Tag Archives: amicus

The Hunter Becomes the Hunted: Will Schuette Hook Fisher?

On Tuesday, the Supreme Court heard oral argument in Schuette v. Coalition to Defend Affirmative Action, the latest case on affirmative action.  This came just a few months after the Court published its decision in Fisher v. University of Texas.  In Fisher, the question was whether race-conscious admissions policies at a public university were constitutional.  The Court in effect said yes, upholding limited affirmative action and allowing the University of Texas to continue its race-conscious admissions policies. 

The BBA’s amicus brief in Fisher highlighted the value of race-conscious admissions policies, and specifically focused on how they serve the legal profession by providing a diverse pipeline of undergraduate and law students. 

In Schuette, the Court is considering the constitutionality of Michigan’s 2006 state constitutional amendment, coming out of ballot initiative Proposal 2.  This prohibits preferential treatment based on race, color, sex, ethnicity, or national origin in state college admissions, jobs, and other publicly funded institutions.  In a sense, it is the reverse of Fisher – in Schuette, the question is whether the Constitution requires public universities to at least have the option of instituting race-conscious admissions policies like the University of Texas.

On Tuesday afternoon, each side had its 30 minutes before the Court .  The justices actively participated, asking many questions and framing the arguments.  John Bursch, Michigan’s state solicitor general argued that the Equal Protection Clause could not possibly require affirmative action plans for state institutions, because it barely permits them under only the strictest scrutiny.  He faced tough questions from Justices Sotomayor and Ginsburg, whose demeanors appeared to set them up as opponents to the constitutional amendment.  

Mark Rosenbaum and Shanta Driver argued on behalf of the plaintiffs that a constitutional ban on affirmative action was a violation of equal protection, but struggled to define the exact point of violation.  For example, Justices Roberts, Kennedy and Alito asked, if discretion to use race-conscious admissions policies was unconstitutional when enshrined in the state constitution, would it be constitutional if it was in the hands of the University Regents?  The University President?  The Legislature?  The Governor?

We look forward to hearing the Court’s answers.  Will the outcome impact the affirmative action victory we fought for in Fisher?  Only time will tell.  After all, as famed Supreme Court lawyer Ted Olson explained at the BBA’s Annual Meeting Luncheon, win or lose, we should be proud to have the Supreme Court.  It is a model for government institutions world-wide, because the arguments described here will result in written opinions this summer as the Court tackles yet another tough question. 

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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SCOTUS Fall 2012 Starting Lineup

Amid much anticipation, the United States Supreme Court opened its 2012-2013 term on October 1st.  At the Boston Bar Association (BBA), we are watching three specific cases with great interest in their impact on civil rights and equality.

Fisher vs. the University of Texas is scheduled for oral arguments on Wednesday, October 10th.  The issue at hand in the Fisher case is the diversification of student bodies in higher education.  However, the impact of the decision in this case will be far reaching – with the potential to derail whatever progress is being made in advancing diversity in the legal profession.

Fisher challenges the Court’s 2003 ruling in Grutter v. Bollinger a case challenging the affirmative action policies at the University of Michigan Law School.   Our amicus brief in Grutter supported the position that race-based criteria in admissions decisions pass constitutional muster.

We fervently believe that race-conscious policies promote more diverse student bodies, which lead to more racially representative legal communities.   This determined our position when we filed an amicus brief this summer in Fisher. If the Court chooses to overturn the constitutionality of race-based admissions policies, the impact on the higher education landscape will be devastating, not just in Texas but throughout the country.

This particular brief was drafted for the Boston Bar Association by Bingham McCutchen on a pro bono basis. Thank you again to the Bingham team –Jon Albano, Deena El-Mallawany and Caleb Schillinger.

