Race and Ethnic Fairness
State:
Committee/Report Name: The Task Force on Racial and Ethnic Bias in the Courts was established in 1990 by the Joint Committee on Judicial Administration in the District of Columbia. They published the final report in May 1992.
Number of Committee Members: 18 Task Force Members
Number of Subcommittee: 3 Subcommittees including only committee members
Subcommittee on Personnel
Subcommittee on Court Activities
Subcommittee on Litigation
Chair: The
Honorable Will C. Pryor, Senior Judge,
Methods Used: The Task Force conducted extensive and varied research, using a number of techniques to examine the issues, including surveys, statistical studies, small group discussions, and public meetings. Where possible, efforts were made to compare perceptions of participants with statistical data. For example, conclusions reached in discussion groups or workshops were compared with the results of surveys, and in some instances, with analysis of court files. The use of varied techniques for examining the same issues helped the Task Forces to verify some perceptions and hypotheses and question others. Sometimes the only conclusions that could be reached were in the form of further questions and/or a recognition of the need for further studied.
Data collection can be divided into two major categories: quantitative and qualitative. Both are recognized means of gathering information from which conclusions about a subject can be drawn. The Task Force held a Joint Task Force Conference in June of 1991 at Howard University to which were invited members of the judiciary, court employees, and several hundred attorneys, political leaders, and other community leaders. In addition public forums, focus groups, and statistical studies were used to gather information.
Topics and Recommendations
Perception
Attorneys, Judges, and Court Staff
Findings
1. There is a strong perception among a substantial minority of employees that hiring and promotional decisions are or may be racially based. Although this perception does not appear to be supported by the overall demographic data, personnel policies do not appear to be sufficiently well defined, and therefore lend themselves to perceived or actual bias. (See also Court as an Employer/Appointer: Hiring/Promotion, Finding #1)
2. Blacks, other minorities, and White employees all perceive racial/ethnic discrimination against them.
3. There is a perception that the courts do not attract entry-level White employees. (See also Court as an Employer/Appointer: Hiring/Promotion, Finding #6)
4. When asked their overall perception of bias against minorities at the present time, 39.8% of employees perceived that bias is widespread. Another third of the respondents (35.6%) believe that bias exists but only in a few areas and with certain individuals, while 11.2% responded that there is no bias against minorities at the present time.
5. The largest percentage of employees believe that bias had decreased over the past five year; 31.6% responded that there is less race or ethnic bias now than in the past. However, 15.5% believe that there is more bias now than in the past. Only 3.6% believe there has never been any race or ethnic bias against minorities. Without knowing their perception on the issue of bias, 28.6% responded that there has been no change.
6. There
exists a widespread and persistent perception that the
7. There is the perception that the Office of Bar Counsel moves more swiftly in cases involving white attorneys and that it does not prosecute white attorneys as often as it does minority attorneys in the marginal cases. Such reports are not supported by any available evidence. (See also Complaints and Discipline, Finding #5)
Recommendations
1. Although many problems identified by the Task Force are common to large organizations, some hiring and promotional practices have been and/or are conducted currently in such a way as to create the appearance, if not the fact, of racial and ethnic discrimination. The Court’s personnel management lacks effective safeguards to preclude individual racial or ethnic bias from infecting or appearing to infect personnel decisions. (See also Court as an Employer/Appointer: Hiring/Promotion, Recommendation #2)
2. The Office of Bar Counsel should be alerted to the reported perception that it moves more swiftly in cases involving white attorneys than in cases involving minority attorneys and to the perception that it does not prosecute white attorneys as often as it does minority attorneys in the marginal cases. (See also Complaints and Discipline, Recommendation #4)
Access
Language
Findings
1. The Courts over the years have failed to keep up with the growth of the Hispanic community, and, as a result, lack the staff and facilities to provide adequate services to non-English speaking Hispanic litigants and defendants.
2. There is a need to increase the number of employees who speak Spanish, and this need is most acute in the Probation Department and at the Information desk.
