Fraternal Group Calls for Judicial Diversity

Kappa Boule

Sigma Pi Phi Fraternity

999 Peachtree Street, N.E., Suite 850

Atlanta, Georgia 30309

October 1, 2012

The Honorable Nathan Deal

Governor, State of Georgia

206 Washington Street
Suite 203, State Capitol
Atlanta, GA 30334

            Re:      Restoring Racial Diversity to the Superior Court of Fulton County

Dear Governor Deal:

We write to you this time to express our profound concern about the troubling erosion of racial diversity on the Superior Court of Fulton County. 

Who We Are and Why We Care

Sigma Pi Phi Fraternally (sometimes known as the "Boule"), is the Nation’s oldest historically-Black Greek letter organization.  The Boule is composed of degreed professional men, and it has no undergraduate members.  Kappa Boule, the fraternity's first Atlanta affiliate, consists of about 100 members, many of whom have been integrally involved in the civic life of Atlanta, including two former mayors, as well as many of our community's leading businessmen, lawyers and judges. Attached to this letter is a list of some of our current members.

Our members have had a longstanding interest in assuring accountability at all levels of government, including the judiciary.  We believe that, to be accountable, our courts must be representative of the diverse communities that they serve.  Judicial diversity promotes impartiality by ensuring that no one viewpoint, perspective, or set of values can persistently dominate legal decision making.  As Judge Richard Posner has observed, a diverse judiciary “is more representative, and its decisions will therefore command greater acceptance in a diverse society than would the decisions of a mandarin court.”[1]  Judge James Wynn has noted that a lack of diversity poses a significant challenge for a judicial system that passes judgment on issues affecting African Americans, women and other minorities.[2] 

The need for judicial diversity is especially keen on the Fulton County Superior Court, the largest and most powerful trial court in the State.  Because the State Capital is in Fulton County, constitutional challenges and appeals from State agency decisions are heard in this court.  In addition, emergency hearings and/or stays of execution and death penalty cases are decided in the Fulton County Superior Court.  Moreover, the overwhelming majority of individual litigants are African-Americans, some of whom need a reason to have confidence in the integrity our system of justice.

The Steady Erosion of Racial Diversity on the Superior Court of Fulton County

Over the last ten years, however, the Fulton County Superior Court bench has experienced a steady erosion in racial diversity.  In 2002, eight of the eighteen judges on the bench (or 44%) were African-American.  Today, only six out of twenty judges (or 30%) are African-American.  Based on the 2010 census, the population of Fulton County is 44% African American.  Fulton County saw the last African American female judge appointed to the Superior Court bench in 1996 by Governor Zell Miller.  Governor Roy Barnes appointed the last African American male to the Fulton County Superior Court bench in 2002.  While the bench may once have reflected a racial diversity that was reasonably representative of the population, that is no longer the case. 

The current erosion in judicial diversity is certainly not due to a lack of qualified African-American candidates.  Fulton County is also home to most of the State's several hundred talented African American lawyers.  Over the years, these lawyers have included the first African American woman to be admitted to practice before the U.S. Supreme Court, as well as the lawyers who led the battles to desegregate the State's universities, public schools and places of public accommodation.  More recently, the county's African American lawyers have included several trial and appellate judges, three of Atlanta's mayors, two presidents of the Atlanta Bar Association, partners in every major law Atlanta law firm, and the Chief Legal Officers of major institutions such as United Parcel Service, Pepsiso, Inc., and The Home Depot. 

What You Can Do: What We Hope You Will Do

We are rapidly reaching a point at which the notion of a judicary composed of the best and brightest legal minds regardless of race will be no more than a bygone memory.  We urge you to avoid this consequence by establishing a judicial selection process which achieves accountability through diversity, by placing more African-Americans on the Judicial Nominating Commission, and by appointing qualified African American candidates to the Fulton Superior Court.

                                                            Very truly yours,

                                                            KAPPA BOULE OF SIGMA PI PHI FRATERNTY

                                                            By: ___________________________

                                                            Calvin W. McLarin, M.D.

                                                            Sire Archon
 

KAPPA BOULE - SIGMA PI PHI FRATERNITY MEMBERSHIP

 

Aaron, Hank

Adams, John H.

Aiken, Sr., B.A. Anthony C.

Alexander, William A.

Bacote, Sr., Samuel W.

Baranco, Gregory T.

Beard, Israel

Benham, Robert

Blackburn, II, D.D.S., Benjamin A.

Blackburn, III, Benjamin A.

Brown, Jr., Robert L.

Brown, M.D.,  Darwin L.

Buncum, Kelvin L.

Chastang, M.B.A. Mark J.

Cleveland, M.D., William H.

Cole, Jr., Thomas W.

Coles, Julius E.

Cook, Samuel D.

Coombs, Jr. Fletcher

Cooper, Clarence

Cooper, M.D. William A.

Darden, Jr., Alvin H.

Dempsey, Jr., Alford J.

Donald, Ph.D. Carlton D.

Douglass, M.D., Paul L.

Edmund, M.D., J.D. Roderick E.

Franklin, Jr., Robert M.

Greer, Esq. Ernest L.

Gulley, Samuel T.

Hackney, Wendell O.

Hall, D.D.S. John E.

Hall, Woodrow A.

Harris, Oscar L.

Harrison, Ira E.

Harrison, James C.

Holloway, M.D., Kelvin J.

Hornbuckle, Napoleon

Horne, Jr., J.D. Lewis C.

Howard, II, Samuel H.

Hughes, George M.

Hunter, Esq. James M.

Johnson, III, Charles S.

Johnson, Leroy R.

Johnson, Michael D.

Jolley, Jr. Samuel D.

Jones, Arnold M.

Jones, Jr. Milton H.