Meanwhile we can only hope that the Court will take up another civil rights issue presented in MA v. U.S. DHHS and Gill v. OPM.  These two cases –one filed by Gay & Lesbian Advocates & Defenders (GLAD) and the other by the Massachusetts Attorney General’s office – challenge the constitutionality of the federal Defense of Marriage Act (DOMA).  DOMA bars the federal government from recognizing same-sex spouses for any federal purpose.

Last winter, the BBA joined an amicus brief drafted by GLAD and the Massachusetts Attorney General’s Office challenging the constitutionality of DOMA.  DOMA presents a challenge to our civil rights, posing a significant threat to fundamental concepts of fairness and equality.

Civil marriage – which allows a couple to seek a license to marry – should not be confused with religious wedding ceremonies that may take place in churches, mosques or synagogues.  As a matter of equality under the law, the BBA supports civil marriage for same sex couples. The BBA filed an amicus brief in the landmark case Goodridge v. Department of Public Health, which led to the legalization of same-sex marriage in Massachusetts.

We celebrated when theU.S. Court of Appeals for the First Circuit in Boston struck down the section of DOMA that denies federal benefits to same-sex couples married in states that have legalized such unions.   We will celebrate again at the 3rd Annual Beacon Award for Diversity and Inclusion ceremony on November 13th when we honor GLAD and the Attorney General’s Office for their work in this area.

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Our Policy Agenda Reflects Our Range

It should come as no surprise that a one-size fits all approach to policy and advocacy doesn’t work for the BBA.  The universe of issues on which the BBA could take a public position is limitless.  In some ways, these issues exist on a continuum as illustrated below (click on the image to enlarge it).  As issues move along that scale from technical to policy to political, the Council’s role increases.

Our ability to be a leader on things that are timely, important and that resonate with our membership requires a process that is both flexible and practical.  The primary consideration for determining whether or not the BBA will speak is how central the issue is to the three main tenets of our mission: access to justice, the administration of justice, and improving the quality of Massachusetts’ laws.  The BBA is vocal on those issues that are central to our mission and more inclined to reserve judgment on issues that don’t clearly affect the practice of law or the legal profession.

When the BBA does speak, the organization speaks on behalf of its more than 10,000 members unless explicitly stating otherwise. The manner in which we make our position known varies.  We file amicus curiae briefs with the courts (see our amicus history), testify at public hearings on legislative issues, provide technical comments on proposed court rules, participate in official legislative task forces (see alimony), and meet with and write letters to key policy makers (see our NDAA letter to President Obama).

The BBA’s Council agenda for September reflects the breadth of issues the BBA considers at any given time.  Here’s a look at three items that are taking distinctly different internal paths at the BBA.

Section Comments on Massachusetts Child Support Guidelines

As we noted last week, the Massachusetts Child Support Guidelines are undergoing a federally mandated quadrennial review. These Guidelines clearly affect the quality of our laws and the practice of law.  These Guidelines and any changes to them is practice specific, directly affecting family law attorneys and their clients. Therefore, the BBA relies on the expertise of its Family Law Section and its Delivery of Legal Services Section (which is composed of many civil legal aid providers with experience in Probate and Family Court matters) to spearhead the BBA’s response. The Family Law Section solicited input from its membership and drafted comments and suggestions to be submitted to the Court. Though the comments still need to be reviewed by the BBA Council, the heavy lifting is done by our members at the section level.

Update on Fisher v. University of Texas at Austin

Back in August, the BBA filed an amicus brief in the Fisher case urging the Supreme Court to uphold race-conscious admission criteria.  This issue originated in the BBA’s Diversity & Inclusion Section.  Because of the BBA’s longstanding position that race-conscious admissions policies are vital to integrating the legal profession, we felt compelled to weigh in.  The BBA’s Amicus Committee and a small group consisting of BBA Council members worked under an accelerated timeline to draft, recruit signatories and file the brief. The Supreme Court is expected to hear arguments in the case on October 10th.

