October 31 will be memorable for more than Hallowe’en trick or treaters, and may mark the death knell for affirmative action policies in education. At that time, the U.S. Supreme Court will consider the arguments of Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. Will the final decision echo Chief Justice Roberts’ former declaration that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”?
All policies have costs and benefits, and all policies trigger trade-offs and unintended consequences. Affirmative action policies are no different, but there is all too often a resounding silence about the likely costs and consequences. Proponents of “inclusive excellence” refuse to even acknowledge the possibility of trade-offs. Others go so far as to denounce “The Tyranny of Merit” (as a Harvard Professor and Rhodes Scholar at Oxford puts it, seemingly without any self-awareness.)
However, diversity cannot enable excellence unless stakeholders impartially and transparently engage with the underlying complexities. After all, even the primary task of determining racial/ethnic categories is difficult for many: “count after count people have made clear that their identities often cannot fit neatly into check boxes on census forms.”
From any perspective, “Asian-American” comprises the most diverse racial and ethnic grouping, as the Asian continent includes about 60 percent of the world’s population. The Census Bureau ticks this box for anyone “having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.” India alone encompasses numerous castes, religions, and over 100 languages with thousands of dialects. Diaspora populations expand the roster, leading to absurd labelling such as West-Indian-East-Asian-Americans, who may not identify with any of the other subgroups. Fully thirty eight percent of Asian-Americans do not speak or understand English well, and their linguistic diversity presents hard-to-overcome disadvantages. (How many social workers or doctors are fluent in Dzongkha?)
Diversity policies and affirmative action intend to compensate for disadvantages past and present. Many Asians qualify for preference on both counts. During the pandemic, thousands of hate crimes against Asian-Americans were reported, and many potential victims were afraid to even enter public spaces. Officials and administrators in 2020 suddenly “woke” up to systemic discrimination against Asians, convening candlelight vigils and registering protests by sympathetic “allies.” At the same time, anti-Asian bias is hardly new news, but constitutes a chronic and longstanding epidemic in the United States. Harvard outlets recently highlighted the history of bias, violence and discrimination against Asians in the United States.
Asian-Americans, however, are excluded from preferential treatment accorded by diversity policies. This exclusion is in part based on misapprehensions about economic status. Median income, the common statistic to gauge disadvantage, shows the earnings of “Asian” households exceed $80,000, well ahead of any other racial groups. Less well-publicized is the fact that income inequality among Asians is the highest in the United States and increasing, more so than for Blacks and Hispanics.
The compendium “Asian” label papers over the harsh reality that, by every measure of disadvantage, certain Asian-Americans consistently fall into the bottom ranks of the entire U.S. population. For example, almost 40 percent of Burmese live below the poverty line, and a disproportionately high incidence of poverty is also present among Vietnamese and Thai households, among others. The Urban Institute reported that Asian-Americans in New York City experienced the highest poverty rate of any racial or ethnic group. However, despite this, many Asian-Americans receive minimal assistance from social services. The poverty rate for Malaysian-origin Americans exceeds 25.1 percent, but just 3.2 percent received help from Supplemental Nutrition Assistance Programs that reduce food insecurity. Some Asian cultures are less inclined to articulate personal problems or to seek outside assistance, which has implications that range from crime reporting to college financial aid.
Education is a key factor in remedying such inequities, but disadvantaged Asian-Americans are unprotected under the law. Instead, at every level of education and schooling, administrators are actively attempting to exclude Asian students in the name of de jure racial and “cultural” diversity.
Most attention centers on admissions at elite universities such as Yale. The ongoing lawsuit brought by Students for Fair Admissions charges Harvard University with bias against Asian-American students in admissions decisions. Testimony by the Harvard Dean of Admissions revealed that recruitment letters are sent out to African-American and Hispanic high-school prospects with combined math and verbal SAT scores of around 1100. By contrast, Asian-American women and men need to score 1350 and 1380 points respectively to qualify.
The district court rejected the plaintiffs’ charges of illegal bias. However, the judge acknowledged that “Race conscious admissions will always penalize to some extent the groups that are not being advantaged by the process, but this is justified by the compelling interest in diversity.” In other words, racial preferences necessarily place Asians and white males at a disadvantage in education and employment, but this brand of racial inequity is justifiably not a concern of public policy.
The question of exclusion under the banner of diversity and inclusion extends beyond elite colleges. Perhaps an even greater cause for concern is the movement to reduce Asian-American representation in top high schools across the country. For example, New York includes some of the most demanding and highly-ranked specialized high schools in the country, and many of these high-achieving students come from economically disadvantaged households. (Note that 61 percent of Asian students at these schools are poor, relative to 53 percent of Hispanic students.) These patterns signal a truly American success story about the ability of youths to overcome an array of disadvantages and realize their true merit and potential.
The “problem” for racial diversity advocates, however, is that over 60 percent of those enrolled in demanding NY high schools are “Asian-American.” (Stuyvesant High School included 74 percent Asian-American students, Bronx Science and Brooklyn Tech over 60 percent). School administrators and state officials deemed this an “injustice,” concluding that meritocratic admissions would have to be eliminated to promote the higher goal of racial proportionality. They proceeded to introduce new rules that were manifestly designed to decrease the number of Asian students in top high schools.
Similar policies, engineered to exclude Asian-Americans in the name of diversity and social justice, are being adopted in top high schools around the United States. These so-called “holistic” measures replaced merit-based reviews at the Thomas Jefferson High School for Science and Technology in Virginia (TJ). Their effects were immediately apparent: the percentage of gifted Asian-American students admitted fell from 73% to 54%.
Parents and allied groups in Virginia and other states have filed lawsuits to counter such efforts to exclude high-performing Asian-American students from opportunities to excel in learning and education. As Judge Claude Hilton noted in the TJ case, regardless of the rhetorical smokescreens, “Everybody knows the policy is not race neutral, and that it’s designed to affect the racial composition of the school.” The final ruling that was handed down in February 2022 concluded “it is clear that Asian-American students are disproportionately harmed by the Board’s decision to overhaul TJ admissions. Currently and in the future, Asian-American applicants are disproportionately deprived of a level playing field…”
The majority of Americans agree that academic merit, rather than ascriptive characteristics, should determine access to educational opportunities. Eight states now prohibit affirmative action on the basis of race: California, Washington, Florida, Michigan, Nebraska, Arizona, New Hampshire, Oklahoma, and (most recently) Idaho. As the Supreme Court has emphasized, attempts to impose “racial proportionality throughout American society” are clearly unconstitutional. For, at “the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.”
