United States Court of Appeals
FOR THE SIXTH CIRCUIT
BARBARA GRUTTER, for herself and all others similarly situated,
LEE BOLLINGER; JEFFREY LEHMAN; DENNIS SHIELDS;UNIVERSITY OF MICHIGAN BOARD OF REGENTS,
KIMBERLY JAMES, ET AL.,
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
MICHIGAN (FRIEDMAN, J.)
BRIEF OF THE AMERICAN BAR ASSOCIATIONAS AMICUS CURIAE IN
SUPPORT OF DEFENDANTS-APPELLANTS
MARTHA W. BARNETT*
American Bar Association
PAUL M. DODYK
ROWAN D. WILSON
FARAH S. BRELVI
CHARLES J. HA
KENNETH E. LEE
ALEXANDRA S. WALD
750 North Lake Shore Drive
Chicago, Illinois 60611
*Counsel of Record
TABLE OF CONTENTS
TABLE OF AUTHORITIES
INTEREST OF THE AMICUS CURIAE
- DIVERSITY OF THE BAR IS VITAL TO ITS ABILITY TO SERVE ALL AMERICANS FULLY AND FAIRLY
- The ABA Has Recognized the Importance of Diversity
to the Bar's Ability to Represent All Americans
- Courts Have Recognized the Need For, and Supported the
Achievement Of, Increased Diversity Within the Bar
- Diversity in the Bar Is Vital to the Attorney-Client
- DIVERSITY IS NECESSARY TO ENSURE THE EFFECTIVENESS AND LEGITIMACY OF THE LEGAL SYSTEM
- Many Perceive the Bar and Judiciary as Hostile
- B The Government Has a Compelling Interest in a Diverse
Bar to Foster and Maintain Public Confidence in the
- The Government Has a Compelling Interest in a
Diverse Bar to Preserve and Enhance Public Confidence
in the Government as a Whole
TABLE OF AUTHORITIES
Adarand Constructors. Inc. v. Pena, 515 U.S. 200 (1995)
Batson v. Kentucky, 476 U.S. 79 (1986)
Brown v. Board of Educ. of Topeka, 347 U.S. 483 (1954)
Bush v. Vera, 517 U.S. 952 (1996)
Detroit Police Officers' Ass'n v. Young, 608 F.2d 671 (6th Cir.
Georgia v. McCollum, 505 U.S. 42 (1992)
Hunt v. Cromartie, --U.S.--, 121 S.Ct. 1452 (2001)
Keyishian v. Board of Regents, 385 U.S. 589 (1967)
Mistretta v. United States, 488 U.S. 361 (1989)
Peters v. Kiff, 407 U.S. 493 (1972)
Planned Parenthood v. Casey, 505 U.S. 833 (1992)
Powers v. Ohio, 499 U.S. 400 (1991)
Regents of the University of California v. Bakke, 438 U.S. 265
Rose v. Mitchell, 443 U.S. 545 (1979)
Shaw v. Hunt, 517 U.S. 899 (1996)
Shaw v. Reno, 509 U.S. 630 (1993)
Smith v. Texas, 311 U.S. 128 (1940)
Sweatt v. Painter, 339 U.S. 629 (1950)
Trammel v. United States, 445 U.S. 40 (1980)
U.S. v. Johnson, 323 U.S. 273 (1944)
Aleinikoff, T. Alexander, and Issacharoff, Samuel, Race and
Redistricting: Drawing Constitutional Lines after Shaw v.
Reno, 92 Mich. L. Rev. 588 (1993)
Anderson, Philip S., Justice and Inequality Don't Mix, 85
A.B.A.J. 6 (May 1999).
American Bar Association, ABA Policy and Procedures
American Bar Association House of Delegates, Resolution, 103
Reports of the American Bar Association 595 (1970)
American Bar Association, Interim Report, Achieving Justice in a
Diverse America: A Summit on Racial and Ethnic Bias in the
Justice System (1994)
American Bar Association, 68 Annual Report of the American
Bar Association (1943)
American Bar Association, Brief Amicus Curiae, filed June 10,
1977, Regents of the University of California v. Bakke (No.
17, 26, 30
American Bar Association, Report of the Task Force on the
Bakke Decision (August 1978)
American Bar Association, Standards for Approval of Law
Schools (2000 ed.)
Barringer, David, Downsized Justice, 82 A.B.A.J. 60 (Jul. 1996)
The Book of Political Lists (Blake Eskin ed., 1998)
Burns, Kenneth J., Jr., C.L.E.O: Friend of Disadvantaged
Minority Law Students, 61 A.B.A.J. 1483 (Dec. 1975)
Carter, Terry, Divided Justice, 85 A.B.A.J. 42 (Feb. 1999)
Chambliss, Elizabeth, American Bar Association, Miles to Go
2000: Progress of Minorities in the Legal Profession (2000)
Comm'n on Racial and Ethnic Diversity in the Profession,
American Bar Association, Goal IX Report 2000-2001 (2001)
Comm'n on Racial and Ethnic Diversity in the Profession,
American Bar Association, Why Diversity? (2000)
Congressional Yellow Book, Leadership Directories, Inc. (2001)
Cook, Julian Abele, Jr., Dream Makers: Black Judges on Justice,
94 Mich. L. Rev. 1479 (1996)
D.C. Task Force on Gender, Race and Ethnic Bias, Report of the
Special Committee on Race and Ethnicity to the D.C. Task
Force on Gender, Race and Ethnic Bias, 64 Geo. Wash. L.
