The future of affirmative action and Chinese-American applications to elite universities

Are more Chinese Americans about to gain admission to elite universities in the U.S.? Here’s what you need to know about SFFA v. Harvard, the lawsuit that alleges bias against Asians Americans at Harvard, and what it means for American-style affirmative action.

Contents (click to jump to section):

Overview
Students for Fair Admissions (SFFA) v. Harvard

What’s the history of the Asian-American debate on affirmative action?
Defining “Asian American” • The  “yawning gap between new Chinese immigrants mostly from mainland China and earlier generations of Chinese” • California’s Prop 209 and S.C.A. 5 • New York City’s standardized admissions test, SHSAT

What are the stakes for Asian Americans in the affirmative action debate?
Fairness?

The lawsuit
Edward Blum

What is the basis of SFFA’s arguments?
Harvard’s history of “discrimination”

What are Harvard’s counterarguments?
Fiercely rejects all charges • A compelling interest to create a diverse student body

Are there viable “race-neutral” alternatives for admissions?
Improving racial diversity without explicitly considering race

Are there legal obstacles both sides face?
How does one define “diversity”? • What is “fair”?

What are the broader implications of the case?
Steady change in American politics

A legal battle that has been brewing for years hits a new milestone this week at a Boston federal courtroom. The lawsuit, SFFA v. Harvard, was initiated in 2014 by the organization Students for Fair Admissions (SFFA), which alleges that Harvard systematically discriminates against Asian Americans in its admissions process. Harvard vehemently denies the charges. The trial is being overseen and decided by U.S. District Judge Allison Dale Burroughs, and is expected to last three weeks.

SFFA was created and is led by conservative activist Edward Blum, with support from a cohort of conservative Chinese Americans. They argue that the university is discriminating against Asian-American applicants by disproportionately rejecting them.

An internal Harvard study found that if applicants were judged solely on academics, Asian Americans would constitute more than 40 percent of the student body, rather than the current number of 20 percent. SFFA alleges that the university does this in order to achieve a de facto quota system that balances the student body according to race. The Supreme Court holds, via the 1978 decision Regents of the University of California v. Bakke, that racial quotas in admissions violate the 14th Amendment’s Equal Protection Clause.

Asian Americans, like many minority groups, have battled discrimination and exploitation throughout American history: mistreatment while building the transcontinental railroad, the Chinese Exclusion Act of 1882, and Japanese-American internment camps during World War II, to name a few well-documented examples. Many in the community continue to suffer from stereotyping and marginalization.

Given that history, SFFA v. Harvard may, to the casual observer, seem like a straightforward discrimination lawsuit. But the reality is more complicated, touching on immigration, the future of affirmative action, divisions in the Asian-American community, and a long-simmering debate about how to do inclusion right.

What’s the history of the Asian-American debate on affirmative action?

While this is by far the most controversial and nationally recognized story about Asian Americans in education, it is not the only notable one. In recent years, debates about fairness in education have intersected with the Asian-American experience in surprising and contentious ways, with potentially profound implications for American politics — including the end of affirmative action as we know it. To understand the true depth of the SFFA v. Harvard case, it’s important to understand a few different threads.

For starters, “Asian American” is a misleading term. To the layperson, “Asian American” is usually understood to mean someone of East Asian descent. The term was actually coined in the 1960s by American historian Yuji Ichioka to create unity among the, at the time, small number of Americans descended from peoples of the Asian continent. Thus, when used in a legal sense, such as for census purposes, it applies equally to dozens of ethnic groups. Each of these groups occupy profoundly different socioeconomic positions and have different political beliefs, cultural mores, and histories. Thus, much of the coverage of “Asian-American issues” is mired in oversimplification.

As of 2015, Chinese Americans make up nearly a quarter of all “Asian Americans,” and as Asian Americans have grown as a demographic in the U.S., the Chinese-American population has likewise surged 72 percent since 2000. Sixty-three percent of all Chinese Americans are foreign-born, compared to 59 percent of all Asian Americans, according to the Pew Research Center.

Such a large surge will, of course, alter the political landscape, but domestic media has only recently been paying attention. The journalist John Pomfret began to document this story last year in a The China Project article, “The split at the heart of Chinese America,” which focuses on California politics. He notes the “yawning gap between new Chinese immigrants mostly from mainland China and earlier generations of Chinese,” as newer arrivals are “turning away from liberal causes such as affirmative action” because of evidence showing discrimination against Asians in higher education. This includes, for example, the fact that Asians have to score higher than all other races on the SAT to achieve similar admissions results (140 points higher than whites, 270 points higher than Latinx, and 450 points higher than black students).

