Increasing Diversity in Legal Practice at the US Supreme Court

We are very pleased with today’s decision in Fisher v. University of Texas, upholding the school’s race-conscious admissions policy with a finding that it does not violate the Equal Protection Clause.  The BBA is thrilled that the Court reached the outcome we argued for in our amicus brief, that experimentation in admissions is necessary to balance the pursuit of diversity with constitutional requirements of equal treatment.  This ruling means that the University of Texas, as well as other schools across the country, may continue to experiment with admissions policies intended to create a more racially inclusive classroom, and society.

The BBA has for some time supported the use of race-conscious admissions policies for higher-education institutions, including in the 2003 case, Grutter v. Bollinger and the first iteration of the Fisher case in 2012.  The BBA’s amicus briefs in both cases, drafted by BBA Secretary Jon Albano, Morgan Lewis, (Fisher II with the help of Sarah Paige) argued that race-conscious admissions policies are positive and necessary, especially to achieve increased diversity in the legal profession.  To quote our Fisher I brief:

… Until the composition of the legal profession more closely resembles that of the public whose interests are at stake, the perception will remain that the legal system is entrusted to and accessible to the white majority above all others.  Not only does that perception undermine the legitimacy of the judicial system, it further discourages participation by people of color, creating a self-perpetuating cycle of exclusion.

Grutter v. Bollinger was a landmark case in which the Supreme Court upheld the University of Michigan law school’s affirmative-action admissions policy.  In its Fisher I decision, the Court vacated and remanded a Fifth Circuit Court of Appeals decision for failing to apply strict scrutiny in reviewing the University of Texas’s race-conscious admissions policy.  The ruling effectively upheld race-conscious admissions policies, but also complicated the overall picture by cautioning that race-conscious admissions policies must establish a quantifiable interest in the educational benefits of a diverse student body, and that higher-education institutions must be able to show that “workable, race-neutral alternatives” will not suffice, and demonstrate that the consideration of race is narrowly tailored.  The BBA provided some clarity on the college admissions process going forward with a program in late 2013, but the issue remained open to discussion and interpretation.

In July 2014, a three-judge panel on the Fifth Circuit again upheld the University of Texas admissions plan, and the case returned to the Supreme Court when the Court granted a petition for writ of certoriari in late June 2015.  In early November 2015, the BBA filed its amicus brief with the support of seven diverse Massachusetts bar organizations:

  • Asian American Lawyers Association of Massachusetts,
  • Massachusetts Association of Hispanic Attorneys,
  • Massachusetts Black Lawyers Association,
  • Massachusetts Black Women Attorneys,
  • Massachusetts LGBTQ Bar Association,
  • South Asian Bar Association of Greater Boston, and the
  • Women’s Bar Association.

Our brief in this case is similar to the one we filed in Fisher I, arguing that state efforts to promote diversity in education serve a compelling governmental interest that is directly relevant to the goals of the legal profession, and that diversity of lawyers enhances the legal profession and society as a whole.  It explains that this diversity in the legal profession can be achieved only by the creation of a diverse pipeline of students from undergraduate institutions.

We hope that this case will help to further diversity in the legal profession, one of our core values and a major consideration in much of the work we do.  We look forward to achieving a greater understanding of the implications of this holding for higher education and the legal profession in the coming months.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association