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Sutherland Asbill & Brennan LLP

Sutherland Asbill & Brennan Attorneys Answer Questions as United States Supreme Court Debates Diversity in Public Schools
The U.S. Supreme Court will hear arguments today in two cases involving the use of race as a factor in student assignment in K-12 public schools. Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education both test the limits of the Supreme Court’s 2003 holding in Grutter v. Bollinger, a case involving a challenge to the Michigan Law School’s affirmative action admission policy. In Grutter, the Court held that achieving classroom diversity can be a “compelling governmental interest” sufficient to justify the consideration of race in higher education admission policies.

The two cases, which have been consolidated for oral argument, involve challenges to K-12 public school student assignment policies that use race as a factor when assigning students to particular schools. In addition to attempting to distinguish K-12 education from higher education, the plaintiffs have called on the Court to overrule its recent holding and declare that classroom diversity can never serve as a compelling governmental interest sufficient to justify the use of race.

John Munich, a partner in the Education Litigation Practice Group at national law firm Sutherland Asbill & Brennan LLP, filed an amicus brief on behalf of two social scientists and a former school superintendent to assist the Court in its resolution of the cases. John successfully argued Missouri v. Jenkins in 1995, one of the leading school desegregation cases decided by the Supreme Court in recent years, and the last case decided by the Supreme Court involving questions of race in America’s K-12 public schools. Rocco Testani, head of the firm’s Education, Government, and Civil Rights practice, has also been following the case closely. He represented the State of Michigan in a four-week school desegregation case in which the federal court granted the state’s motion for unitary status, ending more than 20 years of court supervision over the state and the Benton Harbor, Michigan public schools. Both John and Rocco have been named in “Best Lawyers in America” in the area of Education Law.

In advance of the Supreme Court’s argument and ruling, John and Rocco answered the most pressing questions involving these two education cases.

1. How are these cases different from previous race-related K-12 education cases?

Most of the Court’s previous race-related public education cases involve court-ordered desegregation in response to historical de jure segregation. These cases are different insofar as neither school district has justified its assignment policy as a method to remedy the effects of previous de jure segregation. Instead, the school districts have defended their plans by relying on Grutter v. Bollinger, the recent decision approving certain race-conscious admissions policies as a means to achieve classroom diversity in institutions of higher education.

2. Didn’t the Court already approve of the use of race in public school admissions?

In 2003, the Court upheld the University of Michigan Law School’s admission plan, which considered the race of an applicant. The Court reasoned that the law school had a compelling interest in achieving classroom diversity and that the plan’s use of race was narrowly tailored to achieve diversity. In the companion case, Gratz v. Bollinger, however, the Court struck down the University of Michigan’s undergraduate admission plan. Although the university attempted to justify its undergraduate admission plan as a means of achieving classroom diversity, the Court concluded that the plan’s use of race was not narrowly tailored. The Court believed that the undergraduate plan did not provide sufficient individualized consideration to students but instead operated as a quota.

3. How do these cases differ from the Michigan cases?

In the Michigan cases, the Court considered the use of race in higher-education admissions programs. There are some important differences between admissions policies in what the Court called “the unique setting of higher education” and K-12 public school assignment plans. One major difference is that students have a broad range of higher education institutions from which to choose. K-12 student assignment is typically compulsory, and the only alternative for most students is to pay for private school. There is also a larger body of scientific research regarding the effects of classroom diversity in the K-12 context.

The mechanics of the school assignment plans at issue in the current cases differ substantially from the admission policy upheld in Grutter. The school assignment plans currently before the Court bear a closer resemblance to the admission policy stuck down by the Court in Gratz.

4. What effect will these rulings have on other school districts if the challengers win and the plans are declared unconstitutional?

The effect will depend largely on the rationale of the Court’s opinion. If the Court overrules Grutter, the implications will be enormous not only for K-12 schools, but also for public universities. Public educational institutions would no longer be able to justify race-conscious student admissions programs by referring to the benefits of classroom diversity. Those institutions would need to consult carefully with experts when crafting admissions policies that could both comply with the Court’s decision and still result in diverse classrooms.

If, instead, the Court were to strike down the plans because of their mechanics, the impact would be less widely felt. Districts with plans similar to the ones at issue obviously would need to revamp their policies to comply with the Court’s decision. Again, the districts would benefit from consultation with an expert when crafting new student assignment plans.

