[Music] the honorable the chief justice and the associate justices of the supreme court of the united states [Music] having business before the honorable the supreme court of the united states had managed to draw near and give their [Music] states in this intentions court this is more perfect i'm chad abumrad so last season we profiled a guy named edward bloom this is a guy who um [Music] according to his critics had almost single-handedly rolled back decades of civil rights law basically by himself wasn't a lawyer wasn't a politician but somehow he sort of found this way to play the courts to cook up just the right case find just the right plaintiff to target voting rights affirmative action all kinds of different laws that take race into account it seemed to us at the time that he was sort of this hidden architect not too much was known about him in fact at the time that we did the story there was a big case of his targeting affirmative action that was coming before the supreme court and there would be these moments where his plaintiff plaintiff he had found this young white woman abby fisher was on the steps of the supreme court giving an interview and he would literally be behind her in the shadows like almost at the edge of the frame we just wanted to know like who is this guy what's his story so uh we produced a profile and uh what i'd like to do in this podcast is update that profile because recently i talked to ed bloom again about what he's up to now and it's really interesting maybe troubling depending on where you stand so i'm gonna play uh a chunk of the original just to sort of set the context and then follow it with the new interview you know if you'd rather not hear the original skip to about minute 17. otherwise producer catherine wells starts us off again we wanted to know like who is this guy so she paid him a visit yeah so i went to tallahassee that's where he lives or he winters in tallahassee you walk in what initially struck you his golden retriever is what initially struck me literally physically nice meeting you of course and i don't know what i was expecting but when you hear about these cases you know they're i mean critics are really people are mad about these cases it is deeply disturbing truly outrageous it's a betrayal of the american people so i go to meet him and your flight from austin to dallas to tallahassee uneventful and on time and good easy good he's like a totally nice guy a regular guy what does he look like like a dad there is something in me that just loves tradition and custom he loves listening to the great american songbook life is a beautiful thing uh frank sinatra as long as i [Music] i love art and museums independent films golf what's this guy's backstory well he's 64. i was born in a small town in michigan my dad owned a shoe store there my mom worked with him in the shoe store what had been your kind of political leanings up to this point well i'm the first republican my mother ever met i hate to use the word typical but it really was a typical liberal jewish household my mother and father were franklin roosevelt harry truman democrats always voted democrat and he said he was that way too all the way through college the university of texas grad school state university of new york where i spent a year studying of all things african literature but he says somewhere along the way his political leanings sort of started to shift i spent a summer in israel living and he says he came out of that experience a little less liberal than he was before and he got married and then in the early 80s he's living in houston working as a stockbroker and we met on our neighbors this particular couple they were new yorkers who had moved to houston both grew up as liberals and the guy he sort of opened my eyes to the world of the neocons the guy introduced him to these magazines weekly standard national review commentary magazine like conservative magazines and this was around the time that the neocon movement was really hitting its stride you had all these new york liberals defecting is what he says thousands of individuals who grew up in the 1960s that started to question the wisdom of these liberal policies and he says slowly slowly over time very gradually he became one of those people in any case fast forward a little bit he's living in houston kind of a garden variety existence and something happens that sends him on this entirely new path basically he and his wife move to a new neighborhood they move from the suburbs into the downtown area more urban and in 1990 when we went to vote for the first time in our new neighborhood i realized that the republican party had not fielded a candidate to oppose the democrat incumbent running for congress this is a district that has almost 600 000 people and you don't have a choice you've only got one person running bloom decided to run himself i lost i don't that was no great surprise to anyone he actually lost by 32 points but along the way something really unusual happened during that campaign he and his wife lark you know they decided they were going to go meet voters in their district they got a giant printout of all of the addresses in the 18th congressional district what was then called a walking list and they just started going door to door meeting people handing out literature and they'd walk down say oak street i would take the even side of oak street and my wife would take the odd numbered side of oak street and we would start to walk and and he says very quickly they realized that the district's shape was funny some