Conservative Legal Eagles Fight for Individual Rights
By Stephen Goode
Insight Magazine, January 11, 1999
We believed there was a real need for a small, conservative, no-nonsense litigation group that would engage in actual, direct constitutional litigation,” attorney Michael P. McDonald tells Insight about the Center for Individual Rights, or CIR, the feisty Washington-based association he cofounded with Michael S. Greve in 1989.
CIR has not an ounce of politically-correct blood in its veins. It successfully has challenged race and gender preferences in academia and in government. Its goal is limited, reined-in government, and its successes have been nothing short of phenomenal for a group whose budget during its initial year totaled only $250,000, and this year is $1.6 million for a staff that numbers only 14.
Among those successes have been:
* 1993: In R.A.V. vs. St. Paul, CIR won a ruling from the U.S. Supreme Court that struck down a city ordinance aimed at suppressing “hate speech.” The ruling led to the invalidation of numerous speech codes at American colleges and universities.
* 1996: In Rosenberger vs. The Rector and Visitors of the University of Virginia, CIR argued successfully before the Supreme Court that a university may not exclude a student religious publication from university funding solely because of its religious viewpoint.
* 1997: CIR successfully defended Proposition 209, the California Civil Rights Initiative, before the 9th Circuit Court. The Supreme Court declined to review a lower court’s decision allowing the voter-approved ban on preferences based on race and sex in public hiring, contracting and school admissions to go into effect.
CIR also played a central role in the 5th Circuit’s 1996 Hopwood decision banning racial preferences at the University of Texas, and in the 1992 Lamprecht case, where the D.C. Court of Appeals found gender preferences at the Federal Communications Commission un-constitutional.
Michael Greve, CIR’s cofounder and executive director, explains CIR’s goals in combative terms, particularly when it comes to laws passed by Congress he believes exceed its powers: “Congress has the habit of flat-out ignoring [the Constitution], because when the next craze comes around, suddenly they’re completely out of control. The real test for us at CIR is to find the instances and cases where the Supreme Court is willing to say `no’ to these people, and it is very important to say `no’ to them.”
Insight: How does CIR define what individual rights are?
Michael P. McDonald: I suppose we limit individual rights to the rights enumerated in the Bill of Rights. We view ourselves as a constitutional litigation boutique and most, if not all, of our cases focus on fundamental constitutional rights enumerated in the Bill of Rights. We’re more in the business of keeping government from interfering with those rights which have been deemed of greatest importance to the citizenry: freedom of speech, for example. We are not in the business of creating new rights.
Insight: What need did you think CIR would fill when you created it in 1989?
MPM: At that time the tendency was for groups like the ACLU [American Civil Liberties Union], People for the American Way and the National Organization for Women to make use of the huge resources the private bar can provide through pro bono services. Literally tens of millions of dollars of free legal assistance each year from the private bar go to these liberal groups. Unless you have a conservative group knocking on the doors of the private bar, saying we’ll help litigate this case or that case, all their resources are going to go in one direction.
That’s why we started CIR: To have a firm that was going to tap into these resources. We knew there were conservatives at these firms, people who served in the Reagan or in the Bush administrations, and that there are young associates that are coming from law schools who are conservative or libertarian in orientation and who would be willing to do conservative, pro bono work.
We haven’t done this for a while, but if you take a look at our budget, which is $1.6 million for this year, you will see that with the amount of free pro bono legal assistance we get from for-profit firms we are able to leverage that $1.6 million in a very significant way.
Michael S. Greve: Just how much depends on the case. If these outsiders were billing us for their work at what they’re worth, between one-and-a-half and twice our budget each year is what we see in pro bono assistance.
MPM: In fact, we began at a very propitious time. There was the very obvious effect that Reagan and, to a lesser extent Bush, had upon the federal judiciary with the judicial appointments they made. It was a great time to to get conservative pro bono help and to be litigating in federal court. Ninety-nine percent of our litigation is in federal courts.
Insight: One of your big, current cases is Brzonkala vs. Virginia Polytechnic Institute, et al. What’s its significance?
MSG: It involves the constitutionality of the Violence Against Women Act of 1994. We’re representing two former football players at Virginia Tech who were falsely accused of gang-raping a white female student. They were sued under the act which extends a federal tort remedy to the victims of gender-based violence, and that we think is unconstitutional. We think Congress had no authority to pass that law.
