We now take racial equality for granted, but during the long-gone era of state-sanctioned segregation in Texas and throughout the South, one commonly encountered signs proclaiming “No Colored Allowed” and “Whites Only.” The days of Bull Connor, George Wallace, and Lester Maddox — and the repugnant racial caste system that they enforced — are, thankfully, far behind us. As a result of the U.S. Supreme Court’s 1954 landmark decision in Brown v. Board of Education and passage a decade later of the Civil Rights Act of 1964, discrimination based on race was forbidden throughout the country. So-called Jim Crow laws were struck down. Yet, when the State Bar of Texas advertised for a position on its board of directors last October, it specified that white males need not apply. The opening, you see, is for a “minority director,” which is defined by statute to mean a lawyer who is “female, African-American, Hispanic-American, Native American, or Asian-American.” Jim Crow lives.
The bar is preparing to fill an upcoming vacancy, but the little-noted category of “minority directors” has existed for over 25 years. In 1991, the Texas Legislature — then controlled by Democrats — required the bar to seat four minority directors (preferably chosen from “different minority groups”), to be appointed by the bar president (who is elected each year by members of the bar). The minority directors serve a three-year term alongside 30 “regular” directors elected by members of the bar, six non-lawyer directors appointed by the Texas Supreme Court (to be selected, ironically, “without regard to [their] race, color, disability, sex, religion, age, or national origin”), and the president, president-elect, and immediate past president of, respectively, the state bar and its junior varsity counterpart, the Texas Young Lawyers Association (which serves as a sort of “farm team” for aspiring bar junkies). The full complement of the bar’s board of directors therefore consists of 46 positions — an unworkably large number more closely resembling a social club than a governing body. Of these, white men are eligible for only 42 of the slots; by law, the other four are reserved — quota-style — exclusively for women and non-white men.
Is this constitutional? The state bar is not a private club or business; all lawyers are required to join in order to practice law in Texas. After Brown, can the government discriminate on the basis of race? Austin family law attorney Greg Gegenheimer, a white male who has been practicing law for 38 years, thinks not. With the assistance of the non-profit Project on Fair Representation (which has sponsored numerous cases decided by the U.S. Supreme Court, including Fisher v. University of Texas and Shelby County v. Holder), Gegenheimer filed a legal challenge in federal court on December 5, 2016, alleging race discrimination in violation of the U.S. Constitution’s equal protection clause. One of Gegenheimer’s lawyers is Jonathan Mitchell, former Texas solicitor general and currently a visiting law professor at Stanford University.
The bar is a public corporation that operates under the supervision of the Texas Supreme Court, serving as “an administrative agency of the judicial department of government” in Texas. Embarrassingly, Texas’ judiciary is in charge of administering — and now defending — a racial and gender quota system that is almost certainly illegal. The law is well-settled. In constitutional law parlance, race is a “suspect classification,” subject to “strict scrutiny.” Courts will strike down laws discriminating on the basis of race unless they are necessary to promote a “compelling state interest” and unless there is no less restrictive alternative method available to achieve the desired result. Racial quotas are especially disfavored because, as the U.S. Supreme Court held in Freeman v. Pitts (1992), “[r]acial balance is not to be achieved for its own sake.” Aside from a narrow (and tenuous) exception for affirmative action in higher education admissions, race discrimination by governmental entities is unconstitutional under the 14th Amendment’s equal protection clause. The Constitution is color blind, but the state bar is not.
In a devastating setback to the state bar, in late December, Texas Attorney General Ken Paxton filed a “friend of the court” brief in the lawsuit, in favor of Gegenheimer! Paxton’s brief contends, “These quotas are utterly unjustified and patently unconstitutional.” Despite this rebuke, the state bar seems intent on stubbornly defending the indefensible. To that end, the state bar has retained a large Houston law firm, Vinson & Elkins, to preserve its anachronistic apartheid in governance. Big law firms aren’t cheap, and litigation can be costly, but the bar has plenty of money, since payment of dues is compulsory for all Texas lawyers.
The Texas bar, the fifth largest lawyer organization in the United States, has over 100,000 active members, with an annual budget exceeding $48 million in 2016-2017. The bar is flush enough to be able to pay its executive director, Michelle Hunter, almost $300,000 a year, with 28 other staffers also earning six figure salaries. The bar lavishly funds various “outreach,” “public service,” and legal assistance programs in addition to its core functions of attorney admissions, attorney discipline, and “continuing legal education.”
What is the “compelling state interest” for reserving seats on the board of directors for designated minorities? The purpose was presumably to ensure adequate “diversity” on the bar’s board. This may have been a relevant concern in 1991, but at the present time minorities and women are well-represented on the board, certainly in proportion to the bar’s membership. According to the state bar’s website, 18 out of the 42 directors (or 43 percent) selected without the use of gender, racial, or ethnic quotas qualify as “minorities” under the statutory definition, whereas 65 percent of bar members are male and 81 percent are white. (The current Chair of the board is Hispanic.) The addition of four designated “minority directors” increases “minority” representation to 48 percent. Even if racial quotas were legal (which they aren’t), in 2017 they are not necessary. In recent years, an African-American woman was elected President of the state bar (Lisa Tatum), and another distinguished African-American served for almost a decade as Chief Justice of the Texas Supreme Court (Wallace Jefferson).
Moreover, stacking the board of directors solely to increase racial, ethnic, and gender representation undercuts the board’s purpose, which is to provide balanced and responsible oversight. Lawyer groups tend to lean liberal (just look at the ABA), and state-conferred monopoly status exacerbates that tendency. Lawyers cannot choose whether to belong, and payment of dues is mandatory. Bar associations have a tendency to be “hijacked” by left-wing activists, who use the organization’s influence to advance their ideological agenda. The California bar has become a caricature of political correctness run amok, fueling ongoing political controversies and litigation. (Two different California governors vetoed bills authorizing the state bar’s dues, in 1997 and again in 2009, to bring that organization to heel.) The Texas bar is not far behind, offering “sections” for members running the gamut of identity politics: e.g., cliques devoted to African-American Lawyers, Hispanic Issues, LGBT Law, Native American Law, Women and the Law, Animal Law, and Poverty Law. The function of the bar is to service and regulate the legal profession in Texas, not promote activist causes.
Apparently embarrassed by the publicity generated by Gegenheimer’s lawsuit and Paxton’s support of it, liberal Democrat Senator Kirk Watson hurriedly introduced a bill (SB 416) to fix the patently unconstitutional quota provision. Unfortunately, however, instead of eliminating the four “minority” director positions altogether, Watson’s bill merely re-names them “outreach” positions, and replaces the explicit gender, ethnic, and racial criteria with a superficially neutral requirement that the applicants — still appointed by the bar’s president — “demonstrate the sensitivity and knowledge…necessary to ensure the board represents…the varied backgrounds that compose the membership of the state bar, including members of historically underrepresented groups.” Wink, wink. In other words, Watson proposes that the bar utilize de facto minority positions, filled through subterfuge, without the incriminating candor.
The state bar faces “sunset review” this year and will cease to exist on September 1, 2017, unless re-authorized by the Texas legislature in the session that began on January 10, 2017. Perhaps this would be a good opportunity for legislators to reconsider the wisdom of racial quotas — however denominated. Times have changed since 1991, and archaic laws passed when Democrat Ann Richards was governor are overdue for repeal. Otherwise, a federal court will have to reenact the civil rights movement of the 1950s and ’60s, and strike down this odious vestige of Jim Crow.
This essay is an expanded and updated version of a piece that originally appeared in the Wall Street Journal.
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