It’s unclear if there are other factors at play, such as ideas about race and fairness that some newer Chinese immigrants may have brought with them from 21st-century China. Many Han Chinese, for example, resent the Chinese government’s own affirmative action policy that gives ethnic minorities and those from certain provinces extra points on the national college entrance exam.

International students won’t be affected by changes in affirmative action jurisprudence, because, according to a Princeton study, they are usually coded as “foreign” in university admissions, as opposed to being labeled a specific race. Nonetheless, Harvard’s lawsuit is even kicking up discussion on Chinese social media. It makes sense, given the parallel interest in affirmative action issues and the obvious connection to ethnic overseas Chinese.

In any case, this discussion has carried on beneath the attention of most Americans, even as it has impacted politics from coast to coast. In 1996, Asian Americans in California overwhelming voted against Prop 209, a ban on the use of race, sex, or national origin in the state’s public universities’ admissions. Less than two decades — and a wave of Asian immigration — later, in 2014, Chinese Americans were the key constituency that defeated S.C.A. 5, an affirmative action measure that sought to overturn the ban.

In New York City, Mayor Bill de Blasio has proposed to end the SHSAT, the standardized admissions test for the city’s elite high schools. The schools have a disproportionate number of Asian-American students, who tend to outperform other groups on the SHSAT. For example, up to 3 out of 4 students at Stuyvesant High School are Asian. Pointing out the “diversity problem” that arises in the current system, he argues that ending the test will correct a moral wrong: though black and Latinx students are the majority in the public school system, they only constitute 10 percent of those in elite high schools.

That argument has sparked a revolt among some in the Asian-American community, many of whom are worried their children may be unable to get in under the new system and have to either attend subpar public schools or pay for expensive private schools. These concerns have led to a fractious debate within the community. Even as Chinese Americans are leading political organizations against the proposal, other Chinese-American groups support the measure.

A bilingual dialogue on the SHSAT issue in July, hosted by the Roosevelt Institute’s Student Network, elicited strong responses from the community. This included open speculation that the move was a cynical ploy by the mayor to appeal to national Democrats in 2020, even as it sows racial divisions between Asian and black & Latinx residents. Moves like this, attendees said, could cause a rebellion within the Democratic Party, while a small number of others in the national community plan to vote Republican. A representative of the mayor present at the event downplayed concerns, saying the proposal was just one part of a larger initiative and discussion.

What are the stakes for Asian Americans in the affirmative action debate?

More conservative Chinese and Asian Americans make thought-provoking appeals to fairness. Despite outperforming other groups, and playing by the rules, Asian Americans are still underrepresented relative to the applicant pool. Why, they ask, should I have to give up my spot when I performed better than you?

The more liberal segment of Chinese and Asian Americans, who still comprise a majority of their demographic, tend to feel that affirmative action is a good thing that protects traditionally marginalized people, including Asian Americans. Members of the community such as Vox’s Alvin Chang argue that an affluent but socially isolated Chinese-American immigrant community is distorting the debate, and playing mascot to racist mythmaking. The implication is often that supporters of SFFA are unwitting aides to white supremacist wolves in sheep’s clothing.

Depending on your perspective, the case is either an underhanded, manipulative method by white supremacists to eliminate affirmative action, or an ethical battle against sanctimonious but clueless Americans who sacrifice Asian-American children and the concept of merit on the supposed altar of “equality.”

The lawsuit

This is only the latest in a long line of controversial lawsuits fought by Edward Blum. Though he has no legal training, he has several influential Supreme Court cases under his belt. Starting in 1996, in Bush v. Vera, he sued the state of Texas to dismantle a Houston congressional district after he ran for that seat, realizing it racially gerrymandered in favor of African-Americans. In 2013, in Shelby County v. Holder, he successfully argued that the Voting Rights Act unconstitutionally restricted state governments by using decades-old data in its coverage formula, ending a 40-year era of federal supervision of voting laws in individual states, including those with Jim Crow histories.

In 2013 and in 2016, he helped a young white woman, Abigail Fisher, sue the University of Texas (UT) on the grounds that she was rejected from the school because others were given an unfair, race-based edge in the admissions process. In the 2013 case, or “Fisher I,” Blum succeeded in ratcheting up the requirements in admissions: schools could only use race as a criterion if other “race-neutral” criteria were unable to produce a “diverse” student body. In the 2016 “Fisher II” case, the court upheld UT’s standards.