We won in district court and lost in an appellate decision at the 4th Circuit. The 4th Circuit has heard oral arguments for the full court circuit, and we expect a decision whenever it is that the 4th Circuit decides to decide. We are fairly optimistic. The case will almost certainly go to the Supreme Court because you can’t just invalidate a federal law and then ask the Supreme Court to sit around.
This is a very important federalism case. We contend that neither the commerce clause nor the 14th Amendment provides Congress with the authority to enact this provision. Someone has to tell Congress there’s a limit to its powers.
The case also has very important ideological overtones, because the Violence Against Women Act is sort of a crown jewel in feminism’s ideological crusade.
Insight: You must get many calls to take on cases. How do you decide which to take?
MPM: Ever since we won the Hopgood case in 1996, it’s no exaggeration to say we’ve been inundated with cases – very good cases. We do our best to help by undertaking the case ourselves or finding competent attorneys to litigate the cases.
Institutions like the University of Michigan, the University of Washington [schools where CIR has racial-preference cases pending] and the University of Texas [CIR’s successful Hopwood case] get the very biggest and best law firms that money can buy and they fight you tooth and nail on everything. It is very draining. So we take a look at the financial needs of a [potential] client. We take a look at the specific claims that will be raised in the case and match that against the expertise that we’ve acquired in almost a decade of litigation.
If we had a $20 million budget, we could do 20 times the work we’re doing now, but we are very loathe to turn away anybody who has a serious case that meets those criteria. We’re one of the very few groups that do these racial-preference cases against large state and federal entities and against institutions of higher education.
MSG: One model we have for choosing cases is that we expect certain issues to be on our agenda. So we have a really good idea what the next case ought to look like. Like the Rosenberger case. We read it and say, “That was an important first step. Now we want to take the next step.” Then we look for the logical next case.
So we try to match our strategic mission and goal with our activities. Sometimes it works out fine. Sometimes you have to work real hard to find that case. We get a lot of cases, so sometimes the case we choose is in the nature of, “Wow! this is one we never thought of!” Sometimes one will show up and we say, “Now look this is really a strong case and it fits into our agenda, even though it is not the sort of case we’d select as No. 1 on our strategic agenda for the future.”
Insight: Another significant case you’re working on now involves Columbia Union College in Takoma Park, Md.
MPM: We’re representing a private college, Columbia Union, affiliated with the Seventh Day Adventist Church. Several years ago, Columbia Union submitted a request to be allowed to participate in a program the state of Maryland established in the 1970s to assist private colleges and universities by giving them state funds to attract students from out of state by lowering tuition costs.
Our client met all the eligibility requirements to participate in the program. It’s a four-year fully accredited college, not a seminarian school. It gives out degrees in all secular areas from the physical sciences to the liberal arts and, perhaps most importantly, the administrator of it would have been willing to sign an affidavit saying the funds being requested would go exclusively to secular education programs and would not in any way go to the coffers of the church. The state would be free to audit to see how the money was spent, and the spending could easily be verified.
Insight: How much money had Columbia Union expected to get?
MPM: My recollection is that it was somewhere in the neighborhood of $800,000. It was supposed to go to the math department for computers and to the nursing program connected with the hospital they have there in Takoma Park that is one of the world’s leading institutions for cardiovascular medicine, heart disease and heart transplants.
Our client met all the eligibility requirements, but the state refused to allow them to participate, claiming (we think somewhat implausibly) that unlike the four Roman Catholic colleges in Maryland, which do receive funds under the program, our client Columbia Union College really is too religious to get the funds.
Now if you turn that reasoning around, it’s as if you’re saying the Roman Catholic colleges don’t really believe in their religious missions, whereas our client does. We don’t think that distinction is the appropriate one to make.
Insight: The distinction seem s arbitrary.
MPM: This is a very significant case because you have groups like the People for the American Way running around prattling on about the separation of church and state. We’d like to see the court [ultimately the Supreme Court, but the case is now before a three-judge panel in the 4th Circuit] adopt an approach where if the state sets up a program that doesn’t have a religious purpose, and if certain types of neutral funding criteria are met, it’s not the state’s business to be saying, “Well the Roman Catholics don’t mean what they say about providing religiously-oriented education, but the Seventh Day Adventists do, and on that basis, we’re going to allow the funds to go to the Roman Catholic colleges and disallow them to the other.”
