Tag Archives: supreme court

Full Circle On Fisher

On Wednesday, September 11th, the College & University Law Section sponsored “Diversity in Higher Education: The Legal Landscape after Fisher v. University of Texas,” a discussion of compliance and strategic planning issues for academic institutions.  This program comes just over a year after the BBA filed an amicus brief in Fisher v. University of Texas in the wake of the U.S. Supreme Court’s ruling.

In Fisher v. University of Texas, the U.S. Supreme Court vacated and remanded the Fifth Circuit Court of Appeals decision for failing to apply strict scrutiny in reviewing the University of Texas’s race-conscious admissions policy.  The case featured Abigail Fisher, a white woman who was denied admission, alleging that the University of Texas discriminated against her on the basis of race in violation of the Fourteenth Amendment’s Equal Protection Clause in its admissions decision.  The Court’s ruling in effect upheld race-conscious admissions, but also muddied the waters.

The BBA’s amicus brief in Fisher highlighted the value of race-conscious admissions policies.  The brief specifically focused on the need for a diverse pipeline of students for law schools and for the entire legal community.  The BBA’s brief warned that:

until the composition of the legal profession more closely resembles that of the public whose interests are at stake, the perception will remain that the legal system is entrusted to and accessible to the white majority above all others.  Not only does that perception undermine the legitimacy of the judicial system, it further discourages participation by people of color, creating a self-perpetuating cycle of exclusion.

This week’s program provided attorneys with an opportunity to discuss the intricacies of Fisher and also its implications.  It changes how courts review affirmative action policies and creates compliance challenges for educational institutions.  Fisher put universities and race-conscious admission programs on alert.  Three major compliance challenges for colleges and universities are:

  • establishing a quantifiable interest in the educational benefits of a diverse student body;
  • proving that “workable, race-neutral alternatives” will not suffice; and
  • demonstrating that consideration of race is narrowly tailored. 

And with that, it all came full circle.  From amicus brief, to Supreme Court decision, to informational program, the BBA stayed on top of this important issue. 

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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DNA Evidence: Not Necessarily a Guarantee of Anything.

On Monday, a divided United States Supreme Court approved Maryland’s DNA law, signifying a major change for DNA collection.  The Supreme Court’s decision in Maryland v. King expands DNA collection to include people arrested —prior to their proverbial day in court.  More than half of the states allow DNA samples to be routinely taken from people under arrest.  Right now Massachusetts is not among those states. Every state including Massachusetts, however, does collect DNA from people after they are convicted of crimes for purposes of identifying repeat criminal offenders.

There have been legislative proposals filed for several years here in Massachusetts that would mirror Maryland’s DNA collection law.  There have even been attempts to accomplish the same thing by attaching amendments to the state budget.   Opponents, including civil libertarians and defense attorneys, argue that this would be unconstitutional and an invasion of privacy.

Supporters of these bills have described them as simple and balanced – protecting the innocent while enhancing public safety.  A cheek swab test would be taken at the time of arrest and investigators could use that information for links to other crimes.  Supporters of these bills maintain that there is no risk associated with any of this for an innocent person.  They claim that DNA information would not be entered into any state database until after a felony conviction and would expunge the DNA evidence from any person ultimately found not guilty. 

Not so fast! Despite what some say, there is a whole lot of risk associated with DNA and its collection.  Here in Massachusetts we’ve enjoyed some recent victories in the area of DNA.  In 2012, Governor Patrick signed the DNA Access Bill, which gives individuals convicted of crimes a chance to use DNA evidence to prove their innocence and overturn their convictions if they meet certain criteria.  We’re proud of our work in this area.  The reality is that sometimes our justice system gets it completely wrong.  Anything that actually ensures public safety and brings a sense of confidence to our justice system is good. 

There is just no way that DNA evidence can be described as an incontrovertible link to innocence or guilt.  There is a common perception that DNA is faultless and flawless as far as forensic evidence goes.  It can help convict the guilty while freeing the innocent, but there are limits to the power of DNA.   DNA can be misused, human error can come into play and we are still learning these lessons from the Annie Dookhan catastrophe. Expansion of DNA databases may well be logical and appropriate to identify individuals who commit certain types of violent crimes. Moving beyond those purposes is where the rights and privacy of individuals must be weighed against the benefits of this type of expansion. 

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Nationwide Victories for Same-Sex Marriage

Amen!  We are at last seeing the changing tide of public opinion on same-sex marriage across the country.  This became especially evident last week on Election Day.  Four states considered ballot questions regarding same-sex marriage.  Equality and common sense prevailed when Maine, Maryland and Washington became the first states to legalize same-sex marriage by popular vote through a ballot initiative.  There was more to celebrate when Minnesota voters defeated a ballot question that would have defined marriage as between a man and a woman.

