Nguyen: Asian Americans Seek To Abolish Affirmative Action At Harvard

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Wednesday, May 20, 2015

AiVi Nguyen, GoLocalWorcester MINDSETTER™

Last Friday, a Coalition of 64 Asian American Associations filed an administrative complaint with the federal Departments of Education and Justice against Harvard University, requesting an investigation of Harvard’s admission practices, specifically accusing Harvard and other Ivy League institutions of unlawfully discriminating against Asian American applicants.

The administrative complaint buttresses a lawsuit filed last November by the Students For Fair Admissions, Inc. against Harvard in the Federal District Court for the District of Massachusetts, containing the same allegations of racial discrimination against Asian Americans.

Affirmative action has been a hotly contested topic since its inception in the 1960s, and perhaps most notably so in higher education. The stated purpose of affirmative action policies in colleges and universities is to allow organizations to improve opportunities for historically excluded groups of American society. Translation: Affirmative action policies allow institutions of higher education to use race as a factor in the admissions process to give a minority candidate a better chance of acceptance.

However, what most people do not understand is how limited the use of race is supposed to be in evaluating a college applicant. It’s not as simple as a black applicant getting a point in her favor simply because she is black. It is much more restrictive than that. This is because it is illegal to classify people on the basis of their race. A person’s race may only be considered when there is a “compelling” legal interest that needs to be served. In the context of higher education, the courts have recognized that “diversity” is a “compelling” interest, meaning it is important to have student populations be diverse and representative of the general population.

As mandated by the Supreme Court of the United States, a college can only take race into account as “one, nonpredominant factor in a system designed to consider each applicant as a whole” and only with the goal of having a diverse student body. The idea is that you still have to look at the applicant as an entire person and part of seeing the entire person is seeing his or her race. This is an incredibly difficult and amorphous standard and colleges have struggled with how to implement affirmative action policies fairly.

Harvard takes a “holistic” approach to evaluating applicants, looking at all aspects of the individual, including race.

The crux of the Coalition’s claims is that Harvard intentionally discriminates against Asian Americans by hiding behind its “holistic” policy and that an Asian American applicant is held to much higher standards than any other race. The argument is that if applicants were evaluated on a totally race-neutral basis, there would be a much higher percentage of Asian American students at Harvard, and that it is race alone that is preventing those Asian Americans access.

The argument is confusing because it is difficult to understand why Harvard would want to discriminate against Asian American applicants, especially if those applicants are highly qualified. The Coalition accuses Harvard of relying on certain negative stereotypes of Asian Americans, like: Asian Americans lack creativity and critical thinking; Asian Americans lack leadership skills; and, Asian American students spend too much time on study and not enough time on extra-curricular activities. These negative stereotypes would make an applicant undesirable as a Harvard student.

Ultimately, the Coalition wants to ban Harvard from considering race at all, effectively ending affirmative action there.

Harvard argues that its admissions policies are fully compliant with the law.

The DOE and DOJ have previously investigated claims of Harvard discriminating against Asian Americans between 1988 and 1990, with no findings against Harvard.

Those who are against affirmative action see it as a form of reverse racism, that certain races (minorities) are favored over others (white). Others believe that it stigmatizes minorities and suggests that minorities cannot succeed to the same degree as white people. And others, as shown in these complaints against Harvard, believe that affirmative action allows colleges to perpetuate discriminatory practices by limiting admissions of minorities, who otherwise qualify, to a pre-determined quota.

Affirmative action has been attacked for decades. What makes these cases against Harvard interesting are that the attack is made by a minority group. The outcome will affect all minority groups, not just Asian Americans. This leads to the question of whether barring a college from considering race in the admission process will have a negative effect on other minority groups such as black and Hispanic applicants.

Aivi Nguyen is a trial lawyer with the Law Firm of Bowditch & Dewey, LLP in Worcester.

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