- Washington Post
How one man brought affirmative action to the Supreme Court. Again and again.
12:05 JST, October 25, 2022
SOUTH THOMASTON, Maine – Edward Blum is early to bed and early to rise: By 4:30 each morning, he says, you will usually find him in his study overlooking Penobscot Bay, scrolling the internet and looking for someone to sue.
It pays off, at least at the Supreme Court. On Monday, the justices will soon hear the seventh and eighth cases Blum has offered up, all relating in some way to his belief that considering an individual’s race and ethnicity violates the Constitution and federal law, even when the purpose is to help minorities who have been historic victims of discrimination.
It’s an extraordinary track record for any person or group, but especially for a stockbroker turned conservative activist and policy wonk, who is neither a lawyer nor the head of a large organization. Backed by conservative donors and sympathetic lawyers, Blum says his work is a different front in the nation’s civil rights battle.
Shelby County v. Holder, the 2013 case that Democrats and liberals decry as blowing a hole in the protections of the Voting Rights Act? That was one of his. On a related front, he also spent years trying to convince the justices to prohibit his alma mater, the University of Texas, from considering an applicant’s race when making admission decisions – falling one vote short in 2016.
But there has been a regime change at the Supreme Court since then. Now Blum (pronounced “Bloom”) is back with essentially the same challenges to admission procedures at the University of North Carolina and Harvard University, respectively.
“He’s teeing up precisely the concerns that the right has articulated about efforts to achieve racial equality in this country – taking race into account,” said David D. Cole, legal director of the American Civil Liberties Union. A finding by the court that the Constitution forbids “any consideration of race – period,” Cole said, would be “earth-shattering in terms of our society today.”
As with the University of Texas case, lower courts said Harvard and UNC have complied with Supreme Court precedents regarding the limited use of race in building diverse student bodies. But few think the justices accepted Blum’s cases simply to affirm those opinions.
If things go his way, Blum said in an interview, “I think this is just the beginning of the restoration of really the founding principles of our civil rights movement.”
“The founding principles were that your race and your ethnicity should not be used to help you or harm you in your life’s endeavors,” he said. “I think the majority of Americans will think of this as a good outcome and then be a steppingstone to other good outcomes, not just in the law but in the way we see each other.”
Staying the course
The Supreme Court in 1978 ruled in Regents of the University of California v. Bakke that some racial considerations in higher education did not offend the Constitution or federal law; Justice Lewis Powell wrote that the nation’s future leaders should be “trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples.”
The rationale was endorsed again by the court in 2003 in Grutter v. Bollinger, with Justice Sandra Day O’Connor writing there was a “compelling interest in obtaining the educational benefits that flow from a diverse student body.”
The court did not upend that ruling when it considered Blum’s challenge to the Texas plan in 2016.
Janai Nelson, president of the NAACP Legal Defense Fund, said it was “disappointing” the justices granted more of Blum’s college-admissions cases so soon after disposing of the last one.
“He’s been unduly rewarded for his tenacity by the Supreme Court,” she said. “The idea that he gets a hearing, and this issue is thrust into the public zeitgeist every few years for debate, is I’m sure reward in and of itself, and I think that’s unfortunate.”
But Blum is all about endurance – he is a trim 70-year-old former marathon runner whose full-time passion is looking for policies he considers actionable. “I think it is not unusual in the course of people’s lives to stumble on things that they find compelling and interesting,” he said. “And I think I’m fortunate that most of the endeavors I have engaged in, I enjoyed.”
Blum’s soft-spoken and unfailingly polite demeanor is at odds with his legal warrior reputation. He is a former Democrat, raised by liberal Jewish parents. In the 1990s, when he informed his mother he was running for Congress in Texas as a Republican, her response, he says, was “WHAT?”
He lost badly. But what stuck with him, he says, is his feeling that his Houston district had been racially gerrymandered, with more attention paid to separating voters by race and ethnicity than maintaining communities of interest. He sued over how the district was drawn, and the Supreme Court in 1996 agreed that race had played too prominent a role in that process.
“After the Supreme Court opinion came down in Bush v. Vera, my interest in the world of business and investment dramatically declined and my interest in law and public policy dramatically increased,” Blum said. “Over the years, those trendlines have continued.”
