Mischief makers: the men behind all those anti-affirmative action lawsuits – includes news analysis on court decisions that affect diversity in higher education - Higher Education

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Mischief makers: the men behind all those anti-affirmative action lawsuits – includes news analysis on court decisions that affect diversity in higher education

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by Idris M. Diaz

When a group of Republican state lawmakers last summer mounted a public campaign to find potential plaintiffs for a class-action lawsuit against the University of Michigan’s affirmative action admissions policies, Jennifer Gratz responded immediately. Gratz, a policeman’s daughter and former high school homecoming queen, had been rejected by Michigan in 1995 despite strong grades and high standardized-test scores.

“When I was turned down, I was disappointed and embarrassed,” she said in a recent interview. After receiving Michigan’s rejection letter, Gratz, who is White, discussed with her parents the idea of suing the school. “But it really wasn’t serious then. I knew we didn’t have the resources.”

The resources and legal expertise that ultimately made the Michigan lawsuit possible were provided by the Washington, D.C.-based Center for Individual Rights (CIR), a conservative public-interest law firm that over the past two years has mounted an all-out assault on university affirmative action admissions policies.

Last year, CIR jolted the academic establishment with its stunning legal victory in Hopwood v. State of Texas. It convinced the Fifth Circuit Court of Appeals to, in effect, reverse long-standing Supreme Court precedent that permits race to be considered as a “plus” in admissions decisions. The Hopwood opinion is only binding law in the Fifth judicial circuit which includes Texas, Mississippi, and Louisiana. But it has been causing universities around the country to reexamine their admissions policies.

Sensing that the academic establishment was on the ropes, CIR in March sued the University of Washington Law School over its admissions policies. The lawsuit against the University of Michigan undergraduate program followed in October. And just this month, the Center filed a separate lawsuit against the admissions policies at Michigan’s law school. CIR’s rapid flurry of litigation has set in motion a legal controversy that almost certainly will have to be resolved one day by the U.S. Supreme Court.

“We’re trying to make clear to the higher education establishment that they can’t just go on operating as if they’re above the law,” says CIR spokesman Terence J. Pell. “Higher education officials know perfectly well that their admissions policies are illegal and they just go ahead and operate them anyway.”

Defying Neat Labels

It might be tempting to view CIR simply as a bunch of racists out to roll back the gains that African Americans and other minorities have made since the civil rights movement. With backing from several leading conservative and libertarian foundations and some of the nation’s most high-priced legal talent, CIR, since its founding in 1989, has been bringing precedent-setting litigation challenging everything from affirmative action to political correctness on campus. But whatever one ultimately concludes about their motives, CIR is a complicated organization whose far reaching political and courtroom agenda defies neat labels.

In all of CIR’s university admissions cases, the lead plaintiffs have been White women, a strategic decision that in the court of public opinion undercuts arguments that affirmative action has primarily benefitted this group. Yet CIR has hardly been an ally of the women’s movement. For example, the group successfully challenged a Federal Communications Commission program that gave women an edge in competition for broadcast licenses.

In the free speech area, CIR has defended the rights of at least two controversial university professors, one whose views were on the political left, the other on the political right. In addition to all of its higher education litigation, CIR also recently managed to squeeze in a successful defense of California’s Proposition 209, which bars any consideration of race, sex, color, ethnicity, or national origin in state decision making. In November the Supreme Court declined to consider a challenge to the statute, effectively removing any obstacle to its implementation.

While CIR has railed against what it calls minority “racial preferences,” it also sued Alabama State University on behalf of an African American student over a “Whites only” scholarship administered by the historically Black college in an effort to promote “diversity.”

The Alabama State lawsuit is viewed by CIR critics such as Theodore M. Shaw, associate director-counsel of the NAACP Legal Defense Fund, as a cynical move by CIR officials to sanitize their image. The Legal Defense Fund has been criss-crossing the country in an effort to counter CIR’s courtroom shooting spree.

“They’re pushing color blindness as a principle, and they’re pushing it without regard to the effect it will have on African American students,” says Shaw. “Even when they [CIR] represent Black folks, it is always in pursuit of a principle which, I think, if applied blindly will operate to the detriment of Black people.”

