Welcome to the Clint Bolick Revolution
It is Sunday night on the north side of San Diego. The wine is California and the talk is tinged with grievance. Inside a law professor’s mission-style home, two dozen Prop. 209 volunteers, all white, swap stories of Asian and white friends shut out of state and university programs because they weren’t part of an “underrepresented” ethnic group. As the evening winds down, they settle into a cozy living room to hear from their honored guest, Washington lawyer Clint Bolick, a legal advisor to the sponsors of Prop. 209, which will ban state-sponsored racial and gender preferences if it survives a heated court test. * The 39-year-old Bolick, wine glass in hand, takes his place at the front of the room. He describes a court ruling temporarily blocking enforcement of the law, also known as the California Civil Rights Initiative, as “manipulation.” He adds he is confident that, on appeal, the “great U.S. judicial system” will uphold the initiative, which California voters approved last November. Then Bolick sweeps his arms across the room, telling the CCRI volunteers gathered before him: “This party is really about you. I never thought this day would come. It’s hard to realize the consequences of what you’ve accomplished . . . . Let me quote my favorite revolutionary, Tom Paine, who said, ‘We have the power to begin the world over again.”’
It is Monday night in downtown San Diego. The food is Russian, the talk is again tinged with grievance. At The Kabob House restaurant, five African American entrepreneurs swap stories about how a white-controlled state regulatory system has turned thousands of hair-braiders into outlaws. The law requires that they take 1,600 hours of classes, costing $5,000 to $7,000, and qualify for a cosmetology license--even though this training doesn’t teach African hair-braiding and emphasizes chemical use shunned by the braiders. (The braiders argue that cosmetology schools teach hairstylists to use chemical straighteners to “correct” black hair.) Unable to afford this fee to launch a business, braiders often hide their operations at home, facing stiff fines or closure if they open a public salon.
As caviar and blintzes, cups of borscht and plates of kabobs are piled onto the table, a voice rises above the din and proposes a toast. Clint Bolick speaks up to tell the group that the restaurant they are enjoying is owned by Russian immigrants who began by selling their kabobs as street vendors and have faced the same kinds of regulatory obstacles. Then he raises his glass to honor the entrepreneurs seated next to him--the next “heroes,” he says, in the battle for economic liberty. The next day, Jan. 28, the braiders seated at this table will become plaintiffs in a federal lawsuit against the California Board of Barbering and Cosmetology. And Bolick, a balding white guy who jokes that he knows more about African hair-braiding than anyone who needs it less, will serve as their lead attorney.
This is a civil rights story, but one of a different stripe, for Bolick draws his politics from the Far Right reaches of the political spectrum. As chief litigator for a Washington conservative public-interest law firm, the Institute for Justice, he has spent much of the last six years taking regulators to court on behalf of urban entrepreneurs, most of them struggling financially. Arguing that America’s inner cities would look a lot different if regulators would get off the backs of street vendors, unlicensed cabbies, hair salons and a host of other tiny businesses that enable people to stake out an honest living, the institute has gone to court in New York City, Washington, Denver, Houston and now San Diego. On April 28, a federal judge will hear the first round of arguments in the hair-braiders’ suit against California’s cosmetology board.
Most of Bolick’s clients are black. Yet most of his politics are scorned by traditional African American leaders. After all, this is the same Bolick whose legislative proposals inspired a federal version of CCRI in Congress, who supports stringent welfare reform, who sank President Clinton’s nomination of Lani Guinier as the nation’s chief civil rights enforcer by inspiring the tag “the quota queen,” and whose younger son considers as his godfather Supreme Court Justice Clarence Thomas, a nemesis of civil rights and feminist groups.
Bolick, a self-described libertarian who supports “individual initiative and opportunity” over “government-mandated solutions,” sees his legal efforts as a kind of put-your-money-where-your-mouth-is element too often missing on the Right. If programs such as racial preferences and welfare don’t ease racial disparities, he reasons, then conservatives need to offer something else that does. In Bolick’s mind, that answer comes from vigorous support of entrepreneurism and new educational opportunities in inner cities. He is a prominent defender of school vouchers in the Cleveland and Milwaukee programs, where he represents low-income parents using state dollars to send their children to private schools.
“The battle to curb racial preferences and promote economic liberty and school choice are all different sides of the same coin,” he says. “It’s all about curbing the perverse powers of the welfare state. The state should not have the power to classify people on the basis of race, or erect barriers to entrepreneurs, or consign kids to educational cesspools.” He also argues that “the racial-preference regime has hurt low-income people. By taking cosmetic action to ensure proportional representation in certain institutions, it makes us think we are solving racial disparities, when, in fact, they are growing larger.”
