Supreme Court should re-affirm 2003 ruling of Michigan Law's admissions policy, attorneys say

By Denise M. Champagne
Dolan Media Newswires
The importance of increasing diversity in law schools is the subject of a New York State Bar Association brief calling for re-affirming a 2003 Supreme Court decision that could be impacted by a Texas case slated to be heard in the fall.

The friend of the court brief, authored by Nixon Peabody LLP attorneys David M. Schraver and David H. Tennant, notes the government has a compelling interest in promoting diversity in the legal profession and that it can only be achieved if colleges and universities graduate students of color in substantial numbers to fill law school seats.

Schraver said it is really a pipeline issue going all the way back to educational programs like Head Start.

“It’s a societal issue and the bar associations are trying to address it in ways that we’ve outlined in our brief,” he said.

He and Tennant believe the high court should re-affirm its landmark ruling in Grutter v. Bollinger, 539 U.S. 306 (2003). In that case, the Supreme Court ruled the University of Michigan Law School’s race-conscious admissions policy was not unconstitutional and that the school had a compelling interest in promoting class diversity.

The latest challenge to affirmative action admissions policies at post-secondary schools comes from Abigail Noel Fisher, a white woman who is challenging the constitutionality of an admissions policy of the University of Texas at Austin.

Fisher claims race had a factor in her being denied admission. She is asking that the University of Texas’ policy be declared inconsistent with Grutter or that Grutter be overturned.

Arguments are scheduled for Oct. 10. The NYSBA brief does not take a position on the university’s admission policy, but calls for re-affirming Grutter.

“Our brief emphasizes the importance of promoting diversity in the legal profession because of the central role that lawyers, judges and legal institutions play in our society,” NYSBA President Seymour W. James Jr. (The Legal Aid Society) said in a release. “As our nation’s demographics change, it is crucial for our profession to reflect the diversity of our population. To that end, it is essential for our nation’s colleges to graduate talented and qualified diverse candidates, and to encourage them to enter the legal profession.”

The brief, approved and filed by James on behalf of the NYSBA, argues that increasing racial diversity within the legal profession is a compelling government interest.

“A commitment to diversity in the legal profession recognizes the undeniable fact that the demographics of the United States’ population are changing —becoming more diverse racially and ethnically—and that institutions in the United States will lose credibility and effectiveness if they fail to adapt to these changes,” the brief states. “For the legal profession, the consequences of failing to become more diverse in a ‘majority-minority’ America are profound. The legitimacy and effectiveness of our civil and criminal justice systems will be undermined if the profession does not reflect the changing demographics.”

Schraver and Tennant note a lack of diversity among lawyers and judges fuels distrust of the legal system in many minority communities, which will only be strengthened if such underrepresentation persists.

They point out that the legal profession is overwhelmingly white in a country that is projected to have a non-Hispanic white population of less than 50 percent in approximately 25 years.

“African-Americans and Hispanics remain seriously underrepresented in the legal profession relative not only to their numbers in the general population, but also to their participation rates in other professions,” according to the brief. “While minorities comprised just under 10 percent of all lawyers in the United States in 2000, minorities represented 20.8 percent of accountants, 23.1 percent of computer scientists and 24.6 percent of physicians.”

Again, Schraver said, it is a pipeline issue in which providing enough minorities in law schools will ultimately increase diversity in the legal profession.

“This is not a cosmetic issue,” the brief states. “It goes to ensuring the legitimacy and trustworthiness of the legal institutions we prize as lawyers and judges. If the legal profession is not broadly reflective of that multi-cultural society, it cannot help but be viewed as ‘out of touch’ by members of that society.”

Tennant said he does not think enough is being done to attract students, to really get young people to think about going to law school. He said a disturbing trend shows enrollment in law schools among Hispanics and Mexican-Americans was actually declining as those segments of the population were growing.

Some of their research was based on data garnered from a 2010 American Bar Association report on “The Next Steps: Diversity in the Legal Profession” and a 2007 NYSBA report, “Miles to Go in New York: Measuring the Racial and Ethnic Diversity Among New York Lawyers.”

The brief, available on the NYSBA’s website at, was filed by the Aug. 13 deadline.

Neither Schraver nor Tennant wanted to speculate on how the Supreme Court vote may go. The court was divided 5-4 in the Grutter decision, authored by Justice Sandra Day O’Connor who is no longer on the court. Also retired are Justices David H. Souter and John Paul Stevens, who joined O’Connor in the majority opinion, along with Justices Ruth Bader Ginsburg and Stephen G. Breyer who still serve.

The dissent in Grutter was led by then-Chief Justice William H. Rehnquist who died in 2005. He was joined by Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas, all of whom remain on the court. They argued the policy was an unconstitutional attempt at racial balancing.

Justice Elena Kagan has recused herself from hearing Fisher v. University of Texas (Docket 11-345), which means the vote could split in a 4-4 tie in which case Schraver said the Court of Appeals decision would stand. The U.S. Court of Appeals for the Fifth Circuit, as well as the District Court, sided with the university, upholding the legality of its admission policy.

“It’s likely to be a split decision, but it’s hard to predict exactly what the split will be,” Schraver said.

The ABA has also filed a brief, available at www., urging the Supreme Court to uphold the University of Texas at Austin’s use of race as one of many factors in undergraduate admissions decisions.

“As this long history demonstrates, the ABA is convinced that increased participation by our nation’s racial and ethnic minorities in its legal and leadership positions remains critical today and that undergraduate institutions are a necessary part of the pipeline to law schools and the legal profession,” the ABA brief states.

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