New York Times

Unofficial Enforcer of Ruling on Race in College Admissions

APRIL 7, 2014

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By ADAM LIPTAK

WASHINGTON — It was the last Monday in June, and the Supreme Court had
just issued its latest decision on affirmative action. The debate was starting
about how much the court had restricted the use of race in college admissions.
But Edward Blum, the legal entrepreneur who had orchestrated the case,
wasted no time. He made a prediction that sounded a little like a threat.

“Those universities that continue using race-based affirmative action,” he
said, “will likely find themselves embroiled in costly and polarizing litigation.”
It is now almost a year later. Admissions letters have just gone out, and there
is no particular reason to think the court’s decision in Fisher v. University of
Texas affected how students were selected. And the lawsuits Mr. Blum predicted
have not materialized.

There are reasons for that, Mr. Blum told me last week. One is that it is hard
to find plaintiffs willing to call attention to having been rejected by a prestigious
institution, to blame that rejection on race discrimination and to persevere
through years of litigation.

“It’s understandable that most teenagers will want to avoid this scrutiny,”
Mr. Blum said, “especially if their character and motives may be besmirched by
others.”

But Mr. Blum does not give up easily. He has started a series of websites
seeking plaintiffs.

“Were you denied admission to the University of North Carolina?” one asks.
“It may be because you’re the wrong race.”

The site features a picture of a student who appears to be Asian-American.

There is a form to fill out and a bit of hand holding. Mr. Blum’s group, the
Project on Fair Representation, “covers all expenses,” the site says. “In every
similar case during the last 12 years or so, no individual was required to appear
or testify in any court or talk to the media.”

The sites — there are also ones for the University of Wisconsin at Madison
and Harvard — will evoke differing reactions.

Civil rights movements have long recruited plaintiffs, and so the sites may be
said to be part of a proud tradition. But some may detect a whiff of the personal
injury lawyer about them.

Mr. Blum was also behind Shelby County v. Holder, which was issued the
day after the Fisher decision and struck down a core provision of the Voting
Rights Act.

He is, he said, “a one-man organization” and “the low-cost, high-volume
producer” of challenges to government programs that rely on race. His group’s
money comes from perhaps a dozen individuals and foundations, he said, and it
goes to pay legal fees. In a Reuters article on Mr. Blum’s work, Joan Biskupic
found that his donors included conservative groups like the Lynde and Harry
Bradley Foundation and the Searle Freedom Trust.

Mr. Blum said the Fisher decision “imposed an incredibly heavy burden on
colleges and universities.” That is not the only way to read the ruling, though it
did require universities that want to use race in admissions decisions first to
show that “available, workable race-neutral alternatives do not suffice.”

Lee Bollinger, the president of Columbia University, said the words of the
Fisher decision largely reaffirmed the court’s 2003 decision in Grutter v.
Bollinger, which upheld a University of Michigan affirmative action plan when
he was its president.

“But if you look at the tone of it,” he said, “you can begin to detect a greater
burden on universities.”

The court, in a 7-to-1 decision that was surely the product of hard-fought
compromise, declined to say whether the University of Texas had run afoul of the
legal standard it announced, leaving that task to the federal appeals court in
New Orleans. The appeals court heard arguments in November and should rule
shortly.

Mr. Blum said the three universities featured in his websites have been
particularly resistant to the Fisher decision.
Stephen M. Farmer, the vice provost in charge of undergraduate admissions
at the University of North Carolina at Chapel Hill, said that the decision
“reminded us what we already know” and that the school continued to review
race-neutral alternatives.

“We have done everything we know how to do to abide by the letter and the
spirit of the law,” he said.

A spokesman for the University of Wisconsin declined to comment on how it
has reacted to the Fisher ruling, and a Harvard spokeswoman went silent after
saying she would ask around.

Mr. Blum did not provide much evidence that the three universities were
outliers, but he did point to a passage from a brief filed by the University of
North Carolina in the Fisher case. It said the university had calculated the
consequences of using one race-neutral plan and found that it would increase
diversity.

If the university had simply admitted any student who graduated in the top
10 percent of a state high school in 2012, the brief said, it would have seen a
slight uptick in “the overall percentage of nonwhite and underrepresented
students who would enroll at Chapel Hill,” from 15 percent to 16 percent.

The brief added that “almost every other indicator of academic quality,” like
grade point averages and standardized test scores, would fall.

Mr. Farmer said that would be a poor bargain.

“The student body that would yield would be a less accomplished student
body that would be nominally more diverse,” he said. “We don’t think that
having a rigid or inflexible approach to evaluating human beings yields the
strongest student body.”

A version of this article appears in print on April 8, 2014, on page A16 of the New York edition with the
headline: Unofficial Enforcer of Ruling on Race in College Admissions.