Diversity, Equity, and Inclusion: Challenges and Opportunities for the American Judicial System

Palmira N. Ríos*

The justice system can determine the future of all peoples, whether citizens or aliens.  Therefore, the eradication of all forms of exclusion and discrimination is one of the highest priorities if it will be able to guarantee equal protection under the law to all people.  To meet this obligation, the judicial system must analyze its diversity, equality, and inclusive (DEI) practices, regulations, and policies, both within the organization as well as in the delivery of services.

According Dr. Mitchell F. Rice, an expert in diversity in public administration,

in order for social equity in service delivery to be a primary concern of public organizations, these organizations must first get their own house in order in regard to diversity.  The culture of a public organization has to incorporate diversity within both its mission and management practices.  A strong focus on diversity inside a public organization may posture it to move from a bureaucratic culture toward a more citizen-oriented/social equity culture.¹

Any discussion of DEI should include explicit, implicit, and structural dimensions of inequalities that marginalize individuals and communities.  The analysis of exclusions within an organization must go beyond open and explicit expressions such as prejudicial attitudes, shaming comments, and deprecating electronic messages, to name a few.  It must deepen and identify implicit forms of bias that persist and thrive regardless of legal and regulatory prohibitions.

Another important type of bias that we cannot overlook are discriminatory outcomes of unintentional actions.  Too often, well-intended legal regulations and practices have negative consequences on already marginalized groups, thus strengthening their exclusion.  For example, there is growing evidence that the COVID-19 pandemic is having a differentiated impact on women and people of color related to the persistence of racial, ethnic, and gender typing of occupations and limited access to health care for people in those occupations.  The exercise of building an inclusive environment is complicated, and must consider all dimensions of an institution and be ready to acknowledge and respond where exclusions thrive or persist. Care should be taken to avoid ignoring biases within and between discriminated groups when conducting this review and response.

The diversity of diversity

An important challenge to DEI in judicial and public administration systems is the diversity of diversity.  Too often the term diversity  is used to refer to a single group or to census-defined racial and ethnic sectors. A look at the social construction of vulnerability unveils many groups left behind.  Women, elderly, migrants, poor, LGBTQI, people with disabilities, as well as racial and ethnic populations are among those  served by the judicial system.  A simple look at the demographic composition of the American population reveals a diverse population that varies from state to state.

For example, in 2019 the U.S. population was estimated to be 328,239,523, of which 50% were women; whites comprised 60.1%, Latinx 18.5%, African Americans 13.4%, and Asians 5.9%; foreign born were 13.5%.² However, that distribution varied from state to state.  Consider the rank of second-largest majority group. Latinx/Hispanics were the second-largest group in 23 states, African Americans constituted the second-largest ethnic group in 17 states plus the District of Columbia, American Indians occupied that position in four states, and Asians in one state. Nationally, White Americans represent the majority population; however, in five states and in the District of Columbia, they represent less than 50% of the population. According to a 2017 the breakdown of White Americans in those jurisdictions was: California (37%), Texas (41.9%), District of Columbia (36.5%), Hawaii (21.8%), Nevada (48.8%), and New Mexico (37.4%).

It is projected that Maryland (50.7%) and Georgia (52.6%) are in line to become the next states where Whites will comprise less than half of the population, followed not far behind by New York (55.1%), New Jersey (54.8%), Arizona (54.7%), and Florida (53.8%).³ According to a 2015 study by the Center for American Progress, the American Enterprise Institute, and the Brookings Institution, the country will become majority-minority by 2044.⁴

Understanding racial and ethnic composition is not enough to address the issues of diversity.  The analysis of DEI must consider the intersections between all the variables discussed above. Hence, we must conclude America’s changing demographics constitute a formidable challenge to public administration, service delivery systems, and organizational dynamics. As such, cultural competency raises to the level of an urgent task and a central component in the innovation of our public institutions.

Applying diversity to public administration

Today’s public administration must satisfy three basic principles.  First, it must be effective by promoting the competence and professionalization of its workforce, engage in sound policymaking to achieve its goals, and foster collaboration among multiple public and nongovernment sectors. Second, it must be accountable by ensuring integrity and promoting anti-corruption policies and practices, engaging in transparency, and supporting independent oversight agencies.  And third, public services must be inclusive by ensuring they leave no one behind, exercise nondiscriminatory policies, encourage the participation of stakeholders, and promote intergovernmental relations that respond to the needs and aspirations of all people. These principles are essential for public administration to earn the respect of the people and the trust of those served by it.

The recognition of the central role of inclusiveness in public service is not new, although it is under greater scrutiny in the context of the protests of the summer of 2020 demanding racial justice.  In a 2018 report, the Committee of Experts on Public Administration of the United Nations listed the basic components and actions of an inclusive public administration.  They concluded that public institutions must ensure that all persons can fulfill their potential in dignity and equality, taking into consideration their needs and aspirations, and not leaving behind any sector or persons.