Massachusetts Drug Lab

Last month news broke about egregious breaches in protocol at the Massachusetts drug lab, jeopardizing thousands of state and federal cases. The problems uncovered at the state lab clearly affect the administration of justice.  This is so closely tied to our work in sentencing reform and touches on principles the BBA formulated in its Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts. The BBA’s Council will determine if – and when – the BBA should develop a public policy position regarding the issues raised by the breaches.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Bird Decision is Another Victory for T&E Attorneys

Tuesday’s  SJC decision in Rachel A. Bird Anderson vs. BNY Mellon, N.A. trustee and others, helped reinforce our belief that there’s no one tool for achieving public policy goals. When we failed to secure the passage of legislation that would repeal an overly broad 2009 amendment to the adopted children statute yielding unintended consequences, we turned our energies to an amicus brief. Our brief identified the confusion resulting from the 2009 amendment; in its decision in Bird, the SJC provided essential clarification.

It’s rewarding to read the SJC’s decision on many levels.  It settles a family dispute, provides trustees with much needed assurances and also means that the BBA won’t need to re-file legislation we’ve supported since 2009.  The BBA’s bill, An Act to Repeal the Adopted Children Statute, was drafted as a statutory fix to the problem that the Bird decision just solved.

When this issue was first brought to our attention, the BBA worked quickly to file legislation that would repeal language that had broad and far reaching implications on trust instruments dealing with adopted children.  As we described in Issue Spot, the BBA succeeded in obtaining a one year postponement of the original effective date of this new law and has been working since then to repeal it.

This past legislative session, the BBA’s repeal of the adopted children statute became part of a number of pieces of legislation to address various trusts and estate problems.  These bills included a proposed Massachusetts Uniform Trust Code (MUTC), technical corrections to the Massachusetts Uniform Probate Code (MUPC), and an estate tax patch.  Now that the SJC has weighed in on the adopted children statute, we can claim victory for all but a small portion of our trusts and estates agenda. Earlier this summer Issue Spot reported on the passage of the MUTC and technical corrections to the MUPC.

Our success is particularly gratifying because it can be difficult to catch the attention of the Legislature on trusts and estates matters.  They aren’t splashy or as headline grabbing as, say, casinos or health care reform. Our dedicated and highly knowledgeable members deserve the credit for volunteering their time to testify, meet with legislators and draft impeccable amicus briefs. We will next focus our trusts and estates energies on the estate tax patch and any other emerging issues in this area.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Fisher Decision Will Affect Diversity at Every Level

In August, the Supreme Court of the United States will hear arguments in Fisher v. University of Texas, an affirmative action case challenging the admission policies and practices of the University of Texas at Austin.  The Supreme Court granted certiorari on the question of whether the Supreme Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, permit the university’s use of race as a factor in undergraduate admission decisions.

In Fisher, the U.S. District Court for the Western District of Texas held that, under the Supreme Court’s decision in Grutter, the university had a compelling interest in attaining a diverse student body.  The District Court concluded that the university’s admissions program was narrowly tailored to serve that interest.  On appeal to the Fifth Circuit, the three judges on the panel all voted to affirm the district court ruling, relying on the Grutter decision.

The BBA’s Diversity & Inclusion Section has asked the BBA to weigh in on the issues raised in Fisher.

This isn’t the first time the BBA has been asked to take a position on race-conscious admissions policies.  The BBA was an amici in Grutterarguing that not having race-conscious admissions policies would harm efforts to diversify the legal profession.  Grutter involved the use of race-conscious admissions policies at the University of Michigan Law School. The BBA’s amicus brief in Grutter urged the Supreme Court to uphold race-conscious admissions policies as vital to integrating the legal profession.

The issues raised in Fisher and in Grutter are important to the BBA.  A diverse and inclusive legal community is central to the BBA’s mission — to advance the highest standards of excellence for the legal profession, facilitate access to justice, and serve the community at large. The BBA has consistently taken the position that race-conscious admissions policies are necessary to ensure that the legal community reflects the growing diversity of our population.  A legal community that accurately reflects the composition of the people it serves instills confidence and helps ensure that every person has equal access to justice.

