On Monday, a federal lawsuit that says Harvard University discriminates against Asian American students in its admissions process begins its trial in Boston’s federal court. The stakes are high for the future of affirmative action.
The man leading the effort, Edward Blum, is a conservative legal strategist who says colleges should not consider race in admissions. Blum, who leads the nonprofit Students for Fair Admissions, is a serial filer when it comes to programs that consider race and ethnicity.
He was previously involved in the Fisher v. University of Texas, Austin case, where a white woman named Abigail Fisher who was not admitted to the university claimed that its racial diversity plan, not her academic record or other application considerations, were to blame. The college considers a number of factors, such as grades and test scores as well as personal qualities, such as leadership, family background, socioeconomic factors, and race.
In 2014, Blum filed another lawsuit arguing that Harvard discriminates against Asian Americans in its personal rating category and practices “racial balancing,” which universities are no longer allowed to do. It also focuses on records showing Asian students had the best academic records but had the lowest admissions rate.
The U.S. Supreme Court ultimately upheld the UT Austin’s program in 2016. As things stand now, universities have to do a lot of work to ensure that admission policies considering race are effective and look at a variety of factors and qualities, as per the U.S. Supreme Court’s ruling in Grutter v. Bollinger, a 2003 case upholding affirmative action at the University of Michigan Law School. This lawsuit is likely an effort from Blum to expand the assault on race conscious admissions from just focusing on public colleges to including private universities, Ted Shaw, director of the Center for Civil Rights at the University of North Carolina’s Law School, told NPR.
Conservatives have focused on Asian students to dismantle affirmative action programs for a long time. Rep. Dana Rohrabacher (R-CA) introduced legislation in 1989 that was supposed to look into whether Asian applicants were discriminated against in college admissions processes. At first, the legislation had bipartisan support, but it later lost support from the Japanese American Citizens League and Organization of Chinese Americans out of concern that it was actually an attack on affirmative action. When a coalition of over 60 Asian American groups said Harvard committed civil rights violations against Asian students in its admissions process in 2015 — more than Asian American advocacy 130 groups signed a letter opposing the complaint — Rohrabacher attended the press conference.
Dana Takagi explained in her 1992 book, The Retreat from Race: Asian-American Admissions and Racial Politics, what Republicans were doing by focusing on Asian-American applicants:
Although Republicans references to less-qualified non-Asian students avoided describing students by their race, the general political discourse about race in the United States, especially with regard to Asian admissions, suggested the less qualified students were black or Hispanic. Popular interpretations of “less qualified” were nearly always associated with affirmative action and particular races — black, Hispanic, or Native American.
None of this is to say that Asian Americans don’t experience discrimination in the admissions process, but protesters opposing the lawsuit told the New York Times on Sunday that these issues won’t be solved by targeting affirmative action policies.
A Boston College student, Jennifer Chiao, told the Times, of admissions stereotypes against Asian Americans, “I think these things stem from stereotypes, which is problematic. We’re rating people based on the biases we hold within ourselves.”
There is a popular notion — which results from stereotypes as well as the grouping together of a diverse swath of people under the large umbrella of “Asian” — that Asian Americans always perform well academically and are economically advantaged. This leads opponents of race conscious affirmative action to say Asian Americans don’t need the policy. But this ignores the diversity of Asian Americans, many of whom face face economic barriers.
In 2015, a Campaign for College Opportunity report showed a 60 percent variation in college attainment across all subgroups in the Asian American community in California. For example, 70 percent of Indian adults 25 years and older have a bachelor’s degree or higher, but just 10 percent of Laotian adults so. When examining college completion rates at community colleges, there was a 20 percent variation among all Asian Americans.
When considering median household income across race and ethnicity, Asian Americans have higher median incomes than the national average at $71,709, according to a 2014 Center for American Progress report. But when you look at more data, you’ll also see that in 2012, the the Asian American poverty rate was 11.7 percent compared to a white poverty rate of 9.7 percent, and the poverty rate for Koreans and Vietnamese in particular was 13.9 percent compared to a poverty rate of 6.4 percent for Filipinos.
Deborah Archer, director of the Racial Justice Project and professor at New York Law School, explained during a debate on affirmative action in 2015, “Asian and Asian American students benefit from affirmative action the same way that everyone else does. Whenever you allow a university to engage in a holistic review of that student, the student’s going to benefit.”
Archer added, “Not all Asian and Asian American students have access to high quality of education … In particular, Cambodian students, Laotian students do not fare as well academically as Korean students or Japanese students, or Chinese students.”
As this lawsuit proceeds, decades of legal precedent are stake, particularly after the introduction of U.S. Supreme Court Justices Brett Kavanaugh this year and Neil Gorsuch last year. According to a study analyzing the ideologies of potential U.S. Supreme Court nominees in 2016, Gorsuch would favor getting rid of affirmative action programs. Kavanaugh’s past comments on the issue do not indicate that he would be supportive of these policies either, including a leaked 2001 email in which he calls an affirmative action regulation at the Department of Transportation (DOT) a “naked racial set-aside.”