This case will be continuing our work in the direction of Rosenberger, taking it a step forward, going from [the rights of] religious students on to [those of] religious institutions, and it has all sorts of implications in other contexts, most obviously for school vouchers, which could be used to help inner-city kids go to private religious schools.
Insight: Is there any area of litigation that you haven’t been involved in that you’d like to do?
MPM: When we got started we tried different things. I think it’s fair to say we’d like to do more things to rein in regulatory agencies. We’ve discovered that’s a whole area unto itself. Some of these administrative hearings take so long, and the agencies have so many outs, that by the time you get the case into federal court it isn’t in the posture you wanted.
We know what we’d like to do with the [Environmental Protection Agency], other than get rid of it. We would like to rein it in. But to get a case that gives us a shot at reining in its authority is very difficult to do.
MSG: We experimented with challenges to regulatory provisions, and I think the reason those challenges didn’t work compared to the other areas in which we work is that you’re best off if you have some legal and constitutional club to hold over the government’s head. The First Amendment is such a club. It is taken seriously as a constitutional constraint.
The malaise of the American government today is that outside that area and the due-process clause, there just aren’t a lot of things the high court takes seriously, for the perfectly obvious reason that most of the American government wouldn’t exist at all if they were taken seriously. We don’t really tolerate a lot of judicial interference in areas [outside due process and the First Amendment], and as a result it’s very, very hard to make anything stick [against regulatory agencies].
Insight: You were successful in the Lamprecht case, however.
MPM: In that case we managed to pull out of the fire and deliver a very satisfying body blow to our friends next door at FCC [Federal Communications Commission]. Tom Lamprecht was an applicant for a radio license in 1983. At the time, the FCC had a policy of awarding points in the comparative license process to women. Lamprecht had, I think, 10 years of broadcast experience. His chief competitor was a woman who had zero experience, so Lamprecht’s dreams of trying to get a license went out the door.
[During years of litigation,] Lamprecht ran out of money but, fortunately for him, he found his way to our door. In 1992, we got the gender-preference program at the FCC declared unconstitutional. Lamprecht’s case set a very important constitutional principle that has ramifications which limit the ability of other federal agencies to take gender into account in questions of process.
MSG: And the reason it worked is (A) Lamprecht found his way here and (B) he had this constitutional club he could wield.
If you don’t have that, you’ll have to challenge these programs on procedural grounds, by which the agencies really mean, “First, we’ll talk: Then we’ll screw you.” And you don’t have any way out!
CURRENTLY: President, Center for Individual Rights.
BORN: Sept. 16, 1956, Cheverly, Md.
EDUCATION: Catholic University, B.A., political science, 1978; George Washington University, J.D., 1981. Further study in romance languages and literature at Catholic University.
PERSONAL: Single; Roman Catholic.
EXPERIENCE: Worked for the Washington Legal Center and the American Legal Foundation, conservative Washington think tanks.
FAVORITE WRITER: George Orwell. “I have his picture right up here on the wall in my office.”
QUOTE: “People think of federalism as a purely academic issue when it’s part of a way to protect individual rights, to enhance individual liberties. It is important that we force people in Congress to reexamine the basis on which they go on legislating this, that and the other thing.”
CURRENTLY: Executive Director, Center for Individual Rights.
BORN: Aug. 29, 1956, Hamburg, Germany.
EDUCATION: University of Hamburg; Ph.D. in government, Cornell University, 1985.
FAMILY: Divorced father of two, a daughter and a son.
EXPERIENCE: Program officer at the Smith Richardson Foundation and a resident scholar for the Washington Legal Foundation.
BOOKS: The Demise of Environmentalism in American Law (1996) and the soon to be published Real Federalism: Why It Matters and How It Could Happen.
FAVORITE AUTHOR: David Lodge, the British novelist and satirist.
QUOTE: “I think it’s important to tell Congress that there are some things that are beyond its constitutional authority. That’s really something that hasn’t sunk into these bozos of either party at all.”