The Institute For Justice

No. 1

2/8/00

A Briefing Paper prepared by
RightWatch

A Project of A Job is a Right Campaign

PO Box 06053, Milwaukee, WI 53206
Phone/Fax: 414.374.1034; Email: ajrc@execpc.com; Web: www.execpc.com/~ajrc

(c) 2000, by Phil Wilayto

The Institute for Justice

1717 Pennsylvania Ave., NW, Suite 200
Washington, D.C. 20006
Tel (202) 955-1300 Fax (202) 955-1329
http://www.ij.org

[Quotes:]

"Litigation groups such as the Landmark Legal Foundation and Clint Bolick’s Institute for Justice have eagerly sought out potential court challenges in lower-income urban commu-nities and loudly claim the mantle of supporters of education for the disadvantaged. In the past, Clint Bolick’s Institute for Justice was better known for his vehement animosity towards virtually every proposed civil rights bill. He even opposed those bills support-ed by Presidents Nixon and Bush. For example, he branded the 1991 Civil Rights Act as a ‘quota’ bill, even after it was supported by President Bush and 90 percent of the Congress. Bolick is now one of the leaders of anti-affirmative action litigation work defending California’s Proposition 209 in court."

-- People for the American Way

"So give a cheer and a wink for Clint Bolick and Chip Mellor, legal gunslingers with a taste for entrepreneurs. We also hope that Bolick and Mellor have founded a growth industry as economic advocates."

-- Barron’s National Business & Financial Weekly

The Institute’s attorneys are "the new civil rights activists."

-- The Wall Street Journal

"[Clint Bolick is] the maestro of the political right on issues of race... increasingly setting the tone and defining the terms of the national debate."

-- The New York Times

"... Bolick has embarked on a crusade to defeat executive branch nominees including President Clinton’s candidates for the head of the Civil Rights Division in the Justice Department. From Lani Guinier, for whom he coined the phrase, ‘quota queen’ to Deval Patrick, the former head of the Civil Rights Division in the Justice Department, characterized by Bolick as a 'stealth Guinier,' almost every name floated has been labeled as a quota supporter by Mr. Bolick whether their positions warrant such a description or not. "Bolick also called Deval Patrick’s work with the NAACP Legal Defense Fund 'radical' and 'outside the mainstream of civil rights consensus.' Patrick has worked as a litigator with NAACP Legal Defense Fund, and has litigated civil rights cases concerning voting rights, criminal justice and housing discrimination."

-- "The Religious Right's Record on Issues of Concern to African Americans and the Poor," People for the American Way

"...It is quite clear to me that the Institute for Justice has something in mind other than helping all children get a good education. In his pursuit of vouchers, Mr. Bolick seems eager to gut some of the most fundamental civil rights laws of this land -- in particular, laws that have done so much to help dis-abled children and young women get the best education possible. I am stunned that anyone would willingly boast that they 'argued strongly against those regulations.'"

-- Statement by U.S. Secretary of Education Richard W. Riley, Oct. 10, 1997

Introduction:

The right-wing foundations have both bankrolled and directed a far-reaching movement, the goal of which is the privatization of most government services, the deregulation of industry, the dismantling of government-funded social welfare programs, and the rollback of progressive gains won by the labor, civil rights and women's movements since the days of the Great Depression. Describing their target as the "Regulatory Welfare State," these foundations reject the ideas that there should be any restrictions on the pursuit of private profit, or that people are "entitled" to anything from the government other than the services of the police, courts, prisons and military.

One organization that is playing an increasingly important role in this movement is the Institute for Justice.

History:

The Institute for Justice was founded as a public interest law firm and advocacy group in 1991 by William H. Mellor, former president of the Pacific Research Institute for Public Policy, and Clint Bolick, former director of the Landmark Center for Civil Rights. (See "Who’s Who", below.)

