from Crain's Cleveland Business, August 7, 2023:
Freedom is America's lodestar, but recent Supreme Court decisions have raised alarms as they draw not on our history of liberty, but on our history of oppression.
In 2023, the court ended affirmative action for non-white college applicants, made it legal to discriminate against individuals based on sexual orientation in certain cases, and gutted the executive branch's student loan forgiveness plan. Such backsliding is indicative of how ephemeral freedom can be when it is not proactively preserved.
As lawyers, we respect the court and commit to the oath we took to uphold the law, and it is for precisely that reason that we are obliged to raise our voice when we see injustice.
We cannot subscribe to the myth that discrimination does not occur and cannot be addressed by the judicial system, including the Supreme Court. As the guarantor of our most foundational rights, the court has an obligation not only to avoid legislating from the bench, but zealously to preserve the laws the American people have put in place. Yet the court is not infallible — and while over time it can be self-correcting, that process is contingent on advocates and experts raising our voices.
The court struck down protections enabling schools to consider applicants' race in admissions for higher education despite the strong legal basis for the long-standing practice. At a time when the American Bar Association's membership is 86% white, 5% Black, 5% Hispanic and 2% Asian despite America being 59% white,13% Black, 19% Hispanic and 6% Asian, it behooves us as attorneys to reflect on our role in preserving the integrity of the judiciary — in terms of both how it is perceived by and how it serves the American people.
The court's ruling on a student loan forgiveness plan flies in the face of separation of powers, and entirely discounts the financial realities facing tens of millions of American families. The May 2021 Federal Reserve Survey of Household Economics and Decisionmaking found that 37% of adults would not be able to pay for an unexpected expense of $400 with cash, savings or a credit card that they could pay off at the next statement.
The court is not a source for new policy — rather than legislating or governing, its job is "to say what the law is." Rather than leveling the playing field, it will make it difficult for all to access education and opportunity.
For instance, the National Conference of Bar Examiners, which is responsible for administering the bar exam attorneys take to obtain licensure, has suggested some strategies and best practices for enhancing fairness in assessment, including conducting bias reviews, collecting validity evidence, providing accommodations, reporting subgroup performance and engaging stakeholders. These efforts are more difficult following the Supreme Court's decision.
And yet we must persist. By choosing inclusion, we can continue creating vibrant communities. At the organizational level, this includes doing the work to make spaces more inclusive — addressing both the physical and mental accessibility of your workspace.
True inclusion means meeting people where they are, given their circumstances. This can take many forms — like providing employees access to child care, ensuring paid parental leave for a variety of family structures or allowing for remote work. It is easy to adopt the language of inclusion; it is difficult to adopt the practice. The sincerity of our effort can be judged by its efficacy, and how it responds to obstacles like those introduced by these court decisions.
Kaus is an attorney and is the director of diversity, equity, inclusion and advancement at The Legal Aid Society of Cleveland.