Texas Lawyer Challenges Bar Rules Reserving State Board Positions For Women and Minorities

thThere is an interesting lawsuit out of Texas where a white Austin lawyer has sued to strike down a law that imposes a race and gender quote for the governing board of the State Bar. The law requires that four of the positions be filled by women and racial or ethnic minorities. Family law attorney, Greg Gegenheimer, 38, has challenged the law under the U.S. Constitution and federal anti-discrimination laws. The Project on Fair Representation provided the lawyers assisting Gegenheimer. The Project was involved in Fisher case challenging the admission policies at the University of Texas before the Supreme Court.

The board has 30 members elected by lawyers in geographic districts, six public members who are appointed by the Texas Supreme Court and confirmed by the state Senate, and four so-called minority directors who are appointed by the bar’s elected president and confirmed by the board of directors. There are also three statewide officers and three members of the Texas Young Lawyers Association. Under Tex. Gov’t Code Ann. § 81.020(b), the four positions are statutorily set apart. The minority directors must be lawyers who are “female, African-American, Hispanic-American, Native American or Asian-American.

That is four positions that exclude men and white lawyers. On one hand, it is only 4 out of 46 members. On the other hand, while women and minorities can complete for all 46 positions, white men cannot. The question is whether such exclusion violates equal protection guarantees as well as 42 U.S.C. §§ 1983, 1988. The lawsuit seeks an injunction “forbidding the (state bar) to discriminate against white men by conferring any form of preferential treatment on women or racial minorities.”

Racial classifications by states are subject to the highest strict scrutiny analysis. United States v. Santos-Rivera, 183 F.3d 367, 373 (5th Cir. 1999).United States v. Santos-Rivera, 183 F.3d 367, 373 (5th Cir. 1999). The Supreme Court has said that “[p]arties who seek to defend gender-based government action must demonstrate an ‘exceedingly persuasive justification’ for that ac- tion.” United States v. Virginia, 518 U.S. 515, 531 (1996).

Unlike the school admissions cases, these positions are expressly reserved on the basis of race and gender rather than one of many criteria. Obviously, within these large groups of minority and female applicants, there are a variety of elements or factors from education to career accomplishments that would be considered. The complaint quotes both Fifth Circuit and Supreme Court precedents:

“[A] quota system ‘cannot be said to be narrowly tailored to any goal, except per- haps outright racial balancing,’ and ‘[r]acial balance is not to be achieved for its own sake.’” Cavalier ex rel. Cavalier v. Caddo Parish School Bd., 403 F.3d 246, 260 (5th Cir. 2005) (quoting City of Richmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989), and Freeman v. Pitts, 503 U.S. 467, 494 (1992)). In accordance with the Equal Protection Clause, therefore, a State “cannot use a quota system—it cannot ‘insulat[e] each category of applicants with certain desired qualifications from competition with all other applications.’” Id. (quoting Grutter v. Bollinger, 539 U.S. 306, 334 (2003)).

What do you think?

Here is the complaint: Gegenheimer complaint

72 thoughts on “Texas Lawyer Challenges Bar Rules Reserving State Board Positions For Women and Minorities

    • Yeah. I apologize for blathering myself. When I need to make a point I will use a needle. If I can find one in the haystack.

  1. Affirmative action regulations such as these are one of the reasons American companies flee the country to China, Mexico, and elsewhere. Here, it’s just four goobers on a state board, but these kind of EOE requirements result in really unqualified people being hired and put in management positions in companies trying to make a profit. Companies that have to compete in the real world. But, minorities are untouchable so even Trump won’t be able to dump all these nonsense rules. It’s not just the wage differentials that drive companies overseas, but also these rules, which the practical result is, you often can’t hire and fire the way you need to. Imagine if the NFL or NBA had to have set asides for white guys. Would you really end up with the best teams possible?

    Squeeky Fromm
    Girl Reporter

      • @PaulCS

        Heck, it would “level” the stadiums. In the sense that “level” means to “knock down.” Can you imagine a football team where the tackles were in wheelchairs, and the safetys were autistic people who didn’t want to be touched by anybody??? And the referees had Tourettes, and the quarterback was visually impaired? I would be a hoot to watch the first couple of times, but after that the new would wear off pretty quickly.

        Squeeky Fromm
        Girl Reporter

    • Affirmative action regulations such as these are one of the reasons American companies flee the country to China, Mexico, and elsewhere.

      Maybe. One gets the impression that corporate honchos are all for the diversity shtick, because it’s considered declasse in their social set to be dismissive of it.

