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THE HARVARD PLAN THAT FAILED ASIAN AMERICANS In November 2014, Students for Fair Admissions (SFFA) filed a complaint against Harvard College in federal district court.1 SFFA claims that Harvard discriminates against Asian Americans by holding them to higher admissions standards than any other racial group, including whites.2 Because Harvard is an institution that accepts federal funds, it “violates Title VI when it engages in racial or ethnic discrimination [prohibited by] the Equal Protection Clause of the Fourteenth Amendment.”3 SFFA argues that Harvard’s race-based admissions program is impermissible under Supreme Court precedent. Beyond that, SFFA urges “the outright prohibition of racial preferences in university admissions — period.”4 Ironically, the allegedly discriminatory “Harvard Plan” is the very one that Justice Powell held up as a model in Regents of the University of California v. Bakke5 and the admissions program that American universities have emulated for decades.6 For the last thirty years, Asian admissions has been a hot topic.7 Rumors, and sometimes concrete evidence, of racial discrimination and ceiling quotas fuel the controversy. The Princeton Review advises applicants that “an Asian-sounding surname” may be a disadvantage.8 Asian parents, many of whom immigrated to the United States for their children’s education, have staged protests outside of the Supreme Court.9 And Pacific Islanders — traditionally classified with Asians ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 Complaint, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 308 F.R.D. 39 (D. Mass. 2015) (No. 14-cv-14176) [hereinafter SFFA Complaint]. On the same day, SFFA also filed a complaint against the University of North Carolina, although it did not specifically focus on Asian Americans. Complaint, Students for Fair Admissions Inc. v. Univ. of N.C., 319 F.R.D. 490 (M.D.N.C. 2017) (No. 1:14-cv-954). 2 See SFFA Complaint, supra note 1, at 43–53. 3 Id. at 94. This Note assumes that the Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-7 (2012), and equal protection analyses are coextensive — private institutions that receive federal funding, like Harvard University, are subject to the same requirements as public institutions like the University of Michigan. See Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003) (“We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.”). 4 SFFA Complaint, supra note 1, at 6. 5 438 U.S. 265, 316–17 (1978) (Powell, J.). 6 See SUSAN WELCH & JOHN GRUHL, AFFIRMATIVE ACTION AND MINORITY ENROLLMENTS IN MEDICAL AND LAW SCHOOLS 63 (1998) (describing university responses to Bakke). 7 This Note uses the terms “Asian” and “Asian American” interchangeably. Furthermore, this Note discusses Asian Americans as a whole but recognizes that different subgroups may be affected differently by affirmative action policies. 8 THE PRINCETON REVIEW, CRACKING COLLEGE ADMISSIONS 174 (John Katzman et al. eds., 2d ed. 2004). 9 Emil Guillermo, As SCOTUS Hears Affirmative Action Arguments, Asian American Advocates Weigh In, NBC NEWS (Dec. 10, 2015, 3:09 PM), https://www.nbcnews.com/news/ 604 2017] THE HARVARD PLAN THAT FAILED ASIAN AMERICANS 605 under the label “Asian Pacific American” — have become so concerned about an admissions handicap that they have withdrawn from the Asian category to group themselves with Native Hawaiians.10 Within the Asian American community, the topic of affirmative action can be divisive. While a vocal minority wants completely race-blind admissions, many more support affirmative action programs for underrepresented minorities.11 Their objection is to “negative action,” or unequal treatment in comparison to the white majority.12 This Note proceeds in three Parts. Part I considers the arguments that SFFA and other Asian American organizations have made, and provides a brief history of previous investigations and legal actions. Part II analyzes the Supreme Court’s diversity rationale and argues that its development has been harmful for Asian students. Under the Court’s affirmative action decisions, litigants like SFFA face an uphill battle. Part III returns to where it all started: with Justice Powell in Bakke. Through an examination of Justice Powell’s notes and correspondence, this Note argues that his endorsement of the Harvard Plan was shortsighted and unwise. Even in 1978, the dangers of the diversity rationale should have been apparent. I. ASIAN AMERICAN CHALLENGES TO ADMISSIONS POLICIES A. The Evidence Asian American groups have made similar types of arguments in past and current complaints alleging discriminatory admissions policies. Due to the inherent difficulty of proving racial discrimination, their arguments rely heavily on statistical evidence. Admissions data in the aggregate, they say, show that universities hold Asians to higher standards than all other groups. Doing so is the equivalent of applying race-based penalties to Asian applicants. First, Asian Americans challenge the notion that they are overrepresented. The question of parity depends on the baseline for comparison: although Asians are overrepresented in relation to the general population, they tend to be the most underrepresented group when compared to the applicant pool. Studies show that Asians have the lowest acceptance rates of all racial groups.13 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– asian-america/scotus-hears-affirmative-action-arguments-asian-american-advocates-weigh-n477806 [https://perma.cc/3LDF-GW3d]. 10 See DANIEL GOLDEN, THE PRICE OF ADMISSION 204 (2006). 11 Nancy Leong, The Misuse of Asian Americans in the Affirmative Action Debate, 64 UCLA L. REV. DISCOURSE 90, 93 (2016). 12 See William C. Kidder, Essay, Negative Action Versus Affirmative Action: Asian Pacific Americans Are Still Caught in the Crossfire, 11 MICH. J. RACE & L. 605, 605–06 (2006). 13 See, e.g., ASIAN AM. COAL. FOR EDUC., COMPLAINT FOR UNLAWFUL DISCRIMINATION AGAINST ASIAN-AMERICAN APPLICANTS IN THE COLLEGE ADMISSIONS PROCESS 12–13 606 HARVARD LAW REVIEW [Vol. 131:604 Second, complainants assert that the low rates of acceptance are especially egregious given that Asian Americans tend to be better qualified than the average applicant. This is demonstrable at least with regard to quantifiable academic qualifications. At the top range of SAT scoresenders — from which selective institutions draw the majority of their students — around 50% are Asian.14 Similar patterns exist for other conventional indicators of academic merit, including the National Merit Scholarship, Intel Science Talent Search, and various national awards for high school students.15 Put another way, Asians must perform better than all other groups to have the same chance of admission. One study showed that in order to be admitted to certain selective institutions, Asian applicants needed to score — on the 1600 point scale of the “old SAT” — 140 points higher than whites, 270 points higher than Hispanics, and 450 points higher than African Americans if other factors are held equal.16 Third, Asian Americans point to the stability of racial demographics at universities. While the number of Asian applicants has increased manifold in the last few decades, the number of admitted students has stagnated, with some variation.17 By comparison, institutions that do not employ race-based affirmative action programs, such as Caltech, have seen a dramatic increase in Asian enrollment “commensurate with the increase of college-age Asian-Americans.”18 This, according to complainants, is evidence of informal quotas and racial balancing — similar to the de facto ceiling quotas imposed on Jewish students in the early twentieth century.19 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– (2016) [hereinafter AACE COMPLAINT], http://asianamericanforeducation.org/wp-content/ uploads/2016/05/Complaint_Yale_Brown_Dartmouth_Full.pdf [https://perma.cc/R3BN-TPXF]. In a comprehensive study of ten academically selective institutions, Professor Thomas Espenshade and sociologist Alexandria Walton Radford found that both public and private institutions admitted Asians at the lowest rates. THOMAS J. ESPENSHADE & ALEXANDRIA WALTON RADFORD, NO LONGER SEPARATE, NOT YET EQUAL 80 tbl.3.3 (2009). 14 See SFFA Complaint, supra note 1, at 47. 15 Ron Unz, The Myth of American Meritocracy: How Corrupt Are Ivy League Admissions?, AM. CONSERVATIVE (Nov. 28, 2012), http://theamericanconservative.com/articles/the-myth-ofamerican-meritocracy/ [https://perma.cc/B35H-83NF]. 16 ESPENSHADE & RADFORD, supra note 13, at 92 tbl.3.5. The study controlled for other factors, including but not limited to, social class, being a recruited athlete, and legacy status. See id. It is possible that Asians are underqualified with regard to nonacademic factors, but the few studies that have researched the issue, including one by the U.S. Department of Education, have found no correlation between race and extracurricular achievements. See, e.g., Shawn Ho, A Critique of the Motivations Behind Negative Action Against Asian Americans in U.S. Universities: The Model Victims, 5 COLUM. J. RACE & L. 79, 93 (2015). 17 See, e.g., SFFA Complaint, supra note 1, at 69; AACE COMPLAINT, supra note 13, at 15–16. 18 AACE COMPLAINT, supra note 13, at 15. 19 See, e.g., JEROME KARABEL, THE CHOSEN 110–26 (2005); Stephen Steinberg, How Jewish Quotas Began, COMMENTARY (Sept. 1, 1971), https://www.commentarymagazine.com/articles/ how-jewish-quotas-began/ [https://perma.cc/HNS4-YM7F]. 2017] THE HARVARD PLAN THAT FAILED ASIAN AMERICANS 607 B. Legal Challenges by Asian Americans Asian American groups have made variants of these arguments since the early 1980s and have filed multiple complaints against and urged investigations into a number of universities. At Stanford, the Committee on Undergraduate Admissions and Financial Aid, after an exhaustive internal investigation, conceded negative action against Asian applicants.20 Its 1986 report stated: “No factor we considered can explain completely the discrepancy in admission rates between Asian Americans and whites.”21 Subconscious bias by admissions officers was likely the culprit, it concluded, but the Committee “elected not to investigate the bias because ‘the analysis required would be formidable.’”22 A similar episode took place at Brown, where an internal committee found that “Asian American applicants have been treated unfairly in the admissions process.”23 On the other hand, internal investigations at Cornell, Princeton, and Harvard did not find discrimination against Asian applicants.24 In 1988, the U.S. Department of Education launched two highprofile civil rights investigations into Harvard and UCLA. After two years of review, the Office of Civil Rights (OCR) cleared Harvard but found that UCLA had discriminated against Asian applicants.25 OCR determined that UCLA’s graduate math program had not complied with Title VI because it had rejected Asian students whose qualifications were comparable to admitted white students. Per the OCR order, UCLA made “belated admissions offers” to the rejected students.26 At Harvard too, OCR found that Asian students were admitted at significantly lower rates than similarly qualified white students. But Harvard’s preference for legacy applicants and recruited athletes explained the disparity. The report concluded: “OCR finds that Harvard’s use of preferences for children of alumni, while disproportionately benefiting white applicants, does not violate Title VI of the Civil Rights Act of 1964.”27 Now is an important moment for Asian Americans and university admissions. In addition to the SFFA lawsuit against Harvard and a ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 20 21 22 23 DANA Y. TAKAGI, THE RETREAT FROM RACE 39–40 (1992). Id. Id. at 40. Id. at 29. Like Stanford, Brown maintained that the unequal treatment was unintentional and due to cultural bias. KARABEL, supra note 19, at 501. 