Protecting Diversity, Equity and Inclusion Post-SFFA

By Tanya Martinez-Gallinucci, Executive Director, New York City Bar Association Office for Diversity, Equity, Inclusion and Belonging (ODEIB)

The end to “race-based” affirmative action will cause irreparable harm to the accessibility of higher education and beyond for people from marginalized identities, with ripple effects that touch every sector and space in our society. This will be the starting point for an important discussion taking place at the New York City Bar Association beginning at a virtual event on September 28 and culminating in a full-day, in-person conference on October 30. We hope you will join us.

While understanding bias and the most basic principles and “better” practices of DEI are critical and crucial for everyone, lawyers and law-adjacent professionals are primarily responsible for enacting, interpreting and deciding our laws. As gatekeepers of the law and our legal systems, we have a special obligation to ensure that entry into our profession and representation within the profession are indeed equitable and inclusive.

We have failed by every measure in doing so[1], long before Students for Fair Admissions v. Harvard (SFFA) was ever decided. Now, SFFA has pulled the plug on systems of equity that were at best on life-support, and has left us with one less, albeit rickety, tool.

Our obligation to get this right has always existed, but the sense of urgency continues to mount. Just last month, the legal profession became the first target of affirmative-action lawsuits from the same people that funded SFFA.[2] The Court’s decision in SFFA—with a dispiriting and bewildering failure to comprehend the realities of racial justice in this country— demonstrated that the law alone cannot protect DEIB efforts to create true equity in our society[3]; it is up to every single one of us.

We cannot be taken in by the false rhetoric of colorblindness that the Court used as the foundation for its decision. That line of reasoning wrongly assumes that equal protection under the law can be guaranteed uniformly to both the historically privileged and the historically excluded. As Justice Jackson wrote in her dissent, the Court majority asks us to forget the injustices of our common past in order to assert that somehow “preventing consideration of race will end racism.” The Court’s premise blinks reality: racial injustice is still and has always been deeply embedded in our society, from the allocation of resources in our communities and public schools to the makeup of our professional classes and jail populations. And the legal profession is both a microcosm of that inequity and a perpetuator of it on a larger scale. At a minimum, the industry has much more work to do internally, as marginalized groups are disproportionately excluded from positions of influence and power in our law firms, legal offices and board rooms. But in reality, we should all be rolling up our sleeves because the collateral consequences of the inequity our industry perpetuates reaches every cubic inch of our society― we are the gatekeepers of justice after all.

We must redouble our efforts to emphasize through speech and action that diversity, equity, inclusion and belonging (DEIB) are core values of our profession and our society. The Supreme Court’s ruling will chill attention to these principles in higher education, and we know already, through empirical evidence and experience, how that chilling effect leads to less DEIB in our colleges and universities—and beyond.[4]  DEIB is crucial to the survival and excellence of our profession.  Dismissing it will mark our downfall:

A profession that dismisses DEIB will be one that continues to welcome first the already powerful and well-connected, further raising the walls of an echo chamber rooted in inequity around us.

A profession that dismisses DEIB misses out on better decision making and solutions that only diversity and psychological safety can produce.

A profession that dismisses DEIB is one where retention suffers because people who are forced to experience their race or other marginalized identities in hostile spaces will not feel that they belong, and because macro and micro aggressions take a toll mentally and physically (i.e., chronic racial stress).

A profession that dismisses DEIB is one that will fail to recruit the top talent in a job market increasingly comprised of a younger generation that prioritizes those values.

In short, “[i]f we do not collectively work to dismantle the systemic barriers to integration for systemically subjugated populations then we will deprive the legal profession of the moral integrity which it is meant to uphold.”[5]

Efforts to embed DEIB in the fabric of the legal profession are longstanding, and now is the time to truly embrace and support them. Not just through our words, but through our actions. The linchpin will be broadening, lengthening and strengthening the professional pipeline[6] for underrepresented people – one that runs from early education up to the top of our leadership ranks. Building a strong pipeline means looking outside of the legal world as well as within to identify and redress areas of historic and present exclusion. In order to succeed, we must speak clearly and with conviction about inequity so we can truly see the causes and design initiatives and policies that create equitable outcomes in response.

The City Bar is hard at work in pursuit of this goal and in providing opportunities for our members to contribute. As a start, ODEIB is hosting a four-part series on the question of how the Supreme Court ruling could impact workplaces and the legal industry at large. The first is available free on video, and the second video should be available soon. On September 28, we will host a hackathon focused on creating equitable access to the legal profession. The series will culminate in an all-day conference on October 30 that will provide opportunities for legal organizations to meet and form direct partnerships with New York City public schools and student pipeline programs. We invite you to join as a participant and as a series partner.

Looking for even more ways to contribute? Invest in talent by hosting or sponsoring a 1L Diversity Fellow, a Thurgood Marshall Summer Law intern, or the Associate Leadership Institute. The City Bar’s Diversity, Equity and Inclusion Committee hosts programming on DEIB topics and authors meaningful reports on the state of the legal pipeline. The committee is accepting members, and I urge you to please read the two pipeline reports prior to attending the conference.

These are actionable steps for this moment, but the work does not stop there. A true commitment to DEIB is the everyday work of acknowledging bias, establishing trust between colleagues, and dismantling institutions and practices that preserve unjust elements of the status quo. It is work for the individual, practice groups, legal departments, leaders and managers, and governing boards at the highest levels to look squarely at the worst of our history and collaborate on finding solutions. We will continue these important conversations as part of and following the conference, providing a space for honest talk and bold ideas. In the meantime, I invite you to consider attending a groundbreaking City Bar CLE webinar on October 3, Recognizing the Inherent Bias Within the Legal Profession and Identifying Your Relationship with It.  You may register here.

