PARTNER EVETT SIMMONS TO PARTICIPATE IN DIVERSITY DISCUSSION AT NEW YORK STATE BAR ASSOCIATION ANNUAL MEETING

January 3, 2006

NEW YORK STATE BAR ASSOCIATIOn

2006 ANNUAL MEETING

January 23, 2006

THE COMMITTEE ON MINORITIES IN THE PROFESSION

--Presents--

AT A CROSSROADS -- AFFIRMATIVE ACTION AND DIVERSITY IN THE PROFESSION: WHERE DO WE GO FROM HERE?

A Panel Discussion and 3-Hour CLE on Where We've Been, Where We Are and Where We Go From Here in Our Efforts to Diversify the Legal Profession and Confront the Challenges to Full and Equal Profession on the Road to Law School and Beyond

Moderators:

John E. Higgins, Esq., Counsel, Nixon Peabody, LLP

Co-Chair, NYSBA Committee on Minorities in the Profession

Debra J. Dickerson, Author, The End of Blackness; former Senior Editor, U.S. News and World Report

Panelists

Evett L. Simmons, Esq., Partner, Ruden McClosky, and

Chair of the ABA Presidential Advisory Council on Diversity in the Profession

Gerald Reynolds, Esq., Chair, U.S. Commission on Civil Rights

Kent D. Lollis, Esq., Associate Executive Director and Assistant

to the President for Minority Affairs, Law School Admissions Council

Kenneth G. Standard, Esq., Immediate Past President NYSBA, Chair, NYSBA

Youth Outreach Committee, Partner and Diversity Chair, Epstein Becker & Green

Elizabeth Moore, Esq., Partner and Diversity Action Committee Chair, Nixon Peabody, former Chair, NYSBA Committee on Minorities in the Profession

Eric M. Brooks, Esq., Associate, Morrison & Foerster

Theodore Shaw, Esq., NAACP Legal and Education Defense Fund

AT A CROSSROADS -- AFFIRMATIVE ACTION AND DIVERSITY IN THE PROFESSION: WHERE DO WE GO FROM HERE?

I. 'Miles to Go' Towards Full and Equal Participation in the Profession An Introduction (Estimated Time: 50 minutes)

Summary: On October 22, 2003, the Equal Employment Opportunity Commission (EEOC) issued a cautiously optimistic report on Diversity in Law Firms. The EEOC's report shows that in the past 20 years there has been 'a substantial increase in the employment of women and minorities in private sector law firms' including elite law firms in New York, Chicago, Washington, and Los Angeles. At the same time, the EEOC's report also shows, however, that much more can and must be done by large and small firms alike, particularly in terms of attrition.

As explained by the EEOC, 'male minority associates [are] more likely to have departed their employers within 28 months . . . and were far more likely to have departed within 55 months of their start date . . . [and] [n]early two-thirds . . . of female minority associates had departed their employers within 55 months compared to just over half . . . of women overall.'

An even greater problem exists with respect to what the EEOC calls the 'major issue in law firms generally [concerning] the movement from an associate attorney to partner.' According to the EEOC's report, for both minorities and women the odds of becoming a partner in a private law firm are still stacked against them.

These concerns led the EEOC's current Chair, Cari M. Dominguez, to issue a call-to-arms in the legal profession. Speaking recently at a national conference of the American Bar Association, Dominguez said: '[w]e must all make a constant, unwavering effort to ensure that our nation's law firms are open and inclusive to all individuals.' She also pointed out, as graphically illustrated in the EEOC's 2003 Diversity Report, that although significant strides have been made in the employment of women and minority attorneys by private law firms over the past 20 years (especially at large firms), as a profession, ' we must also be mindful of how far we have to go.'

More recently, in December 2004, the ABA Commission on Racial and Ethnic Diversity in the Profession issued its third report entitled 'Miles to Go: Progress of Minorities in the Legal Profession.' The 3rd 'Miles to Go Report,' written by New York Law School Professor Elizabeth Chambliss, 'takes stock of the profession's progress as of August 2004' and 'provide[s] a current, comprehensive picture of the status of minorities in the profession.' Based on a comprehensive review of academic, government, professional and popular data, the most recent Miles to Go Report includes the following substantive findings:

 Minority representation in the legal profession is significantly lower than in most

other professions (9.7 % among lawyers, compared to 20.8 % for auditors and accountants, 24.6 % for physicians and surgeons, and 18.2 % for college and university teachers).

 Minority entry into the profession has slowed considerably since the 1980s and

mid 1990s.

 The initial employment of minority lawyers still differs significantly from that of

whites.

 Minorities remain grossly underrepresented in top-level private sector jobs, such

as law partner and corporate general counsel.

 Progress has been especially slow for minority women in the profession

(especially in the areas of attrition from private law firms, where minority women outnumber all other groups, and exclusion from top private sector jobs)

The Panel Discussion: The panel will discuss the reasons for these problems and realities, and some of the steps necessary on the part of law schools, bar associations, law firms and corporations and individuals to address and retard these trends.

II. The Current Debate Over Affirmative Action Post-Grutter and Gratz

(Estimated time: 50 minutes)

Summary: In Gratz and Grutter, both decided on June 23, 2003, the U.S. Supreme Court strictly scrutinized and resolved 14th Amendment/Equal Protection challenges by classes of White student applicants to the pro-diversity admissions policies at the University of Michigan Law School (Grutter), and at one of the University of Michigan's undergraduate colleges (Gratz). A 6-3 majority in Gratz, in an opinion written by former Chief Justice Rehnquist, struck down a quota-like point system under which qualified underrepresented minority applicants (Blacks, Hispanics, and Native Americans) were automatically awarded 20 points (out of a possible 150) in the admissions process based solely on their race or national origin. According to the Court, this use of race and ethnicity in the university's admissions program was unconstitutional because it was not tailored narrowly enough to any compelling governmental interest and failed to afford individualized consideration for all applicants.

