Affirmative Action Has Been Specifically Discriminatory Against Asians

The Asian plaintiffs in SFFA were not mere stalking horses for whites; Asians were the demographic facing the most material harms from race-conscious admissions

Dear readers,

Jay Caspian Kang notes the conspicuous omission of the Asian American experience from commentary lamenting the end of affirmative action in college admissions, including the dissenting opinions from Supreme Court justices themselves. And he also correctly diagnoses why Asian Americans are being glossed over:

The evidence the plaintiffs had amassed that Harvard, in particular, discriminated against Asian applicants through a bizarre and unacceptable “personal rating” system is overwhelming. These facts, and, more important, the conservative composition of the Supreme Court, placed the defenders of affirmative action in a bit of a discursive and legal corner. If you acknowledged that Harvard was, in fact, engaging in behavior that by any reasonable standard would be considered discriminatory and rooted in harmful stereotypes, it was nearly impossible to then turn around and say that the university should have the right to conduct its admissions in whatever manner it pleased. Why would anyone trust Harvard to do anything?

The go-to move from advocates of affirmative action has been condescension: dismissing the Asian American plaintiffs in the lawsuit against Harvard as mere props for white conservative lawyers and politicians. In the Atlantic, Xochitl Gonzalez decried “the cynical recruitment of a handful of aggrieved Asian American plaintiffs,” as though the plaintiffs (and other Asian Americans who oppose affirmative action) lack the agency to have assessed — accurately! — that admissions games have been rigged against them, and then to object to this fact both at the ballot box and in the courts.

There is a point that I think has been missed a bit here even by opponents of affirmative action. In college admissions, affirmative action was not simply a practice of easing admissions requirements for black and Hispanic applicants in a way that made it harder for white and Asian applicants, as a bloc, to gain admission than if the policy had not been in place.¹ At many institutions, including Harvard, the practice was designed to place a disproportionate burden on Asian applicants, discriminating against them relative to whites. Asian Americans were not simply a class of people whose presence as plaintiffs could scramble political questions about “white supremacy” and make liberals feel awkward defending affirmative action; they were the class of people who experienced the most serious harm that could be redressed in court.

As the team of economists who served as expert witnesses for Students for Fair Admissions show, Harvard applicants of Asian descent have had significantly stronger academic records, on average, than white applicants. But for any given level of academic achievement, white applicants have enjoyed higher admission rates than Asian applicants. This practice — justified through the awarding of lower scores for “personal” characteristics to Asian applicants — has limited the Asian share of Harvard’s classes, and has also limited the extent to which affirmative action policies have impacted admission rates for white applicants. Peter Arcidiacono and his co-authors find that if Harvard had kept its admissions process the same in all aspects except for eliminating racial preferences, it would have admitted 491 more whites and 799 more Asians across the sample of applicants they examined. To put those figures in context, they find affirmative action led to the rejection of 28% of Asian applicants to Harvard who would have been admitted without the policy; for white applicants, the number is only 15%.

I would note, there is no mathematical reason why a policy of affirmative action would need to work like this. Harvard could have designed an admissions policy to promote the admission of students from groups that would otherwise be underrepresented at the institution — chiefly, black and Hispanic students — by easing the effective GPA and exam score requirements for those demographics, and then applying the same effective GPA and exam hurdles to all other applicants, whether those applicants were white or came from a minority that was not underrepresented. If Harvard had done this, it would have admitted classes that were more Asian and less white than the classes it actually did admit.

So, why didn’t Harvard do so?

Pro Affirmative Action supporters and and counter protestors shout at each outside of the Supreme Court of the United States on Thursday, June 29, 2023 in Washington, DC. (Kent Nishimura / Los Angeles Times via Getty Images)

The most obvious possibility — one we should not discount — is simple racism against Asians and Asian Americans. Perhaps Harvard’s admissions officers came honestly by their systematically lower “personal” ratings for Asian applicants — finding them relatively deficient on traits such as “integrity, helpfulness, courage, kindness, fortitude, empathy, self-confidence, leadership ability, maturity, or grit” —because they actually subscribed to negative stereotypes about Asian applicants. This would provide justification to all the Asian American parents who have hired consultants to help their college-applicant children seem less stereotypically Asian.

A second possibility — or, perhaps, a slightly more charitable way of describing the first possibility — is that admitting so many Asian applicants would have undermined Harvard’s diversity objectives.² While affirmative action policies don’t actually align college demographics with national demographics, they work to push them in that direction. A class that is nearly 40% Asian, as Harvard’s would be without racial preferences, obviously wouldn’t look like America. Of course, you could have said the same about Harvard’s cap on Jewish admissions that prevailed nearly 100 years ago. Even during the cap era, Harvard did not ban Jews — about 15% of Harvard students were Jewish, a proportion far higher than in the general population. I’m sure a lot of Harvard’s administrators thought at the time it was preposterous to claim they were being anti-Semitic when nearly one out of six students they were enrolling were Jews.

A third possibility is crude Kendism — the idea that any racially disproportionate outcome is per se illegitimate. If an examination of test scores and GPA alone would produce an admitted class with different demographics than the country, then something has gone wrong — the measures are racially biased, or they reflect systemic differences in preparatory resources across demographic groups, or they are simply measuring the wrong characteristics. Under this theory, the high achievement of Asian applicants is itself a problem requiring redress — a phenomenon that is unfair to all non-Asian applicants, including whites — and so suppressing the Asian share of the admitted class is an anti-racist act.

I don’t think this last concept actually describes how Harvard’s admissions officers were thinking. I think they were just amorally trying to “cast” the Harvard class in a way that would look good to applicants and liberal members of their community while also serving the university’s institutional ends. But I do think the idea that Asians have simply taken more slots than they deserve is driving the politics of affirmative action in places like New York and California, where the stakes are higher than they are at Harvard.

