Achieving Diversity in the Legal Profession
A publication of The State Bar of California Council on Access and Fairness
October 2013 - Annual Meeting Issue
Opinions expressed herein are those of the authors.They have not been adopted or endorsed by the State Bar Board of Trustees and do not necessarily constitute the official position of the State Bar of California.
Notes from the Chair: Audrea J. Golding (Chair 2012-2013)
Welcome to the Council on Access of Fairness's Fall 2013 newsletter!
As members of our profession prepare to gather for the State Bar's Annual Meeting in October 2013, the Council on Access and Fairness (COAF) is wrapping up another year of work on initiatives that have furthered the State Bar's diversity goals. Throughout this bar year, the COAF's standing committees have worked diligently to develop and implement strategies, consistent with State Bar policies and procedures to enhance opportunities and advancement in the legal profession for diverse populations. Additionally, our Ad Hoc committees have worked on a number of issues to ensure the State Bar is represented in national discussions on ABA Accreditation Standards and Law School Rankings among other issues.
To highlight just a few of our accomplishments along the diversity pipeline this year:
California Partnership Law Academies: COAF continued to partner with the California Department of Education (CDE) in the creation of the first California Partnership Law Academies. Law Academies were first created in 2011 and in high schools in San Diego, Los Angeles, Long Beach, West Contra Costa County (Richmond) and Sacramento (two sites). Since the inception of the original academies, three other law academies in West Contra Costa County were converted into California Partnership Academies. Two of these academies are located in Richmond and the third is in Antioch. We are also coordinating efforts in Solano County, Orange County and Santa Clara County for the creation of future law academies. We are working with regional advisory boards consisting of stakeholders from the legal profession and school districts, as well as elected officials, local business leaders, community colleges, universities, law schools, and community representatives to provide the support, expertise and resources necessary to secure and maintain CDE funding and other resources for the local law academies and to graduate students who will be employment-ready and/or ready to continue with postsecondary education to achieve their law-related career goals. With the start of the school year in the Fall 2013, we will have the full complement of grades including 10th, 11th and 12th grades, with approximately 150 -- 200 students per school. This coming school year (Fall 2013 to Spring 2014) will mark the first graduating class for each of the law academies.
"I Have a Dream" 50th Anniversary Essay Contest: In 2013, the Early Education Committee coordinated an Essay Contest for students of the California Law Academies, to celebrate the 50th Anniversary of Dr. Martin Luther King's "I Have A Dream Speech" of 1963. The contest invited students to write about civility, the values that certain modern day leaders held and the inspiration they provided to the students for their future careers. Essays were submitted by students from the original six California Partnership Law Academies. They were reviewed by the Early Education Committee of the Council on Access & Fairness. Criteria included comprehension of issues covered, organization, conclusions, creativity and writing. Prize scholarships for the selected essays were donated in honor of Iola and Bill Martin. At the conclusion of the contest, three essays were selected for recognition: First Place: "Change for Fairness", Darlin Yon , 11th Grade, Crawford High School Law Academy (San Diego); Second Place: "In Loving Memory of the Dream", Jamie Naea, 10th Grade, Cabrillo High School Law Academy (Long Beach); and Third Place: "Courageous Leaders", Jean Chairez, 11th Grade, Wilson High School Law Academy (Los Angeles).
Law School Rankings: Over the past years, COAF conferred with deans from California ABA accredited law schools and the Committee of Bar Examiners for input on our proposal to urge US News & World Report (USNWR) to develop and incorporate a meaningful diversity component as part of its overall law school rankings. A USNWR diversity index currently exists, but is separate from the overall aggregate rankings and does not define diversity in a manner that aligns with our goals. We have also reviewed and analyzed the USNWR rankings methodology and have also developed proposed diversity metrics for USNWR to incorporate into its overall rankings. We have discussed the USNWR rankings methodology with the USNWR Editor, General Counsel and key staff and have received feedback from US News that it does not intend to modify its rankings methodology at this time. We will continue to evaluate the rankings methodology and develop a plan for ongoing dialogue with USNWR.
Community College Think Tank: COAF convened a group of Chancellors, Board Presidents, and Administrators from the California Community College System to focus on community college initiatives to bridge the gap in the diversity pipeline from community college to law school and the profession. Our projects include:
- Video -- "When You Dream: The Community College Pipeline to Law School": the production of video interviews with successful attorneys and judges who attended community college, to provide role models and create interest in the legal profession for students from diverse backgrounds. We produced a 9 minute and a 25 minute version of the video. See https://www.youtube.com/watch?v=Lgz1hDDBTps and https://www.youtube.com/watch?v=5beBX1s_FQM
- "2+2+3" Articulation Agreements-- Community College Pathway to Law School: establishing agreements between community colleges, 4-year universities and law schools that guarantee admission or give priority enrollment to students who meet all requirements in the agreements. The selected students would be admitted to the four-year college from the community college if they achieve specific criteria (e.g. grade point average in approved course offerings, etc.), and then admitted to law school if they graduate from the four-year college with specified grade point averages, LSAT scores, and other key performance indicators. Support will be provided to the students throughout the pathway to achieve the best possible chance for success in graduating and attending law school. COAF is in discussions with two public schools (UC Davis and UC Irvine) and two private schools.(USC and Santa Clara). COAF hopes to reach final decisions with the schools this Fall, so that articulation agreements can be drafted and approved by participants for the 2014 community college academic year.
- "Faculty Champions": COAF is recruiting community college faculty, especially those with Juris Doctor degrees, to train faculty, so they will be able to provide pre-law counseling to students and to teach the course curriculum that will be identified for the articulation agreements described above.
Pre Law Advisors: To further our prior initiative to collaborate with college pre-law advisors, a video was produced featuring diverse attorneys and judges to encourage undergraduate students from diverse backgrounds to seek careers in the law. COAF also presented diversity information and a status report on its 2+2+3 initiative at the Annual Pacific Coast Association of Pre Law Advisors (PCAPLA) Conference in San Diego in June 2013.
ABA Standards for Law School Accreditation: We have submitted ongoing commentary as the ABA Standards Review Committee continues to develop proposed revisions to the Standards for Law School Accreditation. Our commentary addresses diversity programs in law schools, student learning outcomes, bar passage standards, and reliance on other testing tools besides the LSAT exam as a key factor in the admissions review process. Commentary has been shared with State Bar entities and other stakeholders focusing on law school admissions and accreditation. The COAF will continue to seek input from law schools and from the Committee of Bar Examiners and will eventually seek Board of Trustees approval for formal comments when the ABA issues proposed revisions to accreditation standards for official Public Comment.
Access, Fairness, Diversity and Elimination of Bias for Diverse Constituents: COAF is conducting open dialogues with affinity bar associations and members of various diversity constituent groups including ethnic minorities, women, LGBT and older attorneys, as well as attorneys with disabilities to identify diversity pipeline issues and to increase access, fairness and diversity in the legal profession and the elimination of bias in the practice of law toward these groups.
Judicial Summit: COAF helped to coordinate a 2011 Judicial Summit co-sponsored by the State Bar of California and the California Judicial Council. The Summit was designed to provide follow up to an initial summit held in June 2006. The 2011 summit looked at progress made over the past five years and assessed the current status of judicial diversity in California, culminating with the creation of an action plan for increased diversity on the bench. A report and recommendations were issued as of June 2012. A joint planning committee of the Judicial Council Access and Fairness Advisory Committee and the State Bar COAF, along with other key stakeholders, will review, prioritize and develop a 5-year action plan for implementation., with each entity identifying those initiatives it will help implement.
Judicial Qualifications Criteria: COAF produced resource materials incorporating the full range of practice settings and skill sets transferable to judicial positions as mandated in existing legislation (Govt. Code 12011.5(d) requiring the State Bar Commission on Judicial Nominees Evaluation (JNE) to "consider legal experience broadly" in its rankings process. COAF has shared the materials with the Governor's Office, JNE, local and minority bars and other entities engaged in vetting judicial applicants.
JNE Elimination of Bias Training: COAF has been invited to provide Elimination of Bias training to the Judicial Nominees Evaluation Commission. COAF has provided training for the past two years, focusing on data and demographics on the current status of diversity in the legal profession and judiciary, an analysis of SB 56 reports (from the Governor's Office, Judicial Council and JNE) and an overview of the resource guide prepared by COAF for the application of Govt. Code Section 12011.5 (d) described above. COAF also coordinates the implicit bias training provided to JNE also on an annual basis and now mandated in Govt. Code Section 12011.5.
Online Application for Judicial Appointment: COAF continues to distribute its "Tips and Checklist" for the completion of the online judicial appointments application. We continue to coordinate with the Governor's Judicial Appointments Office to modify the "Tips" when the application form is changed and to alert the Governor's office when we learn of glitches and concerns re: the completion of the online process.
Outreach and Recruitment for Judicial Applications: COAF continues to collaborate with the Governor's Office to conduct judicial appointments outreach to encourage attorneys from diverse backgrounds to apply for judicial appointment throughout the state. In particular, COAF will convene appointments workshops in counties with a lack of a diverse judiciary, to increase diversity in the applicant pool for further screening and review by the Governor's Office. COAF will also provide mentoring workshops to provide support, information and one-on-one feedback on draft applications by potential judicial applicants. Mentors include judges and former JNE commissioners.
Although we are proud of our achievements this year, the COAF remains committed to the work that remains to be done to achieve meaningful diversity in our profession and to eliminate barriers to entry and success in the profession. The Annual Meeting will mark the conclusion of the 3-year terms of several members' of the COAF. We thank Laura Cohen, Alfred Fraijo, Paul Henderson, Jerrilyn Malana, Justice Carlos Moreno, Thuy Thi Nguyen, Carol Ross-Burnett, Sylvia Torres-Guillen, and Karin Wang for their service to the COAF. As I also conclude my term as Chair of the COAF, I would like to thank all of the members of the COAF that I have had the honor to serve with, Pat Lee, Special Assistant for Diversity and Bar Relations, State Bar President Pat Kelly and State Bar Executive Director Sen. Joe Dunn (Ret.), for all of their support and commitment to the work of our Council.
A Luta Continua…The Struggle Continues.
Audrea J. Golding
Chair, Council on Access and Fairness
About the Council on Access and Fairness
The Council on Access & Fairness continues to work as a think tank, advisor and strategist for the State Bar to focus on the elimination of bias and increased diversity in the legal profession.
The Council is diligently working on strategic initiatives which will ultimately lead to systemic changes and increased diversity in our profession, including: partnering with the California Department of Education to create and support six California Partnership Law Academies and to convert four other law academies to CPA Law Academies to influence curricula, provide mentors and internships, and provide classroom lecturers to help improve students' performance and their chances of entering the pipeline into the legal profession; coordinating conferences with community college faculty to develop "Faculty Champions" to provide robust pre-law counseling at their respective colleges; collaborating with community colleges, four-year universities and law schools to create and implement articulation agreements for community college students to move along the higher education pipeline into law school.
The Council is also seeking commitment from legal employers for the State Bar's Diversity Principles to educate entities on the options and best practices for continued and expanded diversity programming; and working with diverse, qualified potential judicial candidates, by encouraging, advising, and mentoring them while collaborating with the Governor's Office and local and minority bar associations to increase diversity in the applicant pool for judicial appointments.
This represents a fraction of the work we are doing to pave the way for current and future attorneys to become the next set of "makers", promoting change and equality in our profession. We hope that you too will become vested in this important work of the Bar. We welcome your feedback, ideas and participation. For more information contact Patricia Lee at 415-538-2240 or email@example.com.
Changes in COAF Membership for 2013-2014
We wish to acknowledge and thank our outgoing COAF members: Laura Cohen, Alfred Fraijo, Jr., Paul Henderson, Jerrilyn Malana, Thuy Thi Nguyen, Carol Ross-Burnett, Sylvia Torres-Guillèn, and Karin Wang. Congratulations to Justice Carlos Moreno for his recent nomination by President Obama as Ambassador to Belize.
And we would like to congratulate our newly appointed Chair-Elect, Hon. Cynthia Loo and Vice Chair-Elect, Hon. Karen Clopton (Chief Judge, CPUC), and welcome our new members: Judge Diana Becton (Superior Court, Contra Costa County), Goldie Gabriel (Warner/Chappell Music, Inc), Anna Maria Garcia (Neighborhood Legal Services of Los Angeles), William Hanson (Chabot College), Mary Monroe (Alvarado Smith), Mark Moore (Law Offices of Mark Moore), Trina Saunders (California Office of the Attorney General), Laura Wesley (Constitutional Rights Foundation) and Kyanna Williams (Legal Services of Northern California)
Congratulations to Diversity and Education Pipeline Award Recipients
Congratulations to the 2013 Diversity Award Recipients: Judge Brenda Harbin-Forte, Keker & Van Nest LLP, the San Mateo County Bar Association, and Southwestern Law School. And to the Education Pipeline Award Recipients: Crawford Legal Institute Mentorship Bond Program (CLIMB) and Department of Fair Employment and Housing (DFEH) Educational Partnerships. We look forward to acknowledging our award recipients at the Diversity Awards Reception on Saturday, October 12, 2013, San Jose, 5:30 to 7:30 PM, Downtown Marriott Hotel, Salon III and IV. All are invited to attend. Annual Meeting registration is not required.
Lee to Receive ABA's "Spirit of Excellence Award" in Chicago
Contributed by Ruthe Ashley, CEO, Diversity Matters
Patricia Lee, Special Assistant for Diversity and Bar Relations and Director of the Office of Access & Fairness Programs at the bar, will receive the Spirit of Excellence Award from the American Bar Association's Commission on Racial and Ethnic Diversity in the Profession at its midyear meeting on February 8, 2014, in Chicago.
The "Spirit of Excellence" Award celebrates the efforts and accomplishments of lawyers who work to promote a more racially and ethnically diverse legal profession. Awards are presented to lawyers who excel in their professional settings; who personify excellence on the national, state, or local level; and who have demonstrated a commitment to racial and ethnic diversity in the legal profession. Pat has personified the purpose of the award from the beginning of her legal career as a VISTA (Volunteers in Service to America through AmeriCorps) attorney and as the managing attorney in the Mission and Chinatown offices of the San Francisco Neighborhood Legal Assistance. Pat's commitment to provide equal access to justice for the poor and disadvantaged certainly strongly impacted communities of color in her early career and continues to this day.
In a state that is assumed to be more diverse than others, Pat has worked tirelessly to make that assumption in California true. During the last decade, Pat was instrumental in creating and structuring important diversity initiatives of the State Bar of California. As the Director of the State Bar's Office of Legal Services, she ensured the State Bar's commitment to equal access to justice for low and moderate income persons and diversity and elimination of bias issues for the legal profession. In 2005, the Diversity Pipeline Taskforce was created to compile a list of "best practices" in diversity and inclusion programs throughout the United States from pre-school to the profession. Pat worked closely with the chair of that committee to bring the idea and structure to life. This project led to the institutionalizing of the Task Force's work by the creation of the Council on Access and Fairness, which serves as the State Bar's diversity pipeline think tank. As chairs come and go after one year stints, Pat has nurtured and grown this important council to be a vital part of the State Bar's work on diversity and inclusion.
Pat, all of us congratulate you on your selection for this prestigious award. It is well-deserved and long past due.
Celebration of 50th Anniversary of "I Have a Dream" Speech
On Martin Luther King Day, Remembering the First Draft of "I Have a Dream"
From the Washington Post WP Opinions, By Clarence B. Jones, Sunday, January 16, 2011
It was the late spring of 1963, and my friend Martin was exhausted. The campaign to integrate the public facilities in Birmingham had been successful but also tremendously taxing. In its aftermath, he wanted nothing more than to take Coretta and the children away for a vacation and forget - forget the looming book deadline, the office politics of his ever-growing Southern Christian Leadership Conference, the constant need to raise funds.
But a date for the March on Washington for Jobs and Freedom had been nailed down - Aug. 28 - and Martin realized he couldn't plan such a massive undertaking with the usual endless interruptions. No, if this march were going to come together in time, he would have to escape all the distractions. (This was a man, after all, whose best writing was done inside a jail cell.) He needed to get away to a place where very few people could reach him.
That would be my house in Riverdale, N.Y.
For the previous three years, I had been an adviser to Martin Luther King Jr., his personal lawyer and one of his speechwriters. Stanley Levison, another adviser who had done even more work with Martin on his speeches than I had, was also a New Yorker. Because of some dark ops on the part of the FBI, Martin could not deal directly with Stanley, yet he very much valued his advice, so it made sense for Martin to stay at my home and have me act as a go-between as we planned the March on Washington - and the speech Martin would deliver.
The logistical preparations for the march were so burdensome that the speech was not a priority for us. Early in the summer, Martin asked some trusted colleagues at the SCLC for their thoughts on his address, and during his weeks in New York, we had discussions about it. But it wasn't until mid-August that Martin had Stanley and I work up a draft. And though I had that material with me when I arrived at the Willard Hotel in Washington for a meeting on the evening of Tuesday, Aug. 27, Martin still didn't know what he was going to say.
We met in the lobby rather than in a suite, under the assumption that the lobby would be harder to wiretap. Tables, chairs and plants acted as a cordon of privacy. It was with this odd start, hiding in plain sight, that 12 hours before the March on Washington began, Martin gathered with a small group of advisers to hammer out the themes of his speech.