      • They love “diversity” when it means cheap Mexican or Central American labor, or gay workers who aren’t going to have three or four kids to add to the company medical plan. Or, little gay guys who are never going to have to support a family, sooo can work for less, and have less incentive to leave. When it means promoting Lakeesha T. Jones, single black mother of four little heathens, and a questionable educational cv to the head of the Accounts Receivable Dept., no so much.

        Squeeky Fromm
        Girl Reporter

        • Amazon brought scores and scores of Indian and Pakistani workers to their mammoth Distribution warehouse in Middletown, Delaware and provided diversity they claim. These South Asian workers are for the most part uneducated often semi-literate and their children do not aspire to become Doctors, Engineers, Dentists or Teachers. They often live as extended families in modest rental townhouses, receive earned income credits on their tax returns, and have under performing children in school. They are neither friendly or threatening when interacting in the local big box stores, they are not particularly loud or tidy when it comes to being neighbors. These South Asians have not started businesses in the area such as ethnic restaurants or groceries, they simply work in the warehouse day after day, week after week, month after month, show no interest in leaving or advancing. Amazon obviously cares about them, cares about them enough to keep touting their workforce diversity at the huge Middletown complex. This group of workers is proof Amazon is enlightened. The nearest large South Asian Community is 20 miles away at the University of Delaware in Newark and it finds the Amazon Workers embarrassing.

  2. Gender or race quotas are racial discrimination, by definition. The other race/gender need not apply.

    What is fair is a meritocracy, where anything skin deep does not matter. Your looks, age, gender, race, or religion should not matter. They should neither help you nor hinder you.

    Trying to artificially make a workplace have exactly the same distribution as the population is artificial. What if all your applicants in a given year are Asian? Pacific Islander? Polish American? Mutts? Are you going to ignore their fantastic resume and say, gee, you’d be absolutely perfect for this job and are exceedingly qualified, but you are the wrong gender, race, or religion? How insulting. How bigoted. How discriminatory. And how bad for workplace camaraderie. Can you imagine if someone got passed over for promotion for a top level position for 6 years because he was a man? And it took a female who had very slight interest and a substandard resume to fill the position? How would those two get along?

    Discrimination is anathema to a cohesive, friendly work environment.

    It should be fair and equal, and a meritocracy.

    • Karen, the Board of the State Bar of Texas is a government agency, not a private employer. (https://en.wikipedia.org/wiki/State_Bar_of_Texas). As such, the 14th Amendment applies to the Board.

      Private employers are generally subject to statutory laws arising under the Commerce Clause, not fundamental rights such as those arising under the 14th Amendment’s Equal Protection Clause, which limits state and local government actions.

      In this case, whether the act of making quotas is beyond the Board’s limitations requires a factual analysis under the two constitutional tests, one for race and one for gender, mentioned by Prof. Turley.

      What you’re arguing is that a private employer should be able to reject an applicant for being a minority or being female in and of itself. Although this happens regularly I’m sure, I don’t think it’s appropriate even under the Commerce Clause without additional reasons for the rejection. You don’t want a Japanese guy working in a Chinese laundry, then the question is ‘why?’

      • I was arguing for a meritocracy, not for rejecting or hiring someone because they were a minority. If a private employer rejected an applicant expressly because they were a minority, that would be actionable discrimination.

        What can I tell my little boy? When he grows up, he should be passed over for college admissions, jobs, or promotions because discrimination has existed for millennia, so it’s only fair that white males get discriminated against in this lifetime, no matter how hard he tries?

        Discrimination is wrong.

        The only time that gender, for example, would matter is if it was intrinsic to the job, such as a women’s shelter worker or locker room attendant.

        • What can I tell my little boy? When he grows up, he should be passed over for college admissions, jobs, or promotions because discrimination has existed for millennia, so it’s only fair that white males get discriminated against in this lifetime, no matter how hard he tries?

          Tell him

          1. It’s someone else’s world. You’re just livin’ in it.

          2. Be as forthright as you can with yourself about yourself and as forthright as you can with others. For the most part, people use intellect to tell lies to themselves and others. The more intellect, the more rococo is the verbiage which accompanies the lie.

          3. Understand how to lose a fight with dignity. You’ll be doing a certain amount of it.

          4. Recall V.S. Naipaul’s assessment of Joan Baez: “You could not sing sweet songs about justice unless you expected justice, and, in fact, received it much of the time”.

