Monday, September 11, 2017

Diversity and Inclusion in Law School and the Legal Profession By Shoba Sivaprasad Wadhia

Shoba_wadhia_faculty2

Diversity and Inclusion in Law School and the Legal Profession

By Shoba Sivaprasad Wadhia*

Good afternoon. My name is Shoba Sivaprasad Wadhia and it is my honor and privilege to welcome you to Penn State Law.  I was asked to talk to you about diversity in law school, at Penn State specifically, and broadly in the legal profession so I will go in that order.

Diversity is a term used to describe a variety of human differences, which may include traits such as race, ethnicity, socioeconomic status, intellectual views, sexual orientation, and religion or a combination of these traits. While some examples I use today focus on one or two categories, I want to acknowledge up front that diversity in law school and the legal profession goes well beyond race, ethnicity and gender. Today, the composition of students in most United States law schools does not match the broad diversity that exists in our society. Why does that matter?

In law school, the U.S. Supreme Court has recognized the benefits of a diverse student body. As explained by now retired Justice Sandra Day O’Conner in Grutter, “[S]tudent body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.  … These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”[1] These benefits are also described by Dean Kevin Johnson of UC Davis Law School “A racially diverse student body contributes to a better learning environment for students and a higher quality education.”[2] Education improves when a student replaces stereotypes with actual interaction and a deeper understanding. 

A diverse faculty is also important. At the front end, the American Bar Association recommends law schools support diverse candidates in interviewing, hiring and tenure.  A faculty member with experiences in a family or community that has been historically underrepresented or excluded might bring an entirely different perspective to the scholarship she writes or the method by which she teaches a law school course. As one illustration, my identity as a South Asian and experiences as an immigration attorney on the ground after the terrorist attacks on September 11, 2001, informs how I write and teach about immigration, race and national security.  To offer a more recent example, the travel ban, the Supreme Court’s decision to ban those who “lack[] a bona fide relationship”[3] to a person or entity and the State Department’s initial move to exclude grandparents and cousins from meeting the “bona fide” standard,[4] raises significant personal questions about culture, identity and the Constitution that may diverge from my colleague with different experiences.  These variations are beneficial to students and the overall learning environment. But, as Dean Johnson notes cautiously, not every minority or woman will add a new or diverse perspective.[5]

Finally, a diverse faculty can also benefit diverse students in law school, because it sends a message to these students that they belong in law school and the legal profession.

 AT PENN STATE LAW

At Penn State Law, diversity is not just a label but is in fact a core value. The diversity of our student population has grown significantly. This fall, 25% of you identify with a racial or ethnic category that is historically underrepresented.  At Penn State Law, you will interact with law students from across the country and around the globe. You will share classes with LL.M. students, which this year includes 85 students from 30 countries. Several of your peers may be diverse along lines of gender, gender identity, sexual orientation, disability, veteran status or religion. Perhaps you will learn about the struggles of someone who is transgender and the importance of asking about pronoun preferences. Perhaps you will meet a student who identifies as Muslim and lives in fear that she may be labeled as a terrorist. Finally, you may could meet students or lawyers who are undocumented or with DACA who are living with heightened fear about their future. Today is the Five-Year anniversary of a DACA or Deferred Action for Childhood Arrivals, a program created in 2012 that to date has enabled nearly 800,000[6] young people who came to the United States at a young age, are in school or graduated and otherwise low priorities for enforcement to receive a type of protection called deferred action. DACA students study in universities across the country, including Penn State.    

At Penn State Law, each of you will also have the opportunity to learn about the role bias plays in the legal system, and to hear from students with perspectives that differ from yours on significant issues of law and policy. Possibly, your identity and experience will shape how you react and respond in the classroom to fact patterns and cases that involve individuals and families who are or have been marginalized. You will have the opportunity to learn from a diverse faculty whose own experiences may shape the way they teach and ruminate on the rule of law.  Some of you will have the opportunity to work in one of our 10 in-house legal clinics and practicum, and in this capacity, see first-hand how the legal system affects people along lines of race, gender, language, and immigration status to name a few.  I direct a clinic called the Center for Immigrants’ Rights. Over the weekend, we prepared a client for a fear interview that is scheduled on Thursday. She does not speak English, suffers from trauma and has faced the kind of harm and violence that is unimaginable to the majority (not all) of my students.  How the legal system labels and processes this person: non-English speaking, female, brown and traumatized in contrast to others could have a profound effect on my students and will shape them as future lawyers. 