5. Which types of school districts will be most affected by the rulings?

Large urban school districts are the most likely to have school assignment plans similar to the ones being challenged, because those districts typically have large student populations and many schools to fill. The higher population densities in urban areas make it practical for districts to consider factors other than residence when assigning students to schools. Smaller rural districts usually have more homogenous student populations, fewer schools, and lower population densities, making assignment policies like the ones at issue impractical.

6. If the challengers succeed in getting the Court to overrule Grutter, will there be any way for public educational institutions to achieve classroom diversity?

There are several ways that public educational institutions can achieve classroom diversity without using race as a factor in their admissions or assignment policies. It is important that the policies are not pretextual and are designed in accordance with legal requirements. Educational institutions seeking to achieve classroom diversity without using race as a factor in their admissions or assignment plan should consult with experts when designing such a plan, not only to avoid potential liability, but also to minimize chances of a resource-draining lawsuit.


7. Will these cases finally put to rest challenges to public school admission policies?

It is very unlikely that these cases will be the last challenges to public school assignment policies. Both proponents and opponents of race-conscious admissions plans are unlikely to relent, regardless of the Court’s ruling. For public schools intent on having diverse classrooms, it will be important to plan carefully to avoid challenges and to be on solid legal footing should a challenge arise.

John and Rocco are both available for interviews. Please contact John Hellerman (202.274.4762 or jhellerman@hellermanbaretz.com) or Elli Kerlow (202.383.0182 or eleanor.kerlow@sablaw.com) to make arrangements.

12-04-2006

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Sullivan & Cromwell LLP

BoNY and Mellon tie to create $43bn giant
The Bank of New York Company, Inc. and Mellon Financial Corporation announced they will merge, creating a security services and asset management giant valued at approximately US$ 43 billion. The combined "Bank of New York Mellon" company will have US$ 16.6 trillion in assets under custody. Together they will be the 10th-largest asset manager with US$ 1.011 trillion in assets.

[SULLIVAN & CROMWELL LLP represented The Bank of New York Company, Inc. in this transaction. Mellon Financial Corporation is also a long-time S&C client.]

12-04-2006

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Smith Anderson Blount Dorsett Mitchell & Jernigan LLP

Dave Clement Appointed as Operations Committee Chairperson and Treasurer by Prevent Child Abuse North Carolina
At a recent Board of Directors' meeting of Prevent Child Abuse North Carolina, Smith Anderson Partner, Dave Clement, was appointed as Chairperson of the Operations Committee and Treasurer. Both appointments take effect on January 1, 2007.

Mr. Clement has served on the Board since September 2005, and will serve a three-year term which expires in 2008.

A statewide, nonprofit organization and local chapter of Prevent Child Abuse America, Prevent Child Abuse North Carolina seeks to prevent child abuse and neglect in all forms. The organization's mission includes building a network of individuals and agencies across the state to organize child abuse prevention efforts in their communities; educating individuals throughout North Carolina about child abuse and ways to prevent it; advocating for policies and programs that strengthen families and prevent child abuse; and ensuring all have access to child abuse prevention services.

A corporate and securities lawyer with an emphasis in mergers and acquisitions, Mr. Clement's practice also includes representation of business entities in connection with domestic private equity investments and placements, public company securities compliance, corporate formation and governance, joint ventures, strategic contracting and early stage financing for start-up and growth companies.

12-04-2006

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Salans

Salans continues expansion in Central and Eastern Europe with new Budapest office
Salans has announced its expansion into Hungary, with the opening of a full service office in Budapest. The new Budapest office, consisting of twelve lawyers will complement the firm's other offices across Central Europe which include the Czech Republic, Poland, Romania and Slovakia.

According to Stephen Finch, Chairman of Salans, "The Budapest office brings with it a very experienced team and rounds out our regional capability in Central Europe, which puts Salans at the forefront of international law firms in the region both in terms of geographic coverage and number of lawyers."

Dr. Tamás Tercsák, Co-Managing Partner stated that becoming part of Salans strengthened their position on the international playing field in Hungary and observed that "It presents tremendous benefits and opportunities for ourselves and our clients who are increasingly involved in complex cross-border transactions."

The new office was formed by partners Judit Kovári and Dr. Tamás Tercsák who both previously worked closely with Salans in Hungary for several years as part of a leading Hungarian firm.

12-04-2006

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Kirkpatrick & Lockhart Preston Gates Ellis LLP

Robert A. Kapp Named Senior China Advisor for Preston Gates & Ellis
Preston Gates & Ellis LLP announced today that Robert A. Kapp has been named Senior Advisor for China. Kapp will work with the firm’s Asia, international trade, and policy and public law practices. An experienced advisor on U.S. and China affairs, Kapp will be based in the firm’s Seattle office and work closely with offices in Washington, D.C., Beijing, Hong Kong and Taipei.

