Fisher: Continuing the BBA’s Amicus Tradition

On Monday, the BBA joined more than 70 other amici when it filed its brief in Fisher v. University of Texas, et. al, a case examining whether the use of race in the admissions policy at University of Texas (Austin) is permitted under the Equal Protection Clause of the 14th Amendment.  According to a statement released by the University of Texas, the BBA is in the company of a wide range of other amici, including the Association of American Medical Colleges, a group of 57 Fortune 100 American businesses and 17 United States Senators, including Massachusetts’ own Senator John Kerry.

Fisher is the first federal litigation challenging the use of race in university admissions since the Supreme Court’s 2003 decision upholding the University of Michigan Law School’s race-conscious admissions process in Grutter v. Bollinger.  The BBA also submitted an amicus brief in Grutter.

The BBA’s brief in Fisher was drafted by Jonathan M. Albano, a partner at Bingham McCutchen and member of the BBA’s Council, along with his colleagues Deana K. El Mallawany and Caleb Schillinger.  In its brief, the BBA supports the limited use of race in the admissions process on the basis that this practice is crucial to advancing diversity and inclusion in the community and, specifically, in the legal profession.

The BBA considers the strategic use of amicus briefs an important public policy tool.  At the same time the BBA has a stringent test to determine whether to file an amicus brief – does it affect our membership, the legal profession or our community in a significant way.  The topics on which we file amicus briefs are broad and varied and are connected to what we do as an institution daily — facilitating access to and the administration of justice for all, improving the laws of the Commonwealth and advancing diversity and inclusion.  A sampling of our amicus briefs filed in the past reflects these values.

Access to and the administration of justice for all-

In 2010, Jonathan Albano wrote another amicus brief for the BBA in REBA v. National Real Estate Information Services (NREIS) and NREIS Inc.  The BBA’s brief focuses on the First Amendment rights of private parties, including bar associations, to file reasonably based claims for judicial relief without being held liable for damages or attorneys’ fees.

In June of 2004, the BBA submitted a brief in the case of Lavallee et al v. The Justices of the Hampden Superior Court and Carabello et al v. In this brief the BBA notes the failure of the Commonwealth to sufficiently fund criminal defense services for indigents and urged increased compensation to ensure competent defense for all.

Improving the laws of the Commonwealth-

In April of 2012, the BBA filed an amicus brief in Rachel A. Bird Anderson v. BNY Mellon, N.A., et al. urging the Supreme Judicial Court to clarify estate planning law as it relates to Chapter 524 of the Acts of 2008.  This statute amends the definition of “issue” to include adopted children in pre-1958 trusts.

In January of 2011, the BBA filed an amicus brief in the case of Fathers & Families, Inc. v. Chief Justice for Administration and Management.   The brief was filed in support of maintaining the Child Support Guidelines, which the BBA felt had been filed in compliance with the Massachusetts Constitution and allowed for certainty and stability in determining child support awards.

Advancing diversity and inclusion-

The BBA’s briefs in Fisher and Grutter aren’t the only examples of briefs we’ve filed to advance diversity and inclusion.  In November of 2011, the BBA signed onto a brief in the cases of Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services, et al. No. 10-2204, and Nancy Gill et al v. Office of Personnel Management et al., No. 10-2207.  In the brief the BBA supported heightened scrutiny of classifications based on sexual orientation in order to ensure that the Constitution effectively guarantees protection for all people from invidious discrimination, whether on account of race, gender, national origin, religion, alienage, or sexual orientation.

Our amicus brief in Fisher is an important statement of values for the BBA as an institution and resonates deeply with our membership.  We are especially thankful to the 38 law firms and legal offices that joined us on the BBA’s brief.  Fisher will be argued on October 10th.

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