The West Virginia State Bar oversees the legal profession in the state. Every licensed attorney in West Virginia must belong to this organization, which is led by a committee called the Board of Governors. The Board consists of 25 voting members and one non-voting member, who is the dean of the law school at West Virginia University.
One of the voting members is the designated “African American Representative,” as described by the bylaws of the Bar. Only a lawyer who is registered as an African American with the Bar can pursue this seat. Moreover, only registered African Americans can vote in the election for this seat.
Last week, an organization called the Foundation Against Intolerance and Racism sued the Bar in federal court. The lawsuit argues that setting aside a seat for an African-American member is a form of racial discrimination that violates the Equal Protection Clause of the Fourteenth Amendment. It also asserts a violation of the Citizenship Clause. This less famous provision of the Fourteenth Amendment gives every U.S. citizen all the rights of citizenship. The lawsuit alleges that the right to serve on a state board is a right of citizenship, which the bylaws deny to some West Virginia lawyers. Finally, it cites a provision in the Fifteenth Amendment prohibiting racial restrictions on the right to vote. The lawsuit argues that the bylaws impose this type of restriction because they don’t allow non-African-American lawyers to vote for this seat.
FAIR asked the court to prevent the Bar from enforcing the bylaws related to the African-American seat. The next election for this seat will be held in 2025, so the lawsuit could have an immediate impact.
The West Virginia case joins a wave of recent efforts across the country to attack diversity and inclusion programs. These seek to build on a 2023 decision by the U.S. Supreme Court that struck down affirmative action in college admissions. In another dispute involving a bar association, for example, the State Bar of Wisconsin agreed to change the definition of “diversity” for an internship program. Rather than referring directly to race, the definition now refers to “differing characteristics, beliefs, experiences, interests, and viewpoints.” Meanwhile, the New Jersey State Bar Association recently won a victory in litigation over its diversity quotas. A state appellate court ruled that the Bar could set aside certain seats on its board, nominating committee, and appointments committee for lawyers from underrepresented groups without violating the state anti-discrimination law.
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