On a roll(back)

February 01, 1998 − by CIR − in Articles − Comments Off on On a roll(back)

After its big win in the Hopwood case, setting aside affirmative action at the University of Texas law school, the Center for Individual Rights is on a mission-to do more of the same at other public universities.

By Terry Carter

The ABA Journal, February 1, 1998

Little more than a year ago, the offices were cheaper and much smaller. Back then a visitor might find photocopied humor taped to a wall, like the cartoon depicting an in box labeled “Plotting” and an out box for “Perpetrated.” The telephone answering message included a sassy slogan: “Thank you for calling the Center for Individual Rights-bringing lawsuits for a better America.”

It’s different now. Through double-glass doors centered in a wall of extended glass panels, with the name acid-etched, the Center for Individual Rights occupies a new office that speaks of moneyed, understated elegance.

Located just off the K Street corridor, it looks like so many successful law firms in Washington, D.C. A table in the waiting area is bare but for three magazines- National Review, Human Events and Reason–conservative all. And there, perhaps, is the symbolic key to these recent changes. The image seems more careful for the most basic of reasons: The more you have, the more there is to conserve.

This nonprofit litigation boutique, which opened as a two-man, secretary-sharing shop in 1989, has seen a lot of success, especially in the past couple of years. Conservative foundations now are throwing a lot of money at the ClR, as are some law firms, and the playfulness has been adjusted accordingly, though not entirely suppressed. A more careful image comes with the realization that, in short order, funding has tripled, the office space doubled and the staff grown even more. Success, the driving force, has increased exponentially.

The Center for Individual Rights has become a force at using the courts to influence public policy. The CIR has been behind some precedent-setting cases concerning free speech and sexual harassment. But recently, the center’s greatest impact has been on affirmative action, almost singlehandedly shifting the landscape and triggering seismic rumbles that have shaken and cracked its very underpinnings.

Its docket is daunting. In Hopwood v. Texas, 78 F.3d 932 (1996), the 5th U.S. Circuit Court of Appeals based in New Orleans agreed with the ClR’s argument: The University of Texas School of Law maintained a sub-rosa quota system for minority students while claiming to use race only as a positive factor in accordance with the Supreme Court’s 1978 decision in Regents of the University of California v. Bakke. The Court declined to hear an appeal in Hopwood.

The CIR also helped defend California’s Proposition 209, the voter initiative that in effect eliminated affirmative action programs in the state, with a possibly devastating impact on minority recruitment by the law schools at the University of California-Berkeley and UCLA, among others. Coalition for Economic Unity v. Wilson, 946 F. Supp. 1480 (N.D. Cal. 1996).

Two Big Targets

Now, the CIR is behind lawsuits filed in 1997 against the University of Washington School of Law in Seattle, the University of Michigan in Ann Arbor and, separately, its law school. Again the center is alleging admissions policies that set aside slots for minorities, specifically those whose qualifications are lower than those of some whites who were rejected.

These young conservatives of libertarian stripe are not just on a roll; they’re steamrolling.

The thinking goes like this: Free societies require free markets for free individuals, and the government should play a minimal role. Affirmative action takes that freedom away, in the CIR’s view, because it says merit does not always matter. And the center is focused like a laser on its mission to assure that the best-qualified get the brass ring.

The CIR’s carefully calculated plan targets prominent, public, higher-education institutions, setting them up like dominoes to be toppled through the various federal circuits, all the way up the steps of the Supreme Court.

The effort has stunned affirmative action proponents, who are still picking up the pieces after the Court’s recent refusals to hear the appeals of either Hopwood or the Proposition 209 case and smarting from the battle over President Clinton’s embattled nomination of Bill Lann Lee, a strong proponent of affirmative action, to head the Civil Rights Division at the Justice Department.

At the same time, affirmative action proponents made a controversial, strategic retreat in November when civil rights groups put up money to settle-and remove from the Court’s docket Piscataway Township Board of Education v. Taxman, the case brought by a white schoolteacher who was laid off while a black colleague of virtually equal qualifications and tenure was retained.

“They’ve said for years they want race as a tipping factor when other things are equal,” says CIR senior lawyer Terry Pell. “Then they get just such a case, and they run away in horror. If race is a plus, then it’s decisive; it can’t be abstract and diffuse like they want it to be.”

Compared to that bravado, proponents of affirmative action express little optimism.

