The Legal Intelligencer - A Slippery Slope: The Erosion of DEI in the Legal Profession and Beyond

It’s that time of year when we anticipate an end to the vacation days of summer and the resumption of the school year routine. As it draws to a close, this has been a summer for the history books in many ways.  Severe weather crisscrossed the country devastating communities with unprecedented heat and flooding.  After the Covid-19 induced hiatus, crowds flocked to movie theatres to view the “Barbenheimer” duo on the big screen in air-conditioned comfort. And in Philadelphia, Cherelle Parker became the first Black woman to win the Democratic nomination for Mayor.  Her Republican opponent in the November election, former Council Member David Oh, is the first Asian elected to Philadelphia City Council.  Given the disparity between Democratic and Republican registered voters, former Council Member and Majority Leader Parker is likely to be the City’s next Mayor.  But whichever of these civic-minded candidates prevail, the next Mayor of Philadelphia will be breaking barriers. That is a tribute to the diversity in the home of the Liberty Bell - the “city that loves you back.”

Although I am not a native Philadelphian, I grew up in New York, another city with a deep history of welcoming immigrants and offering a culture enriched by its diversity. I then spent most of my adult life in Philadelphia and founded our firm here. Our goal was to create an environment in which women and others in historically marginalized groups could achieve success in the legal profession without some of the obstacles they faced in traditional firms. Our team and clients have benefited from our varied backgrounds, our commitment to the elimination of bias, and the inclusive culture we fostered. Our engagement with the broader community, both locally and nationally, has exposed us to new ideas that enrich our practice enabling us to support the multicultural constituencies that comprise the private, non-profit, and public clients we serve.

It is from this inclusive perspective we mourn recent developments that may cause many to feel they do not belong and are not welcome working in a legal or professional setting. Progress for the advancement of many in our profession has historically been glacial, particularly for people of color, those with disabilities we can see and those that we cannot, and openly LGBTQ+ people. However, despite the challenges, at least there has been some progress. Unfortunately, current events are likely to slow and potentially reverse the advances we as a profession have made and will also impact the broader business community. There are three developments that should be particularly troubling to those who value the smorgasbord of ideas generated when collaborating with colleagues from varied backgrounds: the end of affirmative action in education; the banning of books in schools; and the censorship of Diversity, Equity, and Inclusion (DEI) initiatives. 

Any of these events alone curtails the potential for a diverse and inclusive legal profession and business community.

The diversity of legal practitioners will inevitably suffer with the end of affirmative action as a means to open doors for those for whom many doors were long closed.  The pipeline of potential candidates for admission to the bar could narrow rather than broaden.  If the profession does not reflect the mosaic of our community, will enough of us be there to condemn the encroachments on everyone’s rights to enjoy the “life, liberty, and the pursuit of happiness” we are supposed to guarantee? The increased vilifying of LGBTQ+ individuals, the ridicule of those who are differently abled, the rise in anti-Semitism, violence against Asians, and other acts of virulent exclusion will more likely go unchecked if we as lawyers do not exemplify, study, and champion diversity, as well as the elimination of bias and inclusion.

The Loss of Affirmative Action

Given the Supreme Court’s recent decision rendering unlawful the use of affirmative action in education admissions decisions, the pool of law students and potential applicants to the bar may not be as robust as the most recent crop of candidates. As law students in the Class of 2026 and the college students in the Class of 2027 sit through orientation at campuses across the country this month, they will be sharing the experience with a unique group that may not be replicated in the foreseeable future. With affirmative action no longer a permissible tool to be applied to enroll incoming classes of our future leaders, law schools and higher education institutions will have to find new ways to attract and retain people from all backgrounds and beliefs. Absent a rich stew of people from varied backgrounds, we will inevitably lose the benefit of those perspectives in the legal community.  If fewer voices contribute to the debate on drafting and enforcing the law, our clients will also lose the valuable input that wide-ranging perspectives contribute.

The Loss of Banned Books

In the absence of a diverse pipeline, those who have greater access to higher education and enjoy the privilege of becoming lawyers down the road may be less informed about or receptive to people with different perspectives. As books are banned and different opinions are muzzled, this will compound the negative effects of a less diverse, more uniform student body. Future classes will miss out on valuable lessons from history due to the growing trend to ban books and scale back curriculum. If “To Kill a Mockingbird” and “ The Diary of Anne Frank” are banned, how will the next generation learn about racial injustice and religious intolerance?  If students are taught that somehow slavery was “beneficial” for some slaves, will they also be taught that the Holocaust was somehow beneficial for the many exterminated in concentration camps? As the leader of a diverse team and the daughter of a Holocaust survivor, I am terrified by the implications of the groundswell of support for sanitizing these sordid events because the truth makes some “uncomfortable.”

Looking at the younger generations, we should be even more concerned.  How can we expect the lawyers and leaders in decades ahead to be compassionate and inclusive if they are denied access to knowledge about the mistakes of the past so they are not repeated in the future?  How can we expect future generations to be tolerant of others if they are not exposed to differences or if they are taught that those who are different should be ostracized? If a teacher can lose their job for speaking the truth about their sexual orientation or for teaching the vileness and shame of slavery or the inhumanity of the Holocaust, then we face the prospect of repeating this cruelty. As lawyers charged with the heavy responsibility of “justice for all” we should be leading the efforts to counter this encroachment on education and acceptance.

The Censorship of DEI Initiatives

Over my forty-plus-year career, the composition of the profession has changed dramatically. When I started practicing at a large New York firm, of the hundreds of lawyers at the firm, the most senior women were barely mid-level associates.  As I recall, there were fewer than a handful of racially diverse lawyers, and my peers were reluctant to be “openly” gay. Over the past four decades, the complexions, backgrounds, and lifestyles of colleagues and clients have become much broader. More organizations have actively sought to create a culture in which all types of people are welcomed.  There are still many barriers and biases that remain, but the increasing sensitivity to DEI has improved the landscape.  Sadly, DEI has now become a target losing ground in many corners of our country. For example, the Board of the Florida Tourism Oversight District, managing the area where Disney is located, eliminated the DEI initiatives implemented by the prior Board. The current Board dissolved the District’s DEI committee, eliminated any associated DEI jobs, and unraveled its supplier diversity programs.  Several other jurisdictions have similarly banned or are considering banning the promotion of DEI in schools and public institutions around the country.  For those who value working with diverse colleagues, these attacks on DEI are alarming. Educational institutions, private employers, and government entities should welcome all stakeholders with respect and be enriched by their contributions.  

Like many first-generation Americans, I was drawn to the law because my immigrant parents had faced so much injustice.  By their immigrating and becoming citizens, my brother and I were both able to attend college and go on to practice law with more doors open to us.  For others who faced even greater obstacles than our family did, affirmative action, education, and DEI initiatives made the path a little more, but not entirely, level.  I urge all lawyers to stand against the forces that threaten to set back the strides we have made in diversifying our profession. As trained advocates, if we do not advocate for protecting the value of a diverse and inclusive culture, the brutal lessons from history will haunt us. 

Reprinted with permission from the August 10, 2023 issue of The Legal Intelligencer. © 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.