The Uncomfortable Truth About Affirmative Action and Asian-Americans

The application process for schools, fellowships, and jobs always came with a ritual: a person who had a role in choosing me—an admissions officer, an interviewer—would mention in his congratulations that I was “different” from the other Asians. When I won a scholarship that paid for part of my education, a selection panelist told me that I got it because I had moving qualities of heart and originality that Asian applicants generally lacked. Asian applicants were all so alike, and I stood out. In truth, I wasn’t much different from other Asians I knew. I was shy and reticent, played a musical instrument, spent summers drilling math, and had strict parents to whom I was dutiful. But I got the message: to be allowed through a narrow door, an Asian should cultivate not just a sense of individuality but also ways to project “Not like other Asians!”

In a federal lawsuit filed in Massachusetts in 2014, a group representing Asian-Americans is claiming that Harvard University’s undergraduate-admissions practices unlawfully discriminate against Asians. (Disclosure: Harvard is my employer, and I attended and teach at the university’s law school.) The suit poses questions about what a truly diverse college class might look like, spotlighting a group that is often perceived as lacking internal diversity. The court complaint quotes a college counsellor at the highly selective Hunter College High School (which I happened to attend), who was reporting a Harvard admissions officer’s feedback to the school: certain of its Asian students weren’t admitted, the officer said, because “so many” of them “looked just like” each other on paper.

The lawsuit alleges that Harvard effectively employs quotas on the number of Asians admitted and holds them to a higher standard than whites. At selective colleges, Asians are demographically overrepresented minorities, but they are underrepresented relative to the applicant pool. Since the nineteen-nineties, the share of Asians in Harvard’s freshman class has remained stable, at between sixteen and nineteen per cent, while the percentage of Asians in the U.S. population more than doubled. A 2009 Princeton study showed that Asians had to score a hundred and forty points higher on the S.A.T. than whites to have the same chance of admission to top universities. The discrimination suit survived Harvard’s motion to dismiss last month and is currently pending.

When the New York Times reported, last week, that the Justice Department’s Civil Rights Division was internally seeking lawyers to investigate or litigate “intentional race-based discrimination in college and university admissions,” many people immediately assumed that the Trump Administration was hoping to benefit whites by assailing affirmative action. The Department soon insisted that it specifically intends to revive a 2015 complaint against Harvard filed with the Education and Justice Departments by sixty-four Asian-American groups, making the same claim as the current court case: that Harvard intentionally discriminates against Asians in admissions, giving whites an advantage. (The complaint had previously been dismissed in light of the already-pending lawsuit.) The combination of the lawsuit and the potential federal civil-rights inquiry signals that the treatment of Asians will frame the next phase of the legal debate over race-conscious admissions programs.

Just last year, the Supreme Court upheld the constitutionality of the University of Texas at Austin’s affirmative-action program, which, like Harvard’s, aims to build a diverse class along multiple dimensions and considers race as one factor in a holistic review of each applicant. Justice Kennedy, writing for the majority, approved of a university’s ability to define “intangible characteristics, like student body diversity, that are central to its identity and educational mission.” Incidentally, the phrase “intangible characteristics” echoes the sort of language that often describes the individualizing or leadership qualities that many Asian-American applicants, perceived as grinds with high test scores, are deemed to lack. The complaint against Harvard highlights the school’s history of using similar language to describe Jewish students nearly a century ago, which led to a “diversity” rationale designed to limit Jewish enrollment in favor of applicants from regions with fewer Jews, such as the Midwest. If diversity of various kinds is central to an élite school’s mission, an Asian may have to swim upstream to be admitted.

The U.T. affirmative-action case was brought by a white student and financed by Edward Blum, a white Jewish conservative who is also financing the lawsuit against Harvard. Justice Alito’s dissent in the U.T. case said that, in failing to note that U.T.’s admissions practices discriminated against Asians, the Court’s majority acted “almost as if Asian-American students do not exist.” For Asian-Americans—the majority of whom support affirmative action—being cast in the foreground of the affirmative-action debate can be awkward and painful. Affirmative action has consistently been a “wedge” issue, and groups such as Asian Americans Advancing Justice have opposed attempts to use Asian students as the wedge in conservative attacks on affirmative action that may harm black and Latino students. Some simply deny that race-conscious admissions procedures are disadvantaging Asians at all, which avoids confronting a complicated dilemma.

The Harvard lawsuit does raise uncomfortable questions, especially in a time when it is also becoming less comfortable to be an immigrant. Is an admissions process that disadvantages a minority group benign, or even desirable, if that minority group is demographically overrepresented in higher education? Should colleges pursue their interest in a diverse class by limiting admissions of a minority group whose numbers may otherwise overwhelm the class?

Because our legal doctrine prohibits racial quotas, it is currently impossible to have an honest discussion of these questions. The truth is that, in addition to a holistic review of each applicant that considers race as one factor, colleges undertake some amount of balancing so that they do not end up with a class that is swamped by members of any particular race—or with too many scientists, poets, or dancers, for that matter. But admissions offices cannot admit to efforts at racial balancing or anything that sounds remotely like quotas. Hence, Harvard’s litigation position must attribute the resulting race composition and the percentage of Asians in its class solely to the holistic method, admitting to no racial balancing. This account is plausible if, in fact, despite disproportionately strong academic credentials, Asian applicants are severely less likely than white ones to have the special personal qualities that colleges seek. That is the inevitable implication of Harvard’s position, which would be in line with long-standing perceptions of Asians as indistinguishable from one another. The lawsuit may well entail an inquiry into whether Asian applicants’ non-academic qualifications were disproportionately un-special compared to those of white applicants. (In addition to Harvard submitting comprehensive admissions data for discovery in the case, several competitive high schools with large numbers of Asian students are also being asked to provide information about their students’ applications to Harvard.)

But this lawsuit, and much of the discussion of affirmative action that surrounds it, makes a serious error in assuming that, in order to stop discrimination against Asian applicants, race-conscious affirmative action must end. The argument simply proves too much. Continued use of affirmative action of the kind upheld by the Supreme Court is perfectly compatible with tackling the discrimination at issue. The problem is not race-conscious holistic review; rather, it is the added, sub-rosa deployment of racial balancing in a manner that keeps the number of Asians so artificially low relative to whites who are less strong on academic measures. It is also time to look seriously at the impact on Asians (many of them immigrants or the children of immigrants) of the advantage enjoyed by legacy admissions and wealthy families who are likely to give significant donations. It distorts and confuses the debate to lay the preferential treatment for whites over Asians at the feet of affirmative action—or, on the other side, to deny that Asians are disadvantaged in admissions today.