July 05

Editor's Page

Diversity — have it your way

by Bar News Editor Lindsay Thompson

June 3, most of which the Board of Governors devoted to whom we choose as leaders, and how we choose them, was a fascinating glimpse of the disconnect between the changing makeup of WSBA membership and institutional responses to it.

On the ground, diversity just happens. We have more and more members of various mixes of race. The Census started giving people more — and more realistic — choices in 2000. Washington has the third-largest population of same-sex couples in America, another fact we know because the Census got around to asking about it in 2000.

Women are now commonly the majority of entering classes at Washington’s three law schools. We’ve had a majority of women on the Supreme Court, masses of legislators, and both our U.S. senators. Minority communities continue to grow. The number of specialty bar groups evolving out of the broad heading of “Asian/Pacific Islander” in recent years is remarkable. Openly gay people serve as judges and legislators in Washington. The Board of Governors’ creation of two at-large and one young-lawyer seat four years ago has opened a remarkable new avenue for members to reach the long table — people who’d likely never have thought to try before. Dozens of such people have met with the Board these four years, and are also being seeded into the Bar’s committees and task forces. Diversity works.

At the institutional level, however, diversity is something to be owned, and access to it controlled. In legislatures and the federal congress, it’s something to restrain, if not repeal outright. In the courts, it’s either something to recognize as a reality and adapt to, or something whose existence can be denied because constitutional framers didn’t talk about it one or two centuries ago.

At WSBA, diversity — which was kind of an eyes-rolled, OK, put it in, thing when the association’s long range plan was developed in the ‘90s — is in vogue. There’s a new diversity advocate at the Bar office, Joslyn Donlin, who, in her first year on the job, is struggling to juggle the pent-up demand rising up from real-life changes in the diversity of the profession. Bar leaders talk about it a lot. Conferences about it are held. But it’s a narrowly defined, non-controversial definition WSBA uses. Basically, it’s women and ethnic minorities, with disability, championed by Governor Lonnie Davis since he joined the Board last year, making a strong advance. In short, if there’s a body of law in place to protect one from discrimination, institutional diversity efforts seek to make real the promise of those laws. The Bar asks members to voluntarily describe themselves by age, gender, race, disability, and the like, consistent with this definition. They use that data to try and maintain diversity in appointments.

If you’re not within the definition — the diversity status quo — you’re pretty much on your own. And even if you think you are, you might not be, depending on whom you ask, or who tells you. It has been interesting to see some in minority and specialty bar groups arguing that people who haven’t moved up through the ranks of those groups in the prescribed manner, and who don’t hold the consensus view of leadership, really shouldn’t be seriously considered. It makes sense, if you think about it. If the at-large BOG seats are filled in part on diversity considerations, diversity becomes a tool for getting on and getting one’s program advanced. And political influence has long been considered a commodity. What one doesn’t control, someone else will. If you can draw the diversity status quo less broadly, even better.

You can see the same tensions in WSBA governance debates. Anyone can run for president, but the actual selection process favors insiders who’ve moved up the prescribed way, and hold the consensus views. We need more women and minorities in high office, but now never seems to be the right time. Sometimes the WSBA includes sexual orientation in diversity, but doesn’t develop the voluntary data it seeks of others, thus rendering the practical application of inclusion ineffective. As a former law partner of mine used to say: “Not measured, not managed.”

WSBA’s task force on the election of governors has proposed a model to somehow improve access, and thus diversity, by making the way districts elect governors more rigid. Some minority and specialty groups have argued diversity will be advanced by their prescreening of applicants for Board seats, in effect giving the Board of Governors less choice, not more. Yet one of the most often-expressed delights of the at-large selection process, year in and out, has been the appearance of members who live completely outside the ambit of insiders and bar lifers. It’s fascinating to see some group leader semaphoring the Board that, of two lawyers of the same race, one should get more consideration than the other.

Short term institutional efforts to control diversity are illogical and frustrating, underscoring the old bar work maxim: “Nothing should ever be done for the first time.” But in the long term, real-life diversity will just continue on, and institutions will probably always struggle to keep up, like the French revolutionary leaping up from lunch as the mob streamed by, shouting: “I must follow! I am their leader!”

Lindsay Thompson indulges Jacobinist musings on Salmon Bay in Seattle. For personal correspondence, contact him at tradelaw@hotmail.com. E-mail letters to the editor to letterstotheeditor@wsba.org or mail to WSBA, Attn: Letters to the Editor, 2101 Fourth Ave., Ste. 400, Seattle, WA 98121.