Opposition to Thomas Griffith

Recipient: Senators Specter and Leahy

The Honorable Arlen Specter
Chair
Senate Judiciary Committee
224 Dirksen Senate Office Building
Washington, DC 20510

The Honorable Patrick Leahy
Ranking Member Senate Judiciary Committee
152 Dirksen Senate Office Building
Washington, DC 20510

Dear Senators Specter and Leahy:

On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil and human rights coalition, we write to express our opposition to the confirmation of Thomas Griffith to the United States Court of Appeals for the District of Columbia Circuit. His views on educational equity for women and girls, and the implication of those views for the continued vigorous enforcement of federal civil rights laws, compel us to conclude that Mr. Griffith is a poor choice for the federal appellate bench.

Title IX of the Education Amendments of 1972 bars sex discrimination by educational institutions that receive federal funding, including discrimination in their athletic programs. Title IX has increased opportunities for women and girls to play sports, receive college scholarships, and derive important health, emotional, and academic benefits that come with participation in athletics.

Mr. Griffith served as a member of the Commission on Opportunity in Athletics (“Title IX Commission”) created by Secretary of Education Roderick Paige in 2002 to evaluate whether and how current standards governing Title IX’s application to athletics should be revised. The Commission made a series of recommendations that would have seriously weakened Title IX. Mr. Griffith supported the Title IX Commission’s harmful recommendations. In addition, he offered a radical proposal to eliminate the “substantial proportionality” test for assessing compliance with the Act. This test, by allowing educational institutions to comply by offering athletic opportunities to male and female students that are in substantial proportion to each gender’s representation in the student body of the school, is critical to the effectiveness of Title IX in the athletics arena. The proportionality test measures whether, in athletic programs that are segregated by sex, schools are providing female and male students with equal opportunities.

In arguing to abolish the proportionality test, Mr. Griffith claimed it violates the Equal Protection Clause of the Constitution and attacked it as “illegal, unfair and wrong” (Transcript of Commission hearing, Jan. 30, 2003 at 26). All of the eight federal courts of appeal to consider this issue have refused to accept arguments like those put forth by Mr. Griffith. When other Commissioners pointed this out, Mr. Griffith showed disdain for the courts, declaring that all eight courts of appeal “got it wrong” (Transcript of Commission hearing, Jan. 30, 2003 at 27).

In the end, while the Commission was willing to adopt a number of proposals to weaken Title IX, Mr. Griffith’s proposal was rejected by a vote of 11 to 4.

Mr. Griffith’s approach to Title IX raises serious concerns about his approach to other critical components of the civil rights laws as well. For example, his opposition to what he calls “numeric measures” even in sex-segregated settings (like athletics), where they are simply a means of measuring discrimination in the allocation of opportunities, clearly suggests that he is hostile to numerical approaches to measuring and remedying discrimination in other contexts. These include affirmative action remedies for discrimination in employment or contracting, or the use of statistical evidence to prove that facially neutral practices have a disparate, adverse impact on racial minorities or women. These are key civil rights tools that are directly threatened by Mr. Griffith’s analysis.

Finally, we are also troubled by reports that Mr. Griffith, for several years, practiced law in D.C. and Utah without a valid license. In fact, he is still not a member of the Utah bar, even though he is the general counsel for Brigham Young University. Mr. Griffith’s lack of concern for the ethical rules that require up-to-date licensure for the legitimate practice of law reflects poorly on his judgment and his willingness to play by the rules.

For the reasons outlined above, we oppose the nomination of Thomas Griffith to the U.S. Court of Appeals for the D.C.Circuit. If you have any questions or need further information, please contact Nancy Zirkin at (202) 263-2880, or Rob Randhava, LCCR counsel, at (202) 466-6058.


Sincerely,

Wade Henderson
Executive Director

Nancy Zirkin
Deputy Director


cc: Senate Judiciary Committee