Executive Committee hears member feedback;
Bar will not join amicus to support Michigan Law School admissions process

February 14, 2003

On Feb. 13, the Executive Committee vote fell short by two to join an amicus curiae brief in a case before the U.S. Supreme Court that challenges the University of Michigan's use of race as a factor in its law school admissions process. A majority vote of the 14-member Executive Committee is needed to authorize joining an amicus.

On Jan. 17, the Board of Governors passed a motion to join an amicus in support of the University of Michigan's law school admissions policy, dependent upon presentation an appropriate brief to the Executive Committee for review and authorization. The State Bar requested member feedback by Jan. 31 through a broadcast email and information posted on WisBar.

"I am very grateful to all the members who took the time to respond to this issue," said State Bar President Pat Ballman. "We received close to 1,000 responses, and it is clear from those responses that Wisconsin lawyers believe in diversity in the legal profession, but there is a significant difference of opinion on how that can be achieved."

Of the 978 member responses received, 666 (68 percent) were opposed and 312 (32 percent) supported joining an amicus. Executive Committee members received a representative sample of both pro and con responses prior to the meeting so they could personally assess the scope, breadth, and intensity of some of the opinions expressed.

The committee considered the member comments, as required by State Bar bylaws, which safeguard minority viewpoints by requiring that whenever practicable, prior to authorizing or filing an amicus brief, publishing notice of the proposed action inviting members' comments and recommendations.

Some Executive Committee members observed that joining an amicus brief would have the effect of certifying to the U.S. Supreme Court that State Bar of Wisconsin members support the position being taken. Noting that 68 percent of the members who responded to the call for input oppose joining an amicus, those Executive Committee members questioned whether the Bar as a mandatory association could responsibly or fairly speak on behalf of its members in the face of strong opposition with respect to a politically divisive issue.

"The Bar remains vitally concerned with fostering diversity in the profession, but recognizes that members legitimately disagree on how to achieve this goal," said Ballman.

"The Executive Committee agreed that the Bar has an obligation to our law schools and our law students, both present and prospective, to continue to work toward our strategic goal of increasing and diversifying participation in the legal profession," continued Ballman. "To that end, the Diversity Outreach Committee, which has an existing liaison relationship to the U.W. Law School, will be charged to keep watch over the Michigan case, to contact the state's two law schools, and to research how best to assist the law schools in their efforts to foster diversity in accordance with applicable law."

Much of the Executive Committee debate focused on the proper weight to accord member feedback with respect to the filing of an amicus on behalf of a mandatory bar association. Because amicus briefs are specifically addressed by the bylaws, the view prevailed that decisions on amicus briefs filed by the Bar are different from decisions on other important issues, however controversial those other issues may be, and that member's views should be given significant weight.

"All views expressed were valued and were taken seriously," said Ballman. "I personally reviewed each and every response received. I also commend each member who took the time to communicate his or her opinion to us."