D.C. Public Interest Law Firm Puts Affirmative Action on Trial

By David Segal

Washington Post, February 20, 1998

Michael Greve stages lawsuits as if they were theatrical productions, so when he began a legal assault on affirmative action, little was left to chance.

With his partners at Washington’s Center for Individual Rights, Greve searched hard for a test case that would land in the 5th U.S. Circuit Court of Appeals, widely considered to be a conservative bench. He then sought plaintiffs at the University of Texas Law School, which he had studied for months and thought was vulnerable to attack. And he was meticulous about finding a lawyer to argue the case, recruiting Theodore Olson, a pricey Washington lawyer known for winning before the Supreme Court.

The planning paid off in 1996 when judges concluded in Hopwood v. State of Texas that UT’s Law School could not use race as a factor in deciding which applicants to admit, a decision that hit higher education like a runaway bus. Enrollment of underrepresented minorities in medical schools across the country, for instance, has since dropped more than 10 percent — a decline that civil rights leaders largely attribute to Hopwood.

Affirmative action is now on the ropes, and the Center for Individual Rights, a conservative public interest law firm, has done much to put it there. Expert in both swaying juries and spinning the press, the group has helped to make “racial preference” sound like a pair of dirty words. Its tactics are shaped by a belief that the national debate about affirmative action will be fought not just with facts and legal arguments, but also with media savvy and shrewd marketing.

Opponents decry the CIR’s frat-boyish predilection for name calling and say the group views a thorny issue of race and fairness in simplistic terms.

“They had this messianic sense that every person on the other side of this issue was lying and evil,” said Samuel Issacharoff, one of the lawyers who defended the University of Texas in the Hopwood case. “Meanwhile, they totally missed the issue of what were the purposes and justifications of an affirmative-action program at a university which stood at the head of a statewide education system that still doesn’t afford equal opportunity to all citizens.”

Working in nondescript downtown offices and merrily skewering all things politically correct, the CIR’s 12 employees say they don’t mind irritating other lawyers — and even judges — as long as they keep racking up precedent-setting victories.

The CIR is using techniques first honed by leaders of the civil rights movement. In the 1940s and 1950s, the NAACP Legal Defense and Educational Fund set about dismantling racial segregation by hunting for strong cases and then mounting legal challenges to Jim Crow laws. It, too, shopped for compelling plaintiffs, filed only promising-looking suits and used the press to generate interest and sympathy.

The ultimate goal for Thurgood Marshall and his NAACP colleagues was to overturn Plessy v. Ferguson, the 1896 Supreme Court decision sanctioning “separate but equal” treatment of blacks. At the CIR, the quarry is University of California Regents v. Bakke, a 1978 Supreme Court decision that allowed college admissions offices to consider an applicant’s race in determining the makeup of the student body.

“We don’t have a problem with any admissions system, provided it doesn’t use race as a factor, period,” said chief strategist Greve, whose booming voice retains traces of his native Germany. “These schools can use a lottery or run applicants around a track if they like, but they can’t use race.”

Now the CIR is expanding its attack to undergraduate institutions by suing the University of Michigan on behalf of Jennifer Gratz, a white honor-roll student who alleges she was denied admission because of her race.

Founded by Greve and Michael McDonald, a local lawyer, the CIR has a $1.2 million budget, most of it from conservative and libertarian foundations. Greve is in charge of belittling the opposition — he recently likened the University of Michigan dean to an automobile air bag — while McDonald handles the legal arguments. Last year, the group recruited a full-time publicist, Terry Pell, who was once an aide to former drug czar William Bennett.

The trio spend nearly as much time courting reporters as drafting briefs. Consider the media tornado the CIR whipped up for its University of Michigan suit.

When the group decided to sue the school, staffers pored over resumes and biographies of about 100 potential plaintiffs, information sent to them by sympathetic state legislators in Michigan. After paring the list, McDonald flew to Detroit, settled into a hotel room and held a series of interviews.

The group’s search for a camera-ready lead plaintiff ended when Gratz, a blond homecoming queen from a blue-collar family, walked in the door. She had stellar grades, no apparent political leanings and good looks to boot. CIR staffers tipped off the New York Times about her suit, and soon a long line of print and television journalists formed.

