On Oct. 31, the U.S. Supreme Court will hear two cases that could fundamentally reshape higher education across America. In both, the same man is pushing to end race-conscious admission policies—a goal he’s been working for years to achieve.
The lawsuits, which challenge the legality of admissions policies at Harvard College and the University of North Carolina (UNC), are the latest in conservative activist Edward Blum’s mission to erase the consideration of race and ethnicity in American law and society, including from policies that were enacted to combat historic racial discrimination.
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Both cases ask the Supreme Court to strike down Harvard’s and UNC’s policies and preclude any consideration of race in admissions going forward. Such a decision would go against over 40 years of precedent set by the Supreme Court, which has repeatedly ruled that it is legal for schools to consider race as one of many factors in admissions decisions because of their compelling interest in the educational benefits of a diverse student body. In fact, Blum has tried this before and lost: He recruited Abigail Fisher, a white woman who was rejected by the University of Texas at Austin, to challenge the school’s consideration of race in its undergraduate admissions system. In a 4-3 decision in 2016’s Fisher v. University of Texas at Austin, the high court ruled that the school’s policy could stand.
But now the court has a six-Justice conservative majority, and its ruling last term that struck down the landmark 1973 abortion decision Roe v. Wade demonstrated its willingness to overturn decades of precedent. Blum, 70, is now back before the bench, this time challenging both Harvard’s and UNC’s policies. (Blum, who is not a lawyer, co-founded Students for Fair Admissions with Fisher.)
The first case, Students for Fair Admissions Inc. v. President & Fellows of Harvard College, alleges that Harvard’s race-conscious admissions policy discriminates against Asian American applicants, alleging that Asian Americans are less likely to be admitted than similarly qualified Hispanic, Black, or white students. They argue Harvard’s policy violates Title VI of the Civil Rights Act, which bans racial discrimination in institutions that receive federal funding. Harvard responds that it does not discriminate against Asian American applicants and says Blum is using misleading statistics. Furthermore, the school maintains that race-conscious admission policies are legal. Both a federal district court and the U.S. Court of Appeals for the 1st Circuit agreed with Harvard, but the Supreme Court will have the final say.
The Biden Administration will argue before the court in support of the universities. The Supreme Court’s ultimate decisions could impact who is granted access to elite American institutions, which are so often the key to economic success, social mobility, and power in the United States.
“We are advocating before the Supreme Court that diversity is fundamental for thousands of colleges and universities across our country,” UNC’s chancellor Kevin M. Guskiewicz said in a statement to TIME. “For decades, race conscious admissions practices have provided the opportunity of higher education to Americans who want to pursue a college education… I am confident in our holistic admissions policy and its ability to make life-changing opportunities possible.”
Harvard declined to comment and pointed TIME to previous statements. Speaking to the Harvard Crimson in April, Harvard’s chief diversity and inclusion officer Sherri A. Charleston said that Harvard is defending the ability of the school to “be able to consider the whole student in its practices.”
“I’m a historian of race in this country, and I think quite centrally about the ways in which race is a key component to any number of other factors,” Charleston added. “What is at stake here is the ability of colleges and universities across the country to create the kind of diverse communities that I think many people and key research in the area has demonstrated is not only essential to the educational mission of higher education, but is actually essential to the success of students.”
TIME spoke with Blum in mid-October about his career, his lawsuits, and his critics’ arguments. The interview has been edited for length and clarity.
TIME: The decision to appeal to have the court hear this now, is that at all impacted by the Supreme Court’s makeup at this moment?
Blum: All appeals are on a timeline. If you don’t appeal by a certain date, the case is over. So we appealed. Nothing that happened in terms of nominations to the court and new Justices, none of that can matter in formal litigation like this. You’re on a timeline and what happens, happens. I mean, conceivably, if Senator [Hillary] Clinton won in 2016…then we wouldn’t have had [the] Justices that we have now. So you’re just kind of stuck with what you got.
Your cases argue that race-conscious admission policies illegally discriminate on the basis of race, and ask the court to preclude any consideration of race as a factor in admissions going forward. The Supreme Court has repeatedly ruled that it is legal for schools to consider race as one of many factors in admissions processes because they have a compelling interest in fostering a diverse student body. Do you see any educational benefit to having a racially diverse student body?
