Mark Pulliam Dec. 29, 2016, 11:51am


This column first appeared Dec. 26 on The Wall Street Journal

Modern America takes racial equality for granted. Discrimination based on race has been forbidden throughout the country for decades thanks to Brown v. Board of Education and the Civil Rights Act of 1964.

Yet when the State Bar of Texas advertised in October for a position on its board of directors, the posting made clear that white males need not apply. The opening is for a “minority director,” defined by state law to mean an attorney who is “female, African-American, Hispanic-American, Native American, or Asian-American.”

The state bar is not a private club. It is a public corporation operating under the supervision of the Texas Supreme Court. Joining the bar is a requirement for practicing law in Texas. Most of the bar’s 46 directors are elected by the membership. Six are non-lawyers, appointed by the Supreme Court, ironically, “without regard to race, color, disability, sex, religion, age, or national origin.”

Then there are four appointed “minority directors.” This category was created in 1991 by the state legislature, which was then controlled by Democrats. But is it constitutional for state law to exclude white males from these board seats?

Greg Gegenheimer, an Austin family-law attorney, thinks not. On Dec. 5, Mr. Gegenheimer, who is white, filed a lawsuit in federal court alleging racial discrimination by the Texas bar. The case was filed with the assistance of the nonprofit Project on Fair Representation, which has sponsored numerous cases that have made it to the U.S. Supreme Court, including Fisher v. University of Texas and Shelby County v. Holder.

Embarrassingly, an organization that serves as an agency of Texas’s judiciary must defend a racial and gender quota system that is almost certainly illegal. The Texas attorney general will not be representing the state bar. Instead, the state bar has retained a large Houston law firm, Vinson & Elkins, to defend the quota.

The law is well settled. In legal parlance, race is a “suspect classification” subject to “strict scrutiny.” Laws discriminating on the basis of race can only be upheld if they are the least-restrictive means of promoting a “compelling state interest.” Aside from a narrow (and tenuous) exception for affirmative action in college admissions, racial quotas are especially disfavored because “racial balance is not to be achieved for its own sake,” as the U.S. Supreme Court held in Freeman v. Pitts (1992).

What is the “compelling state interest” for reserving minority seats on the bar’s board of directors? Presumably the legislature wanted to ensure adequate “diversity.” If this was a concern in 1991, it isn’t today. Minorities and women are well-represented on the bar’s board, certainly in proportion to its membership.

Judging by the state bar’s website, of the 42 directors selected outside of the quota, roughly 40% qualify as “minorities” under the statutory definition. That isn’t bad considering that the site elsewhere notes that 81% of the bar’s members are white, and 65% are male.

The board’s chairman is Hispanic. In 2013-14 the bar elected an African-American woman as its president. The state Supreme Court had a black chief justice, Wallace Jefferson, from 2004-13. Even if racial quotas were legal, they clearly are no longer necessary.

Moreover, these racial quotas undercut the board’s purpose, which is to provide balanced and responsible oversight. Attorney groups tend to lean liberal (look at the American Bar Association), and the Texas bar’s state-enforced monopoly, conferred through compulsory membership, exacerbates that tendency by insulating the organization from market forces.

The bar offers “sections”—in essence, professional and social cliques—that run the gamut of identity politics: African-American Lawyers, Hispanic Issues, LGBT Law, Native American Law, Women and the Law, and so forth. Yet the function of the bar is to serve and regulate the legal profession, not promote activist causes.

Under Texas’s sunset law, the state bar will cease to exist on Sept. 1, 2017 unless it is reauthorized by lawmakers in the session that begins in January. This would be a good opportunity for legislators to reconsider the wisdom of racial quotas. Twenty-five years is a long time, and the archaic minority-quota law, passed in 1991 when Democrat Ann Richards was governor, is overdue for repeal. Otherwise, it will be up to the federal courts, following the logic of the civil-rights movement, to strike down the racial and gender quota for good.

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