AUSTIN – on Dec. 29, Attorney General Ken Paxton filed an amicus brief in a lawsuit challenging a sex and race quota for an open seat on the State Bar of Texas Board.
Several weeks earlier, attorney Greg Gegenheimer had sued the State Bar Board of Directors, asserting the defendants are violating the Equal Protection Clause by maintaining a race and sex-based quota scheme.
The board is currently accepting nominations for a minority-member director.
“As required by the minority-member law, the defendants are accepting nominations only from individuals who are ‘female, African-American, Hispanic-American, Native American, or Asian-American,’” the suit states.
“The defendants are prohibiting white men from being nominated or considered for the open minority-member-director position.”
Gegenheimer, a white male, wants to be considered for the open appointment.
Three days after bringing the federal action, Gegenheimer filed a motion for a preliminary injunction on Dec. 8, maintaining that he is likely to succeed on the merits of his claims that the defendants “are engaging in unconstitutional racial and sex discrimination.”
On Dec. 28, Paxton, the state’s chief attorney, filed an unopposed motion for leave to file an amicus brief, stating he “has a vested interest in the outcome of this case.”
“As Attorney General of Texas, General Paxton has a solemn responsibility to defend the constitutional rights of Texas citizens, even from state statutes,” the motion states.
“General Paxton is also a member of the State Bar of Texas and has a vested interest in ensuring that the State Bar—an organization he is required to be a member of as a condition of his profession—does not violate the Constitution.”
The next day, the motion was granted and Paxton filed his brief in support of Gegenheimer’s motion for a preliminary injunction, arguing the State Bar “has chosen the wrong tool to achieve the benefits of diversity.”
“Diversity is a worthy goal. An organization is strengthened when it can marshal a coalition of diverse thought, experiences, and backgrounds. But discrimination in the pursuit of diversity does a disservice to all involved,” Paxton’s brief states.
“And when it comes to the government, discrimination is not only a disservice, it is unconstitutional.”
While Paxton says the State Bar is to be commended for achieving diversity in its ranks, doing so through “unconstitutional discrimination does a disservice to all its members, especially when the discrimination furthers an offensive view of race and sex.”
State Bar President Frank Stevenson issued the following statement:
"The State Bar appoints four minority directors to its 46-member board as required by Texas Government Code Section 81.020, which was enacted by the Texas Legislature in 1991 and has provided seats for minority and women attorneys on the State Bar board since that time.
"Whatever the outcome of the constitutional challenge to the statute filed by Greg Gegenheimer, increasing diversity in the legal profession is a key part of the State Bar’s mission and vitally important to the State Bar and its leadership. In our increasingly diverse state, all Texans deserve a legal profession that reflects and represents their interests."
Filed in the U.S. District Court for Western Texas, Austin Division. Case No. 1:16-cv-01270-RP