Tuesday Talk*: The Leong Ultimatum

Denver lawprof Nancy Leong was invited to be a panelist at the 10th Circuit Bench and Bar Conference to talk about Qualified Immunity, an extremely important criminal law and civil rights issue about which she’s written. She accepted the offer months ago, without knowing who else would be on the panel. There is nothing unusual about this.

Last Friday, she learned the identities of her fellow panelists.

Last Friday I got an email from Magistrate Judge Suzanne Mitchell. I noticed that the other three people on the panel appeared to be white men from two states: David Lee (Oklahoma City), Louis Bullock (Tulsa), and Toby Crouse (Kansas). (Links added.)

What became immediately apparent was that these were three white men, which Leong found unacceptable.

I don’t think 3/4 of the speakers on a civil rights topic should be white men. Especially not at the major annual conference for an entire circuit.

And so she sent an email to the group about it.

The initial response from Judge Mitchell acknowledged her complaint, stating “I very much understand your position,” and that she would “very much like to have you participate.” Judge Mitchell’s follow-up email was not as accommodating.

And with that, Nancy Leong was disinvited. The usual suspects reacted in their expected ways. Elie Mystal, noting the QI is “pretty much, the CIVIL RIGHTS LEGAL ISSUE OF OUR TIME,” saw the panel as being facially lopsided.

But there are other discussion where viewpoint diversity is critical. While gender and racial diversity is a mere proxy for viewpoint diversity, you don’t have to twist your mind into a knot to think that a balanced panel might be necessary if you want to have a full discussion about qualified freaking immunity, of all things. The last thing anybody needs to hear is three white men sucking off the #NotAllCops hooka, while Leong sits there and tries to be balanced all by herself.

It appears that Elie assumes that white men are all pro QI badgelickers, while Leong, a woman of color, would be the only diverse view, because viewpoint diversity clearly aligns with race and gender, right Justice Thomas?

In fairness, there should be no doubt that there are women and people of color who are worthy of being on this panel, and who have been traditionally left out because of the nature of the old boy network. It’s no surprise to anyone attending a CLE presentation to find some worthless mope who’s a close pal of a bar association president speaking, despite having nothing of value to contribute. It’s been happening forever, and those “pals” don’t happen to be women of color.

In other words, the complaint that there aren’t enough women and people of color on panels, because they aren’t part of the old boy network, is certainly real. That’s not to say, as the ABA does, that rules requiring diversity balance on every panel is the solution, but that we would do well to pick the best speakers, the best panelists, and that includes the people who have been excluded in the past for not being part of the gang.

Yet, Nancy Leong gave Magistrate Judge Mitchell an ultimatum. It’s not that she demanded the composition of the panel be changed, whether by adding a new panel member who met her demographic requirements or throwing the white guy off the panel, but that she would take a principled position of refusing to participate on a panel as the only WOC.

And Leong was taken up on her ultimatum. While she can’t be faulted for taking a principled position, does an invited panel member get to make demands of the panel? Is the conference at fault for not acceding to her demands? Would it have been too much to ask that another person of color, another woman, be added to the panel? Is this really about viewpoint diversity or bean counting?

*Tuesday Talk rules apply.

40 thoughts on “Tuesday Talk*: The Leong Ultimatum

  1. B. McLeod

    Commitments in this day and age don’t seem to mean anything. When a speaker or author is invited to a panel appearance, they should inquire about the make-up of the panel if that is of concern to them. Before agreeing to participate. And (if as sometimes occurs) the identity of the other panelists has yet to be determined, one could certainly conditionally accept, with a caveat about how many LGBT or differently-pigmented people need to be on the panel. Leong’s conduct, by contrast, simply showcases the absence of basic manners and consideration for others that is the hallmark of today’s know-it-all, holier-than-thou leftists.

      1. delurking

        It’s not the ultimatum, it is the follow-up. She agreed to be on a panel, without knowing who the other panelists were (“I said yes. I didn’t know who the other speakers were yet”). When she found out who they were, she objected gave them a choice, without mincing words (“I’m not willing to appear on a panel so lacking in demographic diversity, given that it’s 2018”). The organizers were unwilling to boot an already-invited panelist, or to expand the panel, so they followed her wishes. Then she wrote “What happens when women of color ask for more diverse conference speakers? Well, I was just removed from a panel at the 10th Circuit Bench and Bar Conference because I objected that the other three speakers on my panel were white men”.

        This is an unfair accusation. She was removed because she said she was not willing to appear with the three white men, not because she objected that they were white men. It is a pretty important distinction.

      2. Alan

        It doesn’t make her wrong about under-represntation based on skin color and (assumed) gender identity, which is a serious and ongoing problem. Taking a principled stand to not participate would have been laudable.

        Where the message and the teachable moment gets lost is extrapolating from skin color and gender to assumptions about positions and ability to add value to the discussion, as she does and Elie Mystal doubles down on.

        Would either really prefer Michelle Malkin or Ben Carson to Radley Balko?

      3. B. McLeod

        When people get to tallying numbers based on pigmentation, gender, gender identity and such things, I see that as a matter of politics more than “right” or “wrong.”

        As a matter of logistics when people are going to insist on a certain panel makeup as a condition of participation, that should be communicated at the outset. That might actually influence the panel makeup, furthering the alleged objective. What Leong did here is simply personal showboating, with no effect beyond another virtue-signaling opportunity for her self-aggrandizement. (Exactly the sort of completely predictable outcome which might cause one to think this was her real objective all along).

