Abstract

Excerpted From: Robert J. Razzante and Breanta Boss, DEI in the Legal Profession: Identifying Foundational Factors for Meaningful Change, 2022 Utah Law Review 785 (2022) (70 Footnotes) (Full Document)

Justice is fairness. Those in the legal profession are responsible for upholding justice and defining what is fair for people. However, a just society cannot exist without an honest understanding of how injustice has been socially constructed over time to favor members of historically privileged communities. As our country continues to become diversified across many social identities, our social norms and expectations of justice need to evolve to match those changes. And dismissing the importance of diversity, equity, and inclusion (“DEI”) is itself an act of injustice that perpetuates these past injustices.

Everyone is implicated by DEI through their different standpoints and social locations. People communicate in different (un)conscious ways based on their standpoint. For example, those who experience marginalization often consciously censor their communication to engage in impression management, while those who communicate from standpoints of power and privilege may consciously choose to act in ways that disrupt exclusionary and discriminatory social norms. At the same time, however, they may also engage in “thinking under the influence,” where their actions have unanticipated consequences.

Conversely, others may be inclined to engage in “code switching” to fit into spaces where they feel marginalized. This tactic often seems like a necessary evil to advance in a professional setting because the manifestation of exclusionary and discriminatory social norms can be overt (e.g., crude reactions to natural hair; turbans, hijabs) or covert (e.g., walking down a hallway lined by images of older white men dressed in suits).

Whether communicating from a standpoint of marginalization or privilege, people should recognize how they are implicated in the larger conversation of DEI. As AnaLouise Keating has noted, for social change to happen people need to recognize their commonalities--as opposed to similarities or differences. By focusing on our similarities or differences, we miss out on the opportunity to understand how each other's social location is bound together within the same socially constructed norms and expectations. A focus on commonalities allows people from different social locations to recognize how they can leverage each other's standpoints to create change that promotes diversity, equity, inclusion, and justice. After all, we live in a multicultural society, and it is certain that each of us will interact with individuals who come from different backgrounds.

When pursuing diversity, equity, inclusion, and justice through commonalities, practicing critical self-reflexivity is paramount. Self-reflexivity requires us to constantly question ourselves and how we relate to others. Critical self-reflexivity is the same process yet with an attunement toward power and how it impacts the ways in which individuals relate to each other. When people practice critical self-reflexivity, they seek to understand how they themselves are situated within existing social norms of inequities, historical (dis)advantage, prejudice, and discrimination. A critical self-reflexivity requires us to understand our social location in relation to others--especially when our actions impact others.

Throughout our drafting process, we consciously worked together to design the flow of this Essay with respect to DEI. We first offer a brief section defining key terms. This section is intended to give the audience the language to incorporate DEI when naming the world around them, as they might not have been exposed to such language before. Offering definitions of key terms begins the process of discovery. We also recognize that our audience may be well-versed in DEI. For this group, offering definitions of key terms allows us to explain exactly where we gathered our terms.

After defining key terms, the Essay proceeds into four main examinations of the importance of DEI: institutional factors, programmatic factors, classroom-specific factors, and intrapersonal factors. These factors reflect Bernardo M. Ferdman's assertion that organizational change should have adjustments at the macro-, meso-, and micro-levels. The institutional factors reflect macro-level changes, whereas the intrapersonal factors reflect micro-level changes. The meso- level of programmatic and classroom factors reflects the bridge that connects the institutional with the intrapersonal.

Each section begins with anecdotes from current legal professionals reflecting on their experiences navigating law school from a social position of marginalization. These voices are vital to ground the systemic review in actual lived experiences. The Essay concludes with some remarks on the importance of focusing on our commonalities--especially within the legal profession--to create a more just society. We intend that this Essay serve as a tool to foster dialogue about DEI. In doing so, we do not purport to identify or solve all of the ways in which marginalization manifests itself. Rather, we seek to contribute to the ongoing conversation about DEI in law schools and the legal profession.

Definition of Key Terms

We recognize that different readers may have different levels of awareness with respect to DEI. As such, offering definitions of key terms referenced throughout this Essay is important to establish a baseline understanding. This section defines banking education, critical, diversity, equity, inclusion, “-isms,” justice, marginalization, pedagogy, power, privilege, problem-posing, and social constructionism as follows:

Banking Education. Banking education refers to the unidirectional flow of knowledge from the all-knowing teacher to the passive-learning student. In banking education, students are in a room to merely learn from the teacher and are understood as not having much to contribute.

Critical. In the context of DEI and education, the term “critical” implies a focus on power. Critical pedagogy is the study of how discourses of power are both brought into the classroom and exist within the classroom. A critical pedagogue is interested in how power operates within and beyond the classroom. Critical pedagogy also considers how discourses of power seep into the classroom to inform student behavior, conversation, and student performance.

Diversity. Diversity is representation. For example, if a classroom is diverse, the student population represents the multitude of social identities that exist in society. Diversity manifests in terms of class, race, gender, sex, sexual orientation, age, ability, religion, nationality, etc.

Equity. Equity is about equalizing outcomes as opposed to equalizing opportunities. With equity, attention is placed on the social and cultural context of one's background as an important contributing factor to one's success.

Inclusion. Inclusion is an intentional process to invite people--particularly those experiencing marginalization--into decision-making spaces to reduce the potential for being too reductive. For example, Amber Johnson defines radical inclusion as the process of not just inviting people to the dinnerparty, but also asking people what food they want, what music to play, and where to hold the party.