This has been a discouraging moment, as the nation’s highest court turns away from using the law as a means to foster and protect more diverse and pluralistic pathways to educational and professional opportunity in this country. Please help us to seize this moment as an opportunity to pull the legal profession onto the right side of history. Even though we have taken a large step backward, let’s choose to carry forward these words from Justice Sotomayor’s dissenting opinion: “Society’s progress toward equality cannot be permanently halted. Diversity is now a fundamental American value, housed in our varied and multicultural American community that only continues to grow.”

[1] ABA Profile of the Legal Profession, 2022 (data highlights include: white attorneys currently represent 81% of the profession, versus a US population share of 60.1%; and, as viewed through a historical lens using the decade 2012-2022:  Hispanic attorneys increased from 3.5% to 5.8% (against a US population share of 18.5%); Black attorneys decreased from 4.7% to 4.5% (against a US population share of 13.4%); and Native American attorneys remained virtually unchanged at .5% (against a US population rate of 1.3%). The report did not present similar historical data for Asian American or mixed race attorneys, but noted that at 5.9%, Asian American attorneys are currently represented in the profession “very close” to their US population share, and at 2.7%, mixed race attorneys are “almost identical” to their US population share), https://www.abalegalprofile.com/demographics.php; Paul Fischer, The Legal Profession is Not Doing Enough to Fix Its DEI Problem, Fast Company, Oct. 21, 2022, (Black lawyers are 22 percentage points more likely to leave their firms than white lawyers; gay lawyers are 10 percentage points more likely to leave their firms than straight lawyers; and female lawyers are 2 percentage points more likely than male lawyers to leave their current roles.”), https://www.fastcompany.com/90797820/the-legal-profession-is-not-doing-enough-to-fix-its-dei-problem#:~:text=Diverse%20lawyer%20attrition%20by%20the,34%25%20among%20associates%20of%20color; You Can’t Change What You Can’t See, 2018 (“Prove-It-Again describes the need for women and people of color to work harder to prove themselves. Tightrope illustrates the narrower range of behavior expected of and deemed appropriate for women and people of color, with both groups more likely than white men being treated with disrespect. Maternal Wall describes the well-documented bias against mothers, and finally, Tug of War represents the conflict between members of disadvantaged groups that may result from bias in the environment.”), https://nysba.org/NYSBA/Meetings%20Department/2019%20Annual%20Meeting/Coursebooks/Women%20in%20Law/1%20ABA%20Commission%20on%20Women.pdf; See also Evan Mandery, How White People Stole Affirmative Action And Ensured Its Demise, Politico, June 16, 2023 (discussing the negative impacts of decoupling racism from affirmative action), https://www.politico.com/news/magazine/2023/06/16/supreme-court-affirmative-action-college-00101963; Jessica Guynn, White Women Benefit the Most from Affirmative Action, So Why Do They Oppose It?, USA Today, June 29, 2023 (“When we talk about institutions like higher education, we see that women in general are on par with men, but we have severe underrepresentation of Black, Indigenous and Latinx folks in colleges and universities and even greater disparities for women of color” . . . “A similar trend has been seen in the workplace, according to a USA TODAY analysis of named executives at the nation’s 100 largest companies. From 2020 to 2022, white women expanded their share of senior leadership jobs at twice the rate of women of color, though women remained outnumbered 4 to 1. Despite marginal gains among men of color, white men still hold about two-thirds of the top jobs even though they account for just one-third of U.S. workers.” Citing Guynn and Fraser, How diverse is corporate America? There are more Black leaders but white men still run it, USA Today, Feb. 16, 2023,  https://www.usatoday.com/in-depth/money/2023/02/16/white-men-corporate-america-diversity/11114830002/)

[2] Douglas Belkin, Activist Behind Supreme Court Affirmative Action Cases Is Now Suing Law Firms, Wall Street Journal, August 22, 2023, https://www.wsj.com/us-news/edward-blum-lawsuits-affirmativeaction-law-firms-b8871ab1

[3] “Equality means each individual or group of people is given the same resources or opportunities. Equity recognizes that each person has different circumstances and allocates the exact resources and opportunities needed to reach an equal outcome.” The George Washington Institute School of Public Health, Equity vs. Equality: What’s the Difference?, November 5, 2020, https://onlinepublichealth.gwu.edu/resources/equity-vs-equality/

[4] Christina Pazzanese, Michigan, California speak from experience in briefs supporting Harvard, The Harvard Gazette, October 31, 2022, https://news.harvard.edu/gazette/story/2022/10/lessons-from-michigan-california-in-admissions-case/

[5] Kaisar Perry, Being Visibly Invisible: How Legal Professional From Marginalized Communities Uniquely Experience Workplace Loneliness, Institute for Well-Being in Law, 2023, https://lawyerwellbeing.net/being-visibly-invisible-how-legal-professionals-from-marginalized-communities-uniquely-experience-workplace-loneliness/

[6] “Pipeline” refers generally to the educational path taken by students who are interested in attending law school, as well as the individual’s advancement once they have entered the profession, such as from associate to law firm partner. A successful student pipeline program provides diverse students with academic support and preparation for law school, career exploration opportunities and exposure to the profession, professional and substantive skill development, and networking/mentoring opportunities.  A successful associate pipeline program provides diverse associates with meaningful mentorship and professional development opportunities, as well as a strong retention initiative program. Sealing the Leaks: Recommendations to Diversify and Strengthen the Pipeline to the Legal Profession, Report of the New York City Bar Association, Legal Education and Pipeline Task Force, May 2019, n.2, https://s3.amazonaws.com/documents.nycbar.org/files/2019527-Diversity_Pipeline.pdf