Sample of viewpoints on filing amicus in Grutter v. Bollinger, et
al.
January 22, 2003
"The Diversity Outreach Committee met and discuss the implications of
this case for the board and made a number of points: The University of
Wisconsin uses race as a factor for admission in a way that is 'similar'
to that used by the University of Michigan.
"The purposes for which the State Bar is organized include to assist
and support the legal education programs at the preadmission level. This
is one of the Supreme Court rules (SCR
10.02). The Diversity Outreach Committee felt that this is an
appropriate basis on which to consider an amicus brief. Its support was
unanimous. In addition, this body has adopted a strategic plan for the
State Bar of Wisconsin. Among other things, that strategic plan
indicates that the decisions and actions of the State Bar of Wisconsin
would be consistent with certain values. It declared that we will be
inclusive. More specifically, the plan set goals to increase and
diversify participation in the legal profession. The strategic goals of
the Bar are consistent with support for the University of Michigan in
this pending case. I would urge the board to consider and adopt a
position in support of the University of Michigan."
-- Gov. Jim Brennan, Milwaukee
(Gov. Brennan reported after the Board meeting that the Diversity
Outreach Committee did not discuss the particulars of the Michigan Law
School policy except to note that it is "similar" to that used by UW.
Michigan assigns points based on racial identification, the University
of Wisconsin does not. Both law schools, however, use race as a factor
in the admissions process consistent with the Regents of the
University of California v. Bakke decision. Neither uses quotas. The
committee was unanimous on the point that race should continue to be
used as a consideration in law school admission but did not put any fine
point on the method for handling admissions. The committee did not have
the benefit of Dean Davis' remarks on how the University of Wisconsin
handles applications and considers many factors. The committee action
asked that the State Bar of Wisconsin join in an amicus on the side of
Michigan, viewing the Michigan approach as one appropriate way of
achieving diversity but not the only method)
"Of all the law programs in the nation, the U.W. Law School in
Madison has the strongest diversity initiatives and outcomes. I point to
that program as a stellar example of diversity done right. For that
school to lose that edge would fare poorly for the school, the state,
and its professions."
-- Gov. Tess Arenas, nonlawyer member
" ...One of the things we have always done on the Admissions
Committee at the U.W. Law School is look at the whole file. We look
beyond the numbers - grades and LSAT scores -- and we have done that for
a variety of reasons. Most obviously, we want students with different
viewpoints and personal experiences because we think a lot of the
learning that goes on is student-to-student, whether in classroom
discussions or working together on projects, moot court briefs, and so
on. We are training people who are going to serve and work with people
of diverse backgrounds and who are going to be leaders in the public
affairs of the day, so we think creating a learning environment that
brings together people from diverse perspectives is critical to a
top-tier legal education. We have always, for example, looked at an
applicant's prior work experience, what an applicant has done, and where
the applicant comes from to try and build the most diverse and
interesting class we can. It is scary that there may well be a decision
that holds that we can look at the fact that someone had a purple heart
in the Gulf War, was captain of the high school swimming team, or
organized a community food bank in Racine, but can't look at the fact
that they are a member of a particular racial or ethnic group with the
kind of perspective and experience that may come from that. The Supreme
Court's decision is a matter of significant concern for us in terms of
our ability to build the kind of learning environment that we think is
important for a high quality legal education.
"The second factor is the role that I think we play on behalf of the
State of Wisconsin, and I will brag for a second. We are without
question the number one producer of professionals of color in the state
of Wisconsin. Put all the professional schools around the state
together. Nobody matches our record. We are a national law school
recruiting people on a national basis. I think that all of you who care
about this state and the diversity of the Milwaukee and state business
communities, the legal community, etc, can recognize our role in
bringing to the state of Wisconsin students, including students of
color, who might not without our admissions process be part of the
growth and development of this state.
"...Our student body, white students and students of color, are
following the Michigan case very closely. It is inappropriate for me to
ask you to do something, but I will say if I could go to our students
and say that the State Bar of Wisconsin is one of the few bar
associations in the United States that has taken an amicus position, it
would be a tremendous message to both our current and prospective
students about the commitment of their new home state to inclusiveness
and would send a very strong message. "
-- Dean Ken Davis, UW Law School
Past President John Skilton addressed the Board on the subject of
amicus participation by the State Bar in the pending Michigan
"affirmative action" cases. He spoke on two issues. What follows is a
summary of what he said on each issue.
