Courts

First Edward Blum Came For The Voting Rights Act, Now He Aims To Gut Affirmative Action With The Help Of Asian Americans

Blum’s organizations attempt to choke our country’s educational institutions’ ability to take race into account in their admissions policies.

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“Do you even remember what the issue is? / You just trying to find where the tissue is / You can still be who you wish you is / It ain’t happen yet and that’s what intuition is.” — Kanye West

After Edward Blum’s win in Shelby County v. Holder, a SCOTUS case he successfully sponsored, Blum told the Guardian:

He has worried over the fallout from that ruling, which spurred conservative legislators in Texas, North Carolina and elsewhere to revive laws that the Justice Department had previously blocked or was expected to block on the grounds that they were vehicles for minority vote suppression.

Those laws have introduced draconian voter ID requirements, cut back on early voting, and eliminated same-day registration. ‘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.’

On Monday, the Massachusetts District Court in Boston will hear Blum’s next case on his crusade, Students for Fair Admissions v. Harvard. Groups at Harvard have been following this case with great interest and several students, such as Thang Q. Diep ’19, have made their applications public in support of their school.

In the must-read article “School Colors,” which will appear in The New Yorker’s October 15, 2018 Issue, Staff Writer Hua Hsu chronicles Blum’s march against race-conscious policies and artfully weaves in the history of affirmative action and both sides of the debate. In his article, Hsu astutely observed:

[Blum] has also filed a suit against the University of North Carolina–Chapel Hill, alleging that its race-conscious admissions policy is unlawful, though no trial date has been set…. If Blum’s [Harvard] suit is successful, the effect will be felt far beyond Harvard. It will limit the freedom that academic institutions have often had in pursuing their unique educational missions.

The lawsuit, and Blum’s efforts to change the cultural conversation surrounding diversity and discrimination, could end affirmative action in higher education as we know it.

In the last few years, I’ve covered this topic for our ATL audience in the following articles:

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My last piece on affirmative action featured Cory Liu, the former volunteer executive director of Blum’s nonprofit organization, the Students for Fair Admissions (SFFA). Liu contended:

It is racist and insulting to insist that these disparities are the results of an individualized, holistic process. That argument is dishonest, and it reinforces the stereotype that Asians are only good at test taking. It perpetuates the myth of the model minority by holding Asians to a higher standard than students of other races, even though many Asians come from less privileged backgrounds than black and Hispanic beneficiaries of racial preferences.

The truth is that UT-Austin and Harvard are engaging in the nasty business of racial balancing. They think that Asians are ‘overrepresented’ relative to other minority groups. No matter how hard we try, they refuse to treat us as individuals because of our race. The deck is stacked against us.

Last week, University of Maryland Professor Janelle Wong penned the article “Actually, Race-Conscious Admissions Are Good for Asian Americans” for the Chronicle of Higher Education. She argued:

A false ‘Asian penalty’ narrative is embodied in the Department of Justice’s investigation into Yale. At the core is an assumption that Asian-Americans need higher test scores than non-Asian-Americans to get into a highly selective college (this myth has been debunked). Higher test scores among Asian-Americans compared with other groups are best explained by systematic group advantages, such as the higher average levels of income and parental education that result from selective U.S. immigration policies in place since 1965.

To argue that variations in test scores are a result of qualities intrinsic to ‘Asian culture’ or group values is to rely on the very kinds of bias that the groups suing Yale and Harvard say they oppose.

Furthermore, Asian-Americans who do not benefit from high levels of parental education, proximity to high-performing schools, or high levels of income do not as often demonstrate stellar test scores. The consideration of race in college admissions has been shown to help these Asian-American students. In addition, considering race as one among many, many factors in admissions helps to create a more diverse campus, which has been shown to be the best learning environment for young people.

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At the end of the month, I will be relocating from Texas to North Carolina. Coincidentally, I’ve been following how both states have similarly shepherded new voter-suppression laws in the wake of Shelby. In my 2016 LinkedIn post “Fourth Circuit’s 10 Hardest Benchslaps Against North Carolina And Its Attack On Voting Rights,” I highlighted some notable passages in the Fourth Circuit’s 83-page opinion invalidating “one of the largest restrictions of the franchise in modern North Carolina history,” including this admonition:

In response to claims that intentional racial discrimination animated its action, the State offered only meager justifications.

Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist. Thus the asserted justifications cannot and do not conceal the State’s true motivation.

In both Chief Justice Roberts’s and Justice Brett Kavanaugh’s confirmation hearings, they deferred to precedent when questioned about certain legal subjects. When specifically questioned about the Voting Rights Act of 1965 (VRA), Roberts deferred to precedent, only later to vote to gut the VRA. Is there any question, when afforded the opportunity, Kavanaugh will vote to obviate affirmative action in higher education?