He had reacted well to the material Stanley and I had prepared, but he also knew that many of the march's supporters and organizers - labor unions, religious groups, community organizations and academic leaders - needed to be heard as well. So that evening he had a cross-section of advisers present to fill any blind spots. Cleveland Robinson, Walter Fauntroy, Bernard Lee, Ralph Abernathy, Lawrence Reddick and I joined him, along with Wyatt Walker and Bayard Rustin, who were in and out of our deliberations.
As we ate sandwiches, our suggestions tumbled out. Everyone, it seemed, had a different take. Cleve, Lawrence and I saw the speech as an opportunity to stake an ideological and political marker in the debate over civil rights and segregation. Others were more inclined for Martin to deliver a sort of church sermon, steeped in parables and Bible quotes. Some, however, worried that biblical language would obfuscate the real message - reform of the legal system. And still others wanted Martin to direct his remarks to the students, black and white, who would be marching that day.
Martin got frustrated trying to keep everything straight, so he asked me to take notes. I quickly realized that putting together these various concepts into a single address would be difficult. Martin would have to take one approach - his own - with the other ideas somehow supporting his larger vision. I kept on taking notes, wondering how someone would turn all this into a cohesive speech. As it turned out, that would be my task.
Eventually, Martin looked to me and said, "Clarence, why don't you excuse yourself and go upstairs. You can summarize the points made here and return with an outline."
I sat in my room, flipping through the scrawled pages of the yellow legal pad, struggling to boil down everyone's perspectives. The idea of urging the crowd to take specific actions, as opposed to a general kind of complaining, seemed one area of agreement. (The march's organizing manual even had a headline that spelled it out: "What We Demand.")
A conversation that I'd had during the Birmingham campaign with then-New York Gov. Nelson Rockefeller inspired an opening analogy: African Americans marching to Washington to redeem a promissory note or a check for justice. From there, a proposed draft took shape.
And the words "I have a dream" were nowhere in it.
About an hour later, I took my writing back to the lobby and began presenting it to the group. Immediately the others interrupted:
"What about - "
"Why didn't you - "
"I thought we agreed - "
They were all over me. And given the fact that several were Baptist preachers, there was no small amount of grandstanding. I began defending myself, but Martin intervened. "Okay, brothers," he said, "thank you so much everybody for your suggestions and input. . . . I am now going upstairs to my room to counsel with my Lord."
He walked quietly toward the elevators, leaving the rest of us to look at each other. "Tomorrow, then," someone said, and we dispersed.
Tomorrow, as history would record, turned out to be an enormous success. The weather and the massive crowd were in sync - both calm and warm for the March on Washington. Even the D.C. Metropolitan Police, which had been bracing for a race riot, had nothing to complain about.
I remember when it was all over but the final act. As I stood some 50 feet behind the lectern, march Chairman A. Philip Randolph introduced Martin, to wild applause, as "the moral leader of our nation." And I still didn't know how Martin had pulled the speech together after our meeting.
After Martin greeted the people assembled, he began his speech, and I was shocked when these words quickly rolled out:
It is obvious today that America has defaulted on this promissory note, insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check.
Martin was essentially reciting the opening suggestions I'd handed in the night before. This was strange, given the way he usually worked over the material Stanley and I provided. When he finished the promissory note analogy, he paused. And in that breach, something unexpected, historic and largely unheralded happened. Martin's favorite gospel singer, Mahalia Jackson, who had performed earlier in the day, called to him from nearby: "Tell 'em about the dream, Martin, tell 'em about the dream!"
Martin clutched the speaker's lectern and seemed to reset. I watched him push the text of his prepared remarks to one side. I knew this performance had just been given over to the spirit of the moment. I leaned over and said to the person next to me, "These people out there today don't know it yet, but they're about ready to go to church."
What could possibly motivate a man standing before a crowd of hundreds of thousands, with television cameras beaming his every move and a cluster of microphones tracing his every word, to abandon the prepared text of his speech and begin riffing on a theme that he had used previously without generating much enthusiasm from listeners?
Before our eyes, he transformed himself into the superb, third-generation Baptist preacher that he was, and he spoke those words that in retrospect feel destined to ring out that day:
I have a dream . . .
In front of all those people, cameras, and microphones, Martin winged it. But then, no one I've ever met could improvise better.
The speech went on to depart drastically from the draft I'd delivered, and I'll be the first to tell you that America is the better for it. As I look back on my version, I realize that nearly any confident public speaker could have held the crowd's attention with it. But a different man could not have delivered "I Have a Dream."
Some believe, though the facts are otherwise, that Martin was such a superlative writer that he never needed others to draft material for him. I understand that belief; fate made Martin a martyr and a unique American myth - and myths stand alone. But admitting that even this unequaled writer had people helping him hardly takes anything away. People like Stanley, Mahalia and I helped him maximize his brilliance. If not, why would Mahalia interrupt a planned address? She wasn't unhappy with the material he was reading - she just wanted him to preach.
That he did. You only have to hear the recording of even a handful of the words from his speech and, for the rest of your life, when you read it you will hear his signature cadence. Can you hear it now?
I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character. I have a dream today!
The crowd was rapt. Tears of joy fell everywhere. And when Martin ended with a cried refrain from a spiritual that predated the Emancipation Proclamation, the sense of history - past and future - struck me full force:
Free at last! Free at last! Thank God Almighty, we are free at last!
More than 40 years later, I was invited to visit Stanford University's Martin Luther King, Jr. Research and Education Institute as a candidate for an academic post. I met with the director, who knew I had just started work on a book about Martin and wanted to convince me that I should write it there. To demonstrate the wealth of the institute's research materials, he had me choose a date from the years I had worked with Martin.
I offered Aug. 28, 1963.
One of the staffers soon brought in a cardboard box with papers related to that day. Among them was a copy of the program that had been handed out at the march. At the time, no one could possibly understand the emotional impact this had on me. It was the standard program except for one corner, where it bore a handwritten note to Martin - from me.
"Dear Martin - just learned that Dr. W.E.B. Dubois died last night in Ghana. Someone should make note of this fact."
I was looking at a copy of my own program, something I'd urgently written on and passed through the crowd to Martin up on the dais. Tears welled in my eyes as I imagined its long journey from my hand to the institute's files. I felt Martin, my friend, reaching out and saying to me, "Keep our dream alive."
That is what this country does every January on Martin Luther King Day. I am hopeful that sometime soon, it will be what we do every day of the year.
Adapted from "Behind the Dream" by Clarence B. Jones and Stuart Connelly. Copyright 2011 by the authors and reprinted by permission of Palgrave Macmillan, a division of Macmillan Publishers Limited.
Clarence B. Jones, a scholar in residence at the Martin Luther King, Jr. Research and Education Institute at Stanford University, is a co-author, with Stuart Connelly, of the new book "Behind the Dream: The Making of the Speech That Transformed a Nation," from which this essay is adapted. Reprinted with permission of the author.
The Dream Lives on as the California Partnership Academies Celebrate with Essays Inspired by MLK's "I have a Dream" Speech
Contributed by Eric Duvernay, Member, Council on Access & Fairness
To honor and recognize the achievements of Dr. Martin Luther King, Jr., including the concept of fairness and change he visualized years ago, the Council on Access & Fairness Early Education Committee established a "I Have a Dream" essay contest among the original six California Partnership Law Academies created in partnership with the California Department of Education. This year's topic had students discuss the significance of the 1963 March on Washington, and a speech that awoke a nation to the need to end racial discrimination and guarantee justice, equality and civil rights for all. The essay contest coincided with Black History month and the commemoration of the 50th Anniversary of Dr. Martin Luther King, Jr.'s "I Have a Dream Speech."
In a friendly essay competition among regional high schools, students were asked to reflect on this memorable speech. As part of their assignment, they were asked to envision a conversation about social justice and fairness among Frederick Douglas, Abraham Lincoln, Martin Luther King Jr., President Obama, Rosa Parks and Hilary Clinton. In their essays, the students were to imagine what these historical figures would say to one another, and whether what they said, encouraged them to enter the legal field or become a catalyst for change
Essays were submitted from students from the California Partnership Academies in the following school districts: Los Angeles (Wilson High School); Long Beach (Cabrillo High School); Elk Grove (Florin High School); Sacramento (McClatchy High School), San Diego (Crawford High School), and West Contra Costa (De Anza High School) and were reviewed by the Early Education Committee. The criteria included comprehension of issues covered, organization, conclusions, creativity and writing. All students who submitted essays received COAF certificates of participation. Monetary scholarships for the selected writers were donated in honor of Iola and Bill Martin
When the essay competition was discussed, it was the hope of COAF Early Education Committee member, the Honorable Trina Thompson, of Alameda County, that the essays be moving and allow us to be introduced to the attorneys, judges and leaders of tomorrow. She further hoped that the essays would give a modern texture to a speech that has moved a nation, and allow us to walk through history through the voices of high school students
The Committee read numerous essays that presented a range of views of how far we've come toward the goal of racial equality, and selected three essays for acknowledgement at a Diversity Awards Reception held during The State Bar of California 86th Annual Meeting, on October 12, 2013, in San Jose, California, 5:30 to 7:30 PM at the Downtown Marriott Hotel, Salon III and IV.
The Council on Access & Fairness and the Early Education Committee would like to congratulate all of the participants, and especially would like to recognize the following students, their schools and teachers. In First Place: "Change for Fairness" by Darlin Yon, 11th Grade, from Crawford High School Law Academy, San Diego, Teacher: Mrs. Sadler. In Second Place: "In Loving Memory of the Dream" by Jamie Naea, 10th Grade, from Cabrillo High School Law Academy, Long Beach, Teacher Ms. Doten. and, in Third Place: "Courageous Leaders" by Jean Chairez, 11th Grade, from Wilson High School Law Academy, Los Angeles, Teacher Mr. Roura.
Diversity Stakeholder Forum: "The Legacy of Dr. Martin Luther King, Jr. and Diversity in the Legal Profession"
Saturday, October 12, 2013, 2:30 to 4:00 PM, San Jose Convention Center, Room 210A
Diversity Stakeholder Forum, The Legacy of Dr. Martin Luther King, Jr. and Diversity in the Legal Profession. Speakers will include Dr. Clarence B. Jones (Counsel and speech writer for Dr. Martin Luther King, Jr., Dale Minami (Minami Tamaki, LLP), Eva J. Paterson (Equal Justice Society), Jennifer C. Pizer (Lambda Legal), Thomas A. Saenz (MALDEF); and Hon. Cynthia Loo (COAF Vice-Chair and Moderator) (EOB MCLE credit or registrants – all others welcomed to attend)
Diversity Awards Reception: featuring Chief Justice Tani Cantil-Sakauye and Dr. Clarence B. Jones (Counsel and speechwriter for Dr. Martin Luther King, Jr.)
Saturday, October 12, 2013, 5:30 to 7:30 PM, San Jose, Downtown Marriott Hotel, Salon III and IV, Diversity Awards Reception featuring remarks from Chief Justice Tani Cantil-Sakauye and Dr. Clarence B. Jones (counsel and speech writer for Dr. Martin Luther King, Jr.).
Chief Justice Cantil-Sakauye
COAF Creating Community College Pathway to Law School
Contributed by Maurice Destouet, Member, Council on Access & Fairness
The COAF Community College Pathway to Law School Committee has had a very active year and is moving forward to completion of its goal of creating articulation agreements connecting four law schools and four undergraduate institutions to a diversity pipeline to community colleges.
The California Bar Foundation has supported the project through a grant for a consultant to work with the committee on curriculum requirements and creation of a final agreement that will be shared with the participating schools for further feedback.
The committee met with and is working through the various issues that the designated law and undergraduate schools have regarding the articulation program and anticipates finalizing the participation of these schools -- USC, UC Davis, UC Irvine and Santa Clara -- by having them signed onto the MOU by the end of the year. The committee is also reaching out to community colleges with a Letter of Interest which will be disseminated in September 2013 to identify twenty community colleges for participation in the project. The project will be presented during the Community College League of California Convention on November 22nd with selected community colleges announced in January 2014. The project will be rolled out and formally announced in February 2014.
State Bar Board of Trustees Happenings
Congratulations Luis Rodriguez and Craig Holden -- Election of Former COAF Chairs to BOT Leadership Positions
Luis Rodriguez (President-Elect), Craig Holden (Vice President-Elect)
At the July 2013 Board of Trustees meeting, Luis Rodriguez (Office of the Public Defender, Los Angeles County) was officially elected as State Bar President and is the first Latino and first public defender to hold the office in the history of the State Bar. Craig Holden, a partner at Lewis Brisbois Bisgaard & Smith LLP of Los Angeles, was elected vice president. Heather Linn Rosing of Klinedinst PC in San Diego was elected treasurer. They will be sworn in at the State Bar Annual meeting on October 12, 2013 in San Jose. Both Rodriguez and Holden served as Chairs of the COAF and have demonstrated an ongoing commitment to overcoming challenges along the diversity pipeline and increasing diversity in the legal profession. We look forward to collaboration on key access, fairness and diversity initiatives in the coming year.
COAF Supports Retaining and Expanding MCLE EOB Requirement
n our view, we believe the MCLE review panel should recommend that the Bar retain the EOB MCLE required for active attorneys and consider expanding the requirement to a minimum of 3 units for more meaningful and effective training regarding the nature and implications of implicit and explicit bias in the profession and practice of law. The focus should be on access, fairness, and the elimination of bias for attorneys from diverse backgrounds entering and continuing in the legal profession, as well as to ensure the delivery of quality legal services to clients from diverse backgrounds. For a copy of the complete comments, please contact Patricia Lee at firstname.lastname@example.org or 415-538-2240.
COAF Comments on Admissions Regulation Reform Recommendations
COAF supports the Task Force’s goal of providing better prepared law students and new lawyers for practice in the 21st century. We agree that new lawyers must be trained to be oriented to the actual experiences of practice and the values of ethics and professionalism inherent in the legal profession to better meet the legal needs and expectations of the diverse potential clients and the public at large. However, care must be taken to ensure that adopted requirements and options provide equal opportunity for all students and new lawyers to meet the pre- and post-admission, practical training requirements to be adopted by the State Bar. For a copy of the complete comments, please contact Patricia Lee at email@example.com or 415-538-2240. Also, Jon Streeter, Task Force Chair, is in the process of appointing members to the Implementation Committee. Those interested in being considered should forward your names, resumes and brief statement of interest as soon as possible to Teri Greenman at firstname.lastname@example.org.
Working Group Recommends Limited License Program
Following preliminary discussion and feedback from public hearings, the BOT Limited License Working Group supports the concept of a limited license program in California and recommends to the Board Committee on Regulation, Admissions and Discipline Oversight that the State Bar, in consultation with the relevant stakeholders, further study and develop a proposed limited license to practice law program and possible governance models for adoption and implementation in California. For a copy of the report and recommendations see http://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000010723.pdf
SCOTUS Decisions and Other Civil Rights Cases
John Lewis and Others React to the Supreme Court's Voting Rights Act Ruling
The Washington Post, WP Opinions, Published June 25
To clarify, the Supreme Court struck down Section 4 of the Voting Rights Act, the central tenet of which is a formula to determine which jurisdictions should be subject to the conditions of Section 5. That aspect of the legislation, which is still in effect and will be until 2031, requires that proposed voting changes in selected jurisdictions be pre-cleared by the U.S. attorney general or the U.S. District Court of the District of Columbia to ensure that the suggested changes have neither the purpose, nor the effect, of discrimination based on race or color.
In 2009, the Supreme Court gave Congress the opportunity in Northwest Austin Municipal Utility District Number One v. Holder to revise the provisions of the Voting Rights Act that had been reauthorized in 2006. Yet neither Congress nor the Obama administration acted.
African Americans and Hispanics routinely win elections in majority-white districts in Texas, Georgia, Alabama, South Carolina and other states. If Congress finds factual data showing that disenfranchisement of minorities is occurring in jurisdictions throughout the country, it can and should create new directives to deal with this injustice.
Now that the Supreme Court has closed down the pre-clearance process, enforcement of the Voting Rights Act will require the Justice Department to take individual cases to court. By any measure, the case-by-case approach will be long, arduous and unsatisfactory. An enormous commitment of new resources will be required to enforce the Voting Rights Act. It's not likely to happen.
Democratic representative from Georgia
The Supreme Court has stuck a dagger into the heart of the Voting Rights Act. Although the court did not deny that voter discrimination still exists, it gutted the most powerful tool this nation has ever had to stop discriminatory voting practices from becoming law. Those justices were never beaten or jailed for trying to register to vote. They have no friends who gave their lives for the right to vote. I want to say to them, Come and walk in my shoes.
I disagree that because the incidence of voter discrimination is not as "pervasive, widespread or rampant" as it was in 1965 that the contemporary problems are not a valid basis for scrutiny. In a democracy, one act of voter discrimination should be too much. It took nearly 100 years, from 1865 to 1965, for effective voting rights legislation to be passed. The advances of the Reconstruction period -- when some freed slaves were elected to Congress -- were erased in a few short years, and for decades this nation turned a blind eye to some of the worst and most brutal violations of human and civil rights.
