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A two-year-old lawsuit accusing Harvard University of maintaining racial quotas against Asian-American students is moving forward to wage the latest battle against affirmative action.
In 2014, Students for Fair Admissions, a nonprofit organization behind the Fisher v. University of Texas case led by conservative political strategist Ed Blum, who is white, filed a lawsuit against Harvard on behalf of an anonymous Asian student who was rejected by the university, allegedly despite perfect test scores and graduating at the top of their class.
The case was put on hold until after the Supreme Court made a ruling in Fisher. This summer, the Court upheld holistic affirmative action policies as constitutional, so the SFFA case is moving forward, the Harvard Crimson reported. Like Fisher, the SFFA lawsuit seeks to dismantle affirmative action, but the strategy for this case is slightly different. Instead of arguing that people of color are given preferential treatment over more qualified white students, the case against Harvard centers on Asian-American students, to attack affirmative action on the grounds that it hurts people of color too.
Harvard isn’t alone. In May, the Asian American Coalition for Education filed a civil rights complaint to the Department of Education’s Office for Civil Rights against Yale University, Dartmouth College, and Brown University for reportedly maintaining racial quotas at the expense of Asian-American students with perfect test scores.
The message is clear: Meritocracy is more ideal than holistic review that includes race, and attacking affirmative action isn’t racist if people who experience racism say they are harmed by the policy too.
As OiYan Poon, a professor of education at Loyola University Chicago, told Vox, this strategy is fraught with racial anxiety among a small segment of Asian Americans speaking out on the behalf of a much larger group with much more complex feelings on the matter than the plaintiffs would let the public believe.
Affirmative action isn’t simply a black and white issue — even if Asian-American students are made to fit into the conversation as if it is.
Below is my conversation with Poon, edited for length and clarity.
Victoria Massie
I wanted to see if you could talk a bit about what you've seen with the affirmative action movement among Asian Americans.
OiYan Poon
The [Office for Civil Rights] complaints are actually primarily led by Chinese-American immigrants. In my research, over the past six months it's been very difficult to find non-Chinese immigrants who are involved in that effort. And when I say Chinese immigrants, there's a very specific type of Chinese immigrant that is involved in these legal efforts. They tend to be wealthy, and men, specifically, are the ones who are really leading the OCR complaint by what's called the Asian American Coalition for Education [AACE].
The people involved in that organization are all immigrants from mainland China who came here primarily for graduate education. They're very highly educated and relatively well-to-do, and of a very privileged status, even before coming to the United States. So that gives you a little bit of a picture of who these people are who are involved.
So I find it interesting, and I wonder how much of the SFFA versus Harvard case is a white man–led effort from a very conservative think tank, American Enterprise Institute (AEI), of fighting historical voting rights that were won for people of color and other areas of civil rights laws. I find it very intriguing to see this difference. And so my question in my research at this point is how are Asian Americans actually actively fighting affirmative action? I honestly don't know, and I doubt the level of involvement Asian Americans have in the SFFA versus Harvard case.
Victoria Massie
What does it mean to have Ed Blum, who is a white man, behind a case to dismantle affirmative action on behalf of an unnamed Asian student?
OiYan Poon
He's actually following a very tried-and-true pattern of "racial mascoting." By using and essentially fronting an Asian student as the victim, he, as a white man behind the scenes, and AEI, as a predominantly white and conservative organization, can wage these campaigns, especially against affirmative action, and say, "It's not a white person who's fighting this anymore, so it must mean it’s not a racist campaign."
The racial mascot as an Asian American provides a kind of racial cover to deflect accusations of their efforts as being anti–civil rights. In fact, they can turn it around and say this campaign is for civil rights because the victims [they’re] fighting for are not white. They are a minority.
It's a complicated racial divide that critical race legal scholars have actually documented since the 1960s, in various cases. It very much follows the idea of Asian Americans being labeled a model minority, which is a stereotype of how to achieve as an Asian American.
