Short Take: The ABA’s Binders Full of Women

We knew it was coming. March 1st was the date, and the American Bar Association made it very clear that as of that date, it would be mandatory.

In June 2016, in response to the efforts of the ABA’s “Diversity & Inclusion 360 Committee,” the ABA Board of Governors adopted a new ABA Rule for all ABA-sponsored Continuing Education (CLE) Programs. The ABA intends that this new rule be mandatory, not aspirational. It will “take effect March 1, 2017.”

This new rule does not remove barriers to equal opportunity nor does it promote intellectual diversity. Instead, this rule imposes a requirement that each CLE panel has “diversity” based on sexual orientation, gender identification, and so forth.

There are two competing interests at stake. On the one hand, there is the concern that the CLE presenters be sufficiently knowledgeable and competent to offer substance, as well as not bore the class to tears. On the other, there is the interest in having people other than the usual white men get a chance to present. It may be that non-white-men have different views that have not been adequately represented, or it may be that they just want the same opportunity to stand on stage and get some recognition.

As long as the presenters are substantively knowledgeable and competent to teach, it’s all good.

Except now, it’s mandatory. You simply can’t throw a CLE without some diversity, and this presents a problem. What do you do when you want to put on a play but lack the correct number of vaginas or melanin?  The ABA has come to your rescue.

The ABA has recently launched a Diverse Speakers Directory. It is intended to help the organization meet Goal III of its mission and “promote full and equal participation in the legal profession by minorities, women, persons with disabilities, and persons of differing sexual orientations and gender identities.”

In June 2016, the ABA Board of Governors approved changes that require any ABA-sponsored CLE panel of three people or more to have at least one member who adds diversity by way of their race, ethnicity, gender, sexual orientation, gender identity or disability.

To help CLE event planners meet this standard, the ABA Office of Diversity and Inclusion created the directory. Both ABA and non-ABA members are invited to sign up and create a profile outlining their areas of legal expertise and diversity demographic. There is also the opportunity to add video or audio from any previous speaking engagements or CLE panels you have participated in.

Yes, there was once a time when speakers were chosen because they were known in the profession, whether for their skills, their ideas or their amusing ability to attract a paying audience. And yes, it served to close off opportunity for speakers who had the chops but not the recognition.

It’s hard to find good speakers for CLEs. It can be nearly impossible to find good speakers based on their genitalia, skin color or sexmate. If the ABA is going to mandate arbitrary “diverse” characteristics, then the least it can do is create a place to find people who fit the bill. But then, will they be the token on the panel or a good speaker who was never before given the time of day?

When Mitt Romney said he had binders full of women, progressives were outraged. It appears that enough time has gone by that the ABA can safely do the same. If they want to be found, they need to get their names in the binders.

H/T Josh Blackman

47 thoughts on “Short Take: The ABA’s Binders Full of Women

  1. Tamar Birckhead

    Scott, is it really asking too much to have a single woman or person of color on every panel? You would hope that lawyers could be trusted to do this sua sponte, just in the spirit of putting together a more interesting program…but clearly, given how little has changed, it is a rule that needs to be mandatory. CLEs are taught by “experts” or at least people who have been deemed worthy of a platform for sharing their views. Women make up 35% of the profession and POC are 12% — we can manage to have that same percentage (at least) represented in CLE programs.

    1. SHG Post author

      That’s the argument, that “but for” discrimination, the composition of ABA panels would organically reflect the composition of the profession. So does this mean that the big machers at the ABA who put together CLEs are heinously prejudiced? Maybe.

      But your question, is it “really asking too much” isn’t the point. They’re not asking. They’re requiring.

      1. Christopher Jennison

        It’s not just ABA organized CLEs, but co-sponsored ones, and many groups come to the ABA for co-sponsorship even in name alone– so it’s not just “the big machers at the ABA” but many groups.

        The ABA is requiring because this is a minimum that should be met. As I noted when I spoke in favor of the requirement, 50% of my classmates in law school were women. That is the future of the profession. It should not be difficult to find a woman, a diverse person, a person with disabilities to meet the threshold of this rule.