Also, the purpose of the Voting Rights Act is not to increase the numbers of minority voters or elected officials. That is a byproduct of its effectiveness. The purpose of the act is to stop discriminatory practices from becoming law. There are more black elected officials in Mississippi today not because attempts to discriminate against voters ceased but because the Voting Rights Act kept those attempts from becoming law. Just hours after the court's decision was announced Thursday, Texas said it would immediately implement the same voter ID law declared illegal by the Justice Department.
We do not want to go back. We must move forward. I think it is very encouraging that some members of Congress, both Democrats and Republicans, have indicated a willingness to fix this problem. Members of the Senate Judiciary Committee are already meeting. I call upon my colleagues to join in a bipartisan fashion as we did in 2006 and find a way to protect access to the ballot box for all Americans.
Visiting fellow at the American Enterprise Institute; author of "The Unintended Consequences of Section 5 of the Voting Rights Act"; director of the Project on Fair Representation, an Alexandria-based not-for-profit legal defense foundation that provided counsel to Shelby County
The Supreme Court's decision to strike down Section 4 of the 1965 Voting Rights Act restores a fundamental constitutional order that America's laws must apply uniformly to each state and jurisdiction. All 50 states are entitled to equal dignity and sovereignty under the law.
While the Voting Rights Act was "a triumph for freedom as huge as any victory that has ever been known on the battlefield," as President Lyndon B. Johnson put it at the time of its adoption, the court's decision Tuesday acknowledges that the South is an altogether different place than it was in 1965. The affected jurisdictions should no longer be punished by the federal government for conditions that existed more than 40 years ago. The ruling represents a recognition by the Court of the enormous improvements in minority electoral opportunities in the states covered by the law. It also underscores Congress's failure to modernize the law in light of all these positive changes.
GREGORY B. CRAIG
White House counsel from January 2009 to January 2010
The full magnitude of the Supreme Court's decision in Shelby County v. Holder has yet to be understood, but it is deeply troubling. The inevitable impact will be to weaken voters' rights at a time when election-driven efforts to suppress those rights in certain populations -- for partisan political gain -- have increased exponentially. It will be more difficult to prevent states from discriminating against voters on the basis of race. State legislators will be encouraged to see what they can get away with, and race-based incidents of discrimination will increase.
This decision resurrects the discarded proposition that states' rights are more important than individual rights and that federal efforts to protect citizens' rights should defer to the sovereignty of the states. The struggle between states' rights and individual rights -- and the proper role of the federal government in that struggle -- predates the Civil War. The issue has been deeply divisive and, on occasion, violent. I fear that the language in this decision -- and its result -- will reopen that wound. What was once a bipartisan consensus, achieved after many years of pain and struggle, is no longer. We can add voting rights to the list of polarizing issues that will divide Congress.
This decision is also an assault on Congress. The 14th and 15th Amendments explicitly entrust Congress -- not the judiciary or the executive -- with the power to protect Americans from being denied the right to vote "because of race, color or previous condition of servitude." In her dissent, Justice Ruth Bader Ginsburg noted that "When confronting the most constitutionally invidious form of discrimination and the most fundamental right in our democratic system, Congress's power to act is at its height."
But the court showed no deference, despite the fact that House Judiciary Committee Chairman Jim Sensenbrenner (R-Mich.) had said, when the Voting Rights Act of 2007 was passed, that his committee had engaged in "one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 27 ½ years" he had served in the House. The votes in Congress were not close: 98 to 0 in the Senate; 390 to 33 in the House. This is an example of the least democratic branch of government substituting its opinion for the most democratic branch -- perhaps the single greatest example of legislating from the bench in my lifetime.
RICHARD H. PILDES
Professor at New York University School of Law
In the wake of the Supreme Court's decision in Shelby County v. Holder, the first temptation of some will be to try to tweak the Voting Rights Act's coverage formula to get an updated version through the eye of the court's needle. Voting rights advocates should recognize that dramatically different models are available for protecting the right to vote.
The model embodied in Sections 4 and 5 was powerfully effective in its time but has inherent limitations today: It requires a law that can identify in advance which areas are likely to generate improper barriers to political participation. This was easy in 1965, given the history of literacy tests, poll taxes, etc. -- and even in 1972, the last time Section 4's coverage was updated -- but is far more difficult now. Going forward, voting restrictions are likely to emerge where partisan competition is greatest and elections are expected to turn on small margins -- and that will vary by election. In the 2012 presidential contest, Ohio, Pennsylvania, Nevada, Florida, Virginia or New Mexico might have been targeted. In 2016, it might be Wisconsin, Texas or Michigan.
Sections 4 and 5 were also designed to deal with changes to existing voting laws. Even if we could accurately predict the most troubled jurisdictions, staying within this model only gets at voting changes that have a racial purpose or effect.
An alternative would protect the right to vote in national and universal terms, as is the case of more recent legislation such as the Help America Vote Act and the National Voter Registration Act. Such laws would be designed to eliminate unnecessary and unjustifiable barriers to political participation in general. Legislation could require states to show that voting rules rest on legitimate purposes and are no more restrictive of access than necessary to serve those purposes. Congress has ample powers to enact such laws for national elections, and legislation of this sort need not be limited to changes in voting laws -- barriers to voter registration, for example, remain a major problem -- or to changes that involve racial discrimination. National laws of this sort might be the most effective way today to protect the rights of all voters, including minority voters.
CHARLES J. OGLETREE JR.
Professor at Harvard Law School; founding and executive director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School.
The decision in Shelby County v. Holder has my father, a native of Alabama, turning in his grave. The Voting Rights Act of 1965 made this critical right accessible to all citizens.
With its deeply misguided decision to invalidate the formula used to identify states and jurisdictions requiring pre-clearance approval, five justices have chosen to rip out what Rep. John Lewis has called the "heart and soul" of the Voting Rights Act. The result is a patient gasping for breath. In her dissent, Justice Ruth Bader Ginsburg summed up the illogic of this decision brilliantly: "Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."
This decision moves us backward at a time when voting rights are being threatened at a level we haven't witnessed in decades -- indeed, since before the Voting Rights Act was passed. Granted, those seeking to disenfranchise "undesirable" voters no longer use literacy tests. Their strategies are more sophisticated now, but their intent is all too familiar. As a rapidly growing number of states impose new restrictions on voting, we can see that voter suppression is alive and well. Consider, for example, the photo identification requirements that have passed in 20 state legislatures since 2003. Ostensibly designed to prevent in-person "voter fraud" (which research has shown is practically nonexistent), these laws make it harder for members of minority groups -- youth, the poor, women, the elderly or anyone who does not possess a government-issued photo identification -- to vote. Who are they kidding? All but one of these laws were passed by Republican legislatures and signed by Republican governors. A few legislators privately admitted the obvious: these laws are designed to keep certain voters away from the ballot box. To limit the long-term damage of this decision, Congress must move swiftly to update the legislation's formula so that the heart of the Voting Rights Act can be restored.
What to Make of Fisher v. Texas: An Interesting Punt on Affirmative Action?
By Richard Lempert , June 25, 2013, 12:00am
Supreme Court junkies need their own Edward Snowden or Bradley Manning for a window into the actions behind the action in Fisher v. Texas, the affirmative action case decided Monday.
Court watchers and those on both sides of the issue had their own guesses about the likely result in the case. Many thought or feared that the case would end with a 5-3 decision (Justice Kagan had recused herself) that signaled the end of affirmative action in higher education. They expected Justice Kennedy to side with those who think affirmative action is unconstitutional, coming down off the perch, from which he never quite saw the 14th Amendment as barring all consideration of race in all circumstances but also never saw an affirmative action program he liked. Justice Kennedy might also have maintained his views of the 14th Amendment, but written an opinion holding that the Amendment required scrutiny stricter than any affirmative action program could realistically meet.
It was also conceivable that the Court, per Kennedy, would hold that because the University of Texas had been able to achieve some racial diversity using its ten percent plan, embellishing the plan with a Grutter-like consideration of race did not meet Grutter's "narrow tailoring" requirement. Others saw the lower court's decision as being affirmed without opinion by an equally divided Court, with Justice Kennedy swinging to the side of the Court's liberals, perhaps because he thought the Grutter precedent upholding affirmative action was too fresh to be overruled or maybe because he was so conflicted as to think that no opinion was better than any opinion one could write.
It was even possible, after last year's health care decision, to imagine Chief Justice Roberts siding with the University, out of respect for precedent and his concern for the institutional legitimacy of the Court, which would have been questioned by critics who could, with justification, say that the only change affecting the Court's position since Grutter was Justice O'Connor's replacement by Justice Alito.
No one, however, expected a 7-1 decision with the lone dissenter being the liberal Justice Ginsburg. About the only prediction Court watchers got right was that if there was an opinion in the case, Justice Kennedy would write it.
The sense that there was more to this case than the opinion that eventually issued is stoked by the opinion's content and its timing. The written opinion is so modest and does so little to resolve the difficult issues one expected the Court to address that it is hard to understand why its announcement was put off until the high drama days at the end of the term. Moreover, only Justice Thomas's concurring opinion reads like an effort that required considerable thought and work. Thus it is easy to imagine the justices trading opinions throughout the many months Fisher was under advisement, with positions shifting until in the end a decision to punt and a barebones opinion were the only conclusions on which a coherent majority could agree. It could, however, be that the long delay was simply an accommodation to Justice Thomas who needed time to get what is in many ways an eloquent concurrence just right, or it might reflect a back and forth tweaking of the opinion, with a line added or subtracted here and a sentence there, to get everybody but Justice Ginsburg to sign on.
It is difficult not to see the decision in Fisher as a punt, for the matter was, in a vernacular so accepted as to almost merit the adjective "literally," kicked back to the Circuit Court. Moreover, the Court notes that in Grutter, unlike Fisher, there was a full trial at the District Court level. The invitation for the Circuit Court to kick the matter down to the lower court for fact-finding is inescapable. Still, there are matters of consequence in the decision.
The first is the narrow outcome: sending the case back so that a lower court can more adequately determine whether there is factual support for the University's claim that it needed race conscious admissions to attain a minimally acceptable level of campus diversity. The clear implication, bolstered by citations to Bakke and Grutter with apparent approval, is that educational diversity is a compelling state interest within the meaning of the 14th Amendment. If only by implication, Justice Kennedy's acceptance of this claim seems less grudging than it has in past cases and is clearer than it was in Grutter.
Particularly important is that the Court decided to remand rather than to reverse even after acknowledging that under the prior Texas plan the University had been able to achieve 4.5% black enrollment and 16.9% Hispanic enrollment. This means that the Court recognizes that an educational institution may require more than a token number of minorities on campus to meet a compelling interest in diversity. Moreover the remand decision indicates that although the Court does not necessarily agree that the data Texas most relied on to justify its return to race-conscious admission (a survey showing that despite the number of minorities on campus, many courses had zero or one minority students) is sufficient justification for its program, by not ruling the evidence insufficient, the Court acknowledges the possibility that data of this sort can demonstrate a compelling state interest.
If this is what liberals got -- along with the continued viability of race-conscious affirmative action -- conservatives do not leave the decision bereft of all solace. In Grutter, Justice O'Connor seemed to say that that the courts should not second guess academic judgments about whether campus diversity was educationally important or about whether race conscious admissions plans like that approved in Grutter were sufficiently narrowly tailored to meet constitutional standards. Thus although Grutter gave lip service to the strict scrutiny standard, it appeared to delegate to university officials considerable discretion to determine not only whether enhanced diversity was needed to meet valid education goals but also to decide what were the narrowest possible means to achieve these goals.
The Fisher Court agreed with Grutter's conclusionthat when it came to the educational value of levels of diversity, the judgments of university officials " based on … expertise and experience" deserved deference, but the Court disavowed any suggestion in Grutter that deference should extend to the determination of whether the means a university used to achieve diversity were sufficiently narrowly tailored. Moreover, the majority faulted the lower courts for beginning with a presumption that university officials had acted in good faith in deciding what was necessary to achieve diversity.
Justice Kennedy explained:
[S]trict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice. . . .Strict scrutiny does not permit a court to accept a school's assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice.
It is noteworthy that two of the Court's three participating "liberals," who are presumed to favor affirmative action, signed on to this position. Moreover, in other cases, including cases of so-called benign discrimination, the strict scrutiny test has usually been the death knell for the racial classification under scrutiny. This is unlikely to be true in higher education, given Bakke and Grutter and the Fisher decision to remand rather than reverse, but it does leave an opening for a future Court to gut the Bakke-Grutter-Fisher permission to engage in race conscious admissions without coming right out and reversing the holdings in these cases.
In an era when both left and right complain of judicial activism, Fisher is about as far from an "activist" decision as one can get. Not only did the Court not reach out to overturn Grutter or to condition the constitutionality of affirmative action on meeting standards impossible to achieve, but it also took care to indicate that its decision does not hold that affirmative action plans are constitutional. Rather it said that this case did not raise the question of the constitutionality of affirmative action, and that it was taking the Court's prior judgments in Bakke and Grutter "as given [only] for purposes of deciding this case." No doubt it was this careful confinement of the opinion that motivated Justices Scalia and Thomas to concur in the decision, although in separate opinions both said that they regard race-based affirmative action as unconstitutional.
Justice Thomas's concurrence is interesting for another reason. Many observers, including many who have been deeply involved in the struggle for racial equality, attribute Thomas's longstanding and intransigent opposition to affirmative action to idiosyncratic experiences that affected his psyche, such as the stresses of being an affirmative action beneficiary at Yale Law School (which he almost certainly was) or the traumatic nature of his Supreme Court confirmation, or, if they are even less charitable, to unprincipled opportunism that led him to take advantage of the value conservatives placed on having in their camp a black lawyer who was outspoken in his opposition to affirmative action.
Put differently, attributions of motivations for Thomas's views, at least from the left, tend to be all about him and not at all about the black experience.
Justice Thomas's Fisher concurrence calls this view into question. In it he deftly links arguments made in support of affirmative action with arguments made first to justify segregation, and then to oppose and delay desegregation. However off-base this linkage is (and I think it is far off base), it presents a different portrait of the roots of Justice Thomas's hostility to affirmative action. It is a portrait that suggests the Justice's comparison of his treatment at his confirmation hearings to a lynching was not hypocritical and manipulative but heart-felt, and it explains one of his rare comments from the bench -- his interjection in Virginia v. Black, the 2002 cross-burning case, that "the cross was a symbol of [a] reign of terror" -- and his lone dissent from the opinion in Black which saw cross-burning as protected free speech. Moreover, Justice Thomas's concurrence in Fisher is consistent with his jurisprudential stance on many issues where, more than any other justice, he focuses on the form that words take and their literal meaning to the exclusion of the intent with which they are uttered.
Thus, for Thomas the language in the University of Texas Fisher brief which says, "All aspire for a colorblind society in which race does not matter . . . But in Texas, as in America, ‘our highest aspirations are yet unfulfilled'" is for all intents and purposes no different from the assertion that Kansas made in its brief in Brown v. Board of Education, "We grant that segregation may not be the ethical or political ideal. At the same time we recognize that practical considerations may prevent realization of the ideal." It does not matter that the one statement was made in defense of a program aimed at promoting integration and racial equality and the other in defense of segregation and a status quo of racial inequality. Thomas finds, "no principled distinction between the University's assertion that diversity yields educational benefits and the segregationists' assertion that segregation yielded those same benefits." Whether the one is most likely true while the other was clearly false is of no moment to him. Elevating form above context and intent, a common characteristic of Thomas's opinions, rarely makes for wise judging, but it is not unprincipled.
Some, no matter what their position on affirmative action, might celebrate Fisher for providing a welcome comeuppance to those who argue that when it comes to hot button, ideologically charged issues, the Court's decisions depend not on legal analysis and precedent, no matter what the justices write, but on the ideological commitments of the nine people who hear the case. In Fisher, no mapping of ideology to votes would have predicted the Court'sdivision. Yet Fisher strikes me as an exception that does no more than prove the rule. It is not unreasonable to think that the Court came out where it did because there were four justices who would have found race conscious affirmative action unconstitutional, three justices who would have affirmed the decision below and one justice who found himself in the middle, neither ready to pull the trigger on race conscious affirmative action nor willing to approve of any specific instantiation.
If the Circuit Court remands Fisher to the District Court for trial it may be a while before the case returns to the Supreme Court, if it ever does. Moreover, there does not now seem to be an equivalent challenge to race conscious admissions ready to bubble up in the Court's queue. If before Fisher is heard again or the next case arises, a justice in either committed camp is replaced with a justice with different views, person-based predictions may do far better than they did this time around, and the fate of race conscious admissions may be definitively determined.
Richard O. Lempert is a Visiting Fellow in Governance Studies at the Brookings Foundation and the University of Michigan's Eric Stein Distinguished University Professor of Law and Sociology emeritus. His research focuses on issues related to government bureaucracy, affirmative action and human subjects protection. From June 2008 until July 2011 he served as Chief Scientist and Basic Research Lead in the Human Factors/Behavioral Sciences Division of the Science and Technology Directorate in the Department of Homeland Security, and from June 2002 through May 2006 he took leave from the University of Michigan to serve as the Division Director for the Social and Economic Sciences at the National Science Foundation.
