Group vows to monitor academia's responses

By Diana Jean Schemo

The New York Times, June 25, 2003

The conservative public interest law firm that challenged affirmative action at the University of Michigan is vowing to monitor academia’s responses to Monday’s Supreme Court rulings. The group, the Center for Individual Rights, also promises further lawsuits against institutions that overstep the rulings’ limits on considering race in university admissions.

Terence J. Pell, president of the center, the nonprofit group that sponsored the lawsuits against the University of Michigan Law School and undergraduate division, called Monday’s rulings “a mixed verdict.”

In addressing affirmative action for the first time in a generation, the Supreme Court upheld race-conscious admissions at the University of Michigan Law School, while banning the undergraduate division’s system of automatically awarding minority applicants extra points toward admission. It also endorsed the goal of racial diversity in education as a “compelling state interest,” as Justice Lewis F. Powell Jr. maintained in the initial Bakke decision.

In an interview this afternoon, Mr. Pell said the ruling “increases considerably the odds that there’s going to be additional litigation here.” He noted that soon after the court handed down its rulings, the University of Michigan and the University of Texas announced steps to promote affirmative action.

Officials said the University of Michigan would apply the individual review of each applicant that the Supreme Court approved for the law school to the 25,000 or so undergraduate applicants, hiring new employees to read the applications for the 5,000 available slots. Larry R. Faulkner, president of the University of Texas, said he welcomed the ruling, adding that he would restore affirmative action to graduate admissions, which ended under a 1996 circuit court ruling known as Hopwood v. University of Texas Law School.

“If the first 24 hours are any indication, I think some schools are determined to continue to take race into account, and it’s business as usual for them,” Mr. Pell said. He said the group would watch for universities that might use the rulings as a “fig leaf,” stating that they were studying applications individually but using the kind of “mechanistic system” the Supreme Court has ruled against.

With Monday’s ruling, the Center for Individual Rights, which has a staff of six lawyers and an annual $1.5 million budget, broke its previous winning streak in three cases it had brought before the Supreme Court. Those cases challenged the federal Violence Against Women Act, which the group attacked as an infringement of states rights; barred the University of Virginia from denying a Christian student magazine its share of student activity fees; and prohibited the federal government from forcing racial gerrymandering on a Louisiana school district under the Voting Rights Act.

“What we want to do is bring a handful of cases that will set legal precedent,” Mr. Pell said. Given its size and budget, the Center for Individual Rights does not litigate the cases directly, but basically screens cases and connects plaintiffs with private lawyers willing to represent them free.

“We’re very much like a venture capital firm,” Mr. Pell said in the organization’s modernist office in downtown Washington. “We put money in areas where we can get the most bang for the buck, where the prospects for winning are good.”

Clint Bolick, a vice president at the Institute for Justice, another conservative public interest law firm, said there were differences in the kinds of cases the two organizations seek out.

“C.I.R. would not think twice about representing a white male who had said something politically incorrect, in violation of a speech code,” Mr. Bolick said. “We would. They are more aggressive about taking on political correctness. We’re more focused on building a case in the court of public opinion.”

Roughly a quarter of the Center for Individual Rights budget comes from three conservative and libertarian foundations: the John M. Olin Foundation, the Bradley Foundation and the Scaife Foundation. The rest comes from “several thousand” individual donors, whom Mr. Pell says fall into three categories: conservatives, libertarians and traditional liberals disenchanted by affirmative action or other policies his center focuses on.

Though the Michigan cases prompted a flood of supporting briefs, overwhelmingly backing the University of Michigan, the Center for Individual Rights itself never files such briefs. Instead, Mr. Pell said, it focuses its efforts on “original litigation” based “on real clients who come to us.”

His organization’s own threats of future lawsuits notwithstanding, Mr. Pell contends that the real future of affirmative action will most likely be decided at the ballot box, not in the courtroom. He points to public opinion surveys showing declining support for racial preferences in college admissions, and predicts political pressure for public referenda in the coming years.