Limited Government

CIR Executive Director Dr. Michael S. Greve says that what motivates the organization — whether it is opposing programs benefiting Blacks, Whites, or women — is not opposition to civil rights, but a firm belief in the conservative notion of limited government.

“It’s really a very bad thing for the government to silence viewpoints or to discriminate against people on the basis of their religion or their race,” he says. “If there is no line against those things, then the government can do whatever it wants.”

What is at issue in CIR’s university admissions lawsuits is the 1978 U.S. Supreme Court decision in Regents of the University of California v. Bakke. In that case, the Court struck down a program at the University of California-Davis that set aside a specific number of seats for minority students in the first-year medical school class. Nevertheless, the Court said that a university’s First Amendment-based interest in academic diversity could permit race to be used as a “plus” in admissions decisions.

Hopwood was the first major affirmative action admissions case to hit the courts since Bakke. In its opinion, the Fifth Circuit Court of Appeals boldly asserted that the Bakke opinion was no longer valid in the wake of more recent Supreme Court decisions outlawing state and federal government programs that set aside government contracts for minority-owned businesses.

At the University of Texas School of Law, the results of the Hopwood decision have been devastating. Only eleven African American students were offered admission to the first-year class, down from sixty-five the previous year. Only four actually enrolled, compared with thirty-one the previous year. The Supreme Court in July refused to review the Hopwood case.

Despite its role in Hopwood, CIR officials nevertheless maintain that they are proponents of diversity who support the idea that state-run institutions such as the University of Texas and the University of Michigan have a responsibility to provide educational opportunities to all its citizens. They also claim to be troubled by the dramatic decline in minority enrollment that has occurred at the University of Texas Law School.

But CIR contends that this decline could have been averted if university administrators at the University of Texas had not been so determined to remain in the ranks of elite law schools, a ranking which is largely based on the average grades and test scores of the student body. Because law schools, like other institutions of higher learning, have made grades and test scores the centerpiece of their admissions decisions. CIR officials assert, it is discrimination for them to admit minority students who have lower combined grades and test scores than competing White students.

“If [state-run universities] really think their mission is to educate all the citizens of the state, they’re going to have to de-emphasize grades and test scores and look at other factors that would help to identify students who will make a contribution to the community,” says Pell, CIR’s spokesman.

CIR officials also assert that they do not object to consideration of race by private institutions, such as Harvard. This is simply not a proper role for state-run schools, they say. However, they do acknowledge that if Bakke were reversed, even private schools could not use race in their admissions decisions without new federal legislation, which they say they favor.

Using the Opposition’s Strategy

Ironically, many affirmative action supporters agree with CIR that grades and test scores should be de-emphasized. They also agree that university admissions committees should be relying more on qualities such as leadership potential, economic hardship, and community service in making their decisions.

Sumi Cho, an assistant law professor at DePaul University and a member of the board of governors of the Society of American Law Teachers (SALT), says that in the wake of Hopwood, her society is currently studying alternative approaches to admitting students, as well as alternative methods of ranking law schools.

But Cho believes that even if law schools and undergraduate schools were to change their admissions procedures, there will always be a need to use race as a factor in order to achieve a diverse student body. For Cho, CIR’s emphasis on colorblindness is misplaced because it ignores this country’s history of racism.

“The real question is: `Should the state be in the business of taking racism into account?'” she asks. “And if you take racism into account, why can’t you also take race into account? Because to do otherwise would be an endorsement of the accumulation of White privilege over the centuries.”

CIR’s recent string of courtroom successes are rooted in a public advocacy model first mastered by liberal organizations such as the NAACP Legal Defense Fund and the American Civil Liberties Union. The model has also been used by several conservative advocacy groups that have sprouted around the country since the 1970s. They include the Washington Legal Foundation, the Institute for Justice, and the Pacific Legal Foundation.

Like their liberal counterparts, CIR only accepts cases that have been carefully selected for their precedent-setting value. Potential clients are screened to ensure that they will make sympathetic plaintiffs. CIR’s work is financed by healthy doses of cash from private foundations of a conservative stripe. And the organization also has benefitted from a network of politically like-minded lawyers who have been willing to contribute their otherwise high-priced services for free.

