For nearly 50 years, conservatives opposed to affirmative action have attempted to use the courts to eliminate any consideration of race in university admissions. In case after case, their attempts ended in failure.
Yet judging from events at the Supreme Court on Monday, that may soon change. In a pair of closely related cases—Students for Fair Admissions Inc v. President & Fellows of Harvard College, and Students for Fair Admissions Inc v. University of North Carolina—the plaintiffs called for the total elimination of race-sensitive admissions. Their argument in these cases was not the traditional one that affirmative action discriminates against whites, but rather that it discriminates against Asians. One central argument that came up again and again in oral arguments is that just as Harvard imposed quotas in the 1920 to limit the number of academically talented Jewish students, it is now imposing quotas to limit the number of academically talented Asian American students.
The comparison is superficially compelling. A longstanding body of scholarship—by Stephen Steinberg, Marcia Graham Synnott, myself, and others—does in fact establish that Harvard, threatened by an influx of high-achieving Jewish students, did impose quotas on Jewish applicants in the 1920s, using elusive nonacademic qualities such as “character” and “personality” to limit their numbers. And in recent years, Harvard and other elite institutions have faced a surge in applications from Asian Americans with outstanding academic records, and they, too, have often been plagued by lower scores on personality assessments. Over the past decade, the portrayal of Asian Americans as the “New Jews” has gained traction, appearing everywhere from the Wall Street Journal to the New York Times, from the Atlantic to the Times of London.
Again, this notion that discriminated-against Asian American students in the 2020s are equivalent to discriminated-against Jewish students in the 1920s played a central role in Monday’s oral arguments. Three separate times, Justice Neil Gorsuch raised the issue of the origins of holistic admissions at Harvard in the 1920s and noted how the policy was used to impose a quota on Jewish students. Cameron T. Norris, the lawyer arguing for the petitioners, made the comparison between Asian Americans and Jews explicit, declaring “What Harvard is doing to Asians, like what it was doing to Jews in the 1920s, is shameful.”
When pressed on the issue, Seth Waxman, the lawyer representing Harvard, acknowledged that the imposition of quotas, though a “terrible stain” on Harvard’s history, has no bearing whatsoever on the way Harvard currently conducts its admissions process. Justice Samuel Alito, apparently unsatisfied, raised the issue of Jewish quotas yet again. Observing that Justice Lewis Powell’s deciding opinion in the landmark 1978 affirmative action case of Regents of the University of California v. Bakke failed to address the historical origins of Harvard’s admissions policies, Alito asked pointedly “did Harvard sell Justice Powell a bill of goods?”
Yet the comparison to the 1920s fails to capture some critical differences between the two cases. Unlike affirmative action, which the Students for Fair Admissions, or SFFA, wants to eliminate, the quotas against Jews were enacted for purposes of exclusion—part of a larger xenophobic and antisemitic movement that resulted in the highly restrictive Immigration Act of 1924. In sharp contrast, affirmative action policies at Harvard and elsewhere were enacted during the civil rights movement for purposes of inclusion—to increase the number of Black students and later Latinos and Native Americans, who had historically not had the opportunity to attend institutions like Harvard. As late as 1960, Harvard enrolled just nine black students in a freshman class of 1,212, Yale five in a class of 1,000, and Princeton a total of one in a class of 826.
In truth, holistic admissions can be used for purposes of exclusion, as it was in the case of Jewish students, but it can also be used for purposes of inclusion, as it was during the late 1960s in the case of Black students. This fundamental distinction between both the purposes and practices of exclusion (versus inclusion) is vital to understanding the radically different responses of the Jewish community of the early 20th century compared with the ways in which Asian American communities have responded in the first decades of this century. The Jewish response to the change in Harvard’s admissions policies in the 1920s was unanimous—and fierce—opposition. Prominent Jews, including ACLU founder and later Supreme Court Justice Felix Frankfurter as well as famed political journalist Walter Lippmann, did not hesitate to express their outrage. In an editorial in the New York World, for instance, Lippmann criticized the bigoted Harvard president A. Lawrence Lowell, who had installed the new policy. Lippmann wrote that at Harvard there had been “a change of soul at the top … in the place of [the previous president], who embodied the stern but liberal virtues of New England, there sits a man who has lost his grip on the great tradition which made Harvard one of the true spiritual centers of American life. Harvard, with the prejudices of summer hotel; Harvard, with the standards of a country club, is not the Harvard of her greatest sons.” There has been no such similarly unanimous response among the Asian American community to rally against Harvard’s admissions policies as clearly bigoted, because they are not even close to equivalent to the 1920s policies.
