Published: July/August 2023
Written by: Harrell Watts, Esq.
This year marks the seventy-fifth year anniversary of Justice Felix Frankfuter hiring William Thaddeus Coleman Jr., the first African American to serve as a Supreme Court law clerk. Since then, members of diverse groups have strived to follow in the footsteps of Attorney Coleman, looking to obtain clerkships at all levels of the judiciary. However, many have found the process of obtaining federal clerkships to be an insurmountable task.
The percentage of diverse law clerks highlight the legitimacy of these sentiments. An article published by the ABA Journal cited to a recent study that found of graduates with clerkships, 79.2% were white, 7.9% were Latinx, 6% were Asian, and 4.1% were Black. Ultimately, the low numbers in diversity amongst federal law clerks is an unfortunate trend that has persisted even in light of advances in opportunities for minorities in other aspects of the legal profession.
How to Improve Diversity in Clerkships?
Recently, a law professor and two judges produced an article entitled Law Clerk Selection and Diversity: Insights From Fifty Sitting Judges of the Federal Courts of Appeal. This article provides a unique look at the way judges consider diversity in the hiring process. Despite the low numbers cited above, most judges surveyed in the study ascribed positive value to racial diversity and consider race to some degree in evaluating candidates. However, many judges who view racial diversity positively still report difficulty hiring Hispanic and Black law clerks, which begs the question: how can we solve this problem?
Fortunately, the study’s additional findings provide a basis for some ascertainable solutions. First, and likely the most obvious solution, is to increase diversity amongst the judiciary. As the authors of the article keenly stated, “[i]n short, diversity among judges affects diversity among law clerks.” Current diversity numbers regarding Black judges and Black law clerks underscore the residual value representation at the judicial level can have in creating a more diverse pool of law clerks. The study estimates that Black judges, who comprised less than one-eighth of active circuit judges during the study, accounted for more than half the Black clerks hired each year in the federal courts of appeals. Over the last several years, there has been an increase in diversity amongst judicial nominees, which features over seventy women, and also includes African Americans, Asian Americans, Latinos, a Native American, and a Muslim American. As this emphasis on diversity continues to increase amongst the judiciary, law clerk diversity numbers should also improve.
Another useful solution is for judges to expand the hiring criteria. Due to the sheer volume of applicants, most judges will select from previously developed networks based on familiarity. Undoubtedly, this process makes what can be a difficult decision much less daunting. However, by leaning on familiarity, judges can miss opportunities to connect with law clerks that may bring new perspectives and ideas to chambers. Often, to find these candidates judges may need to employ a wholistic approach to the evaluation process and must be intentional about seeking diverse candidates. Unsurprisingly, the study found that judges with the most successful records of diversity hiring are those who make deliberate efforts to draw minority candidates into their applicant pool and place greater emphasis on indicators of talent besides grades and law school rank. Importantly, judges who take this approach acknowledge that intelligence and ability are not confined to grades and the name of the institution behind the candidate. These judges also recognize that supporting diversity does not mean sacrificing the work product or hiring unqualified law clerks. Instead, supporting diversity brings value to the judiciary and society as whole by ensuring that all groups are represented.
Finally, increasing diversity in clerkships requires increasing awareness about their value and demystifying the clerkship process. For over twenty years, the American Bar Association has aimed to complete those tasks through its Judicial Clerkship Program (JCP). Every year, students who might not normally consider judicial clerkships and judges, who may not normally recruit clerks from certain schools, come together to modify their views and expectations. The three-day program allows law students to explore legal issues, perform legal research, and defend their positions to colleagues and judges. Inevitably, the JCP and other similar programs create pipelines for judges to explore opportunities to hire more diverse candidates. In order to increase diversity in clerkships, more programs need to be developed that follow the blueprint of the JCP.