houses on one side of the street would be in the district and then houses on the other side wouldn't and sometimes the district would snake down a highway catch an apartment complex come back it just didn't make sense uh this is lark bloom wife of edward bloom it was peculiar because we had maps that we had to follow and it was very odd the way some streets were in the districts and some weren't took a while for it all to really sink in as to how this could happen after i guess about a week of this we realized that neighbors had been separated almost house by house because of their race he comes to believe that the reason this was done was for the explicit purpose to create a majority african-american district this isn't untrue this act flows from a clear and simple wrong part of the reason this was done was the voting rights act of 1965. millions of americans are denied the right to vote because of their color this act was a giant step forward in civil rights you know one of the primary things it did is eliminate barriers to voting like poll taxes and literacy tests all these you know strategies that had been used to keep minorities from voting and then this other thing it did um sort of in a roundabout way through a series of interpretations is it encouraged the creation of districts where the majority of voters were minorities and that's because you know one of the strategies that had been used previously to sort of dilute the minority vote was to take minority communities and they called it cracking they they sort of split them apart into many different districts so that they were never uh in the majority enough to elect a representative right so the voting rights act tried to correct that the 18th congressional district was one of these majority minority districts the district was drawn by the texas legislature to have a slight african-american majority i think about 51 african-american but this was the problem according to bloom the way they got to that african-american majority was by creating this district that zigzagged all over the city and cut through neighborhoods i i could not understand people live close together they sent their kids to the neighborhood schools they shopped in the neighborhood shopping centers they were worried about neighborhood issues to break these neighborhoods apart by race seemed so wrong to me in his mind this law was actually not limiting discrimination but actually perpetuating it well yeah and i don't know what an [Music] average person upon realizing this would have done but i decided to file a lawsuit he decided to sue the state of texas called a few friends who lived in the 18th district a racially diverse group of people an african-american a hispanic and an asian kept looking and looking and looking until i found a lawyer that i could afford seven thousand dollars a month we filed a lawsuit challenging the constitutionality of texas's redistricting plan the basic charge was yes the voting rights act was good in its day but now it was being used as this excuse to segregate people into racially polarized districts it worked its way through the lower courts and to my shock and surprise in 1995 we'll hear argument now number 94 805 george w bush versus alvaro the supreme court took it up and you went to oral arguments yeah we all did mr chief justice and made please to court so there we all are our opponents stepped to the lectern at issuing this direct appeal is the constitutionality of three congressional districts they make their arguments at the court below erroneously rule were racially gerrymandered texas basically said y'all we have to put people together by race the texas legislature has the obligation to satisfy federal requirements and the voting rights act is a federal requirement like remember the voting rights act we're trying to make sure that there are enough minorities in this district so that they have a chance to elect a representative then our advocacy mr chief justice may please the court made his arguments even if strict scrutiny is out bloom's lawyer basically said but look at the math the map is bizarre and the only reason it could have gotten this way is because you're only thinking about race only race think about it that seems messed up isn't that messed up it doesn't matter what your ultimate goal is you cannot use certain forbidden tools race is forbidden by the 14th amendment to be used as a tool in his example the people uh saint mary's you know it's a very tense situation if i'm not asking about this situation do you know any other situation in the law in which we allow race to be used as a surrogate right to be unconstitutional but to use it as a more racism how is this done i thought that's how you said this did you concede that or did you say it would require strict scrutiny you did say that didn't you let me explain why did you say that in your mind let me find out did you say that or not so in the end the supreme court gives out this very uh hair splitty decision that i think gets at this deeper question that in our society and in our discourse we just haven't figured out how to talk about in a way and it basically said this you know look if you're defining race just as the color of someone's skin the government cannot use that in any way that's against the constitution on the other hand if you take this wider view and you look at race in the context of history social context then how can the government address discrimination without taking race into account you they have to so it's this difficult balance you can't look at race