The Uncomfortable Truth About Affirmative Action and Asian-Americans


  
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The Uncomfortable Truth About Affirmative Action and Asian-Americans
 Since the nineties, the share of Asians in Harvard’s freshman class has 
remained stable, while the percentage of...  |   |

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By Jeannie Suk Gersen10:05 A.M.
Since the nineties, the share of Asians in Harvard’s freshman class has 
remained stable, while the percentage of Asians in the U.S. population has more 
than doubled.Photograph by Victor J. Blue / Bloomberg via GettyThe application 
process for schools, fellowships, and jobs always came with a ritual: a person 
who had a role in choosing me—an admissions officer, an interviewer—would 
mention in his congratulations that I was “different” from the other Asians. 
When I won a scholarship that paid for part of my education, a selection 
panelist told me that I got it because I had moving qualities of heart and 
originality that Asian applicants generally lacked. Asian applicants were all 
so alike, and I stood out. In truth, I wasn’t much different from other Asians 
I knew. I was shy and reticent, played a musical instrument, spent summers 
drilling math, and had strict parents to whom I was dutiful. But I got the 
message: to be allowed through a narrow door, an Asian should cultivate not 
just a sense of individuality but also ways to project “Not like other 
Asians!”In a federal lawsuit filed in Massachusetts in 2014, a group 
representing Asian-Americans is claiming that Harvard University’s 
undergraduate-admissions practices unlawfully discriminate against Asians. 
(Disclosure: Harvard is my employer, and I attended and teach at the 
university’s law school.) The suit poses questions about what a truly diverse 
college class might look like, spotlighting a group that is often perceived as 
lacking internal diversity. The court complaint quotes a college counsellor at 
the highly selective Hunter College High School (which I happened to attend), 
who was reporting a Harvard admissions officer’s feedback to the school: 
certain of its Asian students weren’t admitted, the officer said, because “so 
many” of them “looked just like” each other on paper.The lawsuit alleges that 
Harvard effectively employs quotas on the number of Asians admitted and holds 
them to a higher standard than whites. At selective colleges, Asians are 
demographically overrepresented minorities, but they are underrepresented 
relative to the applicant pool. Since the nineteen-nineties, the share of 
Asians in Harvard’s freshman class has remained stable, at between sixteen and 
nineteen per cent, while the percentage of Asians in the U.S. population more 
than doubled. A 2009 Princeton study showed that Asians had to score a hundred 
and forty points higher on the S.A.T. than whites to have the same chance of 
admission to top universities. The discrimination suit survived Harvard’s 
motion to dismiss last month and is currently pending.When the New York Times 
reported, last week, that the Justice Department’s Civil Rights Division was 
internally seeking lawyers to investigate or litigate “intentional race-based 
discrimination in college and university admissions,” many people immediately 
assumed that the Trump Administration was hoping to benefit whites by assailing 
affirmative action. The Department soon insisted that it specifically intends 
to revive a 2015 complaint against Harvard filed with the Education and Justice 
Departments by sixty-four Asian-American groups, making the same claim as the 
current court case: that Harvard intentionally discriminates against Asians in 
admissions, giving whites an advantage. (The complaint had previously been 
dismissed in light of the already-pending lawsuit.) The combination of the 
lawsuit and the potential federal civil-rights inquiry signals that the 
treatment of Asians will frame the next phase of the legal debate over 
race-conscious admissions programs.Just last year, the Supreme Court upheld the 
constitutionality of the University of Texas at Austin’s affirmative-action 
program, which, like Harvard’s, aims to build a diverse class along multiple 
dimensions and considers race as one factor in a holistic review of each 
applicant. Justice Kennedy, writing for the majority, approved of a 
university’s ability to define “intangible characteristics, like student body 
diversity, that are central to its identity and educational mission.” 
Incidentally, the phrase “intangible characteristics” echoes the sort of 
language that often describes the individualizing or leadership qualities that 
many Asian-American applicants, perceived as grinds with high test scores, are 
deemed to lack. The complaint against Harvard highlights the school’s history 
of using similar language to describe Jewish students nearly a century ago, 
which led to a “diversity” rationale designed to limit Jewish enrollment in 
favor of applicants from regions with fewer Jews, such as the Midwest. If 
diversity of various kinds is central to an élite school’s mission, an Asian 
may have to swim upstream to be admitted.The U.T. affirmative-action case was 
brought by a white student and financed by Edward Blum, a white Jewish 
conservative who is also financing the lawsuit against Harvard. Justice Alito’s 
dissent in the U.T. case said that, in failing to note that U.T.’s admissions 
practices discriminated against Asians, the Court’s majority acted “almost as 
if Asian-American students do not exist.” For Asian-Americans—the majority of 
whom support affirmative action—being cast in the foreground of the 
affirmative-action debate can be awkward and painful. Affirmative action has 
consistently been a “wedge” issue, and groups such as Asian Americans Advancing 
