diversity

The District Of Columbia Bar’s Proposed New Anti-Discrimination And Harassment Rule

/ Jack Marshall / 12 Comments

In May of 2018, I wrote about the ABA’s new anti-discrimination and harassment rule, 8.4 g, which has been heavily criticized, and, in Tennessee, declared unconstitutional. Here, again, is the text:

“It is professional misconduct for a lawyer to… engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.”

Undeterred (and as I predicted), the always “woke” District of Columbia Bar is charging ahead with a version of the rule, and asking for comments from members (like me) on its proposed version, which would replace the current, much narrower anti-discrimination rule currently enforced, Rule 9.1. Here is the D.C. draft:

D.C. Rule 9.1 (Nondiscrimination and Antiharassment)

It is professional misconduct for a lawyer, with respect to the practice of law, to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, family responsibility, or socioeconomic status. This Rule does not limit the ability of a lawyer to accept, decline or, in accordance with Rule 1.16, withdraw from a representation. This Rule does not preclude providing legitimate advice or engaging in legitimate advocacy consistent with these Rules.

Hmmmm. Continue reading →

The Big Law Firm’s New Partners

/ Jack Marshall / 42 Comments

In early December of last year, Paul, Weiss, one of the country’s largest and richest firms, announced its new partners: twelve young white lawyers, and one similarly hued woman.

Being that group identification is everything to certain well-placed people today, the announcement became an instant “public relations nightmare,” according to many media accounts. Sensitive to being sufficiently “woke,” many large companies had their  general counsels, sign an open letter  calling on law firms firms  “to reflect the diversity of the legal community” or they would send their business elsewhere.

What is the assumption underlying that letter? Is it that whites were chosen over better qualified minority lawyers as an act of bigotry and racism? Noooo, nobody’s suggesting that. Are the signatories to the letter really saying that less qualified lawyers of color should be advanced rather than these lawyers? It can’t be that, can it? I would say that a law firm that does not make every effort to have the very best lawyers available for the benefit of the clients is treading close to unethical behavior. A firm can’t prioritize diversity, whatever than means, over its own abilities to represent clients.

I nearly dropped Above the Law, but the reliably knee-jerk left and ethically obtuse online rag is great for these stories, and didn’t disappoint this time. Joe Patrice, the editor, wrote, Continue reading →

Morning Ethics Warm-Up, December 19, 2018: Facebook’s Lies, Hillary’s Letter, Harvard’s Defenders, And Kavanaugh’s Victory

/ Jack Marshall / 13 Comments

Good Morning!

1. Open Forum today! As soon as this post is up, I’ll open a forum for readers here to raise their own suggestions for ethics topics and to offer their commentary without me getting in the way. The last one was a spectacular success, attracting over a hundred comments, generating many fascinating threads, and producing three Comments of the Day so far. Just keep the topics on ethics, don’t get distracted by tangents and bickering, and keep it civil.

The immediate motivation for today’s forum is that I have to prepare for and deliver an annual end of year ethics CLE seminar at the D.C. bar. If you’re in the vicinity and need the credits, or just want a lively ethics workout, come on by and say hello. Here are the details:

Date: December 19, 2018

Event start time :1:30 PMEvent end time:4:45 PM

Venue:D.C. Bar: 901 4th ST NW, Washington, DC 20001-2776

Credit: 3.0 Ethics Credit Hours, including 3 hours of professionalism for those states with such requirement.

Description: Widespread discord in our current culture places unusual stress on professional ethics, and unfortunately, the legal profession is not immune. The past year saw many legal professionals, including famous names in the law, make questionable decisions and breach legal ethics standards, providing both cautionary tales and fodder for analysis. This challenging and interactive class will explore important developments and looming perils that every lawyer should be ready to face.

Topics include:

• Direct adversity vs. “general adversity,” and whether it matters
• Sexual harassment as a legal ethics problem, and the profession’s vulnerability to “The King’s Pass”
• Defying a client for the client’s own good
• Fees, referrals and gaming the rules for fun and profit
• Professional responsibility vs. legal ethics
• The increasing threat to law firm independence and integrity
• The technology ethics earthquake

..and more!

Faculty: Jack Marshall, Pro Ethics Ltd.
Fee: $89 D.C. Bar Communities Members; $99 D.C. Bar Members; $109 Government Attorneys; $129 Others

2. Meanwhile, here are Facebook’s “standards”… As Ethics Alarms posts continue to be blocked on Facebook in various ways, including by “community standards” that for some reason reject the ethics of “Miracle on 34th Street,” the social media behemoth’s own standards are coming into focus: From CNBC: Continue reading →

Morning Ethics Warm-Up, 10/29/2018: Codes, Cars, Carter And The Caravan

/ Jack Marshall / 51 Comments

Boy, this really IS a good morning!