        1. PseudonymousKid

          Prof. Leong didn’t insist on any certain makeup. All she did is say “not three white men and me.” If she’s tallying numbers, she’s doing it wrong. Now there’s 0 people with the diversity Prof. Leong wants on the panel. Great job.

          Personal showboating makes the world go round. Can’t blame her for playing to her audience and trying to build up those valuable victim-credits.

      4. Patrick Maupin

        She may very well be right that the panel will be useless because of the lack of diversity. And, from her perspective, and for her political reasons, it may have been useful to short-circuit the usual sort of back-and-forth, e.g. “I would be more comfortable if there were other minorities on the panel,” “Sorry, we’re not enlarging the panel or disinviting other panelists,” “Sorry, I can’t in good conscience do that so I respectfully must withdraw my participation,” with the given ultimatum.

        But the entire reason that the ultimatum is useful for her is exactly the same reason that it (and almost all ultimatums) should be rejected whenever possible. It is a ploy that attempts to transfer significant power (in this case, political) to the one wielding it. If we don’t give into ultimatums when lives are literally at stake, e.g “we don’t negotiate with terrorists,” then why should we give into them when all that is at stake is some lame judicial panel in flyover country?

  2. Richard Kopf

    SHG,

    I have read the bios of each of the panelists. Unsurprisingly, they all came from within the Tenth Circuit since the target audience for such conferences is practitioners and judges from within the Circuit.

    Three are practicing male lawyers–one of whom with 35 years experience and the author of a published handbook on 1983 litigation, another being a former Tenth Circuit law clerk with additional federal District Court law clerk experience from within the Tenth Circuit, and a third appearing to be a plaintiff’s side lawyer. And then, of course, one of whom was a female law professor who asserts that she is also a person of color. This particular panel was being superintended by a female magistrate judge.

    The complaints of Professor Leong and Elie Mystal ring hollow to this old white man. But, I admit that I wear hearing aids.

    All the best.

    RGK

    1. SHG Post author

      If I was on that panel, it’s highly unlikely that I would be “sucking off the #NotAllCops hooka.” #NotAllOldWhiteMen

      1. Richard Kopf

        SHG,

        As you might expect, if I were on the panel, I would be “sucking off the #NotAllCops hooka.” Actually, I have found it deliciously addictive.

        All the best.

        RGK

          1. Richard Kopf

            SHG,

            If, but only if, the Tenth Circuit adds me as a panelist in place of Professor Leong will I reveal my special blend. All the best.

            RGK

    2. Scott Jacobs

      So wait. Hold on.

      The three white dudes had actual, useful, practical experience litigating civil rights claims, while the professor had none, and basically there to talk about what she thought the law should be?

      Yeah, I’m not seeing a downside to her not being on the panel anymore.

  3. David Meyer Lindenberg

    So the speakers were drawn from three states in the Tenth Circuit – Oklahoma, Colorado and Kansas. According to the 2010 census, these states are, respectively, 72%, 81.3% and 83.8% white and 1.7%, 2.8% and 2.4% Asian. Adjusted for state population, the white share is 78.9%, the Asian share 2.34%.

    So if you wanted to go the myopic proportional-representation route, you could just as easily argue that while there were barely enough whites on the panel, Asians were overrepresented by a factor of ten and that it was only right and just that Prof. Leong be excluded.

    More reasonably, since Elie and Prof. Leong are right that this is an important civil-rights topic, it’s all the more important that anyone speaking about it to other lawyers be a serious thinker. Prof. Leong’s fashionably silly ultimatum reveals her to be anything but. Her going will hopefully make room for someone who cares more about educating people about the scourge of official immunity than self-indulgent grandstanding.

    1. Lex

      “…serious thinker. Prof. Leong’s fashionably silly ultimatum reveals her to be anything but.”
      That was pretty well-established by “Against Women’s Sports” and “The Open Road and Traffic Stop: Narratives and Counternarratives of the American Dream.”

      1. SHG Post author

        I don’t think Nancy is going to pay much attention to David (or me) anyway.

        1. Dan

          So her reading comprehension is really bad. Surprising. I thought you had to be able to read pretty well in academia.

        2. Kathleen Casey

          “Have you ever actually put yourself on the line?” Can I get her job? I want put myself on the line. I want to protest.

          Ms. Softie has no clue.

    1. phv3773

      Judge Kopf reports one is a plaintiff’s lawyer in a way that implies that the other two men aren’t.

      It may be that Prof. Leong fears being treated by the other panelists with the snarky disrespect shown in the comments here.

      1. SHG Post author

        Curious that you call it disrespect. Many people are subject to snarky disrespect in comments, here and elsewhere. Is this different? Is it different because it’s Nancy Leong rather than someone else? I’ve never seen you raise that issue before, so why now? And why “disrespect”? Discourtesy is one thing, but disrespect?

      2. B. McLeod

        Of course, because colleagues on presentation panels typically relate just like the posters on Internet comment boards. I’m sure we’ve all seen that.

        1. SHG Post author

          Obviously, the panel discussion will be civil and collegial, as it should. I’m more interested in this sudden concern for tone policing “disrespectful” comments.

    2. PseudonymousKid

      No one seems to care. It’s enough that they all look alike. What they’d say is as much a mystery as what Prof Leong would say.

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