but you have to look at race and the supreme court says to texas look all you're doing in this case is sorting people based on how they're labeled on a census you're not looking at that wider context you're not looking at if these communities live next to each other if they share common interests you're just sorting them based on race alone and that's not good enough you can't do that when the opinion came down the supreme court ruled in our favor five to four that was quite a day the day that we won that lawsuit i was i've got the world on a string hooked forever [Music] after that edward bloom decided that this would be his thing it became a passion he would use the courts to try to strike down every race-based policy he could the legal team was taken on the road i recruited plaintiffs in new york virginia south carolina to challenge congressional district plans and we won in each of those states he helped sue school districts in florida and texas to end the use of racial quotas in k-12 magnet schools he went after affirmative action in houston city contracting today houston could become the first city to kill affirmative action that one was actually a ballot initiative and it failed but i've been the architect of over two dozen lawsuits six of which six made it to the supreme court including in 2013 in a five to four vote five to four very divided court the supreme court today struck down a key part of the voting rights act of 1965. the supreme court today struck down a very important part of the voting rights act that key 1965 landmark law it's considered one of the most important pieces of civil rights legislation ever passed shelby county versus holder this decision gutted the voting rights act specifically there was this part of it that said states and counties with a history of discrimination have to check with the federal government first before they go about changing their voting laws basically the federal government was saying look you've been up to all this stuff we're now we're watching you the supreme court said you know times have changed that list was made a long time ago and it's outdated this decision restores an important constitutional order to our system of government this was bloom's biggest victory when shelby county came down i burst into tears i think a lot of people burst into tears when that came down you know it it yeah i and i understand it it is deeply disturbing i am deeply disappointed deeply disappointed with the court's decision in this match this decision is a betrayal of the american people it is a game changer during the civil rights movement people died for the precious right to vote this is congresswoman sheila jackson lee of houston texas i would like to have the supreme court justices go back in time go back in time and march with those who marched after bloody sunday from selma to montgomery ed bloom has a right to his opinion it doesn't mean that it has to be the opinion of the united states i i understand that people were you know gravely upset i also know that there were people who were gravely relieved and gravely gratified yeah but i think what gets a lot of people is that you look at these civil rights videos you see tens of thousands 40 000 people in the streets marching and you hold that and if you make a split screen in your mind you hold that thousands tens of thousands people on one side on the other side you one guy it does make you ask basic questions about democracy that's a false paradigm it's that may be your split screen but that's really not the reality of all of this look in 1964 and 1965 america was held hostage by the legacies of slavery and the chokehold of jim crow fast forward to 2006 the reauthorization of the voting rights act the chokehold had gone away african americans in the deep south registered to vote in numbers that often exceeded whites participated in elections in numbers that exceeded whites in terms of electoral opportunities we have come a hundred and eighty degrees from nineteen sixty we turned those degrees because of the law which you've helped to overturn and and and we don't know to what degree that is the psychology of america changing or the fact that we had a law that kept people in line and now that law is gone and now we see voter id laws coming back into play which i think any like sane person would admit is is an attempt a blatant attempt to disenfranchise people so it feels a little bit strange to i mean i completely agree with you things have gotten better at the same time i think well that was because of the law that's now gone um look laws change laws evolve and and at some point they need to come to an end [Music] so after winning the shelby county case ed bloom turned his attention to affirmative action should universities be able to use racial preferences in college admissions he found a young white woman named abigail fisher abigail fisher believed her race may have hurt her chances to attend the university of texas there were people in my class with lower grades who weren't in all the activities i was in who were being accepted into ut and the only other difference between us was the color of our skin case goes to the supreme court and in that case the supreme court has upheld the affirmative action program at the university of texas affirmative action in higher education is constitutional ed bloom lost but at the end of that original piece he made it clear to us he wasn't given up i'm a long-distance runner if there's something just emblematic about my personality i run long distances and even as the