The Institute "has had an extraordinarily active history in the years since, filing its own lawsuits against government regulations, writing amicus briefs... , sponsoring law student conferences, hosting training seminars for policy activists, forming a Human Action Network of seminar alumni, appearing on ABC’s public affairs program "20-20," and defending school choice." [1]

Funding:

The initial funding for the Institute came from the Koch family foundations, which also fund the libertarian Cato Institute and Citizens for a Sound Economy. The Koch foundations are based on the family fortunes of David and Charles Koch, who own virtually all of Koch Industries, an oil, natural gas, and land management firm that is the second largest privately owned company in the U.S. [2, 3]

The group’s budget increased to over $1 million dollars just eleven months after its founding. [1] In addition, the Institute receives generous donations from the Bradley [4] and Olin [5] foundations.

Issues:

In pursuit of its goal of a radical laissez-faire capitalism, the Institute has initiated a number of lawsuits aimed at ending government regulation of business. While the lawsuits generally involve small businesses, often in communities of color, the goal is to set a legal precedent for the deregulation of big business in general. Utilizing both litigation and public advocacy, the Institute has also played a critical role in the groundbreaking school voucher programs in Milwaukee and Cleveland. While these programs are promoted as ways to increase the educational opportunities for low-income students, they have gone a long ways towards promoting the privatization of government services. (See "Education 'Reform'", below.)

This privatization often involves lower standards for providers, as well as a non-union environment. The real "opportunities" developed are for private, profit-making companies, with a concurrent reduction in quality of service for the public and reduced wages, benefits, and protection for the service worker. There is also a reduction in the membership and power of the public sector unions, which tend to have a higher percentage of women and people of color. Through seminars, training sessions, and internships, the group also helps develop the next generation of conservative attorney-activists.

Areas of Litigation:

Institute lawsuits initiated on behalf of low-income litigants have included:

Who’s Who in the Institute:

William H. Mellor, President and General Counsel Mellor served as Deputy General Counsel for Legislation and Regulations in the Department of Energy during the Reagan Administration, a period that saw the steady erosion of government restrictions on Big Energy. From 1986 to 1991, he was President of the Pacific Research Institute for Public Policy, a right-wing think tank located in San Francisco that challenges environmental regulations, and was former Governor Pete Wilson’s favored source of information regarding privatization and water rights. [2] [From 1989 through 1998, the PRI received 8 grants totaling $337,500 from the Bradley Foundation. [6] ]

Clint Bolick, Vice President and Director of Litigation. Clint Bolick worked as an assistant at the Equal Employment Opportunity Commission when U.S. Supreme Court Justice Clarence Thomas was EEOC chairman. While working for the Landmark Legal Foundation, Bolick led the defense for the first Wisconsin school voucher program. [Between 1988 and 1992, the Kansas City, MO-based Landmark Legal Foundation received 10 grants from the Bradley Foundation totaling $592,700. [6]

When Wisconsin expanded vouchers to include religious schools -- the first state in the country to do so -- Bolick defended the plan in court. While it was the State of Wisconsin that was officially defending the program, it was the Bradley Foundation that provided funding for the attorneys, who besides Bolick included the now notorious independent counsel Kenneth Starr. [2] Starr, who made his living defending big auto and tobacco companies from consumer litigation, had also previously done work for Bradley.

Until Bolick began presenting himself as a defender of low-income African American schoolchildren, he had been most closely associated with attacks on affirmative action. He is the author of "The Affirmative Action Fraud: Can We Restore the American Civil Rights Vision?" published by the Cato Institute. [2] It was Bolick who drafted a bill that would end all affirmative action programs on the federal level. [2] And he had high praise for the landmark Hopwood vs. Texas decision, calling it "clearly another nail in the coffin of racial preferences." [2] [See "Affirmative Action", below.]

Bolick, who is white, has a particular interest in the issue of race. In fact, The New York Times described him as "the maestro of the political right on issues of race... increasingly setting the tone and defining the terms of the national debate."

He achieved some national notoriety from his pivotal role in the right-wing attack on Lani Guinier, President Clinton’s nominee to head the Justice Department’s Civil Rights Division. Guinier, a former lawyer for the NAACP Legal Defense Fund, had written on the issue of proportional representation (defining an electoral district by race and not solely by geography), arguing it was a reasonable means of ensuring that state legislatures and judges’ benches were not completely white.

