Publisher's note: The author of this post is Harry Painter, who is a writer at the John W. Pope Center for Higher Education Policy. He is a contributor to the Carolina Journal, John Hood Publisher.
After Fisher, Blum seeking plaintiffs rejected because of race
RALEIGH — In June 2013, the U.S. Supreme Court took a step toward weakening racial preferences in university admissions. Ed Blum is trying to end them for good nationwide, potentially starting at the University of North Carolina at Chapel Hill.
Fisher v. University of Texas
at Austin is the ongoing case of Abigail Fisher, a young woman who claimed in 2008 to have been rejected from UT-Austin because she is white. While the 5th U.S. Circuit Court of Appeals rejected her lawsuit, the Supreme Court overturned the decision and sent Fisher back to the 5th Circuit. The justices ruled that in approving UT-Austin's admissions policy, the lower court had not applied the standard of "strict scrutiny" required in affirmative action cases.
The court did not reverse previous decisions upholding racial preferences, but it said Texas' policy was unconstitutional. That is, the courts still allow universities that receive federal money to have racial preferences in admissions, but there is a point at which such preferences become illegal. The exact line is being drawn.
The 5th Circuit in November heard oral arguments in Fisher, but has not issued its ruling. In any event, Blum, whose one-man Project on Fair Representation recruited Fisher, has named UNC-Chapel Hill as one of his next targets. He intends to bring a lawsuit highlighting Carolina's admissions practices.
For the Fisher case, Blum set up UTNotFair.org, a website seeking potential plaintiffs whose enrollment applications were rejected by UT-Austin. He has done the same at UNC-Chapel Hill, the University of Wisconsin-Madison, and Harvard University — UNCNotFair.org, UWNotFair.org, and HARVARDNotFair.org. Those three schools, he believes, are out of compliance with the law as interpreted by the Supreme Court.
As in Fisher's case, Blum — who is not an attorney — will connect his next plaintiff with someone from a network of lawyers he has developed over the last 20 years. The attorneys will argue that because of racial preferences, the plaintiff — most likely white or Asian-American — was rejected and a less-qualified applicant was admitted.
Why do Harvard, Wisconsin, and UNC-Chapel Hill stand out? Blum believes Harvard has a quota for Asians. He says that Wisconsin is "one of the worst" offenders in the nation. A 2011 study by the Center for Equal Opportunity found "an extremely large degree of preferences to blacks and Hispanics over Asians and whites in 2007 and 2008" at the Madison campus.
In an interview with the Pope Center, Blum indicated his main critique of UNC-Chapel Hill's admissions policy was related to an amicus brief filed in the Fisher lawsuit. The brief acknowledged that UNC-Chapel Hill could achieve its aspirations for racially diverse student body without relying on racial preferences. Blum sees that as an admission of guilt.
Specifically, the brief analyzed UT-Austin's Texas Ten Percent Plan and how it might work at UNC-Chapel Hill. That policy, guaranteeing admission to a state-funded university to Texas public school graduates who finished in the top 10 percent of their classes, is a key point of contention in Fisher. Fisher argued that the 10 percent plan is a race-neutral way to achieve racial diversity.
After the 2003 Supreme Court decision Grutter v. Bollinger
allowed racial preferences at the University of Michigan, the University of Texas restored race to its admissions criteria, and that is the action Fisher is contesting.
In UNC-Chapel Hill's Fisher brief, the university said that if it had adopted a race-neutral plan similar to the University of Texas plan, its racial diversity would increase by 1 percent, but its median SAT score would drop by 55 points.
Blum says the brief shows that UNC is unwilling, as required, to try a race-neutral plan — such as a "top 10" plan — before implementing a plan including racial preferences.
Blum said he is "swamped," and that his three websites, as of April 25, had nearly 20,000 visits and hundreds of responses. He added that there are "dozens and dozens of individuals who we believe" may have a legitimate case. He readily admits, however, that finding the next Abigail Fisher is not easy.
"People don't like lawsuits, people don't like courtrooms, and they don't want to be in courtrooms with lawyers."
It wasn't easy for him the first time, either. Despite his UTNotFair enterprise, he was not able to find a suitable candidate until a longtime friend sympathetic to his cause, Abigail's father Richard Fisher, called him. Blum may not be able to rely on such a connection this time.
A challenge to UNC-Chapel Hill's policy, building off of Fisher, could be the death knell for racial preferences if a court rules that the university first must develop a race-neutral plan like the one in Texas.