Joyner, Gordon L.

Kennedy, Michael D.

Lomax, Michael L.

Mason, Jr., Herman S.

Matthews, M.D., Roland P.

Maupin, Jr., M.D., John E.

McBride, Cornell

McLaurin, M.D. Calvin W.

Moody, Jr., Charles D.

Norris, Alfred L.

Organ, M.D., Brian C.

Patterson, Esq. P. Andrew

Patterson, III, M.D., Pickens A.

Patton, William C.

Pinado, Alan E.

Porche, Bernard

Rachal, Tyrone

Rhodes, Jacob A.

Richardson, Arthur H.

Robinson, Jr., George K.

Robinson, Ray M.

Russell, Herman-Jerome

Russell, Michael B.

Sampson, Esq. Thomas G.

Sampson, II, Thomas G.

Scott, David K.

Sears, Jr. Bertram E.

Shropshire, Sr., D.D.S. William B.

Sims, Frank L.

Sinkfield, Richard H.

Smart, J.D. Donald E.

Spikes, Esq. Jesse J.

Stanley, III, William J.

Stephens, Jr., Robert L.

Strothers, J.D. Bruce E.

Taylor, B.A. David V.

Taylor, Bernard

Thomas, Jr., D.B.A.R. Roosevelt

Thomas, Jr., Ph.D. Norman H.

Thomas, Sr., Norman H.

Tidwell, Isaiah

Tompkins, Esq., Jeffrey E.

Tookes, M.D. Darryl J.

Turner, Dwayne L.

Turner, Jr., B.A. Dennis

Turpeau, Aaron M.

Ward, Horace T.

Ware, Carl

Warnock, Raphael G.

Weaver, M.D. William L.

Williams, James E.

Work, M.D. Frederick T.

Yancey, Sr. Asa G.

---

[1] Richard A. Posner, Law, Pragmatism and Democracy 71 (2003).

[2] James A. Wynne and Eli P. Mazur, Judicial Diversity: Where Independence and Accountability Meet.  67 Albany Law Review 755 (2004).

Georgia Should Codify its Pursuit of Judicial Diversity

[Reprinted from the Daily Report, October 4, 2012]



 

 

To the Editors:

We note with interest an article by Leah Ward Sears and Kimberly Bourroughs which appeared in the Sept. 24, 2012, issue of the Daily Report entitled "Raise the bar on judicial diversity." While we concur with the sentiments expressed in the article, we respectfully disagree that the recent gathering at the courthouse steps was an expression of "anger." Rather, it was a concerted effort by minority bar associations and community-based organizations to bring an important issue to the public's attention.

Moreover, we would add that judicial accountability requires that the courts be representative of the communities that they serve. Judicial diversity also promotes impartiality by ensuring that all viewpoints, perspectives and values are part of the decision-making process.

The recent article was particularly commendable in proposing steps that can be taken in pursuit of the goal of a more representative judiciary, especially in addressing the lack of diversity on Georgia's Judicial Nominating Commission ("JNC"). Not long ago, the Georgia Association of Black Women Attorneys asked Governor Nathan Deal to diversify the JNC, but since then there has been no change in the diversity of its membership. The JNC still has only one African-American male, no African-American females, and no other persons of color among its 15 members. In 2012, this lack of representation does a disservice to the state's highly diverse populace.

Beyond the steps toward increasing judicial diversity which were suggested in the recent article, Georgia should also consider some of the more recent steps which other states have taken to pursue this goal. For example, Arizona has a constitutional provision requiring its judicial nominating commission to "consider the diversity of the state's population, however, the primary consideration shall be merit." Ariz. Const. Art.VI, § 36.

Maryland has an executive order which requires that its nominating commission "shall consider … the importance of having a diverse judiciary." Md. Exec. Order No. 01.01.2007.08.

In Missouri, the governing Supreme Court rules direct that "the Commission shall further take into consideration the desirability of the bench reflecting the racial and gender composition of the community." Mo. S. Ct. R. 10.32(f) (2008).

Several other states have laws that mandate diversity in the composition of their judicial nominating commissions. Florida, for example, requires that "the Governor shall seek to ensure that, to the extent possible, the membership of the Commission reflects the racial, ethnic, and gender diversity, as well as the geographic distribution of the population within the territorial jurisdiction of the Court for which nominations will be considered." Fla. Stat. Ann. § 43.291(4) (2008).

Tennessee law requires the appointment of "persons who approximate the population of the state with respect to race, including the dominant ethnic minority population, and gender." Tenn. Code Ann. § 17-4-102(C) (2008) Rhode Island provides that "[t]he Governor and the nominating authorities hereunder shall exercise reasonable efforts to encourage racial, ethnic, and gender diversity within the Commission." R.I. Gen. Laws § 8-16.1-2(a)(3) (2006).

We do not wish to displace the recommendations advanced by Justice Sears and Ms. Bourroughs. However, we suspect that actually codifying the state's pursuit of judicial diversity, as these other states have done, might enhance the likelihood of producing positive results.

Suzanne Wynn Ockleberry, Past President, Georgia Association of Black Women Attorneys
Charles S. Johnson, Past President, Gate City Bar Association

Amidst the Nation's Desegregation Crisis, A Voice of Reason

A Southern Negro's View of the South

By Charles S. Johnson*

From The New York Times Magazine, September 23, 1956

It is not merely by inadvertence that the viewpoint of the Negro Southerner is consistently omitted from characterizations of the "Southern point of view and way of life." It is a part of the Southern way of life to disregard it. Some writers, in order to provide a touch of realism for persons outside the South, explain that "the better-thinking elements of both races'' prefer to leave things as they are, or "it is only the outsider and agitator who want to stir up things and change the social pattern of the South." But these are not Negroes themselves speaking.

