February 4, 2019
Warren Zhang ’19, a Yale economics major, has a lot to look forward to. The son of two Bay Area professionals, he secured a highly coveted spot at Yale after four years at a competitive public high school. Now, with graduation just months away, he plans on working in the tech industry, and Yale has prepared him well.
Critics of race-conscious admissions policies would argue that, due to affirmative action, Ivy League success stories like Zhang’s are becoming less common. But Zhang, a Chinese American, is among the roughly 70 percent of Asian Americans who support affirmative action.
“The method of using race-based preferences is effectively a form of racial discrimination. Just because you’re using it to fight existing racial discrimination doesn’t make it just,” Zhang said. “But at the same time, these societal problems are real, so leaving them alone and pretending they don’t exist is, I think, more unjust.”
In November 2014, the anti-affirmative action group Students for Fair Admissions (SFFA) slammed Harvard with a lawsuit alleging a pattern of discrimination against Asian American applicants. In August 2018, the Department of Justice, led by former Attorney General Jeff Sessions, lent its support to the more than 20,000 plaintiffs—students, parents, and others—involved in the case.
Around the same time, numerous Asian American civil rights and advocacy organizations, including the Asian American Coalition for Education (AACE), filed a series of complaints against elite universities with the federal government. In response, the Department of Justice and Department of Education’s Office of Civil Rights launched two joint investigations into the admissions practices of Harvard and Yale, triggering a storm of media coverage and an uptick in student activism on college campuses in support of affirmative action.
These investigations do not represent the only time that affirmative action policies at universities have come under attack. Conservative and anti-affirmative action activists have worked through courts and popular referendums for decades, leading successful campaigns to ban race-conscious admissions in states like California, Florida, and Michigan.
But given that past efforts have focused on public universities, the Harvard lawsuit and current joint investigations mark the first time that the admission of Asian Americans at elite private institutions like Harvard and Yale has been placed under the proverbial legal microscope—and has been the focus of a nationwide debate over affirmative action.
Those at the AACE point to data that corroborates claims of discriminatory admissions practices. A 2008 study published in InterActions: UCLA Journal of Education and Information Studies revealed that state bans on affirmative action policies at public universities led to increases in Asian Americans’ odds of acceptance. The study mostly examined admissions data from California, where affirmative action was banned through a 1996 state referendum. At the University of California, Berkeley, the share of Asian American first-year students rose from roughly 37 percent in 1995 to roughly 47 percent in 2005. In an interview with The Chronicle of Higher Education, David Colburn, a former provost at the University of Florida and one of the study’s authors, stated, “Asian Americans were discriminated against under an affirmative-action system.”
Historically, most complaints of race-based discrimination have been filed by white plaintiffs. After Abigail Fisher, a white woman, was rejected by the University of Texas at Austin in 2008, she unsuccessfully attempted to overturn the university’s affirmative action policies in two cases that eventually reached the Supreme Court. Bert Rein, the seasoned lawyer who represented Fisher both times, strongly believes that the facts are on the AACE’s side against both Harvard and Yale.
Referencing the number of Asian American admits at California’s public universities before and after the 1996 referendum, Rein asserted that affirmative action policies have been proven to significantly harm Asian Americans. “With Harvard and Yale, if you look at the scores, the grades, as much objective evidence as you can get, the performance of the Asian admits is way above the average,” Rein told The Politic. “So the question is: why are you turning away so many?”
Brian Taylor, managing director of Ivy Coach, an elite college admissions counseling firm, thinks he has an answer.
“Asian American applicants so often present similar profiles,” Taylor told The Politic. “In many instances, I would argue that this profile is a template profile. A Chinese American student who excels in math and in a string instrument and runs track—it’s a profile that college admissions officers have seen before. It doesn’t ‘wow’ them.”
Taylor says that Asian American applicants are primarily put at a disadvantage when they don’t present themselves as unique. “That’s true of Asian American applicants, it’s true of Caucasian applicants, African American applicants,” he insisted. Rather than focusing on racial discrimination, Taylor advises his clients to present themselves as distinct individuals. His advice is simple: be interesting.
