Family lawyer Kiilu Davis discusses racism and discrimination in family law past and present – and looks to the future with hope for true equality.
Hosted by: Diana Shepherd, Family Lawyer Magazine’s Editorial Director
Guest Speaker: Kiilu Davis, Family Lawyer and former Chair of the AAML’s Diversity Committee
Transcript: Racism and Discrimination in Family Law
I’m Diana Shepherd, the Editorial Director of Family Lawyer Magazine. Today, I’m going to be speaking with Arizona family lawyer Kiilu Davis about diversity, prejudice, racism, and discrimination in family law. Kiilu is a former Chair of the American Academy of Matrimonial Lawyers’ Diversity Committee, and a Fellow of the AAML, the International Academy of Family Lawyers, and the American Bar Foundation. He also sits on Family Lawyer Magazine’s advisory board. It is my absolute pleasure to be speaking with him today. Welcome, Kiilu!
Kiilu Davis: Thank you. I’m happy to be here.
Diana Shepherd: Let’s start with a look back. The 14th Amendment Equal Protection Clause mandated that all individuals be treated equally by the law. It took effect in 1868 but many would argue that we’re still waiting for true equality under the law. What are your thoughts on this?
In 1865, slavery ended. In 1868, you had the 14th amendment, and in 1870, black men were afforded the right to vote. In 1920, the 19th amendment gave women the right to vote – except for black women, who didn’t have the right to vote until the 1965 Voters Rights Act. History says it right there, because even since the 14th amendment, there were still things that we wouldn’t exactly call equality. But in the end, the question is flawed because it fails to ask whether those upholding, enforcing, or interpreting the law believe that all individuals should be treated equally.
We’ve seen a lot of upheaval over the last two years that might suggest that those who should be in a position of interpreting the law and upholding the law may not be doing that.
I believe that’s true, and that’s why you can say that we have the 14th amendment. But we can look through history and say that although all men and women were supposed to be treated equally, that wasn’t true. Not everyone was thought of as being equal. To say, “We’re still waiting for true equality” is a given throughout history. It’s imperative for us to look at that statement and ask, “Do people actually believe that?” Because if they don’t believe it, then we’re always going to be fighting for true equality.
In terms of discrimination, what are the biggest changes, advancements, and, unfortunately, setbacks the family law profession and system have seen over the last ten years – especially leading up to and including the Black Lives Matter movement during the pandemic?
Over the last 10 years, I’ve seen a more diverse bench, which is always welcome. More women, people of color, cultures, and religions. That’s obviously a plus, but we also have to recognize that there’s a lack of understanding about cultural differences and what makes us different – which is really a pitfall. You can look at it and say, “Do people really understand what the Crown Act is, what it’s for, and why it might cross over into family law?” As a family law judge, you might have a crucifix on your bench. Might that make some people feel uncomfortable? We clearly have built-in cultural and implicit biases, and it’s hard to set aside biases that you may not even know that you have. We must continue to educate individuals about these biases.
Last December, you were the moderator for “Drinks and Diversity: a Year in Review” for the AAML. Can you tell us about any hot button issues discussed during the event?
One of the things that we can still look back on, at least for that particular meeting, was the personal growth in their cultural intelligence that participants have seen within themselves, as well as the personal and workplace changes that they’ve implemented as a result of these programs. We had a “shatter the glass” moment where all of a sudden, it was something that was in their face every day.
The true beauty of this program was that everyone was willing and able to set aside their egos and face these issues. People were willing to be educated, and that was one of those hot button topics. But it was more of the ability to give us the time to actually delve into some of those subjects that we had touched on before so that people could talk about what they were able to take away from it.
Being willing to be educated is a big piece of this pie. The unfortunate flip side is that many are still unwilling to be educated and will hold onto a position despite being presented with a myriad of facts showing otherwise. This is the hill they choose to die on…
Being educated is a hot-button topic, because people want to say that they’re smart educated individuals. Take CRT [Critical Race Theory]. I’m offended that people even want to call it CRT, because it’s not CRT: it’s history. How can you be so dead-set on calling it one thing when it’s really not? You’re complaining about children being taught our nation’s history.
For example, let’s consider the Civil War monuments. Some would say, “People are upset about these statues being torn down because they are monuments to their history.” That’s not true, and they don’t even know the history of why the monuments were created. They were erected at the start of the Jim Crow era and for the Civil Rights Act. That’s when those monuments were erected – they weren’t erected immediately after the Civil War. They were erected because they wanted to make sure that black people knew their place. That’s a part of history that no one understands or has not taken the time to learn, and so how can you say that it’s called CRT? It’s not Critical Race Theory: it’s literally just history.
I couldn’t agree more. Have you ever seen a family lawyer or judge discriminate against a divorcing party because of their race, religion, gender, sexual orientation, age, or disability?
Could I say that I’ve seen blatant discrimination in family law? That’s a tough question with regards to sexual orientation or even gender. We still have some states that automatically believe that mothers should be the primary residential parent, which is backward thinking.
