Is cultural competence the missing piece to the diversity and inclusion puzzle in the legal profession?

I’ve spent a lot of time over the last 7 or 8 years thinking about diversity and inclusion in the legal profession. I’ve thought about it on the micro-level — questioning and exposing the everyday interactions between individuals in the profession, on the mezzo-level — examining organizational practices and policies that reproduce and promote inequality in legal workplaces, and now, on the macro-level — considering what it is about the profession on the whole that produces or reproduces inequality. I’ll be sharing my thoughts and research on these questions over time in a series of blog posts. Here’s what I’ve been thinking about so far:

The United States legal profession has lamented its lack of diversity and inclusion for the past 40 years, yet it has failed to initiate institutional-level reforms to remedy these problems. It has failed to institute rules and policies that mandate and regulate diversity and inclusion. Although many lawyers will likely oppose more regulation, without such macro-level change, the profession will continue to spin its wheels without ever advancing systemic-level reform that will have lasting effects.

An institutional approach to diversity and inclusion means understanding that these concepts are merely modes of achieving a greater goal: cultural competence. Pursuing institutionalized cultural competence in the legal profession is important because the profession is the foundation upon which every system of justice in the United States is built. From it stems our civil and criminal legal systems, both of which have harmed generations of people.

The profession is predominantly self-governing[1]; the courts have ultimate authority over the profession. This is a major responsibility that becomes dangerous when we recognize that the U.S. legal system not only denies access to women and minority lawyers, but has criminalized black, Latinx, indigenous, disabled, and transgender people. Why has the profession failed to actualize its commitment to diversity and inclusion? What institutional-level factors prevent the profession from institutionalizing cultural competence in its education curricula and service delivery?

I rely on formulations of cultural competence that have been advanced by health care scholars since the medical profession is more advanced (though it still needs work) than the legal profession in its pursuit of cultural competency. Joseph Betancourt, Alexander Free, J. Emilio Carrillo, and Owusu Ananeh-Firempong define cultural competence as

Understanding the importance of social and cultural influences on patients’ health beliefs and behaviors; considering how these factors interact at multiple levels of the health care delivery system (e.g., at the level of structural processes of care or clinical decision-making); and, finally, devising interventions that take these issues into account to assure quality health care delivery to diverse patient populations.[2]  (Betancourt et al. 2003).

Applying this conception of cultural competence to the legal profession means we account for- and devise interventions to provide justice for our clients.

Cultural competence must also include “structural competence” – a macro-level understanding of how larger structural and systemic forces shape interactions within the legal profession.”[3] Finally, cultural competence also demands “cultural humility,” which is commitment to “a process that requires humility as individuals continue to engage in self-reflection and self-critique as lifelong learners and reflective practitioners.”[4] (Tervalon et al 1998). Institutionalizing cultural competence[5] in the legal profession and legal education demands that actors and stakeholders of the law both acknowledge and accept that structural forces like racism, xenophobia, misogyny, transphobia, and ableism (among others) deny access to justice.

Diversity and inclusion efforts will continue to fail until we, as legal professionals, utilize cultural competence, structural competence, and cultural humility to accept the harm that the profession and criminal and civil legal systems have caused and then determine to systematically and institutionally remedy those harms.

Why do you think the legal profession has not reached its diversity and inclusion goals? Leave a comment and let us know what you think.

 

[1] Section 10, “Preamble,” ABA Model Rules of Professional Conduct (2002).

[2] Betancourt, Joseph R., Alexander R. Green, J. Emilio Carrillo, and Owusu Ananeh-Firempong. 2003. “Defining Cultural Competence: A Practical Framework for Addressing Racial/ethnic Disparities in Health and Health Care.” Public Health Reports 118(4):293–302.

[3] See also Metzl, Jonathan M. and Helena Hansen. 2014. “Structural Competency: Theorizing a New Medical Engagement with Stigma and Inequality.” Social Science & Medicine 103:126–33.

[4] Tervalon, Melanie and Jann Murray-García. 1998. “Cultural Humility Versus Cultural Competence: A Critical Distinction in Defining Physician Training Outcomes in Multicultural Education.” Journal of Health Care for the Poor and Underserved 9(2):117–25.

[5] I use “cultural competence” as an umbrella term to also include structural competence and cultural humility.