SOUTH THOMASTON, Maine (Reuters) - Sometime in the next few months, the U.S. Supreme Court will decide two cases that could fundamentally reshape the rules of race in America.
In one, a young white woman named Abigail Fisher is suing the University of Texas over affirmative action in college admissions. In the other, an Alabama county wants to strike down a law that requires certain states to get federal permission to change election rules.
If they win, the names Fisher and Shelby County, Ala., will instantly become synonymous with the elimination of longstanding minority-student preferences and voting-rights laws. But behind them is another name, belonging to a person who is neither a party to the litigation nor even a lawyer, but who is the reason these cases ever came to be.
He is Edward Blum, a little-known 60-year-old former stockbroker.
Working largely on his own, with the financial support of a handful of conservative donors, Blum sought out the plaintiffs in the Fisher and Shelby County cases, persuaded them to file suit, matched them with lawyers, and secured funding to appeal the cases all the way to the high court. Abigail Fisher is the daughter of an old friend of Blum’s - a man who happened to call when Blum was in the midst of a three-year search for a white college applicant who had been rejected despite solid scores. Blum eventually got Shelby County to file suit after trolling government websites and cold-calling a county official.
Blum introduced Fisher’s father and Shelby County officials to the same high-priced but politically sympathetic Washington lawyers, who agreed to work for a cut rate to be billed to Blum’s backers. Neither Fisher nor Shelby County is paying to fight the cases that bear their names.
Over the past 20 years, Blum has similarly launched at least a dozen lawsuits attacking race-based protections. In addition to the Fisher and Shelby County cases, two other Blum-backed cases reached the Supreme Court. One struck down majority-black and majority-Latino voting districts in Texas. The other prompted the court to suggest it might eliminate a major portion of the Voting Rights Act of 1965, which the conservative-majority bench may now be poised to do in the Shelby County case.
A self-described former college liberal, Blum says that over time he came to believe that race-based policies violate the very principles of equality they were created to uphold. Affirmative action, he said, treats whites unfairly and stigmatizes minorities, and the rule that requires certain, mostly Southern, states to obtain special federal permission for electoral changes - Section 5 of the Voting Rights Act - unjustly punishes them for long-abandoned racist practices.
“The original vision has been turned upside down,” said Blum, whose Toyota minivan has license plates reading “1FRSTNE” - short for One First Street Northeast, the address of the U.S. Supreme Court in Washington, D.C.
Blum, who has a runner’s lean build and brown hair flecked with gray, operates from a book-lined office in his white two-story frame house on Penobscot Bay, Maine. He holds an unpaid fellowship with the conservative American Enterprise Institute in Washington and in 2005 formed a not-for-profit legal defense foundation, the Project on Fair Representation, of which he is the sole employee. The organization’s website says it devotes “all of its efforts to influencing jurisprudence, public policy, and public attitudes regarding race and ethnicity.”
The Project on Fair Representation, in turn, is fully financed by a tax-exempt charitable group called Donors Trust, which raises money from a variety of benefactors and directs them to conservative foundations and projects. According to Internal Revenue Service documents, Donors Trust spent about $1.2 million from 2006 to 2011, the most recent information available, on Project on Fair Representation activities. Gifts to charities such as Donors Trust are tax deductible; money given directly to a legal-defense fund that is not a charitable organization generally is not.
Donors Trust, which also handles the administrative side of the Project on Fair Representation, said most of the project’s expenses are for legal fees. Blum said he draws an average annual salary of $50,000, paid by Donors Trust from funds earmarked for his project. He said he and his wife, Lark, a retired insurance agent, also support themselves with income from savings, investments and Blum’s part-time work as a municipal-bond analyst.
Blum said contributors to his project so far this year have included the conservative Milwaukee, Wis.-based Lynde and Harry Bradley Foundation, which gave Donors Trust $100,000 to support Blum’s group after Blum wrote them a pitch letter regarding the Fisher case and asking for support with costs. Bradley Foundation president and chief executive Michael Grebe confirmed the gift.
Another is the Searle Freedom Trust, a foundation of the late drug-company scion Daniel C. Searle, which gave Donors Trust gifts totaling $597,500 from 2005 to 2010 designated for the Project on Fair Representation, Searle’s IRS documents show. Kimberly Dennis, CEO of the Searle Freedom Trust, declined to comment on Blum’s project. Blum and Whitney Ball, president of Donors Trust, declined to name other backers of the Project on Fair Representation.
The practice of finding plaintiffs to tee up test cases at the Supreme Court is not new. Liberal groups such as the NAACP Legal Defense Fund and conservative groups such as the Institute for Justice have been doing it for decades. The organizers typically play prominent roles - either as counsel, as public spokespeople or by filing amicus briefs.
Jon Greenbaum, chief counsel at the Lawyers’ Committee for Civil Rights Under Law, a not-for-profit liberal legal-defense fund that has represented parties on the opposite side of Blum-sponsored litigation, said it is rare that Blum’s donors choose to remain anonymous. “There is an issue regarding the transparency of what’s going on” when financial backers of high-stakes cases are not known to the public, he said.