Bolick’s critics on the Left, however, see in his urban-guerrilla litigation a cynical attempt to dismantle government protections under the guise of helping the poor. Elliot Mincberg, general counsel to the liberal People for the American Way, says “Clint does a nice job of getting attention by doing things the press regards as counterintuitive.” Minc- berg says “economic liberty” should not be defined as a civil right alongside legal protections against “invidious discrimination” based on race, sex and religion.
Criticism of Bolick’s anti-government agenda extends to at least one of his clients--JoAnne Cornwell, chairwoman of the Africana Studies program at San Diego State University and a plaintiff in the San Diego hair-braiders case. Bolick’s agenda of “extreme capitalism requires an underclass,” she says, “and that underclass is going to look a lot like me.” When asked if she opposed Bolick’s cause celebre, CCRI, Cornwell says, “Of course. I opposed it as an educator. It makes it extremely difficult to outreach to underrepresented groups when you can’t call them what they are . . . . Being black is the reason they are underrepresented.”
Some critics say Bolick has stumbled onto--and, in their minds, is exploiting--a potential divide between middle-class ethnic minorities, who benefit from race-based affirmative action programs, and the poor, who are less likely apply to a University of California, send a resume to a Fortune 500 company or secure a construction contract from the county.
Typical of Bolick’s clients is Taalib-Din Uqdah, owner of a Washington hair-braiding salon and founder of the American Hairbraiders and Natural Haircare Assn. “If you tell me affirmative action is trying to right some wrong, it hasn’t helped me,” says Uqdah, a largely self-educated man who says he’s a “radical conservative.” “Affirmative action has weakened an entire race of people. It’s welfare for the educated. [Eliminating racial preferences] will force people to find creative ways to make a living.”
Bolick is part of a small but growing group of activists and thinkers on the Right who claim to represent the interests of America’s disadvantaged. More than two dozen Republicans in Congress have formed a new coalition called the Renewal Alliance to push conservative ideas to rebuild cities. Conservative activist David Kuo, who has collaborated with such high-profile figures as Ralph Reed and William J. Bennett, recently launched a group called The American Compass to help faith-based charities working with the poor. Longtime conservative donor and investor Foster Friess of Delaware is also funneling big bucks to faith-based charities, particularly those serving the homeless and drug addicts. Despite doubts about their sincerity, these conservatives appear to take to heart the late theorist Russell Kirk’s admonition: “Conservatism has its vice, and that vice is selfishness.” (The other half of that observation was: “Radicalism, too, has its vice, and that vice is envy.”)
“A lot of conservatives don’t have any dealing with low-income people--they are seen as clients of the welfare state,” says Michael Joyce, president of Milwaukee’s conservative Bradley Foundation and a donor to Bolick’s Institute for Justice. “I’d put Clint in the forefront of conservatives who meet with, strategize with, socialize with mostly low-income people. But it’s not out of some liberal guilt, that’s the key.”
Instead, Joyce contends, Bolick understands that low-income people, particularly inner-city residents, are more burdened by the welfare state than “the rest of us”: Welfare rules restrict how they spend their money, taxes hurt more, public school systems don’t offer decent educations and consumer-protection rules restrict grass-roots entrepreneurism.
Bolick used to joke that he was a “bleeding-heart conservative.” Now he prefers the oxymoron “big-government libertarian” as a way to demonstrate that he values pragmatism over ideological purity.
He began his journey as one of the nation’s earliest angry white males. The son of a welder with an eighth-grade education who died when Clint was 12, he contributed to the family’s meager finances with a paper route and work in the local grocery store in Hillside, N.J.
When he left home to attend college at Drew University in Madison, N.J., in the mid-'70s, affirmative action efforts were beginning to gain steam. “No sooner did I arrive in college than I heard that I and everyone else who was white and male were privileged, and that others should be given preferential treatment regardless of what their socioeconomic status was. Knowing how much I was working and sacrificing, and how much my parents had worked and sacrificed, it seemed patently unfair.”
Bolick’s sense of injury deepened when he attended UC Davis law school just as the high-profile “reverse discrimination” lawsuit brought by medical student Alan Bakke was unfolding. (The 1978 Supreme Court Bakke decision set the basic parameters of the affirmative action world: It barred quotas but allowed race to be used as a preferential “plus factor” in admissions.) Inspired by the potential of constitutional law to “change the world,” Bolick moved through conservative law groups and into the Reagan administration. At the U.S. Equal Employment Opportunity Commission, he fell under the spell of the chairman (and now Supreme Court Justice), Clarence Thomas, who convinced Bolick that addressing the plight of inner-city residents with no access to affirmative action programs should be higher in priority than fighting “reverse discrimination.”