In interviews like this one from 2017 with the New York Times’ Michael Barbaro, Blum comes across as a good-faith actor. At the heart of all his work, he explains in the interview (around the 13-minute mark in the audio in the above link), is the idea that “…the foundation of civil rights is that your race should not be used as something that helps you, nor should it be used to harm you…You can’t cure old racial discrimination with new racial discrimination.”

In other words, the vision of American institutions at the heart of Blum’s legal initiatives is a “colorblind” system in which race cannot be overtly used to influence decisions. As a lawyer working for SFFA v. Harvard case made clear in a speech to a gathering of the Silicon Valley Chinese Association (01:25 mark): “Let me be clear…our goal is to permanently end the use of race in college admissions.”

What is the basis of SFFA’s arguments?

Affirmative action has been a flashpoint between progressives and conservatives since the phrase was first used by President Kennedy in 1961 to make sure government contractors proactively prevent discriminatory decision-making. Given the racially charged history of affirmative action, some on the left have criticized SFFA’s lawsuit, coming as it has on the heels of the Shelby and Fisher decisions, as an exploitative backdoor method to eliminate protections for marginalized communities.

That’s not how the SFFA team sees it. One of the key legal and historical arguments made by SFFA is that the racial discrimination Asian Americans face today within the affirmative action framework is nearly identical to, and has roots in, discrimination of another group in the 1920s: American Jews. In court documents, SFFA goes as far to say that “Harvard’s discrimination against Jewish students is the original sin of holistic admissions.”

Harvard now rejects Asian Americans for the same reasons they used to reject Jews. Namely, differences in “character” or “personality.”

Their legal complaint contains a detailed history of the evolution of Harvard’s admissions process over the course of the last century. Then, as with Asian-American applicants today, Jewish applicants to Harvard represented a high-achieving minority with a disproportionate presence on campus, almost 28 percent of the student body in 1925.

At the time, Harvard’s application process was based on a single test; all prospective students had to do was score above a certain threshold to gain entry. It meant Harvard’s incoming classes varied quite a lot in class size, but it also meant that the school had little to no control over who was accepted. Among those who saw this as a problem at the time was then Harvard president A. Lawrence Lowell.

Writing in response to an irate, bigoted alumni in 1925, President Lowell said he “had foreseen the peril of having too large of a number of an alien race and had tried to prevent it,” but that “not one of the alumni ventured to defend the policy [of exclusion] publicly.” He was afraid that too large a proportion of Jews at Harvard would force Protestant applicants to apply to rival schools in the Ivy League.

He and supporters claimed that “it is not desirable that the number of students in any group which is not easily assimilated into the common life of the College should exceed 15 percent of the whole college.” There was no similar thought given to limiting the number of white Protestant men, who were considered the lifeblood of the college.

Facing opposition to explicit religious discrimination, Lowell and others created a new admissions process that was more about subjective qualities than it was about test scores. This new system required demographic information, letters of recommendation, personal essays, and interviews to discern “character,” and introduced a preference for “legacy” students.

In effect, SFFA alleges, Harvard had created a system that obfuscated their true intentions, and allowed them to, according to SFFA, “deny the existence of any racial or religious quotas, while still managing to reduce Jewish enrollment to a much lower level, and thereafter hold it essentially constant during the decades that followed.”

While acknowledging that Harvard may have outgrown these anti-Semitic roots, SFFA argues that the foundational admissions system remains largely the same — it’s only the target(s) that change. Using a different set of racial or religious preferences, Harvard now rejects Asian Americans for the same reasons they used to reject Jews. Namely, discrepancies in admissions are explained by subjective differences in “character” or “personality.” 

Asian Americans, especially those of East Asian descent, have often complained about this form of discrimination. Among the litany of stereotypes faced by those of East Asian descent, one of the more pernicious is the perception that Asians “lack internal diversity.” That is to say, beyond the bigotry of “all Asians look the same,” there is an equally harmful prejudice that all Asians have the same interests, or lack distinctive individual personalities.

