U.S. affirmative action cases raise fear of backlash on Asian Americans

Asian American students join a rally with other activists as the Supreme Court hears oral arguments on a pair of cases that could decide the future of affirmative action in college admissions, in Washington on Oct. 31.    © AP

WASHINGTON — As the fate of affirmative action in U.S. college admissions appears in danger after conservative Supreme Court justices signaled they were ready to end it, there are concerns Asian Americans could face a backlash from the case.

In two cases to dismantle race-conscious admissions, Asian Americans and white people are presented as victims of affirmative action by a conservative group Students for Fair Admissions (SFFA) against Harvard and the University of North Carolina.

The Supreme Court, which has a 6-3 conservative majority, heard an oral argument at the end of October on the cases, and is expected to give a decision in the summer.

Regarding Harvard, SFFA claims in a statement announcing the argument that “the college is violating Title VI of the Civil Rights Act by penalizing Asian American applicants, engaging in racial balancing, overemphasizing race, and rejecting workable race-neutral alternatives.”

The group said Harvard penalizes Asian Americans “because, according to its admissions office, they lack leadership and confidence and are less likable and kind.”

In the case against UNC, the group argues “the university is violating the U.S. Constitution and Title VI by illegally rejecting a race-neutral alternative to racial admissions preferences.” It argues race is a dominant factor in UNC’s admissions “to the detriment of white and Asian American applicants.”

SFFA first filed the federal lawsuits in 2014 and now is asking the U.S.’s highest court to overturn its 2003 decision, which allowed universities to consider race in admissions as part of efforts to achieve diversity on campus.

Harvard and UNC dismiss SFFA’s claim that they are overemphasizing race in the admission process and point to a lower courts’ conclusion that both schools use race as only a factor in a holistic review. The schools also urge the Supreme Court to uphold the 2003 decision, emphasizing having a diverse student body provides substantial benefits for students.

During the oral arguments on Oct. 31, six conservative justices made clear their skepticism of affirmative action.

“I’ve heard the word ‘diversity’ quite a few times, and I don’t have a clue what it means. It seems to mean everything for everyone,” Justice Clarence Thomas said.

Justice Samuel Alito posited that college admissions are a “zero-sum game.” “If you give a plus to a person who is an under — falls within the category of underrepresented minority but not to somebody else, you’re disadvantaging the latter student,” Alito said.

The expected decision could have a broader effect on the U.S. education system. According to Harvard, over 40% of U.S. universities take race in some form in admissions considerations.

Affirmative action in college admissions has been ruled by the Supreme Court three times in the past — 1978, 2003 and 2016. Kevin Kumashiro, an expert on education policy and the former dean of the School of Education at the University of San Francisco, said the court has ruled that race can be considered in college admissions under two conditions: if race is one of a number of factors, and if the university argues that affirmative action is necessary to racial diversity that contributes to the educational experience for students.

According to Kumashiro, in those three cases, the plaintiffs made “basically the same arguments, all arguing that white students are discriminated.”

This time, the plaintiff is arguing Asian Americans are also discriminated.

Views of Americans and Asian Americans on affirmative action are mixed.   © Reuters.

Kumashiro thinks this is the strategy of the plaintiff. When Supreme Court upheld affirmative action at the University of Texas at Austin in 2016, Kumashiro said, “conservative Justice Alito, in his dissent, suggested that affirmative action might be undone if you can prove that affirmative action is actually hindering racial diversity. Who is the best test case for that? Well, Asian Americans. Because when California outlawed affirmative action in 1990s, one community of color whose admission number went up was Asian American.”

“I feel like Asian Americans are being positioned in a way that serves as a wedge — is like dividing the communities of color,” Kumashiro said. “And it is making people think that to help Black and brown students, you’re going to hurt Asian American students. And I think this is very racially and politically problematic. It’s very inaccurate, but I do think that that’s the narrative that has been successfully used to gather support. And to me, it is the narrative that the Supreme Court is going to really play up in its decision.”

Ellen Wu, associate professor of history at Indiana University at Bloomington, said, “Asian Americans have become the face of this case.”

Having Asian Americans figure so prominently in the lawsuit is “a very limited understanding of Asian Americans’ relationship to affirmative action,” she said. “Historically, Asian Americans have benefited from affirmative action and supported it. Asian Americans have maintained a longtime interest in racial justice and affirmative action policies.”

Kumashiro and Wu shared concerns about a potential backlash against Asian Americans as a result of the Supreme Court’s expected ruling to end affirmative action.

“One of the reasons why Asian Americans have experienced anti-Asian racism in the country is because Asian Americans and Asians are often positioned as a reason why certain policy shouldn’t be promoted,” Kumashiro said.

In the 1960s, Kumashiro explained, labeling Asian Americans as a “model minority” was “a brilliant strategy” used by “those who were trying to deny that there was structural and systemic racism” because they could claim that there couldn’t be a systematic racism, if one minority group, Asian Americans, was successful.

Kumashiro said he is worried that Asian Americans could face the similar anti-Asian American sentiment. “I think the continuance of this anti-Asian racism is definitely going to be fueled. And I think this is horrible timing in so many ways, because we’re on the heels of lots of anti-Asian — and especially Chinese — sentiment due to COVID.”

Wu agreed, adding, “What is worrisome is not only that it may exacerbate conflict or tension in communities of color, but if you look at who is funding and supporting these lawsuits, they have been pushing to dismantle voting rights and other important rights as well.”

Edward Blum, president of Students for Fair Admissions, is also a founder and director of Project on Fair Representation, which is “a not-for-profit legal defense fund program that is designed to support litigation that challenges racial and ethnic classifications and preferences in state and federal courts,” in areas of education, voting, contracting, employment, racial quotas, and racial reparations, according to its website. The organization has filed many lawsuits against affirmative action and voting rights acts.

Views of Americans and Asian Americans on affirmative action are mixed. According to a Washington Post-Schar School poll conducted in October, 63% of U.S. adults and 65% of Asian Americans and Pacific Islanders support a ban on the consideration of race in college admissions. At the same time, 64% of U.S. adults and 66% of Asian Americans and Pacific Islanders endorse programs to boost racial diversity on campuses.

An August poll by AAPI Data, a publisher of demographic data and policy research on Asian Americans and Pacific Islanders, showed that 69% of Asian American registered voters supported affirmative action.

“There’s about 23 million people who fall under this [Asian American] category,” Wu said, explaining the discrepancy. “And there’s a lot of diversity and disagreement among Asian Americans on all kinds of issues.”

As the Supreme Court decision to end race-conscious admissions process looms, universities are looking at other options to ensure campus diversity.

One option, according to Kumashiro, is what many universities are already doing: considering proxies for race such as socioeconomic status of applicants.

Kumashiro urges more fundamental and long-term change. “Many Asian Americans who are against [affirmative action] often say that it hurts us, it prevents the highly qualified or very bright Asian American students from getting into the top universities.

“And that argument to me works only if you believe that the top universities should be getting ‘top’ or ‘smart’ students. And I would say, ‘No, let’s imagine universities as not merely creaming off the top the best.’ Let’s imagine universities having a very different kind of impact in the world, more egalitarian, more equitable. More about advancing democracy, like preparing everyone to flourish.”

Wu emphasized the importance of all minority groups working together to protect all rights, including education.

“I think that as Asian Americans, we have to keep reaching out for those issues we can find common ground with other communities, to make sure that policymaking works for people who need it…the people that have the least power, the people that need support… whether that’s like employment or education, health care, voting and other vital areas.”