CIR staffers vetted interview requests and flew Gratz to Washington to pepper her with likely questions. When she showed up on the “Today” show, Terry Pell was sitting next to her, and he was on a speaker phone when reporters visited Gratz’s home in a Detroit suburb. The trick, according to Greve, was making sure she had good answers that didn’t come across as coached.

“You can overdo it,” said Greve, flashing a mischievous grin. “If she sounds like some lawyer made her say something, well, that’s not advantageous for us, either.”

The group added some bite to this public relations onslaught by releasing University of Michigan documents suggesting that the school uses different admissions standards for some preferred minorities. Other lawyers might have waited until the trial, which won’t start for months, to spring such evidence. But CIR officials said they wanted to build momentum for their case and to put the university on the defensive.

Michigan officials would not comment about the sudden rush of media attention, saying in a statement that the group is “clearly a serious litigant.”

Dismantling affirmative action is only one of the CIR’s missions. Greve and McDonald successfully fought to reinstate University of New Hampshire professor J. Donald Silva, who was fired for making remarks that school officials considered sexually explicit. Because one of Silva’s contested utterances mentioned Jell-O, the CIR celebrated by spending some of the money it won for an on-campus Jell-O party.

More famously, the CIR represented the publishers of Wide Awake, a religious newspaper produced by students at the University of Virginia. School officials, worried that they might seem to be endorsing Wide Awake’s Christian doctrine, barred the paper from receiving student activity funds. But Rosenberger v. Rector and Visitors of the University of Virginia ended up in the Supreme Court, which ruled in 1995 that the university had violated the First Amendment and would have to finance publishing the newspaper.

The group said it doesn’t keep a win-loss tally, but it has rarely been defeated in lower-court rulings and has lost only twice at the appellate level. There are typically more than a dozen CIR cases bubbling through the courts, so the group often gets an assist from corporate lawyers friendly to its mission.

Good help hasn’t been hard to find: Many lawyers at prestigious firms say they’re thrilled to find pro bono work they care about. “CIR takes on clients who are underrepresented by the liberal mainstream,” said Shannen Coffin, an associate at the Washington firm Steptoe & Johnson. “And they are litigating some of the most fundamental issues of our day.”

McDonald and Greve say they are hostile to government-sponsored affirmative action on the philosophical grounds that it undermines efforts to create a truly colorblind society. They are irked by university officials who they say often lie about their efforts to give preferred minorities a leg up. And though diversity is a worthwhile goal, according to CIR leaders, it’s overrated and should never trump a person’s right to be judged on the basis of talent and character.

“I don’t know where this idea came from that all races have to be represented proportionally in all professions,” said McDonald, the more soft-spoken of the duo. “We’re here to protect the rights of individuals who are being discriminated against through no fault of their own because of their skin.”

The group’s detractors don’t doubt CIR’s sincerity but are annoyed by its style, which has occasionally backfired. Greve once wrote a tongue-in-cheek newsletter item about getting tipsy on margaritas while preparing evidence for the Hopwood case. After winning, the CIR asked the presiding judge, Sam Sparks, to reimburse the group’s $250,000 in fees and expenses, a sum that included Greve’s paralegal work in the case.

Opposing lawyers sent Greve’s newsletter to the judge as part of their argument that taxpayers shouldn’t pay the CIR a dime. The same newsletter opined that Sparks’s reasoning in the Hopwood decision was harebrained.

The jibes and the margaritas apparently angered the judge, who subsequently cited Greve’s criticisms when he turned down the CIR’s fee request.

Greve chuckles as he recalls the episode. It would have been nice to have the money, he said, but tempering his gift for pithy fulminations and witty put-downs isn’t in the cards. He’s enjoying himself too much, he says, and if he and CIR lawyers get on some people’s nerves, well, that means they’re doing their jobs.

“There is a place for sarcasm, and it comes naturally to me because there is so much lying and hypocrisy in this debate,” he said. “We’re a public-interest law firm, and we’re trying to make the world better.”

Staff researcher Richard Drezen contributed to this report