24 TAKAGI, supra note 20, at 9. 25 Id. at 164. 26 Id. 27 KARABEL, supra note 19, at 505. 608 HARVARD LAW REVIEW [Vol. 131:604 potentially related Department of Justice investigation,28 Asian Americans have filed federal civil rights complaints against, among others, Yale University, Columbia University, and the University of Chicago.29 II. THE LAW OF AFFIRMATIVE ACTION Current law on affirmative action is based on Justice Powell’s lone opinion in Bakke,30 which shifted the justification for racial preferences from remedying societal discrimination to the attainment of diversity. This shift has had a largely negative impact on Asian applicants. A. The Supreme Court Decisions Affirmative action in higher education grew out of the civil rights movement. After centuries of discrimination and segregation, minorities in America did not — and could not — rush into universities the moment they finally opened their doors.31 University administrators, troubled by their overwhelmingly white student bodies, established affirmative action programs to assist minority groups that had been disadvantaged by past and present discrimination.32 These early programs included Asian Americans along with other minorities.33 Race-based preferences quickly became controversial, largely due to white students’ objections to “reverse discrimination.”34 In 1978, the issue came before the Supreme Court in Bakke. Justice Powell’s pivotal opinion recognized “the attainment of a diverse student body” as a compelling state interest under the Equal Protection Clause.35 The diversity ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 28 William S. Flanagan & Michael E. Xie, Justice Department Actively Investigating Harvard Admissions, HARV. CRIMSON (Oct. 11, 2017), http://www.thecrimson.com/article/2017/10/11/foiaconfirms-doj-investigation/ [https://perma.cc/GGC8-EUG6]. 29 AACE COMPLAINT, supra note 13, at 12. 30 Allan Bakke, a white male, was twice rejected by the Medical School of the University of California at Davis. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 276–77 (1978). Each year, the medical school accepted a class of one hundred students but reserved sixteen spots exclusively for minorities. Id. at 279. 31 See Colin S. Diver, From Equality to Diversity: The Detour from Brown to Grutter, 2004 U. ILL. L. REV. 691, 695–96. 32 Id. at 695. 33 See, e.g., Sharon S. Lee, The De-Minoritization of Asian Americans: A Historical Examination of the Representations of Asian Americans in Affirmative Action Admissions Policies at the University of California, 15 ASIAN AM. L.J. 129, 132–33 (2008). 34 See Bakke, 438 U.S. at 288 & n.25 (Powell, J.). 35 Id. at 311; see also id. at 311–12, 314. The Court divided 4–4–1. Chief Justice Burger and Justices Stewart, Rehnquist, and Stevens concluded that the special admissions program was racially discriminatory and violated Title VI. Id. at 421 (Stevens, J., concurring in the judgment in part and dissenting in part). Thus, they declined to address the constitutional issue. Id. at 411–12. Justices Brennan, White, Marshall, and Blackmun defended the Davis program as permissible under both Title VI and the Fourteenth Amendment. In addition, they endorsed the remedial rationale. Id. at 325–26 (Brennan, J., concurring in the judgment in part and dissenting in part). 2017] THE HARVARD PLAN THAT FAILED ASIAN AMERICANS 609 rationale invoked First Amendment values, particularly the “freedom of a university to make its own judgments as to education[,] includ[ing] the selection of its student body.”36 In endorsing diversity, Justice Powell rejected the other rationales offered by the University of California, including its predominant one of “remedying the effects of ‘societal discrimination.’”37 The concept of general societal discrimination against minorities — without “particularized findings of past discrimination”38 — was simply too “amorphous” to justify the burden on innocent white applicants like Allan Bakke.39 Although Justice Powell was the lone Justice to favor the diversity rationale at the time, his opinion was typically viewed as controlling, and the Supreme Court later endorsed it in Grutter v. Bollinger40 and Fisher v. University of Texas at Austin (Fisher II).41 Today, diversity remains the primary compelling interest that can justify race-based admissions programs in higher education. 1. The Ends: Defining Diversity. — For the purposes of this analysis, the Court’s diversity rationale stands out in three ways: deference to the university, inseverability from proportionate representation, and departure from the original antidiscrimination goals of affirmative action programs. The Supreme Court has never sought to define diversity with much precision: How much diversity is sufficient? How big of a role can race play in admissions? Is racial diversity equally important in engineering versus the liberal arts? What does student body diversity actually look like? Instead, the Court has left these questions to university administrators on the assumption that they are “complex educational judgments in an area that lies primarily within the expertise of the university.”42 Another, less explicit assumption holds that affirmative action programs are “benign” racial classifications that help minorities rather than “invidious” classifications that harm them.43 Despite the Court’s insistence ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 36 37 Id. at 312 (Powell, J.). Id. at 307. As Justice Powell explained, because Davis Medical School was a new institution with no history of racial discrimination as documented by a legislative, adjudicative, or administrative finding, the remedial rationale was inappropriate under these circumstances. See id. at 307– 10. This reasoning did not foreclose the use of the remedial rationale by institutions that had previously engaged in racial discrimination. See id. at 307. 38 Id. at 295 n.34. 39 Id. at 307. 40 539 U.S. 306 (2003). 41 136 S. Ct. 2198 (2016). 42 Grutter, 539 U.S. at 328. 43 See Richard H. Sander, A Systemic Analysis of Affirmative Action in American Law Schools, 57 STAN. L. REV. 367, 481 (2004). 610 HARVARD LAW REVIEW [Vol. 131:604 that it applies strict scrutiny to all racial classifications,44 it scrutinizes university affirmative action programs with considerably less rigor.45 Deference to the university is substantial, so much so that some commentators have argued that university administrators have a “blank check” to craft race-based admissions programs.46 The Court defers both to the university’s conclusion that “diversity is essential to its educational mission” and to its definition of student body diversity.47 It also presumes the university’s good faith, “absent ‘a showing to the contrary.’”48 Consequently, the Supreme Court “impose[s] no formal evidentiary requirement” on the university to justify its diversity interest.49 A legitimate interest in diversity is often defined in opposition to racial balancing, which the Court rejects as “patently unconstitutional.”50 But the difference between the two is too subtle to be meaningful. Racial balancing values “race for its own sake,”51 while diversity is compelling for the educational benefits that come with it.52 These benefits can be vague and abstract: “cross-racial understanding” and “break[ing] down racial stereotypes,” as well as the promotion of “learning outcomes” and “better prepar[ing] students for an increasingly diverse work force.”53 Because the Court presumes the good faith of admissions officers who purport to pursue educational benefits, it is difficult to imagine any admissions goal that could not be easily reframed from unconstitutional to constitutional.54 The Supreme Court’s decisions have approved an interpretation of diversity that relies on at least some notion of proportionate Universities aim to increase the number of representation.55 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 44 45 See, e.g., Fisher II, 136 S. Ct. at 2208; Grutter, 539 U.S. at 326. See RANDALL KENNEDY, FOR DISCRIMINATION 201 (2013). Professor John Jeffries, a former clerk for Justice Powell, notes: “Powell applied strict scrutiny with unexpected pliancy” in Bakke. John C. Jeffries, Jr., Bakke Revisited, 2003 SUP. CT. REV. 1, 7. 46 K.G. Jan Pillai, The Defacing Reconstruction of Powellian Diversity, 31 T. MARSHALL L. REV. 1, 37 (2005) (describing Justice O’Connor’s Grutter opinion). 47 Grutter, 539 U.S. at 328. 48 Id. at 329 (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 319 (1978) (Powell, J.)); see also TOM CAMPBELL, SEPARATION OF POWERS IN PRACTICE 124 (2004) (arguing that this presumption of good faith is “path-breaking”). 49 Angelo N. Ancheta, Contextual Strict Scrutiny and Race-Conscious Policy Making, 36 LOY. U. CHI. L.J. 21, 33 (2004). 50 Grutter, 539 U.S. at 330; see also Bakke, 438 U.S. at 305 (Powell, J.). 51 Grutter, 539 U.S. at 355 (Thomas, J., concurring in part and dissenting in part). 52 Id. at 329 (majority opinion). 53 Id. at 330. 54 During admissions season, the University of Michigan Law School Director of Admissions reviewed “daily reports” tracking the racial composition of admitted students. Id. at 318. He testified that he did not do this for racial balancing but for the attainment of diversity and its educational benefits. The Court accepted this explanation in Grutter. Id. 55 See Chan Hee Chu, Note, When Proportionality Equals Diversity: Asian Americans and Affirmative Action, 23 ASIAN AM. L.J. 99, 106–08 (2016). 2017] THE HARVARD PLAN THAT FAILED ASIAN AMERICANS 611 underrepresented minorities because, by definition, they belong to groups that have disproportionately low numbers on university campuses. On its face, the admissions goal of “critical mass,” first approved by the Court in Grutter, seems to cut against the idea of proportionate representation. Critical mass means “‘meaningful representation,’ . . . a number that encourages underrepresented minority students to participate in the classroom and not feel isolated.”56 This might suggest that critical mass is a threshold number that is similar for every group — whether a student feels isolated on campus has little to do with her racial group’s population in the state or country. But data do not support this theory. As Chief Justice Rehnquist noted in his Grutter dissent, each group’s apparent critical mass varies dramatically and correlates with population size.57 Justice Alito, dissenting in Fisher II, made the same observation. The University of Texas enrolled more Hispanics (19.9%) than Asians (18.6%),58 and its own research “showed that more classes lacked Asian-American students than lacked Hispanic students.”59 Yet of the two groups, the university considered only Hispanics to be “underrepresented” and below critical mass.60 This distinction appears to turn on Texas’s state demographics: 3.8% Asian and 37.6% Hispanic or Latino.61 Finally, the diversity rationale shifts focus away from the harmful impact of racism on minorities. In this respect it diverges the most from the remedial rationale. For the Court and many Americans, the diversity rationale is appealing precisely because it is more easily viewed as “colorblind.”62 At least in theory, anyone can contribute to and benefit from diversity. Justice Powell emphasized this point in Bakke — speaking approvingly of the Harvard Plan, which considered race as one diversity factor among others, he noted that a “farm boy from Idaho” can just as readily contribute to diversity as “a black student [who] can usually bring something that a white person cannot offer.”63 This made the Harvard Plan a “facially nondiscriminatory admissions policy.”64 Fisher II has taken this “de-racialized” notion of affirmative action to its logical extreme. Justice Kennedy’s majority opinion, in upholding the University of Texas admissions policy, asserted that race “does not ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 56 57 58 59 60 61 62 63 64 Grutter, 539 U.S. at 318. Id. at 383–85 (Rehnquist, C.J., dissenting). Fisher II, 136 S. Ct. 2198, 2224 n.2, 2236 (2016) (Alito, J., dissenting). Id. at 2219. Id. at 2219–20. Id. at 2224 n.2. But see David A. Strauss, The Myth of Colorblindness, 1986 SUP. CT. REV. 99, 99. