Racial Justice in the Supreme Court: Edward Blum and the Battle for Fair Admissions

In 1989, Edward Blum was a stock broker living in Houston. In 1990, he began a career in politics that would profoundly alter the future of race-based policies in the United States. That year, Blum ran and lost a congressional race against Democratic incumbent Craig Anthony Washington in a primarily black district. Blum immediately voiced suspicion that his district had been gerrymandered to create a black majority, and he wasted no time in filing a lawsuit against the state of Texas. Claiming a violation of the Fourteenth Amendment, Blum’s case eventually made its way to the Supreme Court (Bush v. Vera). The court ruled in his favor, and thus began Blum’s political career. Despite not being an attorney, he has orchestrated legal teams for six cases that have made their way to the Supreme Court, with the Court has ruling at least partially in his favor in four of them. Blum is driven by a philosophy that “race-based policies violate the very principles of equality they were created to uphold.” He acts by connecting plaintiffs to attorneys who are willing to take the case as a means to set a legal precedent. In 2018, Blum is the face of conservative agendas to end race-based policies in the United States, most recently conducting a legal challenge of affirmative action at Harvard.

Figure 1. Blum posing for a profile in the New York Times

In 2008, Abigail Fisher filed a lawsuit following a rejection of admission from the University of Texas at Austin. She claimed that her whiteness had been utilized against her in the admissions process and that minority students with lower scores were admitted in her place. Since the late 1990’s, the University of Texas (UT) has filled the majority of its freshman class through the Top Ten Percent plan, granting automatic admission to any Texas resident in the top percent of their class. The remaining slots were filled with a race-blind admissions process. But in 2003, following the landmark case Grutter v. Bollinger in which the Supreme Court upheld affirmative action, UT subsequently changed its admissions policy to include consideration of race for applicants. When Fisher was not admitted to UT, despite a 3.59 GPA that placed her within the top 12 percent of her class, Blum saw a valuable opportunity to mount a legal challenge against affirmative action. He connected Fisher to an experienced legal team and the means to pay them, embarking on a lengthy battle in various courts. To date, his efforts have been mostly in vain; both local and federal courts have affirmed the constitutionality of the Grutter case: “as long as Grutter remains good law, UT’s current admissions program remains constitutional,” said the trial judge in Austin. The Obama administration even issued a statement affirming their commitment to affirmative action at UT.

Figure 2. Abigail Fisher speaks during UT trial

In 2013, immediately following the challenge of affirmative action at UT, Blum brought an even more radical case to the court. In Shelby County v. Holder, he challenged the constitutionality of two provisions in the Voting Rights Act of 1965, a law widely regarded as one of the most important and effective pieces of legislation in the civil rights era. Signed by Lyndon B. Johnson at the height of the Civil Rights Movement, this law prohibited racial discrimination in voting. In Shelby, Blum argued that Sections 4(b) and 5 were unconstitutional under the principle of “one person, one vote.” Section 5 stipulates that certain states and local governments with a history of voter discrimination must receive federal clearance for any new voting practices; Section 4(b) contains the formula to decide which jurisdictions are regulated by Section 5. The Supreme Court ultimately ruled that Section 4(b) was unconstitutional because its coverage formula was based on antiquated data. Although the Court did not explicitly overturn Section 5, it currently serves no purpose, as no jurisdiction will need federal clearance unless Congress produces a new coverage formula. In the five years that followed, almost a thousand polling locations have been closed throughout the United States; these closures have disproportionately affected black communities. In a subsequent interview with the Guardian, Blum seems to have mixed feelings about the wide-reaching implications of the case: “I think about it a lot, I worry about it a lot. I agonize over this. It may be that one or two of the states that used to be covered by Section 5 has gone too far.” Blum’s reservations about his victory underscore the political power of these cases; the question of whether Blum is maliciously intending to oppress black communities is irrelevant, because the reality of the situation is that his legal wins have directly contributed to the deterioration of their conditions. His race-blind version of justice has not strengthened racial equality, it has done the exact opposite.