“-isms.” In the context of DEI, people often refer to “-isms”--racism, sexism, classism, etc. These “-isms” denote discrimination against someone based on their standpoint or social location. For example, racism manifests when one person discriminates against another based on their race. Racism can occur at various levels--most notably interpersonal racism and structural racism. Interpersonal racism occurs when one person mobilizes their prejudice toward others at a 1:1 level (e.g., hate speech, microaggressions, physical assault). Structural racism occurs when people mobilize their prejudice toward specific racial groups through institutional leverage points (e.g., laws, policies).

Justice. Justice is fairness. It means equal and impartial treatment no matter your social status. Furthermore, justice is “actions designed to remove hurdles to equal opportunity, equal rights, and human liberty.”

Marginalization. Marginalization is the experience of being on the sidelines of society. Those who experience societal marginalization may not have access to the same resources as members of dominant groups who can leverage their privileges for personal gain.

Pedagogy. Pedagogy is the method, theory, and practice of teaching and learning. Instructional communication--an element of pedagogy--is the study of how verbal and nonverbal communication is used within the classroom to facilitate student learning.

Power. Power can be understood through a variety of lenses. For example, Michel Foucault defines power as the ability to influence one's behavior. Power is also fluid, meaning that power is not possessed by one person. In other words, these are the ways in which power permeates people's behavior and their ability to reinforce, impede, or dismantle oppressive structures.

Privilege. Privilege is defined as an unearned advantage one gains simply by existing. If the world is socially constructed by those who have access to power, then there are certain norms and expectations that favor those in dominant positions. For example, white privilege exists when a white person can move about the world without having to represent their race.

Problem-posing. In problem-posing, students are understood as active contributors to knowledge, in effect making them teachers (i.e., student-teacher). Paulo Freire was a critical pedagogue who challenged the banking model of education by detailing a problem-posing form of education. Within a problem-posing framework, teachers are also understood to be students who can learn from their students' contributions (i.e., teacher-student). Problem-posing begins with posing a question associated with a social issue. Through dialogue, teacher-students and student-teachers engage in, “a process of sensitive and thorough inquiry, inquiry we undertake together to (de)construct ideologies, identities, and cultures.”

Social Constructionism. At its core, social constructionism is the creation of realities through communication. People create realities and expectations for behavior through everyday interpersonal interactions. These interpersonal conversations can then trickle up into policies, programming, and laws. Macro-level messages can also trickle down into the way people interact with others at an interpersonal level.

Standpoint Theory. Standpoint theory suggests that those on the margins maintain a “strong objectivity” of reality for being able to materially experience the widespread impact of decisions by those in positions of power. One's standpoint may impact the way they communicate with others.

Foundational Factors

In reflecting on the symposium theme, “#IncludeTheirStories: Rethinking, Reimagining, and Reshaping Legal Education,” we decided to ground this Essay in several factors that emerged from informal conversations that we have had with recent law school graduates and young legal professionals. Through our personal networks, we asked people who have under-represented social backgrounds in the legal profession to reflect on their experiences with DEI both inside and outside the classroom. For each factor, we first offer an informal comment from a legal professional followed by analysis and commentary on how legal studies programs can improve access to DEI material by considering four particular factors: institutional, programmatic, classroom, and intrapersonal. We begin with the most macro-level factor (institutional) and work our way to the most micro-level (intrapersonal). We bridge the macro- with the micro- by focusing on two meso-level factors (programmatic and classroom). Our hope is that covering all three levels--as Ferdman suggests--allows for a holistic approach to DEI efforts.

[. . .]

We began this Essay with some critical self-reflexivity of our own standpoints and what we hope this Essay could accomplish. To reiterate, we hope our contributions can continue the conversation of DEI in the context of the legal profession. Along the way, we offered references to other scholars and practitioners who do DEI work in a variety of contexts.

Our hope is that this Essay offered a heuristic to consider when advocating for and enacting meaningful change to promote DEI in law school and in the legal profession. The legal profession is not immune from conversations of DEI. Furthermore, DEI--in the context of the legal profession--has widespread implications for defining and upholding justice. However, by not having the necessary language or tools to embrace DEI, the legal profession runs the risk of reinforcing dominant structures of oppression that perpetuate centuries of injustice, especially toward historically marginalized groups.

To create organizational and cultural change, there must be several contributing factors identified across the macro-, meso-, and micro-levels. Here, we offered four specific factors that may serve as a springboard for creating an inclusive and equitable legal profession. First, institutional factors should be reconsidered to create pathways for underrepresented and marginalized students to pursue law school. Second, programmatic efforts should be made to reduce attrition of marginalized students, and instead create a learning environment where students' diverse social locations are embraced and reflected within the curriculum. Third, when institutional foundations are set and programmatic changes are created, the classroom becomes a central location where DEI can be embraced and provide learning opportunities.

In this Essay, we offered a critical communication pedagogy as one particular framework for using dialogue “a process of sensitive and thorough inquiry ... to (de)construct ideologies, identities, and cultures.” Such an educational space can serve as an outlet for students to process their cognitive dissonance regarding difference at the intrapersonal level--our fourth factor. Intrapersonal factors, such as cognitive dissonance, if not affirmed and processed, can lead to the continual questioning of one's place within law school and the legal profession--a continual feeling of imposter syndrome.

Robert J. Razzante. Ph.D., M.Ed, and Visiting Assistant Professor of Communication, Western Washington University. 

Boss. J.D., M.A. and Civil Rights Attorney at Law.