December 2000

DIVERSITY DROPS OFF AGENDA IN POST-ELECTION LEGAL BATTLES

by

Deborah L. Rhode, chair of the American Bar Association
Commission on Women in the Profession
and
Charisse R. Lillie, chair of the American Bar Association
Commission on Racial and Ethnic Diversity in the Profession

"Heavy hitters to argue case." That caption accompanied a recent New York Times photospread of leading lawyers in the Florida election proceedings. The pictures featured 13 white men. The lack of diversity in the lineup passed largely unnoticed, first by the Bush and Gore camps and then by most of the major media. In a Philadelphia Inquirer story, one of the few news outlets to comment on the lack of diversity, a spokesperson for one of the campaigns explained that there had been no deliberate effort to include or exclude women or minorities. Rather, she noted, "we were just trying to get the best lawyers to do the job and we did."

This explanation, and the lineup that prompted it, is a graphic reminder of progress yet to be made. Is it possible that out of the nationís some 260,000 women lawyers and 100,000 lawyers of color, not one ranks as a heavy hitter? In a profession where women constitute almost 30 percent and minorities 11 percent of the membership, is it possible that none qualified to play a prominent role in the litigation? What message does it send when the only woman professional to figure prominently in the legal proceedings, Florida Secretary of State Katherine Harris, received almost as much coverage for her choice of lip gloss as for the merits of her decisions?

It is scarce consolation to hear that no insult was intended. "We were just looking for the best" comes as an easy, familiar excuse. Law schools offered this excuse to explain why, until the late 1960s, their students and faculty were almost entirely white and male, and the excuse many schools now offer to explain women and minorities persistent under-representation among deans and tenured professors. Leading law firms generally use this excuse to explain why fewer than 15 percent of their partners are women and fewer than 3 percent are minorities. It is the excuse of choice for why, in virtually every sector of the profession, in law schools, in courts, and in corporate counsel offices--women and minorities are underrepresented at the top and over-represented at the bottom. It does not present the full story.

Rather, virtually every study has found that female and minority lawyers do not advance as far and as fast as their white male counterparts with similar qualifications and experience. Unconscious biases remain persistent and pervasive, as is apparent from a wide array of research summarized by the American Bar Associationís Commission on Women in the Profession and Commission on Racial and Ethnic Diversity in the Profession. Women and minorities are held to higher standards and are excluded from informal networks of support, guidance, and contacts. If these lawyers are not seen as heavy hitters, it is not due to their qualifications and experience. It is because they arenít playing on an even field, and are seldom coached and recruited for the major leagues.

There are, of course, other explanations as well. Minorities are disadvantaged by pressure to assimilate cultural norms and by inadequate access to economic and other resources. Women are disadvantaged by disproportionate family obligations and workplaces that fail to accommodate them. If we seek a legal profession that is truly representative of the communities it serves, we have a considerable distance yet to travel. The New York Times picture serves as a powerful metaphor for the progress that continues to elude us and the work yet to be done.

That is not to minimize the progress that has been made over the last two decades. Although they were not apparently considered "heavy hitters" who were handling the most visible post-election litigation, there were a few women and lawyers of color involved in other aspects of the post-election legal proceedings. The Florida courts and the United States Supreme Court that heard the cases do have a diverse membership. The ABA has put issues of diversity at the forefront of its agenda, and that in itself is a sign of progress.

A similar commitment is needed at the national political level. Our new president has made a good start, and should continue to make both the fact and appearance of fairness a high priority in presidential and judicial appointments. Equal opportunity under law should be a commitment in practice, not just in principle.

 

Deborah L. Rhode, chair of the American Bar Association Commission on Women in the Profession, is the Ernest W. McFarland Professor of Law and Director of the Keck Center on Legal Ethics and the Legal Profession at Stanford University School of Law. Charisse R. Lillie, chair of the American Bar Association Commission on Racial and Ethnic Diversity in the Profession, is a partner with the Philadelphia law firm of Ballard Spahr Andrews & Ingersoll.

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