He Worked for Years to Overturn Affirmative Action and Finally Won. He’s Not Done.

Edward Blum has been working toward the end of race-based admissions in higher education for years. He first brought the issue of affirmative action before the Supreme Court in 2012, with Fisher v. University of Texas — a case he ended up losing. Since then, the 71-year-old legal activist has founded a group called Students for Fair Admissions, which just won at the Supreme Court against Harvard and the University of North Carolina, in a decision that effectively ended race-based affirmative action policies in American college admissions.

Now, with a legal victory in hand, Blum is thinking about what’s next in his work to remove the consideration of race from other parts of American life and law. In a wide-ranging discussion, he told me about how he’ll be watching to make sure elite institutions of higher learning abide by the court’s recent decision, and why he thinks corporate America will be facing scrutiny next. This interview has been condensed and edited for length and clarity.

<strong><b>Q: </b>For people who don’t know your work, you’ve filed more than two dozen cases since the 1990s attempting to remove the concept of race from America’s laws, eight of which have made it to the Supreme Court, which is a lot.</strong>

<strong>In addition to this big affirmative action case, you were also behind the landmark voting rights case in 2013, </strong><strong>Shelby County v. Holder</strong><strong>, which overturned a key provision of the Voting Rights Act. How do you describe the work you do?</strong>

A: Well, I think there’s two parts to my answer. The first is the technical part. I see myself as something of a Yente the matchmaker — I’ve used that expression in the past — that character from “Fiddler on the Roof.” I seek out individuals or jurisdictions, corporations who have been discriminated against in various endeavors because of their race and ethnicity. Over the years, my outreach has diminished because I guess I’m a more high-profile individual and people contact me. I pair them with lawyers. Then if the lawyers believe that there is a cause of action, I go out and try to raise money to pay for the lawyers.

Now, philosophically, there’s a common theme in all of this. Like the vast majority of Americans, I believe that an individual’s race and ethnicity should not be used to help them or harm them in their life’s endeavors. And those life’s endeavors include, you know, if they’re gerrymandered into a voting district because they’re a certain race, if they’re applying for a job that they’re not going to get because they’re a certain race, or they’re applying to a college or university that they won’t be admitted to because of their race or ethnicity.

<strong><b>Q: </b>I want to talk about last week’s decision. Harvard was at the center of the case. The Harvard class of 1963 had 18 Black students. Now, in the most recently admitted class, the class of 2027, more than 15% of the students are Black, 11% of the students are Latino, and nearly 30% are Asian American — which is, by the way, a record proportion of Asian American students for the college. Affirmative action, many would argue, has not been perfect, but those numbers also tell a story: that taking race into consideration has led to a dramatically more diverse student body, no?</strong>

A: Well, let me back up a little bit and talk about the growth in the Asian acceptance rates, because this is something that we’ve briefed in court.

In 2014, the year we sued Harvard, the Asian admissions rate was, I think, around 18, maybe 19%. During the last eight years, the admissions rates at Harvard for Asians have grown from about 18% now up to 30%. Yet if you look back from 2014, all the way back to about 1999, it was flatlined for 20 years. But then when Harvard gets sued, all of a sudden, the number of Asians go up by 60%. How is that possible? How did that happen? Well, I think the numbers speak for themselves. [Harvard has attributed the growth to a steady increase in applications in recent years across all racial categories.]

But let me go back to your other question. Can the bar be raised for some kids, based upon their ethnicity and their race, and lowered for others, in order to create a diverse campus? The law does not permit that in any area of our public policy. There is no way to increase the percentage of Black and Latino students without decreasing the percentage of Asian American and white students.

Racial classifications is a zero-sum game. There are better ways to achieve individualized student diversity than treating students differently by race and ethnicity.

<strong><b>Q: </b>What the numbers show is that affirmative action actually had an effect, regardless of whether you think it’s a zero-sum game or not. If the goal is to admit a wider array of different types of students, it measurably did do that.</strong>

A: Most people who talk about diversity — and I think this is where your question is leading — most people who talk about diversity are really talking about skin color diversity, how somebody looks. What’s your skin color? What’s the shape of your eyes? What’s the texture of your hair?

Most Americans don’t think that the shape of your eyes tells us much about who you are as an individual. What does your skin color tell the world about who you are as an individual? If the argument is your skin color tells us a lot —

<strong><b>Q: </b>Perhaps that you might have similar experiences?</strong>

A: No, it doesn’t. It doesn’t at all. If you look at the record that we provided the court, an African American growing up on West 145th Street in New York City is going to be a very different person than an African American growing up in a multiracial suburb of Atlanta, whose father is a dermatologist and her mother is the principal of a high school. All that those two people probably have in common is that they have similar skin colors. They’re not interchangeable just because they’re Black.

