Prejudice and the Profession

By David A. Saichek

February it was my pleasure to welcome participants to a conference sponsored by our Diversity Counsel Demonstration Program. The conference was organized by Gerardo H. Gonzalez, co-chair of the Bar's Diversity Outreach Committee, and was moderated by Justice Janine P. Geske. The program offers networking and a forum to discuss barriers to diversity. It gives a diverse group of lawyers an opportunity to visit with corporate counsel and human resources people they might not otherwise meet. Gonzalez states the premise, "There are many barriers to full participation. One significant factor is that minority and women lawyers often have few opportunities to meet those who retain outside corporate counsel." Both Gonzalez and Justice Geske have been prime movers in this effort. The committee already has gathered an impressive list of participating corporations, and minority- and majority-owned law firms.

In addition to the Diversity Counsel Demonstration Program, our State Bar has a Minority Lawyers Placement Committee co-chaired by James Friedman and Celia Jackson. That committee works hard to provide opportunities for minority law students to work in Wisconsin law firms and corporations, and in the public sector. It also encourages the hiring and retention and promotion of minority lawyers.

Black population in the United States is about 12 percent. But only 3.3 percent of lawyers are black. Minority lawyers generally represent minority people and businesses in communities that are mainly populated by minorities. Minority attorneys are rare among those who represent corporations and other large organizations.

Discussion of racial inequality in the legal profession may cause us some discomfort. But that is not sufficient reason to put it out of our thoughts. Lawyers and judges have the ability and professional obligation to oppose racial, ethnic and gender discrimination in all of its direct and subtle forms.

The reasons for persistence of inequality, in a nation that publicly proclaims justice and equality, are endlessly debatable. Victoria Roberts, first female black president of the Michigan State Bar, gives her thoughts on why inequality of treatment continues its assault:

"The divide persists, I believe, because there is an unwillingness in this country to admit that there is a value that whites place on being white, and that in almost all spheres of life, in both the public and the private sector, practices are engaged in which are designed to preserve that value." ¹

In 1996 the Michigan State Bar established a Task Force on Race, Ethnic and Gender Issues in the Courts and the Profession. They will be following up on the recommendations of a Michigan Supreme Court task force that reported in 1989.

The Wisconsin Supreme Court had a task force that reported on gender bias in 1991, followed by a gender equality committee that reported in 1995, and might, within the next year, consider establishing a task force to explore racial and ethnic bias. Our Diversity Outreach Committee is studying reports from other states with the idea of recommending a useful method for exploring these issues in Wisconsin. As of July 1996, 27 states had created such task forces and 20 had prepared reports, of which 15 were in various stages of implementation. The committee is expected to complete its studies and report to the Board of Governors within the next year

The ABA advises that each reporting state has concluded from the research and evidence that widespread bias against minority and ethnic groups operates in the justice system just as it does in the wider community. At least 13 states plus the District of Columbia have adopted various anti-bias ethics rules in response to bias problems exposed by their studies. ²

Those who feel that recent advances for minorities, particularly in employment, have already resulted in equality in hiring, pay and promotions are sadly mistaken. One need only review the recent fiasco at Texaco and the resulting settlement. Fortunately, some large corporations recognize the value of pushing the legal profession toward diversity. These include American Airlines, Aetna Life & Casualty, General Motors and AT&T. Increasing minority representation is not only right but it also is good business. ³

The judiciary also suffers from pervasive inequality. Although there has been some recent improvement, minorities remain severely underrepresented on the bench in Wisconsin. At an annual dinner sponsored by the Wisconsin Association of Minority Lawyers, I heard then Bankruptcy Judge Charles Clevert deliver dismal statistics demonstrating inequality in both the state and federal judiciary. I hope Judge Clevert will update his convincing speech for publication in the Wisconsin Lawyer. He now serves as a U.S. District Judge for the Eastern District of Wisconsin.

In the U.S. courts, in July 1995, of the 1,527 sitting federal judges, 246 were women, only 82 were black, and a mere 52 were Hispanic, according to the Administrative Office of the U.S. Courts. There still were no black judges on one-third of the U.S. Courts of Appeals. Surely the profession and our judiciary should mirror the public. H.T. Smith of the National Bar Association makes a good point:

"A more diverse judiciary will minimize prejudice and insensitivity from judges, and engender more respect from the public." ⁴

Mr. Smith did not state whether there were any Asian or Native Americans on the federal bench.

Most educated people, including lawyers, should not attach undue emotion to phrases such as "reverse discrimination" and "affirmative action." Affirmative action is nothing more than proactive efforts to eliminate the effects of discrimination. It need not involve quotas or statistical straightjackets. And, contrary to popular belief, reverse discrimination is prohibited by current law and is relatively rare. ⁵

If it is fair for a white male lawyer, urban or rural, to ask what has all this to do with me and my law practice, then it might also be fair to answer that he has missed the point. Law cannot and should not be practiced in a moral vacuum. This is an issue that comes down to right and wrong, a choice of values. Lawyers have the skill and standing to fight discrimination and help end the moral plague of racial inequality.

In the words of Paul Igasaki, vice chair of EEOC, "In the end, this debate ... is about what is right. Do we still want or need to commit ourselves to overcoming the discrimination that pervades our society?" ⁶

And in the eloquent summation of Victoria Roberts, "In the end, the issues and the questions are moral ones. As Andrew Hacker ended his book, let me pose the same question: Is it right to impose upon members of an entire race a lesser start in life, and then expect from them a degree of resolution that has never been demanded from the white race? If we can all answer 'no' to this question, then we can begin to close not only the race divide, but others as well." ⁷

Using my own predilection for inelegant expression, "Bigotry stinks!"

Endnotes

1 The Great Race Divide and Diversity in the Workplace, Mich. B. J., 136 at 137 (Feb. 1997).

2 Task Force on State Justice Initiatives, ABA Liaison, p. 10 (Dec. 1996).

3 Lawyers and Clients, Wall St. J., B7 (June 19, 1995).

4 H.T. Smith (past president of the National Bar Association), Toward a More Diverse Judiciary, ABA J., p. 8 (July 1995).

5 Paul Igasaki (vice chair of EEOC), The Persistence of Inequality, remarks delivered May 4, 1995, to the Pennsylvania Bar Association.

6 Id.

7 Supra n.1 at 140.

Wisconsin Lawyer