Will Anyone Lower The Boom On The Virginia State Bar?

[NOTE: An ADDENDUM was added to this post March 6 and an UPDATE on May 1]

The Virginia State Bar seems to have been overcome by a raging mania for “diversity.” A quick look through the past year or so of its primary publication, Virginia Lawyer, reveals article after article, report after report, initiative after initiative, dealing with the felt necessity of “diversity.” In addition to the question of whether all this frenetic activity is wise, there is also a question, as we shall see, of whether some of it is even legal.

Joseph Condo, president of the Virginia State Bar in 2000–2001, wrote of “The Diversity Imperative.”

The imperative of diversifying our profession, and the benefits to be derived from doing so, are manifest. To be truly responsive to the public we serve — to be able to empathize with their legal needs, their troubles, and their struggles — our profession, and by extension the justice system, must reflect their diversity.

Manifest? Maybe. Clear? No.

In a similar vein, the current president of the Virginia State Bar, Manuel Capsalis, rarely misses an opportunity to sing the praises of “diversity,” although his song seems to consist of variations of only one tune with few supporting lyrics. Typical are his comments in the July 2008 Virginia Lawyer upon assuming the presidency:

I BELIEVE WE MUST RENEW our commitment and focus on diversity. For our legal profession and our judiciary to be properly responsive to the needs of society, we must be more reflective of the demographics of society. We are not. Our profession has made tangible improvement in better diversifying our ranks. To suggest that our work is done, however, is wrong.

Statistics from the American Bar Association indicate that the percentage of law students of color in recent years has leveled off, and in many cases, actually decreased. In Virginia, there remains a paucity of attorneys of color in state and local bar leadership. There continues to be a tangible shortage of attorneys capable of offering legal services to many of our fellow citizens who do not yet adequately speak, read, or write English.

Our profession is the guardian of the Rule of Law, the essence of our system of justice and what binds together our civil society. This is a glorious burden, and one which carries with it great responsibility. I believe the preservation of the Rule of Law is inextricably linked to diversity. Simply put, the Rule of Law without diversity is, at best, an incomplete principle, and at worst, a hollow promise to many who live among us.

We cannot deny the need for a vigilant commitment to diversity. The question, it seems to me, is whether we can live up to what Abraham Lincoln described as the “better angels of our nature.” Can we make our profession more responsive to all segments of society? Can we better reach out to our fellow Virginians, especially our youth who feel alienated within our society? How can we expect to be more inclusive when those we should be focusing on feel nothing but exclusion?

If I wanted to be picky I might pause to examine whether it is really true that “many of our fellow citizens … do not adequately speak, read, or write English,” inasmuch as a basic proficiency in English is one of the requirements of becoming an American citizen (except, of course, for those who are born here).

But this is not the time for that discussion. What is more pressing here is what Capsalis means by “diversity,” which is not at all clear. It appears at times that he means that Virginia lawyers should simply mirror their clients (or those who should be their clients), but he can’t really mean that since felons and “alienated youth” presumably can’t join the bar.

Returning to this tune in the October 2008 issue, Capsalis repeated his same refrain, asserting “two simple and undeniable facts”:

The first is that for our profession and our judiciary to be truly responsive to the needs of society, we must be more reflective of the demographics of society. The second is that, as a whole, we are not.

I would agree that the second may be a simple and undeniable fact, but I’m not at all sure about the first. I do believe that lawyers (and others) should be “reflective,” but not in the sense of simply mirroring pigmentation and census categories. But Capsalis was not through asserting undeniable truths: “We cannot deny,” he continued, “that the preservation of the Rule of Law is inextricably linked to diversity, without which justice is an incomplete principle and, tragically, a hollow promise to many who live among us.”

Again, I’m not sure that point is so unassailable, in part because I’m not sure what it means. I’ll come back to that question shortly, but whatever “diversity” means Capsalis wants it incorporated into the very structure of the Virginia State Bar. In the next issue of Virginia Lawyer (December 2008) he called diversity “a transcendent ideal” and proposed the following revision of the VSB’s mission statement:

It currently states: “The mission of the Virginia State Bar is to regulate the legal profession of Virginia; to advance the availability and quality of legal services provided to the people of Virginia; and to assist in improving the legal profession and the judicial system.” I submit that the time is upon us to add the following: “and to promote diversity in the administration of justice and the practice of law.”

And:

That we proceed with deliberate speed with the creation of a Diversity Conference, which would become the fourth conference within the bar, along with the Young Lawyers Conference, the Senior Lawyers Conference, and the Conference of Local Bar Associations (CLBA).

…. Its core mission, simply put, would be to seek and to promote diversity of participation and equality of opportunity throughout our profession and judiciary, in the present and in the future…. [T]he pursuit of participation and opportunity, in turn, would be with the goal of promoting a more profound diversity of ideas and action. This would include enhancing access to justice and improving the quality of legal representation….