“It’s demoralizing for a lot of us,” says Sandra Madrid, assistant dean at the University of Washington School of Law. In 1997, Madrid received a Spirit of Excellence Award from the ABA Commission on Opportunities for Minorities in the Profession, recognizing her work in minority admissions. During her tenure, minority enrollment at the law school skyrocketed from 14.5 percent of the entering class to more than 40 percent. But those accomplishments also brought the school into the CIR’s sights for its latest lawsuit.

At Boalt Hall, the University of California at Berkeley law school, so demoralized was Dean Herma Hill Kay when Proposition 209 gutted her minority recruitment program that she admitted to the New York Times in June that, if she were a minority student considering Boalt Hall, “I would certainly be very concerned about my ability to flourish here.”

At the time, 15 blacks accepted by the school chose to go elsewhere. Only one black student, Eric Brooks, joined the first-year class at the law school last fall, and he was a deferral, having been accepted in 1996.

Apparently now more than ever, minority applicants with top test scores and grade point averages who are accepted by Boalt Hall with no other special consideration are choosing to go for the scholarship money offered by prestigious private schools such as Stanford, Harvard and Yale.

The situation left Kay wondering almost wishfully, in an interview, whether the CIR’s affirmative action bashers might go after the private law schools under Title VI of the Civil Rights Act, which would enforce discrimination standards on those receiving federal funds-and put her school on a more level playing field.

“That would shift the burden to private schools and they’d have to increase minority admissions and scholarship support, and it would be more expensive for them,” Kay says. “They wouldn’t have the affirmative action card to play in competition with us, and then other factors would come in, like quality of education, cost, and whether a particular school is better suited for a particular individual.”

But that won’t happen, at least not through the CIR’s efforts. Its founders are hard-core libertarians. If Harvard or Stanford or Yale wants to discriminate for any reason, that’s their private business, says Michael S. Greve (pronounced Gree-va), the CIR’s executive director. “That’s not the law, but it’s what we think the law ought to be. So we’re not going to go there.”

Where CIR Will Go

CIR does go where its plan works best, sometimes bemusing its critics. In 1997, for example, the center brought suit against a historically black university on behalf of a black student challenging scholarships available only to whites under a diversity program. Tompkins v. Alabama State University.

Because law schools are the pipeline to the legal profession, they are the key to achieving diversity within the profession, says Jose Edward Gaitan of Seattle, who chairs the ABA Minorities Commission. If minorities are left out of the justice system, he says, they will not believe justice is for them.

“We’ve learned this lesson over and over again,” says Gaitan. “Historically, it’s a significant destabilizing influence on government.”

ABA President Jerome J. Shestack of Philadelphia already has begun working with various groups to set in motion a response intended to ensure that, within whatever constraints re-imposed on law school admissions, diversity is maintained.

“I don’t think that it’s impossible to recruit and prepare qualified people, and that’s our objective,” Shestack says. “It is our obligation in the organized bar and in the profession to have diversity.”

The speed with which affirmative action is unraveling has alarmed supporters. One bright light came, however, at about the same time they were buffeted by the Supreme Court’s decision to let stand lower court decisions in Hopwood and the Proposition 209 challenge.

In November, voters in Houston rejected a bid similar to the California initiative, perhaps in large part because the Houston proposal stated the issue more specifically.

“That lets us know it’s not a done deal,” says Randy K. Jones, an assistant U.S. attorney in San Diego and president of the predominantly black National Bar Association. “Too much of this was sound bite in California. Even the educated people went by sound bite. Nobody wanted to listen to actual facts during the debates. In Houston they did. If we can get the word out as to what affirmative action is and isn’t, any good-spirited person will know what’s right.”

Still, Jones and others are concerned with the sudden change in direction. “I’m stunned, but not stopped,” he says. “We have work to do and new approaches to develop, strange new realities to deal with.”

The CIR is at the forefront of a conservative movement that has come a long way since the 1970s, when conservative groups were trying to be all things to all people, and liberal groups were more focused and better organized.

Though conservatives considered Ralph Nader a troublesome loudmouth, his endeavors were the model, Greve says.

Individual conservative groups tried to handle matters ranging from the death penalty to property rights, rather than having “a principled agenda with specialization,” Greve explains. Nader created single-issue groups working on matters such as car safety and health care. “All we had was a collection of conservative nostrums,” Greve says.

