January 28, 2016 Articles

Lessons for the Legal Profession from the Fall 2015 Campus Protests

A review of the protests, their underlying causes, and recommendations for how attorneys can avoid similar issues in the workplace.

This past fall, we saw a wave of student protests sweep across 73 college and university campuses. These protests were often sparked by recent incidents of racial harassment, set against a backdrop of ongoing complaints of hostile racial climates at these schools, while others sought to express solidarity with larger national movements for racial justice. Perhaps the most public of these conflicts continues to play out at the University of Missouri, where after months of student complaints, ugly racial incidents, and concerns about the sufficiency of the campus’ responses to them, the state university system president and chancellor of the flagship campus resigned.

Despite ongoing media coverage of these incidents, comparatively little reporting has been devoted to the underlying structural conditions that led to the unrest. These unresolved racial justice issues remain embedded in higher education in the United States. Still less exposure has focused on the very predictable and often imminently preventable nature of the issues. While some struggled to understand precisely the culpability of the University of Missouri system president, for example, others pointed to the failures of leadership that led to some of the more toxic environments.

A brief overview of the student protests against racial injustice follows, together with a discussion of the opportunity they provide for self-assessment, both as individuals and as members of the legal profession, itself often described as one of the least inclusive professions in the United States. Responses to the current turbulence in the academy provide a road map for us, as we work to become a more culturally competent, inclusive profession. Finally, concrete suggestions are offered for those seeking to grow their expertise on these issues.

Campus Protests
Students at 73 different campuses this fall have described segregated or unwelcoming environments, which university leadership often failed to address in a sufficiently meaningful fashion. In the case of the University of Missouri, such a pattern of incidents across several months culminated with the student body president being called a racial epithet, and a swastika of feces being smeared on a dormitory bathroom wall, followed by the silence of the system president when confronted by student activists during the homecoming parade. In the wake of these incidents, a graduate student began a hunger strike, vowing not to eat until the current University of Missouri system president resigned. Calling it an issue of life and death, the university’s football team lent their unanimous support to demands for a change in leadership, by refusing to play until the hunger strike ended. In a surprising move to many, the football team members were supported in their efforts by the entire coaching staff. Two days after this action by the team, both the University of Missouri system president and chancellor of the flagship campus in Columbia resigned.

Just as undergraduates and graduate students across the country are increasingly sharing in more ways that are public (aided by video taken on mobile devices) the racial harassment they experience, so too are law students of color sharing their realities. As many reading this likely know, legal education has not been immune from these challenges. Last year, at one top law school, we saw 33 self-identified black students produce and release a video to the public, describing in all too painful detail the experience of being part of the 33 black law students out of a class of eleven hundred total students. In a separate instance, another law student posted a picture of a typewritten note left in her mailbox, containing only the words, “Stop being a sensitive n-----.” Last month, to the great sorrow of many lawyers across the country and a number of current students, members of the Harvard Law School community entered the building on the morning of November 18, 2015, to find black tape across the portraits of several black faculty members outside a lecture hall. While the facts of each campus situation are distinct, the pattern of individual harm and systemic racial inequity continue to be replicated year after year.

With respect to the nature of the public discourse on these issues, in a number of instances we’ve seen a largely incident-by-incident treatment of each protest, lead to a predictable next phase of commentary—the well-known straw man debate between free speech rights versus the responsibility of educational institutions to create inclusive, harassment-free learning environments for all. Related commentary then moved on, as it often does, to an increasingly familiar discussion of whether the current generation of students is somehow too sensitive, too entitled, or too lacking in resilience and intellectual stamina to engage in robust debates about diversity, in what some believe is now a “post-racial” society.

This somewhat narrow commentary about what has been, in many instances, sophisticated student protests, is set against the backdrop of the burgeoning number of Black Lives Matter protests, as well as a deeper understanding by the public at large of the frequency and nature of micro- and macroaggressions experienced daily in the lives of students, family members, friends, and colleagues of color. The generational shift to consuming news via social media, the use of mobile device video, and the 24-hour news cycle have all contributed to an understanding that these issues are not unique in their ugliness, not infrequent, and not narrow in their scope and impact.

