A Litigious Activist’s Latest Cause: Ending Affirmative Action at Harvard

In recent months, Harvard University has come under attack in court for allegedly limiting the number of Asian-American students it admits. A Reuters examination reveals how the lawsuit brought in their name arose from a broader goal: upending a nearly 40-year-old Supreme Court decision that has primarily helped blacks and Hispanics.

A civil rights group representing African American and other minority students has recently filed papers seeking to enter the case, arguing they are the “real targets.” They say that if the lawsuit succeeds, the consequences for blacks, Hispanics and Native Americans would be “catastrophic,” and they cannot rely on Harvard to represent their interests.

The lawsuit was not initiated by Asian Americans. It names none in its 120 pages.

Rather, it was started by a conservative advocate, Edward Blum, who over the years has enlisted white plaintiffs to challenge race-based policies. He developed the case that two years ago led to a Supreme Court decision narrowing the Voting Rights Act of 1965. Last week the justices accepted another voting-related case he started, one that could shift voting power from urban, Hispanic districts to rural, whiter areas in Texas.

Blum launched the Harvard case after a prior high-profile effort to overturn university racial preferences foundered. For the earlier case, he had encouraged the daughter of a friend, Abigail Fisher, to sue the University of Texas for allegedly discriminating against her under a diversity policy that favored blacks and Hispanics with lower scores. The Supreme Court rejected the argument in 2013, although it sent the case back for further hearings, and a new appeal is pending at the U.S. Supreme Court.

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The case against Harvard, filed last November in Boston federal court, argues that the university violates civil rights law by holding Asian Americans to a higher standard  to restrict their numbers. The complaint cites studies showing Asian Americans have better academic records than members of other ethnic groups but are disproportionately rejected for admission to elite schools.

Harvard said it does not cap Asian American admissions but looks at each applicant “holistically.” {snip}

Admissions data show that the percentage of Asian American students admitted to Harvard for this year’s entering undergraduate class rose to 21 percent, compared with 17.6 percent a decade ago. Asian Americans number 14.7 million in the U.S., or 4.8 percent of the population, according to the 2010 Census.

The percentage of blacks admitted to Harvard also rose compared with the class that entered in 2006, to 12.1 percent compared with 10.5 percent, as did the percentage of Latinos, by a somewhat wider margin. The gains for these groups appear to have come at the expense of whites, whose percentage in the admitted classes shrank to about 51 percent from about 61 percent.

Blum’s case is still at an early, pre-trial stage. Were it to proceed through appeals courts, it could ultimately be used to overturn the landmark 1978 Supreme Court case of Regents of the University of California v. Bakke, which forbade quotas but permitted colleges to use race as one criterion among many to obtain a diverse class.

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Blum’s newly created plaintiff for the Asian American case is called Students for Fair Admissions. Blum said it is a “coalition of prospective applicants and applicants to higher education institutions who were denied admission” to universities including Harvard. The only student it describes is an unnamed Chinese American who, the suit alleges, was ranked first out of 460 students in high school, achieved a perfect score on the ACT college-admissions exam and was rejected for admission by Harvard in 2014.

Blum said he has successfully solicited about 150 Asian American students to Students for Fair Admissions. He declined to provide names, citing a desire to protect their privacy.

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The group representing the blacks and Hispanics, the Lawyers’ Committee for Civil Rights Under Law, along with a Boston affiliate, lists five Harvard students by name in its request to join the case. The group also includes what it says are the initials and races of another nine students who plan to apply to Harvard.

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In its request to join the case, known formally as a motion to intervene, the Lawyers’ Committee argues that it will be solely focused on the issue of race, while Harvard’s defense strategy could be influenced by other considerations. Both Harvard and Blum, though they are on opposite sides, have objected.  The university counters that its interests are essentially the same as the Lawyers’ Committee’s, and that allowing the group to intervene would complicate the proceedings, by giving it the right to make its own arguments and possibly question witnesses. Harvard also says the Lawyers’ Committee’s involvement could “exacerbate the already significant privacy concerns that discovery in this case will entail.”

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Blum’s efforts have struck a nerve among Asian American groups, which represent people who trace their heritage to several different countries and have varying degrees of wealth, schooling and history in the United States.

“It took a Jewish white guy to start this case,” said James Chen, who runs a San Francisco-based company called Asian Advantage College Consulting. The firm advises students to underplay their ancestry as one strategy for maximizing their chances of getting into a top school. Among some recent immigrants he has worked with, Chen said, “there is a tendency to keep their head down.” Chen said Blum reached out to see if Chen could get students to join his case. Chen said he gave Blum no names but endorses the effort.

On May 15, a coalition of 64 Asian American groups filed a complaint with the Department of Education accusing Harvard of bias. Their complaint, which repeats some of the allegations in the Blum lawsuit, states that it was brought after obtaining “comprehensive evidence from the [lawsuit] filed by Students for Fair Admissions.”

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To hedge his bets, Blum also sued a public institution, the University of North Carolina. A win in that case could be more narrow, since it might be limited only to state institutions. That case was filed the same day as the case against Harvard, also on behalf of Students for Fair Admissions, in federal court in Greensboro, North Carolina. Like Harvard, the University of North Carolina has denied the allegations. The North Carolina case was subject to a preliminary hearing in May.

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Blum, a 63-year old former stockbroker who works out of his home on Penobscot Bay in Maine, also has been traveling and speaking to Asian American groups across the country.

Because Harvard reveals few details about its admissions process, Blum’s lawsuit relies mostly on data provided by outsiders.

One example is a 2009 report co-written by Princeton University sociology professor Thomas Espenshade. The study contends that Asian Americans needed SAT scores 140 points higher than whites, all other variables being equal, to get into elite schools. Blum also cited research by professors he used in the Fisher case. In its court filing, Harvard denied that it discriminates and said it lacked information about the studies to specifically respond to them.

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For a case that he hopes will eventually reach the Supreme Court, Blum has recruited some of the same lawyers, led by Consovoy, that he turned to in the Fisher affirmative action case and the newly accepted voting rights case. He said he has so far raised about $2 million to litigate the Harvard and University of North Carolina lawsuits. He declined to name donors but said the money comes from “the usual suspects,” conservative donors who’ve backed him in the past.

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