Ross Barkan has been doing excellent writing on the political realignment toward Republicans that has been abruptly occurring in Asian communities in New York City. This realignment is about multiple issues — crime is possibly the biggest one — but one key factor is the city’s selective public schools, some of which admit students solely on the basis of their scores on a standardized test, the SHSAT. The schools have used this system for decades, and decades ago they used to be majority white. But as New York City’s Asian population has grown, the exam schools have become very heavily Asian; the most prestigious one, Stuyvesant High School, is 72% Asian, in a city that is only 14% Asian. Asians are the only overrepresented demographic at Stuyvesant; the school is significantly less white than the city. The second- and third-most selective exam schools, Bronx Science and Brooklyn Tech, are also majority Asian.³

Periodically, progressive Democratic politicians have sought to do something about this “problem,” looking for ways to change the schools’ admissions process in a way that would lead to far more admissions of black and Hispanic students — de-emphasizing the SHSAT or junking it entirely. Because there are so few white students at the top schools, the obvious implication is that many fewer Asian students would be admitted. And despite the periodic protestations of progressive groups that Asian voters actually favor race-conscious admissions, the political effect in New York has been that Asian voters have shifted Republican, and that Democrats representing Asian voters have fought to protect the policy status quo in order to represent their constituencies and retain their seats.

I would note, there is no inherent reason that policies promoting racial “balance” must favor minority groups at the expense of the majority. There is a long history of policies aimed at limiting the representation of an overrepresented minority with at least a partial motivation of furthering the interest of a majority group. That was the purpose of the Jewish cap at Harvard: to create more opportunities for white gentiles. And we can see a form of this even in Harvard’s recent policies, which have used an anti-Asian bias in order to soften the impact of affirmative action on whites.

This might be the biggest reason Asian Americans had a stake in the political fight to prohibit racial preferences in admissions. For now, white voters perceive that policies aimed at achieving racial balance will tend to disfavor whites. But that does not have to be the case, and it already is not the case at places like Stuyvesant, where whites are underrepresented. The SHSAT issue has not obviously been a major animating issue either way for white voters in the city — it’s been left to the city’s Asian communities to fight for the test’s retention, because they are the ones with the most at stake. This is a reason that Asian American communities had good reasons to desire the constitutional protections they gained in SFFA: they are going to face similar policy situations in the future where the math causes the white majority to be indifferent.

As for Harvard and other selective colleges, the widespread assumption of supporters and opponents of affirmative action is that administrators will seek to continue the practice by other means, even though Chief Justice Roberts tried to be clear in his opinion that the court will look very skeptically at efforts to do so. I think it would be better if the colleges would reflect a little on why they have been so insistent on considering race in admissions.

What was the purpose of this practice — one built on disfavoring some minority groups to favor others — in the first place? If the purpose was reparative, then their relative treatment of groups didn’t make any sense. And if it was to promote diversity, I don’t think they have very much to worry about.

In her Atlantic piece, Gonzalez declares that the end of affirmative action will mean the end of “elite multiculturalism” — a rather overwrought description of a change that would, in Harvard’s case, produce a class that is 57% non-white instead of 64% non-white. The numbers need not even move that much — if Harvard dropped preferences for athletes and legacies at the same time as it dropped racial preferences, that would have the effect of reducing the white share of the admitted class while leading to more admissions of racial-minority applicants (including a further increase in the Asian share of the class.)

When we talk about Asians at Harvard, it’s important to remember we’re using a demographic term that is ludicrously expansive. You can say that about any summary term that is supposed to efficiently snapshot and categorize a student’s ethnic category, but it’s especially true when the term relates to having any heritage in the continent that’s home to more than half the world’s population. We’re talking about prospective students with roots from the Indian subcontinent to the Pacific Rim; about third-generation Americans raised in New Jersey and international students moving directly from China to Cambridge; and about people with an extremely wide variety of religious, cultural, and educational backgrounds. The idea that Harvard and the graduating classes it produces would be less multicultural if they became about 40% Asian strikes me as ridiculous, so maybe the admissions office should consider just sitting back and letting it happen.

Very seriously,

Josh

1. One weird aspect of the affirmative action debate is that its supporters have tried to make it verboten to accurately describe what affirmative action is. As Freddie DeBoer writes: “It remains profoundly weird that people who want to defend affirmative action can’t straightforwardly say what it does. Affirmative action is a system in which students of color who would not ordinarily gain entry to a given college are given a slot thanks to consideration of their racial background, on grounds of diversity or addressing systemic bias. But if you say ‘these college kids got in because of affirmative action,’ that’s a horrible, racist thing to say. I can’t think of another progressive program where the defenders of that program have forbidden people from saying that the system is working as it is intended to work. Very strange.”

2. Even though diversity had been the only legally permissible rationale for racial preferences in college admissions under a decades-long line of Supreme Court decisions, a lot of progressive advocates will readily tell you they support affirmative action as a policy for reparation, not diversity. But it is impossible to square Harvard’s actual admission policies with a reparative objective. Black Americans have faced a unique history of oppression that could provide a logical basis for admission preferences for reparative purposes. What possible read of American history could lead to the idea that a reparative agenda requires offering preferences to Hispanic applicants while disfavoring Asians relative to whites?

3. As Ross notes, Asian test takers’ strong average performance on the SHSAT is not the sole driver of these schools’ skewed demographics. Their demographics are also impacted by affirmative action policies at the city’s selective private schools, which use well financed scholarship programs to heavily recruit the black and Hispanic middle-school students who would be most likely to score highly on the SHSAT.