A few years ago a university press editor in one of the Upper South states projected a volume that would represent the range of Negro thought on race relations, from conservative to liberal to radical opinion. The title was "What the Negro Wants." In the final result, all of the Negro writers seemed to think and want substantially the same things; differences appeared only in the literary styles Of the authors. ·This irritating unanimity provoked the editor to one of the most extraordinary introductions in publishing history. He censured the writers for thinking and wanting the wrong things, and advised them what they should be wanting!

The common desires of Southern Negroes reflect a viewpoint about which several generalizations can be made.

(1) The Southern Negro viewpoint is more broadly national than regional. There are very few, if any, Southern Negroes who do not want full American citizenship, even though there are undoubtedly those who, if they had it, would make no better use of it than some of their white counterparts. In philosophy, the Southern Negro identification is with the nation and not with the Southern region, which is, in spirit, separatist.

(2) The present day Southern Negro does not share the belief of the Southern white that he is inferior as a human being, even though he may earn lower wages and have fewer years of schooling. Sixty or seventy years ago there were many who acted as if they believed themselves inferior, although they no longer actually believed it. What is for white Southerners most difficult to understand, in these days, is the absence of both the belief in inferiority and the simulation of this belief. More than this, there has been a measurable loss of Negro respect for the white pretenders to a superiority that can only be sustained by legal statutes and illegal violence, or the threat of it.

The apparent change in attitude of the Southern Negro reflects the difference between the political and social structure in the South itself as of today and sixty years ago. The genteel tradition of the South has been extinguished with the displacement of the Southern gentleman and planter aristocrat in business and politics by the culturally undisciplined new generations coming into power. The genteel tradition needed no segregation laws to confirm cultural superiority and position in society.

(3) It is variously expected that Negro Southerners. as a result of their limited status in the racial system, would be bitter or hostile, or patient or indifferent. They are typically none of these. If a generalized attitude can be defined, it would be something closer to forbearance. Bitterness grows out of hopelessness, and there is no sense of hopelessness in this situation, however uncomfortable and menacing and humiliating it may be at times. Faith in the ultimate strength of the democratic philosophy and code of the nation as a whole has always been stronger than the impulse to despair.

(4) The Southern Negro does not seriously expect very much change in his civil rights status through "grass roots" conversion. There has, indeed, been improvement in education, health, housing and welfare at this level, as an aspect of general improvement in community facilities. But in employment and wages, voting, personal security, access to cultural facilities, and other requisites of democratic living, there has been very little change except that brought about by a stronger and higher authority.

It was the Federal Government that wiped out the racial differentials in Southern wages, and the Federal courts that equalized white and Negro teachers' salaries and opened the ballot box. It was the impact of national and world .criticism that curbed mob violence in the South, and gave the stigma of crime to such brutal indulgences as the Emmett Till case in Mississippi; it was not the local courts or the neighbors. Few Southern whites of liberal or· humane views regarding Negro civil rights want personal responsibility among their less liberal friends for advocating such. It ·is simpler if the mandate comes. from some unchallengeable and objective authority that is stronger than the community itself.

That is why so many dark fingers are crossed in the United States today, as the compassionate high court patiently awaits local compliance with its school desegregation decrees. For aIl the recent, and welcome. advances in :border regions, the deep South is still erupting with white citizens' councils, and the Southern state Legislatures, which are dominated by the medieval pillars of the rural "grass-roots" areas, are passing defiant and, in some instances, brazenly insulting legislation in the name of the Southern way of life.

Just what do these Southerners stand for? The stereotypes and arguments in defense of what is called the Southern way of life are put forth by Southerners of presumed high responsibility, who are, in fact, the greatest present danger to American democracy. The reasons they give for insisting on racial segregation are defined as sociological and cultural, rather than moral or ethical or even humane. No Southern white opinion, respectable or otherwise, has, in the past half century, seriously ventured a moral or ethical - or humane justification for the Southern way of life.

It is true that there have been some fundamentalist attempts to torture he Holy Scriptures into a blessed condonement of inequality and inhumanity. Biblical scholars are considerably bewildered and embarrassed about the religious convictions of these mentalities.

There have been, too, attempts to "prove" that Negro students in the available Southern schools measure lower in educational achievement than white students. But Negro youth in Ohio, where there are better schools available, measured higher in the comprehensive intelligence tests for army recruits than the white youth of every state in the South except Florida, where there has been much migration from the North. With a historical one-third of the educational facilities, Negro youths have managed to do at least two-thirds as well as Southern white students on their own ground.  It is a tortuous logic that would use the tragic results of inequality to establish the need for continuing it.

Equally illogical is the economic character of the Southern way of life. 

The United States has lately experienced tremendous social and economic changes. There has been a shift in our economic perspective not yet fully recognized. The vast productive potential has made necessary the development of new areas of consumption and these are no longer found in sufficient quantity abroad. The most obvious and immeiate outlet for an expanding economic is the increased purchasing power of the underdeveloped markets at home.  This is impossible in a social economy, like that of the South, that artificially limits earning power through a restrictive racial system.

We cannot escape the fact that the Negro minority market alone, even when held down by unequal opportunity and limited education to one half of its potential, is equal to the total wealth of Canada or to our total foreigh exports.

The Southern region, despite the inevitable currents of industrializatoin, continues to cling to the older patterns of its inadequate agrarian economy. Mr. Hodding Carter of Mississippi is responsible for the statement that 65 per cent of the white college grad­uates have to leave the region to find adequate careers.

Closely related to to this plantation economy and "way of life" is the illusory role and historical philosphy of "states' rights." This is the basis of attacks on the Supreme Court and the reckless array of state legislation confirming ancient patterns of racial inequality.   

