Mischief makers: the men behind all those anti-affirmative action lawsuits

By Idris M. Diaz

Black Issues in Higher Education, December 25, 1997

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 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. ClR’s rapid flurry of litigation has set in motion 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 nations 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 benefited 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 cries-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 Shawl “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 scats 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, ClR’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 DcPaul 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, ClR’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. ClR’s work is financed by healthy doses of cash from private foundations of a conservative stripe. And the organization also has benefited 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 benefited from a sympathetic judiciary during the heyday of the civil rights movement, CIR as benefited 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 as also responsible for mounting 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 ClR’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 philosophy at the City University 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 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 ClR’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 ClR’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 ClR’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 ClR’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 ClR’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 _ 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 Iran Contra 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.”