Conservative Public Interest Litigation

Terence J. Pell

The idea that lawsuits can move a public agenda is not new. Most often cited in this regard is the several-decades-long legal campaign that began in the 1940’s to put an end to Jim Crow racial discrimination. Nullifying the laws that propped up southern segregation was an essential element of that legal effort, but it was only one element. An equally important objective was to build a case for ending the attitudes and cultural practices that those laws reinforced. The ongoing public drama of a series of high profile cases was a vehicle for a broad cultural shift, of which the legal disputes were only one part.

Because of the central role of litigation in the success of the civil rights movement, high profile litigation has been used to effect broad social change of other kinds, too. In the decades following the civil rights effort, the left harnessed the courts to such causes as prison reform, women’s rights, increased environmental regulation, expanded product liability, and the jihad against smoking, to mention a few.

In the late 1980s, however, conservatives started using litigation as a tool to advance their own, very different public agendas. Organizations such as the Pacific Legal Foundation, the Institute for Justice, Mountain States Legal Foundation, and the Center for Individual Rights (CIR) were formed to limit government through principled court actions. They sought a range of goals: school choice, an end to racial preferences, landowners’ rights, a greater – and truly constitutional – scope for religious expression in public life, and others.

In this paper, I would like to assess briefly the strategic value of high profile public interest litigation for conservatives in light of almost 15 years of experience.

One of the most important features of high profile litigation from a conservative perspective is that it injects the stories of particular individuals into public policy debates. By doing that, high profile lawsuits focus public attention on the true costs of government programs with laudable sounding purposes. Such lawsuits allow an individual plaintiff to demonstrate the unintended consequences of government programs that attempt to ameliorate abstract social problems in the aggregate.

A good example of how conservative public interest litigation can dramatically alter the contours of broad public policy debates occurred in 1997, when the CIR filed suit against the University of Michigan (UM) challenging its racially preferential admissions system. Although many had criticized what then was termed “affirmative action” for years, the debate as a whole had been confined to anodyne abstractions and political slogans.

The public understanding of what exactly was meant by the term “affirmative action” rested on various idealized accounts, for example, that race could be “one of many factors” that admissions officials looked at in order to enhance the educational diversity of a university. Understood this way, college admissions policies did not appear to involve a problematic degree of racial preference, nor any great unfairness. As far as the public was concerned, universities did little more than give a slight “plus” to minority applicants in a handful of cases involving equally qualified applicants.

Enter Jennifer Gratz, Barbara Grutter and Patrick Hamacher, the CIR’s clients in its cases against the UM. For the first time, the public was introduced to the heretofore-nameless individuals whose applications had been rejected solely to benefit other applicants of a preferred racial group.

And, as it turned out, Jennifer, Barbara and Patrick each possessed characteristics that seemed to warrant special consideration. Jennifer was the daughter of a police officer, the first member of her family to attend college. Barbara had run her own business for over 20 years. Patrick came from a working class family outside Detroit.

As the public soon learned, these personal characteristics counted for almost nothing in the university’s admissions calculation. Among the group of applicants with Jennifer’s grades and test scores, nearly every minority applicant was accepted while none of the non-minority applicants was accepted. Race was not one of many personal characteristics weighed against other personal characteristics. Race trumped everything.

The experience of these three individuals was not unique. Many applicants had been denied admission solely because of their race. As a result, it was not difficult to find plaintiffs. Indeed, it would be more accurate to say CIR’s clients found us. Several years earlier, Carl Cohen, a highly regarded professor of philosophy at the UM, had forced the admissions office to disgorge key documents that made clear how blatant and unequivocal the racial preferences were. Several state legislators convened a press conference to discuss the problem. They urged individuals who felt that they had been unfairly denied admission to the UM on the basis of race to contact their legislative offices. Several weeks later, we received the names of about 60 individuals who were interested in doing something about the problem.

Building and moving a public agenda around a high profile lawsuit requires a plaintiff who is willing and able to become the center of an ongoing public drama. From the initial filing of the suit through the final decision, the public learns to see the issue through the eyes of that individual.

The best plaintiff for this type of litigation is someone who is not particularly political, does not have a great deal of public exposure, and is not motivated by ideological commitments. Such plaintiffs focus public attention on what happened to them rather than their political point of view. This kind of plaintiff helps reorder the terms of public debate by forcing the public to see an issue from a new and different perspective. Changing public discussion becomes immeasurably more difficult if the public can too easily pigeonhole the primary public actor as just another proponent of a preconceived point of view.

