The deadline for DRI’s annual Law Student Diversity Scholarship, open to incoming second- and third-year African American, Hispanic, Asian and Native American students, is Friday, April 27. Please remind your students to send in their applications for review by this date. This is a fantastic opportunity! Two scholarships in the amount of $10,000 each will be awarded to applicants who best meet the following criteria:

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  • Demonstrated academic excellence
• Service to the profession
• Service to the community
• Service to the cause of diversity

Visit the DRI website for full details on eligibility and to download the scholarship application.

Recently, Montana’s chief federal judge admitted to forwarding an email from his court email account that included a racist “joke” involving bestiality and President Barack Obama's mother.  Judge Richard Cebull has since issued a formal apology to President Obama and has asked for a formal judicial review of his actions.  Earlier this week, two members of the House Judiciary called for a hearing to examine the judge’s conduct.  Representatives John Conyers of Michigan and Steve Cohen of Tennessee told Committee Chairman Lamar Smith in their letter that the committee has a duty to investigate the potential consequences of Judge Richard Cebull’s email.   “At a minimum, forwarding this email illustrates poor judgment and of conduct that was unbecoming of a federal judge,” they wrote.  “More troubling, however, is the possibility that public disclosure of the judge’s conduct may not only undermine the public’s view of his personal credibility and impartiality as a judge, but also the integrity of the ... federal judiciary.”

More than 70 percent of President Obama's confirmed judicial nominees during his first two years were "non-traditional," or nominees who were not white males.  That far exceeds the percentages in the two-term administrations of Bill Clinton (48.1 %) and George W. Bush (32.9 %), according to Sheldon Goldman, author of the authoritative book Picking Federal Judges.  "It is an absolutely remarkable diversity achievement," said Goldman, a political science professor at the University of Massachusetts at Amherst.  Are Judge Cebull’s actions an isolated incident or an indication that we still have a long way to go with regard to diversity efforts in the legal profession?

The Supreme Court of the United States will reconsider the issue of affirmative action in higher education for the first time since its 2003 decision in Grutter v. Bollinger.  In Grutter the Court held that, “The Equal Protection Clause does not prohibit the [University of Michigan] Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”  Today, the Court agreed to hear the appeal of Abigail Fisher, a white student, who alleges she was denied admission to the University of Texas because of the color of her skin.  At issue in the Fisher case is whether the Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter, permit the University of Texas at Austin’s use of race in undergraduate admissions decisions.

The Texas case will be argued in the fall and the changed makeup of the Supreme Court could foretell a different outcome.  Chiefly, Justice Sandra Day O’Connor, who wrote the majority 5-4 decision, has been replaced by Justice Samuel Alito.  Further, Justice Elena Kagan has been recused from the case.  Her recusal is likely a result of the Justice Department’s participation in the case in the lower courts at the time when she served as solicitor general.

What impact, if any, will the changed makeup up of the Supreme Court have on its decision?  Is there a compelling interest in obtaining educational benefits from a diverse student body?  Could a reversal of the Court’s decision in Grutter result in resegregation in public colleges and universities?

The United States Supreme Court, in a 5-4 decision written by Justice Sandra Day O’Connor in Grutter v. Bollinger in 2003, answered this question in the affirmative.  The Court held, "The Equal Protection Clause does not prohibit the [University of Michigan] Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."

DRI announces its annual Law Student Diversity Scholarship program, open to incoming second- and third-year African American, Hispanic, Asian and Native American students. The goal of these scholarships is to provide financial assistance to two worthy law students from ABA accredited law schools in order to promote, in a tangible way, the DRI Diversity Statement of Principle. Incoming second- and third-year female law students are also eligible, regardless of race or ethnicity. Incoming second- and third-year law students who also come from backgrounds that would add to the cause of diversity, regardless of race or gender are eligible to apply. To qualify for this scholarship, candidates must be full-time students. Evening students also qualify for consideration if they have completed one-third or more of the total credit hours required for a degree by the applicant’s law school. Two scholarships in the amount of $10,000 each will be awarded to applicants who best meet the following criteria:

• Demonstrated academic excellence
• Service to the profession
• Service to the community
• Service to the cause of diversity

Visit the DRI website for full details on eligibility and to download the scholarship application. 

A 2011 Midlevel Associates Survey conducted by The American Lawyer demonstrates that although the salary gap between minority and majority associates is closing, persistent differences continue to exist.  Hispanic associates reported the highest increase in their salary from 2008 to 2011, while Asian associates reported the highest salary and billing rates as compared to both their minority and majority counterparts, despite a decrease in their average salary.  Nonetheless, minority associates continue to rate job satisfaction categories lower than their majority counterparts. 

The survey also demonstrates that firms are making an effort to retain their minority associates.  Black and Hispanic associates were the most likely to report that they had mentors – 86.5 % and 83.1%, respectively.  Notwithstanding, all minorities thought that they had a lower chance of making partner than white associates.  Only 60% of Blacks, 63.7% of Asians and 68.4% of Hispanics thought that they were headed toward promotion.  How effective are these mentoring relationships when minority associates do not believe that they will reach the upper echelons of their firms?  What is the missing link between mentoring and retention/advancement of minority associates?  Has your firm employed innovative efforts to address the issue of advancement of minority attorneys?

http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1322459168295&Survey_of_Minority_Associates_Shows_Persistent_Differences&cmp=tsm-cc-CCDDSurvey              

During his presidential campaign, President Obama expressed his desire to diversify the federal judiciary which is primarily comprised of white men.  As a result of his administration’s efforts, we have witnessed the first Hispanic sworn in to serve on the United States Supreme Court, the first openly gay man appointed to a federal district court and the first Chinese, Korean and Vietnamese women judicial nominees.  "Having racial diversity, gender diversity, experiential diversity — all of those things we are mindful of and committed to seeking out when we're looking for the best candidates," Kathryn Ruemmier, the new White House counsel, tells National Public Radio (NPR).  Almost half of the 97 candidates who have won confirmation during Obama's presidency are women and approximately a quarter are African-American. 

