By David Jackson
The Dallas Morning News, November 2, 1997
WASHINGTON—The Center for Individual Rights may have the most politically incorrect lawyers in town.
They have fought sexual-harassment claims and college bans on allegedly racist and sexist speech. They successfully opposed city laws against hate speech and now seek to have the federal Violence Against Women Act declared unconstitutional.
The Center for Individual Rights is best known, however, for its attacks on affirmative action, particularly an historic piece of litigation against the University of Texas law school.
Last year, a federal appeals court ruled that colleges in Texas, Louisiana and Mississippi cannot take race into account in admissions. The Supreme Court refused to review the ruling, and now the CIR has similar cases pending in Michigan and Washington state.
“The Center for Individual Rights also illustrates the influence of non-profit public-interest law firms on the evolution of American law…conservative law firms, responding to what they call the ‘liberal judiciary,’ have asserted themselves more in the last couple of decades. ”
In the meantime, the CIR is representing the sponsors of Proposition 209, the California referendum that eliminates affirmative action in state programs. The Supreme Court will soon decide whether to review the constitutionality of that measure.
The Texas and California cases put the occupants of a half-floor suite in a down town D.C. office building at the crossroads of a bitter debate. Members of the firm, which includes four full time attorneys, paraphrase the law professor who once said that using affirmative action to fight racism is like using alcohol to fight alcoholism.
To get beyond race, we have to get beyond race now,. said executive director Michael S. Greve, a nonlawyer who helped open the center in 1989. You have to at least stop people in the political arena from fighting over racial spoils..
The center’s mission statement says its purpose is the defense of individual rights, with particular emphasis on civil rights, freedom of speech and the free exercise of religion, and sexual harassment law.
Legal opponents said the center’s notion of a colorblind society ignores the centuries-long effects of slavery, segregation and racism. They said the Center for Individual Rights’ professed commitment to civil rights is misleading.
“We’re concerned by the use of the term ‘civil rights’ to attack the civil rights gains of the last 30 years,” said Helen Norton, director of equal opportunity programs for the Women’s Legal Defense Fund.
The Center for Individual Rights also illustrates the influence of nonprofit public-interest firms on the evolution of American law.
Earlier this century, the successful firms tended to be liberal. The American Civil Liberties Union pushed cases that expanded free speech and personal liberties. The NAACP Legal Defense and Educational Fund litigated desegregation cases including Brown vs. Board of Education.
But conservative public interest law firms, responding to what they called the “liberal judiciary,” have asserted themselves more in the lost couple of decades.
Many have developed niches. The Washington Legal Foundation, for example, tends to take business and property-rights cases. The American Center for Law and Justice, backed by Christian Coalition founder Pat Robertson, handles mostly religious freedom cases.
Mr. Greve and Michael P. McDonald, the president of the Center for Individual Rights, worked together at the Washington Legal Foundation before starting the CIR Mr. McDonald, an attorney, wanted to do more litigation while Mr. Greve had fund-raising experience. (The firm’s current budget, with contributions from conservative groups, is $1.3 million.)
The ClR’s first case successfully challenged a gender-preference program by the Federal Communications Commission. The center later challenged a St. Paul, Minn., hate speech ordinance that the Supreme Court eventually struck down.
The center’s interest in speech cases has included a New Hampshire college professor who used sexual similes during a writing course, once saying that belly dancing was “like a plate of Jello, with a vibrator under the plate.”
The school suspended the professor after seven female students complained his comments made them uncomfortable. The CIR successfully sued, calling it a case of political correctness run amok.
That would be the unifying theme of our caseload,” said Michael Rosman, a general counsel with the center.
In a 1995 case handles by the CIR, the Supreme Court ruled that the University of Virginia could not withhold student-activity funds from a religion-oriented student publication.
More recently, the firm has argued that Congress overreached with the Violence Against Women Act, federalizing the prosecutions of domestic-abuse cases. The Center for individual Right argues that Congress lacks the authority to turn these crimes into civil rights cases rooted in an “animus based on the victims gender.”
Although most attorneys know the center for its affirmative action cases, CIR attorneys prefer a different term: Civil rights litigation pure and simple. They noted that one of their clients is a black man suing Alabama State University over a whites-only scholarship program.
“Although most attorneys know the center for its affirmative action cases, CIR attorneys prefer a different term: Civil rights litigation pure and simple.”
“We’re creating bodies of precedent that protect the civil rights of all individuals.” Mr. McDonald said. “The principle we’re establishing is one of nondiscrimination.”
That philosophy guided the representation of Cheryl Hopwood, a white woman denied admission to the University of Texas law school. Critics say the “Hopwood decision” by the 5th US Circuit Court of Appeals—which essentially banned race-based admissions in Texas, Louisiana and Mississippi—now threatens affirmative action at colleges nationwide.
Texas colleges have since seen a sharp fall in minority enrollment. Similar drops have taken place in California in the wake of Proposition 209.
Critics said affirmative action is especially warranted in colleges because exposure to diverse races and ways of living enhance education. Harry Reasoner, a Houston attorney who represented the UT law school, said minority students in poor, segregated school districts in Texas do not have the “level playing field” envisioned by the Center for Individual Rights.
“We’d all like to have a colorblind society,” Mr. Reasoner said. “But I don’t see how anybody can look around Texas and say we have a colorblind society.”
Sam Issacharoff, a University of Texas law professor also involved in the Hopwood litigation, said he was struck by what he called the ClR’s “deep contempt for all people connected with higher education.”
“The Center for Individual Rights approach to them was that they were basically slime,” Mr. Issacharoff Said. “They viewed the higher education people as the affirmative action lobby and nothing more.”
Mr. Greve, who expects similar victories in Michigan and Washington, said colleges have abused the 1978 Supreme Court ruling in the celebrated Bakke case. A deeply split court ruled that colleges can pursue racial diversity, but not impose rigid quotas.
“I personally don’t have an awful lot of respect for a large segment of the higher education system,” Mr. Greve said. ” . . . Since Bakke, those people have systematically lied about what they are in fact doing. They read Bakke to say that quotas are OK as long as you lie about them.”
CIR attorneys said that colleges are free to pursue diverse student bodies but cannot accept or deny students solely because of their race.
“They cannot do it because the 14th Amendment of the Constitution prohibits the use of race for any goal” Mr. Rosman said.
Mr. McDonald said that although “there is a good deal of societal discrimination,” it cuts dl sorts of ways and can hurt whites as well as blacks. He said government action in this area should be narrowly tailored.
“You need to have specific individuals that have been discriminated against by specific individuals or institutions,” Mr. McDonald said.
Although attorneys with the Center for Individual Rights believe their legal arguments are the most effective part of their arsenal, they say public-interest law firms also have built-in advantages.
One is the simple ability to bring cases. Attorneys said Ms. Hopwood could never have afforded a lawsuit currently estimated at $25 million. Also, if necessary, public-interest firms can reach out to private lawyers willing to work for reduced fees.
Although private firms normally take a variety of cases, public-interest firms can zero in on particular topics. Attorneys also noted that a more conservative judiciary, populated by Reagan and Bush appointees, is more receptive to the arguments of the CIR and like minded groups.
“They play a role by highlighting for the court the sort of Joe Sixpack view, the Joe Sixpack perspective,” said Tracey Maclin, who teaches law at Boston University “They bring a perspective other lawyers might not bring to the bench.”