Colorblind: White-washing AmericaBy Nikhil Aziz
"CIR's civil rights litigation is based on the principle of strict state neutrality: the state must not advantage some or disadvantage others because of their race.
Race, like religion, must be placed beyond the reach of the state. Our objections to racial preferences are legal, moral, and pragmatic. Preferences are almost always unconstitutional when used to achieve an arbitrary racial diversity; they are only legal when narrowly tailored to remedy past discrimination against identifiable individuals. As a moral matter, preferences are dehumanizing and reduce individuals to the color of their skin. And pragmatically, racial preferences almost always add to division and discord in society."
The Center for Individual Rights (CIR) describes itself as a “nonprofit public interest law firm dedicated to the defense of individual liberties.” Founded in 1988 by Michael McDonald and Michael Greve, both previously at the rightist Washington Legal Foundation, CIR is now an established presence in the nation’s capital, and its influence is felt across the country through various high-profile cases that it has taken up, including more than a few that it has fought and won in the U.S. Supreme Court. Over the last 14 years, CIR has grown from the 2 founders in a small nondescript space to a swanky office with administrators, in-house counsel, interns, high-flying pro bono lawyers, a number of publications, and a sizeable and growing budget.
CIR is one of a number of conservative right-wing legal advocacy organizations founded to bring legal cases in support of rightist campaigns. It has been very successful in replicating liberal public interest law firms such as the American Civil Liberties Union (ACLU). CIR has concentrated on specific areas of concern, and within them zeroed in on cases that it felt would “change the law,” as opposed to simply winning a victory. Changing the law has clearly been its goal in the area of affirmative action, particularly in higher education. (See sidebar page 4 on the main higher education affirmative action cases that CIR has brought). According to Terry Carter, CIR “does go where its plan works best” which allows it to “attack affirmative action at its weakest links . . . [and] rely in large measure on conservative judges who go beyond the facts of individual cases to proclaim things that have broader implications.” CIR’s lawyers contend that it has won before judges who are not conservative, but according to journalist W. John Moore, “they concede that the appointment of conservative judges by Presidents Reagan and Bush have made the courts more receptive to their arguments.”
As David Segal of the Washington Post reported, “[Michael] 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 [now Solicitor-General] Theodore Olson, a pricey Washington lawyer known for winning before the Supreme Court.” For CIR, winning the war was more important than winning a battle. The strategic nature of CIR’s modus operandi has also been noted by lawyer Idris Diaz, who writes that, “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 benefited this group. Yet CIR has hardly been an ally of the women’s movement.” In 2000, it successfully contested the constitutionality of parts of the Violence Against Women Act in the U.S. Supreme Court. In two other cases, Boulahanis v. Board of Regents, Illinois State University, and Miami University Wrestling Club v. Miami University, CIR defended men’s sports teams that had been eliminated to achieve participation proportional to the population of women and men at those universities.
The pick and choose strategy CIR has employed with regard to cases is not new. Ironically, it mirrors the National Association for the Advancement of Colored People (NAACP) Legal and Educational Defense Fund’s struggle—led by [later Justice] Thurgood Marshall—to overturn racial segregation and “separate but equal” laws in the 1940s and 50s, culminating at the U.S. Supreme Court in Brown v. Board of Education. CIR’s staff has adopted, and adapted, that basic strategy to argue that the U.S. Constitution should allow only legislative policies and institutional practices that are “colorblind.” In an ideal world, colorblindness, if understood as “not discriminating on the basis of race,” is certainly a value that progressives would espouse. But our society and our system are far from approximating that ideal. Just because we have dismantled Jim Crow laws and apartheid-style legalized segregation does not mean that we have achieved genuine racial equality or justice. Racism is not manifest simply in the attitude or act of one individual toward another. It is deeply imbedded in our system and structures—giving rise to the concept of “institutional racism.”
In a society and system that is institutionally racist, and where simply being White means having privilege, being colorblind actually results in being “snowblind.” Journalist and professor Robert Jensen notes that, “White privilege, like any other social phenomenon, is complex. In a white supremacist culture, all white people have privilege, whether or not they are overtly racist themselves. There are general patterns, but such privilege plays out differently depending on context and other aspects of one’s identity.” White privilege does not ignore issues of class or gender. As activist Sharon Martinas reasons, “Non-ruling class white people are both oppressed and privileged. They are oppressed most significantly on the basis of class, gender and sexuality, and also on the basis of religion, culture, ethnicity, age, physical abilities and politics. At the same time, they are privileged in relation to peoples of color.”
Snowblindness: Institutional Racism in the United States
Institutional racism is a term coined by progressives in the 1960s to capture the way in which “racial inequality is built into the structure of American politics and social arrangements. Institutional racism goes beyond individual racist ideology and acts. It pervades the ‘normal workings’ of social, economic, political, religious, legal, and medical institutions, systematically placing people of color at a disadvantage. It is in the practices and procedures of these institutions that status and opportunities for people of color are constructed unequally.” As Black lesbian feminist writer and activist Barbara Smith observes, “Racism is not primarily a set of negative attitudes or behaviors on the part of individual whites. These negative attitudes and behaviors are grievous and sometimes fatal, but they are in fact symptoms of a system whose purpose is not merely to make people of color feel badly, but to maintain white power and control.” Power and control are not always achieved or maintained through numerical strength but through the construction and preservation of a biased system. “For instance, Whiteness in the context of institutionalized racism affords members of the ‘White race’ dominance in settings as different as the contemporary United States and apartheid South Africa.”
Institutional racism is certainly not unique to the United States, and is found in similar forms from Britain to Brazil. In other world regions, such as South Asia, institutional oppression takes different yet similar forms. In India, where institutional casteism is manifest in the systemic discrimination against Dalits and “lower” castes, religion also becomes a terrain for discrimination with the institutionalized oppression of Muslims and other religious minorities. It was institutional casteism that Bhimrao Ambedkar, the architect of India’s Constitution, was concerned about while steering that document through the Indian Constituent Assembly:
“. . . we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we shall be recognizing the principle of one man, one vote, one value. In our social and economic life, we shall by reason of economic structure, continue to deny the principle of one man, one vote. How long shall we continue to deny equality in social and economic life? If we continue to deny it for long, we will do so by putting our democracy in peril.”