The claim that Harvard has imposed a secret “quota,” though, is at the center of the SFFA’s portrayal of Asian Americans as the “New Jews.” But the claim of a quota is not supported by the facts; the proportion of Asian American freshman at Harvard has risen gradually from 3.6 percent in 1976 to 10.8 percent in 1985, to 17.9 percent in 2010, to 27.8 percent in 2022. The contrast with Jewish quotas could not be more stark; at Harvard, Jewish enrollment, which had surpassed one-quarter of the freshman class in 1925, quickly plummeted to 15 percent with the imposition of the quota, while even more draconian quotas limited Jewish enrollments at Yale and Princeton to 10 and 3 percent, respectively. Nothing remotely like this happened in recent years in any of these institutions, rendering deeply problematic the portrayal of Asian Americans as the “New Jews.” In the fall of 2022, the entering class at both Yale and Princeton was 25 percent Asian American.
Make no mistake: The SFFA, while presenting the Harvard and University of North Carolina cases as a defense of the rights of Asian Americans, is an arrow aimed directly at the heart of affirmative action. Recognizing this, many Asian American groups have taken the side of Harvard in the current case; numerous Asian American organizations have submitted amicus briefs urging the court not to eliminate affirmative action, including the Asian American Legal Defense Fund (in a brief filed with 58 other organizations), and Asian Americans Advancing Justice (in a brief filed with 37 other organizations). To be sure, Asian American communities are in fact deeply divided on the issue, and a number of other organizations have submitted amicus briefs on the side of SFFA.
Throughout their history in the United States, Asian Americans have faced formidable obstacles, including violence, exclusion, and gross discrimination. In the current situation, Asian Americans, who continue to confront hate crimes as well as employment discrimination and may still be judged less generously than white applicants in college admissions, find themselves caught in the middle of a bitter debate about affirmative action not of their own making. Unfortunately, forces long opposed to the civil rights aspirations of Black and Latino Americans have found in Asian American communities a convenient vehicle to convince the Supreme Court to finally end race-conscious admissions. This is a role that many Asian Americans, well aware of America’s troubled racial history, understandably reject.
For its part, Harvard, like all institutions, may engage in practices that, when subject to public scrutiny, are difficult to defend. In the evidence presented in documents released during the case now before the Supreme Court, a number of such practices have been revealed. It has long been known, for example, that Harvard gives preference to the children of alumni (known as “legacies”); what was not known, however, was that they are admitted at a rate of 33 percent, compared to 5 percent for non-legacy applicants, and still comprise 14–15 percent of the freshman class. Even more striking is the extraordinary preference granted to recruited athletes; 79.5 percent of such applicants with a mediocre academic rating of 4 (on a scale of 1 to 6, with 1 highest) were admitted, compared to an admissions rate for non-athletes with the same academic rating of less than 1 in 6,000.
Numbers like these suggest that some of the admissions practices of Harvard and similar institutions, including the preference given to the children of donors—witness the case of Jared Kushner—need to change. Some of these changes, such as the abolition of legacy preferences and the reduction of the remarkable weight given to recruited athletes, would almost certainly redound to the benefit of Asian Americans. But the proposed elimination of affirmative action would be far too high a price to pay, and a flawed analogy that portrays Asian Americans as the “New Jews” fails to justify the adoption of a policy that would reverse decades of hard-won progress.
