I have been involved in ABA Section of Litigation leadership for almost six years. Over that time, I have made great friends and colleagues through my connection with the Section and have been involved in a number of activities within the Section that have directly enhanced my practice. Needless to say, I have found my involvement in leadership to be a valuable, if not indispensable, endeavor in my career. And so, it was with great enthusiasm that I took on this year—having completed my three-year commitment as a cochair of the Mass Torts Committee—the role of cochair of the committee’s Membership and Diversity Subcommittee. After all, for three years as cochair of the committee, I was constantly flummoxed by the demands of the Section to “increase our diversity.”
I knew diversity was important, but how does one actually go about “increasing” diversity? Do I just pick up the phone and call all of my friends who are “diverse” and say, “You MUST join the ABA”? No, that wouldn’t work. And the answer to the question for the past three years was anything but clear. As cochairs of the committee, we debated and analyzed, ad nauseum, the question of how to improve diversity, and we identified strategies that we thought would help improve our diversity statistics. And improve they did. But, not necessarily as a result of our diversity initiatives. So far, the strategies we identified and put in place have had no quantifiable effect on the diversity profile of our overall membership. What improvements we have seen could just as well be due to luck as they are to our diversity efforts, although we like to believe the latter. This leaves intact the question “How do we improve diversity?” This is the question clearly in mind with which I begin my role as a cochair of the Membership and Diversity Subcommittee.
To answer this question, I decided to start where we’re all taught to start: at the beginning. What I mean is that, to answer the question of “how to improve diversity,” we need to first ask the questions “What is our current diversity profile?” and “How does that compare to the general population?” After all, that comparison could help us to narrow and focus our efforts on specific categories of diversity, right? It would also tell us the magnitude of the problem, right?
The answer to the first question is not easy to discern. Personal information, such as ethnicity and sexual orientation, are exactly that—personal. Disclosure of this information to the ABA by individuals is on a voluntary basis, and so, the ABA’s information is necessarily imperfect. Moreover, the ABA does not—really cannot—share with the leadership personal information about its members. At best, we can only get their broad statistics, which means that we can only get what the members decide to generate. This, again, is imperfect but will have to suffice for my purposes here.
According to the ABA’s Commission on Racial and Ethnic Diversity in the Profession, in the 2011–12 year, diversity among the ABA’s membership is, well, disappointing. African Americans represent only 3.53 percent of the membership in the ABA. Asian Americans represent only 3.02 percent, Hispanics 2.77 percent, and Native Americans 0.56 percent. Goal III Report: The State of Racial and Ethnic Diversity in the American Bar Association, p. 6, ABA Commission on Racial and Ethnic Diversity in the Profession (2012). When these numbers are compared to the statistics from the 2010 U.S. Census—which the commission seems to endeavor to do (see id.)—the failings of the ABA’s diversity profile are even more pronounced: African Americans account for 12.2 percent of the general population; Asian Americans 4.9 percent; Hispanics, 16.3 percent; and Native Americans 0.7 percent. From these comparisons, it is easy to see why the Section is constantly hammering on diversity. But they also lead me to a different question: “Where do we need to improve on diversity?” In other words, does the problem lie within the ABA and its recruitment methods, or does it lie somewhere else?
The answer to this question can be found in the Institute for Inclusion in the Legal Profession’s 2011 report, which finds that “Minority representation in the legal profession is significantly lower than in most other professions. . . .” IILP Review 2011: The State of Diversity and Inclusion in the Legal Profession, Institute for Inclusion in the Legal Profession, p. 10 (2012). The report goes on to cite some disturbing statistics with regard to diversity in the legal profession. What is interesting about those statistics, though, is that they are not very far off from the membership statistics of the ABA: African Americans represent 4.7 percent of lawyers in the profession (compared with 3.53 percent in the ABA membership); Hispanics, 2.8 percent (2.77 percent); Asian Americans 4.1 percent (3.02 percent); and Native Americans were unreported, compared to 0.56 percent of the ABA’s membership. Yes, there is room for improvement, and, yes, the ABA needs to focus on diversity within its ranks. But does that mean that its efforts should be focused on recruitment or something else? Judging by these statistics, I suggest that the ABA’s efforts are better focused on the profession as a whole, rather than on diversity within its ranks.