This brings us to Harvard and 2018. In 2012, high school senior Michael Wang was rejected from every Ivy League university he applied to except the University of Pennsylvania. Wang was undoubtedly a strong candidate for selective schools: he had a 4.67 GPA, an SAT score in the 99th percentile, and strong extracurricular activities (co-founder of the math club, speech-and-debate member). He even sang at Barack Obama’s Inauguration as a part of the San Francisco Opera. Dismayed with his admission results, he began to mull over an adolescence characterized by perceived anti-Asian discrimination in the college admissions process. His parents told him from a young age that he would need to outwork other Asian students to get into a school like Harvard, and his friends of Asian and white descent marked themselves as white on their applications to avoid being “lumped in” with other Asian students. I can speak to this sentiment on a personal level; as an Asian-American of mixed race, I was explicitly told to avoid identifying myself as Asian on my application. I was told that the schools I was applying to did not want more Asians and that I could only hurt my chances by identifying as such. This belief has led to the creation of companies like Asian Advantage which works to flesh out college applications with strategic extracurricular activities intended to make students “appear less Asian.” To Wang, the deck seemed stacked against him, and after a deep dive into the history of affirmative action, he knew who to turn to. After a phone discussion with Edward Blum, he wrote an op-ed in 2014 for a local San Jose newspaper that gained traction with a small but vocal community of Chinese-Americans. Although Wang maintains support for affirmative action, certain aspects of his story served to energize a political base that had previously shown little concern for American politics. Soon after the op-ed, Blum filed a federal lawsuit against Harvard University.

The Harvard lawsuit adopts an unconventional rationale to oppose affirmative action: policies intended to help communities of color are actually harming them. Blum and his team have thus found a way to dismantle affirmative action that avoids a narrative of discrimination towards white students and instead professes to fight on behalf of a community of color. In Asian-Americans (particularly Chinese immigrant communities), Blum found an ally of color to advance his cause; in doing so, he has altered the terms of the traditional discourse surrounding challenges of affirmative action. The partnership between Blum and the plaintiffs has come under intense criticism from civil leaders and academics from across the country who argue that Asian-Americans are being used to push white, conservative agendas. “I feel that the Asian-American student population and community is being used as a pawn in a chess game,” says Prudence Carter, sociologist and dean at the University of California, Berkeley. Those inside the movement strongly push against this narrative, arguing that their complaints have deeper roots based in Asian-American discrimination. As one Harvard law professor writes in the New Yorker, “Anti-Asian bias, not affirmative action, is on trial in the Harvard case.”

The history of Anti-Asian discrimination is a real and salient one, but the recent push for race-blind education policies finds direct roots in SCA-5, a bill designed to overturn Proposition 209. Prop. 209 is an amendment to the California constitution prohibiting state government entities from considering race, sex, or ethnicity in public employment, contracting, and education. Passed in 1996 by 54.6 percent of voters, this bill has characterized California public university admissions since its inception. Its effect on higher education demographics was instantaneous. Admission of black Americans at Berkeley and UCLA declined by 55 percent from 1995-1998. SCA-5 was seen by many as a way to redress the negative impact on minority admissions as a result of Prop. 209. Polling suggested that the bill would be successful, and a survey from 2012 indicated strong Asian-American support of affirmative action, but the California government failed to account for the power of Chinese-American grassroots politics. Facilitated by WeChat, Chinese-Americans began to organize and rally against what was sometimes called, “Skin Color Act 5.” Following a furious mail campaign and numerous public demonstrations, SCA-5 was eventually withdrawn.