Ambedkar could as easily be talking about institutional racism in the United States. A classic example of institutional racism in the United States is “the contrast between an inner city public school, which tends to have a higher proportion of [usually lower income] students of color, with a suburban public school which is apt to have a majority of [usually higher income] white students. In an inner city school class sizes tend to be larger, textbooks are often unavailable or outdated and buildings tend to be older and in need of repair. In wealthier suburban schools, on the other hand, class size tends to be smaller, textbooks are usually up-to-date and available and the facilities are generally maintained. Meanwhile graduates are held to the same standard without regard for the unequal preparation that different educational environments create.” While in theory public education is the same for all, in reality—despite desegregation—it is anything but equal.
Rac[e]ing the Right
Institutional racism is purposefully located within the Right’s analytical blind spot. For the Right, colorblindness means a neutral and equalizing gaze that focuses on individuals and not on groups. In the United States, where individualism is a much-celebrated theme in the national myth, this focus on the individual extends beyond rightist libertarians to the Right as a whole. Yet, the emphasis on individualism also creates contradictions within the Right. The Christian Right celebrates collectivities such as the “family” or Christians, particularly in the context of its claims about declining morality. Similarly, the Extreme Right underscores race, and therefore racial groups.
Race does not occupy the same position in the worldview of different sectors of the Right, though it is always central to the racist Extreme Right. Scholars on the Right most often dismiss the very idea of institutional racism or treat it as having no merit, arguing that racial incidents and outcomes are always and merely a problem between individuals. Dinesh D’Souza, for example, writes that, “‘Institutional racism’ refers to merit standards of hiring and promotion that fail to produce proportional outcomes for minorities.” For the most part, groups on the Right allege that “racism is a thing of the past: specifically, that both legally-sanctioned (de jure) discrimination and the informal practices of de facto discrimination have been corrected.” However, where the Old Right is overtly racist, the New Right in the post-Civil Rights era obscures its racism behind the coded language of “states’ rights” and “colorblindness.” Amy Ansell argues that the New Right’s racism is a “new racism,” which is characterized by “the abandonment of a commitment to equality and a redefinition of the principle of fairness.” The Right argues that, because racism has been dealt with as a result of the Civil Rights Movement, race should not be a consideration for hiring in employment or for admission to educational institutions, and group identities other than “American” are immaterial.
According to the Right, identity politics and pluralism weaken American culture. Professor David Brudnoy, while acknowledging the multi-ethnic, multiracial, and multireligious character of the United States, finds that, “We barely retain our all-embracing values, owing to the multiculturalists’ ideological derision of Americanism, adoration of the exotic, and sneering of the unity that was our melting-pot goal. . . . Uni-culturalism is essential if we’re to remain recognizably America, but we’re in full retreat from it.” There is usually no acknowledgement in such contentions that the Right’s construction of the archetypal “All-American” is White, heterosexual, and Christian.
Where racism exists in the form of individual prejudice, the Right often advocates “racial reconciliation.” So, groups within the Christian Right, such as the Promise Keepers, which has taken the lead in reconciling the races, call upon individual Whites to repent and discard their prejudice, and to embrace people of color as their fellow Christians. As Andrea Smith, a Native American progressive activist, writes, “The basis of race reconciliation is, of course, Christianity. White evangelicals embrace race reconciliation only with those groups they see as sufficiently Christian.”
In the Right’s view, affirmative action and other programs designed to address institutional racism (and sexism and heterosexism) become both unnecessary (since racism doesn’t exist except in individual personal action or thinking), and unjust (since they do not discount race and consider individual merit alone). Using polemical and divisive tactics, the Right attacks affirmative action as “racial quotas,” “preferential treatment,” and “reverse discrimination.” It cynically takes the language of the Civil Rights Movement, including the words of Dr. Martin Luther King, Jr., himself, to argue that individuals should be judged by their merit and character and not by their skin color. It contends that since racism, when it does occur, is between individuals, any remedy should be aimed at those individuals who can be identified as having directly suffered an act of racism. And, it also warns that preferential treatment accorded to a particular ethnic or racial group will create resentment among others (read Whites). These arguments fleshed out early on by the Neoconservative scholar Nathan Glazer in his 1975 book, Affirmative Discrimination, are the foundation of CIR’s opposition to affirmative action; and also form the underpinnings of the attack on affirmative action by the Right as a whole. Legal challenges to affirmative action, diversity, and a progressive higher education are only one aspect of the Right’s concerted efforts to change the face of education. Scholar Ellen Messer-Davidow has researched the well-coordinated broader attack on campuses and higher education institutions across the United States, involving conservative student, alumni, and faculty groups, publications, financial support, influential columnists, intellectuals, and policy-makers.
Jerome Himmelstein, a scholar of the U.S. Right, has documented the development of the successful, although difficult, synthesis of traditional conservatism and libertarianism manifest in the emergence and triumph of the New Right in the last three decades of the 20th century. The New Right blended “a militant anticommunism with a libertarian defense of pristine capitalism and a traditionalist concern with moral and social order.” This was a natural outcome of an “an ideological division of labor that had developed within conservatism that directed the traditionalist emphasis on moral order, community, and constraint to the social issues while the discussion of economic issues stressed mainly libertarian themes of individualism and freedom.” Despite that division, “Right-wing libertarians are reactionaries who are vicious in their condemnation of liberal programs for social justice, sharing with the larger Right their abhorrence of liberalism.”
Libertarianism: Atomizing Society
CIR’s conservatism primarily stems from libertarian roots. In its self-description it acknowledges that, “Its name was chosen to underscore that its objective would be to defend individual liberties, broadly understood to encompass both civil and economic rights . . . [and that it] offered conservative, libertarian and moderate attorneys in for-profit firms an opportunity to bring about meaningful legal change and to contribute to the principled defense of individual liberty in court.” Libertarianism—right-wing libertarianism in this case—accords the individual primacy over society and the State. In so doing, it melds an antigovernment perspective with pro-free market fervor. The antipathy towards State intervention in the economy is matched by a rejection of State intervention in society. The State is simply required to maintain the minimum law and order that would allow the market free reign, and would enable individuals to exercise free will in society. Beyond that the State should not be in the business of regulating society or the economy.