We are an integrated bar: membership is mandatory. As the Bar's
lawyer I spent 13 years fighting over what it means to be an integrated
bar. I remind you of that history: It takes one dissenter to cause
disruption for 13 years; we were required to win two appeals in the
Seventh Circuit. We were repeatedly insulted, harassed, and abused on
the basis of an argument that what we were doing was unlawfully engaging
in "political activities." When I argued as the lawyer for the Bar in
the Supreme Court of Wisconsin in support of reintegrating the Bar, I
was asked by the Chief Justice "What does 'ideological' mean?" (The next
question which did not need to be asked was "What are political
activities?") My answer was, I don't know, but I know it when I see
it."
"Affirmative action" involves questions that in my view are both
moral and political - these issues run the fine line between the proper
activities of an integrated mandatory bar and those which can be
described as "merely" or "purely" political. When I was president of
this Bar, I went to Nebraska and talked about the difference between
speech issues as they relate to an integrated bar vs. a mandatory bar.
The ABA, of course - as a voluntary bar - is free to take a position on
political issues: but, in my view, there are some issues which as a
matter of common sense it ought to simply stay away from - such as
abortion. Although the ABA has the right to speak, its members have the
right to leave . . . to vote with their feet . . . and they did. I don't
agree with those members who left, and I personally agree with the
position the ABA took, but I nevertheless believe that the ABA made a
mistake when it took them as an institution.
Having lived with the implications of dissenters' rights, I believe
that this Board should obtain an independent opinion on the issue of
whether it should be filing this brief.
This said, I will now put on another hat:
I am in the process of writing an amicus brief for the Lawyers
Committee for Civil Rights, a volunteer organization of lawyers that was
formed in 1963 at the request of the Brothers Kennedy who asked the
following question in the context of the civil rights problems in
Mississippi: "Where are the lawyers?" The committee's mission is to
secure and ensure racial justice in this country. It has been active
everywhere. This is just one example of its activity.
All members of this Bar should carefully read the Bakke
decision. (It took me eight hours to read.) Pay attention to Thurgood
Marshall's dissent. It will allay any uncertainty as to the history of
the fourteenth amendment - or the history of our Supreme Court with
respect to it - from Dred Scott to the Civil Rights Cases
of 1882, to Plessy v. Ferguson, to Brown v. Board of
Education, and then to Bakke. Bakke was the court's first
(express) "affirmative action" decision. As the decision in
Bakke shows, "affirmative action" is a misused term -
misleadingly used by those who oppose it, who choose to describe it with
catch phrases like "quotas" and "segregation." Bill Bennett leads this
charge. I have an "Ode to Bill Bennett" I'd like to read; it was written
by Harry Blackmun who separately concurred in the five-judge
Bakke holding (that race could be used as a factor in
admissions). This ode was written in 1977. It goes like this:
I yield to no one in my earnest hope that the time will come when an
"affirmative action" program is unnecessary and is, in truth, only a
relic of the past. I would hope that we could reach this stage within a
decade at the most. But the story of Brown v. Board of
Education, decided almost a quarter of a century ago, suggests that
hope is a slim one. At some time, however, beyond any period of what
some would claim is only transitional in inequality, the United States
must and will reach a stage of maturity where action along this line is
no longer necessary. Then persons will be regarded as persons and
discrimination of the type we address today will be an ugly feature of
history that is instructive but is beyond us."
Justice Blackmun concluded his opinion with words that should be
embedded in the Constitution:
In order to get beyond racism we must first take account of race.
There is no other way. And in order to treat some persons equally we
must treat them differently. We cannot, we dare not, let the Equal
Protection Clause perpetuate racial supremacy.
The Equal Protection Clause, properly considered, is a shield against
racial prejudice: It should not be employed as a sword against racial
justice. The real question put by Justice Blackmun, and now presented to
the present court is: "Are we there yet?' I respond as did Homer Simpson
to the same question: "No."