Rev. 189 (1996)
Discrimination in the Courts Comm., Conference of Chief
Justices, Resolution V (Jan. 23, 1993)
Discrimination in the Courts Comm., Conference of Chief Justices,
Resolution XVIII (Aug. 4, 1988)
de Tocqueville, Alexis, 1 Democracy in America (Vintage
Books, 1990) (1835)
Dubin, Jon C., Faculty Diversity as a Clinical Legal
Education Imperative, 51 Hastings L.J. 445 (2000)
Du Bois, W. E. B., The Souls of Black Folk (Bantam 1989) (1903)
Federalist, The, No. 78 (Alexander Hamilton) (Isaac Kramnick
ed., Penguin Classics, 1987) (1788)
Federalist, The, No. 39 (James Madison) (Isaac Kramnick ed.,
Penguin Classics, 1987) (1788)
Griswold, Erwin N., Some Observations on the DeFunis Case,
75 Colum. L. Rev. 512 (1975)
Hansen, Mark, And Still Miles to Go, 85 A.B.A.J. 68 (Feb. 1999)
Higginbotham, A. Leon, Jr., Seeking Pluralism in Judicial
Systems: The American Experience and the South
African Challenge, 42 Duke L.J. 1028 (1993)
Howard, Roscoe C., Jr., Getting It Wrong: Hopwood v. Texas
and Its Implications for Racial Diversity in Legal
Education and Practice, 31 New Eng. L. Rev. 831 (1997)
Kamen, Al and Nakashima, Ellen, Bush Picks as Diverse as
Clinton's, Wash. Post, March 30, 2001, at A27
Lyles, Kevin L., The Gatekeepers: Federal District Courts in
the Political Process 21 (1997)
Michigan Supreme Court Task Force on Racial/Ethnic Issues in
the Courts, Final Report (1989)
Montesquieu, Baron de (Charles de Secondat), 1 The Spirit of the
Laws (Cohler, Anne et al. eds., Cambridge Univ. Press 1999)
Myrdal, Gunnar, 2 An American Dilemma: The Negro Problem
and Modern Democracy (Transaction Publishers 2000) (1944)
Newman, Lawrence, ABA Section of Legal Education and
Admissions to the Bar, Recommendation on Standard
New York State Judicial Comm'n on Minorities, Report of the
New York State Judicial Comm'n on Minorities, 19 Fordham
Urb. L. J. 181 (1992)
O'Connor, Sandra Day, Public Trust as a Dimension of Equal
Justice, Court Review 10 (Fall 1999)
O'Connor, Sandra Day, Thurgood Marshall: The Influence of
a Raconteur, 44 Stan. L. Rev. 1217 (1992)
Oregon Supreme Court, Report of the Oregon Supreme Court
Task Force on Racial/Ethnic Issues in the Judicial System, 73
Or. L. Rev. 823 (1994)
Press Release, American Bar Association, ABA President
William G. Paul Creates ABA Legal Opportunity Scholarship
Fund (Aug. 10, 1999)
Racial Fairness Implementation Task Force of the Supreme
Court of Ohio, Progress Report (2001)
Rattman, David B., and Tomkins, Alan J., Public Trust and
Confidence in the Courts: What Public Opinion Surveys
Mean to Judges, Court Review (Fall 1999)
Rawls, John, Political Liberalism (Columbia Univ. Press 1996)
Schiflett, Kathy, Kentucky Court of Justice, Kentucky's Court
of Justice Racial/Ethnic Fairness Task Force and
Commission Initiatives (2001)
Second Circuit Task Force on Gender, Racial and Ethnic Fairness
in Courts, Report of the Working Committees to the Second
Circuit Task Force on Gender, Racial and Ethnic Fairness in
Courts, 1997 Ann. Surv. Am. L. 117 (1997)
State Yellow Book, Leadership Directories, Inc. (2001)
Tennessee Supreme Court Comm. to Implement the
Recommendations of the Racial and Ethnic Fairness
Commission and Gender Fairness Comm'n, 2001 Annual
Tobias, Carl, Increasing Balance on the Federal Bench, 32 Hous.
L. Rev. 137 (1995)
Tyler, Tom R., Multiculturalism and the Willingness of Citizens
to Defer to Law and to Legal Authorities, 25 Law & Soc.
Inquiry 983 (2000)
Young, Iris Marion, Inclusion and Democracy (2000)
The American Bar Association respectfully submits this brief as
amicus curiae in support of the University of Michigan Law School's use of
race as a factor in making admissions decisions.1
INTEREST OF THE AMICUS CURIAE
1 This brief is filed with the consent of appellants, appellees, and
intervenors. Amicus curiae ABA states that this brief has not been authored in
whole or in part by counsel for a party and that no person or entity, other than
amicus, its members, or its counsel, has made a monetary contribution to the
preparation or submission of this brief.
The American Bar Association ("ABA"), with more than 400,000
members, is the leading national membership organization of the legal
profession.2 In serving "the public and the profession by promoting justice,
professional excellence and respect for the law," the ABA pursues the
following important goals, among others: (1) "to promote improvements in
the American system of justice;" (2) "to achieve the highest standards of
professionalism, competence and ethical conduct;" (3) "to advance the rule of
law in the world;" and (4) "to promote full and equal participation in the legal
profession by minorities, women and persons with disabilities." American Bar
Association, ABA Policy and Procedures Handbook 1-2 (2000) (hereinafter
"ABA Policy Handbook").
As the principal voice of the legal profession, the ABA has the
expertise--and the obligation--to address the issues presented in this case. For
more than three decades, the ABA has promoted and defended racial and ethnic
diversity as crucially important to legal education, the practice of law, and the
administration of justice. The district court's decision undermines not only the
2 Neither this brief, nor the decision to file it, should be interpreted to reflect
the views of any judicial member of the American Bar Association. No
inference should be drawn that any member of the Judicial Division Council
has participated in the adoption or endorsement of the positions in this brief.
This brief was not circulated to any member of the Judicial Division Council prior to filing.
quality of legal education, but also the country's ability to ensure equal justice
and the rule of law. Few matters affect so fundamentally the interests of the ABA.
The value of racial and ethnic diversity in education is no longer
seriously disputed. Indeed, it is not disputed in this case. Appellees concede,
Tr. of Closing Arguments, Feb. 16, 2001, at 24-25, and the district court
acknowledged, Grutter v. Bollinger et al., No. 97-CV-75928, at 47 (E.D.