What's often forgotten is that Asians are claimed as a "model" to shame and dismiss other people of color's claims of racial barriers. It's complicated, but it's deeply ingrained in the kind of racial pop culture of our country at this point.
Victoria Massie
I'm glad you brought up the issue of the Asian model minority myth. Typical affirmative action discussions hinge on the issue of meritocracy — that what makes affirmative action fundamentally flawed is that people who are getting a "leg up" are seen as inherently undeserving compared to those people who have had advantages. Race tends to be one of the major dividing lines, and test scores are viewed as unbiased benchmarks. And yet test scores don't take race out the equation, especially when white people are more likely to advocate for holistic review when Asian students are considered to be their competition.
OiYan Poon
Even with the test scores, there have been studies trying to understand why Asian immigrant populations are scoring on average higher than some white students are. And that research has shown that in these immigrant communities, they have a high level of anxiety around making it in American society that have created these kinds of cottage industries around the country in various ethnic communities called “cram schools.”
If you just drive down the peninsula, even just El Camino, [California,] you'll see tons of these Asian cram schools. And it's reflective of the kinds of anxiety of needing to make it because other pathways for mobility that are open for white middle-class students may be closed off.
There have been some psychological studies that because some Asian immigrant communities feel [they have] very limited pathways for mobility, they see education as a proven track for mobility, and they're investing a whole lot in that area. What's transparent about the elite college admissions pathway is they think the test score is everything, when it really isn't.
Some of the folks I've been interviewing, who are campaigning actively against affirmative action, they're all Chinese, and they're almost all immigrants, and they're almost all men. They often cite Thomas Epenshade, a retired sociologist from Princeton. And his work is from the 1990s, and his conclusion is that Asian Americans need to score something like 140 to 200 points more than anyone else to get into the same schools. So it's this test score gap that a lot of the opponents of affirmative action are claiming as smoking gun evidence of anti-Asian bias.
What they're not accounting for is the fact that his study was done prior to the current system of admissions, which is holistic review. So once Grutter v. Bollinger happened in 2003, elite colleges really beefed up their holistic review processes. Gratz v. Bollinger, the other Michigan case in 2003, barred the use of point systems.
So especially after Fisher this summer, the consideration of race in selective admissions is done in such a way that it is so minimal. You can't tell how it's actually influencing decisions because, as Justice Kennedy said this summer, it has to be a factor within a factor. And that's echoing the Gratz decision that said that points systems were not allowable. So there's no bonus or clear preference. Grutter also says you can't use race as a determinative factor; it can only be one of many factors. And then Fisher this summer clarified that it has to be a factor within a factor.
I honestly believe for my research that there is an intense anxiety amongst some of these Chinese-American immigrants. And they see this Princeton's sociologist's work as smoking gun evidence of anti-Asian bias. But even he's admitted as a retired sociologist, publicly, multiple times, that [his] research has little relevance to today's admissions landscape and context. So it doesn't tell you what's going on internally, because he considered three factors, and holistic review considers a multitude of factors for admissions.
Victoria Massie
You brought up racial anxiety. How does that fit into the kind of profile of those who are fighting against affirmative action?
OiYan Poon
First, these people make up a super-small segment of the Chinese population and so an even smaller segment of the Asian-American population. I think they appear bigger than they are because of the general media coverage of them. And because of their economic privilege and status, they are able to launch louder campaigns and more effective campaigns. They're a minority within a minority.
But across these people that I've interviewed, there's a few things. There's a cultural nationalism that they're identifying with, especially for folks who were born and raised in China, in an era post-Mao in the 1980s, which was a different China, I think, than the postwar China that my parents came from. In fact, one of the interviewees actually told me that I wasn't really Chinese. But they definitely note the segmentation even within the Chinese community.
So these folks come from an upper echelon, even in China. And the system for success that they acknowledge in China, that their families and they themselves really benefited from, was a very clear class-driven educational system. Basically you took a test, and there was a cutoff score. And that cutoff score meant you were either going to the top universities or not. And so these folks scored very high in China, went to the best colleges in China, which is why they were able to come to the United States for graduate school. So they grew up in a post-Mao China that really instilled in their generation a cultural nationalism along with centuries-long colonial shame by Europeans.
