Indiana school ready to pay Paul Clement's firm $200K to defend anti-trans bathroom ban

A contract obtained by Law Dork lays out the agreement, which shows the conservative lawyer took the case at a deep pay cut.

Paul Clement is taking a deep pay cut to represent a school district in Indiana that is going to the U.S. Supreme Court to defend its effort to ban transgender children from using the restroom that fits with their gender identity.

Clement, the former solicitor general of the United States in the George W. Bush administration, is a high-priced Supreme Court lawyer who has argued more than 100 cases before the high court.

And yet, for the Metropolitan School District of Martinsville’s case against a trans student, Clement has only been paid $100,000 thus far and, if the justices agree to hear the appeal, has agreed to take the case through Supreme Court arguments for just another $100,000, Law Dork has learned.

While exceptionally cheap for Clement’s high-value time, the potential $200,000 fee represents a not insubstantial amount of money for MSD Martinsville to pay to defend a voluntary, discriminatory policy.

Law Dork has reported previously on the petition seeking a writ of certiorari that Clement filed in the case, A.C. v. Metropolitan School District of Martinsville.

A.C. is a transgender boy who, as the U.S. Court of Appeals for the Seventh Circuit detailed, “used the boys’ bathrooms” despite a policy prohibiting him from doing so as a trans boy. Per the court, “He immediately felt more comfortable at school and better about himself. No students raised any issues or questioned A.C.’s presence, but a staff member reported him.” This led to A.C. suing the school district.

MSD Martinsville lost at the appeals court, as it had at the district court, leading to its decision to seek Supreme Court review. The case ultimately raises the question of whether Title IX of the Education Amendments of 1972 or the Equal Protection Clause prohibit schools from banning trans students from using the restroom that fits their gender identity.

Or, as Clement, who is listed as counsel of record on the certiorari petition, phrased it in an attempt to bend the arguments in his client’s favor: “Whether Title IX or the Equal Protection Clause dictate a single national policy that prohibits local schools from maintaining separate bathrooms based on students’ biological sex.”

On Monday, a handful of conservative groups and several Republican-led states weighed in, asking the justices to take up the case.

Lawyers for the student, A.C., are now slated to file their response to MSD Martinsville by Dec. 13. The timing means that the briefing would be completed in time for the court to hear the case this term — with a decision then expected by the end of June 2024 — if it wishes to do so.

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According to the contract Clement reached with MSD Martinsville, Clement’s firm, Clement & Murphy, should have already been paid $100,000 for asking the Supreme Court to hear the case (the certiorari stage) and would be paid another $100,000 if the high court grants certiorari and takes the appeal (the merits stage). The contract was obtained by Law Dork under a public records request.

Lawyers who practice before the court say the Clement & Murphy price tag is many times less than what any BigLaw firm might charge a private client for such a case — particularly at the merits stage — with a high-profile lawyer like Clement able to draw significantly more than $1 million from a private business client for an argued Supreme Court case.

Although some newer appellate advocates are willing to work on the cheap or even for free to get the chance to argue at the Supreme Court, that’s not Clement’s situation. By my count, he’s already argued at the court 110 times in the past quarter-century.

Clement, however, regularly represents conservative causes at the high court. He previously represented the House in Republican leaders’ defense of the Defense of Marriage Act and is one of the leading gun rights lawyers (most recently having successfully argued against New York’s conceal-carry registration law in N.Y. State Rifle & Pistol Assoc. v. Bruen). In relation to those cases, Clement has twice now left big firms to keep representing a cause that was deemed too conservative for the not-exactly-far-left corporate law world. Among many other cases at the Supreme Court, he also represented Hobby Lobby in its successful high-profile contraception fight and North Carolina Republicans in their successful fight to end federal partisan gerrymandering claims.

In short, Clement doesn’t need the money or the podium time and has a history of being drawn to cases advancing conservative causes.

Clement did not respond to a request for comment on why Clement & Murphy took the case for such a low fee.

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The fee is both an extremely low one for a lawyer like Clement and — at the same time — a lot of money for MSD Martinsville to be prepared to shell out as part of an effort that even the school board admits in its resolution authorizing the appeal could be raised elsewhere given that “there is disagreement throughout the country“ in the cases.

It’s also a lot of money for a school district that has only roughly 350 students in each grade. (The school district reports that it has fewer than 4,500 students in grades K-12.)

It’s pretty easy to imagine where the money could be better spent. According to the latest tentative contract with the teachers’ union, new teachers to the district with 15 years of experience will only make between $55,000 and $62,000 a year. (Brand-new teachers, meanwhile, would make as little as $44,500.) Additionally, the district only will be providing teachers who are new moms with “a maximum of ten (10) days of paid maternity leave.” (It’s not clear whether new fathers get any parental leave.)

But, MSD Martinsville is willing to put up to $200,000 — plus the regular Indiana-based counsel’s fees — toward fighting to keep trans kids out of the bathroom that fits with their gender identity. According to a 2021 contract with its usual counsel at Bose McKinney & Evans LLP, the lawyer who is the school district’s “primary point of contact” bills the school $385 per hour.

And, of course, and as the Clement & Murphy contract details, there is “No Guarantee of Success.”

This report was expanded after initial publication to include additional background information about the case, with the final update at 10:15 p.m.