(The warm-up may rely a bit more on links and quotes than usual…as Bob Cratchit tells Scrooge, “I was making rather merry yesterday.”)

1. Breaking News: Jimmy Carter is right! Former President Jimmy Carter, now 94, has injected himself into the Georgia governor’s race by asking Republican candidate Brian Kemp to resign as secretary of state. Carter’s argument is that there is an appearance of impropriety in his being officially responsible for an election in which he is a candidate, and that his resignation is essential  to preserve public confidence in the outcome of Kemp’s race against Democrat Stacey Abrams. Carter’s made the request in an Oct. 22 letter .

“One of the key requirements for a fair and trusted process is that there be a nonbiased supervision of the electoral process,” Carter wrote, explaining that stepping aside “would be a sign that you recognize the importance of this key democratic principle and want to ensure the confidence of our citizens in the outcome.”

When he’s right, he’s right. Kemp should resign, and his lamer than lame rationalization for not doing so, that it isn’t really he who supervises the election but his staff, would be sufficient reason not to vote for him in the gubernatorial election.

2. Ethics Dunce: Red Sox owner John Henry. You would think the progressive owner of the Boston Globe could restrain himself from blatant virtue-signaling while his team was celebrating its historic season and World Series victory, but no. Henry saluted his team for being “diverse” in his post-game remarks. Nobody sane cares how diverse, whatever that means (Where were the women, John? Where were the Asians? The differently-abled? Muslims? LGBT representatives?), a pro sports team is as long as it wins, and if it doesn’t win, its check-offs on an EEOC form won’t make it any better or its losing more palatable. The 2018 Red Sox were assembled according to the skills and talents of its personnel, with race and ethnicity a non-factor. What mattered is that the team’s manager (he’s Puerto Rican, and I don’t care) proved himself a natural leader who created a selfless, courageous, professional culture on his team, none of whom mentioned race, religion or creed all season, and properly so.

The compulsion to spurt progressive cant at every opportunity is pathological. Continue reading →

How Can Anyone Honestly Defend Harvard’s Discriminatory Admissions Practices? Especially Harvard?

/ Jack Marshall / 34 Comments

The federal trial that began last week in  Students for Fair Admissions v. Harvard, featuring  America’s oldest college being accused of discriminating against Asian-American applicants should, if there is justice in the world, both finally kill the lingering bigotry of college affirmative action policies and expose the U.S.’s most prestigious educational institution, and the ideological philosophy that has captured it, as the hypocritical and fraudulent entity that it is.  Does Harvard discriminate on the basis of race? Why yes, it does. There is no valid argument that it does not. Evidence shows that the college ties itself into logical knots concocting ways to justify not admitting Asian-American applicant who would sail into freshman classes were not their race used to undermine their candidacy. The plaintiffs cite reports that Harvard itself conducted  in 2013. The reports, by Harvard’s Office of Institutional Research, found that being Asian-American was negatively associated with being admitted. Harvard claims that it must consider race in order to have a “diverse” student body, which is important, it says, to the quality of education one can obtain there. “Diversity,” however is and has always been a rationalization for discrimination. No matter how affirmative action is framed, the fact is that it is a zero-sum game: for each individual whose race benefits their quest for admission, there is another individual whose race is used as a justification to reject him or her. There is no way of getting around this inconvenient fact, yet Harvard and other elite institutions persist in denying it.  Continue reading →

Unethical Quote Of The Month: Outgoing Harvard President Drew Faust

/ Jack Marshall / 13 Comments

…unless your racial origins would cause an imbalance in our carefully constructed palette of backgrounds, abilities and hues…

Asian-American groups  filed a federal lawsuit challenging Harvard University’s affirmative action policies as discriminatory, and the Justice Department backs of plaintiffs who say the university is discriminating against Asian-American applicants. (I wrote about the lawsuit here.) Of course they are discriminatory. In its quest for “diversity,” Harvard and other schools have penalized Asian-Americans, who confound Charles Murray-haters and racial-privilege mongers by being disproportionately excellent in academics. On a level playing field, in a purely merit-based admission system, they would dominate elite institutions, with numbers far beyond what demographics alone would predict. Can’t have that!  (This the leftist reaction, and they run U.S. education. My reaction: what an inspiring American success story!) Thus Harvard and other schools have used de facto quotas to reject Asian Americans who would have been admitted easily if they were a different color.