To achieve this goal, public service must promote equitable fiscal and social policies; rely on valid, reliable, and disaggregated data for policymaking; and conduct systematic reviews and follow-ups of its policies, practices, and outcomes.  Moreover, public institutions have the primary responsibility of ensuring equal rights and freedoms for all, including full access to public services. Among several nondiscriminatory actions, the report highlights (1) promotion of public sector workforce diversity, (2) prohibition of discrimination in public service delivery, (3) multilingual service delivery, (4) accessibility standards, (5) cultural audits of institutions, (6) universal birth registrations, and (7) gender-responsive budgeting.⁵

An important component of an inclusive judicial administration is the professionalization of the public service. All the components of the management of human resources, including merit system, performance evaluation, labor relations, continuing education, salaries, benefits, and incentives, must be aligned with its inclusive policies and practices.  Hence, DEI management must promote diversity in the recruitment, retention, and supervision of its human resources; strengthen the cultural competencies of its employees; ensure a continued and formal education in diversity; evaluate and monitor the processes; perform diversity audits, including audits of glass ceilings; and identify and disseminate findings of good practices.

There are multiple instruments to evaluate diversity and inclusion in the workplace.  According to Dr. Rice, diversity can be studied as follows:

1. Cultural Audits:  consists of the evaluation of values, symbols, regulations, and routines that may constitute barriers to inclusion or that have a negative impact. They may be unintentional, but their consequences impose an exceptional burden or hurdle.
2. Climate of Diversity: The evaluation focuses on prevalent behaviors and attitudes within the organization toward specific groups. A study of the climate of diversity in the judicial system shall focus on prejudices in the judicial process and how a judge or a fiscal interprets the record of an accused person. (Does he or she build in his or her mind an idea of the race or ethnicity of that person?)
3. Diversity Audits: The focus of this evaluation is to identify how certain groups of employees feel within the organization or if certain communities feel they are treated unfairly or are poorly served. It allows an employer to reveal hidden perceptions or confirm a bias.
4. Diversity Quotient:  It is an analysis of the processes, materials, and environments from the perspective of the excluded groups to identify barriers and obstacles.  This instrument is useful to identify why the organization does not receive applications from diverse applicants.⁶

Ultimately, DEI evaluations should strengthen the critical thinking and deliberation skills of your workforce.  Public servants should learn to analyze belief systems different from their own without feeling threatened and critically reflect on their own beliefs, ideologies, and world perspective.  In addition, they must be open to and approach delicate and often difficult conversations with diverse peoples with empathy.⁷

Measuring the success of the diversity process

The diversity process will succeed if it achieves the following outcomes:

1. Promotes a shared mind set, assesses current practices, and moves the organization to a diversity mind set;
2. Encourages and reinforces behaviors consistent with diversity goals (behavior control);
3. Links performance and incentives to diversity outcomes;
4. Values the whole process of selection, training, communications, etc.;
5. Diversity accountability and responsibility;
6. Establish specific diversity tasks to be accomplished.⁸

Conquering bias starts from the top down, personalized approach

Notwithstanding, there are significant challenges that may lead to failure.  First, management must be involved and committed to the process.  When leadership is indifferent, it sends the message that the effort is not important, relevant, or desired.  Another challenge is lack of continuous and interrelated policies and practices. Cultural changes require continuity and an awareness of the complexities and interrelated nature of the context to be transformed.  Another related challenge is the lack of understanding of the multiplicity of diverse/discriminated/marginalized groups and their interrelatedness.  Cultural competency must be broad, and it should be aligned with the current (and anticipated future) complexities in each of the areas of race, ethnicity, and gender.  In the words of Kristen Norman-Major and Susan Gooden, “a one-size-fits-all approach in serving minority communities is not feasible, responsible, or efficient.” 9

Furthermore, we must be vigilant for subtle biases and coded words that signal who may face a closed door in the agency.  Monica Torres warns that subjective labels such as “difficult,” “angry,” or “challenging” are codes for people considered not to fit in a specific workplace.  “Defining job performance with this type of subjective language is a common, insidious way that managers and coworkers can marginalize those who don’t fit their own ideas of office culture, which is historically white, able-bodied and male."¹⁰ Torres’s piece highlights that resistance to diversity in the workplace may take many forms, including avoiding a conversation with a person. Employees are invited to ask themselves how they feel about different people, if they feel uncomfortable, unsafe, or strange in their interactions.  To get beyond this internal resistance, the employees and managers must first acknowledge that it may be present before proceeding with the evaluation. Torres advises “applying specific, evidence-based criteria for performance evaluations company-wide can limit the power to implicit biases in assessment.”¹¹

When diversity remains unacknowledged it becomes a problem within the organization.  Consequently, the focus of diversity evaluations should not be limited to acknowledging, but to understanding and assessing the differences. Any diversity, equity, and inclusion process must build trust in the process.  It must be consistent in its implementation and ensure continuity. Staff and directors must know this initiative is not a temporary response to a crisis or to a mediatic pressure; the organization is truly committed and will continue on the road to make the judicial system one that is committed to these goals.  Understand that transforming the institutional culture of our organizations will take time and a continuing process of self-evaluation. The process will encourage critical consciousness when examining social, political, and historical issues related to cultural competencies. And finally, it will help if the process moves from problematizing the groups to focusing on their strengths, capacities, and resilience.  In the end leaders and staff will recognize the assets of those historically marginalized communities and seek out ways to fully integrate them into the organization. The goal of cultural competency is to transform the organization into an effective and inclusive institution by abolishing barriers in the work environment and transforming the staff into more effective public servants.

Conclusion

The American Dream of equality and justice is an aspiration, one that remains very distant for too many people. The construction of inclusive societies is a responsibility of all, including the members of the judicial system.  The formulation, implementation, and evaluation of an inclusive public administration system is necessary for the construction of democratic societies. Only when we have public servants trained for and committed to inclusion, will we be able to progress from an aspiration to a reality.