October 22, 2019

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Healthy Workplace Discussions About Diversity, Part 1: Remembering why we became lawyers, and why that matters for diversity

This is the first in a series of short articles I’ll be sharing over the coming months to encourage healthy public discussion, especially among lawyers, regarding the reasons we support and need diversity in our workplaces and communities. The remaining articles in the series will be shorter and less autobiographical, I promise. For the first installment, I ask the reader to indulge a short trip down memory lane. As I reminisce about my experience in the public schools of Alabama, I hope to demonstrate why I care so much about embracing diversity, and why every lawyer should.

By the mid-1970s, Alabama’s public school systems understood that school segregation was unconstitutional. Yet the public schools in Birmingham, which I attended, remained de facto segregated, because the neighborhoods remained segregated. By the time I reached high school, the federal courts had taken control of Birmingham’s schools and had ordered the establishment of a magnet school program. My nearly all-white neighborhood high school was the largest public high school in the city, and it became the city’s “magnet school” by offering a variety of advanced academic classes that weren’t offered elsewhere. Willing minority students from all across the city were bussed to my neighborhood each morning. As a result, shocking as it seems that this would have occurred so recently in history, my classmates and I were among the first graduating classes in post-Jim Crow Birmingham who were educated in racially integrated public schools.

Since my classmates and I never knew any different kind of high school experience, most gave little thought to the political and ethical controversies that preceded and surrounded our school. As far as most knew, our experience was the norm. It is remarkable how easily teenagers become friends, regardless of race, when they live together day-to-day in classrooms, on sports fields, in school choirs, and in clubs that share common interests. It was, of course, only a sort of half-measure on the road to greater equality in all spheres of Birmingham’s life, because at the end of the day our black classmates boarded busses and returned to their homes across the city. After all, the racial segregation of Birmingham’s neighborhoods had yet to change. Only years later would we realize that desegregation of the neighborhood school was a catalyst that accelerated racial diversity in the neighborhood itself.

Outside the classroom, however, the debates raged, at least in Birmingham’s white neighborhoods. Notably, because Alabama was (and is) a very religious state, those debates often took place in churches. I grew up in an open-minded, progressive Protestant denomination, and civil rights were an ever-urgent theme of discussions in the congregation that nurtured me. I was taught that support for civil rights was a requirement of our most deeply held beliefs, not because the law said so, but because it was right and good. We were taught that, at the very core of our ethical commitments, we ought to respect the dignity and infinite value of every neighbor, regardless of race (or gender, or nationality, any anything else). I realize such statements sound like platitudes to some readers. When you realize, however, that we were probably in the minority who were taught those values, they cease to be platitudes. Those values become radical ideas.

Unfortunately, as readers probably already expect, not every Birmingham congregation taught the same thing, and I was well aware that my friends in some of the more conservative (all-white) congregations were being taught something else. Some of those congregations preached hate, camouflaged by insidiously religious justifications. They advocated segregation. Never mind what the Supreme Court said regarding the Constitution. If the Constitution required desegregation, then, they taught, the Constitution’s values were wrong and should be ignored.

Immersed in omnipresent questions about the law, civil rights, religion and core ethical values, those cultural circumstances led me to study both law and religion. It sometimes surprises people to learn that, while pursuing my law degree, I also graduated from Yale’s Divinity School, where I studied ethics, with a focus on questions of racial and interreligious dialog and reconciliation. But it shouldn’t surprise anyone that an aspiring lawyer would be interested in such things. It’s been my experience that lawyers very often come to the law because they care about the foundational values that underlie our legal system and our constitutional order. They care about justice and equality, and they become lawyers to make a positive contribution to society. As I recall, there were roughly 20 attorneys (and one retiring federal judge) among my Divinity School classmates.

It was also in the midst of Birmingham’s desegregation fights where I first learned a truth that attorneys today still need to hear. From time to time we need to be reminded that, while the law is a necessary part of creating a just society, where all persons are afforded equal dignity, the law alone is not sufficient to finish the job. Witness Birmingham’s public schools of my youth: Even though the Supreme Court shot down the idea of “separate but equal” schools, years later our schools remained both separate and unequal. Even when Birmingham’s magnet school program achieved better educational opportunity for some, others weren’t so fortunate. Even the limited beneficiaries of the program (i.e., both the black students and the white students like me) continued to suffer the deficits of living in wholly separate communities outside of school.

Sadly, for years after school desegregation began, Birmingham’s culture continued to prove that the law isn’t enough. Consider the fact that, in the wake of bussing students to my neighborhood each morning, the neighborhood itself finally began to integrate as non-white families moved across town. By the time I finished grad school, the neighborhood of my youth had finally begun to reflect Birmingham’s diversity. That was a wonderful development, of course, and the law helped that happen. But although the law had demanded and partially achieved greater equality in the schools, we also witnessed a backlash: A new era of white flight to the more distant suburbs had begun. In fact, some of those more conservative congregations (including some quite enormous ones) sold their buildings to emergent “black congregations,” and then the white sellers simply built new church facilities further out in the suburbs, where their membership could remain all white. Apparently their faith-based mission to be in service to their neighbors was a mission that defined “neighbor” more narrowly than I had been taught.