Finally, just as liberal advocacy groups benefitted from a sympathetic judiciary during the heyday of the civil rights movement, CIR has benefitted from the corps of conservative judges appointed during the Reagan and Bush years. All three of the appellate judges who decided the Hopwood case were appointed by either Reagan or Bush.

The Professors’ Attorneys

CIR co-founders Greve and Michael P. McDonald, both 41, met while working at the Washington Legal Foundation (WLF) in the 1980s. The foundation largely focuses on economic issues, but it was also responsible for mounting a successful legal challenge to a University of Maryland scholarship program established to benefit minority students.

Greve and McDonald decided to establish an organization that would focus on three high-profile social policy targets: free speech, sexual harassment — which to McDonald means “challenging the fanatical application of sexual harassment regulations” — and civil rights. McDonald already had a background in First Amendment law, and both men say they were alarmed at what McDonald described as efforts by university administrators to “muzzle” students and faculty in the name of political correctness.

These campus “free speech” cases were some of CIR’s first efforts, but in this area the organization has supported plaintiffs on both ends of the political spectrum.

In 1990, CIR came to the aid of Michael Levin, a tenured professor of philosophy at the City University of New York. In a series of published articles Levin claimed, among other things, that, “It has been amply confirmed over the last several decades that, on average, [B]lacks are significantly less intelligent than [W]hites.”

When university officials began taking steps toward revoking Levin’s tenure and creating “shadow” sections of his courses to shield students who were offended by his views, CIR sued on his behalf. A federal appellate panel eventually held that the university had violated the professor’s free speech rights and prohibited any further action against him.

However, in 1994 CIR also represented Robert J. Scallet, a White contract professor at the University of Virginia’s Darden School of Business. Scallet sued the school alleging that it refused to renew his contract because, both in the classroom and in faculty meetings, he had been a strong proponent of diversity and championed the idea of refashioning the curriculum to make it more acceptable to women and minorities.

Last year, a U.S. District Court in Virginia agreed with the university that Scallet had been dismissed solely because his conduct was disruptive and because he had difficulty working with other faculty members. The case has been appealed to the U.S. Supreme Court.

“In most of the cases we’ve done, the speech was plainly within the purview of academic freedom,” says McDonald, explaining the center’s decision to take on these seemingly distinct cases. “It was perhaps offensive, but in all the cases I can recall [the speech] served entirely legitimate academic purposes.”

Higher education has been a constant target for CIR. Of the twenty-two active cases listed on the organization’s home page, thirteen involve higher education. But the organization has not shied away from other areas as well.

The Men Behind the Wheel

One of CIR’s first anti-affirmative action cases was Lamprecht v. Federal Communications Commission. CIR represented a White male who challenged the agency’s policy of giving an edge to women in the competition for broadcast licenses solely because of their gender. In a 1994 opinion by then-appellate judge Clarence Thomas, the U.S. Court of Appeals for the District of Columbia ruled that the program was unconstitutional. He reasoned that there was no basis for concluding that increasing female ownership of broadcast facilities led to an increased diversity of viewpoints on the airwaves.

In another case, CIR defended Black student athletes against a civil lawsuit brought under the 1994 Violence Against Women Act by a White female student who claimed the students had raped her. CIR successfully challenged the constitutionality of the statute — not, they say, because they disagreed with its goal of protecting women, but because they viewed the law as an overly broad use of federal government power. An appeal in the case is currently pending.

Since CIR’s founding in 1989, Greve and McDonald have continued to be the driving force behind the organization. Greve, who holds a doctorate in government from Cornell University, is the organization’s chief administrator, fund-raiser, and policy guru. Prior to working at WLF, Greve served as a program officer for the Smith Richardson Foundation, a conservative foundation that became one of CIR’s first sources of funding.

Greve does most of the public speaking for CIR. He is active on the lecture and conference circuit and is a frequent editorial writer. Tall and blonde. Greve is quick with catchy one-liners. For example, in a 1995 article criticizing what he viewed as the extremes to which some institutions had gone in race-based decision making. Greve wrote that. “Racially exclusive programs are the partial-birth abortions of affirmative action.” He is largely responsible for the irreverent tone of Docket Report, the center’s quarterly newsletter.