The CIR has become a major example of how things have changed, a role Greve uncharacteristically downplays, saying, “We’re part of a larger trend that has made these groups much more effective than they once were.”

It is no small irony that the CIR juggernaut is almost a copy of another legal powerhouse from more than 40 years ago that set the stage for the affirmative action they now seek to dismantle.

Back then, a small group of black lawyers led by Thurgood Marshall choreographed litigation around the country to end segregation, picking the right cases with a plan leading eventually to the Supreme Court.

Lawyers at big firms-then meaning white lawyers-at first feared being associated with that effort and stayed away. Later, though, after Marshall and his forces at the NAACP Legal Defense and Education Fund won in the Court in Brown v. Board of Education, resistance to implementing it led to federal civil rights legislation in the 1960s.

Those subsequent efforts included white lawyers at big firms, who finally felt more comfortable with what had become a somewhat more popular, mainstream agenda.

Applying similar strategies since opening in 1989, the CIR in its nationally choreographed effort shines a spotlight on allegedly sub- quota systems put in place to get around Bakke, much as massive resistance sought to get around the Court’s ruling in Brown against the “separate but equal” doctrine supporting segregation. And gradually, lawyers at big firms have begun to work with the CIR on its often controversial cases.

Even the CIR’s founders are surprised at their success in trying to dismantle affirmative action.

“Things have moved much faster than we expected,” says Greve, who came to the United States from Germany in 1981 on a Fulbright Scholarship, specializing in environmental regulation and earning a doctorate at Cornell University in Ithaca, N.Y.

Greve attributes the rapid developments in part to a change in public opinion that gives the Center for Individual Rights what he calls “The Hopwood Effect.”

Quite simply, Greve explains, money chases a winner. “That’s what’s good about a ‘do tank’ as opposed to a think tank,” he says, his accent very slight, heightening the sharp sarcasm and irony he wields easily with his second language. “You can show people what you’ve done. You either win or lose.”

Hopwood indeed illustrates the cachet and cash that inure to a winner. Since the Supreme Court let stand the 5th Circuit’s ruling, the only thing to be determined now is damages, with the plaintiffs seeking $5.5 million and their lawyers $2.5 million in fees and costs.

When the CIR launched the litigation three years ago, Greve made the rounds in Texas seeking funds to help finance it. There were no benefactors to be found. No one wanted to harm the state’s prize institution, the University of Texas.

“Now that the case is practically over, we don’t need their money anymore, thank you very much, but they want to give us some,” Greve says. “After we win in Michigan, it will be the same thing. People will want to give us money. People like to invest in a winner.”

Greve and co-founder Michael McDonald, the CIR’s president, are both 41 years old and quite good at exercising McDonald’s legal special- speech. At one point, Greve mocks the educational institutions whose foundations he’s rocking: “They say, ‘We don’t have preferential treatment, but if we have to get rid of it because of this judicial decision then we’ll be a lily-white school.’ Go figure.”

Their attitude is almost as wellknown as their accomplishments.

“They’re feeling very cocky about their ultimate prospects,” says Elliot Mincberg, legal director of People for the American Way, a liberal group that has run up against CIR several times, including in the fight over Proposition 209. “They carefully pick and choose their cases so they can attack affirmative action at its weakest links. And they rely in large measure on conservative judges who go beyond the facts of individual cases to proclaim things that have broader implication.”

Donations chasing CIR’s success total about $1.2 million for the next year’s work. Most of it comes from well-known conservative benefactors, such as the Carthage Foundation, John M. Olin Foundation, Scaife Family Foundation, Lynde and Harry Bradley Foundation and the J.M. Foundation.

Greve and McDonald, a graduate of the George Washington University National Law Center in Washington, D.C., began with a total of $250,000 a year for two years from several of those foundations. The two co-founders met while working together at the Washington Legal Foundation, a pro-business group with a libertarian bent. They went out on their own to concentrate on individual rights, especially free speech and civil rights.

Greve recalls, “We went to the foundations and said, ‘Here’s the idea. It’ll take two or three years to see if it works, and if it does it’ll pay off big.’ We told them, ‘This is risk capital.’ ”

Nearly all the original funding foundations still put up a total of about $300,000-$400,000 a year. Growth has come from new sources.

