Opponents, supporters of affirmative action on whether college admissions can be truly colorblind

Edward Blum, of Tallahassee, Fla., is not a lawyer; he retired from a job in finance. But he is founder and president of Students for Fair Admissions, a group he acknowledges starting to challenge higher education affirmative action policies in court. "The equal rights provision of our 14th Amendment basically gets to the point that people should not be treated differently because of their race or ethnicity," said Blum.

He also argues that affirmative action violates the 1964 Civil Rights Act. "The opportunities must be the same, regardless of your race or ethnicity," he said.

Affirmative action has helped boost the number of Black, Latinx and other minorities who are under-represented at prestigious schools. But now those racial preferences may be prohibited, in large part due to Blum's efforts. The Supreme Court is now considering cases he brought targeting affirmative action at the University of North Carolina (the nation's oldest public university) and Harvard (the oldest private college).

• Students for Fair Admissions Inc. v. President & Fellows of Harvard College (SCOTUSblog)
• Students for Fair Admissions, Inc. v. University of North Carolina (SCOTUSblog)

Blum said his group has 22,000 members, but none is identified by name in either court case. "Well, in the world of social media, it is no surprise that 17- and 18-year-old kids do not want their names made public," he said.

Blum has previously spearheaded two cases in which the Supreme Court struck down voting polices designed to help racial groups (particularly African Americans and Hispanics) that have endured prior discrimination. But he lost a 2016 case in which he backed Abigail Fisher, who unsuccessfully challenged racial consideration in admissions at the University of Texas.

But today's Supreme Court is far more conservative.

Braver asked, "Were you just determined to keep bringing cases until you got the court to agree with you?"

"Legal advocacy requires a long-term commitment," Blum replied.

There are, in fact, nine states that have enacted bans on racial preferences in state colleges, with some reporting a drop in African American and Latinx admissions at top institutions. 

Affirmative action advocates say a nationwide ban would be disastrous.

Mitchell Crusto, a professor at Loyola University New Orleans College of Law, said, "Affirmative action is really trying to treat everyone equally, recognizing that certain groups have been marginalized over the centuries."

Crusto grew up in segregated Louisiana: "Most of the restaurants in town did not serve Black people," he said. "Water fountains were segregated, so there was a white-only and a Black-only water fountain. The Woolworth's department store, you could not have counter service if you were Black."

He is a descendant of generations of enslaved people, and forebears who faced prejudice after emancipation. "A lot of the legacy of discrimination – in housing, in employment – meant that my family was set back century after century," he said.

Even after the Supreme Court mandated school desegregation, most of Crusto's schooling was in segregated Catholic schools in New Orleans. He was a top student, and also, he acknowledges, an affirmative action beneficiary in 1971.

Braver asked, "You knew when you applied to Yale that they were in interested in you not just as a student, but because they wanted to bring in more African American students?"

"Absolutely, absolutely," he replied, pointing out, "Race is just one aspect. I wasn't accepted to Yale because I'm Black. I was accepted into Yale because of all the other things that I am as a person, of which I'm also African American."

Crusto graduated magna cum laude from Yale College, and was admitted to Yale Law School.

He argues that the Supreme Court should uphold its previous rulings that colleges have a genuine interest in including students from different racial groups: "For all students who are at a university, having a diverse campus of individuals with different backgrounds adds to the educational goal of the university," he said.

For his part, Edward Blum, a descendant of Holocaust survivors, contends that when colleges have considered ethnic backgrounds of applicants, it has hurt certain groups: "Back in the 1920s, it's well documented by dozens of historians that Harvard had policies in place to discriminate against Jews," he said. "Fast forward now to the 1990s and 2000s, we believe that Harvard has policies that diminish the likelihood that high-achieving Asians are being admitted."

In fact, Harvard recently announced that nearly 30% of those admitted this year are Asian-American, more than four times the representation in the total U.S. population. 

Still, some Asian Americans are taking a stand against affirmative action plans that tend to help other minorities.

Rutvij Holay, whose parents were born in India, is the founder of the Americans for Equality Political Action Committee. He said, "Even if tomorrow they give preference to Asians, I'll be just as opposed, because the idea is that ideally we should all be treated equally, and there really should be a level playing field for all of us."

A straight-A student in Irvine Calif., Holay was just admitted to one of the nation's top schools: Stanford University. But he also applied to Ivy League schools. "I applied to all of them except for Harvard," he said.

And did he get into any of them? "Nope."

Braver asked, "Do you have a feeling that maybe racial preferences might have had something to do with that?"

"Yes," he said. "Look, I look at the data, right? I'm not going off of a feeling, because the college admission process has been very good for me. But I think everyone has to acknowledge that there is a level of discrimination that occurs."

Chelsea Wang, a Harvard sophomore, is co-president of the Harvard-Radcliffe Asian American Association. She participated in a pro-affirmative action demonstration before the Supreme Court heard arguments on the cases last fall. There was also an Asian American anti-affirmative action demonstration, underscoring how divisive the issue is among Americans, of all races.

Wang said, "I think this case has the potential to really pit Asian Americans against other minorities.  And I don't want that to happen. I think we should all, you know, understand, like, what other people have gone through and support them."

Wang argues that it is a question of basic fairness. "You know what? I wish we didn't have to have affirmative action," she said. "I think we have to have it, because all of the different, compounding forms of inequality that affect someone's life before they even apply for college, call for something that accounts for those factors."

• "When does it end?": Supreme Court weighs nixing affirmative action in higher education

Still, Edward Blum believes there are other ways to get a diverse student body.

Braver asked him, "This is not news to you that some people think your actions over the years have showed that you're racist or bigoted in some way. How do you respond to that?"

"I think that's an easy, sort of intellectually lazy way of making an argument," Blum replied. "Let's have a debate about the policy."

"If these policies go away, will it not just advantage Asian American applicants, but maybe also white applicants?"

"It's unclear who this is going to advantage," said Blum. "It's going to be up to Harvard, it's going to be up to UNC to change their policies to make them, first, colorblind … that's the goal. Make them colorblind."

But with many legal experts predicting that the Supreme Court will strike down affirmative action, advocates like law professor Mitchell Crusto are worried that decades of progress for underserved minorities will be set back: "If the Supreme Court decides to ban the use of race, I think they'll go down in history as being one of the most conservative, reactionary, white supremacist Supreme Courts that we've ever seen," he said.

     
For more info:

• Students for Fair Admissions
• Mitchell Crusto, Loyola University New Orleans College of Law
• Americans for Equality Political Action Committee
• Harvard-Radcliffe Asian American Association

     
Story produced by Ed Forgotson and Robert Marston. Editor: Lauren Barnello.  

In:
• Affirmative Action