X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.


Many liberal commentators have decried the recent U.S. Supreme Court decision in the consolidated cases of Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education as the death knell of affirmative action and diversity efforts.

In truth, the demise of affirmative action has been a long time coming. Rather than the fatal blow many have declared it to be, the Supreme Court’s plurality decision in the Seattle and Jefferson cases was the latest in a succession of blows to affirmative action dating back almost 30 years, but it was not as fatal to diversity as some would believe.

Beleaguered as diversity advocates may be by the anti-affirmative action backlash, viewed optimistically, the decision provides a much-needed ray of hope for those who view diversity as central to the way we educate, employ, and represent people in a democratic and increasingly pluralistic nation.

The court reached consensus on only two issues, albeit through different majorities. A majority of the court composed of Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Antonin Scalia, and Anthony Kennedy decided that both Seattle and Jefferson had failed to demonstrate that their use of race to determine admissions into elementary and secondary schools in their districts met the very exacting standard of strict scrutiny, which is applicable when explicit racial classifications are used by the government to assign “benefits or burdens” – here the benefit being public education.

A separate majority of the court, however (and here is the aforementioned ray of hope), composed of Kennedy, Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg and David Souter, recognized diversity as a compelling interest in educating the nations future citizens and workforce from grade school through graduate school.

So, rather than be disheartened by the caustic words representing the opinion of only a minority of the court, this small but important victory should instead encourage diversity proponents in their pursuit of this essential goal.

In the words of Abraham Lincoln, “[t]he probability that we may fall in the struggle ought not to deter us from the support of a cause we believe to be just.” The fight to bring America fully into the realization of its promise of equal opportunity for all of its citizens is too important to abandon, even in the face of forceful resistance. We can sore afford to lose this fight. Ensuring that diversity remains not just an ideal but a reality in our schools, workplaces, and government is not a lost cause. There are many indications that diversity is and will remain a viable priority in our nation.

Ironically, in the same week that the Supreme Court issued its decision in the Seattle and Jefferson cases, the House Financial Services Committee passed House Concurrent Resolution 140, the “Financial Services Diversity Initiative.” The bill is designed to increase diversity in the financial service industry and requires “active measures” by employers and educational institutions to increase demographic diversity in that sector.

The bill was prompted by a report issued last year by the General Accounting Office finding that minorities were still significantly under-represented at all levels in the financial services industry and that women remained underrepresented in upper management levels. This in spite of the fact that the financial services industry is centered in New York City, which by recent census data is a city where the majority of its citizens are minorities (a “majority-minority city”).

Rep Gregory Meeks, D-N.Y., who sponsored the bill, declared it “compelling that the majority population is extremely and severely under-represented in the city’s major industry.” This bill follows a similar bill, an amendment to the Federal Housing Finance Reform Act of 2007, also introduced by Meeks earlier this year, to require the Federal Housing Finance Agency, and Fannie Mae and Freddie Mac, the entities that it regulates, to take active measures to ensure that their workforces reflect the diversity of the American population. Thus, for every seeming effort to undermine diversity, there are at least as many, if not more, advancing it. Hope marches on.

And the momentum is unstoppable. Hispanics and Asian-Americans now represent the fastest growing demographic populations in the country; five states already have majority-minority populations, as do an even larger number of cities. Diversity is an undeniable fact of American life, and it is not going away. America has become and remains one of the most dominant political, social, and economic forces in the world largely on the strength of its diversity.

Our strength lies not just in having diversity, but in challenging ourselves to leverage that diversity to ensure that everyone has an equal opportunity to participate in the American enterprise. Thus, if we continue to build our diversity, but lose our ability to leverage that diversity, we will have gained nothing and perhaps lost a great deal.

The case for diversity is equally, if not more, pressing in the legal profession. Currently, the legal profession lags behind most other professions in its diversity. According to the most recent census data, while roughly only 11 percent of lawyers are minorities, roughly 26 percent of doctors, 22 percent of accountants, and 18 percent of civil engineers are minorities. Given the profession’s unique role in shaping our nation, it is incumbent upon us to do better. Were the Supreme Court reflective of the diversity of our nation the decision in the Seattle and Jefferson cases may well have been quite different. There is still time to make amends.

Taking Justice Sandra Day O’Connor at her word in Grutter v. Bollinger, which the entire court affirmed in the Seattle and Jefferson cases, we have at least another 21 years remaining (of 25) to actively advance the cause of diversity. The decision in the Seattle and Jefferson cases is yet another guidepost in the evolving legal framework to instruct how we engage in diversity efforts. It does not, however, proscribe that work.

As Kennedy’s critical concurrence acknowledged, “[t]he enduring hope is that race should not matter, the reality is that too often it does.” Yet, he challenges “[t]he idea that if race is the problem, race is the instrument with which to solve it,” noting this “cannot be accepted as an analytical leap forward. And if this is a frustrating duality of the Equal Protection Clause it simply reflects the duality of our history and our attempts to promote freedom in a world that sometimes seems against it.”

Frustrating as it may be, this must be accepted as the price of doing diversity’s work. The end is too important to be put off by the difficulty of discerning the means. We must remain committed to leveraging our diversity in new and ever evolving ways, ensuring that we do not renege on our promise to future generations to provide each individual an equal chance to participate in the opportunities that abound in our great nation and in our noble profession.

STACY L. HAWKINS is currently the director of diversity for Ballard Spahr Andrews & Ingersoll, resident in the Philadelphia office. Previously, she practiced in the areas of labor and employment and corporate diversity counseling in Washington, D.C. She can be reached by calling 215-665-8500.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.