Lawyers take on unpopular causes

Conservative firm champions admissions case against U-M

By Jodi S. Cohen

Detroit News, November 12, 2000

WASHINGTON, D.C. — The Center for Individual Rights takes cases other law firms won’t touch.

It successfully challenged the Violence Against Women Act. It fought a Federal Communications Commission program that gave women a boost in competing for broadcast licenses. It defended allegedly discriminatory speech on college campuses and against federal housing projects.

And now, the center is on a mission to dismantle affirmative action programs — an effort that could have widespread effects, including resegregating college campuses, opponents say.

When CIR attorneys argue about affirmative action, the legal community listens. It wasn’t always that way.

“People now notice what we do — whereas before, they did not notice what we did until it was too late. When we first filed the (1994 Hopwood v. State of Texas affirmative action) lawsuit, peoples’ view was that it was a longshot, unlikely to succeed,” CIR executive director Terry Pell said.

“They thought CIR was on something of a Quixotic quest.”

Universities have awakened to the fact that affirmative action is losing ground nationally and the CIR is largely responsible.

“They are an institution that we have to take seriously. But the jury is still out on how good they are as lawyers,” Theodore Shaw of the NAACP Legal Defense Fund said. Shaw said the CIR has been successful because it has argued a majority of cases before federal judges appointed by conservative Republican presidents.

Shaw, who is representing minority students as intervenors in the U-M lawsuit, calls CIR attorneys “adversaries of those who are walking in the shoes of the civil rights movement.”

“They are attempting to convince the American public that affirmative action is a great evil, that it is racial discrimination against white people and that it is a betrayal of the principles of the civil rights movement,” he said.

“Either they are stunningly ignorant about the civil rights movement, or they are disingenuous.”

CIR staff, funded by about $1.5 million from mostly conservative foundations, looks for precedent-making cases, finds sympathetic plaintiffs and prestigious outside law firms to support the fight. It rarely litigates cases on its own.

The firm was started 11 years ago by Michael McDonald and Michael Greve, two 30-somethings who met while working at conservative legal think tanks. Greve came to America from Germany in 1981 as a Fulbright Scholar and earned a Ph.D. from Cornell University. McDonald’s law degree is from George Washington University.

Greve, who is not a lawyer, left last year to focus on federalism at the conservative American Enterprise Institute.

Only about 10 people work at CIR — a small crew for a large agenda. They work in sterile, unassuming offices in downtown Washington, D.C. They’ve rented part of their suite to an Internet start-up company, because they don’t need much space other than a few offices and a law library.

On some days, there’s no receptionist. None of the lawyers has a secretary.

The small staff, aided by a dozen law school clerks, vigorously works on potentially precedent-setting constitutional cases.

As they prepare for court, CIR employees also coordinate media interviews and listen via speakerphone when clients talk to reporters — realizing that while it’s essential to win in court, it’s almost equally important to win in the court of public opinion.

“They are very good at communicating their ideas to the public after they win and during litigation,” said Eugene Volokh, a UCLA law school professor who has been a sounding board for CIR attorneys. “They use the cases as a vehicle to illustrate to the public their underlying principle. That is an important role for any public interest organization to play.”

Their cases represent a conservative belief in individual freedoms: speech and religion, civil rights and federalism, states’ rights.

There have been major victories, including three before the U.S. Supreme Court. One of CIR’s biggest wins, its first before the high court, was Rosenberger v. University of Virginia — a 1995 ruling that schools cannot deny funding to a religious-oriented publication.

And it recently sued Alabama State University — and won — on behalf of a black student who challenged whites-only scholarships. The black college vainly argued that the scholarship program was an effort to promote “diversity” — U-M’s argument in the federal case that begins this week in Detroit.

“Those familiar with this field of litigation have to acknowledge CIR,” Volokh said. “Anybody who knows their work has to say these are sharp lawyers.”