Edward Blum’s Staunch Campaign Against Affirmative Action

By: Sari Richmond

Edited by: Jack Pacconi and Samantha Yip

Edward Blum’s recent and most notable victory in his campaign against race-based considerations, the 2023 Supreme Court ruling against affirmative action in higher education, brought many to question what sector of life he will target next. Blum, a conservative litigator, has recently garnered attention for his formation of the group Students for Fair Admissions, which won the landmark affirmative action case against Harvard and the University of North Carolina.[1] This victory comes after decades of Blum filing cases targeting a range of topics from voting rights and electoral districts to affirmative action in education. 

In 1990, when Blum first attempted to vote in Houston, Texas after moving into the city with his wife, he was met with no republican option, and then the realization that the Republican Party had not provided a candidate to challenge the Democratic incumbent.[2] After being informed that he resided in a majority-minority district by the Republican Party of Houston, Blum lost the congressional district election to a Black incumbent two years later. While campaigning for this election, Blum discovered that neighborhoods in his district had been intentionally drawn to enhance the weight of minority votes. Blum’s goal then shifted; he enacted a lawsuit against the state of Texas and successfully assembled a legal team with the goal of proving unconstitutional gerrymandering.[2] After this, Blum filed similar lawsuits in states like New York, Virginia, Florida, and others to eliminate race considerations in electoral redistricting. Keeping the same legal team he had assembled for the first suit in Texas, Blum saw opportunities to expand his agenda into education when his alma mater, the University of Texas Austin, proposed race and ethnicity as a factor in admission consideration in 2003. Hoping to replicate the same success he had found in the Supreme Court with his congressional redistricting suits, Blum began searching for potential plaintiffs to file suit against the University of Texas for violating the equal protection clause.[2] Abigail Fisher, a white, legacy applicant who was denied admission, shared Blum’s inclination that the University’s race-neutral auto-admit practice for the top 10% of public high school students in Texas was sufficient to encourage diversity. However, the Supreme Court ruled in 2013 that colleges retained the right to consider and actively pursue diversity as an educational interest.[2]

Blum’s strategy of using litigation to enact social change and the use of test cases–cases meant to set a precedent or alter standards–has been used before with starkly different intentions. The National Association for the Advancement of Colored People (NAACP) began to challenge racial inequalities in the 1930s and 1940s using test cases and a legal team including top minds of the time Charles Hamilton Houston and Thurgood Marshall.[3] In order to target areas of life like education and voting, the NAACP carefully chose litigants and respected plaintiffs who could publically appeal to the goals of the cases and personally testify to the effects of inequality on their lifestyle. Extremely similar to this practice is Blum’s careful selection of Asian American plaintiffs in the 2023 Students for Fair Admissions suit after his white plaintiff did not produce the desired results in his earlier University of Texas suit.[2,3] While the NAACP achieved great success through this strategy earlier in the 20th century, Blum is also finding success using the same pathway of test cases to undo many instances of monumental civil rights legislation. For example, in the 2013 Shelby County v. Holder decision, Blum effectively challenged Section 5 of the Voting Rights Act, a section dedicated to federal oversight of state and local elections ensuring the absence of voter discrimination based on race. Since the successful dismantling of Section 5, partisan gerrymandering rates have risen as states are no longer required to report voting related changes to the Justice Department.[3,4]        

Despite his initial loss in the education sector, Blum was not discouraged and immediately began his search for plaintiffs denied admission to Harvard College, the University of North Carolina-Chapel Hill, and the University of Wisconsin Madison. As mentioned, Blum sought out Asian-American plaintiffs earnestly, specifically targeting universities that had been rumored to have Asian quotas or holistic admission considerations that included race or ethnicity.[3] Critics have pointed out that Blum’s attitude towards the selection of Asian American plaintiffs takes advantage of the model minority myth and purposefully forces a narrative of sympathetic victims who are unfairly penalized by affirmative action practices. 

After forming Students for Fair Admissions, Blum began to build a case based on the principle that higher education institutions could use race-neutral policies to encourage diversity including a focus on socio-economic status or eliminating legacy preference.[5] Leaning into the stance that affirmative action is a constitutional violation of the equal protection clause which “prohibits distinctions in law by race or color,” Blum and his team argued the case in front of the Supreme Court in October 2022.[6,7] The schools countered with the idea that without programs like affirmative action, achieving student bodies that reflect the diversity of America would be near impossible due to the effects of systemic racism and other trends resulting from long-standing racial discrepancies in American law and practices. Blum himself does not believe in systemic racism, saying in a New York Times interview, “No, I do not believe in it. What your question implies is that in the American DNA there is racism. It was founded upon racism. It is part of what this country is. I reject that.”[1]

After a 6-3 ruling from the Court in 2023 favoring the Students for Fair Admissions, universities and colleges are no longer allowed to consider race in the admissions process.[8] Despite an observed drop in minority enrollment for institutions where affirmative action processes have been eliminated, many still argue that race-neutral considerations carry the same effectiveness as affirmative action policies. However, many institutions have already begun tweaking admissions protocols to account for this change. Schools are not banned from considering how race or ethnicity has impacted an applicant’s life or inviting applicants to write about such topics when they apply.[8]