Mich. March 27, 2001), that wide diversity of students and faculty provides a
superior education for all law students. That proposition is fundamental to the
holding that "[s]eparate educational facilities are inherently unequal," Brown v.
Board of Educ. of Topeka, 347 U.S. 483, 495 (1954), and is essential to the
holding in Regents of the University of California v. Bakke, 438 U.S. 265
(1978). Even before Brown, the Supreme Court held that "[t]he law school,
the proving ground for legal learning and practice, cannot be effective in
isolation from the individuals and institutions with which the law interacts."
Sweatt v. Painter, 339 U.S. 629, 634 (1950).
Not long ago, this country not only denied the value of diversity,
but actively sought to prevent it. The ABA, for example, excluded African
Americans from membership until 1943. See 68 Annual Report of the
American Bar Association 110 (1943). The ABA and the country have taken
significant steps to put that embarrassing history behind us; we no longer
question the right and need of African Americans to be full and effective
participants in national life, nor the value of that participation. Yet African
Americans and other minorities still are not full and effective participants in
the legal system. We must not now abandon our course of the last half
century, which has moved us closer to achieving our crucial, but as yet
unrealized, goal of equal participatory citizenship for all persons.
The ABA Commission on Racial and Ethnic Diversity in the
Profession recently concluded:
[T]he legal profession--already one of the least integrated
professions in the country--threatens to become even less
representative of the citizens and society it serves. . . . If legal
employers--and the profession more broadly--are to remain
competitive in the twenty-first century, the profession cannot
afford to ignore the obstacles to full and equal racial integration.
Elizabeth Chambliss, American Bar Association, Miles to Go 2000: Progress of
Minorities in the Legal Profession x (2000) (hereinafter "Miles to Go 2000").
The Commission found, in particular, that: (1) approximately ten percent of
lawyers are minorities; (2) minority entry into the profession has slowed
considerably since 1995; (3) minority participation in senior legal positions
remains insignificant; (4) progress has been particularly slow for minority
women; and (5) minorities face continuing obstacles to "full and equal"
participation in the profession. Id. at v-vi.3
3 Combined African American and Hispanic representation among lawyers
was seven percent in 1998; the only professions with lower levels of African
American and Hispanic representation were dentists (4.8 percent) and natural
scientists (6.9 percent). Miles to Go 2000 at v.
Because appellants have addressed the compelling governmental
interest in providing a diverse legal education, the ABA will not discuss that
point here.4 Without diversity in legal education, however, there can be no
diversity in the legal profession or the judicial system. That undeniable fact
points to two additional compelling governmental interests sufficient to
warrant the consideration of race in law school admission decisions, to which
this brief is devoted. First, diversity of the bar is essential to fulfilling the
legal profession's paramount purpose of providing representation to all.
Second, diversity is fundamental to fostering the public's perception that our
legal system is fair, unbiased, and inclusive, thereby preserving and enhancing
the public's trust and confidence in our system of government.
- DIVERSITY OF THE BAR IS VITAL TO ITS ABILITY TO SERVE
ALL AMERICANS FULLY AND FAIRLY.
A generation before the Civil War, Alexis de Tocqueville observed:
If oppressed, [Negroes] may bring an action at laws, but they will
find none but whites among their judges; and although they may
legally serve as jurors, prejudice repels them from that office.
4 Likewise, the ABA does not address the narrow tailoring question because
the University of Michigan has ably done so.
1 Alexis de Tocqueville, Democracy in America 359 (Vintage Books, 1990)
(1835) (hereinafter "Democracy in America").
Over time, we have come to understand the wisdom animating his
Lawyers serve society as guardians of the rights and liberties of all
Comm'n on Racial and Ethnic Diversity in the Profession, American Bar
people regardless of race, color, or creed. The legal profession
cannot preserve this responsibility and privilege without reflecting
the many races of society at all levels of service. Diversity
resonates throughout the law and must be a constant measure of
the legal profession's ability to fulfill this awesome responsibility
Association, Why Diversity? 1 (2000) (quoting Terrance M. Murphy,
Executive Director of the Chicago Bar Association).
The career of Justice Thurgood Marshall is evidence of the
importance of diversity to our system of justice. In 1929, the University of
Maryland School of Law denied him admission because of his race. See Julian
Abele Cook, Jr., Dream Makers: Black Judges on Justice, 94 Mich. L. Rev.
1479, 1483 (1996). After graduating from the Howard University School of
Law, Justice Marshall, along with other African American lawyers, devoted his
career to the litigation that ended de jure segregation in education at a time
when a virtually white bar generally would not pursue such claims. Id. at 1494
n. 10. During the 1960s, a time of unrest arising from the long-suppressed
demands by African Americans for equal participatory citizenship, President
Lyndon B. Johnson considered race as a factor in his decision to appoint Justice
Marshall first as Solicitor General, then to the Supreme Court. See, e.g.,
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 245 (1995) (Stevens, J.,
dissenting). Those undeniably race-conscious decisions contributed not only to
improving the quality of justice, but also to changing the country's and the
Supreme Court's perception of justice. As Justice Sandra Day O'Connor
Although all of us come to the Court with our own personal
Sandra Day O'Connor, Thurgood Marshall: The Influence of a Raconteur, 44
histories and experiences, Justice Marshall brought a special
perspective. . . . Justice Marshall imparted not only his legal
acumen but also his life experiences, constantly pushing and
prodding us to respond not only to the persuasiveness of legal
argument but also to the power of moral truth.
Stan. L. Rev. 1217, 1217 (1992).
