In this episode, Dr. Heather Hackman helps us get a new perspective on diversity and the legal profession. She also explains why “doing diversity” doesn’t work, and what small firms actually need to do to increase diversity in the legal profession. This may be a challenging podcast for some, but it will reward those who listen with an open mind.

Books mentioned during the podcast:

White by Law, by Ian Haney López

The New Jim Crow: Mass Incarceration in the Age of Colorblindness, by Michelle Alexander

Nobody: Casualties of America’s War on the Vulnerable, from Ferguson to Flint and Beyond, by Marc Lamont Hill

Under the Affluence: Shaming the Poor, Praising the Rich and Sacrificing the Future of America, by Tim Wise

Heather Hackman

Heather has taught, published, and trained on social justice issues since 1992, as a professor at St. Cloud State University in St Cloud, Minnesota, and full-time as a consultant since 2005. Now, she consults nationally on issues of deep diversity, equity, and social justice, especially racism and white privilege, gender oppression, heterosexism and homophobia, and classism.

You can hire Heather for consulting or training, or find out if she is doing a training near you at her website.

You can follow Heather on Twitter and LinkedIn.

Thanks to Ruby Receptionists, Spotlight Branding, and FreshBooks for sponsoring this episode!

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Voiceover: Welcome to the Lawyerist podcast with Sam Glover and Aaron Street. Each week, Lawyerist brings you advice and interviews to help you build a more successful law practice in today’s challenging and constantly changing legal market. Now, here are Sam and Aaron.

Sam Glover: Hi, I’m Sam Glover.

Aaron Street: I’m Aaron Street and this is Episode 105 of The Lawyerist Podcast, part of the Legal Talk Network. Today, we’re talking with Heather Hackman about how small firms can work on diversity.

Sam Glover: Today’s podcast is sponsored by FreshBooks, which is ridiculously easy to use and packed with powerful features. Try it now at FreshBooks.com/Lawyerist and enter, “Lawyerist,” in the “How Did You Hear About Us” section.

Aaron Street: Today’s podcast is sponsored by Ruby Receptionists and its smart, charming receptionists who are perfect for small firms. Visit callruby.com/lawyerist to get a risk-free trial with Ruby.

Sam Glover: Today’s podcast is also sponsored by Spotlight Branding. Learn how they use the internet to make all of your law firm marketing and business development more profitable by visiting spotlightbranding.com/lawyerist.

Aaron Street: Sam, we’ve mentioned in a number of podcasts in the last couple of months that our upcoming TBD conference will be happening in St. Louis at the end of February. I guess I’m excited to announce today that we will be closing the applications and invitations to that event on Monday, February 6. You’ve got a few days after the release of this podcast to sign up if you’re interested in joining us for what promises to be a really interesting conversation about the future of law practice and an opportunity to have lots of really cool conversations with amazing, innovative lawyers from around the country.

Sam Glover: I feel like you didn’t sound nearly as excited as I felt during the two days of TBD Law.

Aaron Street: My voice needs more exclamations?

Sam Glover: Yeah, I mean it was-

Aaron Street: You’ve got to come to TBD!

Sam Glover: We put this thing on. We knew what we wanted it to be and how we wanted to do it. We were hoping that everybody came along with us. Oh my God, it exceeded my wildest expectations. People were gushing about it for weeks. We still have this community of people who went to TBD Law last August and it’s just really cool and exciting to see how their practices have grown and become more profitable and more exciting sense then. I’m looking forward to bringing on some of our alumni and some new people and bring them together and see if we can do it again and how exciting it’s going to be because it really was like this intense, exciting two days of workshopping law practices or practice hacking. It was awesome and I can’t wait to do it again in February. Hopefully, again and again and again.

Aaron Street: Yeah, it’s easy for me or us to say, but it was easily the most inspiring and useful legal conference event that I have ever been to. It was amazing. I don’t take credit for the fact that it was amazing. It was due entirely to us having a really cool group of interesting people in the room.

Sam Glover: Yeah. Here’s the thing, because I’m doing a lot of the inviting, and I know that when I get invited to things, I’m usually just like, “Eh, spam, spam, spam,” or just, “delete, delete, delete,” because I’m like, “Eh.” We’ve only invited, I think, total 200 people and we’re only trying to get 75 people there. Either you or I, or both of us, have specifically looked at every single person’s website and tried to find out more information about everyone we’ve invited because we’re really trying to get information about, “Are they going to get it? Are they going to be the right people to have there?” Once we figure out that, yeah, we think they are, and we extend an invitation, it means that we really want that person to be there.

If you have an invitation and you just deleted it, maybe go check your trash folder and check it out again because there really aren’t that many of them out there. If you don’t have an invitation already, you can still apply on our website at lawyerist.com/tbdlaw or tbd-law. You can find that link under “Discuss” in the nav menu. I think there’s a post on the front page about TBD Law, or there will be by the time this is up because we’ll be announcing the application deadline. You can apply.

Here’s what we’re looking for so that you know what to tell us because we ask you to tell us why you think you’d be a good fit. We’re looking for lawyers who think strategically about the future of their law firm as a business and as a professional services company. We’re asking for people who are realistic about the trends shaping the legal profession or are at least curious about those things and know that it’s going to take more than same old, same old to survive for the next five, 10, 15 years.

