Dec. 7, 2023 – More than 40 lawyers gathered at the Italian Community Center in Milwaukee for the State Bar of Wisconsin’s 2023 Diversity Counsel Program on Monday, Dec. 4.
The State Bar of Wisconsin’s Diversity and Inclusion Oversight Committee organized the program, emceed by Milwaukee County Circuit Court Judge Kori Ashley.
Launched by the State Bar in 2004, the Diversity Counsel Program was modeled after the original American Bar Association Minority Counsel Demonstration Program.
Originally designed to increase opportunities for women and minority lawyers, the program expanded in 2008 to include efforts aimed at benefitting the state’s legal system as a whole.
“The thing I hope you leave with today is not just why retention of attorneys with varied experiences is important, but the how,” Judge Ashely told attendees the start of the program.
The Battle over Brown
Sherri Charleston, J.D. Ph.D., the chief diversity and inclusion officer at Harvard University, gave the keynote address. She talked about the impact of recent constitutional developments on efforts to promote diversity in the legal profession.
Charleston, who obtained her doctorate in history before attending law school, discussed the constitutional throughline stretching from Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) to Grutter v. Bollinger, 539 U.S. 306 (2023).
In Brown, the U.S. Supreme Court unanimously held that a racially segregated public school system violated the Equal Protection Clause of the Fourteenth Amendment, even though the racially segregated schools may have been equal.
In Grutter, the Supreme Court, by a 6-3 vote, dramatically curtailed the use of race in college admission decisions.
According to Charleston, the received wisdom about Brown v. Board is misguided.
“Brown was not aimed at race itself – it was aimed at inequality,” Charleston said.
However, Charleston said, the Supreme Court in Brown declined to declare that education was a fundamental right.
As a result, Charleston said, “We find ourselves, 60-plus years on the other side of Brown … recognizing that Brown left other crucial aspects of racial inequality in the education system completely untouched.”
“We’re left her to fight over what [Brown] means, all these years later, even as we all argue over how important Brown is,” Charleson said.
No Constitution But the One We Make
The notion of a colorblind constitution, propounded by Justice John Harlan in his dissent in Plessy v. Ferguson, 163 U.S. 537 (1896), is a non-sequitur, Charleston said.
In Plessy, the Supreme Court held that a Louisiana law that mandated racially segregated railroad cars was not unconstitutional, as long as the cars were of equal quality.
“The Constitution is an inanimate object,” Charleston said. “It is ultimately something to be wielded by people … it has to be interpreted.”
Charleston pointed out that the plaintiffs in Plessy didn’t argue that the Constitution was or should be colorblind. Rather, they relied upon principles from the French and Haitian revolutions to argue for “public rights.”
“They said, ‘If I am in public, I want to be respected in public,’” Charleston said.
But the Supreme Court in Plessy held that the government was powerless to end all racial distinctions and that any attempt to do so would only make things worse.
“That’s not what [the plaintiffs] asked, that’s not what they argued, that’s not what they wanted,” Charleston said. “It’s a twisting, and it’s a twisting that pulls at the heartstrings of those who might believe that racial inferiority is somehow natural.”
Unfortunately, Charleston said, Plessy’s notion that the Constitution is powerless to remedy racial disparities continues to animate federal appellate court decisions today.
Charleston told the attendees they should keep that constitutional history in mind when attempting to advance diversity, equity, and inclusion in the legal profession.
“The Constitution cannot be colorblind unless we make it so,” Charleston said.
Panel Discusses Leadership Gap
After Charleson spoke, Rock County Circuit Court Judge Ashley Morse moderated a panel on closing the diversity leadership gap.
Morse, whom Governor Tony Evers appointed in 2022, is the first woman of color to serve as a judge in Rock County.
Judge Morse said that creating opportunities for diverse talent isn’t limited to organization-wide initiatives – it can also involve smaller changes, like changes to physical space.
When she stepped off the elevator on the fifth floor of the Rock County Courthouse to go to her chambers for the first time, Morse said, she looked down the hallway at the photos of the judges who’d come before her.
“It’s a row of white men that goes from one end to the other,” Judge Morse said. “For me, walking into that space, the message that I received … was ‘This space isn’t for you.’”
Morse said she keeps a variety of diverse images in her courtroom.
“Hopefully, everybody who walks in there knows that you are seen, you are recognized, there’s a space for you here,” Judge Morse said.
Abigail Churchill, product manager with TruStage Insurance Agency and founder of TransLaw Help Wisconsin, said that employers should ask themselves, “How many board members of color do we have? How many board members who identify as LGTBQIA+ do we have?”
An Extra Burden
Milwaukee County Circuit Court Judge Jorge Fragoso said that employers should be aware that minority attorneys are asked to do extra work related to their identity.
Judge Fragoso said that when he worked as a public defender, an assistant district attorney once called him out of court so that he could translate a document written in Spanish.
“People don’t realize the toll it takes when you’re singled out like that,” Fragoso said. “It’s adding something to your job description.”
Jacque Evans, the State Bar’s diversity and inclusion specialist, said that diverse employees are often reluctant to give the type of feedback necessary to help employers diversify their workforces, even if they’ve been asked to do so.
“You’ve been asked to give the feedback, and you give the feedback, and then somehow you’re let go, because you gave honest feedback, or now your job becomes more difficult because you gave honest feedback,” Evans said.
The State Bar of Wisconsin’s Diversity and Inclusion Oversight Committee spearheads the Diversity Counsel Program. The Diversity Counsel Program is funded in part by a grant from the Wisconsin Law Foundation.
Sponsors for the program include Wisconsin Association of African American Lawyers, Stafford Rosenbaum LLP, Von Briesen & Roper, The Marcus Corporation, and MWH Law Group.