Challenge to Harvard’s use of affirmative action was designed by a conservative to reach a friendly Supreme Court
By Joan Biskupic, CNN
In an ordinary Boston courtroom in April 2015, lawyers and activists at the first hearing of a challenge to race-based admissions practices at Harvard knew they would see each other again, eventually at the US Supreme Court.
Attending that preliminary session before US District Judge Allison Burroughs were lawyers from the Consovoy McCarthy law firm and, on the Harvard team, former US solicitor general Seth Waxman. They had been hired at the outset for their expertise as Supreme Court litigators.
Sizing up the affirmative action controversy destined to affect campus diversity nationwide, Burroughs said: “It is the sort of case that I suspect will ultimately be decided above my pay level.”
The Supreme Court will indeed now take it up, on Monday, in one of the most closely watched disputes of the current session.
Among those in the spectator seats in April 2015 was Edward Blum, a conservative activist who’d created an entity called Students for Fair Admissions and begun raising millions of dollars from right-wing donors for this broadside against affirmative action at Harvard and, in a case filed simultaneously in November 2014, against the University of North Carolina.
Blum had previously enlisted White students to sue over race-based admissions at the University of Texas — and lost. He added a new dimension to the Harvard case, claiming that high-achieving Asian American applicants were unlawfully disadvantaged by screening policies that favored traditionally underrepresented Blacks and Hispanics.
A former stockbroker who never went to law school, Blum, now 70, has a talent for fashioning cases that appeal to the increasingly conservative high court. Using many of the same lawyers over the years, he engineered a series of lawsuits against the 1965 Voting Rights Act culminating in Shelby County v. Holder, the 2013 decision that curtailed the reach of the Voting Rights Act over designated states with a history of discrimination.
In the pending effort against affirmative action, Blum’s legal team failed to persuade Burroughs or any of the other lower court judges that heard the challenges that consideration of an applicant’s race, among other criteria, violated federal law or the Constitution.
Yet this high court venue now appears more promising to the challengers since the cases were filed nearly eight years ago. The bench is now dominated by six conservatives, with only three liberal justices.
The court, which already had demonstrated an aversion to racial remedies, in June showed a startling disregard for precedent when it reversed the 1973 Roe v. Wade decision that guaranteed a right to abortion nationwide.
Students for Fair Admissions wants the justices to throw out Regents of the University of California v. Bakke, the 1978 case that first validated universities’ use of race in determining who was selected for a coveted place on campus, and Grutter v. Bollinger, a significant 2003 decision reinforcing Bakke.
The Harvard admissions program was held up as a model in the Bakke case, based on the principle that diversity is essential to the educational mission and that while schools may use race to lift an applicant’s prospects, they may not engage in quotas.
SFFA has sued under Title VI of the 1964 Civil Rights Act, which prohibits schools receiving federal funds from discriminating based on race, and under the 14th Amendment guarantee of equal protection of the law, which covers state institutions.
Lawyers for Harvard and UNC describe race as a “plus” factor, considered along with a student’s academic record and test scores, extracurricular activities and personal attributes. Race shapes one’s life experiences, they say.
Back in 2015, Judge Burroughs noted that advocates for Black and Hispanic students were seeking to intervene in the case. The Lawyers’ Committee for Civil Rights Under Law argued that a verdict for Students for Fair Admissions would especially disadvantage minority students who’d experienced fewer academic opportunities and that they should be represented at trial.
“UNC needs race-conscious admissions to achieve the diversity,” David Hinojosa, of the Lawyers’ Committee, wrote in their brief to the Supreme Court, “in part, because of the University’s sordid history of excluding Black applicants well into the twentieth century and its present-day effects, which impede the University’s ability to attract, enroll, and retain Black, Latino, and Native American students, in particular.”
Hinojosa added that one student “testified regarding several confederate relics on UNC’s campus” and said “having to walk past the ‘racist wallpaper . . . every day adds to that feeling of not being valued . . . .'”
Justice Ketanji Brown Jackson, the court’s newest member and its first African American female justice, will hear only the UNC dispute, having recused herself from the Harvard case because she previously served on its board of overseers.
The Blum genesis
Blum, whose home is in Penobscot Bay, Maine, has been originating lawsuits against racial policies since the early 1990s when he lived in Houston. After he ran unsuccessfully for the US House of Representatives in Texas, he became part of a group of plaintiffs who sued the state over its congressional district maps.
In part to compensate for past discrimination, Texas had created Black-majority and Hispanic-majority districts to increase the chances for minorities to elect a candidate of their choice. The Supreme Court struck down the Texas plan in the 1996 case of Bush v. Vera, finding that the map violated the Constitution’s equal protection guarantee because race was the predominant factor in the map lines, at the expense of traditional districting criteria such as compactness.