3. Failure to hire bilingual staff denies non-English speaking defendants access to a number of programs for which they would qualify if there were bilingual staff available for such important programs.
Recommendations
1. The Courts should affirmatively seek out members of the Hispanic community and bilingual members of other racial and ethnic groups to adequately serve the non-English speaking community and to alleviate the burden placed on the Courts’ limited number of employees who are bilingual. (See also Court as an Employer/Appointer: Hiring/Promotion, Recommendation #9)
2. Court social services should take measures to insure that its staff has sufficient numbers of bilingual probation offices to enable communication with probationers and participation by non-English speaking probationers in all programs available to English speaking probationers.
3. While the Court appears to have an excellent office of interpreter services which generally works well in the trial context, interpreter services need to be provided in critical non-trial phases of the litigation process. For example, on the day following arrest, non-English speaking persons need to be able to communicate with various court personnel and with their counsel. Until the court can provide bilingual counsel to all who need it at this phase of the criminal process, adequate interpreter services are needed.
4. The Courts need to struggle, regardless of the difficulties, to devise a system for provision of counsel who speaks the language of the client. We lack the information to make concrete suggestions beyond those advanced by individuals during our inquiries, such as: a certification system for Spanish speaking counsel; a stand-in system which insures Spanish speaking counsel on the first day; and enhanced recruitment efforts with the private bar.
5. The Courts should investigate what extent court personnel who come in contact with non-English speaking persons at important junctures in the litigation process need additional training to facilitate meaningful communication. (See also Education: Court Staff, Recommendation #4)
Legal Profession
Hiring/Promotion
Recommendations
1. More detailed information regarding the racial and ethnic makeup of practitioners in the D.C. Courts should be obtained, e.g., relevant results of the 1990 census when available, and demographic data from the unified Bar. This information will assist the courts and the community in evaluating the effectiveness of its efforts to increase the level of minority presence on court committees.
Education
Judges
Recommendations
1. Judicial education should include, on a regular basis, efforts to help judges and commissioners identify, understand, and eliminate, racial and ethnic bias.
Recommendations
1. The current orientation program does not adequately inform new employees of court procedures. There is no simple, accessible description of personnel policies. This problem should be addressed.
2. There has been no organized management training with particular regard to racial and ethnic employment issues, for current or new managers.
3. There is a need for multi-cultural training for managers and employees.
4. The Courts should investigate what extent court personnel who come in contact with non-English speaking persons at important junctures in the litigation process need additional training to facilitate meaningful communication. (See also Access: Language, Recommendation #5)
Court as
employer/appointer
Hiring/Promotion
Findings
1. There is a strong perception among a substantial minority of employees that hiring and promotional decisions are or may be racially based. Although this perception does not appear to be supported by the overall demographic data, personnel policies do not appear to be sufficiently well defined, and therefore lend themselves to perceived or actual bias. (See also Perceptions: Judges, Attorneys, Court Staff, Finding #1)
2. Almost one-half of the workforce is composed of Black women. Although there are a number of Black women in positions of authority, Black women remain substantially underrepresented in the upper salary level positions in the courts.
3. There is a critical need to increase the proportion of Hispanic employees throughout the courts, and especially in such areas as probation, where the lack of Spanish-speaking employees affect the ability of the Courts to serve an increasing non-English speaking Hispanic population.
4. Most employees are unaware of the existence of the Equal Employment Opportunity Office, and very few employees utilize EEO procedures for resolving complaints of racial or ethnic bias.
5. There appear to be substantially fewer employees in the Courts identified as Hispanic than there are Hispanics in the general population, and this imbalance has had an adverse impact on the Courts and their ability to serve the Hispanic population.
6. There is a perception that the courts do not attract entry-level White employees. (See also Perceptions: Judges, Attorneys, and Court Staff, Finding #3)
7. The Task Force did not find the overall racial or ethnic composition of the workforce of the Superior Court and the Court System to be disproportionate to that of the general population in the District, except in the case of Hispanics.