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 316 (1978) (Powell, J.). Id. at 318. 612 HARVARD LAW REVIEW [Vol. 131:604 operate as a mechanical plus factor for underrepresented minorities.”65 This was demonstrated by the district court’s finding that “the consideration of race, within the full context of the entire application, may be beneficial to any UT Austin applicant — including whites and AsianAmericans.”66 This vision of diversity, albeit comforting in its colorblindness, disregards historical and social context.67 While the remedial rationale recognizes that lack of diversity is a consequence of racism,68 the diversity rationale promotes racial representation as an end in itself and allows even members of the white majority to benefit from the consideration of race. 2. The Means: Symbolic Limits. — Despite its deference to university administrators, the Court imposes constitutional limits on the means by which universities can consider race in admissions. These limits, however, are mainly symbolic and have almost no effect on admissions results. Notably, racial quotas are impermissible.69 This means that a university cannot — for any racial group — set aside “a fixed number or percentage which must be attained, or which cannot be exceeded.”70 By implication, it also means that all applicants must compete within the same pool: no group can be insulated from competition with other groups through “separate admissions tracks.”71 Numerical goals, on the other hand, are perfectly permissible. Goals are not quotas because they do not involve rigid numbers; they are flexible and can vary from year to year.72 As the dissenting Justices and commentators have pointed out, again and again, the line between quotas and goals is a thin one.73 In practice, universities may “‘sculpt’ the class with race and gender percentages in mind.”74 To avoid the appearance of quotas, admissions ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 65 Fisher II, 136 S. Ct. at 2207 (citing Fisher v. Univ. of Tex. at Austin, 645 F. Supp. 2d 587, 606 (W.D. Tex. 2009)). 66 Id. (quoting Fisher, 645 F. Supp. 2d at 606). But see Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 HARV. L. REV. 1470, 1538–39 (2004) (arguing that Justice O’Connor’s dicta in Grutter came closest to embodying the antidiscrimination values of the remedial rationale). 67 Selena Dong, Note, “Too Many Asians”: The Challenge of Fighting Discrimination Against Asian-Americans and Preserving Affirmative Action, 47 STAN. L. REV. 1027, 1046 (1995). 68 Trina Jones, The Diversity Rationale: A Problematic Solution, 1 STAN. J. C.R. & C.L. 171, 179 (2005). 69 Bakke, 438 U.S. at 316 (Powell, J.); see also Fisher II, 136 S. Ct. at 2203; Grutter v. Bollinger, 539 U.S. 306, 335 (2003). 70 Grutter, 539 U.S. at 335 (quoting Local 28 of the Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421, 495 (1986) (O’Connor, J., concurring in part and dissenting in part)). 71 Id. at 334 (citing Bakke, 438 U.S. at 315–16 (Powell, J.)). 72 Id. at 335. 73 See, e.g., id. at 389 (Kennedy, J., dissenting) (“[T]he concept of critical mass is a delusion used by the Law School . . . to achieve numerical goals indistinguishable from quotas.”). 74 Sara Harberson, The Truth About “Holistic” College Admissions, L.A. TIMES (June 9, 2015, 5:00 AM), http://www.latimes.com/opinion/op-ed/la-oe-harberson-asian-american-admission-rates- 2017] THE HARVARD PLAN THAT FAILED ASIAN AMERICANS 613 officers have been told to “vary the numbers a bit more” and produce yearly fluctuations.75 Universities must also engage in “individualized consideration” of each applicant.76 Race cannot be the only, or predominant, factor in the decision to admit or reject a student. Nor can the admissions program mechanically award “bonuses” to members of certain racial groups.77 What it can do is award race-based “bonuses” in a flexible, nonmechanical way. Thus, the University of Michigan undergraduate admissions program was unconstitutional because it gave all underrepresented minorities twenty extra points, but the University of Michigan Law School admissions program was constitutional because it reviewed each applicant holistically before giving some applicants an undefined number of bonus points on the basis of race.78 B. Diversity and Asian Americans In admissions, the Supreme Court’s primary effect was to encourage universities “to go underground.”79 After Bakke, admissions officers “got the message”: they could continue to apply race-based preferences, as long as they abided by the Court’s formalist guidelines.80 In a report prepared by their lawyers, the American Council on Education and the Association of American Law Schools advised schools to “emulate features of the Harvard plan: They should not have quotas or set-asides. They should not have separate committees or procedures to evaluate minority and nonminority candidates, as Davis had. And they should articulate their policies, including their goal of diversity.”81 This wouldn’t be difficult to implement, some lawyers noted, because the difference between a permissible diversity plan and an impermissible quota was “nothing more than a smirk and a wink.”82 To many commentators, this focus on form over function is evidence that the diversity rationale is merely an “elaborate pretext” for the remedial rationale — under the ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 20150609-story.html [https://perma.cc/2493-C2V5]; see also Richard Sander, Why Strict Scrutiny Requires Transparency: The Practical Effects of Bakke, Gratz, and Grutter, in NEW DIRECTIONS IN JUDICIAL POLITICS 277, 278 (Kevin T. McGuire ed., 2012). 75 Sander, supra note 43, at 408. 76 Grutter, 539 U.S. at 334. 77 Id. at 337. 78 Id.; Gratz v. Bollinger, 539 U.S. 244, 268–75 (2003). Less important is how much weight race may carry. On average, the law school program assigned more weight to race than did the undergraduate program. See Sander, supra note 74, at 290. 79 Sander, supra note 43, at 383. 80 Sander, supra note 74, at 286; see also BERNARD SCHWARTZ, BEHIND BAKKE 155 (1988). 81 WELCH & GRUHL, supra note 6, at 63. 82 Id. 614 HARVARD LAW REVIEW [Vol. 131:604 cover of diversity, universities continue to operate affirmative action programs in order to remedy the effects of racial discrimination.83 This Note argues that the Asian experience defies this narrative. If universities were primarily motivated by remedial goals, Asians — a minority group that has been subject to past and present discrimination — should receive either race-based preferences or, at the very least, treatment identical to that of whites. While minority “underrepresentation may signal that discrimination is present,” minority overrepresentation does not support the inference that minorities enjoy institutional advantages unavailable to whites, or that they discriminate against the white majority.84 Any “Asian handicap” would be unjustifiable under the remedial rationale. Instead, universities appear to have taken the diversity rationale seriously and have adopted a vision of diversity that is driven by the notion of representation. Because Asians are an overrepresented minority group, this interpretation of diversity works to their detriment. 1. Diversity in Practice. — When diversity is inseverable from proportionate representation, the worst position for an applicant is to be a member of an “overrepresented” group. By most accounts, Asians are the most overrepresented racial group in selective institutions. Asians constitute 5.7% of the U.S. population,85 but they’re currently 22.2% of the freshman class at Harvard,86 21% at Stanford,87 42% at Caltech,88 and 42.3% at Berkeley.89 To a certain extent, these Asian students have displaced white students, who have become underrepresented. This effect is most evident at universities that do not employ race-based admissions policies: compared to 61.3% of the national population,90 white students comprise only 29% of Caltech’s freshman class,91 and ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 83 KENNEDY, supra note 45, at 203; see, e.g., Kenneth L. Karst & Harold W. Horowitz, The Bakke Opinions and Equal Protection Doctrine, 14 HARV. C.R.-C.L. L. REV. 7, 15–17 (1979). 84 Lee, supra note 33, at 150. See generally John Hart Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. CHI. L. REV. 723 (1974). 85 QuickFacts: United States, U.S. CENSUS BUREAU, https://www.census.gov/quickfacts/ table/PST045216/00 [https://perma.cc/Y54X-4ZU2]. 86 Harvard Admitted Students Profile, HARV. U., https://college.harvard.edu/admissions/ admissions-statistics [https://perma.cc/EB99-D3RG]. 87 Undergraduate Student Profile, Fall 2016, STAN., http://facts.stanford.edu/academics/ undergraduate-profile (last updated June 26, 2017) [https://perma.cc/GC7S-6E3P]. 88 Fall Enrollment 2016–17, CALTECH, https://www.registrar.caltech.edu/academics/enrollment [https://perma.cc/FWV4-P4AG]. 89 UC Berkeley Fall Enrollment Data, UC BERKELEY, http://opa.berkeley.edu/uc-berkeley-fallenrollment-data [https://perma.cc/5QRE-A6BH]. 90 QuickFacts: United States, supra note 85. 91 Fall Enrollment 2016–17, supra note 88. 2017] THE HARVARD PLAN THAT FAILED ASIAN AMERICANS 615 24.2% of Berkeley’s.92 At universities with race-based programs, white students are slightly below 50% at Harvard,93 and 36% at Stanford.94 At times, Asian overrepresentation provokes anxiety and backlash. Non-Asian classmates have complained that Asians destroy the class curve, mocked Asian students for being test-taking machines, and given universities racist nicknames — MIT was “Made in Taiwan” and UCLA was “United Caucasians Lost Among Asians.”95 University administrators, though far less cruel, have echoed the sentiment that Asians are overrepresented on campuses. Some did so explicitly: former dean Henry Rosovsky of Harvard referred to Asians as “no doubt the most over-represented group in the university.”96 Judges have also made this observation. As recently as Fisher I,97 the Texas district court judge noted that “Asian-Americans . . . are largely overrepresented compared to their percentage of Texas’ population.”98 If proportionate representation is important to the attainment of diversity, then Asian overrepresentation can threaten diversity. David Gardner, former President of the University of California, certainly thought so — he concluded that Asian overrepresentation had “an adverse effect on the [UC] system’s attempts to increase Hispanic and black enrollment.”99 Most university officials did not publicly announce their concern over Asian overrepresentation, although some expressed their views behind closed doors. Princeton Professor Uwe Reinhardt recalled a conversation with the university administration, during which a representative told him: “[I]t’s useful to have different cultures represented here. You wouldn’t want half the campus to be Chinese.”100 Universities’ first response to Asian overrepresentation was to exclude them from affirmative action programs. Initially, these programs ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 92 UC Berkeley Fall Enrollment Data, supra note 89. It should be noted that both Caltech and Berkeley are located in California, where Asians are a higher percentage of the state population — 14.8%. QuickFacts: California, U.S. CENSUS BUREAU, https://www.census.gov/quickfacts/table/ PST045216/06 [https://perma.cc/JJ8Z-KLE7]. 