Researcher Jean Hardisty has written previously in The Public Eye that, “Libertarians view all government programs as coercive and prefer existing inequality to government programs designed to decrease that inequality.” While government programs, and often government action, are regarded as coercive and harmful by many on the Right, what is not recognized by them is that “What constitutes ‘harm’ is . . . determined by the state and the law; and the state and the law . . . define harm in the shadow of the dominant ideology of power.” Essentially, those who control the State make the laws, and it is they who define what harm (and therefore harmful) is, and what it is not.
In Hardisty’s words, “Libertarians are often criticized for a heartless indifference to the social contract, or any other civic-minded concern for the larger social good . . . [to which they] respond with their notion of ‘civil society,’ which they claim is nurtured by libertarianism more successfully than by any other political ideology.” But in this “free-for-all competitive private sector they call civil society, libertarians show no concern for a level playing field.” In this context, “equal before the law” means neither equal opportunity, nor equal results. The State must not actively discriminate against any individual—true. But neither should it be engaged in creating the exact same opportunity for all individuals, or in ensuring that all individuals get the exact same results. Libertarians would argue that individuals have free will, and with the government providing minimum law and order the freedom to avail of opportunity.
This is far less than the liberal definition of equal opportunity, in which the government has a role in ensuring that equal opportunity exists in fact, not simply in theory. Many progressives would argue for further strengthening the liberal equal opportunity concept, by adding feminist theorist Martha Nussbaum’s idea of “basic capability,” grounded in what Professor Jyl Josephson calls “equal respect.” Recognizing that there cannot be a completely level playing field unless one begins from a clean slate, a just society ensures that each individual has the basic capabilities to avail her/himself of equal opportunity. Such basic capabilities would include health care, adequate food and shelter, security, freedom of movement, and freedom from discrimination.
Equal Protection: Unequal Causes, Unequal Effects
CIR, and the Right in general, invoke the Equal Protection Clause and civil rights laws while attacking affirmative action. The Equal Protection Clause (Section 1 of the 14th Amendment to the U.S. Constitution) reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The 14th Amendment, along with the 13th and 15th Amendments (which ended slavery and gave African-Americans the right to vote) was one of three post-Civil War additions to the U.S. Constitution. Over the years, the U.S. Supreme Court has elaborated three standards of review, under the Equal Protection Clause of the 14th Amendment, for determining the constitutionality of laws, policies, and programs. First, the class or category of individuals being affected is examined. Race, ethnicity, and religion are considered inherently suspect classifications—because they are categories that historically have been the basis for discrimination. In cases where these categories are involved, the Court uses “strict scrutiny” to determine that the law or policy serves a “compelling” government interest, and that it is “narrowly tailored” to serve that interest or to remedy actual discrimination.
Affirmative action policies, because they involve race, are reviewed under this standard. CIR, in appealing the decision in Smith v. University of Washington Law School (see sidebar page 5 for case) asked the U.S. Supreme Court to consider whether, under the 14th Amendment’s Equal Protection Clause, diversity itself was “a compelling government interest sufficient to meet strict scrutiny,” with regard to affirmative action programs. The Supreme Court declined to hear that appeal in May 2001. This does not imply that the Rehnquist Court necessarily views diversity to be a compelling State interest; but it might simply be waiting for a more significant case, or a more opportune moment, before putting the issue on its docket. In fact, civil rights activists, fearful of how the majority on the Rehnquist Court might come down on the issue of diversity have at times moved to settle cases out of court to prevent them from reaching the bench.
One such case is Board of Education of the Township of Piscataway v. Taxman, which was accepted by the U.S. Supreme Court in 1997. In 1989, the Piscataway, NJ, school board eliminated a position, as a result of which Sharon Taxman (a White teacher) lost her job, while Debra Williams (an equally qualified Black teacher with the same seniority) kept hers. The school had cited diversity (Williams was the only minority teacher in her department) as the rationale for its decision. Taxman won the case in the lower courts, including the U.S. Court of Appeals for the Third Circuit. The school appealed the decision to the U.S. Supreme Court. The high-profile case roped in a number of supporters on both sides who filed amicus curae (friend of the court) briefs. Supporting Taxman were groups like the National Association of Scholars (an organization of rightist academics), and the first Bush Administration, which filed a brief at the lower court level, while the Clinton Administration filed a brief along with 25 higher education groups urging the Supreme Court not to issue a broad ruling on diversity applicable beyond that single case.
Equal protection does not mean that the government is required to treat all people equally, across the board. Discrimination based on age (requiring someone to be a minimum age to be able to drink or drive for instance), social or economic status, fall within a “minimum” scrutiny range. A third standard, that of “heightened” scrutiny is used in cases of gender-based discrimination, where the government is required to show that the policy or law has a “substantial” relationship to an “important” government interest. Author Carl E. Brody, Jr., writes that the Supreme Court “should understand the historical context motivating the enactments of the Fourteenth Amendment and the 1964 Civil Rights Act . . . [and] should affirm the underlying rationale for affirmative action programs and return to a more lenient level of scrutiny when analyzing these programs.” Justice Brennan and three other justices argued similarly in the Bakke case. (See sidebar page 4).
Critical Race theorist Neil Gotanda also critiques the use of colorblind constitutionalism in the “strict scrutiny” employed by the Supreme Court (and advocated by the Right) with regard to affirmative action. Colorblindness ignores the reality that, “While the social content of race has varied throughout American history, the practice of using race as a commonly recognized social divider has remained almost constant.” Gotanda argues for a more nuanced view of race, including a three-fold definition that helps us understand better the substance of the racial classification. The first is “status-race,” which takes into consideration the different social status accorded to individuals based on their skin color. In the pre-Civil War era the inferior status of African-Americans was legal, but now the Court endures “the legacy of status-race only in the private sphere.” What this means is that private citizens are free to interact or not with whom they choose, whereas the State cannot exclude people based on race. The illustrative case of status-race is the 1857 U.S. Supreme Court decision in Dred Scott v. Sandford, which found the inferior status of African-Americans to be implicit in the U.S. Constitution.