Because what we don’t want to do is spend our time convincing people why it might be a good idea to go paperless or why document automation might be a useful thing. We’re not interested in discussing remedial things. At TBD Law, we’ve got a website where we do that. We’re looking for people who get the strategic value or the value in thinking strategically and having big ideas about the future of their law practices. That’s what we hope to see.

Aaron Street: Yeah, or even just people who are coming to the conversation with some creative ideas for new ways to think about how to engage clients and deliver legal services. I think whether or not you feel like you are a savvy tech person or not is not the point. The point is we’re looking for people who are forward thinking about how small firm law practice can be better and different in the future.

Sam Glover: I guess I could give you some ideas about who’s been there before that felt like really great fits. We’ve had a woman who built a nonprofit law firm in Utah, Shantelle Argyle. We had David Colarusso, who is able to sit down and build apps and is building one in part with some interest in collaboration with some of the people from TBD Law. So is Jason Velez from 1LAW, which is a personal injury firm, and he’s building a network nationwide around that brand.

Then we have lawyers who have ordinary practices that are trying to make them extraordinary. We had, I believe, an immigration lawyer who knew that he could build his firm to scale. He just needed to figure out how to bring in the capital to do more advertising. We’ve got younger, newer lawyers who are trying to build innovative firms. We’ve got gun lawyers, and we have solos, and we have firms with a dozen or so lawyers or more. It’s been a really interesting group, but everybody is willing to engage with big ideas. It was so exciting and inspiring because of that.

Aaron Street: Yeah, and another dynamic of the event is that we aspire over time to make it the most diverse event in law practice. We have some pretty ambitious goals about racial and gender diversity to make sure that the room is full of a variety of voices and perspectives that are representative of the legal profession as a whole. We’re really excited that we continue to make strides, but as you’ll hear in today’s podcast, there are always lots of challenges in diversity recruiting and it’s a complex topic.

Sam Glover: Yeah, I’m really excited about today’s podcast. I think you’ll hear I had a really good time engaging with this and with some hard ideas. I think you’ll find that it’s going to resonate with you in at least some ways. I hope it makes you rebel against the ideas at some point, but I hope you’ll also listen with an open mind to the whole thing. I hope you’ll find something in here to go, “Yeah, wow. I hadn’t really considered that before.” I think you’re probably going to go through a series of phases as you listen to this podcast. I think I’ll just shut up now and let Heather take over because it gets really interesting. Here’s my conversation with Heather Hackman.

Heather Hackman: Hi. My name is Heather Hackman. I’m the founder and president of Hackman Consulting Group. We’ve been an established consulting group since 2005. We go all over the country and consult in various types of organizations: non-profits, for-profits, higher ed, E-12, and certainly in this case, law firms and other legal venues around social justice and equity issues. In particular, my work tends to focus on racial equity and racial justice, but we certainly also address gender and class quite a bit and any other equity or social justice issues that organizations has some questions about.

Sam Glover: Thank you so much for being with us today. I first encountered you at a very challenging seminar on class, classism, and the law for the Volunteer Lawyers Network. It was great. I guess I’ll relate one of the exercises you had us do, because I think you can reflect on how you might handle it. You asked everybody in the room to line up from the highest to the lowest class. You asked us to talk about it as we did it.

It was a really interesting and eye-opening experience. It made me realize that I don’t see class, my class, in the same way that other people might. In fact, I’m deeply uncomfortable with the way that other people might see my class. I’m reflecting on how my friends, my business partner might line themselves up in the room and realizing that that’s a really twisted lens through which to view the world.

Heather Hackman: Yeah. You know, that’s one of the hoped-for outcomes of that particular activity. The way that we frame it is we offer up just two pieces of direction. One is to line up shoulder-to-shoulder facing the board or the front of the room based on how you identify with respect to your class. Two, you have to talk to each other, the people around you, to make sure that you’re “in the right space.” Typically, one of the outcomes, and it’s exactly what you said, that people realize, “Whoa, I have radically defined class in certain ways that my colleagues do not.” There’s substantial differences.

The other piece to take away from that is that with all of those complex – sometimes complimentary, sometimes contradictory – definitions of class, we come to understand that there is a very imprecise understanding of class in this country. Then we turn our attention to this system of economic depression and classism and ask why that’s so. Why is that? What is the purpose of being so confused and vague about what class actually is in this country? In many ways, the purpose is to help the bulk of people who are not benefiting from an economic system continue to believe if they just “work a little harder or apply themselves a bit more,” then they, too, will “make it.”

In a system that is, at least currently, the way that contemporary, free market, unregulated capitalism is operating, it tends to favor a very small group of people. How do you get the overwhelming majority of a society to go along with that? You get many of them, not all, but many of them to think that they, too, have a chance to make it and go from rags to riches, or at least improve their stations in life.

Sam Glover: You forced us all to see ourselves through that lens and it was kind of a crazy experience.

Heather Hackman: Exactly.

Sam Glover: I’ve dumped us in the middle of the topic here and that’s maybe not fair. You also did one thing at that seminar, which we should probably start with, even if we’ve already started. Will you ground us in and explain what that is and why we’re doing it?

Heather Hackman: Sure. Yeah. I actually begin every training, every consulting session, and every class when I was a faculty member – I taught for 19 years in higher ed – and I began each session with a grounding. It really just takes a minute. The purpose of it is to help people become more present in the space that they’re in.