Those conversations with Thomas launched Bolick’s career in a different direction. In 1991, Bolick and former Energy Department counsel William Mellor founded the Institute for Justice in an attempt to mimic public-interest legal groups on the Left. Funded primarily by conservative and libertarian foundations, the institute continued the kind of litigation Bolick had taken up two years before, when he served as counsel to Ego Brown, a Washington shoeshine-stand owner whose livelihood was threatened by a Jim Crow-era law banning sidewalk bootblacks. Like many such laws adopted after Reconstruction, the bootblack ban, originally designed to keep blacks from prospering, was still being enforced in the 1980s. Bolick took the law to court, and a federal judge ruled it unconstitutional.
The institute’s clients since have included Taalib-Din Uqdah, the Washington salon owner whose legal case prompted the District of Columbia’s City Council to exempt braiders from cosmetology regulations; Alfredo Santos, who operated a van service for the poor in Houston and successfully challenged that city’s anti-jitney law, and Leroy Jones and several other Denver cabdrivers cut out of the market by a World War II-era law virtually mandating a limit of three cab firms in the city. So-called economic liberty cases can be difficult to win, so Bolick says he also presses his cases in “the court of public opinion.” In the Jones case, for example, the cab law went by the wayside after meeting opposition in the Colorado General Assembly. In March, Bolick’s partner, William Mellor, filed suit against New York City on behalf of jitney drivers.
The Institute for Justice is also fighting the use of racial categories for adoptions, particularly of foster-care children. Two such clients, Scott and Lou Ann Mullen, a Texas mixed-race couple, had been prevented from adopting two black foster children they were raising. The Mullens received the go-ahead to adopt the boys after their lawsuit against the regulators was settled. Bolick, the divorced father of two boys, ages 8 and 13, both in Virginia public schools, says his greatest inspiration comes from representing low-income parents who--through state-financed vouchers--are now sending their children to private schools.
Critics of school choice worry that such programs will drain scarce resources from public schools. They are particularly nervous about the constitutional issues raised by state funding of religious schools included in voucher programs. “As a taxpayer, I don’t think spending tax dollars for religion is a good,” says Jeffrey Kassel, a Wisconsin attorney and part of the legal team challenging the Wisconsin program. “It’s a threat to religious liberty to get the government involved in religion.”
On his plane ride from Washington to San Diego this week in mid-January, Bolick puts aside his brief in the CCRI legal battle to work on his latest novel; writing yet-unpublished fiction is his favorite pastime. But, facing a fast-approaching court deadline, he spends his first day in San Diego holed up in a hotel room, writing his latest legal defense of the law. Meanwhile, I arrange a visit with Bolick’s lead client in his other legal battle--Cornwell vs. California Board of Barbering and Cosmetology.
At a modest home northeast of downtown San Diego, the front door swings open after a few short knocks and the petite figure of JoAnne Cornwell lunges into a hug. Raised in Detroit, where she and her two sisters once sang together as The Emeralds, Cornwell combines an actor’s stylishness with the cool, confident demeanor of an academic. She obtained a doctorate in French from UC Irvine, and her specialty is African literature written in French. In addition to chairing San Diego State’s Africana studies program, she teaches French.
Hair brought Cornwell and Bolick together; Cornwell’s locks flow in lush waves down past her shoulders. Over the past two years, she developed a system of locking hair, a process in which she loops together tiny chunks of hair, starting with the ends and moving toward the scalp. She trademarked the system under the name “Sisterlocks” and has big ambitions for it. She has already produced teaching videos and trained dozens of stylists around the country. She wants to open up a salon, but if she did, she’d have to get a cosmetology license or face fines and prosecution.
For Cornwell, the issue is more than paying thousands of dollars for a license that has nothing to do with her business. It is a matter of cultural and feminine identity. “African American women have a unique relationship with our hair,” she says. “Whatever we end up being, hair remains our central focus. We’re judged by whether our hair is straight or straight-looking. We have a lot of anxiety. The damage has been done and is rooted deeply in our cultural psyche.”
Hair-locking, or braiding, is an ancient art--and a natural alternative to chemicals that straighten hair, often leaving it severely damaged. Cornwell, whose mother and grandmother both owned hair salons, began experimenting on her own hair five years ago and developed her own technique. “It’s not just about business and money, she says. “It’s about our empowerment.” A favored catchword on both the Left and Right, it gives Bolick and Cornwell a common language. “I like the fact that his ultimate goal is to see people empowered,” Cornwell says of her new attorney.