“Formal-race,” Gotanda’s second type, assumes that there is no connection between race as a classification and the social status or historical experience of racial groups. The majority opinion in the 1896 U.S. Supreme Court decision Plessy v. Fergusson exemplifies formal-race thinking, wherein separate but equal segregation was deemed to be constitutional because it was considered racially neutral. Gotanda writes that formal-race is the category used by the current majority on the Supreme Court in cases ranging from affirmative action to voting rights. Gotanda’s third type, “historical-race,” takes into account the vastly different historical experiences that racial groups have had in the United States, and in so doing accounts for the oppression and inequality suffered by African-Americans and other groups. Justice Thurgood Marshall’s opinion, in his 1978 dissent in Regents of the University of California v. Bakke, acknowledged that racial classifications are not neutral and that they “describe relations of oppression and unequal power.”
In the case of affirmative action, Gotanda points out, proponents of colorblindness “equate race with formal-race.” In a conservative perspective neither the historical experience of past discrimination against a group, nor the contemporary reality of institutional racism where discrimination continues in a different and more insidious fashion, is relevant. Thus, remedial programs like affirmative action are meaningless.
Affirmative Action on Trial
Affirmative action cases, particularly those pertaining to higher education, are the basis of CIR’s claim to fame. In the case of affirmative action in higher education, all roads lead to the Regents of University of California v. Bakke, 538 US 265 (1978). The Bakke decision, as it is known, remains controversial. Because the justices split in multiple ways to arrive at different decisions on various aspects of the case, it left Justice Powell’s views on diversity open to divergent interpretation by lower courts since then. This decision is at the root of CIR’s challenge to affirmative action programs, and to diversity as a compelling State interest in the four major cases it has fought on the issue. The cases are: Hopwood v. Texas, 78 F. 3d. 932 (5th Cir. 1996) against the University of Texas Law School; Gratz v. Bollinger, 135 F.Supp.2d 790 (E.D. Mich. 2001) against the University of Michigan; Grutter v. Bollinger, 137 F. Supp. 2d 821 (E.D. Mich. 2001) against the University of Michigan Law School; and Smith v. University of Washington Law School, 233 F.3d 1188 (9th Cir. 2000) against the University of Washington Law School.
Professor Margaret Burnham explains, in the sidebar on page 4, the decisions in the Bakke case and the four CIR cases, with reference to the issue of diversity in higher education as a compelling government interest. In Bakke, Justice Powell had ruled that diversity was a compelling interest, within the limits of “strict scrutiny.” Further, his opinion was that while the University of California/Davis plan did not meet “strict scrutiny,” affirmative action in higher education per se was not unconstitutional. The Hopwood decision in Texas rejected Justice Powell’s opinion, and argued that it did not reflect the majority view. The Michigan cases fell on either side of the diversity debate, with Gratz agreeing and Grutter disagreeing with Justice Powell. In May 2002, the full bench of the Sixth Circuit Court of Appeals overturned Grutter in a 5-4 ruling with the majority agreeing that diversity was a compelling interest. In the state of Washington, Smith completely agreed with Justice Powell. This divergence on diversity is bound for the U.S. Supreme Court, where the Court most likely will decide if diversity in higher education is a compelling State interest.
Theodore Cross, editor of the Journal of Blacks in Higher Education, notes that, CIR’s zeal in whipping up support for its anti-affirmative action crusade raises “serious questions of legal ethics.” In January 1999, CIR took out full-page advertisements in 14 major college and university student newspapers, claiming “Almost Every University in the Country Violates Federal Law.” The advertisements went beyond this claim and “urged students to sue their colleges for racial discrimination.” They also mentioned free handbooks on how students could begin a lawsuit, told them how to research their claims, how to look for lawyers who might help them, and urged them to file suits even without proof of discrimination.
Cross contends that, “the most reprehensible of the new extralegal tactics of the CIR was its publicized charges that private universities were violating federal law. The CIR created this false impression by planting its charges of university lawbreaking in student newspapers at some of the nation’s most prestigious private universities such as Columbia, . . . and the University of Chicago.” Yet, as Idris Diaz notes, “CIR officials also assert that they do not object to consideration of race by private institutions, such as Harvard.”
Curiously, while CIR’s ads implied that private universities might be engaged in discrimination, it filed an amicus curae brief in another significant case defending the right of a private organization to do exactly that. James Dale, an openly gay man who filed suit against the Boy Scouts for discrimination when the organization dismissed him as a scoutmaster, had won his case in the New Jersey Supreme Court. CIR joined the Boy Scouts’ appeal at the U.S. Supreme Court along with conservative and libertarian right-wing groups such as the Eagle Forum, the Independent Women’s Forum, the Cato Institute, the Texas Justice Foundation, the Southeastern Legal Foundation, and the Association of American Physicians & Surgeons. In June 2000, a 5-4 majority on the U.S. Supreme Court agreed that the Boy Scouts organization was within its 1st Amendment rights to exclude Dale.
In his opinion written for the dissent, Justice Stevens stated:
“It is plain as the light of day that neither one of these principles—‘morally straight’ and ‘clean’—says the slightest thing about homosexuality. Indeed, neither term in the Boy Scouts’ Law and Oath expresses any position whatsoever on sexual matters. . . . Surely there are instances in which an organization that truly aims to foster a belief at odds with the purposes of a State’s antidiscrimination laws will have a First Amendment right to association that precludes forced compliance with those laws. But that right is not a freedom to discriminate at will, nor is it a right to maintain an exclusionary membership policy simply out of fear of what the public reaction would be if the group’s membership were opened up. It is an implicit right designed to protect the enumerated rights of the First Amendment, not a license to act on any discriminatory impulse.”
Justice Stevens went on to recall the words of Justice Brandeis: “We must be ever on our guard, lest we erect our prejudices into legal principles.”