Editor's Note: As Chair of the University of Michigan Law School's Admissions Committee, Richard Lempert was the principal drafter of the affirmative action policy upheld in Grutter v. Bollinger and a witness for both the University and for student interveners in the trial of that case.
Prop 8 and DOMA
DOMA, Prop 8 rulings leave web of employment benefits laws to untangle
Reprinted from Your ABA, June 2013, http://www.americanbar.org/newsletter/publications/youraba/201309article09.html
The Supreme Court rulings on the Defense of Marriage Act and California's Proposition 8 have left employers and employees with a host of unanswered questions in regards to employee benefits -- and many of these questions do not yet have a clear answer. A panel of legal experts at the Annual Meeting discussed the ramifications of the court decisions for the employment sector and the questions that have arisen, including who qualifies as a spouse and who is eligible for what benefits.
A lot of litigation is already popping up in the wake of the decisions in U.S. v. Windsor and Hollingsworth v. Perry, according to Shannon Price Minter, legal director of the National Center for Lesbian Rights.
Although the Windsor ruling struck down Section 3 of DOMA, which had prevented the federal government from extending spousal rights to same-sex couples, states remain free to exclude same-sex couples from civil marriage and are not required to recognize same-sex marriages.
"The big question in the wake of Windsor is will all legally married same-sex couples be eligible for all federal benefits regardless of where those couples live, regardless of whether their state respects their marriage," Minter said. "That's the question on everyone's mind. We don't know the answer yet, but we're pushing very hard for the administration to take a position that, yes, all legally married couples should get all federal benefits." It could be very problematic if federal benefits are not provided to legally married same-sex couples simply because their state has discriminatory laws with regard to marriage, he said. But he added that he is "confident" the administration will work to extend those benefits to all legally married couples.
Minter noted that the question of whether benefits will be extended to couples in civil unions or domestic partnerships is more complicated."That we have much less clarity on, and I'm not sure on how that one's going to go," he said.
Teresa S. Renaker, shareholder at Lewis Feinberg Lee Renaker & Jackson PC in Oakland, Calif., said the distinction between a domestic partner and a spouse and the definition of a spouse will be key issues in determining benefits. She said she is interested to see how "spousal equivalent statuses" will end up being treated in this new context.
Moderator J. Randall Coffey, a partner at Fisher & Phillips LLP in Kansas City, Mo., said there are more than 1,000 federal statutes that reference the term spouse and that with the demise of DOMA, there is no longer a uniform definition of that term for purposes of federal law.
"We don't really know yet exactly what the various federal agencies are going to do in terms of how they interpret that language in each of those statutes," he said.
Laura J. Maechtlen, a partner at Seyfarth Shaw LLP in San Francisco, said that while employers wait on guidance from the government on this issue, she advises them to "be careful and be risk averse and don't be the test case."
Minter agreed, saying, "If I were an employer, I would want to be erring on the side of caution."
Renaker said one thing we do know for sure is that the collection of spousal rights in pension plans that are mandated by the Employee Retirement Income Security Act and the Internal Revenue Code now apply to federally recognized same-sex spouses. That includes survivor benefits, consent requirements for beneficiaries other than the spouse and division of benefits on divorce.
"It's really important for plan administrators to be thinking about what does this mean for our plan participants?" Renaker said. She discussed the retroactive effect of recognizing same-sex marriage, saying that since DOMA was never actually valid, a married same-sex spouse could seek to retroactively claim benefits previously denied to them. "It's not often that people get married by operation of law, and that's what has happened here," Renaker said. "All of these rights changed without them doing anything. … They've now got a whole host of rights and obligations under federal law that they didn't have before."
The Supreme Court Ruling on the Defense of Marriage Act: What It Means
The Supreme Court's historic ruling striking down Section 3 of the discriminatory Defense of Marriage Act (DOMA) is an enormous victory for loving, married couples and their families, and affirms that they deserve equal treatment under the law. This victory demonstrates the importance of access to marriage, and gives married same-sex couples access to the tangible benefits of the federal safety net, allowing them to better protect one another and their children.
Edie Windsor demonstrated tremendous courage in standing up and speaking out for her 44-year relationship and marriage when she was treated unjustly, and her actions have directly improved the lives of all same-sex couples.
Ending DOMA lifts up all LGBT people, even if it does not end our work. DOMA was an official federal policy disapproving of gay people and same-sex relationships, often imitated by states and private actors, and imposed a second-class status on our lawful marriages by negating them for all federal purposes. The Court has now affirmed that equal protection guarantees apply to the relationships of LGBT people and has replaced federal disrespect with federal respect for our lawful marriages. This victory will energize our work moving forward so that we can achieve a reality in which every single same-sex couple enjoys full and equal protections under the law, regardless of where they live.
For legally married couples living outside of a marriage state or the District of Columbia, there are still many questions about when they will be equally able to share in federal protections, responsibilities, and programs. This is because the federal government typically defers to the states in determining whether a couple's marriage is valid. There is no one rule across all federal agencies. Some agencies look to the law of the state where a couple married regardless of the law of the state where the couple now lives, while others look to the law of the state where the couple is living now.
We think the federal government can and should take action, where necessary, to ensure that married couples in all states have access to the largest number of federal programs. The federal government is already looking at how federal agencies can ensure fair and equal treatment of all married couples where possible. However, at this time, there are a number of important federal benefits that depend on whether your marriage is recognized where you live, so couples who live in states with bans on marriage by same-sex couples should proceed with caution before making the decision to marry.
CAUTION: If you live in a state that discriminates against married same-sex couples, you should be aware that the Supreme Court decision striking down part of the federal so-called Defense of Marriage Act does NOT mean that your state must respect your marriage or that you will be eligible for all marriage-based federal benefits. Further work is still required to end marriage discrimination nationwide and to secure both state and federal equal treatment for all marriages.
The following questions lay out what we know so far.
What does this mean for legally married same-sex couples living in a state that respects their marriage?
Same-sex couples who are legally married and live in a state that respects their marriage should be eligible virtually right away for the same protections, responsibilities, and access to federal programs
look to the state "with the most significant interest" in the marriage, and many have no explicit rule at all.
Some federal programs, including immigration, already use a "place of celebration" standard. This standard best provides certainty, clarity, and stability for couples, their loved ones, employers, government agencies, and others, especially in a society where people regularly move for jobs, family, and many afforded to all other married couples. The federal government may take some additional time to change forms, train staff, and otherwise prepare for this change. We expect further guidance from the federal government and will update this Q&A and the "After DOMA: What it Means For You" LGBT Organization Fact Sheet Series accordingly. For Fact Sheets see http://www.lambdalegal.org/publications/after-doma.
There are more than 1,100 places in federal law where a protection or responsibility is based on marital status. A few key examples include access to Social Security survivors' benefits; the option to use family medical leave to care for a spouse; the opportunity to sponsor a foreign-born spouse for citizenship; and access to veterans' spousal benefits.
What about legally married same-sex couples living in a state that does not respect their marriages?
Legally married same-sex couples living in a state that does not respect their marriages may right away have access to some federal rights and benefits, but not to many others, at least not immediately. Federal agencies have different approaches regarding which state's laws they look to in order to determine if a marriage is valid for federal purposes. Some, including the IRS and Social Security, have looked to the laws of the state where a couple lives (place of domicile/residence). Others, including immigration agencies, look to where a couple got married (place of celebration). Other federal agencies and programs other purposes. Such a standard would simply acknowledge that a couple is married for federal purposes regardless of where the couple lives; it wouldn't tell a state how it must treat married same-sex couples.
For many programs, the administration can take steps to adopt the standard fairest to all married couples: the "place of celebration" standard. Some agencies can use this time-honored legal standard just by changing their practices. Others may have to change regulations, requiring a more lengthy process of proposing new rules and soliciting public comments, or laws. Because the Supreme Court's decision does not require states to recognize the marriage of same-sex couples and does not guarantee that married couples who live in states with marriage bans will receive all of the federal benefits based on marriage, couples who live in these states should proceed with caution before deciding to marry. Depending on your individual circumstances, getting married may be financially or legally detrimental, especially if you are receiving certain government benefits. Couples should seek out individualized legal advice from a knowledgeable attorney before traveling to another place to marry.
Will legally married same-sex couples receive retroactive access to benefits they were previously denied?
It depends on a number of circumstances. As a general matter, if a person is not prohibited by a deadline in the law from seeking benefits, he or she may file an application and seek certain back benefits. However, many benefits start to accrue only with an application, so the date of application will be the starting point. For claims reaching into the past, as with claims for overpaid taxes, there are specific time limits on when refund claims may be brought forward. The "After DOMA: What it Means For You" LGBT Organization Fact Sheet Series addresses many of these questions.
There are many financial benefits that married same-sex couples have missed out on because the federal government did not respect their marriage. But it is likely that the federal government will, in most instances, adopt a forward-looking approach, ensuring that married same-sex couples are respected as married from the day the Court's ruling takes effect.
Is all of DOMA now completely repealed?
No. The Windsor case challenged the constitutionality of Section 3 of DOMA, the part that discriminatorily excluded married same-sex couples from federal protections, responsibilities, and programs. Section 2 of DOMA, which says that states may discriminate against gay couples legally married in other states, still stands. Legislative action will be needed to remove it, although getting rid of Section 2 will not eliminate discriminatory state marriage laws.
The Respect for Marriage Act, a bill pending in Congress that enjoys bipartisan support and the backing of President Obama, would fully repeal all of DOMA. It would also ensure that all married couples -- including same-sex couples -- enjoy equal rights under federal law. It would not tell states what to do, but would ensure that the federal government treats all marriages with respect.
What are the movement's next steps on DOMA?
The undersigned LGBT organizations are working with others in the Respect for Marriage Coalition to ensure that the greatest number of federal protections, responsibilities, and programs are available to married couples as soon as possible. In some cases, this may require policy and regulatory changes within the agencies, some of which could take time. Further legislative action may also be needed, particularly to get rid of the rest of DOMA. To that end, we will continue to advocate for the Respect for Marriage Act in Congress.
We are committed to working until every single legally married same-sex couple receives the same protections, responsibilities, and programs as all other married couples -- regardless of where they live -- and to securing the freedom to marry nationwide.
Implementation of federal rights, benefits, and protections will vary from state to state and on an individual basis. We encourage you to consult a legal or tax professional to determine the best next steps you can take. This document is intended to provide an educational overview, not to serve as legal advice or a guide for making personal financial decisions.
Reprinted from Lambda Legal LGBT Fact Sheet Series
Stand Your Ground
American Bar Association Examines Stand Your Ground Laws
August 11, 2013, Category: Black Issues, Featured,News, by Lydia Lum
Stanford University's Dr. Jennifer Eberhardt
at the American Bar Association's
public hearing on stand your ground laws.
SAN FRANCISCO -- Dr. Jennifer Eberhardt initially chuckled at her 5-year-old son's comment that a Black male passenger on their cross-country flight resembled the boy's Stanford University law professor father.
"This man's facial features and complexion were very different from those of my husband," recalled Eberhardt, an associate professor of psychology at Stanford. "He was about four inches shorter, and he had long dreadlocks flowing down his back. My husband is bald." Because the passenger was the only Black man on the plane, Eberhardt dismissed her son's mistake as mere age-appropriate confusion. But his next remark was much more alarming. "He said he hoped the man would not rob the plane," said Eberhardt, whose scholarly research focuses on racial biases. "I asked him why he would say such a thing, because his dad would never rob a plane."
The boy agreed. When Eberhardt pressed him about what sparked the fearful remark about the stranger, her son's expression turned sad. He replied, "I don't know."
Eberhardt shared the troubling anecdote last Friday during a public hearing examining so-called stand your ground laws. The hearing occurred during the six-day annual meeting of the American Bar Association (ABA). Individuals such as Eberhardt discussed reasons why the self-defense laws and doctrines, which currently exist in more than half the U.S. states, unnecessarily and disproportionately jeopardize the lives of people of color, especially Black men.
"In my lab, when we expose people to images of Black people, this seems to facilitate people's ability to see weapons" in the hands of Blacks, even where they don't exist, Eberhardt said, adding, "Stand your ground laws can easily render Blacks vulnerable."
She said her research findings were similar between highly prejudiced people and people of low prejudice. "We live in so much racial stratification, even when there's no racial animus." Because the participants in Eberhardt's studies began thinking about crime at the mere sight of images of Black people, she said, "they were placing Black male faces under surveillance." This was true among not only college students in the studies, but also among police officers, the professor said.
She cited another study in which participants were shown pictures of a White man and Black man in a subway car, the White man holding a razor blade. But when later asked who had held the blade, many respondents mistakenly replied that it was the Black man, suggesting "the association between Blacks and crime was so strong that it can affect a person's memory," Eberhardt said.
The ABA created a national task force to review and analyze stand your ground laws in response to the shooting death in Florida last year of Trayvon Martin, an unarmed Black teenager. Last month, a jury acquitted former neighborhood watch volunteer George Zimmerman in Martin's death. The task force has already convened public hearings in Dallas, Chicago, and Philadelphia, during which academicians, prosecutors, defense attorneys and other stakeholders have offered opinions about the utility of such laws, which do not require individuals to retreat from situations they perceive as dangerous but instead allows them to use deadly force.
The San Francisco hearing was the last in the series, and task force members plan to recommend what policy and viewpoint the ABA ought to adopt regarding these laws. Friday's hearing drew speakers from academia, the local legal community and other areas of the country.
Civil rights attorney Eva Paterson of Oakland cited what she called "galling statistics." In states with stand your ground laws, 17 percent of incidents in which a White person fatally shot a Black person have been ruled "justified" homicides, Paterson said. But when a Black person fatally shot a White person in those states, it was deemed "justified" less than 2 percent of the time. "Stand your ground encourages vigilante law because people can stand, shoot and murder without consequences," she said. "This legalizes a form of lynching of Black people."
National Bar Association president Patricia Rosier summarized the position of her organization, which is the country's oldest and largest association of Black lawyers and judges. "Stand your ground laws have to be repealed or amended," Rosier said. "We view these laws as a license to kill because, if a person feels threatened, it's totally subjective, so how do you quantify that threat? "Furthermore," continued Rosier, "it has never been considered that Trayvon Martin could have ever stood his ground."
Retired judge Arthur L. Burnett Sr. said that tragedies such as the shooting of Martin caused him to revisit police encounters from his youth. Once, as a restaurant busboy cleaning the facility at night, alone, he was confronted by gun-wielding police who suspected him of committing a break-in elsewhere. "Fortunately for me, the first place I was taken to was my supervisor's home, where he vouched for me and said he almost wished I wasn't going to college because he didn't want to lose me," Burnett recalled.
A second, frightening run-in occurred when, as a Howard University undergraduate, he and another fraternity pledge were taken into custody while they were participating in a scavenger hunt, Burnett said. The young men were in a car that Burnett's friend had borrowed but was unable to provide proof of registration when the police requested it. "We were released after many hours in police custody," Burnett said. "The point was, we weren't oppositional when the police confronted us."
In 1969, Burnett became the first African-American in the nation appointed U.S. magistrate. He served two stints within 13 years. He also was the first legal counsel of the District of Columbia's Metropolitan Police Department.
In 1987, Burnett was appointed to the district's Superior Court, where he served for 11 years before taking senior status and hearing cases part-time until fully retiring earlier this year. In academia, Burnett has taught law courses as adjunct faculty at Howard and Catholic universities. He is currently executive director of the National African American Drug Policy Coalition.
At the ABA hearing in San Francisco, Burnett said he doubted he would have lived long enough to have such a career had his demeanor been anything short of deferential and cooperative during those long-ago encounters with police.
So an incident such as Martin's death causes Burnett to wonder, "How much human capital is lost when a person's life is snuffed out?"
From the June 2013 -- Summer Issue
Opinions expressed herein are those of the authors.They have not been adopted or endorsed by the State Bar Board of Trustees and do not necessarily constitute the official position of the State Bar of California.
Celebrating LGBT Pride Month
About LGBT Pride Month
From the Library of Congress:
Lesbian, Gay, Bisexual and Transgender Pride Month (LGBT Pride Month) is currently celebrated each year in the month of June to honor the 1969 Stonewall riots in Manhattan. The Stonewall riots were a tipping point for the Gay Liberation Movement in the United States. In the United States the last Sunday in June was initially celebrated as "Gay Pride Day," but the actual day was flexible. In major cities across the nation the "day" soon grew to encompass a month-long series of events. Today, celebrations include pride parades, picnics, parties, workshops, symposia and concerts, and LGBT Pride Month events attract millions of participants around the world. Memorials are held during this month for those members of the community who have been lost to hate crimes or HIV/AIDS. The purpose of the commemorative month is to recognize the impact that lesbian, gay, bisexual and transgender individuals have had on history locally, nationally, and internationally.
In 1994, a coalition of education-based organizations in the United States designated October as LGBT History Month. In 1995, a resolution passed by the General Assembly of the National Education Association included LGBT History Month within a list of commemorative months.
LGBT History Month is also celebrated with annual month-long observances of lesbian, gay, bisexual and transgender history, along with the history of the gay rights and related civil rights movements. National Coming Out Day (October 11), as well as the first "March on Washington" in 1979, are commemorated in the LGBT community during LGBT History Month.
