Is it all over for affirmative action? Edward Blum, a 71-year-old conservative legal strategist, has spent decades campaigning against “race-conscious” university admissions policies (also known as positive discrimination) in the United States, which, he has argued, disadvantage high-achieving Asian Americans. And he may finally be on the brink of victory: the US Supreme Court is due to rule on two lawsuits brought by Blum’s organisation, Students for Fair Admission, that could force Harvard and the University of North Carolina to rethink their race-based selection processes.
This week, Blum spoke to me about his fight for legal justice, his enduring faith in colour-blindness, and the importance of family values and “tiger moms” in educational success. Below is an edited transcript of our conversation.
Freddie Sayers: When it comes to your lawsuits against racial affirmative action in education, is there one that is likely to dominate at the US Supreme Court in the coming months?
Edward Blum: There are two cases pending. “Students for Fair Admissions v. Harvard”, and a similar case, “Students for Fair Admissions v. the University of North Carolina”. Students for Fair Admissions is a membership organisation that I founded in 2014. We sued Harvard and the University of North Carolina, arguing that their admissions policies violate the current laws regarding race and ethnicity in college admissions. But more importantly, we argued before the court that allowing race and ethnicity to be a factor at all in college admissions violates the Supreme Court jurisprudence, going back years and year, as well as the US Constitution.
FS: Can you explain how affirmative action is affecting admissions to American universities?
EB: The United States law today, as interpreted about 20 years ago by the Supreme Court, allows colleges and universities to put a thumb on the scale — that is, to rig an outcome — based upon a student’s race or ethnicity. In the case of Harvard and other elite universities, that thumb on the scale is now diminishing the opportunity of Asian Americans to be admitted, while boosting that of African Americans, Hispanics and whites. This is not only going on at Harvard, but at Yale, Princeton, Stanford, and dozens of other competitive colleges.
FS: So what you’re saying is that this form of affirmative action actually helps white people?
EB: It does.
FS: How does that work?
EB: Let me give you an example that we presented in court. Take a typical Asian-American, male applicant to Harvard and assume his grades and test scores give him a 25% likelihood of being admitted. Now change the race of that applicant to white and the likelihood that that white student will be admitted goes up to 36%. If you change their race to Hispanic, the likelihood jumps to 75%. And if you change their race to African American, that student now has a 95% chance of being admitted to Harvard. This is not a light thumb on the scales. This is a dispositive policy that prohibits better-qualified Asian Americans from being admitted.
FS: Is it a sense of unfairness towards the Asian American community that drives you? Or is it a defence of meritocracy from first principles?
EB: There isn’t a simple answer. I think what drives me, and what drives this movement, is the belief that America was born with a terrible scar on its history. And that is the history of slavery that then evolved into a history of Jim Crow racism against African Americans. What came out of that, what was bitterly fought for on the battlefields and in the courthouses of America, is the belief that your race and ethnicity should not be used to help or to harm you in any of your life’s endeavours: whether you’re applying for a job, or to college or medical school. So that’s what drives me and that’s what drives, frankly, the vast majority of Americans, who — when polled about the use of race and ethnicity in college admissions, or employment, or in other areas — believe that race shouldn’t be a part of these decisions.
FS: This reminds me of the famous Martin Luther King quote about being judged on the content of your character, not by the colour of your skin. And yet, the phrase “colourblind” has become controversial in recent years. Do you use it?
EB: I do, just as the founders of the modern Civil Rights Movement did. There are, I think, a small minority of Americans who, in good faith, see colour-blindness as a reversion to white supremacy. However, in poll after poll, going back 30 years, Americans celebrate the idea of colour-blindness. They don’t want their race to be used as an element in whether they’re hired or fired, or whether the police pull them over, or whether they’re selected for jury duty. Americans embrace colour-blindness — and it’s not just white Americans, it’s a vast majority of Hispanics, African Americans, and Asians.
FS: What would the future look like if the Supreme Court revokes affirmative action? The most recent Harvard diversity statistics say that African-American students make up 15.2% of the student population, Asian-American 27.9%, Hispanic or Latino 12.6%, Native American 2.9%, and Native Hawaiian 0.8%. Judging by these figures, I guess it means that roughly half would be white. How would that change if you win the ruling?
EB: We did a study for the courts back in 2018, and the premise was, if Harvard only uses grade point averages and standardised test scores as a metric for admissions, it’s likely that Asian Americans will make up about 50% of the incoming freshman class. The number of Hispanics will go up slightly, while the number of Whites and African Americans will go down slightly.
FS: How far down would they go?
EB: African Americans would drop to about 10% of the incoming freshman class, down from 15% now. And, if I’m not mistaken, I think whites came in at around 30%, with Hispanics about 10% — maybe a little bit more.
I believe Harvard will be compelled to change the entire framework of its admissions policy. Right now, there is a significant boost given to students whose parents also attended Harvard — the legacy status. That may change dramatically. The “tips” [leg up] given to certain athletes or those who play water polo or fencing, that may be changed. And more importantly, Harvard may start to lower the bar a little for students who have come from very modest, or even disadvantaged backgrounds, who are the first in their family to attend college, who are raised by a single parent, whose family income falls below a certain level.
FS: Would you approve of that?
EB: We absolutely would. We’ve advocated for this at the Supreme Court. It is an important element of our argument.
