The men who would end affirmative action
U-M is next target for outspoken crusaders
By Peggy Walsh-Sarnecki
Detroit Free Press, August 25, 1998
WASHINGTON — When, in 1994, Michael Greve and Michael McDonald wanted to make a point about politically correct speech, they successfully defended a University of New Hampshire professor accused of verbal harassment which included comments linking belly dancers to Jell-O.
They celebrated their victory by throwing a campus-wide Jell-O party.
Today, the pair is suing the University of Michigan over its use of race in admissions to the law school and undergraduate College of Literature, Science and Arts. Legal experts say the lawsuit is likely to come to trial during the coming school year.
Since McDonald and Greve founded the Washington, D.C.-based Center for Individual Rights in 1989, they have been working diligently and often irreverently to get the country back on the right track — the political right, that is.
These guys are conservatives, almost libertarians. Their motto is less government is better. A lot less would be a lot better.
They are the newest darlings of the conservatives, thanks to their success at whittling away at affirmative action and politically correct speech, one lawsuit at a time.
No other conservative group is taking on as many free speech and affirmative action cases, about a dozen a year, their supporters say.
“The term I like to use for organizations like them, and there really aren’t many of them, are ‘do tanks,’ rather than a think tank,” said William Alpert, senior program officer for the New York City-based Donner Foundation, one of CIR’s financial backers.
McDonald and Greve are winning financial support along with their legal battles. CIR’s budget was $220,000 the year the group started, mostly in grants from a handful of conservative foundations. By 1997, the budget had grown to $1.32 million, including more than $1 million from 11 conservative foundations.
Their opponents, however, are almost uniformly reluctant to give them that much credit, at times almost choking in their search to find polite ways to describe them. Some, including the University of Michigan, simply won’t talk about them. Those that do are reluctant to call them major players on a national scale.
“I don’t sense anyone ascribing major power to this law firm,” said James Vick, vice president for student affairs at the University of Texas. “They are bringing cases to the courts …it’s the courts that are making the decisions.”
The University of Texas was the scene of one of CIR’s more famous victories when they represented Cheryl Hopwood, a white woman, who sued the law school for reverse discrimination.
The 1996 Hopwood victory was a first step toward achieving one of McDonald’s and Greve’s goals, which is to get the Supreme Court to strike down affirmative action.
They see affirmative action and minority set-asides as government micromanaging and tinkering.
Government has no business manipulating racial issues, Greve said.
“We have problems when we treat race as a proxy for disadvantage,” Greve said. Being black is not a disadvantage and being white is not an advantage, he said.
“It’s an intensely controversial issue and it goes to people’s deeply held beliefs, and that’s why you don’t want the government playing games with it. You have to force the government to be neutral.”
Minorities can get into college without affirmative action by attending less competitive colleges, he said.
They have been so far out front in taking some of these issues to court, that even their fellow conservatives are occasionally taken aback.
“There are some people on our side of the political fence for whom this is really tough,” Greve said. This has been especially true when they first took on the Hopwood case, although that criticism has been abated by their success.
“Proving we could win legitimized it,” Greve said. “When we started up five years ago, this issue was somewhat gauche. Even hard-core conservatives said, ‘Oh, come on, can’t you leave that alone?’ ”
But Ted Shaw, legal counsel for the NAACP Legal Defense Fund, said CIR is not only being cynical about minority students, it is also cynically using the white students on whose behalf it is filing these anti-affirmative action lawsuits.
Shaw maintained that the white students named in the lawsuits would not have gotten into these schools, even without affirmative action.
“What they’ve done is take white, working-class people who would be getting jammed anyway and use them as blunt instruments to attack affirmative action,” Shaw said of McDonald and Greve.
Close to home
The University of Michigan became vulnerable, McDonald and Greve said, when it announced the Michigan Mandate in 1990, which outlines specific diversity goals for the university. They said these goals amount to almost a quota — a charge the university has repeatedly denied.
McDonald and Greve said they didn’t go after U-M, rather the U-M case came to them when four conservative Republican lawmakers asked them to take it. They did, however, have the luxury of picking the strongest case from a list of about 100 potential Michigan clients collected for them by the state lawmakers.
The lawmakers included Deborah Whyman of Canton Township, David Jaye of Washington Township, Greg Kaza of Rochester Hills and Michelle McManus of Lake Leelanau.
“We were not going to get anywhere through the legislative process,” Kaza said. “It was clear if we were going to get anywhere it was through the court process.”
Why choose CIR? “They’re the best group out there on this issue. They have a great record. They have a reputation in the conservative movement. And they were less likely to be intimidated by the clout that U-M has in the state of Michigan.”
The lawsuits, filed last October, charge that U-M denied admission to the white students suing the university, while admitting minorities with lower grade point averages and test scores.
Meanwhile, the plaintiffs in the undergraduate lawsuit are attending school elsewhere: Jennifer Gratz is a senior at U-M Dearborn and Patrick Hamacher is a sophomore at Michigan State University. Barbara Grutter, the plaintiff in the law school case, continues to operate a health care information consulting firm out of her home in Plymouth.
U-M isn’t CIR’s only target. The group is also suing the University of Washington law school over its use of affirmative action in admissions.
CIR is working to end race-based scholarships — for whites — at historically black Alabama A&M University. CIR successfully defended California’s Proposition 209, which bans affirmative action, when it was challenged in the Supreme Court.
