How Asian Americans reversed the six-decade-long affirmative action

The era of globalisation has seen an influx of migrants and international students in the United States, in search of the American Dream. Rooted in principles of equality and freedom, the American Dream fosters hope for prosperity and success in Asian Americans, enabled by the ample opportunities the land has to offer. The model minority stereotype associated with Asian Americans, although not entirely representative of all Asian subgroups, suggests higher parental expectations and more investments in education resources stemming from cultural values, contributing to an overall edge in the academic performance of Asian Americans compared to their white counterparts (Kao, 1995). The interconnectedness between perceptions of success and academic achievements amplified the importance of attending an Ivy League university. Meanwhile, the rejection of these high-achieving youngsters raised queries on the fairness of their admission systems.

The History of Race-Conscious Practice

On 29 June 2023, the US Supreme Court ruled affirmative action unconstitutional and terminated race-conscious college admissions nationwide in a case lodged by Asian-American students (Rios and Stein, 2023). Since the 1960s, US universities have adopted affirmative action in various forms to consider the student’s race as part of their application among other factors. The race-conscious practice aims to act as a remedy to the country’s perpetual discrimination towards minorities and to provide opportunities for underrepresented groups to foster diversity on campus. While affirmative action has been legally challenged in several precedents, the courts have upheld it on the basis that it should be narrowly applied to serve the compelling interest of achieving diversity (Legal Information Institute, n.d.).

The court ruled in 1977 that race-based quota systems are unnecessary in achieving the objectives of affirmative action as Allan Bakke, a white applicant of the UC Davis Medical School, was rejected twice despite obtaining a higher GPA and test scores than the minority students admitted. Although racial quotas are viewed as in violation of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment by some justices in Bakke, the consideration of race in admissions decisions is constitutionally permissible and considered sufficiently justified when implemented through non-quota means (Oyez, n.d.). The University of Texas adopted a twofold approach where it admitted all in-state high school graduates ranked in the top ten percent of their high school classes according to state legislation with the remaining freshmen admitted with consideration of their race. The court in Fisher v. University of Texas agreed with the university that its mix of race-neutral and race-conscious policies was “narrowly tailored” to address a “compelling governmental interest” (Oyez, 2019). The same principle was applied in Grutter v. Bollinger to permit the University of Michigan Law School to consider race as part of its highly individualised review of each applicant (Legal Information Institute, n.d.). These precedents demonstrated that affirmative action is constitutionally permissible as long as it is applied with limits and avoids considering race as a disadvantageous factor to ensure equality is not compromised.

Students for Fair Admissions v. Harvard

Harvard, on the other hand, did not have an explicit racial quota or mechanism to favour any race. However, its admissions outcome revealed a minimum threshold for the acceptance rate of African-American applicants. In contrast, Asian-American applicants were the “primary group” disadvantaged by preferences given by Harvard’s Admissions Office (Arcidiacono, 2018, p. 7, 12). Peter Arcidiacono, a Duke University economist who provided expert testimony for the Asian-American plaintiffs, employed statistical and econometric methods to analyse the role race plays in the admissions process. He found that applicants with the same characteristics but of different races result in varying chances of admission: Asian-Americans have the lowest chance of 25%, with whites at 36% and Hispanics and African-Americans at 77% and 95% chance of admission respectively (Arcidiacono, 2018, p. 7). Despite being the racial group with the highest objective academic credentials on average, Asian Americans consistently “have the lowest admissions rates” (Arcidiacono, 2018, p. 4). This disparity is driven by the bias against Asian-Americans in their personal and overall rating assigned by Harvard’s admissions officers.

The group’s generally weaker scoring in these two ratings cannot be objectively explained – how does Harvard’s Admission Office collectively view the group to possess less attractive personal qualities, especially when ratings given by alumni interviewers are inconsistent with this unfavourable observation? These findings suggest that race is no longer considered a supplementary factor of an applicant’s profile but a decisive one with a significant impact on admissions outcomes. In response to these allegations, Harvard’s expert testimony offered by UC Berkeley economist David Card, suggests that these conclusions were reached through mining of data with a lack of a holistic understanding of the admissions process and database. The rise in Harvard Asian-American students from 17% to 21% in the past decade and the exclusion of Asian-American students who received preferable treatment (e.g. legacy, athletes etc.) like other races in the dataset were used as arguments to defend Harvard’s suspected discrimination against Asian Americans (Card, 2017).