Putting the pieces together
Blum’s specialty is identifying a policy or federal law he finds offensive, locating a plaintiff he thinks will have standing to challenge, finding a lawyer to take the case and securing funding from sources he does not publicly identify. Conservative foundations such as the Donors Trust and Searle Freedom Trust have disclosed their support for Blum’s work, and he says he is also backed by small contributions and several “high-net-worth individuals.”
“Most of those individuals wish to remain anonymous. Many of them would have their careers jeopardized,” Blum said. “Some of them, in the world in which we live, may be physically at risk.” He said his donors are no different from those who donate to the “NAACP or an environmental group or a pro-life group or a pro-choice group – if they wish to remain anonymous . . . we’re not going to disclose that.”
Blum has mastered the art of putting forward a compelling Supreme Court case – even as his targets complain that he identifies a policy first and then must scramble to find a client actually harmed by it.
“He puts the pieces together to make arguments that are likely to appeal to justices’ ideological and methodological views,” said Richard Hasen, a voting rights expert at UCLA law school. “Blum brings you what you want to see . . . And he’s managed to hire and bring in some leading Supreme Court practitioners, so the justices are more receptive to well-presented arguments.”
When he targeted the Voting Rights Act, Blum set his sights on a portion of the law that required states with a history of discrimination to have changes to their election policies approved in advance by the Justice Department or federal judges. His organization, Project on Fair Representation, illustrated the breadth of the restriction by showing the Supreme Court the measures a tiny Austin utility had to meet to comply with the law. For a follow-up case, Blum searched a Justice Department database to find Shelby County, Ala., which he bet correctly would make an attractive plaintiff.
The result was the landmark opinion by Chief Justice John G. Roberts Jr. striking down the formula Congress had implemented to decide which states had to have the Justice Department or judges preclear election-law changes.
Since then, a host of voting restrictions have passed in mostly Southern states that previously would have had to have the changes reviewed. While critics have blasted the restrictions as repressive, Blum said they can be challenged under another part of the Voting Rights Act that applies to all states.
“If there is really a problem in the state of Alabama, go for it,” he said. “If there’s really a problem in Wisconsin, go for it. But to treat Alabama differently from Wisconsin, or Ohio, from Florida, that doesn’t comport with my understanding with how laws apply throughout the country.”
Setting the next target
The group Blum created to challenge Harvard and UNC – Students for Fair Admissions – has been criticized for lacking, at least at the time the lawsuits were filed eight years ago, actual students who had been turned down by the universities. The organization was nothing but “a founder and a generalized grievance” UNC says in its brief. On its pushback website, Harvard refers to the case as “a politically motivated lawsuit brought by Edward Blum and the organization he created.”
But lower courts agreed Blum’s organization, which has grown over the years of litigation, had legal standing to proceed with both cases, even while ruling against him on the merits.
The organization says on its website that its members include “20,000 students, parents, and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional.” Still, Blum recently was unable to connect The Washington Post with any students who were turned down by UNC.
Blum’s approach – finding sympathetic plaintiffs to challenge government policies – is a time-honored one for civil rights groups. But Nelson, of the LDF, resists the comparison.
“He’s clearly on a mission to roll back the gains of the civil rights movement and to attack some of the key statutes that are the platform of our multiethnic, multiracial democracy,” she said, adding that voting rights and affirmative action “really go hand in hand – the political representation of our diverse population as well as the ability to produce people who can adequately represent that population. Look at the project in tandem, it’s a very dangerous one.”
Blum is used to such criticism and presenting his alternative view.
“Have Asians as individuals and groups been discriminated against? Yes. Have individual African Americans been the target of racism and bigotry? Yes. Have Jews been the target of antisemitism? Yes. All of this is true,” he said.
“The question is how do we become a better country and put as much of that behind us and move forward as we can? The way we don’t do that is to say, well, we’re going to treat this person differently because of what you may have experienced and what historically may have happened to you decades and decades ago . . . That cannot be the path forward for reconciliation of past bigotry and discrimination.”
Regardless of what happens in the higher education cases, Blum is looking ahead.
Last year, he formed the Alliance for Fair Board Recruitment. It already has filed two lawsuits to challenge efforts to apply diversity goals or requirements to corporate boards.
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