I ask those students to move their feet flat, if they’re able. If that’s not what their body is used to, then just sink their weight into whatever standing, seated, inclined position they might be in. The first move is to sink in. Then the second move is to sit as upright as you are comfortable and are able to do. Again, we have all very different bodies, so that will look and sound and feel different for folks.

Then we ask people to close their eyes or cast their gaze to a neutral site. This country is, unfortunately, full of countless folks who identify as trauma survivors and maybe they don’t identify with that, but that is their experience and it’s just unkind and unskillful to ask those folks to close their eyes in a public space. You either close your eyes or cast your gaze to a neutral site so you’re not visually distracted.

Then breathe as deeply as you are comfortable and able. That seems like a fairly benign thing to do, except in the United States that, too, is mediated by issues of class and race. The connections of racism and classism in this country relegate certain communities of people to certain areas where they can live. They’ll also happen to be the spaces in this country where garbage incinerators are built, where there’s water that’s not portable, et cetera, et cetera. Even something as seemingly neutral as breathing is actually mediated by race and class. As we ground in, we begin to bump into the very issues that we typically talk about in these training sessions.

Folks breathe as deeply as they’re comfortable and able. Then just for 60 seconds, focus their full field of attention on the felt sense of air coming in and out of their nose. Our minds will almost instantly wander and they will do so several times in the one minute. That’s okay. Don’t get judge-y about that. Just notice it and then bring our attention back to the felt sense.

What we’re doing is we’re building the muscle of attention, if you will. We’re increasing our capacity to be fully present in the work that we’re doing and the conversations that we’re in. If you want to, feet flat, sit up, eyes closed, breathe deeply, and just for 60 seconds put your full field of attention on the felt sense of air coming in and out of your nose. As your mind wanders, notice it and just continue to bring your felt sense, your field of attention, back. Soon, we’ll just do the last full inhale and exhale.

Sam Glover: Thank you. That might be a first for a podcast.

Heather Hackman: We typically do it for just a minute, but we did that one for 30 seconds because I assumed dead air is probably toxic for all audio forms. For the listeners, that was just 30 seconds, but I just encourage people to do it at least once everyday as you head into a meeting, as you pick up a phone, even before you send that email, because it certainly will save you a lot more time to ground in just for 60 seconds then have to send seven different emails to clean up the one email you sent out of frustration or anger, et cetera, et cetera. If nothing else, it’s a time-saver, but particular to issues of class and race and other social justice issues, it’s just critically important that we learn to be fully present in those conversations such that we can engage most fully with each other as we do that work.

Sam Glover: We’re going to talk about some hard things today. You mentioned a lot of things that some people find it difficult to accept or may need their minds opened to. Grounding in, I think you’ve said before, allows us to maybe be a little more receptive to that and think about it as opposed to just reacting to it.

Heather Hackman: Yeah. Yeah.

Sam Glover: What I want to talk about today is the legal profession’s diversity problem. We have one. It’s not really a question. Women are underrepresented. Minorities are underrepresented. Some of the answers to how that comes about are really simple and the solutions are really not.

One of the things that doesn’t feel all that simple to me is in the world of small firms, which is most of our audience, most of our listeners. Most small firms, many small firms anyway, solo practitioners in particular, only get a few chances to make a hiring decision or to mentor a lawsuit or something like that that would have a real direct impact on diversity. You’re likely to hire somebody who you automatically trust and know and maybe even been talking with them about this for years.

What I’m interested in talking about is how can people who have so few opportunities to directly impact diversity in the profession, how can we make a difference? I know I’ve just asked a really big question, but feel free to back up and lay a foundation if you need to.

Heather Hackman: No, that’s all right. Sure. I think I would begin my response to that question … I get that question a lot in trainings. Everyone in our consulting group fields that question at some point and the typical response is that it’s actually the wrong question to ask. Not because people aren’t “doing it right,” et cetera, but because we have for a few decades now in the era of this general, very vague narrative of diversity, we have misunderstood the nature of the problem. Therefore, we misunderstand the nature of the solution. I will back up just a little bit.

In the presentation, I don’t know if you remember this, but we typically have a PowerPoint slide up where there’s three vertical columns. The column on the left is diversity. The column in the middle is cultural competency. The column on the right is social justice/equity. We usually do this as a very intro framework because this, in and of itself, helps clarify the answer to your question in that diversity work historically has really only been about achieving appreciation and a valuation of difference. You become aware of difference and you learn how to appreciate that difference. That typically has been the only function of diversity training, diversity programs, diversity initiatives, et cetera.

It seems like they should have a broader reach and more depth, but in point of fact, when you look at the literature and you look at it in action, diversity initiatives and diversity offices have historically only been able to put forth initiatives that are about developing a greater awareness and an appreciation of difference. That’s not bad, but that’s not the solution to why are there not enough people of color, and cisgender, or trans women in the legal profession. Diversity just does not have the capacity to answer that question. If the questions about identity and representation in your profession are an ocean’s worth of questions, diversity is just a shallow, small hole. It really doesn’t have a capacity to do that work.