93 Harvard College does not release admissions statistics on white students but provides that 51% of its newly admitted students belong to minority groups. Harvard Admitted Students Profile, supra note 86. 94 Undergraduate Student Profile, Fall 2016, supra note 87. 95 Frank H. Wu, Neither Black nor White: Asian Americans and Affirmative Action, 15 B.C. THIRD WORLD L.J. 225, 239 (1995). 96 Fox Butterfield, Harvard’s “Core” Dean Glances Back, N.Y. TIMES (June 2, 1984), http://www.nytimes.com/1984/06/02/us/harvard-s-core-dean-glances-back.html [https://perma.cc/ 25PR-EQ26]. 97 133 S. Ct. 2411 (2013). 98 Fisher v. Univ. of Tex. at Austin, 645 F. Supp. 2d 587, 606 (W.D. Tex. 2009), aff’d, 631 F.3d 213 (5th Cir. 2011), vacated, 133 S. Ct. 2411. 99 UC Chief Wants a Better Ethnic Mix, THE TRIBUNE (Oakland, Cal.), Dec. 12, 1986, at A-16. 100 GOLDEN, supra note 10, at 205. Reinhardt’s response, which I echo here, was “why not?” Id. 616 HARVARD LAW REVIEW [Vol. 131:604 aimed to assist all minorities that had suffered discrimination and generally included Asians along with other groups. By the time the Supreme Court heard Bakke, however, Asians were already well on their way to overrepresentation in certain fields. As a result, Justice Powell deemed their inclusion in special admissions “especially curious in light of the substantial numbers of Asians admitted through the regular admissions process.”101 Three years prior, Berkeley’s law school had already excluded Asians from special admissions.102 And in 1984, the Berkeley undergraduate admissions office also formally eliminated affirmative action for Asians.103 For years, Harvard refused to recognize Asians as a minority group altogether — they were barred from minority recruiting campaigns as well as Freshman Minority Orientation.104 As discussed above, considerable statistical and circumstantial evidence suggests that universities may also engage in “negative action” against Asian applicants. Indeed, some schools have conceded that their admissions policies discriminated against Asians.105 Admissions officers are not necessarily driven by racial animus; rather, they may “sincerely, if mistakenly, believe[] that curtailing the admission of Asian Americans would serve various pedagogical and social goals.”106 Some may think that having too many Asians causes educational harm to institutions and their students. Commenting on the Fisher litigation in 2012, a former Ivy League admissions officer worried that without race-based preferences, “our elite campuses would look like UCLA and Berkeley . . . . That wouldn’t be good for Asians or for anyone else.”107 The Court-approved diversity rationale provides universities with the flexibility to curtail Asian overrepresentation with very little accountability. Professor Alan Dershowitz has argued that because the “‘diversity-discretion’ model . . . lacks real substantive content, [it] is inherently capable of manipulation for good or evil results.”108 The Harvard Plan lauded by Justice Powell was, in fact, created for the purpose of limiting the number of overrepresented, high-scoring Jewish stu––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 101 102 Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 309 n.45 (1978) (Powell, J.). Sharon S. Lee, Over-Represented and De-Minoritized: The Racialization of Asian Americans in Higher Education, 2 INTERACTIONS, no. 2, 2006, at 1, 6. 103 John Aubrey Douglass, Anatomy of Conflict: The Making and Unmaking of Affirmative Action at the University of California, in COLOR LINES 118, 128 (John David Skrentny ed., 2001). 104 KARABEL, supra note 19, at 499. 105 See supra p. 607. 106 Jerry Kang, Negative Action Against Asian Americans: The Internal Instability of Dworkin’s Defense of Affirmative Action, 31 HARV. C.R.-C.L. L. REV. 1, 19 (1996). 107 Ethan Bronner, Asian-Americans in the Argument, N.Y. TIMES (Nov. 1, 2012), http://www.nytimes.com/2012/11/04/education/edlife/affirmative-action-a-complicated-issue-forasian-americans.html [https://perma.cc/YQJ6-44JQ]. 108 Alan M. Dershowitz & Laura Hanft, Affirmative Action and the Harvard College DiversityDiscretion Model: Paradigm or Pretext?, 1 CARDOZO L. REV. 379, 404 (1979). 2017] THE HARVARD PLAN THAT FAILED ASIAN AMERICANS 617 dents in the 1920s. To tackle what he called Harvard’s “Jewish problem,” then-President Lowell came up with a diversity-based “admissions system capable of manipulating a variety of factors, such as personality, character, geography, and genealogy, in order to produce the desired ethnic balance in an entering class.”109 Modern admissions officers are free to consider these same factors and weigh them however they see fit, provided that their methods are not too mechanical. Even if admissions officers do not expressly aim to cap Asian enrollment, they are nevertheless subject to implicit racial biases. In particular, implicit biases influence how university administrators conceptualize diversity and the ways in which students can contribute to it. Motivated by numerical goals and unchecked by the law, officers may subconsciously hold different groups to different standards or carry out within-group comparisons. A former admissions official, for example, admitted that “there’s an expectation that Asian Americans will be the highest test scorers and at the top of their class; anything less can become an easy reason for a denial.”110 Having high scores is only the bare minimum; Asian applicants must then distinguish themselves from all the other Asians. Marilee Jones, the former dean of admissions at MIT, was unusually candid about the rejection of an Asian American student: “[I]t’s possible that Henry Park looked like a thousand other Korean kids with the exact same profile of grades and activities and temperament . . . yet another textureless math grind.”111 Biases are even more dangerous when it comes to subjective, unquantifiable factors — things like personality, character, and Harvard’s “What sort of human being are you now?”112 2. The Prospects of Litigation. — Even if litigants can prove that admissions policies effectively penalize Asians in comparison to white students, it is unlikely that they would win under Supreme Court doctrine. Absent a “smoking gun” demonstrating bad faith or particularly egregious discrimination, almost all affirmative action programs are insulated from legal challenge.113 No sensible university imposes a formal quota, and formalism drives the Court’s analysis.114 As defined by the Supreme Court, quotas are rigid rather than flexible, and specific numbers rather than ranges.115 According to a former associate dean of admissions at the University of ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 109 110 111 112 Id. at 401. Harberson, supra note 74. GOLDEN, supra note 10, at 201. What We Look For, HARV. U., https://college.harvard.edu/admissions/application-process/ what-we-look [https://perma.cc/EU9V-GSBA]. 113 SCHWARTZ, supra note 80, at 157. 114 See Marcia G. Synnott, The Evolving Diversity Rationale in University Admissions: From Regents v. Bakke to the University of Michigan Cases, 90 CORNELL L. REV. 463, 498 (2005). 115 See supra section II.A.2, pp. 612–13. 618 HARVARD LAW REVIEW [Vol. 131:604 Virginia, admissions committees “may have a goal, and a goal is not a quota. That is where you get into semantics.”116 As long as a university does not announce a specific percentage cap on Asians and slightly varies its racial makeup year by year, it does not employ formal quotas. And for a plaintiff to show that an affirmative action program uses the “functional equivalent of a quota,” she must prove that the university acted in bad faith.117 To do this is extremely difficult: “[T]he admissions officers themselves [must] acknowledge their own ‘bad faith.’”118 Likewise, universities know better than to mechanically apply an admissions boost to all members of a particular group. For appearance’s sake, they probably don’t explicitly give race-based “minus points” to any applicant. Of course, not receiving any points translates to “minus points” when compared to the “bonus points” awarded to others. Fisher II made clear that underrepresented minorities are not the only applicants who can receive “bonus points” on the basis of race — anyone can, “including whites and Asian-Americans.”119 Given white underrepresentation in some institutions, there is no reason why whiteness cannot theoretically warrant the award of “bonus points” to reach critical mass. Statistical evidence suggests that, in the aggregate, white students have received “bonus points” in comparison to Asians.120 This doesn’t mean that white students categorically receive preferential treatment, or that universities mechanically award all white applicants the same number of “bonus points.” After all, the Fisher II Court said that Asians can benefit from race-based considerations as well. Even if universities privilege white students over Asians most of the time, they do so without explicitly violating any of the Court’s commands. The general rule may be an Asian penalty, but the existence of some exceptions proves that individualized consideration is preserved. The Court used this logic when it pointed to a handful of outliers as adequate evidence that the Michigan Law School admissions program was nonmechanical.121 Asian litigants would face better prospects if courts were to apply more rigorous scrutiny, but doing so may involve a significant departure from the Supreme Court’s past affirmative action cases. Despite courts’ rhetoric about applying strict scrutiny to all racial classifications, they probably relax scrutiny when white plaintiffs allege discrimination. Asian American litigants are different from Allan Bakke or Abigail ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 116 Theodore R. Delwiche, “Harvard Not Fair” Seeks Rejected Applicants for Race-Based Affirmative Action Suit, HARV. CRIMSON (Apr. 24, 2014, 12:28 PM), http://www.thecrimson.com/ article/2014/4/24/race-admissions-lawsuit-website/?page=single [https://perma.cc/N893-AE78]. 117 Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 318 (1978) (Powell, J.); see id. at 318–19. 118 SCHWARTZ, supra note 80, at 157. 119 Fisher II, 136 S. Ct. 2198, 2207 (2016) (quoting Fisher v. Univ. of Tex. at Austin, 645 F. Supp. 2d 587, 606 (W.D. Tex. 2009)). 120 See supra section I.A, pp. 605–06. 121 See Grutter v. Bollinger, 539 U.S. 306, 338 (2003); id. at 382–83 (Rehnquist, C.J., dissenting). 2017] THE HARVARD PLAN THAT FAILED ASIAN AMERICANS 619 Fisher — they are minority group members and more sympathetic plaintiffs. Under “real” strict scrutiny, courts may find that admissions policies have functionally established “separate tracks” for different racial groups and insulated them from competition with each other.122 They may also find that universities are engaged in “racial balancing” because there is no compelling reason a majority-white campus provides more educational benefits than a majority-Asian one. Depending on the information uncovered during discovery — and given how blunt admissions officers can apparently be — they may even find bad faith. One consideration that counsels against “real” strict scrutiny is that groups like SFFA challenge affirmative action policies as a whole, rather than just “negative action” compared to white students. Doing so pits the plaintiffs against other minority groups, who would suffer the most harm from an outright prohibition of race-based consideration.123 This is unfortunate, especially since most Asian Americans continue to support affirmative action programs and multiple Asian affinity groups filed amicus briefs supporting the University of Texas in Fisher II.124 Mee Moua, former president of Asian Americans Advancing Justice, spoke out against the SFFA action: “[T]he faction of Asian Americans publicly opposed to affirmative action is misguided and doesn’t understand that what they’re opposed to is ‘negative action.’”125 The problem is that unlike the remedial rationale, which limits racebased preferences to racial minorities, the diversity rationale does not allow for the easy disaggregation of affirmative and negative action.126 If diversity derives meaning from proportionality, negative action against overrepresented groups is the flipside of affirmative action for underrepresented minorities. III. BAKKE’S LEGACY At the time of Bakke, Asians did not have a significant enough presence in America. But the existence of overrepresented minorities was ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 122 See Kermit Roosevelt III, The Ironies of Affirmative Action, 17 U. PA. J. CONST. L. 729, 729– 30 (2015) (arguing that “under real strict scrutiny, almost all race-based affirmative action programs are likely unconstitutional”). 