Edward Blum is not finished yet.
After years of failed attempts to end affirmative action in college admissions, Blum scored a major victory this summer when the Supreme Court ruled Harvard University and the University of North Carolina Chapel Hill could no longer use the policy to ensure a diverse campus.
Though largely expected, the decision sent shockwaves through the country and sent selective colleges scrambling to meet diversity commitments in ways that comply with the law.
Now, Blum has set his sights on his next target: race-based preferences in corporate America, including diversity, equity and inclusion initiatives that have become commonplace in the private sector.
Taking his fight to the country’s entire business sector may seem like an insurmountable challenge. But legal analysts note that Blum has been underestimated in the past, including when he took on Harvard, and it would be unwise to count him out this time.
Blum’s latest effort, backed by numerous conservative foundations, has prompted law firms across the country to warn clients that the recent court decision could have ramifications beyond academia. While the June ruling did not address corporate efforts to foster diverse and inclusive workforces, some lawyers and advocates are already trying to apply the decision to the employment context, legal analysts say.
Earlier in August, a nonprofit founded by Blum sued an Atlanta venture capital firm, the Fearless Fund, for starting a grant program for Black, female entrepreneurs, which Blum says violates a section of the Civil Rights Act of 1866 prohibiting racial discrimination in contracts.
Members of Blum’s nonprofit say they have been excluded from participating in the program because “they are the wrong race,” the group wrote in a statement.
Blum, a 71-year-old former stockbroker and Maine resident, said in an interview with the Globe that he believes the Georgia case is important because businesses are not allowed to be racially exclusive.
“If you’re a bar in Boston that has a mostly Irish clientele, you can’t discourage people who are Black or who are Jewish [from coming] to the bar,” Blum said. “You can’t do that based upon our civil rights laws. So, if you’re a venture capital fund doing business in America, you can’t say, ‘We’re only going to be doing business with white, male-owned businesses.’”
The Fearless Fund, along with the Tory Burch Foundation, awarded 75 female entrepreneurs grants of $10,000 and $20,000 to help grow their businesses. A few days after it was sued, the fund posted on Instagram: “We are fearless. We are Black women. We are descendants of slaves. We represent women of color. We are in a position to provide economic opportunity and freedom to women of color and will continue to do that work.”
The fund, which says on its website that it aims to remedy historic funding disparities in women of color-led businesses, said in a statement to the Globe that its legal team plans to “vigorously defend” its work.
“Fearless Fund stands strong in its commitment to provide economic opportunity and freedom to women of color, who receive only 0.39 percent of venture capital funding out of more than $288 billion that is deployed,” the group said. “There are systemic structural problems in our system that Blum’s claims blatantly ignore and frankly exacerbate.”
Civil rights advocates are concerned about Blum’s continued push to “attack efforts to address racial inequality in our society,” said Sarah Hinger, a senior staff attorney with the American Civil Liberties Union’s Racial Justice Program.
“It’s not surprising that they’re looking for new targets to challenge,” Hinger said of Blum and his supporters. “The bigger picture is that societally in our culture, we value diversity and the need to ensure that opportunities are open for people of all races. Those values persist.”
Diversity, equity, and inclusion programs have been in place for decades but have been increasingly challenged by conservative politicians in recent years. The college affirmative action decision has “intensified that focus,” said Tyree Jones, partner at the Pittsburgh law firm Reed Smith, which is known for championing diversity.
Employers should proactively revisit how their diversity, equity, and inclusion programs are structured to protect against legal challenges, Jones said. Efforts with quotas, such as those aimed at boosting diversity on corporate boards, are most likely to face legal challenges.
“Looking at the [employer’s DEI] programs doesn’t mean they should abandon those objectives,” Jones said. “It’s how you go about accomplishing those objectives. The devil is going to be in the details.”
Dan Lennington, deputy counsel at the conservative nonprofit law firm Wisconsin Institute for Law & Liberty, believes Blum could be successful in his mission to end race-based preferences in the corporate environment, especially given the June ruling and the Supreme Court’s conservative tilt.
“Any private company that treats employees or customers differently based on race now faces enormous litigation risks,” Lennington said. “The Supreme Court has been emphatic — race discrimination in any form will no longer be tolerated, even in support of benign-sounding policies like diversity, equity, and inclusion. All race-based policies will be put under the microscope of judicial scrutiny.”
Beyond the corporate sector, Blum is also working to remedy one component of the recent Supreme Court decision that he disagrees with — an exemption that allows US military academies to continue using race to assemble their classes.
The nonprofit Blum founded to take on universities, Students for Fair Admissions, recently launched WestPointNotFair.org, a website with a goal of finding recently rejected applicants to West Point, the Naval Academy, and Air Force Academy who contend they were rejected because of their race. The academies, like most of the nation’s top colleges, have for years used holistic admissions policies that consider numerous factors, including race, geographic location, socioeconomic background, work experience and more.
Blum’s nonprofit believes that “there is no compelling interest to our nation’s military effectiveness or security to justify using an applicant’s race or ethnicity as an admission factor to our military academies.”
“It is the hope of Students for Fair Admissions that the service academies will soon end the use of racial classifications and preferences in their admissions policies,” Blum wrote in a statement. “Failure to do so, may result in polarizing litigation.”
A spokesperson for the Defense Department said it is “evaluating the implications of the court’s decision,” and reaffirmed its commitment to diversity.
“We rely on a pipeline of highly qualified American patriots from all walks of life and all backgrounds, which is crucial for our national security,” the spokesperson said in a statement. “Our service academies will keep working to educate the next generation of military leaders so that they can lead our increasingly diverse Joint Force.”
Meanwhile, now that the high court has ruled on the affirmative action case, colleges and universities will have to be cognizant of law firms, advocates, and whistleblowers watching for university admissions policies to run afoul of the law, Blum warned.
He provided an example: the Wisconsin Institute for Law & Liberty is looking into the University of Wisconsin Madison’s application essay questions, admissions handbooks, and prospective student interviews. Earlier this month, the firm also called on the city of Madison to reform a program aimed at supporting entrepreneurs of color.
“You cannot discriminate on the basis of race,” Blum said.