Executive and Legislative Documents
The Law Library of Congress has compiled guides to commemorative observations, including a comprehensive inventory of the Public Laws, Presidential Proclamations and congressional resolutions related to Lesbian, Gay, Bisexual and Transgender Pride Month.
LGBT Pioneers in California's Legal Profession
Hon. Stephen M. Lachs served as a judge of the Los Angeles County Superior Court from 1979 to 1999. He was the first openly gay judge appointed in the United States and is thought to be the first openly gay judge appointed anywhere in the world. From 1975 to 1979, Lachs served as a commissioner of the Los Angeles County Superior Court. In 1979, Lachs received a judicial appointment to the Los Angeles County Superior Court from Jerry Brown, who was beginning his second term as Governor of California. Lachs received a B.A. from the University of California, Los Angeles in 1960 and an LL.B. from the University of California, Los Angeles School of Law in 1963. Lachs retired from the bench on October 3, 1999.
Hon. Mary Morgan served as a judge of the San Francisco Municipal Court from 1981 to 1993. At the time, she was the first openly Lesbian appointed to the bench. In 2003 she was appointed by Governor Gray Davis to the San Francisco County Superior Court . Morgan received a B.A. from Smith College in 1967 and a J.D. from New York University School of Law in 1972. Judge Morgan retired from the bench on March 4, 2011.
Roberta Achtenberg was appointed by President Bill Clinton in 1993 as Assistant Secretary of the U.S. Department of Housing and Urban Development, becoming the first openly lesbian or gay public official in the United States whose appointment to a federal position was confirmed by the United States Senate. In 2000, she was appointed to the Board of Trustees of California State University by Governor Gray Davis, becoming chair of the Board in May 2006. On January 26, 2011, President Barack Obama named Achtenberg to the United States Commission on Civil Rights. Achtenberg went to UCLA, then transferred to and graduated from University of California, Berkeley. She began law school in San Francisco at University of California, Hastings College of the Law, before transferring to and receiving her Juris Doctorate from the University of Utah.
Sheila Kuehl was elected to the California State Assembly in 1994, becoming the first openly gay person elected to the California legislature. She was later a founding member of the California Legislative LGBT Caucus. She served as Speaker pro tempore during the 1997--98 legislative session, becoming the first woman in California history to hold the position. After three terms in the Assembly, she was elected to the California State Senate in 2000, becoming the first openly gay person elected to the Senate. Re-elected in 2004 with 65.7% of the vote, she has repeatedly been voted the "smartest" member of the California Legislature. Kuehl received her BA from UCLA and her JD from Harvard Law School.
Bonnie Dumanis serving as District Attorney of San Diego County, is the first openly gay or lesbian DA in the country. Dumanis has been the District Attorney since 2003, when she defeated incumbent Paul Pfingst. Dumanis, a Republican (though the office she holds is officially nonpartisan). received a BA in sociology from the University of Massachusetts Amherst. She received her Juris Doctor (J.D.) degree from Western State University College of Law (now Thomas Jefferson School of Law) in 1976, and was admitted to the bar in 1977. Following admission, she served as a Deputy District Attorney from 1978 to 1990. In 1994, Dumanis was elected to the Municipal Court and In 1998, was elected to the San Diego Superior Court.
Hon. Victoria Kolakowski is the first openly transgender person to serve as a trial judge in the United States. She was elected with 51% of the vote to her opponent's 48% on November 2, 2010. Prior to her election, Kolakowski served as an administrative law judge with the California Public Utilities Commission for four years. She received a Bachelor of Arts in Natural Sciences from New College of Florida in Sarasota, FL; a Master of Sciences in Biomedical Engineering from Tulane University in New Orleans, LA; and a Master of Sciences in Electrical Engineering from the University of New Orleans, LA. She received a joint Juris Doctor (law) degree and Master of Public Administration (with an emphasis on budget and finance) from Louisiana State University in Baton Rouge, LA. She also received a Master of Divinity from the Pacific School of Religion in Berkeley.
ABA and National LGBT Bar Seeking Submissions for New Publication: "Out and About: The LGBT Experience in the Legal Profession"
The ABA Commission on Sexual Orientation and Gender Identity (SOGI) and the National LGBT Bar Association are pleased to announce their joint publication, OUT and ABOUT: The LGBT Experience in the Legal Profession, an edited collection of personal essays, to be published in 2014.
Out and About will share the experiences of lesbian, gay, bisexual, and transgender ("LGBT") attorneys, academics, and jurists in the profession, through their own words, in an effort to educate the legal profession and the general public about this diverse group, its contributions and its struggles.
The ABA and National LGBT bar are currently seeking submissions. In general, they are looking for personal stories (from 800 to 1200 words in length) on the experiences of the LGBT legal community. The focus of the essays may be as broad or narrow as each author desires, generally discussing when, where, and how she or he has progressed or advanced in his or her career, and, whether/how being LGBT impacted them.
For more information, to recommend a contributor, or to submit your essay for consideration, please contact Robin Rone, SOGI Commission Director, at Robin.Rone@americanbar.org. Interested contributors should also provide a brief biographic statement.
ABA Stonewall Award
For the first time in 2012, an ABA Commission presented the Stonewall Award, that formally honored lawyers who have considerably advanced lesbian, gay, bisexual and transgender individuals in the legal profession and successfully championed LGBT legal causes. The award is named after the New York City Stonewall Inn police raid and riot of June 28, 1969, which was a turning point in the gay rights movement. May 31st is the deadline for nominations each year. The award is presented every year at the ABA Midyear Meeting. For more information go to Stonewall Award.
Demographics, Timeline, Facts and Figures re: LGBT Attorneys in the U.S.
The National Association for Law Placement (2013) reported the percentage of openly lesbian and gay lawyers in the U.S. increased from 1.88% in 2011 to 2.07% in 2012. These numbers would seem to confirm the "After the JD Report" at NALP (2013), LGBT Representation Up in 2012, NALP Bulletin, January. Retrieved from http://www.nalp.org/lgbt_representation_up_in_2012?s=NALP%20BUlletin%20January%202013ticle.
LGBT Pride Month Timeline and Facts & Figures
See www.DiversityInc.com/diversity-facts for more LGBT Facts and Figures:
The State Bar of California:
- "Creating a Model Work Environment for LGBT Individuals" (brochure)
- "Understanding Transgender Law and Transgender Clients" (brochure)
- "Challenges to Employment and the Practice of Law Facing Attorneys from Diverse Backgrounds"
For copies contact: Patricia Lee, 415-538-2240 or email@example.com
ABA Commission on Sexual Orientation and Gender Identity (SOGI)
ABA Commission on Sexual Orientation and Gender Identity, "Best Practices for Promoting LGBT Diversity" (2011). See full report.
The Williams Institute, UCLA Law School
Key Issues For LGBT Attorneys
Witness to History -- Blog Post from U.S. Supreme Court Oral Argument re: California Prop 8
by Kate Kendell, Executive Director, National Center for Lesbian Rights
This blog post is why inclusion of lesbian, gay and transgender attorneys is so important to the legal profession. Every perspective is instrumental in reaching equal justice for all. Sometimes you just have to sit back and say wow. I am writing this at a desk in our Washington D.C. office, but just a few hours ago, I was sitting in the courtroom of the United States Supreme Court, listening to oral argument in the challenge to California's Proposition 8.
I will get to my impressions of the argument and where I think we might be headed in our Prop 8 saga in a bit. First, though, I want to take a moment just to breathe and acknowledge the history-making nature of this moment. Words that are fully adequate to describe it elude me. I know the words are out there, but they are more likely to be written by historians and scholars, who will look back on these days -- and the months and years of work that led up to them -- as the most catalytic time in the LGBT movement.
I do know that my heart has been racing, my adrenaline pumping, and my stomach flipping since I awoke this morning. Even standing for three hours in near freezing temperatures did nothing to dampen the electricity of this day. Of course, seeing dear colleagues and friends who have been in the trenches of this fight for decades only served to drive home the point: this was a major, unprecedented, almost-beyond-imagining moment. So yes, it bears repeating, WOW.
The argument itself was fascinating. Many others will offer blow-by-blow accounts, so I will just hit some high points here. It appeared right away that a number of the justices are skeptical about whether the proponents of Prop 8 have legal standing -- a legal right -- to be in court at all. If a majority of the justices find that the proponents do not have standing, then the District Court ruling striking down Prop 8 will be the final word -- and same-sex couples will be free to marry in California again.
It is also possible that at least five justices could rule on the merits of Prop 8, finding that it violates the provisions of the federal Constitution, which guarantee that all of us will be treated equally under the law. I think this outcome is less likely than a ruling on standing, but several justices, including Justices Kennedy, Breyer, Sotomayor, Kagan, and Ginsburg all asked questions strongly suggesting that they recognize that excluding same-sex couples from the freedom to marry is unsupported by any legal justification.
There were several gripping moments. At one point Justice Sotomayor asked Charles Cooper, counsel for the Prop 8 proponents, if a state would ever have a legitimate reason to use sexual orientation as a basis for denying gay people rights or benefits, aside from marriage? Cooper's response: "I do not have anything to offer you in that regard." In other words: No. This was a damning admission. Of course, Cooper went on to assert that marriage is unique and that permitting same-sex couples to marry would be harmful. Justice Kagan jumped in and asked Cooper to be specific about how allowing same-sex couples to marry would cause harm. Cooper answered that "over time there could be harms." Justice Kagan pressed, "But what is the actual harm? Where is the cause and effect?" Cooper responded by saying that it was "impossible to know, no one could know the long-term implications." Justice Kagan, and several other justices, did not seem persuaded by that non-response.
Undeterred, Cooper pressed the argument that marriage equality would create a "genderless institution" that supposedly would "sever the connection of marriage to procreative purposes." Several of the justices seemed to find this assertion dubious. Justices Kagan, Breyer, and Ginsburg all put forward questions or hypotheticals about couples over 55 or individuals in prison -- all of whom can marry. This exercise showed that the argument that marriage is about ensuring responsible procreation is finally gasping its last, feeble breaths.
In short, the arguments of our opponents at the Supreme Court were every bit as fatuous, empty, and absurd as they ever have been -- and that seemed obvious to at least a majority of this audience of nine. Justice Scalia was irascible and tried at several points to make Cooper's argument for him, which, trust me, is a very bad sign if you are the lawyer being thrown such a lifeline. I am not sure we will ever win over Justices Thomas or Alito. But a majority of the Court made comments that suggested they see same-sex couples through a lens of shared humanity -- if not full equality.
As we head into the argument about the Defense of Marriage Act (DOMA) tomorrow, I end as I began. This is history, we are witnesses, this is our story, and our moment. Take another breath and say it with me: WOW.
Happy LGBT Pride Month, Justice Kennedy, and Welcome to our Petri Dish
by Jenny Pizer, Law and Policy Project Director, Lambda Legal
This may be the most heralded celebration of lesbian, gay, bisexual and transgender ("LGBT") Pride since we started honoring the Stonewall Rebellion in Greenwich Village forty-four years ago. There's been a bright spotlight on the state of LGBT rights all spring thanks to the two marriage-related cases the U.S. Supreme Court heard in late March: Hollingsworth v. Perry, about California's Proposition 8, and Windsor v. USA, about the federal "Defense of Marriage Act." At the same time, there has been non-stop news from Rhode Island, Delaware and Minnesota, all of which approved marriage equality legislation this spring, and from Illinois, where Governor Quinn calls on the Democratically-controlled House to vote and let him make that state number thirteen. Meanwhile, on the world stage, France, New Zealand and Uruguay have approved marriage for same-sex couples legislatively, and Brazil appears to have done so by court order. That makes the international total 16 or more countries, depending how one counts, with another half-dozen actively considering this step. The trend is undeniable.
Here in the United States, polling consistently shows more than majority support nationally for same-sex couples' freedom to marry. That led Time magazine to proclaim via its April 8, 2013 cover story: "Gay Marriage Already Won. The Supreme Court Hasn't Made Up Its Mind -- But America Has." But this headline doesn't account for the uneven distribution of opinion and the thirty states with voter-approved constitutional amendments excluding same-sex couples from marriage, twenty of which preclude other forms of legal recognition as well. We now have a social and legal divide that yawns wider than ever before between states that treat their LGBT residents as fully equal, and those where discrimination receives an official green light.
To appreciate the impacts on the LGBT community nationally, on LGBT lawyers, and on gay-rights legal practice, consider that the states where same-sex couples can marry are home to roughly a quarter of the LGBT population of the country. Adding the seven states with civil unions or broad domestic partnerships, close to half of the same-sex couples in the U.S. have access to comprehensive protections for their families. But more than half of the U.S. LGBT population lives in states not only without family protections but also without explicit statutory protections against being fired or losing their homes due to others' prejudice. This means that roughly two million LGBT Americans live with daily vulnerabilities that many of their co-workers and neighbors would find shocking if they understood.
The disconnect between the relative security offered in some states and the overt hostility of others can affect LGBT lawyers no matter where we live and practice. Expectations often are set by national news media, debates and entertainment. Many of us who serve LGBT clients have a steady diet of cases arising from the inconsistencies among state laws and uncertainties about whether family relationships and other legal rights will be honored state-to-state. What will the effects be on an employee's benefits if a promotion requires relocation? Will a parent-child relationship be respected if it was based on a presumption in state law rather than an adoption judgment? May a state nondiscrimination law that applies where an employer's headquarters is located bolster protections for employees elsewhere who relied on company equal opportunity policies? The evolving legal landscape provides lots of novel conflict-of-laws questions, even as it causes confusion and stress for many of our clients, and for many of us personally.
Notwithstanding the emerging legal questions, we now have definitive social science answers to many other questions because, in the four decades since Stonewall, LGBT people have been coming out, educating family and friends, and participating in research. The bottom line is clear. There is no correlation between diversity of sexual orientation or gender identity and differences that are material to job performance or other civic contributions or to the need for family law protections. On the other hand, discrimination on these grounds undermines health, impairs job functioning, and stresses family relationships. Consequently, the overwhelming consensus of health professionals and sociologists is that this discrimination should end.
The experts who testified in the Hollingsworth v. Perry trial explained as much. Witnesses before state legislatures have done so as well. And this spring, multiple, authoritative amicus briefs to the Supreme Court in Hollingsworth and Windsor confirmed that the scientific verdict has been in for years.
Thus it was unexpected and frustrating to hear Justice Kennedy, during the Hollingsworth arguments, tell plaintiffs' counsel that the case urged the Court into "uncharted waters" that might take the country over a cliff. He then suggested the case might warrant dismissal as improvidently accepted for review. Justice Alito amplified the note of caution, protesting that plaintiffs' desire to marry proposes expansion of a change newer than cell phones and the Internet, and lamenting their inability to see the future. Justice Scalia voiced concerns about potential "deleterious" effects for America's children, asserting there is "no scientific answer" at this time. Justice Kennedy agreed, saying the science dates back just five years.
In fact, as detailed by the trial experts and high court amici, the research has been underway for more than three decades. And in scores of studies, no credible basis has been found for concluding that having an LGBT parent is per se harmful; at the same time, the research consistently shows that prejudice against a child, or the child's family, due to parental sexual orientation is harmful indeed.
Yet, multiple justices referred to equality for same-sex couples and their dependents as an experiment for which the results are not yet in. Ted Olson, for the plaintiffs, and Solicitor General Verrilli both answered that prior marriage and equal protection cases have not been analyzed this way. But neither gave the forceful rebuttal one might have heard from those who spend more time with same-sex couples and their children. In fact, these waters are well charted. There is no cliff. There is only discrimination, and it should end.
I was raised by research scientists. My siblings and I learned young to check before preheating the oven for biscuits on Sundays in case my father had left Petri dishes with his current experiment incubating overnight. Our parents also taught us early that it usually is impossible to prove a negative; that is, to show a thing could never happen anywhere. Often, science simply says there are no reasonable grounds to expect a thing to happen, and that is a solid basis for proceeding. Sitting in the courtroom during Hollingsworth, I thought back on those early lessons and wondered: Did the justices not read Judge Walker's findings of fact based on the expert evidence? Did they not receive notes on the amicus briefs from our national experts? Might it have made a difference had any of the lawyers arguing that day been openly gay, had a same-sex spouse, and been a parent?
Having Olson and Verrilli arguing for same-sex couples certainly gave invaluable endorsements to the freedom to marry position. And yet, the stigma and prejudice that afflict our community persist in large measure due to our own persistent invisibility. Nothing dispels doubts and stigma like openly gay people. In litigation, that means openly gay lawyers, experts and judges as well as litigants.
This issue isn't new or simple. In 1986, as a student intern at Lambda Legal, I heard discussions about who might best represent Michael Hardwick in his Supreme Court challenge to Georgia's sodomy law. Then, my classmate (now wife) and I traveled to Washington and saw Professor Larry Tribe's dazzling argument. In the end, though, Tribe's eloquence did not persuade Justice Powell that mainstream gay people exist and deserve constitutional respect. Seventeen years later, as a Lambda Legal attorney myself, I had the privilege of watching Paul Smith argue in Lambda's challenge to Texas's similar law. Paul brought both intellectual brilliance and personal identity into Court that day. Were the years of social change, Paul's prior interactions with the justices as an openly gay man, or the remarkable elegance of his advocacy most responsible for the breakthrough achieved in Lawrence v. Texas? Surely, all three contributed.