        1. SHG Post author

          The depth of your understanding explains much about the requirement and the current obsession of the ABA. As for the future of the profession, it will be whatever it will be no matter how righteous the social engineering.

          1. Hunting Guy

            If they want true diversity on the panels, they need to put some non-lawyers on the rotation.

    2. Erik H

      “Women make up 35% of the profession and POC are 12%”

      This is bad math. For various reasons–including but by no means limited to “past discrimination”–those percentages are not true at the top. If your goal is to have CLE speakers with decades of relevant experience, you’re picking from a very different pool. For example, say that you want lawyers with 30 years of experience; this will functionally relate to the demographics of lawyers who passed the bar in 1987, and are still practicing today. It has nothing to do with 2017 demographics. I agree we should seek proportionality of representation, but we should not use the wrong numbers.

      Nor should we “downgrade” speakers to find diversity. I am in my mid-40s. I’m good at what I do, I guess, but I still can’t see any reason why people like me should be on CE panels. Why not listen to people like SHG? Or better yet the various partners I know who have 25 years more experience than I do??

      When I was at a recent CLE, the 40-45 year old woman next to me complained about the lack of women on the panel and said they “should have hired her.”

      I couldn’t figure out a way to say “I am here because the presenters are highly successful partner-level attorneys who are much older than I am; much more experienced than I am; and know much more than I do. If you filled the panel with people like you, I wouldn’t have come to the program at all.”

      1. SHG Post author

        This comes around to Tamar’s point about her all-girl Law Revue (she’s gonna love that characterization). She can put on the show, but she can’t force the people one would hope/suspect should attend to come.

        One of the keys to a successful CLE is having presenters people want to hear. Get big draws on the program and people show up. Get the right combo of skin and genitalia and . . . who knows? You can force CLEs to be diverse and inclusive, but you can’t force lawyers to pay money, spend time, show up. They vote with their feet, and no matter what your mix of panelists, either you’ve got a program people want to come to or you don’t.

        1. Tamar Birckhead

          But Scott, isn’t it a vicious cycle? If the organizers of panels are forced to consider and include non-straight white men (and I can promise you that there ARE experienced and talented people in this category), then these folks CAN become the “big draws” or at the very least, they can add another perspective to the chorus. I know from personal experience that once you’re on one CLE panel, you are much more likely to be invited to speak on others (assuming you’ve prepared and contributed something of substance). It’s the domino effect. Is it like affirmative action? Yes — it’s another way to counter the effects of systemic discrimination/implicit bias/the old boys network, etc. I am always conscious of whether there is at least one woman/POC on a panel or an author in a law review issue or in an edited collection of chapters — and inevitably I appreciate the different perspectives.

          ( My comment about the audience at the symposium was more a reflection on who tries out/gets on the law review than a comment about people not being interested in the program because of the participants. Very few people attend those events regardless.)

          1. SHG Post author

            For practicing lawyers, not as much as for, say, prawfs. If it’s a panel on cross, I want to hear from someone who has beaten big cases, whose rep is that she does a killer cross. If it’s a panel on how to create a successful firm, I want someone who has a successful firm. If it’s a panel on how to be a law blogger, I want someone who is a successful law blogger.

            Whenever I get a CLE email (and I get tons), I check to see who’s speaking. Most of the time, they’re people I wouldn’t let wash my car. I really get a kick out of the “How to Blawg” CLEs (that give ethics credit!) by people I’ve never heard of. And I kinda know who is a blawger.

            Do I care if they’re black, white or green? Nope. Not even a little bit. I wouldn’t go to see someone because of their gender or despite it. I just want people who I know have the chops in doing whatever they’re teaching. If their only claim to fame is they’ve been on ten CLE panels, they got nothing.

            Edit: But this raises an ancillary problem: what if women and minorities aren’t retained to do the big cases, or don’t win the big cases, so they can’t get a reputation for having the chops, either because they never got the chance or they don’t actually have the chops?

