TAKING ACTION: Students protest in support of affirmative action outside the U.S. Supreme Court during the hearing of Schuette v. Coalition in October. (Andrew Burton / Getty Images)
The organized bar — joined by a broad consensus of America’s civic, business and political institutions — believes that full inclusion of members of racial, ethnic, gender and other underrepresented groups is essential to the legitimacy of our legal and political systems. Diversity in the legal profession shows that the path to leadership is open to all, while demonstrating that the justice system serves the public openly and fairly. Diversity is also crucial for the legal profession’s successful service of clients in the global marketplace.
As advocates for diversity, we must not be deterred or discouraged by the U.S. Supreme Court’s recent decision in Schuette v. Coalition to Defend Affirm­ative Action. That decision upheld a voter-approved article of the Michigan Constitution that prohibits the state’s public universities from considering race as a factor in their admissions decisions.
The affirmative action option that the court allowed Michigan’s voters to curtail is only one tool to help increase diversity among the students from whom lawyers and judges are eventually drawn. It is not the only tool. That was the conclusion of a 2010 study by the American Bar Association Center for Racial and Ethnic Diversity, which stated that universities, law firms, bar associations, corporations, the courts and other institutions can all work on a variety of ways to promote inclusiveness.
Even in light of the Schuette decision, a key path to the legal profession still travels through higher education. Universities, including law schools, should consider the extent to which excessive reliance on standardized admissions tests narrows the pipeline of opportunity. Colleges and universities should develop and broaden programs to reach out to promising students who might be overlooked from too narrow a focus. Schools should expand financial assistance to make university attendance a realistic possibility for the many who cannot afford it, especially due to high debt burdens carried over from college and graduate school.
Undergraduate schools and law schools must foster a campus climate of inclusion, hire faculty members who themselves come from diverse backgrounds and include courses that educate students for a diverse world after graduation.
BEYOND HIGHER EDUCATION
The world beyond higher education must do its part, too. Bar associations and law firms, for example, can adopt the model of one of the ABA’s most cherished programs: the Legal Opportunity Scholarship Fund.
Since former ABA President William Paul established the fund in 1999 and encouraged lawyers to contribute to it, hundreds of students from diverse backgrounds who lacked financial resources have had an opportunity to succeed in law school and beyond.
Many law firms and corporations already recognize the importance of diversity in theory, but the gap between theory and practice is wide. Although diversity initiatives may be vulnerable to short-term focuses on reducing expenses, institutions would be penny-wise but pound-foolish if they did not recognize the long-term need to develop diversity in their ranks.
Corporations and law firms have many tools to promote diversity. As Microsoft Corp., Wal-Mart Stores Inc. and many other companies have done, clients can insist that their service providers foster a diverse workforce. Law firms must be sure that their modes of hiring, staffing, promoting and compensating are effectively inclusive. Tool kits developed by the ABA Commission on Women in the Profession are especially useful in this regard.
Government institutions also have an important role in promoting diversity, especially in the legal system. Consider judicial appointments as just one example. In many states and the federal system, the process of appointing judges is obscure to talented lawyers who might make excellent judges, but who lack the contacts to come to the attention of those who recommend and make appointments or develop election slates. In states with elected judges, the imperative of fundraising may also limit the pool of potential judges.
Schuette and other discouraging developments must not become an excuse to abandon the crucial effort to diversify our legal and justice systems. As our nation changes, the challenges of ensuring opportunities for all Americans are only increasing.
Even if some believe that we have reached a place where we should no longer consider race in university admissions, we cannot allow ourselves to imagine that the benefits of diversity have been achieved. In fact, our work has just begun.
James R. Silkenat is president of the American Bar Association and a partner at Sullivan & Worcester in New York.