Now, at the ten-year anniversary of Justice Kennedy's Lawrence decision that vindicated our love, the High Court considers marriage. And despite lines around the courthouse and a courtroom overflowing with openly gay lawyers, law professors and even reporters, it's possible that we remain too unfamiliar to those who do the voting. Worrying while waiting for the decision, I'm that much more grateful for the LGBT attorneys in all areas of law who are open and honest about their lives and families as they practice, teach and serve as judges -- facing risks and yet continuing to educate within our profession, and sometimes reaching those who still see our families and basic civil rights as an experiment.
Importance of Attracting and Retaining Gay Attorneys
Reprinted with Permission of BCG Attorney Search, www.bcgsearch.com
Link to full article http://www.bcgsearch.com/pdf/60599.pdf
Historically, law firms have been conservative environments, and as a result, gay attorneys (which includes gay, lesbian, bisexual, and transgendered attorneys) have largely kept their sexual orientations to themselves out of fear of being ostracized, rejected, and discriminated against. Many of us have witnessed or heard of stories in which a very highly regarded attorney's sexual orientation was somehow disclosed (or leaked) to his or her firm, resulting in negative consequences for the attorney.
Some of those consequences may be subtle -- whispers in the hallways, feeling distance from those one once felt close to. Other consequences can be more professionally damaging, such as no longer working with the top attorneys in the firm (if those attorneys are homophobic) or finding that the quality of one's work plummets after the disclosure is made.
While law firms have traditionally been unfriendly to gay attorneys and staff, changing a firm's atmosphere can be done -- and many firms are doing so with great success. While it may not be easy, as discussed in detail below, it is vitally important for firms that want to remain competitive in the marketplace, and there are some concrete steps that firms can take to help create a comfortable working atmosphere for gay attorneys.
Why Firms Should Care about Attracting Gay Attorneys
There is a very simple reason that firms should care about attracting and retaining gay attorneys: to help recruitment and retention of staff. Attrition rates in law firms, especially at the associate level, are at an all-time high, and firms simply cannot afford to lose up to 10% (the estimated percentage of the general population that is gay) of their attorneys because those attorneys do not feel comfortable at their firms. Gay attorneys have always made significant contributions to the law, regardless of whether their peers were aware of their sexual orientation, and in today's incredibly competitive recruiting environment for the top lawyers, firms can only benefit from pulling from a larger pool of attorneys.
Diversity also conveys a loud message that the culture of the law firm is one of inclusion, and as a consequence of this message, the firm is bound to attract the best attorneys from all walks of life. With the competition between firms so high, firms that create an atmosphere where the top gay attorneys as well as their straight counterparts are comfortable practicing law will have an advantage over those that do not place emphasis on this important issue.
Moreover, an employer's acceptance of gay and lesbian attorneys is very important to today's law students and prospective lateral attorneys. In fact, law students and potential laterals often ask questions about a firm's policy toward diversity, including the policies and benefits provided to gay attorneys, even if the prospective employee is not gay. Diversifying the firm's attorneys and providing quality benefits to all attorneys is perceived as the "right" thing to do, and many attorneys are attracted to firms that hire diverse pools of candidates and provide open environments of teamwork and equal opportunity.
Firms are also feeling increased pressure from their clients to increase diversity and provide an atmosphere of inclusion for gay attorneys. Clients often ask for the firm statistics regarding gay and lesbian attorneys, and some gay business owners are more comfortable working with gay attorneys, or at least firms that support gay attorneys.
Below are several guidelines for creating a firm environment that welcomes gay attorneys:
- Create a Firm Environment Where Gay Attorneys Feel Comfortable Being Themselves.
When attorneys are uncomfortable in their professional environment, they are more likely to maintain a level of secrecy between themselves and others, which can foster a negative environment filled with gossip and speculation. If a firm creates an environment where gay attorneys are comfortable disclosing their orientation, they will be more likely to remain at the law firm long-term and attract additional gay attorneys to the firm.
There are a number of ways to create a comfortable environment for gay attorneys. First and foremost, the firm must demand a respectful workplace environment. This means creating and enforcing a no-tolerance policy for discriminating comments or practices, which should include sanctions for those who fail to comply. Additionally, firms should use language of inclusion to create a comfortable environment, including gender-neutral terms such as "significant other" or "partner." Finally, firms should offer diversity and anti-discrimination training which includes sensitivity training toward gay attorneys and staff.
- Report Statistics.
Encourage the firm's attorneys to disclose their status, and report the firm statistics on the annual National Association for Law Placement (NALP) form. These statistics are published on an annual basis in the NALP Directory, which is available for job-hunting law students and laterals.
The NALP Directory is often one of the first places that law students and laterals look for firm statistics. Regardless of their own race or sexual orientation, many of these potential employees are interested in the levels of diversity at firms because, as discussed above, diversity signals an environment of inclusion and openness, something that is very important to young attorneys.
- Create a Firm Website That Highlights the Firm's Efforts to Recruit Diverse Attorneys, Especially Gay Attorneys.
Many law firms that are committed to recruiting gay attorneys have dedicated specific sections of their websites to highlighting their firms' recruiting efforts and their support of gay organizations, including lists of the specific organizations they sponsor and/or participate in. Other firms provide lists of questions that gay attorneys should consider when deciding where to work, focusing on such factors as whether domestic benefits are offered and whether the firm supports and demands an open and affirming environment for its attorneys and employees.
- Provide Benefits for Domestic Partners.
Take a look at the benefit plan for the firm's attorneys and employees, and whenever the word "spouse" is mentioned, "domestic partner" should apply as well. This should include offering health, dental, and other insurance benefits, as well as bereavement or caretaking leave, access to employee assistance programs, survivor benefits to employees' domestic partners, and pension benefits.
Making benefits available for domestic partnerships sends a very strong message to gay attorneys and law students that the firm is committed (especially financially) to the advancement of gay attorneys in law firms and that all attorneys, regardless of sexual orientation, are treated equally.
- Create an Internal Committee to Develop the Firm's Diversity Initiatives.
It is vital for law firms to develop internal committees composed of firm representatives focused exclusively on implementing diversity initiatives. Members of the committee should be representatives of the firm, including diverse attorneys and members of the executive, management, and associate committees. The focus of the group should be on diversity outreach, recruitment, and retention of diverse attorneys.
As part of these efforts, this group may want to participate in gay legal professional associations, such as the National Lesbian and Gay Law Association. Not only will these efforts attract and maintain diverse candidates, but they will also send a message to the firm's attorneys that diversity is an important firm issue.
- During the Recruiting Process, Show Potential Hires That the Firm Is Accepting of All Types of Attorneys.
One way firms are attracting gay attorneys is by making gay candidates feel more comfortable during the recruiting process and letting them know that there are other gay attorneys at the firm. This can be accomplished by bringing diverse attorneys together with recruits to get to know the potential hires and to communicate to them that the firm is committed to attracting and retaining gay attorneys.
Many gay law students still shy away from midsize and large law firms for fear of being mistreated or forced to remain "in the closet." Firms that permit recruits to meet their diverse attorneys, get to know the firm, and see firsthand that the firm is sensitive to different types of people are going to be much more successful in recruiting and retaining gay attorneys. One way to accomplish this is by participating in job fairs designed specifically for gay attorneys. Firms can also participate in pro bono programs focused on providing legal services to the gay community.
- Create an Internal Mentoring Program for the Firm's Attorneys.
Internal mentoring programs help retain and support associates as they develop their careers in law firms. Many firms have formal mentoring programs in which associates are asked to fill out detailed questionnaires about their concerns, practice area foci, and interests, and based on the responses, the associates are paired with partners with similar interests and concerns. This can provide a young gay associate the opportunity to be paired with a more experienced gay attorney who may have dealt with many of the issues and concerns on the mind of the associate. Successful mentoring relationships help associates integrate into the firm and assist them with their professional development.
- Publish Newsletters.
Some of the larger firms with ample resources have begun publishing newsletters on a regular or semi-regular basis that highlight legal issues affecting the gay community and may even identify and/or highlight the firm's openly gay attorneys.
The Good News
The good news with respect to all of this is that many firms are succeeding in attracting and retaining more talented gay attorneys and creating environments in which these attorneys are comfortable "coming out."
According to NALP, the number of openly gay, lesbian, bisexual, and transgendered lawyers increased by more than 50% from 2002 to 2006. Openly gay attorneys now represent about 1.8% of associates and 1.1% of partners in law firms. Moreover, more than 20% of NALP member firms are providing gay and lesbian attorneys the opportunity to self-identify, and in some of the largest cities in the nation, that statistic jumps to almost 40% of NALP member firms.
For example, according to statistics collected by NALP, in 1996 (the first year in which firms were given the opportunity to report their numbers of openly gay attorneys), only 11 out of the 25 largest New York-based law firms reported having any gay attorneys, while in 2003, 24 out of the same 25 firms reported they employed openly gay attorneys. (The 25th firm did not list itself in the NALP Directory that year.)
While it is not easy to change the culture and environment of a law firm, many law firms are showing that it can be done successfully, and those firms are reaping the benefits of their work. They are attracting and retaining the best of the best, regardless of attorneys' sexual orientations.
Articles From the March 2013 -- Spring Issue
A publication of The State Bar of California Council on Access and Fairness
The second issue of our eNews, Achieving Diversity in the Legal Profession, was sent in March 2013 and included these articles.
In this Issue:
Opinions expressed herein are those of the authors.They have not been adopted or endorsed by the State Bar Board of Trustees and do not necessarily constitute the official position of the State Bar of California.
Video Release: "When You Dream -- The Community College Pipeline to Law School"
The Council on Access & Fairness (COAF) has developed a video to encourage community college students to consider a career in law by featuring distinguished judges and lawyers from diverse backgrounds who began their educational careers in community colleges. The video is being made available at all 112 community colleges and can be viewed at on youtube [opens in new window].
Studies show that students starting at community college tend to be just as successful in law school as students who start at four-year institutions. For the past several years, a higher percentage of law school applicants have begun their undergraduate education at community colleges. Hispanic/Latino applicants, in particular, are most likely to have started at community colleges. By 2007 nearly one in four Hispanic/Latino applicants to law school started at a community college. See the Law School Admissions Council (LSAC) Report: From Two-year Institutions to Law School [opens in new window] . For these reasons, the COAF is focusing on community college initiatives to enhance the pipeline to the legal profession.
Other projects include the creation of articulation agreements between local community colleges, four-year universities and law schools to facilitate the transition to law school and the creation of teams of community college faculty "champions" on each campus to provide pre-law counseling and resources to students. For more information please contact Maurice Destouet, Member COAF College/Law School Committee, 213-926-2412 or firstname.lastname@example.org.
Celebrating Women's History Month
About Women's History Month
Women's History Month had its origins as a national celebration in 1981 when Congress passed Pub. L. 97-28 which authorized and requested the President to proclaim the week beginning March 7, 1982 as "Women's History Week." Throughout the next five years, Congress continued to pass joint resolutions designating a week in March as "Women's History Week." In 1987 after being petitioned by the National Women's History Project, Congress passed Pub. L. 100-9 which designated the month of March 1987 as "Women's History Month." Between 1988 and 1994, Congress passed additional resolutions requesting and authorizing the President to proclaim March of each year as Women's History Month. Since 1995, Presidents Clinton, Bush and Obama have issued a series of annual proclamations designating the month of March as "Women's History Month." From the Law Library of Congress' guide to the legislative history of Women's History Month [opens in new window].
Women Pioneers in the Legal Profession In California
Clara Shortridge Foltz (July 16, 1849 -- September 2, 1934) Foltz was the first woman lawyer admitted to the bar in California (and in fact on the West Coast) having amended a State Bill restricting practice of law to "white males" to allow "persons" to become members of the bar. She was the first woman to attend Hastings College of the Law after filing a lawsuit challenging the law schools admissions policies. Her many other trail-blazing accomplishments included becoming the first female clerk for the State Assembly Judiciary Committee (1880); the first woman appointed to the State Board of Corrections; the first female licensed Notary Public; and the first woman named director of a major bank. In 1910 she was appointed to the LA District Attorneys Office as the first female deputy district attorney in the nation, and, in 1930, was the first woman to run for Governor of California at the age of 81. She was active in the suffrage movement, authoring the Women's Vote Amendment for California in 1911. The Criminal Courts Building in downtown Los Angeles was renamed after her in 2002, and is now known as the Clara Shortridge Foltz Criminal Justice Center.
Annie Coker -- Annie Coker was the first African-American woman to be admitted to the practice of law in California. Coker received her law degree from Boalt in 1929 and was admitted to practice in the same year. Coker worked in private practice in Alexandria, Virginia for a time, and then returned to California in 1939, taking a job with the State Office of Legislative Counsel where she worked until she retired in 1966. Coker passed away in 1986.
Kamala Harris, Attorney General, State of California: Harris is the first female, African-American and Indian American attorney general in California, as well as the first ethnic Indian American attorney general in the United States.
Chief Judge Irma E. Gonzalez, United States District Court of California for the Southern District -- On April 10, 1984, when she was appointed a United States Magistrate Judge for the Southern District of California, Gonzalez became the first woman to serve in the Southern District of California. In January 1991, she became the first Latina appointed to the San Diego Superior Court. When appointed on August 12, 1992 by President Bush, she became the first Mexican-American woman to be appointed to the Federal Bench
Justice Kathryn Doi Todd, California Court of Appeal, Second Appellate District (Ret.) -- Appointed to the Los Angeles Municipal Court in 1978 by Governor Jerry Brown, Doi was the first Asian-American woman judge in the country
Victoria Kolakowski, an administrative law judge with the California Public Utilities Commission, was elected Superior Court judge in Alameda County becoming the first transgender person to ever serve as a trial judge in the United States of America.
Key Issues Facing Women Lawyers
The Flexibility Stigma: Work Devotion vs. Family Devotion
By Joan Williams, Mary Blair-Loy and Jennifer Berdahl
More workplaces are embracing flexible work arrangements. However, their usage rates remain low. Well-founded fears of negative career repercussions are said to be the reason for low usage rates. The use of flexibility policies has been shown to result in wage penalties, lower performance evaluations and fewer promotions. In one study of highly qualified professional women, once women went part time, their status fell sharply, as did the quality of their work assignments.
The roots of the ‘flexibility stigma' lies in the belief of making work the central focus of one's life, affects employees who make their caregiving responsibilities salient at work. The use of flexible work arrangements can be interpreted by supervisors and even the employee herself that she is violating the work devotion scheme and is therefore somehow lacking. The work devotion scheme competes with a second moral understanding of a worthwhile life: the ‘family devotion schema', which promises an intimately rewarding and financially secure life for women who dedicate their lives to caring for their families.
The stereotypes that drive the flexibility stigma differ by gender. Being a good father, unlike being a good mother, is not seen as culturally incompatible with being a good worker. Quite the contrary; being a good provider is seen as an integral part of being a good father.
The flexibility stigma also differs significantly by class. The relevant groups in the U.S. workforce are professionals, the poor, and those in the ‘missing middle.' Each group has a number of challenges.
In professional families, men often work very long hours: the typical upper-middle-class man spends 55 hours a week at work or commuting. Many mothers work part time--which in many traditionally- male professions means the 40-hour week that is commonly defined as full time.
While the hours worked were spiraling upwards, so was the time involved in childrearing. In the families of the 1960s, children would return from school only to be sent out to play. By the late 20th century, the same economic anxiety that led to longer working hours had also led to the expectation that parents were to develop every nascent talent in their children to assuage their fear of failing in a winner-take-all society.
When care giving constraints become salient at work, the consequences of the flexibility stigma are:
- The quality of work assignments suffers, which alone can doom a career;
- It becomes difficult to find mentors, which is vital for career progress; and
- There are artificially high penalties associated with taking a career break.
Widespread anecdotal evidence documents professionals literally unable to get a job after they take a year or two off to care for children, despite elite credentials.
The face of work-family conflict among the poor is very different. The key problem, typically, is having too few hours to work. Low-wage jobs have shifted away from the steady job with benefits towards part-time jobs without benefits. Even when only part-time employment is offered, they often insist on full-time work devotion.
Not surprisingly, the scheduling of hourly jobs fits very poorly with low-wage workers' family lives. Two-thirds of low-income families are headed by single parents, who typically rely on a fragile network of family and friends for child care. The interaction of rigid and unstable workplace schedules and low-wage families' heavy burden of family care produces sky-high rates of absenteeism and turnover that are costly to employers. Managers often interpret low-wage workers' high turnover and absenteeism as evidence of irresponsibility.
Families who are neither rich nor poor -- the "missing middle," are those with a median income of $65,000. The rate of stay-at-home motherhood in this group fell as it did among women in professional families, and as likely as professional ones to be two- parent families in which both worked. Yet, unlike professional families, these families cannot afford to purchase services that help juggle work and family responsibilities.
A few middle-income jobs, chiefly unionized ones, have stable career tracks. Like low-wage jobs, they tend to be rigid and highly supervised. Workers in this category face tough choices when a child or elder gets sick, or when a child has a school event. Thus the triggers for the flexibility stigma in the missing middle typically are more similar to those faced by poor families than professional ones.