8. It appears that White employees enter the Courts at the professional and administration level almost exclusively, whereas minority applicants are more likely to enter the system at the administrative support level.
9. Black employees are statistically more likely than Whites to see fewer opportunities for advancement.
10. Capital
improvements made by the Courts are handled by the Department of Public Works
of the
11. The
Superior Court of the
12. A
larger proportion of Superior Court procurement dollars goes to minority
vendors than do gross sales receipts in the private sector business community.
However, the Court of Appeals falls short of that benchmark. And neither court
provides nearly as many opportunities for minority contractors as does the
13. The Task Force finds that the Courts concentrate their business with minority vendors in service areas requiring manual labor (light construction, cleaning, maintenance, hauling, trash removal, carpet laying) or the provision of services to juvenile and other youth under court supervision (e.g., foster grandparents, and educational and other community based resources).
Recommendations
1. Without a full utilization study, the Task Force is unable to draw definitive conclusions from the data it examined. Therefore the Task Force recommends that a utilization study be conducted to determine the nature of the available workforce.
2. Although many problems identified by the Task Force are common to large organizations, some hiring and promotional practices have been and/or are conducted currently in such a way as to create the appearance, if not the fact, of racial and ethnic discrimination. The Court’s personnel management lacks effective safeguards to preclude individual racial or ethnic bias from infecting or appearing to infect personnel decisions. (See also Perceptions: Judges, Attorneys, and Court Staff, Recommendation #1)
3. Hiring and promotion practices should be reviewed carefully.
4. Black women are underrepresented in the upper grade levels, although the patter of promotion indicates some success toward resolving this problem.
5. There appears to be a lack of consistent and clear policies for promotions. This encourages the perception that Blacks and other minorities are not treated fairly by supervisors and other management personnel. While many employees have grievances, the survey data suggests that non-White employees feel the most alienated and most subject to racial discrimination.
6. The EEO office is not viewed as an important part of the Courts—most employees do not appear to know that it exists, and therefore it is not seen as a means of protecting employees from racial and ethnic discrimination. Thought should be given to making this office more accessible.
7. Communication between employees and management needs improvement. The lack of ability to communicate concerns without fear of reprisal results in employee dissatisfaction and alienation.
8. A mechanism should be established immediately to review personnel policies in the divisions identified in the Report and to continue such review throughout the system.
9. The Courts should affirmatively seek out members of the Hispanic community and bilingual members of other racial and ethnic groups to adequately serve the non-English speaking community and to alleviate the burden placed on the Courts’ limited number of employees who are bilingual. (See also Access: Language, Recommendation #1)
10. The Task Force recommends that both the Superior Court and the Court of Appeals strive to increase minority contracts to at least 30%.
11. The Courts should expand their access to and use of Hispanic, Asian, and other minority vendors. Sources for additional minority vendors include
a. The
b. The D.C. Contractors Association
c. The D.C. Office of Latino Affairs
d. The United States Pan Asian Chamber of Commerce
e. The
12. The Task Force recommends that the Courts actively seek to use minority-owned vendors for a greater variety of services, for example, in computer installation, software design, repair and installation of electronic equipment, technical assistance and training and other technical and hi-tech service areas. The Task Force recommends that in implementing these recommendations, the Administrative Services Division for Superior Court and the Director of Administration for the Court of Appeals avoid extensive repeated use of the same minority businesses and attempt to give as much business to as many different minority owned firms as possible.
13. If the above recommendations fail to increase minority participation and provide greater diversity in participation by the end of 1992, the Courts should adopt a formal system for assuring greater minority participation, rather than continuing to rely on a “best efforts” policy.
Appointer
Findings
1. The
total percentage of African Americans (32.75%) on the court committees is two
times as high as the percentage of African American lawyers active in the DC
Bar (15%). However, when compared with the African American population as a
whole, the percentage of African Americans on the court committees is half as
much as the population. Concomitantly there are proportionately fewer Caucasian
members of the committees than with offices in the
2. It is often difficult to convince solo practitioners, which minorities tend more often to be, to donate the large amount of time that some committees or boards require. This is particularly true regarding the Court of Appeals committees.