Penn State Law is also home to number of related student organizations such as the Black Law Students Association,[7] the Latinx Law Students Association,[8] OutLaw,[9] and Women’s Law Caucus.[10]  

The lived experience of diverse students at our law school is also important and is one piece I explored as a faculty member at Penn State Law. Several years ago, the faculty diversity committee created a proposal for a minority mentorship program, which would assign students to two mentors — one faculty member and one alum — to help guide them through all three years of law school. The proposal was awarded a grant from Penn State to run the program. Today, we have well over one hundred faculty, alumni and students participating. All of you are encouraged and welcome to attend our annual kickoff reception at the Atherton Hotel on August 31.

Beyond the law school, Penn State University has been a pioneer in diversity and inclusion initiatives. Created in July 1990, the Office of the Vice Provost for Educational Equity is charged with fostering diversity and inclusion at Penn State. Penn State University has also launched an All In initiative which calls for every member of our University community to build on those efforts by playing an active role in creating a climate of acceptance and inclusion by Promoting inclusion; Encouraging civil discourse; and Challenging all perspectives.[11] These principles were reaffirmed by Penn State President Eric Barron in his statement yesterday: “We encourage civil discussion and engagement in discourse and believe that a wide range of viewpoints strengthens us as a community. What we --and the world saw in Charlottesville was none of those things.”[12]

IN THE LEGAL PROFESSION

Diversity does not end with law school. The legal profession is a complex world that is complicated further by bias and diversity challenges. Why does diversity in the legal profession matter? As described by the American Bar Association “Racial and ethnic diversity in the legal profession is necessary to demonstrate that our laws are being made and administered for the benefit of all persons.  Because the public’s perception of the legal profession often informs impressions of the legal system, a diverse bar and bench create greater trust in the rule of law.”

Last week, Yolanda Roldan, an attorney, spoke to Amy Goodman on Democracy Now about her client and a lawsuit brought by a class of Yemeni and Iranians who have won a green card lottery known as the Diversity Visa but who are unable to travel to the United States because of the travel ban. Let’s listen to her now.[13]

To see a young, black woman working as an attorney for an Arab American organization and speaking on national television about her fight on behalf of several individuals affected by the Muslim ban leaves an impression. What is your impression? Does it break a stereotype? Does it perpetuate one?  Would the segment be more or less credible if the person delivering the information was an older, white male? Does it inspire you think “that could be me?”

And yet, the legal industry remains one of the least diverse professions in the United States, falling behind accountants, architects, engineers, physicians and surgeons. As documented in Deborah Rhode’s The Trouble with Lawyers, “Although blacks, Latinos, Asian Americans and Native Americans now constitute about a third of the population and a fifth of law school graduates, they still account for fewer than 7 % of law firm partners. About half of lawyers of color leave within three years. Attrition is highest for women of color.”[14] At law firms, increasing diversity can be a challenge because as Kecia Thomas at the University of Georgia states, “A lack of diversity lessens your opportunities for future diversity.”[15] “It becomes a signal to minorities that it is not an environment where you’re going to experience success.”[16] 

Even when diverse individuals remain in the legal profession, we confront implicit bias. UCLA Law Professor Jerry Kang describes implicit bias in the following way: “We naturally assign people into various social categories divided by salient and chronically accessible traits, such as age, gender, race, and role. And just as we might have implicit cognitions that help us walk and drive, we have implicit social cognitions that guide our thinking about social categories.”[17]

To describe implicit bias more specifically, let me use immigration one example. Immigration law has been compared second in complication to the U.S. tax code. More than 600,000 immigration cases are pending in the courts and being handled by roughly 300 immigration judges who are themselves employees of the Department of Justice.[18] (Perhaps this is why immigration court is sometimes compared to the practice of doing death penalty cases in traffic court). The attorneys who prosecute noncitizens for being in violation of the immigration law are employees of the Department of Homeland Security. Lawyers who represent defendants in immigration proceedings (a role I played right after law school) are attorneys with specialized expertise in immigration. As you think of the main players- the immigration judge, the accused, government attorney and immigration counsel you might assume the best of diversity and inclusion if only because the field of immigration itself involves constant interaction with individuals and families from around the world. But every day, even these players must check in with implicit bias and also take stock about the oppression and inequalities that are entrenched within the immigration system.

