Last June, the U.S. Supreme Court took a step toward weakening racial preferences in university admissions. Ed Blum is trying to end them for good, potentially starting with the University of North Carolina at Chapel Hill.
Fisher v. University of Texas at Austin is the ongoing case of Abigail Fisher, a young woman who claimed in 2008 to have been rejected from UT Austin because she is white. While she lost her case in the Fifth Circuit Court of Appeals, the Supreme Court overturned the decision and sent Fisher back down. It ruled that in approving UT Austin’s admissions policy, the lower court had not applied the standard of “strict scrutiny” required in affirmative action cases.
The court did not reverse previous decisions upholding racial preferences, but it undid the lower court’s approval of Texas’ policy. That is, the courts are still allowing racial preferences in admissions to public universities (or universities receiving federal money). There is a point at which race-based admissions practices become illegal, but the exact line is still being drawn.
The Fifth Circuit heard oral arguments in Fisher in November, but the results are yet to come. In any event, Blum, whose one-man Project on Fair Representation recruited Fisher, has named UNC-Chapel Hill as one of his next foes. He intends to bring a lawsuit targeting Carolina’s admissions practices.
This is not an empty threat. Since Blum founded the Project on Fair Representation in 2005, three of his lawsuits have reached the Supreme Court. Besides Fisher, the Project on Fair Representation was involved in Shelby County v. Holder, in 2013, and Northwest Austin Municipal Utility District No. 1 v. Holder, in 2009. The government lost both cases, which challenged sections of the 1965 Voting Rights Act. Blum has another Texas voting rights case in the works, filed weeks ago.
Just as he did for the Fisher case with UTNotFair.org, Blum has set up websites that expressly seek potential plaintiffs whose enrollment applications were rejected by UNC-Chapel Hill, the University of Wisconsin-Madison, and Harvard—UNCNotFair.org, UWNotFair.org, and HARVARDNotFair.org. Those three schools, he believes, are out of compliance with the law as interpreted by the Supreme Court.
As in Fisher’s case, Blum—who is not an attorney—will connect his next plaintiff with someone from a network of lawyers he has developed over the last 20 years. They will argue that because of racial preferences, the (likely white or Asian-American) plaintiff was rejected in favor of less qualified applicants.
Blum told the Pope Center that in vacating the Fifth Circuit’s Fisher decision the Supreme Court imposed “very high hurdles that universities must overcome,” and none of the three schools has done so. The court’s opinion read that in order to justify racial preferences to achieve the educational benefits of diversity, a school must show that no “workable race-neutral alternatives” would have produced them.
What makes Harvard, Wisconsin, and Carolina stand out? Blum says that Wisconsin is “one of the worst” offenders in the nation. A 2011 study by the Center for Equal Opportunity found “an extremely large degree of preferences to blacks and Hispanics over Asians and whites in 2007 and 2008.”
As for Harvard, Blum believes strongly that it has a quota for Asians—along with fellow Ivy Leaguers Columbia and Yale.
The Supreme Court has considered racial and ethnic quotas unlawful since 1978’s Regents of the University of California v. Bakke. In 2012, the New York Times’ online feature Room for Debate hosted a colloquium on Asian quotas at Ivy League schools. Two columnists compared current Harvard policy to quotas limiting Jewish students in the 1920s. As the Asian-American college-age population has grown in the past two decades, the percentage of Asian-Americans at Harvard has fallen.
“In my experience, no college will admit that it uses a quota even though most of them do,” Blum said.
A legal challenge to Harvard could bring up an ugly history that influences college admissions to this day. In his 2005 book The Chosen, Berkeley sociologist Jerome Karabel uncovers how Ivy League schools institutionalized systemic discrimination against Jews. He found that the Ivy League introduced legacy preferences, geographic preferences, recommendation letters, interviews, essays, and consideration of extracurricular activities as ways to reduce the Jewish student population.