CIR’s challenge to affirmative action has gone beyond universities. It has also contested affirmative action in the area of federal government contracts on behalf of its corporate client in DynaLantic Corp v. U. S. Department of Defense, which is pending in the D.C. circuit, and in an amicus curae brief in the Adarand Constructors Inc., v. Mineta case which was dismissed by the U.S. Supreme Court last November. The Adarand issue first came before the U.S. Supreme Court in Adarand Constructors Inc., v. Pena in 1995, when a 5-4 majority ruled that affirmative action in federal contracting must meet “strict scrutiny.” The Court had then sent the case back to the lower courts to determine if the Department of Transportation’s highway program met those standards. The Tenth Circuit ruled that it did, following changes initiated by the Clinton Administration. The Mountain States Legal Foundation and its client Adarand Constructors Inc., appealed that decision to the Supreme Court, which dismissed the appeal.
“Show Me the Money!” Strategic Support for Conservative Causes
Fighting such high-profile cases in federal courts is expensive, even when the lawyers do it pro bono. The funds, however, have been pouring in. By its own account, “CIR's budget was a modest $220,000 during its first year of operation, mostly in grants from a handful of conservative foundations.” Grants and contributions rose from little less than $500,000 in 1992 to almost $900,000 in 1996. CIR’s 1998-1999 annual report showed income from grants and contributions in 1998 to be over $1.5 million; while in 1999 it also received a one-time bequest of $1.4 million in addition to contributions and grants of over $1.3 million. Some of the conservative foundations that have contributed to CIR are the Lynde and Harry Bradley Foundation, the Carthage Foundation, the Smith Richardson Foundation, the Randolph Foundation, the John M. Olin Foundation, the Adolph Coors Foundation, and the Scaife Family Foundation. In 1997 almost half of CIR’s budget was covered by the first five, with Olin alone accounting for $200,000. All of these foundations are major donors to a variety of right-wing causes and institutions.
CIR has also received funds from the racialist Pioneer Fund in New York that has funded “leading Anglo-American race scientists such as Linda Gottfredson, J. Philippe Rushton, and Arthur Jensen.” The Institute for Democracy Studies reports that Pioneer’s grantees have included “Florida State University psychology professor Glayde Whitney, who has sought to ‘prove’ that blacks are genetically inferior.” Journalist Courtney Leatherman observes that the $30,000 Pioneer gave to CIR is listed in CIR’s financial disclosure statement as a donation from the fund’s president, Harry F. Weyher. According to Leatherman, “That is the only gift from a foundation listed that way. Mr. Greve says the omission of the foundation’s name was an oversight, not an effort to hide anything.”
In the 1990s particularly, right-wing foundations targeted a broad range of institutions and groups that are involved in policy research, advocacy, and implementation in the areas of education, economics, foreign affairs, media, and the law. Commenting on the strategic funding by conservative foundations in a report for the National Center for Responsive Philanthropy, Sally Covington observes, “The foundations provided substantial support, much of it on an unrestricted basis, to build and sustain strong institutions . . . [with] the percentage of grants awarded as general operating support [being] the highest among nonprofit law firms, with 62 cents out of each dollar awarded to support their general operations.” Strategic funding also has meant that awards have been concentrated among a small number of rightist recipients and “heavily directed to national policy and advocacy institutions in recognition that the national policy framework greatly affects conditions, issues and decisions at the state, local and neighborhood level.” Additionally, funders “targeted grants across the institutional spectrum in recognition that a variety of institutions and reform strategies are required for broad-based social transformation and policy change.” And the changes across the board have been far-reaching, as they have in the legal arena.
Conclusion: “Death by a Thousand Cuts”
In 1995 CIR’s Michael Greve wrote: “I’m vastly more optimistic than I was even five years ago. The debate and the law have moved much, much faster than we had any reason to hope, and I’m fairly sanguine that the momentum will continue to go in our direction. It will be the death by a thousand cuts.” CIR’s goal, ultimately, is to effect policy change that would put societal attitudes on the “right” track towards a “colorblind” America. And it has chalked up an impressive record in the areas in which it has concentrated its efforts and resources. However, its successes in some high profile cases, including those on the issue of affirmative action, cannot be divorced from the larger social and political reality progressives confront in 2002. It is now commonplace to observe that the United States as a society has moved rightwards. What is debatable, though, is how much and why.
While the reasons for this rightward shift are far too complex to analyze fully in this article, it is clear that in part it is a reaction to the achievements of progressive socio-political movements including the Civil Rights Movement, the Women’s Movement, and other struggles for gender and sexuality rights, economic and racial justice, and the environment. Additionally, corporate-led globalization and the economic uncertainties that have come with it, and the cultural globalization of the United States through demographic change, have been factors in allowing right-wing ideas to gain popularity. For instance, various sectors of the Right have actively recruited support using nativist, jingoist, and anti-immigrant arguments. All of the above are particularly true vis-à-vis the resurgence of right-wing populism, a common thread in the various sectors of the political Right in the United States. Since September 11th, the United States has witnessed a resurrection of nativism and nationalism that both reflects and contributes to this move to the right.
The rightward march is also evident in the legal arena (See sidebar on page 9). The emergence and rapid growth of the Federalist Society for Law and Public Policy Studies, which has gained enormous influence in conservative administrations like the current Bush Administration, for whom it has handpicked many judicial candidates, is an important feature; especially now in light of reports that the Bush White House is eliminating the traditional consultative role played by the nonpartisan American Bar Association in the selection and nomination of judges for the federal judiciary. Ronald Reagan’s two terms as president, followed by former President George Bush, saw the large-scale appointment of conservative judges at all levels of the federal judiciary in the United States. President Clinton’s two terms were marked by his inability to appoint judges to many vacancies in the federal courts—in part because of his administration’s preoccupations in other areas, and in part because many of his appointments were blocked by the Republican-controlled Senate.
George W. Bush now has the opportunity to continue where Reagan left off, including possibly ensuring a comfortable conservative majority on the Supreme Court. Another factor in the move to the right is the enormous financial resources being granted by right-wing foundations and moneyed individuals to ensure that conservative ideas and policy prescriptions are implemented. Cass Sunstein, writing in the New York Times, notes that, “In the last 30 years, one glaring difference between Republicans and Democrats has been that Republicans, unlike Democrats, have been obsessed with the composition of the federal judiciary.” CIR is but one political instrument in the Right’s toolkit to make the most of an increasingly hospitable judiciary.
