Excerpt from Disdain of Alien Lawyers: History of Exclusion

                          (Published in Constitutional Law Journal; footnotes omitted)

            Introduction 

            The pages of American history are filled with stories of racial and ethnic minorities seeking inclusion in the national community.  The legal profession has played a noteworthy role in that history.  Disdain of foreign lawyers has been embedded in the American legal tradition.  An overwhelming majority of jurisdictions once prevented permanent resident aliens from gaining admission to the bar. The arguments crafted for excluding aliens often swept broadly, reflecting stereotyped distinctions between citizens and aliens.  As the Supreme Court of California recognized, this exclusion stemmed from the “lingering vestige of [a] xenophobic attitude.”    Given the attorney’s expected role in the pursuit of justice, it is ironic that this grave injustice thrived in the legal community itself.  A series of cases challenging the citizenship barrier illustrates the hard-fought struggle of aliens to prove themselves worthy of inclusion in the nation’s legal community.  (pages 103-104)

           The Equal Protection Clause 

            Using the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, aliens have long fought against discriminatory legislation.  The Equal Protection Clause has become a vital source of individual legal rights in the United States. It commands that no state “shall deny to any person within its jurisdiction the equal protection of the laws.”  This guarantee extends universally to all persons within the territorial jurisdiction of the United States.  Called upon to protect discrete and insular minorities, the Clause stands as a symbol of the nation’s abiding belief in equality.  The Equal Protection Clause gave constitutional status to an egalitarian ideal, which developed during the colonial period.  At the core of the Clause lies the notion that equal treatment should be afforded to all persons similarly situated.  (pages 110-111)

            The goal of eradicating the oppression of African-Americans formed the core of the initial equal protection framework.  Recognition of African-Americans as a discrete and insular minority has remained firmly embedded in constitutional thinking.  The Supreme Court declared that “the desire to protect African-Americans” was “the chief interest of the people in giving permanence and security to citizenship in the Fourteenth Amendment.”  Consistent with that history, the court has vigorously enforced the equal protection guarantee to eliminate racial inequality. 

            On the other hand, a resident alien’s constitutional status continues to remain unstable.  In 1915, Truax v. Raich appeared to lay the foundation for aliens’ right to work.  The Court recognized an alien’s right to work as “the very essence of the personal freedom and opportunity” secured by the Fourteenth Amendment; denial of this right solely on the ground of race or nationality should, therefore, be condemned.  Yet as a practical matter, Truax had a limited effect; the ruling did not necessarily apply to discriminatory legislation with respect to professions.  Consequently, many states excluded aliens from professions such as optometry, psychology, architecture, medicine, teaching, and law.  In 1971, Graham v. Richardson heralded a major change in the constitutional status of resident aliens. The decision struck down a statute denying welfare benefits to resident aliens.  Writing for the majority, Justice Blackmun explicitly recognized aliens as a discrete and insular minority.  As a result, alienage-based classifications trigger rigorous judicial scrutiny, which can be sustained only if supported by a compelling state interest.

            Nonetheless, the Court has carved out an exception to the rule established in Graham.  Under a “political function” theory, alienage classifications will be subjected to a mere rational basis test when they fall within “matters firmly within a state’s constitutional prerogative” and seek to “preserve the basic conception of a political community.”  All states therefore deny aliens the right to vote and to hold public office.  Also, a state may deny aliens access to public employment positions that “fulfill a most fundamental obligation of government to its constituency,” such as public school teachers, police officers, and probation officers.  In 1973, prior to the Griffiths decision, lawyers, as “officers of the court,” comprised part of the political function exception.

            Often, however, difficult questions of value arise as to exactly what positions fall within the sphere of the political function theory.  In upholding the New York statute prohibiting aliens from teaching in public schools, the Supreme Court in Ambach v. Norwick recognized that its approach to the permissibility of alienage-based classifications has “not formed an unwavering line over the years.”  (pages 112-114) 

            Alien Exclusion from the Bar: Overview

             The power to regulate bar admission standards primarily vests with the individual states; thus, the standards vary.  Nevertheless, the state’s power to regulate bar admission is subject to supervision by the courts.  Judicial review will ensure that a state statute enacted pursuant to a state’s police power bears a reasonable relation to the protection of the general welfare.  As a result, the state cannot control the practice of law in an arbitrary or discriminatory manner.