Bolick wrote an opinion piece for The Wall Street Journal attacking Guinier as "Clinton’s Quota Queen". This obvious attempt to conjure up the racist stereotype of a "welfare queen" set the tone for the opposition. Bolick also teamed up with the Bradley-funded Free Congress Foundation to orchestrate anti-Guinier attacks. Clinton withdrew the nomination, and today proportional representation has suffered severe judicial setbacks.

Bolick’s attacks are aimed at a wide range of targets. In testimony before the Committee on the Judiciary of the U.S. Congress, Subcommittee on the Constitution, July 17, 1998, Bolick criticized attempts by the Civil Rights Division of the U.S. Justice Department to challenge employment discrimination in police and fire departments, to ensure bi-lingual education for Indian and Spanish-speaking students, as well as proportional representation.

Other Institute staff members include Dick Komer, Senior Litigation Attorney (formerly worked at the federal Equal Employment Opportunity Commission as a special assistant to the chairman, Clarence Thomas.) Also: Senior Attorneys Dana Berliner and Scott G. Bullock; Staff Attorneys Deborah Simpson, Miranda Perry, and Matthew Berry; John E. Kramer, Vice President for Communications; and John Keppler, Fundraising.

Purpose Behind the Institute’s Lawsuits:

The Institute for Justice takes on cases involving people trying to operate small businesses, defend their homes from a local government’s use of its power of "eminent domain," or end government restrictions on other individual pursuits. Often the lawsuits are filed on behalf of members of the African American community. The Institute argues that government regulations make it difficult for individuals of limited means to start businesses or defend their property, and that these regulations should be eliminated. Further, they argue that many of these regulations have their origins in efforts to exclude the Black community and others from participating in the general economy.

Of course, if they are successful in their litigation, the regulations would then be eliminated for all businesses, large and small. If the Institute took on such cases for whose interests they are working. By taking up the cause of small entrepreneurs in the Black community, they are able to portray themselves as champions of the disenfranchised, even as civil rights activists.

One reason the Institute has been able to make some inroads in the Black community is that part of their argument is absolutely correct: many of the laws and regulations governing both business and labor, as well as other areas of social and economic life in the U.S., are rooted in racist attempts to limit the participation of the African American and other communities of color.

A Case in Point: The Construction Industry

In the U.S., the construction unions are notorious for being overwhelmingly white and male, despite vigorous efforts by people of color and women to enter them.

Construction sites across the country have seen repeated demonstrations by civil rights groups demanding the hiring of Blacks and Latinos, as well as women. One solution to the problem of under representation of workers of color and businesses owned by people of color in the construction industry would be a vigorous policy of affirmative action, promoted and enforced by the unions in cooperation with the excluded communities. And some unions have in fact been in the forefront of the defense of affirmative action. Even some building trade unions have supported demands for affirmative action both in hiring and the awarding of contracts. [7]

But affirmative action has itself been a major target of the right-wing, including the Institute for Justice. Instead, the Institute presents only two alternatives: continuing existing laws and regulations, many of which tend to perpetuate historic racial and gender exclusion, or eliminating present regulations entirely. Instead of seeking to end discrimination in hiring or in the awarding of contracts, the Institute for Justice has initiated a lawsuit to have the Davis-Bacon Act declared unconstitutional. Under Davis-Bacon, a construction company bidding on a federally funded building project must agree to pay workers the "prevailing wage" for such work in that area. In urban areas, this usually means the union wage. The Institute argues that paying union wages might be prohibitive for a small company, particularly one that uses the same workers to perform different kinds of work. (For example, a general laborer who also fills in as a carpenter might have to be paid at the higher carpenter wage.)

Furthermore, Davis-Bacon was passed at a time when few construction unions admitted Black workers as members. The Institute argues that the Act itself was passed in order to help companies that hired only unionized whites to exclude from the bidding process companies that hired non-union Black workers. But instead of using this as a solid argument for the expansion of affirmative action, the Institute calls for the overturn of the Act.

If Davis-Bacon is overturned, small contractors would then be able to offer a lower bid, based on paying lower wages. The contractor might then get the bid, and its workers might get the jobs, but the jobs would pay less than they would have under Davis-Bacon.