The CIR’s brochure lists donors but does not designate whether a benefactor is interested in all or part of the litigation group’s work in free speech and religion matters, sexual harassment and civil rights/affirmative action. The list quickly has grown to include names from the top drawer of corporate and legal America.

Corporate donors include Archer Daniels Midland Corp., ARCO Foundation, Chevron USA, Adolph Coors Foundation, Pfizer Inc., Philip Morris Cos. and Philip Morris U.S.A., Texaco, USX Corp. and the Xerox Foundation.

Among the national law firms are Akin, Gump, Strauss, Hauer & Feld; Covington & Burling; Gibson, Dunn & Crutcher; Hunton & Williams; Kirkland & Ellis; Powell, Goldstein, Frazer & Murphy; Steptoe & Johnson; Wilmer, Cutler & Pickering; and Winston & Strawn.

While Wilmer, Cutler is one of the many $5,000 donors, and some of its lawyers have worked on free speech cases with the center in the past, name partner John H. Pickering recently took on the defense of the University of Michigan, where he received both undergraduate and law degrees, against the CIR suit.

“We have a very catholic-small ‘c’-way of contributing to a whole range of so-called public interest organizations,” Pickering says of his firm. “We’re not a monolith.”

The Brain Trust

While funding takes care of the center’s overhead and expenses for a 10-member staff, including five lawyers, fast-growing pro bono assistance on cases is gaining importance in the center’s arsenal.

The commitment from lawyers can be huge because cases usually are selected with the intention of making precedent, which means full-blown trials and appeals.

The group now has a general counsel, Michael Rosman, considered a rising star; and three staff lawyers working with him on individual cases. They are prepared to handle all the litigation should there be no pro bono help in a particular case, says McDonald, who in the early years performed Rosman’s duties and more but now describes himself as having been “kicked upstairs.”

At first, McDonald says, they found it easiest to get help from outside lawyers primarily in challenges to political correctness witch-hunts on college campuses. Those free speech matters cut more across the political spectrum at the time than did the race cases.

“The race cases were a tough sell early on,” Greve says. “But there really has been a change in climate since we have put race beyond the reach of the state.”

Several years ago, McDonald got a former law school classmate to take on a free speech case with CIR, and this year he had no trouble convincing the friend, Kirk Kolbo, a partner at Maslon Edelman Borman & Brand in Minneapolis, to take the University of Michigan lawsuit challenging affirmative action.

They met at law school in the late 1970s when McDonald took exception to Kolbo’s “Ted Kennedy for President” button. Perhaps reflecting a sentiment indicative of one of the forces behind the center’s success, Kolbo says, “I’m closer politically to Mike than I was back then.”

Kolbo persuaded his firm’s chair, the prominent appellate lawyer David Herr, to join him in the University of Michigan case.

“If you polled the lawyers in our firm, you’d find some are not in favor of our position,” Kolbo says. “But the policy here is that we can pursue pro bono cases as long as there are no conflicts of interest.”

The CIR landed a big-name appellate lawyer, Theodore Olson of Gibson, Dunn & Crutcher in Los Angeles, for Hopwood-not that it took a lot of persuasion for the highprofile conservative.

Just the same, affirmative action is such a hot-button issue that the work could cause problems for big law firms, which have their own client and minority recruitment concerns.

“We did get some anxiety in the firm,” Olson says. But the case was, he explains, “intellectually and legally defensible, prelegitimate legal issues that are appropriate for law firms to participate in on either end of the political spectrum.”

When Olson won Hopwood in the 5th Circuit and the Supreme Court let it stand, the case did more than set legal precedent. It was a watershed for CIR and its mission. Not only did the flow of money to the center quicken, but in the eyes of more and more lawyers it legitimized the litigation boutique’s challenges to affirmative action.

“Often a law firm’s pro bono committee is dominated by lawyers with liberal interests, and lawyers in the firms would fear taking these cases to them,” says the center’s Pell.

Despite its love for high-profile cases to shake up universities or upend social programs, CIR does go after garden-variety cases now and then. McDonald says it sometimes takes a case that shows no value for precedent, “when it is so egregious, so meritorious with palpable damages.” But usually, he adds, “We are very severe at the front end and reject them.”

Greve jumps in at this point, adding a flourish to McDonald’s statement: “We can’t be a legal services organization.” He’s laughing. That’s pretty much what they are. They’re just very discriminating about it.



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