Now after Blum and the SFFA lost their SCOTUS case against the University of Texas, they will bring their newest suit to Harvard on Monday, have plans to bring a similar suit against the University of North Carolina, and will no doubt have another case loaded in their chamber ready to fire off should the need arise.

After Kennedy provided the swing vote in Fischer v. University of Texas, Justice Ruth Bader Ginsburg told The New York Times: “I don’t expect that we’re going to see another affirmative action case, at least in education.” As much as I love RBG, I find it hard to believe that Blum fails in his anti-affirmative crusade back to SCOTUS.

I find Justice Sonia Sotomayor words to Blum’s team the last time around much more instructive: “You don’t want to overrule Grutter, you just want to gut it.”

As noted by Scott Jaschik, “the Supreme Court historically doesn’t take up cases just a few years after a similar case, unless there is a specific desire to change things, or a split has developed among appeals courts.” And when Blum does get his third or fourth bite at the apple and ultimately succeeds, as he did in Shelby, Justice Kavanaugh will be there to hand down the concrete, victorious vote sealing affirmative action’s fate in higher education.

In his article “Yale Legacy Admission Brett Kavanaugh Is Now The Swing Vote On Affirmative Action At Universities,” The Intercept’s Eoin Higgins, who reached out to me for comment, wrote on Wednesday:

‘If you have Kavanaugh on the Supreme Court replacing Kennedy, then yeah, I do think’ Harvard will lose the case, said University of Pennsylvania law professor Kermit Roosevelt. ‘Not because Harvard was doing anything wrong under current law, but because the Supreme Court is going to change its interpretation.’

The lawsuit is expected to go to trial on October 15, and the Justice Department has joined SFFA’s side in the litigation. That’s in contrast to the Obama administration, which backed the University of Texas in the Fisher case. “No American should be denied admission to school because of their race,” said Sessions in a statement that was highly critical of Harvard’s admissions process.

In an email, general counsel for the American Council on Education, Peter McDonough, said Blum’s strategy would force universities and colleges across the country to completely revamp their admissions processes. According to McDonough, if SFFA wins out in the lawsuit, schools would be forced to use a uniform set of requirements for admission which won’t allow for considerations of race.

Although I refrained from comment for Higgin’s article, I made my view on legacy admissions fully transparent in this ATL piece, where I stated:

A regular applicant to Harvard has an 11 percent chance of being accepted, but a legacy has a 40 percent acceptance rate.

Daniel Golden says ‘the legacy preference was formalized early last century, in some cases partly to limit enrollment of Jews. Today, the practice often has that effect on other groups. At the University of Virginia, 91 percent of legacy applicants accepted on an early-decision basis for next fall are white; 1.6 percent are black, 0.5 percent are Hispanic, and 1.6 percent are Asian. Among applicants with no alumni parents, the pool of those accepted is more diverse: 73 percent white, 5.6 percent black, 9.3 percent Asian and 3.5 percent Hispanic.’ Not everyone is privileged, but at UVA, 91 percent of legacies sure have it good.

How can we talk about affirmative action without addressing legacy preferences? An argument that leverages the “model minority” myth as a racial wedge while ignoring the many other factors that lead to disparate results is as persuasive to me as Chief Justice Roberts’s statement: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

I find Rutgers Law School Professor Elise Boddie’s argument, as written in her New York Times Opinion piece on Wednesday, much more convincing: “Ignoring race denies all of us chances to build bridges across communities and to understand the lived realities of race in America. Race matters. Not because it should, but because it does…. It’s not possible to be blind to race. Pretending as though it is ensures we will forever be divided.”

At the end of the day, reasonable minds may disagree on this issue. While I don’t question Cory Liu’s intent and motivation, it’s hard for me to believe Edward Blum agonizes over the fallout from the Shelby decision, that he thinks one or two of the states that used to be covered by Section 5 has gone too far, and that he is a white knight solely concerned about the welfare of Asian Americans in higher education.

In an effort to return to past practices, Trump’s Administration aims to allow states the freedom to discriminate on the basis of race while Trump’s Department of Justice and Blum’s organizations attempt to choke our country’s educational institutions’ ability to take race into account in their admissions policies.

They offer meager justifications as they seek to adopt inherently discriminatory policies and target equitable policies in education, politics, and the workplace with surgical precision. But their asserted justifications cannot and do not conceal their hidden motivations.

Renwei Chung is the Diversity Columnist at Above the Law. You can contact Renwei by email at projectrenwei@gmail.com, follow him on Twitter (@renweichung), or connect with him on LinkedIn. 

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