For young lawyers, serving as a judicial law clerk is a mark of distinction and honor that can help advance their career trajectory. In many instances, former law clerks have an advantage when pursuing careers in academia, as litigators in prestigious areas of both the public and private sector, and in securing appointments to the bench. On this basis, increasing opportunities at the beginning of a young lawyer’s career to serve as a federal law clerk may lead to increased opportunities for growth in the future. Accordingly, as the legal field continues to champion diversity, an emphasis should be placed on clerkships.
Harrell Watts, Esq. currently serves as a federal law clerk in the Middle District of Florida.
Published: April 2023
Written by: Cheo Reid & Schnelle Tonge
A primary goal of diversifying a workplace is to provide more inclusive and competent service to its clientele. In the criminal justice arena, that goal is just as important as in any other field of occupation. For many who encounter the criminal justice system, whether as a victim of a crime, a witness, or the accused, first impressions that include diversity may impact their belief in the fairness of the system. Sometimes that diversity is more than just the color of our skin, but it includes diversity of background, thoughts, ideas, age, and culture. Decisions on whether and how much to cooperate with the prosecution of a case are often influenced by a witness’ comfortability with and level of trust in the lawyers and other system professionals with whom he or she interacts, trust that is developed through effective and culturally competent communication. For an individual accused of a crime, having counsel who understands how cultural norms can impact behavior may be the difference between a successful explanation of seemingly suspicious behavior and an unfavorable verdict.
Demographic and statistical data reflect that the county is growing in its diversity
The December 2022 data published by the U.S. Census notes Florida as “the fastest-growing state in 2022, with an annual population increase of 1.9%, resulting in a total resident population of 22,244,823”.1 Recent census data reflect 52.6% of Palm Beach County population reporting as White alone, not of Hispanic or Latino origin, 20.1% reporting as Black or African American alone, 23.9% reporting as having Hispanic or Latino origin, and 3% reporting as Asian alone.2 Palm Beach County hosts the fifth largest school district in the state and services students who speak 150 languages and dialects.3 The Florida State Courts Administrator reports a steady increase in use of language interpreter services in Palm Beach County court cases in each of the 4th quarter reports published for the last several years.4 With an increasingly diverse population, the demographics of the victims, witnesses, and defendants in criminal cases continue to become more diverse which requires those representing the interests of the citizens and defendants to be diverse and operate with cultural awareness.
The need for diversity amongst the lawyers in the criminal justice system extends beyond aesthetics. Diversity in the workplace leads to benefits from both an internal and external perspective. A diverse workforce brings people with different experiences, skills, perspectives and insights together to think creatively on how to solve problems and informs better decision making. Across the nation, criminal justice professionals have been engaging in discussions regarding social justice, implicit bias, and ethnic disparities in the system.
As communities have become more aware of the long-term effects of systemic racism, lawyers working in the system have an increased duty to respond to the residents and defendants they represent in a culturally competent manner. Being aware of and understanding cultural norms and recognizing the impact of historical injustices on behavior patterns and attitudes, help to establish trust in the fairness of the system for all of its participants.
Cheo Reid is an Assistant State Attorney who serves as the Chief of the Juvenile Division. He is a member of the Palm Beach County Bar Association, F. Malcolm Cunningham, Sr. Bar Association, and the National Black Prosecutors Association.
Schnelle Tonge is an Assistant Public Defender who serves as the Chief of Client Services and Mental Health Division. She is a member of the Palm Beach County Bar Association.
Written by: Nalani Gordon & Marc Hernandez
Published: March 2023
In 1987, Congress first declared March to be Women’s History Month as a way to recognize and celebrate the achievements of women. This recognition would be incomplete without acknowledging the contributions of women lawyers in particular. And while celebrating the trailblazing work of women in the law, we should also acknowledge the historical and current realities of our profession, so we can work toward what the American Bar Association refers to as a “more inclusive, just, and equitable profession” in the future.
A century and three years ago, women had no constitutionally guaranteed right to vote. The eventual passage of the Nineteenth Amendment was far from preordained. It was the result of decades-long relentless work of countless individuals including suffragists like Sojourner Truth, Susan B. Anthony, Elizabeth Cady Stanton, and the many others who supported them, marched with them, and demanded change.