Outgoing Harvard President Drew Faust, a feminist proto-totalitarian who has shown an eagerness to stomp on basic human rights like speech, due process and association during her disastrous tenure,  sent the campus a message this week attacking the law suit. Here it is:

Dear Members of the Harvard Community,

In the weeks and months ahead, a lawsuit aimed to compromise Harvard’s ability to compose a diverse student body will move forward in the courts and in the media. As the case proceeds, an organization called Students for Fair Admissions—formed in part to oppose Harvard’s commitment to diversity—will seek to paint an unfamiliar and inaccurate image of our community and our admissions processes, including by raising allegations of discrimination against Asian-American applicants to Harvard College. These claims will rely on misleading, selectively presented data taken out of context.  Their intent is to question the integrity of the undergraduate admissions process and to advance a divisive agenda. Please see here for more information about the case.

Year after year, Harvard brings together a community that is the most varied and diverse that any of us is likely ever to encounter. Harvard students benefit from working and living alongside people of different backgrounds, experiences, and perspectives as they prepare for the complex world that awaits them and their considerable talents.

I have affirmed in the past, and do so again today, that Harvard will vigorously defend its longstanding values and the processes by which it seeks to create a diverse educational community. We will stand behind an approach that has been held up as legal and fair by the Supreme Court, one that relies on broad and extensive outreach to exceptional students in order to attract excellence from all backgrounds.

As this case generates widespread attention and comment, Harvard will react swiftly and thoughtfully to defend diversity as the source of our strength and our excellence—and to affirm the integrity of our admissions process. A diverse student body enables us to enrich, to educate, and to challenge one another. As a university community, we are bound across differences by a shared commitment to learning, to pursuing truth, and to embracing the rigor and respect of argument and evidence. We never give up on the promise of a world made better by an assumption revisited, an understanding expanded, or a truth questioned—again and again and again.

Last month, I presided over our Commencement Exercises for a final time and reveled in the accomplishments of our graduates and alumni, and in the joy and pride of the faculty who educated them, the staff who enabled their manifold successes, and the family members who helped nurture them and their aspirations. Tercentenary Theatre was filled with individuals from the widest range of backgrounds and life experiences. It was a powerful reminder that the heart of this extraordinary institution is its people.

Now, we have an opportunity to stand together and to defend the ideals and the people that make our community so extraordinary. I am committed to ensuring that veritas will prevail.

Sincerely,

Drew Faust

Such transparent deceit is seldom trumpeted so loudly. Continue reading →

Morning Ethics Warm-Up, 6/13/2018: Everybody’s A Critic!

/ Jack Marshall / 36 Comments

Good morning!

(That almost came out “good monging”…not a propitious sign)

1.  Diversity ethics:  The concept that somehow there are sinister motives and undesirable results any time an occupation settles into a demographic mix that isn’t four-square with that of the general population is one more bit of ideological cant. In London, U.K, the mayor has decreed it a crisis that the population using bicycles is disproportionately white, and has  said he is considering setting diversity targets for London’s cycling population to ensure that “progress was achieved.” I liked Amy Alkon’s disgusted reaction to this whole issue, as she asked how  gender equality would be achieved in fields where women show little interest in participating for a variety of reasons, including a greater interest in a work-life balance. How is this artificial PC “diversity goal” going to be achieved, she asks…” Force women at gunpoint to become cardiologists, oil rig workers, and garbagepersons? Force men at gunpoint to become veterinarians and kindergarten teachers?”

Reader (and volunteer Ethics Alarms proof-reading czar) Pennagain just sent me an article about the relative lack of female movie critics (minority movie critics are also under-represented among Hispanics, blacks and Asians. (I would also bet that they are disproportionately gay, but the study discussed didn’t check that, apparently.) Now unlike, say, female  “garbagepersons,” female movie critics predictably have a point of view that would make a substantive difference in film reviews, so I cannot brush aside this particular imbalance with “So what?” Instead I will ask, “What’s stopping them?” Anyone can be a movie critic now: all you need is a website, some dedication, and, one hopes, some understanding of film and culture. Now, being paid as a film critic is a little trickier.