A German citizen who has lived in the United States since 1981, Greve speaks with a slight accent that betrays his German roots. Greve says that his disdain for big government even explains why he has not yet traded his green card for U.S. citizenship.

“I have a visceral reaction to any kind of bureaucracy, including the INS,” he quips.

McDonald is CIR’s chief legal strategist. He is shorter, more cautious and soft-spoken. During a recent interview, he was the more conservative dresser — coal black suit with pinstripes. His hands twitch nervously. While Greve is given to broad policy pronouncements. McDonald prefers to offer what he calls “more nuanced” opinions. A graduate of Georgetown University Law Center. McDonald directed the legal efforts of the American Legal Foundation, a public interest law firm specializing in communications and First Amendment issues, before joining WLF.

Money, Friends, and Goals

Greve and McDonald make no secret of the sources that fund their $1.3 million operating budget which supports a nine-person staff that includes four full-time lawyers and pays the rent on the organization’s swanky offices in downtown Washington. A list of contributors released by CIR includes some of the country’s largest conservative or libertarian foundations. During CIR’s fiscal 1997, nearly half of the center’s budget came from five large foundations: the Smith Richardson Foundation, the John M. Olin Foundation, the Carthage Foundation, the Bradley Foundation and the Randolph Foundation. Olin, the center’s largest single donor, contributed $200,000.

Matthew Freeman, senior vice president of People for the American Way, a liberal advocacy group, says these five foundations have been in the forefront of funding a Variety of conservative causes in recent years.

“These foundations are interested in shaping public policy in a number of areas,” he says. “They have an agenda and they promote it.”

The Olin Foundation funds a variety of conservative college publications and also supports the National Association of Scholars, an organization of conservative professors. Both the Olin and Bradley foundations have been contributors to the American Enterprise Institute. which has supported conservative scholars such as Dinesh D’Souza. And the Carthage Foundation has been a regular contributor to the Federation for American Immigration Reform (FAIR), which has lobbied for restrictions on legal immigration to the United States.

While foundation funding has been critical to CIR, perhaps even more important has been the willingness of high-priced lawyers at some of the nation’s most elite law firms to provide free legal assistance. For example, in Hopwood, the center recruited high-flying lawyer Theodore B. Olson of the Washington office of Gibson, Dunn & Crutcher to handle the appeal.

Olson had been a top official in the Reagan Justice Department and represented Reagan during the IranContra investigations. He also successfully convinced the U.S. Supreme Court that a lower federal court judge acted appropriately in deviating from federal sentencing guidelines in order to impose a reduced jail term on Stacey Koon, one of the Los Angeles police officers convicted in the 1991 beating of motorist Rodney King.

While most legal observers are betting that one of CIR’s university admissions cases will ultimately make it to the U.S. Supreme Court, CIR officials say that their goal is not necessarily to overturn the Bakke decision. McDonald argues that even if Bakke were overturned, university administrators would still find some way to factor race into their admissions decisions.

“As long as you have a box [on the admissions application] where it says check your ethnicity, there’s a way for admissions officers to make race into a bigger factor than it would be otherwise and not leave as egregious a paper trail as they did in Hopwood,” McDonald says.

Rather, Greve and McDonald contend that since Bakke was decided, university officials have grown arrogant, and have used the decision as the basis for mounting a system of “blatant racial preferences.” They believe their lawsuits will force university admissions officers to review their policies and return to an approach that is more consistent with Bakke.

“It looks intransigent to say absolutely no consideration of race ever,” says Greve. “But you have to say that has to be the legal baseline, period. And then you have to live with the fact that nobody is going to play by the rules anyhow. The NAACP learned that in the sixties, and we’ll learn that now.”


The Court Decisions Affecting Higher Education and Diversity

When the U.S. Supreme Court issued its opinion in Regents of the University of California v. Bakke in 1978, the case was widely viewed as a defeat for proponents of civil rights.

Yet today, Bakke’s key holding permitting race to be used as a “plus” factor in university admissions decisions is under attack by the Washington, D.C.-based Center for Individual Rights (CIR). As a result, the civil rights community has taken to the trenches to defend it.

In the case of Hopwood v. State of Texas, one federal appellate court already boldly scrapped the Bakke decision. And the assault on Bakke continues as three other CIR-backed lawsuits are currently making their way through the lower federal courts.