"Bob brings a tremendous depth of knowledge about China developed over 35 years of involvement in trade relations, academics and consulting," said David Tang, senior partner in Preston Gates’ Asia practice and architect of the firm’s Asia strategy. "He will offer valuable insights to clients large and small considering or actively developing business in China."

Kapp previously served as president of the US-China Business Council from 1994 until late 2004, as well as founding executive director of the Washington State China Relations Council. At both organizations, he provided strategic trade support to small and emerging businesses, as well as leading corporations with long-standing business relations with China. He is recognized for contributing to informed U.S. dialogue on China through congressional testimony, published articles, frequent media appearances, and presentations to educational and community organizations nationwide.

Kapp initiated the US-China Legal Cooperation Fund, a corporate-supported program providing assistance to bi-national projects focused on the development of China’s legal system and sustaining strong, mutually respectful, and socially responsible relations between the U.S. and China. He is a member of the Council on Foreign Relations, the National Committee on U.S.-China Relations, and the World Affairs Council, where he received the World Citizen Award in 1994. He also serves as China Program Advisor for The Asia Foundation, a board manager of The Blakemore Foundation and a member of the advisory board of The China Economic Quarterly. Kapp has served on the history faculties at Rice University and the University of Washington.

12-04-2006

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Kane Russell Coleman & Logan PC

Lisa Blackburn joins KRCL
KRCL is pleased to announce that Lisa Tomiko Blackburn has joined the Firm as an associate. Ms. Blackburn will practice in the Firm's Dallas office, in the Business practice area with a concentration in commercial real estate law, including development, acquisition and leasing matters.

12-04-2006

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Jeffer Mangels Butler & Marmaro LLP

New Federal Law on Electronic Discovery: Are U.S. Companies Prepared?
Federal rules that took effect this month now specifically require litigants in federal court to provide adversaries with relevant electronically stored information. The federal rules have been revised to keep pace with the reality that electronic records have become by far the most prevalent form of evidence in modern litigation. The changes demand early and proactive attention to electronic discovery (e-discovery) and require full disclosure of electronic records and how they are maintained.

"This rule has fiduciary implications for directors and officers of all public companies," said Michael Gold, a partner at Jeffer Mangels Butler & Marmaro LLP (JMBM), a California full-service law firm. Early in 2006, JMBM formed the Discovery Technology Group™ to advise companies on the best way to manage electronic information, particularly during the pre-trial discovery process.

"Information should be looked at as a corporate asset, so a public entity without a plan to protect that asset could violate this law," said Gold, a member of the Discovery Technology Group™.

The rules specify that e-discovery issues be addressed at the earliest stage of court proceedings. Hence, planning and education before any litigation is filed is critical in order to comply and avoid penalties. "Investing now in an effective data retention plan can help a company be prepared for any future litigation," said Discovery Technology Group™ partner Dan Sedor. "Such a plan will usually cost significantly less than a court settlement."

The rules also provide a complex method of shifting e-discovery costs associated with "inaccessible" electronic records – such as backup tapes – and a limited safe harbor for litigants whose good faith operation of their recordkeeping systems results in the loss of electronic evidence.

According to JMBM's Discovery Technology Group™, some key steps companies can take include:

Complying on an ongoing basis with regulations requiring records retention;

Preparing ahead of time to respond to requests for electronic information in litigation;

Putting in place an IT system that supports these goals while still providing an efficient and cost-effective infrastructure.

"Companies need to take critical steps now to harmonize their IT systems with the new federal requirements. Pro-active pre-litigation data management is key," said Discovery Technology Group™ partner Stanley M. Gibson, who used e-discovery in 2004 to obtain a $570 million jury verdict for JMBM's client, Gary K. Michelson M.D., in Medtronic v. Michelson.

The Discovery Technology Group's™ lawyers have the sophistication and experience needed to learn and understand their clients' recordkeeping systems, to meet and use the new early electronic evidence disclosure requirements to their clients' advantage, and to design, implement and audit policies that will help their clients navigate the new accessibility and safe harbor rules.

The Group's members were the only lawyers commissioned by Washington, D.C. publisher Bureau of National Affairs (BNA) to prepare a guide to electronic records retention. Furthermore, the Group's members speak frequently at industry events, including the Practising Law Institute®, Forbes Conference, and the AIIM Expo and Conference.

12-04-2006

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