The origins of the affirmative action debate arguably revolved around a racial binary of white and Black students. But the face of victimhood has now changed. In a case pending before the U.S. Supreme Court targeting Harvard University, a group founded by a white conservative tactician is arguing that the use of race-conscious admissions allows the elite university to discriminate against Asian Americans.
This new strategy might resonate with the high court’s conservative majority, which is already skeptical of the use of race-based remedies to correct historic injustices, and it’s not hard to see why — who wouldn’t be alarmed if race-conscious admissions are hurting the very students they’re supposed to help? But if the justices rule in the plaintiffs’ favor later this spring or summer, it might not be because there’s overwhelming evidence that the end of affirmative action would be good for Asian Americans — or even that Asian Americans, as a whole, want race-conscious admissions to end. In reality, the plaintiffs’ success this go-around could hinge on whether this new argument can conjure up more judicial sympathy than white students were able to.
The plaintiffs’ logic has long been a topic of debate and implicitly draws on a longstanding set of stereotypes about Asian Americans, but that’s a feature, not a bug, of their argument. They’re hoping this year’s case will result in a college admissions process in which there would be no race or ethnicity boxes to check.
“Race has always been a charged issue in America, as this country was built on a foundation with white people on top,” said Vinay Harpalani, a law professor at the University of New Mexico. “Anything that challenges that hierarchy makes many white people uncomfortable — and that is what affirmative action does.”
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The plaintiffs contend that Harvard’s approach to race-conscious admissions holds Asian Americans to a higher standard when it comes to objective metrics like test scores, and penalizes them on subjective measures like “positive personality,” likability and kindness. (The Supreme Court is also considering a separate but linked case against the University of North Carolina at Chapel Hill that draws on more traditional arguments against affirmative action.) But critiques of this nature have been percolating at the Supreme Court for a while now: Back in 2016, Justice Samuel Alito criticized the University of Texas at Austin for allegedly discriminating against Asian Americans, dissenting from a majority opinion that largely upheld the university’s race-conscious admissions policy.
This term’s case, however, is largely the product of an alliance between white conservative legal strategist, Edward Blum, and a comparatively amateur base of Asian American activists. Blum, who has long been fighting against race-based remedies to historical injustice, is the head of the organization that is suing Harvard. Somewhat ironically, though, their argument that Asian Americans are harmed by affirmative action actually draws on a longstanding set of stereotypes about them. As a group, they sit at an interesting intersection because, while they face violence and discrimination in the same ways that other marginalized groups do, they’ve also surpassed other racial and ethnic groups (including white Americans) across other metrics of success. And treating affirmative action as a practice that either hurts or helps an entire racial group doesn’t acknowledge the sprawling diversity contained within the Asian American community. In fact, many of Blum’s critics have even pointed to a video in which he admitted after losing the UT Austin affirmative action case that he “needed” Asian plaintiffs.
“It was a very explicit strategy that Blum had to try and change the narrative on affirmative action by putting Asian Americans front and center,” Natasha Warikoo, a sociology professor at Tufts University and author of “Is Affirmative Action Fair?: The Myth of Equity in College Admissions,” told me. “And he found Asian Americans who were willing to play that role and bought his argument.”
To be sure, this isn’t the first time that some Asian Americans have decried affirmative action’s effect on their ability to attend certain elite universities. In 2014, an Asian American student who had near-perfect test scores and a 4.67 weighted GPA was rejected from a number of Ivy League colleges and wrote a subsequent op-ed addressing his experience that went viral. Around the same time — and after losing the high-profile affirmative action case at UT Austin — conservatives like Blum seemingly lasered in on Asian Americans who opposed affirmative action and found allies in people like Yukong Zhao, the president of Asian American Coalition for Education. (The father of the student who wrote the op-ed cofounded this organization.) During a phone call with me, Zhao said that his son was a victim of discrimination because despite his “stellar academic and extracurricular credentials,” he was not accepted “by any of America’s top 20 universities,” including Princeton University, Cornell University and Johns Hopkins University.