court was coming down with this decision against him he was planning his next move that's coming up next after the break this is more perfect i'm chad abumrad all right so now let's bring the action up to the present after ed bloom lost that supreme court case against the university of texas last year he kept the case going on the state level and he took aim at two more schools i have retained council to litigate harvard's admissions policies and university of north carolina's admissions policies he formed an organization called students for fair admissions and this time the target was perceived discrimination against asian americans case against harvard is in the early stages but i recently called him up to just kind of get an update on this crusade the ultimate goal is to have the supreme court revisit its we think unfortunate opinion in fisher and end the use of race and ethnicity once and for all that's the goal of this organization and this organization will stay active until that happens is this a situation where like with uh ut you actively recruited plaintiffs yes it is it is so i did with students for fair admissions what i did with the university of texas and that is um working with friends and allies who yearn for the day that race and ethnicity is not a part of university admissions set up three new websites harvardnotfair.org unc not fair dot o r g and u w not fair dot o r g w being wisconsin so it was our hope to find students who had been rejected from those three schools willing to join students for fair admissions and let us proceed into federal court and that's that's what we did ed told me he got hundreds of responses to these websites from students who felt like they'd been discriminated against he winnowed it down to just the students he felt had the most merit i talked to the kids i talked to their parents each of those kids and their parents who agreed to join and participate as sort of a participating member in a lawsuit i got on a plane and went to visit with them learned about their background let them ask me questions and who are they what can you tell me about them well uh for the harvard case they are all asian um many of them are uh children of immigrant uh chinese children of first generation korean and vietnamese and they have superlative academic records i mean just startlingly so perfect gpas perfect sats and acts active in sports lots of volunteer efforts and how many how many of them are directly associated with the case that is something that the judge in the harvard case has placed under seal uh wisely and i think uh well we remember what happened with the the harassment of abigail fisher if you don't take your little ass on somewhere maybe if your grace didn't suck you're dumb ass maybe you would have gotten into a good college becky with the bad grades really happy you and your racist lawyer got shot down abby was hounded abby was threatened we learned an important lesson and that is although there may be students who are brave enough to put their name on a lawsuit the consequences can be dangerous and frightening so all of the students involved in those three cases harvard unc and the university of texas have standing as members of the organization and their names their addresses their email will never be made to the public it's a i mean it's a funny thing though because i mean the idea of a plaintiff even if it is often uh in a way a theatrical construct it's strange to have plaintiffs that you can't examine and that you can't say okay who are these people exactly what other circumstances and you're right abigail fisher i think was the subject of some very hurtful kind of harassment at the same time who she was was a helpful starting point for the conversation about whether this should exist i mean affirmative action or whatever we call this doesn't happen in the court it happens in the world it happens in society and this is something that affects all of us well th this is very common in federal lawsuits and the aclu which is a membership organization often sues in the name of the organization disclosing only to the courts their members who have been directly harmed by this so what we're doing is not unusual gotcha okay so uh you've said in interviews on this lawsuit that asian american students are being penalized for being a high achieving minority how do you argue that they're being penalized well in litigation like this we know that the court allows the use of race and ethnicity and admissions what we also know is that you cannot as a university have too heavy of a hand using race and ethnicity and furthermore numeric quotas are completely forbidden and how we show that asians are being targeted in the harvard case is to look at the number of asians that have applied to harvard and what percentage year after year after year has harvard admitted and what we have found is that from 1992 through 2013 the percentage of asians that harvard admits has been remarkably flat in fact in 1992 19 of harvard's freshman class was asian while in 2013 18 were asian now that doesn't mean much until you realize that the number of asians applying to harvard during this period of time better than doubled just a quick note here uh harvard hasn't actually released data on ethnicity and admissions for the years he was talking about so we can't confirm the numbers he just used we know that ed bloom was drawing in part from the national center for education statistics which is a government organization and by the way when he says 19 of the freshman class it turns out the number he