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State Bar plans to join amicus brief

Gov. James M. Brennan

The State Bar of Wisconsin has decided to join an amicus brief supporting the University of Michigan Law School in a lawsuit challenging the school’s use of race as a factor in admissions. During its recent meeting, the Board of Governors garnered enough supporting votes to provide the two-thirds necessary to file or join an amicus brief.

The board spent more than an hour debating the merits of joining as an amicus in the affirmative action case, Barbara Grutter v. Lee Bollinger, et al., which the U.S. Supreme Court will be hearing April 1.

One of the major points of discussion revolved around whether or not the mandatory bar should take a position on an issue where members had such diverse and strongly held views. In the end, the board voted 26 to 11 in support of the motion brought by Gov. James M. Brennan of the Legal Aid Society of Milwaukee, Inc.
The final tally provided one more vote than was necessary to meet the two-thirds majority.

Support for Diversity

Brennan urged the board to support the University of Michigan Law School in Grutter, which challenges the use of race as a factor in law school admissions. He noted that the University of Wisconsin Law School also considers race as one of its factors in admissions.

"One of the purposes for which the State Bar is organized is to assist and support legal education programs at the preadmissions level," Brennan said, referring the Statement of Purpose in Supreme Court Rule 10:02(2).

He expressed concern about the impact of a decision against the Michigan law school on Wisconsin’s law school. He went on to urge the State Bar leaders to support "diverse participation in the legal system."

State Bar of Wisconsin Statement of purpose SCR 10.02(2):

(2) Purposes. The purposes of the association are to aid the courts in carrying on and improving the administration of justice; to foster and maintain on the part of those engaged in the practice of law high ideals of integrity, learning, competence and public service and high standards of conduct; to safeguard the proper professional interests of the members of the bar; to encourage the formation and activities of local bar associations; to conduct a program of continuing legal education; to assist or support legal education programs at the preadmission level; to provide a forum for the discussion of subjects pertaining to the practice of law, the science of jurisprudence and law reform and the relations of the bar to the public and to publish information relating thereto; to carry on a continuing program of legal research in the technical fields of substantive law, practice and procedure and make reports and recommendations thereon within legally permissible limits; to promote the innovation, development and improvement of means to deliver legal services to the people of Wisconsin; to the end that the public responsibility of the legal profession may be more effectively discharged.

Gov. Andrea-Teresa Arenas noted that this was a rare opportunity to join an amicus brief on an issue of such importance. She pointed to the positive impact that law school diversity has had on the profession and the bar.

"As an organization, we’ve benefited very significantly from being diverse," Arenas said. "The Madison law school is an example of diversity done right."

When UCLA lost the ability to consider race as a factor for admissions as a result of Proposition 209, Arenas said, "their black enrollment plummeted." She indicated that she would not like to see that happen in a broader scope as a result of the Grutter case.

UW Law School

U.W. Law School Dean Kenneth Davis Jr. attended the meeting and indicated that it would not be appropriate for him to lecture the group on diversity. However, he did tell the board that staff and students at the law school were watching the matter very closely.

"I think it’s fair to say the overwhelming majority — perhaps all — of my colleagues would support the Supreme Court affirming the Grutter decision from the Sixth Circuit [Court of Appeals]," David said.

Regarding the students, Davis said, "If I could go to them and say that this is one of the few bar associations in the United States of America that have taken an amicus position [on Grutter] that would be a tremendous message to our current students and our prospective students about the commitment of their home state on this particular issue."

Davis explained that the Wisconsin law school’s admissions policy does not specifically point to race, but expresses a desire to look at the whole individual. In a separate telephone interview, M. Beth Kransberger, the U.W. Law School assistant dean of admissions and financial aid, reiterated that idea.

"A different experience of the world because of race is one of a laundry list of factors when we are trying to put together as diverse a class as possible," Kransberger said. Additional factors go beyond test scores to include educational experiences, life experience, interests and extracurricular activities.

Kransberger said she hoped for a decision from the Supreme Court that would provide "a nice road map with clear guidelines for a school to follow when dealing with racial information in admissions."

"What we have tried to do is craft an admissions policy, which at least explains why we take things like race and ethnicity into account, with the hopes that even if Grutter is reversed … there may well be room for us to continue to work," Davis told the board. "Nonetheless, what the Supreme Court does will affect our flexibility."

Mandatory Bar

Given that the State Bar of Wisconsin is a mandatory bar, several governors expressed concerns about taking a position on an issue as highly charged as affirmative action, which was bound to alienate members.

Gov. James W. Mohr Jr. said, "There are significant matters of social policy that our membership has strong and divergent views on. I think it’s morally wrong for this bar association to adopt positions that are contrary to the views strongly held by a significant number of our members. We are a mandatory bar association, not a voluntary bar association."

Mohr, of Mohr & Anderson LLC in Hartford, indicated that he agreed with much of what had been said in support of diversity in the legal system. However, he expressed concerns about the State Bar taking positions on volatile issues such as affirmative action, abortion or gun control where there are very strong feelings from members on both sides.

He compared it to his own experience when the State Bar took a position opposing tort reform, an issue which he strongly supported.

"I was offended and I would have quit the bar if I could have," Mohr recalled.

Gov. Michelle Behnke, a solo practitioner from Madison, observed that members who disagreed with the State Bar’s position did have a tool for expressing their frustration.

The U.S. Supreme Court decision in Keller v. State Bar of California, 496 U.S. 1 (1990) limits a mandatory bar’s ability to use "compulsory dues to finance political and ideological activities." However, that statement is made with the stipulation "when such expenditures are not necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of legal services."

Behnke said, "Keller does not require that you refrain from taking positions that might fall into the political or ideological realm. It permits you to do so, so long as you provide a mechanism by which people who disagree can object or remove themselves."

Anyone who disagrees with the State Bar’s decision to join an amicus brief in support of the University of Michigan Law School has the right to request a rebate for the portion of their dues related to expenses necessary to achieve that goal, she explained.

Brennan reiterated that the State Bar’s statement of purpose required it to take action on issues affecting law school admissions.

Optional Approach

Past President Gerald Mowris urged an amendment to the original motion, which would require the board to contact members about the matter and seek feedback from them. After receiving that feedback, he wanted the Board of Governors to hold a telephone meeting to vote on the issue. If approved at that point, the Executive Committee would move forward if they found an appropriate brief to join.


State Bar of Wisconsin

"I would like to disseminate to the membership in the most expeditious manner possible the path that we are considering," Mowris said.

Several governors agreed that members should be notified about what was taking place. However, concerns were expressed regarding the ability to receive feedback and get the board together for a conference call prior to the Feb. 18 deadline for filing a brief.

The amendment was eventually defeated.

Following more than an hour of discussion, the group approved the motion to have the Executive Committee see if it could find an appropriate amicus brief to join in support of the University of Michigan Law School.

The State Bar has posted a notice of its action at the WisBar Web site (www.wisbar.org). The section contains information about the discussion and the decision. It also contains links to other Web sites with information pertaining to the case. State Bar members are invited to provide feedback to the bar at michigan-amicus@wisbar.org.

Tony Anderson can be reached by email.

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