Mischief Makers: The Men Behind All Those Anti-Affirmative Action Lawsuits

By Diaz, Idris M. | Black Issues in Higher Education, December 25, 1997 | Go to article overview

Mischief Makers: The Men Behind All Those Anti-Affirmative Action Lawsuits


Diaz, Idris M., Black Issues in Higher Education


When a group of Republican state lawmakers last summer mounted a public campaign to find potential plaintiffs for a class-action lawsuit against the University of Michigan's affirmative action admissions policies, Jennifer Gratz responded immediately. Gratz, a policeman's daughter and former high school homecoming queen, had been rejected by Michigan in 1995 despite strong grades and high standardized-test scores.

"When I was turned down, I was disappointed and embarrassed," she said in a recent interview. After receiving Michigan's rejection letter, Gratz, who is White, discussed with her parents the idea of suing the school. "But it really wasn't serious then. I knew we didn't have the resources."

The resources and legal expertise that ultimately made the Michigan lawsuit possible were provided by the Washington, D.C.-based Center for Individual Rights (CIR), a conservative public-interest law firm that over the past two years has mounted an all-out assault on university affirmative action admissions policies.

Last year, CIR jolted the academic establishment with its stunning legal victory in Hopwood v. State of Texas. It convinced the Fifth Circuit Court of Appeals to, in effect, reverse long-standing Supreme Court precedent that permits race to be considered as a "plus" in admissions decisions. The Hopwood opinion is only binding law in the Fifth judicial circuit which includes Texas, Mississippi, and Louisiana. But it has been causing universities around the country to reexamine their admissions policies.

Sensing that the academic establishment was on the ropes, CIR in March sued the University of Washington Law School over its admissions policies. The lawsuit against the University of Michigan undergraduate program followed in October. And just this month, the Center filed a separate lawsuit against the admissions policies at Michigan's law school. CIR's rapid flurry of litigation has set in motion a legal controversy that almost certainly will have to be resolved one day by the U.S. Supreme Court.

"We're trying to make clear to the higher education establishment that they can't just go on operating as if they're above the law," says CIR spokesman Terence J. Pell. "Higher education officials know perfectly well that their admissions policies are illegal and they just go ahead and operate them anyway."

Defying Neat Labels

It might be tempting to view CIR simply as a bunch of racists out to roll back the gains that African Americans and other minorities have made since the civil rights movement. With backing from several leading conservative and libertarian foundations and some of the nation's most high-priced legal talent, CIR, since its founding in 1989, has been bringing precedent-setting litigation challenging everything from affirmative action to political correctness on campus. But whatever one ultimately concludes about their motives, CIR is a complicated organization whose far reaching political and courtroom agenda defies neat labels.

In all of CIR's university admissions cases, the lead plaintiffs have been White women, a strategic decision that in the court of public opinion undercuts arguments that affirmative action has primarily benefitted this group. Yet CIR has hardly been an ally of the women's movement. For example, the group successfully challenged a Federal Communications Commission program that gave women an edge in competition for broadcast licenses.

In the free speech area, CIR has defended the rights of at least two controversial university professors, one whose views were on the political left, the other on the political right. In addition to all of its higher education litigation, CIR also recently managed to squeeze in a successful defense of California's Proposition 209, which bars any consideration of race, sex, color, ethnicity, or national origin in state decision making. In November the Supreme Court declined to consider a challenge to the statute, effectively removing any obstacle to its implementation. …

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