And now, the 21st century, this is China's century. This is the time for China to rise up. And so this is the atmosphere that a lot of these folks were raised in, I believe. So coming to the United States, you mix that cultural nationalism in with the fact that many of these folks that I've interviewed have experienced racism themselves and discrimination themselves, whether they be microaggressions or actually in the workplace in more serious ways. There's certainly recognition of their lower status compared to the white middle class. So they may have the economic privileges here in the United States. But politically and socially and culturally, they recognize they're still second-class citizens.
So my theory is the anxiety is partly about wanting to be accepted fully in the United States within the current status quo racial hierarchy because they have almost made it. So maybe being able to go to Ivy Leagues and be validated with that sort of education would be kind of like a social or cultural validation. They haven't been able to reach the upper echelon, but the Ivy League certainly represents that upper echelon. And it's almost like a stamp of approval, like, “Yeah, we made it, we're accepted,” or, “I have this accomplishment that I'm entitled to.”
Victoria Massie
One of the things that is so interesting is that this one group is speaking for a much wider group of Asian immigrants in the US. Asian immigrants coming to the US during the 1970s and ’80s were more likely fleeing conflict and war. They didn’t arrive with the resources of this particular group that is now fighting affirmative action. How are these immigration narratives getting conflated and overlooked, especially considering how some policies like affirmative action can ameliorate other Asian communities in the US too?
OiYan Poon
I think one thing that is underlying all of this is the changes to immigration policy. So the immigrant flows prior to the ’90s were around family reunification and refugee resettlement. A lot of it was family reunification, and so that brought in a lot of different, diverse classes of immigrants from all over Asia. After the ’80s, immigration policy changed so drastically, and more recently even more drastically, to really cut off the flows of family reunification. So that basically cut off the working class of immigrants from Asia.
To this day, Asian Americans remain here because of policies that allow for family reunification, but this is changing because of the shift toward immigration policies that privilege the highly educated, the highly skilled professional. It's interesting to see these more recent immigrants are increasingly — the largest groups are Chinese and Indian, in part because of those professional and highly educated preferences in immigration policy. And so political scientists like Karthick Ramakrishnan believe that because of these immigration changes, it may lead to these more recent immigrant inflows being predominantly more and more economically privileged and possibly more and more politically conservative.
So there may be some shifting dynamics.
Victoria Massie
And it seems like with the SFFA case and Blum, he's exploiting this shift.
OiYan Poon
Exactly. Like I've said, these anti–affirmative action Chinese folks are a small minor segment, but they're very loud. So Ed Blum can certainly take advantage of it.
Victoria Massie
What have you found to be the most pressing issues facing Asian students in higher education today? And how is the current affirmative action discussion potentially obscuring those issues?
OiYan Poon
I think that because this particular debate gets so much attention, folks tend to assume that a large [number] of Asian-American college students are at the Ivies, are at the Stanfords, when in actuality about half of them attend community colleges. They face similar challenges that many other students and students of color face, but that often doesn't get much attention. That's probably my biggest concern around the fact that [affirmative action] gets centered as the key concern.
The other thing is that [as] part of this conference that my colleagues and I were thinking about doing, we were raising the point that affirmative action is not just about higher education. That it may operate in one way in higher education, which has been very limited and is controversial perhaps among some Asian Americans. But affirmative action is also in employment, and public contracting.
I raised the point in 2009. I worked on a research study with a professor at UCLA where we compared San Francisco, Chicago, and Atlanta, and we compared how well Asian-American businesses were doing in these different regulatory climates, with the different ways affirmative action was implemented. And you would assume that in San Francisco, Asian-American businesses would be doing the best of the three cities, and in actuality they were doing the worst. Asian-American businesses in Atlanta were actually doing better than in San Francisco. And they were doing best in Chicago, where they had the most aggressive affirmative action policy.
