Croson, Diversity, & the Virginia State Bar

"Diversity" has a long history of being used to mask lowered standards and quotas for subsets of the human race. In US history this can be traced back to when Harvard's president was unable to use quotas to limit the admission of Jewish students (who scored well on the competitive entry exam), but the use of "diversity" reduced Jewish admissions to the desired 15% anyway.

In the modern era, the goal of "diversity" is something which we all should look at with suspicion. In particular, as lawyers we should look very closely at any such claim. A requirement that all people, regardless of ethnicity, gender, or creed, shall be equal under the law and that equals receive the same opportunities is laudable. However, the second "diversity" steps an inch over into the zone of set asides it becomes not just morally wrong, it becomes unconstitutional.

Anyone who has gone to law school post 1989 should know this. In 1989 City of Richmond v. Croson struck down governmental set asides for anyone in a specific zone unless in remedy of a specific past discrimination in that field and the set aside was the most narrow method of curing the discrimination. "Reverse discrimination" is just as much discrimination as any other under the constitution.

Of course, since Croson those who want set asides have learned not to say so out loud. "Diversity" has become the flag behind which they now gather. Those of us who would be excluded have become wary of this.

Comes now the Virginia State Bar, an administrative agency of the Virginia Supreme Court created by the General Assembly, and decides that it no longer needs to be the organization which patrols the activities of lawyers. It needs to be an organization engaged in social engineering. Through the last president and the current occupant of that office, we are having set asides pressed upon the Bar. The president wants to change the mission of the Bar, create a Diversity Conference, and create a seat on the VSB Council and Bar Executive Council for the Chair of that conference. Mind you, this is creating a seat based not upon expertise in any area of the law or judicial circuit representation or acclaim and recognition by the Bar in general, it's a seat solely because the person occupying it is "diverse."

With this in mind, it becomes extremely important to know what the president means by "diverse." However, the president of the Bar, being a lawyer, knows better than to do that because it would make his initiative unconstitutional on its face.

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.

I'm surprised he actually went so far as to admit race, heritage, and gender must be considered (be the admission ever so backhanded). Nevertheless, without defining it he has declared it extremely important in the pursuit of the law.

Via the Virgina Lawyer (our Bar magazine), members have raised strong, well-reasoned objections to this as outside the scope of the Bar's function, a controversial social issue which the Bar should not get involved in, and an obvious beard for quotas. "'Diversity' Ends in a Racial Headcount", "Disband Task Force,Withdraw Proposal", "Rule of Law Not Linked to Diversity", "Focus on Individuals, Not Groups", "Disband Diversity Task Force".

Will these letters stop the Bar president? Probably not. Let's be honest, most lawyers couldn't give a hoot as to what the Bar is doing (right or wrong) unless it impacts their life or they need its protection. No one I've talked to even knew this initiative is pending. It'll get through without the notice of the vast majority of the Bar.

Next comes the possibility of legal challenge. After all, the Bar is created by one branch of Virginia's government and serves another; it's a government agent. Can it create these set asides? In particular, can it set aside a position on the VSB Council and VSB Executive Council based upon "diversity?" It's a question which might require some data before the question can be decided. After all, by opening the diversity committee to individual lawyers the Bar allows all Bar members to join. In other words, there won't be a sign at the door saying "White Male Christians need not apply." It's theoretically possible that this committee might actually be diverse. If the membership distribution of the conference is roughly equivalent to the membership distribution of the Bar and its leadership reflects such the conference would be constitutional. Want to take bets on whether that will be the case?