2021 ABA Bar Leadership Institute speaker: DEI is a way to a more productive, democratic society

When bars, law firms, and other organizations address diversity, equity, and inclusion, they often fail to separately consider the three elements that make up the acronym DEI—and they also fail to fully consider the troubling history that led to today’s conditions.

That’s according to Alvin B. Tillery Jr., associate professor of political science at Northwestern University, director of the university’s Center for the Study of Diversity and Democracy, and a keynote speaker at the 2021 ABA Bar Leadership Institute. Tillery walked attendees through the history and current status of various forms of inequity in the United States and then answered questions posed to him by Janet Welch, executive director of the State Bar of Michigan and a member of the ABA Standing Committee on Bar Activities and Services.

DEI: One acronym, separate concepts

Often, in his consulting, Tillery said, an organization he’s working with will think that it’s doing a great job by addressing one concept, typically diversity or inclusion. But, he said, a healthy organization must understand and work all three elements:

1. Diversity simply refers to the presence of different types of people, such as people of different races, cultures, religions, or genders within an organization.
2. Equity means freedom from bias. Within an organization, it means the elimination of policies, practices, attitudes, and cultural messages that reinforce differential outcomes for classes of persons or that fail to eliminate them. Equity is not about sameness, Tillery noted. Instead, “Do you have practices and policies in place to give every individual in your organization a fair shot at achieving optimal results within the organization?”
3. Inclusion means that all individuals and groups, including those who have traditionally been excluded, are brought into processes, activities, and decision-making and policy-making in a way that shares power and ensures equal access to opportunities and resources.”

Taken together, diversity, equity, and inclusion are what Tillery called “the three-legged stool.” If diversity is present without the other two elements, he noted, the situation is akin to when, in the middle of the 20^th Century, companies began hiring women in managerial roles, but then they were shut out of both formal and informal opportunities (i.e., decision-making and socializing) to reach their full potential.

How did we get here?

Social scientists refer to the Civil Rights and equal rights movements (which, in turn, helped spark movements for disability rights and LGBTQ equality) as the Great Transformation, Tillery said, adding, “It’s important to understand that the movements that led to the Great Transformation were working against most of our history.”

In political science, he noted, two baseline factors are used to determine whether a society is a true democracy or is actually a dictatorship: whether everyone can vote, and whether the laws protect everyone equally (which also encompasses things like whether everyone has access to credit under their own name). Under these definitions, he said, the United States has only been a true democracy for about 50 years; for about the first 180 years after it officially became a nation, inequity toward women and people of color was so institutionalized that it was instead a “gendered and racial dictatorship.”

That long history of inequity, compared with the relatively short history of what Tillery called “the DEI regime,” makes it imperative, he said, for anyone working toward DEI to be aware of context rather than thinking their work can be successful as an isolated effort. Tillery singled out a few factors that those working in DEI should be aware of:

• A persistent wealth gap based on race and ethnicity. According to the Pew Research Center, in 2013, white households had a net worth that was 13 times greater than that of Black households, and 10 times greater than that of Hispanic households. This gap has held steady over decades, Tillery said, and it still holds true today.
  
• A similarly persistent wage gap by gender. Though this gap has narrowed over the years, Tillery noted, it has not gone away, which has a direct impact on women’s ability to retire, to invest in their own small businesses, and to weather crises such as the pandemic.
• The glass ceiling in corporate America. Data from the Federal Glass Ceiling Reports show that in 1965, 100 percent of the management positions in Fortune 2,000 companies were held by white men. In 1996, after about 30 years of affirmative action, that figure had dropped—but only to 97.5 percent. In 2001, it was 90 percent, and in 2020, it was 80 percent. This does indicate progress, Tillery said; however, if it weren’t for discrimination and societal factors that lead to inequity, statistically, women should hold 52 percent of those positions.
  
• Institutionalized racism and advantages for white people via Jim Crow laws and other governmental measures. Even though many of these are a thing of the past, their repercussions persist, Tillery said. For example, after World War II, the GI Bill “transformed American society into the stable, middle-class society that we know today” by providing access to trade school, college, and low-cost home mortgages. However, these benefits from the GI Bill were available almost exclusively to white veterans and their families because the military was still segregated at the time when Black veterans would have needed to claim their benefits. As a result, Tillery said, “The GI Bill distribution exploded racial gaps in educational attainment and home ownership—the gaps we talk about and live with today.” Those gaps also helped fuel racial segregation, Tillery said, as white families bought homes in suburbs that were exclusively white—and this entrenched segregation encouraged the conditions that led to inequitable policing patterns and mass incarceration of Black men. Also, he noted, those gaps in educational attainment apply to the legal profession as well: Many white veterans went to law school thanks to the GI Bill; because Black veterans lacked these benefits, this contributed to the lack of diversity in law.
  

