Affirmative Action and Diversity: Asian Americans and Fairness in College Admissions

In October of this year, a US District Court began hearings on a suit filed on behalf of Asian Americans who believe that Harvard (and other elite universities) discriminates against them because of their race.  This is a complex issue with the potential to eliminate the vestiges of affirmative action in college admission.  If the suit is successful, it is likely that white and Asian American students would gain higher admission rates at elite schools at the expense of African-American and Hispanic students.  Hua Hsu produced an interesting assessment of the issues involved for The New Yorker.  His article appeared in the paper version as School Colors, and online as The Rise and Fall of Affirmative Action.

Asian Americans tend to be left-leaning in their politics, and when surveyed, announce that they are in favor of affirmative action.  And, in fact, older Asian Americans well remember riding on the vehicle of affirmative action to overcome discrimination they experienced in years past.

“For previous generations of Asian-American activists, affirmative action was a key component in the struggle for multiracial justice. In the late eighties, the Department of Education investigated a series of claims alleging that Berkeley, Harvard, and other élite institutions had put a limit on the number of Asian-Americans admitted. The claims had been lodged by young, largely progressive Asian-American activists, for whom affirmative action was the solution to the problems they were identifying, not the cause.”

“In most cases, the students’ suspicions of unfairness were well founded, and Asian-American populations at these schools began to grow. This history captures the almost paradoxical position of many Asian-American supporters of affirmative action.” 

It is therefore both ironic and contentious that younger Asian Americans are teaming with conservative activists, led by Edward Blum, who wish to eliminate affirmative action and any other racial considerations in society.  Blum organized students and others into an organization called Students for Fair Admissions (S.F.F.A.) to bring the suit against Harvard.

“If Blum’s suit is successful, the effect will be felt far beyond Harvard. It will limit the freedom that academic institutions have often had in pursuing their unique educational missions. The lawsuit, and Blum’s efforts to change the cultural conversation surrounding diversity and discrimination, could end affirmative action in higher education as we know it.”

Are Asian Americans being discriminated against?  Hsu produced these data.

“S.F.F.A. alleges that Harvard attempts to curate the racial breakdown of each incoming class. In order to achieve classes that, in recent years, have been roughly half white, twenty per cent Asian-American, fifteen per cent black, and twelve per cent Hispanic…”

This source indicates that Asian Americans make up about 5% of public-school students and 23% of those admitted to Harvard’s 2017 freshman class.  Is that a sign of discrimination?  The argument for a higher admission level must be based on a narrow definition of what defines “merit” in college admissions.  The plaintiffs argue that admission should be based on grades and performance on standardized tests only.  The assumption is that Asian Americans work harder than others, including the white students, and they deserve an even higher acceptance rate.  Under that constraint, admissions of both whites and Asian Americans would likely increase at the expense of other minorities, including poor whites and poor Asian Americans.  However, it is well-known that tests like the SAT and ACT are burdened with cultural biases that favor those with higher family incomes.  Is it in the best interests of a university, and of society in general, to create a student environment that favors the wealthy and culturally endowed? 

Do these angry Asian Americans have a legitimate beef or are they merely over-entitled students?  And are they merely tools in a conservative plot to eliminate affirmative action once and for all?  It is notable that Trump’s Justice Department supports the suit against Harvard, apparently seeing this as an opportunity to eliminate affirmative action for the less-entitled African-American and Hispanic minorities.

To address the issues raised it is necessary to review the history of affirmative action and that of prior court rulings. 

“…the first time the government used the term [affirmative action] in relation to race was in March, 1961, when John F. Kennedy signed Executive Order 10925, which required government contractors to ‘take affirmative action’ to help realize the nation’s goal of ‘nondiscrimination’.”

“The premise of affirmative action was that, for African-Americans, the status quo was innately negative. To act affirmatively was to acknowledge the history of denigration and inequity that continued to define black life, and to come up with ways in which the future could be different.”

The intention was good, but a coherent implementation plan never developed.  It would be the courts that stepped in and defined what affirmative action could and could not mean.  Hsu discusses this history, but a more concise treatment can be found in an article by Noah Feldman in the New York Review of Books: Justifying Diversity.

The Fourteenth Amendment would form the basis for most litigation regarding affirmative action.  Adopted in 1868, it was mainly focused on ensuring that the freed slaves would be considered citizens (Citizenship Clause) and that they would have the same rights as any other resident of the nation (Equal Protection Clause).  Any actions to compensate African Americans for centuries of abuse and discrimination became an easy target for court litigation as an infringement on the rights of other groups, particularly whites.  The critical ruling with respect to affirmative action in university admissions came in Regents of the University of California v. Bakke (1978).

“The case was brought by an unsuccessful white medical school applicant who claimed that affirmative action violated equality under the Civil Rights Act and the equal protection clause of the Fourteenth Amendment. His challenge was part of the fascinating—and in many ways horrifying—revisionist backlash against the integrationist jurisprudence of the Warren Court. In a series of close decisions, conservative majorities of the Burger and Rehnquist Courts struck down various types of affirmative action as violating the equal protection rights of whites.”