As Justice Marshall's career as a lawyer and jurist demonstrates,
diversity is a source of our nation's great strength, not just for our legal
system, but for our entire government. Like the University of Michigan Law
5 Presidents Carter, Bush, and Clinton all affirmed an express commitment
to diversifying the federal bench in both gender and racial composition, and
made appointments that bore out that commitment to some degree. See, e.g.,
Carl Tobias, Increasing Balance on the Federal Bench, 32 Hous. L. Rev. 137,
140, 144-6 (1995). Likewise, the current administration has emphasized the
importance of diversity in making cabinet selections. See Statement of Clay
Johnson, President George W. Bush's Presidential Personnel Director, quoted
in Al Kamen and Ellen Nakashima, Bush Picks as Diverse as Clinton's, Wash.
Post, March 30, 2001, at A27 ("[I]f everybody comes from the same background, same
part of the country, looks the same, acts the same, it's not
[contined onto page 10]
going to be as strong . . . as if you have diversity of background, however, you
define that, of geography, ethnicity, gender.")
School, the ABA and the courts have been working to ensure that diversity also
is a strength of the bar. The decision below seriously jeopardizes that effort.
- The ABA Has Recognized the Importance of Diversity to the
Bar's Ability to Represent All Americans.
For more than thirty years, the ABA has pursued numerous
initiatives to increase the diversity of the legal profession. In 1968, the ABA
spearheaded creation of the Council for Legal Education Opportunity
(C.L.E.O.), which helps minority students overcome barriers to law school and
the legal profession. See Kenneth J. Burns, Jr., C.L.E.O: Friend of
Disadvantaged Minority Law Students, 61 A.B.A.J. 1483, 1483 (Dec. 1975).
In 1978, the ABA called upon law schools to provide "adequate and
appropriate opportunity for members of disadvantaged groups" and upon the
legal profession to provide "adequate and appropriate employment
opportunities for all persons who . . . are members of . . . groups which have
hitherto encountered discrimination in seeking employment."6
The ABA's efforts have not been merely hortatory. In its role as
the accrediting agency for American law schools, the ABA in 1980 required all
law schools to demonstrate "a commitment to providing full opportunities for
the study of law and entry into the profession by qualified members of groups,
notably racial and ethnic minorities, which have been victims of discrimination
6 American Bar Association, Report of the Task Force on the Bakke
Decision (August 1978); see also American Bar Association House of
Delegates, Resolution, 103 Reports of the American Bar Association 595, 595
(1970)) (adopting law school and legal profession recommendations as ABA
in various forms."7 American Bar Association, Standards for Approval of
Law Schools, Standard 2118 (2000 ed.) . That requirement reflects the
ABA's commitment to expanding opportunities for disadvantaged
minorities, its support of admissions programs which consider
factors, other than numerical criteria, relating to the applicant's
background and its belief that diversity in the student body and the
legal profession is important both to a meaningful legal education
and to meet the needs of a pluralistic society and profession.
7 The University of Michigan Law School appeared on the first list of ABA
approved schools in 1923. Fully approved schools are reinspected by the ABA
every seven years; the University of Michigan Law School's most recent
inspection occurred in 1999, and the school remains on the list of ABA
8 Originally Standard 212.
Lawrence Newman, ABA Section of Legal Education and Admissions to the
Bar, Recommendation on Standard 212 3 (1980).
In 1986, the ABA added to its own mission Goal IX: "To
Promote Full and Equal Participation in the Profession by Minorities and
Women," ABA Policy Handbook at 2, and created the Commission on Racial
and Ethnic Diversity in the Profession, charged with the goal of "achiev[ing] a
multi-ethnic, multicultural profession conscious and appreciative of difference
and blind to prejudice." Comm'n on Racial and Ethnic Diversity in the
Profession, American Bar Association, Goal IX Report 2000-2001 2 (2001).
The Commission initiatives supporting that goal include a judicial clerkship
program, a minority counsel program, and the Conference of Minority Partners
in Majority Law Firms. Id. at 1.
The ABA also has acted to further diversity to address critical
needs. In 1994, for example, in response to racial turmoil following the
Rodney King incident, the ABA created the Council on Racial and Ethnic
Justice, with the goals of aggressively promoting the recruitment and
promotion of attorneys of color; establishing mentoring programs for young
lawyers of color; emphasizing the hiring of people of color for clerkships; and
increasing the number of people of color serving on Bar Examination
Committees. American Bar Association, Interim Report, Achieving Justice in
a Diverse America: A Summit on Racial and Ethnic Bias in the Justice System
Finally, the ABA has acted to provide financial assistance to
ensure diversity in legal education. In announcing an ABA scholarship
program, ABA President William G. Paul noted the crucial link between
diversity in the legal profession and the rule of law:
The legal profession is the connecting link between
Press Release, American Bar Association, ABA President William G. Paul
government and the rule of law and society. [Currently,
our] society is about 30 percent persons of color . . . . The
legal profession is 92 percent white. If the connecting link
is not reflective of all society, people will lose respect for
the rule of law . . . .
Creates ABA Legal Opportunity Scholarship Fund, (Aug. 10, 1999).
- Courts Have Recognized the Need For, and Supported the
Achievement of, Increased Diversity Within the Bar.
Like the ABA, state and federal courts have widely recognized the
urgent need to address the legal profession's lack of diversity. The courts of
thirty-three states and six federal circuits have issued candid reports discussing
In 1988, the Conference of [state court] Chief Justices adopted a resolution
encouraging every chief justice "to establish . . . task forces devoted to the
study of gender bias in the court system and minority concerns as they relate to
the judicial system." Discrimination in the Courts Comm., Conference of
Chief Justices, Resolution XVIII (Aug. 4, 1988). In 1993, the Conference
adopted another resolution "[u]rging [f]urther [e]fforts for [e]qual [t]reatment
[continued onto page 15]
of [a]ll [p]ersons." Discrimination in the Courts Comm., Conference of Chief
Justices, Resolution V (Jan. 23, 1993).
the impact of bias and the lack of diversity on both the reality of their ability
to dispense justice and the public's perception. These reports document the
bias that continues to undermine our legal system.
