Conservatives Plan Follow-Up Affirmative Action Attack

Conservatives Plan Follow-Up Affirmative Action Attack The U.S. Supreme Court

The man behind last term’s affirmative action and voting rights challenges in the U.S. Supreme Court is preparing for more of the same.

Edward Blum, head of the one-man Project on Fair Representation, announced on Monday that he is targeting three major universities for potential legal challenges to their use of race in admissions: Harvard University, the University of North Carolina and the University of Wisconsin.

Blum spearheaded the 2013 affirmative action challenge, Fisher v. University of Texas-Austin. He recruited Abigail Fisher to bring the lawsuit, enlisted Bert Rein of Wiley Rein to litigate it, and paid for the entire effort. A 7-1 Supreme Court last June sent the case back to the lower court to apply a tougher level of scrutiny to the university’s use of race as one of many factors to achieve a diverse student body.

The three schools in his latest litigation project, he said, are “unique” for different reasons.

“We believe Harvard, unlike the other two, specifically has an Asian quota,” said Blum. “We are confident we can prove that through statistical analysis and through various individuals who have experienced Harvard from the inside.”

The University of North Carolina, he said, admitted in an amicus brief supporting the University of Texas in the Fisher case that if it had followed Texas’ so-called Top 10 plan (automatic admission to students graduating in the top 10 percent of their class), its minority enrollment would increase.

“They confirmed some kind of race-neutral admissions policy would create greater diversity than does their race-based affirmative action policy,” said Blum.

And the University of Wisconsin, he said, “has been the subject of a number of earlier studies in which the statistical analysis indicates that of all the flagship state universities covered by these studies, the University of Wisconsin’s thumb on the scale in favor of race was one of the heaviest.”

The University of North Carolina, reacting to Blum’s announcement, said in a statement that the school stands by “the legality and fairness of the current undergraduate admissions policy and process.”

The university pointed to its amicus brief filed in 2012 in Fisher v. University of Texas at Austin. “In the brief, the University affirmed the important of diversity, the educational benefits it brings to students, and the compelling state interest in preparing students for a diverse society and assuring a pool of strong state leaders by admitting undergraduates from every background,” the University of North Carolina said in the statement.

Blum announced his latest project with press conferences in Boston, Charlotte and Milwaukee. Carrie Severino, chief counsel at the Judicial Crisis Network, led the Boston announcement. Shannon Goessling, executive director of the Southeastern Legal Foundation, was in Milwaukee and Blum handled Charlotte.

Blum said it was “hard to say” how close they were to filing any lawsuits, but he thought Harvard might be the first target. He has created three websites, one for each university, on which he solicits individuals who have been denied admission: HARVARDnotFair.org; UNCnotFair.org; and UWnotFair.org. Each site contains a list of “frequently asked questions,” which, for example, promise the individual confidentiality if a lawsuit is filed. “The Project on Fair Representation covers all expenses,” it says.

“It’s our hope we can have more than one plaintiff this time,” said Blum. “Gathering a decent plaintiff group is time-consuming and laborious. I meet with every individual and every family and our lawyer meets with them, as well.”

He said his organization is prepared to represent any student denied admission to a “premier flagship” public or private university. “Our net can be cast far wider than these three schools, but it’s our belief these three schools have large applicant pools and their use of race falls outside of what the Supreme Court handed down in Fisher. These three are natural targets for us.”

The Fisher decision, Blum said, was “important yet underrated.” The ruling did not bar the use of race as a factor in admissions policies. In sending the case back to the U.S. Court of Appeals for the Fifth Circuit, the majority said the university had to show there were no workable race-neutral alternatives before considering race.

“It’s our opinion most universities and colleges have not suspended their race policies and implemented race-neutral policies, so they are vulnerable to legal challenge,” said Blum.

Besides the Fisher case, Blum was behind last term’s voting rights case, Shelby County, Ala. v. Holder, and another high court voting rights case, Northwest Austin MUD v. Holder (2009).

Contact Marcia Coyle at mcoyle@alm.com.

Updated at 8:51 p.m. with comment from the University of North Carolina.

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