When Edward Blum learned Thursday that the U.S. Supreme Court had ruled for the University of Texas in a challenge to its consideration of race in undergraduate admissions, he was more than a little disappointed. So after fielding 100 phone calls, he went to a Thai restaurant, downed three glasses of wine and some noodles, took an Ambien and went to bed.
“I am comforted by the lyrics written by Billy Joel,” Blum said. “He wrote, ‘Lost a lot of fights, but it taught me how to lose OK.’ If you’re going to be litigating difficult issues, you have to be prepared to endure and lose and not dwell on it forever.”
Blum, 64, more than anyone else, is responsible for ushering the case, Fisher v. University of Texas at Austin, to the Supreme Court. The former stockbroker and onetime candidate for Congress is not a lawyer. Rather, he has specialized in lining up funding, lawyers and plaintiffs in a 20-year quest to end the use of racial and ethnic considerations in college admissions, voting rights and other aspects of public policy.
In the UT case that was decided by a 4-3 ruling Thursday, Blum lined up Abigail Fisher to sue his alma mater, where he majored in English and government.
Blum has taken six cases to the high court, assuming you count the UT case twice, which seems fair considering that it was heard by the Supreme Court twice. In Round 1, the high court vacated a lower court ruling that upheld UT’s admissions program and instructed that court to conduct a more exhaustive review to ensure that racial and ethnic considerations were necessary to achieve student body diversity.
That felt like a victory to Blum, which made Thursday’s ruling all the more surprising. Still, his track record isn’t bad.
Of the six stops at the Supreme Court, he has won four times and lost twice, the latter being Fisher II and Evenwel v. Greg Abbott, in which Blum’s legal team contended that Texas’ redistricting practices don’t square with the constitutional principle of “one person, one vote” intended to guarantee equal representation. The justices ruled unanimously to uphold the state’s redistricting methods.
Blum’s take on the Fisher rulings: “I would say that the guidance that the court gave the country in Fisher I is guidance that we hope the higher education community takes seriously. It is my concern that Fisher II, however, will signal to colleges and universities that they have a green light to use a heavy thumb on the scales in administering their affirmative action policies.”
That concern might be overdrawn, though. Writing for the court, Justice Anthony Kennedy said that “it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.” He went on to say that UT must use the data it is collecting “to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.”
Meanwhile, Blum has hopes for lawsuits he lined up against Harvard University and the University of North Carolina at Chapel Hill. Those cases, filed in federal courts in October 2014, contend that well-qualified Asian-Americans are routinely denied admission solely on the basis of race. The lawsuits seek “the outright prohibition of racial preferences in university admissions — period.” Harvard and UNC-Chapel Hill say their admissions programs pass legal muster.