The Slatest

How to Protect Affirmative Action From Right-Wing Challenges

The Harvard trial showed the school disadvantages Asian Americans in admissions. Recognizing—and fixing—the problem is the best way for progressives to defend race-conscious policies.

A student wearing an orange backpack pulls open the door to the Admissions Building.
Freshman Winston Yan enters the Admissions Building at Harvard University on Sept. 12, 2006, in Cambridge, Massachusetts.
Glen Cooper/Getty Images

One of the most frustrating experiences as a minority is to be told that the discrimination you believe you face is a figment of your imagination. It makes you question everything. Was that a weirdly racial remark or the product of my oversensitivity? Are there not more Asian Americans in power in workplaces simply because we lack the magnetism and gumption?

It’s this constant second-guessing that has fueled my exasperation while covering Students for Fair Admissions’ lawsuit against Harvard University over allegations of anti–Asian American bias in the university’s admissions process. For at least three decades, Harvard has been aware of specific mechanisms in its policies that give white applicants an advantage over Asian Americans. Five years ago, a series of internal studies confirmed that these mechanisms and others still had racialized effects.

Yet, during the trial, which ended on Friday, Harvard’s dean of admissions, William Fitzsimmons, repeatedly testified that Asian Americans do not face any undue disadvantages in the admissions process. Harvard’s dean of college, Rakesh Khurana, testified that he would have “rung multiple alarm bells” if he “felt there was any intentional discrimination.” And over the past several months, as the lawsuit gained wider public attention because of its potential to diminish affirmative action, a significant number of progressive groups have failed to press Harvard on evidence of racial inequalities in its admissions.

Defenders of affirmative action are in a difficult position, and it may seem like any criticism of Harvard’s policies would weaken the argument for race-conscious admissions, especially given the stakes of the case. Edward Blum, a prominent conservative activist, engineered this legal challenge as part of his overall project to eliminate protections for racial minorities. The court has already ruled that Harvard may use race in its admissions policies, but the practice is still under threat if the Supreme Court eventually takes up the case on appeal.

The issue under consideration at this stage of the lawsuit is whether Harvard misapplies race in its admissions standards to disadvantage Asian Americans through informal quotas, particularly for the benefit of white applicants. Harvard tried to persuade the court to throw out this count as well, but Judge Allison Burroughs determined there was enough evidence suggesting discrimination to merit a trial. She is expected to issue her ruling early next year, though the losing party is expected to appeal the decision, and the case could continue on for years.

Harvard shouldn’t get a pass for the lapses that this case has uncovered. Many of the flaws that critics are highlighting have little to do with affirmative action. There are Asian Americans on both sides of this debate—attacking and defending affirmative action—who have valid concerns about how Harvard conducts its admissions. Watching the trial play out over the past three weeks, it’s hard not to wonder whether affirmative action would be in such peril if Harvard and its current advocates had fully interrogated the evidence of discrimination against Asian Americans.

In the 1980s, a furor arose over Asian Americans in university admissions, similar to the one we’re witnessing now. “Are There: A) Too Many or B) Too Few Asian Americans Admitted to College?” a 1987 Los Angeles Times column inquired. In 1989, the New York Times published an article titled, “Wider Door at Top Colleges Sought by Asian-Americans.” As a result of the rumors and media attention, the Department of Education launched investigations into Harvard; the University of California, Berkeley; and the University of California, Los Angeles. By the time the investigation ended in 1990, UC–Berkeley and UCLA had both apologized for capping Asian American admits in favor of white students.

However, the Department of Education cleared Harvard of any legal violations, finding instead that the discrepancies in admission rates between white and Asian Americans were a result of legacy and athlete preferences. Fitzsimmons, Harvard’s admissions dean, released a statement at the time reading, in part, “While Asian-Americans are slightly stronger than whites on academic criteria, they are slightly less strong on extracurricular criteria. In addition, there are very few Asian-Americans in our applicant pool who are alumni/ae children or prospective varsity athletes. When all these factors are taken into account, the difference in admissions rates for the two groups disappears.”

The only aspect of this equation that has changed since then is that Asian Americans now have, on average, higher academic and extracurricular ratings than white applicants. In 2013, the university conducted three internal reviews of its admissions system in response to resurgent allegations that it was discriminating against Asian American applicants and that it was not doing enough to encourage socio-economically underprivileged high school students to apply. According to Harvard’s own investigators, the only area where Asian Americans fell behind white applicants was the personal rating, a hodgepodge of subjective considerations that include alumni interviews, the personal essay, and qualities like grit. And Asian Americans generally have better alumni interview feedback than white applicants, making the source of the lower scores unclear. No one has bothered to fully investigate, despite data from the review showing that the personal rating significantly reduces the number of Asian Americans admitted to Harvard.

