Hon. Constance Baker Motley Essay Competition—3rd Place Winner

The Federal Bar Association’s Hon. Constance Baker Motley Diversity, Equity, and Inclusion Young Member Essay Competition is created to celebrate the life of Hon. Constance Baker Motley (1921-2005) and promote her legacy by encouraging law students and younger federal practitioners to promote, achieve, and sustain diversity, equity, and inclusion in the legal profession.

The competition is named after Judge Baker Motley, the first African American woman appointed to the federal judiciary and the first woman judge in the Southern District of New York. She was a key leader of the African American civil rights movement, a lawyer, judge, state senator, and Borough president of Manhattan, New York City.

Negin Nader Bazrafkan, 3rd Place Winner of the Hon. Constance Baker Motley Essay Competition  

The Call for Diversity in the US Federal Statistical System: Why it Matter?  

The current racial and ethnic categories defined by the Office of Management and Budget[1] (OMB) in the United States are not comprehensive enough to accurately represent the diverse population of the country. The OMB currently defines racial and ethnic categories narrowly.[2] This is particularly concerning in the legal and federal practice where statistics play a crucial role in tracking discrimination and ensuring diversity.  In todays society, no one listens before you have the accurate data. We cannot include and measure diversity in the federal practice when the federal statistical system is broken.

Urgent action is needed from the government to revise the OMB definitions and create more inclusive categories that can provide fair statistics. The current categories have made it challenging to track discrimination against minority groups by leaving out significant groups, including North African and Middle Eastern (MENA) minorities and Jewish people. As a result, individuals from these communities cannot accurately identify their race or ethnicity in the federal statistical system.[3]

What is a Jew why does it matter?

Jewish people often identify themselves as ‘white/Caucasian’,[4] as there is no option for them to select ‘Jewish’ in the OMB system.[5] However, to identify as ‘Jewish’ can include religion and/or ethnicity[6], and many Jewish individuals may not necessarily identify as white or Caucasian if they had other options[7]. A Jew can be an atheist, Israeli or Caucasian at the same time. A Jew can also be Jewish, black and Israeli. Other Jews might appreciate to only identify as ‘Jewish’. The lack of an option to select a Jewish category removes the ability to track the possibilities of discrimination.

Similarly, the MENA community include people from diverse cultural and ethnic backgrounds, making it inaccurate to group them under one umbrella. Iran, Pakistan and Turkey are not Arab countries and do not necessarily share the same ethnicity, race and/or religion, as individuals from other MENA countries. Furthermore, people from North African countries do not always identify as Arab, but rather as North African.[8]

The lack of accurate federal statistical data-systems and insights on diversity and inclusion in the federal practice has severe consequences.[9]

The system needs to include options for Jewish people and people from diverse MENA backgrounds to accurately identify their race and ethnicity. To be ‘Jewish’ should be recognized as both a religion and ethnicity and people with Jewish heritage should have the option to select ‘Jewish’ as their ethnicity while at the same time – have the opportunity to choose ‘North African’, Israeli or other MENA-country as their race/origin. Similarly, the MENA category should be broken down into specific categories to reflect the diversity of these communities because individuals from MENA countries does not necessarily share race, ethnicity or religion.

The current limitations on racial and ethnic categories create significant gaps in our understanding of diversity in the judicial and federal system, hindering our ability to address discrimination effectively.[10] The OMB needs serious reform.[11]

[1] https://www.whitehouse.gov/omb/information-regulatory-affairs/statistical-programs-standards/ (visited 2 May 2023)

Race: American Indian or Alaskan Native, Asian or Pacific Islander, Black, White and Ethnicity: Hispanic origin, Not of Hispanic origin.

[2] https://www.whitehouse.gov/wp-content/uploads/2022/07/Flexibilities-and-Best-Practices-Under-SPD-15.pdf (visited 25 April 2023)

[3] This deficiency creates a gap in our understanding of diversity and inclusion in the judicial system.

[4] 2021 Pew Research Center poll found that 92% of American Jews self-identified as white. 1% identified as Black non-Hispanic, 4% identified as Hispanic and the rest identified as “other.” Source: https://www.pewresearch.org/religion/2021/05/11/race-ethnicity-heritage-and-immigration-among-u-s-jews/ (visited 20 March 2023)

[5] As a race, only Hispanic or non-Hispanic is currently an option.

[6] The Jewish population can be considered as an ethno-religious group where their national identity can be Jewish without necessarily sharing Judaism as a religion.

[7] https://forward.com/news/534377/proposed-us-census-categories-race-ethnicity-jewish-identity/ (visited 11 may 2023)

[8] It is important to note that individuals from North African countries may not always identify as Arabs but rather as North Africans or ‘Berber’. This was evident during the recent World Cup, where the national football team of Morocco reached the World Cup semi-finals. The coach of the team declared that they were ‘proud Africans’, highlighting their identity as North Africans, rather than being classified as Arabs. This demonstrates that the MENA (Middle East and North Africa) category is not sufficient in capturing the diverse range of identities and ethnicities within the region: https://timeafricamagazine.com/moroccos-coach-we-want-to-fly-africas-flag-high-just-like-senegal-ghana-cameroon-we-are-here-to-represent-africa/ (visited 19 April 2023)

[9] The OMB needs to broaden its definitions for racial and ethnic categories.

[10] https://grants.nih.gov/grants/guide/notice-files/not-od-15-089.html (visited 29 April 2023)

[11] In conclusion, diversity and inclusion are critical components of the Federal Statistical System.

About the Author

The author of this article is Negin Nader Bazrafkan, currently a student pursuing a Master of Laws (LLM) degree in International Law and Justice at Fordham Law School. She holds a law degree from the University of Copenhagen in Denmark and her family background includes being the daughter of Iranian refugees who fled from the Iran-Iraq war in 1985-86.

About the FBA

Founded in 1920, the Federal Bar Association is dedicated to the advancement of the science of jurisprudence and to promoting the welfare, interests, education, and professional development of all attorneys involved in federal law. Our more than 14,000 members run the gamut of federal practice: attorneys practicing in small to large legal firms, attorneys in corporations and federal agencies, and members of the judiciary. The FBA is the catalyst for communication between the bar and the bench, as well as the private and public sectors. Visit us at fedbar.org to learn more.