BY JUDGE BRIAN TOLLEFSON (RET.)
I have had so many ideas for an article this month that it has been challenging to choose one over the other. The topics range from freedom of expression, to leadership, to ageism. Maybe I should cover each of them?
Let’s start with freedom of expression—the First Amendment. If you read Washington State Bar News with any regularity (as you are now doing), you will be pleased to know that each entire issue is reviewed before publication by not only the editorial staff of the publication, but also by WSBA legal counsel, the executive director, and somebody from the WSBA Equity and Justice team. Why is that, you ask? What I have learned is that the purpose of the review, which has been going on for a number of years, is to help make sure that the publication is in compliance with GR 12.2(c); is consistent with messaging from the WSBA across its many programs; and that the magazine is not printing something that might be offensive.
However, it was only last month that I learned for the first time about this process. I don’t mind that my draft articles are reviewed for fact checking, punctuation, grammar, and possible legal concerns. What is concerning and possibly concerns any author, is whether the deeper review constitutes a different form of restriction. I’m pretty sure that almost all content is written for WSBA by persons with a law background. Perhaps, their judgment about what to write and how to say it isn’t sufficient. Fair enough. What is striking is the lack of transparency and disclosure about this process. Should I or any unaware author be troubled by this extended review? Is this what you, as a WSBA Bar News reader, expect? Moving forward, I hope that your WSBA will do a better job of disclosing the review process in a more transparent manner.
Freedom of expression is a concept much older than the First Amendment. A recent article from the Wall Street Journal,11 Miller, J. “A Ringing Defense of Free Speech,” The Wall Street Journal, May 7-8, 2022, p.C14. written about the great poet and intellectual John Milton, has some Milton quotes worth repeating. In Milton’s nearly 18,000-word essay entitled “Areopagitica,” one of the earliest essays on the concept of free expression, Milton said: “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”22 Id. John Miller, the author of the Wall Street Journal article, also quoted Milton as saying “… hee who destroyes a good Booke, kills reason it selfe [sic] … ,”33 Id. and further, that Milton claimed restricting free expression “will be to the discouragement of all learning, and stop of Truth.”44 Id.
Let’s trust that we all remember how important freedom of expression is to open, honest, and healthy debate of any and all issues. I have been assured, so far, by conversations with WSBA staff that there is no intention to adopt limitations on freedom of expression. I’m hoping that your Board of Governors agrees. I would be disappointed if somehow your WSBA was viewed like the British Parliament was when it passed the Licensing Order of 1643, a form of prior restraint that remained in force until 1695.55 Id.
Let’s move on to the issue of WSBA leadership. What should be the role of your WSBA President? The WSBA bylaws have this to say:
The President is the chief spokesperson of the Bar and presides at all meetings of the Board of Governors. The President has the authority to: set the agenda however that authority is secondary to the authority of the Board of Governors at any Board meeting to take action on any issue raised by a duly seconded motion; take action to execute the policies established by the Board of Governors; assign Governors as liaisons to Bar sections, committees, or task forces, specialty bar associations, and other law related organizations; and to appoint task forces, committees, or other ad hoc entities to carry out policies established by the Board of Governors. The President also performs any other duties typically performed by an organization’s President. The President may vote only if the President’s vote will affect the result.
The president doesn’t have a role in the day-to-day management of the WSBA. Day-to-day management of the WSBA is the province of the WSBA Executive Director. But if the Bar president is to be a position worth pursuing, especially as an uncompensated volunteer spending anywhere from 30 to 35 hours a week on WSBA-related activities, then this job description needs amending because it looks to many like this job description makes your WSBA president not much more than a glorified ribbon-cutter. Maybe during the ETHOS structure discussions the Board of Governors can make up its mind: Does this organization want a glorified ribbon-cutter or someone who will lead your organization? What do you want or expect?
This leads me to my last topic for this issue of the President’s Corner—an overlooked area of bias, especially implicit bias: ageism. In recent years there has been a lively discussion of the topic called “implicit bias.” I do not know who coined the phrase. However, implicit bias has been defined as an “unconscious bias that manifests in expectations or assumptions about physical or social characteristics dictated by stereotypes that are based on a person’s race, gender, age, or ethnicity. People who intend to be fair, and believe they are egalitarian, apply biases unintentionally.” (Emphasis added.)66 Handelsman, J. and Sakraney, N., Implicit Bias (White House Office of Science and Technology Policy) https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/bias_9-14-15_final.pdf.