          2. Jason K.

            Two wrongs don’t make a right. *IF* there is a problem with discrimination, you don’t fix it with reverse discrimination. Not only are you explicitly committing the same sin you accuse others of, it is inevitable that lower quality people will get pulled in. Even if that doesn’t happen, because it is being forced, they will all have the taint of being a ‘diversity’ pick. The result is that you end up actually damaging the image of the same class you are attempting to lift up.

          3. Sacho

            Something must be done about “the effects of systemic discrimination/implicit bias/the old boys network, etc.”. This is something. Therefore we must do it.

            If it turns out that women do not enjoy speaking at CLEs at the same rates as men, which course do you think the ABA should take: a) lower the standards even more , b) have even less CLEs or c) force “diverse groups” to speak at CLEs?

            If it turns out that white women enjoy speaking at CLEs very much, so much that they fill the whole “diverse group” quota, do you think the ABA should fight “white privilege” by splitting quotas into even more “diverse” chunks? Or are you, in the words of intersectional feminists, just trying to settle the score with white men?

        2. B. McLeod

          Once the wise chidlers at ABA see this in operation awhile, they’ll realize they didn’t get detailed enough with the criteria. Eventually, it will have to be not just some number of women, but some number of fat, ugly women, to make sure no impermissible selection criteria are loose in the grand scheme of things. Further, for complete inclusiveness, there will also have to be set numbers of gay people and trannies and disabled folks of various colors and national origins. People who try to evade the standards with CLE panels of two will be required to form those duos with a fat, ugly, transgender female of color and a disabled, gay, Muslim foreigner who is at least 70 and a recovering alcoholic.

  2. Dan

    Seems like there’s an easy solution: just limit your CLE panels to two members. No need for artificially manufactured faux diversity.

    1. SHG Post author

      Is it faux diversity or has it been faux exclusiveness up to now? I’ve seen some truly bad presenters speak at CLEs, ignorant and boring, and they’re white males who happen to be buddies with the person putting the CLE together. It’s no more faux to be a intersectional black lesbian than a old cis-het white guy if the person doesn’t have the chops to cross an agent and make him cry.

        1. SHG Post author

          If you build it, they will come. Or not. Try we might, we can’t make people do what they don’t want to do.

        2. Jason K.

          So one of your most satisfying experiences was being openly bigoted? Explains a lot about your mindset.

          1. SHG Post author

            One person’s openly bigoted is another person’s effort to overcome prejudice. That’s part of the problem. Be nice.

        3. Erik H

          In what order did you do the screen?

          If you screened for quality (let’s say 20 years of experience) and THEN screened for diversity, you’ll end up with a fully-qualified pool of POC/women. Perhaps some folks will object but so be it, that sort of affirmative action is pretty much fine. Clearly it’s possible with, say, “female professors,” but that doesn’t mean folks do it.

          If you screen for diversity and THEN adjust quality standards to match, you’re selling folks short, because you end up with folks like a faculty member at my old school, who graduated college in 1998, Harvard Law in 2003… and started a tenure track position and taught “advanced constitutional law” in 2005. (Really? Not just ConLaw, but advanced ConLaw?) That dude was certainly speaking very early in his career, but it had a lot more to do with his diverse status than with his legal competence.

          1. SHG Post author

            that sort of affirmative action is pretty much fine.

            What inside you makes you think anybody in the world is asking for your approval? Whether it’s “pretty much fine” is a big issue; what mental defect compels you to believe that it’s up to you to decide?

        4. MonitorsMost

          The Vulnerable Defendants in the Criminal Justice System symposium. 11 articles, 14 of 15 authors are female when 93% of the federal prison population is male. Looks like you really nailed matching the demographics of the affected stakeholders there. And I’m sure this was a practical symposium to boot…

          And you wonder why the state is taking a chainsaw to the school’s budget.

  3. Richard Kopf

    SHG,

    I am absolutely OK with this new ABA rule measuring worthiness to be a CLE speaker by reference to genitalia and other non-competence-based measures. Thankfully, the rule is craftily crafted. It does NOT require short people to speak at CLE programs. Now that would have gone too far.

