US divided over college admissions policy

Top court hears challenges brought against two universities

Students rally outside the US Supreme Court in Washington on Oct 31 before hearings in two cases that could decide the future of affirmative action in college admissions. (J. SCOTT APPLEWHITE / AP)

National debate in the United States on the role played by race in college admissions culminated with the Supreme Court hearing challenges against two universities.

To create a diverse student body, many colleges and universities in the US consider a student's race as a factor in their admissions process. Such race-conscious policies — known as affirmative action — have been repeatedly upheld by the nation's top court in past decades.

Educators fear a "ripple effect" if the conservative court decides that the affirmative action policy is illegal.

The baseline for permissible affirmative action programs in US higher education was established in 1978.

Citing Harvard University as the model, Justice Lewis Powell said that in evaluating applicants, race could not be the determinative factor, but the university could use race as one of the many factors, just as it uses other traits such as a special talent for music, science or athletics, and even the fact that an applicant's parents attended the university.

In 2016, the Supreme Court upheld an admissions program at the University of Texas at Austin, ruling that the university could continue to consider race as a factor.

This time, the challenges were brought against Harvard and the University of North Carolina, or UNC, with the court hearing the arguments in late October.

The new Supreme Court is the most conservative for 90 years. The six justices appointed by Republican presidents and the three appointed by Democrats appeared divided along ideological lines.

The court is likely to overturn some or all of such case precedents based on sharp and skeptical questioning from the conservative justices.

During court argument, Justice Clarence Thomas asked lawyers for the universities to define "diversity". He said, "It seems to mean everything for everyone." Justice Samuel A.Alito Jr. asked what "underrepresented minority" meant.

The justices are not expected to finalize their opinions until late June or early July. If they rule that affirmative action is unconstitutional, the number of black and Latino students would be reduced in colleges and universities nationwide, particularly at elite institutions.

Students rally outside the US Supreme Court in Washington on Oct 31 before hearings in two cases that could decide the future of affirmative action in college admissions. (J. SCOTT APPLEWHITE / AP)

Providing help

Affirmative action is a government policy designed to help minorities and disadvantaged groups find employment, gain admission to universities, and obtain housing.

Race-conscious policies aim to address discrimination that denies underrepresented students access to higher education.

Until the 1960s and 1970s, Harvard and UNC refused to admit large numbers of black students and other students of color. Both schools said affirmative action allows them to select a diverse student body to create an inclusive educational environment that benefits all students.

However, opponents of affirmative action targeted the universities, arguing that their programs violate equal protection principles and discriminate against Asian American students.

Students for Fair Admissions, or SFFA, a conservative group that brought both challenges to the Supreme Court, sued Harvard and UNC in 2014.

The group alleged that Harvard intentionally discriminated against Asian American applicants by holding them to a higher standard in undergraduate admissions and specifically limiting the number of Asian Americans it admits each year.

While Harvard is a private university, the plaintiff said the institution was violating the 1964 Civil Rights Act that prohibits schools receiving federal funds from discriminating based on race.

In the UNC case, the group said the school policy is subject to the same law as well as the 14th Amendment's guarantee of equal protection, which covers state universities. It said the school discriminated against white and Asian applicants by giving preference to black, Hispanic and Native American students.

SSFA lawyer Patrick Strawbridge accused UNC of using race "behind opaque procedures" in awarding "mammoth racial preferences" to African Americans and Hispanics.

"A white, out-of-state male who had only a 10 percent chance of admission would have a 98 percent chance if UNC treated him as an African American, and a 69 percent chance if it treated him as a Hispanic," he said.

In contrast to Strawbridge's suggestion, US District Judge Loretta C. Biggs found that "the university continues to face challenges admitting and enrolling underrepresented minorities, particularly African American males, Hispanics and Native Americans".

The campuses of Harvard University (left) and the University of North Carolina at Chapel Hill. Both institutions are involved in US Supreme Court affirmative action cases. (CHARLES KRUPA / HANNAH SCHOENBAUM / AP)

In October last year, she ruled in favor of UNC, saying it had not shown illegal bias against white and Asian American students.

The university has been struggling to build a diverse student population. In a state that is 21 percent black, just 8 percent of the undergraduate student population is African American.

Biggs wrote in her ruling, "Ensuring that our public institutions of higher learning are open and available to all segments of our citizenry (is) an institutional obligation."

SSFA filed an appeal at an appeals court in Richmond, Virginia, and at the Supreme Court. In January, the Supreme Court decided to hear the challenge even though the appeals court has not yet ruled.

The lawsuit brought against Harvard by SSFA centers on the treatment of Asian American students who have, on average, better standardized test scores and grades than any other ethnic group, including whites.

Harvard admissions consider a student's academic, extracurricular, athletic and personal ratings. The latter category attempts to assess how an applicant impacts people around him or her and the contributions the student might make.

SFFA accused Harvard of discriminating against Asian American students by using a subjective standard to gauge traits such as likability, courage and kindness.

In 2019, the district court ruled in favor of Harvard, finding that it did not discriminate against Asian Americans. In November 2020, an appellate court affirmed the district court decision, ruling that it did "not clearly err in finding that Harvard did not intentionally discriminate against Asian Americans".