In Grutter, however, the law school case, a 5-4 majority of the Court upheld the use of race as a 'plus' to be considered together with other factors in the law school's more flexible and holistic admissions process. When race and ethnicity are used in such 'a flexible, nonmechanical way' and all qualified applicants compete for admission and are considered individually, the Grutter Court held that the 14th Amendment is not violated. The Grutter Court also upheld the law school's use of numerical goals (not quotas or set-asides) designed to achieve an undefined 'critical mass' of minority students, observing that paying '[s]ome attention to numbers, without more, does not transform a flexible admissions system into a rigid quota.'

Importantly, majorities of the Court in both Grutter and Gratz expressly acknowledged that colleges and universities have a 'compelling interest in securing the educational benefits of a diverse student body.' For this proposition, both Gratz and Grutter relied on and endorsed the Court's 1978 decision in Regents of the University of California v. Bakke, where a narrow majority led by Justice Powell held that 'the attainment of a diverse student body . . . is a constitutionally permissible goal for an institution of higher education.' The Court in both Gratz and Grutter also expressly endorsed the race-plus admissions plan at Harvard College, which was approvingly referred to by Justice Powell in Bakke more than 25 years ago. Under that plan, as Justice Powell noted in Bakke, the legitimate interest of educational diversity 'may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.'

Both Grutter and Gratz thus provide renewed vigor and a clearer road map for the use of such race-conscious and ethnicity-conscious programs in law schools and other institutions of higher education. Since Grutter and Gratz were decided, however, the debate over the need for and legitimacy of affirmative action in law schools has heated up, with each side taking polar views on the issue. Compare UCLA Law School Professor Richard H. Sander's article, A Systemic Analysis of Affirmative Action in American Law Schools ('Systemic Analysis'), 57 STANFORD L. REV. 367 (2004), and the article by Professors David L. Chambers, Timothy T. Clydesdale, William C. Kidder, and Richard O. Lempert, The Real Impact of Eliminating Affirmative Action in American Law Schools: An Empirical Critique of Richard Sander's Study, ___ STANFORD LAW REVIEW ___ (2005). And see The Black Student Mismatch Myth in Legal Education: The Systemic Flaws in Richard Sander's Affirmative Action Study, by Cheryl I. Harris and William C. Kidder (Winter 2004/2005); and Blend It, Don't End It: Affirmative Action and the Texas Ten Percent Plan After Grutter and Gratz, 8 Harvard Latino Law Review 33 (2005), written by the Mexican American Legal Defense and Educational Fund, Americans for a Fair Chance, the Equal Justice Society, and the Society of American Law Teachers.

The Panel Discussion: The Panel will discuss the legal, societal and statistical contours and underpinnings of this sharp debate, as well as areas of agreement and grounds for possible reconciliation towards achieving a unified view on the best practices of law schools in achieving greater racial and ethnic diversity.

III. Drilling Down The Pipeline From Kindergarten to Law School: Where are the Holes and How Do We Fill Them? (Estimated Time: 40-50 minutes)

Summary: Few would argue that the quality of one's education plays a pivotal role in determining a child's life trajectory. Although the U.S. Supreme Court's 1954 decision in Brown v. Board of Education held out the promise of equal educational opportunity for all, regardless of race and color, many African Americans still continue to receive a substandard education. This troubling fact is vividly demonstrated by the persistently large racial and ethnic achievement gap found in school districts across the nation.

The U.S. Commission on Civil Rights, created on the heals of the Court's 1954 decision ion the Brown v. Board of Ed. case, has since its inception been focused on ways to promote equality in education, including advocating the preservation of affirmative action programs. See the Commission's report entitled The Commission, Affirmative Action, and Current Challenges Facing Equal Opportunity in Education (March 2003). Whether the Commission will continue being an advocate for such programs remains to be seen

However, recent statistics issued by the Law School Admissions Council, and by the publishers of both the ACT and the SAT, reveal that a disturbing but undeniably disproportionate number of Blacks, Hispanics and Native Americans are among the millions of American kids not even making it through high school in and era in which a four-year college degree is an imperative for achieving (or maintaining) a middle-class lifestyle, let alone a legal career. And, according to a new report from a pair of Washington think tanks -- the Center for American Progress and the Institute for America's Future an urgent new commitment to public education, much stronger than the No Child Left Behind Law, must be made if the slide is to be reversed.

The Panel Discussion: The Panel will identify and discuss the steps along the pipeline to law school where minorities are disproportionately failing and winnowed out and, from K-12 to college, and then to the controversial LSAT, and the affirmative steps needed to plug the holes along the way.

IV. Conclusion: Bringing it All Together (Estimated time: 30 minutes)

Summary: Achieving true racial and ethnic diversity in the legal profession will require a concerted, more holistic affirmative effort by bar associations, corporations, law schools, researchers and academia, and the courts.

The Panel Discussion: -- The Panelists will offer their own views on the long-term possibilities, legal impediments, and practical realities associated with the goal of achieving full and equal participation by minorities in the profession. The ultimate, hoped-for byproduct of this discussion will be the development of a blueprint for making this long-term goal a reality.