Blum’s victory in the 2023 affirmative action ruling has prompted him to expand his agenda into other areas. He plans to challenge some corporate boards who exhibit racial preferences and other areas associated with higher education including internships, scholarships, and research grants that are in any way racially exclusive.[1,8] Ironically, eliminating affirmative action-type programs in the corporate realm would negatively impact Asian Americans, the very demographic that Blum used to win the 2023 case. Despite an overrepresentation of Asian Americans in the technology industry, they are marginally underrepresented in senior leadership positions due to anti-Asian bias and the effects of the model minority myth. Most technology companies lack any affirmative action-type programs currently, leading to largely white majority executive boards–despite an increasing number of minorities entering the workforce due to affirmative action programs in higher education for the past few decades.[9]

The American Alliance for Equal Rights (AAFER), another group founded by Blum, has already begun its challenge on scholarship and grant-like programs. AAFER is suing The Fearless Fund, which offers four $20,000 grants a year to Black women to fund start-ups. The Fearless Fund is being sued for violation of the Civil Rights Act of 1866, legislation that was originally written to allow African Americans to enter contracts they had previously been barred from. Many venture capital funds target investments to certain demographics and focus on uplifting these minority groups in the American business sphere. Blum claims that because a fund targeting only white men would be unfair and illegal, then other groups that cater to certain demographics must be held to the same standard.[10] 

Edward Blum’s role in the agenda to eliminate affirmative action and similar practices in higher education, voting, and workplaces is undeniable. For decades, Blum has been working to use litigation to undo policies put in place to inject diversity into spaces commonly dominated by Caucasian males. Through using the same legal pathways used by civil rights groups like the NAACP in the past, he has successfully changed precedent in race-related considerations of things like higher education admission and voting districting practices. While some of these victories may seem small, the future implications of Blum’s agenda against affirmative action and similar policies should be considered, as these policies’ effects on diversity are already being eliminated.

Notes:

1. Garcia, Lulu. 2023. “He Worked for Years to Overturn Affirmative Action and Finally Won. He's Not Done.” The New York Times. 

2. Burns, Hilary. 2023. “Meet Edward Blum, the man behind the Harvard affirmative action case.” Boston.com. 

3. Hayter, Julian M. 2023. “Edward Blum's crusade against affirmative action has used the legal strategy developed by civil rights activists.” The Conversation. 

4. “Shelby County v. Holder.” 2018. Brennan Center for Justice. 

5. Sherman, Mark. 2023. “Supreme Court live updates: Court ends affirmative action in colleges.” AP News. 

6. “20-1199 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (06/29/2023).” 2023. Supreme Court. 

7. “U.S. Supreme Court Ends Affirmative Action in Higher Education: An Overview and Practical Next Steps for Employers.” 2023. Sidley Austin. 

8. Totenberg, Nina. 2023. “Supreme Court reverses affirmative action, gutting race-conscious admissions.” NPR. 

9. Holloway, Kali. 2023. “Inside the Cynical Campaign to Claim That Affirmative Action Hurts Asian Americans.” The Nation. 

10. n.d. Wikipedia.

Bibliography:

n.d. Wikipedia. https://www.rollingstone.com/politics/politics-features/fearless-fund-vc-fund-edward-blum-affirmative-action-1234808930/?sub_action=logged_in.

Burns, Hilary. 2023. “Meet Edward Blum, the man behind the Harvard affirmative action case.” Boston.com. https://www.boston.com/news/the-boston-globe/2023/05/29/meet-edward-blum-the-man-behind-the-harvard-affirmative-action-case/.

Garcia, Lulu. 2023. “He Worked for Years to Overturn Affirmative Action and Finally Won. He's Not Done.” The New York Times. https://www.nytimes.com/2023/07/08/us/edward-blum-affirmative-action-race.html.

Hayter, Julian M. 2023. “Edward Blum's crusade against affirmative action has used the legal strategy developed by civil rights activists.” The Conversation. https://theconversation.com/edward-blums-crusade-against-affirmative-action-has-used-the-legal-strategy-developed-by-civil-rights-activists-215223.

Holloway, Kali. 2023. “Inside the Cynical Campaign to Claim That Affirmative Action Hurts Asian Americans.” The Nation. https://www.thenation.com/article/society/affirmative-action-asian-americans/.

“Shelby County v. Holder.” 2018. Brennan Center for Justice. https://www.brennancenter.org/our-work/court-cases/shelby-county-v-holder.

Sherman, Mark. 2023. “Supreme Court live updates: Court ends affirmative action in colleges.” AP News. https://apnews.com/article/supreme-court-affirmative-action-college-race-f83d6318017ec9b9029b12ee2256e744.

Totenberg, Nina. 2023. “Supreme Court reverses affirmative action, gutting race-conscious admissions.” NPR. https://www.npr.org/2023/06/29/1181138066/affirmative-action-supreme-court-decision.

“20-1199 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (06/29/2023).” 2023. Supreme Court. https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf.

“U.S. Supreme Court Ends Affirmative Action in Higher Education: An Overview and Practical Next Steps for Employers.” 2023. Sidley Austin. https://www.sidley.com/en/insights/newsupdates/2023/08/us-supreme-court-ends-affirmative-action-in-higher-education--an-overview-and-practical-next-steps.