<strong><b>Q: </b>You’re talking about class, but I’d rather not conflate things because there are correlations between class and race, but it isn’t the same thing. You can be rich and Black and be discriminated against. It doesn’t have to be an either-or. And I would like to understand a little bit about how you view race. Do you see anti-Black racism as different from other kinds of discrimination because of America’s history of slavery, Jim Crow, redlining?</strong>

A: It’s unique. It would be foolish of anyone to say that the experience of African Americans in the United States is not unique in the American experience. But you cannot remedy past discrimination with new discrimination. You cannot remedy the preferences that whites had in our nation’s life with different preferences for different ethnic groups. That cannot be how a multiracial, multiethnic nation maintains its social fabric.

Look, there is bigotry today. There is discrimination today in the United States. There is antisemitism in the United States. There is homophobia in the United States. There’s all those things in Belgium and in Venezuela and in Russia and in China. Bigotry, antisemitism, homophobia is a human disease. It cannot be cured. It can be fought, but it cannot be cured, and trying to cure it with new discrimination only makes the situation worse.

<strong><b>Q: </b>I am wondering if you believe in systemic racism — racism embedded in the institutions of American life. Because if you look at statistics in this country, a typical white family holds 10 times the wealth that a typical Black family does. There are currently only eight Black CEOs of Fortune 500 companies, 20 Latino CEOs. Black people live sicker lives, and they die younger than white people. I could go on.</strong>

A: 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.

<strong><b>Q: </b>For schools that want to be diverse, like Harvard or others, why make it harder?</strong>

A: I’m not making it harder. Harvard’s making it harder. Harvard has admissions policies in place that we haven’t talked about yet, but this might be a good time to do that. Harvard, as you know, has preferences for legacies — those children whose parents attended Harvard. They have preferences for faculty and staff. They have preferences for what are called minor sports — fencing, water polo, squash. And then, of course, they have preferences for donors, significant donors.

If Harvard and the rest of these competitive universities eliminated these kinds of preferences and instead cast a wider net to kids who come from disadvantaged backgrounds; kids who attended high schools that don’t send very many students off to college; kids who come from single-parent households; kids who come from households that have very modest incomes, virtually no wealth — cast your net in that direction. End your legacy and donor preferences, and you’re going to have a much more individualized student body than putting a thumb on the scale for some people who look a certain way and putting a different thumb on the scale for people who look another way.

<strong><b>Q: </b>Independent reviews, though, have found that race-neutral policies can’t replicate race-conscious ones.</strong>

A: We’re going to have to work harder, then. We cannot discriminate in order to achieve percentage outcomes that are reflected in the population.

<strong><b>Q: </b>As you know, the University of California system eliminated affirmative action, and there was an entire generation of students, Black and brown, that basically missed out on receiving an elite higher education.</strong>

A: Well, that’s California’s fault. The University of Texas, back in the 1990s, was forbidden from using race and ethnicity because of a challenge to the University of Texas’ law school. The 5th Circuit ruled that no college and university can use race as an element in college admissions.

The year that happened, there was a dramatic drop-off because obviously, racial preferences made a huge difference in the admissions of African Americans and Latinos. But what did the state of Texas do? It passed something called the top 10% law, which allowed students who graduated in the top 10% of their class, regardless of their SATs, to attend any public university in the state of Texas.

What happened two years after that law went into effect? More racial minorities were in attendance at the University of Texas than there were when race-based affirmative action was in place. So California blew it. Shame on California.

<strong><b>Q: </b>I want to look ahead now because, as I’m sure you would acknowledge, universities aren’t going to stop trying to admit diverse classes. They’ll just have to find new ways to do it. So how will you be evaluating if new policies are simply proxies for race-based affirmative action?</strong>

A: I don’t know yet. It’s going to be, I think, a school-by-school, case-by-case analysis. Some new admissions policies that use socioeconomic measurements are going to be just fine. Some states may pass percentage plans. That’s going to be just fine. Other schools may do something that is a direct proxy for race, and the opinion that came out in these cases has already really sort of put colleges and universities on notice that direct proxies for race are going to be actionable in a court of law.

<strong><b>Q: </b></strong><strong>It’s hard to imagine that this decision won’t open the door to legal challenges to race-conscious policies in other parts of American life. What else might you have your eye on? Race-based contracts, internships specifically for underrepresented groups, DEI programs?</strong>

A: Well, DEI programs are not challengeable, unless those DEI programs involve a racial preference. It is not illegal for a corporation to hire a DEI officer and staff that office with dozens or hundreds of people and compel employees to listen to speeches. That’s not actionable.

What is actionable is a corporation that says, “We are putting a ‘help wanted’ sign on the office door, and here’s the kind of employee that we’re looking to hire. We’re looking to hire those of this race, but not that race.” So all of these preferences, whether it’s in the employment arena, contracting arena, internships — all of that I think will be energized by this Supreme Court opinion. And we’re blessed to have this Supreme Court opinion.

<strong><b>Q: </b>Do you think that this decision has made it easier for your work to continue?</strong>

A: Well, I’ve said it in the past: This opinion is the end of the beginning. This issue of race and ethnicity in our public lives is not going to go away.

This article originally appeared in <a href="https://www.nytimes.com/2023/07/08/us/edward-blum-affirmative-action-race.html">The New York Times</a>.