The WSBA has what I consider to be a robust effort to promote diversity, equity, and inclusion (DEI). At the WSBA, there is the Diversity Committee; the Equity and Disparity Work Group; an extensive list of DEI-focused CLE webinars77 www.wsba.org/about-wsba/equity-and-inclusion/diversity-cle-series; and other DEI resources.88 www.wsba.org/about-wsba/washington-state-bar-foundation/equity-and-justice-resources. There is even an Equity and Justice Department employed at the WSBA.99 www.wsba.org/about-wsba/equity-and-inclusion/diversity-programming-overview.
Part of the WSBA’s DEI effort is to recognize and acknowledge the concept of implicit bias and how to interrupt and mitigate it.1010 www.wsba.org/docs/default-source/about-wsba/diversity/interrupting-and-mitigating-implicit-bias-handout-(version-2)926069f2f6d9654cb471ff1f00003f4f.pdf?sfvrsn=85b90cf1_0. This is all very important work that I applaud and support. However, in my opinion, the work at the WSBA in this area misses the mark on implicit bias as to ageism. During my research, I could find only two CLE programs focused on age and implicit bias.1111 There may be other WSBA CLE materials on ageism but I could not find them during my research. That focus leaves a substantial gap. The WSBA can and should do better.
The concept of “ageism” has been around for quite a while.1212 For a comprehensive review see North, M. and Fiske, S. “An Inconvenienced Youth? Ageism and its Potential Intergenerational Roots” (2012) www.ncbi.nlm.nih.gov/pmc/articles/PMC3838706/. Yet it is an overlooked form of discrimination that impacts not only older people but younger people as well.1313 Id. And see, Bratt, C., Abrams, D., and Swift, H., “Supporting the Old but Neglecting the Young? The Two Faces of Ageism,” Developmental Psychology (2020) Vol. 56, No. 5, 1029–1039. There are different forms of ageism, but the one I focus on here involves ageism in the workplace.
The World Health Organization (WHO) has recognized the negative impact of ageism and states the problem this way:
[A]geism is prevalent, ubiquitous and insidious because it goes largely unrecognized and unchallenged. Ageism has serious and far-reaching consequences for people’s health, well-being and human rights and costs society billions of dollars. Among older people, ageism is associated with poorer physical and mental health, increased social isolation and loneliness, greater financial insecurity and decreased quality of life and premature death. Ageism, in younger people has been less well explored in the literature but reported by younger people in a range of areas including employment, health and housing. Across the life course, ageism interacts with ableism, sexism and racism compounding disadvantage. (Emphasis added.)1414 See “Global Report on Ageism,” World Health Organization (2021).
The WHO report emphasizes that ageism exists, from the institutional level down to the personal level. It can impact both the young and the old in the workplace, for example, with “practices” that limit opportunities given to both older and younger people to contribute to decision-making in the workplace; and by the use of “patronizing behavior” applied in interactions with older and younger people.1515 Id.
I’m hopeful that the WSBA will recognize the need to explore ways to combat ageism, both explicit and implicit, and develop programs to combat this under-recognized “ism” in its DEI programming. “Old” and “young” alike must be valued in the legal profession in a recognizable manner. This effort will enhance our profession exponentially.
1. Miller, J. “A Ringing Defense of Free Speech,” The Wall Street Journal, May 7-8, 2022, p.C14.
6. Handelsman, J. and Sakraney, N., Implicit Bias (White House Office of Science and Technology Policy) https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/bias_9-14-15_final.pdf.
11. There may be other WSBA CLE materials on ageism but I could not find them during my research.
12. For a comprehensive review see North, M. and Fiske, S. “An Inconvenienced Youth? Ageism and its Potential Intergenerational Roots” (2012) www.ncbi.nlm.nih.gov/pmc/articles/PMC3838706/.
13. Id. And see, Bratt, C., Abrams, D., and Swift, H., “Supporting the Old but Neglecting the Young? The Two Faces of Ageism,” Developmental Psychology (2020) Vol. 56, No. 5, 1029–1039.
14. See “Global Report on Ageism,” World Health Organization (2021).