In 1987, the Michigan Supreme Court appointed one of the
earliest task forces to study racial, gender and ethnic bias, motivated by the
belief of "a disturbing percentage of citizens . . . that bias exists in the
Michigan Court system." Michigan Supreme Court Task Force on
New York's study, for example, concluded: "[T]here are two justice
systems at work in the courts of New York State, one for Whites, and a very
different one for minorities and the poor." Report of the New York State
Judicial Comm'n on Minorities, 19 Fordham Urb. L. J. 181, 186 (1992).
Racial/Ethnic Issues in the Courts, Final Report 2 (1989) (hereinafter
The Michigan Report emphasized that "[n]o segment of society is
so strategically positioned to attack minority problems as the legal profession."
Id. at 1. The study examined the representation of minorities within the
Michigan bar, among judges, quasi-judicial officers, prosecutors, and members
of the State Attorney General's Office and found that the "absence of
representative numbers of minorities in [these] positions affects the confidence
in and effectiveness of the system." Id. at 67. The Task Force stated that
"[d]iversity is an important goal for a quality judicial system [because] . . . the
presence of minorities in the profession increases public perception of
fairness," id. at 60, and found that "[m]inority presence [in the Michigan bar
and on the benches of the State] is inadequate . . . on the benches of the State."
Id. at 67. The Task Force concluded:
The legal and judicial systems in Michigan can be judged, to a
large extent, by the ability of all attorneys, regardless of their race
or ethnic background, to attain positions of status, authority and
economic benefit. The inclusion and success of minority attorneys
in every facet of the legal profession is essential to the appearance of
fairness in the administration of justice, and is an indication of
the treatment that other minority participants may expect to
receive from that same system.
Id. at 57. The Michigan Task Force made numerous recommendations to
increase the presence of minorities in the bench, bar, and law schools. Id. at
67-70.11 Other state courts and federal circuits have reached similar
For example, the District of Columbia Circuit's study noted that judicial
diversity "creates a milieu in which the entire judicial system benefits from
multi--faceted experiences with individuals who came from different
backgrounds." A. Leon Higginbotham, Jr., Seeking Pluralism in Judicial
Systems: The American Experience and the South African Challenge, 42 Duke
L.J. 1028, 1037 (1993), cited in Report of the Special Committee on Race and
Ethnicity to the D.C. Task Force on Gender, Race and Ethnic Bias, 64 Geo. Wash. L. Rev. 189, 223-24 (1996) (hereinafter "D.C. Task Force Report").
It concludes: "The Committee's work identified a significant disparity between
the racial and ethnic composition of the courts and that of the community . . . .
Input from diverse voices in chambers can help to increase the understanding
of and responsiveness to the minority litigants and the community at large that
are affected by the courts' rulings." Id. at 333. See also Report of the
Working Committees to the Second Circuit Task Force on Gender, Racial and
[continued onto page 18]
Ethnic Fairness in the Courts, 1997 Ann. Surv. Am. L. 117, 376 (1997)
(hereinafter "Second Circuit Task Force Report") ("White male attorneys and
judges tend to observe a world in which gender, race and ethnicity do not
matter, and judges, irrespective of gender, tend to share the view of white male
attorneys that race and ethnicity do not matter.").
conclusions and made similar recommendations.12
- Diversity in the Bar Is Vital to the Attorney-Client Relationship.
See, e.g., The Racial Fairness Implementation Task Force of the Supreme
Court of Ohio, Progress Report 4 (2001); Kathy Schiflett, Kentucky Court of
Justice, Kentucky's Court of Justice Racial/Ethnic Fairness Task Force and
Commission Initiatives 2 (2001); Tennessee Supreme Court Comm. to
Implement the Recommendations of the Racial and Ethnic Fairness
Commission and Gender Fairness Comm'n, 2001 Annual Report (2001);
Report of the Oregon Supreme Court Task Force on Racial/Ethnic Issues in the
Judicial System, 73 Or. L. Rev. 823, 843, 917 (1994).
The courts are the ultimate arbiters of the rules that govern our
society and the relationships among those within it. The central function of
lawyers is to understand the interests of all individuals and groups and
zealously to pursue those interests in court. For legal representation to be
meaningful, all individuals and groups within our society must have access to
lawyers of their choice. Achievement of that goal requires a racially and
ethnically diverse legal profession.
First, lawyers must be willing to represent vigorously the interests
of all individuals and groups, even in the face of the most powerful opposition.
As a matter of historical fact, African American lawyers had the courage and
commitment to attack and to dismantle de jure segregation, despite widespread
intimidation. History teaches that lawyers of the same racial or ethnic group as
the aggrieved plaintiffs are at times uniquely willing to pursue the
representation of unpopular interests that they share with their clients.
Second, lawyers must be able to satisfy "the imperative need for
confidence and trust" of their clients. Trammel v. United States, 445 U.S. 40,
51 (1980). For some matters, clients will confide more fully in a lawyer who,
as a result of common experiences or heritage, is capable of true empathy:
Effective access to legal representation not only must exist in fact,
it must also be perceived by the minority law consumer as existent
so that recourse to law for the redress of grievance and the
settlement of disputes becomes a realistic alternative to him.
Communication with counsel is not only cognitive in nature; it
also contains much which is affective.
Erwin N. Griswold, Some Observations on the DeFunis Case, 75 Colum. L.
Rev. 512, 517 (1975).13 Representation of disadvantaged groups "depend[s]
for [its] effectiveness on the ability of the [lawyers] to attain the confidence,
respect, cooperation of (and sometimes a collaborative relationship with)
community residents." Jon C. Dubin, Faculty Diversity as a Clinical Legal
Education Imperative, 51 Hastings L.J. 445, 469 (2000) (hereinafter "Faculty
A lawyer's ability to represent a client may turn on the threshold issue of
communication. When legal services offices in New York's Chinatown were
closed, "many Chinatown residents, unable to speak English, [were exposed to
the] risk of being cut off from legal help because they are unlikely to cross the
cultural and linguistic divides . . . ." David Barringer, Downsized Justice, 82
A.B.A.J. 60, 63 (Jul. 1996). Often migrant workers are similarly
disadvantaged: "In Michigan . . . 90 percent of the 160,000 seasonal workers
are . . . predominantly Spanish-speaking." Id.