According to Ed Whelan, a prominent conservative who used to work in the Justice Department during George W. Bush’s administration, "The Obama administration doesn't have a coherent judicial philosophy so it's not surprising that it's falling back on diversity, which I think it sees among other things as appealing to its various political constituencies."  The notion that judges’ decision-making might be affected by their gender and race or ethnicity is incompatible to those who view "judging" as the objective disposition of cases without regard to judges' personal backgrounds, biases, attitudes, and ideologies.  However, research studies underscore the importance of diversity on the bench.  Is advancing judicial diversity a "coherent judicial policy"?  Should the face of justice be a reflection of all of us?

On July 1, 2011, the U.S. Court of Appeals for the Sixth Circuit struck down Michigan’s controversial ban on consideration of race and gender in college admissions. The rationale of the 2-to-1 ruling was that the ban had the effect of denying political rights to minority citizens in Michigan.  The Court’s ruling is likely to renew the debate over affirmative action.
 
The term "affirmative action" was first introduced by President John F. Kennedy in 1961 as a method of redressing discrimination that had persisted in spite of civil rights laws and constitutional guarantees.  Affirmative action policies required that active measures be taken to ensure that blacks and other minorities enjoyed the same opportunities for promotions, salary increases, career advancement, school admissions, scholarships, and financial aid that had been the nearly exclusive province of whites.  From the outset, affirmative action was envisioned as a temporary remedy that would end once there was a "level playing field" for all Americans.  By the late 1970s, however, flaws in the policy began to show up amid its good intentions.  Reverse discrimination became an issue, epitomized by the famous Bakke case in 1978.  The Supreme Court outlawed inflexible quota systems in affirmative action programs, which in this case had unfairly discriminated against a white applicant. In the same ruling, however, the Court upheld the legality of affirmative action per se.
 
In a landmark 2003 case involving the University of Michigan's affirmative action policies, the Supreme Court decisively upheld the right of affirmative action in higher education. Two cases, first tried in federal courts in 2000 and 2001, were involved: the University of Michigan's undergraduate program (Gratz v. Bollinger) and its law school (Grutter v. Bollinger).  The Supreme Court (5-4) upheld the University of Michigan Law School's policy, ruling that race can be one of many factors considered by colleges when selecting their students because it furthers "a compelling interest in obtaining the educational benefits that flow from a diverse student body."  The Supreme Court, however, ruled (6-3) that the more formulaic approach of the University of Michigan's undergraduate admissions program, which used a point system that rated students and awarded additional points to minorities, had to be modified.  The undergraduate program, unlike the law school's, did not provide the "individualized consideration" of applicants deemed necessary in previous Supreme Court decisions on affirmative action.
 
Justice Sandra Day O'Connor, who wrote for the majority in the University of Michigan Law School case, predicted, "The court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."  We are 17 years away from the time when Justice O’Connor predicts that racial references will no longer be necessary, are we any closer to reaching that goal than we were in 1961 or 2003?  Have we achieved a level playing field for all Americans?  If not, how do we achieve this goal?

Law schools in Florida have struggled for years to attract more minorities in the legal profession.  Despite recruitment drives and other efforts to boost enrollment, minority enrollment numbers at some Florida colleges have remained stagnant or have fallen off.  The national Law School Admission Council recently reported the University of Florida's enrollment of Black law students enrollment at the University of Florida, the state’s largest public law school, dropped from the fall 2006 to fall 2010 by 10 percent.  Similarly, Hispanic enrollment fell by more than one-third at Florida A&M University’s law school from 2008 and 2010.  University of Florida officials believe that budgetary constraints are partly responsible for the decline in enrollment.  Data reported by the Minority Corporate Counsel Association (MCCA) and Vault.com in the fall of 2010, substantiated fears that the effects of the recession would undo diversity gains achieved in the legal profession over the past decades.  Is the decline in minority enrollment being experienced by Florida laws schools a trickledown effect of the economy or are there other factors effecting law school enrollment?

The percentage of minority attorneys in big firms increased by 0.2 percent, to 13.9 percent, in 2010 according The American Lawyer’s Diversity Scorecard.  The increase, while small, is noteworthy because it curbs the decreases experienced in 2009 for the first time in the decade since these numbers have been collected.  The American Lawyer reports, “The fall in diversity seen in last year's Scorecard came after large law firms shed 6 percent of their lawyers in the depths of the recession, including 9 percent of their minority lawyers. This year, even though overall attorney head count continued to drop--slightly--the number of minority lawyers rose.”  Diversity proponents are hopeful that the drop in diversity is a one-year phenomenon.  “The loss of minority attorneys during the recession set in motion industry-wide initiatives to reemphasize diversity,” according to E. Christopher Johnson, Jr., a Thomas M. Cooley Law School professor.  In addition, firms have turned to lateral hiring  to boost their minority ranks.  Did your firm experienced a similar increase in minority attorneys in 2010?  Likewise, has your firm employed lateral hiring to increase the number of minority attorneys?