The Texas Star Bar (I am not a member) imposes a straight-up quota for members of its board, explicitly reserving the seat for a “minority director,” defined as “female, African-American, Hispanic-American, Native American, or Asian-American.” White males need not apply. The Project on Fair Representation (Ed Blum’s organization) brought suit on behalf of an Austin attorney, who is a white male, alleging that the quota was unconstitutional. In most cases, the Attorney General of Texas would defend suits brought against the state institution. But not here.
General Paxton filed an amicus brief in support of the plaintiffs’ motion for a preliminary injunction. The brief argues that the quota is “patently unconstitutional.”
The State Bar has chosen the wrong tool to achieve the benefits of diversity. Instead of trust- ing its membership to vote for the most qualified candidates to collectively represent their interests, it has chosen to enforce strict racial and sex-based quotas for its leadership. But the State Bar is a government agency, and governmental quotas on race and sex are anathema to equal protection under the law. Quotas make bare the indignity of a naked racial and sex-based classification, because they define an individual’s sole worth based on an immutable trait. In the eyes of the State Bar, you either are or are not a minority member, and that single quality defines whether you can or cannot serve in a specific government role. These quotas are utterly unjustified and patently unconstitutional.
Even more suggests, the brief suggests that if the Bar wants to discriminate, it should become a “private entity.” Doing so would alleviate the antitrust issues raised in NC State Board of Dental Examiners v. FTC, as well as the proposed Model Rule 8.4(g).
If the State Bar wishes to continue to utilize race and sex-based quotas in selecting their leadership—unwise though that policy may be—it could push to become a private, voluntary bar association, like the American Bar Association. As a private entity, the State Bar would not be subject to the Equal Protection Clause scrutiny that dooms their quota system in this case. In- deed, transitioning from a governmental body to a private bar association would solve many of the serious problems that potentially exist with the State Bar.1
See, e.g., N. Carolina State Bd. of Dental Exam’rs v. F.T.C., 135 S. Ct. 1101, 1110-15 (2015) (“The Court holds today that a state board on which a controlling number of decisionmakers are active market participants in the occupation the board regulates must satisfy Midcal’s active supervision requirement in order to invoke state-action antitrust immunity.”); Tex. Att’y Gen. Op. No. KP-0123 (2016) (explaining that, if the State Bar adopted a rule of professional conduct recently proposed by the American Bar Association, it would be violating attorneys’ rights to free speech, free association, and free exercise of religion).
This is not an idle point. As Mark Pulliam notes in a recent WSJ Op-Ed, the legislation authorizing the State Bar will sunset in September 2017.