Of course, in San Francisco, because of Proposition 209, in business contracting, affirmative action was banned — at least at the public county, state, city level. And Asian-American businesses were getting near zero public contracting dollars. Which is shocking in San Francisco, the Bay Area, knowing the demographics. So I was engaging in dialogue with these folks about how perhaps some of them want to start up small firms that, without affirmative action, we know for a fact these businesses suffer in and are hindered from accessing public contracting dollars, which contributes to wealth and asset development and the development of businesses.
I think that's the other thing. If these folks' voices are dominating the dialogue, I wonder if they're forgetting that affirmative action is not just about college access but all other parts of social and public life. And some of them are against it in colleges but for it in business and employment, which is troubling to me. I don't know how they reconcile it. And the other argument they provided to me was they were not against affirmative action. They were for affirmative action; they were just against race conscious affirmative action. I'm still trying to wrap my head around all of this.
Victoria Massie
It's so interesting, in part, because so much of affirmative action policies are not race-conscious specifically. Especially in education, with the holistic method, race is one of a multitude of factors. Nonetheless, racial quotas are often used to anchor the conversation. How do quotas misconstrue the terms of the debate, particularly when it comes to pushing for equity?
OiYan Poon
I think that one thing that has come up in my conversations with anti–affirmative action folks is their concern about even that term “underrepresented minority.” Several of them have told me, "Am I not a minority?" They've told me, "We're not white. We do face racism. I have experienced challenges." But then the term underrepresented minority, I think one of my interviewees suggested that it was kind of a slap in their face. That it was a way to delineate between and clearly suggest that the minorities that institutional bodies actually care about are not them, as Asian, but specifically African Americans and Latinos. Nobody mentions Native Americans or indigenous folks unfortunately.
I think if it is really equity-minded, which is the goal, then specifically [with] numbers, we can get too caught up at the entry point for higher education, which is extremely important. So what happens when students of color get to campus and they enter curriculums that dismiss their cultural backgrounds, their cultural values, have no ethnic studies, no women and gender studies? Or generally have more hostile campus climates, which I think was very much so highlighted last year in the student activist campaigns.
At my own campus, students were protesting campus climate, which had a lot to do with institutional cultures. And there's plenty of research students, including my own, who show even when you have white students who are not the majority, that there's really racial pluralities instead of majorities — even on those campuses, there can be a hostile climate. I guess the question for me then becomes what is it that we are looking for? And I don't think the public has fully come to a consensus about what equity-minded policy is.
I think for those in academia, at least in my field in higher education, we have a clear sense of what we mean by equity-minded policies and goals in higher education. But certainly that can be isolated from the public in the ivory tower. The public goals may be unclear, and I think that can contribute toward some of the venom when you don't have very clear understandings of terminology.
Victoria Massie
In terms of what we're seeing with the Harvard case, what kind of precedent do you think this case could set for affirmative action in a post-Fisher era?
OiYan Poon
The interesting thing about the SFFA case, specifically against Harvard, is that it was seeking to end legacy preferences, which I think that a lot of people, including pro–affirmative action people, could get behind interestingly. The more concerning aspect of the case is its call [for] unholistic review, which is troubling because holistic review is really about looking at each applicant as a whole person, more than just their grades, test scores, and other quantitative measures and various other characteristics. It goes back to this point system that I don't think really benefits many students at all.
At some campuses, they consider over 900 factors. Things like can you pay full tuition, or what high school did you go to, and have that high school's other alumni entering been academically successful? There's hundreds of criteria that different institutions use to determine whether or not to admit a student.
And perhaps this is part of the anxiety that I mentioned around some of these folks. That we really don't know — there's no transparency in how admissions is done at these private universities. And I say private universities because most of these lawsuits have been at public universities, including the companion case at [University of North Carolina]. I've talked to a few lawyers who don't think the Harvard case will go very far, but the Harvard case is used more as a narrative to push the agenda.
But back to your original question around the potential legacies of a Harvard case going forward. It really is like throwing out the baby with the bathwater of holistic review affirmative action. But then there is that intriguing aspect of fighting legacy preferences.
