newyorker | The application process for schools, fellowships, and jobs always came
with a ritual: a person who had a role in choosing me—an admissions
officer, an interviewer—would mention in his congratulations that I was
“different” from the other Asians. When I won a scholarship that paid
for part of my education, a selection panelist told me that I got it
because I had moving qualities of heart and originality that Asian
applicants generally lacked. Asian applicants were all so alike, and I
stood out. In truth, I wasn’t much different from other Asians I knew. I
was shy and reticent, played a musical instrument, spent summers
drilling math, and had strict parents to whom I was dutiful. But I got
the message: to be allowed through a narrow door, an Asian should
cultivate not just a sense of individuality but also ways to project
“Not like other Asians!”
In a federal lawsuit filed in Massachusetts in 2014, a group
representing Asian-Americans is claiming that Harvard University’s
undergraduate-admissions practices unlawfully discriminate against
Asians. (Disclosure: Harvard is my employer, and I attended and teach at
the university’s law school.) The suit poses questions about what a
truly diverse college class might look like, spotlighting a group that
is often perceived as lacking internal diversity. The court complaint
quotes a college counsellor at the highly selective Hunter College High
School (which I happened to attend), who was reporting a
Harvard admissions officer’s feedback to the school: certain of its
Asian students weren’t admitted, the officer said, because “so many” of
them “looked just like” each other on paper.
The lawsuit alleges that Harvard effectively employs quotas on the
number of Asians admitted and holds them to a higher standard than
whites. At selective colleges, Asians are demographically
overrepresented minorities, but they are underrepresented relative to
the applicant pool. Since the nineteen-nineties, the share of Asians in
Harvard’s freshman class has remained stable, at between sixteen and
nineteen per cent, while the percentage of Asians in the U.S. population
more than doubled. A 2009 Princeton study showed that Asians had to
score a hundred and forty points higher on the S.A.T. than whites to
have the same chance of admission to top universities. The
discrimination suit survived Harvard’s motion to dismiss last month and
is currently pending.
When the New York Times reported, last week, that the Justice
Department’s Civil Rights Division was internally seeking lawyers to
investigate or litigate “intentional race-based discrimination in
college and university admissions,” many people immediately assumed that
the Trump Administration was hoping to benefit whites by assailing
affirmative action. The Department soon insisted that it specifically
intends to revive a 2015 complaint against Harvard filed with the
Education and Justice Departments by sixty-four Asian-American groups,
making the same claim as the current court case: that Harvard
intentionally discriminates against Asians in admissions, giving whites
an advantage. (The complaint had previously been dismissed in light of
the already-pending lawsuit.) The combination of the lawsuit and the
potential federal civil-rights inquiry signals that the treatment of
Asians will frame the next phase of the legal debate over race-conscious
admissions programs.
Just last year, the Supreme Court upheld the constitutionality of the
University of Texas at Austin’s affirmative-action program, which, like
Harvard’s, aims to build a diverse class along multiple dimensions and
considers race as one factor in a holistic review of each applicant.
Justice Kennedy, writing for the majority, approved of a university’s
ability to define “intangible characteristics, like student body
diversity, that are central to its identity and educational mission.”
Incidentally, the phrase “intangible characteristics” echoes the sort of
language that often describes the individualizing or leadership
qualities that many Asian-American applicants, perceived as grinds with
high test scores, are deemed to lack. The complaint against Harvard
highlights the school’s history of using similar language to describe
Jewish students nearly a century ago, which led to a “diversity”
rationale designed to limit Jewish enrollment in favor of applicants
from regions with fewer Jews, such as the Midwest. If diversity of
various kinds is central to an élite school’s mission, an Asian may have
to swim upstream to be admitted.
The U.T. affirmative-action case was brought by a white student and
financed by Edward Blum, a white Jewish conservative who is also
financing the lawsuit against Harvard. Justice Alito’s dissent in the
U.T. case said that, in failing to note that U.T.’s admissions practices
discriminated against Asians, the Court’s majority acted “almost as if
Asian-American students do not exist.” For Asian-Americans—the majority
of whom support affirmative action—being cast in the foreground of the
affirmative-action debate can be awkward and painful. Affirmative action
has consistently been a “wedge” issue, and groups such as Asian
Americans Advancing Justice have opposed attempts to use Asian students
as the wedge in conservative attacks on affirmative action that may harm
black and Latino students. Some simply deny that race-conscious
admissions procedures are disadvantaging Asians at all, which avoids
confronting a complicated dilemma.