123 See, e.g., WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE RIVER, at xli (2d prtg. 2000). 124 Over 160 Asian American and Pacific Islander Groups File Amicus Briefs in U.S. Supreme Court in Support of Affirmative Action, ASIAN AM. LEGAL DEF. & EDUC. FUND (Nov. 3, 2015), http://aaldef.org/press-releases/press-release/over-160-asian-american-and-pacific-islander-groupsfile-amicus-briefs-in-support-of-affirmative-act.html [https://perma.cc/46WQ-THV8]. 125 Alia Wong, Asian Americans and the Future of Affirmative Action, THE ATLANTIC (June 28, 2016), https://www.theatlantic.com/education/archive/2016/06/asian-americans-and-the-future-ofaffirmative-action/489023/ [https://perma.cc/M63D-XF5M]. 126 Chu, supra note 55, at 99. 620 HARVARD LAW REVIEW [Vol. 131:604 not unknown to the Justices — they discussed the Jewish American experience in higher education, which was detailed in multiple amicus briefs. Knowing as he did that elite institutions had imposed Jewish quotas in the recent past, Justice Powell should have acted with more caution before endorsing the Harvard Plan. A. The Justices on Asians The Justices did not devote much time to discussing Asian Americans, probably because Asians were barely 1% of the population in 1978.127 When the subject came up in conference, it was because Asians brought to light the pesky problem of line drawing. Asians “faced almost hysterical prejudice for decades after first arrival in this country . . . [and] face a quieter, subtler form of prejudice today.”128 Yet giving Asians preference in admissions — as Davis did — could lead down a slippery slope of countless ethnic groups demanding special treatment. This point particularly troubled Justice Powell, who noted that there is no “principled basis for inclusion or exclusion of groups on the basis of race or ethnic origin.”129 If Asians were included in the special program, then “[w]hy not Italians, Irish, Greeks, etc.”?130 If anything, the inclusion of Asians in special admissions ultimately cut against the validity of the Davis program. For Justice Powell, the fact that sufficiently represented Asians received preferential treatment “suggested that the Davis program was not a narrow response to social necessity but a political solution to interest-group politics.”131 Justice Powell and his clerks viewed the Asian question as a problem for Justice Brennan’s remedial argument — one that Brennan refused to address adequately. In his opinion, Justice Powell included two footnotes that dealt with the uniqueness of the Asian situation. Footnote 36 attacked Justice Brennan’s societal discrimination rationale as incomplete, because “nothing is said about Asians” and why discrimination does not appear to inhibit their academic performance.132 Footnote 45 questioned why Asian applicants, many of whom were admitted through regular admissions, were eligible for special admissions.133 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 127 FRANK HOBBS & NICOLE STOOPS, U.S. CENSUS BUREAU, U.S. DEP’T OF COMMERCE, CENSR-4, DEMOGRAPHIC TRENDS IN THE 20TH CENTURY 77 fig.3-4 (2002), https://www. census.gov/prod/2002pubs/censr-4.pdf [https://perma.cc/Q3DM-44CU]. 128 Memorandum from Bob Comfort, Law Clerk, Supreme Court of the United States, to Justice Lewis F. Powell, Jr., Assoc. Justice, Supreme Court of the United States 37 (Aug. 29, 1977) (on file with the Harvard Law School Library) [hereinafter Comfort Memo]. 129 Lewis F. Powell, Jr., Preconference Notes, Regents of the University of California v. Bakke 1 (Oct. 13, 1977) (on file with the Harvard Law School Library). 130 Id. 131 JOHN C. JEFFRIES, JR., JUSTICE LEWIS F. POWELL, JR. 472–73 (1994). 132 Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 296 n.36 (1978) (Powell, J.). 133 Id. at 309 n.45. 2017] THE HARVARD PLAN THAT FAILED ASIAN AMERICANS 621 B. The Justices on Jews The status of another minority group — Jewish Americans — captured the attention of the Court, but the Justices missed the full import of the lessons of that group’s history in higher education admissions. By the 1970s, it was widely accepted that American universities had, for decades, employed various means to limit the enrollment of overrepresented Jewish students.134 Although Jewish quotas generally ended after World War II, many Jews remained understandably suspicious of affirmative action programs.135 Seven Jewish groups submitted amicus briefs in support of Allan Bakke.136 Anxious about a potential return to racially discriminatory admissions, they directly compared affirmative action programs to Jewish quotas in the past: [A]fter only three or four decades of nondiscriminatory admissions, in which creed, color, and ethnic origins have been rejected as appropriate criteria for university admissions, the universities, which for centuries set the style in excluding or restricting Jewish students and those of various other religious, racial, and ethnic minorities, may again be able to do so, again in the name of enlightenment and diversity, if the decision below is not affirmed.137 Prominent Jewish scholars — Professor Alexander Bickel was perhaps the most influential — also denounced race-based admissions.138 Bickel had coauthored the Anti-Defamation League’s amicus brief in DeFunis v. Odegaard,139 from which its Bakke brief heavily borrowed.140 He vehemently opposed the use of racial quotas, arguing that it “derogates the human dignity and individuality of all to whom it is applied.”141 The criticism had a big impact on the Justices. Justice Blackmun, writing to the conference, envisioned a Jewish consensus against affirmative action. He believed that “Alex Bickel’s elegant and shining words”142 represented “the ‘accepted’ Jewish approach” and observed ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 134 135 See sources cited supra note 19. See Steinberg, supra note 19 (noting that “many Jews are alarmed by the introduction of unofficial quotas favorable to black applicants”). 136 See ALLAN P. SINDLER, BAKKE, DEFUNIS, AND MINORITY ADMISSIONS 243 (1978). 137 Brief Amici Curiae of Anti-Defamation League of B’nai B’rith et al. at 5–6, Bakke, 438 U.S. 265 (No. 76-811), 1977 WL 188002 [hereinafter ADL Bakke Brief]. 138 See, e.g., ALEXANDER M. BICKEL, THE MORALITY OF CONSENT 132–34 (1975); Leonard Fein, The War Inside the Jews: A Painful Breakdown of the Liberal Consensus, NEW REPUBLIC, Oct. 15, 1977, at 16. 139 416 U.S. 312 (1974) (per curiam). The Court held that the case was moot and did not reach the merits. Id. at 319–20. 140 Compare ADL Bakke Brief, supra note 137, with Brief of the Anti-Defamation League of B’nai B’rith Amicus Curiae, DeFunis, 416 U.S. 312 (No. 73-235). 141 BICKEL, supra note 138, at 133. 142 Memorandum from Justice Harry A. Blackmun, Assoc. Justice, Supreme Court of the United States, to the Conference 11 (May 1, 1978), reprinted in SCHWARTZ, supra note 80, app. E, at 257. 622 HARVARD LAW REVIEW [Vol. 131:604 that “nearly all the responsible Jewish organizations who have filed amicus briefs here are one side of the case.”143 For the liberal Justices and Justice Powell, affirmative action programs were fundamentally different from Jewish quotas, although there was some disagreement on the distinguishing principle. Justice Marshall emphasized that the Davis quota was a “quota to get someone in” — “not a quota to get someone out.”144 According to Justices Brennan and Blackmun, stigma was the governing principle. The Davis program was permissible because it did not stereotype Bakke “as an incompetent, or pin[] [him] with a badge of inferiority because he is white.”145 From the very beginning, Justice Powell was averse to strict numerical quotas. As he articulated in conference, Davis’s “colossal blunder . . . was to pick a number.”146 That Jewish quotas were so notorious probably made the concept of quotas seem even more distasteful. Justice Powell’s clerk persuaded him that the race-as-one-factor Harvard Plan of the 1970s differed from the anti-Semitic Harvard Plan of the 1920s: “The fact of opening the whole class distinguishes this approach from the closed quotas of President Lowell . . . .”147 Notably, Justice Powell took issue with Justice Brennan’s focus on stigma, which he believed would allow for Jewish quotas. An earlier draft of Justice Powell’s opinion included a controversial footnote: [L]imiting the concept of stigma to the imposition of a badge of inferiority would inhibit appropriate scrutiny of classifications such as the quotas imposed upon admission of Jews to some educational institutions in the early part of this century, which were based upon the belief that by virtue of superior ability that group would come to dominate such institutions.148 It cited Stephen Steinberg’s well-known article, “How Jewish Quotas Began,”149 as evidence that universities had imposed Jewish quotas because of their “perceived capability of dominating the universities.”150 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 143 144 Id. at 12. Lewis F. Powell, Jr., Conference Notes, Regents of the University of California v. Bakke 5 (Dec. 9, 1977) (on file with the Harvard Law School Library). 145 Memorandum from Justice William J. Brennan, Jr., Assoc. Justice, Supreme Court of the United States, to the Conference 9 (Nov. 23, 1977), reprinted in SCHWARTZ, supra note 80, app. D, at 235. 146 William J. Brennan, Jr., Conference Notes, Regents of the University of California v. Bakke (Dec. 9, 1977), as reprinted in Lee Epstein & Jack Knight, Piercing the Veil: William J. Brennan’s Account of Regents of the University of California v. Bakke, 19 YALE L. & POL’Y REV. 341, 353 (2001). 147 Comfort Memo, supra note 128, at 60. 148 Lewis F. Powell, Jr., 5th Draft Opinion, Regents of the University of California v. Bakke 25 n.34 (drft. n.d.) (on file with the Harvard Law School Library). 149 Id.; see Steinberg, supra note 19. 150 Lewis F. Powell, Jr., Memo to File, Regents of the University of California v. Bakke (June 29, 1978) (on file with the Harvard Law School Library) [hereinafter Powell Memo]. 