Checking a box for race on an application has become as common as providing an email address or a phone number. Edward Blum wants it to stop.
And he thinks he’s got the court case that can begin to do it.
Mr. Blum is president of Students for Fair Admissions, the group that will appear before the Supreme Court this year in two major cases challenging the way race is factored into selecting students at Harvard University and at the University of North Carolina at Chapel Hill. He hopes the justices will issue a ruling that will reach far beyond the ivy walls of academia.
“This case may end the use of race in college admissions, but hopefully also create a road map for ending these ever-present racial classification boxes that are used in other areas of our lives such as employment and contracting,” he said in an interview with The Washington Times. “These race boxes are the pathways to discrimination.”
It’s an audacious goal, particularly while race is becoming even more entrenched as the defining classification for much of American society in the wake of George Floyd’s death in 2020 in the custody of Minneapolis police officers and the ensuing debate over the centrality of discrimination in American society and history.
The justices will step into that conversation on Oct. 31 when they hear Mr. Blum’s cases, which are among the most anticipated of the upcoming term.
Mr. Blum says the schools’ interest in enrolling more Black and Hispanic students has led to discrimination against Asian and Asian American students, who would comprise a higher percentage of admissions if the schools made decisions only on objective measures such as grades and test scores.
The schools counter that diversity is an important part of a well-rounded education and they should be allowed to consider race as one of multiple factors in admissions.
The universities say they are on firm footing given the Supreme Court’s precedents, including a 2003 case, Grutter v. Bollinger, in which the justices said in a 5-4 decision that race could be considered as long as it is “narrowly tailored.”
Justice Sandra Day O’Connor, who wrote the key opinion in that case, put an informal time limit on how long she thought the practice should last. She acknowledged that affirmative action programs clashed with the ideal of a colorblind, merit-based society.
“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” she wrote.
Mr. Blum is bringing his challenge six years before that deadline, but he told The Washington Times that it’s past time to fix a wrongly decided case.
“Students for Fair Admissions has argued that the Grutter opinion was wrong the day it was decided, which includes the 25-year cutoff point for racial classifications and preferences. No amount of time should have been given to any university to treat applicants differently because of their skin color or ethnic heritage,” Mr. Blum said.
Persistent
This isn’t Mr. Blum’s first attempt to get the high court to rewrite the way the federal government treats race.
In 2013, he went toe-to-toe with the Obama administration and won a ruling scaling back rules implemented under the Voting Rights Act of 1965. The decision, Shelby County v. Holder, upended the decades-old system of labeling states as so racist historically that they needed approval from the Justice Department for any changes to voting standards and systems.
Without that ruling, states such as Georgia and Arizona would have had a much tougher time tightening some of their voting procedures after the 2020 elections.
Three years before he took the voting rights case to the high court, Mr. Blum was instrumental in bringing another affirmative action case to the justices, the 2010 Fisher case, in which the high court largely upheld the University of Texas-Austin’s affirmative action policies in a reaffirmation of the principles of the Grutter ruling.
The plaintiff in that case, high school student Abigail Fisher, was White and said she was denied admission to the Texas flagship university because of racial preferences.
Mr. Blum figured he might get a different outcome if he could show that the policies were harming another racial or ethnic minority, so he created three websites looking for plaintiffs of Asian heritage and found them. The legal challenges claim Harvard discriminated against Asian American students with admissions policies that favor other races, while the North Carolina lawsuit says the school’s race-conscious admissions standards violate the landmark Civil Rights Act of 1964.
The approach instantly transformed the case from a narrative of “Whites versus minorities” to a more nuanced look at the actual winners and losers in racial preference programs such as the ones at Harvard.
Critics on the left say Mr. Blum is being disingenuous with his challenge and increasing animosity between racial groups as a way to boost his own agenda.
In a 2018 profile, the American Civil Liberties Union called the challenge a “cynical attempt to use members of the Asian-American community” and that Mr. Blum “seeks to pit people of color against one another.”
“If Blum gets his wish, statistical projections show that white applicants will be the primary beneficiaries,” the ACLU said.
In the case now before the justices, the ACLU has filed a brief siding with the schools. The brief says the courts should defer to the universities’ judgments on education matters and the way to build the best student population.
“Racial diversity is essential to their intellectual and pedagogical missions,” the ACLU argued.
Harvard didn’t respond to a request for comment for this article.
UNC, which unlike Harvard is a publicly funded school, responded by pointing to Chancellor Kevin M. Guskiewicz’s comment this summer to a campus news site, The Well, where he defended the university’s approach.
“At Carolina, we have long been recognized for making an affordable, high-quality education broadly accessible to the people of North Carolina and beyond,” he said. “Carolina is passionately public, and we’re proud to be one of the few flagship universities to practice need-blind admissions and provide low-debt, full-need student aid. Our approach to admissions serves the university’s mission and reflects our core values. Every student earns their place at Carolina.”
In both the Harvard and UNC cases, lower courts have sided with the schools.
The Biden administration has weighed in on the side of Harvard and UNC. The Justice Department is urging the high court to maintain the legal precedents allowing race-based affirmative action policies.
“The United States has a vital interest in ensuring that our nation’s institutions of higher education — including the military’s service academies — produce graduates who come from all segments of society and who are prepared to succeed and lead in an increasingly diverse nation,” the federal government wrote in its brief in the case.
• Stephen Dinan contributed to this report.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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