Reasonable Second-Generation Expectations
Aside from the historically black colleges and universities, tribal colleges, and Hispanic-serving institutions, equity and inclusion struggles within higher education (and legal education) remain pitched battles, cloaked by apparently value-neutral factors such as tenure, academic freedom, and budgetary priorities.

Those who carefully follow this issue continue to hear the observations of a much smaller number of seasoned faculty and administrators, who remind us that these issues are not at all new.

In many instances, once schools and individual departments did the important work of acknowledging the need to enroll students of color in more than token numbers and then did the hard work that led to more inclusive matriculating classes, institutions did not successfully raise the inclusivity amongst its senior administration, faculty, and staff. Make no mistake, these battles were hard and ugly, came at the cost of promotion for some, and left many others marginalized for questioning the status quo and advocating for a more inclusive environment. The consequence of poor levels of inclusion among university leadership, faculty and staff often meant student concerns, intellectual interests, or histories were nowhere in the surrounding Eurocentric campus environment.

It should be noted that aside from the recent protests, a great many schools have engaged in the hard work of dismantling the institutionalized racism that has been embedded in their own institutions for decades. These campuses remained engaged with these issues and pushed forward to tackle the next horizon of the reasonable second-generation expectations of their students. These expectations are voiced clearly by the student protesters in recent months and revealed that they enrolled with these basic aspirational hopes or reasonable second-generation expectations: (1) that they will be taught by a culturally competent faculty; (2) that their deans and presidents will lead from the top on equity and inclusion initiatives; (3) that they will be guided by an inclusive senior staff; (4) that their faculty will mirror the level of inclusivity of the student body; (5) that their student service offices will deliver programming and supports that address their needs and reflect a sophisticated understanding of race, class, gender, first-generation and LGBTQI concerns; and (6) that their schools and departments have policies and procedures in place to swiftly investigate and address hostility or harassment based on race, class, gender, LGBTQI, or identity status.

Some institutions moved quickly in recent weeks to publicly hold themselves accountable, perhaps none more so than Brown University, which pledged $100 million across the next decade to address racism and diversity on campus. In addition to earmarking $10 million dollars annually for the next decade, Brown committed to address nearly every aspect critical to becoming and remaining a culturally competent, integrated institution. One need only review their fairly comprehensive list of interventions, hiring initiatives, new programs, and commitments to see what a path to cultural competence and inclusion looks like.

For those already working in culturally competent workplaces, neither the harassment the students reported, nor their reactions, nor the responses by senior administrators were unexpected these past few months. Similarly, if you have family members, friends or colleagues of color, chances are you have more than a passing understanding of the daily micro- and macro-aggressions the student protesters continue to make public. It’s against this backdrop of a turbulent, partially integrated U.S. higher education system that we take this opportunity to reflect on where we are as a profession and on how we might be proactive about our own workplaces going forward.

Relevance for the Legal Profession
In recent years, the legal profession was ranked second only to civil engineers in terms of overall lack of diversity. As of 2014, only 11 percent of lawyers were people of color. The legal profession is now second only to psychologists and chief executives in its racial homogeneity, according to the most recent Bureau of Labor Statistics data available. Contrast this to the 30 percent of physicians and surgeons who are professionals of color. Given the relative intellectual rigor of both professions and their places in civic society, one is hard-pressed to find a rational explanation for why the legal profession remains so protractedly behind on inclusion.

What makes this data ever more challenging is that the United States continues to evolve into a more diverse country year by year. There are predictions that the majority of the country’s population will be made up of people of color by the year 2044. In 2014, a majority of children under the age of 5 (50.2 percent) were of color for the first time in this country’s history. That the legal profession’s diversity remains relatively static and disproportionate in its racial demographics while the rest of the country becomes increasingly more diverse should trouble us all on deep moral and ethical levels.