Immigration Judge Dana Leigh Marks opens with this message in her paper Who Me? Am I Guilty of Implicit Bias?[19] as she describes the importance of recognizing bias when making decisions in immigration court:

As I observe his testimony, I notice the witness is not looking me in the eye, making me begin to suspect that I am not being told the truth. I note my concern while the testimony continues. As his story comes out in a confusing jumble, with bits and pieces that are not firmly grounded in a chronological timeline, I am again plagued by doubts about his veracity.

Sitting in front of me is an extremely muscular, heavily tattooed man whose mere physical presence seems to presage danger. I am horrified by the life he has led and the violent stories he recounts. I struggle to remain focused on the present evidence and its relevance, but I am aware that I feel something is just “off.” After a few more minutes, I catch myself and remember that it is not culturally appropriate in many cultures to look an authority figure in the eye. Okay, discount that factor. Then I remember that rigid timelines and linear storytelling are not necessarily common or expected in all cultures. Okay, another factor must be discounted or minimized.

I am continuing to listen as I recall the devastating impact stress from trauma has on memory. During a traumatic incident, the brain functions differently, often causing a shocking memory to be inaccessible or an event to be stored in the brain in a random, illogical manner making it incapable of orderly retrieval. Yet another factor which troubled me now must be thrown out or re-examined.

As one of the most seasoned judges on the immigration bench, Judge Marks is keenly aware of her implicit bias and the importance of minimizing its role when making life and death decisions in immigration court. She reflects “Avoidance of implicit bias requires that one routinely check one’s thought processes and decisions for the influence of these unconscious biases. I have found it particularly difficult to devote the time this requires in light of my fast-paced docket. Yet it is clear to me that it is only through thoughtful, deliberative processing of the testimony and documentary evidence in the record that is before me that I can escape the seductive lure of stereotypes.”[20]    

Equally relevant to the discussion of diversity in the legal profession is preparing our diverse students to succeed in the least diverse profession. I believe programs like the minority mentor program can improve how our students answer challenging questions they may face as future lawyers. When a black lawyer enters a courtroom a judge asks “where is your attorney?” how should he respond? When an Asian lawyer enters a local citizenship and immigration office for her client’s green card interview and is asked by an employee “do you speak English?” how should she respond? When clients or players instigate bias, questions of professional responsibility sharpen.

Similar questions are raised in the medical profession, where doctors have also experienced bias by patients during the course of their duties. Says Julie Kim, a pediatric oncologist with Dartmouth-Hitchcock Medical Center “…[In] the last year, I have received a hateful, bigoted comment approximately every other month. (That includes the remarks by a person who tried to reassure me that the comments were not directed to me personally, but to the “other illegals.”) …My colleagues are experiencing an increase in bigoted comments too. A fellow physician, a southeast Asian man, says he has been called “Dr. Bin Laden” on several occasions recently. …Last September, one of my students was on the receiving end. A patient’s father requested another doctor when he saw the medical student assigned to his son’s case was black. My student and I went to see the patient’s family together. I acknowledged the father’s anxiety and reassured him that we could treat his son. I asked the surgeon-on-call to see the patient. The surgeon was a Latino with a strong accent. The father said we three — an Asian-American, an African-American, and Latino-American — were not “the type” of doctors he wanted for his son. I offered to transfer the patient to another hospital.  I never saw that patient again, even though ours was the only in-state facility that could have treated his son’s condition. At first, I just reflected on the incident on my own: Did I answer appropriately? Did I unintentionally deny a child medical care? What if the situation was life-threatening? What should I have done?”[21]

 I am not going to answer these hypotheticals (which are in every case real life examples) - I will save that discussion for my colleagues who teach professional responsibility.