In 1970, women comprised only 3 percent of the legal profession. A decade later, Sandra Day O’Connor was appointed to the Supreme Court of the United States, becoming the first female associate justice on the high court. However, a decade after that, in 1990, the Florida Supreme Court’s Gender Bias Study Commission concluded that “discrimination based solely on one’s gender was a reality that permeates Florida’s legal system.”
Fortunately, in the ensuing years the number of women serving as U.S. Supreme Court justices has increased. At present, that number is four, but four is a minority. Ruth Bader Ginsburg, a pioneering Supreme Court justice and champion for women’s rights, famously once said that there would be enough women on the Supreme Court “when there are nine.” Justice Ginsburg acknowledged that some were shocked by this statement, but as she explained, “there’[s] been nine men, and nobody’s ever raised a question about that.”
Currently, the number of women in the legal profession is closer to 38 percent according to the Florida Bar. Yet, this is far from an accomplishment given that women make up 50 percent or more of first-year law students, indicating that many women are being forced out of the profession or choosing to leave. Moreover, the women who remain in the profession are not proportionately represented as partners in law firms, judges, or in other top-level positions like deans of law schools. In Florida Bar surveys, women lawyers also have reported that they continue to be adversely and uniquely affected by gender stereotypes, harassment, unequal pay, and work-life balance issues. As Justice O’Connor recognized:
Despite the encouraging and wonderful gains and the changes for women which have occurred in my lifetime, there is still room to advance and to promote correction of the remaining deficiencies and imbalances.
In other words, it is far too early to declare victory in the struggle to eliminate bias against women lawyers and unjust barriers to their entry in the legal profession. We have work to do.
As a bar and a profession, we have a number of opportunities to promote the advancement of women lawyers.
One avenue of support and empowerment is available through voluntary bar associations and civic organizations like the Florida Association for Women Lawyers (FAWL). FAWL has a long track record of working toward gender equality in the legal profession and the community as a whole. The association also plays an instrumental role in promoting the leadership of women lawyers by encouraging them to join the judiciary, committees in the Florida Bar, and executive boards for non-profit organizations. Similarly, the Sheree Davis Cunningham Black Women Lawyers Association, which was recently founded in 2021 by three stellar attorneys from our community, focuses on empowering and supporting black women in the legal profession. This organization will undoubtedly have a profound impact on the women lawyers in Palm Beach County and beyond.
In addition to participating in voluntary bar associations, attorneys have the responsibility on an individual, organizational, and societal level, to work toward a “more inclusive, just, and equitable profession.” As individuals, we can mentor, support, and invest in women lawyers. All of this can be done without a formalized structure and without significant effort. As members of organizations and society, we can educate others regarding the value of representation, ensure that women are heard, and give women the same opportunities that are available to others. The key is speaking up and acting because if we wait for someone else to do so then no one will.
The responsibility for creating a more equitable legal profession—a profession that demands equality under law—lies with us. And if we faithfully discharge our responsibility, we can take pride in the fact that we have not only honored the work of past pioneers but also the work of those who still walk among us.
Nalani Gordon is an associate at Gunster. Her main areas of practice are employment law, Title IX, and business litigation. Marc Hernandez is a board-certified appellate attorney at Lytal, Reiter, Smith, Ivey & Fronrath, focusing on personal injury, medical malpractice, and products liability cases.
Published: January 2023
Written by: Bryan Anderson
Does diversity benefit law offices in quantifiable ways? Law offices — including private firms, corporate, government and not-for-profit law offices — are service businesses. More profitability is better for firm owners. Better results serve clients and the firms. Firms want to meet clients’ preferences to win business. What evidence is there whether law firm diversity supports these interests?
Diverse law firms make higher profits
Statistical analysis of law firm data shows that more diverse firms earn more money.