I think yes. Most Americans believe that a person’s skin color doesn’t tell them anything of real importance about who that person is as an individual. Is racial diversity something that is beneficial to a student body? The answer is yes. However, African Americans are not interchangeable with one another. Whites are not interchangeable. Each individual should be judged as an individual, not as a representative of his or her racial or ethnic population.
You say that there is an educational benefit to student body diversity. But how could schools foster that educational benefit without considering race?
Well, let me back up, because this is a complex question, and I’m perhaps not giving a complete, fulsome answer. What is the benefit of student body racial diversity? Is there a benefit? Some people think there is. I think perhaps there is. But I also don’t want people to think that without racial diversity, a student body at a college or university is somehow or another diminished, that only having racial diversity will lead to a fulsome educational experience.
Let me give an example. Why is it that so many excellent students, highly academically qualified students, choose to go to schools like Spelman and Morehouse and Howard University? Those are historically Black colleges and universities. Is the educational experience for the African American kids at those schools somehow diminished because there aren’t many other students of different races? At the University of Texas at El Paso, [roughly] 85% of the kids there are Hispanic. Are their educational experiences somehow diminished because there aren’t other races there? I say no, and their educational experiences are just as valid without having racial diversity on those campuses as students who attend colleges with racial diversity.
In the instance of HBCUs, I think many critics would respond that those universities were founded in response to Jim Crow segregation that prevented Black students from accessing higher education. Tools like affirmative action, many argue, are meant to combat that history and further racial equity in access to education. What is your response to the argument that losing affirmative action would actually worsen inequality in education?
No, it wouldn’t. In our expert reports in Harvard, our expert showed that if Harvard abandoned legacy preferences, if they abandoned preferences for the children of faculty and staff, if they gave less of a preference to certain athletic teams, stopped giving preferences to kids on the Dean’s List—which means the donors list in in stark terms—and lowered the bar a little bit for kids from a lower socioeconomic strata than the typical Harvard kid comes from, do all of that, and you can maintain racial and ethnic diversity without classifying students by race and then treating them differently by race. There is a way to go about doing this without putting a thumb on the scale.
[Editor’s note: Harvard has submitted its own findings refuting this, and both the district court and the appellate court found that there were no “workable” race-neutral alternatives for Harvard admissions.]
Some of your critics say that considering race in admissions promotes diversity in ways that focusing solely on income background cannot, given that the racial income gap is still stark. For example, the National Urban League found this year that the median household income for Black Americans is 37% less than for white Americans. But even if students of color have wealthy parents, they experience the U.S. education system differently. How do you respond to arguments that until the racial wealth gap and other forms of structural racism within the education system are eliminated, race-conscious admissions are needed to ensure diversity on campus and ensure equal access to higher education?
There will not be a loss of diversity. And there should never be a time in which people are treated differently because of their skin color, awaiting the day that the racial income gaps disappear.
Studies show that racial disparities within K-12 public education still exist, and thus disparities in access to higher education exist. How do you think we as a society can combat those disparities if not through considering race when going through college admissions?
The mission of Students for Fair Admissions, the sole mission, is to end the use of race and ethnicity in college admissions. What happens after that is a different story. We don’t have opinions about what Harvard should do going forward. We have suggested [alternatives], but the court isn’t going to write an opinion that says, “OK, we’re going to end the use of race and ethnicity, and now we’re going to compel universities to do what Blum says.”
Critics say that if Students for Fair Admissions prevails here before the Supreme Court, that would create fewer opportunities for people who suffer from those racial disparities and lessen progress that has been made. Is there anything else you’d like to say in response to that?
The solution isn’t to raise the bar for some and lower the bar for others. The solution is to do something about K-12. That is a huge problem, and I don’t profess to know where to begin.
You were quoted in 2018 saying that you realized you needed “Asian plaintiffs” to challenge Harvard’s policy, and some critics have accused you of “exploiting” Asian American students to further an agenda that will most directly hurt Black and Latino students. What is your response to the argument that your lawsuit will not actually help communities of color, but rather further entrench white generational wealth?
I completely reject that.
Is your belief that an Asian plaintiff would fare better than a white plaintiff when challenging Harvard not itself an argument that in American life there does not exist a level playing field between racial groups?
