Racism in the Bar, and the Price of Raising the Bar

Backlash. There is always a backlash to progress. In the last month we have seen the confederate flag banned from Nascar, two major league sports franchises reexamine their name and logo, and new laws and new conversations spring up around the country. We have seen courts, like our Washington Supreme Court, take responsibility for, and demand more to break down, systemic racism. See Letter.

But there is always backlash, even among those held to a fiduciary ethical standard. In the past month, two members of the Bar publicly lashed out against people of color.

The first was on a certain list serve with thousands of members. In a discussion about recent low bar exam pass rates (note: the bar exam substantially changed recently), one longtime attorney suggested this was because of “affirmative action” putting women and minorities into law schools. In other words, he alleged that women and people of color were not qualified/smart enough to succeed in law school and the bar exam. This also inherently suggests that women and people of color who are lawyers are there only because they were given an advantage, and were not otherwise qualified and deserving based on merit.

When told he should not post such things, this person acknowledged he probably should not, and stated he planned to retire and take his family from “this ‘dumbing down’ society.”

Goodbye.

The next event was more shocking because it came from one of the Governors (board members) of the Washington State Bar Association (WSBA). Governor Carla Higginson argued that WSBA messages should not be sent to minority bar associations (MBAs), which she called “special interest groups,” because doing so would “stack the deck” against white people. She claimed that discussion of race is divisive and prevents us from focusing on the practice of law (despite the fact that it is part of society, the law, and the Supreme Court’s call to action to combat racism).

Our firm was not having it. Former WSBA President Paul Stritmatter sent a letter to the current WSBA President, who has also called for an investigation.

Governor’s Higginson’s points are ignorant and devastating to leadership in our profession. Black people represent 4.4% of the Washington population, and 2.3% of the Bar. Hispanics make up 13% of the population, and only 2.5% of the Bar. Asian Americans represent 9.6% of the population and about 5.3% of the Bar.

Minority bar associations are not out to get white people. They include white people. They are for people to share culture, experiences, and opportunities, and for anyone who supports a fairer system.

We are raising the Bar (pun intended) on what racism is. The now-antiquated definition of racism involves hating another race of people and/or believing those people to be inferior. This definition fails to recognize the role unconscious bias plays in society, and excuses personal responsibility to improve. It leads to “we don’t know what’s in his heart,” which focuses solely on the speaker, and reserves the “r word” for only the most openly hateful. But people of color are affected by racist speech and ideology without waiting for the final judgment on the speaker’s heart.

If you Google “define racism,” you will get this much more modern definition: prejudice, discrimination, or antagonism directed against a person or people on the basis of their membership of a particular racial or ethnic group, typically one that is a minority or marginalized.

Governor Higginson’ comments are racist. They are antagonistic toward what she perceives as groups of minorities that threaten what she facetiously calls “dumb white people.”

We are raising the Bar on what is expected. It is not enough to not be racist—hating others. The law calls for us to champion fairness, and for that we need to be anti-racist. This short Ted Talk podcast is the best succinct description I’ve encountered of what systemic racism is and how it can be combatted.