Conservative Crusader Enlists in Affirmative-Action Fight

January 19, 2003 − by CIR − in Articles − Comments Off on Conservative Crusader Enlists in Affirmative-Action Fight

By Shira Kantor

Chicago Tribune, January 19, 2003

They’ve sued a school district for banning T-shirts with the word “redneck.” They’ve challenged a college’s ban on storing “offensive, racist or sexist” information on school computers. They’re backing a professor who argues that a university’s pay raise for women discriminated against male professors.

Others might recoil at such provocative cases, but the lawyers at the Center for Individual Rights have taken them on with relish. The center, a small, conservative version of liberal groups like the American Civil Liberties Union, specializes in fighting “politically correct” policies that it says violate freedom of speech or religion.

The group is gaining greater attention for cases challenging university affirmative-action policies as unconstitutional, and it is poised to become even better-known this spring, when the U.S.

Supreme Court considers a case against the University of Michigan that could affect affirmative-action programs nationwide.

The center’s six lawyers argue that affirmative action is nothing but racial discrimination that maintains lower standards for minorities.

“I think we all recognize that there are deep inequalities in our society and that we have to address those inequalities,” said Terence Pell, the center’s president. But, he added, “I think it’s clear that using a separate, lower academic standard for minority students does not so much remedy those inequalities as perpetuate them.”

The Center for Individual Rights’ adversaries consider the argument specious and the crusade insidious.

“The underlying rationale that CIR articulates is that this is a colorblind society and any race consciousness is evil,” said Theodore Shaw, a senior attorney for the NAACP Legal Defense Fund.

“What is wrong with that proposition is this is not a colorblind society. While colorblindness may be a nice ideal, it doesn’t make sense for us to be blind to the continuing significance of race, as long as race continues to be significant.”

As the nation’s courts and colleges rethink their approach to race, the Center for Individual Rights has been pushing and prodding at every step. It won possibly its biggest decision in the 1996 Hopwood vs. Texas case, when a federal appeals court struck down admissions practices of the University of Texas law school.

But the Michigan case will be the first time the Supreme Court has taken a comprehensive look at affirmative action in a quarter-century. Many believe the case could be a landmark in determining whether affirmative action remains permissible in the United States.

The Bush administration filed briefs last week arguing that diversity in the classroom is an important goal–but that college administrators should employ race-neutral admissions policies to get there.

Like many other schools, the University of Michigan considers race as one factor in deciding whom to admit. It argues that this is necessary to preserve a diverse student body and give minorities a fair shot. The Center for Individual Rights, representing a group of white students, says the policy discriminates against whites in violation of the Constitution.

The issue of affirmative action always has been explosive, full of accusations of racial bias.

The Supreme Court last tackled the issue in 1978, when it ruled that the University of California-Davis medical school had to admit Allan Bakke, a white student who challenged the school’s two-track admissions policies for whites and minorities. But that ruling was confusing to many, and it did little to clarify the issue.

Pell, the Center for Individual Rights president, argued that race-based university admissions policies are “concrete violations of the constitutional law” and that holding minorities to a lower standard reinforces racial stereotypes.

“It suggests that… racial minorities can’t compete at the same standards as everybody else,” Pell said.

Defenders of affirmative action respond that because certain groups have suffered terrible discrimination, it is only fair to try to offset that injustice.

The NAACP’s Shaw said the nation’s “vast inequities” still exist.

“They are still the cumulative results of a long history of slavery and segregation.

“CIR wants to ignore it and pretend affirmative action was implemented in a vacuum. That’s just dead wrong, as a matter of fact and history.”

Among the ironies of the success of the Center of Individual Rights is that it has adopted the strategies of liberal legal groups, from the ACLU to Ralph Nader’s Public Citizen, in some cases turning those groups’ tactics against them. For years, only liberals were courthouse crusaders, using the law to remedy what they saw as social injustice.

That began to change in the 1980s, and now many conservative groups, from the Washington Legal Foundation to the Institute for Justice, use the courts to fight for their causes. The Center for Individual Rights was formed in 1989 with the view that some of these conservative groups were not aggressive enough.

Before the center was created by two conservative lawyers, Pell said, “Nobody was challenging the use of separate race-based admissions systems, and nobody was challenging the increased use of speech codes to silence speech from a particular political perspective.”

The center has tried to learn from its adversaries’ mistakes. For example, Pell said the ACLU tries to tackle far too many issues, spreading itself thin. His group, in contrast, has kept its reach short, pursuing only a handful of cases at a time, focusing on free speech and affirmative action.

In keeping with that selectivity, one of the center’s criteria for taking a case is that the client be unable to pay on his own.

Although its affirmative-action litigation has won it much of its publicity, the center has taken cases on a variety of issues. In one case, the group is representing Ian Maitland, a business professor at the University of Minnesota who claims that a 1989 pay raise for female faculty members discriminated against men.

The university agreed to distribute $3 million to its female faculty to settle claims of sex bias in pay. The suit has been in court for almost a decade.

 



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