Affirmative Action in the 21st Century: What the Harvard Lawsuit Says About Race in America

Affirmative Action in the 21st Century: What the Harvard Lawsuit Says About Race in America

By Karen Wang

“I don’t know how high the bar has to be,” Shihong Cai, the mother of high school senior Cadmus Cai, cries to VICE News correspondents after learning of her son’s deferral from the University of Pennsylvania. “We don’t know if it’s just he’s not good enough for Penn, or he’s just not the lucky one, or—the words I really do not want to say—[it’s] because of our race.” She pauses, teary-eyed as she says, “No matter how good you are, it’s just not good enough because you’re Asian.”

Cadmus and Shihong’s experience reflects an uncomfortable reality for many Asian Americans. Many Asian Americans have stellar academic and extracurricular records, but fail to gain admission into America’s top colleges and universities. In recent years, several Asian Americans have accused top American colleges and universities of admissions discrimination against Asian Americans, often citing affirmative action as a major reason for their admissions results, ultimately culminating in a major lawsuit, Harvard v. Students for Fair Admissions, Inc.

With the Harvard v. Students for Fair Admissions, Inc. lawsuit in the headlines of several major news sources, many Americans, specifically Asian Americans, have been forced to confront and face unpleasant truths about race and affirmative action.


  1. What is Affirmative Action?

Affirmative action is a term that describes admissions policies that favor groups that have historically been discriminated against. The most widely known use of affirmative action is race-based affirmative action, which allows colleges and universities to use race as one of many factors when reviewing applicants for admission.

Race-based affirmative action must pass a “strict scrutiny” test set by the Supreme Court that proves that the only way the institution can diversify the student body is through race-based admissions policies (Fisher v. Texas). In previous cases, the Supreme Court has established that race must be just one of many factors to be considered in a holistic admissions process.

Contrary to popular belief, affirmative action is not a quota (Regents of the University of California v. Bakke), nor a certain number of points added to some applicants’ admissions scores (Johnson v. University of Georgia and Gratz v. Bollinger).

Justice Sandra Day O’Connor coined the terms “narrowly tailored” and “compelling interest” in relation to affirmative action, referring to how colleges and universities can only use race as an admissions factor in a limited fashion in order to diversify the student body and provide the educational benefits associated with diversity to its students (Grutter v. Bollinger).


Historically, affirmative action has been used most prominently to increase the admission rates of African American and Hispanic students, specifically those with low-income backgrounds. However, while in previous years white Americans alleged discrimination in the admissions process, now Asian Americans have found themselves in the center of a political debate over the value of meritocracy and diversity in schools.


  1. Asian Americans Face Intense Pressure to Succeed Academically

Historically, Asian Americans have been over-represented in Ivy League and other prestigious American educational institutions. But, statistically, the representation of Asian Americans in prestigious educational institutions has not kept pace with the increase in the Asian American population.

In recent years, Asian Americans have been faced with a strange paradox: in order to get into the top schools in the country, they must separate and distinguish themselves from other Asian Americans, while still being able to “represent” Asian Americans in the student body.

Many Asian American groups have argued that Asian Americans have always been overqualified to an extent, and this has led to murky admission decisions and an increased pressure on Asian American students to load up on extracurriculars and contests and awards.

Several people have argued that it is unfair for a minority to dominate America’s top secondary educational institutions, while others have argued that it is unfair that Asian Americans must work much harder than their non-Asian counterparts to have an equal chance for admission.

A study by Princeton University found that Asian Americans must score at least 140 points more than their white peers on the SAT to have an equal chance at admission to the country’s most prestigious colleges and universities.

In addition to higher test scores, many Asian American students put intense pressure on themselves to succeed academically, sometimes even pushing themselves past the breaking point in order to achieve desirable results.

According to Mental Health America (MHA), over 13% (about 2.2 million) of Asian Americans have a diagnosable mental disorder. Asian Americans also have the highest rate of considering, attempting, and successfully committing suicide, with a whopping 18.9% of Asian American high school students reporting that they have considered suicide, compared to 15.5% of white Americans.

Although mental health issues and academic pressure are not necessarily correlated, it is difficult to find an explanation for the nearly 1 in 5 Asian American high school students who have considered suicide that doesn’t include the current education system and the intense stress many Asian American students place themselves under.


