Jan. 17, 2020
Solving the inclusion conundrum: Reflections on equity, inclusion and making change in the legal profession
Legal profession surveys consistently show a persistent, systemic inclusivity problem: at 70% male and 88% white it is one of the least racially and gender-diverse professions in the U.S. Over 80% of all federal judicial clerkships are secured by white applicants. At large U.S. law firms, women are only 20% of full equity partners and minorities are just 9% of full equity partners.
Legal profession surveys consistently show a persistent, systemic inclusivity problem: at 70% male and 88% white it is one of the least racially and gender-diverse professions in the U.S. Over 80% of all federal judicial clerkships are secured by white applicants. At large U.S. law firms, women are only 20% of full equity partners and minorities are just 9% of full equity partners. Professor Meera Deo's "Unequal Profession" demonstrates how race and gender dynamics affect the legal academy.
Through my experience as editor-in-chief of the "California Law Review," I have seen firsthand the power of inclusive and diverse teams. Our journal is about 50% people of color and 59% women. About 30% of our editors identify as LGBTQ+ and nearly a third are first generation professional students.
Although representation certainly matters, when it is the sole goal, deeper issues of inclusion remain unaddressed. At CLR, we encourage editors to critically engage with the variety of marginalized perspectives on our journal and create meaningful connections with people who have different experiences. During my tenure, we did not eradicate prejudice on the law review. However, we knew that CLR is most diverse workplace we would encounter in our careers, so we tried to make it a just and inclusive one by building collective capability in matters of equity and confronting institutional pressures head-on.
When students from underrepresented backgrounds make law review, they may feel burdened by the pressure to lay the foundation for the next class of student editors to be even more diverse than theirs. How do we satisfy this desire among marginalized students and allies to make broad, systemic changes? And how can we make the conditions of law review less elite and exclusive when we are steeped in and benefit from its eliteness and exclusivity? I found the answers in three guiding principles.
Senior leaders must regularly have uncomfortable conversations about equity and inclusion.
Leaders must ask tough questions and accept critiques like "our climate is anti-black" and "our selection process privileges wealthy students." Being an inclusive leader means accepting that you will often be wrong; being patient with people who disagree with you; and embracing your responsibility to drive change.
At times I was embarrassed when a student editor told me that I did something wrong. Now, as I reflect on those moments, I realize they were opportunities: one's failure to be inclusive is an opportunity that can prompt us to make change. When we commit to learning from failure, it empowers us to transform who we are and how we interact with our ever-changing world, to right wrongs and remedy harms, and to renew our commitment to inclusion.
Equity and inclusion are everyone's responsibility.
Too often, organizations address inclusion by hiring an outside diversity consultant for implicit bias training. This is at best a limited solution. Such training encourages employees to engage in superficial, standalone tasks that do not inspire sustainable change. And implicit bias training is often decontextualized; it does not teach participants how to apply the lessons in their day-to-day work and studies show that such training is often ineffective. Moreover, these trainings frame inclusion as something exterior to the organization, absolving everyone (including leadership) of responsibility for driving inclusion.
If inclusion is truly a core organizational value, then it is everyone's problem, not an outside consultant's remit. And organizations that delegate the work of inclusion to an internal diversity department underestimate its scope, too. Inclusion must be everyone's personal responsibility. If it's not, exclusion will flourish.
Equity and inclusion efforts must be critical and contextual.
Diversity trainings implicitly communicate that prejudices are individual problems, not inherent institutional features. In "On Being Included: Racism and Institutional Life," Sara Ahmed urges us to see racism not as a problem of "individuals with bad attitudes" (although they do exist) because this "underestimates the scope and scale of racism."
At CLR, we critically and consistently interrogate our core values, purpose, and organizational structure -- not just individual behavior. Removing conditions that hinder diversity means stripping the journal of its 150-year-old norms. This is not easy work; it involves confronting a fundamentally existential crisis. It means reexamining our traditions, asking why we do things a certain way, and being skeptical of the answers.
This is why we encourage critical thinking among our student editors. Senior editorial leaders are expected to conduct "climate check-ins" with associate editors. We engage in critical conversations about identities to help students articulate the precise conditions on the journal that perpetuate exclusivity, dismantle those conditions, and ultimately replace them with inclusive ones. We also annually revisit our assessment criteria for the write-on competition to minimize subjectivity and unconscious bias. Finally, we regularly update our style guide to include best practices for inclusive language in legal scholarship.
The Road Ahead
The legal profession's inclusion efforts will improve if we view equity and inclusion as inherently meaningful. This means being committed to inclusion because we are empathetic to those who are different from us, not simply because it will improve our bottom line, because the client said so, or to appease law student activists. It only works if you mean it.
Inclusion doesn't just benefit marginalized people; equity makes the law better for everyone. Plus, the cost of being inclusive is significantly outweighed by its social benefits: enhanced teamwork, empathy for one another's experience, and a more just work environment. And isn't justice, at its most granular level, why we all chose to become lawyers anyway?