Dr. Evan Parker specializes in statistical analyses for the legal market. His work has been cited in the American Lawyer, the ABA Journal and the Canadian Lawyer. In a 2018 study controlling for a variety of factors, Dr. Parker concluded with a high degree of statistical confidence that diverse law firms make higher profits. Missing in Action: Data-Driven Approaches to Improve Diversity, Evan Parker (2018).
Dr. Parker’s analysis shows that having diverse legal teams was a significant characteristic factor for law firm profitability, ranked after law firm prestige, attorney leverage, geographic concentration and whether a firm performs hedge fund/private equity work. Having diverse legal teams ranked ahead of practice area concentration, or having corporate, energy and environment, or merger and acquisition practices.
Dr. Parker concluded that partners take home significantly more money at American Lawyer 200 firms with high diversity. The median diversity “dividend” reflected in the difference between firms’ partner distributions showed that the gap between low and high diversity firms approaches $180,000 per year per partner.
Diversity improves litigation settlement and trial results
Statistical analysis of real-world data shows that diverse female-male civil trial teams are more successful than male-male civil trial teams. Lack of diversity was associated with lower likelihood of success and worse trial outcomes.
Attorney, professor and researcher Randall Kiser of the consulting firm DecisionSet conducted a study of 40-plus years of data comparing final settlement offers versus trial verdict and damage awards in both New York and California. Professor Kiser assessed whether trial team gender composition could predict win rates, decision error rates, and settlement positions.
Professor Kiser’s approach to assessing trial team successes and errors focuses on demands, offers and awards in cases that did not settle. Cases that do not settle and are tried resulting in an award have three possible outcomes in his method of assessing results:
- Plaintiff error. The award is lower than the defendant’s offer.
- Defendant error. The award is higher than the plaintiff’s demand.
- No error. The award is somewhere between the final offer and the final demand.
Professor Kiser’s statistical analysis showed that female-male defense trial teams won 7% more of their cases than all-male teams, had error rates that were 9% lower, and underpriced their settlement offers far less frequently, amounting to an average savings of $2.6 million in defendant liability. His analysis showed similar benefits of mixed female-male trial teams for plaintiffs.
Professor Bill Henderson at Indiana University Maurer School of Law commented on Professor Kiser’s findings as showing that “[s]tated another away, lack of diversity is really expensive.”
Client demands for diversity
Diversity is a competitive advantage over other firms in obtaining significant business clients and matters.
Many companies set diversity requirements for outside counsel. For example, Facebook’s legal department requires that women and ethnic minorities account for at least 33% of outside counsel. During 2021 the Coca-Cola Company increased its target for minority and women-owned law firm legal spending from 1% to 10% of its outside counsel spending.
Beginning in 2019 more than 200 company chief legal officers signed on to an open letter prioritizing spending on firms with strong diversity and inclusion programs, partnering with law firms to promote diverse talent at every stage of the pipeline, and hiring women and minority-owned firms.
Data shows that more diverse firms are more profitable and that diverse teams get better results. More diverse firms have a competitive advantage in obtaining work from clients who value and increasingly demand diverse teams.
Diversity in law offices is also considered desirable for qualitative reasons. These include accessing a wider and deeper attorney talent pool, growing a larger network of firm connections useful to clients and for firm business development, language capabilities, and the firm and its attorneys being more relatable to more diverse clients.
Perhaps these qualitative factors help account for the financial benefits of diversity discussed in this article. Research would be useful in assessing the quantitative dollars and cents effects of these benefits.
The bottom line is that law offices seeking improved financial performance and results should foster diversity in their offices because doing so is a good business decision as well as the right thing to do.
Bryan Anderson is a volunteer hearing officer for the School District of Palm Beach County and assists the Legal Aid Society on fair housing civil rights matters.
Published: December 2022
Written by: Nalani Gordon
Conversations surrounding diversity and inclusion have become trending topics in recent years. Race, gender, and sexual orientation are usually at the forefront of these conversations. However, physical and mental disabilities are not generally included in the diversity conversation. The reality is that, at every level, the legal profession has significant work to do as it relates to creating an inclusive environment for people with different abilities.
