Advancing The Debate On Affirmative Action
By: William Mertens
Tags: Politics, Affirmative Action, Harvard University, Asian American, Higher Education

Photo credit: Abby Chung

As we await the judge’s verdict in the trial on whether Harvard discriminated against Asians in its affirmative action program, the debate around this topic often goes in circles, where defenders of race-based policies argue that they are essential tools for increasing diversity and correcting injustice and opponents object to reducing students’ identities to race. I see the two sides as fundamentally agreeing on basic principles but disagreeing on the facts of the case.

Race-conscious policies have been approved by the Supreme Court in past precedents. While institutions that did not historically discriminate against certain minorities cannot use racial preferences to “make up” for past society, affirmative action has been allowed to achieve the compelling interest of diversity, with many restrictions in order to comply with the Civil Rights Act of 1964.

While I am not completely opposed in principle to affirmative action (I would support a modest system designed to correct social injustices for African Americans and Native Americans) I believe that the current implementation does not meet these legal standards and needs major revision.

I want to push the debate a little further than where it’s been in the news media so far and show the reasoning behind my view. Below, I’ll give five of the dominant arguments supporting affirmative action and offer my take on why I find them unconvincing:

Argument 1: Proportional representation is the ideal goal.

Background: Many supporters of affirmative action argue for proportional representation, the idea that every race should be represented in college according to their population in the United States. This gives meaning to terms like “underrepresented” or “overrepresented” when speaking about different minority groups — they refer to whether a minority group (specifically, the broad racial groups of African American, Asian, Hispanic, and White) have less or more share in a college’s class than in the general population.

Counter: But it’s unclear why the population of the U.S. should be the benchmark for evaluation. Although in a world with completely equal opportunity we would expect all races to be proportionally represented, the truth is that the pipeline leading up to attendance at a selective university already breaks parity. And this cannot be solely attributed simply to privilege or discrimination. For example, Asian Americans come from families which are disproportionately relatively recent immigrants and skilled workers in technical fields. This is largely due to America’s immigration policy, including the Chinese Exclusion Act of 1880 and the National Origins Act of 1924 which banned immigration from East Asia entirely until 1943.

The timely creation of the H-1 visa program in 1952, which allowed foreigners of exceptional merits to work in the US, selected out a well-educated, STEM-focused subset which forms a large part of the Asian demographic today. Similarly, a large waves of skilled immigrants of other nationalities came to the United States in the later part of the 20th century, like Nigerians and Russians, who have managed comparable levels of educational attainment as Asian Americans.

This social dynamic is responsible for the apparent glut of highly qualified Asian (and Nigerian, and Russian) students in America. For an individual Chinese American student compared to an individual Nigerian American, proportional representation would mean that the reason that he/she does not receive racial preferences for diversity reasons is because of the relative dearth of unrelated people of the same skin color in the new country. And other Asians, like refugees and their children, seem to be collectively punished for the strong performance of students with the same skin color, whose families were pre-selected by race-based immigration policies.

To those who subscribe to the diversity rationale, proportional representation makes even less sense. The demographics of the United States seem to be an arbitrary measure of the amount of diversity in a school. For a school to be maximally diverse, it would be ideal to have close to equal representation of each ethnicity in order to increase the chance of exposure to new cultures and ideas. There’s no diversity-based reason to limit the representation of a culture to the proportion it happens to be in the United States.

Argument 2: Affirmative action is a necessary tool for achieving diversity.

Background: Proportional representation is not the ideal to strive for, but diversity is still an important goal. The Supreme Court in 2013’s Fisher v. University of Texas clarified that race could not be considered unless “available, workable race-neutral alternatives do not suffice.” In the current Harvard lawsuit, the university claims that it convened a three-person committee of deans in 2017 and 2018 to explore race-neutral alternatives but after a few meetings it determined that these would require lowering academic standards by too much.