It wasn’t his son’s situation that caused Zhao to enter this debate, however. In fact, he cited his earlier participation in the fight against a 2014 proposed constitutional amendment in California that would’ve asked voters whether they wanted to roll back the state’s ban on racial preferences in public college admissions as a primary reason for getting involved. Then, in 2015, his own group, alongside other Asian American organizations Zhao said he helped recruit, filed a separate civil rights complaint against Harvard — which the Department of Education dismissed — for discriminating against Asian American applicants. Zhao said now, though, Blum’s connections and influence might go further with the media — and perhaps even the courts. Pointing to a handful of studies, he concluded that Asian Americans are punished for receiving higher test scores relative to other students of color. “It feels like the top schools aren’t trying to attract Asian students,” he said. “Asian Americans are punished for their hard working and outstanding credentials both in academics and in extracurricular activities.”
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Zhao also echoed the traditional language of civil rights activists, saying that discrimination against Asian Americans gets ignored. “If a Black man or a teenager is harmed by the police, many Black organizations, like the NAACP, and politicians will stand up for them. But in Asian American communities generally … our children all fight civil rights issues alone,” he said. The hope, then, among Blum, Zhao and others is for a college-admissions process in which race is no longer a consideration.
But not all Asian Americans agree with this approach or desire this outcome. A 2019 survey by the Pew Research Center found that while most Asian American adults (58 percent) do not believe colleges should consider race or ethnicity as a factor in admissions decisions, the share who oppose this was decidedly lower than American adults overall (73 percent). But polling on this topic isn’t cut and dry. The 2022 Asian American Voter Survey, for instance, found that beliefs varied widely among Asian American subgroups — but there was largely broad support. Fifty-nine percent of Chinese Americans said they favor affirmative action programs in higher education designed to help Black people, women and other minorities, compared with overwhelming majorities of Indian (80 percent), Korean (82 percent), Vietnamese (67 percent) and Filipino Americans (67 percent) who said the same.
And while anti-Asian Americans bias certainly exists in higher education — and American society as a whole — it’s also not clear that affirmative action is responsible. By and large, studies suggest that Asian Americans have benefited from affirmative action as much as other groups. So not only is there little empirical evidence backing the claim that affirmative action is the sole culprit hampering Asian Americans students’ enrollment numbers at certain elite universities (even the coauthor of the one of the studies Zhao pointed to said this wasn’t true, pointing out that he lacked insight into a host of other factors that could explain observable differences), but in places where these affirmative action is already banned, such as California, data suggests that ending racial preferences in the state university system didn’t notably boost enrollment numbers among Asian American students.
Instead, Black and Hispanic enrollment at these institutions would likely suffer the most if affirmative action was deemed unconstitutional. Our past reporting on the topic suggests that in states with existing bans on affirmative action, Black students were underrepresented by at least 20 percent at 79 percent of public research universities and only two research universities in states with affirmative action bans had at least the same proportion of Black students as the state’s college-age population; Hispanic students, meanwhile, were underrepresented by at least 20 percent at 82 percent of the public research universities. Only one school had at least the same proportion of Hispanic students as the state’s college-aged student population.
But some Asian American students might be penalized, too. “Going to an admissions policy that is hyper-focused on GPA and standardized test scores is going to have a significantly detrimental effect on Asian Americans and Asian American groups that tend to be lower performers on those metrics due to a variety of social and historical reasons,” said Jonathan Feingold, a professor of law at Boston University. Indeed, one of the issues that experts have pointed out with the current case is that it doesn’t capture the full complexity of the Asian American community. That’s a leading reason behind why researchers often advocate for breaking down larger categories, like Asian American, into smaller blocs. For example, not all Asian American students are academic overachievers with high test scores — there are poorer, more underserved populations who remain underrepresented in higher education and could benefit from affirmative action.