It is important to recognize, however, that the move to the right is not inevitable. Although the Right has mobilized resentment against government, liberalism, and all progressive movements, it can, and must, be countered. In challenging this right-wing resurgence, progressive and liberal groups and individuals need to simultaneously bridge the divides of class, gender, sexuality, age, and ability, along with the chasm of race. Further, if as progressives, and as a society, we are to overcome racial, gender, and other forms of social injustice, then we cannot ignore or cover up race, gender, sexuality and other identifiers that are the basis for oppression and injustice. Scholars Lani Guinier and Gerald Torres propound a “concept of political race [that] captures the association between those who are raced black—and thus often left out—and a democratic social movement aimed to bringing about constructive change within the larger community.” Comparing race to a miner’s canary that warns the miner of impending danger through its death, Guinier and Torres write that the canary’s death diagnoses the necessity for a more systemic critique. Their concept of political race they contend, however, goes beyond diagnosis in being “aspirational and activist,” and in attempting to “construct a new language to discuss race, in order to rebuild a progressive democratic movement led by the people of color and joined by others.”
If we are not to be snowed under by the dominant discourse of colorblindness, it is imperative that progressives understand the way race is appropriated and used by the Right to further its agenda. In this context, we must pay particular attention to the manipulation of the law, the institutions that administer laws, and the people and dynamics that make and define both. That includes groups like CIR. This means that the Progressive Movement must also support its legal sector with more financial resources, more advocacy organizations, and more committed lawyers, while working to ensure that the rightward tilt in the judiciary is reversed.
 See “Civil Rights” within the Mission section of CIR’s website. http://www.cir-usa.org/civil_rights_theme.html
 The author would like to thank Chip Berlet, Margaret Burnham, Pam Chamberlain, Jean Hardisty, and Faith Smith for comments and suggestions, and Betty Furdon for help with obtaining research materials.
 See the Mission section of CIR’s website. http://www.cir-usa.org/mission_new.html
 The Washington Legal Foundation is also a conservative public interest law firm that emphasizes the free market. Its advisory board includes (or has included) Ted Olson (George W. Bush’s solicitor-general, who was his lawyer in the Florida ballot case against Al Gore), Haley Barbour (former chair of the Republican National Committee), Former Governors Tommy Thompson (R-WI), George Allen (R-VA), and William Weld (R-MA), Dick Thornburgh (George Bush’s attorney-general), and Rep. Tom Campbell (R-CA). See Derk Arend Wilcox, The Right Guide: A Guide to Conservative, Free-Market, and Right-of-Center Organizations (Ann Arbor, MI: Economics America, 2000), pp. 343-344.
 See the section “A Brief History of CIR” on its website. http://www.cir-usa.org/history.html
 Terry Carter, “On A Roll(back),” American Bar Association Journal, vol. 84 (February 1998), pp. 54-58, 56.
 Ibid, p. 57, citing Elliot Mincberg, legal director, People for the American Way.
 W. John Moore, “The Influence Game: A Little Group Makes Big Law,” National Journal, vol. 29, no. 46 (November 15, 1997), p. 2323.
 David Segal, “Putting Affirmative Action on Trial; D.C. Public Interest Law Firm Scores Victories in War on Preferences,” Washington Post, February 20, 1998, p. A1.
 Idris M. Diaz, “Mischief Makers: The Men Behind All Those Anti-Affirmative Action Lawsuits,” Black Issues in Higher Education, vol. 14, no. 2 (December 25, 1997), pp. 14-19, 15.
 In this case, United States v. Morrison, the Supreme Court ruled in May 2000 that Congress had overstepped its authority with regard to the tort remedy in VAWA, whereby women could sue their attackers in federal courts under the Commerce Clause. The Commerce Clause gives Congress power to regulate inter-state commerce. The Court ruled that gender-based violence against women did not adversely affect inter-state commerce thereby disallowing Congress the use of the Commerce Clause to justify the tort remedy. Many states rights’ champions on the Right, who emphasize the Tenth Amendment, see the Commerce Clause as an intrusion on the sovereignty of the states, and as a means for the federal government to enact laws that violate states’ sovereignty.
 See the section “Cases” on its website. http://www.cir-usa.org/cases.html. CIR lost the Illinois State University case, while the Miami University case is pending. CIR also challenged the disbursement of $3 million by the University of Minnesota to female faculty members to resolve gender disparities in salary. The case, Maitland v. University of Minnesota, is pending.
 See Carter, “On A Roll(back),” op. cit., pp. 56-57.
 Robert Jensen’s article on White privilege first appeared in the Baltimore Sun on July 19, 1998. See http://www.utexas.edu/coc/journalism/SOURCE/faculty/facul/jensen's_article.html
 See Sharon Martinas, “Shinin’ the Lite on White Privilege: Defining the Problem, Why Can’t We Just Get It Together?” 1998. Emphases in the original. See http://www.prisonactivist.org/cws/sharon.html
 Jean V. Hardisty, “Affirming Racial Inequality: The Right’s Attack on Affirmative Action,” The Public Eye, vol. 13, no. 4 (Winter 1999), pp. 1-16, 4.
 Barbara Smith, “The Tip of the Iceberg,” Sinister Wisdom: A Journal for Lesbians, no. 52 (Spring/Summer 1994), pp. 54-56, 54. On colorblindness and the law see, Kimberlé Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas, eds., Critical Race Theory: The Key Writings That Formed the Movement (New York: The New Press, 1995). See especially, Part 4, the section on Critical Race Theory and Legal Doctrine, pp. 201-312.
 Chip Berlet, “Hard Times on the Hard Right: Why Progressives Must Remain Vigilant,” The Public Eye, vol. 16, no. 1 (Spring 2002), pp. 1-22, 17.
 Dalit, meaning broken or downtrodden, is the name chosen and preferred by the Dalit people in India who were formerly called “untouchable.”
 Cited in Upendra Baxi, “Law, Democracy and Human Rights,” in Smitu Kothari and Harsh Sethi, eds., Rethinking Human Rights: Challenges for Theory and Action (New Delhi: Lokayan, New York: New Horizons Press, 1989), pp. 101-117, 102. The concept and practice of one person, one vote, while certainly a foundational feature of political equality, does not amount to political equality. Particularly so in a society that is institutionally racist, sexist, and casteist, or that is skewed in terms of wealth and control over resources.