Here is the Wikipedia entry on the New Yorker’s Pauline Kael, still perhaps the most famous U.S. film critic, whose long-lasting prominence, success and influence (I hated her reviews most of the time–overly political and biased, with whole genres she didn’t understand—“guy movies” like Westerns and horror films, that she sniffed at as beneath her) should have inspired more women to enter the field, but didn’t. I presume there is a reason for that, such as that spending your life watching multiple movies a day including many you wouldn’t be caught dead at if it wasn’t mandatory isn’t an attractive career choice, especially if you want a family.

2. From my sexual harassment files...I just rediscovered this, a sexual harassment case I discussed in program for a construction company in the 90’s. An attractive woman who worked in construction (Diversity!) was walking to work with a co-worker when some boor from an apartment window shouted at her, “Hey, show me your tits!” The women misheard the remark, and shouted back, “Sorry, I don’t have any kids!” Her colleague thought th exchange was hilarious, and told her what the guy really said, He also told everyone on the construction site about the incident, and the woman was pestered from then on with men smirking as they made comments like, “Hey, can I see pictures of your kids?” I hear you have two beautiful kids!” “Why don’t you let your kids out more?”  “Boy, I bet you’re proud of those kids of yours.” The women tried to laugh it off, but the joke never died, even though she started telling everyone to knock it off. Finally, she complained to management, and was told that she was being silly and hyper-sensitive. She sued.

Was using the word “kids”  in a coded joke creating a hostile work environment, or did the court find that since the language itself was inoffensive and not sex-related, it couldn’t be sexual harassment? Continue reading →

When Ethics Alarms Don’t Ring: “The Life of Slaves: A Balanced View”

/ Jack Marshall / 78 Comments

A history teacher at the Great Hearts Monte Vista Charter School (in San Antonio, Texas) distributed an assignment consisting of a worksheet titled “The Life of Slaves: A Balanced View”  to eighth graders. The idea was for student to list the positive and negative aspects of slavery.  After parent Roberto Livar posted to social media the worksheet his son Manu brought home to complete, the teacher was placed on leave and the school said it would audit the textbook associated with the lesson.  Aaron Kindel, the superintendent of Great Hearts Texas, which operates 28 public charter schools in that state and Arizona, said in a statement posted on the Great Hearts Facebook page, “To be clear, there is no debate about slavery. It is immoral and a crime against humanity.”   He said the school’s headmaster plans will explain the mistake to the history class.

I can’t wait to hear what that explanation is. How does any American living in the 21st Century not flinch at a title like “The Life of Slaves: A Balanced View”? It sounds like a joke, in fact: there is a whole genre of galley slave cartoons that rely on the idea that there is anything positive about being a slave is inherently ridiculous. (“It’s not a paid position but I’m gaining invaluable experience in the rowing sector!”). Yes, this teacher is incompetent, and leave is too good for him (or her). If you can’t trust a teacher not to hand out something that stupid, what else might be handed out? Hand grenades? “What Happened”?

Sadly, Mr. Livar couldn’t maintain the high ground, and had to say this:

“We are fully aware that there is a concerted effort by the far-right nationally to reframe slavery as being ‘not that bad’ and trying to revise the Civil War as being about ‘states rights’ and not about slavery. We were concerned that this assignment fell in line with that ideology and were naturally concerned, as well as other parents. These issues are not isolated to one school or one book. These issues are systemic and continue up the chain all the way to the Texas School Board of Education.”

He also said this likely happened because the school is short on diversity.

No, it happened because someone mistakenly hired an idiot as a teacher. Continue reading →

An Ethics Alarms Challenge: Defend Criticism Of The Brooklyn Museum’s Hiring Of Two White Curators Of Its African Art Collections Without Endorsing Racism

/ Jack Marshall / 42 Comments

The Ethics Alarms verdict is that such a defense is impossible. Asks the Huffington Post in its “Black Voices” section, “People Want To Know Why Brooklyn Museum’s New African Art Curator Is White.” Why are they asking this? The answer is obvious and backed by the curriculum vitae of the two (not one) scholars hired, Drew Sawyer and Kristen Windmuller-Luna. They are eminently qualified for their new jobs, and the color of job applicants is not, and never should be considered “a credential.”

From the museum’s release:

Windmuller-Luna will rethink the Brooklyn Museum’s extensive collection of African art, which is comprised of more than 6,000 objects, and organize a freshly conceived temporary installation showcasing the depth of the collection. Her focus will be to create a dialogue between the African art collection and other works within the museum’s holdings while also helping to develop educational programming.