        • Sorry Karen. I didn’t get passed the following:

          “What can I tell my little boy? When he grows up, he should be passed over for college admissions, jobs, or promotions because discrimination has existed for millennia, so it’s only fair that white males get discriminated against in this lifetime, no matter how hard he tries?”

          You won’t find much sympathy from the many in the minority groups What can you tell your little boy? Probably the same thing minorities tell their children: that they may “be passed over for college admissions, jobs, or promotions because discrimination has existed for millennia . . .”

      • Steve – if they are a governmental body, then they may be complying with a DoJ order. Texas may be one of the 20 states that fall under the Civil Rights Act.

        • Paul, that’s an interesting thought. I hadn’t thought of it. Do you know which executive (or DOJ) order it is? If the SBOT is complying with civil rights law for federal funding, then it certainly is legislation under the Commerce Clause.

          • Steve – I don’t know. I know that each of those 20 states has to have the DoJ approve it reapportionment plans after the census. And there is a criteria they have to use. Arizona’s legislature formed a body of what was supposed to be two Republican, two Democrats and one Independent to do the work. Then they go around the state and everybody yells at them and they tweak it a little. However, the last time, the “Independent” was actually a Democrat, so the Democrats got 1 more safe seat.

  3. If there is a need for reverse racisim and reverse sexism it means there was racism and sexism to begin with. But the answer is not more of the same. That only continues the -ism’s. The only way to do away with the ‘ism’s are to not tolerate them in any guise. or mode. The rest of it matter of competition and best qualified.

    Does that go back to certain groups being unprepared and not particularly qualified? Look at the law schools. If they have time for safe spots and snow flake activities they surely could have been correcting their own discriminatory policies.

    Accepting people into offices that can promulgate consequences based on the ‘ism’s is in itself a form of continued ‘hate speech amd hateful actions.’

    Racism and Sexism and bigotry be they direct or reverse are equally invalid as any sort of solution. There only purpose is to continue the same ‘wrong’ with some sort of half baked revenge motive usually agains those who least deserve it.

    It’s a cheap way for incompetent politicians to try an buy their way out of a situation usually of their own making.

  4. Lawyers suing lawyers over laws crafted by lawyers deemed to be discriminatory and therefore unconstitutional. Who’s paying the billable hours?

  5. I wonder which governor affixed his signature to the statutory turd which created these set-asides. Texas has had only one liberal Democrat in the Governor’s chair since racial preference schemes appeared on the scene. It sounds like just the sort of frippery the Bush scions would think up.

  6. It won’t matter what black-letter law says, the judges will make up some excuse for what they want to do anyway. You see this because the legal profession is more addled by virtue signalling than any occupational group other than the media and academe.

    It is, by the way, a para-statal body which should likely not exist.

  7. These laws are passed as a token response to centuries of racial and gender discrimination. Inherent in the very requirement to have a specific percentage of places reserved for minorities against whom these boards may discriminate is the very discrimination against which they fight. The only way to get rid of a law(s) such as these is to render them irrelevant due to the abundance of eligible minority and female candidates. These laws are a necessary starting point but without providing the opportunities from the beginning, these laws are potentially more harmful than beneficial. Both the requirement of including minorities and females as well as the opposition to that requirement, alone, is nothing more than a band aid or an act of legal self gratification.

    • I agree with most of what you write but “due to the abundance of eligible minority and female candidates” needs more qualification imo. It is not just the abundance of eligible minority and female candidates. The white males have to be able to see them as eligible and be willing to vote for them. White males seem to have trouble seeing their privilege, and, strangely, see capable women as threatening their privilege (which they don’t acknowledge having).

    • It’s a bunch of lawyers. The more they’re distracted playing footsie with each other, the better off the rest of society is.

  8. The focus should be on encouraging women and minorities to achieve, and then naturally EARN the status of these positions. All quotas do is enable underachieving minorities, and cast a shadow over high achieving minorities. One of the reasons sports are loved by so many people is because they are as close to a perfect meritocracy there is. Great thanks to Jackie Robinson and Branch Rickey.

    • The point is to give bon bons to the mascot groups of the Anointed, to underline their magic status contra the Benighted. Those who are magic do not need accomplishments to be valuable.

      • I’d use your “reasons of state” argument to gloss over your every-so-enlightened “bon bons” comment, but I realize you’ve got to maintain your Ann-Coulter-wannabe status.