Justice have opposed attempts to use Asian students as the wedge in 
conservative attacks on affirmative action that may harm black and Latino 
students. Some simply deny that race-conscious admissions procedures are 
disadvantaging Asians at all, which avoids confronting a complicated 
dilemma.The Harvard lawsuit does raise uncomfortable questions, especially in a 
time when it is also becoming less comfortable to be an immigrant. Is an 
admissions process that disadvantages a minority group benign, or even 
desirable, if that minority group is demographically overrepresented in higher 
education? Should colleges pursue their interest in a diverse class by limiting 
admissions of a minority group whose numbers may otherwise overwhelm the 
class?Because our legal doctrine prohibits racial quotas, it is currently 
impossible to have an honest discussion of these questions. The truth is that, 
in addition to a holistic review of each applicant that considers race as one 
factor, colleges undertake some amount of balancing so that they do not end up 
with a class that is swamped by members of any particular race—or with too many 
scientists, poets, or dancers, for that matter. But admissions offices cannot 
admit to efforts at racial balancing or anything that sounds remotely like 
quotas. Hence, Harvard’s litigation position must attribute the resulting race 
composition and the percentage of Asians in its class solely to the holistic 
method, admitting to no racial balancing. This account is plausible if, in 
fact, despite disproportionately strong academic credentials, Asian applicants 
are severely less likely than white ones to have the special personal qualities 
that colleges seek. That is the inevitable implication of Harvard’s position, 
which would be in line with long-standing perceptions of Asians as 
indistinguishable from one another. The lawsuit may well entail an inquiry into 
whether Asian applicants’ non-academic qualifications were disproportionately 
un-special compared to those of white applicants. (In addition to Harvard 
submitting comprehensive admissions data for discovery in the case, several 
competitive high schools with large numbers of Asian students are also being 
asked to provide information about their students’ applications to Harvard.)But 
this lawsuit, and much of the discussion of affirmative action that surrounds 
it, makes a serious error in assuming that, in order to stop discrimination 
against Asian applicants, race-conscious affirmative action must end. The 
argument simply proves too much. Continued use of affirmative action of the 
kind upheld by the Supreme Court is perfectly compatible with tackling the 
discrimination at issue. The problem is not race-conscious holistic review; 
rather, it is the added, sub-rosa deployment of racial balancing in a manner 
that keeps the number of Asians so artificially low relative to whites who are 
less strong on academic measures. It is also time to look seriously at the 
impact on Asians (many of them immigrants or the children of immigrants) of the 
advantage enjoyed by legacy admissions and wealthy families who are likely to 
give significant donations. It distorts and confuses the debate to lay the 
preferential treatment for whites over Asians at the feet of affirmative 
action—or, on the other side, to deny that Asians are disadvantaged in 
admissions today.In the pursuit of diversity, some amount of racial balancing 
seems unavoidable, however taboo. We should not want the composition of our 
élite universities to be wildly out of proportion to the racial composition of 
our country. Such lopsided access to gateways of opportunity and power—say, 
with whites being severely underrepresented at schools like Harvard—has the 
potential to fuel dangerous resentment and disturb social peace, at least if 
the change occurs too far ahead of demographic changes that are projected to 
make whites a minority in this country in less than three decades. I would not 
relish seeing the nation’s most élite colleges become majority Asian, which is 
what has resulted at selective high schools, such as Stuyvesant, that do not 
consider race in admissions at all. It is also extremely troubling when solely 
test-based admissions such as Stuyvesant’s reflect the failure to remedy 
structural disadvantages suffered by black and Latino students. What is needed 
instead, then, is race-conscious affirmative action, to address the historic 
discrimination and underrepresentation of blacks and Latinos, in combination 
with far less severity in the favoring of whites relative to Asians.Harvard and 
other schools will vigorously defend their use of race-conscious affirmative 
action along the lines previously upheld by the Supreme Court. Outside of 
court, the Asian-discrimination claim may move colleges to refine their 
admissions procedures and better calibrate for diversity and fairness. It is 
unrealistic to think that universities like Harvard can immediately stop 
privileging white applicants, given the current whiteness of their donors, but 
that picture will change over time. It was as Jews gained more political power 
and became more likely to be donors that élite schools’ discrimination against 
them waned. And, for the first time, racial minorities are a majority of this 
year’s entering class at Harvard. The enrollment of Asians is the highest ever, 
at more than twenty-two per cent, with their increased share cutting into 
white, rather than black or Latino, enrollment. Those trends will be hard to 
reverse, and other schools will follow suit. For Asian-American students, the 
imperative to show originality will continue. But I hope that we can soon say 
goodbye to the admissions ritual whereby an Asian student is paradoxically 
expected to represent other Asians by proving she is different from them.

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