Harvard’s defence was accepted by U.S. District Court in Boston in 2013 and upheld by the Court of Appeal in 2020 with its emphasis that race constitutes merely one element under admissions consideration and can only positively contribute to a student's likelihood of admission (Associated Press in Boston, 2018). However, the court recognised the school’s approach to maintaining similar levels of diversity over the years despite an absence of a rigid quota system (Casetext, 2019). Despite the supposedly minimal and exclusively positive role of racial consideration, its practice is unable to guarantee that other racial groups are not disadvantaged by it. As a result, the Supreme Court ruled that affirmative action is unconstitutional and is banned with immediate effect – “Eliminating discrimination means eliminating all of it”, said Justice Roberts in his majority opinion (Baio, 2023). Although the court believed that Harvard’s admissions policy was well-intended (Bernd Debusmann Jr, 2023), the promotion of African-American and Hispanic applicants inevitably undermines the interest of other racial groups (i.e. Asian Americans) in this zero-sum situation.

Equality vs Diversity

This unprecedented ban on affirmative action raises questions on how the Harvard case is different from prior precedents that upheld affirmative action. The Western perspective attributes this ruling to the 6-3 conservative supermajority within the US’s bipolar Conservative vs Liberal political landscape. While the influence of justices’ personal beliefs and support for colourblind policies remains a possibility, the arguments presented in respective cases and the evolving socio-cultural progression are key in this pivotal decision.

Firstly, unlike other affirmative action precedents which were lodged by individual white applicants, the Harvard lawsuit was filed by SFFA, representing a group of Asian American plaintiffs and bringing forward arguments involving collective racial patterns. The irony of this case lies in the fact that Asian Americans, despite being a minority, were discriminated against due to affirmative action which historically aimed to bring minorities onto campus – the ‘compromised’ group is no longer (only) the caucasian majority. Without the intent to overturn affirmative action, SFFA presented evidence that the racial identity of Asian Americans is not merely part of the consideration but is an adverse deciding factor in the personal rating received. While an individual admission outcome can be subject to various factors, the collective pattern of unfavourably rating Asian Americans reveals the racial stereotype involved in this race-conscious practice.

Furthermore, this change invokes reflection on the relationship between diversity and equality within an increasingly multi-racial society like the US. While institutions attempt to promote diversity, are they aiming for the superficial appearance of various skin colours on campus, or to address the underlying issue of equality? It was found in Arcidiacono’s report that the African-American student body admitted by Harvard is predominantly from wealthy backgrounds, with only less than 1/3 of African-American applicants from a disadvantaged background (Arcidiacono, 2018, p. 8). Race is often tied with socioeconomic status in the US to justify race-conscious admissions, specifically the stereotype that African Americans are under more economically challenged conditions. Harvard’s approach of maintaining a lower threshold for African-American applicants, however, merely achieves racial diversity without socioeconomic diversity, which is fundamental to the disparity faced in US society. Moreover, a race-influenced rating essentially implies that certain groups of applicants are held to a higher standard due to their race – Asian Americans are penalised under their model minority stereotype in institutions’ attempts to offset the inequality in society with biased treatment in admissions.

In the dissenting opinions of Harvard, Justice Jackson wrote in response to the enforcement of colour-blind policy – “But deeming race irrelevant in law does not make it so in life” (Baio, 2023). The distance between policies and reality remains in both race-conscious and colour-blind policies, but societal inequality should be addressed at its root cause (i.e. unequal distribution of wealth, education resources, and opportunities) instead of its symptoms (i.e. lack of diversity in campus) during the admissions stage. Race-conscious practices have minimal impact on achieving true equality. Instead, they come at the cost of crushing dreams due to race, an innate characteristic beyond one’s control.

As society progresses, race is generally recognised as an influential but not definitive factor in one’s life with socioeconomic and cultural implications – all races can suffer from adverse economic backgrounds and deprivation of educational resources while all races also have the potential to achieve academic excellence as race itself is neither a ‘disability’ nor ‘supremacy’. It is the experiences attached to one’s racial identity that matter. Therefore, the Supreme Court’s judgement still permits race to be discussed in personal essays if applicants wish to explore the way their background has influenced their lives (Rios and Stein, 2023). The ban on affirmative action is not to disregard those crucial life experiences altogether but to avoid race being considered as a standalone factor where assumptions would be made about one’s race.