Certainly, the ABA has recognized the need for increased diversity within the broader profession. Between 1998 and 2004, the commission collaborated with Harvard University’s Program on the Legal Profession to study the inclusion of different minority groups within in the legal profession. (Project Summary for “Miles to Go: Progress of Minorities in the Legal Profession,” Program on the Legal Profession, Harvard University Press (2004). Although the statistics-keeping function has been taken over by the Institute for Inclusion in the Legal Profession, the commission continues to engage in substantial activities designed to improve diversity both within the profession and, more narrowly, within the ABA. But these initiatives beg the question “Where are our efforts best placed?”
The 2004 “Miles to Go” report identifies several barriers to entry as the cause for the appallingly low diversity statistics in the profession and helps us discern where our efforts are best placed: the use of LSAT scores as a predictor of law school and professional success; the increase in costs of affirmative-action programs as a result of a number of state actions and culminating in the Supreme Court’s decision in Gratz v. Bollinger, 539 U.S. 244 (2003); legal employers’ heavy reliance on “box credentials”; and an apparent bias in the employment-making decision with respect to minorities. (See Elizabeth Chambliss, “Miles to Go: Progress of Minorities in the Legal Profession,” American Bar Association Commission on Racial and Ethnic Diversity in the Profession, pp. 67–89 (2004).) It follows logically that one area of focus should be in bringing down these barriers to entry. After all, wouldn’t it be more efficient to raise the diversity statistics for the profession as a whole to improve our diversity within? But the ABA has, apparently, already committed to this endeavor through its creation of the commission and its various activities.
Although some improvements to the commission’s activities might be identified through analysis, that is not my objective here. Rather, my objective is to identify where my subcommittee might best focus its efforts. One possibility is to endeavor to bring more diversity within the leadership ranks, which is one of the initiatives we identified in our last round of analyses to improve diversity within our ranks. The thinking is that if you add diverse members to the leadership ranks, then diversity in the broader membership will follow. But the ABA's own statistics present an interesting conundrum:
Current ABA President Wm. T. (Bill) Robinson III, made 259 minority member appointments in 2011–12. This represents 34% of President Robinson’s total number of member appointments, and is the highest percentage of minority member appointments of any ABA President. This is an increase from the minority member appointments made by former President Stephen N. Zack in 2010–11, which totaled 251 (33% of his total number of member appointments), former President Carolyn B. Lamm in 2009–10, which totaled 200 (26% of her total number of member appointments), and former President H. Thomas Wells, Jr., in 2008–09, which totaled 175 (25% of his total number of member appointments).
(Goal III Report: The State of Racial and Ethnic Diversity in The American Bar Association, Commission on Racial and Ethnic Diversity 2012, p. 7, American Bar Association (2012). In other words, for each of the last four years, appointments to leadership of diverse members exceeded the broader membership's diversity profile by 15–24 percent. Yet, it does not appear that these appointments have had any measurable corresponding effect on diversity within the ABA's broader membership. So where does that leave my inquiry?
The answer is pretty simple as, compared to the ABA’s diversity statistics within its leadership ranks, which appear to be vastly better than either the diversity profile of the ABA, the profession, or even the general population, the diversity profile of the Mass Tort Committee’s leadership is not great: As of January 2013, of the committee’s 30 committee and subcommittee cochairs, one is African American (3 percent), one is of Middle-Eastern descent (3 percent), and one self-identified as LGBT (3 percent). Ten of the committee’s leaders are women, representing 35 percent. The committee’s leadership does not include any Asian Americans, which, in recent years, has been the profession’s fastest growing pocket of diversity. (“Miles to Go”, supra, p. 63; but see“IILP Review 2011: The State of Diversity and Inclusion in the Legal Profession,” supra, at p. 11, noting that representation by Asian Americans in the profession had diminished in its 2010 study year.) And there are no Hispanics or Native Americans within the leadership ranks. So a continued focus on improving diversity within our leadership ranks is certainly called for. This means that we need to look to you, our members, to get involved and to encourage those with diverse backgrounds to get involved. To that end, if you are interested in getting involved in leadership, please contact any of the Mass Torts Committee’s cochairs or contact me at email@example.com.
As a cochair of the Membership and Diversity Subcommittee, I also plan to focus our efforts externally. The statistics cited above are deeply troubling to me, and it seems that we should all focus some of our energies on taking concrete action to improve diversity within the profession. Perhaps, in conjunction with the commission, we can come up with some smart, focused strategies to make this happen.
I also plan to make regular contributions such as this one to the committee’s newsletter so that diversity remains a focal point for the leadership and for the committee as a whole.
Keywords: litigation, mass torts, racial and ethnic diversity, ABA
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