A client's trust and confidence are necessary not only to elicit the
client's disclosures and interests, but also to enable the lawyer to secure the
cooperation of the client in accepting as final the judicial resolution of
conflicts. Diversity promotes trust and confidence both by increasing minority
participation in the bar and judicial systems and by promoting understanding of
perspectives of minorities among all participants within that system.14
Because minority communities often have been ignored by public service
providers, including lawyers, teachers, and police, "diversity in public service
employment often furthers pressing operational and functional needs in
communities of color." Faculty Diversity at 469.
[E]ffective crime prevention and solution depend heavily on the
public support and cooperation which result only from public
[continued onto page 24]
respect and confidence in the police. In short, the focus is not on
Detroit Police Officers' Ass'n v. Young, 608 F.2d 671, 696 (6th Cir. 1979).
the superior performance of minority officers, but on the public's
perception of law enforcement officials and institutions.
"Police" could be replaced just as easily by "lawyers," "courts," or "judiciary."
* * *
If the American bar is to represent all Americans ably, it must
reflect the diversity of America. That is not, as some have argued, because
only an African American lawyer can adequately represent an African
American client. Rather, as we stated in our amicus brief in Bakke, it is that
"the interchange of ideas between lawyers of varied backgrounds enhances
their ability to deal effectively with the problems they confront. Diversity
among members of the bar will help make the legal profession more responsive
to the needs of all segments of our heterogeneous society." (Brief of the
American Bar Association, Amicus Curiae at 11, filed June 10, 1977, Regents
of the University of California v. Bakke (No. 76--811) (U.S.)) (hereinafter
"ABA Bakke Brief .")
- DIVERSITY IS NECESSARY TO ENSURE THE EFFECTIVENESS
AND LEGITIMACY OF THE LEGAL SYSTEM.
The effectiveness of the judicial system as the ultimate arbiter of
legal disputes in our society depends upon all ethnic and racial groups'
acceptance of the system's legitimacy, which in turn depends upon the legal
profession's ability to elicit those groups' confidence and cooperation. Such
widespread acceptance is recent, tentative, and evolving.
A hundred years ago, minorities' distrust of the system was
entrenched: "[T]he Negro is coming more and more to look upon law and
justice, not as protecting safeguards, but as sources of humiliation and
oppression." W. E. B. Du Bois, The Souls of Black Folk 123 (Bantam 1989)
(1903). Half a century later, Gunnar Myrdal observed such distrust to be a
continuing political and social reality:
The Negroes, on their side, are hurt in their trust that the law is
impartial, that the court and the police are their protection, and,
indeed, that they belong to an orderly society which has set up this
machinery for common security and welfare. They will not feel
confidence in, and loyalty toward, a legal order which is entirely
out of their control and which they sense to be inequitable and
merely part of the system of caste suppression.
2 Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern
Democracy 525 (Transaction Publishers 2000) (1944). The judicial system
doubtless has changed for the better. Yet, despite decades of effort to
eliminate the causes of distrust, many Americans still question the system's
fairness. Because minorities are unequal participants in the legal system, there
remains a widespread perception that the judicial system harbors an abiding
This distrust of the judicial system corrodes our core values. Our
government, and in particular the judiciary, depends for its legitimacy and
effectiveness upon the public's belief in its fairness, which depends upon the
system's inclusiveness. The continuing lack of diversity fosters the perception
that the system favors the interests of the dominant white majority at the
expense of racial minorities and thereby undermines public confidence in our
government and its ability to function effectively. There can be no
governmental interest more compelling than preserving the public's faith in,
and the effectiveness of, our system of government. That is especially true of
the judicial branch, whose legitimacy and effectiveness is uniquely dependent
upon its continuing ability to command respect as the embodiment of the rule
The Supreme Court has recognized both the need for and the
constitutionality of race-conscious decisions to preserve democratic
government. In its legislative redistricting cases, the Court repeatedly has held
that it "never has held that race-conscious state decisionmaking is
impermissible in all circumstances." Shaw v. Reno, 509 U.S. 630, 642 (1993).
To the contrary, a state may consider race in drawing legislative districts unless
"the legislature's motive was predominantly racial, not political." Hunt v.
Cromartie, --U.S.--, 121 S.Ct. 1452, 1458 (2001); see also Shaw v. Hunt, 517
U.S. 899, 904-5 (1996); Bush v. Vera, 517 U.S. 952, 959 (1996). The same
compelling interest that permits consideration of race in redistricting cases is
present here: preserving the legitimacy of democratic government by ensuring
the meaningful inclusion of all citizens.
[T]here is another way in which 'race-as-a-factor' may enter the
districting calculus. As with the Harvard admissions plan
[described in Bakke], states may use race as a 'plus factor,' as one
element among many that determines the shape districts take. . . .
[A] legislature without minority representation is less likely to be
perceived as legitimate by the polity in general, or by the minority
groups over whom it exercises power. Indeed, from this
perspective Justice O'Connor's statement [in Shaw v. Reno] that
'appearances do matter' seems right. The Court has recognized
that legitimacy is, in large part, a function of appearance . . .
[and] is also acutely aware of the compelling interest states have in
ensuring that members of minority groups believe they have a
stake and a role in the political process.
T. Alexander Aleinikoff and Samuel Issacharoff, Race and Redistricting:
Drawing Constitutional Lines After Shaw v. Reno, 92 Mich. L. Rev. 588, 649
- Many Perceive the Bar and Judiciary as Hostile to Minorities.
Numerous studies have documented the widespread perception that
racial and ethnic bias pervade our legal system. A 1999 ABA study found that
47 percent of those surveyed disagreed or strongly disagreed with the statement
that "in most cases, the courts treat all ethnic and racial groups the same."