Harvard denied the accusation, saying that Asian American enrollments have consistently risen. The university's lead lawyer Seth Waxman said during the Supreme Court argument that if the school abandoned consideration of race as a factor, representation of African American and Hispanic students in admissions — not white students — would decline.

The 2022 Asian American Voter Survey found that 69 percent of Asian American voters favor affirmative action programs designed to help black people, other minorities and women gain better access to higher education.

Among Chinese Americans, support for affirmative action stands at 59 percent, the lowest within the Asian American community.

A Chinese American lawyer in Silicon Valley, California, said he opposes affirmative action because it is outdated.

"A long time has passed since affirmative action was created. We don't need it anymore," said the father of two, who requested anonymity. He said he fears that his children, now in middle school, will be disadvantaged when applying for college.

Chinese for Affirmative Action, an organization based in San Francisco, has been trying to persuade the Chinese community that the discrimination it faces is not the result of affirmative action.

Instead of focusing on affirmative action, the activists called for opponents to question other areas of the admissions process, such as legacy admissions and athletic preferences.

According to the National Bureau of Economic Research, 43 percent of white students admitted to Harvard fall under the categories of recruited athletes, legacy students and children of faculty and staff members. This percentage also includes the "dean's interest list", which consists of applicants whose parents or relatives have made donations to the university.

The campuses of Harvard University (left) and the University of North Carolina at Chapel Hill. Both institutions are involved in US Supreme Court affirmative action cases. (CHARLES KRUPA / HANNAH SCHOENBAUM / AP)

Complaint filed

Some Asian American organizations insist that college admissions should follow a "merit-based principle", arguing that standardized tests are "objective and transparent measures".

The Asian American Coalition for Education, which is based in New Jersey, has long fiercely criticized elite schools for rejecting Asian American students despite their perfect scores in the Scholastic Aptitude Test.

In 2015, the group filed a complaint with the Department of Education and the Department of Justice on behalf of more than 60 Asian American organizations, stating that Harvard and other Ivy League schools use racial quotas to deny admission to high-scoring Asian American students.

The following year, the group's president Yukong Zhao and his son Hubert — at the time a student based in Orlando, Florida, — filed another complaint with the Department of Education after the son was rejected by three Ivy League schools.

Yukong Zhao has been working closely with Edward Blum, a conservative activist and a leader of SSFA, to support the latter's anti-affirmative action agenda. On the organization's website, they list politicians as their supporters, including North Carolina Lieutenant Governor Mark Robinson, Virginia Lieutenant Governor Winsome Earle-Sears, and California Congresswoman Young Kim — all Republicans.

Other Asian American groups, including the Asian American Legal Defense and Education Fund, or AALDEF, dismiss the claim that race-conscious admissions policies discriminate against Asian American students.

The AALDEF submitted an amicus brief to the Supreme Court on behalf of 121 Asian American groups and educators in support of Harvard and UNC. An amicus brief may be filed with an appellate court, including a supreme court, by a party not involved with a current case, but in support of one side or another on the legal issue at hand.

Margaret Fung, executive director of AALDEF, said in a statement: "The meritless arguments by SFFA harmfully reinforce the 'model minority myth' of Asian Americans as more successful than other communities of color. This only serves to pit our communities against each other to the express benefit of white students.

"The truth is Asian Americans continue to be underrepresented in higher education and in American society at large. Asian Americans benefit from affirmative action, and all students benefit from the diverse student body that affirmative action cultivates."

Among justices, advocates, politicians and other sectors of society, the nation is divided on the issue.

In December last year, the administration of President Joe Biden submitted a brief for the Harvard case, urging the Supreme Court not to hear the case but to abide by its past decisions. Solicitor General Elizabeth B. Prelogar told the justices during arguments in October that educating a diverse group of national leaders benefited the military, medical and scientific communities, and corporate America.

In contrast, the administration of former president Donald Trump attempted to discourage affirmative action policies — filing an amicus brief in support of SFFA in February 2020.

Under the Trump administration, the Justice Department sued Yale University in October 2020, alleging it rejected "scores of Asian American and white applicants each year based on their race". The Biden administration dropped the lawsuit in February last year.

A recent poll by The Washington Post produced a contradictory result — 63 percent of US adults said race should not be considered in college admissions, while 64 percent also said programs to boost racial diversity on campuses are a good thing.

At least nine states have passed laws prohibiting affirmative action in university admissions — Arizona, California, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma and Washington.

Strawbridge, the SFFA lawyer, said that by allowing affirmative action in college admissions, "some applicants are incentivized to conceal their race", and "others who were admitted on merit have their accomplishments diminished by assumptions that their race played a role in their admission".

Educators see profound consequences if affirmative action is banned in college admissions.

Lee C. Bollinger, president of Columbia University, told a recent media conference he would expect his university to feel a significant impact if it was not allowed to consider race.

The effect of a ban would be felt broadly across the country, and that would be tragic, he said. Bollinger added that promoting diversity should not be the only argument for affirmative action in higher education — the rationale of racial justice should also be recognized and embraced.

Natasha Warikoo, a professor of social sciences at Tufts University, wrote in a recent article published by the Brookings Institution, "'Fairness is entirely the wrong question to be asking."

College admissions should be about fulfilling institutions' missions, which include contributing to the public good and promoting social mobility, she said.

"Affirmative action is critical to fulfilling that mission," Warikoo added.