Colleges are not just up against a few rejected white applicants in the national debate over affirmative action on campuses. No, the forces aligned against them are much more formidable.
The attacks on race-conscious admissions policies, which have now reached the U.S. Supreme Court in two cases involving the University of Michigan at Ann Arbor, have been propelled by a network of conservative advocacy groups that share a common belief that such policies are both unconstitutional and morally wrong.
“Organizations drive this debate on both sides,” says Ward Connerly, one of the effort’s most prominent leaders, who points out that much of the defense of race-conscious admissions has also come from advocacy groups. “This is all a war in the trenches between organizations, and individuals are just selected to further the aims of the organizations. That is the reality.”
Most of the groups opposed to race-conscious admissions work closely with one another, and all of them meet, at least occasionally, to share ideas and discuss new avenues of attack. Several have close ties to the Bush administration, which they plan to call upon to force colleges to comply with any Supreme Court decision striking down race-conscious admissions policies.
Even if the Supreme Court sides with Michigan, the groups plan to continue their attack by promoting legislation and ballot referendums to ban racial and ethnic preferences, and by appealing to their supporters on campuses and in the general public to put pressure on colleges to change.
A Supreme Court decision in favor of Michigan “does not mean that the states cannot prohibit [race-conscious policies]. It does not mean that Congress cannot prohibit them. It does not mean that colleges should not voluntarily get rid of them,” says Roger B. Clegg, general counsel for the Center for Equal Opportunity, one of the leading opponents of racial and ethnic preferences.
Leading the Charge
Three groups are at the forefront of this fight.
The Center for Individual Rights, a Washington-based nonprofit legal organization with an annual budget of about $1.7-million, represents the Michigan plaintiffs and has waged most of the other court battles against colleges’ affirmative-action policies.
The American Civil Rights Institute, a Sacramento-based group with an annual budget of more than $1.4-million, successfully led a ballot initiative to amend Washington State’s constitution to ban racial and ethnic preferences. Its chairman, Mr. Connerly, led the successful campaign for a similar ballot measure in California and plans to have his group promote similar constitutional amendments in other states if the Supreme Court rules in Michigan’s favor.
The Center for Equal Opportunity, which is based in Sterling, Va., and has an annual operating budget of about $1-million, has studied and publicized the use of preferences by colleges in an attempt to pressure the institutions to drop such policies. The group also has been urging sympathetic state and federal officials to crack down on any race-based college policies that they regard as legally questionable.
A fourth organization, the 4,500-member National Association of Scholars, has aided the cause, largely by encouraging opposition to race-conscious policies on campuses and elsewhere, by sponsoring research that seeks to rebut claims that racial diversity has educational value, and by using state freedom-of-information laws to force colleges to disclose how much weight they give to race and ethnicity in admissions decisions.
All four groups have derived a significant share of their financial support from many of the same conservative foundations, including the John M. Olin Foundation, the Lynde and Harry Bradley Foundation, and the Sarah Scaife Foundation. And, to varying degrees, all four have worked with a network of other organizations, both conservative and libertarian, that support their cause.
Each month, the Center for Equal Opportunity and the Heritage Foundation assemble representatives from many of those organizations for meetings of what is called the Civil Rights Working Group. Modeled after the liberal Leadership Conference on Civil Rights -- a well-established coalition of groups involved in advocacy on behalf of women and minority groups -- the gathering is intended to bring its participants up to speed on one anothers’ activities in regards to affirmative action and other issues.
“There is a lot of task-oriented discussion that goes on,” says Mr. Clegg, of the Center for Equal Opportunity. “We talk about who is doing what, and what needs to be done, and who is in a position to do it.”
Many prominent opponents of race-conscious admissions -- including Mr. Clegg; Clint Bolick, the vice president of the Institute for Justice; and Curt A. Levey, director of legal and public affairs for the Center for Individual Rights -- also work together as leading members of the Civil Rights Practice Group of the Federalist Society for Law and Public Policy Studies, a 25,000-member, Washington-based organization for lawyers and law students with conservative or libertarian values.