Got that? I don’t, and apparently some members of the VSB don’t either, since President Capsalis felt the need to respond to those who weren’t sure what he was talking about. His response, I think, is remarkable.

IT HAS BEEN SAID that we need to precisely define diversity to create such a structure. I disagree.While diversity by necessity must not neglect consideration of race, heritage, and gender, for example, I believe that the term must be allowed to evolve. What was considered in the scope of diversity some twenty–five years ago is not what we may think of it today, and we cannot know what the next generation may believe essential in its definition. That is for a Diversity Conference to have the freedom to pursue. Diversity must be allowed to grow and evolve organically, free from preconceived notions.

I find this statement truly astonishing. The VSB needs to dedicate itself to the “imperative” of “diversity,” to amend its mission statement and expand its structure, but no need to define what “diversity” actually means in either theory or practice.

President Capsalis’s devotion to “diversity” reminds me of Justice Stewart’s approach to pornography: he can’t define it, but knows it when he sees it. And like the “living Constitution” that I’m sure he presumes allows the race preferences that implementing “diversity” requires, it is free “to evolve” over time as others come up with innovative new views of what it means.

The substantive incoherence at the core of President Capsalis’s “diversity” mania has not gone unnoticed or unchallenged. The February 2009 issue of Virginia Lawyer contains two unusually powerful critical letters. You should read both of them since they are too long for me to quote in their entirety. Actually, there are three letters, but the first one is, unintentionally, humorous. Its author, an enthusiastic supporter of the “diversity” initiatives, identifies himself as

associate commissioner of the Central Intercollegiate Athletic Association, the country’s oldest historically black college conference, with member schools in Virginia (Virginia State University, Virginia Union University, and St. Paul’s College), North Carolina, Maryland and Pennsylvania….

The humor, or irony, here is that this conference and these schools are among the least “diverse” organizations in the region, and yet I’m sure the letter’s author does not regard them as lacking in worth, effectiveness, or legitimacy for that reason.

The second letter, by Fairfax County attorney David E. Wilson, begins with a bit of autobiography.

Back in the mid-1990s, I was emerging from college to pursue the career I had before law: journalism. I was working as an intern for the Washington, D.C., bureau of a major paper and loving every minute of it.

The themes of the Virginia State Bar’s Diversity Initiative swirled around me then, as they do now. The college paper I worked for filled its pages with coverage of minority events, staffers fretted over sensitivity, and the field of professional journalism that lay before me was much concerned with “diversity.”

But what that meant for me, as a twenty-something white male, was not immediately clear until I sought my first job. I’d homed in on the Boston Globe [then, as now, owned by the New York Times?], which had a one- or two-year fellowship for young journalists with limited experience. I was told, in no uncertain terms, that whites were prohibited from applying.

I was knocked for a loop by this. Though my familiarity with law was limited to the First Amendment and defamation cases I’d learned in journalism school, it just didn’t strike me as something that could fly in America.

It wasn’t. My complaint with the Equal Employment Opportunity Commission was affirmed. The program was found to be illegally discriminating against whites. In the meantime, I’d found other employment, but I’ve never forgotten this experience. In fact, it was one of the things that motivated me to go to law school.

“It’s this perspective,” Mr. Wilson writes, “that I bring to Manuel Capsalis’s seemingly unopposed drive for diversity.”

Mr. Capsalis blows a polished trumpet indeed, intoning that “what we seek is, distilled to its purest form, an affirmation of the Rule of Law, the very essence of our system of justice. We cannot deny that the preservation of the Rule of Law is inextricably linked to diversity.”

But “diversity,” to me, is a nice way of saying “whites need not apply.” There is simply no escaping the fact that whatever grandiosity its supporters adorn it with, “diversity” typically ends in a racial head count. Whatever one thinks of affirmative action, it is a policy that comes with undeniable costs and victims.

And I must ask, how does Mr. Capsalis’s insistence that Virginia’s legal profession “be more reflective” of its demographics square with the idea that race shouldn’t matter? These notions are at direct odds. In the supposed pursuit of making race irrelevant, institutions practicing affirmative action succeed in making race so relevant that it excludes everything else.

The third letter, by Joseph W. Stuart, another Fairfax County attorney, is equally powerful, and let me repeat that you should read the whole thing because I can’t quote all of it.

Mr. Stuart is also struck by the fact that President Capsalis, “[h]aving argued vociferously that “diversity” is “inextricably linked to the Rule of Law,” in his several pronouncements and proclamations that there can be no Law without diversity, “then declines to tell the reader what it means.”

…. He answers one letter writer by telling the author that “he fails to understand the fundamental need for diversity,” a term that Mr. Capsalis himself tells us cannot be defined. Thus, Mr. Capsalis casts himself as some sort of Gnostic keeper of the secret truths that mere mortal lawyers can neither understand nor question.