3. The Courts have, over a period of years, made a substantial effort to have their committees reflect a cross-section of the legal profession and the larger community. However there needs to be an expanded effort to appoint, and perhaps recruit for appointment, Hispanic, Asian, and other minority lawyers. This is particularly important because of the increase in the general population of these ethnic groups in the District during the last few years and projected increases for the future. At the same time, the level of African American membership on these committees must be maintained if not increased.
Recommendations
1. The Task Force recommends that the stated desires of the Chief Judges to increase representation of minorities on court committees be expressed as a specific commitment by the D.C. Courts, perhaps by resolution of the Joint Committee.
2. The courts should develop a more organized process of recruitment and development of criteria for diversifying membership in the committees, as the present system may rely too heavily on the willingness and ability of the respective committee chairs to recruit appointees for vacancies.
3. Lawyers should be appointed to some of the committees that are now composed only of judges.
4. Lawyers not practicing in the D.C. courts but in government or business should be appointed to court committees.
5. Non-lawyers should be appointed to some committees, as in the case with the Board on Professional Responsibility. Appointment of non-lawyers makes sense not only because good minority community activists would then be eligible for appointment, but also because these non-lawyers might provide a beneficial client perspective to such committees as Landlord/Tenant. Client Security Trust Fund, and Probate.
6. The Task Force concludes that it would be appropriate for the Chief Judges to more closely monitor committee appointments and issue an annual report on the makeup of committees, steps taken during the past year to increase diversity, problems encountered, and goals for the next year.
Findings
1. There
exists a widespread and persistent perception that the
2. Some of the components of the disciplinary system are seriously lacking in minority participation and need to be reconstituted to remedy that deficiency.
3. Some of the practices and procedures employed by the system appear to have a more severe impact on small firms or solo practitioners than on lawyers from medium or large firms.
4. There is concern with the alleged lack of standards for referrals made by judges against attorneys to the Board on Professional Responsibility. When coupled with the absence of statistical data regarding the race, sex, and ethnicity of attorneys who are subject to such referrals, the lack of such standards allows for the unbridled exercise of racial and ethnic bias in the judicial decision whether to make such a referral.
5. There is the perception that the Office of Bar Counsel moves more swiftly in cases involving white attorneys and that it does not prosecute white attorneys as often as it does minority attorneys in the marginal cases. Such reports are not supported by any available evidence. (See also Perceptions: Judges, Attorneys, and Court Staff Finding #7)
6. A survey of lawyers who had complaints filed against them in the past year did not reveal evidence of disparate treatment of racial or ethnic minority lawyers at any stage of the complaint process. Cases were dismissed against minority group lawyers at the same rate as they were against whites.
7. The contention that Hearing Committee members do not understand the problems faced by small practitioners and especially sole practitioners, is given credence by the absence of similarly situated lawyers from seven of the ten Hearing Committees. It is magnified by the absence from all the Committees of any minorities other than African Americans and, from four of the Committees, of any minorities at all.
8. The Board on Professional Responsibility has made efforts to recruit minority and small firm practitioners to serve on Hearing Committees. It has had some success but, for understandable reasons, not nearly enough: sole practitioners and others who may be struggling to maintain a practice with some semblance of financial stability do not have the time to contribute to service on Hearing Committees and the Board.
Recommendations
1. The Task Force strongly recommends that the study of alleged racial and ethnic bias in the District of Columbia disciplinary system be continued; that substantially more time and money be allocated to its pursuit, to enable a much deeper and boarder inquiry; and that aggressive efforts be made to involve racial and ethnic minority members of the Bar in all of its facets, with inviolable guarantees of confidentiality and anonymity.
2. Steps should be taken to ensure that Bar Counsel’s determination whether to docket a particular complaint is even more anonymous or “blind” than it is now. No more than one or two persons should have to know the identity of the attorney being complained against before that determination is made.