Mr. William Faulkner, the Mississippi Nobel laureate, in a second thought on this whole issue, said: We sold our states' rights back to the Federal Government when we accepted the first cotton price support subsidy twenty years ago. Our economy is not agricultural an longer.  Our economy is the federal government. We no longer farm in Mississippi cotton fields. We farm now in Washington corridors and Congressional committee rooms." Thus, if there has been a broadening of federal powers, it has been made necessary by the demands of the Southern states themselves. 

 

Finally, what of the political character of the Southern way? Most of the Legislatures are dominated by rural representatives who lack the cultural sophistication of an increeasingly urban and industrial age. As a result, the region is anti-labor, anti-capital, anti-race, anti-liberal, anti-civil rights, anti-education, anti-intellectual, anti-technology, anti-Federal Government; it is provincial and isolationist to the core.

 

Political leadership has to adjust to this level of operation, and does so whenever it prizes political success above national welfare or the dominant current of human rights sweeping over the world. At present, the preoccupation of the Southern Legislatures is not with improving the health, welfare and economy of the region, but with defeating "civil rights" as a national policy.

It is the tragic truth today that in the face of the world's turning away from the crass inhumanities of racial snobbery and imperial domination, we have a substantial part of an entire region asserting defi­ ance of freedom and the laws that support it. It is a tnrg'iC pity that wltile the rest of the world is giving new attention and .respect to basic human rights, every device from subversion of   law to violence is being employed to defeat the Constitution, and with such frantic desperation that no voice of stern national statesmanship dares defy, without apology and compromise, this organized his organized retreat from freedom to tyranny and feudalism.

There has been no bold and forthright national statesman­ship that would dare look at tlte nation as a whole and its intractable parts, and face a common destiny in the new kind of world we have today.

Even in the North, it is not yet fully recognized that the real issue is not how ·much education Negroes and other minorities can get in a segregated system, but how to improve the education of all American youth; not how racial minorities can be gradually and cautiously insinuated into industry and labor organizations, but how to increase and improve the total manpower potential of the nation for maintaining our productive capacity.

The issue is not how unsanitary some enforced racial slums and ghettos may have become, but how to improve the health and welfare of the nation without regard to race or sex or national origin - not now much a person thinks his property loses in value if a Negro moves into his neighborhood, but how to achieve a free market for living space for the people of the nation.

Basically, this Is a struggle today not between North and South, or whites and Negroes, or between the national and international points of view. It is a struggle between those who believe in democracy and those who do not.

 

Of all the voices raised in this crisis, the one most ignored has been that of the Southern Negro. In October, 1954, a group of nearly 100 Negro educators and civic leaders met in Hot Springs, Ark. and drafted a statement of invitation to sober and intelligent cooperatoin in working out this admittedly difficult problem. Although it was issued to the national press through its central services in the Southern region, it has been one of the most ignored public invitations on record.

 

 

Since it still lies buried in limbo, it is perhaps worth quoting from it:

Good statesmanship in a democracy requires that all segments of the population participate in the implementation of the court's decsion, which is  of common concern. The idea is still too prevalent that the issues involved can be resolved with­ out Negro participation. Some public officials speak as if only white Americans are involved. We are all, Negro and white, deeply and equally involved. Many Negroes can contribute sound, intelligent and states­ manlike techniques for the handling of the inevitable issues. . . .
 

The court's decision makes possible a single school system with the opportunity for the people in the region to marshal their educational resources and to develop a philosphy that brings education generally a new perspective, and to the nation a new spirit. This cannot be done in a dual system of education. Let it be clearly understood that we are not pleading for Negroes alone.  We are concerned about the best education that can be made available for every child in teh South. . . .

 

Ours Is a common democ­racy in which the weakest and the strongest, the most privileged and the most dis­ advantaged, the descendants of every race and every na­ tion, can share and happily boast that we are proud to be Americans. Children educated from the beginning in such a system will insure for us all a future of which we can be as proud as of the abolution of slavery and child labor, woman suffrage, equal educational opportunities for women, and the institution of the public schools themselves.

Time will prove that our fears have no foundation in fact just as has been proved by the implementation of previous court decisions. Segregation breeds fear; and when the barriers of segregation are at last removed from American life,·we will. wonder why we feared at all. . . . We as Negro citizens stand ready to cooperate whole-heartedly in the progressive fulfillment of these democratic objectives. 

None of this cooperation has been seriously sought or accepted. The course of events has left no alternative to Negroes but the courts. This is an unnecessary waste of ability and social statesmanshp, and a repudiation of a gracious and tempered gesture of goodwill aimed at helping the whole nation surmount a common problem.

The really critical problem of the present, we believe, is the confusion of the moral imperatives of this issue with the tired poicy of moderation, our current middle-of-the-road philosophy. Whatever the personal sentiment, there can be no middle-of-the-road attitude toward morality or legality if the fabric of our society is to remain inviolate. Where there is repudiation of the integrity of the Court and the law on any or all is­ sues. No one expects laws to reform the hearts of people, and this is not their purpose. They can, however, and do, according   to the venerable Judge Learned Hand, control the disorderly, even at times at the risk of making them angry.

The issue today is human equality and national. civil rights, and the touchstone is the racial segregation that prevents this human equality. Whatever our internal national differences on domestic issues, we are a total nation to the rest of the world, and no allowances can safely be made for regional defections from our basic American philosophy and practice. At stake is our survival in a world in which we are losing our allies by millions, the allies we need for military aid and support, friendship, trade and the essential raw materials for our industrial growth.

The essence of our system of government and life is voluntary cooperation in a democratic process that respects the dignity and rights of individuals. Our faith in the power of the human spirit to achieve the ends of a free so­ciety has given hope to mil­lions of mankind over the world. We cannot default on this · promise. This is our moral challenge tn a national crisis.