While affirmative action in universities has caught the media’s attention, CIR has a much broader agenda. It has fought affirmative action in hiring and contracting.
CIR also has taken on free speech cases. It won a case in 1994 forcing the University of Virginia to fund a religious student magazine and, in 1993, successfully defended a fraternity that had been punished by George Mason University after an offensive fund-raising skit.
A meeting of minds
McDonald and Greve get excited just talking about their mission. Neither comes from a family tied to the American power structure. McDonald, a lawyer, grew up in Maryland. His family was solidly blue-collar; his father was a foreman, his grandparents coal miners.
Greve, a political scientist, was born in Hamburg, Germany, where his father was a lawyer. He was interested in politics but didn’t think the German political structure left room for an outsider to come in and shake things up. He came to the United States in 1981 as a Fulbright scholar and fell in love with the country — he’s working toward getting American citizenship.
They met when they were working for the Washington Legal Defense Fund. McDonald ran a one-man shop working on First Amendment cases. Greve helped raise money for the foundation.
The organization was changing direction, focusing more on publishing and less on litigation, and Greve and McDonald preferred a good court fight to writing conservative treatises. They were 32, ready to take a risk, and decided to open CIR as a conservative public interest law firm.
McDonald and Greve have a very calculated and well-defined game plan, which is largely modeled on successful strategies used by liberals.
Liberal lawyers were doing pro bono work to help liberal causes, Greve said. There were conservatives willing to do pro bono work but no one was tapping into these resources, he said.
They also decided to narrowly focus their efforts on free speech and civil rights issues. Ten years ago, most conservative groups were trying to embrace all conservative causes, Greve said. McDonald and Greve decided that specializing in a narrow niche had a better chance of success.
Success at the hunt
Using the courts, instead of the legislatures, to change the law is a tactic perfected a half century ago by the NAACP, when the civil rights group set out to knock down the doctrine of separate but equal.
In one sense, it’s a very predatory way to work: Hunting for the most vulnerable among a narrow list of civil rights and free speech cases, doing the background legwork and then turning the case over to a high-priced law firm willing to donate its time to win court battles.
In any case, it apparently works.
McDonald and Greve, using CIR, have racked up a win-loss record that would make a rookie bookie rich. They have taken on about a dozen cases a year since they founded CIR and can only count about seven losses — four cases of their own and three other cases in which they participated by filing briefs supporting what ended up being the losing side.
That record is at least partly due to the care they put into picking cases. They don’t waste time with cases they don’t think they can win, and always pick cases that can set a legal precedent.
They like universities as targets because the schools can’t settle out of court without abandoning their policies, McDonald and Greve said.
The idea of taking on the country’s bastions of higher education has a secondary appeal to McDonald and Greve. They nurse an obvious disdain for university officials, whom they say are the worst offenders in the kind of social meddling that makes their conservative/libertarian hackles stand on end.
“The universities have become social engineers par excellence,” McDonald said, calling this post-1960s liberalism “gone wild.”
“You’re dealing with people who think they’re beyond being questioned,” McDonald said.
Greve nodded vigorously. “The defense of affirmative action is so overblown, so moralistic and has so little to do with how these systems actually operate, that you have to puncture that balloon,” he said.
Sarcasm and biting humor
Through it all, Greve and McDonald have maintained a tongue-in-cheek sense of humor about their work that is usually outrageous, and some think downright offensive.
Most of this humor comes out in the Docket Report, a monthly newsletter written by Greve. It reads like a cross between a “Saturday Night Live” TV script and conservative propaganda sheet.
“In May, the President contrived to extract from the head of a sovereign nation (Israel) the White House admission price commonly charged to interns: on your knees,” Greve began the May issue.
When asked about the name-calling and flip remarks, Greve feigned shock. “We don’t call people names,” he said, his face a study in earnestness. Then he burst out laughing. “Well, maybe windbag or gasbag.”
It’s not name-calling, McDonald loyally pointed out. “Those are characterizations,” he deadpanned. The pair plays off each other’s humor like a well-rehearsed sitcom team.
“You cannot sustain a tone of outrage. You’d constantly be flapping your wings and sound completely over the cliff,” Greve said. “We do think there’s a place for sarcasm in all of this.”
The sarcasm and flip remarks irritate their opponents the most. Those on the other side often find this cavalier, even arrogant.
“I once characterized them to a newspaper as being puerile, during the course of the Hopwood litigation,” said Samuel Issacharoff, a professor at U-T’s law school who worked on the Hopwood case.
“They treated every institutional actor they came into contact with, with utter and unbridled contempt, and that includes some very distinguished leaders in the education community.”
But Issacharoff said he thinks success has had a mellowing effect.
“I think the victory they obtained in Hopwood raised their profile dramatically and forced them to confront, albeit partially, some of the hard issues involved in the affirmative action question,” he said. “I think there has been a more reasoned tone to their public statements.”
In the end, opponents of McDonald and Greve tend to grit their teeth and ignore the sarcasm.
“My own view is that it’s inappropriate and unseemly for an organization that is trying to position itself to be a major player on important issues like this to adopt that kind of tone,” said Shaw, of the NAACP Legal Defense Fund. “But that is their decision. At the end of the day, I’m more concerned about the substantive policies.”