Furthermore, the door would be opened to large, non-union companies to underbid both union and small, non-union firms. Companies would set off on a "race to the bottom" of the wage scale. The real beneficiaries would be the large non-union firms -- which happen to be owned by white men.

If the trade unions would support affirmative action in apprenticeship programs, hiring, and job assignment, there would be increased employment opportunities for workers of color and women. If they would support "set-aside" contracts for "minority" or women-owned businesses, there would be increased opportunities for these businesses. Supporting such programs would not only open up opportunities for the historically excluded, but would help lay the basis for unified struggle to achieve even more gains for working people of all races and nationalities. In the building trades, this might include fighting for a massive, national, public works construction program, along the lines of the Works Public Administration of the Roosevelt era. But there would be scant support for such a program among people of color if it were understood that the contracts, jobs and benefits would be overwhelmingly going to those outside their communities.

As long as the choice is maintenance of the status quo -- with all its racism and sexism -- or the elimination of government regulations altogether, groups like the Institute for Justice will be able to hypocritically represent themselves as friends of the communities of color, despite the fact that their ultimate goal is a society in which all workers would receive lower wages and fewer benefits for their labor -- especially workers of color.

Education "Reform"

The Institute has played a prominent role defending the school voucher programs in Milwaukee and Cleveland, cities that have been in the forefront of the voucher movement.

It was Institute vice president and co-founder Clint Bolick who, while working for the Landmark Legal Foundation, led the legal defense for the first Wisconsin school voucher program and later defended that same program when it was expanded to include religious schools. The Institute also reportedly paid for buses to bring Milwaukee schoolchildren to the state capitol in Madison for pro-voucher rallies.

In Ohio, the Institute has played a similar role in defending the Cleveland voucher program against court challenges. For example, a court injunction issued in December of 1999 halting the program was promptly appealed by the Institute, which vowed to take the issue "to the Sixth Circuit Court of Appeals, and if necessary, to the U.S. Supreme Court."

In both cities, voucher proponents have tried to present the movement as a civil rights issue, a way for children from low-income, inner city families to exercise the same choices in schooling as do their better-off counterparts in the suburbs. Voucher opponents, on the other hand, charge the program is a Trojan Horse for the privatization of the public school system, promoted by private companies interested in making profits. They also point out that every dollar spent on vouchers is money taken out of the public school budget, so while the programs offer some students a chance to attend a school with better resources, the vast majority are left to attend public schools with reduced operating budgets. They also object to the blurring of the Constitutional separation of church and state.

Certainly, public schools in the inner city face formidable problems. Schools are paid for by property taxes, so schools in poor neighborhoods are almost always underfunded. This is certainly true in the hyper-segregated city of Milwaukee, where annual household incomes in some inner city neighborhoods average less than $10,000. Low incomes mean low home ownership, or property with a low market value. As a result, these neighborhoods do not have the tax base to support well-funded schools. Ohio, meanwhile, has some of the most physically dilapidated public school districts in the country, while, before the voucher movement, it was already devoting more tax dollars to private education than any other state.

Vouchers, which take money out of the public school system, are no solution to this problem of finances, and in fact, exacerbate it. But they do offer a huge opportunity for private profit.

The situation in Cleveland is fairly straightforward. The voucher program there was instituted as a result of state legislation introduced by State Representative Michael Fox, an active proponent of privatization from the 59th District, just north of Cincinnati. Fox’s chief financial contributor was a well-heeled tax lawyer and real estate developer from Akron named David Brennan.

By the time Fox’s legislation had blossomed into Cleveland’s voucher program, Brennan had set up a private, for-profit company to manage the voucher schools. He is now working to promote the program’s expansion into other Ohio cities, with obvious ambitions to be a national player in the voucher business. In Milwaukee, the success of the right in building community support for vouchers has more to do with the city’s history of segregation and racism -- along with massive funding by the Bradley Foundation, which uses the city as a kind of social laboratory for its right wing social experiments.

As in many inner city school districts, Milwaukee’s public schools are relatively old and in need of major capitol improvements. An attempt by former African American Milwaukee school superintendent Howard Fuller in 1993 to raise money for school improvements through a bond referendum was defeated in a lopsided vote along racial lines.