*Note by the Editors of The Times: Charles S. Johnson is a noted Negro educator and author.  He has served as President of Fisk University since 1946 and has written many books dealing with racial problems.

Establishing a Culture of Ethical Behavior and Legal Complicance After Penn State

In the wake of the Penn State crisis, educational institutions are assessing the effectiveness of their compliance and ethics programs. In doing so, they find themselves looking to the report published by former FBI Director Louis Freeh, Penn State's Special Investigative Counsel. That report contains Mr. Freeh’s candid assessment of how Penn State handled the matter based upon the results of an investigation he headed, and his governance recommendations for Penn State going forward.

The Freeh Report presents a fine starting point for an educational institution’s compliance review, as it identifies elements of effective governance and meaningful avenues for implementation and assessment of its compliance programs. It is not the end point, however. Each institution must develop its own programs to maximize effectiveness for its campus. This alert highlights several of those elements and avenues that are critical for all educational institutions to address in order to maximize their legal compliance efforts and maintain focus on their core mission to educate their students.

To learn more, click here.

As GOP Convention Set to Start, Holland & Knight on Home Turf in Tampa

From the Blog of LegalTimes
By Andrew Ramonas and Todd Ruger

With the start of the Republican National Convention only days away, Holland & Knight is busy helping to ensure that the festivities in Tampa, Fla., go off without a hitch.

Founded in Tampa, Holland & Knight is the legal adviser to the 2012 Tampa Bay Host Committee, which works with the Republican National Committee and the city to set up facilities, transportation, housing, security and other convention necessities.

Rich Gold, a Washington-based Holland & Knight partner who leads the firm's public policy and regulation practice group, said his firm is primarily assisting the host committee with "nuts and bolts" contract work. "It's been more intense as we get closer," he said.

 

About 50,000 convention-goers, as well as 20,000 additional visitors, protesters and reporters, will descend on Tampa for the convention that is slated to start August 27 and end August 30, the Sarasota Herald-Tribune reported. Organizers have secured more than 400 buses and 16,000 rooms in 105 hotels for the convention, according to the Committee on Arrangements for the 2012 Republican National Convention.

Gold said he expects the convention to run smoothly, despite reports that Tropical Storm Isaac likely will become a hurricane and move toward Florida in the coming days. The lawyer said hurricanes are rare for Tampa. And if it hits Tampa, which is a lobbying client of Holland & Knight, immediate action is "really the city's responsibility," not the firm's concern.

But Holland & Knight will have to worry about matters related to host committee contracts for about three to four months after the convention, Gold said.

"There's going to be cleanup work," he said.

Recovery of Medicare Underpayments

When Grady Memorial Hospital was getting less than their fair share of federal funding for Medicare, they turned to Charles Johnson and Paul Vranicar in the Atlanta office of Holland & Knight.   As a result of an intermediary's interpretation of Medicare regulations, Grady had been underpaid by approximately $4 million from 2003-2004.  The Atlanta team quickly pushed two cases that had been pending for years to hearings before the Provider Reimbursement Review Board in Baltimore.  At the last moment before each hearing, the intermediary agreed to reimburse Grady for almost the full amount owed. 

Grady Memorial Hospital is the primary hospital for inner-city and medically indigent populations in DeKalb and Fulton Counties - the two largest counties in the Atlanta metro area. Grady Memorial Hospital serves as the only Level-1 trauma center in metro Atlanta and for 100 miles in all directions. It also serves as one of only two burn units in the state, provides ambulance coverage for the city of the Atlanta, houses the state's Poison Control Center, and serves as a regional referral for high-risk obstetrics and neonatal care.

66 Members of Congress Join Amicus Brief In Support of University of Texas Admissions Policy

Holland & Knight, Couinsel for Amici      

SUMMARY OF ARGUMENT 

The University of Texas at Austin ("UT") has a compelling interest in attaining a diverse student body that justifies the consideration of race in its admissions. See Grutter, 539 U.S. at 325. Indeed, diversity is a compelling government interest in a number of other contexts as well, including the selection of our future military leadership, the selection of leaders of Executive Branch agencies, and the selection of federal and state judges. Accordingly, the Court's resolution of this case should be informed by these broader concerns and the need for clear guidance from this Court about how race, ethnicity, and gender can be taken into account in government programs in a manner that is consistent with the Constitution.

The Court, in Grutter, formulated a sound method for taking account of an applicant's race as part of a lawful effort to achieve diversity. This method forbids the use of quotas but permits diversity goals based on a good-faith effort to come within a range demarcated by the goal itself. It requires each applicant to be evaluated as an individual and compared with all other candidates for the position(s). The method allows race to be considered as a "plus" factor as part of a holistic review of each applicant's file that does not make race determinative or give it a predetermined weight, and which gives substantial weight to other diversity factors as well. See 539 U.S. at 335-38. This methodology is logical, straightforward and readily enforceable.

UT considered appropriate benchmarks in formulating its admissions program. While eschewing any numerical goals for the admission of minority students, UT concluded that African-Americans and Hispanics are underrepresented in its student-body in comparison to state demographics. Thus, they are eligible to have their race considered as a diversity "plus" factor when their applications are reviewed. "First Amendment interests give universities particular latitude in defining diversity." Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 792 (2007) (Kennedy, J., concurring). This Court has approved diversity goals that constitute "reasonable aspirations" for correcting underrepresentation. See Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 635 (1987). UT's use of state demographics as a benchmark is clearly reasonable for a state university. Furthermore, UT's effort to increase diversity at the classroom level, as well as the student body level, is also reasonable. The Court has recognized that multiple benchmarks may be appropriate to measure underrepresentation in a refined manner, such as by job categories rather than by reference to the overall workforce. See id.

