Action Plan for Equity and Fairness

On February 5, 2024, during the ABA Midyear Meeting, the ABA Diversity, Equity, and Inclusion Center hosted “Developing an Action Plan for Equity and Fairness.” The interactive discussion, facilitated by Past President Paulette Brown, focused on what has been an organized campaign to normalize inequity, including, for example, state actions limiting voting access, book and curriculum bans, attacks on the LGBTQ+ community and reproductive freedom, and efforts to expand the SFFA v. Harvard decision to justify the elimination of diversity, equity, and inclusion programs in all sectors.

These efforts are in direct conflict with ABA Goal III to “promote full and equal participation in the association, our profession, and the justice system by all persons.” The DEI Center’s interactive strategy session was the first of several to ensure that the ABA is fulfilling its goal of achieving a more equitable legal profession and society. The program was attended by approximately 50 ABA members and staff.

The goal of this session was to focus on future actions post-SFFA v. Harvard. It is important to note, however, that the expanded attacks on diversity, equity, and inclusion, combined with efforts to deny the human rights of marginalized communities, necessitates strategic action beyond the Harvard decision and affirmative action.

In order to promote the free sharing of ideas, this program was not recorded. Accordingly, the following is a summary of the overall discussion.

Past President Brown opened the discussion by identifying the session’s primary goals: lay the foundation with a discussion of the various issues; develop immediate tools that can be implemented to combat DEI attacks; and leave with at least one strategy for implementation.

Recent Issues

As part of the general discussion, attendees identified several issues that have arisen as a result of the Harvard decision and expanded recent attacks on DEI, including:

• Recent court actions have weaponized the AAPI community in a way that is both misleading and potentially dangerous. It is untrue that the AAPI community at large opposes DEI programs, including affirmative action. This false narrative also creates a greater divide between marginalized communities.
• Many employers from all sectors outside of higher education have engaged in aggressive anticipatory compliance, resulting in the weakening or elimination of DEI programs. These measures have been taken by organizations that are not directly impacted by the Harvard decision, yet they are reacting to a fear of litigation, driven by media accounts of threatened litigation and the issuance of threatening letters.
• Many of the attacks on DEI practices allege their focus is simply race-blindness. But race-blindness ignores historic systemic challenges that have created disparate opportunities for marginalized communities.

The consensus was that the ABA must position itself as a leader in the promotion of equity and human rights. It is not enough to say that “Goal III is one of the four ABA goals.” We must place the power of the ABA behind supporting the substance of Goal III. There was also consensus that the ABA needs to play both offense and defense, recognizing that, while it is necessary to get ahead of anticipated issues, we cannot anticipate the nature and scope of every attack. 

Messaging

Participants next discussed the value of messaging. One of the primary strategies employed to dismantle DEI has been the reframing of the narrative around what DEI is and how it serves the profession and the community at-large. Attendees identified two primary ways in which this has happened. First, DEI has been characterized as “zero-sum” or “us vs. them.” The well-researched benefits of DEI to institutions and individuals has been lost. Second, messaging around specific areas under the “DEI” umbrella has been co-opted, and it is time to reclaim the narrative.

The subsequent discussion of specific strategies focused on three topics: (1) reclaiming the message; (2) identifying the target audience; and (3) recommending specific action items. The following represents a synopsis of the ideas presented in these categories:

Reclaiming the Message:

• Consider refocusing the messaging away from “diversity,” and more towards “equity.” The use of the term “diversity” has been co-opted as a buzzword by those who oppose DEI. A focus on “equity” and “fairness” as a framework for our messaging may allow for the message to penetrate more effectively.
• Use data as a foundation to help counter false narratives.
• Emphasize that, at its core, DEI is about ensuring fairness for all. It is not a weapon to take anything away from anyone. It is not a “pie” with a finite amount to share.

Target Audience:

• The audience should include both those within the legal community and lay persons.
• Through the DEI Center and the DEI Advisory Council, the Center should ensure collaboration across its member organizations.
• Identify non-legal organizations with community outreach as partners.

Action:

• Engage in a year-long social media-focused campaign centered on dispelling misinformation about DEI.
• Develop digestible phrases that will be shared consistently with all partners.  (Ideas included: “diversitymakesdollarsandsense” and “noequitywithoutdiversity.”)
• Develop informational pages that will be linked to the shared messaging.
  
• Tailor messaging to the targeted audiences.
• Highlight historical and systemic disparities that lead to the need for programs to increase opportunity and equity.
• Provide a report to the Issues of Concern Committee of the House of Delegates at the 2024 Annual Meeting.
  
• Develop CLE programs to educate attorneys on the impact of policies targeting specific populations.
  
• Use other visual/video platforms, including social media, to educate nonlawyers.
  
• Increase the number of amicus briefs on topics under the broad DEI banner.
  
• Clearly communicate that the ABA will not withdraw from its commitment to equity.
  
• There was a recommendation to engage an outside marketing firm to develop this campaign strategy. Currently, limited resources prevent doing so. However, there are internal resources on which to draw.
  

As the DEI Center works to implement the messaging strategy, leaders and staff will continue to communicate with those in attendance and others interested in moving this initiative forward.

Questions

If you have any questions, please contact DEI Center Managing Director Selina Thomas at [email protected]. 

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