Rita Wang ’19, an Asian American Yale student who has advocated for the creation of an Asian American studies major, takes offense at such characterizations of Asian Americans, which she considers stereotyping. She worries that popular narratives about Asian Americans ignore key history—in particular, the government’s role in choosing which immigrants are welcome. “If you become more critical about Asian academic success, you’ll see that a lot of it is due to U.S. immigration law,” she told The Politic. The Hart-Celler Act of 1965, for example, allowed many Asians to immigrate to the U.S. during the Cold War for their skills in math, science, and engineering. “The U.S. very selectively chose only academically successful Asians,” Wang explained.
Wang believes that misconceptions about Asian Americans contribute to the “model minority myth,” the belief that Asian Americans are a successful ethnic minority due to an inherent work ethic and academic ability. In a Yale Daily News opinion article defending affirmative action, she explained how the model minority myth “was not created to uplift Asian-American communities. Rather, it was explicitly crafted to push down Black, Latinx and Native Americans.”
But Zhang believes that the stereotype of the high-achieving East Asian student contains some degree of truth. Describing his Bay Area high school to The Politic, Zhang noted that many Chinese American students in the Bay Area are remarkably similar, children of highly educated immigrant parents who push their kids toward a narrow set of academic and extracurricular pursuits.
“Although it’s obviously not true of every student, when the stereotype is ingrained deeply enough in the culture, it is necessary to do some things to buck that trend,” said Zhang. “When you’re dealing with so many high-achieving students who look very similar on paper and you have a very limited number of spots, it eventually comes down to this deep question of differentiation.”
But Sidney Carlson-White ’21, a Black student at Yale and a dedicated activist who supports affirmative action, contends that stereotypes regarding Asian academic overachievement are not only harmful—they’re racist. “To some degree, Harvard is saying, ‘Yes, this person might be smart, this person might have done well on their SAT and have a high GPA, but they have no personality,’” he said in an interview with The Politic. “Where does that come from other than blatant racism?”
Envisioning a more “merit-based” admissions process, the AACE has sought to abolish race-conscious admissions policies since the group was founded in 2014. Alongside groups like Students for Fair Admissions, the AACE has been at the forefront of the current controversy surrounding Harvard and Yale.
In an interview with The Politic, AACE President Yukong Zhao argued that affirmative action lacks a legal basis. “It’s really a moral issue,” he said. “It’s racial discrimination, explicitly banned by the Civil Rights Act.” Zhao and the AACE also claim that race-conscious admissions are unconstitutional and violate the Fourteenth Amendment.
However, James Forman Jr., a Pulitzer Prize-winning Yale law professor who specializes in constitutional and criminal law, defended affirmative action. “If you look back at the Supreme Court decision for Bakke, the first big affirmative action case, it was determined that, legally, this redressing of historical discrimination wasn’t a compelling interest sufficient to justify affirmative action,” he told The Politic. “There are a lot of people, myself included, who think that that was a mistake, who think that historical discrimination and responding to historical discrimination is and should be considered a compelling interest that universities can pursue.”
While Forman asserted that affirmative action could counter historical discrimination, Kirk Kolbo, who represented plaintiffs challenging the University of Michigan’s affirmative action policies in two separate Supreme Court cases, disagreed. Kolbo said that in the past, affirmative action was used to discriminate against Jewish applicants. “It’s like 50 years ago, when Harvard had a quota when they didn’t want as many Jewish students,” he said. “That’s how they established the limit.” For Jewish applicants, he added, “They basically had separate admissions standards.”
Matthew Le ’20, a Vietnamese American Yale student, argues that the benefits of affirmative action outweigh its drawbacks. “Diversity: it’s not something you can ever quantify. There’s no metric,” Le told The Politic, “But having Yale, if it’s going to be this premier institution educating America’s best, be a closer cross-section of what America is…that’s important. To not have that diversity represented here, this school would not reflect this nation and the people in it.”
Carlson-White concurred. “I believe in diversity as a categorical and objective good,” he said. “The institutions that we support and attend should generally look like the people that they draw from. To me, Yale should look like America.”
Labeling diversity as a “convenient pretense” for anti-Asian discrimination in a September 2018 press release, the AACE has rejected these arguments from supporters of race-conscious admissions. Manga Anantatmula, an Indian American member of the AACE Board of Directors, cited a 2007 study in the American Journal of Education reporting that 40 percent of Black Ivy League admits were not from the U.S. She additionally argued that many Black international students come from wealthy African families.
Anantatmula believes the diversity cultivated by affirmative action at schools like Harvard and Yale is performative. “[These policies] are definitely not serving the interests of the United States’ minority communities,” she said. Zhao further argued that university admissions officers should instead aim to create socioeconomic, rather than racial, diversity.