UT concluded that its existing practice of admitting the top 10% of graduates from every Texas high school was not producing sufficient diversity in its incoming class. Under Grutter, UT could have scrapped this race-neutral "percentage plan" and implemented a race-conscious methodology for all of its admissions without violating the Equal Protection Clause. Instead, it chose to retain the percentage plan for most of its admissions and implement a race-conscious process for only 20-30% of its admissions. UT not only gave good faith consideration to a race-neutral method but adopted that approach to the maximum extent that it deemed workable as part of an overall plan to achieve its various admissions goals.

Petitioner asks the Court to second-guess the judgment of UT and the Texas legislature and rule, in essence, that the top 10% approach produces "enough diversity" so that it precludes UT from using any race-conscious component to help fulfill its diversity goals. This argument contravenes this Court's tradition of giving a degree of deference to a university's academic decisions, including the selection of its student body. See Grutter, 539 U.S. at 328-29. Accepting this argument would undermine the "narrow tailoring" of race-conscious admissions programs and experimentation with race-neutral alternatives. The lesson drawn by other universities would be to employ an entirely race-conscious methodology if they want to preserve some leeway to conduct individualized assessments to assemble a well-rounded, diverse student body. Universities would be discouraged from developing and using race-neutral admissions approaches in combination with race-conscious approaches.

Atlanta Team wins $1.8 Million for Hughes Spalding Children's Hospital

This is the second time in two years that Holland & Knight has secured a money judgment against the state of Georgia on behalf of Grady Health System.

A Holland & Knight team recently handled an appeal to the Superior Court involving the Georgia Department of Community Health's decision to recoup $1.8 million in Medicaid funds for costs incurred at Hughes Spalding Children's Hospital from 1999 - 2002.  The hospital is owned by Grady Health System, Georgia's largest public health system. 

 

 

The Medicaid plan incorporates Medicare rules which require the regulator to recognize an individual hospital's method of cost allocation.  In 2003, the state decided that it would recognize only its own method of cost allocation, and attempted to apply this decision retroactively to Hughes Spalding's cost reports for 1999-2002.  The Superior Court of Fulton County sided with Holland & Knight, agreeing that it was improper for the state to engage in this sort of retroactive decision making. 

 

 

"The Georgia Department of Community Health has essentially acted as if they could run the Medicaid program in any way they like," Charles Johnson (ATL) said.  "We have repeatedly been forced to take them to court to establish that they have to follow their own rules and also abide by principles of due process." 

 

 

The Holland & Knight team was led by Charles Johnson with the assistance of Joshua Bosin, Sarah Leopold, and Jane Warring (all ATL).  If the court's decision holds, Grady will receive a refund of  the $1.8 million they paid the state some time ago.

 

 

In 2005, the Atlanta Team secured a $6.4 million judgment for Grady as a result of the state's failure to follow another portion of its Medicaid rules relating to the federal Medicaid Disproportionate Share Hospital Program. 

 

 

10/9/2007

Rare Grant of Rehearing on Medicaid Reimbursement

With Holland & Knight's help, a large public hospital in Atlanta finally obtains $1.8 million in reimbursements.

Charles Johnson, Sarah Leopold and Josh Bosin (all ATL) recently received an appellate win on behalf of Grady Health Systems.  The case stems from an action by the Georgia Department of Community Health (DCH) to under-reimburse Hughes Spalding Children's Hospital for services rendered to Medicaid patients from 1999-2002. 

Hughes Spalding was owned and operated by the Fulton-DeKalb Hospital Authority (d/b/a Grady Health System).  The DCH based its reimbursement decision on a retroactive application of its hospital services manual, despite the existence of a contract between the parties expressly prohibiting such retroactive action.  The action by the DCH resulted in a $1.8 million loss to Grady. 

Grady's in-house counsel first challenged the action in administrative proceedings and lost before an administrative law judge who affirmed DCH's reimbursement decision.  Holland & Knight came in as appellate counsel and successfully appealed the action to the Superior Court of Fulton County.  The superior court reversed the administrative law judge and awarded Grady $1.8 million. 

On DCH's discretionary appeal to the Georgia Court of Appeals, the court reversed the superior court, adopting the position of the administrative law judge and finding in favor of DCH.  Holland and Knight filed a motion for reconsideration arguing that the court ignored the binding authority of the contract between the parties.  On Nov. 7, the same appellate panel reversed itself, vacated its original opinion and found in the client's favor based on the arguments advanced in the motion for reconsideration.  Click here to view a copy of the opinion. 

"Getting rehearing granted like this is an extremely rare occurrence," said Laurie Webb Daniel (ATL), chair of Holland & Knight's appellate team.  "This win will provide Grady with a much-needed $1.8 million in reimbursements."

11/25/2008

Leading Progressive Groups Join Amicus Brief In Support of University of Texas Admissions Policy

Sigma Pi Phi Fraternity Joins Amicus Brief of the Lawyers' Committee for Civil Rights Under Law, et al., in Fisher v. University of Texas at Austin

 

SUMMARY OF ARGUMENT

Less than ten years ago, this Court reaffirmed that attaining the benefits of diversity in higher education is a compelling state interest that can justify the use of race in university admissions.  Grutter v. Bollinger, 539 U.S. 306, 325 (2003) (endorsing “Justice Powell’s view” in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 314-15 (1978)).  This Court recognized that, for decades, Justice Powell’s opinion in Bakke “has served as the touchstone for constitutional analysis of race-conscious admissions policies,” as “[p]ublic and private universities across the Nation have modeled their own admissions programs on [his] views on permissible race-conscious policies.”  Grutter, 539 U.S. at 323.  This Court endorsed Justice Powell’s view because diversity in education remains important “in a society, like our own, in which race unfortunately still matters.”  Id. at 333.  Because, as we explain below, race matters still in 2012, the reasoning and holdings of Bakke and Grutter remain sound and should govern this case. 