 Hardisty, “Affirming,” op. cit., p. 4.
 D’Souza claims that the “charge of institutional racism and the expectation of proportional representation arise directly out of cultural relativism.” See Dinesh D’Souza, The End of Racism: Principles for a Multiracial Society (New York: The Free Press, 1995), pp. 289-290.
 Hardisty, “Affirming,” op. cit., p. 4.
 Cited in Ibid. See Amy Ansell, New Right, New Racism (New York: New York University Press, 1997).
 See David Brudnoy, “It’s time to end the bi-lingual ed scam,” Boston Metro, March 26, 2002, p. 6. Interestingly, Brudnoy, who is also an openly gay radio talk show host, was recently invited to emcee an event announcing the Boston scout group’s newly created diversity awareness award, that recognizes scouts, scout leaders, and organizations that promote diversity on the basis of race, ethnicity, religion, and sexual orientation. See, Tony Giampetruzzi, “Boston Scout group sends strong message of gay-inclusiveness,” in newsweekly, vol. 11, issue 43, June 19, 2002, p. 37.
 Andrea Smith, “Devil’s in the Details,” Colorlines: Race Culture Action, vol. 5, no.1 (Spring 2002), pp. 4-6, 6.
 Hardisty, “Affirming,” op. cit., p. 4.
 Ibid., p. 5.
 Nathan Glazer, Affirmative Discrimination: Ethnic Inequality and Public Policy (New York: Basic Books, 1975). Glazer has since changed his position on some of these issues. See Nathan Glazer, We Are All Multiculturalists Now (Cambridge, MA: Harvard University Press, 1997).
 Ellen Messer-Davidow, “Manufacturing the Attack on Liberalized Higher Education,” Social Text, no. 36 (Fall 1993), pp. 43-80; “Who [Ac]Counts and How,” MMLA: The Journal of the Midwest Modern Language Association, vol. 27, no. 1 (Spring 1994), pp. 26-41.
 Jerome L. Himmelstein, To the Right: The Transformation of American Conservatism (Berkeley: University of California Press, 1990). Especially, pp. 55-60.
 Ibid., p. 88.
 Ibid., p. 89.
 Jean V. Hardisty, “Libertarianism and Civil Society: The Romance of Free Market Capitalism,” The Public Eye, vol. 12, no. 1 (Spring 1998), pp. 1-18, 5.
 “A Brief History,” op. cit.
 Hardisty draws a distinction within right-wing libertarianism between the paleolibertarians who subscribe to Old Right ideology and the rightist libertarians who are more moderate. See Hardisty, “Libertarianism and Civil Society,” op. cit., p. 6. There is also left-wing libertarianism, which informs the American Civil Liberties Union’s (ACLU) perspective and policies.
 Hardisty, “Libertarianism and Civil Society,” op. cit., p. 6.
 Upendra Baxi, “From Human Rights To The Right To Be Human: Some Heresies,” in Kothari and Sethi, eds., Rethinking Human Rights, op. cit., pp. 151-166, 159.
 Hardisty, “Libertarianism and Civil Society,” op. cit., p. 9.
 See Jyl J. Josephson, “Liberal Justice and the Political Economy of Children’s Well-being,” New Political Science, vol. 23, no. 3 (2001), pp. 389-406. Josephson uses Martha Nussbaum’s theory of basic capabilities to ground, what she terms, equal respect, 397-398.
 Nussbaum’s basic capabilities (first worked out together with Amartya Sen) that are essential for humans to function are a combination of inherent individual capacities and external conditions that enable the utilization of those capacities. See Martha Nussbaum, Women and Human Development: The Capabilities Approach (New York: Cambridge University Press, 2000).
 For instance a CIR press release states, “The lawsuit contends that such disparities were a consequence of racial preferences in the admissions process that violate the 14th Amendment's Equal Protection Clause and Title VI of the Civil Rights Act of 1964.” See “CIR begins second lawsuit against University of Michigan,” http://www.cir-usa.org/press_releases/grutter_v_bollinger_pr.html Title VI of the Civil Rights Act states that: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
 See http://www.constitutioncenter.org/sections/work/educlinks.asp
 See http://www.cir-usa.org/legal_docs/smith_v_washington_certpet.PDF
 Curt A. Levey, “Diversity on Trial,” National Review, June 11, 2001. See http://www.cir-usa.org/articles/levey_profiling_nro.html
 See Nicholas deB. Katzenbach and Burke Marshall, “Not Color Blind: Just Blind,” New York Times, February 22, 1998, reprinted in Faye J. Crosby and Cheryl VanDeVeer, eds., Sex, Race, & Merit: Debating Affirmative Action in Education and Employment (Ann Arbor: University of Michigan Press, 2000), pp. 48-55.
 See Matt McGann, “Late-Breaking: MIT Involved in Brief to Supreme Court Supporting Affirmative Action,” http://web.mit.edu/afs/athena.mit.edu/activity/o/observer/www/1-1/articles/mm3.html. One of the most ringing endorsements of diversity in higher education is a study by the former presidents of Princeton (William G. Bowen) and Harvard (Derek Bok) universities. See William G. Bowen and Derek Bok, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions (Princeton: Princeton University Press, 1998).
 See http://www.constitutioncenter.org/sections/work/educlinks.asp
 See Carl E. Brody, Jr., “A Historical Review of Affirmative Action and the Interpretation of Its Legislative Intent by the Supreme Court.” See http://www3.uakron.edu/lawrev/brody.html
 See Neil Gotanda, “A Critique of ‘Our Constitution is Color-Blind’,” in Kimberlé Crenshaw, et al., eds., Critical Race Theory, op. cit., pp. 257-275. Critical Race Theory emerged in the 1980s as a field of legal scholarship distinct from both liberal and conservative legal theory. It built on both the work of the Civil Rights Movement of the 1960s and Critical Legal Studies that initially radicalized legal theory in the 1970s. See “Introduction,” in Kimberlé Crenshaw, et al., eds., Critical Race Theory, op. cit., pp. xiii-xxxii.