Similarly, cultural competency, which is a slightly more recent term, is very important because it’s about developing skills in cross-cultural lines and that’s incredibly valuable. That, too, does not look at the big-ticket items that help us achieve racial equity in law firms, gender equity in law firms. The problem with both diversity and cultural competency is that they are good for what they’re good for – awareness, and appreciation, and skill development across cultural lines – but they do not look at systems and structures and access to resources.

That, ultimately, is what mediates the presence of Native people, people of color, cisgender and trans women in the legal profession. It’s not a lack of awareness and appreciation. It’s not a lack of cross-cultural skills. It is something far more complex and profound than that, which is the way that the legal system and the legal structure has operated historically and currently, and how that operation mediates people’s access to resources. The right-hand column—equity and social justice—that is a column that explicitly and exclusively addresses systems, structures, history, and access to resources.

To pull back from that slide a bit, if you were to go to the left-hand column of diversity, if that was your compass, then a firm, whether it’s a solo small firm or a large, large firm in the Twin Cities where I live, what you would do, your strategy would be to get more people of color into your firm. We call those poll questions. The problem is if you haven’t changed anything about your firm with respect to race, then you’re going to get people of color and Native people into your firm, but you will not be able to retain Native people and people of color in your firm because your business as usual is business as usual.

Sam Glover: You just touched on something that I encountered in a completely different context, but it was about diversity. I think it was a Harvard Business Review maybe and they were pointing out that, yeah, you can do diversity. You can get more people of color, or more women, more trans people, whatever, into your company, but if they don’t feel welcome there, they’re not going to stick around. You can’t retain them.

Heather Hackman: That’s exactly right.

Sam Glover: Making them feel welcome is not a matter of doing diversity. It’s a matter of changing the lens through which you view your company, your activities, your relationships, your communications. I think that’s right, isn’t it?

Heather Hackman: Everything. Yeah, that’s exactly right. Unfortunately, you can’t really throw a stick without hitting diversity trainers. The reason most firms and other organizations like diversity trainers is because they don’t, in fact, challenge the status quo. You get to check off the list that you’ve done this year’s diversity training or this quarter’s diversity training, but nothing actually changes. The people who have historically benefited from the way business as usual operates, get to continue to benefit from how that operates, and you simultaneously get to check off your list that you’ve done your diversity work. It’s a very seductive strategy because it’s easy on the folks that have always had it easy.

Don’t get me wrong. I’m not saying that white people haven’t had to work hard in law school and work hard in your career. I know a lot of folks who are new lawyers in the field and they work extraordinary hours. That’s simply to say that you can work extraordinary hours, and if you have a lot of dominant identities like white, or cisgender male, or professional middle class, you can be reasonably well-assured that that work will pay off into a promotion.

Whereas Native people and people of color, for example, work their tails off just as well, but might be seen as folks who aren’t quite “team players.” They might not be a good fit for the firm, et cetera, et cetera. Or those folks themselves will say, “This firm is a pretty toxic place around issues of race. If I hear someone call me boy one more time, I’m going to lose it. Or if someone tells me as a black man that I’m very articulate for a black man, I think I’m going to blow my top.” They leave. They leave.

My point in giving this big-picture, three-column framework is that diversity work is profoundly ineffective. The focus is to get more people of color, or Native people, or women, or trans folks into your firm, and that does not result in change. The fundamental answer to your question is to actually not view diversity work, and not even worry about hiring more people of color, Native people in the field, and instead move to the right-hand side of this image that I’m trying to construct and do equity and social justice work. Meaning a solo, small law firm or a huge law firm that takes up 10 floors in a major office building in downtown, they would begin to explicitly and consistently over the long term address issues of equity and social justice in their business as usual.

That focus in our consulting firm, we call that addressing the push question. Don’t ask the pull question: “How do we get more people of color in our firm?” Ask the push question: “What is it about our firm that makes it impossible for people of color to come and stay? Why are people of color not making partner in our firm? What is it that we do and have been doing that makes that impossible? In other words, what do we do that pushes out Native people and people of color?”

Sam Glover: Let’s take a pause on that provocative note. We need to hear from our sponsors. When we come back, I want to pick up right where we left off.

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Sam Glover: Okay, and we’re back. You just distinguished between push and pull and started talking about that. If I can maybe sum that up in a way that maybe makes more sense to me – well, makes different sense to me – the question is not how do you hire more people of color, for example. It’s how do you get more people of color applying, and make sure that they have an even shake at the application process, and make sure that they’re going to feel welcome once they’re in your firm, and succeed and rise to the highest levels just as any white man can do? Right?

Heather Hackman: It’s close. There’s a bit more to that.

Sam Glover: Yeah, go on.

Heather Hackman: Rather than just saying, “How do we make it so that people of color can apply and be successful,” because the focus is still on “those people,” the hardest, hardest focusa—nd the most effective focus in the long run is to say, “What is it about our firm that tends to favor white people? What is it about our communication style? What is about the promotion expectation? What is it about the nature of work?” Et cetera, et cetera. In other words, “What is it about our environment that not only is unwelcoming to people of color in terms of what we think about people of color, but it’s unwelcoming to people of color because we keep whiteness at the center?”

Sam Glover: How do we do that? How do we figure that out?

Heather Hackman: Yeah. It’s pretty intense.

Sam Glover: Because I am a white dude. That’s how I see the world.