The Center for Disease Control and Prevention reports that 61 million adults in the United States live with a disability. This means that 26% of the population, or 1 in 4 adults, has a disability. Despite such high numbers, the National Association for Law Placement’s 2021 Report on Diversity in U.S. Law Firms indicates that only 1.22% of the lawyers surveyed self-identified as having a disability. The Report notes the scarce numbers of attorneys reporting disabilities but offers no theory or possible explanation for the statistic. One might wonder whether the Report’s numbers are a result of the fact that lawyers are uncomfortable with disclosing their disability or are living with an undiagnosed disability. The more pressing question is: What can we do to eliminate the barriers and social stigmatization for individuals with disabilities who want to practice law?
At the law firm level, employers can intentionally promote programs that benefit attorneys with disabilities which will also, in many instances, benefit all attorneys by creating a more accessible work environment. The American Bar Association (ABA) has implemented a pledge which calls on legal employers to affirm their commitment to diversity, specifically including people with disabilities. The ABA’s guidance offers practical steps that employers can take to foster a welcoming environment, such as starting an affinity group, conducting disability awareness and bias elimination training, and offering scholarships and fellowships for law students with disabilities. By taking practical steps toward embracing individuals with disabilities, legal employers can make a tangible impact on workplaces by bringing disability inclusion to the forefront of their diversity efforts.
Recently, the Florida Bar’s Legal Fuel Podcast featured neurodiversity expert, Haley Moss for a conversation on “Understanding Neurodiversity in the Practice of Law.” Haley (who happens to be one of my favorite law school classmates) is recognized as Florida’s first openly autistic attorney. She offered profound insight regarding neurodiversity and disability inclusion in the legal profession. One of the most insightful tidbits from Haley’s interview is Haley’s comments regarding the idea that we generally think about disabilities from the perspective of offering accommodations under the Americans with Disabilities Act. But legal employers can do more to support diverse attorneys. Most importantly, law firm and law department leaders can work to create a culture of acceptance and openness so that people with disabilities can feel comfortable with sharing their unique contributions and disclosing their individual needs.
As a profession, the legal community is making positive strides toward inclusion. In September 2020, the Florida Supreme Court amended the Rules Regulating the Florida Bar to remove the rule that treated members of the Bar who had a history of “drug, alcohol, or psychological issues” as conditionally admitted members of the Florida Bar. The rule now broadly allows the Bar to admit members under consent agreements without any reference to psychological issues. However, this rule change is recent. The vast majority of attorneys currently admitted to the Florida Bar were admitted at a time when disclosing a mental or psychological disability could have negatively impacted their admission to the Bar. As Haley Moss notes in her interview, legal professionals, including members of the judiciary, would benefit from additional education regarding working with diverse clients, witnesses, and co-workers.
At the individual level, each of us can educate ourselves on disabilities and biases. We can also do our best to listen and treat all of our colleagues with dignity and respect. Haley’s interview is an excellent resource on the appropriate language and approach for conversations with colleagues who have disabilities (Hint: listen without judgment and ask how you can support the individual). Our clients and businesses benefit from working with attorneys with disabilities because each person brings a talent and perspective that advances our clients’ interests and our profession as a whole. Inclusion for all attorneys, including attorneys who have disabilities, is the key to ensuring that the Bar is reflective of the communities that we serve.
Nalani Gordon is an associate at Gunster. Her main areas of practice are employment law, Title IX, and business litigation.
Published: November 2022
Written by: Jason McIntosh
The social and economic benefits of a diverse, inclusive, and equitable legal industry have been highlighted, discussed, and emphasized frequently in recent years. The Florida Bar recognizes that minorities are significantly underrepresented in the legal profession when compared with the general population. Fair representation and equal access are crucial to an unbiased system of justice. Tangible progress towards improving that disparity has been shown in data collected by various organizations. But what remains discouraging is how much that progress slows each step up the legal profession’s ladder.
