Will Anyone Lower the Boom on the Virginia State Bar?

John Rosenberg, Discriminations, March 4, 2009

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. {snip}

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.

{snip}

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

{snip}

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.

{snip}.

{snip} [Joseph W. Stuart, another Fairfax County attorney, writes in a letter]

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. {snip}.

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. {snip}

{snip}

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.

{snip}

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.

{snip}

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. . . .

{snip}

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