By Charles Lane,
Washington Post, May 21, 2001
Another in a series of occasional articles On the issue of affirmative action in higher education, the conservative lawyers at the Center for Individual Rights are purists: Racial preferences, they say, are unfair, unconstitutional and should be abolished.
Over the last eight years, as the Clinton administration battled to save affirmative action under the “mend it, don’t end it” slogan, the center pressed its case in federal courts across the South, Midwest, and West Coast — with considerable success.
A federal appeals court invalidated programs to boost minority enrollment in the state universities of Texas, Louisiana and Mississippi; a district court struck down a similar program at the University of Michigan’s law school.
Now, with Bill Clinton out of office and President Bush settling into the White House, the Center for Individual Rights may be on the verge of a national breakthrough.
On Thursday, the Supreme Court will consider the group’s petition for a hearing on affirmative action in higher education. If the justices grant it, the stage will be set for a monumental legal struggle next year that could affect every middle-class voter with college-bound children.
The largely conservative court’s recent decisions narrowing the scope of affirmative action in other contexts “give us reason to hope we have a good chance of winning,” said Michael Rosman, the center’s general counsel.
The center has one former associate seemingly bound for a top job in the Bush administration: Solicitor General-designate Theodore B. Olson volunteered to help it argue, and win, a 1996 case that ended race-conscious admissions policies in Texas, Louisiana and Mississippi. Many other actual or prospective administration officials have expressed views similar to the center’s though none has a direct connection with the group.
But just as liberal advocacy groups frequently pressured the Clinton administration, the Center for Individual Rights views itself as an outside force, working through the courts to make sure that even a conservative Republican administration cannot avoid the issue of affirmative action.
“We feel there is room for someone on the right who tells the truth on this important issue and sticks with that truth regardless of what kind of administration is in power,” said Terence J. Pell, the group’s chief executive, who was a civil rights official in the Reagan administration Education Department.
Some Republicans view the center’s campaign with considerable ambivalence.
Opposition to affirmative action has been a Republican theme for years, helping the party cement the loyalty of white male voters. But it does not play as well among independents, especially white women.
“On an intellectual level, plenty of white voters feel we ought to have a color-blind society,” said Democratic pollster Geoff Garin, who has studied voter attitudes on race for the Ford Foundation. “But then they come to the view that we don’t have a color-blind society today, and they don’t want to turn the clock back.”
These fault lines are mirrored in the personnel of the Bush administration, which contains both critics of affirmative action such as Olson and supporters such as Secretary of State Colin L. Powell.
Much of big business — a key part of the Republican political coalition — has embraced affirmative action, both to have a workforce that reflects the demography of its customers and to avoid discrimination lawsuits from minorities. Major corporations such as General Motors and Microsoft have publicly weighed in against the center in the lower courts.
“The issue of race is radioactive for this administration,” said Clint Bolick of the conservative Institute for Justice.
During the 2000 campaign, Bush finessed the affirmative action issue, voicing opposition to “quotas” while embracing race-neutral “affirmative access.”
This was the approach Bush took as governor of Texas, after the center’s landmark appeals court victory in 1996 in the case of Cheryl Hopwood, a white student who had been refused admission to the University of Texas law school while minorities with lower test scores were admitted.
Bush enforced the ruling but also backed a new law that aims to achieve racial diversity in the university by granting automatic admission to every Texas public high school student who graduates in the top 10 percent of his class.
It may be harder for Bush to straddle the issue in the context of a Supreme Court case because the justices would probably ask the administration to submit its own view of the case.
If confirmed as solicitor general, Olson would write that brief — though he has left open the possibility of recusing himself because of his past work with the center. It is also possible that the administration could decline to weigh in.
If the administration sits the case out, however, it would be a net gain for the center over the Clinton years. Then, the Justice Department opposed the 1996 Hopwood ruling and urged the Supreme Court, unsuccessfully, to review it.
Created in 1989 by former Reagan administration attorney Michael McDonald and conservative scholar Michael Greve, the Center for Individual Rights, with 10 full-time employees and an annual budget of $ 1.9 million, receives most of its funding from libertarian and conservative foundations such as those run by Richard Mellon Scaife.
At the heart of its legal case is a debate over the Supreme Court’s fractured decision in the 1978 Bakke case. In Bakke, a five-justice majority struck down a California medical school’s admissions program that set aside a fixed percentage of slots for minorities. Four dissenting justices voted to uphold the program, saying it was necessary to compensate for past discrimination.
But Justice Lewis F. Powell, in an opinion fully joined by no other member of the court, wrote that schools could consider applicants’ race as a “plus factor” in admissions — not to meet a quota, but to ensure a diversity of viewpoints in the student body.
Since the Powell opinion, added to the four dissenters’ view, created a five-vote majority in favor of some use of race in admissions, many have treated Powell’s opinion as authorizing universities to practice affirmative action.
In subsequent cases, however, the court has struck down affirmative action programs in government contracting and employment, holding that race-conscious programs must be viewed with “strict scrutiny” by courts to prove that they are “narrowly tailored” to meet a “compelling government interest.”
Against this backdrop, the center developed the argument that Powell’s opinion was not truly a majority view of the court in 1978. It argues that diversity-based affirmative action must pass muster under the court’s later decisions — that is, diversity must be shown to be sufficiently important to justify discriminating in favor of blacks.
It cannot be, the group argues, because there is no necessary link between the color of one’s skin and the viewpoint one would bring to an academic setting.
“Blatant racial preferences are the lazy man’s way of achieving diversity,” said Curt Levey, the center’s spokesman. The group says it has no objection to the “affirmative access” alternative Texas adopted after Hopwood.
But such plans have their own flaws, such as the fact that the Texas plan can produce diversity only as long as high schools draw from racially segregated residential areas, affirmative action backers say.
“There is an easy assumption that there are other ways to accomplish diversity,” said University of Michigan President Lee Bollinger. “At the end of the analysis, there simply is not a reasonable alternative.”
Last December, in a case brought by the center’s clients against the University of Washington law school, the Ninth Circuit Court of Appeals, based in San Francisco, decided that Powell’s opinion was still binding precedent and upheld the school’s use of race in admissions — the opposite of the result in the Hopwood case.
Because of this conflict among lower courts, there is now a fair chance the Supreme Court will heed the center’s request to settle the matter.
Even if the court decides to pass this time, it will almost certainly have to deal with the issue before Bush’s term ends in 2004 because of two other suits brought by lawyers with the center against the University of Michigan. One Michigan district judge upheld affirmative action in undergraduate education at the university, while another struck down the law school’s program — and both cases are being appealed.