A reader sent along a curious email he received as a member of the New Jersey State Bar Association (emphasis added):

NJSBA Accepting Petitions for Positions

The New Jersey State Bar Association is accepting petitions from members for the positions of at-large trustee and second vice president. Both positions are for full terms and will begin in May. The at-large trustee seat is designated for a woman….

The association’s Nominating Committee had selected Angela White Dalton to serve as its second vice president and Mitzy Galis-Menendez as an at-large trustee. Both terms were to begin May. Earlier this month, both were confirmed as judges of the Superior Court and withdrew from consideration….

A similar announcement is on the NJSBA website.

The reader was upset and wondered:

As best I can tell, there is no position reserved for a man. Now I am no constitutional lawyer (tax actually), but that sure appears to be discrimination on the basis of gender, clear as day.  I was a bit surprised at how open and blatant this preference was.

The seat is in fact reserved exclusively for a woman.  This is one of 8 “At-Large” seats on the 49 seat Board of Trustees of the NJSBA.  The other 41 seats are open to anyone, and appointed through committee and county bar associations and from the Executive Committee members.

The reservation of At-Large spots appears to be an outgrowth of a July 2010 resolution expanding the size of the Board of Trustee to achieve greater diversity.  The NJSBA Bylaws currently contain the following provision (emphasis added):

(f)  Every At-Large Trustee shall be elected from, among and by the general  members of the Association to represent segments of the membership not adequately represented on the Board of Trustees. The designation of  these underrepresented segments of the membership to be considered when nominating candidates for the At-Large Trustee seats shall be made by  the Board of Trustees at the first Board of Trustees meeting following  the Annual Meeting each year.  Nothing in this section shall be  construed to mean that a member from any underrepresented segment can be  prohibited from serving on the Board of Trustees because another member  from that same underrepresented group is already serving as a Trustee.   The purpose of the At-Large Trustee positions is to promote inclusion of as many underrepresented segments of the membership on the Board of  Trustees as possible.  Any interpretation of this section of the Bylaws shall be consistent with that purpose.

For 2012-2013, the designations were as follows:

Under-represented group designation: The trustees determined that an at-large seat on the board should be designated for a member from each the following under-represented groups: Hispanic; Asian-Pacific; African-American; gay, lesbian, bisexual and transgender; lawyers over the age of 70; and women. In addition, two seats will be open for a member from any of those groups.

The Board of Trustees until recently contained 11 female members, but two of those spots are vacant because the women were appointed to judgeships.

I reached out to the NJSBA to get its position on why its diversity efforts had been so unsuccessful that the NJSBA felt it necessary to designate At-Large seats for designated groups, and whether the NJSBA had received any complaints about such process.

The media person who responded to my inquiries indicated that only the President of the NJSBA, Kevin McCann, could speak on the record about it.  NJSBA President McCann did not respond to multiple requests for an interview.

Following up on the reader’s concerns, I don’t know if reserving trustee spots for designated groups is illegal.  It certainly raises questions.

Nothing prevents persons in the designated groups from earning their way onto the Board of Trustees the traditional way of slogging through committee work and county bar associations.  Indeed, such efforts from persons in such groups are welcomed and encouraged.

So what is it about the NJSBA which rendered its substantial diversity efforts so ineffective that it needed to engage in racial/gender/ethnic/sexual orientation set-asides?  Aren’t the set-asides just a cop-out for a more introspective look at the NJSBA’s diversity failure?

What message does the NJSBA think this sends to people who are not in those groups and whose only way to earn a spot on the Board of Trustees is through committee and county bar work?  Although quite obviously directed at the white males who are dominant on the Board of Trustees, the set-asides also exclude others — such as Native American heterosexual males under the age of 70.

Also, qualification is based on a self-identification which — as we know from a certain former NJSBA woman of color who happened to nurse her way through the Bar exam and now is a United States Senator — is not always accurate or certain.

Has the NJSBA thought through whether engaging in discrimination as to the Board of Trustees is the best way to achieve diversity? Indeed, there is no reason to suspect that the NJSBA has discriminated against persons in the designated groups, so the NJSBA is not seeking to compensate for past discriminatory practices, it’s simply using set-asides that would be of doubtful legality in other contexts.

Discrimination to achieve diversity is an issue the courts and society are struggling with in college admissions.  I wonder if NJSBA had those frank discussions when it adopted these set-asides.

These are all questions I would have liked to ask the NJSBA, but it’s not talking.  At least not to me.


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