WHAT DO DEIA , WELLNESS , AND THE FIRST AMENDMENT HAVE IN COMMON ? COMMUNITY !
BRIAN PAPPAS Dean , University of North Dakota School of Law
Last semester , two students visited my office with one purpose : To tell me they did not feel comfortable being themselves at the law school . I heard from each that they were hiding who they were from their classmates , professors , and others . Both students felt they would be treated negatively if people knew who they really were . Both students described situations in class in which they self-censored during classroom conversations and did not feel safe to share their perspectives . Both students felt separate and apart from the community , and both were experiencing distress . The two situations were identical except for one notable differentiator : One student identified as a conservative , while the other identified as lesbian , gay , bisexual , transgender , or questioning ( LGBTQ +). I offered them support and resources , and I thanked them for sharing their concerns with me .
The stresses they described fall into three general categories : Diversity , Equity , Inclusion , and Accessibility ( DEIA ), Wellness , and the First Amendment .
The legal academy and our legal profession are struggling with DEIA . Only 37 % of practicing attorneys are women , despite being 50.8 % of the U . S . population . 1 The U . S . population is 13.4 % African American , but only 5 % of all lawyers are African American . 2 The North Dakota population is 4.9 % Native American , but only . 8 % of lawyers practicing in North Dakota are Native American . 3 In a 2020 survey , 16.6 % of lawyers responding identified as LGBTQ + but only . 4 % are open about their sexual orientation . 4 A 2018 “ Journal of Legal Studies ” article found 35 % of lawyers identify as conservative , roughly the same proportion as the general population , but 15 % of law professors identify as conservative . 5
The legal academy and our legal profession are also struggling with mental health and wellness . The depression rate for entering law students is similar to the general public (< 10 %). After just one semester , the depression rate rises to 27 %. After two semesters , the depression rate is 34 %, and 40 % by the end of law school . 6 Lawyers experience high rates of stress and depression , with 31.2 % of lawyers in a recent study reporting they were depressed , four times the national average . 7 These are alarming statistics , and this is why the North Dakota Lawyer Assistance Program is so valuable and important . 8 Law school and legal practice should be challenging , but it shouldn ’ t be debilitating .
Higher education is struggling with free speech and the First Amendment . The First Amendment to the Constitution protects speech , regardless of whether it is offensive . The First Amendment does not protect true threats and intimidation , incitement , harassment , and other unlawful conduct . 9 In a 2021 survey , students said it was always , sometimes , or rarely acceptable to shout down speakers ( 66 %), block other students from attending ( 41 %), or use violence in protest against speakers ( 23 %). 10 A 2020 survey found conservative students are three times more likely than liberal students to censor themselves in class out of fear of losing the esteem of their peers or instructors . 11 No one should feel the need to censor themselves .
What do DEIA , the First Amendment , and wellness have in common ? At the core , is a challenge creating community . As we build relationships , we can better sustain tougher conversations that will illuminate different viewpoints and perspectives without creating animosity and division . Racist , homophobic , transphobic , antisemitic , misogynist speech is deeply upsetting and harmful , but the answer is more speech , not less . The answer is creating responsible avenues for building relationships and strong connections . How is it that Justices Ruth Bader Ginsburg and Antonin Scalia , who held opposing beliefs , were close friends ? They spent time together and listened to one another . 12 No one ever changed anyone ’ s heart or mind by excluding them or by making them feel unvalued .
Here are two examples of how dialogue and relationship building can be transformative . The first is mediation , which unfortunately is too often used as a successful case disposition mechanism that leaves everyone unhappy . 13 As a mediator and a mediation trainer / scholar , the best practice is to hold a joint session in which the parties work together to discuss the dispute . Facilitating a joint discussion enables the mediator to build the trust and mutual understanding necessary for exploring more impactful solutions . Of course , people prefer to sit in separate rooms and not talk to the other side ! But it takes longer , costs more , and leads to less creativity and often lower compliance and satisfaction with the resulting agreement . A mediator who can maintain control without controlling the content , can help people feel heard and empower them .
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