How can we understand the “fundamental need for diversity” when its very proponent cannot tell us what he means by the term? According to Mr. Capasalis, if we must ask the question, we have already missed the point. We must, instead, allow it to “grow and evolve organically, free from preconceived notions” (as opposed, apparently, to the “natural order of events,” which Mr. Capsalis soundly rejects). One day, perhaps, the augurs of his proposed Diversity Conference may let us know what it means; or perhaps not; or perhaps they will later change the meaning and the concurrent obligation.

In any event, the VSB Council must, according to Mr. Capsalis, change the very structure of the bar and the legal system to oblige the bar, its members, and even the judiciary to promote “diversity”—which is something, I know not what. And not only that, but it is urgent and necessary and unquestionable that the bar do so.

Moreover, Stuart continues,

Mr. Capsalis simply presses an ideology on the bar. If ever there was a code word involving race or ethnicity, “diversity” is it. Mr. Capsalis offers us little glimpses at it—that it involves “taking into account gender, race, and heritage” in the administration of justice and the practice of law. But he is quick to close the curtain, noting that the “transcendent ideal of diversity” cannot be captured; it must be free to fly to the heavens or wherever it will. How on earth does Mr. Capsalis believe he can persuade thousands of lawyers with this kind of evasiveness and verbal sleight of hand?

Let’s be clear: “diversity,” in Mr. Capsalis’s usage, is nothing but the preferential treatment of persons or groups based on race, sex, or national origin in order to remedy generic past discrimination — a political notion that remains hotly disputed. Mr. Capsalis appears to wrap himself in the mantle of civil rights in demanding indefinable “diversity.” But many would take issue with this presumptive assertion.

Martin Luther King Jr. famously dreamt of a day when his children would “not be judged by the color of their skin but by the content of their character.” Mr. Capsalis proposes the opposite: that unless we take account of the color of a person’s skin, we can have no justice. This kind of thinking and action is hardly “transcendent”; in fact, it is both literally and figuratively superficial. It judges the worth of persons based on their outward appearance. It would have Lady Justice recast without her blindfold.

I mentioned at the beginning of this post (if you can remember back that far) that some of the Virginia State Bar’s “diversity” initiatives may well be illegal, and that is a possibility both serious letter writers suggestively discuss, hinting at possible legal complaints. As Mr. Wilson noted,

[a]nother problem with the bar’s diversity crusade, striking in light of its societal position as an upholder of the law, is that the legality of many forms of affirmative action are very much in doubt….

I suspect that some of the programs sponsored or endorsed by the VSB are subject to court challenge. Is the Oliver Hill/Samuel Tucker Prelaw Institute offered to poor white students in Appalachian Virginia? Is a legal diversity pipeline program open to young people of all races?

Mr. Wilson concludes his eloquent letter by mentioning the case of Emily Smith (which I discussed here and here).

A summer journalism program operated by Virginia Commonwealth University and the Dow Jones Newspaper Fund was challenged after a white student, Emily Smith, was denied entry because of her race. In response to the suit, the operators of the program agreed in 2007 to stop denying admission to whites….

It seems that the leadership of the VSB won’t actually be engaging in much of a debate on this issue. Mr. Capsalis reports that the powers of the bar should now include “the power, obligation and responsibility to promote diversity in our legal profession and judiciary,” and “promote diversity” is now proposed to be emblazoned on the mission statement. How easily dissenters will be brushed aside now!

But this does not mean that the Emily Smiths of the world cease to exist.

Mr. Stuart also sees the possibility of serious legal challenges.

If Mr. Capsalis wishes to promote his ideology, then he is free to do so on his own time and his own nickel and with those who voluntarily associate with him. But, the bar is not a voluntary organization. To practice law in Virginia, one must be a member of the Virginia State Bar. Forcing lawyers to associate themselves with this ineffable and “evolving” political ideology is wrong. Forcing lawyers to pay their tithes at the altar of the “transcendent ideal of diversity” is doubly wrong….

Mr. Capsalis’s initiative puts the bar, and by extension the Supreme Court of Virginia, on a collision course with the Constitution of Virginia. Article I, §11 of the constitution provides, in part, that “the right to be free from any governmental discrimination upon the basis of religious conviction, race, color, sex or national origin shall not be abridged….” That is to say, no Virginia government agency may legally discriminate against or in favor of any person on these bases. But, this is precisely what Mr. Capsalis proposes: that the bar and the courts specifically promote individuals and groups solely on the basis of race, color, sex or national origin, to the detriment or exclusion of others on the same basis.

This constitutional provision proves that Mr. Capsalis’s assertion, that “the preservation of the Rule of Law is inextricably linked to diversity” is false. The law specifically prohibits the preferential or detrimental treatment required by “diversity” and, in doing so, allows for a true flourishing of freedom and independence and the enjoyment of life, liberty, and happiness envisioned by the opening words of the Virginia Constitution, without regard to the superficial and irrelevant characteristics of color or race or sex.

