The court that mostly taketh away to decide if affirmative action stands, chances are it won’t…

Vince Rizzo
7 min readJun 5


Sometime within the next few days, the Supreme Court will be deciding whether colleges and universities retain the right to assemble a student body that reflects the America their students will enter upon graduation. Affirmative action is the hard-won right of American minorities to access educational opportunities that once were the rewards of wealth and privilege. When John F. Kennedy signed Executive Order 10925 into law in 1961, he used the term affirmative action to describe the government’s interest “to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin”. The concept is embedded in our national history, strains of which can be found in all our founding documents, post-Civil War amendments, and Civil Rights policies and practices under LBJ. Extending fairness in other areas like education seems rather obvious.

The Lone Litigator

Those who are opposed to the policy will argue on two fronts, the first is to assert as Edward Blum does, that there is no need for enhanced opportunities for students based on race because that allows colleges and universities to “put a thumb on the scale” or to rig the decision in favor of minority students- what Blum would consider reverse discrimination. Blum has been attacking racial preference policies for decades and has lost numerous cases in court. He has assumed the mantle of a self-anointed lone wolf fighting against governmental overreach. The truth lies elsewhere:

Blum, a self-proclaimed “amateur litigator,” has spent two decades building legal teams and searching for like-minded plaintiffs who also believe that racial preferences violate the equal protection clause of the 14th Amendment. Along the way, he’s found wealthy conservative backers to bankroll much of his efforts, including the Searle Freedom Trustfoundation, the Sarah Scaife Foundation, and DonorsTrust.

- The Boston Globe, “ Meet Edward Blum, the man behind the Harvard affirmative action case,” by Hilary Burns, May 29, 2023

Other critics deny that discrimination is race-based, but is based on wealth and class:

The argument in favor of wealth-based affirmative action was articulated earlier this year in a Slatearticleby three academics-Peter Dreier, Richard Kahlenberg, and Melvin Oliver. They wrote that by giving preference to students on the basis of their low household wealth rather than their race, colleges and universities can still “preserve important gains in racial diversity.” The authors focus on wealth instead of income, they note, because the racial wealth gap is larger than the racial income gap…. low-wealth admissions preferences will not achieve the racial diversity that proponents expect. They seem to forget that in this country, there are many more white Americans than African Americans overall. Although a larger shareof the Black population is low-wealth than the share of the white population in that status, the potential pool of low-wealth applicants will still have a much larger number of white than Black students.

- The Atlantic, “The Problem With Wealth-Based Affirmative Action” by Richard Rothstein, June 1, 2023

White thumbs on the Scales of Justice

Both Blum and the “wealth and class” opponents forget to mention that the thumb placed on the scale in most cases is white. Blum worries about rigging the system in favor of those who have been victims of unequal treatment by the “system” for generations. The sources of the unfairness they have experienced continue today because of its unbridled effectiveness throughout our history:

But much, if not all, of this apparent advantage could disappear because of the ongoing effects of residential segregation.

Compared with those in poor white households, poor African Americans are more likely to live in places with higherpoverty levels, more pollution-spewing industry, greater overcrowding, lesser-quality retail outlets, more exposure to violence and the trauma of discriminatory policing, fewer markets selling fresh food but more fast-food outlets, fewer bank branches but more payday lenders charging exorbitant interest rates, and less access to transportation for better job opportunities. Among 17-year-olds, African Americans are nearly five times as likely as white Americans to be incarcerated in juvenile-detention facilities or adult prisons on any given day. This concentration of disadvantages results in schools that are overwhelmed by students’ social and economic challenges. Students in these schools are less likely to have grades and test scores that make them eligible for competitive colleges compared with white students from families in similar economic circumstances.

- Rothstein

Rothstein’s argument is unassailable unless the court can be convinced by its ultra-conservative majority that its decision is temporal and not cultural. For opponents of affirmative action to argue that it should end because African Americans have finally achieved equality in our society have a wistfulness for the present that is unwarranted. There are forces afoot today prepared to undo the progress made by women, minorities, and the poor based on their belief that enough has been done already. For them, equality of opportunity represents a net loss for their dwindling majority.

Persistent Inequalities

Almost all indicators reveal the truth that while gains by blacks and others have been made, the gains are fragile- vulnerable- to attacks from the right. In addition, the gap between the wealthy and the rest of us continues to grow arguing that inequality is a constant in American life. Education is one area that one can argue breaks the trend. Yet, even here, wealth and class have the advantage:

NYTimes graph

This graph depicts a reality that teachers and parents experience every day. At the heart of the argument to dispose of affirmative action is the canard that educational opportunities should be merit-based and that parents and their students all have equal access to them in their local school systems. The graph shows otherwise as the disadvantaged more affluent peers are separated by factors that are not under their control. Again, advantage and opportunity are linked. Poorer students in the inner cities and larger (big bubbles vs smaller) have a bigger hill to climb in order to overcome the politics of school funding and political interference like we are now seeing in Florida and other MAGA right-wing states.

What is the relationship between race, socioeconomic status and education achievement?…

In this NYTimes graph, the inequalities of opportunity are even starker. The opposition to affirmative action argues that colleges should choose their students based on assessments and conditions that are presented at the time of application- at age 17 or so. The graphs demonstrate the folly of pretending that all students who aspire to college arrive on even terms. They don’t. What the graphs don’t measure is the value to the schools of a more diverse student body that represents the society their graduates will be expected to live and work in.

What is clear is that by getting rid of affirmative action benefits will flow from the underrepresented to the privileged. Those benefits far exceed any harm that would befall them if the policy remained intact. The sheer advantage of wealth and social position supported by legacy provisions allows a student to turn away from their “first choice” to other similarly positioned options. Less advantaged students whose profiles get them into a position for affirmative action to help their cause will be left behind without the luxury of a “safety” choice if affirmative action falls. The question to be considered is which students will be less affected and by how much with a policy that is color-blind to race. As always, the issue for the disadvantaged is a policy’s impact on access and opportunity.

Response to Blum’s Asian Gambit

It is telling that in Blum’s latest attempt to take down any use of race in mitigating generational racial bias, he has elicited the support of Asian Americans whom he claims are now new victims of affirmative action policies. The answer to why he needs to employ Asian students in place of African Americans in his latest suit reveals his willingness to subvert his true intentions. In the end, the benefactors of his lawsuit, if he wins, will be mostly white students and Asians are being used. As journalist Casey Chiang writes in her scathing rebuke to Blum:

With the conservative supermajority, it’s likely that race-based affirmative action will be overturned when the Supreme Court gives its opinion this summer. While devastating, it is my hope that the decision will invite universities to consider new solutions. Still, I will not root for Blum’s victory when he is so clearly using Asian Americans to further his own interests under the flimsy pretense of civil rights.

To my fellow Asian Americans, don’t be fooled by this faux hero. We are being made a pawn — again. Though the Asian American community should not shy away from speaking against injustice, our activism should not be at the cost of other minority groups.

And to Edward Blum — the self-proclaimed civil rights champion — I refuse to be your model minority.

- JoySauce, “Dear Edward Blum, I am not your model minority” by Casey Chiang, January 15, 2023

Affirmative action is given little chance of surviving the conservative tsunami the Federalist Society has delivered to the Court. We are witnessing more than an end to racial preference as a policy goal here, it is more like the end of a moment of political enlightenment tempered with judicial restraint.

Originally published at on June 5, 2023.



Vince Rizzo

Former president of the International Association of Laboratory Schools (IALS) and a founder of a charter school based on MI theory.