Heather Hackman: Right. Right. This is why many organizations don’t actually want to do social justice work because, if you can imagine, this is hard and engenders extraordinary resistance, and frustration, and anger, and fear, and all kinds of stuff. The way that you do that is you begin…Let’s take race, for example. You begin by learning about the history of the creation of race, what racial categories actually are, where they came from, what they mean.

I would recommend Ian Haney López’, White by Law, where he talks about how the Supreme Court, in a very particular set of about half a dozen decisions, explicitly protected what it means to be white in the United States. They did that by continuing to change their reasoning, their legal argument, their definition of white, et cetera, because there was a reason to protect what it meant to be white. In that case, Ian Haney López is talking mostly about citizenship and all the things that come from that. It’s a brilliant book because as a legal scholar, he’s talking about the way that the legal system is deeply, deeply inculcated in this reality of the creation of race and the story behind race.

Sam Glover: Let me stop you for a second and say are we talking about intentional racism? Or we ascribing racist intent to the Supreme Court in making some or all of those decisions? Or are we saying that whether or not they intended them to be racist, they had the effect of consolidating the position?

Heather Hackman: As he goes through and he looks at the decisions and the arguments and the justification, you’ll actually see both. You’ll see people who really felt that the safety of this country was dependent upon white people remaining in positions of power. You’ll see justices who articulate that, as well as lawyers who articulate that. You also see white folks who are really just trapped in the story of their time and felt like they were adjudicating in good faith and really felt like they weren’t adjudicating from a particular racial lens and yet were, not because they’re bad folks or not because they have any intent, but because they were simply reflecting and mirroring the racial realities and the racial understanding of their time.

Sam Glover: We’ve made a lot of progress, right? It feels like I know better than to think that it’s simply fair for us to have “Coloreds Only” bathrooms and stuff. Now it feels like the – and I’m going to throw this loaded word out there because we talked about it at the seminar and I kind of want you to unload it a little bit—but this idea of microaggressions. We’ve come a long way on diversity, but we haven’t gotten to the goal yet.

Part of what’s left to knock down are these smaller, less-overt things that we do, I think. You’ve used the word microaggressions. That word has gotten a lot of bad wrap and people really hate it. I think it’s a useful word with real meaning. I’d like for you to explain what that really means.

Heather Hackman: Sure. Well, there’s three points floating here, so let me finish one and then we’ll come back to the other two about microaggressions and the idea that it’s gotten better now.

Earlier, you asked a question as we start to look at the interior and business as usual of a firm, you asked, “Well, how do you do that?” You do that by understanding the ways that history and systems have informed the contemporary lens around race, or gender, or class, or just ability. That requires education, that requires commitment, it requires time in order to really come to understand the ways that dominant identities around race or gender or class has entrenched themselves, almost become calcified within the structures of any firm, or pick an organization in this country, whether it’s higher ed or the non-profit sector, medicine, et cetera.

The answer to that question of, “How do we do that,” is that it requires a study of identity, and systems, and history, and the way that they have constructed what dominant group members come to see as their normal “[inaudible 00:34:51]” and the ways things have “always been.” Begin to really interrogate that, really begin to look at communication styles and expectations around work and so on.

Then when a firm begins to do that, the work of the right column, the social justice equity column, you by default create a space that will attract Native people and people of color. You actually won’t even have to do much work to get people of color and Native people to apply to your firm because you will have already established a record of being committed and concerned about those issues. The diversity element – how do you get more race, or gender, or class diversity into a firm – that is a default byproduct of doing good equity and social justice work. If you do the work, then by default, you will attract historically-marginalized communities and they will come and stay at your firm.

To tie into your other two questions—we’ll use race again—what Native people and people of color typically experience at law firms is less the overt, explicit racism, and quite often what the literature calls microaggressions. Our firm, we don’t actually use that term. We use the term everyday racism because there’s the large, explosive examples of racism that we’ve seen acutely over the last few years in this country. Then there’s the interstitial tissue of racism that connects those big, explosive moments, which is just the everyday slights, and indignities, and assumptions, and comments – and, and, and. It’s that which creates hostile environments in certain workplaces.

We don’t use the term microaggressions, not because we’re trying to be PC, but it just doesn’t actually resonate well. It certainly doesn’t speak to the gravity of the effects of the everyday racism. One of the leading factors for why historically-marginalized people leave firms is that everyday sexism, everyday racism, everyday classism.

To speak to your last point, and then I’ll pause, is there is a profound question as to whether things have gotten better or not. You can see that Brown v. Board—was it May 14, 1954, I think—said we have to desegregate schools, but U.S. public schools are as racially segregated now as they were in 1968, which is bad because most of the southern states did not begin full integration until the mid-’60’s. It had been a decade for sure in Alabama, for example, before you started to see any earnest movement toward broad-based desegregation. U.S. public schools now are wildly racially segregated. If you segregate education, you’ll then by default begin to segregate employment. That then circles back to segregated housing, et cetera.

Another book I would recommend your listeners check out is Michelle Alexander’s The New Jim Crow, which she’s not being hyperbolic there. She’s looking at the prison industrial complex of the criminal justice system. For the last 33 years, since October of 1982 when Reagan formally declared a War on Drugs, the impact that that has had on black and brown communities, and particularly the level of disenfranchisement that has afforded black men in the United States, and so when you look at the statistics and you look at the racial realities, what you don’t have anymore is a de jure structural racism to the extent that we did 50 and 60 years ago, but the de facto structural racism is extraordinary. It is extraordinary. You find communities of color across this country utterly decimated by the War on Drugs.

