Asian Americans and Affirmative Action

With one more week to go this month of June, the entire nation is waiting with bated breath on the Supreme Court's ruling concerning Affirmative Action in two cases against Harvard and the University of North Carolina. This ruling is probably the most consequential of the Supreme Court affecting Asian Americans in decades.

SOME HISTORY
Since the 1960's, Affirmative Action programs had given preferences, additional points and even set aside quotas to increase the admission of under-represented minority groups into elite colleges and universities. These groups were mainly African American, Hispanic and Native American. The two main arguments for Affirmative Action are (1) to correct the historic and systemic discrimination against these minorities in the past history of the US and (2) that Affirmative Action programs are necessary to provide a wide and diverse study body essential for the learning environment of a college in the modern world. Opponents argue that race-based admissions is discrimination based on race, pure and simple and a violation of the equal protection clause of the Fourteenth Amendment. Chief Justice John Roberts said in 2007, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Over the decades, Affirmation Action has faced increasing challenges at the high court and most agree this recent challenge will be its greatest if not its total defeat. The first challenge, however, was back in 1978 with the Bakke case. I remember writing a paper on this subject in college. We called it back then the case of "reverse discrimination." An engineer named Allan Bakke had applied to the medical school at UC Davis and been rejected twice. He sued claiming that the Affirmative Action program at UC Davis discriminated against him as a white person by allowing minorities with lower test scores and qualifications in. The school had set aside 16 out of 100 seats for a separate admissions track for minorities. The court ruled that while race can be used in admissions, quotas cannot. Bakke was admitted to the medical school. Justice Lewis Powell wrote that diversity on a college campus was a "compelling state interest" and a goal which can and should be used in the admissions process but that using a quota system was going too far. But his argument in favor of Affirmative Action was based on diversity and not the social justice argument (#1 above). That became the rationale and argument in future cases. Furthermore, race should be used in conjunction with a broad set of other criteria to craft a diverse student body.

In 2003, two cases involving the University of Michigan were decided by the high court. In Gratz v. Bollinger, Jennifer Gratz, a white applicant was rejected by the  undergraduate school (the president at the time was Lee Bollinger). In the admissions process, the school automatically gave 20 points on a 120 point scale to African Americans, Hispanics and Native Americans. The court ruled against Michigan stating that the point system was too mechanical and against the spirit of Judge Powell's ruling in Bakke. In a second case, Grutter v. Bollinger, Barbara Grutter, a white applicant, had applied to the University of Michigan Law School and been rejected. In this case, the court sided with the school feeling that its admission process was more finely tuned and appropriate to achieve its goal. Nevertheless, writing for the majority, Justice Sandra Day O'Connor added a new wrinkle to the Affirmative Action debate:

• "Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. "
• "It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. … We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." (O'Connor Digital Library)

In order words, Affirmative Action is legal and serves a "compelling state interest" but it was never meant to be permanent. This is something new I learned recently and a point often left out of discussions on this topic. If Affirmative Action is struck down next week by the Supreme Court, the entering college class this fall will be graduating almost 25 years from O'Connor's prophecy.

ASIAN AMERICANS
In recent years, Asian Americans have been at the forefront of efforts to undo Affirmative Action (see NY Times "Affirmative Action Battle has a New Focus: Asian-Americans"). High achieving Asian Americans argue that these programs unfairly disadvantage them. An oft-cited Princeton study is used to state that "students who identify as Asian must score 140 points higher on the SAT than whites and 450 points higher than Blacks to have the same chance of admission to private colleges" (see "This is why Asian Americans are anxious about checking boxes in college admissions"; but note a counter "Opinion: Affirmative action isn’t hurting Asian Americans"). This is often referred as the "Asian Tax." Indeed, the current cases against Harvard and UNC argue that their admissions policies discriminate not against whites but against Asian Americans.

The Asian American community is divided over Affirmative Action. Many (including most of my colleagues) support it such as the group, Asian Americans Advancing Justice (AAJC). In a 2012 National Asian American Survey, three out of our Asian Americans supported Affirmative Action. "More than 160 Asian American groups filed briefs in support of UT’s affirmative-action program" (see the Atlantic's "Asian Americans and the Future of Affirmative Action"). Other Asian Americans, however,  are opposed, such as the Asian American Coalition for Education (AACE). In 2015, a group of 64 Asian American organizations filed a joint complaint against Harvard and nine other universities to the Department of Education. The AACE, a coalition of 117 Asian American groups, filed a brief in support of the lawsuit of Abigail Fisher (who is white) against the University of Texas at Austin. The Supreme Court ruled in favor of the university in 2013. In the excellent and fascinating Atlantic article just cited, the author makes the brilliant observation that this divide among Asian Americans may be a generational thing. Those opposed to Affirmative Action are mostly foreign-born immigrants from China while those in favor are mostly American-born:

• "The Asian American organizations that support affirmative action tend to be older, comprised largely of people who were born in the country, and have well-established alliances with other civil-rights groups—including those advocating for blacks and Latinos."

With regards to the general public, Affirmative Action is highly unpopular: "In a March 2022 poll of 10,000 adults, 74% said race or ethnicity shouldn’t be a factor in admissions." (Bloomberg Businessweek.) And  a recent proposition to restore Affirmative Action in California (Prop. 16) failed miserably (see NYTimes "The Failed Affirmative Action Campaign That Shook Democrats"), even in California!

CONCLUSION
The debate around Affirmative Action is a long and complicated one. After the killing of George Floyd in Minneapolis in 2020, no one can deny that America still has problems with race. At the same time, no one can deny either that Affirmative Action as it is currently practiced also has problems and does, I believe, discriminate against Asian Americans. A mediating and better approach is Affirmative Action based not on race but on socioeconomic factors. And here is my personal and only statement you can quote:

• "Is it right to correct the wrongs of the past by wronging others in the present?"

The Supreme Court will very soon, this very week, decide this issue. It will be almost 25 years since Justice Sandra Day O'Connor made her statement in the Grutter case in 2003. I won't be so sorry if her prediction comes true:

• "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

UPDATE: on June 29, 2023, the Supreme Court indeed struck down Affirmative Action. See NYTimes article here.