Several conservative organizations, including the Center for New Black Leadership and the Independent Women’s Forum, both based in the Washington area, have sought to help the cause by speaking out against race-conscious admissions policies and by filing amicus curiae, or “friend of the court,” briefs on behalf of those challenging such policies in court. Like-minded public-interest law outfits, including the Pacific Legal Foundation and the Southeastern Legal Foundation, have pitched in by submitting similar briefs and, in Pacific’s case, providing direct legal assistance to defend California’s ban on preferences from legal challenge.
Goals and Assists
To be sure, not every challenge to race-conscious admissions policies has been the work of some advocacy group.
Most notably, Lee Parks, an Atlanta-based lawyer, worked alone in handling a lawsuit that led to the key August 2001 decision, by the U.S. Court of Appeals for the 11th Circuit, that struck down the University of Georgia’s race- and gender-conscious admissions policies as illegally discriminating against white and female applicants.
“A lot of times, when you work with a group that is involved for ideological reasons, the quid pro quo for their support is that they will litigate the ideological issue to fruition,” Mr. Parks says. “We weren’t out to change the world. We just had 12 women who we wanted to be in school.”
And one group leading the charge against racial preferences in admissions, the Center for Individual Rights, maintains that other groups have had little impact on its cases or influence on its work.
Terence J. Pell, the president of the Center for Individual Rights, refused to be interviewed at length for this article because, he said, “it is not appropriate for us to be in a story about a movement against affirmative action. We are not that kind of organization. We are a law firm. We represent clients in lawsuits. And we represent those clients and not some larger cause.”
There’s no question, however, that several of the other groups opposed to racial and ethnic preferences have worked in tandem.
In 1998, officials of the American Civil Rights Institute, the Center for Equal Opportunity, the Heritage Foundation, and the Institute for Justice undertook the Project for All Deliberate Speed, through which they jointly contacted the attorneys general of all 50 states and urged them to comb through statutes for affirmative-action policies that recent Supreme Court decisions had rendered unconstitutional.
In recent months, the American Civil Rights Institute, the Center for Equal Opportunity, and the National Association of Scholars have jointly worked to rid Michigan and other colleges of programs that completely exclude white and Asian students. The programs—many of them summer programs or fellowships -- are much harder to defend than admissions programs that merely consider race. The scholars’ group is urging its members to report any such programs on their campuses to the center and the institute, which, in turn, have been sending the colleges warnings that, should they fail to drop the programs, complaints will be filed with the Education Department’s Office for Civil Rights.
Lee Cokorinos, research director of the liberal, New York-based Institute for Democracy Studies, has extensively studied the groups opposing affirmative action and their links and common sources of financial support. A book on his findings, The Assault on Diversity: An Organized Challenge to Racial and Gender Justice (Rowman and Littlefield), is due out in April.
Mr. Cokorinos characterizes the various challenges to colleges’ affirmative-action programs as “a project of the major foundations of the political right,” carried out “by a well-funded, nationally based network.”
“They are on a mission,” Mr. Cokorinos says, and their goal, is “essentially trying to eliminate the gains of the civil-rights movement.”
But Mr. Bolick of the Institute for Justice argues that the groups involved in the effort have no choice but to rely on the same philanthropies and to try to coordinate their activities. “Corporate America is emphatically not interested in supporting the fight against racial preferences,” Mr. Bolick says.
“Most foundations,” he adds, “are liberal to begin with, and, of those who support conservative groups, only a handful have been supportive of this issue.”
“I wish there was a vast right-wing conspiracy,” he says. “But, in fact, the resources among conservative groups are so finite that we have to specialize.”
Justice Powell’s Handiwork
The same man whose words gave rise to today’s race-conscious admissions policies also helped plant the seeds of their potential demise.
The late Lewis F. Powell Jr. is well known as the author of the Supreme Court opinion, in the landmark Regents of the University of California v. Bakke case of 1978, that held that colleges could not use race-based admissions quotas but could give some consideration to applicants’ race to promote educational diversity, which he viewed as a compelling government interest.
What is less well known is that he also played a key role in the birth of the conservative legal-advocacy movement.
In 1971, just months before he was appointed to the Supreme Court, Mr. Powell, a conservative and a lawyer in private practice, wrote a memorandum to the U.S. Chamber of Commerce in which he decried the influence that environmental and consumer-advocacy groups were exerting on the government. He suggested the creation of a nonprofit legal center to promote the interests of business.