It would be bad enough if, say, the County of Fairfax or the Virginia Department of Agriculture applied the discriminatory scheme proposed by Mr. Capsalis and his task force; but for the bar and the Supreme Court to adopt it would be the worst possible case. The Supreme Court is the ultimate guardian of Virginia’s Constitution and laws and the bar is charged with aiding in this duty. For the Court to encourage or even allow an obligatory program of preferential treatment based on race, color, sex, or national origin in the administration of justice or in the practice of law, in specific contravention of the constitution, would bring shame and scandal on it.

What would the public think about an organization of thousands of lawyers and judges who never even bothered to check their own fundamental laws in their haste to promote “diversity”? How would the public think that the courts could avoid applying the same discrimination in cases before them? This initiative invites disaster.

Among the VSB programs that would seem to be the most at risk is the Oliver Hill/Samuel Tucker Prelaw Institute, which appears to be racially exclusive.

With an ever-growing diverse population, the need for diversity in the legal profession has become even more important. Although a disproportionate number of minorities are affected by the criminal justice system, the membership of the bar is not proportionately comprised of minority members. In 2000, the VSB leadership recognized a need to increase the number of minority attorneys in the bar, and developed the Millennium Diversity Initiative (“MDI”), a private, non-profit organization, to develop programs to that end. In 2001, at the request of the MDI, the YLC [Young Lawyer Conference] implemented the Oliver Hill/Samuel Tucker Institute….

The Institute targets a diverse group of students. We seek to attract minority high school students who would not normally have access to or positive interactions with members of the Virginia State Bar.

These students seem to be “diverse” in the same way that the original Model T was available in any color you wanted … so long as it was black.

Then there’s the Minority Prelaw Conference “for minority college students interested in a legal career.” And finally, at least for now, “[t]his year, the YLC will implement an ABA pipeline program for high school students of color titled [ironically, I think] Choose Law: A Profession for All.”

One reason these programs are legally at risk is that, as Mr. Stuart’s letter indicated, the Virginia State Bar is at least a quasi- (and arguably much more that a quasi-) state agency.

The Virginia State Bar (VSB) was created in 1938 by the General Assembly as an administrative agency of the Supreme Court of Virginia. The creation of the agency unified Virginia’s lawyers in a mandatory State Bar…. The mission of the Virginia State Bar, as an administrative agency of the Supreme Court of Virginia, is to regulate the legal profession of Virginia….

With Mr. Wilson, I wonder if there is an Emily Smith in the VSB’s future.

ADDENDUM [6 March]

Todd Zywicki links to this post on Volokh, which I appreciate. Some of the comments to his post are priceless, and I encourage you to look at them.

As others have pointed out in those comments, as well as in comment here, the Virginia State Bar is of course not unique in its sanctimonious devotion to “diversity.” Brandon M. Middleton, an attorney with the Pacific Legal Foundation in Sacramento, pointed me to a similar “diversity” mania pervading the Young Lawyer Division of the American Bar Association, as exemplified in the February–March 2009 issue of its publication, The Young Lawyer.

Following is a letter Mr. Middleton sent to the editor, which I reproduce with his permission:

Dear Editor,

I find it odd that The Young Lawyer should spend so much time emphasizing diversity (see February-March 2009 edition), especially considering that our generation grew up being taught the harm and arbitrariness that accompanies discrimination based on skin color, sex, and sexual orientation.

Likewise, the Young Lawyers Division’s Diversity Plan states that “[a]t each orientation of the new bar year, a presenter shall provide diversity training to stress the importance of diversity and its long-term benefit to the ABA YLD. (To ensure attendance, reimbursement shall be tied to attendance of this meeting.)” This requirement is insulting, and it is beyond me how any young attorney would need more education on the topic of diversity. The fact that the Young Lawyers Division must withhold reimbursement in order to ensure attendance demonstrates the needlessness of this training.

One’s skin color, sex, and sexual orientation are not the defining qualities of a young attorney, notwithstanding the Diversity Plan and the February-March 2009 edition of The Young Lawyer. I encourage the Young Lawyers Division to spend less time on these issues (of which we’re already well aware), and more time, for instance, on how young attorneys can foster better relationships with their clients and colleagues.

Sincerely,

Brandon M. Middleton

Attorney

Pacific Legal Foundation

Sacramento, California

Mr. Middleton added in his email to me that he has “not yet received a response from The Young Lawyer staff, nor do I expect to receive one anytime soon.”

UPDATE [1 May 2009]

The April 2009 issue of the Virginia Lawyer published a new round of letters condemning and supporting the VSB’s “diversity” initiative. I’ve discussed them in a separate post, here.