The lawsuit alleges that this prejudice, and not any defect of the applicants themselves, explains why Asian-American applicants have reliably lower personality scores in Harvard’s admissions process. Those lower scores also explain why, although Asian Americans are disproportionately represented at Harvard relative to the general population, they are disproportionately underrepresented relative to the applicant pool. Asian Americans are roughly 20 percent of the admitted Harvard class in any given year, but an internal Harvard study from 2013 found that, if admissions were based solely on academic performance, that number would surge to 43.4 percent.

Asian Americans are roughly 20 percent of the admitted Harvard class in any given year, but an internal Harvard study from 2013 found that, if admissions were based solely on academic performance, that number would surge to 43.4 percent.

It’s no surprise, then, that the largest collection of supporters of the litigants is a coalition of 156 Asian-American organizations headed by the Asian American Legal Foundation (AALF) and the Asian-American Coalition for Education (AACE). Most of these organizations are Chinese-American organizations.

Using this framework, SFFA claims that Harvard violates Title VI of the Civil Rights Act, the Constitution’s Equal Protection Clause, and Fisher I’s stipulation that race only be used if viable “race-neutral” alternatives are not available. The argument relies on the testimony of Asian-American plaintiffs, and expert analysis of Harvard’s admissions data by Duke economics professor Peter Arcidiacono. Five economists back the analysis, including two Chinese nationals, and economist Glenn Loury, who is outspoken in his opposition to affirmative action.

What are Harvard’s counterarguments?

Harvard fiercely rejects all charges. In a July statement, Harvard said that “SFFA continue[s] to present a deliberately misleading narrative” that “challenge[s] the freedom of every…university in America to…create the diverse communities that enhance the learning of every student.” Harvard claims a right of universities everywhere to use race as one criterion among many to guarantee a diverse student body, something it argues the Supreme Court has repeatedly upheld.

It points to broad popular backing for its position, citing a Pew Research Center study showing that a growing share of Americans support affirmative action programs, with up to 71 percent in favor in 2017. Also cited are surveys showing two-thirds of Asian Americans support the consideration of race in admissions.

To challenge SFFA’s narrative, Harvard commissioned its own expert analysis of its admissions data by Berkeley Economics Professor David Card, who, unlike Arcidiacono, came to the conclusion that a race-neutral system would not produce better results for the incoming Harvard class:

“I have examined whether any race-neutral admissions practice, or combination of race-neutral practices, could enable Harvard to achieve a comparably diverse student body without lowering the quality of the admitted class (as measured by Harvard’s profile ratings and other indicia) or changing the composition of the admitted class in other ways that I understand matter to Harvard. My analyses suggest that using race-neutral policies to generate diversity comes at a cost to class quality.

“This finding is consistent with the broader academic literature, which explains that universities attempting to achieve racial diversity without considering race will necessarily be less able to select the highest-quality applicants than if they could consider race.”

Each economist’s report boasts a model they believe are highly predictive of Harvard’s admitted class. That, however, leaves the actual truth of the matter highly ambiguous, as laid out in Slate’s comparison of the admissions studies.

Supporters of Harvard’s position have sent in a large number of “friend of the court” amicus briefs. These include briefs from the National Association of Scholars, the American Council on Education, a Joint Filing from 16 Ivy League and other prominent Universities, a coalition of diverse student groups (“Coalition for a Diverse Harvard”), 531 Experts on “Asian-American Studies, Race and Access to Education,” a collection of economists defending the Card report, the Asian American Legal Defense and Education Fund, the NAACP Legal Defense Fund, the Lawyers’ Committee for Civil Rights and Economic Justice, and the ACLU.

Harvard maintains that it narrowly tailors its use of race in the admissions process to maintain an adequately diverse student body.

Harvard is adamant that its admissions process stands on firm legal ground. In court documents, its defense points out that the Supreme Court has upheld the idea that universities have a compelling interest to create a diverse student body, citing Fisher I (2013), Grutter v. Bollinger (2003), and Regents of the Univ. of Cal. v. Bakke (1978). Harvard maintains it they narrowly tailors its use of race in the admissions process to maintain an adequately diverse student body.

That is to say, universities are only allowed to make distinctions based on race (“discriminate”) to achieve the desired outcome of the law. In this case, that outcome is an adequately diverse student body, which SCOTUS has made clear is a “compelling state [government] interest.” That adequate level of diversity is what the Grutter case called a “critical mass,” which the court, at that time, found did not constitute a racial quota.

Are there viable “race-neutral” alternatives for admissions?