The California Chamber of Commerce took his idea and ran with it, working to establish, in 1973, the conservative Pacific Legal Foundation to promote individual rights, property rights, and free enterprise in that region. The new organization had little trouble attracting the financial support of like-minded businesses and philanthropies, and it quickly inspired the creation of other regional centers, such as the Colorado-based Mountain States Legal Foundation and the Atlanta-based Southeastern Legal Foundation, as well as national organizations such as the Washington Legal Foundation, all with similar missions.
Although the Pacific Legal Foundation’s primary focus was fighting environmental regulations, it also took interest in issues related to race, filing an amicus brief with the Supreme Court on behalf of the plaintiffs in Bakke.
Several of the other groups modeled after it also got involved in race-related litigation, and, over the following decades, had a hand in efforts to oppose government set-asides for members of minority groups and to limit the reach and duration of school-desegregation plans.
In a case that was a precursor for the current debate over race-conscious admissions, the Washington Legal Foundation represented Daniel J. Podberesky, who sued the University of Maryland at College Park in 1990, after being denied a scholarship reserved for black students. The U.S. Court of Appeals for the Fourth Circuit struck down the Maryland scholarship program as discriminatory in a 1994 ruling that the Supreme Court subsequently let stand.
Litigious Gadflies
The Center for Individual Rights arrived on the legal-advocacy scene in 1988. Founded by Michael S. Greve and Michael P. McDonald, who had worked together at the Washington Legal Foundation, the center’s mission was to champion the civil liberties that conservatives valued.
The center followed a markedly different strategy, however, than other conservative public-interest law groups.
It rejected the filing of briefs as an effective means of expressing its views because it believed that the courts generally gave the briefs little weight, and that it could have more impact if it became directly involved in litigation.
Borrowing a key tactic of the American Civil Liberties Union and other liberal public-interest groups, it chose not to maintain a large, expensive, in-house staff, and instead has turned to outside lawyers, working pro bono, to do much of its advocacy work.
The center quickly got pulled into the higher-education arena by making a name for itself as a leading defender of the free-speech rights of professors who believed that they had been disciplined or denied promotions for espousing “politically incorrect” ideas. Many professors were referred to the center by the National Association of Scholars.
In 1993, the center leaped squarely into the middle of the affirmative-action debate by agreeing to help represent the four white plaintiffs in Hopwood v. Texas, a lawsuit challenging the admissions policies of the law school at the University of Texas at Austin.
Ever since then, the organization “has been front and center in the litigation crusade” against race-conscious admissions policies, says Mr. Bolick of the Institute for Justice.
In March 1996, the U.S. Court of Appeals for the Fifth Circuit handed the center a stunning victory, striking down the Texas law school’s admissions policies in a ruling that rejected what many had assumed was settled law. Citing Supreme Court decisions dealing with affirmative action in employment and contracting, in which the majority held that racial and ethnic preferences were justified only as remedies for past discrimination, the Fifth Circuit held that the diversity rationale articulated in Justice Powell’s opinion in Bakke no longer applied.
The Hopwood decision was binding only in the Fifth Circuit -- the states of Texas, Mississippi, and Louisiana -- but the Center for Individual Rights promptly took the battle elsewhere, filing a lawsuit against the law school at the University of Washington at Seattle in March 1997. (The U.S. Court of Appeals for the Ninth Circuit ruled in favor of the University of Washington in December 2000, and the U.S. Supreme Court opted not to hear that case.)
Soon after the Washington lawsuit was filed, several Michigan lawmakers enlisted the center’s help in mounting a legal challenge to the admissions policies of the University of Michigan at Ann Arbor. The center selected its plaintiffs from dozens of prospects forwarded to it by lawmakers, and filed two lawsuits against Michigan in the fall of 1997, with one suit opposing the university’s law-school admissions policies, the other taking on the undergraduate admissions policies of the College of Literature, Science, and the Arts. Mr. Greve subsequently described both the Michigan and Washington cases as “part of a larger strategy to put the consideration of race beyond the reach of the state.”
