While the Trump administration’s plans to go after college’s affirmative action policies feels like something we should expect from a Justice Department run by Jefferson Beauregard Sessions III, this isn’t a new fight for the conservative movement. Trump is using the federal government to support a decades long conservative campaign against affirmative action, and civil rights law more broadly.
Affirmative Action Goes to Court
The first time affirmative action went to the Supreme Court was the 1978 case Regents of the University of California v. Bakke. Allan Bakke was in his mid-thirties when he applied to medical school first in 1973, and again in 1974. Despite his grades and test scores making him a strong applicant, he was rejected twice by the UC Davis Medical School.
At the time, UC Davis reserved sixteen seats in its medical schools classes for “qualified” minority applicants. Allan Bakke was white, and he brought his case to court, arguing that he would have been admitted if race hadn’t been a factor. The question before the court was whether or not the school’s program violated the Fourteenth Amendment’s equal protection clause and the Civil Rights Act of 1964.
The court was divided, but a majority agreed with Bakke and ordered UC Davis to admit him. Justice Lewis Powell’s plurality decision found that the school’s use of racial quotas did violate the Fourteenth Amendment, but he also joined four other justices’ opinion stating that using race in admissions decisions was allowed under the Constitution.
In 2003 the Bakke decision was tested in a case brought against the University of Michigan Law School, Grutter v. Bollinger. Unlike UC Davis, the law school did not have a specific quota, but stated that it does use race as one of many factors in admission to serve its “compelling interest in achieving diversity among its student body.” In a 5-4 majority opinion by Justice O’Connor, the court found that this system does not violate the Constitution.
Enter Ed Blum, Human Garbage
Ed Blum is a retired stockbroker from Houston, whose hobbies include dismantling the work of the civil rights movement. Since the mid 90s he’s been bringing cases to the Supreme Court to challenge laws and policies designed to address the history of racial discrimination. His first case arose out of his failed 1992 congressional campaign, and challenged the creation of “majority minority” districts. The Court sided with Blum’s lead plaintiff, Al Vera, in Bush v. Vera and found that Texas’ redistricting plan was unconstitutional.
While history will probably view majority minority districts as a flawed but well-intentioned attempt to increase representation of racial minorities, this was just Ed Blum’s first attempt to roll back race-based correctives. Blum is also responsible for Shelby County v. Holder, a landmark Supreme Court case that gutted the Voting Rights Act and allowed states to enact a wave of voter suppression laws.
Enter Abigail Fisher, Unimpressive White Girl
Ed Blum had spent the intervening years founding the Project on Fair Representation, a non-profit legal defense fund dedicated to challenging laws and policies that benefit minorities.
Following the Supreme Court’s ruling in Grutter v. Bollinger, the University of Texas implemented a race conscious admissions system with a similar structure to the University of Michigan’s law school. While most of the incoming class would be made up of students who were guaranteed admission by graduating in the top 10% of their class from a Texas high school, the remaining seats would be filled using a scoring system that took race into account.
And so in 2008 Ed Blum was looking for a plaintiff. He had launched utnotfair.org, and traveled across Texas looking for an aggrieved white teenager. That same year, Abigail Fisher was a high school senior living just outside of Houston. She had applied to UT Austin, her dream school. Having graduated in the top 12% of her class, she was not guaranteed admission, but rather was considered under the university’s race conscious scoring system. Abigail Fisher was denied admission. Richard Fisher, her father, called his friend Ed Blum.
Fisher I and II
With Ed Blum and the Project on Fair Representation fronting the money, Abigail Fisher’s case made its way through the court system. The Federal District Court in Austin sided with the UT Austin, as did the Fifth Circuit Court of Appeals.
And that’s how another Ed Blum plaintiff ended up going to the Supreme Court. Abigail Fisher had graduated from Louisiana State University before the Court heard oral arguments in October of 2012 in Fisher v. University of Texas. Yet again the court was asked to decide whether an affirmative action policy violated the fourteenth amendment, but in a 7-1 decision the Court ruled that Fifth Circuit hadn’t properly applied the correct legal standard (strict scrutiny) when considering the case, and the case was returned to them.
Don’t feel too bad for Ed Blum though; the next day the court destroyed the Voting Rights Act like he had asked. And a little over two years later, Fisher was back.
In Fisher II, the court finally did consider whether or not UT Austin’s policy was unconstitutional. Ed Blum had started this process when Justice O’Connor, who wrote the decision upholding the University of Michigan’s policy, retired and was replaced by Justice Samuel Alito. Furthermore, the Court’s newest Justice, Elena Kagan, recused herself because she had been previously involved in the case while serving as President Obama’s Solicitor General.
Ed Blum’s intuition about Justice Alito was correct, but the Court ruled 4-3 that UT Austin’s policy did not violate the Fourteenth Amendment. Justice Anthony Kennedy, who dissented in the 2003 Michigan case, voted with Justices Breyer, Ginsburg, and Sotomayor to uphold the university’s policy.
Enter Trump, Fox and Friends Viewer
Even with his loss at the Supreme Court, Ed Blum wasn’t finished fighting affirmative action. The Project on Fair Representation launched two new websites: harvardnotfair.org and uncnotfair.org. Given his track record, it’s not unreasonable to think that Ed Blum will find a plaintiff. Based on interviews he’s given since Fisher and his two new websites, it seems likely that the plaintiff he’s looking for is Asian-American (though watch out Ed, white people don’t support meritocracy if they think it benefits other groups).
But even if he finds another rejected student to lead to the Supreme Court, he still has to deal with a potential 5-4 majority supporting affirmative action. Many court watchers have noted Justice Kennedy’s transformation on issues of gender and race.
And this is where Trump comes in, having been elected with an assist from the voter suppression made possible by Project on Fair Representation. Ed Blum isn’t going to commit to a case until he thinks the landscape on the Court has shifted, but Trump controls the federal bureaucracy. Universities may think that their admissions policies are in line with the Court’s decisions, but are they willing to risk scrutiny by the Department of Justice? Take UT Austin for example: the majority of its minority students are accepted automatically by graduating at the top of their class. Of the students not admitted automatically, the majority of those accepted were white. Why make yourself vulnerable to a Justice Department investigation of your affirmative action program, when it’s not even how most minority students get accepted? Why not just end the program, and simply rely on those admitted automatically to make entering classes diverse?
These are the types of questions universities will be forced to ask themselves under an administration that uses civil rights offices in the Departments of Justice and Education to oppress minorities, rather than defend their rights. Trump is using the federal government to help conservatives circumvent the courts, and intimidate colleges into giving in to their demands.
(SOURCE: Wikimedia Commons)