 Gotanda, “A Critique,” op. cit., p. 258.
 Ibid., pp. 262-263.
 Ibid., p. 263.
 Ibid., p. 264.
 Ibid., pp. 263-264.
 Ibid., p. 264.
 See Theodore Cross, “African-American Opportunities in Higher Education: What are the Racial Goals of the Center for Individual Rights?” Journal of Blacks in Higher Education, no. 23 (Spring 1999), pp. 94-99, 95-96.
 Ibid. Emphasis in the original.
 Diaz, “Mischief Makers,” op. cit.
 See the amicus curae brief filed by CIR at http://www.lambdalegal.org/binary-data/LAMBDA_PDF/pdf/94.pdf. The Boy Scouts were claiming the right to association under the First Amendment to exclude Dale.
 See CIR’s press release on the ruling at http://www.cir-usa.org/press_releases/dale_v_boy_scouts_pr2.html
 See the dissent at http://supct.law.cornell.edu/supct/html/99-699.ZD.html
 See http://www.mediatransparency.org/court_watch.htm
 “A Brief History,” op. cit.
 CIR Annual Report 1995-1996 (Washington, DC: CIR, 1996) and CIR Annual Report 1996-1997 (Washington, DC: CIR, 1997).
 CIR Annual Report 1998-1999 (Washington, DC: CIR, 1999). In 2000, the gifts and contributions amounted to over a million dollars. CIR Annual Report 1999-2000 (Washington, DC: CIR, 2000).
 See Sally Covington, Moving a Public Policy Agenda: The Strategic Philanthropy of Conservative Foundations (Washington, DC: National Committee for Responsive Philanthropy, July 1997). Covington’s report lists CIR as having received over $1.2 million in 13 grants from these conservative foundations between 1992-94. See p. 29. See also the mediatransparency.org website for details on CIR funding sources. http://www.mediatransparency.org/search_results/info_on_any_recipient.asp?57. Michael Greve was also a program officer at the Smith Richardson Foundation. See, Peggy Walsh-Sarnecki, “The Men who would End Affirmative Action: U-M is next Target for Outspoken Crusaders,” Detroit Free Press, August 25, 1998, p. 1A.
 Diaz, “Mischief Makers,” op. cit., p. 18.
 Lee Cokorinos, Connie Montoya, et al., The Assault on Diversity: Behind the Challenges to Racial and Gender Remedies (New York: Institute for Democracy Studies, 2000), p. 14. For CIR coverage, see pp. 12-15. Assault on Diversity looks at both the political and the legal battle against diversity. Groups such as Ward Connerly’s American Civil Rights Institute and Linda Chavez’s Center for Equal Opportunity are in the political battle, while CIR is one of the main arms of the legal battle. On Pioneer funding see also Cross, “African-American Opportunities,” op. cit., pp. 97-99. Cross writes that CIR has received Pioneer grants on three occasions.
 Cokorinos, et al., op. cit., Assault on Diversity, p. 14.
 Courtney Leatherman, “Bashing Sacred Policies: A Public-Interest Law Firm Aims to Defend the Politically Incorrect,” The Chronicle of Higher Education, vol. 41, no. 13, November 23, 1994, pp. A18-19, 19.
 See Covington, Moving a Public Policy Agenda, op. cit., and also David Callahan, $1 Billion for Ideas: Conservative Think Tanks in the 1990s (Washington, DC: National Committee for Responsive Philanthropy, March 1999).
 Covington, Moving a Public Policy Agenda, op. cit., pp. 31-32.
 Ibid., p. 32. Emphasis in the original.
 Ibid., p. 33.
 Michael Greve, “Segregation, 90s Style, and How to Fight It,” Weekly Standard, December 25, 1995, p. 31. Cited in Cokorinos, et al., Assault on Diversity, op. cit., p. 13.
 See Doug Brugge, “Pulling Up the Ladder: The Anti-Immigrant Backlash,” Defending Immigrant Rights: An Activist Resource Kit (Somerville, MA: Political Research Associates, 2002), pp. 1-17. This is an updated version of the original article that appeared in The Public Eye, vol. 9, no. 2 (Summer 1995), pp. 1-10.
 See Chip Berlet and Matthew N. Lyons, Right-Wing Populism in America: Too Close For Comfort (New York: Guilford Press, 2000). See also, Berlet, “Hard Times on the Hard Right,” op. cit.
 See the Fall 2001 issue of The Public Eye, vol. 15, no. 3. This was a special issue after September 11, 2001, dealing with nationalism and nativism in the United States.
 The Federalist Society was founded in 1982 and is based in Washington, D.C. See Lee Cokorinos and Julie R. F. Gerchik, The Federalist Society and the Challenge to a Democratic Jurisprudence (New York: Institute for Democracy Studies, 2001). See also the mediatransparency.org website an article on the Federalist Society that first appeared in the March 2000 issue of the Washington Monthly, http://www.mediatransparency.org/Stories/feddies.htm; Neil Lewis reports that 17-20 of the 70 candidates interviewed until April 2001 were recommended directly by the Federalist Society’s headquarters. See Neil A. Lewis, “Bush to Reveal First Judicial Choices Soon,” New York Times, April 24, 2001.
 See the press release by Nan Aron, president of the Alliance for Justice, criticizing the Bush Administration for excluding the ABA.http://www.afj.org/jsp/news/abarelease.html
 See the Alliance for Justice’s Judicial Selection Project report on judicial nominations. http://www.afj.org/jsp/report2000/home.html
 Ibid. The report also notes that while Clinton appointed more non-White and female judges than all of his predecessors combined, his appointments did not necessarily restore the ideological balance in the judiciary as most of his nominees were moderate centrists.
 On some of George W. Bush’s earliest nominees who are neither moderate nor centrist see the People for the American Way website http://www.pfaw.org/issues/judiciary/reports/bush_judic/nominees.html
 Cass R. Sunstein, “Tilting the Scales Rightward,” New York Times, April 26, 2001, p. A23.
 Lani Guinier and Gerald Torres, The Miner’s Canary: Enlisting Race, Resisting Power, Transforming Democracy (Cambridge, MA: Harvard University Press, 2002), p. 12.
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