Abigail Fisher, who challenged the use of race in college admissions, speaks to reporters outside the Supreme Court in Washington on Wednesday. With her is Edward Blum, who helped bring the case to court. (J. Scott Applewhite / AP)

Like a lot of veterans—or old fogies, take your pick—of the political uprisings of the late ’60s and early ’70s, I’ve watched the growth of the new college protest movement with avid interest. I was heartened by the determined young activists who stood up to entrenched racism at the University of Missouri. I’ve also applauded—with a few quibbles here and there—the many others who, inspired by the Black Lives Matter struggle, have raised demands for greater diversity on campuses across the country. On Wednesday, those demands made their way to the Supreme Court—not directly, but in effect, during the oral arguments heard in the case of Abigail Noel Fisher v. the University of Texas. Filed in 2008 after her application to UT was rejected, Fisher’s case was originally considered by the Supreme Court in 2012-13 but was sent back to the 5th Circuit Court of Appeals. It is now before the Supreme Court for a second round of review. Fisher’s complaint challenges the university’s consideration of race in its undergraduate admissions program. If she prevails on all of her claims, the last tepid vestiges of race-conscious affirmative action will end, not just at UT but at public colleges and universities throughout the land. Private institutions that receive federal funding subject to Title VI of the Civil Rights Act of 1964 would also be bound by a Fisher victory. Such an outcome would deal a body blow to the central aims of the new student movement, as well as to the cause of civil rights generally. The Fisher case thus packs landmark potential, and warrants close examination. Like every lawsuit, Fisher’s tells a story—not only about abstract legal rules and regulations but about people. The most important cases, such as those that reach the Supreme Court, also tell stories about political power and competing social and moral values. Fisher’s saga as a litigant began in 2005, when a former stockbroker and failed Republican congressional candidate named Edward Blum (no relation to yours truly) founded the Project on Fair Representation (POFR) in Austin as a nonprofit legal defense fund under Section 501(c)(3) of the Internal Revenue Code. As its website declares, POFR’s mission is to end “racial and ethnic classifications and preferences in state and federal courts.” Its work is financed by grants from the Koch brothers-backed Donors Trust group, a shadowy fundraising organization based in Arlington, Va., that Mother Jones magazine dubbed in 2013 the “dark-money ATM of the conservative movement.” Other beneficiaries of Donors Trust grants, according to Mother Jones, have included the Heritage Foundation, Grover Norquist’s Americans for Tax Reform, the NRA, the Cato Institute, the American Enterprise Institute and The Federalist Society. One of Blum’s first targets as POFR’s director was his alma mater—the University of Texas and its flagship Austin campus, where he graduated in 1973. Blum objected to the university’s 2004 move to reinstate a race-conscious affirmative action program for undergraduate admissions. An earlier affirmative action program had been disbanded as a result of a federal circuit court ruling—Hopwood v. Texas—that held that the consideration of race in college admissions violated the equal protection rights of white applicants. But UT administrators were encouraged to act by a 2003 Supreme Court decision—Grutter v. Bollinger—that had approved the University of Michigan Law School’s affirmative action program. The Michigan system avoided the numerical quotas that the court had disapproved back in 1978 in Regents of the University of California v. Bakke. But it permitted admissions officers to take race, among myriad other criteria, into account in assessing applicants for the purpose of achieving a diverse student body. The new Texas program, which has been slightly modified since its inception but continues to operate pending Supreme Court action, became known as the Ten Percent Plan (TTP). Under it, Texas high school students who graduate in the top 10 percent of their classes are guaranteed admission to the university. Applicants who fail to make the cut are evaluated under a second-tier “holistic” index that not only considers academic records and test scores but also a student’s extracurricular activities, personal achievements, socio-economic background, family circumstances, native language and race, among other criteria. Currently, UT is required to fill 75 percent of the spaces available in each entering freshman class with in-state 10-percent applicants. With another 10 percent of spaces reserved for out-of-state and international students, competition for the remaining in-state slots among non-10-percent residents is fierce. Determined to derail the UT’s use of race as violative of the 14th Amendment, Blum set out in 2005 to locate a good plaintiff to champion a lawsuit. Even though he isn’t an attorney, he had by then become a savvy legal operative, having served, after his unsuccessful congressional bid, as a co-plaintiff in an apportionment case (Bush v. Vera) that made it all the way to the Supreme Court in 1996. In the Vera appeal, Blum and his fellow litigants convinced the high court to invalidate three congressional districts in Texas that had been created to give Hispanics and African-Americans voting majorities. After his triumph in Vera, Blum moved for a time to Washington, D.C., where he worked with the conservative Center for Equal Opportunity and became a visiting fellow at the American Enterprise Institute. He also solidified what would prove to be a long and fruitful relationship with conservative super-lawyer Bert Rein, whose credits included a stint as deputy assistant secretary of state during the Nixon administration.
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