Blum and Donors Trust’s Ball say the financing of Blum’s work is similar to what is done for liberal causes, and say people have many reasons for seeking to give anonymously.
Blum was born in Benton Harbor, Mich., and moved around as a child. His father, Joseph, was a salesman, mainly of shoes. During a tough time when they were living in Florida, Blum said he drove with his father up to North Carolina textile mills to buy bulk loads of women’s underwear, and peddled the packs along the road back South. “He sold them in motels, coffee shops, wherever blue-collar women would give him four bucks for a pack of underwear he bought for a buck and a half,” Blum recalled.
He speaks in plain-Midwestern tones sprinkling his conversation with the Yiddish word emes (pronounced “EM-ess”), which means “truth.” A 1973 graduate of the University of Texas, Blum said he started out as a Democrat, but by the early 1980s began reading the neoconservative Commentary magazine and changed his views. In 1984 he voted for Ronald Reagan. He soon became a successful stockbroker at Paine Webber in Houston. Then, in the early 1990s, came the “acorn that began all my activities,” Blum said.
After noticing that his heavily Democratic district had trouble fielding a Republican congressional candidate in 1990, Blum decided to enter the 1992 Republican primary. He won it, and in the general election faced an African-American incumbent Democrat. When Blum and Lark walked the district to shake hands with voters, he said, he had to carry a map because the borders zigged and zagged. “Multi-ethnic neighborhoods were split apart,” he said. “Block by block. Blacks over here. Whites over here. Hispanics over here.”
Blum lost by a wide margin. At the time, court challenges were starting to mount over “majority minority” districts like his that had been gerrymandered to consolidate minorities and maximize their voting power. In 1993, the Supreme Court ruled that districts appearing to segregate voters by race, even if designed to help minorities, violate the Constitution’s guarantee of equality. Blum decided to sue Texas officials, alleging the districts unlawfully segregated voters by race.
He enlisted five local Republicans to join him, including Al Vera, then a high school government teacher, who became the lead plaintiff. Their complaint went to the Supreme Court. That 1996 case, Bush v. Vera, struck down two majority-black and one majority-Hispanic districts in Texas and ordered the boundaries redrawn. Now retired, Vera said Blum is “like a bulldog once he attaches onto an issue he believes in.”
Blum says he personally fronted about $100,000 of the legal fees in the case, which eventually rose to about $1 million. He initially retained regional lawyers, then sought out a large Washington firm whose top partners had served in Republican presidential administrations. Blum said he and the lawyers eventually recouped virtually all their money, as winners’ legal fees are reimbursed in some civil-rights cases. Bert Rein, partner at the firm now known as Wiley Rein, said he doesn’t recall specific fees but Blum’s account sounds right.
Blum went to court to watch oral arguments. He felt so vindicated that he decided to devote himself nearly full time to the fight against race-based laws and policies. “Seeing how the whole thing can be put back together with litigation,” he said, changed his life. “It really is the emes.”
In 2000, Blum moved to Washington and began working with likeminded conservatives. He spent several years as a senior fellow with the Washington-based conservative Center for Equal Opportunity, and abruptly left in 2006 after a falling-out with Linda Chavez, the center’s president. Neither Blum nor Chavez would discuss the circumstances. By his own admission, Blum operates best solo. “With partners, everyone wants to be the shiniest apple,” he said. “Operating alone, I don’t need to address that.”
By the mid-2000s, the makeup of the Supreme Court had tilted rightward, and Blum sensed another opportunity. John Roberts succeeded the late William Rehnquist as Chief Justice in 2005, and in January 2006 the conservative Samuel Alito replaced the moderate Sandra Day O’Connor, who several years earlier had cast the crucial swing vote upholding affirmative action in college admissions at the University of Michigan.
Following the Michigan decision, the University of Texas had instituted a modified version of an affirmative action program it had previously discontinued because a lower court in Texas had blocked it. The university guarantees admission to all state high-school graduates in the top 10 percent of their class, but under the new arrangement also allows in some minorities with lower scores in an effort to enhance diversity.
Blum figured if he could find a white student who had been rejected with a record that exceeded the lower criteria used for some minority applicants, he might be able to persuade a majority of the nine justices on the Supreme Court that the practice was unconstitutional. Blum said he also wanted someone temperamentally suited to the long haul of litigation.
He set up a Web address, utnotfair.org, which asked spurned University of Texas students to contact Blum and relate their experiences. He gave speeches to the Young Conservatives of Texas and similar groups, and hounded everyone he knew in the state. “I could bump into people in restaurants and bars that I knew from high school in Houston that had kids graduating from high school,” he recalled. “And I was such a noodge: ‘If she doesn’t get in, I want to represent her.’”
He says he heard from many students, but after two and a half years, none still seemed right. Someone might have had strong grades, he said, but didn’t seem like a person he could work with for a long period or “expose to the press.”