“These decisions undermined the rationale for affirmative action, which was, its advocates generally maintained, to make up for slavery and segregation by ensuring that African-Americans (and sometimes Latinos) would be able to obtain professional opportunities that had historically been denied them.”

The court had four justices who believed the actions taken by the University of California were legally acceptable as a response to past acts of discrimination.  Among those was Thurgood Marshall who provided this comment.

“…the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.”

Four other justices were ready to declare the actions violated equality protections.  The ninth justice, Lewis Powell Jr., offered a compromise between the opposing views.  Selection explicitly on the basis of race would not be allowed, but race could be considered as a factor a university could use in assembling a diverse student population that it considered necessary to meet its educational goals.  Curiously, Powell arrived at this compromise after reading a brief filed in the case by Harvard University.

“Powell famously got the idea of using diversity as the rationale for affirmative action from the amicus brief filed by Harvard University and flagged for him by his law clerk.  The most famous line from the brief, included in Powell’s opinion, read: ‘A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer’.”

Although a decision was reached, the compromise did not satisfy either those who insisted that affirmative action could be based on remediation of past abuses, or those who were against it under any circumstances.  It would only be in 2003 that Sandra Day O’Connor would write an opinion on diversity that the majority of the court would agree with.

“Powell had emphasized that courts should defer to universities’ stated educational mission. O’Connor preserved the appeal to diversity, but subtly shifted the argument away from the educational benefits of diversity and toward its broader social effects among the graduates of elite institutions. Invoking both businesses and the US military, she insisted that ‘in order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity’.”

While these decisions allow race and ethnicity to be factors in university selection, they do not provide much guidance in terms of how this should be done. 

“In reality, elite institutions do seek to evaluate applicants individually. Yet they simultaneously manage to produce demographically balanced classes according to established proportions of race, geography, and wealth, which do not necessarily correspond to the demographics of the larger population. The balance typically differs only a little from year to year and even less when one compares the classes admitted by all schools of similar standing in any given year.”

“Those consistent results would be highly improbable if the admissions officers were merely evaluating individual applicants on a ‘holistic’ basis, without attention to overall numerical goals. The balanced classes are sometimes defended (although not by Harvard) as creating a ‘critical mass’ of minority students. Presumably, the similarity across institutions satisfies the universities’ desire to include students of many backgrounds while simultaneously protecting them from the criticism that they got the balance wrong by appealing to shared institutional norms.”

The fact that elite universities tend to arrive at fairly consistent fractions of minorities in their admission classes year after year suggests that there might be some form of algorithm at work that “balances” out the numbers.  Any hint of such balancing would provide those determined to eliminate affirmative action entirely with justification for supporting the Asia-American suit against Harvard.

Harvard could argue that its conception of the ideal admissions class to meet its perceived educational goals might arrive at fairly consistent distributions of minorities.  Feldman pores over Harvard’s statements about its intentions and provides this description of the types of interactions between students for which it is aiming.

“The interactions ‘ensure that our students truly engage with other people’s experiences and points of view, [and] that they truly develop their powers of empathy.’ This account strives to make diversity not only useful but an inherent good for an educational community, since different identities generate the different ideas that are necessary for a proper education.”

This is a view that is easy to accept, but it does not define how this mixture of individuals is arrived at.  Feldman finds diversity as a goal to be a rather slippery topic.  He would prefer that a redefinition of what is considered “merit” should be the basis for assembling a “diverse” student body.  Merit should consist of something more complex than just grades and test scores; it should include the potential for contribution to the school and to society from those who have experienced unusual or challenging backgrounds.

“But diversity should not be an end in itself. Rather, diversity should be the indirect result of the goal of inclusion based on forms of merit found in every part of the population and not purely reducible to grades and scores. The university need not look precisely like America. But its classes should reflect a conscientious effort to find and admit the students who are best placed to pursue truth and become future leaders, weighing their abilities and potential in the light of the challenges they have faced. That should logically result in a wide range of students. Diversity could then live on—as an outcome, not as an objective.”

One could argue that this view merely replaces a slippery concept of diversity with a slippery concept of merit. 

Feldman does come up with a firm and defensible view of the suit against Harvard.

“Finally, although the plaintiffs in the suit assert that affirmative action for African-Americans and Latinos is the reason that more Asian-Americans are not admitted, it is very unlikely to be the case. Given current balancing goals in admissions, Asian-Americans are being compared with and balanced against white applicants, not African-American or Latino ones. If there exists unconscious, stereotype-based admissions discrimination against Asian-American applicants, as the suit alleges, that problem must be addressed by examining the unspoken bias and ensuring it does not persist. That might conceivably lead to fewer white admissions and more Asian-American ones. It should not reduce the numbers of African-Americans and Latinos admitted.”

The suit against Harvard is designed to satisfy the conservatives who wish to eliminate race from consideration at all.  Their goal is to minimize for white students any competition from African Americans and Hispanics.  If the Asian Americans have a complaint, it is due to a bias shown them with respect to white students.  That is the battle they should be fighting.

The interested reader might find the following article informative:

The Tragedy of the Fourteenth Amendment: The Supreme Court and the Death of Equality