Before the 2012 election, same-sex marriage had appeared on ballots in 32 different states and was defeated all 32 times.  In Massachusetts we are ahead of the curve.  After all, it was almost ten years ago that Massachusetts became the first state to legally recognize same-sex marriages.  There are now ten U.S. jurisdictions in which same-sex marriage is legal – nine states and the District of Columbia.

Fortunately attitudes about same-sex marriage are shifting across the country.  In May, the First Circuit Court of Appeals ruled that the federal Defense of Marriage Act (DOMA) violates the Constitution.  We’re still hoping that the Supreme Court will take this issue up this year.

Earlier this week, the Boston Bar Association honored the Massachusetts Office of the Attorney General and Gay & Lesbian Advocates & Defenders (GLAD) with its third annual Beacon Award for Diversity and Inclusion at the Liberty Hotel. The award recognizes these two organizations for their efforts challenging the constitutionality of DOMA in two parallel cases in the First Circuit.  The award was created to highlight exceptional leadership in creating a lasting impact and forging a new path towards a more diverse and inclusive legal profession and society in Greater Boston.

There is still work to be done in ensuring equality for all citizens, but this week’s Beacon Award event gave us the opportunity to pause and celebrate the outstanding work of those championing and to reflect on just how far we’ve come.

We await the Supreme Court’s decision of whether (or when) to take up the two federal cases challenging DOMA and we hope that the Supreme Court was listening when the people spoke on Election Day.

-Kathleen Joyce
Government Relations Director
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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BBA Comments to the Courts

In the spirit of celebrating the accomplishments of the program year that will soon draw to a close (Sept. 1 – Aug. 31), the BBA would like to highlight the work of its members in making an impact on the SJC rulemaking process.  The BBA regularly comments on proposed amendments and rules changes, creates task forces to study and help solve critical issues of interest to the Commonwealth, and also articulates its public policy positions through the filing of amicus briefs.

In this past program year, our membership has actively addressed several important issues in the Commonwealth’s courts. 

Rule 4:03

Periodic Assessment of Attorneys

In December of 2008, the BBA’s Delivery of Legal Services Section helped garner the BBA’s support of the Access to Justice Commission’s proposal to the Supreme Judicial Court that it amend Rule 4:03 “Periodic Assessment of Attorneys” by adding to the annual registration fee a contribution of $50 to support civil legal services.  The contribution would be voluntary and the attorney registrant could opt-out of the contribution.  This Spring the SJC agreed and approved the Access to Justice Commission’s proposal to include an optional registration fee.  In fact the court increased the contribution amount to $51

The BBA has always been and will continue to be a strong advocate for ensuring that everyone has equal access to justice, and funding for civil legal services is a key component to making this a reality. 

Look for this change in your annual registration form starting September 1, 2010.

Rule 3:01 and New Rule VI of the Board of Bar Examiners

Foreign Attorney Admission

The BBA’s diverse membership includes many lawyers whose educational and professional backgrounds span the globe.  In 2006, the BBA convened The Study Group of Foreign Attorney Admission to examine Massachusetts’ admission requirements for foreign-trained attorneys.  After careful study, this Group developed recommendations reflecting proposed guidance derived from two Supreme Judicial Court cases, Wei Jia v. Board of Bar Examiners (1998) and Osakwe v. Board of Bar Examiners (2006).  The BBA believes that the key criteria for eligibility to take the Massachusetts bar exam should be legal education requirements, including both general education in common law and particular education in American law.

The SJC invited comments on the changes and the BBA, with help from its International Law Section, submitted comments requesting that Rule 3:01 and New Rule VI provide greater clarity and transparency in the rules, and better consistency by the Board of Bar Examiners in its application of them.  Happily the SJC approved the amendments to both rules.  These changes became effective July 1, 2010.

Standing Order 1:09

Sealing of Criminal Cases

Last year, the BBA voted to support a proposed interdepartmental order to Chief Justice Charles Johnson of the Boston Municipal Court.  The proposal came from one of our oldest partners, Greater Boston Legal Services.  The interdepartmental order would permit individuals to seek in one court the sealing of criminal cases that have been disposed of in other courts.  The previous process for sealing a criminal record could be cumbersome when an individual had several cases in different divisions of the trial court.  Not only did an individual need to travel to each court, but because the previous statute required two hearings before any individual motion to seal was blocked, it was necessary to travel to each court twice.

Chief Justice Johnson agreed to implement this innovative approach to case management.  He signed Standing Order 1:09 in May 2009 as a one-year pilot project.  This past winter, at the urging of our Delivery of Legal Services Section, the BBA requested that the standing order be extended for another year.  Chief Justice Johnson agreed and extended the order through May 14, 2011.

– Kathleen M. Joyce

Government Relations Director

Boston Bar Association

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