Meet the man trying to end affirmative action

Getting even one case before the United States Supreme Court is challenging. You need sound arguments, good plaintiffs, significant resources – and at least four justices willing to hear the case.

Getting eight cases before the high court is another level of potency, especially for someone who, like Edward Blum, isn’t a trained lawyer.

Raised in a “very liberal” home in Houston, the Republican candidate-turned-stockbroker-turned-conservative policy activist has spent the past two decades quietly reshaping American civil rights law. Shelby County v. Holder, the 2013 decision voiding a key section of the Voting Rights Act? That was him.

But his more recent efforts have focused on eliminating race-based affirmative action in college admissions. In 2016, the court ruled against him, upholding decades of precedent saying that universities have a compelling interest in attaining diverse student bodies. This term, Students for Fair Admissions (SFFA) – an organization he founded – has two new cases before the justices. Argued last Halloween, the cases – Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. President and Fellows of Harvard – challenge affirmative action programs at Harvard University and the University of North Carolina. 

With the cases still pending, Mr. Blum would not discuss them specifically. He did speak with the Monitor about his career, and his legal and policy beliefs. The conversation has been edited for length and clarity.

Can you summarize your views on affirmative action, and how you formed those views? 

Well, if by affirmative action you mean a process by which public and private actors treat people differently because of their race and their ethnicity, then that is in grave tension with the founding principles of our civil rights movement. And those principles were that an individual’s race or ethnicity should not be used to help that individual or harm that individual in their life’s endeavors. So my opinion of race-based preferences, race-based classifications – race-based affirmative action, if you will – was born out of the opening lines of the Declaration of Independence to leading up to our Civil Rights acts. 

My views on affirmative action are not controversial. In poll after poll after poll – when asked, “Should race be an element in college admissions?” – significant majorities of African Americans, Hispanics, Asians, whites, Democrats, Republicans are against the use of race in college admissions.

You aren’t a lawyer, but you’ve been active in the federal courts, and the U.S. Supreme Court, for decades. How did that happen?

I’ll give you the CliffsNotes version here. ... [In 1992] I found myself as the Republican nominee running to represent the 18th Congressional District of Texas. In the process of going door to door for nearly a year, I realized that the congressional district was very badly gerrymandered by race. For example, one side of the street, in a garden variety Houston neighborhood, would have, I don’t know, four or five Hispanic households. Across the street, there would be a small apartment complex with mostly African American households. The Hispanics were drawn into one district. ... The African Americans were drawn into another. A block or two north, there would be a cluster of white homes, [and] they would be drawn into a white congressional district. 

This is not how representation in this country was designed. Single-member districts were designed to represent neighborhoods, even if they are multiracial, multiethnic neighborhoods. So I sued the state of Texas – the first lawsuit I ever filed – arguing that the congressional redistricting plan of 1990 was an unconstitutional gerrymander. That went to the Supreme Court, and we, as a group – myself and some other plaintiffs – we won. The state of Texas was compelled to redraw those congressional districts, reuniting multiracial, multiethnic neighborhoods. And that was the beginning of now, 30 years later, somewhere around 35 lawsuits all focusing in on the improper use of race and ethnicity in our public policies. That’s the only thing I have litigated.

SFFA was founded in 2014. How did you come to start that organization?

Our story now begins back in, I think it was 1996, at the University of Texas School of Law. A handful of kids who had been rejected from UT Law in I think 1995 or ‘96 sued the University of Texas School of Law, arguing that the use of race was unconstitutional. The lead plaintiff in that case was a woman by the name of Cheryl Hopwood. Cheryl and her co-plaintiffs won their case, in which the Fifth Circuit Court of Appeals struck down the use of race as a factor to achieve diversity at the University of Texas School of Law, and all public institutions of higher education in the Fifth Circuit, which meant that University of Houston, Texas Tech, Sam Houston, UT, all of them, LSU, could no longer use race. That was just in the Fifth Circuit.

In response to that, because African American and Hispanic enrollment dropped significantly – not so much at University of Houston or Texas Tech, but at the two flagship universities – the Texas legislature passed the Top 10 Percent Plan. I think it was in [1997]. So now there’s a state law that says any student graduating in the top 10% of their high school class will be admitted to any public university in the state of Texas, regardless of their SAT scores, or their ACT [scores], or whether they volunteered, it doesn’t matter. Two years after that law went into effect, the number of Hispanics and African Americans at the University of Texas exceeded the number that were attending when race-based affirmative action was a policy. So you follow the sequence of events: all of a sudden, kaboom! This law has created this incredible new racial and geographic diversity at the University of Texas. ... So all of a sudden this is really an interesting laboratory for creating a unique student body.

Now let’s fast forward to 2003 when the issue of – by the way, the University of Texas appealed that to the Supreme Court, the Supreme Court declined to take it. So now we’ve got colorblind admissions only in one of the nine circuits in the United States. Now comes [Grutter v. Bollinger], in which the Supreme Court said, No, diversity is a compelling governmental interest. Colleges and universities may use race as an admissions factor. The day that opinion came down, Bill Powers, then president of the University of Texas, issued a press release and stated that in light of the new Supreme Court ruling, we here are going to reinstitute race-based affirmative action. Same day, maybe 3 hours later.

