March 8, 1999
Students across the country are gearing up to defend
affirmative action on a national day of protest on February 24.
Not to be outdone, the right, which has had success turning the
tide on affirmative action in courts and ballot booths, is mounting
a campus counteroffensive. In January the Center for Individual
Rights (CIR) launched a national campaign urging students to sue
their colleges for racial discrimination in admissions. The effort's
National Press Club kickoff featured former Education Secretary
William Bennett and none other than Nat Hentoff, a columnist with
a liberal reputation. Hentoff's trip to Washington was paid for
by the organizers from CIR, one of the hottest law groups of the
The group placed advertisements in fifteen campus
newspapers including papers at Columbia, the University
of Chicago, Dartmouth, Duke, Virginia, Rutgers, James Madison,
the University of Pennsylvania and the University of North Carolina.
The full-page ads advised students to download or send for a free
handbook on how to tell whether their college is breaking the
law. "Guilty by Admission," the ads declare. "Nearly Every Elite
College in America Violates the Law. Does Yours?" The handbook
tells students how to use freedom of information requests, how
to acquire data from their university to compile complaints and
then how to find a lawyer to bring a suit. This campaign represents
the latest anti-affirmative action strategy on the right: targeting
private universities that receive public money.
Nat Hentoff has written regularly of his opposition
to affirmative action, arguing that policies promoting racial
and gender diversity do nothing for the majority of the disadvantaged.
His favorable stories on CIR's clients make him a popular figure
in the organization's libertarian circles. His colleagues at the
January kickoff event, however, have pretty unsavory histories
when it comes to civil rights. Bennett's record goes back at least
to 1979, when he wrote, with Terry Eastland (publisher of The
American Spectator), Counting by Race, an early book
condemning affirmative action. At Ronald Reagan's National Endowment
for the Humanities, Bennett made a show of refusing to implement
minority hiring policies required by the EEOC. When he served
as Education Secretary, civil libertarians denounced his call
for broad mandatory AIDS testing and school locker searches. At
Bennett's side at the CIR event was Terrence Pell, who worked
as Bennett's chief of staff at the Office of National Drug Control
Policy. Today he's senior counsel at CIR.
CIR won its greatest victory so far representing
Cheryl Hopwood in the precedent-setting case that led to a decision
ending affirmative action at the University of Texas. The court
went on the record not just barring the university from using
racial quotas in admissions but forbidding the school to consider
race at all--leaving the institution open to legal prosecution
for almost any diversity effort, including training or recruitment
conducted in what could be construed in a race-conscious way.
Other CIR clients include the sponsors of California's
anti-affirmative action Proposition 209 and Katuria Smith, a rejected
student who sued the University of Washington Law School claiming
discrimination. CIR is representing plaintiffs in a similar suit
against the University of Michigan and, for good measure, Jessie
Thompkins, an African-American student protesting diversity scholarships
for whites at overwhelmingly black Alabama State University.
Killing affirmative action is just part of CIR's
agenda. According to its 1997-98 annual report, the outfit's long-term
objective is "the re-invigoration of meaningful constitutional
constraints on government." The language of individual liberties
is presumably what makes CIR attractive to a libertarian like
Hentoff. CIR argues that the First Amendment prohibits the state
from applying antidiscrimination law to private groups, and Hentoff
isn't the only liberal to support that view. In 1995 when CIR
filed an amicus brief on behalf of the organizers of Boston's
St. Patrick's Day Parade, who had excluded an organization of
Irish-American lesbians and gays, the Supreme Court agreed.
Given the range of CIR's activities, however,
it's hard to escape the conclusion that civil liberties are incidental
to the group's larger purpose--protecting the interests of segregationists.
In fact, CIR's principles (articulated on its Web site) specifically
include the defense of segregated groups: "CIR advocates a limited
application of civil rights laws that would preserve the right
of private citizens to deal or not to deal with other private
citizens without government scrutiny." In other words, the government
has no right to use race in decision-making but people have every
right to do just that. This the group calls "color-blindness."
CIR has close links to racist libertarians of
the far right. The organization's federal tax returns reveal that
on three occasions in the early nineties CIR received funding
from the Pioneer Fund, which supports "research asserting the
genetic superiority of whites," according to The Independent
of London. Pioneer was founded in the thirties by a millionaire
who advocated sending blacks back to Africa. The foundation's
charter set forth its mission as "racial betterment" and aid for
people "deemed to be descended predominantly from white persons
who settled in the original 13 states prior to the adoption of
Recent Pioneer Fund grant recipients include
race scientists Arthur Jensen and Roger Pearson. Famous for his
attack on Head Start, Jensen argued in the Harvard Educational
Review that black children test at an IQ of 85 and urged "eugenic
foresight" as the only solution. Pearson, director of the Institute
for the Study of Man and publisher of Mankind Quarterly
(described by The Independent as having links to former
Nazi geneticists), has written, "If a nation with a more advanced,
more specialized, or in any way superior set of genes mingles
with, instead of exterminating, an inferior tribe, then it commits
In New York, CIR helped Pioneer Fund grantee
Michael Levin in his dispute with the City College. Levin, you
may recall, is the philosophy professor at the CUNY Graduate School
who argued that blacks are less intelligent and less law-abiding
than other races, and who sympathized with advocates of separate
subway cars for violence-inclined black men.
Pioneer money aside, CIR's donors are the usual
band of right-wing funders: the Bradley Foundation, Carthage,
Olin, Smith-Richardson, Sarah Scaife. The same people are bankrolling
the campaign against affirmative action by supporting right-wing
think tanks and conservative pundits across the country. With
their campus campaign, the CIR and its allies hope, no doubt,
to get more universities and colleges into expensive legal trouble.
It will also serve their interests if conservative students begin
to break up the pro-affirmative action consensus that remains
strong on campuses nationwide.
To put further stress on educators, CIR intends
to mobilize college funders with ads in The Chronicle of Higher
Education and Philanthropy magazine. "We think the
trustees have an interest in getting involved," Pell said at the
press conference. "To avoid personal liability."
Did Hentoff know whom he was sitting next to
in Washington? Or where the money came from that paid his way?
Reached for comment in New York City, Hentoff said that he was
unaware of the Pioneer Fund but that CIR's backers were irrelevant.
"I don't care about background," said Hentoff, "so long as what
they're doing at the moment is all right with me.
"Affirmative Racism." The Nation. 8 Mar 1999. http://www.thenation.com/doc/19990308/flanders
Laura Flanders is researching the
opponents of affirmative action for a report to be published by
the Center for Democracy Studies in New York City and Americans
for a Fair Chance.