In January 1999, the center published two “handbooks” for distribution on college campuses. One, meant for college trustees and administrators, advised them on steps they could take to avoid a lawsuit over their admissions policies, and told trustees that they could be held personally liable if their institution was found guilty of discrimination. The other handbook, advertised in student newspapers, instructed students on how they could scrutinize their institution’s admissions policies for racial and ethnic bias and file a suit. Publicly, college officials denounced the handbooks as a scare tactic, and disputed the center’s interpretation of the law. Privately, at least one, the University of Virginia, began reviewing and tinkering with its admissions policies to limit its legal exposure.
The Political Arena
While the Center for Individual Rights has worked through the courts, Mr. Connerly and his American Civil Rights Institute have sought to use ballot initiatives to ban racial and ethnic preferences.
Mr. Connerly, a Sacramento businessman, undertook his first major assault on preferences as a member of the University of California Board of Regents. Having heard complaints that the university was discriminating against white applicants, he persuaded his fellow board members, in July 1995, to ban the university’s use of racial, ethnic, and gender preferences in admissions, hiring, and contracting.
Mr. Connerly’s success attracted the attention of two leading members of the California Association of Scholars who had drafted a ballot initiative to ban all state and local agencies, including public colleges, from using racial, ethnic, and gender preferences. Mr. Connerly was recruited in late 1995 to lead the campaign for the amendment to the state’s constitution, known as Proposition 209. Although Mr. Connerly is the child of mixed-race parents, many people regard him as black, and his public advocacy of Proposition 209 made it hard for opponents on campuses and elsewhere to characterize the measure as a white man’s backlash. It passed in the November 1996 elections, with 54 percent of the vote. Lawyers from the Center for Individual Rights and the Pacific Legal Foundation helped defend it against various legal challenges.
In January 1997, Mr. Connerly announced the establishment of the American Civil Rights Institute and its companion political-action group, the American Civil Rights Coalition. One of the groups’ first targets was Washington State, where the American Civil Rights Coalition led a successful campaign on behalf of Initiative 200, a preference ban adopted by the state’s voters in November 1998. Like California’s Proposition 209, it had been strongly opposed by college presidents and campus groups.
The mere fact that Mr. Connerly was planning a similar ballot campaign in Florida was enough to prompt Gov. Jeb Bush, a Republican, to end the use of racial and ethnic preferences by most state agencies in November 1999, and to persuade the state university system’s governing board to drop race-conscious admissions policies in favor of a plan to guarantee a spot at a public university to the top 20 percent of graduates from every state high school.
As chairman of the American Civil Rights Institute -- a position for which he is paid more than $260,000 annually -- Mr. Connerly continues to barnstorm the nation, speaking out against preferences wherever there is an audience willing to hear his views. He also has mounted a new ballot campaign in California for the Racial Privacy Initiative, a proposed constitutional amendment that would prohibit public colleges and other state agencies from even gathering information on race.
Turning Up the Heat
The third major force in fighting race-conscious admissions, the Center for Equal Opportunity, was established by Linda Chavez, a prominent conservative activist, in 1995.
In an effort to bring public and political pressure to bear on public colleges, the center has sought to use colleges’ own admissions data to generate public and political pressure for them to drop affirmative action.
The impact of the center’s work is difficult to gauge. But there is no doubt that it spurred Virginia’s attorney general’s office to advise public colleges there to curtail their use of race-conscious admissions over the past year. And at least two institutions, the University of Virginia and the University of Massachusetts at Amherst, have altered their admissions policies partly in response to the center’s scrutiny.
The National Association of Scholars, which emphatically rejects the label “conservative,” has been drawn into the fray out of members’ belief that racial preferences in admissions erode the academic quality of colleges and foster a campus climate that is racially and ethnically polarized, making it harder for students to transcend their backgrounds and learn new perspectives.
“We have seen, as our special mission in this, making the academic arguments,” says the association’s president, Stephen H. Balch. “We think our contribution to the debate is to talk about the intellectual and educational side.”
The association has helped the Center for Equal Opportunity gather information, published a long list of studies and articles critical of affirmative action, sought to refute assertions by officials at the University of Michigan and elsewhere that race-conscious admissions policies have educational benefits, and spoken out in support of legislative efforts to ban racial and ethnic preferences.
