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

There 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