Attorney General Supports Lawsuit Against Diversity On State Bar Of Texas Board [UPDATED]

AUSTIN, TX — The Texas attorney general formalized his endorsement of a legal challenge against the State Bar of Texas practice of ensuring diversity in its board ranks, labeling the appointment of women and minorities to fill seats as unconstitutional.

Republican AG Ken Paxton made known his support of the lawsuit via a so-called amicus brief, or friend-of-the-court brief. These are legal documents filed in appellate court cases by non-litigants — people not involved in the lawsuit — who nonetheless have a strong interest in the subject matter. Such briefs advise a court of relevant and additional information the court might want to consider in its deliberation.

At the center of Paxton's amicus brief (which he announced Thursday after filing it Wednesday night, he said) is a requirement for "four minority member directors." A lawsuit challenging the constitutionality of this requirement was filed by Austin attorney Greg Gegenheimer, who sought a position of the board only to be frustrated in his efforts given the diverse makeup.

"Currently, the board of directors of the Texas bar expressly requires four minority member directors," Paxton explained in a press release announcing his move. "Austin attorney Greg Gegenheimer wants to apply for an open director position on the board, but the bar is only allowing 'female, African-American, Hispanic-American, Native American, or Asian-American' members to be considered for that position. Gegenheimer, who is a white male, argues in his lawsuit that his exclusion amounts to race and sex discrimination in violation of the U.S. Constitution’s equal protection clause."

In a response to a request for comment by Patch on Thursday, State Bar of Texas President Frank Stevenson noted the inclusion of minorities on the board has long been dictated by Texas Legislature. Ironically, Paxton previously served in both chambers of the Texas Legislature before becoming attorney general.

The State Bar appoints four minority directors to its 46-member board as required by Texas Government Code Section 81.020, which was enacted by the Texas Legislature in 1991 and has provided seats for minority and women attorneys on the State Bar board since that time," Stevenson wrote in an email to Patch.

Currently, there are 46 members of the State Bar of Texas, according to information found on its website. Anglos appear to have a predominant presence on the board save for some slots filled by minorities, their representation reflective of the districts they represent.

Chairman of the Board Jose "Joe" Escobedo, Jr., for example, hails from McAllen, a city in South Texas near the border with Mexico that is 84.9 percent Hispanic and 11.2 percent white. The figures are taken from citydata.com, and are widely found at myriad sources.

Another board member, Ricky G. Gonzalez, represents San Antonio — among the nation's most Hispanic major cities, where 63.2 percent of the population identify themselves as such. The figures come from the U.S. Census Bureau.

Representing District 7 is Ruben S. Robles, of El Paso, Texas, where 80.7 percent of residents identify as Hispanic. The U.S. Census data is culled by infoplease.com.

Historically politicized, the notion of allowing for diversity on boards and other bodies via affirmative action has intensified as a point of contention in conservative circles given the prevailing political winds. The election of Donald Trump as U.S. president has helped embolden arguments against such tactics given his successful campaign rhetoric resonating with an Anglo base that feels aggrieved by such practices.

Yet the idea of affirmative action and its practice stems from past injustices in U.S. history during which minorities were marginalized or outright excluded from societal participation, on many fronts, for generations. In making allowances for diversity, organizations collectively seek to achieve parity and equitable representation, partially informed by the past as a step to even out the playing field.

In his statement, the attorney general of Texas — the state's highest law enforcement official — doesn't allow for such historical context. Instead, he categorized minority representation on the State Bar of Texas board as simply unconstitutional, starting in the opening paragraph of his statement.

"Attorney General Ken Paxton last night filed an amicus brief in the U.S. District Court for the Western District of Texas supporting a lawsuit that challenges unconstitutional racial and sex-based quotas for board membership on the State Bar of Texas," his statement read.

In inserting himself in the debate over the State Bar of Texas board makeup, he added that the issue, as he views it, is uncomplicated: “This is really not a difficult case,” Paxton said. “The courts have made clear that the use of racial and sex-based quotas by the government in situations like this is blatantly unconstitutional. Leadership positions should be available to all state bar members based on their merit, not their skin color, ethnicity or sex.”

For its part, the State Bar of Texas is poised to accept whatever outcome the might emerge from the litigation. Yet regardless of the aftermath, Stevenson said the State Bar of Texas will continue to place a premium on a membership makeup that reflects the ethnic and racial diversity of Texas as a whole.

"Whatever the outcome of the constitutional challenge to the statute filed by Greg Gegenheimer, increasing diversity in the legal profession is a key part of the State Bar's mission and vitally important to the State Bar and its leadership," Stevenson told Patch. "In our increasingly diverse state, all Texans deserve a legal profession that reflects and represents their interests."

To view Paxton's full amicus brief, click here.

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