Thus, the Harvard case constitutes the latest chapter of Asian-American opposition to affirmative action. But what exactly are they opposing?  Affirmative action has notoriously difficult to define, and this ambiguity means that it can be challenged on a variety of fronts. But although it resists coherent description, its roots are clear. At its core, affirmative action stems from an effort to rectify negative economic and social conditions for black Americans following a history of slavery. John F. Kennedy was the first government official to use the phrase “affirmative action” in relation to race, but he did not explicitly state what this action should look like. Thus, affirmative action has primarily been defined in the courts. In 1978, the Supreme Court deliberated over the case of a man claiming that his whiteness had led to a rejection from the medical school at the University of California, Davis (Regents of the University of California v. Bakke). The Court ultimately upheld affirmative action as constitutional, but in doing so they shifted its goals. The deciding vote, Justice Lewis Powell, was known for being a swing vote on the bench with an eye towards compromise despite his conservative track record. When he chose to uphold affirmative action, he iterated support for affirmative action under the principle of “diversity.” This new definition shifted the debate; affirmative action was no longer a remedy for past racial injustice, it was a way to strive for a more “diverse” future. Instead of an attempt to alleviate plights in communities of color, this ruling made “diversity” the ultimate goal.

The continued ambiguity surrounding affirmative action makes it difficult to inform the populace, as people continue to argue over its ramifications without a robust understanding of the underlying policy. A series of interviews at Colorado State University with thirty-six Asian-Americans who professed strong attitudes about affirmative action reflects this confusion. Thirty of the thirty-six could not adequately explain affirmative action. OiYan Poon, the assistant professor who conducted these interviews, laments “Quite frankly, the public generally has no goddam clue of how admissions works.” When she interviewed these individuals further, thirty-three of them described their ideal admissions process as race-conscious and holistic. From this it is clear that parties on both sides of this case often want the same thing. Broadly speaking, the goal is for these admissions processes to be “fair.” But what does a “fair” process look like?

This question looms large in America’s current political climate. Earlier this year, President Trump’s administration announced its decision to abandon policies from the Obama administration that urged universities to consider race in admissions. These repeals support a conservative push for race-blind admissions, and they come at a critical juncture: Justice Anthony M. Kennedy’s recent retirement means the loss of a conservative swing vote who has protected affirmative action in the past. In his place, Trump nominated Brett Kavanaugh, a judge who has consistently aligned himself with the Republican Party across a variety of issues. Affirmative action has been repeatedly defended by the Supreme Court throughout the years, but a more conservative bench means that this could soon change. The future of social justice in the U.S.—including abortion rights, gay marriage, and affirmative action—hangs in the balance.

This brings us back to Blum and Harvard. This current effort to ensure equitable admissions is underscored by two fundamental questions: Is there anti-Asian discrimination in higher education? And if so, can this be addressed without also dismantling affirmative action? Aforementioned Harvard Law Professor Jeannie Suk Gersen insists that, “one can safely root against Harvard and in favor of race-conscious affirmative action at the same time.” I do not doubt that this is possible, but Asian-Americans must be vigilant of the ramifications of their actions. Although this case was not organized with the intent to further marginalize other communities of color, Edward Blum’s involvement indicates a move towards this worrying reality. This fight is not solely about anti-Asian discrimination; by utilizing the network and expertise of Blum, the plaintiffs are aligning themselves with a conservative legal strategy intended to implement race-blind policies. These policies presuppose the United States as a post-racial society and ignore a lengthy history of racial injustice. This alleged post-racial society is not an American reality, as evidenced by the effects of Proposition 209 and Shelby County v. Holder on black communities. The same man who gutted the Voting Rights Act of 1965 is not an inspiring candidate to bring “fair” admission policies to higher education. US District Court Judge Allison D. Burroughs will not voice her opinion until early next year, but both sides have said that they will appeal the decision. This appeal will most likely entail an ascent to the Supreme Court, Blum’s initial goal. With a conservative court and a President who openly disapproves of race-based policies, affirmative action is in danger.

Figure 3. Blum answers questions regarding the Harvard Suit

The Harvard lawsuit shows affirmative action to be a complicated issue. Loose legal definitions and a misinformed populace have created the perfect storm for conservative legal strategists such as Blum to fight against affirmative action under the guise of protecting minority communities. The plaintiffs focus on anti-Asian discrimination, but the suit’s ramifications will be felt across the nation. Affirmative action is by no means the perfect or only way to address a history of racial injustice, but its repeal would be devastating for marginalized groups. Analysis of this case must take into account the American realities of racial inequality; at stake is the future of marginalized communities across the nation.


Written by Andrew Novoa