Given the sheer volume of litigation CIR has sparked, it seems inevitable that the Supreme Court will eventually be forced to step in. If that happens it is unclear whether Bakke will survive the challenge.

The Legal Guidepost

For nearly twenty years, Bakke has been the guidepost for university officials seeking to enhance racial and ethnic diversity on their campuses. But CIR has argued that university officials have stretched Bakke far beyond its original narrow intent to mount a system of “blatant racial preferences” that discriminate against Whites in favor of less-qualified minority students.

“We seem to be living post-Bakke in a world in which we said we would allow race to play a small part [in admissions decisions] and the system got totally out of control,” says CIR’s chief legal strategist Michael P. McDonald.

Samuel Issacharoff, a law professor at the University of Texas who helped defend the school in Hopwood, predicted that even with its largely conservative makeup, the Supreme Court would vote to uphold Bakke.

“I think the Supreme Court has indicated no willingness at this time to see the major institutions of society resegregated,” he says. “That would cause the court to back off a categorical confrontation with [Bakke].”

However, all of the liberal-leaning justices who supported the Bakke decision have long since left the court. Four of the current justices — William Rehnquist, Sandra Day O’Connor, Anthony M. Kennedy and Antonin Scalia — have opposed “diversity” as a rationale for using racial considerations in the award of broadcast licenses. Clarence Thomas has consistently demonstrated his dim view of affirmative action, and justice John Paul Stevens, who has frequently sided with the liberal wing of the current court, was one of the original justices who opposed what has become the central holding of Bakke.

The legal issues raised by the CIR litigation are complex. Bakke was the first of several “reverse discrimination” cases. In these cases — whether they involve employment, government contracting, or higher education — White plaintiffs have alleged that their antagonists have violated one of several constitutional and statutory prohibitions against racial discrimination. The term reverse discrimination is something of a misnomer because, legally, there is know such claim but the term has become popular in the media.

What makes the so-called reverse discrimination cases unusual is that they raise the question of when and under what circumstances racial classifications may be used in a “benign” manner to remedy the effects of past societal discrimination.

The Bakke Case

In Bakke, a White would-be medical student sued the University of California-Davis. Alan Bakke claimed that the school violated the Fourteenth Amendment as well as the Civil Rights Act of 1964 by setting aside a specific number of seats in the first-year medical school class for minority students.

The lawsuit went all the way to the Supreme Court where it resulted in an unusual plurality decision. The critical opinion was written by former justice Lewis F. Powell who sided with current justices William Rehnquist and John Paul Stevens in holding that any racial classification, even if adopted for a “benign” purpose, must be subjected to the strictest judicial scrutiny. That means that such classifications must serve a “compelling” governmental interest and must be narrowly tailored to achieve those ends. In practice this is an extremely difficult standard to meet.

Powell agreed with Rehnquist and Stevens that the medical school’s program was unconstitutional because it created a separate admissions track for minority students. However, he said that colleges and universities have a “compelling” First Amendment interest in academic freedom that would permit them to consider race as a “plus” in an applicant’s file.

More liberal justices, led by Thurgood Marshall and William Brennan, would have applied a less restrictive standard of judicial review and permitted the medical school’s original affirmative action program to stand. Marshall and Brennan did not specifically sign on to Powell’s academic freedom argument. But their opinion, together with Powell’s, have widely been interpreted as permitting race to be used as a factor in admissions decisions.

The Bakke decision endured without substantial challenge for nearly two decades until Cheryl Hopwood, a military wife with a severely handicapped child, sued the University of Texas School of Law because she had been denied admission. She claimed that the law school used lower admissions criteria for African American and Hispanic students in violation of the Constitution and federal civil rights statutes.

The Hopwood Case

In the interim between Bakke and Hopwood, however, the Supreme Court had continued to whittle away at programs aimed at remedying past discrimination. It has applied strict judicial scrutiny to strike down remedial programs established to steer government contracts to minorities. The Court has also limited the extent to which race may be used as a factor in drawing voting districts. In all of these cases, the Court has held that the government only has a compelling justification for using a racial classification if it is acting to remedy the present effects of past discrimination.

