Plenty, the speakers said. For one thing, many young lawyers of color “don’t yet feel accepted and embraced in state bar associations,” Ogletree said.

That was the experience of Jametta O. Alston, currently serving her term as the first African American president of the Rhode Island Bar Association. As she began in bar work, Alston said, she did not feel comfortable or accepted, except by RIBA staff. At social events, she recalled, “My best friends at the bar association were the bartender and the staff.”

Alston also called on bars to make more apparent to everyone exactly how one ascends to leadership. She was invited to be part of the RIBA’s house of delegates, she remembers, but didn’t fully understand how to move up.

Alston also offered her perspective as a single mother, noting that she almost didn’t get to become president because it was perceived that she wouldn’t have the time. “Did anyone ask the corporate attorneys if they had the time?” she wondered, encouraging bars not to overlook mothers when tapping future leaders.

Ogletree shared a similar thought. Along with designated board seats for lawyers of color, which he called a great “kick start,” it’s also critical that bars look beyond the usual pool of big-firm partners and consider solos, government lawyers, and others as potential bar leaders.

It’s also important to look again at any programs that may have started with a bang but that have since lain fallow, said Sandra Yamate, director of the ABA Commission on Racial and Ethnic Diversity in the Profession. When she came to the ABA six years ago, Yamate said, a minority counsel program that had connected companies with lawyers of color was “moribund,” and a meeting regarding the program had been canceled for lack of interest. Now, she said, the program is back at full capacity.

Also key, she said, is for mainstream bars not to guard their own ideas, saying, for example, “This is a program we do,” but instead to collaborate with minority bars in their area. A few years ago, Yamate noted, the ABA was kept “at arm’s length” by the Coalition of Bar Associations of Color (which includes the four major nationwide minority bar associations) because of such a perception. But now, she said, thanks to outreach efforts and mutual trust, the two have a productive relationship.

Feeding the pipeline

Efforts to reach high school students at the point when they’re thinking about a career and can still work to bring up any low grades are key for bar associations and for lawyers, the speakers agreed.

Hodge stressed that lawyers must reach out to high school students of color, rather than setting up great bar programs and then waiting for those students to find them. Yamate agreed that bar leaders and bar associations must do a better job of explaining the profession to students of color who may never have considered it to be an option.

In these post-Brown years, Ogletree said, the profession should honor the legacy of Thurgood Marshall and others who became great lawyers and judges despite institutionalized discrimination, and who worked toward equality. By reaching out to students and young lawyers of color and by taking other steps toward diversity, Ogletree said, lawyers can ensure that “the doors that were closed because of segregation are forever open.”