According to the 2020 Census, Florida’s race and ethnicity demographic breakdown was 73.2% white, 17.2% Black, 3.9% Asian with 26.5% of the population identifying as Hispanic or Latino.
According to the Florida Bar Economics and Law Office Management Survey, in 2021, 81 percent of Florida Bar members were white, 11 percent Hispanic/Latino, 4 percent Black/African-American, 1 percent Asian, and 3 percent were categorized as Other.
At the law school level, the numbers have shown the greatest level of progress. Over the last 20 years at least 1 out of 5 law school students can be classified as belonging to a racial or ethnic minority, according to data collected by the American Bar Association (ABA).
As one may expect that progress has revealed itself in overall gains year over year in the placement and hiring of diverse candidates at summer associate/clerk level. According to the National Association for Law Placement (NALP) Report on Diversity at U.S. Law Firms, this year’s summer associate class at U.S. Law firms was ‘the most diverse ever’. The percentage of summer associates of color grew by nearly 5 percentage points in a single year, the largest gain the 29 years that NALP has been tracking the information. Women made up more than half of all summer associates for the fourth year in a row, and the proportion of LGBTQ summer associates increased to 8.41% which was also a historic high.
As noted by NALP Executive Director James G. Leipold in the report “The challenge for the industry is to retain, train, develop, and promote this talented and diverse pool of new lawyers so that 5 years from now the associate ranks as a whole reflect similar diversity and representation, and 10 or 15 years from now we can celebrate a partnership class that is similarly diverse.”
And therein lies the problem. Progress is much slower amongst the associate ranks and certainly when it comes to partnership. Among the firms that submitted data to NALP, lawyers of color accounted for less than 28% of all associates in 2021, and less than 11% of law firm partners. Additionally, when you break down the racial demographics even further the year-over-year growth among Black associates and partners all lag behind the corresponding numbers of Asian and Latino attorneys. Black lawyers accounted for 5% of associates in 2021 and 2% of partners. The data shows 6.1%/2.86% and 12.5%/4.3% for Latinos and Asian attorneys respectively.
The numbers are even more alarming gender dynamics are accounted for. According to Leipold, “Less than 4% of partners are women of color… [with] Black and Latinx women each continued to represent less than 1% of all partners ins U.S. law firms”
The optimist in me is hopeful that despite the incremental increases that the trend continues upward as firms continue to see the financial and social benefits of diversity, equity and inclusion. However, the cynical part of me sees the recent data as a potential outlier in response to much of the civil unrest and many social justice movements that we saw after the killings of George Floyd, Breonna Taylor, and others in 2020.
In the aftermath of some of the protests, demonstrations, and demands for change, many corporations made it a priority to increase the diversity of their personnel, the spotlight of minority-created content services and goods, and increase their support for minority businesses and charitable causes. As often happens with our news cycle hot button issues are out of sight and out of mind. It’s easy to focus on an initiative when it’s the current event, but an issue that is as complex as this will take years of intentional and deliberate action to correct.
There is no doubt that the disparity has been recognized and efforts are being made to rectify the issue. However, making sure these changes continue to trickle up the legal hierarchy is where the real challenge lies.
As co-chair of the Palm Beach County Bar Association’s Committee for Diversity and Inclusion and as a Black partner at a reputable firm in the county I want to prioritize taking this challenge head-on. That is why we’ve created a new “Law Firm Outreach” subcommittee chaired by Amelia Jadoo. We have plans to try and identify, spotlight, and give a platform for qualified diverse attorneys and help to put them in positions to have success.
Jason McIntosh is a partner at Lytal Reiter Smith Ivey and Fronrath, and he practices in the area of Personal Injury
Published: October 2022
Written by: Marc Hernandez
This year the President of the United States appointed Justice Ketanji Brown Jackson, the first female African American justice, to the U.S. Supreme Court. In addition, the Governor of Florida appointed Justice Renatha Francis, the first Jamaican American and second black woman, to the Florida Supreme Court. These appointments are not only a success story for the justices themselves but also a success story for diversity in the judiciary. But whether this represents the start of a new trend, or a relatively isolated occurrence remains to be seen.