Have I seen a judge blatantly discriminate against me or my client? I don’t know, but I know I can say that I’ve walked out of courtrooms and my clients looked at me and said, “Did that happen because of our skin color?” I don’t necessarily have to ask the question.
“I work twice as hard for half the chance.” When Tiger Woods said that at his World Golf Hall of Fame induction, shockwaves echoed throughout the land. That’s a mantra that I’ve been taught since I was six years old. Maybe I’m just used to it, but I can honestly say that I have walked out of the courtroom and felt my skin color was held against me.
But how do I put that in motion for reconsideration? How do I put that in a motion to amend? How do I put that out there and not have the blowback. How do I not have that come back against me? I can come home and tell my wife, “That it just didn’t feel right. I’m not quite sure how that even happened.” But who do I go to? Who do I say it to? Because on one hand I could be viewed as an angry black man. On the other hand, I could be viewed as the individual who wants to bring race into it, or I could just look at it and say, “You know what? That just wasn’t right.”
But I can’t really do anything about it. The only thing I can do is work twice as hard and be twice as better to make sure that when I walk into the courtroom, I don’t give them an opportunity to use my skin color against me.
If I argue the law, they have to apply the law. I sometimes do appeals for free because I didn’t like how the ruling came out and I knew it should have been better, but those are few and far between. There are instances when it’s just not right. But again, who do I run to?
Maybe part of the answer lies in doing more education sessions, like the “Drinks and Diversity” where people are at least somewhat willing to have open minds. Then they can bring that new knowledge home with them.
I absolutely agree, and that’s one of the things I talked about in the year in review. For the longest time, I was just tired: tired of having the conversation, tired of trying to educate people. But I know it’s my duty and my obligation. The beauty of “Drinks and Diversity” is that there were so many people who were willing to have that conversation – to listen, have empathy, and understand what it’s like for minorities.
All lives matter. I completely think that, but when most say it, they are minimizing the fact that for a large part of this country, black lives did not matter. At one point, we were considered three-fifths of a person. Clearly, all lives did not matter. That wears on you over time. It drains you over time.
Being a part of “Drinks and Diversity” has revitalized my voice because I realize there are people who want to lend us their own voices. Although 123 people participated in Drinks and Diversity, there are 1,400 Academy members. More people need to be willing to have this conversation to effect real change.
Last year, Family Lawyer Magazine did a survey of family lawyers about this topic – discrimination in family law, diversity, prejudice, and so on. I had a few very angry people (who will not be named here, of course) who said, “This is nonsense. It doesn’t exist. There is no problem whatsoever.” I looked at the law firm and saw that every lawyer there was a white man. I guess maybe from their perspective it isn’t a problem…
If you look at Charlottesville, it wasn’t a bunch of old white men marching and carrying torches: it was young white men marching and carrying torches. Maybe you don’t see it, maybe it doesn’t affect you – but that’s the definition of white privilege. White privilege doesn’t mean that your life wasn’t hard; it just means that your skin color wasn’t one of the factors that made it hard. But can you not empathize with someone walking into a courtroom, or getting onto an elevator in a suit, and having women clutch their purses and move away? I’ve been out to dinner with my wife chatting about court, and someone was comfortable enough to butt into our conversation to ask if I was a bailiff. Please don’t tell me that prejudice doesn’t exist in America; be honest enough to say “I refuse to see it.” I’d be much happier with that.
To end on what I hope is a slightly more positive note, I’m going to ask you to look into your crystal ball and ask how you see the movement towards true equality – at least in the family law system and court – evolving over the next decade?
Going back to our earlier conversations, I think that if people continue to be willing to be educated – not just about the differences about race, but about religion, ethnicity, and gender – then we can continue to move forward. It’s when people decide that they no longer want to have that conversation that we will become stuck in quicksand, and it already seems like we’re repeating our past. But on the same note, we have a groundswell of people who are saying, “You know what? My eyes have been opened.” And with that, there is hope.
Am I going to see true equality in my lifetime? No, I do not believe so. Hopefully, we’ll continue to move the rock – not just for ten minutes, or six months, or a year and say, “This is far enough.” We have to push that rock until it gets over the hill completely. Hopefully, that will happen within my grandchildren’s lifetime.
This has been such an engaging conversation that I really hate to bring to a close, but I guess all good things must come to an end. I’m hoping that you will accept an invitation to come back and continue the conversation later on.
My guest today has been Kiilu Davis, Managing Partner of kdlaw in Arizona. Recognized as one of the leading family law attorneys in the state, Kiilu is a certified family law specialist, a Diplomate of the American College of Family Law Trial Attorneys, and a Fellow of the AAML and IAML. He is on the Executive Council for the Family Law Section of the State Bar of Arizona and helped rewrite the Family Law Rules in 2018. He can be reached via his website at www.kdlaw.org. Thank you, Kiilu, for taking the time to share these incredibly important thoughts with us today.
My pleasure. Thank you for having me.