U.S. District Judge Allison Burroughs has set February 13, 2019 as the date for closing arguments in the closely-watched Students for Fair Admissions (SFFA) v. Harvard lawsuit.
The case revolves around the claim that Harvard University discriminates against Asian American applicants in its undergraduate admissions process. While the lawsuit centers on the interests of Asian American students and their families, the motives of the SFFA organization itself have come under scrutiny, because, although the organization is largely comprised of Asian American students who were rejected from Harvard, the group was created by conservative activist and American Enterprise Institute fellow Edward Blum.
Most media coverage of the case characterizes Blum as an anti-affirmative action activist who seeks to bring about a reversal of the 1978 Bakke decision, in which the Supreme Court rejected the use of race-based quotas, but allowed institutions to consider race among other factors in college and university admissions, based on the state’s “legitimate and substantial interest” in addressing the effects of discrimination. But this is a narrow interpretation of Blum’s interests that sanitizes both his record and his motives. It’s a view rooted in a wrongheaded but understandable opposition to admission offices’ efforts to account for explicit and implicit bias in the system, as well as a history of discrimination, that complicate the route to college for many students of color.
A quick review of Blum’s previous cases makes clear that his challenges to affirmative action are only the most visible steps in a larger effort to undermine and overturn policies and practices established to address systemic racism throughout U.S. society.
If the name Edward Blum isn’t familiar to you, his most famous client, Abigail Fisher, might be. Blum, whose modus operandi is to identify compelling plaintiffs for possible lawsuits that challenge race-specific policies and then to connect those plaintiffs with legal representation, shepherded Fisher, who is white, through two lawsuits against the University of Texas, each alleging she was the victim of anti-white discrimination in UT’s admissions process. Each case reached the U.S. Supreme Court where, eventually, UT’s consideration of race as a factor in admitting some of its students was upheld. (Her bid inspired a Twitter hashtag, #StayMadAbby, which invited African Americans to post photos of themselves in their academic regalia, accompanied by lists of their scholarly honors and accomplishments.)
While Fisher vs. University of Texas represented a highly visible defeat for Blum, it also served to brand him as America’s most prominent anti-affirmative action activist. A quick review of his previous cases, however, makes clear that his challenges to affirmative action are only the most visible steps in a larger effort to undermine and overturn policies and practices established to address systemic racism throughout U.S. society.
In the run up to November’s midterm elections, progressive candidates throughout the South — and most visibly in the Georgia governor’s race — challenged their opponents’ efforts to purge registrants of color from the voter rolls, close polling places in majority Black precincts, and otherwise limit voter participation.
Until 2013, such efforts to inhibit voter participation were precluded by the close federal scrutiny applied to former Jim Crow states, with voter registration and polling practices closely monitored since the Voting Rights Act of 1965. For Blum, the act’s focus on restricting voter registration practices that disproportionately burden voters of color represented an undue burden on the mostly white legislators and election officials whose actions the Voting Rights Act was established to scrutinize.
Just as he identified Abigail Fisher as the ideal plaintiff for a challenge to current affirmative action law, he scouted out Shelby County, Alabama, as the ideal plaintiff for his challenge to the federal scrutiny provisions of the Voting Rights Act. In the Shelby County v. Holder decision of 2013, the U.S. Supreme Court vacated the federal scrutiny or “preclearance” provisions of the law, opening the door for the wave of roll purges of African American votes and precinct closures in African American communities. These have become a regular feature of both local and national elections in the five years since.
Previous cases championed and orchestrated by Blum include Northwest Austin Municipal Utility District №1 v. Holder (2009) and Bush v. Vera (1996), both of which set forth to challenge federal and local efforts to bolster and protect the rights and influence of minority voters. More recently, Blum’s Evenwel v. Abbott (2016) sought to dilute the voting power of Texas’ diverse urban centers. The case was based on the principle that legislative districts are drawn up based on total population rather than on the number of registered voters, and so could undermine the influence of smaller (and incidentally less diverse) rural parts of the state.
Viewed in the context of his overall interest of limiting state and federal efforts to counterbalance patterns of discrimination in education as well as voting rights, the current SFFA v. Harvard case looks very different to how it was initially presented — and how it is currently being litigated.
The questions revolving around the status of Asian American applicants in Harvard’s admissions process provide a launch pad for his latest assault on affirmative action. Yet, all the evidence suggests that Blum’s pursuit of the case has little to do with Asian American admissions and everything to do with what might be called the Blum Doctrine.
Should Students for Fair Admissions achieve its goal of removing race as a factor for consideration in Harvard University’s undergraduate admissions process, the impact on Asian American admissions will be minimal.
This is a permutation of traditional conservatism’s emphasis on small government, but with two distinct differences; Blum’s interests are simultaneously broader and narrower than traditional small government advocates. On one hand, the Blum Doctrine expands traditional conservatism’s critique of perceived overreach by centralized, institutional power to include not only federal government — the traditional target of small-government conservatives — but also large and well-funded universities.
At the same time, he limits his focus to the ways in which both federal legislation and university policies seek to address past and present racial discrimination. That’s a far narrower approach than traditional conservatives, who typically advocate on the full spectrum of government interventions in constitutional rights such as gun rights, land rights, privacy rights, and the right to free speech.
However, should Students for Fair Admissions achieve its goal of removing race as a factor for consideration in Harvard University’s undergraduate admissions process, the impact on Asian American admissions will be minimal.
Asian Americans Advancing Justice, a civil rights organization with a pro-affirmative action stance, cites a 2015 finding reported in the journal Educational Policy, that even the wholesale elimination of U.S. Black and Latinx applicants from Harvard’s admissions pool would increase white and Asian American students’ likelihood of acceptance by a paltry one percent. Such an outcome is unlikely (and unlawful). But the larger point, that any positive impact that race-based admissions has on Black and Latinx students has a negligible impact on white and Asian American students’ access, invites consideration of the types of admissions preferences whose elimination could very well increase Asian American students’ chances at admission.
For several years, Harvard’s undergraduate acceptance rate has hovered around five percent. Yet, the admission rate for legacy applicants — students with one or more parents who graduated from the University — is more than 33 percent; and the children of alumni comprise nearly 30 percent of each incoming class. Even a significant decrease in the admission rate for legacy students, however, would not address the fundamental issue identified in the SFFA’s anti-affirmative action lawsuit.
In the late 1980s, I spent two years as an admission officer at another Ivy League university. I well understand that two applications that may superficially appear to be almost identical can actually be quite different from each other.
Yet, analyses of Harvard admissions data submitted by the university’s legal team revealed that Asian American applicants consistently received lower scores on personal qualities like courage and likability than white applicants despite equivalent grade point averages, standardized test scores, extracurricular activities, and alumni interview ratings. These findings suggest that the same constellation of grades, activities, awards, essays, and test scores are interpreted as intellectual curiosity and academic excellence when presented by white applicants, but interpreted as evidence of an unimaginative applicate who is “booksmart and one-dimensional” when submitted by a student who is Asian American.
This latter possibility is far more difficult to resolve than any of the other possibilities offered up to explain the perceived anti-Asian American bias in Harvard’s admissions process. Should Blum’s plaintiffs be successful in their effort to end race-conscious admissions at the school, he will have provided, at best, a partial remedy to a problem more than a century in the making.