    As Professor Randy Newman made clear in his seminal work on diversity, the inclusion of short people in civil society goes too far:

    They got little hands
    Little eyes
    They walk around
    Tellin’ great big lies
    They got little noses
    And tiny little teeth
    They wear platform shoes
    On their nasty little feet
    . . .
    They got little baby legs
    That stand so low
    You got to pick ’em up
    Just to say hello
    They got little cars
    That go beep, beep, beep
    They got little voices
    Goin’ peep, peep, peep
    They got grubby little fingers
    And dirty little minds
    They’re gonna get you every time
    Well, I don’t want no Short People
    Don’t want no Short People
    Don’t want no Short People
    ‘Round here

    In short, be omitting short people from the list of CLE must-haves, the ABA has proven that it has not gone round the bend just yet. All the best.

    RGK

      1. B. McLeod

        Hey, I am in their “Banned Speakers Directory,” and I think there is a reasonable chance that is the one thinking people will tend to prefer.

        1. Dragoness Eclectic

          (1) The ABA has a “Banned Speakers Directory”?
          (2) How do you get on it? Sounds like fun.

    1. Ken Mackenzie

      B. McLeod is not thinking of attending their events. I would bet they are thinking of ways to make your attendance compulsory.

      1. B. McLeod

        They will fail. They cannot even make payment of dues compulsory. They do not have armies, or even crowns. They cannot afford to pick many more brainless fights in their doomed efforts to rule the world.

  4. Boffin

    Ha! You lawyer bastards have been foisting this sjw shit on the rest of us for years. It’s about time you got a taste of it. Serves ya right!

  5. Jim Tyre

    One easy solution would be to have Billy Bob become a professional CLE presenter. They have so many personalities that all the bases are covered at once.

        1. Billy Bob

          Bill does not want to be a lawyer. He wants to skip that [tedious] part on the way to judgeship, something akin to RGK,… no ma no pa, no whiskey sour!
          Lawyers are the lowest,… We want to be Judge, for life! Otherwise, we pick up the marbles and go home.

  6. Scott Jacobs

    OK, just to make sure…

    When I graduate law school and become a lawyer, I don’t have to go to these fucking things, do I?

  7. Ken Mackenzie

    David Bowie on a tour down under was required by union rules to have an Australian support act . So he hired a fiddler and told him to play in the lobby. Tokenism invites contempt.

  8. Scarlet Pimpernel

    So after following the links, it looks like the ABA is discriminating against gay people who choose to remain in the closet and transgenders who pass and chose not to broadcast that they are transgender. Not only that. they are also threatening $2500 files for CLE organizers who don’t out their gay and trans presenters. Rather interesting how progressive politics works.

    1. B. McLeod

      Well, this is an organization that has given up dues-sustained status to push its sociopolitical agenda. Honesty and rationality have fallen by the wayside. Not only does the organization feel compelled to issue silly crap like this, it has to daily misrepresent its membership, its alleged “nonpartisanship” and its “flagship publication’s” readership to mislead courts, agencies, potential members and advertisers. Basically, the diehard commitment to social engineering has reduced the ABA to a fundamentally dishonest and corrupt organization that no longer represents the interests of practicing lawyers in any respect. Obviously, that includes the gay and tranny lawyers as well, if they won’t toe the ABA line, even though ABA pretends to be specially devoted to them.

      1. Jim Tyre

        Hey B (can I call you B?)

        How do you know that they misstate their membership, readership, etc.? Not suggesting you’re wrong, I have no idea. But I’ve seen similar statements many times, and I’m curious about the factual basis.

        1. B. McLeod

          Jim, I have gone into it in detail on previous occasions and don’t want to take this discussion down a rabbit hole, but short answer, you can find blog comments online where House of Delegates members have revealed actual membership numbers, and ABA Journal has to file an annual statement of circulation by federal law which showed (last December) 267,551 issues (well short of “half the nation’s lawyers”). Also note that each ABA member gets a Journal subscription as part of the package, so 267,551 issues means there aren’t “over 400,000 members.”

          Thanks for not asking how I know about the “nonpartisanship.”

Comments are closed.