All of these admissions criteria are widely used today, and some make the claim that legacy preferences, for one, are as troubling as or more troubling than racial preferences.
Blum is unlikely to rely on Karabel’s history lesson in making his case against UNC; his argument against Carolina is straightforward. In his interview with the Pope Center, Blum’s main critique of Carolina’s admissions policy was that the university spilled the beans in an amicus brief. The brief acknowledged that UNC could achieve its racial diversity aspirations without racial preferences; Blum sees that as an admission of guilt.
Specifically, the brief analyzed UT Austin’s admissions policy and how it might work at UNC-Chapel Hill. The policy, the Texas Ten Percent Plan, is a key point of contention in Fisher. It guarantees a student admission to a state-funded university if that student is in the top 10 percent of his or her high school class. That plan was implemented after the Supreme Court ruled in 1996’s Hopwood v. Texas ruled that Texas’ affirmative action program was unlawful. Because so many high schools have large minority enrollments, the Ten Percent Plan effectively increases racial diversity.
However, after the Supreme Court’s decision in 2003’s Grutter v. Bollinger allowed racial preferences at the University of Michigan, the University of Texas added race back into the mix. That is the action that Fisher is contesting.
In UNC-Chapel Hill’s Fisher brief, the university said that if it had adopted a race-neutral plan similar to the University of Texas plan, its racial diversity would also increase, but its academic prestige would drop. According to the brief, the percentage of “nonwhite and underrepresented students” at UNC-Chapel Hill would have gone up by 1 percent had there been a “top-ten” plan in North Carolina, while the student body’s median SAT score would drop by 55 points.
The school’s minority enrollment is about one-third of the student body. The brief said that the current “holistic” admissions process is the best way to ensure both diversity and academic quality.
Blum said that no college has been able to sufficiently describe what a “holistic” policy is. In any case, he says, the brief shows that UNC-Chapel Hill is unwilling, as required, to try a race-neutral plan—such as a “top-ten” plan—before implementing a racial preference plan.
Even if Blum is right, there is at least one potential weakness in his case: the “top ten” plan might not be race-neutral. In the Fisher ruling last June, Ruth Bader Ginsburg, the lone dissenting justice, questioned the idea that the Texas plan is race-neutral. If a future ruling were to agree, it would weaken Blum’s case against UNC.
Steve Farmer, UNC-Chapel Hill’s vice-provost for enrollment and undergraduate admissions, admits that the school has racial preference admissions policies but believes them to be in compliance with the law. He did not respond to email and phone requests for an interview, but he told the Daily Tar Heel, the student newspaper, that UNC has considered race in accordance with Grutter since 2003.
“The [Fisher] decision reminds us that we need to be very thoughtful about how we approach admissions in general—and the use of race or ethnicity in particular,” Farmer said in that interview. The university has researched alternative admissions policies and could change them before a suit is necessary, especially with Blum’s new venture still in its infancy.
Blum said he is “swamped” and that his three websites, as of April 25, had close to 20,000 visits and hundreds of responses. He added that there are “dozens and dozens of individuals who we believe” may have a legitimate case. He readily admits, however, that finding the next Abigail Fisher is not easy.
“People don’t like lawsuits, people don’t like courtrooms, and they don’t want to be in courtrooms with lawyers.”
It wasn’t easy for him the first time, either. Despite his UTNotFair enterprise, he was not able to find a suitable candidate until a long-time friend sympathetic to his cause, Abigail’s father Richard Fisher, called him. He may not be able to rely on such a connection this time.
A challenge to UNC-Chapel Hill’s policy, building off of Fisher, could be the death knell of racial preferences if a court agrees with Blum’s reasoning and rules that the school must try a Texas-style plan.
(Editor’s note: A previous version of this article incorrectly stated that the Project on Fair Representation funded Parents Involved in Community Schools v. Seattle School District No. One. The Project submitted an amicus brief in that case but was not otherwise involved.)