I strongly, strongly recommend anyone who has anything to do with the legal profession to read Michelle Alexander’s The New Jim Crow. It came out in 2010. It would be wonderful to think the statistics have improved since then, but they have not. The reason I’m mentioning that is because it speaks to the question of have things gotten better? Certainly, we’ve had a man who gets raised as a black man as president. On some level, the de jure aspects have, but the de facto realities of communities of color today are just extraordinarily, extraordinarily problematic. Many would say things have not gotten better because it’s hard to organize and create change when the system seems to say that everybody has equal access to education, but the on-the-ground reality, the subjective reality if you will, shows something that is completely contrary to that.

Sam Glover: It almost sounds like – going back to your three columns of diversity, cultural competency, and social justice and equality – that instead of diversity, we used to have racism. We’ve done diversity and so some of those overt markers of racism have gone down, but we really haven’t addressed the social equality, so what’s replaced that overt inequality, what’s replaced that overt racism, is flying under the radar. Social inequality that makes it the same effect, but you don’t see the “This is the elementary school for colored kids and this is the elementary school for the white kids,” which is discouraging.

Heather Hackman: Mm-hmm (affirmative). Right.

Sam Glover: That’s super discouraging.

Heather Hackman: It is discouraging on the one hand. On the other hand, it helps us understand that structural change alone is insufficient. Michelle Alexander was faculty at the Ohio State University’s law school. She just recently went to Union Theological. The reason for that is because she recognized that you can’t actually make structural change like changing the laws, changing the judicial system, if you will, how the system itself works, you can’t make those changes and hope that they have teeth without having a moral or conscientious or internal change in the populace as well.

We saw a Civil Rights, Voting Rights Act and we saw extraordinary litigation come down the pike in legal changes. That did not actually change this nation’s understanding of race and, in fact, created areas where this nation actually could make its understanding of race even more extreme in some ways than it was before. It’s hard in this podcast to do justice to what she and other people articulate.

Another good book would be Marc Lamont Hill’s Nobody, where he talks in a number of ways about the aspect of the criminal justice system that continues to fuel racial disparities in the United States. Not just racial disparities, but also the impact on poor, working-class white communities as well.

I really recommend those. Particularly people who are white or cisgender male or owning class. I recommend that you take a peak at how these systems are actually operating. Just because the de jure has been changed does not mean the de facto has changed.

Another book that might be useful is Tim Wise’s Under the Affluence, where he really takes a hard look at the economic structures in this country and their connection to racial dynamics. That came out last year, I think. Under the Affluence.

Sam Glover: You’ve expanded the view a little bit. I guess working at a law firm is at the very distant tail-end of something that starts a process, a pipeline that starts before birth, really. In order to get somebody into that pipeline, the chances are good that they’re going to be raised by parents who have relatively-steady situations, who value education, who are able to pay for education, or who are eligible for scholarships, who teach serious study.

Then you get through the system and you feel some entitlement or some ability to work hard towards those goals and it will be rewarded. You do. What you’re saying is if I’m a firm of three white guys, we can still foster diversity in a system like that, even if what we’re not doing is just trying to hire – I hate to say quotas – but that’s what it often boils down to when you’re trying to do diversity is quotas, right?

Heather Hackman: Right.

Sam Glover: We can still do it by focusing on learning and trying to change the situation at our own firm, the way we’re welcoming to clients and employees, but also potentially working through law schools maybe and elementary schools and trying to increase social equality across the board and throughout the pipeline.

Heather Hackman: That’s exactly right. The hiring is really the last question you need to ask. The first set of questions is, “How can we as a firm work in pro bono ways, in other educational ways,” like you said, giving talks in elementary schools, et cetera, “how can we engage the systems that lead to this inequity?”

As you do that, as you commit as a firm to addressing systemic racism, what will happen is you will see that you’ll start to build collaborations with firms that have perhaps more people of color in them. You’ll start to work with community groups that are led of, by, and for people of color. You’ll start to have different conversations in your legal circles. You’ll be asked to participate in different ways as people who are committed to racial equity and racial justice, even if you don’t have Native people or people of color working in your firm.

The real issue is to challenge the systems and structures that have one of their many inevitable results be lack of representation of people of color. Please don’t misunderstand. I’m not saying, “Don’t hire people of color.” Definitely hire people of color. What I’m saying is please don’t confuse that for the mountaintops. That is not the answer. The answer is to fundamentally transform these systems.

I’m white. I’m super white. My family has been white in this country for a very long time. They’re British and German. We’re very white in the cultural dimensions of how we are, in the assumptions that are made, in the levels of entitlement and opportunities, as a very white grounded history, if you will.

I was socialized in that way, but I understand as well, and it’s taken many years to get here, that I actually will not live in a nation that is going to be who we say we are unless I, as a white person, explicitly and intentionally commit myself to racial justice and racial equity work. Not to go save anyone else, but to save myself, in a way. To commit myself to the process of creating the nation, and the society, and the community, and the group of people in my life that I actually want it to be.