Then, in March 2008, Blum got a call from his old friend Richard Fisher. Blum had met Fisher, an accountant, through business even before Fisher’s daughter Abigail, then 18, was born. The Blums and Fishers had socialized together over the years and Blum attended the wedding of Abigail’s older sister. Fisher, also a Republican with what he says are strong conservative views, knew of his friend’s search.
Fisher told Blum that Abigail had just received a rejection notice from the University of Texas and was heartbroken. He described her scores, and the men agreed she might make a strong candidate to challenge the Texas admissions system. Blum said he told Fisher: “I want you to prepare Abby for being under a microscope.”
Abigail, a slight, strawberry blonde, said she told her father she was willing to lend her name and story to a court case, but she wanted to go about her life privately. “I assumed that whatever would come of it would take a really long time,” Abigail said. “It would be for others.”
Blum told Richard Fisher he had financial backing and Fisher would not have to pay a cent in legal fees. Without Blum’s access to funds, Fisher said, he would never have proceeded. Blum would not discuss the cost. But lawyers who argue regularly before the Supreme Court say constitutional challenges that start in district court and wind up at the high court could cost a total $2 million or more in legal fees.
Blum retained the Wiley Rein firm again, and within a couple of weeks, the lawsuit now known as Fisher v. University of Texas at Austin was filed at the U.S. District Court in Austin. The lower court sided with the university in 2009, upholding its affirmative action plan. A panel of the Fifth Circuit Court of Appeals later agreed. Abigail, meanwhile, had enrolled at her second-choice school, Louisiana State University.
A few months after Blum snagged Abigail Fisher, he found another plaintiff to challenge a policy he abhorred as much as affirmative action: Section 5 of the Voting Rights Act, which requires all or parts of 16 states with a history of discrimination to obtain federal approval for any election-law change.
While surfing the Web one day, he saw on the Department of Justice’s site that the agency had rejected a voting map in the city of Calera, at the southwestern tip of Shelby County in central Alabama. That new map dramatically enlarged one of the city’s voting districts, diluting African-American voting strength.
Blum picked up the phone and called the attorney for Calera and greater Shelby County, Frank “Butch” Ellis. The two men immediately clicked. Ellis said he had long been chafing under Section 5 and was intrigued by Blum’s call.
At the time, another Section 5 case that Blum was helping finance was already at the Supreme Court. That case, filed by the Northwest Austin Municipal Utility District #1, claimed the South had changed, and the requirement that federal permission was needed for election changes was an anachronism. Blum told Ellis that if the Texas utility case didn’t strike down the rule, he thought the Shelby County situation might one day make a better case.
When the Supreme Court in 2009 sidestepped the issue of Section 5’s constitutionality and ruled on a narrower issue, Blum called Ellis again. Like the Fishers, Ellis was enticed by Blum’s promise that the county’s challenge would cost it nothing. Shelby County v. Holder was filed in April 2010, at the U.S. District Court in Washington. Last May, the U.S. Court of Appeals for the D.C. Circuit upheld the lower court’s ruling against Shelby County, and in November, the Supreme Court agreed to hear the case.
Bert Rein of the Wiley Rein firm, which Blum retained for both Shelby County and Fisher, declined to discuss its fees. When asked how much money he thought each case would cost, Blum said, “Low six figures.”
On the morning of February 21, 2012, when the Supreme Court announced it was taking the Fisher case, its eponymous plaintiff was still in bed in her Baton Rouge apartment, just a few months from graduation. Her father called to tell her the news, and Abigail began jumping up and down in her pajamas. “That was the most excited I had been throughout the four years,” she said. “My dad and Edward were way more passionate about it.”
Blum then stage-managed some publicity for Abigail, who previously had not appeared in public in connection with the lawsuit. He hired a small production company to make a YouTube video about the case, featuring critics of the university’s program and Abigail. In it she said students had been accepted with lower grades and fewer activities than she had, and the “only other difference between us was the color of our skin.”
University officials say such differences arise from their interest in bringing together as diverse a group of qualified students as possible. They acknowledge that some minority applicants with lower scores than Fisher have been admitted. But they also say that a significant number of African-American and Hispanic applicants with scores identical or higher than hers have similarly been denied admission at the highly competitive campus.
On the morning of Supreme Court oral arguments in October, Blum arranged a car and driver for himself, Abigail and her parents. When they arrived at the court building, they tried to avoid the protesters in the front, most of whom supported affirmative action and were carrying signs with messages such as “diversity works” and “expand opportunity.” Blum and the Fishers headed for a rear door, but were turned away because it was only for employees. They eventually found the proper entrance and took seats in the rear of the courtroom.
After the hearing, standing in front of the marble-columned building surrounded by her parents, lawyers and Blum, Abigail recited from memory a statement Blum had written for her.
She thanked the Supreme Court for hearing her case and the lawyers for representing her. “I hope the court rules that a person’s race and ethnicity should not be considered when applying to the University of Texas,” she said.
It did not occur to her to thank Blum, she said. He had not put that in the statement.
Reporting by Joan Biskupic; Editing by Amy Stevens and Howard Goller