In light of these decisions and the general conservative shift in the composition of the Court, Powell’s lone opinion appeared to rest on a shaky foundation. Hopwood set out to give that foundation a push.

It is ironic that the University of Texas School of Law became the battleground over affirmative action. During the 1940s, the school was targeted by Thurgood Marshall and the NAACP Legal Defense Fund for its refusal to admit Black students. Back then, Texas was so adamant in its position that it financed a separate law school for Black students, which survives today as the Thurgood Marshall School of Law. Eventually, in a landmark 1950 decision, the Court ordered the state to admit an African American candidate to its premier law school. It was the first time in its history that the Supreme Court had ever ordered a White school to admit Heman Sweatt, a Black student. The Court’s decision in the Texas case set the stage for its 1954 Brown v. Board of Education opinion which effectively ended legalized school segregation.

The Hopwood court acknowledged Texas’s long history of racial discrimination in elementary and secondary education. It also acknowledged that Texas had been one of nineteen states compelled to adopt affirmative action programs to alleviate vestiges of discrimination in higher education under what is known as the Adams case. But the law school’s admissions policies were not adopted as part of the Texas affirmative action plan, the court found. It further concluded that there was no evidence of present-day effects of past discrimination that would support a race-based remedy. Rather, the court stated, “[D]iscrimination by the law school ended in the 1960s.”

The Hopwood court went on to adopt CIR’s view that Powell’s opinion had never been embraced by the entire Supreme Court and that, even if it had been, that opinion is no longer valid in light of the Court’s recent rulings in the area of government contracting and voting rights.

“The whole institutional academic freedom argument was preposterous,” McDonald maintains.

Apparently, the Fifth Circuit Court agrees.

CIR’s pending lawsuits against the University of Michigan and against University of Washington School of Law essentially raise the same issues as Hopwood. These cases will require the Court to decide whether, twenty years after Bakke, the special niche which Powell attempted to carve out for higher education’s affirmative action programs still has any meaning.

In the Washington case, CIR contends that applicants were separated into different pools according to race and that different grade and test score standards were applied.

The lawsuit against the University of Michigan undergraduate program is particularly troubling. A key piece of evidence in that case will be documents obtained by a philosophy professor at the school that purport to show that the school routinely admitted minority students with lower grades and standardized test scores than Whites. In all the cases, the schools have denied that race is a predominant factor in their admissions decisions.

In any event, it may be several years before any of the current crop of cases make it to the Supreme Court. One thing that is almost certain, however, is that these cases will not go away.

Recently civil rights groups banded together to finance a settlement in a lawsuit originally brought by a White school teacher against the Piscataway, NJ., school board. The board fired the White teacher to preserve the job of a Black teacher. The civil rights groups feared that the case would have resulted in an adverse opinion from the Supreme Court.

But CIR and the plaintiffs it represents are not in this battle for the money. They will not be bought off. They are out to topple the affirmative action admissions policies of hundreds of colleges and universities around the country. They agree with Jennifer Gratz, the lead plaintiff in the Michigan undergraduate case.

“I just feel strongly that something is wrong with the policy,” she says.


Donor Amount Amount
FY 1996 FY 1997

Foundations (>50,000)
Smith Richardson Fnd 125,000 125,000
John M. Olin Fnd 100,000 200,000
Carthage Fnd 100,000 75,000
Randolph Fnd 41,126 91,995
Bradley Fnd 90,000 90,000
Gilder Fnd 20,000
Donner Fnd 50,000 50,000
F.M. Kirby Fnd 50,000 50,000
Dunn's Fnd 75,000 100,000
50,000 75,000
Scaife Family Fnd 25,000 50,000

Foundation (<50,000) 12,906 18,092
Corporate/Legal 26,000 22,824
Individuals 77,627 71,250
Interest Income 5,233 12,009
Micellaneous Income 509 4,855
Attorney's Fees 40,609 268,333

TOTAL 869,010 1,324,358

TOTAL GRANTS 822,659 1,039,161
YR/YR INCREASE 16.2% 26.3%

SOURCE: Center for Individual Rights

COPYRIGHT 1997 Cox, Matthews & Associates

© Copyright 2005 by DiverseEducation.com

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