  1. There Are Admissions Policies that Benefit White Americans

While speaking about affirmative action, it is important to note that there are other admissions policies that, in practice, largely benefit white Americans only. Most prominent of these policies is a preference or special consideration given to legacy students, also known as “legacy policies.”

Legacy policies refer to admissions policies that favor or give additional status or consideration to applicants who have at least one parent who attended the same institution. Proponents of legacy policies have suggested that legacy students enable colleges and universities to foster a stronger alumni community and control tuition costs for students from low-income backgrounds.

A survey conducted in 2018 by Inside Higher Ed found that at least 42% of private institutions and at least 6% of public institutions consider legacy status as part of their admissions process.

Multiple studies have shown that an increased amount of legacy students does not result in increased donations, disproving the notion that legacy students help pay for the tuition of their low-income peers.

Students for Fair Admissions, the plaintiff in the Harvard case, reported that between 2009 and 2016, legacy applicants were accepted at a rate of 34%, compared to the meager 5.9% acceptance rate of non-legacy applicants. According to Harvard, legacy students make up 14% of the current undergraduate student body.

Harvard has pushed back at criticism of their legacy status admissions policies, stating that legacy preference creates diversity between those who have no previous connections to Harvard and those who have many connections to the college.

It is important to note that until just a few decades ago, many of America’s most prestigious universities all looked something like this: lecture halls upon lectures halls of white, affluent men. That certainly helps one visualize what kinds of students are currently benefiting from legacy policies.

Other admissions policies also put Asian Americans at a disadvantage, such as favoritism placed on athletes. At Harvard specifically, recruited athletes are admitted at a rate of 80%. However, athlete favoritism is a policy that doesn’t specifically benefit white Americans in the same disproportionate way that legacy policies do.


  1. The Harvard v. Students for Fair Admissions, Inc. Case

In November 2014, a nonprofit membership group called Students for Fair Admissions filed a lawsuit against Harvard University and University of North Carolina-Chapel Hill.

The suit alleged that Harvard discriminated against Asian American applicants and altered admissions scores in order to continue to maintain a racially balanced student body.

Prior to court proceedings, witnesses from both sides were given admissions data from Harvard to manipulate and conduct statistical analysis of.

Students for Fair Admissions presented an analysis that showed that although Asian Americans had higher admissions scores in the “academic” and “extracurricular” categories, Asian Americans consistently fell behind in one specific category: “personal” scores related to personality and character. When their experts limited the data to only include top students with high-performing academic records, the gap widened and became even more pronounced.

The analysis, conducted by a Duke University economist, found that only 20% of high-performing Asian Americans received high personal ratings, compared to 28% of white Americans, 41% of African Americans, and 32% of Hispanics.

Harvard commissioned a separate analysis of the admissions data, conducted by a University of California-Berkeley economist, which ultimately found that being Asian-American did not affect the likelihood of an applicant being accepted into the university in a statistically significant manner.

The difference between these two analyses can be explained by one key factor: Students for Fair Admissions specifically excluded a group they referred to as ALDCs, which encompassed recruited athletes, “legacy” children of alumni and faculty, and members of the dean’s interest list, citing that these groups have higher admissions rates than the general population and would have significantly affected the results.

In contrast, Harvard argued that it is impossible to make conclusions about admissions bias without taking the whole applicant pool into account. In addition, eight Harvard students and alumni took the witness stand to defend the university’s race-conscious admissions process.

During court proceedings, the courthouse was regularly filled with students, parents, school officials, and other community members. After watching hours of testimony, one parent, Jane Chen, stated that it was an “open secret” that Asian Americans needed to work much harder to get into top schools. Although Chen is a supporter of the concept of affirmative action, she also said, “I don’t know why Asians are so unlikeable through the school’s eyes.”


  1. The Role of Asians in Modern White Supremacy

The Harvard v. Students for Fair Admissions, Inc. case was spearheaded by Edward Blum, the same man behind the Fisher v. University of Texas case that alleged reverse discrimination against white applicants. Blum has previously stated that his goal is to eliminate race as a factor in admissions practices. A conservative political activist, Blum has been known for his criticism and activism against laws involving race and ethnicity since the 1990s.