It is crucial that the Court’s consideration of this case be informed by a proper understanding of the nature of a university’s interest in diversity.  As this Court has recognized, the presence of a diverse student body on campus leads to a range of educational benefits, including improved learning outcomes and better preparation for work and citizenship.  Critically, however, these benefits will not necessarily be realized merely by the admission of certain numbers or percentages of broad categories of students.  Studies show that the benefits of diversity depend upon the character and frequency of interactions among students of diverse backgrounds.  This insight should guide the Court’s application of strict scrutiny to the admissions policies of the University of Texas (“UT”).

Because race and ethnicity continue to affect the experiences and perspectives of individuals in society, racial and ethnic diversity[1] is one important aspect of the diversity that promotes the best educational outcomes.  As Justice O’Connor observed in Grutter, “[j]ust as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.”  Grutter v. Bollinger, 539 U.S. 306 (2003).  A student’s identity as a member of a particular racial group inevitably shapes, in various ways, the experiences and perspectives that student brings to both campus life and the classroom.  For that reason, admitting a student body that is racially diverse remains a compelling educational interest of a college or university.

But there are no magic numbers that, by themselves, produce diversity’s benefits.  Instead, meaningful interactions among students of different races are essential to—and indeed are the operative mechanism for—achieving diversity’s benefits.  This fact compels at least three conclusions: 

First, a university seeking to realize diversity’s benefits may consider not only the race or other characteristics of admitted students, but also how those students will contribute to the school’s courses, programs, and overall educational environment.  Social science research shows that meaningful interactions among students of different races in classrooms, departments, and campus life are key to achieving a university’s educational interests.  Thus, the “truly individualized consideration” that this Court deemed constitutionally required if race is to be considered at all, Grutter, 539 U.S. at 334—and which UT has implemented—is crucial to realization of diversity’s benefits.

Second, Petitioner’s assertion that the University’s compelling interest is necessarily satisfied by numbers alone—here, that it was satisfied when conglomerated “Hispanic and African-American enrollment” constituted “21.4% of the incoming freshman class,” Petr’s Br. 35—is misplaced.  Focusing exclusively on the numbers or percentages of students of color on campus without also permitting race to factor into individualized admissions decisions fails to protect the university’s interest in promoting meaningful interactions of students of different races inside and outside the classroom.  To merely aim to admit particular numbers of minority students, without also considering whether that is sufficient by itself to attain the educational benefits of diversity, “would amount to outright racial balancing,” which this Court has held is “patently unconstitutional.” Grutter, 539 U.S. at 331.

Third, the Court’s scrutiny of UT’s limited use of race in its admissions decisions must take into account that these decisions are made in an educational context.  See id. at 327 (“Context matters when reviewing race-based governmental action under the Equal Protection Clause.”)  A university’s admissions decisions intended to increase meaningful interaction among students of different backgrounds are educational judgments that are entitled to a measure of deference.  As Justice Frankfurter stated in Sweezy v. New Hampshire, the “four essential freedoms of a university” are: “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring) (emphasis added).  Efforts to realize the benefits of racial diversity, without sacrificing other educational objectives of a university’s admissions policies (such as ensuring that admitted students are adequately prepared and otherwise diverse), require numerous judgments about both the students to be admitted and the nature of students’ interactions inside and outside the classroom.  These judgments require expertise in higher education that is clearly possessed by universities and is squarely within universities’ constitutional domain.  The courts should therefore accord some deference to a university’s judgments about both the need for racial diversity and the means that will achieve it without sacrificing other important educational interests.

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[1] Throughout the remainder of this brief, for the sake of brevity, references to “racial diversity” encompass both racial and ethnic diversity.

Jeh Vincent Johnson, Architect; Lecturer

From the Saunders Family History Book

Born on July 8, 1931, in Nashville, TN; married Norma, 1956; children: Jeh Charles, Marguerite Marie

Education: Columbia College, AB, 1953; Columbia University, MA, architecture, 1958.

Military/Wartime Service: United States Army, 1953-54.

Memberships: National Organization of Minority Architects (NOMA), co-founder, 1971.

Career

Paul R. Williams, architect and designer, 1956; Adams and Woodbridge, Architects, architect and designer, 1958-62; Gindele and Johnson, architect and designer, 1962-80; Vassar College, lecturer in art and design, 1964-2001; LeGendre, Johnson, McNeil Architects, partner, 1980-90; Jeh V. Johnson, FAIA, architect, 1990-.

Life's Work

In a career spanning over forty years Jeh Vincent Johnson has remained committed to the idea that designers should take account of their social responsibilities and attempt to provide buildings that respond to "human emotional needs," as he told Contemporary Black Biography (CBB). He has followed this principle both as a teacher at Vassar College and in his private architecture practice. Besides numerous churches, colleges, and community buildings he is responsible for designing over 4,300 housing units, many of which were developed under government programs during the 1960s to provide good-quality, low-cost housing for underprivileged groups. He is known as a thoughtful designer, an inspirational teacher, and a forceful, untiring advocate for female and minority architects.

Born in Nashville, Tennessee, on July 8, 1931, Johnson was the youngest of five children, though his twin sister died soon after birth. He grew up on and around the campus of Fisk University, where his father, Charles Spurgeon Johnson, was professor of sociology and later the university's president. Johnson's mother presided over a home that welcomed visitors and was always busy with guests, boarders, and family members. Although his parents were Baptist and Methodist, Johnson first attended the St. Vincent de Paul Catholic School and then Pearl High School in Nashville. Though segregated, St. Vincent's in particular had an enviable academic record and provided Johnson with a good early education.