“I think there is much more opposition to preferences today in the academy than there ever would have been had we not been around,” Mr. Balch says.
In recent years, the opponents of race-conscious college admissions appear to have gained an especially powerful and well-financed ally: the Bush administration.
Several veterans of the fight against racial and ethnic preferences have been named by President Bush to key leadership posts. They include Brian W. Jones, the Education Department’s general counsel, and Gerald A. Reynolds, the head of the Education Department’s Office for Civil Rights, each of whom is a former president of the Center for New Black Leadership. (Mr. Reynolds also worked for the Center for Equal Opportunity.) Also in this group is the Justice Department’s top lawyer, Solicitor General Theodore B. Olson, who, as a lawyer in private practice, aided the Center for Individual Rights by providing pro bono representation to the plaintiffs in Hopwood, the University of Texas law-school case.
The Justice Department has submitted briefs to the Supreme Court urging it strike down Michigan’s policies, and Mr. Olson chose to participate in oral arguments in the case. Meanwhile, the Education Department’s Office for Civil Rights has signaled, in handling discrimination complaints lodged against race-exclusive college programs, that it intends to take a hard line on bias against white students.
Mr. Connerly says the Bush administration “is looking at the issue of civil rights in a different way” than the Clinton administration, which, he contends, “had an incestuous relationship” with minority-advocacy groups, and obstructed efforts to end racial and ethnic preferences.
“There is an incestuous relationship now -- it is just that there are different families involved,” Mr. Connerly says.
Contingency Plans
Mr. Pell of the Center for Individual Rights says he is confident that the Supreme Court will strike down race-conscious admissions in the Michigan cases, and that the nation’s colleges will quickly fall into line.
“We are hopeful, and we think that the Michigan cases will provide the court with an opportunity to settle the admissions issue once and for all,” he says.
But lawyers from the American Civil Rights Institute, the Center for Equal Opportunity, and the Pacific Legal Foundation are skeptical that colleges would be in any hurry to comply with such a ruling.
“Many colleges’ admissions programs are very tightly tied, philosophically, to the concept of race preferences, and, in some cases, sex preferences,” says John H. Findley, a top lawyer for the Pacific Legal Foundation, who predicts that colleges will engage in “massive resistance.”
“Will they cheat? Yes, absolutely, they’ll cheat. To them, diversity is a religion, it is a way of life. They are committed to it on an emotional and moral level,” says Mr. Parks, the lawyer who handled the University of Georgia case.
Nearly seven years after California’s passage of Proposition 209, the Pacific Legal Foundation suspects that the university system continues to discriminate against white applicants, only in a less overt manner. The group is seeking university admissions data in an effort to prove such bias.
“Getting the smoking gun is what we are all about right now,” says Harold E. Johnson, a lawyer for the group.
Mr. Balch of the National Association of Scholars says that, in the event of a Supreme Court ruling against Michigan, “the role of the NAS would be, first and foremost, to help make sure that institutions comply.”
The American Civil Rights Institute, the Center for Equal Opportunity, and the National Association of Scholars believe that the system that they have developed for weeding out race-exclusive programs can be duplicated and used to eliminate race-conscious admissions policies as well.
“It seems like every day we get one or two letters or e-mails asking us to look into the legality of some program,” says Edward J. Blum, director of legal affairs for the American Civil Rights Institute. If the Supreme Court rules against Michigan, the three groups also plan to “act as watchdogs for how new admissions standards are crafted.”
Mr. Clegg of the Center for Equal Opportunity predicts that such a ruling would embolden more lawyers in private practice to take on similar admissions cases, partly because the losing colleges would be required, under current civil-rights laws, to pay the plaintiffs’ fees.
If the Supreme Court issues ambiguous or nuanced rulings in the Michigan cases, or strikes down Michigan’s policies on fairly narrow, technical grounds, the likely result will be more lawsuits by conservative groups intended to force the courts to clarify the law.
If the Supreme Court upholds race-conscious admissions, Mr. Connerly says that the American Civil Rights Institute will respond by mounting a series of new ballot campaigns aimed at amending states’ constitutions to ban preferences.
“Michigan would be ripe,” he says.