Philip S. Anderson, Justice and Inequality Don't Mix, 85 A.B.A.J. 6, 6 (May
1999). Another recent poll found that 92 percent of African American lawyers
believe the justice system is as racially biased as other segments of society, see
Terry Carter, Divided Justice, 85 A.B.A.J. 42, 43 (Feb. 1999); yet another
found that only 18 percent of African American federal judges believe that the
judicial system treats African Americans fairly. See Kevin L. Lyles, The
Gatekeepers: Federal District Courts in the Political Process 237 (1997). Still
another survey revealed that "[s]ixty-eight percent of African Americans said
that African Americans were treated worse in the court system than whites;
43% of whites and 42% of Hispanics agreed." David B. Rattman and Alan J.
Tomkins, Public Trust and Confidence in the Courts: What Public Opinion
Surveys Mean to Judges, Court Review, Fall 1999, at 4 (internal citations
omitted). In light of such findings, Justice O'Connor has observed that "[t]he
perception that African Americans are not afforded equality before the law is
pervasive, and it requires us to take action at every level of our legal
system . . . ." Sandra Day O'Connor, Public Trust as a Dimension of Equal
Justice, Court Review, 10, 11 (Fall 1999) (emphasis added). By far, the most
important action necessary to change this perception of inequality is to ensure
diversity in law schools, which is the sine qua non of diversity in the judicial
Diversity of the bar and bench is crucial to the perceived fairness
of the legal system. "The makeup of the legal profession is one of the factors
that people look to in forming their perceptions of whether the justice system
will treat them fairly. . . ." Mark Hansen, And Still Miles to Go, 85 A.B.A.J.
68, 68 (Feb. 1999) (quoting Jose E. Gaitan, Chair, ABA Comm'n on Racial
and Ethnic Diversity in the Profession); see also Roscoe C. Howard, Jr.,
Getting It Wrong: Hopwood v. Texas and Its Implications for Racial Diversity
in Legal Education and Practice, 31 New Eng. L. Rev. 831, 869 (1997)
("Trust is the foundation of the judicial system, and people must believe that
the system is fair. But trust is difficult to obtain when there appears to be a
systematic exclusion of certain races and ethnicities--the same groups who have
historically borne the brunt of the system's punishment"); Second Circuit Task
Force Report at 143-44; D.C. Circuit Task Force Report at 195; Tom R. Tyler,
Multiculturalism and the Willingness of Citizens to Defer to Law and to Legal
Authorities, 25 Law & Soc. Inquiry 983, 1008-09 (2000) (summarizing social
science findings that identification of the governed with authority groups
makes authorities more effective).
- The Government Has a Compelling Interest in a Diverse Bar to
Foster and Maintain Public Confidence in the Judicial System.
The Framers of our government designed the judicial system to:
guard the Constitution and the rights of individuals from the
The Federalist No. 78, at 440 (Alexander Hamilton) (Isaac Kramnick ed.,
effects of those ill humors which the arts of designing men, or the
influence of particular conjunctures, sometimes disseminate
among the people themselves, and which, though they speedily
give place to better information, and more deliberate reflection,
have a tendency, in the meantime, to occasion dangerous
innovations in the government, and serious oppressions of the
minor party in the community.
Penguin Classics, 1987).
The judiciary's role in checking the majority's will is a difficult
task, made more difficult when entrusted to the branch of government whose
power is "next to nothing," having "neither [f]orce nor [w]ill but merely
judgment." Id. at 437 (quoting, in part, 1 Baron de Montesquieu (Charles de
Secondat) The Spirit of the Laws 160 (Anne Cohler et al. eds., Cambridge
Univ. Press 1999) (1748)). The ability of the judiciary to discharge its
constitutional responsibilities "ultimately rests" on "public confidence in it,"
United States v. Johnson, 323 U.S. 273, 276 (1944); see also Mistretta v.
United States, 488 U.S. 361, 407 (1989) ("The legitimacy of the Judicial
Branch ultimately depends on its reputation for impartiality and
nonpartisanship."). Courts thus must "take care to speak and act in ways that
allow people to accept" their decisions. Planned Parenthood v. Casey, 505
U.S. 833, 865 (1992). They must guard against perceptions that "destroy the
appearance of justice and thereby cast doubt on the integrity of the judicial
process." Rose v. Mitchell, 443 U.S. 545, 555-56 (1979).
In its decisions prohibiting the exclusion of minorities from jury
service, the Supreme Court expressly has recognized the importance of racial
inclusiveness to the perceived fairness of the legal system. Those cases rest
upon two principles of great importance to this case. The first concerns the
harm minorities suffer when they are excluded from the "machinery of
justice." Powers v. Ohio, 499 U.S. 400, 406, 410 (1991) (discussing "stigma
or dishonor" of inability to participate in justice system). The second is that
public confidence in the courts depends upon avoiding the perception of
unfairness that results from lack of participation. In Powers, the Court
concluded that discrimination in jury selection undermines public confidence in
the administration of justice and "invites cynicism" regarding the impartiality
of the system. Id. at 412; see also Batson v. Kentucky, 476 U.S. 79, 87 (1986)
("The harm from discriminatory jury selection extends beyond that inflicted on
the defendant and the excluded juror to touch the entire community.").15 In
See Peters v. Kiff, 407 U.S. 493, 503-04 (1972) ("[W]e are unwilling to
make the assumption that the exclusion of Negroes has relevance only for
issues involving race. When any large and identifiable segment of the
community is excluded from jury service, the effect is to remove from the jury
room qualities of human nature and varieties of human experience, the range
of which is unknown and perhaps unknowable. It is not necessary to assume
that the excluded group will consistently vote as a class in order to conclude, as
we do, that its exclusion deprives the jury of a perspective on human events
that may have unsuspected importance in any case . . . .").
these cases, the Court has repeatedly held that the perceived fairness of the
judicial system rests upon its racial inclusiveness:
[B]e it at the hands of the State or the defense, if a court allows
Georgia v. McCollum, 505 U.S. 42, 49-50 (1992) (internal quotations and
jurors to be excluded because of group bias, [i]t is [a] willing
participant in a scheme that could only undermine the very
foundation of our system of justice--our citizens' confidence in it.
citations omitted). The Court has been concerned not merely with the role of
minorities on jury panels, but also with the ability of the judicial system to
function if perceived as exclusionary. Exclusion of minorities from juries "not
only violates our Constitution and the laws enacted under it but is at war with
our basic concepts of a democratic society and a representative government."