The personal rating is the vaguest and most subjective of the admissions criteria, and would therefore seem to be the most susceptible to implicit bias. Indeed, the university may have neglected to provide application reviewers with adequate instructions to ensure they are judging qualities in the personal rating without the influence of racial stereotypes. The Boston Globe reported that Harvard changed its admissions guidance on the personal rating to add more explicit details about its proper use right before the lawsuit. (Harvard says it would’ve updated the guidance anyway.)

The internal reports further determined that Asians Americans were at a disadvantage compared with white applicants because of legacy and athletic recruitment, as was the case in the 1990 investigation. Harvard has contended that these reports were shoddy and incomplete, but Fitzsimmons testified that he decided not to look into most of the findings because they were consistent with what he already knew, which is itself telling.

It’s concerning that Harvard and other colleges have not been aggressively pushed to get rid of legacy admissions, a practice that undeniably favors privileged white applicants over everyone else. The National Coalition of Asian Pacific Americans and Asian Americans Advancing Justice, respected racial justice groups that launched advocacy campaigns for this case, told me that they have no official position on preferences for legacy applicants. The Coalition for a Diverse Harvard, an alumni organization that voiced its support for affirmative action during the trial and whose express mission is to push the university to foster more diversity, has no position on the matter either. These groups have admirable track records and are doing crucial work during this trial, but their hesitance to formally endorse a movement to end legacies that would undoubtedly benefit people of color at large is a mistake.

Legacy applicants, usually the privileged children of alumni, are admitted to the university at a rate five times that of nonlegacies. More than 20 percent of white applicants admitted to Harvard were legacies from 2010 to 2015, compared with 4.8 percent of black students, 7 percent of Latino students, and 6.6 percent of Asian American students. Opposing legacies should be a self-evident position for groups that advocate for diversity in education. Legacies serve to fortify the privilege that Harvard bestowed upon its disproportionately white and wealthy student bodies in generations past.

This blind spot is illustrative of how advocates for affirmative action have not emphasized evidence of bias in athletic admissions, in the personal rating, and in other facets of Harvard’s admissions system. And there are likely more lapses in the admissions system that we don’t know about. Harvard, like many elite private institutions, has a distaste for transparency in its admissions. It only released fuller data on the process after being dragged to court.

I emphatically endorse affirmative action. What you read in university admissions pamphlets about the benefits of learning beside a set of “diverse peers” is, from my experience, profoundly true to life. My time in college was enriched by befriending people who looked and lived differently than me. Admissions officers need to acknowledge the systemic dispossession that deprives black, Latino, Southeast Asian, and other students of color the opportunities that other applicants have been afforded. SFFA’s lawsuit is co-opting some Asian Americans’ fear and anger at college admissions to get rid of affirmative action for the ultimate benefit of white applicants.

But we need to acknowledge that the many flaws in Harvard’s admissions policies are real, not inventions of SFFA’s fabulists. There is strong evidence that a number of mendable flaws are giving white applicants a leg up over Asian Americans for reasons other than affirmative action and that Harvard’s admissions officials are willfully ignoring that fact. That is the message we should be communicating to concerned Asian Americans. We shouldn’t be pretending that there is nothing to be concerned about.

Examining how legacies, athletic recruiting, and personal ratings tend to favor white applicants and implementing institutional remedies that could blunt the racialized impact of these policies would go a long way toward allaying the concerns that some in the Asian American community have. Pushing for more transparency in a notoriously opaque process may reveal further mechanisms of inequality in the process, both for Asian Americans and other people of color.

This is the first major lawsuit we’ve seen from Asian American plaintiffs seeking to strike down affirmative action, and there may be more to come. Past cases to reach the court have had white plaintiffs. Now, there’s a concern that Asian Americans are being used as a “wedge” to prevent cooperation between of people of color. Yukong Zhao, the president of the Asian American Coalition for Education, a group advocating for the end of affirmative action, told me, “We’ll continue to have lawsuits. This battle, like the civil rights movement, will take many years.” Advocates for affirmative action can’t just leave the system untouched and vulnerable to similar assaults.

By letting these flaws fester for three decades, Harvard allowed conservative activists with cynical motives to pinpoint vulnerabilities and anxieties that they could exploit for their own ends. We’ve had ample opportunity to push Harvard to be more transparent with its admissions policies and to critically examine its shortcomings without the threat of a devastating Supreme Court decision hanging over our heads. Sure, to relitigate the past is difficult and not always productive, but it can show us a way forward. When this lawsuit and all its appeals are finally over, if affirmative action survives this latest challenge, we’ll have an opportunity to strengthen admissions systems to further promote diversity and combat misperceptions that it is affirmative action that is penalizing Asian Americans. As damaging as this case has been, it has also placed well-deserved scrutiny on our institutions of higher education, and we shouldn’t squander our chance to advocate for reforms.

With affirmative action off the table at this stage in the proceedings, the plaintiffs need to prove that Harvard intentionally or excessively discriminates against Asian Americans, a fairly high legal standard. We’ll see if the plaintiffs meet the burden of proof sometime in the coming months, but we should be holding our universities to a higher standard than merely what’s legal. Neglecting to do so would be a disservice to affirmative action.