Why One Can Support Affirmative Action but Oppose Favoring Whites Over Asians When Administering It

My fellow columnist Mike Dorf in his column earlier this week helpfully examined a recent New York Times story indicating that the Trump Justice Department (DOJ) plans to direct resources into investigating and possibly suing colleges and universities that make use of race-based affirmative action plans. As Mike correctly observed, such a policy shift should cause some anxiety among university administrators—both public and private—because the permissibility of all race-based affirmative action could be called into question if President Trump has another Supreme Court pick. Moreover, even under current law some university programs could be vulnerable, and the DOJ has a much greater capacity to unearth those vulnerabilities than do private plaintiffs suing schools one by one.

But in addition to these and other legal implications, there are obviously political aspects of the Administration’s intensified interest in affirmative action. Follow-up news reports suggest that the DOJ is particularly interested in examining and perhaps participating in prominent recent lawsuits alleging that applicants of Asian ancestry have been victimized by affirmative action programs at Harvard and the University of North Carolina. This has led some commentators to infer that the Administration seeks to use the affirmative action issue to drive a wedge between Asian Americans and other racial minority groups.

Asian Americans’ Divergent Views of Affirmative Action

To be sure, the Asian American community is not of a single mind when it comes to race-based affirmative action, and over the past few years some Asian American organizations have registered their reservations about affirmative action with the civil rights offices of the federal Departments of Education and Justice and asked for investigations.

One common response made by proponents of race-based affirmative action, including some Asian Americans, has been to point out that, historically, some Asian ethnic groups have been included as beneficiaries in affirmative action programs, and that—more generally—to the extent that affirmative action has made America a more racially sensitive, racially tolerant and racially just society, these improvements have helped Asian American communities a great deal.

With all due respect to this response (the substance of which I am happy to embrace as far as it goes), such an argument is unlikely to win over Asian Americans who feel they are getting the short end of the affirmative action stick. Instead, any attempt to convince Asian Americans that affirmative action is a good policy must start—in a way most commentators who support affirmative action simply don’t—with honestly and directly grappling with the facts alleged in recent lawsuits such as the one against Harvard and North Carolina. In the Harvard lawsuit, for example, the contention is that “Asian Americans [at Harvard] needed SAT scores that were 140 points higher than white students,” all other things being equal, to be admitted. The Complaint filed against Harvard is replete with stories of particular Asian-ethnicity applicants with high grades and test scores and impressive extracurricular accomplishments, presumably to give the Complaint a human feel. But because it is possible that many or all of these highly qualified folks would not have been admitted to Harvard whether or not the University has a policy or practice of discriminating against Asians (due to the fact that no set of credentials guarantees admission and that many amazing people of all races get turned down), the individual stories are not the most important part of the lawsuit; the aggregate data is.

The Significance of Aggregate Data

It is too early to say whether the factual allegations in the lawsuit will be proven; I make no predictions and express no views as to the appropriate outcomes of these disputes.

But, notwithstanding the fact that particular individuals may not be able to prove that discrimination affected the outcome of their particular cases, if aggregate data shows that Asians are subject to a higher admissions standard, then we know that the process is being used to the detriment of at least some members of the discriminated-against group. Use of such aggregate statistics, and running regression analyses to control for all non-racist factors, is precisely how discrimination cases of patterns and practices are proven. And defenders of the status quo cannot ignore such alleged aggregate disparities between different racial groups on the ground that no one, regardless of her accomplishments, is “guaranteed” an admissions slot; to do that is to disregard the essence and importance of anti-discrimination law.

Again, in spite of the fact that no one’s record “guarantees” admission, if, holding all other admissions criteria (e.g., extracurricular breadth and depth, community service, strength of letters of recommendation, interview performance and the like) constant, Asians need to have significantly higher SAT scores or high school grades than whites to be admitted to a university, there is a big problem, both legally and morally, with what the university is doing. And to convince Asian Americans to support affirmative action, proponents of diversity and remedial programs must take that problem head on and deal with it, instead of skirting the issue by talking in general terms about how affirmative action has helped some Asians in the past and promotes racial progress more broadly.

“Asian Penalty” Versus Race-Based Affirmative Action

Happily, there is a better argument to make, and that is to point out that if in fact Asian Americans need stronger records than whites to get in, that has nothing to do with race-based affirmative action per se; instead, it is simply an instance of discrimination against Asian Americans—what one commentator has labeled the “Asian penalty.” In other words, lawsuits and protests on behalf of Asian Americans should be looked at not as fundamental attacks on affirmative action programs that are designed to increase representation of underrepresented groups such as African Americans and Latinos. To be sure, some of the detractors of Harvard’s admissions policies do prefer to do away with all race-based admissions practices, including practices that are perfectly legal and appropriate means of creating a critical mass of students from certain historically underrepresented groups. (It also bears noting, by the way, that some of these same challengers also want to do away with other practices, like admitting children of alums and applicants of families that have donated to the university, that tend to account for some of the underrepresentation of African Americans, Latinas, and others.)

But the important point is that the recent complaints by Asian groups need not be understood as attacks on the idea of affirmative action itself, but as attacks on specific admissions policies (whether part of diversity-based affirmative action programs or not) that impose undue burdens on Asian applicants vis-à-vis white applicants. Whether or not affirmative action to increase representation of African Americans and Latinos (along with Native Americans and perhaps a few other groups) is valid and worthwhile (as I firmly believe it is), there is no legitimate reason that Asian applicants, as a group, should lose out to white applicants with objectively weaker admissions files. Whites, after all, are not a group that has been historically (or that is currently) underrepresented, and there is generally no absence of a critical mass of white students at any university (even though the share of whites at some campuses has fallen) such that helping whites is needed to ensure diversity. In short, whites need no special policies designed to help them gain access to overcome past exclusion or to ensure they will matriculate in significant numbers. So if the data that some Asian groups allege is backed up (and I repeat that I don’t know whether it is, but that should be the key question), then it would seem that the universities in question have been guilty of Asian stereotyping or, worse still, animus against Asians, neither of which should play any part in a legitimate affirmative action regime.

Separating the way some universities might be using affirmative action as a vehicle to inflict an “Asian penalty” from the merits of affirmative action itself is important as we go forward. A person (including an Asian American) can rationally support valid affirmative action, but righteously complain if it is being implemented in a way that imposes unjustified costs on Asian groups, in order to spare whites from bearing their fair share.