Winter 2003

ABA Submits Two Section-Sponsored Amicus Briefs

The Section is preparing amicus curiae briefs in two cases that the U. S. Supreme Court will consider in spring 2003 involving affirmative action in law school admissions decisions and criminalization of sexual conduct between consenting adults of the same sex. If the ABA approves the briefs, they will be filed by Feb. 18 and Jan. 16, respectively. The Court will hear oral arguments in the spring and will decide the cases by the end of the current term.

In Grutter v. Bollinger (02-241), the ABA brief supports the University of Michigan Law School's use of race as a factor in admissions decisions.

Grutter v. Bollinger (02-241)

The petitioner in Grutter alleges that her application for admission to the University of Michigan Law School was rejected unfairly as a result of the school's use of race as a factor in admissions, which, she said, gives minority students "a significantly greater chance of admission than students with similar credentials from disfavored racial groups." The U. S. District Court for the Eastern District of Michigan agreed, holding that the achievement of racial diversity in university admissions is not a compelling state interest because it is not a remedy to past discrimination. In May 2002, the U. S. Court of Appeals for the Sixth Circuit reversed the District Court's decision, holding that the University's race-conscious admissions policy serves a compelling state interest and is therefore constitutional.

The ABA submitted an amicus curiae brief supporting the law school in the Sixth Circuit case. Both the ABA's Supreme Court brief and its earlier Sixth Circuit brief highlight the importance of racial and ethnic diversity to the legal profession and to the country. As the national voice of the legal profession, the ABA long has promoted and defended racial and ethnic diversity as crucially important to legal education, the practice of law, and the administration of justice. In its role as the accrediting agency for American law schools, the ABA in 1980 required all law schools to demonstrate a commitment to providing full opportunities for the study of law and entry into the profession by women and minorities.

The ABA briefs also cite the importance of diversity to lawyers who serve and represent a complex society. As it notes from a 1998 Report of the Diversity Committee for the Section of Legal Education and Admissions to the Bar, "the need to diversify the legal profession is not a vague, liberal idea: it is an essential component of the administration of justice."

Pro bono drafters of the brief are Rowan D. Wilson and others at the law firm of Cravath, Swaine & Moore in New York, N. Y. Duke University School of Law Associate Dean and past IRR Section Chair James Coleman is the Section's lead person in working with the drafters to develop the brief.

Lawrence v. Texas (02-102)

Petitioners in Lawrence v. Texas ask the Court to strike down, as an unconstitutional violation of equal protection and privacy and liberty interests, a Texas law that they argue serves no legitimate government interest.

In 1998, police officers investigating a report of a weapons disturbance - later proven false - at petitioner Lawrence's private home entered the home and observed him and his partner engaging in intimate sexual conduct, prohibited under the Texas Act § 21.06, which criminalizes as "deviate sexual intercourse" certain sexual acts if performed by a same-sex couple but not if performed by an opposite-sex couple. Petitioners argue that their convictions under this law violate the equal protection guarantees and the vital interests in liberty and privacy protected under the U. S. Constitution.

The ABA amicus brief in support of petitioners emphasizes the ABA's long-standing commitment to fighting discrimination against gay men and lesbians and supporting equal protection for all persons under the law, in all spheres of live, and argues that the Texas law violates both constitutional and Rule of Law principles. ABA policy adopted in 1973 calls for the repeal of "… all laws which classify as criminal conduct any form of non-commercial sexual conduct between consenting adults in private, saving only those portions which protect minors or public decorum."

The principal authors of the brief are Beth S. Brinkmann, Seth Galanter, and Beth Borenstein of Morrison & Foerster, LLP in Washington, D. C. Patrick McGlone and Courtney Joslin, co-chairs of the IRR Committee on Sexual Orientation and Gender Identity, and Section Chair Mark Agrast,also contributed significantly to the development of the brief.

If approved and filed, both briefs will be posted on the Section's web site at http://www.abanet.org/irr.

Advertisement