was using refers to more than just freshmen if those kinds of data points were presented in court in an employment lawsuit against a major corporation like walmart walmart would lose any judge would look at that and say you've got a quota walmart your employment practices fall afoul of title seven well let me just push back against that for a second um you know i mean the the that idea that you're expressing and the and the sort of the fight uh the sort of the spirit of the lawsuit is premised on this idea that if you take away race-based filtering in admissions that what we would have is a more meritocratic system that's based purely on grades but i mean hasn't the meritocracy isn't that just a myth i mean especially at a place like harvard i mean if you look at the data at harvard you see that people whose parents went to harvard who have family members who went to harvard they get preferential treatment in the admissions process and if you take that out just a few wrongs okay people who have families that can afford to send them to kaplan prep courses for the standardized tests will they get a better leg up and isn't that just kind of affirmative action for white people so there's two ways i want to answer that question the first is that it is not up to me it is not up to this organization uh to dictate how harvard or texas or the university of north carolina fashion their admissions policy the only thing legally that we are advocating for is the end of racial distinctions in the admissions process number two i agree that colleges and universities cannot use just strictly grades and sat scores as an admissions criteria i believe legacy preferences should have been ended at harvard and throughout the country decades ago i think people who write big checks to universities whose children then get a leg up in the admissions process i think that ought to end i think the colleges and universities have an obligation to reach out to kids from disadvantaged backgrounds kids whose family income is small and below average whose parents didn't go to college who maybe grew up in a tough neighborhood colleges should use that and not race if they're going to give a leg up in helping kids from these disadvantaged backgrounds and that means that there will be lots of african-american kids lots of hispanics but also lots of asians and lots of white kids that get you know a helping hand from harvard and princeton and yale and stanford there is no reason why an asian applicant to harvard whose parents are laborers mom works as a maid at a hotel in new york and dad works as a kitchen worker at a chinese restaurant there is no reason why that kid should be penalized and white kids african-american kids and hispanic kids who come from professional backgrounds should be elevated ending racial classifications and preferences and instead substituting socioeconomic preferences is something that both the left and the right can agree on but it's interesting to to think about what might happen in the transitional space between say an ed bloom victory and that remedied admission system because i was just thinking in my mind okay so take take someone like abigail fisher and let's hold her in the right side of our mind and then the left side of our mind let's say you get the harvard case to scotus and you win and the court agrees that there is some kind of quota in place and they no longer support that there should not be any kind of limit on how how many high achieving asian american students get into harvard or any university it's interesting to think of the effect that might have on white applicants like abigail fisher well we make this argument in our lawsuit the argument is that african americans hispanics and whites are getting a preference over better qualified asian applicants so it is very likely and what's interesting is and whites so you leave you we asserted that in our lawsuit so this is not an attempt to i don't know reinvigorate protect white applicants at all of the ivy league and at schools like duke and stanford outside of the ivy league the number of whites is likely to go down the number of asians is likely to go up that's that's why we don't have any whites as plaintiffs in our harvard lawsuit that's why none of the kids that join students for fair admissions to challenge harvard were white is because they're benefiting from the discrimination that asians are suffering there that's edward bloom harvard sent us a statement which didn't directly respond to ed bloom's specific allegations but they did say that they do make an effort to create diversity in their student body because when a student encounters diverse types of people with diverse experiences that student grows and you can read their full statement on our website but we'll also have some additional information about the lawsuits we talked about which again are in the early stages that's it radiolab.org more perfect more perfect is produced by me chad abumrad susie lechtenberg jenny lawton julio longoria kelly prime alex overington and sarah cari with ellie mistahl christian ferris linda hershman david gable and michelle harris special thanks to catherine wells who produced our episode called the imperfect plaintiffs go back and listen to the whole thing if you haven't it's pretty good supreme court audio is from oyea a free law project in collaboration with the legal information institute at cornell leadership support for more perfect is provided by the joyce foundation additional funding is provided by the charles evans hughes memorial foundation you