2017] THE HARVARD PLAN THAT FAILED ASIAN AMERICANS 623 Offended by Justice Powell’s suggestion that he would condone Jewish quotas, Justice Brennan hit back with a retort: “My clerks and I were particularly mad about this because [Powell’s] First Amendment approach quite clearly left the door open for approval of Jewish quotas, so that [Powell] was really ‘calling the kettle black.’”151 Justice Brennan’s indignation persuaded Powell to reconsider. Justice Powell recorded in his notes: “Bill Brennan called me, following circulation of my fifth draft, and was quite upset by this portion of footnote 34. He characterized it as ‘personally offensive,’ saying that his respect and admiration for our Jewish citizens was widely known.”152 As a result, Justice Powell agreed to remove the reference to Jewish quotas.153 True to his promise, the footnote was substantially revised in the final draft; it argued that Justice Brennan’s opinion offered “no principle for deciding whether preferential classifications reflect a benign remedial purpose or a malevolent stigmatic classification.”154 For his part, Justice Brennan never mentioned Jewish quotas in his opinion either. C. Justice Powell’s Diversity Justice Powell thought that Jewish quotas were despicable, and there is little doubt that he did not intend to endorse an admissions plan that could allow for something similar. His clerk had persuaded him that the modern Harvard Plan was distinguishable from President Lowell’s Harvard Plan: it was open rather than closed, and it treated race positively rather than negatively. The problem, however, is that it was essentially the same plan. As discussed above, the open/closed and positive/negative distinctions are formalistic and functionally meaningless.155 And even Harvard’s past Jewish quotas weren’t explicitly closed — the whole class was supposedly open to all, while the admissions office used multifactor considerations to indirectly lower the number of Jewish students.156 The Harvard Plan discussed in Bakke was just as discretionary and “inherently capable of gross abuse” as Lowell’s plan.157 It even considered many of the same factors as the original one. The difference was in the officers administering the plan — and their facially benign and progressive goals — not in the plan itself. Justice Powell simply placed too much trust in admissions officers at Harvard ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 151 152 153 Epstein & Knight, supra note 146, at 369 (reprinting Justice Brennan’s notes on Bakke). Powell Memo, supra note 150. Justice Powell further noted that “[n]either I nor any of my clerks thought there was any reason to request this change. But I would certainly honor a request like this from Bill.” Id. 154 Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 295 n.34 (1978) (Powell, J.). 155 See supra pp. 610–13. 156 See KARABEL, supra note 19, at 130. 157 Dershowitz & Hanft, supra note 108, at 385 (emphasis omitted). 624 HARVARD LAW REVIEW [Vol. 131:604 and elsewhere: he presumed they would act in good faith. Perhaps he believed that in 1978, after Brown and the civil rights movement, no university would again use racial quotas to keep minorities out of American institutions. Perhaps he also believed that, notwithstanding the experience of Jewish students, a group’s level of representation was a good enough proxy for its treatment by society and that white students would never become underrepresented on university campuses.158 In hindsight, Justice Brennan had the stronger argument. Justice Powell’s accusation that Brennan’s conception of stigma would condone Jewish quotas was based on a false premise. Lowell did not impose Jewish quotas because he believed that Jews were academically superior; he did so because he thought they were socially inferior and didn’t belong at Harvard. The Steinberg article (mis)cited by Justice Powell was quite clear about this: proponents of Jewish quotas “pointed to objectionable traits of Jews . . . [and] the desirable traits of the university that were presumably endangered.”159 University officials frequently complained that Jewish students worked doggedly hard and were unfairly competitive, and that their uncouth immigrant manners diminished the gentility and social standing of elite institutions.160 Similarly, if an admissions officer does not want to admit too many Asians, it is not because she thinks Asians are “too smart” for her institution, but because she thinks they are “textureless math grind[s]” who might threaten diversity or undermine the educational experience.161 The past forty years have vindicated Justice Brennan’s critique that Powell’s approach “left the door open” for potential discrimination against overrepresented minorities. Even if we consider only the universities that have admitted to anti-Asian discrimination and the admissions officials who have openly opposed Asian overrepresentation, it is clear that the diversity rationale can be manipulated to condone the exclusion of minorities. Add to this the language of the Fisher II majority, which indicated that both whites and minorities may benefit from racial preferences.162 By detaching affirmative action from social and historical context and grounding its justification in First Amendment values ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 158 Justice Powell appeared to have considered the implications of the diversity rationale in an earlier draft: “[A]pproval of such a policy does not presage a sub rosa return to the restrictive educational quotas of the earlier half of this century. The ethnic preference considered here would be one shown, in good faith, to members of a group which otherwise would be insignificantly represented or totally unrepresented.” Lewis F. Powell, Jr., 5th Typescript Draft, Regents of the University of California v. Bakke 44 (drft. Nov. 3, 1977) (on file with the Harvard Law School Library) (citations omitted). This language was ultimately removed. 159 Steinberg, supra note 19. 160 Id. 161 GOLDEN, supra note 10, at 201. 162 See supra p. 612. 2017] THE HARVARD PLAN THAT FAILED ASIAN AMERICANS 625 of institutional autonomy, Justice Powell’s diversity rationale allowed for these unintended consequences. CONCLUSION Justice Harlan’s Plessy v. Ferguson163 dissent, celebrated for its grand vision of the Colorblind Constitution, also remarked on a group that was neither black nor white: There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race.164 Admittedly, Asian Americans have not experienced the same level of horrific discrimination as some other minority groups have. They have nevertheless been subject to lynching, mass internment, and school segregation.165 Almost a century after Plessy, while reviewing Allan Bakke’s “reverse discrimination” claim, Justice Thurgood Marshall wrote to his colleagues: “We are not yet all equals, in large part because of the refusal of the Plessy Court to adopt the principle of color-blindness. It would be the cruelest irony for this Court to adopt the dissent in Plessy now and hold that the University must use color-blind admissions.”166 For Justice Powell, the tension between colorblind values and the realities of racial discrimination was troubling.167 His choice in Bakke was an uncomfortable middle ground, one that spawned a new irony: the diversity rationale brought more harm than benefit to Asian Americans, unequal treatment even in comparison to the white majority. Perhaps from Justice Powell’s perspective, his carefully neutral language masked an “unspoken assumption that the history of racial discrimination in this country inevitably makes race a valid consideration in the diversity formula.”168 But Justice Powell trusted — unjustifiably — that universities in the future would read between the lines and use the diversity rationale only to include, rather than exclude, racial minorities. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 163 164 165 166 163 U.S. 537 (1896). Id. at 561 (Harlan, J., dissenting). Dong, supra note 67, at 1047–48. Memorandum from Justice Thurgood Marshall, Assoc. Justice, Supreme Court of the United States, to the Conference 3 (Apr. 13, 1978) (on file with the Harvard Law School Library). 167 See, e.g., Jeffries, supra note 45, at 6–8. 168 Karst & Horowitz, supra note 83, at 16. Copyright © 2017 by The Harvard Law Review Association. Copyright of Harvard Law Review is the property of Harvard Law Review Association and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. Lawsuit Accusing Harvard of Anti-Asian Bias Revives Scrutiny of Affirmative Action; Asian students recently asked Harvard for data showing academic performance of enrolled students by ethnicity Hong, Nicole . Wall Street Journal (Online) ; New York, N.Y. [New York, N.Y]03 Aug 2017: n/a. ProQuest 文档链接 Corrections &Amplifications The graphic accompanying the article shows an ethnic composition of Harvard's student body that exceeds 100% because students were allowed to check multiple options. An earlier version of the chart should have explained this. (Aug. 7, 2017) The Justice Department's new focus on affirmative action is shining a spotlight on a decades-old debate: whether the benefits of using race in college admissions outweigh the costs. The question is part of a high-profile lawsuit accusing Harvard University of discriminating against Asian-American applicants. The federal lawsuit, filed in Boston in 2014, was brought by a nonprofit called Students for Fair Admissions, which alleges that Harvard intentionally discriminates against Asian-Americans in its admissions practices by limiting the number of Asian students who are admitted and holding them to a higher standard than students of other races. The group claims the school's practices violate federal civil rights law and equal protection under the 14th Amendment. Members of the nonprofit, which advocates for the elimination of affirmative action, include Asian students who were denied admission to Harvard. The lawsuit's allegations formed the basis for a separate complaint against Harvard filed in 2015 by a coalition of 64 Asian-American groups. On Wednesday, the Justice Department announced it would begin an investigation of the complaint, which was filed with the department's civil rights division and other government agencies. It's unclear whether the Justice Department will also seek to intervene in the federal lawsuit against Harvard. Asian-American groups have been raising concerns about the fairness of Ivy League admission practices since at least 1989. In this case, lawyers for the plaintiffs say their goal is to reach the Supreme Court and overturn racial preferences in university admissions. As part of the lawsuit, the students are asking the judge to prohibit Harvard from using race as a factor in future undergraduate admissions decisions. Harvard has defended its policies by pointing to a handful of Supreme Court precedents over the past 40 years that have allowed universities to consider race as a factor in admissions to obtain the benefits of a diverse student body. Harvard's admissions process reviews many factors and "considers each applicant as a whole person, consistent with the legal standards established by the U.S. Supreme Court," said a spokeswoman for the university. The Supreme Court has repeatedly upheld the idea that universities have a compelling interest in assembling a diverse student body because it promotes "cross-racial understanding" and better prepares students for a diverse SEARCH.PROQUEST.COM PDF Page 1 of 4 workforce. In a 2003 ruling involving the University of Michigan Law School, Justice Sandra Day O'Connor wrote that classroom discussion is more enlightening with students of different backgrounds, resulting in better learning outcomes. In the Harvard lawsuit, the plaintiffs are challenging parts of that premise. Lawyers for the plaintiffs in May asked Harvard to turn over data showing the academic performance and academic preparation of enrolled students by ethnicity. The request is part of the plaintiffs' argument that Harvard's admission of underrepresented minorities who they say are less academically prepared ends up hurting those students in the long run. Known as the "mismatch theory," the plaintiffs say underprepared minority students get lower grades and opt out of difficult majors in college, reinforcing damaging stereotypes. The plaintiffs hope to use any data provided by Harvard on student performance by race to show that affirmative