Deputy Attorney General Eric H. Holder, Jr.

Remarks to the American Bar Association

Colloquium on Diversity

Aspen, Colorado

October 15, 1999

Good afternoon. It is my privilege, both as Deputy Attorney General and as a member of the bar, to be here to speak with you about diversity in the legal profession.

When I was growing up, I read about the young Thurgood Marshall winning battle after battle in our courts - battles to fight for equality. Reading all of this, I was struck by the power of the law to change society for the better. It was one of the chief reasons I went into the legal profession: to do my part to try and make our nation a better place.

This vision -- about the power of individuals to change society through law -- is shared today at the highest levels of our government. As all of you in this room know, on July 20 of this year, President Clinton issued a Call to Action directed at the legal profession. That call to Action by the President asked the legal profession to do two things. First, to engage in innovative pro bono projects for racial justice. Second, to develop ways to enhance the diversity of the legal profession.

The President's July 20 Call did not come out of thin air. It was the product of over one year of hard work -- hard work by many of the people here today. This work began when the President asked me to organize a group of lawyers who could generate a plan on what lawyers could do to further the goals of racial justice. I brought many members of the Bar together to discuss what such a plan could look like. Many of the people in the initial meetings I have held on this topic are with us today. These early meetings eventually culminated in the President's Call to Action. And I - and the Administration - are in the debt of those people who gave their time, energy, and ideas to putting this Call together.

I've spoken in the past on pro bono activities and what the President's Call means in that regard and why it is so vitally important. But what I'd like to do today is focus on the second part of the President's Call: Diversity in the Legal Profession.

In some parts of our society, we are becoming more and more isolated, and less and less inclined to think of ourselves as being in a common struggle. This is a sad reality - but one we must admit and confront. Whether you look at hate crimes, or at the treatment that minorities face in the workplace and on the streets, or the obvious, and often times voluntary, segregation in our city and suburban neighborhoods, it is evident that many people in our country, on both sides of the racial divide, do not yet believe that we are truly one nation.

How are we to escape this reality, this legacy? How is progress possible in a world in which Americans grow up with prejudices and stereotypes? I believe that one of the ways in which we can overcome this racial enmity and divisiveness is to focus on quality and diversity in our schools at all levels in general and on diversity in our law schools in particular. It is those places that the seeds of positive change must be planted.

When we in this room speak about enhancing diversity in the legal profession, we must think about oue law schools. How can we believe that our great universities are truly preparing students for life, professionally and personally, if they do not include a cross-section of students that bears some resemblance to real life? If a vast democratic republic as diverse--and at times divided--as late twentieth-century America is to survive and flourish, it must cultivate some common spaces where citizens from every corner of society can come together to learn how others live, how others think, how others feel. If not in universities, where? If not in young adulthood, when? If not in law schools, why not?

Recently, the notion of diversity in university and law school admissions has come under attack. All of us know about the Hopwood case, the case in which a panel on the Fifth Circuit declared the University of Texas' admissions system unconstitutional and overruled parts of the Supreme Court's Bakke decision in the process. We in the Justice Department have a rather different view of what Bakke means, and we have said so in our filings in the Hopwood case, as well as in the University of Michigan cases now under consideration.

To my mind, Hopwood illustrates that, for too long, people have simply assumed that diversity meant "affirmative action." That is, for a minority to be admitted under a diversity program, she or he must have been less qualified than the whites who applied. This idea is wrong. Diversity-based admissions, when done properly, is not about the color of one's skin or inferior qualifications. It is about the unique aspects that a person brings to her school, the difference in outlook, upbringing, and life experience.

There are many who would disagree, and would try to equate diversity programs in schools with affirmative action in other areas, like government contracts. These opponents try to analogize diversity to the government contracting initiatives that the Supreme Court has struck down in cases like Richmond v. Croson and Adarand v. Peña. But, there are more differences than similarities between the contracting sphere and the admissions one.

Let me start with some simple differences. For one thing, when done properly, diversity programs do not place minority applicants into a separate admissions pool where their files sit with each other and compete only against one another; instead, they treat minorities just like other applicants and the kinds of diversity they may offer are assessed alongside other kinds of diversity (of musicians, basketball players, Southerners, chess players, French speakers, and so on).

The key difference, however, is that education unites people from different walks of life. Instead of corporations performing various discrete contracts in isolation--universities draw diverse people into spaces where they mingle with and learn from each other. Integrated education does not just benefit minorities--it advantages all students in a distinctive way, by bringing rich and poor, black and white, urban and rural, together to teach and to learn from each other as democratic equals.

