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.