The American Bar Association recently released its annual profile of the legal profession for 2022. In its 124-page report, the ABA analyzed, among other things, the diversity of the judiciary. The ABA found the “federal judiciary has become increasingly diverse over time,” especially since 2021. However, the ABA explained that progress was uneven, and “[d]iversity varies year by year.” For example, from 2020 to 2022 the percentage of African American or black judges on the federal bench increased slightly from 9.5% to 11%. In the same period, the representation of Hispanic federal judges grew from 6.5% to 7.7%, while the share of Asian Americans grew from 2.6% to 3.8%. Finally, the percentage of female federal judges rose from 27% to 30%.
At first glance, these statistics indicate positive, albeit incremental progress at increasing diversity in the judiciary. Yet, the numbers need context. Although black judges comprise 11% of the federal bench, they are underrepresented compared to the total black population in the U.S., which is 13.6%. Hispanics fare worse as the percentage of Hispanic federal judges, 7.7%, is less than half that of their share of the U.S. population, 18.9%. Likewise, women account for 51% of the U.S. population but only 30% of federal judges. Three states—Nebraska, North Dakota, and Idaho—have absolutely no female federal judges.
Some may argue that if minority judges are compared to the pool of U.S. lawyers—rather than the entire U.S. population—they are not underrepresented. The ABA concedes this point is factually true, but the implied conclusion—that diversity is not an issue and full representation has been achieved—is not. The reason the percentage of Hispanic federal judges exceeds the percentage of Hispanic lawyers—but not the percentage of all Hispanics in the U.S.—is because the percentage of Hispanic lawyers is exceedingly low to start. Only 5.8% of all lawyers are Hispanic even though 18.9% of Americans are Hispanic. Of course, this begs the question: why is the percentage of Hispanic, black, female, and other minority lawyers lower than their share of the U.S. population?
We should all be concerned with the answer to this question if we hope to eliminate the vestiges of racial prejudice and other unjust systemic disadvantages. Reasonable people can disagree on the best policies to achieve that objective. For decades, one tool has been race-conscious admissions policies at universities and other educational institutions. Under current law, universities may consider—i.e., they are not required to consider—race or ethnicity as one of many factors in the process of evaluating each applicant as an individual. As the U.S. Supreme Court held in Grutter v. Bollinger, universities have a compelling interest in attaining a diverse student body and the educational benefits flowing from that like promoting cross-racial understanding, breaking down racial stereotypes, and enabling students to better understand persons of different races, promoting learning outcomes, preparing students for an increasingly diverse workforce and society, and preparing students as professionals.
However, the continued validity of Grutter, which was a 5-4 decision, is now in doubt. This term the U.S. Supreme Court is poised to reconsider Grutter in two cases brought by Students for Fair Admissions against Harvard and the University of North Carolina. In both cases, the petitioner explicitly asks the supreme court to prohibit the use of race-conscious admissions policies by universities. The ABA has filed an amicus brief in opposition and asked the supreme court to affirm Grutter. The ABA maintains it has “a profound interest” in the two cases because “[r]acial and ethnic diversity in the legal profession cannot be produced without diversity in undergraduate institutions and law schools that serve as the pipeline to the legal profession.” In other words, law schools are the training grounds for future lawyers, and if fewer diverse students are admitted to law schools then fewer will have the opportunity to graduate, practice, and become judges, professors, or partners later in the professional pipeline.
Regardless of the Supreme Court’s eventual decision in the Students for Fair Admissions cases, most if not all should agree with the ABA’s view that a diverse bench and bar are critical to minimizing implicit bias among lawyers, and to “inspiring greater public faith in the rule of law.” The methods for achieving that diversity may change but the goal should not.
Marc Hernandez is a board-certified appellate attorney at Lytal, Reiter, Smith, Ivey & Fronrath, and a Palm Beach County native.