As many of you are aware, New York state court officials are considering amending the mandatory continuing legal education (“CLE”) requirements by imposing an obligatory one-credit course addressing diversity, inclusion, and the elimination of bias. Now, while our own Monroe County Bar Association has voted unanimously to support this effort, this initiative has seen a plethora of push back from bar leaders across the state of New York.
First, there are those who opined that requiring a mandatory diversity course, which highlights biases, would be counterintuitive and have a negative effect on the support for diversity. However, this rationale fails to explain or provide any evidence to support the notion that a mandatory one-credit course would have a chilling effect on diversity. In contrast, 22 N.Y.C.R.R. § 1500 already requires a mandatory ethics course, and there has never been an outcry that such courses have the effect of creating more ethics violations.
Second, there are those who denounce such initiatives based on the fact that they already voluntarily participate in diversity CLE training, concluding that there is no need to make such endeavors mandatory. This notion is as similarly flawed as the previous rationale in that it fails to perceive or acknowledge that those who may voluntarily seek and participate in diversity training are individuals who already recognize the need. Without a mandatory element, the attorneys who otherwise would not entertain the thought of implicit bias in the law or the need for diversity wouldn’t be exposed to an alternative perspective.
Third, one of the most egregious oppositions to the proposed mandatory CLE was voiced by a bar leader who will remain anonymous. This individual stated that they view the initiative as “insulting to all members of the Bar, who have sworn an oath to uphold the U.S. and New York State Constitutions.” The bar leader goes on to state that the proposal “plants an offensive and erroneous suggestion that such bias exists in the legal community today.”
When I read this statement, I recalled the words of one of my favorite writers, the late James Baldwin. He once proclaimed on the Dick Cavett Show that he doesn’t know how people feel; he can only conclude how they feel based on the evidence provided by the state of their institutions. In that vein, let’s challenge the aforementioned condemnation of bias in the legal community. As a new attorney, I can remember walking into a court room, taking a seat with the other attorneys, and having the judge stop the court proceedings to inquire about where I was sitting. He asked if I knew that I was sitting in the wrong place, because the spot I was occupying was only meant for lawyers. This is one of countless encounters involving implicit biases that I and other minority attorneys have experienced during our careers. This is the evidence.
I will fully acknowledge that some may take these anecdotal occurrences as merely a micro-perspective of the legal community. Therefore, let’s explore the macro-perspective. Pursuant to the National Association for Law Placement (“NALP”) 2016 Diversity Report, black attorneys make up 4.11% of associates in law firms nationwide and Hispanics are only slightly better at 4.42%. NALP found that although minority attorneys seem to be adequately represented among summer associates, there is a drastic fall off for associates and then again for partners. In our own 7th Judicial District, as of 2012, only 3% of the justices were minorities and there has not been a black Family Court judge in Monroe County since Justice Charles Willis left the seat in 1987. This is the evidence.
Solutions? A recent study by the Public Religion Research Institute published in the Washington Post found that 75% of white Americans and 65% of black Americans have a completely segregated social networking system. These types of ethnic isolations become a breeding ground for implicit biases. There is not a silver bullet for implicit bias. The proposed one-hour course is not a complete elixir, but it is a beginning.
The National Center for State Courts, in its assessment entitled “Helping Courts Address Implicit Bias,” suggests that exposure and emersion among a diverse community beyond the walls of the workplace is one method in combating biases. Toward this endeavor, I invite you to join RBBA this Thursday, Feb. 9, at 5:30 at the Wall Street Bar & Grill to kick off our 2017 year of “Reconnecting, Restoring, & Rebuilding!”
Duwaine T. Bascoe, Esq., is president of the Rochester Black Bar Association and an associate in the Litigation Department at Woods Oviatt Gilman LLP.