Under the broad categories of Asian American, African American, Hispanic, and White, any monolithic assumptions disregard the diversity within each race. Although the model minority stereotype is partially supported by statistics in which Asian Americans generally outperform their white counterparts academically, the disparity among Asian Americans is evident. The Asian sub-group with the highest educational attainment is Indians, with 75% of the Indian American population obtaining a Bachelor’s or higher degree, a stark contrast with Bhutanese in America, with only 15% of the same educational level (Nam, 2023). While race itself does not dictate one’s success, family communication, parental involvement, expectation of ‘safe’ professions, and low rates of marital disruption are common socio-cultural factors that influence one’s academic journey (Kao, 1995).

The discussion of racial equality in the US has largely focused on discrimination against African Americans given their historical struggles in class and rights. As the first affirmative action lawsuit filed by Asian Americans, the Harvard case presented a stage for the group to increase awareness of the diverse experiences the growing Asian communities face in the US. Affirmative action has certainly enhanced campus racial diversity and its removal will inevitably change the makeup of the student body. Nevertheless, the potential harm caused by discrimination with no measurable objectives and end-points does not outweigh the benefits of race-conscious practice which primarily aims to promote racial diversity but largely neglect other more fundamental causes of inequality (Baio, 2023). To reach equality, there are certainly systemic issues to resolve while the role of cultural values should also be considered a prominent explanation of imbalance social phenomenon. Most importantly, we should get to know the people underneath their skins, especially the unique stories that compose the human experience.

Bibliography

Arcidiacono, P.S. (2018). Expert Report of Peter S. Arcidiacono, Students for Fair Admissions, Inc. v. Harvard. [online] Available at: https://www.brown.edu/Departments/Economics/Faculty/Glenn_Loury/louryhomepage/teaching/Affirmative_Action/Meeting_V/supporting_documents/Doc%20415-8%20-%20(Arcidiacono%20Expert%20Report).pdf.

Associated Press in Boston (2018). Harvard uses vague ‘personal rating’ to reject Asian Americans, court hears. [online] the Guardian. Available at: https://www.theguardian.com/us-news/2018/oct/15/harvard-discrimination-case-personal-rating-system.

Baio, A. (2023). Supreme Court strikes down affirmative action, banning colleges from factoring race in admissions. The Independent. Available at: https://www.independent.co.uk/news/world/americas/supreme-court-strike-affirmative-action-university-b2366556.html.

Bernd Debusmann Jr (2023). Affirmative action: US Supreme Court overturns race-based college admissions. BBC. Available at: https://www.bbc.co.uk/news/world-us-canada-65886212.

Card, D. (2017). Report of David Card, Ph.D. [online] Available at: https://projects.iq.harvard.edu/files/diverse-education/files/expert_report_-_2017-12-15_dr._david_card_expert_report_updated_confid_desigs_redacted.pdf.

Casetext (2019). Students for Fair Admissions v. President of Harvard Coll., 397 F. Supp. 3d 126 | Casetext Search + Citator. [online] casetext.com. Available at: https://casetext.com/case/students-for-fair-admissions-v-president-of-harvard-coll?sort=relevance&type=case&resultsNav=false&tab=keyword.

Kao, G. (1995). Asian Americans as Model Minorities? A Look at Their Academic Performance. American Journal of Education, 103(2), pp.121–159. doi:https://doi.org/10.1086/444094.

Legal Information Institute. (n.d.). Affirmative Action. [online] Available at: https://www.law.cornell.edu/wex/affirmative_action#:~:text=Affirmative%20action%20is%20defined%20as.

Nam, J. (2023). AANHPI Student Statistics | BestColleges. [online] www.bestcolleges.com. Available at: https://www.bestcolleges.com/research/aanhpi-asian-student-statistics/.

Oyez (2019). Fisher v. University of Texas. [online] Oyez. Available at: https://www.oyez.org/cases/2012/11-345.

Oyez (n.d.). Regents of the University of California v. Bakke. [online] Oyez. Available at: https://www.oyez.org/cases/1979/76-811.

Rios, E. and Stein, C. (2023). US supreme court rules against affirmative action in Harvard and UNC cases. The Guardian. [online] 29 Jun. Available at: https://www.theguardian.com/law/2023/jun/29/us-supreme-court-affirmative-action-harvard-unc-ruling.

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