        There are two different constitutional standards: one tests for the constitutionality of racial discrimination (strict scrutiny – a narrowly-tailored rule, i.e., no other race-neutral alternatives work, which serves a compelling state interest, i.e., the facts show the state bar discriminated against minorities for board membership in the past and is trying to remedy that discrimination); and, the other tests for the constitutionality of gender discrimination (intermediate level – “exceedingly persuasive justification,” apparently is the test but, generally, intentional gender discrimination must be somehow a close fit to an end sought and that end must be an important governmental interest).

        It seems like the state bar will prevail in this affirmative-action complaint if the facts lead there. I’d think there’d have to be some factual record that both minorities and women were denied access due to an express or implied rule in the not-too-distant past. The proof of the pudding is in the eating, though.

        My guess is the lawsuit will be a loser at the strict-scrutiny level for racial discrimination: no other race-neutral alternatives exist to remedy past racial discrimination but only if the facts reflect minorities were outright denied access.

        As for gender discrimination, there’s “exceedingly persuasive justification” for the quota if it can be shown women were denied access to the board for the mere reason of their gender. It would certainly be an important government interest to sit a gender-equalized board. Lots of men still think women are better with a sewing machine and dropping babies than with quill and oratory. Still, proving that women were denied access will require facts.

        But who knows? Perhaps with another conservative jurist quickly seated at the Supreme Court of the United States, no affirmative action will exist in the future.

        • “no other race-neutral alternatives exist to remedy past racial discrimination…”

          Yes there is, it’s called the 14th Amendment. We “become a more perfect union” not by punishing future generations for the sins of previous generations, but by providing equal treatment under the law and securing the life, liberty and property of all. Social engineering by affirmative action only succeeds to entrench inequality by forcing the unnatural will of the state through discriminatory practices.

          If the assumption here is that only woman and especially non-white woman have the ability to uphold equal treatment under the law then why aren’t all 30 spots reserved for non-white women? Because this isn’t about the law at all. This is about reparations. This is state sanctioned racial-gender profiling that discriminates against innocent, potentially qualified candidates.

          • Olly: Being white males, no more racism and sexism is easy for us to say. The damage is done, and last I heard we’re still awarding remedies for damages in civil cases. Case on point: Our President-elect holds women in an esteem similar to that with which he holds six-pack plastic wrap.

              • Girl Reporter: It’s certainly a vicious circle, but I don’t know that women have had the upper hand in that battle. Equalizing the battlefield seems like equal protection to me.

                It’d be nice to think rejection affirmative action outright as fair, but I don’t think we’re there yet in this society.

                • Except that people don’t live their three score and ten years in a state of philosophic contemplative navel-gazing oblivion. They have to eat, and screw, and make babies, and change diapers, and pay bills, and all those real life things that are messy. I think it was the great philosopher, Walker Percy, who wrote about the Battle of the Sexes, something to the effect of,

                  “there are people who stick penises in people, and then there are people who get penises stuck in them. . .”

                  I wish I could find the exact excerpt, but anyway, IIRC, he was pretty much of the same disposition as my father, who told me real life consists of changing dirty diapers. The point being, that there is always going to be a battle of the sexes, as a matter of reality. Trying to “even” the battlefield is anti-reality. All the tinkering just screws it all up.

                  Squeeky Fromm
                  Girl Reporter

            • Our President-elect holds women in an esteem similar to that with which he holds six-pack plastic wrap.

              Except that all his wives speak well of him, as does his daughter and his campaign manager.

              • Right. Marla Maples is still in love with him. She tried to get the word out the last time he attempted a run (and it weren’t nothin’ good), but apparently he shut her up by threatening to enforce a gag order in the divorce decree if I’m not mistaken.

              • Insufficient number of testimonials. Would not expect anything different from his daughter. That his campaign manager has had nothing but good experiences with Trump is not evidence one way or the other about how he has treated other women. That his two former wives speak well of him — an assertion, by the way, for which you do not actually provide any support — may well be due to the leverage he holds over them in the divorce arrangements he has with them. Anyway, whatever they have to say about him is not evidence of anything other than their own experiences. It certainly is not evidence of how he has treated other women or how he treats women in general.

            • Olly: Being white males, no more racism and sexism is easy for us to say. The damage is done,

              What damage? And what do you fancy the people who came up with this mess are ‘doing’ about it? My grandmother was not a ‘damaged’ individual, she just had circumscribed ambitions (as do most people). If any of her female descendants could be called ‘damaged’, you really cannot stick the bill with the Big He. As for the Chicano population, the vast majority have a pedigree which is dominated by people who arrived in this country after 1965. How much ‘damage’ do you fancy the foreman and kitchen supervisors working ca. 1980 could have done to them? Re the black population, you’d have a better argument, but you’re telling me that patronage improves human capital (rather than promoting the maldeployment of human capital). Not buying.