The business case for DEI in law

One big “hook” for why the legal profession must work on DEI, Tillery said, is that America will be a majority-minority nation (meaning most Americans will be people of color) by 2040, if not sooner. By contrast, he added, according to ABA statistics from 2020, the legal profession is 86 percent white.  

Overall, Tillery said, we’re headed for a “demographic cliff” because white Millennials are not having children at the same rates that previous generations did. What this means, he believes, is that there will be fewer white, upper-class families in the future—and those are the families from which law students typically come. Already, he noted, school districts in affluent suburbs across America are consolidating schools, and by 2040, 35 to 40 percent of colleges and universities will be “at the risk of collapse” because of declining enrollment.

That same “cliff” will also hit law firms, Tillery said, making it imperative that they recruit and retain more diverse lawyers because there will not be as many white lawyers to replace those who leave the profession. “The face of the legal profession is going to need to change if it's going to thrive,” Tillery said.

In 2020, he noted, Citigroup released a study that said eliminating racial gaps in the United States would generate 4 percent annual growth in the gross domestic product and add $5 trillion to the U.S. economy over the next five years. “How many lawyers would we need to service this new wealth?” Tillery asked.

Meanwhile, he said, some major companies are looking at that same cliff—and at their moral obligation to try to address the legacies of historical inequity—and making changes as a result. For example, Bank of America has made a major commitment to support minority business owners “because they realize that the future of small business is Black and Brown.” Also, Intel announced that it will not retain any law firms that have less than 10 percent minorities at the equity partner rank.

If the legal profession follows suit by pursuing DEI in how it recruits and retains lawyers, he said, it will be in much better position to attract new business. During the question-and-answer period, Tillery noted that generational change is also a driving factor: Along with climate change and stakeholder capitalism, Millennials cite DEI as one of the three core issues within their value system. As Millennials begin to make up more of the professional world, Tillery said, an organization with no demonstrated commitment to DEI will find it difficult to attract not only diverse candidates as leaders and staff members, but white candidates as well.

Doing the work

But beyond the business case, Tillery added, it’s important for those in the legal profession to ask if they are helping to perpetuate inequities from the past. For example, he said, when it comes to racial gaps in test scores, such as on the LSAT, social scientists are now asking, “How much of the wealth that is accrued to white families as a result of these unequal transfers is fueling the test score gap?” The intergenerational wealth that is much more present in white families because of the GI Bill and other factors, he explained, may help provide a “nest egg” to pay for expensive test prep, starting with the SAT but also including tests such as the LSAT and bar exams. If, as a bar, you're concerned about dwindling membership numbers because of demographic change, "This should light a fire under you," Tillery believes. 

Tillery recommended that legal organizations do what he called an equity audit, to examine whether it has contributed to and profited from inequalities based on race and gender. He singled out these three organizations as recent good examples:

• Lloyd’s of London, which apologized for its ties to slavery and invested in racial equity programs in the U.K.;
• The Los Angeles Times, which apologized for decades of racist coverage involving people of color; and
• The North Carolina Bar Association, which examined and apologized for its role in perpetuating Jim Crow laws and other discrimination against people of color in its home state. (Note: For more information about this work, please see “Taking a step: North Carolina Bar Association, Foundation examine ties to systemic racism, how to move forward,” also in this issue.)

Also important, he said, is for organizations, including legal ones, to normalize talking about differences and to “constantly” talk about the ways the organization is working toward diversity, equity, and inclusion. A critical step (and one that is often overlooked, Tillery said), is to involve marginalized members of the organization in planning any new DEI initiatives “so that they’re able to give you insight as to how best you can support them.”

A meaningful commitment to DEI requires dedicated staff, training, and metrics—as well as an understanding of the real world, Tillery said. For example, a bar working to achieve gender and racial parity in member participation would need to think and plan in terms of a decade or more, not just one year.

Bars may not be able to invest financially in the same ways that Bank of America or Intel can, Tillery said, but they can still look at ways to invest their time and at how to use their position as a standard-setter to promote DEI in the profession and within the organization itself. 

This type of work takes not only courage and candor, Tillery said, but also empathy. Those who resist DEI intiatives often understand better if asked to imagine how they would feel if they or their loved ones faced barriers because of race, ethnicity, or gender, he explained.

At the same time, he added, these "resisters" deserve empathy as well. "We've all inherited these legacies [of white supremacy and patriarchy] from previous generations," Tillery said–which means we all have work to do.