But the trust, at least on Cornwell’s part, doesn’t extend much further than this lawsuit. She recalls a long history of outsiders using the issues central to the black community to make a political point.
A firm believer in government intervention to level the playing field, Cornwell not only opposes CCRI, she also expresses deep reservations about the private market that Bolick so readily celebrates. One has only to look back to slavery to see the impact of “the profit motive,” she notes. “If the government pulls out, who comes in?”
But what if government protections are in fact designed to protect the interests of those in power? That is what Cornwell argues about the California Board of Barbering and Cosmetology, whose policies, she says, prevent competition with established salons, expensive beauty schools and a profitable chemical industry. The board’s policies, which she and other braiders characterize as white-oriented, require training that emphasizes making the hair of blacks look more like the hair of whites through the use of potentially dangerous chemicals. (California law, the board argues, requires the training and regulation of any kind of hairstylists in the interest of consumer protection.)
This uneven impact of government power is where Bolick finds fertile ground for litigating against state and municipal regulators on behalf of ethnic entrepreneurs shut out of the system. His study of barriers to entrepreneurship in San Diego, part of a seven-city survey, concluded that others turned into “outlaws” by local regulations include Mexican immigrants selling products from pushcarts, home-based businesses and cheap but unlicensed jitneys that serve low-income areas.
But in his lawsuit against the state of California, Bolick also forwards Cornwell’s cultural argument, creating a merger between the identity politics of the Left and the anti-regulatory rhetoric of the Right.
When I meet with Bolick later that afternoon, he is not surprised to hear about Cornwell’s concern with his politics. In searching for potential pro bono clients to challenge California’s cosmetology laws, Bolick quickly settled on Cornwell but made it clear to her that he had actively supported CCRI.
In reality, Bolick thrives on alliances with liberals like Cornwell. In his mind, they prove his motives are sincere. During his campaign against Clinton nominee Lani Guinier, he was labeled a racist--a charge that still stings him deeply, even though the allegations came from his political opponents. In an April 1993 Wall Street Journal opinion piece headlined “Clinton’s Quota Queens,” Bolick attacked Guinier, who, instead of requiring minorities to build majority support for legislation or elections affecting their communities, favored a cumulative voting system that would guarantee equal outcomes. Bolick said that required “abandonment not only of the ‘one person, one vote’ principle but majority rule itself.” The “quota queen” tag caught on and helped sink her nomination.
Since then, Bolick seeks out alliances with the Left. One effort teamed his own lawyers with a handful of prominent liberal Harvard professors seeking an end to adoption policies nationwide that often prevented the placement of black foster children in white adoptive homes.
In our discussion this afternoon, Bolick focuses on what he considers the dangers of classifying people by race, even if it’s purportedly in their interests. He talks of black children trapped in foster care because of their skin color; in his 1993 book “Grass Roots Tyranny,” he cites a 1986 directive by California Superintendent of Public Instruction Bill Honig that prohibited the administration of IQ tests to black students, even if their parents requested it. (A federal court has since overturned that directive.)
Bolick says he is careful to distinguish between “affirmative action” and “racial classifications.” He opposes classifying people by race but says he supports affirmative action consisting of outreach efforts to underprivileged individuals based on their socioeconomic status, not race or sex.
In a confidential memo to CCRI sponsors last summer, Bolick argued that “we should not allow CCRI to be characterized as anti-affirmative action.” He supports the 1964 U.S. Civil Rights Act, which bars discrimination based on race and gender, and favors vigorous enforcement of nondiscrimination laws.
Bolick’s 1996 book, “The Affirmative Action Fraud: Can We Restore the American Civil Rights Vision?” was influential in building support for CCRI, according to the initiative’s sponsors. As Prop. 209 sponsors began drafting the language of the initiative, they contacted Bolick, who offered free legal counsel. Now Bolick is one of three Washington advisors to Ward Connerly, UC regent and a sponsor of Prop. 209, as he attempts to take the initiative national. With those credentials, Bolick is treated as a legal sage by the CCRI volunteers who gather at the party in his honor. But his opening comments focus not on CCRI, but on his other reason for being in San Diego this week in January--the hair-braiders and, in particular, JoAnne Cornwell, whom he calls a “third-generation entrepreneur.”
“It shows that there are a few [liberals] who are a bit more thoughtful,” he says. “We need to look at what we can do, apart from racial preferences, to heal the racial divisions.”