action has a negative effect on certain students after they enroll. Such a finding could undermine the justification for considering race in admissions decisions. The lawsuit also proposed race-neutral ways for the university to achieve diversity, such as giving more weight to socioeconomic status or eliminating legacy preferences, which primarily help white and wealthy applicants to the detriment of minorities. Harvard's response to the request is under seal. A spokesman for WilmerHale, the law firm representing Harvard, declined to comment. In an brief filed earlier in the case, a group of current and prospective Harvard students said the mismatch theory has been repeatedly disproved. They pointed to research showing that while the selectivity of a school doesn't increase earnings for students as a whole, it does for black and Latino students. These students achieve higher grades and graduate at higher rates than their peers at less selective schools, the brief said. Last year, U.S. District Judge Allison Burroughs ruled that Harvard wasn't required to produce academic performance data of enrolled students, but said the court may reconsider the issue at a later time. Judge Burroughs did order the university to turn over comprehensive admissions databases. She also required four top high schools, including Stuyvesant High School in New York and Thomas Jefferson High School in Alexandria, Va., to respond to subpoenas by the plaintiffs seeking evidence of possible discrimination by Harvard, including depositions of guidance counselors or school officials. The case against Harvard has proceeded even after the Supreme Court last year upheld the use of racial preferences in public university admissions , in a case brought by a white applicant against the University of Texas at Austin. In the 4-3 ruling, Justice Anthony Kennedy left the door open to future legal challenges by saying universities must continue to review their affirmative action policies to assess their positive and negative effects. The challenge against the University of Texas was spearheaded by Edward Blum, a conservative legal activist who is also the president of Students for Fair Admissions, the group suing Harvard. Mr. Blum's group filed a similar lawsuit against the University of North Carolina at Chapel Hill in 2014. The case is still pending. Affirmative action has long been a divisive issue in the Asian-American community. On Thursday, Asian Americans Advancing Justice, a civil rights group, said it opposed discrimination against Asian-Americans while also supporting affirmative action, which are "separate and distinct" issues. The group said low-income AsianAmericans benefit significantly from affirmative action policies. Related Reading * Justice Department Seeks to Hire Attorneys for Affirmative Action Review (Aug. 2) * Supreme Court Upholds Affirmative Action in University Admissions (June 23, 2016) * Divided Supreme Court Confronts Race-Based College Admissions (Dec. 9, 2015) * Justices Clash on Affirmative Action (Oct. 10, 2012) Credit: By Nicole Hong SEARCH.PROQUEST.COM PDF Page 2 of 4 : Supreme Court decisions; Admissions policies; Students; Asian Americans; College admissions; Affirmative action /: : Harvard University; NAICS: 611310; : University of Michigan; NAICS: 611310 : Lawsuit Accusing Harvard of Anti-Asian Bias Revives Scrutiny of Affirmative Action; Asian students recently asked Harvard for data showing academic performance of enrolled students by ethnicity : Hong, Nicole : Wall Street Journal (Online); New York, N.Y. : n/a : 2017 : Aug 3, 2017 : Business : Dow Jones &Company Inc : New York, N.Y. /: United States, New York, N.Y. : Business And Economics : Newspapers : English : News ProQuest ID: 1925498694 URL: http://libproxy.adelphi.edu/login?url=https://search.proquest.com/docview/192549 8694?accountid=8204 : (c) 2017 Dow Jones &Company, Inc. Reproduced with permission of copyright owner. Further reproduction or distribution is prohibited without permission. : 2019-04-02 : ProQuest Central SEARCH.PROQUEST.COM PDF Page 3 of 4 Check for full text via 360 Link  2019 ProQuest LLC 条款与条件 联系 ProQuest SEARCH.PROQUEST.COM PDF Page 4 of 4 Harvard admissions may be 'holistic' — but are they fair? Grossman, Ron . Chicago Tribune (Online) , Chicago: Tribune Interactive, LLC. Oct 30, 2018. ProQuest 文档链接 On a crisp fall day some 70 years ago, a school buddy and I made a pilgrimage to Evanston. We walked the 11 miles between Albany Park and Northwestern University’s bucolic campus. We were fueled by images of what we thought the preppy life entailed: freshman beanies and Saturdays in the football stadium’s cheering section. Yet when the time came to choose a college, neither of us applied to Northwestern. We knew the odds of being accepted were stacked against us. It wasn’t that our grades weren’t good. As I recall, I was eighth or ninth in a graduating class of 1,000. My buddy’s mathematical talents were awesome. But we knew we weren't wanted there, simply because we were Jews. Elite private universities in those days kept a lid on Jewish enrollments. That didn’t anger me. I accepted it as part of the world I then lived in. But I started thinking about the situation again recently, when Harvard University’s admissions policies got it taken to court. The case —Students for Fair Admissions v. President and Fellows of Harvard College —is currently being tried by a federal judge in Boston. The plaintiffs say Harvard practices racial discrimination by turning away highly qualified Asian-American applicants in order to save places in its freshman class for less qualified minority students. Harvard says its admissions practices aren’t prejudicial but democratic —designed to bring a diverse student body to campus. That goal, of course, requires some decision-making. You can’t have diversity without saying “no” to somebody. So to test the competing perspectives of Harvard’s critics and supporters, I made a mental experiment: Suppose a Harvard-like quest for diversity occurred in my youth. Let’s say I applied to Northwestern and got politely rejected, with an explanation like: “We have nothing against your people. But we need to get more minority representation on campus.” I’d be apoplectic —yet to be rejected for a lofty cause would put me in a psychological bind. What would I do with my frustration and anger? If I expressed them, would I be heard by the dean? He’s claimed the moral high ground. To explain why it rejects Chinese-Americans with stellar academic records, Harvard notes that it uses a “holistic” method of evaluating applicants. Besides grades, personal attributes count. Among them are “likability, “positive personality,” “attractive person to be with” and “widely respected” —traits that seem more appropriate when deciding on a guest list for a dinner party than judging which applicants will benefit from a college education. If the analysis of the Students for Fair Admission is to be credited, Asian-Americans get lower scores on those assessments than any racial group. Evaluating an applicant’s personality and character is obviously more subjective than looking at test scores. That casts a shadow over the holistic method’s intent. The university’s own analysis showed that if Harvard considered only academics, it would have twice as many Asian-American students as it does. That analysis was a closely guarded secret until it was pried open during the run-up to the admissions trial. Paradoxically, by employing the holistic method Harvard violated the ethical principle underlying the quest for diversity: a sense that some groups have had a lot better shot at the American dream than others, so it’s time to share the opportunities. Minorities, having been deprived, surely deserve a jump-start. But why do it by cutting back on Asian-American SEARCH.PROQUEST.COM PDF Page 1 of 3 admissions? They’re newcomers to the mainstream. Wouldn’t it be more equitable to make room for minorities by putting a lid on applicants from establishment families? Currently Harvard does the opposite. Through its “legacy” admission program it gives points to the offspring of its alumni. Kill that program and fewer will be admitted, freeing up slots for minorities. Of course, that route to diversity could be rocky. Alums whose kids don’t get in might withhold their donations. But that risk is offset by Harvard’s gigantic endowment. And some Asian-Americans who got to attend the school could be future big-bucks donors. Either way, it’s like we used to say on Albany Park street corners when a guy was all talk and little action: “Harvard, you need to put your money where your mouth is.” rgrossman@chicagotribune.com Credit: Ron Grossman : Students; Asian Americans; Multiculturalism &pluralism; College campuses /: : Harvard College; NAICS: 611310; : Harvard University; NAICS: 611310; : Northwestern University; NAICS: 611310 : Harvard admissions may be 'holistic' — but are they fair? : Grossman, Ron : Chicago Tribune (Online); Chicago : 2018 : Oct 30, 2018 : News - Columnists : Tribune Interactive, LLC : Chicago /: United States, Chicago : General Interest Periodicals--United States : Blogs, Podcasts, &Websites : English : News ProQuest ID: 2127207325 URL: http://libproxy.adelphi.edu/login?url=https://search.proquest.com/docview/212720 7325?accountid=8204 SEARCH.PROQUEST.COM PDF Page 2 of 3 : Copyright Tribune Interactive, LLC Oct 30, 2018 : 2018-11-01 : ProQuest Central Check for full text via 360 Link  2019 ProQuest LLC 条款与条件 联系 ProQuest SEARCH.PROQUEST.COM PDF Page 3 of 3 Fact Under Fiction: Asians, Affirmative Action, and College Admissions : University Wire ; Carlsbad [Carlsbad]06 Oct 2018. ProQuest 文档链接 Publication: Harvard Political Review, Harvard University, Cambridge MA. The Moakley Courthouse in Boston, where the pending lawsuit against Harvard College will go to trial on October 15th. A recently filed lawsuit alleges that Harvard University’s affirmative action policy discriminates against AsianAmericans in college admissions. This lawsuit cites the lower “personal ratings” given to Asian applicants relative to students of other races, as well as Asian applicants’ higher grades, test scores, and extracurricular ratings as proof. However, the arguments put forth by Students For Fair Admissions, the plaintiffs in this case, are just the latest iteration of a decades-old claim that affirmative action policies in general discriminate against Asians. As a black Harvard undergraduate who belongs to student organizations that have sided against SFFA, I was initially skeptical of both this lawsuit and the larger narrative. To begin, the lawsuit against Harvard was brought not by Asian-Americans, but instead by Edward Blum, a white man who has a history of opposing laws meant to help minorities. Also, Asian-Americans are overrepresented in our nation’s college populations as compared to their proportion of the general population, while other minorities, who are typically seen as the sole beneficiaries of race-conscious admissions policies, are actually underrepresented. Nonetheless, Asian-Americans have been oppressed throughout history, and they continue to suffer from oppression today. However, the specific claim that affirmative action unjustly discriminates against Asians rests on faulty premises and draws attention away from the real sources of discrimination they face in the college process. This narrative lends credence to racist ideas that hurt other minority groups, and could ultimately harm all non-white people. The Unacknowledged Hierarchy When people say that race-conscious admissions policies discriminate against Asians, they are essentially saying that universities’ mostly white admissions committees are discriminating against Asians in favor of other minorities such as blacks and Hispanics —the supposed