Despite the increased availability of flexible work arrangements, there is widespread underutilization of these arrangements on the part of workers -- despite a strong desire for such flexibility. It is hoped that further dialogue about the reasons behind the failure of the workplace to successfully adapt to the realities of the workforce will occur. Only by continuing to make these social and cultural forces public can we do something to address them.
Link to full report on UC Hastings College of the Law, Center for Work Life Law
Joan Williams is a Distinguished Professor of Law, UC Hastings Foundation Chair and Director
of the Center for Work Life at the University of California's Hastings College of the Law.
Mary Blair-Loy is an Associate Professor, Director of Graduate Studies and Founding Director of the Center for Research on Gender in the Professions at the University of California, San Diego.
Jennifer Berdahl is an Associate Professor of Organizational Behaviour at the Rotman School of Management. The paper on which this article is based will appear in the Journal of Social Issues. Rotman faculty research is ranked in the top 10 worldwide by the Financial Times.
Reprinted with permission from the Work Life Law Center, UC Hastings College of the Law.
The Pay Gap -- It's Time to Take it Personally
Contributed by Victoria Pynchon to Forbes
There's Still a Pay Gap Today
According to a recent survey [opens in new window] released by the National Association of Women Lawyers [opens in new window], women attorneys' median pay still trails behind their male peers' at the largest law firms despite negligible differences in billable hours and client lists between male equity partners and their substantially fewer female counterparts.
Speaking to women lawyers across the country, I've been told by equity partners that their pay differentials are as much as 50%.
Sometimes they tell me they don't want to "complain" because they're otherwise "happy" even though they tell me these things with burning indignation and a bitter taste in their mouths.
It always helps to know we're not alone because too often we think we're getting what we deserve.
But if we don't face the facts, we can't fix the problem. In this economy, it's particularly important that we maximize our current income so we can save for retirement, provide our children and grand-children with increasingly expensive educational opportunities, and, pay back our own student loans before it's time to send junior to college.
Why The Gap?
To wage-gap deniers, the recent study shows that the 11 percent delta is not based on any significant disparity in women law partners' billable or total hours or their client lists. And while women associates earn nearly as much as their male peers -- 99 cents on the dollar -- they receive only 40 percent of all bonuses awarded.
It's this bonus number that makes us start slipping in the race for compensation parity.
We don't ask for it. And sure as shootin' no one's going to tell us we're missing out if they can "save the firm a little money."
That's what one managing partner told me when one of my associate attorneys complained that her year end bonus was 30% less than the other associates' bonuses.
"She seemed happy," said my managing partner. "If she wanted more, she should have asked for it."
The Hours Don't Make the Difference
In the NAWL survey [opens in new window], it appeared that male associates had logged an average of 1,841 billable hours while their female counterparts had logged 1,789 billable hours -- a 52-hour difference that would be meaningful only if the difference straddled a minimum for the award of a bonus.
I began supervising associate attorneys in my second year of practice -- giving me a solid 24 years of mentoring. I can tell you without hesitation that women routinely failed to record all of their time because they didn't want to appear to have taken too much time to complete a task or simply believed it shouldn't have taken them "so long."
People who wrote down their time with what everyone referred to as a "heavy hand" tended to be male.
Equity Partners Also Experienced an Hours Gap
With equity partners, women logged 34 more total hours than their male counterparts and 28 fewer billable hours, once again a distinction without a difference unless those 28 hours straddled a minimum hour bonus requirement.
But the survey also noted the continuing shortage of female attorneys in leadership positions, noting that 70 percent of staff attorneys -- not on the partnership track -- were women.
"We are disappointed that women lawyers are still not reaching the highest levels of big firm practice or leadership in significant numbers," NAWL President Beth Kaufman of Schoeman Updike & Kaufman LLP said in a statement Monday.
For the National Association of Women Lawyers Report of the Fifth Annual National Survey on Retention and Promotion of Women in Law Firms go to:
http://nawl.timberlakepublishing.com/files/NAWL%202010%20Final(2).pdf [opens in new window]
Reprinted with permission from Forbes. This article is available online at:
Visible Invisibility: Women of Color in Law Firms (Executive Summary) --
A Study by the ABA Commission on Women
In 1872, Charlotte E. Ray became the first African-American woman admitted to the bar in the United States. Despite her renowned legal abilities, she had to give up the practice of law because, as a woman of color, she could not attract sufficient clients to stay in business. The legal profession has changed dramatically since Ms. Ray practiced law, although many of the challenges she faced then still confront us today. Almost half of the associates in private law firms are now women and 15% are attorneys of color, but in 2004 only 17% of law partners were women and only 4% were attorneys of color. In 2005, the National Association of Law Placement (NALP) found that 81% of minority female associates had left their law firms within five years of being hired.
Unfortunately, the NALP data tell us only part of a complex story. The report on the ABA Commission on Women's Women of Color Research Initiative seeks to further our understanding of the professional lives of women of color and their experiences in law firms.
The career experiences of women of color in this study differed dramatically from those of their peers and from white male counterparts in particular. Nearly half of women of color but only 3% of white men experienced demeaning comments or harassment. Unlike white men, many women of color felt that they had to disprove negative preconceived notions about their legal abilities and their commitment to their careers.
Nearly two-thirds of the women of color but only 4% of white men were excluded from informal and formal networking opportunities. They felt lonely and deprived of colleagues with whom they could share important career-related information. Women of color had mentors, but their mentors did not ensure that they were integrated into the firm's internal networks, received desirable assignments (especially those that helped them meet required billable hours) or had substantive contacts with clients.
Women of color often became stuck in dead-end assignments, so that as third- and fourth-year associates, their experience lagged behind their white male counterparts, limiting their advancement potential and career trajectories. Forty-four percent of women of color but only 2% of white men reported having been denied desirable assignments.
Forty-three percent of women of color but only 3% of white men had limited access to client development opportunities. Women of color stated that they met with clients only when their race or gender would be advantageous to the firm; they frequently were not given a substantive role in those meetings. This kept them from developing business contacts that they could use to develop a book of clients.
Nearly one-third of women of color but less than 1% of white men felt they received unfair performance evaluations. Sometimes their accomplishments were ignored by the firm or were not as highly rewarded as those of their peers; sometimes their mistakes were exaggerated. Twenty percent of women of color but only 1% of white men felt they were denied promotion opportunities.
In addition to these career hurdles, women of color in the survey and focus groups felt they could not "be themselves"; they downplayed and homogenized their gender and racial/ethnic identities. Some tried to act like the men in their firms, and become "one of the boys." Many complained that they often felt invisible or mistaken for persons of lower status.
Charlotte Ray would surely look at the number of women of color in the legal profession today and see how far the profession has come since she practiced law over a century ago. But, after taking a closer look at the experiences of women of color in the profession she might wonder just how much progress has been made after all.
You can download the full Executive Summary [opens in new window].
For full details on this research study and the ABA Commission on Women's recommendations, please order the full Visible Invisibility: Women of Color in Law Firms report at www.abanet.org/women [opens in new window].
From Visible Invisibility to Visibly Successful: Success Strategies for Law Firms and Women of Color in Law Firms (Highlights) -- The ABA Commission on Women
The interviews and analyses identified two categories of strategies that need to occur simultaneously in order for law firms to achieve sustained success with women of color: 1) institutional changes in the way law firms are run, and 2) the empowerment of individual women of color to build the support, skills resources, and power to succeed in spite of the barriers that currently exist in law firms. Success strategies for law firms and for women of color were identified as follows:
Success Strategies for Law Firms:
- Grow and sustain active outreach to women of color through the firm's recruiting efforts.
- Develop concrete measurement tools through which progress can be tracked, analyzed, and measured.
- Develop various channels throughout the firm in which inclusive formal and informal networking can occur, and connect the networking activities to foster greater dialogue between persons of varied backgrounds, ethnicities, and races.
- Develop quantitative measures for tracking and analyzing the flow of work within all the practice groups in the firm, and hold leaders of practice groups accountable for ensuring that work is distributed in an equitable and unbiased way.
- Create general categories of skills and knowledge that younger lawyers can use to monitor their own success.
- Build systems of self-advocacy into the attorney evaluation processes, and ensure that attorneys who are evaluating other attorneys are trained to evaluate in an open, effective, and unbiased manner.
- Integrate business development skills-building into all areas of an attorney's development in the firm.
- Develop a succession-planning strategy for the firm that integrates the inclusion of senior associates and junior partners in key firm management committees.
- Create an effective Diversity Committee or similar leadership structure by ensuring meaningful participation by firm leadership, clear strategic planning around diversity issues, and adequate resources to effectively execute the clear strategies.
Success Strategies for Women of Color in Law Firms:
- "Believe in yourself, and do not let anyone shake your belief in yourself."
- "Give excellence. Get success."
- "If you can't find mentors, you have to make mentors."
- "It takes a village to raise a lawyer."
- "Network, network, network."
- "It's all about the book [of business]."
- "Take care of yourself."
- "Show up. Speak up."
You can view the full report [opens in new window].
Reprinted with permission from the ABA Commission on Women.
Articles from the September 2012 Issue
A publication of The State Bar of California Council on Access and Fairness
The inaugural issue of our eNews, Achieving Diversity in the Legal Profession, was sent in September 2012 and included these articles.
We Want YOU! Apply for COAF and Other State Bar Entities
Benefits of Participation on State Bar Entities
Your appointment to a State Bar entity:
- Helps to improve the legal profession
- Increases diversity within the State Bar volunteer structure
- Increases visibility for your practice / firm / company / office/ organization / local bar association
- Creates networking and professional development opportunities
State Bar Entities include a variety of sections, committees, and commissions including 10 standing committees, 16 section executive committees (applicant must be a member of the section to apply), and 18 special committees. See http://cc.calbar.ca.gov/ for a description of the State Bar entities and further application details.
The State Bar Council on Access & Fairness is seeking applications for the 2012-2013 Committee year. The Council seeks new members who will have experience representing the full spectrum of the diversity pipeline. New members are expected to have a working knowledge of diversity pipeline issues, along with experience developing and implementing strategic initiatives to address the issues.
We are seeking Council members who have the following qualities:
- A demonstrated working knowledge of diversity pipeline issues
- A sustained record of leadership and actual performance addressing challenges along the diversity pipeline
- A proven ability to engage in strategic visioning and to work in a "think tank" model towards fulfilling the Council's vision and mission statement
COAF applicants must also have the ability to:
- Create, focus on and implement initiatives that have an impact on the full pipeline
- Produce institutional and attitudinal changes to create a culture of inclusion within the legal profession and judiciary that fosters diversity;
- Serve as a catalyst for change by framing and communicating ways to respond to diversity challenges on the part of the legal profession and to inspire and empower potential lawyers from diverse communities;
- Lead, partner, collaborate or coordinate with existing entities and individuals already working toward the goal of diversity within the justice system to achieve that goal; and/or
- Create mechanisms to measure change in the diversity of the legal profession over time.
Attend an application workshop for information about the appointments process, State Bar entities, and tips for completing the application:
- Los Angeles: November 3, 2012, 11:30 AM:
Women Lawyers of Los Angeles Offices, 625 South Spring Street, Los Angeles
- San Francisco: November 8, 2012, 5:30PM:
Bar Association of San Francisco, 301 Battery Street, Third Floor, San Francisco
Send Application Form: The WORD version of the application form can be found on the State Bar website at http://cc.calbar.ca.gov. Complete and print the form and send to Karen Hagelund , Appointments Office, The State Bar of California, 180 Howard Street, San Francisco, CA 94105
Deadline: Persons interested in being considered now are encouraged to submit their application by Tuesday, February 1, 2013.
For Further Information, Contact: Patricia Lee, Special Assistant for Diversity and Bar Relations, 415-538-2240 or email@example.com
Practical Tips for Completing and Submitting a "Successful" Application
Applicants should take care to submit the best possible application in both substance and form. The following tips will help you to put your best foot forward in the application process:
Read committee descriptions carefully (expectations, number of meetings, State Bar reimbursement for pre-approved travel, etc) and make sure you can meet the prerequisites and expectations of the committee
Follow the instructions on front page of application; note "Committee Preferences" -- You may submit one application and list preferences, but it is better to submit a separate application for each committee, so you can tailor your application for the particular entity; you can apply for up to 3 entities but can only be appointed to one; include personal statement, resume/biography and maximum of 3 letters of recommendation for each committee application. If you are already a member of a State Bar entity when you apply for appointment to another entity, and you are recommended for the new entity, you must decide between the two entities. You cannot serve on more than one entity at any time.
Submit letters of recommendation: letters are not required but are very helpful and can be persuasive. The letters should address your specific leadership abilities, subject-matter experience, commitment, ability to follow through (generic letters or "form" letters are not as helpful); do not submit more than three letters
Be sure to tailor your personal statement to the charge, objectives and expectations of the committee!! Explain what you can bring to the committee and put your best foot forward. Also attach your resume.
Make the application legible and professional looking Note: the on-line application is in PDF and WORD format. Don't submit a handwritten application. Use the WORD version to complete your application, print out, copy and submit Access the application on the State Bar's website at http://cc.calbar.ca.gov.
Respond to "other diversity factors" on Part Two -- This is voluntary information but very useful when committees are reviewing and evaluating applications (see the next section below for the diversity factors included in the State Bar appointments policies)
Do NOT submit an application unless you can commit to meeting the expectations
Don't be discouraged if you are not appointed -- Reapply! sometimes the "competition" is stiff; talk to the Chair, Vice Chair, and staff liaison for feedback; if you are applying to a Section Executive Committee, be sure you are a member of the section and apply for a section standing committees or talk to the staff liaison or chair about other section activities that need volunteers. Many Sections require Section involvement prior to considering appointment to Section Executive Committees.
Everything You Wanted to Know About Judicial Appointments
Remarks by Associate Justice Carlos Moreno (Ret.) on the Value of Judicial Diversity
Speech by Justice Carlos Moreno (Ret.), Associate Justice, California Supreme Court and Member, State Bar Council on Access & Fairness, at an event at the Los Angeles County Bar Association honoring Judge Sharon Majors-Lewis -- January 21, 2011 Los Angeles.
I want to speak briefly about diversity in the justice system and why I think it is important to the cause of justice and how we, as the public, perceive whether justice is rendered in our courts. While I am going to talk about diversity in terms of race and ethnicity, I also want to focus on diversity of experience and exposure by those who work in the justice system.
We who are judges know that we have an obligation to serve the public interest, to provide equal justice for all, and to render fair decisions based on the law. But, I submit that, only by having a diverse bench can this essential goal be attained. The same applies to all of our justice partners — prosecutors, defense attorneys, court staff, law enforcement, and jury system.
First, I'd like you all to consider whether the decision-making process by judges and the charging decisions made by prosecutors, and verdicts reached by juries ensures that our rulings, verdicts and opinions achieve justice not only today, for the case at hand, but whether those decisions will withstand the test of time to preserve justice, tomorrow when we look back at those earlier events. I am convinced that diversity is an important element in this process, and the experience that comes from increased diversity on the bench, and diversity in the justice system generally, will help ensure that what we do today will withstand the test of time.
First and foremost, diversity serves as a structural safeguard against bias, against invidious discrimination, and prejudice. It ensures a full, a thoughtful, and a balanced deliberation and decision-making process. And like our American jury system of twelve jurors from the community, many with different life experiences and points of view, we feel more confident about their verdict than we would, say, the verdict of a sole judge or a panel of professional jurors. More importantly, it also increases the appearance of justice as well.
Because a significant by-product of diversity in the justice system is a shift in the perception of justice, looking at this as a judge, the important contribution of bench diversity is especially significant at the trial court level, where I served for fifteen years. Public perception of justice has a profound effect on attitudes toward our justice system -- trust and confidence in the system -- and on the ability of the system to serve all communities. In fact, diversity enhances the credibility of an institution, any institution. This is especially true for the judiciary, because how can the public have trust and confidence in an institution charged with protecting the rights of all, if that very institution is segregated? If the communities that institution is supposed to protect are excluded from its ranks? The same is true if people of different races and gender and life experiences are not represented on the jury, court staff, defense counsel and prosecutors.
Even where a case is properly decided, as I am convinced most are, a perception of injustice may exist where a participant's race or ethnicity is not represented on the bench, jury, or by counsel. This perception of injustice is dangerous, because it leads to a lack of trust and confidence, however unmerited, in the legal system. Our legal system persists, and is on the whole respected, because of the trust that society has that it will be treated fairly. A diverse judiciary, and diverse criminal justice system, strives to ensure that whatever the outcome in a case, a party will not perceive that it has been prejudged. The perception of justice not only serves to increase faith in the legal system, but also encourages society to obey the law, and to respect the justice system.
Again, from a judge's perspective, there are other advantages to having diversity especially at the trial court level. A judge who can relate with, or who comes from a similar background as a defendant, is less likely to stereotype; the judge is less likely to write the defendant off as "just another gang banger" or "welfare mom". He or she can better understand a defendant's cultural and family dynamics first hand. Such a judge can have an appreciation of the defendant's education and upbringing, and of the opportunities available, and, more significantly, opportunities denied, due to shared life experiences. I have found that something as little as pronouncing a defendant's name correctly can be very important in the appearance of justice. From the very beginning making such a mistake can be seen as a kind of "put off" or even disrespectful.