Counter: In court, Richard Kahlenberg argued that preferences for low-income students instead of certain races could be used to achieve racial commensurable levels of diversity without the explicit consideration of race, and with a much more diverse socioeconomic profile. In his simulation, the share of underrepresented minorities increased from 28% to 30%, and first generation college students increased from 7% to 25%, while academic metrics like grades and SAT scores remained comparable to current levels.

Harvard’s controversial legacy program, which gives an admissions boost to descendants of Harvard alumni, has the effect of lowering the diversity in its classes (and similar programs exist in many other schools). Eliminating this program would seem to be a necessary step in achieving diversity with race-neutral alternatives, but the committee rejected this alternative because the program “cements strong bonds” between Harvard and its alumni. According to the committee, turning off the preferences for legacies, children of Harvard employees, and athletes only produced half the gain of under-represented minorities as its current race-based policy.

But if diversity is as important to the university as these alumni bonds, eliminating legacy preferences would be a good place to start.

Argument 3: Affirmative action leads to better outcomes for minority students.

Counter: A theory that is gaining traction is mismatch, which purports that outcomes for beneficiaries of affirmative action at selective universities are less favorable than they would be at schools where those students would have attended otherwise. The book by Sander and Taylor follows a case study where the number of black people passing the bar and becoming lawyers decreased after implementing affirmative action programs for law school. Similarly, the six-year graduation rate for African Americans at UC Berkeley increased from 55% in 1994 (shortly before the passage of Proposition 209 which banned race-based consideration) to close to 80% today.

This theory is controversial and the discussion surrounding it is politically charged. But even if it doesn’t hold up after further research, it sheds doubt on whether the benefits for recipients of racial preferences are worth the moral uneasiness of discriminating against Asian Americans.

In fact, affirmative action artificially raises the standards for admission for groups which can be considered disadvantaged minorities but broadly fall under Asian or white classifications — such as Arab Americans and Vietnamese Americans — who have suffered from targeted race-based discrimination in this country.

Argument 4: Asian Americans are being manipulated by white conservatives to fight affirmative action.

Background: A popular narrative since the beginnings of the Harvard lawsuit is that Asian Americans would overwhelmingly support affirmative action except that white conservatives exploit them as a “wedge group” against other minorities. This has been particularly applied to Edward Blum, who gathered a group of Asian plaintiffs — described by Columbia professor Jennifer Lee as “pawns”—to sue Harvard and other schools after his narrow legal defeat in the Supreme Court in Fisher v. University of Texas, as well as Trump officials who reversed Obama-era guidelines on the use of race in admissions.

Counter: This gets the history wrong, according to a New Yorker profile. Michael Wang, who had just graduated from high school, initiated contact with conservative activist Edward Blum, not the other way around. This contact spawned the recent lawsuits about Asian discrimination in admissions.

It also removes agency from the Asian American community and overlooks all of their political action on the affirmative action issue. Asian activists were the ones who noticed racial bias in the admissions of the University of California at Berkeley in the 1980s, which led to a public apology in 1989 to leaders of the Asian American community by then-chancellor Ira Michael Heyman: “It is clear that decisions made in the admissions process indisputably had a disproportionate impact on Asians. That outcome was the product of insensitivity. I regret that that occurred.”

Grassroots Asian American activism almost singlehandedly caused the withdrawal of SCA 5, a proposed repeal of California’s Proposition 209 which banned consideration of race from public universities and state government. While it is true that some Asian Americans support affirmative action policies, this doesn’t mean that those who do not are acting according to the will of outsiders.

On the other hand, affirmative action is lobbied for strongly by universities and other powerful political entities who stand to profit from it in both state and federal government. Despite voter unpopularity which has seen it banned in eight states (including liberal strongholds like California and Washington), race-based policies have persisted for so long in higher education that we sometimes strain to remember that there is an alternative.

Argument 5: Race is just a “modest factor” in admissions.

Background: According to the Supreme Court, a race-based affirmative action plan must be “narrowly tailored.” This means that the race factor must be “considered on the same footing” as “all other pertinent elements of diversity” for each individual applicant, with a weight that is modest, not predominant. The use of racial quotas or separate admissions tracks for different races is expressly illegal.