Benefited from Excellent Training

Johnson was a bright student in high school. When he graduated, the Dean of Columbia College at Columbia University invited him to apply for the Columbia College National Scholarship for 1953. The advantage of studying there was that he could begin his professional studies in architecture a year early, in his senior year. He entered the School of Architecture, where he became President of the Student Body.

In between his first and second years at graduate school, Johnson was drafted into the Army, rising to the rank of sergeant during his twenty-two months' service. He returned to Columbia where his architectural heroes were Frank Lloyd Wright and Le Corbusier. Johnson was later influenced by Albert Mayer and Clarence Stein. He had a summer job working for black architect Paul R. Williams in Los Angeles. Williams was known as "the architect to the stars" and Johnson felt that the experience of working for him not only made him a better designer, but also gave him a new perspective on architecture itself. He told CBB that "My work with him and his easy going, eclectic way of doing things stood in striking contrast to the rather rigid functionalism that was current in the eastern schools."

After graduating in 1958, Johnson won the William Kinne Fellows Fellowship for travel. He was already interested in designing multi-family housing and Europe was at the cutting edge of that kind of work. While still a graduate student Johnson had met and married Norma Edelin and she accompanied him for the first few months of his trip. In all, Johnson and his used VW covered 10,000 miles in the eight months of his stay in Europe, visiting countries as far apart as Italy and Sweden.

Johnson has said that his studies of group housing projects and his talks with European planners served him well in his later professional career. He was particularly impressed by the Stockholm New Town Hall, which he thought had managed to "incorporate vernacular traditions and patterns into a major public structure that has importance and dignity, while retaining a tactility and humane scale that is most appealing."

Opened Private Practice

On his return to the United States in 1959 Johnson entered private practice in Hudson Valley, New York, with his college friend William Gindele. Most of their work was on community buildings: multi-family housing, community centers, churches, schools, and single-family homes. By 1967 Johnson had become so successful in the field of multi-family housing that he was contacted by the White House to serve on President Lyndon B. Johnson's National Commission on Urban Problems. At the time many American cities were suffering the after-effects of rioting and looting and minority groups were deeply resentful of the conditions they felt were forced upon them by local governments. The Douglas Commission, as it was known, met in eighteen urban locations over the course of two years. So dangerous was the atmosphere that there were often offered a police escort, though they rarely accepted. As Johnson has noted the work of the commission was received without fanfare, but most of its recommendations for ways of rationalizing taxation, construction processes, and alleviating segregation have since been adopted.

The Douglas Commission led Johnson to involvement with the American Institute of Architects (AIA), where he became chair of the National Committee on Housing. He served on numerous committees and eventually became chair of the committee for the 1974 national convention. He declined the nomination for national director of the AIA because he felt it would interfere with his other work. In 1977 he was elected to the AIA's college of fellows, the highest honor for any practicing American architect.

Much of Johnson's work centered on Poughkeepsie and the area around Vassar College in New York, where he taught for thirty-seven years. It includes the former Poughkeepsie Day School building, the Susan Stein Shiva Theater, the Poughkeepsie Catharine Street Center and Library, and the ALANA Center on the Vassar campus. In the late 1990s he converted the Poughkeepsie Day School building, one of his own designs on the Vassar campus from 1963, into a college office, lab, and classroom block.

Inspired His Students

In 1964 Johnson began teaching at Vassar College, where he had a studio in architectural drawing and design, and where he encouraged students not only to learn draftsmanship, but to think about the human value of their designs. Johnson was always been committed to the idea that thought and reflection are a crucial part of the design process and he inspired his students to be conscious of what they were trying to do in their designs.

Johnson's work at Vassar was also instrumental in encouraging women into architecture. In 1964 very few women entered the profession, yet by the end of the twentieth century many graduate schools had equal numbers of men and women. Johnson's approach to encouraging female architects was characteristically pragmatic and generous. He told CBB that "We had a lot to do with changing that, I think, partly through personal contacts, partly by pushing students to reach beyond their expectations of acceptance, and partly by involving them in the dynamics of my own practice."

In 1971 Johnson and four male colleagues at the AIA national convention in Detroit formed the National Organization of Minority Architects (NOMA) because they felt that minority architects were unknown to the American public. They were especially keen to publicize the profession to young black and Latino students. By 2003 NOMA represented hundreds of minority men and women, with chapters in all the major architecture schools in America. In 1997 Johnson was awarded a special citation from the New York chapter of the AIA for his advocacy on behalf of equal opportunity and housing issues.

Johnson's influence on urban development, on young minority and female architects, and on the profession as a whole, is substantial. As a teacher he has inspired hundreds of students to go on to successful careers as architects and as teachers in design schools around the country, while his commitment to fairness and humane values in architecture and urban design has improved the quality of the lives of thousands of Americans.

Awards

AIA, Students Medal, 1958; William Kinne Fellowship, 1959; Fellowship of American Institute of Architects, 1977; New York chapter of the American Institute of Architects, special citation, 1997.

New York Times, September 11, 1949; December 29, 1956; November 4, 1973.

On-line

"Jeh Vincent Johnson." Biography Resource Center, www.galenet.com/servlet/BioRC (February 3, 2004). National Organization of Minority Architects, www.noma.net (March 1, 2004).

"Three Faculty Members Retire," Vassar Today: The Alumni Quarterly, www.aavc.vassar.edu/vq/fall2001/articles/today/faculty_retire.html (March 1, 2004).

Other

Additional material for this profile was obtained through a written interview with Jeh V. Johnson on February 3, 2004, and from documents he kindly supplied.

— Chris Routledge