3. Data should be collected after the fact on the race and ethnicity of referrals made to Bar Counsel by judges of the D.C. Court of Appeals and the D.C. Superior Court to determine whether referrals of such minorities are disproportionate to their numbers in the courts and, if so, why.
4. The Office of Bar Counsel should be alerted to the reported perception that it moved more swiftly in cases involving white attorneys than in cases involving minority attorneys and to the perception that it does not prosecute white attorneys as often as it does minority attorneys in the marginal cases. (See also Perceptions: Judges, Attorneys, and Court Staff, Recommendation #2)
5. Continuing mechanisms should be established to enable communication and discussion between the Bar and the Courts regarding concerns relating to racial and ethnic bias in the litigation process.
6. Continuing mechanisms should be established to enable the Court to receive input from members of the community about problems of racial and ethnic bias in the litigation process.
7. The probable cause threshold can be more clearly defined and, if appropriate, elevated in order to eliminate at the earliest stage those complaints which are clearly frivolous, hopelessly ambiguous or patently lacking in credibility. This would achieve the prompt resolution of frivolous matters and eliminate the lengthy periods of time during which such matters now hang over the heads of the targeted attorneys.
8. Even when a complaint is not clearly frivolous, it often still does not merit the full involvement of the Bar Counsel. A position of ombudsman or mediator should be established as an independent arm of the Board on Professional Responsibility, or cases should be referred for mediation to the Superior Court’s Multi-Door Division. That way complaints which do not involve claims of misconduct can be referred for resolution outside of the investigative/adversarial disciplinary process.
9. To the extent that it can be accomplished consistent with the Board’s role as a judicial body, a mechanism should be developed for providing greater oversight by the Board of the Office’s staff. A system of spot-checks could be instituted, with each Board member responsible to review one or two cases a year. This could provide another means by which any potential for prosecutorial abuse by Bar Counsel’s staff could be restrained so that matters which do not merit full prosecution are not subjected to it.
10. The Board on Professional Responsibility considered the possibility of providing compensation for Hearing Committee service to lawyers in solo or small firm practices who would be good candidates for Hearing Committee membership but would suffer a financial hardship if not otherwise compensated, but rejected this approach, for a variety of reasons. The Board should revisit this question, since the concern is a legitimate one.
11. The Bar Counsel’s staff should be trained in the operation of a small general practice law firm, in the special problems facing minority practitioners, and in the day to day working of the Superior Court, and they should also receive counseling in public or interpersonal relations, with particular emphasis on courtesy.
12. The Board on Professional Responsibility and the Court of Appeals might reexamine the penalties attached to various violations of the Disciplinary Code, to allow for appropriate consideration of the practicalities of small firm practice in determining the sanctions appropriate for such violations by small firm practitioners—many of whom may also be members of racial or ethnic minorities.
13. The Bar should create and conduct courses on money management, office management, and ethnics for new layers to try and avoid disciplinary problems for misappropriation of client funds, penalties falling more often on solo-practitioners, before they get out of control, perhaps establishing a “lawyer practice assistance committee,” as has been recommended by the ABA Commission on Evaluation of Disciplinary Enforcement, to carry out this mission. The Bar might also consider instituting random audits of trust accounts, requiring that trust accounts be kept in banks that will report overdrafts, or taking other measures that will allow for meaningful and timely oversight of money entrusted to lawyers, to stave off problems for both those lawyers and their clients before they become unmanageable.
14. The Board and the Court should consider the use of fines, remedial courses and other alternatives to suspension for certain disciplinary violations.
15. The Board on Professional Responsibility should make a concerted effort, including aggressive recruiting, to increase the representation of racial and ethnic minorities in the disciplinary system.
National Center for
State Courts
300 Newport Avenue
Williamsburg, VA 23185
Phone (800)616-6109 Fax (757)564-2022
Questions or Comments - email research@ncsc.dni.us
Copyright © 2004 The National
Center for State Courts. All Rights Reserved.