As a curator and historian of African arts and architecture, with a specialization in the early modern period and Christian Ethiopia, her work counters myths about African civilizations and artistic production by focusing on cultural specificity, artistic diversity and global historical context. Windmuller-Luna received her Ph.D. and M.A. in Art and Archaeology from Princeton University and her B.A. in the History of Art from Yale University.

Drew Sawyer will reimagine the role of photography collection within the museum and explore ways to integrate it with other collection galleries and exhibitions.

Sawyer is currently Head of Exhibitions and the William J. and Sarah Ross Soter Associate Curator of Photography at the Columbus Museum of Art in Ohio. He is also a co-organizer of the upcoming historical survey Art after Stonewall, 1969 to 1989 which will tour during the 50th anniversary of the Stonewall Riots in 2019. Sawyer holds a Ph.D. in Art History and Archaeology from Columbia University, specializing in North American art and visual culture of the nineteenth and twentieth centuries.

“Kristen’s vision for a new permanent collection installation that transforms how viewers relate to the arts of Africa is tremendously exciting for us as we near the 100th anniversary of the Brooklyn Museum’s pioneering exhibition of African art in 1923, ”said Deputy Director and Chief Curator Jennifer Chi. “Drew’s deep expertise in social and experimental documentary practices during the twentieth and twenty-first centuries will significantly augment our strong collection and will contribute to our history of championing contemporary artists who continue in this vein.”

Continue reading →

Morning Ethics Warm-Up, 3/22/18: Nanoo Nanoo, And The Oxford Comma

/ Jack Marshall / 54 Comments

Good Morning!

1 . From the “Oh, Come on!” files. As I have mentioned here several times, Georgetown Law professor Professor Paul Butler decided to ambush me with a cheap shot on NPR last year, interjecting “Oh come on!” as I was explaining how a celebrity or prominent man’s inappropriate sexual advances could be initially welcome to a female subordinate, and then later, after, say, the same celebrity is regarded as toxic by that woman’s peer group, what were originally “welcome” (or not unwelcome) attentions could become retroactively unwelcome, prompting an accusation of sexual harassment. I was 100% correct. Last month, in an email exchange on ten topic with the NPR host, I was told that both she and the professor thought I was making excuses for Donald Trump.

Thus does Trump hate and bias make intelligent discourse increasingly difficult. If I had used Al Franken as my example instead of the President, I presume my commentary would not have been kneecapped. But I digress…

In jaw-dropping revelations in a new book coming out in May, actress Pam Dawber and others describe how co-star Robin Williams often treated her and other actresses on the set of “Mork and Mindy.” The book discusses Williams’ “improvisations”…

[M]any of these additions were sexual and directed at the women in the cast, such as when he goosed the actress who played Mindy’s grandmother with a cane.

[Director Howard] Storm said: ‘I’m standing there watching this and I’m thinking, “oh my god” and I just laughed. I thought she was going to turn and say: “How dare you stick a cane in a woman’s ass?” That sweet old lady.’There was nothing lascivious about it, in his mind. It was just Robin being Robin, and he thought it would be funny. He could get away with murder.’

Other times Williams would grab Dawber’s bottom or her breasts simply because he was ‘bored.’ 

‘He’d be doing a paragraph and in the middle of it he would just turn and grab her ass. Or grab a breast. And we’d start again. I’d say, “Robin, there’s nothing in the script that says you grab Pam’s ass.” And he’d say: “Oh, ok,”‘ Storm added.  

Garry Marshall, the producer of the show, said: ‘He would take all his clothes off, he would be standing there totally naked and she was trying to act. His aim in life was to make Pam Dawber blush.’

But Dawber remained unfazed, she admits: ‘I had the grossest things done to me – by him. And I never took offense. I mean I was flashed, humped, bumped, grabbed. I think he probably did it to a lot of people…but it was so much fun.

‘Somehow he had that magic. If you put it on paper you would be appalled. But somehow he had this guileless little thing that he would do – those sparkly eyes. He’d look at you, really playful, like a puppy, all of a sudden. And then he’d grab your tits and then run away. And somehow he could get away with it. It was the Seventies, after all’.

Wait: if it was the 70’s, does that mean that in the parallel universe where Robin Williams has conquered his demons and is running for the U.S. Senate as a Republican (those parallel universes are funky, let me tell you), Dawber couldn’t come out and destroy his candidacy by describing his outrageous behavior? Does it mean everyone would say that she was being unfair, and that she wouldn’t be lionized as another #MeToo hero?

Continue reading →