Smith v. Texas, 311 U.S. 128, 130 (1940).
Large segments of the minority population today continue to view
the judicial system as unfair and even racist. Those views are directed not only
at judicial officers, but also at attorneys. Many people of color, exposed to a
branch of government in which the participants with power are
overwhelmingly white, understandably feel excluded, and therefore dismiss the
system as illegitimate. Such rejection is antithetical to democratic government,
which has a compelling interest in promoting confidence in the judicial system.
A quarter century ago, the ABA noted: "The visible participation of
minorities in the administration of law and justice gives to members of the
minority community a greater sense of confidence in the operation of the
judicial system." ABA Bakke Brief at 15 (citing Griswold, supra, at 518).
Today, this nation's fundamental interest in maintaining the legitimacy and
effectiveness of the judicial system is even clearer:
The ideal of American democracy--equal justice under law--
American Bar Association, Report of the Committee on Diversity in Legal
ultimately must rest on public confidence that the system of justice
is fair and even-handed in its treatment of all people regardless of
their status or condition. Thus, it is essential that all of the people
of our nation be able to sustain an abiding trust in the fairness of
the rule of law. Otherwise, they may not be willing to obey the
law. As we all know, . . . that trust has been severely tested. . . .
We can help allay this mistrust by making sure that the future
lawyers, judges, and law teachers of this country are more
representative than they now are of the nation as a whole. The
need to diversify the legal profession is not a vague liberal ideal; it
is an essential component of the administration of justice. The
legal profession must not be the preserve of only one segment of
our society. Instead, we must confront the reality that if we are to
remain a government under law in a multicultural society, the
concept of justice must be one that is shared by all our citizens.
Unless law schools--the gateway to the profession--are able to
maintain diversity by providing broad access to legal education,
these goals will be unattainable.
Education 7-8 (1998).
- The Government Has a Compelling Interest in a Diverse Bar to
Preserve and Enhance Public Confidence in the Government as a Whole.
One hundred and seventy years ago, Alexis de Tocqueville
The government of democracy is favorable to the political power
Democracy in America at 275. Time has proven his observation true.
of lawyers; for when the wealthy, the noble, and the prince are
excluded from the government, the lawyers take possession of it,
in their own right, as it were, since they are the only men of
information and sagacity, beyond the sphere of the people, who
can be the object of popular choice.
Lawyers and judges constitute barely one-half of one percent of the adult
population. However, 26 of the 43 Presidents of the United States were
educated as lawyers. See The Book of Political Lists 21 (Blake Eskin ed.,
1998). Presently, 23 of 50 Governors, 52 of 100 Senators, and 159 of 435
Representatives have a legal education. See State Yellow Book, Leadership
Directories, Inc. (2001); Congressional Yellow Book, Leadership Directories,
Inc. (2001). And, of course, the 30,000 or so federal, state and local judges
throughout the United States are lawyers. U.S. Dept. of Commerce, Bureau of
the Census, 1990 Census of Population (1990). Direct participation in
government is heavily skewed in favor of those with a legal education.
The compelling interest of a democratic government in ensuring
that all elements of society participate in its operation is beyond doubt. As
Justice Lewis Powell stated in Bakke, "it is not too much to say that the
'nation's future depends upon leaders trained through wide exposure' to the
ideas and mores of students as diverse as this Nation of many peoples." Bakke,
438 U.S. at 313 (quoting Keyishian v. Board of Regents, 385 U.S. 589, 663
(1967)). "It is essential to [a republican] government that it be derived from
the great body of society, not from an inconsiderable proportion, or a favored
class of it . . . ." The Federalist No. 39, at 255 (James Madison) (emphasis in
That is so because "the normative legitimacy of a democratic
decision depends on the degree to which those affected by it have been
included in the decision-making process and have had the opportunity to
influence the outcomes." Iris Marion Young, Inclusion and Democracy 5
(2000); see also John Rawls, Political Liberalism 15-22 (Columbia Univ. Press
1996). The law occupies a special place among institutions of democracy
because it helps to instill a common civic culture and a sense that society is
To ensure that our legal system is fundamentally fair, and
perceived to be so, it must be accessible to all. To ensure such accessibility,
we must be vigilant to ensure the continuing inclusion of people from all
segments of our society on the bench, at the bar, and in the law schools. As
the ABA said in the Bakke case:
[L]egal training is often a stepping stone or prerequisite to
ABA Bakke Brief at 13. As our country grows ever more diverse, the need for
political, governmental and judicial careers where representation
by persons familiar with the interests of the various segments of
society is particularly important. Programs designed to increase
the number of minority students who receive legal training help
insure that the needs of many of society's underrepresented groups
will not be forgotten or minimized. Minority group members in
political and governmental positions not only will represent people
of similar backgrounds but also will apprise their colleagues of
their particular group's interests, thus furthering the ultimate goal
of having politicians and administrators, irrespective of race or
ethnic origin, effectively represent all of society.
diversity in law school classrooms grows ever more compelling.
For the reasons above, the ABA respectfully urges this Court to
reverse the decision below.
May 31, 2001
Martha W. Barnett
American Bar Association
Paul M. Dodyk
Rowan D. Wilson
Farah S. Brelvi
Charles J. Ha
Kenneth E. Lee
Alexandra S. Wald
750 North Lake Shore Drive
Chicago, Illinois 60611
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