- Special Reports
The homepage of the Project on Fair Representation (POFR) features a smiling photo of Abigail Fisher, the young White woman at the center of Fisher v. the University of Texas, which could end race as a criterion in university admissions.
Edward Blum, founder of POFR, a conservative advocacy group, connected Fisher with Wiley Rein LLP, the Washington, D.C., law firm that will argue her case before the U.S. Supreme Court. Fisher claims that UT discriminated against her because she is White. But the closely-watched case is more than one young White woman’s challenge to UT’s admissions policy because she was rejected. The lawsuit is part of a concerted effort to end race-conscious policies — from universities to the workplace.
The website for the Project on Fair Representation reads: “For the next few years, POFR will devote all of its efforts to influencing jurisprudence, public policy, and public attitudes regarding race and ethnicity in four arenas: voting, education, contracting and employment.”
Such efforts aren’t new — challenges to expanding voting rights and educational opportunity have been bitterly fought throughout American history, through recent times with 2003’s Grutter v. Bollinger, which allowed race as a factor in admissions. But at a time when most universities have reached a consensus about the merits of racial diversity, both how it enhances students’ educational experience and prepares them to succeed in a global workforce, the Fisher case appears out of step with the prevailing ideas in academia.
“There are two levels on which [the lawsuit] is happening. One is a level of objection to civil rights, an aggressive defense of the status quo and an effort to try and make sure nothing changes in terms of segregation — whether at UT or voting power,” said Ian Haney-Lopez, who is the John H. Boalt professor of law at the University of California, Berkeley, where he teaches in the areas of race and constitutional law.
“It’s also part of a larger right-wing movement to tarnish liberalism and break up the coalition that supported the New Deal,” Haney-Lopez said, through encouraging a small section of Whites to view non-Whites as a threat to their status.
High court appeal
Historically, civil rights organizations have relied on the U.S. Supreme Court to expand access to education. In 1950, the Sweatt v. Painter decision opened professional and graduate programs to Blacks at UT and other Southern universities. In 1954, Brown v. Board of Education ruled that separate but equal schools were unconstitutional.
Today, conservative groups seeking to undo race-conscious policies are pushing cases all the way to the high court.
People borrow strategies, said Dr. Eric McDaniel, an associate professor of government at UT. “The same strategy that you used can be the same strategy that beats you.
“They look for the perfect candidate … the NAACP did the same thing,” he said, citing Rosa Parks’ strategic positioning by the NAACP to ignite the Montgomery Bus Boycott.
Picking a good client is “just good lawyering,” said Haney-Lopez. What opponents of affirmative action are doing isn’t the same as what civil rights strategists did, he adds.
“They are not in the same institutional position as the civil rights lawyer. [The civil rights lawyers] were representing a disempowered, impoverished community,” Haney-Lopez said. “If Ed Blum is working with the American Enterprise Institute, he is working with some of the powerhouses of American society.”
Blum’s name appears multiple times in 2003’s The Assault on Diversity: An Organized Challenge to Racial and Gender Justice by Lee Cokorinos. The book explores the network of conservative think tanks, foundations and legal advocacy groups — funded by wealthy Americans — working to end affirmative action and Civil Rights-era laws.
Paying for Fisher
As founder of the Project on Fair Representation, Blum connects plaintiffs such as Fisher with lawyers and fundraisers who help pay for the litigation. Blum works with the Donors Trust, a nonprofit based in Alexandria, Va., which provides funds for legal challenges to race-based policies. According to 2010 records filed with the IRS, the Donors Trust has given considerable money to the American Enterprise Institute, where Blum is a fellow, and a small amount to the American Legislative Exchange Council, which has supported voter-identification laws across the country. The laws have been criticized as unnecessary, and according to the U.S. Justice Department, discriminatory because minorities and poor people would be disproportionately affected.
Blum wouldn’t say how much money had been raised or spent on the Fisher case. “It’s not a considerable amount,” he said, adding that lawyers have been compensated for about “one-tenth of the hours” they will work on the case.
“Here’s been my experience in recruiting top-notch legal talent, whether it’s things I care about or my opponents care about,” Blum said. “Lawyers are anxious to litigate cases like the Fisher case.
“Every now and then a case comes along where money is not the concern,” he explained. “It’s gratifying to find that lawyers will take small amounts.”
At issue is whether the University of Texas exceeded the Supreme Court’s standard in Grutter v. Bollinger. In the 2003 ruling, a majority of the justices agreed the University of Michigan Law School could consider racial diversity in admissions.
As a result of the ruling, UT tweaked its admissions policy, adding race as a criterion in a holistic review process. The university guarantees admission to students who graduate in the top 10 percent of their high school class. Fisher, a student at Stephen F. Austin High School in suburban Houston, fell short of that standard. Her application was evaluated under a separate holistic review process that includes socioeconomic background, school and extracurricular activities and race.
Fisher went on to graduate from Louisiana State University in Baton Rouge.
Voting Rights Act challenge
Blum met Fisher’s father, Richard, through business circles in Houston, where he lived for several years before moving to Washington, D.C. Blum had worked with Wiley Rein LLP before in Bush v. Vera, which challenged the creation of a Hispanic and two African-American majority districts in Texas. In 1996, the Supreme Court ruled that the district boundaries were unconstitutional.
Blum has been involved in other legal challenges in Texas that sought to test constitutional cases. In a 2009 case involving a Texas municipal utility district, he successfully challenged a provision in the Voting Rights Act that requires states with a history of discrimination to seek federal approval before changing voting procedures.
Fisher’s isn’t the only race-based case Wiley Rein LLP is working on. The firm is representing Shelby County, Ala. in a challenge of the preclearance provisions of the Voting Rights Act. Under the law, states with a history of discrimination must have changes in their voting procedures approved by the Justice Department. Other counties and states, including Texas, have joined Shelby County in arguing that states covered by the act have overcome their legacies of racism and should be released from federal oversight.
Like Fisher, the Shelby case, if it makes it to the Supreme Court, could erode civil rights laws.
“There’s a difference between taking account of race to end racial exclusion [of people of color],” Haney-Lopez said, and what opponents of the Voting Rights Act and affirmative action want to do. To them, “every use of race is racial discrimination.”