“I don’t want to belong to any club that would have me as a member.” – Groucho Marx
Earlier this month, a white Austin lawyer filed a federal discrimination lawsuit against members of the Texas State Bar’s Board of Directors claiming the Bar is “violating the Equal Protection Clause by maintaining a race- and sex-based quota scheme on its Board of Directors.” Solo family law attorney Greg Gegenheimer alleged he’s being unconstitutionally discriminated against because the Texas Bar won’t consider him for one of the four board seats statutorily designated for minority members.
This is the latest of the Texas Bar’s constitutional kerfuffles. At the end of last year, Texas Governor Greg Abbott accused the Bar of religious discrimination for refusing to accredit a continuing legal education (CLE) class on Christian ethical perspectives in the legal profession sponsored by San Antonio’s St. Mary’s University School of Law.
As for Gegenheimer’s suit, Texas law states “four minority member directors appointed by the President of the State Bar” must serve on the Bar’s board. “Minority member” means a state bar member who is “female, African-American, Hispanic-American, Native American, or Asian-American.” Gegenheimer’s complaint alleges the Bar is prohibiting white men from being nominated or even considered for the open minority-member positions posted for the board.
Seriously? Why would any lawyer pick a fight to sit on any compulsory membership state bar’s governing board — unless it was to disrupt the collection of sycophants, suck-ups and social climbers that calcify there?
Legal elites detest dissenters — but if Gegenheimer wants to sit on the board as a disruptive force — well more power to him.
The preferable constitutional battle.
But a squabble over bar quotas is merely an undercard. The main event, the better bout is defending the First Amendment free speech and free association rights of Texas lawyers by eradicating compulsory membership in the Texas Bar. Now that’s the fight worth having.
And as for filling its minority-member vacancies, the Texas Bar most likely can’t persuasively argue a sufficient constitutional interest for imposing a sex and race based quota for appointments to its board. (Not to say there hasn’t been a basis for assuring some semblance of minority representation in Texas given the Lone Star State’s rather inglorious past and recent history).
Rather than contesting race and sex based numerical requirements, Texas lawyers should be revisiting the still dubious foundations of coercive bar association membership. Granted, the only compelling state interest the U.S. Supreme Court has found to justify it is improving the practice of law through the regulation of attorneys. Yet 18 states—Arkansas, Colorado, Connecticut, Delaware, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, Ohio, Pennsylvania, Tennessee, and Vermont—have already found ways to regulate attorneys without compelling membership. To say that in Texas and in 31 other jurisdictions that this interest cannot be achieved through less restrictive means, simply ignores reality. Mandating membership in any state bar association crosses “the limit of what the First Amendment can tolerate”1 when there are less restrictive means available.
Meantime, you can read Gegenheimer’s complaint here. His suit is being backed by the Project on Fair Representation, an organization which calls itself “a public interest organization dedicated to the promotion of equal opportunity and racial harmony.” It goes on to add, “The Project works to advance race-neutral principles in the areas education, public contracting, public employment, and voting.”
In actuality, I seriously doubt Gegenheimer wants to serve as one of the board’s minority-member designees. After obtaining a declaratory judgment that the minority-member law violates the Equal Protection Clause, what he really wants is a preliminary and a permanent injunction preventing the Bar from enforcing that law.
Yet the broader view is for Texas lawyers and other lawyers forced to join bar associations as preconditions to practice to instead work to protect their fundamental rights of free speech and freedom from coerced association that forces them to pay compulsory dues whether or not they subscribe to the viewpoints, activities and agendas of that association.
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1Knox v. Service Employees Intern. Union, 132 S. Ct. 2277, 2291 (2012).
Credits: Groucho Marx caricature drawn by Greg Williams via Wikipedia Commons, licensed under the Creative Commons Attribution ShareAlike 2.5 License; FirstAmendment.jpg under Attribution-NonCommercial-ShareAlike 3.0 Unported.