The next morning, Clint Bolick and his colleague, Donna Matias, set out for a meeting with their other San Diego clients in the hair-braiding suit--Ali Rasheed, his wife, Assiyah, and their business partner, Marguerite Sylva, all owners of a salon called The Braiderie. These grass-roots sessions, rather than inside-the-beltway strategizing, are what give Bolick a sense of purpose. He has an almost instinctual ability to fit in with his clients. This morning he wears a tweed jacket and no tie, in sharp contrast to the two blue suits who arrive from the law firm of Pillsbury, Madison & Sutro to serve as local counsel. Inside The Braiderie, Bolick opens the conversation but then recedes into the background, letting his clients do most of the talking.
Rasheed, 55, a longtime San Diego entrepreneur who moved here from Norfolk, Va., is far more in sync with Bolick’s politics than Cornwell. Although he voted against CCRI, saying he was concerned about preserving limited government protections for blacks, he doesn’t consider affirmative action very effective. “Everybody who is honest knows the playing field is not level,” he says. “It’s not going to be, and it can never be. Affirmative action has helped some blacks and women, but the masses who need it have never been helped.”
That said, however, he sounds more like Bolick when he repeatedly states this prescription for life: “Why keep knocking at someone else’s house? Go build your own.” The respect people give depends on achievement. If African Americans and Mexican Americans are economically viable and improve our own communities, we’ll be respected and recognized.”
Rasheed’s wife, Assiyah, and their partner, Sylva, were born in Senegal. Rasheed stresses that though his wife is an immigrant, she’s never been on welfare. An elegant presence, her hair wrapped in a scarf, Assiyah describes coming to San Diego at age 29 after hearing that “this is the greatest country.” Some women employed in their braiding shop might otherwise have collected welfare checks, she says proudly.
Sylva, recognized as a master braider, learned the art in Senegal and came to the United States when she was 20. She started a business and brought the Rasheeds in as partners nearly three years ago. Sylva earned her cosmetology license, but the braiders they employ have not. In October, the state cited the salon and issued a $200 fine. Then Bolick stepped in.
As we sit on barber chairs in the simply styled salon, the three express their outrage over local rules that keep bootstrap entrepreneurs from operating. They frequently bring up Mexican immigrants trying to make a living selling products--from pillows to oranges and shaved ice--on the San Diego streets. “Then, if they get on welfare” because of rules against street vending, people say, ‘You don’t want to work,’ ” complains Assiyah Rasheed. Her husband, who is steeped in the history of San Diego’s small-business life, describes one African American’s efforts to obtain a cab license so he could serve black neighborhoods the regulars shunned.
Rasheed says the current regulatory structure was “never made to benefit me . . . . I’d rather have the government leave me alone.”
Bolick is primarily a constitutional lawyer, but he sees lost political opportunity in urban entrepreneurism. He calls the Republican Party “the worst possible vehicle” to bridge the racial divide, pointing to a recent poll showing a slim plurality of blacks--33%--calling themselves conservative, but only 8% saying they vote Republican. He is right about the political potential for conservatives, but the Right’s rote-like portrayal of government as the evil empire makes it hard to broaden that base.
While less enamored of government intervention than the urban-oriented conservative, Jack Kemp, Bolick does support tax credits to encourage investment and doesn’t oppose federally backed small-business loans based on socioeconomic status as opposed to race. He says he can envision a “limited” role for government in rebuilding urban areas, “especially where it has contributed to the problem of inner-city chaos.”
Bolick picks his battles against the regulatory welfare state with care, peering into its recesses to locate the rusty hinges. His zoom lens focuses on the kind of regulatory oversteps and missteps that feed a public perception of bureaucratic zealotry.
For now, Bolick’s best arguments may be drawn from the lives of his clients, each of whom he hopes will turn these seemingly minor legal cases into the next Brown vs. Board of Education on behalf of economic liberty. He wants the San Diego case to go to trial so that the hair-braiders have a chance to tell their own story.
Taalib-Din Uqdah, the Washington salon owner who runs the hair-braiders’ trade group, says that when he brought his case to Bolick, the lawyer gave definition to his decade-long struggle with regulators. “He told me it was a violation of the Constitution,” Uqdah recalls, “and I thought, ‘Here, finally, I don’t have to pay an attorney to convince him I’m right.’ ”
Ask Uqdah if Bolick’s scenario suffers from a heavy dollop of wishful thinking, and the entrepreneur responds like this: “Write down these names--Marriott and Hewlett-Packard. Marriott got started as a root beer stand. Hewlett-Packard started in an East Palo Alto garage. Today, you couldn’t sell root beer by the side of the road, and you’d have to get government approval to start a business in the garage.”
The point, Uqdah forcefully concludes, is that unfettered entrepreneurism has a long history in America of building lives and economies.