CONCLUSION

Instead, let me close with my confidence and hope that each of you experiences diversity at Penn State Law in a meaningful way and in ways that provide you with tools to excel as lawyers and navigate a complex legal system and profession. Thank you again- I am so honored to welcome you to Penn State Law!

* Samuel Weiss Faculty Scholar and Clinical Professor of Law, Penn State Law at University Park; These remarks were delivered to first-year law students at Penn State Law’s 2017 Orientation on August 15, 2017.

[1] Grutter v. Bollinger, 539 U.S. 306, 308-31 (2003).

[2] Kevin R. Johnson, Symposium: The Future of Legal Education: The Importance of Student and Faculty Diversity in Law Schools: One Dean's Perspective, 96 Iowa L. Rev. 1549, 1556 (2011).

[3] Trump v. Int'l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017).

[4] Carol Morello, Travel Ban Takes Effect as State Department Defines ‘Close Family’, Washington Post, Jun. 29, 2017, https://www.washingtonpost.com/world/national-security/travel-ban-to-take-effect-as-state-department-defines-close-family/2017/06/29/03eb8a8e-eba6-4749-9fa2-79117be89884_story.html.

[5] Johnson, supra, note 2, at 1562.

[6] Maria Sacchetti, DHS’s Kelly: Program Shielding 800,000 Illegal Immigrants May be in Jeopardy, Washington Post, Jul. 12, 2017, https://www.washingtonpost.com/local/social-issues/dhss-kelly-tells-hispanic-caucus-daca-might-not-survive-court-challenge/2017/07/12/b1f19686-672b-11e7-9928-22d00a47778f_story.html.

[7] Black Law Students Association, Penn State Law, https://pennstatelaw.psu.edu/about-us/student-life/student-organizations/black-law-students-association.

[8] Latinx Law Student Association, Penn State Law, https://pennstatelaw.psu.edu/about-us/student-life/student-organizations/latinx-law-students-association.

[9] Outlaw, Penn State Law, https://pennstatelaw.psu.edu/about-us/student-life/student-organizations/outlaw.

[10] Women’s Law Caucus, Penn State Law, https://pennstatelaw.psu.edu/about-us/student-life/student-organizations/womens-law-caucus.

[11] All In, Penn State University, http://allin.psu.edu/.

[12] Eric Barron, President Eric Barron's Message to the Community on Charlottesville Events, Penn State University, Aug. 14, 2017, http://news.psu.edu/story/477594/2017/08/14/administration/president-eric-barrons-message-community-charlottesville.

[13] Transcript, Yemeni Student is Among Thousands to Win U.S. Visa, Only to Have It Effectively Denied by Travel Ban, Democracy Now (Aug. 11, 2017), https://www.democracynow.org/2017/8/11/yemeni_student_is_among_thousands_to.

[14] Deborah Rhodes, The Problem With Lawyers, 62 (Oxford U Press, 2015).

[15] Kecia Thomas, Why Law is the Least Diverse Profession, Law360 (May 17, 2016), https://www.law360.com/articles/795764/why-law-is-the-least-diverse-profession.

[16] Id.

[17] Jerry Kang, Implicit Bias: A Primer for Courts, prepared for the National Campaign to Ensure the Racial and Ethnic Fairness of America’s State Courts, National Center for State Courts (Aug. 1, 2009), https://www.sog.unc.edu/sites/www.sog.unc.edu/files/reports/kangIBprimer.pdf.

[18] Rick Lee, Immigration Court System is ‘a Train Wreck,’ Retired Judge Says, USA Today (Jun. 14, 2017), https://www.usatoday.com/story/news/2017/06/14/immigration-court-system-a-train-wreck-retired-judge-says/370102001/.

[19] Judge Dana Leigh Marks, Who, Me? Am I Guilty of Implicit Bias?, 54 The Judges’

Journal 4 (2015), http://www.americanbar.org/publications/judges_journal/2015/fall/who_me_am_i_

guilty_of_implicit_bias.html.

[20] Id.

[21] Dr. Julie Kim, When the Patient is a Racist, The Health Care Blog (Apr. 8, 2017), http://thehealthcareblog.com/blog/2017/04/08/when-the-patient-is-a-racist/.

KJ

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