Maud Maron was a career public defender with the Legal Aid Society and, as one might expect, quite progressive in her leanings. But what she was not, as became fashionable on the fringe, was “anti-racist.” This was reason enough for LAS and the Black Attorneys of Legal Aid to attack, and claim she could not be a competent public defender as she wasn’t dedicated to the cause.

The mandate is a simple one. To be anti-racist, to dismantle racism here at LAS, and in every organization, we must all recognize that white supremacy drives every policy and law, every opportunity and every advantage. For those of us who are white, it is a recognition that power and privilege has been granted merely because we are white. While you have dedicated your life to public interest, you cannot do this work effectively and fully unless and until you face that reality and own that you are part of the problem.

Seems kinda discriminatory to say that Maron can’t “do this work effectively” unless she admits to being racist because she’s white, right? Well, yes and no, says SDNY Judge Katherine Polk Failla.

The Court’s careful review of the BALA and LAS Statements demonstrates that they were not, as Defendants claim, limited to expressing disapproval of Plaintiff’s political views on an issue touching upon race. If this were the sum total of the statements, the Court would agree with Defendants that the statements would not implicate Title VII. But the LAS  Statement goes further, expressly tying white attorneys’ — specifically Plaintiff’s — ability to do the work of a public defender to whether they accept the anti-racist credo and assume the attendant responsibilities.

Maron sued under Title VII and defendants moved to dismiss. So Maron’s cause of action survived because, as Judge Failla held, this was expressly tied to her race? But there was more!

Poignantly, the LAS Statement imposes additional obligations on white public defenders “merely because” they are white:

To be anti-racist, to dismantle racism here at LAS, and in every organization, we must all recognize that white supremacy drives every policy and law, every opportunity and every advantage. For those of us who are white, it is a recognition that power and privilege has been granted merely because we are white. While you have dedicated your life to public interest, you cannot do this work effectively and fully unless and until you face that reality and own that you are part of the problem. You cannot stop there, you must actively work to dismantle the systems that lend you privilege and oppress BIPOC people. To push against the deep work needed to change and be threatened by the conversation, is the exact definition of white fragility….White people have a duty to no longer be silent and a responsibility to confront these systems of oppression and to shun all forms of white supremacy in our society, in our workplaces, and within our hearts and minds.

So Maron really, really survived the motion to dismiss? Nah.

To adequately plead a claim against an employer for hostile work environment under Title  VII, a plaintiff must plausibly allege that “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the  conditions of the victim’s employment and create an abusive working environment.” This test has both objective and subjective elements: “the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive.”

This just wasn’t sufficiently severe and pervasive, to argue that no white person can competently be a public defender if they aren’t fully dedicated to being an anti-racist and actively working to “dismantle” the racist “systems” of privilege and oppression. Can a white lawyer who isn’t dedicated to the cause competently represent defendants or must public defenders also pass an ideological litmus test atop the bar exam before being allowed to walk into the well? And if this is true of PDs, what about the rest of the criminal defense bar? Are white criminal defense lawyers either anti-racists or incompetent?

*Tuesday Talk rules apply.