White people lose at the hands of racism, too. Not nearly to the extent that Native people and people of color do, but white people whose lives are limited and reduced and have lost quite a bit at the hands of living only around white people and only ever working with white people. Everybody loses when these systems are in place. We all stand to gain substantially by dismantling the systems. As you do, you will find that your firm or other small firms or large firms, will begin to engage in much more thoughtful and meaningful and effective ways around issues of race and with communities of color.

Sam Glover: There’s so much more I want to talk about, but this is a podcast. I know that when I attended your training, it was a half-day. It was probably a full day crammed into a half-day. I know we can only cram so much more into the 10 or so minutes remaining to us.

If we can, I’d like to touch on two things. The last thing I want to talk about is I want to wrap up with, okay, so what do we do after we turn off this podcast? You walked through, “Okay, if you’ve woken up as a result of this podcast and you’re inspired to try and do something, what are next steps?” I think you started with, “Start reading, but don’t talk to anybody about what you’re reading for awhile, because you don’t really appreciate it or get it or you’re going to be annoying first. People aren’t going to be receptive.”

I’d like to end with that, but before we get to that, we have a political climate right now that is toxic to, in many ways, talking about social justice and bandies about political correctness like a cudgel. As a white man, part of me recognizes where this is coming from because sometimes the public rhetoric feels like it’s beating up on men, on white people, on however you’re categorized. It can sometimes feel like when other people are pushing for equality, it’s actually coming on your shoulders. It sounds sometimes, it feels sometimes, like the message being delivered is, “You are bad for being who you can’t help being.”

I wonder if maybe you’ve got some insight into how…I’m a fairly enlightened, liberal guy. I can say to myself, “Well, recognize that you’ve got some privilege, Sam, and other people don’t have it.” How should we think about that when we are feeling under threat from the push towards more social equality and diversity? Sometimes it’s a little hard to see that big picture.

Heather Hackman: Sure. A couple quick things. One is the tendency of dominant groups, whether it’s race or class or gender, is to feel guilty or ashamed or blamed, et cetera. I get that. I get that feeling. I certainly went through that process and almost stage, if you will, as a white person. What we recommend is instead of feeling guilty, shamed, and blamed for it, we recommend dominant members start to operate a disposition of curiosity, grief, and humility.

The first move is to pay attention to my disposition. Am I just gearing up instantly for feeling guilty and shamed and blamed, and therefore I’m going to attack back? Or am I working to cultivate a disposition of curiosity, grief, and humility?

I had a number of white students in the university classes I taught in Minnesota who did not know that there was such a thing as Japanese internment. When I talked to them about it, they were horrified and started to get all guilty and shame-y. I said, “Whoa, whoa, whoa. Hold on a minute. Instead of going there, why don’t you get curious about why you didn’t know this? How is it that the Minnesota standards didn’t seem to think that that was important? Who set those standards? Did they have a particular agenda? Did they think some things were more valuable than others and why?” We just encouraged curiosity and critical inquiry rather than guilt, shame, and blame.

The second disposition is grief. Instead of feeling blameful about the colonization and genocide that happened to Native people, instead of feeling blame for that, I just feel extraordinary grief. Where is my humanity in that? When women are telling men, “This is the reality around rape and sexual assault,” instead of saying, “Well, I’m not one of those guys,” what would happen if men responded with extraordinary empathy and actually felt, “What is that like? What is it like to walk down the street and never feel safe?” Most cisgender, heterosexual men, that doesn’t even cross their mind unless they’re in a “dangerous neighborhood.” For women who have survived sexual assault, that is the daily reality often. Instead of defending or getting guilty and shameful, what happens if I allow myself an empathetic disposition and feel the grief around that? What an incredible loss. What a waste of energy and time for women to have to even deal with that.

The last disposition is humility and really just say, “I don’t know.” I encounter an extraordinary number of white people who proffer very strident positions around issues of race. When I ask them for their references, they have none. That’s mostly because they don’t know what they’re talking about. They have an opinion, but I could have an opinion that the world is flat because when I walk outside it looks flat to me, so I could opine the flatness of the world ad nauseam. That doesn’t mean it’s true. What we want to do is stop bantering about in the realm of my emotional reactions or opinions and really start to look at the systems, and structures, and history, and what the truth is, how it’s played out.

The first response to your question is disposition. I prefer to support people in being curious, really feeling through empathy what another person is going through, and to have enough humility to say, “I actually don’t know. I never studied it. Never read it. Don’t know a thing about it. Teach me.”

The second main piece is that people who are marginalized – women, or poor working-class people, or people of color – start calling out systems and realities, instead of feeling like it’s an attack to me as a white person, for example, around race, I start to understand it as a diagnosis of what’s wrong. If I have some stomach problems and I go to the doctor and I say, “Yeah, I got this stuff,” and we do a bevy of tests, I don’t want them to come back and say, “You’ve got some tummy problems.” I want a really explicit diagnosis because “tummy problem” could mean third-stage stomach cancer or indigestion. I need something specific as a diagnosis so I can marshal my resources to really take care of the problem.

Oftentimes, Native people and people of color, let’s say around issues of race, are giving a cogent and very specific diagnosis of what’s going on. Because white people don’t have a knowledge of systems and history, our only recourse is to take it personally and feel like, “Oh, you’re attacking me.” In point of fact, they’re naming the system. They’re talking about this long history of how this is played out and naming yet one more example of that history in those systems. If I start to understand it as a diagnosis, it allows me to not take it as personally. The second major point is—see it as a diagnosis and not a personal attack.