Blum turned his attention to higher education in the early 2000s, bringing a case against his alma mater, the University of Texas at Austin, on behalf of Abigail Fisher, a White student denied admission who was also the daughter of a Blum friend.
In a CNN interview, Blum described race-based admissions as polarizing. “No one is suggesting diversity is a bad thing,” he said, “but just treating people differently because of their race and ethnicity, that’s a different element in the quest for diversity.”
After two Supreme Court rounds, Fisher lost that case against UT in 2016, as a sharply divided court upheld the principles of Bakke and Grutter, allowing schools to look to race as one criterion among many.
“As this Court has said,” Justice Anthony Kennedy wrote, “enrolling a diverse student body ‘promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.’ Equally important, ‘student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.'”
Kennedy has since retired, as has Justice Sandra Day O’Connor, who penned the 2003 Grutter decision. In such racial disputes, no justice has replaced them as a centrist jurist brokering the middle ground.
The Asian-American dimension
Blum developed the cases against Harvard and the University of North Carolina while the University of Texas lawsuit was ongoing. The Asian American element in the claim against the storied Harvard campus — emphasized by the challengers as they recall caps on Jewish students at Ivy League institutions decades ago — has drawn more national attention, compared with the UNC lawsuit.
No individual Asian American students were named in the Students for Fair Admissions complaint. Blum attributed that to fears of personal attacks, whether on social media or in person at a campus dormitory.
In its filings, Students for Fair Admissions asserted that as Harvard engaged in unlawful “racial balancing,” it held Asian American applicants to higher standards than Black and Latino students. SFFA also contends admissions officers adopted stereotypes as they applied to “personal ratings,” categorizing Asian Americans as one-dimensional, lacking leadership qualities and falling short on traits such as “likeability.”
After a 15-day trial, Judge Burroughs found no intentional discrimination at Harvard and rejected claims of racial animus. The 1st US Circuit Court of Appeals upheld that decision.
In the University of North Carolina case, US District Court Judge Loretta Biggs upheld the schools use of race among many criteria, emphasizing that state institutions of higher education must be “open and available to all segments of our citizenry.”
A firebrand law firm
Blum has partnered with William Consovoy and Thomas McCarthy for more than a decade, including in the consequential case of Shelby County v. Holder, which curtailed the reach of the Voting Rights Act over states, mainly in the South, that had a record of electoral discrimination. Before Consovoy and McCarthy founded their own boutique firm in 2014, as the affirmative action cases were being developed, they were part of a larger Washington, DC-based law firm that had represented Blum back in the 1990s.
To pay the legal fees, Blum has collected millions of dollars from conservative benefactors through Donors Trust, which raises tax-exempt funds and channels them to various projects.
Consovoy, a former law clerk to Justice Clarence Thomas who appeared before Burroughs from the start in 2015 and argued the SFFA appeal at the 1st Circuit in 2020, is currently being treated for brain cancer. Another partner, Cameron Norris, also a former Thomas clerk, will represent SFFA in the Harvard case on Monday.
Waxman will be back at the lectern for Harvard. In the UNC case, Patrick Strawbridge, another former Thomas clerk at Consovoy McCarthy, will represent SFFA, and North Carolina state solicitor general Ryan Park, a former law clerk to the late Justice Ruth Bader Ginsburg, will appear for the university.
Consovoy McCarthy, often taking the helm in ideologically driven cases, represented then-president Donald Trump as he lodged election-related lawsuits in multiple states before the November 2020 presidential contest.
At the same time, Waxman, who was US solicitor general during the Clinton administration and is now in private practice at WilmerHale, was one of three former Democratic solicitors general who worked behind the scenes on a legal plan to counteract claims by Trump and other Republicans.
Biden administration enters case
Joining the veterans in the case will be current US solicitor general, Elizabeth Prelogar, siding with the universities on behalf of the Biden administration. (The Trump administration had earlier backed Students for Fair Admissions.)
Prelogar, who held consecutive clerkships for Ginsburg then Justice Elena Kagan, will present arguments in both cases Monday, highlighting the importance of diversity in higher education at West Point and other military academies. “The Nation’s military leaders,” she wrote in a brief, “have learned through hard experience that the effectiveness of our military depends on a diverse officer corps that is ready to lead an increasingly diverse fighting force.”
Blum, who insists that any policy of diversity based on race is wrong, will be in the spectator section of the courtroom on Monday.
He hopes that the high court is now ready to end the use of race in admissions, yet he adds with some caution, “After working on eight Supreme Court cases, I’ve learned that litigants can be very surprised” at a final decision.
The-CNN-Wire
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