Position Statement
I am writing to oppose the repeal of Standard 206 as a retired law professor who worked with the ABA on its diversity projects and as a Board member of the Critical Legal Collective, an organization building partnerships, projects, and power to advance critical knowledge in education and beyond, in pursuit of multiracial democracy.
In August 2008, after the ABA’s adoption of Goal III which is to “Eliminate bias and enhance diversity,” then-President H. Thomas Wells, Jr, launched an initiative to assess the “State of Diversity in the Legal Profession.” I was the lead scholar and worked with Professor Marc-Tizoc González and Professor Tucker Bolt Culbertson in a year-long process that included four regional hearings with testimony from representatives of all sectors of the profession, followed by an invitational meeting with 200 participants, and a summit at the 2009 ABA Annual Meeting. Carolyn B. Lamm, the next ABA president, commissioned us, as the scholar group, to analyze the voluminous information and prepare a substantive report with recommendations.
The published report, "Diversity in the Legal Profession: The Next Steps,” included a letter from then-President Lamm which stated:
Our goal was to produce a practical, well-designed report that the ABA and others can use as a roadmap for advancing diversity in the legal profession, and I believe we have succeeded. . . Building a more diverse profession is not a quick-fix, short-term goal. It is an ongoing campaign, one in which the ABA has been engaged for decades. We are committed to continue it as long as it takes. We are committed to see a bench that reflects our population and profession in which every lawyer has the opportunity to achieve all of which they are capable.
We are committed to continuing it as long as it takes. What has happened to this commitment in light of the ABA Council’s pending decision to repeal Standard 206? The urgency to take meaningful steps to increase diversity in the profession as reflected in the rationales articulated in the Report has only increased. After a year-long process of hearing from people drawn to the ABA, the Report summarized three rationales for a diverse profession: a democracy rationale, the business case, and a leadership argument. It is the democracy rationale that has been flagrantly abandoned by the Council’s pending decision to repeal Standard 206. This is what we wrote in the 2009 Report:
Democracy is a political arrangement that must be conceived, taught, defended, extended, and painstakingly implemented. In our country’s 233–year history, lawyers and their clients have been in the vanguard of these political, constitutional and legislative struggles.
Diversity is the term used to describe the set of policies, practices, and programs that change the rhetoric of inclusion into empirically measurable change. Civil society, and especially professional organizations such as the ABA, occupies a crucial role in legitimizing, facilitating and instantiating the changes that are implicit in diversifying the larger society and its professions. Without a diverse bench and bar, the rule of law is weakened as the people see and come to distrust their exclusion from the mechanisms of justice.
Our country and its democratic foundations face an existential threat today from the authoritarian measures being taken by the Trump administration each day. The response of our former allies throughout the world makes evident that the United States no longer occupies a position of trust and honor. In the face of such momentous and deleterious challenges to our place among democracies, this decision about Standard 206 is relatively minor. It is no more than a data point in how organizations with national reputations and clout fail to stand up and defend democracy and the rule of law. This decision to repeal Standard 206 is one piece of the authoritarian mosaic being built day by day and bit by bit.
I was proud to lead the effort that resulted in the 2009 Report and to lend my voice to the ABA’s efforts to diversify the legal profession. Today, I am saddened by the ABA Council’s direction as shown by its pending decision to repeal Standard 206.
I strongly urge you to remember the commitments made by prior ABA leaders to fulfill the obligation to expand inclusion for the marginalized groups mentioned in the Report–racial and ethnic minorities, women, persons with disabilities, and the LGBT community. I urge you to reaffirm a commitment to a representative democracy and to re-authorize Standard 206 as one small but meaningful measure that contributes to creating and sustaining a robust and inclusive legal profession. Please do not repeal Standard 206.
Sincerely,
Margaret Montoya
Professor Emerita of Law
University of New Mexico School of Law (for identification purposes only)
Board Member of the CriticalLegalCollective.org