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Diversity, Prejudice and the Bakke Decision

Oct 2001

On Monday, November 12, 2001, at 7 p.m., Eric Holder, formerly the Deputy Attorney General of the United States, will deliver the Cardozo Lecture. His subject will be "The Importance of Diversity in the Legal Profession." This topic is of great substantive legal significance. It is directly connected to the question whether, for the purpose of increasing diversity, race, gender and the like should be taken into account in making decisions about hiring and promoting lawyers. Mr. Holder's topic also bears on the related question whether such classifications should be considered when selecting judges.

In 1978, the Supreme Court of the United States decided University of California Regents v. Bakke. The Court below had struck down a preferential medical school admission program that allocated admission slots to economically or educationally disadvantaged minority group members. It also had approved an injunction barring any consideration of race.

Justice Lewis F. Powell, Jr. wrote the controlling opinion announcing the judgment of the Court. In a middle-of-the-road opinion that rejected the use of quotas to enhance racial diversity, he nonetheless reversed so much of the judgment as enjoined any consideration of the race or ethnicity of any applicant. He reasoned that the interest in promoting diversity "is compelling in the context of a university's admission program" and that a "properly devised admission program involving competitive consideration of race and ethnic origin" was necessary to promote that interest.

In recent years the Association of the Bar of the City of New York, although not directly subject to the requirements of the Equal Protection Clause, has made use of the Bakke rationale insofar as promoting diversity in the legal profession and the Judiciary is concerned. My predecessors and I have affirmatively taken race and gender into account when appointing well-qualified persons to be Committee Chairs. We have called on these Chairs affirmatively to take race and gender into account when appointing committee members. We have urged law firms and corporate and governmental law offices affirmatively to take such factors into account when hiring and promoting lawyers.

Several City Bar programs are directly preferential to minority group members. Our Thurgood Marshall Internship program helps to promote diversity in the profession by giving minority high school students summer jobs in law offices in part to interest them in legal careers. We also have a fellowship program for minority law students that finds them first year summer jobs at law firms and corporate law departments, including those firms that do not otherwise have first year summer programs.

The Association also works to have race and gender and the like taken into account to promote diversity on the Bench. Recently I sent Governor Pataki a resolution of our Minorities in the Courts Committee urging that he appoint a well-qualified Hispanic to the Appellate Division. We acted on the conviction that a diverse bench is necessary to secure public trust and confidence in the Judiciary.

Although not directly within Justice Powell's Bakke reasoning, programs to promote diversity serve another key function. In many selection processes, including the appointment of judges and the selection of law firm partners, senior staff in government law offices or corporate general counsels, the identification of those who are well qualified is often only the first step. The final choice generally turns on picking the one who is, or the few who are, found to be best qualified.

That choice of "the best" stands a greater risk of being tainted by so-called "soft prejudice" - what President George W. Bush calls "the prejudice of low expectations" - than does the initial choice of those who are well qualified. A commitment to the promotion of diversity when choosing "the best" has the effect of counterbalancing in close cases the effect of prejudice in this critical context that is so related to the exercise of actual power in business and society.

The prejudice of low expectations is a problem not just of the past but also of the present. Expectations about women, Asians, African Americans, the disabled, Latinos, gays and lesbians and others are often, in the here and now, influenced by stereotypes. I know this firsthand. Several firms with whom I interviewed refused to consider me for a litigation position. One interviewer told me that a person such as myself who is short and uses a wheelchair would not have enough "presence" to be effective in court. Thankfully, Cleary Gottlieb hired me to be a litigator and gave me the chance to pass this "presence" test.

No constitutional issue is raised when the government uses or requires the private sector to use affirmative action to give a well-qualified disabled person a place at the table. Classifications based on disability are not subject to strict constitutional scrutiny. Nor are classifications based on gender. However, the rule that racial classifications are subject to strict scrutiny can create a constitutional obstacle to helping African Americans in this way.

This discrepancy creates a serious dilemma and one that is of constitutional concern. The elimination of the badges of slavery - of which lingering prejudice against African Americans is one - stands as a central purpose of the Civil War amendments to the Constitution. Continued promotion of diversity as allowed by Justice Powell's opinion in Bakke is a way to affirm both an abhorrence of racial or ethnic discrimination and the necessity to fulfill the purposes of the Thirteenth and Fourteenth Amendments.

Bakke, however, is being called into question in the lower federal courts. Three Circuit Courts of Appeal have refused to rely on Justice Powell's opinion. Eric Holder's Cardozo Lecture affords us an opportunity not only to hear a distinguished public servant speaking on a critical topic, but to learn more about facts that bear on the outcome of a first magnitude constitutional issue of direct relevance to the profession.

I urge you to make every effort to attend the CardozoLectureon November 12.

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