Wang, however, thinks that discounting race in favor of socioeconomic diversity is reductive. “We can’t understand socioeconomic diversity without considering race,” she said, making reference to gentrification and the historical importance of racially discriminatory practices like redlining.
Khiara Bridges, a law professor at Boston University who also supports race-conscious admissions, went further: diversity alone, she believes, should not be the focus of affirmative action policies. Rather, affirmative action should address concerns about historical discrimination and injustice. “The discourse around affirmative action has been bastardized to the extent that it never makes mention anymore of injustice and [the] attempts to remedy that injustice,” she said.
Bridges feels that current dialogues regarding affirmative action are missing a radicalism they once possessed. “Affirmative action is talked about as something that’s good for students since they get to hear different viewpoints, that it’s good for educational outcomes,” she said. “All that might be well and true, but the origins of affirmative action are squarely in the civil rights movement, in claims for inclusion, claims for racial justice.”
Carlson-White agrees, contending that affirmative action is a useful tool for counteracting racialized inequities that have been entrenched in America’s institutions for centuries.
“Many students of color are attending incredibly underfunded schools in cities and towns across America,” he observed. Students of color face structural disadvantages and a lack of resources, Carlson-White said, making them “appear less smart or less capable in the eyes of the supposedly objective testing system.”
Many of the structural problems that affirmative action aims to address originate in primary and secondary schools, and some of its most adamant supporters also advocate for more comprehensive solutions to racial injustice. Wang thinks scrutinizing the prejudices of admissions officers at schools like Harvard and Yale isn’t nearly enough to fight racial discrimination. “We also need to be talking about the biases of the guidance counselors and teachers that are writing these recommendation letters,” she said. “It’s a system that reinforces this idea, not just the individual biases of these admissions officers.”
Wang contends that we should direct our criticism toward education policy, noting that white teachers and guidance counselors at large public schools, each with their own implicit biases, often end up writing recommendations for students of color they might not know well.
For Forman, these educational inequities are a product of America’s racist history. “Because of all of this history, of educational disparities, of wealth disparities, of Black soldiers not being able to access the benefits of the GI Bill, Black citizens have been at an extraordinary historical disadvantage,” he said. “And it’s not a disadvantage that you make up for in a generation.” He added that many students are at Yale today because of their family’s wealth and educational resources, which “Black communities were denied equal access to.”
Carlson-White raised the issue of generational privilege, too. Instead of focusing exclusively on race-conscious admissions, he believes those concerned with fair admissions policies should be seeking to dismantle legacy admissions. “These universities could accept a lot more African American and Asian students if they accepted less white students grandfathered into the process through legacy admissions,” he said.
And, in fact, many members of the AACE would agree. Zhao strongly condemned legacy admissions at Ivy League universities.
“If Harvard and Yale really cared about African American and Hispanic students,” Zhao asked, “why aren’t they giving these legacy spots to minority students?”
Today, prospects for supporters of race-conscious admissions look grim. With the AACE and SFFA enjoying the Trump administration’s support, college admissions consultants and legal experts alike expect a favorable outcome for the two groups.
“They’re enjoying a perfect storm right now,” Taylor said.
Rein explained that the Trump administration could conclude that Harvard and Yale are violating the Civil Rights Act and threaten to cut off federal funding.
Separately, Rein predicted that if Students for Fair Admissions v. Harvard were to reach the Supreme Court, the outcome would likely favor SFFA. In explanation, he noted that conservative Justice Brett Kavanaugh had replaced Justice Anthony Kennedy, who crucially voted to uphold the University of Texas’ affirmative action policy in 2016. “Like it or not, the reality is that when these cases get to the Supreme Court, the vote is not going to be the same as it was before,” Rein said.
“With the appointment of Justice Kavanaugh, I think affirmative action will be all but over by 2020,” he said.
Though affirmative action’s future may be dim, its supporters, like Wang, stand by their principles. She reflected on the importance of race-conscious admissions for the country as a whole. “We need these private institutions to protect racial diversity because of all of the stakes that it has for American democracy and understanding the ways race affects structural issues,” she said.
Wang concluded, “Asian Americans need to use this moment to understand our position in American society and criticize, from an academic and personal experience standpoint, race relations in the United States.”