Explicit, unapologetic racism in the California courts?

The State Bar of California is the "regulatory arm of the California Supreme Court responsible for licensing and disciplining attorneys."  The State Bar's mission is "to protect the public and includes the primary functions of licensing, regulation and discipline of attorneys; the advancement of the ethical and competent practice of law; and support of efforts for greater access to, and inclusion in, the legal system."

In accomplishing its mission, the State Bar should follow the law.  Therefore, the State Bar should explain why its encouragement of employers to match the racial composition of their attorney workforce with the racial composition of California is not encouraging employers to violate the 1964 Federal Civil Rights Act.

On September 9, 2022, the State Bar issued "a special update for all California licensees on diversity, equity, and inclusion (DEI) initiatives at the State Bar."  The update states:

In early August, the State Bar released its 2022 Report Card on the Diversity of California's Legal Profession.  The report is based on surveys conducted by the State Bar. ... The findings will help inform State Bar policies and programs in furtherance of our public protection mission.  We share them also to help workplaces and members of the profession promote diversity, equity, and inclusion themselves.

Here are some key findings in the report:

  • White people account for 39 percent of the state's population yet comprise 66 percent of California's active attorney population.
  • California admitted its most diverse cohort of new lawyers on record last year, with women and attorneys of color comprising 53 percent and 51 percent of the class respectively.
  • Hispanics/Latinos are particularly underrepresented, comprising 36 percent of the state's population but only 6 percent of all California's licensed attorneys.
  • Asian attorneys comprise 14 percent of all attorneys, while Asian people make up 16 percent of the state's population.
  • Black people represent 6 percent of the adult population in California and comprise 3 percent of all attorneys.
  • Compensation and benefits are ranked as the top areas of desired improvement by all attorneys and demographic groups analyzed.
  • Women of color are underrepresented in leadership positions in all employment settings.

The "Report Card on the Diversity of California's Legal Profession" states in its introduction:

As this report shows, the profession has become increasingly diverse in recent decades, with newly licensed attorneys better reflecting California's rich and varied demographics.  However, much work remains.  The analyses highlight areas of the legal profession where the greatest opportunities for improvement exist.  The "Calls to Action" section shares strategies to help employers and attorneys advance an inclusive workplace in support of a profession that reflects the diversity of our state.

The Report Card's section entitled "Diversity, Equity & Inclusion Calls to Action" directed at "Private Sector Employers" states on page 1: "Employers and attorneys are encouraged to advance diversity, equity, and inclusion (DEI) in their workplaces, and in the profession, by taking the steps outlined below."  The steps presented on pages 2–3 include these:

Collect and analyze demographic data on recruitment, hiring, promotion, and attrition. . . .

Use the data to tailor specific interventions based on your organization's size and geographic locations to support diversity, equity, and inclusion (DEI) in recruitment, hiring, and promotion ...

Cultivate a workplace that encourages voluntary self-identification by all staff.

Create a strategic DEI plan for your organization with timelines for specific objectives, metrics, and benchmarks. ...

Set equity and inclusion goals for specific programs and teams within the organization based on communities served. ...

Support retention and promotion from within; don't rely solely on external lateral hires to meet diversity goals. ...

Evaluate and modify, as needed, your orientation and onboarding process with an eye toward inclusion. ...

Update your organization's website to be more inclusive, such as adding photos, names, and pronouns on the staff webpage. ...

Tie diversity goals to business growth objectives and opportunities.

The steps presented on pages 5–6 include:

Ensure that new entry-level hires reflect the diversity of new State Bar licensees.

Review updated demographic data for new licensees and other available DEI-focused reports annually to ensure your organization is keeping pace. ...

Analyze the demographic data among your mid-level attorneys. Determine if it reflects the diversity of new licensees from five to 10 years ago.  If not, revisit your hiring strategies to determine whether your equity and inclusion goals are being prioritized. ...

Identify and remedy supervision and promotion practices that may contribute to any diversity imbalances in your organization's leadership positions.

The Report Card concludes:

  • Despite significant growth in the proportion of attorneys who are women and people of color over the past 30 years, California's attorney population does not reflect the state's diversity, with Latinos being particularly underrepresented.
  • Women of color now comprise the largest group of newly admitted attorneys.
  • Most (80 percent) of California attorneys work in the private sector.  Increasing the diversity of this sector alone will have a transformative impact on the profession.
  • Women are overrepresented in government and nonprofit sectors, comprising 55 percent and 67 percent respectively.  Attorney salaries are among the lowest in these sectors.
  • Women of color are underrepresented in leadership positions in all employment settings. ...

The State Bar is committed to ensuring this research will translate into results.  To that end, employers and attorneys are encouraged to take the steps outlined in the "Calls to Action" section that follows.

The Civil Rights Act does not require, authorize, or encourage employers to match the racial composition of their workforce with the racial composition of people in a geographic location.  Instead, the Act prohibits this practice by stating:

It shall be an unlawful employment practice for an employer—

(1)  to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2)  to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

When debating the definition of "discrimination" as used in the Civil Rights Act, one of the Act's primary sponsors, former senator Hubert Humphrey, explained that if race is a factor, then there is discrimination on the basis of race:

Webster's New International Dictionary defines discrimination as: "A distinction, as in treatment; esp., an unfair or injurious distinction." ... What it really means in the bill is a distinction in treatment ... given to different individuals because of their different race, religion or national origin. ... The answer to this question [what was meant by "discrimination"] is that if race is not a factor, we do not have to worry about discrimination because of race. ... [T]he word "discrimination" ... is simply defined.  It means "different treatment."  That is all it means.

Senator Humphrey said the Act "would prohibit preferential treatment for any particular group."  He also said: "If the Senator can find in Title VII ... any language which provides that an employer will have to hire on the basis of percentage or quota related to color, race, religion or national origin, I will start eating the pages one after another, because it is not in there."

The State Bar's goal of matching workforce racial composition with racial composition of people in a geographic location is not new.  The faculty at the University of California, Los Angeles School of Law built their racially discriminatory admissions program on a similar goal as applied to racial composition of the student body.  (A previous article at AT discussed the policy arguments regarding UCLA Law School's racially preferential admissions program.)  Racial discrimination is bad enough when it is committed by a California government law school.  It is worse when committed by the regulatory arm of the California Supreme Court.   

Allan J. Favish is an attorney in Los Angeles.  His website is allanfavish.com.  James Fernald and Mr. Favish have co-authored a book about what might happen if the government ran Disneyland, entitled Fireworks! If the Government Ran the Fairest Kingdom of Them All (A Very Unauthorized Fantasy).

Image via Max Pixel.

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