State and local bar and medical associations are among the organizations expressly called out by the Trump Executive Order issued on January 21, 2025, directing the Attorney General to “deter unlawful DEI programs” including by identifying up to nine potential civil compliance investigations that target publicly traded corporations, large non-profit corporations or associations, foundations with assets of $500 million or more, state and local bar and medical associations, and institutions of higher education with endowments over $1 billion dollars.
For me, the surprise in seeing the bar associations on the list was not in understanding why, but in realizing I was not the only one who had taken note of their actions. Several years ago, a bar association of which I am a member issued a directive that all of its committees should include a woman or minority in a leadership role. I wrote to the association president at the time to express my concerns on several levels, and shared the following personal reflections:
Letter to the Bar Association
While I applaud the sentiment behind that initiative [to include women or minorities in leadership for each committee] and agree that more can be done to diversify the profession and its leadership ranks, I felt compelled to write to you to express my discomfort with your approach to committee leadership appointments. It is one thing to state that the pool of individuals considered for each and every leadership role must include a diverse slate, but it is quite another to state that every committee must include in the leadership an individual who represents diversity. Such a directive leads people to question whether the people selected really are “highly accomplished lawyers and distinguished […] leaders, who also happen to be women of color,” or whether they are something less than that. As a woman and an employment lawyer who chose this area of practice because of my commitment to ensuring people are treated fairly, this approach feels wrong.
We need to be mindful of our biases – both conscious and unconscious – and how they influence our behaviors. I would applaud initiatives that focus on that, as well as efforts to recruit a more diverse group of applicants for leadership positions, and to identify potential impediments that lead to the nonselection of certain categories of individuals for leadership positions. But quotas cause resentment, and they undermine the credibility and credentials of the people they are designed to help. I hope you will reconsider your approach to one that is more nuanced and focused on addressing the underlying issues that may have led to an underrepresentation of women and other diverse groups in the state bar’s leadership positions.
Ends Justifying the Means?
The bar association was not unique in its diversity mandate. The State of California issued a similar directive for board memberships throughout the state. As I wrote in a prior blog article, California was sued and lost, as the courts found the mandated board selection criterion was discriminatory. The legislative record reflects that California expected that outcome. They instituted their mandate anyway, and the data reflects that by the time the case had made its way through the courts, a substantial number of additional women and people of color were put on boards of directors. Through a discriminatory method, California achieved its desired result.
I never received a response to my letter to the bar association president, and I am not sufficiently involved with the organization to venture even a guess as to the practical effect of the committee leadership initiative. I have not seen subsequent bar association presidents continue that approach.
The Quick Way or the Right Way
While I understand the motive for the shortcut the bar association had taken, as I indicated in my letter, that is not the only way. We have a saying in our family – there is the quick way and the right way. The quick way, in this context, is when we effectively set quotas, when we use race or gender as a proxy in making selections among varied candidates.
The right way takes longer. It requires asking hard questions and seeking genuine answers. It may involve changing processes, adjusting messaging to attract a broader range of talent, or both. It may necessitate new recruitment initiatives or training to build skill sets and interest – training that is open to all with interest and the targeted skill gap.
We need more organizations investing in the right way. Only then will we be able to benefit from diverse workplaces where people feel valued for their merit and initiative.
Tracey I. Levy