These same observations would apply to our justice system partners. There's a great passage in "To Kill a Mockingbird" where Atticus Finch tells his daughter, Scout: " ‘First of all,' he said, ‘if you can learn a simple trick, Scout, you'll get along a lot better with all kinds of folks. You never really understand a person until you consider things from his point of view — until you climb into his skin and walk around in it.' " So having a justice system that is representative of the different backgrounds and experiences enhances the sense of dignity and respect that we want for the process. This is just as important for appearances' sake as it is in maintaining high levels of public trust and confidence in our judicial system.
The same observations can be made about any kind of lawyer and law practice; I think a law firm should have a group of talented lawyers with a wide range of life experiences, drawn from a variety of socio-economic circumstances, immigrant experiences, perhaps a prior career. This can only add to the quality of the decisions made by such a group.
And one's make-up is not frozen in the past. Judges and lawyers should take note of their communities and engage in programs of community outreach. You will get more out of it than you put in. There are many programs I know lawyers are involved with -- Project Lead, Constitutional Rights Foundation, moot court and mock trial teams.
The values that diversity brings to the bench came up with the nomination and confirmation of Judge Sonia Sotomayor to the U.S. Supreme Court in 2009. In particular, Sotomayor's statements that a "wise Latina woman" can make "better" decisions brought on allegations ranging from "reverse racism" to "radical multiculturalism." To acknowledge the influence of race, among other demographics (like one's social status, life experience), on one's perspective is not to say that racial sympathies (even if we assume they exist) can or should ever trump a judge's solemn oath to follow the law, as some of Sotomayor's critics alleged. Instead, acknowledgement of race and ethnicity is an important part of recognizing the need to diversify the bench and our justice system in all respects, and at all levels, with individuals whose breadth of life experience and thought actually complements the breadth and scope of cases brought before us who work in the justice system.
There is absolutely nothing about a judge's race or ethnicity that should ever trump a judge's oath to follow the law. Nor should race or ethnicity ever be a consideration in a prosecutor's decision to charge or prosecute a defendant, or to excuse a prospective juror, for that matter. That is paramount. And to promote diversity is not to diminish justice, but rather to enhance justice and overall fairness. When I was a trial judge in the state court across the street, I remember telling prosecutors during jury selection: "In diversity, there is unanimity." I had only a handful of hung juries over many years and hundreds of criminal trials. Too many lawyers base peremptory challenges on time-worn stereotypes rather than individual characteristics.
So, I conclude by emphasizing that diversity in our justice system should be seen not as a way of praising or elevating bias, but as a way of moderating bias, hopefully eliminating bias, as a way of insuring fairness and foreclosing forms of invidious discrimination. So in both the application, and in the perception of justice, diversity ultimately reinforces and strengthens the goal of overall fairness in the law.
I thank you for inviting me to speak to you today and join you in celebrating in honoring Judge Sharon Majors-Lewis as a Champion of Diversity.
The Current State of Judicial Diversity Under the Brown Administration
By Hon. Cynthia Loo, Los Angeles County Superior Court
Despite a vibrantly diverse population, California's judiciary is not. While still early in his administration, however, early appointments by Governor Jerry Brown show remarkable diversity. . Indeed, Brown is poised to make historic changes to the composition of California's bench.
There is much work to be done. The population of California is 40.1% white, while 72.3% of its judiciary is white. Strikingly 37.6% of the population is Latino, yet only 8.2% of the judiciary is Latino. With regard to gender diversity, though recent census figures for California indicate that 50.3% of the population is female, only 31.1% of California's judges are women. This is noteworthy, as data compiled by the American Bar Association reflect that approximately 47% of the students entering law school over the last decade are women.
A sophisticated view of diversity goes beyond ethnic/racial and gender lines and extends to diversity of practice. Widespread belief exists that one needs to be a prosecutor with significant jury trial experience to be appointed. Given data compiled by the Civil Justice Association of California regarding appointments by practice area of the Davis and Schwarzenegger administrations, this is understandable. Both tended to appointment primarily prosecutors, and overlook public defenders / criminal defense attorneys. The Davis administration appointed 30% prosecutors, 1% criminal defense attorneys; Schwarzenegger appointed 39% prosecutors and 4% criminal defense attorneys.
The State Bar's Commission on Judicial Nominees Evaluation (JNE) is mandated by Government Code section 12011.5(d) in recommending judicial candidates to the governor to consider legal experience broadly, including but not limited to litigation and non-litigation experience, legal work for a nonprofit, experience as a law professor, legal work in dispute resolution, etc. This mandate does not, however, apply to other bodies evaluating judicial applicants such as the Governor's local judicial advisory selection committees or local bar association screening committees.
Barriers to Achieving a Diversified Bench
A 2010 study by the Brennan Justice Center identifies a number of obstacles to judicial diversity. Implicit bias, stereotypes that we all have but are unaware of having, is said to be a primary reason hindering diversity. Numerous studies demonstrate implicit biases alter our behavior, including how we give interviews or hire candidates.
"A Future History of Implicit Social Cognition and the Law" authored bywell-respected expert UCLA Professor Jerry Kang documents the extensive research regarding implicit bias. Studies conclude all people stereotype others unconsciously. Stereotypes arise from ordinary tendencies to make associations and conflicts with conscious attitudes and intentional behaviors. Thus, not withstanding protestations to the contrary, people are generally not blind to demographic characteristics. In numerous studies participants systematically preferred socially privileged groups: men over women, young over old, white over lack, other Peoples over Arab/Muslim, able over disabled, and straight over gay.
As Kang documents implicit biases do predict real world behavior. In an important 1999 study by Steinpreis, Anders and Ritzke, curricula vitae were sent to numerous academicians in the United States. The curricula vitae actually came from a real-life scientist and were identical, but the names were changed to reflect traditional male and female names. Both male and female academicians were significantly more likely to hire a potential male colleague than an equally qualified potential female colleague. Similarly, both sexes reported that the male job applicant had adequate teaching, research and service experience compared to the female job applicant with an identical record.
In a 2004 similar study by Bertrand and Mullainathan, comparable resumes were sent to numerous employers in Boston and Chicago, but used names such as "Emily" or "Greg" to signal whiteness and "Lakisha" and "Jamal" to signal blackness. The simple manipulation of the name produced a 50% difference in callback rates.
It is crucial to not minimize how implicit bias can predict behavior. For a striking example, Joshua Correll's 2002 study addresses how implicit bias predicts the amount of shooter bias-- how much easier it is to shoot African Americans compared to whites in a game simulation. Participants are asked to make one response if the person holds a weapon, and another if holding a harmless object such as a cell phone. Responses differed as a function of race: Both African-American and White participants were quicker to "shoot" an armed black target than an armed white target, but slower to "not shoot" an unarmed black target than an unarmed white target.
Kang suggests it is unduly optimistic to think it is easy to influence bias. Fortunately these biases are malleable. Studies demonstrate exposure to positive examples of a disfavored social category decreased implicit bias significantly. One longitudinal study found women who attended a single-sex university had their average group implicit stereotypes against women decrease to zero. By contrast, a control group of women who attended a co-ed university had increased average implicit bias. Researchers determined it was exposure to female professors and administrators which explained the difference.
New legislation requires JNE Commissioners to complete two hours of bias training. Many believe anyone involved in evaluating judicial applicants -- such as those who advise the Governor as well as local bar association screening committees could benefit from bias training.
Governor Brown's Initial Judicial Appointments Reflect Commitment to Judicial Diversity and Include Many Nontraditional Selections
Governor Brown has appointed a number of "firsts" to the bench including Raquel Marquez, who is Riverside County's first Latina judge; Kathleen O'Leary the first female Presiding Justice of the Fourth District Court of Appeal, Division Three; Miguel Marquez, first Latino to serve on the Sixth District Court of Appeal; and Halim Dhanidina, first American-Muslim ever appointed in California.
While it is still early in Brown's reign as California's 39th governor, of his 41 initial judicial appointments a significant number of ethnic/racial minorities (42%) have been appointed: 15% African-American, 10% Asian, and 17% Latino. (By way of comparison Schwarzenegger's ethnic appointments include: 8% African-American, 7% Asian and 10% Latino.)
Acknowledging that prosecutors had previously been disproportionately appointed, Brown's Senior Advisor for Policy and Appointments Joshua Groban, emphasized the Governor desires the bench to be diversified in experience and indicated those from nontraditional practice areas will be seriously considered.
Brown's initial appointments confirm this. The comparison between current and past administrations is striking with regard to the appointment of public defenders/criminal defense attorneys. A significant number of appointees (27%) had experience as criminal defense attorneys, with 18% of appointees being defense attorneys at time of appointment. For example, Michael Garcia was a Federal Public Defender for the Central District of California for approximately 18 years prior to becoming a Los Angeles County Superior Court Commissioner. As previously noted, Schwarzenegger appointed 4% criminal defense attorneys, and Davis 1%.
Other nontraditional appointments occurred with regard to those working in academia and public interest. Brown's appointment of UC Berkeley Goodwin Liu as an Associate Justice to the California Supreme Court surprised many legal analysts. Speaking to the Los Angeles Times, Brown said he was not concerned Liu never served as a judge; among California's greatest judges was the late Roger Traynor, who was a tax professor at UC Berkeley. In addition, Miguel Marquez, a school board attorney also had not been on the bench prior to his appointment to the Sixth District Court of Appeal.
It is estimated that less than 1% of the prior administrations' judicial appointments had public interest or mediation backgrounds. Prior to working as a partner at Lim Ruger and Kim LLP, Bruce Iwasaki worked as the executive director of the Legal Aid Foundation of Los Angeles for almost a decade. Before her appointment to the Los Angeles Superior Court, Michelle Williams Court worked in various capacities including general counsel at Bet Tzedek, a public interest organization committed to serving those in poverty and those victimized by discrimination and civil rights abuses. Another appointee with a nontraditional background is Matthew Guasco, a professional mediator and arbitrator before being appointed to the Ventura County bench.
Brown's initial judicial appointments confirm the governor's commitment to judicial diversity and give hope that those from previously unrepresented groups have the possibility of a judicial appointment. Clearly, efforts to diversify the bench cannot be left to the Governor alone. Widespread agreement exists that an effort to increase diversity is best done by a collaborative, systematic effort. Change comes slowly, but with the inspiration of the Governor's recent appointments, recognition of the value that different voices bring to the judiciary and collaborative efforts led by the minority and women bar associations who must recruit qualified candidates, the goal of a diverse judiciary can be a reality.
Cynthia Loo has been a judicial officer with the LA County Superior Court for the last twelve years. She is the chair of the State Bar of California's Council on Access and Fairness judicial committee the "diversity think tank" that advises on advancing diversity strategies to enhance opportunities and advancement in the law. Cynthia can be reached at CLLoo@LASuperiorCourt.org.
For a checklist of suggestions to assist in completing the online judicial application contact: http://cc.calbar.ca.gov/CommitteesCommissions/Special/CouncilonAccessandFairness.aspx
Navigating Judicial Diversity Under the Brown Administration
By Yolanda JacksonDeputy Executive Director and Diversity Director, Bar Association of San Francisco (This article appeared in the Summer 2012 issue of San Francisco Attorney magazine and is reprinted with permission.)
Josh Groban, senior advisor to the governor in the Judicial Appointments Unit, traveled to The Bar Association of San Francisco (BASF) from Sacramento on a Thursday evening in January to speak to a crowded room of aspiring judges and bar association representatives about how to get a judicial appointment in the Governor Jerry Brown administration. The evening was presented by BASF's Judicial Mentorship Program.
Groban, before joining the governor's office, served as legal counsel for Governor Brown's 2010 campaign and previously practiced law at Munger, Tolles & Olson in Los Angeles. Prior to that, he practiced at Paul, Weiss in New York and also clerked in the Southern District of New York.
Groban was extremely candid, factual, and well received. Here are the nuggets of information he had to share.
The California Judicial Application can be found online at http://gov.ca.gov/s_judicialappointments.php.
Spend the necessary amount of time carefully completing your judicial application. This is an online process and the application is lengthy. Be sure to carefully catalog the major cases that you have worked on. It is recommended that you notify, in advance, those people that you have listed as references. Make sure there are no typos or grammatical errors in your application and be sure to read the instructions thoroughly and follow them closely. Proofread and then proofread again and then let a trusted friend or colleague proofread your final application.
Letters of Recommendation: Be sure to include "thoughtful" letters of recommendation. The ideal number is two to six letters, definitely not thirty or forty letters. They should be from people who really know you, your work ethic, your skills, and your attributes. The reviewers are not impressed by politician or celebrity names if the letters from them don't convey that they "know" you and your professional values. Supplemental materials, such as letters of recommendation, can come in after you submit your packet and will be attached to your application. However, it is best if your letters are submitted early because this administration does its review and thorough vetting of applications before they go to the Commission on Judicial Nominees Evaluation (JNE).
Endorsements: Endorsements from bar associations are very helpful; however, the bar associations should clearly explain the vetting process they went through in recommending you. If the vetting process does not appear to be thorough, then the endorsement is not given much weight.
Governor Brown's Process
Governor Brown appointed a Judicial Appointments Unit instead of a Judicial Appointments Secretary like past governors have done. One unique feature of the unit is that it heavily vets applicants before they go to the JNE Commission, not after, like the prior administration. [get list of members of unit].
The governor's Judicial Appointments Unit pores through every application (including letters of recommendation) that it receives. The unit will make phone calls to the references listed by the applicant and others, and the governor himself will sometimes make phone calls on an applicant. But frankly, not much weight is put on the feedback from these references.
Regarding the infamous Judicial Selection Advisory Committees (JSAC), often referred to as the "secret committees," Groban emphasized that "yes" they are consulted, but they are not kingmakers, and that under the Brown administration these committees do not keep applicants from getting through the process. The main role of these committees is to assist with vetting and reference phone calls.
The governor's office sends a batch of applicants' names to the JNE Commission every three to four months. It also sends names to various county bars for them to vet. Groban stated that the value of the JNE Commission in the process is that it is very thorough, its questionnaire is very helpful, it often has in-person interviews with applicants before the governor's office ever meets the candidates in person, and its feedback from these interviews is instructive and useful. However, Groban emphasized that the governor has the power to appoint judges, not the JNE Commission.
Once the JNE Commission, the JSAC, and county bar associations have vetted the applicants that were originally sent through the process by the governor's office, the governor's office then decides who it will interview.
Governor Brown's Approach
Casting aside typical gatekeeper rules, this governor will appoint candidates who belong to other political parties. There is no candidate that is too young or too old. These criteria are no longer barriers to being appointed. There are certain types of past experience that are not barriers to appointment by this administration. An applicant's past experience can include in-house counsel, transactional work, public defender, or academia. The number of cases an applicant has tried is not an issue with this governor. He will also consider candidates who were previously sent to the JNE Commission under a prior administration, but who were never appointed.
An applicant's ties to more than one county can be a plus, as that candidate will be considered for appointment to the bench in more than one county.
Governor Brown may appoint an applicant to the appellate court without that applicant having first served on the superior court.
What This Governor Is Looking for in Traits and Attributes
Josh Groban was clear in stating that Governor Brown is looking for judicial candidates who have intellectual curiosity. Governor Brown is known to participate in some of the interviews of candidates so that he can personally explore the candidates' undergraduate studies, what the topic of their thesis was, who their favorite authors are, the subjects of scholarly articles they may have written, and what their personal focus was on law review in law school, for example.
He is interested in individuals who are well rounded, interesting, and who have rich life experiences. He learns this by asking questions such as how the candidate is engaged in his or her community and what books the candidate has read lately.
The governor has a "no jerks policy" in that he wants candidates who are known for having a good and judicial temperament. He wants judges who have good values and who are fair. He often views this through the lens of "whether their minds can be changed" on any given topic.
On March 1, 2012, the Administrative Office of the Courts (AOC) released demographic data on the ethnicity, race, gender, gender identity, and sexual orientation of California state judges and justices.
The data show an increase in the percentage of female appellate court justices and trial court judges in 2011. Women now represent 31.1 percent of the judiciary, compared to 27.1 percent in 2006, continuing a steady upward trend over the past six years.
Changes over the past six years in the percentage of justices and judges in race and ethnicity categories included Asian up 1.2 percent; Black up 1.3 percent; Hispanic up 1.9 percent; and White down 2.2 percent. These changes reflect judicial retirements and other departures from the bench, new judicial appointments, and an increase in the number of trial court judges who have provided race/ethnicity information.
Since the beginning of his term, Governor Jerry Brown has been very clear that he is interested in appointing a diverse group of judges. He is accomplishing this is by casting aside the gatekeeper rules that have traditionally existed, in part by changing the ways the JNE Commission and JSAC are utilized in the vetting process. Look for future AOC demographic data to reflect the efforts of the Brown administration's work to diversify the California bench.
Yolanda Jackson is the deputy executive director and director of diversity for The Bar Association of San Francisco. She can be reached at firstname.lastname@example.org and you can follow her on Twitter at YolandaSFBar.