When you look at things this way, and realize that diversity programs are designed to help students of all races, you begin to understand why these programs are really very different from the contracting policies struck down by the Supreme Court. As Justice Powell put it in Bakke, diversity may enable a program to pass constitutional muster because the democratic and dialogic educational benefits accrue to all students. To the Justice, such racial considerations were appropriate when, for example, blacks would not otherwise be admitted in sufficient numbers "to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States."

Justice Powell, however, is no longer on the Court, and there are many who would overread Supreme Court decisions in furtherance of their own private agendas. But let us be clear: the Supreme Court has never overruled Bakke. And while some might argue that the "logic" of the Court's contracting cases has somehow implicitly overruled Bakke--as if the Justices were not capable of saying so themselves--this view is, I believe, untenable.

In fact, only two Justices, Thomas and Scalia, have written of the need for absolute color-blindness. To the contrary, the Supreme Court's latest pronouncement, in the Adarand contracting case, explicitly rejected the notion that strict scrutiny is "strict in theory, but fatal in fact" and noted that affirmative action may be justified by the "unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country." In another passage, the Court pointedly left open the possibility that in applying strict scrutiny judges could seek to distinguish between a race-conscious "No Trespassing" sign and a race-conscious "welcome mat." So it is by no means clear that the "logic" of the contracting cases has overruled Bakke.

And there are good reasons that undergird the existence of these diversity programs. Background and life experience are important attributes--and it is neither unfair to whites nor stigmatizing to minorities to consider these factors so long as they do not become the only things that admissions committees look at. If having a distinctive racial experience is viewed in the same way as being bilingual or a good violinist, then the naysayers of the world might have an easier time understanding this view. If a given minority student understands that she is valued not because of what her ancestors went through two centuries ago, but rather because of her qualifications, her uniqueness, and what she goes through every day, she may feel less stigma and more self-respect.

In my view, diversity takes on a special meaning in the school setting. As Brown v. Board of Education put it, education is "the very foundation of good citizenship" and "a principal instrument in awakening the [student] to cultural values," preparing her for participation as a political equal in a pluralist democracy. Moreover, university education typically occurs at a distinctive time of life--young adulthood--when people are particularly open to new ideas and when they have a tendency to bond with others.

There is a proud American tradition of treating education differently from other spheres: Education is different--special-- because it teaches Americans how to become full citizens in a pluralistic scheme of democratic self-government. As Justice Powell wrote in Bakke, "the 'nation's future depends upon leaders trained through wide exposure' to the ideas and mores of students as diverse as this Nation of many peoples." Under a Constitution that begins with a vision of We the People coming together in order to form a more perfect union, e pluribus unum, this coming together of Americans to teach and to learn from each other is a necessity. This is especially true in our law schools where those entrusted with the future of our profession are trained and where those who will construct, implement and interpret our laws are, hopefully, sensitized to the needs and experiences of all the American people.

Conclusion

It therefore is no surprise to me that President Clinton, who has sought to open a dialogue on race in America, focused on diversity in his Call to Action. Nor is it a surprise that the new President of the ABA, Bill Paul, has made diversity of the legal profession the centerpiece of his tenure as President. I commend Bill Paul and the ABA for their initiative and leadership on this very important issue. It took guts, and I salute him and the ABA for focusing on this issue and insuring that this is a legacy about which we will all be proud.

Stated simply, we as members of the Bar must strive to diversify not only the offices which many of us are fortunate to supervise, but also think about ways to improve the diversity in our schools. For it is the next generation - and the one after that - that we must think about as well. To change our future we must implement change at many levels of our present. In this task, I am lucky and honored to be working with all of you. As lawyers we have a special responsibility, a special burden, but we are also blessed with unique abilities and the power to effect positive change. It is our duty to do so. We must work together in this endeavor.

As you consider the issues I have raised today, I would ask you to keep in mind the words spoken by Paul Robeson some 80 years ago upon his graduation from Rutgers University, just before he went to Columbia Law School:

"May I not appeal to you . . . to fight for [an] ideal [where] character shall be the standard of excellence . . . . where an injury to the meanest citizen is an insult to the whole Constitution [and where] black and white shall clasp friendly hands in the consciousness of the fact that we are brethren and that God is the father of us all."

Thank you.