Prejudice and the Profession
By David A. Saichek
February it was my pleasure to welcome participants to a conference
sponsored by our Diversity Counsel Demonstration Program. The conference
was organized by Gerardo H. Gonzalez, co-chair of the Bar's Diversity Outreach Committee,
and was moderated by Justice Janine P. Geske. The program offers
networking and a forum to discuss barriers to diversity. It gives a diverse group of
lawyers an opportunity to visit with corporate counsel and human
resources people they might not otherwise meet. Gonzalez states the
premise, "There are many barriers to full participation. One significant
factor is that minority and women lawyers often have few opportunities
to meet those who retain outside corporate counsel." Both Gonzalez and
Justice Geske have been prime movers in this effort. The committee
already has gathered an impressive list of participating corporations,
and minority- and majority-owned law firms.
In addition to the Diversity Counsel Demonstration Program, our State
Bar has a Minority Lawyers Placement Committee co-chaired by James
Friedman and Celia Jackson. That committee works hard to provide
opportunities for minority law students to work in Wisconsin law firms
and corporations, and in the public sector. It also encourages the
hiring and retention and promotion of minority lawyers.
Black population in the United States is about 12 percent. But only
3.3 percent of lawyers are black. Minority lawyers generally represent
minority people and businesses in communities that are mainly populated
by minorities. Minority attorneys are rare among those who represent
corporations and other large organizations.
Lawyers have the skill and standing to fight discrimination and
help end the moral plague of racial inequality.
Discussion of racial inequality in the legal profession may cause us
some discomfort. But that is not sufficient reason to put it out of our
thoughts. Lawyers and judges have the ability and professional
obligation to oppose racial, ethnic and gender discrimination in all of
its direct and subtle forms.
The reasons for persistence of inequality, in a nation that publicly
proclaims justice and equality, are endlessly debatable. Victoria
Roberts, first female black president of the Michigan State Bar, gives
her thoughts on why inequality of treatment continues its assault:
"The divide persists, I believe, because there is an unwillingness in
this country to admit that there is a value that whites place on being
white, and that in almost all spheres of life, in both the public and
the private sector, practices are engaged in which are designed to
preserve that value." 1
In 1996 the Michigan State Bar
established a Task Force on Race, Ethnic and Gender Issues in the Courts
and the Profession. They will be following up on the recommendations of
a Michigan Supreme Court task force that reported in 1989.
The Wisconsin Supreme Court had a task force that reported on gender
bias in 1991, followed by a gender equality committee that reported in
1995, and might, within the next year, consider establishing a task
force to explore racial and ethnic bias. Our Diversity Outreach
Committee is studying reports from other states with the idea of
recommending a useful method for exploring these issues in Wisconsin. As
of July 1996, 27 states had created such task forces and 20 had prepared
reports, of which 15 were in various stages of implementation. The
committee is expected to complete its studies and report to the Board of
Governors within the next year
The ABA advises that each reporting state has concluded from the
research and evidence that widespread bias against minority and ethnic
groups operates in the justice system just as it does in the wider
community. At least 13 states plus the District of Columbia have adopted
various anti-bias ethics rules in response to bias problems exposed by
their studies. 2
Those who feel that recent advances for minorities, particularly in
employment, have already resulted in equality in hiring, pay and
promotions are sadly mistaken. One need only review the recent fiasco at
Texaco and the resulting settlement. Fortunately, some large
corporations recognize the value of pushing the legal profession toward
diversity. These include American Airlines, Aetna Life & Casualty,
General Motors and AT&T. Increasing minority representation is not
only right but it also is good business. 3
The judiciary also suffers from pervasive inequality. Although there
has been some recent improvement, minorities remain severely
underrepresented on the bench in Wisconsin. At an annual dinner
sponsored by the Wisconsin Association of Minority Lawyers, I heard then
Bankruptcy Judge Charles Clevert deliver dismal statistics demonstrating
inequality in both the state and federal judiciary. I hope Judge Clevert
will update his convincing speech for publication in the Wisconsin
Lawyer. He now serves as a U.S. District Judge for the Eastern District
of Wisconsin.
In the U.S. courts, in July 1995, of the 1,527 sitting federal
judges, 246 were women, only 82 were black, and a mere 52 were Hispanic,
according to the Administrative Office of the U.S. Courts. There still
were no black judges on one-third of the U.S. Courts of Appeals. Surely
the profession and our judiciary should mirror the public. H.T. Smith of
the National Bar Association
makes a good point:
"A more diverse judiciary will minimize prejudice and insensitivity
from judges, and engender more respect from the public." 4
Mr. Smith did not state whether there were any Asian or Native
Americans on the federal bench.
Most educated people, including lawyers, should not attach undue
emotion to phrases such as "reverse discrimination" and "affirmative
action." Affirmative action is nothing more than proactive efforts to
eliminate the effects of discrimination. It need not involve quotas or
statistical straightjackets. And, contrary to popular belief, reverse
discrimination is prohibited by current law and is relatively rare.
5
If it is fair for a white male lawyer, urban or rural, to ask what
has all this to do with me and my law practice, then it might also be
fair to answer that he has missed the point. Law cannot and should not
be practiced in a moral vacuum. This is an issue that comes down to
right and wrong, a choice of values. Lawyers have the skill and standing
to fight discrimination and help end the moral plague of racial
inequality.
In the words of Paul Igasaki, vice chair of EEOC, "In the end, this
debate ... is about what is right. Do we still want or need to commit
ourselves to overcoming the discrimination that pervades our society?"
6
And in the eloquent summation of Victoria Roberts, "In the end, the
issues and the questions are moral ones. As Andrew Hacker ended his
book, let me pose the same question: Is it right to impose upon members
of an entire race a lesser start in life, and then expect from them a
degree of resolution that has never been demanded from the white race?
If we can all answer 'no' to this question, then we can begin to close
not only the race divide, but others as well." 7
Using my own predilection for inelegant expression, "Bigotry
stinks!"
Endnotes
1 The Great Race Divide and Diversity in the
Workplace, Mich. B. J., 136 at 137 (Feb. 1997).
2 Task Force on State Justice Initiatives, ABA
Liaison, p. 10 (Dec. 1996).
3 Lawyers and Clients, Wall St. J., B7 (June
19, 1995).
4 H.T. Smith (past president of the National
Bar Association), Toward a More Diverse Judiciary, ABA J., p. 8 (July
1995).
5 Paul Igasaki (vice chair of EEOC), The
Persistence of Inequality, remarks delivered May 4, 1995, to the
Pennsylvania Bar Association.
6 Id.
7 Supra n.1 at 140.
Wisconsin
Lawyer