The Center for Individual Rights, after years of pushing a mix of conservativecauses, is poised to leave a lasting imprint on the debate over race.
By Jonathan Groner
Legal Times, December 9, 2002
They forced an end to the University of Texas law school’s use of racial preferences in admissions. They got the Supreme Court to declare a key part of the Violence Against Women Act unconstitutional.
And now, lawyers at the D.C.-based Center for Individual Rights are hoping that their latest cases, which the Supreme Court just agreed to take up this term, will sound the death knell for affirmative action in higher education in America.
With an annual budget of $1.5 million and a staff of 10, the center is hardly the largest advocacy group in Washington. But its two challenges to University of Michigan admissions policies cement its place as a powerful player in conservative legal circles, one that has come a long way toward fulfilling CIR President Terence Pell’s goal of “influencing the national conversation” on race and civil rights.
The latest cases-Grutter v. Bollinger, which challenges admission policies at the state university’s law school, and Gratz v. Bollinger, which tackles admissions at the undergraduate school-will be the Court’s first look at racial preferences in higher education since its famous split decision upholding affirmative action in Regents of the University of California v. Bakke in 1978.
The arguments against race-conscious admissions policies predate the CIR, which was founded in 1989, and the legal advocacy group is not the first to have an impact in the area.
Pell says, rather, that the center’s achievement has been to put a human face on affirmative action.
If the CIR has its way, Barbara Grutter-a mother of two who was turned down by Michigan’s law school despite high LSAT scores and the fact that she ran her own health care consulting firm-may become a symbol for thousands of whites who feel pushed aside by racial preferences.
“Affirmative action was being debated by means of various slogans,” says Pell. “We decided it was time to tell the story through someone who had experienced it firsthand.”
The center searched out Grutter and other would-be Michigan students as plaintiffs in the cases, and then turned to outside counsel to help shape arguments that would persuade the high court to grant certiorari.
Pell says the outside firm, Minneapolis’ Maslon, Edelman, Borman & Brand, put two lawyers, led by partner Kirk Kolbo, on the pro bono case full time for almost two years. The CIR funds the firm’s expenses but not its fees. Kolbo will argue before the Supreme Court when it hears the cases in March.
This is a strategy the organization has often used in its successes, from Hopwood v. Texas, the 1996 case that struck down a racial preference policy at the University of Texas School of Law to United States v. Morrison, in which the Supreme Court struck down parts of the Violence Against Women Act on federalism grounds.
In enlisting outside counsel to do much of the heavy lifting, the center consciously modeled itself on successful advocacy groups like the American Civil Liberties Union and the NAACP Legal Defense and Educational Fund.
“CIR marked an attempt to duplicate the success of liberal public interest law firms in the conservative public interest realm,” says Curt Levey, the center’s director of legal and public affairs.
The center was founded by Michael McDonald and Michael Greve, who had both worked at the Washington Legal Foundation, in order to focus on free speech and civil rights with a conservative twist.
One of its first projects was to use the First Amendment to challenge university speech codes that barred professors from making comments considered offensive to women or minorities. In Silva v. New Hampshire, a 1994 federal case, the center got a professor reinstated after he was fired for creating a “hostile environment” by allegedly making classroom remarks with sexual content.
In 1995, the center won Rosenberger v. Rector and Visitors of the University of Virginia, a 5-4 Supreme Court ruling that held that a public university can’t refuse to fund a student group because it publishes a religious magazine.
Greve left the center in 2000 to continue pursuing federalism projects at the American Enterprise Institute, and McDonald left the center earlier this year. He has not announced his plans and could not be reached for comment.
According to Pell, about 40 percent of the center’s $1.5 million annual budget comes from three large foundations-the John M. Olin Foundation, the Lynde and Harry Bradley Foundation, and the Scaife Family Foundation. The rest of the budget comes from thousands of smaller donations by individuals and businesses.
Some of the CIR’s adversaries point out that these foundations have funded a wide variety of right-wing causes, some of which have been enormously controversial. That tends to undermine the CIR’s work in the eyes of liberals.
But legal adversaries familiar with the center give it a good deal of praise for advancing its views effectively.
“They’re very good lawyers. They do very good legal work. They are tenacious opponents,” says John Payton of D.C.’s Wilmer, Cutler & Pickering, who has been battling the CIR for years in the University of Michigan cases.
“I disagree with them, but it is with respect,” says Joseph Sellers, a veteran civil rights lawyer who is now a partner at D.C.’s Cohen, Milstein, Hausfeld & Toll. “Their arguments are professionally presented, and their positions do have support from some segments of our society.”
The closely watched Michigan cases will bring the national spotlight back upon Bakke, a case that came down a generation ago.
In Bakke, the late Justice Lewis Powell Jr.’s concurring opinion, which permitted race to count in the application process but barred strict quotas as unconstitutional, emerged as the unlikely consensus of the Court. An uneasy peace has reigned since then.
Supporters of programs like Michigan’s continue to argue that a diverse student body is a crucial educational goal. They also contend that if race is abolished as an admissions criterion, minority enrollment will plummet in schools across the nation.
But the CIR and its supporters say it’s about time that the Court stepped in to fix what they see as a civil rights violation- an intentional effort on the part of Michigan and many other states to discriminate against people who are not members of minority groups.
Says Pell, who holds a doctorate from Notre Dame and a law degree from Cornell: “These are very strong facts. The Court won’t be able to ignore the fact that these admissions systems go pretty wide of what Justice Powell had in mind in Bakke.”
For example, the center’s lawyers point to a document they obtained from the university that gives an applicant one extra point for writing an outstanding essay, four points for having a parent who attended Michigan, and 20 points for being a member of an underrepresented minority group.
“This is the culmination of a long path,” says Michael Carvin, a partner at the D.C. office of Jones, Day, Reavis & Pogue who works with the center as a cooperating attorney and has served on its board. “The principle is that the government shouldn’t be making distinctions on the basis of a person’s skin color.”
Pell says Gratz and Grutter were selected and shepherded with great care.
“We’re very choosy,” he says. “We are looking for cases that will advance the law in a significant way. And those are few and far between.”