Blum’s involvement in the cases, which focus on Asian Americans instead of whites this time, has sparked anger and outrage for some Asian Americans.

“When you look at his track record, it’s very clear that he does not care about Asian Americans or people of color,” Jang Lee, a senior at Harvard, said.

Others have also warned against Asian Americans allowing themselves to become embroiled in a longstanding struggle between white students and admission into prestigious institutions, stating that Asian Americans are being “used” by whites to eliminate race-conscious admissions completely.

This concern is reflective of a persistent trend in recent race relations: pitting Asian Americans against other minorities in order to support preexisting systems of oppression and discrimination.

The long-held stereotype of Asian Americans as a “model minority” has been used to hurt and perpetuate racist ideologies against the black and Hispanic communities, where some have pointed to the wealth and success of Asian immigrants as an indicator that other minorities are “not working hard enough” in comparison.

However, this belief relies on several assumptions that are simply not true.

Firstly, this ideology doesn’t account for the fact that, unlike the black or Hispanic communities, many Asian Americans are the product of a highly selective immigration process, where only the best of the best can arrive and stay in the US. This is especially true among East and South Asian Americans; 72% of Indian Americans and 54% of Chinese Americans hold a bachelor’s degree or higher according to the Pew Research Center.

Secondly, the “model minority” myth ignores the fact that Asians have the most extreme wealth gap of any racial group in the US. A Pew Research Center study found that the ratio of wealth between the wealthiest and poorest 10% of Asians in 2018 was 10.7, compared to 9.8 for blacks, 7.8 for whites, and 7.8 for Hispanics. This income disparity is even more pronounced when looking at separate ethnic groups; for example, the Pew Research Center found that the median household income for Burmese Americans was $36,000, compared to $100,000 for Indian Americans, who are 8 times more likely to hold a bachelor’s degree or higher.

Not all Asian Americans are as wealthy and successful as some whites make them out to be. All too often, Americans overlook the fact that a significant portion of Asian Americans are refugees, don’t have a high school degree, or live below the poverty line in districts that have underfunded and understaffed public schools. According to the Pew Research Center, over one-third of Burmese and Bhutanese Americans live in poverty. Would we point to these Asian American populations too when berating other minorities for having high poverty rates?

In recent years, the Asian American community, especially the wealthier side of the Asian American community, has been at odds with the black and Hispanic communities, and the affirmative action debate has acted as an extension of that racial tension.

Antiblack and anti-Hispanic sentiment has been alive and well in many Asian American communities, and it is difficult to find an East or South Asian American who doesn’t know someone who has at least made an ill-intentioned joke about blacks or Hispanics.

From my personal experience, affirmative action has exacerbated racial conflict and, sadly, racist sentiment among Asian Americans.

A classmate of mine in middle school mourned her many rejection letters from prestigious East Coast boarding high schools by telling me, while still in tears, “I probably could have gotten in if I was African American or Hispanic.”

A family friend in Texas joked that his son should change his name to “José” to increase his chances of getting into Ivy League schools, saying that it would be pretty cheap to legally change his son’s name and cleverly have his son check the “prefer not to say” box under the race and ethnicity sections of his college applications.

One of my mother’s coworkers changed his son’s last name from “Xie” to “Shay.” Same pronunciation, completely different implications. Ultimately, this man decided that having a different last name than his biological son was worth being able to give his son a racially ambiguous name.

This kind of behavior is unacceptable, and it disturbingly echoes similar racist sentiments expressed by whites in the 1990s and early 2000s, many of whom expressed frustration at how “minorities” were taking “their spots” at prestigious colleges and universities.

Asian Americans have failed to recognize how some political activists are using affirmative action to further pit Asian Americans against the black and Hispanic communities and distracting them from other admissions policies that negatively impact their admissions results, such as athlete and legacy favoritism.

Most importantly, Asian Americans are fostering a shaky alliance with conservative, right-wing activists that, while it may help increase some Asian Americans’ chances of being accepted into prestigious colleges and universities, ignores and distracts from larger Asian American issues, such as workplace discrimination (otherwise known as “the bamboo ceiling”), that will have a greater and more lasting impact on the livelihood and future of Asian Americans.