Counter: A common belief is that affirmative action kicks in when two applicants are equal in all other measures, and race acts as a tiebreaker. It’s said that schools like Harvard have enough perfect GPA, perfect SAT applicants to fill their class many times over. But while there are many instances of white and Asian students with these credentials who are rejected, you would be hard-pressed to find members of under-represented minorities in that situation.

So if that’s not how affirmative action works, how does it?

The standard for a constitutional, narrowly tailored affirmative action plan is quite high. It is also logistically demanding, requiring careful consideration of an applicant’s race with the rest of their application in the context of the diversity benefit to the university, while industry insiders generally agree that each application is read for about ten minutes, on average.

In fact, the University of Michigan cited the high volume of applications as one reason they implemented a 20 point advantage (out of 150, twice as much as the advantage given to Michigan residents) for underrepresented minority applicants in the Supreme Court case Gratz v. Bollinger (affirmative action was later banned by Michigan voters in 2006’s Proposal 2).

After the University of Michigan’s point system was deemed illegal, universities have strongly resisted attempts to quantify the advantage or disadvantage given to members of certain racial groups in their processes. They have destroyed data in response to students’ requests to see their own files under the Federal Educational Rights and Privacy Act, and made deals with the Department of Education to resist requests for their data made under Freedom of Information Act. In the recent trial, Harvard did not share data including wealth measures for applicants and student outcomes by race. And the University of California failed to disclose undergraduate admissions data to UCLA professor Richard Sander in his California Public Records Act request.

But the large magnitude of the effect of race on admissions outcome has been determined by indirect means. The Students for Fair Admissions (SFFA) group led by Edward Blum commissioned Duke economist Peter Arcidiacono to analyze Harvard admissions data released by court order. During the late 2000s, the average SAT score for Asian Harvard admits was approximately 60 points higher than that of whites and 420 points higher than that of blacks (under the 2400 scale), not a modest amount by any estimate. Arcidiacono also found statistical evidence for the existence of a floor, or quota, for African American students by noticing how consistent the admit rates were. (Note that Harvard also commissioned a study to refute Arcidiacono’s. This analysis, carried out by Berkeley economist David Card, included data from legacy students and athletes who are on different admissions tracks, and attributed lower Asian acceptance to Harvard’s personality score.)

During the trial, it was revealed that Harvard’s internal Office of Institutional Research produced a 2013 report that claimed that if the academic rating were the only factor in admissions, then Asian Americans would make up 43 percent of the incoming class. Legacy and athletic preferences reduce this number to 31 percent, and the personality rating reduces it further to 26 percent. Adding explicit racial preferences reduced Asian admissions to a final number of 18 percent, close to the actual rate at the time. (At trial, the university claimed that this report was flawed).

Argument 6: Affirmative action doesn’t matter.

Background: The current case is centered on Harvard University. Some argue that Asian students who are rejected from elite schools can find suitable educational opportunities elsewhere.

Counter: Affirmative action policies are widespread across universities of all tiers (another lawsuit against affirmative action at the University of North Carolina is coming up) and Asians are discriminated against across the board.

But even with the focus just on elite schools, the impact is large. The brand name of the undergraduate institution is a major factor in prestige industries like finance, law, medicine, and politics. For example, each of the nine Supreme Court justices who may hold the final say on affirmative action attended either Harvard or Yale.

And systematically denying access to society’s elite to a racial minority is abhorrent. Ben Carson triggered outcry, for example, when he seemed to suggest that a Muslim should not be president.

With the echoes of school segregation still fresh in our national memory, we would hesitate to suggest that black students accept their plight at lesser schools in the same way we so quickly do this to Asians.

Closing thoughts:

Policies that explicitly discriminate based on racial background must be carefully regulated, or risk the possibility of abuse or unintended damage. This requires the public to be informed about the motivations, practices, and outcomes of the policy with transparency from the university.

In a follow-up, I’ll speak with a verified admissions officer about practices at their university to understand better how affirmative action works in practice.