In addition, the city’s public student population is 75% children of color, while 75% of the teachers are white. Until recently, the major legislative goal of the city’s teachers’ union was the repeal of the city’s residency requirement for public employees, which would allow teachers to move to the suburbs, while continuing to work in the city. In addition, the union’s leadership supported the refusal of some white teachers to take courses in Black history and culture, opposed efforts by the Latino community to rename a high school in their community in honor of Latino labor leader Cesar Chavez, and opposed superintendent Fuller’s attempts to employ "super-seniority" to assign Black teachers to overwhelmingly Black schools.

With this history as background (a history often neglected by those opposing vouchers), it’s not surprising that many Black and Latino parents in the city welcomed the chance to send their children to schools outside the public school system.

One obvious solution would be for voucher opponents to strongly support the right of communities of color to have meaningful input into the education of their own children. Another would be greater funding of public schools -- using statewide, general operating funds, as opposed to local property taxes. [8] Instead, the only choices presented by the Institute have been school vouchers or the status quo.

Meanwhile, private for-profit companies like Brennan’s, the Edison Project, and others are lining up at the feeding trough of the privatization of public schools.

Affirmative Action:

The Institute’s web site plays down the group’s opposition to affirmative action, but Clint Bolick’s own record tells the real story. (See "Who’s Who in the Institute," above.) His enthusiastic support of the Hopwood vs. Texas court decision is particularly instructive, since that case goes a long ways in explaining just how dangerous these attacks on affirmative action really are.

The 1996 Hopwood decision grew out of a lawsuit in which four white students charged they were denied admission to the University of Texas law school due to the school’s affirmative action program. All four plaintiffs were represented by the Center for Individual Rights [9].

As a result of this lawsuit, the U.S. Court of Appeals for the Fifth Circuit ruled that race and ethnicity cannot be used as a factor in law school admissions, even to correct racial imbalance. The decision covered not only Texas but Louisiana and Mississippi as well, and has reverberated throughout the academic community.

According to the liberal advocacy group People for the American Way, "In the wake of the Hopwood ruling, the same federal judicial circuit refused to block the enactment of new admissions standards that mandate equal scores for African Americans and whites, ending a policy originally enacted to adjust for the impact on test scores of different income and educational backgrounds. The policy could cut African American enrollment in Mississippi’s three historically black colleges by 50 percent. Says a former president of Clark College and advisor to the plaintiffs, 'Hopwood is the closing of the doors to the elite universities and graduate and professional schools at the top... This [subsequent] case is about closing the door for the mass of blacks at the bottom.'" [2] Robert Berdahl, president of the University of Texas at Austin, said the ruling could cause the "resegregation of higher education." Hopwood is sure to result in fewer Blacks and Latinos becoming lawyers, which means Black and Latino defendants or litigants will have fewer attorneys from their own communities to turn to in times of legal difficulties.

But law schools produce more than private lawyers. Reducing the number of Black and Latino admissions to law schools will ultimately result in fewer Black and Latino public defenders and judges. Furthermore, law schools are a traditional pipeline for candidates for the state legislatures and Congress. For example, half the present members of Congress came out of law schools. So overturning affirmative action in the country’s law schools will ultimately affect the number of Black, Latino and other elected officials of color. This must be seen alongside other developments, such as attacks on proportional representation and the increasing disenfranchisement of Black male voters due to their disproportionate rates of incarceration. And it’s not only communities of color that will feel the effects of this rolling back of electoral gains.

Since Black and Latino elected officials have tended to vote in favor of legislation that benefits working class people in general (increasing the minimum wage, favoring social over military spending, etc.), this development will have deep repercussions throughout the population as a whole.

In Conclusion:

100 years ago, the great African American educator and activist W.E.B. Du Bois predicted that the defining question of the 20th century would be the color line. There seems no reason to believe those words won’t apply equally well to the 21st century. From the time the first Europeans brought the first Africans to lands stolen from the Native Americans, race has been the great contradiction in U.S. history, and the right-wing has seized on it as the Achilles heel of the "regulatory welfare state".

