The group behind a sweeping crusade attacking the use of race in college admissions hasn’t won a case yet — and that’s actually good for its cause.
Those lower court losses could carry Students For Fair Admissions’ hopes to ban the use of affirmative action in college admissions to a Supreme Court that may finally have the right combination of justices to vote in their favor.
Legal strategist Edward Blum’s group, which represents about 23,000 students, argues that policies common at U.S. universities put white and Asian American students at a disadvantage. The Supreme Court has allowed colleges to narrowly use race in admissions for decades, but Blum’s group argued in a case against the University of North Carolina at Chapel Hill in November that its race-conscious admissions policy “cynically focuses on diversity at the most superficial level,” “gives substantial preferences” to some minorities and “uses race in a mechanical, formulaic way.”
“The easiest part of my job as president of Students For Fair Admissions is to convince the majority Americans that the use of race and ethnicity in college admissions is unfair,” Blum said in an interview, noting a 2019 Pew Research survey on college admissions that found 73 percent of Americans “say colleges and universities should not consider race or ethnicity when making decisions about student admissions.”
Blum’s strategy has come a long way since his failed attempt to get the Supreme Court to side with Abigail Fisher, a white female University of Texas at Austin applicant who sued in 2008 after believing she was denied entry at the university because of her race.
With an evolved legal approach, the backing of the Trump administration and a newly cemented conservative majority on the Supreme Court bench, Blum may finally have the pieces he needs to push the court to ban the use of race in admissions altogether.
How all of this shakes out could change the way colleges evaluate applicants.
Colleges may be forced to remove students’ names and race and ethnicity checkboxes from their application, and abandon their traditional holistic admissions practices. Education and civil rights groups fear that race-neutral admissions policies will exacerbate inequality for students of color for years to come. A race-blind admissions standard, they say, fails to take into account discrimination and barriers students of color often face.
No students took the stand during trial as part of Students For Fair Admissions’ attack against UNC. Instead, the group represented its thousands of members in the fight without using a jilted student as the face of the battle. Their argument leaned heavily on a statistical model from Duke economics professor Peter Arcidiacono and providing race-neutral alternatives the university could’ve used. A district court decision is expected in coming months.
Blum’s group is similarly suing the University of Texas at Austin again for a third time as well as Harvard, in another case that could be taken up by the Supreme Court next year. He has his sights on Yale, too.
The legal strategy: With a healthy collection of cases, SFFA’s legal machine looks like it doesn’t have any plans to stop waging war on universities’ race-conscious admissions practices until the Supreme Court rules in its favor. And without outwardly naming a student as a lead plaintiff, the lawsuits remain timeless. SFFA can keep suing without worry that a case would be tossed for not being able to show harm to a student who may have graduated from college already.
Not using a face also protects students in the group, Blum said.
“In a world in which social media can cancel the life prospects of a student, it is unwise to bring a lawsuit like this with a group of young people whose social reputation and physical safety may be in jeopardy if their identities are revealed,” he said. “Harvard understood it, UNC understood it, the judges in those two cases understood it. And I think every every parent who has a 17- or 18-year-old kid applying to college who would endeavor to do something like this would be gravely afraid for their child’s identity to be made public.”
Civil rights groups have called SFFA’s barrage of lawsuits against universities “an all-out assault on affirmative action,” after defending universities against SFFA for more than a decade.
“SFFA’s chief goal — I mean, it’s obvious — they want to eliminate the consideration of race all together,” said David Hinojosa, director of the Educational Opportunities Project at the Lawyers’ Committee for Civil Rights. The group represented students who testified on UNC’s behalf and others in Harvard’s case.
“They know what the Supreme Court precedent says — yes, you can consider race by meeting the strict scrutiny standards — but they’re just seeking an activist U.S. Supreme Court that will revisit this and reverse the precedent that we have had for the last 40-plus years,” he said.
The case against UNC is a lot like Fisher, Hinojosa said. SFFA is alleging the university’s race-conscious admissions policy is not narrowly tailored and it is not using race-neutral alternatives that are available. But, it differs from the case against Harvard, which also includes a claim that the university intentionally discriminates against Asian American applicants.
SFFA is also waging legal battles on multiple fronts, with new allies. The group is targeting private and public schools in the jurisdictions of four different courts of appeals — nearly a third of the appellate courts in the country. And Blum has acquired a powerful ally in the Trump administration’s Justice Department, which has supported the group’s challenge against Harvard and pursued its own litigation in October against Yale University for alleged racial discrimination in its admissions process.
“Students For Fair Admissions has been gratified that the Trump administration has supported our goal,” Blum said.
The effect of the presidential transition: The Trump administration has championed race-blind admissions and abandoned Obama-era policies that encouraged universities to consider race. Even after President Donald Trump has left office, the administration’s own battle against Yale using race in admissions could stay alive as it has teed up the lawsuit for SFFA to intervene or even refile it.
DOJ said its legal challenge against Yale was a “result of a multi-year investigation into allegations of illegal discrimination contained in a complaint filed by Asian American groups concerning Yale’s conduct.”
“Illegal race discrimination by colleges and universities must end,” said Assistant Attorney General Eric Dreiband for the Civil Rights Division, when the suit was announced. Dreiband also presented an oral argument on behalf of the group in the Harvard appeal.
But with a Biden administration coming in, SFFA could find itself before the Supreme Court in the Harvard case next year without the backing of the federal government — arguably its strongest supporter.
Education groups are urging Biden to direct the DOJ to abandon SFFA by pulling its support from the Harvard case and to drop the Trump administration’s “unprecedented demand that Yale University cease any consideration of race in its admissions practices.”
What’s next: SFFA is expected to petition to have the Supreme Court hear the Harvard case by mid-April 2021. If the court decides to take up the case, it wouldn’t be heard until the term beginning in October 2021, and there are a variety of outcomes possible.
The high court consistently has ruled that narrowly using race in admissions decisions does not violate the Equal Protection Clause of the 14th Amendment and furthers a compelling interest in educational benefits that flow from a diverse student body. But a university cannot use quotas or racial balancing, and must be able to pass strict scrutiny.
Even if Biden were to direct the DOJ to ditch SFFA once in the Oval Office, Trump’s imprint on the Supreme Court could be enough to secure a win for the group against Harvard.
Only Justices Sonia Sotomayor and Stephen Breyer have ruled in favor of narrowly using race in admissions decisions in the Fisher case. Justice Elena Kagan, who is likely to join Sotomayor and Breyer in a decision, didn’t take part in that case and has not had to rule on the legality of race-conscious admissions practices.
Chief Justice John Roberts, and Justices Clarence Thomas and Samuel Alito dissented against the opinion in Fisher.
Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett have not yet ruled on a case involving race in admissions, but it only takes two of them to side with Roberts, Thomas and Alito to hand SFFA a long-awaited victory.
“Cert petitions to the U.S. Supreme Court come in one size only — slim,” Blum said, adding that he hopes the justices take up the case, but that “it is unwise to speculate on what a specific justice will do with an individual case or an individual issue.”