Ending affirmative action could harm Asian Americans underrepresented in higher education
Share of all Americans and of certain Asian American subgroups age 25 and older with only a bachelor’s degree
Affirmative action proponents, including some Asian Americans, have also argued that everyone — regardless of race — stands to suffer if affirmative action is wiped out across the board. “Without it, students might miss out on a more diverse learning environment since they won’t be exposed to as many perspectives and voices in the classroom,” Warikoo said.
Still, the plaintiffs’ claims seemed to resonate with the justices during the oral arguments last fall — particularly the idea that Asian Americans are facing the same kind of overt discrimination that Harvard inflicted on academically talented Jewish applicants a century ago. This is a clear riff on the “model minority” trope, which essentially argues that Asian Americans’ hard work, personal responsibility and success offer proof that American meritocracy works as it’s intended. But the notion of “model minorities” comes with a flip side — “problem minorities.” And as it pertains to higher education, these arguments can implicitly serve as a counterpoint to negative stereotypes about Black, Hispanic and Native Americans — which, in turn, help justify their underrepresentation. “The social category, Asian Americans, if invoked in a crude ‘model minority’ sense, is used quite strategically to undercut the claim that racial discrimination is a causal barrier that’s preventing Black or Hispanic students from being able to enter these institutions,” Feingold told me.
Focusing on Asian Americans has another benefit for opponents of affirmative action: White students are almost completely taken out of the conversation. In this line of argument, Asian Americans are penalized so that other students of color benefit instead. It’s compelling in its simplicity: “College admissions is a zero-sum game. So when you give advantages to one group, people who do not have that characteristic lose seats,” said Duke University economics professor Peter Arcidiacono, who was an expert witness in both the Harvard and UNC cases. “There are a lot of seats that are for affirmative action, which naturally helps crowd out other applicants. And that’s particularly true for Asian Americans because they disproportionately perform extremely well in school, so they ended up being fairly competitive for those top spots.”
But in this framing, white students are rendered third-party bystanders to race-conscious admissions policies which could, in turn, help bolster a belief already held by many white conservatives that they’re “victims” of an unjust system that artificially awards extra “points” to certain communities of color while taking away those same “points” from them. And focusing on affirmative action ignores the many practices of systemic favoritism in place — like legacy admissions and athlete recruitment — that disproportionately help white students. Eliminating those would likely boost the enrollment numbers of students of color, according to Arcidiacono’s research and estimations.
In fact, evidence from Harvard suggests legacy admissions and athlete recruitment disproportionately help boost white students’ enrollment numbers there. A 2019 study looking at Harvard admissions data, for instance, found that almost half (43 percent) of white students were recruited athletes, legacy students, had parents who donated to the school or children of faculty and staff — there’s no law in place for plaintiffs to challenge to get rid of this, too. Zhao acknowledged this wrinkle and told me he’s against legacy admissions; Arcidiacono, meanwhile, predicted that legacy admissions might be the next topic of scrutiny should affirmative action get overturned, but there’s no easy legal avenue its critics could take to ban it completely. “It all comes down to what you can sue over,” he said.
If the effort to overturn affirmative action is successful, though, the effect will be felt far beyond Harvard. Professors and college administrators have argued it will force universities to find completely new methods for ensuring diverse student bodies.
Of course, we don’t know how they’ll rule, but given the Supreme Court’s conservative bent and Republicans’ crusade du jour against advancing issues of racial justice, it seems like a fairly good bet that affirmative action will be all but dead after this year. While a highly conservative court certainly helps that cause, I’d argue that — if affirmative action is doomed — its demise is due to the fact that the stories we tell about it have changed: Asian Americans have become the centerpoint, and white students are no longer the focus. It’s a politically savvy story to tell, and it may well be the final boost conservatives need to end affirmative action after decades of trying.
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