Similarly, the legal and sociological literature is populated by study after study, describing the challenges the largest law firms continue to have in recruiting and retaining lawyers of color. Despite the anecdotal stories of success, this summer in a Washington Post piece, Deborah Rhode, faculty at Stanford Law, reminded us,

Although blacks, Latinos, Asian Americans and Native Americans now constitute about a third of the population and a fifth of law school graduates, they make up fewer than 7 percent of law firm partners and 9 percent of general counsels of large corporations. In major law firms, only 3 percent of associates and less than 2 percent of partners are African Americans.

Rhode, Deborah. "Law Is the Least Diverse Profession in the Nation. And Lawyers Aren’t Doing Enough to Change That." Washington Post, May 27, 2015, PostEverything sec. https://www.washingtonpost.com/posteverything/wp/2015/05/27/law-is-the-least-diverse-profession-in-the-nation-and-lawyers-arent-doing-enough-to-change-that/.  (For an excellent, up-to-date treatment of this issue, I recommend Veronica Root’s article “Retaining Color,” in the University of Michigan Journal of Law Reform.)

A Path Forward: Opportunities to Be Proactive
As we watch students seek even higher levels of excellence from their respective colleges and universities, it’s worthwhile to consider what lessons may be relevant to our own context here in the legal profession. Some in the private sector refer to this as an “inclusion audit,” others often have the opportunity for this sort of reflection during a training program offered by their employers. The operative fact is that we are doing an honest self-assessment for ourselves, as well as for any department, practice group, office or work group we may lead. Below are some initial suggestions for all of us, in any workplace.

(1) Conduct an informal inclusion audit of your workplace and look at your own data. Consider how inclusive and diverse your partners, stakeholders, associates, paralegals, associate professors, assistant professors, senior administrators, and administrative staff are. Investigate whether your procedures for distributing high-value work contain structures that ensure equity and aren’t substantially based on “fit” or “rapport.” As those of us who regularly engage in the hiring process know, people who look, think, or act like us make us feel comfortable. We also know that the one who may not be a “fit” may indeed be the most valuable to your organization, as you seek to move beyond your comfort zone.

(2) Reflect on your own level of cultural competency. Cultural competence is a skill set and a lived set of behaviors. If you haven’t had the occasion up to now to learn about this concept, seek training.

(3) Seek training about implicit bias. Implicit bias refers to the subtle subconscious cognitive processes (implicit attitudes and stereotypes) that affect all of our behaviors, regardless of our own personal backgrounds. These concepts have been documented to impact our implicit attitudes about socially stigmatized groups such as women, people of color, and the LGBTQI community in particular. State court judges, CEOs, civic groups, and faculties at many institutions are currently seeking this training, as it holds great promise for helping us understand the intractability of racial issues in many of society’s most critical arenas.

(4) Consider seeking outside assistance. Members of workplaces often share more candidly about their experiences with someone from outside the system. Diversity and inclusion expertise is itself a whole discipline and a skill set that can and should be learned. Consider shifting the initial burden for assessment, training, and facilitation to professionals in this area, as you focus on your existing caseload, teaching, or service.

As we’ve come through the last few weeks where a Supreme Court justice wondered aloud about whether black students are better served by pursuing “slower” academic tracks and we see other campuses struggle to create more inclusive and less hostile climates, we really do seem to be in a time of great opportunity to advance as a country. Now more than ever, we are surrounded by an abundance of resources for assistance. We have exemplars of relative success to look to in the U.S. military, parts of the corporate sector, medicine, and other segments of the U.S. workforce. We need not recreate the wheel in terms of the tools and strategies to advance beyond our current levels of inclusion. Some of the most critical ingredients to achieving a racially equitable profession continue to be personal responsibility, individual engagement, and the willingness to take risks to become more than what we are. It’s the moral thing to do. It’s the right thing to do.

Keywords: diversity, inclusion, legal profession, University of Missouri, campus protests, education, inclusion audit


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