FS: So you’re not entirely opposed to affirmative action? You’re only against it on racial grounds. If it gives preference to students based on social economic group or education, you’re all for it?
EB: That’s perfectly said. This organisation is against race-based affirmative action. However, we encourage Harvard and other universities to use socio-economic affirmative action. They should be trying to attract a truly diverse group of individuals, not just in terms of skin colour, but in terms of their backgrounds.
FS: My gut feeling would be that a lot of conservatives would make a libertarian objection — that these are private institutions, and that they should not be told by the state who they can and can’t admit. What do you say to those people?
EB: We have a solution to those objections, and that is that Harvard can forego receiving federal funds. There are a handful of colleges and universities in the United States that have done exactly that; Hillsdale College is probably the best known. If Harvard chooses to not accept federal funds, then they can shape the class in any way they would like.
FS: How would you respond to the Left-wing critique that, unless you force institutions to accept a certain quota of minority people, they will simply go back to prioritising their preferred groups?
EB: I think they’re wrong for two reasons. For one thing, it assumes that the academic gaps between African Americans, Hispanics, whites, and Asians are intractable; that there is no way, based upon the history of the United States, that they will ever narrow. That’s just not correct. It assumes that there is somehow a system in place that prevents this. Asian Americans are outperforming whites academically, despite having fewer resources, less family wealth, and lower income levels.
FS: The cliché goes that Asian Americans have “tiger moms” who make them do their homework and take academics seriously — and that’s why they are so high-achieving. Is that a fair observation?
EB: Well, coming from a Jewish background myself, I had a Jewish tiger mom who didn’t let me hang out at the basketball court with my buddies after school or drive around and see girls. We had to study and we had to achieve. The most important educational institution in the United States, and I think, perhaps in the UK as well, is the family. Learning begins at the cradle, and parents within the Asian community realise that. That’s something which can be replicated among whites, Hispanics and African Americans as well.
FS: So rather than implementing defeatist university quotas, society should be getting to the root of the issue by helping and encouraging parents to improve early life education?
EB: That’s an incredibly important part of the argument, but there is something else that is deeply troubling about race-based affirmative action. That is, in universities that lower the bar for African Americans and Hispanics, we often see students either dropping out because their academic backgrounds are not sufficient to compete, or switching to less competitive courses. This means that students who hope to become doctors, engineers or computer scientists end up graduating with degrees in the humanities or social sciences, which wouldn’t have happened had they gone to a college where their qualifications were better matched. That’s another important element that I think will change.
FS: There’s a practical argument there, that students would reach a better place later in life if they weren’t artificially pushed into places that maybe didn’t suit them.
EB: That’s exactly right, and there’s data and studies to endorse that. Plus, there’s one other element here. We’ve heard it, and we can read it, and we’ve seen it a million times: minority kids on competitive campuses are told that the only reason that they are there is because they are a certain race, not because they were academically qualified. So those kids who truly were academically qualified feel like: “Because the bar is lowered for all African Americans, even though I scored as well as any Asian on this campus, people think I’m here because I’m black.” That’s a terrible burden, too.
FS: Now, I’m not going to try and do a “gotcha”, Mr. Blum, but I do feel like the last couple of arguments would equally apply to affirmative action for people who come from a more deprived background or have had fewer education opportunities — they too would arrive at the college without the necessary preparation and may have to drop out. How is that any different?
EB: That is very true. You may notice that I said “Lower the bar a little bit”. You cannot lower the bar dramatically for kids from disadvantaged backgrounds, just as you cannot lower the bar for kids from ethnic or racial backgrounds. Kids who come from disadvantaged backgrounds don’t walk around campus with signs saying “Family below poverty level”, or “I’m the first in my family to go to college”. You won’t know that just looking at kids from those backgrounds. They may have disclosed it to their friends and others, but you won’t know it.
FS: So there’s less stigma, but is it not similarly defeatist? It puts the onus on these institutions, while, actually, as a society, we need to do better in terms of helping families to look after — and not give up on — their kids.
EB: Trillions of dollars in this country have been spent trying to narrow the gaps in educational attainment between African Americans and Hispanics on the one hand, and whites and Asians on the other. And it has been only modestly successful. We can spend more money, but I think the bulk of the solution is within the family.
And could resources be put there? Sure, but it’s really up to moms and dads to do this. I have been to the homes of Asian students — one-bedroom, very modest apartments in Queens, New York, where mom is a maid at a Midtown hotel and dad is a doorman at an apartment building on the Upper East Side. They have the bedroom, their two children sleep in the living room. Very modest backgrounds. How is it that these kids have done so well in school? Because mom and dad were there and encouraged them. They put their own limited resources into their education. So that’s what needs to be done more than just about anything else.
FS: So there needs to be some uncomfortable home truths spoken to some of these other communities that are underperforming, saying: “Look, we need you to focus on family life and pay proper attention to education.” Do these communities need to take responsibility for the outcomes?
EB: That’s right.
FS: If your case is successful, do you think it will have ramifications beyond the sphere of higher education?
EB: My great hope is that the opinion that comes out of these two Supreme Court cases provides the US with a legal doctrine that can be applied with regards to employment, to fellowships and scholarships, to voting and contracting issues, and that this doctrine will be the beginning of the restoration of the great colourblind covenant that has held together this country through very difficult periods of history. That’s my hope: that the justices give us something that not only applies to higher education, but also to other, very important areas of American life.