  1. Why We Still Need Affirmative Action

Stark differences in average income, education acquisition, and overall wealth feed into further educational inequality at the collegiate level. In 2014, the College Board released a statistical analysis that revealed that the SAT heavily favored affluent, educated families. In 2016, the ACT released a similar analysis that showed that students whose household income was above $80,000 scored over four points more on average than their less wealthy counterparts.

In October 2018, the plaintiff in the Harvard case argued that affirmative action based on socioeconomic status would be more effective for Harvard’s diversity purposes. Harvard officials swiftly rejected this notion, stating that affirmative action based on socioeconomic status would result in a significant decrease in the academic quality of its student body.

It is irrefutable that classism plays a distinct role in college admissions. Students can only have a long list of extracurriculars if they have a stable household income that doesn’t require them to work outside of school to support their families or have access to transportation that can allow them to attend and participate in these extracurriculars. Standardized test scores and other components of college applications also heavily favor students from wealthier families.

Income inequality has increased by 27% from 1970 to 2016, according to the Pew Research Center. An analysis conducted by an economist of data from the Survey of Consumer Finances found that the wealthiest 1% of Americans control 40% of America’s overall wealth, a level not seen since 1962. The analysis also found that the wealthiest 1% control more wealth than the poorest 90% of Americans combined.

Wealth inequality among racial groups is extreme as well. A study by Prosperity Now and the Institute for Policy Studies found that in 2013, the median household wealth for white Americans was $116,800, compared to $1,700 and $2,000 for black and Hispanic households, respectively. The research also revealed that, if current trends continue, it would take 228 years for the average black family to reach the same level of wealth the average white family has today.

In a separate study, the Urban Institute found that homeownership, a key wealth-building measure, was much more prevalent among whites, with 68% of whites in 2016 owning a home, compared to 42% and 46% for black and Hispanics, respectively. The study also found that in 2016, the average family liquid retirement savings for whites was about 5 to 6 times more than that of blacks and Hispanics. Black families on average had more student loan debts as well, something that can likely be directly attributed to wealth disparity.

In 2016, the Bureau of Labor Statistics found that unemployment rates decreased with higher education levels and that those with professional degrees made, on average, over three times more a week than their counterparts without a high school diploma.

Why does this matter? This data demonstrates that if America’s most prestigious institutions rely on a solely meritocratic, race and ethnicity-blind admissions process, then those institutions will become filled with wealthy students, most likely from white, East Asian, and South Asian backgrounds and whose parents likely graduated from prestigious institutions as well.

Education is a real solution for families living in poverty, especially when attempting to break a generational cycle of poverty. With such a difference in employment and salary opportunities between education levels, it is undeniable that education is a valuable tool for many trying to escape poverty.

However, the current educational system puts wealthy students at an advantage over their less wealthy peers. Implementing a pure meritocracy based on standardized test scores, academics, and extracurriculars will only widen that advantage. And a pure meritocracy is no different from a modern caste system, where class mobility is nearly impossible and one’s future and access to opportunities are determined at birth.


  1. A Tough Reality

So what is the truth here, according to Harvard? Is it that students from low-income backgrounds are poor students? Is it that Asian Americans have worse personalities in comparison to other racial groups? Is it that legacy students have a birthright to attend the same school as their parents?

In any case, one thing is obvious: Harvard is looking for a diversity tailored to their own specific interests that includes legacy students but not necessarily students of low socioeconomic status. What remains unclear is if their ideal ratio of different race groups, which has remained steadily and mysteriously unchanged for many years despite the fact the university must receive a different set of applicants every year, is legal or not.

For Asian Americans, who live in a paradoxical reality where they are minorities who do not benefit from affirmative action, this is a difficult time to be reading the news. The judge in the Harvard case is expected to release her findings in early 2019. Until then, Asian Americans will be waiting in limbo to see if Harvard really discriminated against Asian American applicants or not and find out what this case means for the future of American college and university admissions.

“You know you’re good,” Shihong says comfortingly to her disappointed son after he reveals he has been deferred. “No matter where you go.”

There isn’t a perfect or black-and-white solution when it comes to affirmative action and the use of race in admissions processes, but I’ll tell you what isn’t a solution at all: changing nothing about the current admissions system.

It is more than clear that the current admissions system isn’t working for all Americans, and it is our duty as citizens of this country to continue to advocate and help search for a system that is fair to all Americans.

Image courtesy of Mother Jones

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