Activist groups like the Institute for Justice and the reactionary foundations that fund them have succeeded to a great extent in defining the public debate over issues of social policy as a choice between a racist status quo and a collection of "reform" schemes designed to open the doors to widespread privatization and deregulation. As a result, organizations and individuals with histories of opposing every effort of the Black and Latino communities to win basic civil rights have been able to project themselves as defenders and advocates of these same communities. If they succeed in winning their ultimate goal of a society with no restrictions at all on the corporations, all those who do not control those corporations will be vulnerable to the same kind of exploitation and oppression that existed until relatively recently in this country’s history.

Unless we want to live through those awful times again, we have to squarely face the problems and deficiencies of our society, and unite in a new movement for the advancement of all, with particular attention to those who have been historically most excluded and exploited.

Footnotes:

[1] "The Strategic Philanthropy of Conservative Foundations", National Committee for Responsive Philanthropy

[2] "Buying a Movement", People for the American Way

[3] The Kochs operate three family foundations: the Charles G. Koch, David H. Koch and Claude R. Lambe Charitable Foundations. "My overall concept," says David Koch, "is to minimize the role of government and to maximize the role of private economy and to maximize personal freedoms." (From "Buying a Movement".)

[4] The Lynde and Harry Bradley Foundation of Milwaukee is the country’s largest and most influential right-wing foundation. With half a billion dollars in assets and an extensive network in the fields of economics, politics, academia, and the news media, it has worked to redefine the public debate over key policy issues such as welfare reform, school vouchers, privatization, and affirmative action. In pursuit of its goals, Bradley has provided essential funding for conservative think tanks, publications, authors, public interest law firms, and many college and university fellowships. Bradley helped fund the organizations responsible for the overturn of affirmative action programs in Texas and California, and provided $1 million for the writing of the book "The Bell Curve", which attempted to "prove" the genetic inferiority of African Americans. Bradley has also played key roles in the development of welfare reform and the school voucher movement in Wisconsin. (See "The Feeding Trough: The Bradley Foundation, ‘The Bell Curve’ and The Real Story Behind W-2, Wisconsin's National Model for Welfare Reform", A Job is a Right Campaign.)

[5] The John M. Olin Foundation contributes large amounts on a regular basis to conservative national think tanks, including the American Enterprise Institute, the Heritage Foundation, the Manhattan Institute for Public Policy Research, and the Hoover Institution of War, Revolution and Peace. A major Olin focus is funding university programs, linking universities to Republican legislators, right-wing think tanks, as well as conservative publications, such as Commentary and The Public Interest. Other recipients of Olin money include the Federalist Society for Law and Public Policy, Phyllis Schlafly’s Eagle Forum, Paul Weyrich’s Free Congress Foundation, and author Dinesh D'Souza, an Olin Research Fellow at the American Enterprise Institute. D’Souza’s book "The End of Racism" sought to legitimize racism as a reasonable and justified reaction to the African American community. (From "The Feeding Trough" and "Buying a Movement".)

[6] From the Bradley Foundation annual reports.

[7] A recent example of this was the stand taken by the Milwaukee building trades council demanding set-aside contracts and affirmative action in hiring on a major city project. Over 5,000 union members, the majority of them white, took part in a union demonstration promoting these demands.

[8] Most educators agree that class size is key to effective education. A recent article in the Milwaukee Journal Sentinel reported on the results of the third annual official evaluation of Wisconsin’s statewide Student Achievement Guarantee in Education program, or SAGE. The program, concentrated in Milwaukee but also extended to other areas of the state with high percentages of poverty, establishes a student-teacher ratio of 15 to 1, either with one teacher for 15 students or 2 teachers for 30. The evaluation reported that class size can be a significant factor in student achievement. Specifically, the report found that SAGE was helping Black students "catch up" to their white classmates. The $60 million SAGE program, covering more than 400 schools, provides an additional $2,000 per student to help pay the increased costs of smaller classes. (Milwaukee Journal Sentinel, Jan. 30, 2000.)

[9] The Center for Individual Rights is a right-wing public interest law firm that between 1989 and 1994 received $450,000 from Bradley, and other large amounts from Olin, Smith Richardson and Carthage, a Scaife family foundation. The 1994 contributions by Bradley, Olin and Smith Richardson covered approximately 48% of the center’s expenses. (From "Buying a Movement.")