--Past President John Skilton
"I think the easiest thing to do on this motion would be to vote in
favor of it for the reasons that Gov. Arenas mentioned, for the
practical reasons that Dean Davis alluded to, and for the legal reasons
that John Skilton recited. But I have some concerns. This is an
important issue that this bar has an absolute prerogative to speak out
on. The outcome of this case is likely to change the face of our
profession for the next 10 or 15 or 20 years. At the same time, however,
this is one of the highly charged political issues of the day, and
because we are a mandatory bar it is incumbent upon us to let our
membership know what we are thinking, what we are considering, and give
them the opportunity to comment.
The bylaws of our organization, particularly Article VII, recite some
very specific rules for our organization to undertake before an amicus
filing. Having followed these rules as chair of Litigation Section, I
know they often stand in the way of us taking important action, but they
exist and we should consider them carefully. More importantly, Article
VII reads, 'whenever practicable, prior to authorizing or filing an
amicus curiae notice of the proposed action shall be published in the
Wisconsin Lawyer and the State Bar newsletter inviting comments from the
membership.'
Canvassing our membership is essential."
-- President-elect George Burnett
"There are significant matters of social policy that our membership
has strong and divergent views on, and I think it is morally wrong for
this bar association to adopt positions that are contrary to the strong
views held by a significant portion of our members. We are a mandatory,
not a voluntary bar association. I think it is absolutely indefensible
for us to take positions on matters of social policy, not legal
issues."
-- Gov. Jim Mohr, Hartford
"... [The] Keller [case] does not require that Bar
leadership refrain from taking a position that might also fall into the
political or ideological realm. It permits the Bar leadership to do so,
as long as the Bar provides a mechanism by which people who disagree can
object or remove themselves. Anyone who disagrees does have that option
of taking that Keller rebate. While I do appreciate that people
will differ in a mandatory bar, there are safeguards and I would suggest
that Keller is that safeguard."
-- Gov. Michelle Behnke, Madison
"We should disseminate to the members as quickly as possible that we
are considering this action. I would like the membership to look at what
the "real" issues are as opposed to the issues being presented on talk
radio, because they are factually incorrect. If our membership sees what
we are being asked to deal with, I am not certain there would be a
substantial percentage of our membership that would strongly oppose this
course of action. I think supporting this amicus motion is important for
the very purposes that the Bar exists to fulfill our function and our
strategic plan, which includes increasing and diversifying participation
in the legal profession."
-- Past President Gerry Mowris
"I was admitted to Michigan in 1991, and the issue was hot then. The
admissions system was discussed, it was tweaked. There were people from
the Black Law Students Association, the Federalists, everybody argued
about it throughout my career. I thought that the points that the
President (Bush) made were very harmful because the University of
Michigan does not have a quota system as is being reported."
"I believe that equal consideration is given to individuals from the
Upper Peninsula compared to the race or ethnic background of applicants.
The same consideration is also given to applicants whose father or
mother went to the University of Michigan law school or as undergraduate
as is given if you're black or Hispanic. It's not as if all the black
people who get in have extra points and all the white people get in
because they have stellar grades and LSATs. I urge the governors to
visit the University of Michigan Web site to review the program."
Atty. Ware referred to the following points, which the Michigan Black
Law Alumni Society has taken into consideration in preparing the amicus
brief they will submit to the U.S. Supreme Court.:
First, there is no correlation between LSAT scores and undergraduate
GPA and future successes.
Second, the appellees cannot show that they were not admitted to the
university because of their race. They didn't have 4.0 and perfect
scores on LSAT. They might not have been admitted because there was a
person with the same grades and scores whose father went to the
university.
Third, African American and Hispanic law school grads from the
University of Michigan are more likely: (1) to commit to public service
and (2) to commit to public service for underrepresented groups in our
society."
--Atty. Chris Ware
Atty. Chris Ware, Quarles and Brady, Milwaukee, is a 1994
graduate of the University of Michigan Law School. He addressed the
Board as the liaison from the Wisconsin Association of African-American
Lawyers (WAAL). He also serves as a Regional Director Michigan Black Law
Alumni Society (MBLAS).
"There are quite a few organizations that are working on amicus
briefs, but only one that we know of is being prepared by a bar, the
King County Bar Association in Seattle. In considering an amicus to
join, we might want to consider the type of entity that is preparing the
brief."
--State Bar President Pat Ballman