No. The power of the Harvard lawsuit is the following: The Harvard lawsuit alleges that there are three groups that are receiving preferences in college admissions to the detriment of Asian Americans, and those preferences really amount to a quota and racial balancing. Whites receive a preference, African Americans receive a preference, and Hispanics receive a preference, all at the cost of Asian Americans. So we would not have brought this case against Harvard with a white student because a white student is a beneficiary of racial classifications and preferences at Harvard. The only group that has suffered because of that are Asian Americans. If we were only trying to, I don’t know, promote white hegemony, we wouldn’t have filed against Harvard.
Looking at the body of your work, your critics say your efforts to remove racial preference from American life is premature. They argue racism still exists, thus the consideration of race is still needed to combat that racism. I’m wondering what your response is to that.
Those who advocate for the continuation of racial preferences are advocating for policies that a significant majority of African Americans, Hispanics, Asians, and whites disapprove of. PEW Research has now done two surveys in which a large cohort of Americans were surveyed and asked: Should a student’s race or ethnicity be a factor in college admissions? In 2019, 73% of Americans said no. I believe 62% of African Americans said no, 65% of Hispanics said no, and [roughly] 59% of Asians said no. Around 60% of Democrats said no. That survey was revisited in 2022, and the numbers are just about the same.
If you look at the list of amicus briefs, you have the National Black Law Students Association, the advocacy group Asian Americans Advancing Justice, as well as presidents of HBCUs, filing in support of race-conscious admissions. So you do have leaders within communities of color coming out and saying that the option to consider race in admissions is still needed. What do you make of these lists of briefs?
We know that they are advocating against the convictions of a significant majority of African Americans in this country.
[Editor’s note: In the April 2022 Pew Research survey, 59% of Black adults said race or ethnicity should not be factored into college acceptance decisions. But the results change when the question is posed differently. In a Washington Post-Schar School poll conducted Oct. 7-10, 53% of Black adults said they would oppose the Supreme Court banning colleges and universities from considering a student’s race and ethnicity when making decisions about student admissions, and 74% of Black adults said programs designed to increase the racial diversity of students on college campuses are a good thing.]
Major companies have also weighed in on a brief supporting the universities. These include Google, Meta, and Apple, who argue that corporate diversity, equity, and inclusion efforts “depend on university admissions programs that lead to graduates educated in racially and ethnically diverse environments.” Do you worry at all about the downstream effects on the workforce if you prevail?
If you pull up the 2016 Supreme Court case Fisher v. University of Texas at Austin, look at the brief that was filed by corporations. And compare the list of those corporations in 2016 to the list of corporations who have come out in support of Harvard and UNC. You will find that dozens have no longer joined. They are silent. And I think that speaks to your question, that those corporations may have felt that way seven, eight, nine years ago, but they don’t feel that way today. And I reject the idea that a corporation, their profitability and their dynamism, depends upon colleges treating people differently because of their race and ethnicity.
To your point about the passage of time, obviously this issue has been litigated for many years, and in 2003’s Grutter v. Bollinger, Sandra Day O’Connor wrote that affirmative action must be “limited in time.” She said that by 2028 such policies might no longer be necessary—
She didn’t say that racial discrimination should be over in 25 years. Because racial discrimination will never be over. Antisemitism will never be over. Homophobia will never be over. Those are our tragic human characteristics. And we cannot remedy past bigotry with new bigotry. We cannot we cannot remedy past discrimination with new discrimination.
Do you believe there is systemic racism in America today?
Now you modified that word with systemic. I’m not sure what that means. I hate to turn the tables—
I mean, for example, the way that racism impacts the workforce, the way it impacts who gets hired, who gets promoted, who’s considered successful. The way it impacts the classroom, which children are disciplined, which children are praised, who is considered successful. The way racism impacts health care, whose pain is listened to and whose pain is not listened to. I mean the way that race, and discrimination against certain races that’s been entrenched in America for so many years, the way it still intersects with all of these different systems that drive American life.
So, by systemic, your synonym is really the DNA of American institutions. I reject that completely. If the question is, are American institutions, and by institutions I mean governmental units, education K-12, all the way through education, our corporate world, our worlds of arts and leisure, are they imbued with racist DNA? My answer to that is they are not.
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