            A seminal case addressing bar admission standards is In re Day.  In re Day, the Illinois Supreme Court held that the legislature may prescribe, for bar membership, reasonable qualifications relating to legal learning and personal character.  In its analysis, the court explored lawyers’ duties and emphasized that the right to practice law was a privilege.  The Court stated that attorneys are officers of the court, a vital part of the judicial system. Attorneys are the “first one[s] to sit in judgment on every case, and whether the court shall be called upon to act depends on [the attorneys’] decision.  Thus, the entry into the profession requires sufficient legal knowledge as well as good moral character.  Attorneys, for instance, must be equipped with the ability to apply legal principles to varying fact situations and to bring the facts and law before the court, assisting in the administration of justice.  Thus, noted the Day court, the legislature may impose certain restrictions on the privilege of the legal practice for the protection and welfare of the public.  (pages 120-122)

            Opening Doors to Aliens: Moving Toward an Individualized Approach

            The subsequent development in case law began to challenge the justifications long maintained for restricting bar membership.  The line of cases discussed in this section, although not involving alienage issues, set the stage for aliens’ entrance to the bar. It becomes clear from these decisions that a bar candidate should be entitled to practice law as long as he or she is morally and professionally fit to serve as a member of the profession. 

            In 1957, the United States Supreme Court indirectly helped pave the path for aliens in Schware v. board of Bar Examiners.  The Schware court articulated that entry into the legal profession should be conditioned solely on moral character and professional competence.  The case arose over the exclusion of Rundolph Schware from the New Mexico bar, due to his past membership in the Communist Party as well as his prior arrest record and use of aliases.  Holding for the plaintiff., Justice Black, writing for the majority, reasoned that the required qualifications must be reasonably connected with the applicant’s fitness or capacity  to practice law.  Equally important, the Court refused to discuss whether the practice of law is a right or privilege.  The Court held, irrespective of this distinction, that a person cannot be prevented from entering the profession except for valid reasons.  After a careful and comprehensive analysis of Schware’s personal, educational, and occupational background, the Court concluded that no evidence raised substantial doubts about his present good moral character.  (pages 132-133)

            Landmark Decisions

             At last, in 1973, the United States Supreme Court took a momentous step in In re Griffiths.  In striking down the citizenship requirement for the Connecticut bar, the United States Supreme Court declared that aliens should no longer suffer discrimination.  Unlike the three state supreme court decisions discussed previously, Griffiths was initiated by an alien who refused to attain citizenship.  Fre Le Poole Griffiths, a citizen of the Netherlands, “was eligible for naturalization by reason of her marriage to an American citizen and residence in the United States for more than three years.”  The Court permitted her to practice law without sacrificing her original citizenship. 

            In justifying the citizenship requirement, the State asserted that every lawyer in Connecticut, a commissioner of the Superior court, functions as an officer of the court.  Contrasting a citizen’s undivided allegiance to America with an alien’s possible conflict of loyalties, Connecticut argued that alien lawyers would fail to protect their clients’ interests faithfully. However, as in numerous other cases, the State failed to offer any concrete proof by way of statistics or facts, which would support its claims.

            The majority rejected the State’s argument, finding no direct link between citizenship and a lawyer’s professional duties. Under equal protection analysis, the State failed to establish a need to exclude all aliens to “vindicate its undoubted interest in high professional standards.”  Instead of imposing the citizenship requirement, said the court, “Connecticut has wide freedom to gauge on a case-by-case basis the fitness of an applicant to practice law.”  The Griffiths ruling led all states to open their bars to resident aliens.  As one observer noted, “because of Griffiths, the walls of legal monopoly in America [by citizens] have crumbled.”  This immediate consequence alone significantly helped to end the lengthy history of alien exclusion.  In a broader sense, the decision provided impetus for a movement toward a diversified practice of law.   (pages 140-142)

            Conclusion

             The tradition of alien exclusion from the bar highlights the failure of American courts, as well as society generally, to condemn and remedy the inferior status of immigrants.  A piece of paper indicating a person’s lack of citizenship bears no relation to his or her intrinsic worth.  Until relatively recently, however, that piece of paper functioned as a barrier, excluding alien lawyers who could have contributed their rich ethnic heritage to the development of a global legal community.  A long series of cases arose from societal prejudices against aliens, who were labeled as disloyal foreigners ill-equipped to have the “privileged” status of belonging to the legal profession.  At last, In re Griffiths removed the barrier, advocating an individualized determination of one’s fitness to practice law.  This decision marked an end to the long history of excluding alien lawyers as well as a beginning of the internationalized legal practice.  The legal profession cannot ignore the kind of social and political environment in which it operates.  The continuous flow of immigrants pouring into this nation as well as the growing volume of cross-border business transactions should alert America to integrate aliens more fully into its legal community.  (pages 147-148)