sole beneficiaries of affirmative action policies. This claim seems dubious given that Asians are generally held in higher regard as compared to other minorities. This difference in perception and treatment stems largely from the model minority myth which, although ultimately harmful to Asians in an absolute sense, has perpetuated certain positive stereotypes about Asians that have translated into a higher status relative to other non-white people. Dr. Edward Burmila, a political science professor at Bradley University who has previously written about the influence that scientific racism —the belief that scientific evidence provides justification for racism —still has on American society, told the HPR that all non-white people were once held in equally low regard; however, those beliefs later changed to give Asians a more privileged status: “Over time...the [myth] of the model minority [developed],” Burmila said, noting that the myth consists of the idea that Asians “are okay” because “they acclimatize to American society, and white society.” Although Burmila believes that Asians’ relatively privileged status developed recently, ideas about Asians’ relative superiority existed long before then. For instance, Samuel George Morton, a prominent 19th century scientist, theorized that Chinese people and Southeast Asians were more intelligent than Native Americans and Africans due SEARCH.PROQUEST.COM PDF Page 1 of 5 to their supposedly larger cranial capacity. Also, Enlightenment philosophers posited that Africans were inferior to Europeans due to their “failure” to develop writing systems. Asians, many of whom came from societies with writing systems, would also be superior to Africans according to this logic. These centuries of racist history drive present day attitudes about Asians relative to other minorities, which cause differences in implicit bias and perceived intelligence. These in turn can be linked to differences in rates of police killings, income, upward mobility, and access to education. These ideas have even led to differences in the proposed treatment of various immigrant groups; when President Trump labelled majority black countries “shitholes” and proposed limiting immigration from those nations, he also expressed openness to allowing immigration from certain Asian countries. Set against this history of exclusion, it seems highly unlikely that those who control college admissions, the vast majority of whom do not belong to underrepresented minority groups, would take the unprecedented step of discriminating against Asians in favor of other minorities. The many Asian individuals who perform well in school and on standardized tests are certainly intelligent and industrious, and their success should be commended. Contrary to what many people claim, however, Asians as a group are not innately smarter or more hardworking than other minority groups. Therefore, the differences in achievement between Asians and other minority groups cannot be attributed to innate intelligence or work-ethic. This racial gap in grades and test scores actually reflects Asians’ privilege relative to other minority groups —as well as their higher share of well-educated immigrants —not racial differences in “merit” as narrowly defined by many people. The notion that race-conscious college admissions unjustly disadvantage Asians is logically flawed —the true injustice would be failing to acknowledge the widespread cultural perceptions and systemic inequalities perpetuated along racial lines that disadvantage minority groups differently well before the college admissions process even begins. The Forgotten Facts The idea that Asians are discriminated against in favor of other minorities in the context of college admissions is not the only shaky premise that this case rests on. This argument also assumes that without race-conscious admissions, universities would deny significantly fewer Asian-American applicants. Despite what opponents of affirmative action claim, academic research does not support this premise. Opponents of race-conscious admissions often cite data from a 2009 book by two Princeton sociologists as “proof” of discrimination against Asians in college admissions. This data seems to show that Asian applicants require higher test scores to be admitted into highly selective universities than students of other races. However, the principal author of that book, Dr. Thomas Espenshade, has always maintained that his research does not in fact prove discrimination against Asians in the college process. Moreover, some academics, like Dr. Julie Reuben, a historian and professor at Harvard’s School of Education who has studied the role of affirmative action policies throughout history, doubts that a relationship between raceconscious admissions policies and the admissions chances of Asian applicants can be deduced so easily. In fact, Reuben claimed that “it‘s very hard to get reasonable estimations of the impact of affirmative action on Asian applicants for a number of reasons.” Reuben also said that she did not think anyone currently engaging in public debates on affirmative action had done the proper data analyses to reach a credible conclusion on the issue. Other scholars do believe that the impact of race-conscious admissions policies on Asian applicants can be measured, but their research contradicts the claims of affirmative action opponents. In a 2016 study, researchers at the University of North Carolina Chapel Hill’s School of Education concluded that there were too few underrepresented minority applicants to have a statistically significant impact on the admissions chances of white and Asian applicants. In fact, they found that eliminating all black and Latinx applicants from Harvard’s admissions pool would only increase white and Asian applicants’ admissions chances by one percent. These findings make sense not only for the reasons that the researchers gave, but also because the law only allows universities to use race in college admissions to a very limited degree. SEARCH.PROQUEST.COM PDF Page 2 of 5 Other research also undercuts the myth that affirmative action unjustly disadvantages Asians by suggesting that race-conscious admissions policies actually help Asian applicants. Professor Mari Matsuda, a professor at the William S. Richardson School of Law and an activist who has opposed efforts to end race-conscious admissions policies in the past, attested to the aid that affirmative action has historically given Asians in an interview with the HPR: “There are people in the professions today, including myself, who would not have gotten the opportunities they had if doors hadn‘t been busted open by Asian-Americans,” Matsuda said. “So many law schools, for instance, when affirmative action was introduced, went from being all white and male, to including women for the first time, and including Asian-Americans for the first time. ”Matsuda also noted that students from underrepresented subgroups of the Asian-American community need race-conscious admissions, and that Asian-Americans have historically benefited from affirmative action policies in employment. Given the high degree of uncertainty among academics as to the actual impact of race-conscious admissions policies on Asian applicants, it is baffling that opponents of the policy continue to argue that they have objective proof that race-conscious admissions policies discriminate against Asians. The Untouched True Culprits While there is scant objective evidence that race-conscious admissions policies unfairly discriminate against Asian-American applicants, other sources of discrimination against them do exist in the college admissions process. The lower “personal ratings” given to Asian Harvard applicants are not the result of affirmative action policies as Edward Blum and his allies claim, but are more likely due instead to simple anti-Asian racism on the part of Harvard’s admissions officers. In fact, the idea that Asians have poor social skills and “lack personality” are classic anti-Asian stereotypes. This type of anti-Asian racism would go unchecked without a properly applied affirmative action policy. If individuals like Edward Blum who masquerade as advocates for the Asian-American community truly cared about helping Asian college applicants, they would be working to combat anti-Asian bias among college admissions officers —not obsessing over affirmative action. Moreover, many people have noted over the past few decades that elite universities like Harvard discriminate against all non-white applicants, Asians included, through their admissions preferences for legacy students and athletes. Dr. Ling-chi Wang, a prominent Asian-American civil rights activist who has also opposed efforts to dismantle affirmative action, told the HPR about his past unsuccessful efforts to end this discrimination. In the 1980s, he noticed a disparity between white and Asian rates of admission to Ivy League universities and contacted the U.S. Office of Education’s Civil Rights division. His complaints triggered a ten year investigation, wherein the Justice Department found a significant disparity in the admissions rates of white and Asian applicants for nine out of those ten years. According to Wang, the Justice Department Investigation found two sources of the disparity. “Number one, Harvard admitted about 600 athletes a year in the freshman class. They were admitted on a different basis rather than through academic criteria,” he said. “Then secondly, they also found that Harvard...admitted a significant number of alumni children. Especially [those of] the donors.” Wang said that those two factors accounted for the entire disparity. Despite these findings, the government at the time sided with Harvard and did not pursue a case against the University for racial discrimination. The past and present refusal of supposed advocates for Asian-Americans to combat this proven source of racial discrimination while simultaneously pursuing questionable campaigns against affirmative action suggests that they do not actually care about Asian-Americans. Their lack of support for AsianAmerican activism makes these individuals appear as if they are using Asians —who generally support affirmative action policies —to harm other minorities without addressing the true sources of inequities in the college admissions process. The Uncertain Future The narrative that affirmative action unjustly discriminates against Asian-American college applicants rests on false premises, ignores centuries of history and runs counter to a plethora of modern data. This falsehood SEARCH.PROQUEST.COM PDF Page 3 of 5 perpetuated by predominantly white individuals pursuing apparently racist agendas puts non-Asian minorities at risk while drawing attention away from the real oppression that Asians face. Nonetheless, this argument continues to gain traction in American society. If lawsuits like the present one against Harvard succeed in destroying affirmative action, and the fiction that affirmative action discriminates against Asians becomes accepted as fact, the United States will have once again succeeded in inflicting suffering upon its non-white citizens, Asians included. Image Credit: Wikimedia Commons/NewtonCourt : Admissions policies; Students; Asian Americans; College admissions; Racism; Racial discrimination; Oppression; Affirmative action : United States--US /: : Harvard University; NAICS: 611310 : Fact Under Fiction: Asians, Affirmative Action, and College Admissions : University Wire; Carlsbad : 2018 : Oct 6, 2018 : United-States : Uloop, Inc. : Carlsbad /: United States, Carlsbad : General Interest Periodicals--United States : Newspapers : English : News ProQuest ID: 2116615514 URL: http://libproxy.adelphi.edu/logi...
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