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For Edward J. Blum, president of Students for Fair Admissions — the anti-affirmative action group suing Harvard — the end of a long game has arrived.
For almost three decades, Blum, who is not a lawyer, has been knee-deep in litigation: Since 1996, he has orchestrated eight lawsuits that have made it to the U.S. Supreme Court, including some of the most prominent efforts to strike down affirmative action policies and voting rights laws of the modern era.
In 2005, Blum founded the Project on Fair Representation, which led a pair of anti-affirmative action lawsuits against the University of Texas at Austin on behalf of Abigail N. Fisher, a rejected white applicant who said the school racially discriminated against her. The two landmark cases rose to the Supreme Court, but justices left race conscious policies mostly intact, spelling a pair of losses for Blum and anti-affirmative action activists.
While the Fisher cases worked their way through the courts, Blum continued his charge against affirmative action, establishing Students for Fair Admissions in 2014 as an offshoot of the Project on Fair Representation. Through SFFA, Blum filed two more lawsuits — this time denouncing the race-conscious admissions practices at Harvard and the University of North Carolina.
Now, Blum is headed back to the Supreme Court for the first time since the Fisher cases. He will be greeted this time by the most conservative court in generations, which is set to consider his most far-reaching argument yet: Race-conscious admissions across the board should go.
In the Fisher cases, lawyers from the Project on Fair Representation argued that UT Austin’s consideration of race in admissions unfairly penalized Fisher, a white applicant, and violated the Equal Protection Clause of the Fourteenth Amendment.
The court had upheld the use of race as one factor in higher education admissions in 2003 through landmark cases Gratz v. Bollinger and Grutter v. Bollinger, which examined the University of Michigan’s admissions policies.
The project’s lawyers called on the court to strike down UT Austin’s admissions policies on the basis that the school was inconsistent with affirmative action practices allowed by the court’s precedent.
But in its ongoing lawsuits against Harvard and UNC, SFFA has taken a bolder approach, asking justices to ban the consideration of race in admissions altogether by reversing past precedent.
SFFA first sued Harvard in 2014, arguing that the school’s admissions policies violate Title VI of the Civil Rights Act of 1964, which prohibits institutions that receive federal funding from discriminating “on the grounds of race, color, or national origin.”
The Massachusetts District Court ruled in favor of Harvard in October 2019 in a decision dubbed a “slam dunk for Harvard.”
The First Circuit Court of Appeals upheld the lower court’s decision in November 2020 after an appeal from the SFFA.
Several months later, SFFA petitioned the Supreme Court to hear the case against Harvard, requesting what some legal experts say was SFFA’s ultimate aim in filing the suit: for the Supreme Court to declare all race-conscious admissions unconstitutional and reverse the precedent set by the Grutter case.
“There is a lack of consistency in the sales pitch for this case,” Loyola Law School professor Kimberly West-Faulcon said. “But the actual goal — the legal goal — has always been the same.”
West-Faulcon said she believes “it’s very much on the table” that the Supreme Court will strike down the Grutter case and its precedent that favors race-conscious admissions.
“That’s what those who filed this case back in 2014 had always been banking on,” she said. “This has been a long game.”
Compared to the group’s previous litigation, SFFA’s lawsuit against Harvard also featured a shift in the players involved: While the Fisher cases centered on a white student, Blum actively recruited Asian American applicants to serve as plaintiffs for the Harvard case.
“The last series of cases — Fisher as well as the two cases in Michigan — all failed, and those were with white plaintiffs,” said Mike Hoa Nguyen, an assistant professor of education at New York University. “Recruiting Asian American students in order to levy this lawsuit then makes it much more complex.”
Court-watchers anticipate a ruling in favor of SFFA due to the court’s 6-3 conservative make-up, but maintain that the court is unpredictable.
UNC Law School professor Osamudia R. James said she was “not optimistic” about a decision in favor of Harvard and that the court is “in a mood for overturning precedent.”
James said the court may ask Harvard to reconsider its use of race in admissions or, in a more likely scenario, do away with the idea that a goal of achieving a diverse student body can justify the consideration of race in higher education.
Both West-Faulcon and Devon Westhill, president and general counsel of the Center for Equal Opportunity, cited the court’s decision in June to end the constitutional right to abortion as suggesting its willingness to overturn precedent.
“Until this iteration of the court, it was frowned upon by justices to simply vote to overrule a case because you disagreed with how it was,” West-Faulcon said. “It used to be very important to the justices to say we should have consistency in the law, and that there needs to be something extraordinary about this case.”
Though the court is not expected to release its ruling on the Harvard case until months after Monday’s oral arguments, race-conscious admissions in higher education could soon be a relic of the past, spelling a long-awaited victory for Blum.
—Staff writer Rahem D. Hamid can be reached at firstname.lastname@example.org.
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