U-M's best defense?

The legal defense of minority students at the University of Michigan rests largely in the hands of a law firm with connections to a nonprofit group that aims to destroy affirmative action, not only at U-M but nationwide.

The Center for Individual Rights, a conservative organization helping to represent the white plaintiffs in two class action lawsuits against U-M, received $13,000 in the past three years from Wilmer, Cutler and Pickering, the university's lead counsel in the lawsuits. (CIR was discussed in the MT's June report on affirmative action. See "The bucks behind the battle: How a wealthy clique set the agenda.")

CIR also lists the Washington-based firm as having helped it with pro bono work.

U-M spokeswoman Julie Peterson says the university is pleased to be represented in the affirmative action litigation by Wilmer, Cutler and Pickering and the Detroit firm Butzel Long.

"Both firms have extensive litigation experience and particular expertise in civil rights and affirmative action litigation," Peterson says in a written statement. "Before they were engaged to represent the university, Wilmer, Cutler and Pickering informed the university that the firm had made small donations to and had represented CIR on a few First Amendment matters in the past. We do not believe this history poses any problem for their representation of the university."

She also calls U-M "fully committed to defending this litigation."

And a lawyer with Wilmer, Cutler and Pickering pointed out that the firm makes donations to a number of groups, including the ACLU and the NAACP Legal Defense Fund.

Still, CIR's presence in the case troubles a number of those close to the issue of affirmative action.

"I don't see it as a conflict of interest from a legal point of view, but from a practical or political or even a moral point of view, it's clearly a conflict of interest," says Godfrey Dillard, a Detroit-based lawyer for the NAACP Legal Defense Fund. Dillard is helping represent a coalition trying to intervene in the case of the undergraduate College of Literature, Science and Arts on behalf of a group of black and Latino high school students. "Certainly, people of color want lawyers to be behind them 100 percent in this kind of matter."

The role of Wilmer, Cutler and Pickering is one of several aspects of the university's defense being questioned by the NAACP Legal Defense Fund and others in two coalitions that have sought to intervene in the suits. Federal judges have barred the coalitions from intervening, and those rulings are being appealed to the 6th U.S. Circuit Court.

The would-be intervenors are asking a fundamental question: Are university administrators prepared to successfully defend affirmative action or just their own interests? Dillard says a proven way to justify affirmative action in higher education is to show that a university has discriminated against minorities, and that affirmative action is a necessary remedy. But he says U-M officials are unlikely to use that argument.

"They don't want to fall on their own sword and say they have discriminated," he says.

Without raising the issue of discrimination, Dillard says, the university is left arguing that that the goal of diversity justifies using race as one of many factors in college admissions. That argument, established by the U.S. Supreme Court's 1978 ruling in the case of Bakke vs. University of California Regents, was rejected by the U.S. 5th Circuit Court in its 1996 ruling in the case of Hopwood vs. the University of Texas Law School.

The Hopwood ruling applies only to the 5th Circuit, which includes Texas, Louisiana and Mississippi. But Hopwood and similar cases such as the ones at U-M are expected to drive back to the U.S. Supreme Court the question of whether the educational value of campus diversity justifies affirmative action.

Court documents say the plaintiffs oppose intervention by the minority coalitions. The university, which does not oppose the interventions, says the coalitions have "substantial interest" in the litigation but allowing them to intervene "could significantly complicate discovery and possibly other aspects of these cases."

U-M officials and their lead counsel declined to discuss details of their legal strategy with the Metro Times.

"They're saying we're going to raise issues that they won't raise," says Miranda Massie, who represents a group trying to intervene in the law school case -- mostly minorities who either attend or wish to attend U-M law school.

"The university most likely doesn't want to see its basic admissions criteria challenged, but exposing the way those criteria reflect and even intensify racism and bias is absolutely necessary to the defense of affirmation action," Massie says. "The students intend to present that evidence and make those arguments."

Would-be intervenors say those arguments include showing that standardized tests, which help determine who gets into the university, put African Americans, women and other minorities at a disadvantage. Also, they claim that the university discriminates against minorities by giving the children of alumni a better chance of getting into U-M than those whose parents didn't attend U-M. Because of past discrimination, they argue, most U- M alumni are white.

Asked about the law firm's donations, Terence Pell, spokesperson for the Center for Individual Rights, says Wilmer, Cutler and Pickering gave $3,000 to CIR in 1995 and $5,000 each year in 1996 and 1997. Pell calls CIR's overall relationship with the Washington firm "friendly."

Other CIR funders have included the Pioneer Fund, which funds research attempting to portray African Americans as genetically inferior to whites.

Raising further questions about Wilmer, Cutler and Pickering is their representation of the Educational Testing Service, which produces standardized tests including the Scholastic Aptitude Test, which U-M uses in its undergraduate admissions.

Rob Schaeffer, public education director for the National Center for Fair and Open Testing Inc. in Cambridge, Massachusetts, says the connection between Wilmer, Cutler and Pickering and ETS makes it unlikely that the university's defense will involve questioning the fairness of using standardized tests in admissions.

Schaeffer, whose organization is aiding potential intervenors in the U-M cases, learned from the Metro Times that the university's lead counsel was also listed as a contributor in literature put out by CIR.

"That's fascinating," he says. "They should be disqualified."

Wilmer, Cutler and Pickering attorney John Payton, who is African American, is assigned to the U-M lawsuits. He would not answer most questions from the Metro Times, and declined to comment on whether the firm has made donations to CIR.

Wayne State University law professor Robert Sedler says it is not unusual for large law firms such as Wilmer, Cutler and Pickering to donate money to both conservative and liberal causes.

Sedler, a longtime advocate of using racial preferences in college admissions, says that "The university's interest is clearly a different interest than that of the minority students."

Meanwhile, civil rights groups point out striking similarities that exist among the Hopwood case and the U-M lawsuits, notably the presence of CIR in all three of the cases and the fact that minority groups seeking to intervene have been shut out.

"People of color, who are the ones who would be most affected, are not even being allowed into these suits," Dillard says. "You've got white folks suing white folks over black folks."

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