Not everyone fled, however. It was one of the great privileges of my life, if only for a brief interim year before I began practicing law, to serve as a member of the pastoral staff at the enormous United Methodist congregation that had raised me in Birmingham. I still recall the phone call I received from the Senior Pastor before I graduated Divinity School in New Haven: The neighborhood had finally become more diverse, he said, but Sunday mornings nevertheless remained “the most segregated hour in America.” While the neighborhood’s slow-motion integration had revealed the racism of some groups (like those congregations fleeing to more distant suburbs), my childhood congregation was committed to stay and serve. They were clear that their mission included service to the people of their neighborhood, whoever those neighbors might be. Would I help them build something new, a congregation that truly embraced and welcomed their newly diverse community? Accepting the invitation, I briefly took responsibility for creating and leading the first racially integrated United Methodist worship services on the East side of Birmingham. It was work with a purpose, which is always life-giving. I was tempted to stay and continue that work for the long term, but even then I knew I was better cut out to be a lawyer. I moved to the Washington, D.C. region a year later and have been in private practice ever since.

I share this brief autobiography about coming to the legal profession to remind my fellow lawyers of two things:

First, most lawyers I know became lawyers for more than job security, more than a good income, more than the prestige and privilege that often accompanies a juris doctor. We became lawyers to do good. Amidst M&A due diligence, negotiations with contentious opposing counsel, drafting motions to dismiss, or doing any of the many tedious and routine things that lawyers do each day, it remains true that each of us are, in our respective areas of expertise, contributing support to a system and society built on the rule of law. And the law itself is intended to support our shared, deeply held values about the equality, dignity and value of real people. In our day-to-day practices, one could be forgiven for failing to see the forest for the trees. But the big picture remains the same: competent, ethical lawyers in every legal discipline are – in fact, must be – the backbone of any society that honors the values I first learned from that open-minded, caring community back in Birmingham. One needn’t share my religious upbringing to share those values and aspirations. We care about diversity, not because the law requires it, but because we hold fast to the notion underlying that legal system – the simple, powerful notion that all people really are created equal.

Second, if we became lawyers to serve the principles and values I’ve described, we must be reminded from time to time that the law isn’t enough. A recent survey* by the Pew Research Center indicates that a significant minority of American adults continue to hold negative attitudes toward racial and ethnic diversity in their communities and workplaces. Interestingly, just like those first students who experienced desegregation in Birmingham Public Schools, survey respondents who have experienced more diversity seem more favorable toward it, and conversely those who have experienced less diversity appear less supportive. As one might suspect, respondents with higher education levels were also more likely to value diversity; less education correlates to less support for diversity, according to the survey. Of course, those of us who value workplace diversity already know that laws against workplace discrimination are not, by themselves, enough to result in the actual elimination of discriminatory attitudes and assumptions (both the conscious and unconscious kinds). To those of us who strive to achieve greater workplace diversity and inclusion, the Pew study reminds us that it’s quite likely some of our coworkers simply don’t agree with our efforts, even if they don’t express their opposition openly. Confronted with the reality brought into sharp relief by Pew’s latest statistics, we must recognize that, if we were motivated to become lawyers by a desire to work toward equality and respect for all, then it remains necessary to educate and persuade, and to foster environments where these values are more likely to become widely adopted. We have work to do.

So often our workplace diversity efforts are couched in the language of “compliance.” We institute internal processes to prevent or correct workplace discrimination in order to comply with legal requirements. Of course that’s a good thing, but it’s not enough. From time to time we should be reminded that the purposes underlying those laws are purposes that brought so many of us to the profession in the first place. Having been reminded of that reality, it’s also good to remember that mere compliance will never actually achieve those purposes fully. Yes, compliance regimes address certain inequities, but policies and procedures don’t change hearts and minds, as Pew’s study underscores. As lawyers in a wide variety of organizations – law firms, government agencies, nonprofits and companies of every description – if we want to live up to the lofty goals to which we aspired when we first chose this profession, we are going to have to accept the fact that changing others’ minds about diversity is part of the job description. That means we’ll have to do more, much more, than institute compliance programs. We’ll actually have to talk out loud about the value of diversity. Yes, even with our coworkers.

In the articles that follow in this series, I’ll offer ideas about starting and encouraging healthy conversation about diversity in the organizations where we work. We will talk about the varieties of diversity (race, gender, LGBTQ+ status, age, etc.) that enrich our organizations, the necessity of understanding implicit bias, and the simple reality that diversity actually drives better organizational performance. I conclude this first installment with a quick update on the community where the magnet school first brought different communities together. I go back to visit occasionally, and I read regular updates on social media. Though the neighborhood initially diversified, today its residents are almost entirely African American, because the renewed wave of white flight ultimately left a neighborhood with little diversity. The old high school was torn down years ago, but in its place a beautiful new campus was built, and graduates from my era – the ones who first experienced the birth pangs and blossoming friendships of integrated schools – have formed a vibrant, active organization that provides support to our alma mater through fundraising and volunteering. It would seem that my classmates learned to value what the school had to teach, both inside and outside the classroom. As lawyers, let’s learn those lessons, too.


* See “Americans See Advantages and Challenges in Country’s Growing Racial and Ethnic Diversity, May 8, 2019, at https://www.pewsocialtrends.org/2019/05/08/americans-see-advantages-and-challenges-in-countrys-growing-racial-and-ethnic-diversity/

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Todd Harris Technology Lawyer Womble Bond Dickinson
Partner

A Technology Transactions Partner and Adjunct Professor for Georgetown University Law Center in Washington DC, Todd Harris advises technology companies around the globe in connection with creation, commercialization, and disposition of information technology, proprietary software and data assets, including licensing and related regulatory compliance. He also regularly provides intellectual property counsel in connection with tech-centric mergers and acquisitions.

Todd helps clients craft strategies and programs for intellectual property protection, including trade secret and...

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