To combat the alleged racial quota, SFFA has pointed to several “race-neutral alternatives” that could be used to determine admissions. They propose switching the alleged focus on race to one based solely on class. SFFA argues that by using socioeconomic indicators such as parental wealth, single-parent status, and even a students’ ZIP code of origin, Harvard and other universities could improve racial diversity without explicitly considering race. Additionally, they emphasize the importance of increasing financial aid and the elimination of “legacy” students as ways to improve diversity without using race as a criterion.

In court documents, SFFA has cited the University of Colorado and the California Institute of Technology (CalTech) as examples of places that have instituted some of their proposals. A 2014 study on the University of Colorado showed African-American and Hispanic acceptance rates increased by 9 percent compared to earlier race-based admissions. At CalTech, where students are assessed strictly by academics, the proportion of Asian-American students has been increasing since the 1990s, reaching 43 percent in 2016.

Harvard, however, conducted its own research into possible race-neutral alternatives. Citing Sandra Day O’Connor in the Grutter decision, they point out that “narrow tailoring does not require exhaustion of every conceivable race-neutral alternative.” The university concluded in an internal committee report than no proposed alternatives would produce a sufficiently diverse student body “without significant and unacceptable sacrifice to other institutional imperatives.”

The report rejects SFFA’s proposals as being either too costly, ineffective, or even harmful.

Focusing on socioeconomic indicators as a proxy for race, for example, would reduce the number of “high academic” rated students by 19 percent, as well as reducing the diversity of the student body in other ways, even if it would increase the racial diversity overall. Increases in financial aid and eliminating legacy students, too, would have only marginal effects on diversity. Those measures would be fiscally irresponsible, the report maintains, as the endowment only covers “65% of the $200 million required to fund undergraduate financial aid.”

Are there legal obstacles both sides face?

Yes. Despite differences of opinion on the case, there are common legal and social problems being dealt with. The first of which is: how does this society define “diversity”? There is no concrete legal definition of the term. In fact, the Supreme Court has repeatedly deferred to individual universities’ working definition of diversity in its rulings, within limits. The result is a legal house of cards underpinning the current affirmative action framework.

To achieve this undefined state of “diversity,” schools must achieve a “critical mass” of certain types of students across many dimensions of identity. This “critical mass” is a purposefully vague and undefined quantity or proportion of students. However, when seeking to achieve this undefined “critical mass,” universities must avoid creating quantity or proportion-based quotas, which have been explicitly ruled as unconstitutional.

The second question is, given the interest in diversity, what is fair? Just like the definition of “diversity,” this question has not reached a stable equilibrium between popular opinion and the law, either.

Many progressives argue, for example, that affirmative action is a way to account for systemic injustice. Historically, there are groups within the United States that have faced discrimination, oppression and/or exclusion. Proponents of affirmative action argue it is an essential remedial measure to account for this history, given that, for example, white families still have more than 20 times the wealth of black families due to a history of slavery, redlining, etc.

However, due to a “trinity” of Supreme Court cases, many types of organizations are not allowed to solely, explicitly use historical discrimination when making personnel decisions. The latest of which, Adarand Constructors, Inc. v. Peña (1995) holds that the presumption of disadvantage based on race alone violates the equal protection principle embodied in the Due Process Clause of the Fifth Amendment. This is more reflective of a traditional, conservative line of jurisprudence, which holds more emphasis on individual merit.

What are the broader implications of the case?

The lawsuit against Harvard and other stories like it, all partially powered by a vocal minority of  Asian-American resentment, are symptoms of a slow but steady change in American politics. As Asians replace Hispanics as the largest group of incoming immigrants to the U.S., they’re projected to more than double their share of the population, up to 14 percent by 2065, according to Pew.

Given that possibility, Ed Blum, SFFA, and other conservatives are cultivating this potential constituency. They are not alone. On August 30, The Trump administration’s Department of Justice weighed in on the issue, saying that it found evidence of bias in Harvard’s admissions process, allying itself with SFFA. The Administration has also launched an investigation into Yale on behalf of similar discrimination complaints filed by Asian American Coalition for Education (AACE).

Both sides of the lawsuit have asked the Court for a summary judgement, which would avoid the necessity of a full-blown trial. Despite these motions, the case is on trail, with opening proceedings having begun yesterday, October 15th, at the U.S. District Court in Boston. If the case reaches the Supreme Court, where Trump has just solidified a conservative majority after his appointment of the conservative and fiercely partisan Justice Brett Kavanaugh, it’s likely that affirmative action as Americans have known it will be over.