The third thing that I find interesting and important with respect to your question about how do we open ourselves to hear this and have this conversation is to recognize that most of the guilt, shame, and blame directed to me has not come from people of color if it’s race, for example. It’s actually come from other white people.

When I would teach my classes in the fall semester, I had 97% white students in my classes at St. Cloud State University in Minnesota. We would cover issues of race and history. Then they would go home for Thanksgiving and they would sit at the dinner table and start bringing these issues up with their family. Their white families would be like, “What? This is horrible,” blah, blah, blah and all kinds of fights and arguments would ensue. They’d get relegated to the card table with their four-year-old nieces and nephews. They’d start to tell them about this history: “Did you know,” blah, blah, blah.

They’d come back. The few students of color would come back as well. I would say, “Well, how did it go? How did these conversations go?” It was only ever the white students who said, “My family told me I was ruining dinner or I disrupted.” It was never people of color who said, “Yeah, I brought up race and my family said I ruined dinner.” Right? It was never the folks who were targeted by it. It was always the folks who benefited from the system of oppression who really didn’t want to hear it.

One of the things it’s important to recognize is that when we look at who’s guilty in shaming men or who’s guilty in shaming white people, it’s often other white people. I don’t shame men for being feminists, but I know other men who shame men for being feminists and say, “What are you – a homo,” and blah, blah, blah and all of the homophobic epithets come out. It’s other men who police men’s behavior and if it’s too feminine or too feminist, they will come down on those men and it’s other white people who police white people’s behavior.

I think the third major piece is to recognize, “Where is this guilt and shame actually coming from and who is laying this guilt trip on me?” Rarely does it come from the targeted group of people. Often, it comes from fellow dominant group members who don’t want me stepping outside of the fold.

In this particular political climate, we need to sharpen our disposition and work to make ourselves more open to these conversations, recognize this is a diagnosis and not a personal attack, and really start to question where is this coming from? Who is actually proffering, “Shame on you for talking about issues of race?” It’s not other people of color, it’s white people putting that forward in our national conversation, as well as conversations in our communities.

Sam Glover: A little bit of positive self-talk around, “Don’t be defensive; think about it in this way,” can be helpful.

Heather Hackman: Yeah. Again, when I’m educated around systems in history, when Native people and people of color are expressing outrage toward me, I don’t take it personally because I understand this is a long history.

Sam Glover: When you have the big picture, it’s not about you. It’s just obviously not about you.

Heather Hackman: That’s right. Exactly.

Sam Glover: For people who are still listening, and receptive, and want to learn, and do something, right, because we all want to do something when we learn something new, what should they do next? What’s the process to starting work on social equality?

Heather Hackman: Yeah, I think the three steps that we offer folks in our trainings—we talk about learning, integration, and implementation. Many times white folks, for example, will read The New Jim Crow, and they will say, “This is horrible. I’m going to rush out and do something,” but they don’t actually know what to do yet because they’re not quite skilled or well-versed enough. They end up making a lot of mistakes.

It’s very similar to having a 300-page book on plumbing. You read the first 20. You think, “You know what? I’ve got this.” Then you start re-plumbing your whole house. That’s just a bad idea. You should probably finish the book. You should probably apprentice a little bit just to get a handle on what plumbing action really looks like in real life. Then maybe you should re-plumb your house. The process is to learn before you rush out and do something. At least finish the book.

Then the second step is to integrate it. Meaning, starting to look at my own life. In what ways do I act out as interracial stereotypes? Or in what ways do I make assumptions about class? In what ways am I totally oblivious to disability issues in my own life? What do I need to pay more attention to? How can I actually live this way before I ever try to do this?

Then the third step is implementation. It’s learn, live, do is the basic three-step process. Anyone who’s interested in learning more about these issues should get some resources from a social justice perspective, of course, and begin to take that content in in an integrated way. How am I going to talk about this with other people in my life? What questions do I have? Am I overwhelmed? What other resources do I need? Et cetera, et cetera.

Then after some period of integration, beginning to shift to the way I live, then I stand a much better chance of being effective in doing something about it. It’s the learn, live, do and then you will make some inevitable mistakes. I make mistakes all the time. You cycle back to learning even more, integrating even more, doing even more. It’s an ongoing loop, if you will, of learn, integration, and then implementation.

Sam Glover: Awesome. Heather, thank you so much for being with us today, and for taking extra time, and for tolerating me as I tried to interrupt and derail you. It was really wonderful to have you on the podcast.

Heather Hackman: Oh, my pleasure. Thank you.

Aaron Street: Make sure to catch next week’s episode of the Lawyerist podcast. If you’d like more information about today’s show, please visit lawyerist.com/podcast or legaltalknetwork.com. You can subscribe via iTunes or anywhere podcasts are found. Both Lawyerist and the Legal Talk Network can be found on Twitter, Facebook, and LinkedIn. You can download the free app from Legal Talk Network and Google Play or iTunes.

Sam Glover: The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by, Legal Talk Network. Nothing said during this podcast is legal advice.

Podcast #105: How Small Firms Can Promote Diversity, with Heather Hackman was originally published on Lawyerist.com.

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