              • Let’s go back to Brown v. Board (1954). You think separate but equal doctrine would have just vanished without court enforcement?

                The SBOT circumscribes the unfairness of the good ol’ boys’ club (which is ubiquitous in the legal field) with this quota. No harm, no foul.

                You should be acknowledging this commendable action, not criticizing it.

            • Steve,

              Last time I checked the oath does not require one to actually have the character of an angel to become President. I believe Federalist 51 acknowledges that quite well. So instead we are supposed to hogtie these public servants to the rule of law. However, the People don’t do what they are supposed to do. Why is that? Because they measure the right and wrong of the office by the character in it and not their fidelity to the oath they took. So character matters more in the oversight than it does in the actual administration. The old saying goes, we get the government we deserve or paraphrasing Franklin, the republic we can keep.

              • Certainly, Democrats and Republicans earn their keep by not having character. I disagree that character matters more in oversight than in the duties of elected officials, and it matters just as much in the electing those officials. No one should have voted for either of the two last-standing suids in this past presidential election.

        • There are two different constitutional standards:

          And neither one exists outside the heads of seedy appellate judges and the shysters pitching arguments to them. I don’t give a damn.

            • No, the serial frauds and the acres of embroidery on pinheads of constitutional language cause me not to care about what they say unless it’s my job to care, which it isn’t. The legislatures could do something about this, but they don’t.

  9. ” You can’t use the drinking fountains marked whites only, but there are plenty of other ones you can drink from. So what’s the problem?”

    That’s sarcasm by the way.

  10. By “warehouse name” I mean the name we employ within the mental hospital. I used to be Lee Harvey Oswald and now that I am out of the mental asylum I am simply Lee Harvey. My real name. No name, no blame, ask me again and I’ll tell you the same. Puddin Tame.

      • Because the transgender issues need discussion. The mental illness issues need discussion. I may sound like Trump but I am not Trump. Nonsense when said flippantly, makes sense to those that have sense. And my next stop on the way home is the Sierra Nevada where the deer and buffalo play. And where usually seldom is heard a discouraging word.

  11. There was a Texas attorney in the mental hospital who got to the hospital because he was accused of being transgender and having gone into a women’s public bathroom at Walmart and displaying the genital to all who would look. While he was locked up on our ward he said that he was trying to get onto this Texas board which is talked about in the article. He was preparing a lawsuit. I am going to send him this article. If you read about a new lawsuit filed in Texas on this issue then look for the name of a plaintiff named Long Dong Silver. That might have been his “warehouse name” but he said he was going to go by it. He has silver hair.

  12. I’m sorry, your post says males and whites cannot compete for all 46 positions, but doesn’t the catagory female include white women? Making it possible for white women to compete for every position on the board? Don’t the other racial and ethic categories include men? The injunction language certainly reads like the attorneys think this law disadvantages white men specifically. There’s no “and” between female and the other categories. Your analysis seems to assume one…odd.

  13. I don’t see it as bluntly straightforward as implied by common sense.

    Given the necessary balancing, would it not depend of the history of filling the 46 positions and the importance of the Board? If the Board is deemed “important” enough and the applicable history shows elections & appointments way out of whack with the demographics, the quota might pass muster. But the strict scrutiny analysis will be tough to overcome. If the elective positions are clearly free and open and not drawn on any exclusionary basis all those positions have to be left alone. That brings a court to members appointed by the Tx Court, Young Lawyers, etc. Is there any clear history of discrimination in those appointments?

    If there exists no history of discrimination amongst the 42 positions it seems to me the burden for upholding a quota is very tough to the point of nearly insurmountable. Upholding a quota where there exists no evidence of discriminatory practices is way down the slippery slope. However, given lawyers’ sense of self-importance there exists a strong chance a court will deem there to be an “overwhelming state interest” in seeing fair and equal representation on the state bar. If a court determines an overwhelming state interest and there exists any historical evidence in the past 40 years of the 42 positions having de minimus presence of women/minorities, watch out!

    And after a court buys the four set-asides, how about a seat or two for transgenders?

  14. IWhat discriimination. They call for “diversity” but where is the rule reserving spots for redheads?
    #GingerLivesMatter

  15. All Animals Are Equal, But Some Animals Are More Equal Than Others

    The Left today is far more dangerous than the Right

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