Well, wait a minute. If you read ... [Justice] Sandra Day O’Connor’s Grutter opinion in 2003, she states that before a university turns to race-based classifications and preferences, it must make a good faith effort to find a race-neutral means of achieving a diverse class. Wait a minute, the University of Texas has this race-neutral means. The racial diversity is higher than ever before, and growing. Now you’re going to layer affirmative action preferences back on top of this? That’s wrong. That’s not going to stand up in court. So that was the beginning of the effort to find a plaintiff to challenge the University of Texas’ reintroduction of race. And that’s when Abigail Fisher sued the University of Texas.

Her case went to the Supreme Court twice. The first time in 2013, the Supreme Court said to the Fifth Circuit, you’ve applied the wrong deference. Justice [Anthony] Kennedy wrote that opinion. The case went back. Her case then went before the Supreme Court once again, and this time Justice Kennedy said, OK, the University of Texas did everything the right way, and Abigail Fisher, you lose. That happened in 2016. Students for Fair Admissions was formed in 2014 and sued Harvard and UNC in 2014.

Just to clarify your views: Is it your view that universities should be allowed to have a policy like that but there needs to be a very high bar for them to have to do that? Or should they not be able to do that at all? 

No. We believe that there should not be a racial classification box on a student’s application, that universities at the undergraduate and postgraduate level should never use race as an element in college admissions. They will argue that, well, race isn’t the predominant factor, but it is a factor. We believe that it should never be a factor. It shouldn’t be a big factor, a medium factor, or a small factor. Race has no place in American life and law. 

Do you believe, when it comes to education and college education, that a racially and ethnically diverse student body is a benefit educationally for students?

It can be. I’ve thought deeply about this. What your question implies, and what America is in the middle of a long debate about, is diversity. By diversity, I assume you mean visual diversity, skin color diversity. Is it important that we have people at college campuses in educational environments that look different from one another? Well, most Americans don’t believe that how a person looks, or his skin color, or the shape of her eyes, or what her hair might look like tells us much of importance about who that individual is. Is it a benefit to be in an educational environment in which some kids have grown up in very modest, low-income environments and some kids have grown up in very well-to-do professional environments? Is it good for there be some kids who are interested in jazz, and some kids who are interested in soccer, some kids who are deeply religious, some kids who couldn’t care less? Yeah. Is there some benefit to having a diverse group of individuals? Yes, to me that is a benefit.

Now, having said that, there are dozens and dozens of colleges throughout the country in which there is no racial diversity, no skin color diversity on campus. ... Go to University of Texas, El Paso [UTEP], 85% are Hispanic. ... Consider Spelman College. It is considered the most competitive of the historic HBCUs. Spelman, I think, is 98% African American. Are we going to go to Spelman and tell those kids, your educational experience has somehow been diminished because you don’t know any Asian kids, you didn’t hang out in your dorms and your biology classes, and in your English literature classes with [them]? There were no Jews. There were no Hispanics, no whites to speak of. What would the women at Spelman say about that? What would the kid who’s got a petroleum engineering degree coming out of UTEP say? Well, your degree is not as fulsome, your experience hasn’t been as fulsome because there are really no Asians in your class? I don’t think those kids would say, Oh, gee, had I known I really would have gone someplace else.

Beyond this Supreme Court term, and beyond this year, what does the future hold for you and SFFA?

Well, we don’t know yet. I use the pronoun “we,” and I use that because I’m speaking on behalf of our organization. We’ll see. No one knows how the Supreme Court is actually going to rule. There’s common wisdom. I’m very skeptical of common wisdom after having lost a case that we thought Abby [Fisher] would win. We’ll just have to see the breadth and scope of what the Supreme Court writes. It is possible that there are things that need to be litigated post-opinion. It’s a possibility that Students for Fair Admissions will become more of a watchdog organization depending on what the Supreme Court has to say. It’s just hard to say right now. 

Students for Fair Admissions is a membership group. As a membership group, people who had been rejected from Harvard and from UNC joined this organization. We have, I don’t know, like 22,000 members now, dozens of whom were rejected from Harvard and UNC, and other colleges and universities. ... That was a way in which students would not have to have their names made public, because the experience of Abigail Fisher in her second lawsuit was a very, very challenging and a very problematic experience for Abby. In the world of social media, in the world of people finding out your telephone number, people find out where you work, the harassment, the threats, the grave concern that a parent would have if their 17-year-old son were to be identified as a litigant, compelled us to form this membership organization.

I understand a lot of the donations are anonymous. Is that a reason why?

Well, people have different reasons for giving money anonymously, especially individuals who are worried that if their names become public or their corporations become public, the same thing could happen to them as individuals. ... We live in a world in which disagreement is now weaponized. That wasn’t the case 10 or 15 years ago.