Diversity as a concept is broader than just race and gender.  In the context of the BBA, valuing diversity means recognizing the unique professional contributions that different individuals can make, and creating an environment that maximizes the potential of all members.  The BBA has made diversity a part of its institutional culture in recent years, but we can do more.  Diversity is now an ongoing discussion and not a just an agenda item.

The Fisher decision promises to have serious implications for affirmative action policies, and ultimately our ability to integrate the legal profession.

-Kathleen Joyce
Government Relations Director
Boston Bar Association
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BBA Files Amicus Brief on Adopted Children Statute

The latest BBA amicus brief was filed on Monday, April 30th in Rachel A. Bird Anderson v. BNY Mellon, N.A., et al.  The Bird case, currently before the Supreme Judicial Court (SJC), deals with ambiguities regarding adopted children as beneficiaries of a family trust.  The Bird case is an opportunity for the SJC to clarify estate planning law as it relates to Chapter 524 of the Acts of 2008.  This statute, which became effective on July 1, 2010, retroactively changed the understood rule of construction of terms like “child,” “grandchild” and “issue” to include adopted children, even for instruments created when the law did not include adopted children within those terms.

In its amicus, the BBA urges the SJC to rule on whether retroactive application of Chapter 524 (as currently interpreted) is constitutional and, if so, to provide guidance on the consequences for actions taken by fiduciaries relying on Chapter 524.

Filing amicus briefs is just one way that the BBA makes its views on matters of policy known.  We also draft legislation, comment on proposed government actions and legislative proposals developed by other groups, and publish reports and written statements.

The BBA gets several requests to file amicus briefs each year.  In the last three years we’ve filed four briefs.  However, we’ve received at least twice that many requests.  The BBA’s standard for filing an amicus brief or signing onto an amicus brief prepared by another entity is that the position sought to be advanced must relate to (a) the practice of law; or (b) the administration of justice – exceptions to this rule are considered on a case-by-case basis.  In the Bird case, the brief relates to “the practice of law.”

The BBA has been an amicus curiae in cases that have altered the policy landscape in Massachusetts and the United States.  Here are just some examples of our work in this area in the last few years:

  • Grutter v. Bollinger – The Michigan affirmative action case holding that race conscious admission policies are vital to integrating the legal profession.

Brief Background on the BBA’s Interest in the Bird Case

In May 2009, the BBA Council voted to support An Act to Repeal the Adopted Children’s Act which, if passed, would repeal Chapter 524 of the Acts of 2008 (as would a ruling by the SJC in the Bird case that Chapter 524 is unconstitutional).  During this current legislative session, the BBA filed An Act to Repeal the Adopted Children’s Act, known as H 2262.  H 2262, now under consideration by the Joint Committee on the Judiciary, would also provide that such repeal would not affect the validity of any action taken or distribution made pursuant to Chapter 524 while Chapter 524 was in effect.

While seeking a legislative fix, we learned of the Bird case.  The decision to file an amicus brief in this case came after a vetting process that began with debate and discussion in the steering committee for our Trusts & Estates Section.  The steering committee of the Trusts & Estates Section felt strongly that retroactive changes in the law which affect vested property interests, including beneficial interests in trust, raise serious constitutional concerns.  They requested the BBA’s Amicus Committee review and consider their request to file an amicus.

The BBA’s Amicus Committee, responsible for reviewing amicus requests and making sure that any potential brief fits into the BBA’s established criteria, discussed the request and also invited opposing counsel to provide input as to whether or not the BBA should weigh in on this issue.  In this situation the Amicus Committee decided to recommend to the BBA’s Executive Committee and Council that the BBA weigh in as amicus curiae in the Bird case.

The SJC is set to hear arguments on this issue on May 7th.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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