Back in March I had a long post on a raging debate inside the Virginia State Bar over “diversity,” and I encourage you to read it (or better, re-read it) before reading below about the continuation of this controversy that appears in the April 2009 issue of Virginia Lawyer with a new round of “diversity” critiques and defenses.
One thing these letters, pro and con, demonstrate clearly is that “diversity,” whatever else it may be (and as you will have seen in my former post, the president of the VSB who wants to incorporate furthering “diversity” into the very mission of the organization can’t or won’t define it), it is definitely divisive. As Peter McCrary, a Manassas lawyer argued in the first letter of this new collection:
It’s that simple. Clearly, diversity is a controversial issue. The mandatory Virginia State Bar has no business promoting any side of an issue not directly related to its primary mission —certainly not one as controversial as diversity….
Other letters repeated and expanded upon the critiques in the first rounds of letter. Richmond lawyer John Lumpkins, for example, pleaded for a focus in individuals, not groups, and opposed “appointment of judges and bar leaders based upon their skin color, sex, and national origin.” Defending the “diversity” initiative, Falls Church lawyer David Bernhard’s letter was a model combination of airy, uncontroversial bromide — “Diversity enriches the bar. It does not detract from the profession” — with blatant falsehood:
Opponents of [t]his initiative attempt to define “diversity” as establishing quotas for the unqualified, which is not what promoting diversity is all about. By defining diversity in this manner, they attempt to win the debate in painting the diversity initiative as nothing more than an effort to victimize and take from the qualified and give to the unqualified.
I believe I’ve read all the criticisms of the Diversity Initiative that have been published in the Virginia Lawyer, and I don’t recall a single one of them either arguing or implying that the VSB’s “diversity” initiatives would “establish[] quotas for the unqualified” or were “nothing more than an effort to victimize and take away from the qualified and give to the unqualified.” Read them yourself and see if you can find any evidence supporting Bernhard’s baseless slander.
Let me remind you that the Virginia State Bar, as you will have now read (or re-read), is not a private, voluntary organization. It is organized as an agency of the Supreme Court of Virginia, and membership is mandatory for all Virginia lawyers. Any action it takes is thus state action, subject to the strictures of both the 14th Amendment and the Constitution of Virginia, one of whose articles provides in part (as I quoted in my previous post) 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….”
As I noted in March,
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.
Perhaps the most revealing letter in this new round of dispute comes from Yvette Ayala and Rasheeda Matthews, co-directors of the Oliver Hill/Samuel Tucker Prelaw Institute, which they attempt to defend from charges that it discriminates. It’s a pretty puny defense.
First, they acknowledge — indeed, point, apparently with pride — to the language quoted above that appears on the YLC website:
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.
But then they immediately add, as though in mitigation, “[i]n our online application there is no mention of race or ethnicity.”
All applications are reviewed on their merits and students are admitted as space is available….
We have partnered with area school districts to notify them of the availability of applications, and the districts then disseminate that information to the high schools. There is no mention that the program is limited to minority students, as all students are welcome to apply. In fact, our response to inquiries related to whether a non-minority student can apply is: “While the program is targeted towards minority students, we welcome and encourage all students who are interested in attending the program to apply.”
We do not request information on a student’s racial or ethnic background on the application, and we make no assumptions regarding such during the review of applications received. All fully completed applications are reviewed for acceptance into the program, as space permits.
There is no mention of whether any of the applicants are interviewed, but let’s leave that question aside. Co-Directors Yvette Ayala and Rasheeda Matthews admit that their promotional material clearly states that the Institute “seek[s] to attract minority high school students,” and that when asked “whether a non-minority student can apply,” they routinely reply that “the program is targeted towards minority students,” although they “welcome and encourage all students who are interested” to apply.
None of this refutes the critics’ assertion that this program, for all practical purposes, is racially exclusive. And the proof, if proof beyond the co-directors’ discussion of the program’s intent is needed, lies in just how accurately “targeted” toward minorities it is: In 2008, Ayala and Matthews write,
we admitted twenty-three students to the Oliver Hill/Samuel Tucker Prelaw Institute. Twenty-one students were able to attend the program. One was Russian and another was Hispanic.
Thus 21 of the 23 students who were admitted (and 19 of the 21 who attended) were black. Given all the emphasis on seeking and targeting minorities, it is no doubt true that most of the applicants were black, but that hardly mitigates the fact that the program is discriminatory in intent, design, and effect.
