Civil Rights and the White Manel

Memo to those who organize conferences, especially conferences on civil rights: your panels should include women and people of color. Bonus tip: when an invited panelist says that she can only participate in good conscience if the demography of the panel is adjusted, don’t disinvite her. We’re ready to flip the calendar to 2018; why are we still having this conversation? Diversity is too often invoked as an interest disembodied from policy, but there is a direct line between the diversity of legal discourse and the legal rules that such discourse produces. Yes, diversity is desirable for lots of moral reasons — diversity at the upper echelons of the legal profession remains a national embarrassment and, good god, the way academic panels get populated is straight out of the 1950s — but what gets lost is that diversity is also desirable because it produces good law.

It’s difficult to think of a better example of the relationship between diverse discourse and good policy than when talking about overzealous policing. Obviously — obviously — having a bunch of older white dudes monopolize the conversation suppresses the institutional response to the very outgroups whose communities experience the worst elements of modern policing. So, in 2017, after spending the last several years staring at an endless loop of footage documenting over-escalated police encounters involving people of color, those interested in “serious” policing discourse are attentive to diversity, right?

Apparently not. The Tenth Circuit just announced its annual Bench and Bar Conference, and the attendees include Justices Sotomayor and Gorsuch. The Conference will include a panel on qualified immunity. For those who are unfamiliar with the significance of qualified immunity, it’s the asteroid that destroys police accountability. Some high profile exceptions over the past few years notwithstanding, force escalation is rarely prosecuted as a crime, and it almost never produces a criminal conviction. Ordinarily, rules of civil liability work in tandem with criminal punishment to produce behavioral incentives, but qualified immunity means that police officers do not have to pay damages for force escalation (including killings) unless they acted “unreasonably” in light of “clearly established law.” And whereas those constructs could theoretically preserve space for damages-based incentives to do some work, the Rehnquist and Roberts Courts have defined those terms in ways that make it really hard for claimants to win. Qualified immunity, then, is really at the center of how law mediates relationships between law enforcement and the outgroup communities — particularly communities of color — that they police.

University of Denver law professor Nancy Leong (who is nonwhite) is one of the country’s leading experts in qualified immunity, and happens to live and work around the proverbial corner from the Conference. (The Conference is in Colorado Springs.) The Tenth Circuit Conference organizers invited Professor Leong, who noticed that she was the only panelist who wasn’t a white man. She responded: “Perhaps I am mistaken, and I am glad to be corrected, but I appear to be both the only woman and the only person of color on this panel. I’m not willing to appear on a panel so lacking in demographic diversity, given that it’s 2018. Particularly not on a topic related to civil rights. I hope those in charge will add some diversity to this panel. Otherwise, I respectfully ask to be replaced.” Firm, polite, and spot on. (Professor Leong’s response is part of a growing trend in which invited participants refuse to participate in nondiverse panels.) Much to her credit, Magistrate Judge Suzanne Mitchell seemed to recognize the urgent importance of panel diversity, particularly on this subject: “I very much understand your position. I will try to contact you next week. We would very much like to have you participate.” Several days later, however, Judge Mitchell, having consulted with the Conference organizers, conveyed to Professor Leong that the “best route is to find another speaker to replace you.” Even if Professor Leong were eventually to be replaced by a woman or a person of color — an outcome that is completely speculative at this point — seventy-five percent of a civil rights panel will still be white men.

People should not be concerned about Professor Leong, who does not need to be featured on this panel to cement her status in the field. It’s something else that everyone should find deeply troubling. (Well, several things, but I’m going to set aside what white “manels” say about how uncritically the keepers of professional privilege reproduce it.) Whether Judge Mitchell is expressing her own views — which I doubt in light of her first email — or whether she is expressing the preferences of other Conference members, the message is clear enough: having a panel with a suitable demographic makeup was just too inconvenient. But diversity is not some accommodation for women, people of color, and other outgroups; it’s necessary for the Conference to do its job. If it wants inform its audience about qualified immunity — to have an informed discussion about the use of force in policing — then don’t have a panel that consists entirely of people who can’t identify with over-policed communities. Its decision is like convening an all-white-man panel on the effects of affirmative action in higher education, or on sexual harassment in the workplace. It’s a #metoo conference in a men’s locker room.

This is how institutional discrimination happens. There is no reason to think that any individual decision-maker harbors any discriminatory animus towards the excluded groups. The Tenth Circuit, however, is staging an event to educate its bar membership about the use of force by police and appears not to be including a single black person; and when fielding a reasonable request for more diversity, it could not be bothered. At least as of now, conference attendees will be treated to a panel that is bleached of outgroup perspectives. Those perspectives, in turn, are necessary to critically evaluate incumbent assumptions about what sorts of police responses are “reasonable,” and the way accepted policing models are actually experienced in communities whose input has been historically marginalized. There is a direct line between decisions like that made by the Tenth Circuit Conference organizers and the practices of modern law enforcement institutions. In Denver, where the Tenth Circuit is headquartered, the city has paid out $14.5 million in the last three years just to settle lawsuits against the police — many of which involve people of color.