For the same reason, we devote little effort to coaching our clients in media relations. Only 19 years old at the time, Jennifer Gratz learned to tell her story simply by telling it, starting with the New York Times. Our instructions were simple. We asked her to explain what happened in her own words—nothing more and nothing less. Though she was understandably hesitant at first, she had nothing to hide and she spoke about what happened to her straightforwardly and with conviction.

The story that appeared in the New York Times generated nationwide interest. After it appeared, the phone rang nonstop for the next 4 months. Hundreds of reporters wanted to write a new story about so-called “affirmative action,” this time from the point of view of a particular individual who had lived through some of its unintended consequences. With Jennifer as their centerpiece, reporters could write about a large, abstract issue from the point of view of a particular individual. It made for compelling newspaper articles that directly engaged the public.

For similar reasons, high profile litigation built around a plaintiff’s story can be crucial in producing a fundamental shift in public opinion. The legal proceeding itself becomes a long public drama that generates interest and focuses public attention. Each stage in the lawsuit is another opportunity to directly educate the public in a vivid way about the harms posed to individuals by expansive government efforts to engineer social outcomes.

The fundamental shift in opinion that occurred over the last decade regarding racial preferences demonstrates how effective this strategy can be. At the time we filed our suits in Michigan, opinion polls suggested that no more than 25 to 30% of the citizens of Michigan thought there was a problem with the UM’s race-based admission policies. About 25% thought the policies made sense and the remaining 50% were undecided.

After 7 years of litigation, public opinion had hardened against racial preferences. By the time the Michigan cases reached the Supreme Court, opinion polls uniformly showed that 40 to 60% of the public now thought race should not be a factor at all in college admissions or employment. A Washington Post poll revealed not only that 92% of white respondents rejected the use of race, but also that 84% of African American respondents rejected it.

The long-term strategic value of solidifying public opinion against racial preferences became clear in November 2006, when the citizens of Michigan voted to amend the state Constitution to forbid state agencies from taking race into account in state programs. Michigan’s “Prop. 2” passed by 58 to 42%, mirroring almost exactly where public sentiment had rested 4 years earlier. And this was in the face of a comprehensive and very well funded campaign to defeat the measure, carried on by every major civic, political, legal, and educational institution in the state.

While conservatives have learned to use high profile litigation to push an agenda favoring individual rights over expansive government programs, we also have learned that there are limits to this approach. Perhaps foremost among them is that our opponents know how to manipulate our lawsuits to counter our agenda. Defendants the size of the UM have a great deal of money at their disposal and know how to exploit the publicity generated by our litigation for their own purposes.

So while we were busy using the Michigan lawsuits to tell our story, the University used the same lawsuits to tell a story of its own. Precisely because we positioned the litigation to challenge portions of past Supreme Court precedents (notably Justice Powell’s lone opinion in Bakke v. Regents of the University of California), University officials were in a position to argue that our lawsuit was a reckless effort to derail the hiring and recruiting policies of most major educational institutions, Fortune 500 Corporations, and even the military. Given such broad reliance on, and institutional support for, Powell’s opinion, university officials contended that it would be risky for the Court to overturn that opinion.

University officials relentlessly used every opportunity during 7 years of litigation to develop this narrative. Their target was not the public – which never accepted it – but certain Supreme Court justices. The defining moment of their effort occurred when they managed to get several hundred parties to file amicus or “friend of the court” briefs with the Supreme Court. Each of these briefs argued that a decision prohibiting the UM from engineering racial diversity would cause institutional havoc throughout the country.

A more fundamental problem is that while high profile litigation is effective in mobilizing public opinion, it is less effective in supporting a political movement. So long as an issue is before the courts, there is little incentive for political leaders, parties or other forms of representative politics to organize themselves around that issue. Like everyone else, they can – and do – wait for the court to render an opinion. In the meantime, it is altogether too easy to dodge a controversial issue by claiming it “must be resolved by the courts.”

The political paralysis that can be induced by many years of contentious litigation became apparent last fall in Michigan. Though public opinion strongly favored passage of Prop. 2, there was no organization or institution in Michigan that campaigned for its passage. Instead, it took Ward Connerly and Jennifer Gratz – both out-of-state residents – to organize and fight for the amendment on their own, largely without in-state funds or support. The apparent lack of a political constituency for the amendment reflects the fact that high profile litigation discourages the formation of such a constituency.

In sum, high profile litigation is an invaluable means to move a public agenda in directions favorable to conservative policy objectives. It must be recognized, however, that this approach is vulnerable to counter-efforts by large institutions determined to use such litigation to further their own agendas, and that even when it is successful, it can suspend the public’s political will. The answer is to seek ever newer ways to recharge the debate, to regard it as a battle of inches rather than yards, both in courts often dominated by an anti-conservative culture, and in the minds of voters and citizens.

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