Fuel to the Fire

Behind the Fisher lawsuit was a conservative activist and financial adviser named Edward Blum. 

He ran for Congress as a Republican in 1992; blaming his eventual loss on “racial gerrymandering,” he sued the state of Texas for violating the Voting Rights Act of 1965. The case went to the Supreme Court, and Blum and his fellow-plaintiff won, with the Court striking down Texas’s redistricting plan. In 2005, he founded a nonprofit, Project on Fair Representation, that aims to strike down policies meant to address racial inequality. He has brought at least a dozen lawsuits against such policies, four of which have made it to the Supreme Court.

“Blum has shown a talent for pinpointing vulnerabilities in civil-rights law and attacking them in the courts,” writes Hsu. After Blum lost the Fisher case, he didn’t give up on his mission. He needed a different disgruntled student, a different lead. He found his new star in a group of Asian Americans fed up with affirmative action. 

A growing segment of Asian Americans, specifically Chinese Americans, allege that elite universities are making it more difficult for them to gain admission, while they believe it’s easier for Black and Hispanic students to get a spot. They cite the fact that while at the California Institute of Technology, which bases admission strictly on academic merit, the Asian American enrollment grew from 25% to 43% between 1992 and 2013, it slightly decreased at Harvard over the same time period. A 2005 Princeton study found that on average, Asian applicants must score 140 points higher on the SAT to compete with their white counterparts.

Some compare these trends to the discrimination Jewish students experienced at elite universities in the 1930s. When American colleges began to implement standardized testing in the early 20th century, the doors opened for academically gifted students to attend the colleges that had typically been reserved for graduates of New England’s elite boarding schools. Because Jewish students performed well on these tests, their enrollment in top colleges skyrocketed—Harvard’s freshman class was 7% Jewish in 1908 and more than a fifth Jewish in 1922.

Harvard didn’t like this influx in enrollment from a group it deemed undesirable. The president at the time, Abbott Lawrence Lowell, proposed a quota limiting the number of Jewish students, restrictions on the number of scholarships available to Jewish students, and recruiting strategies aimed at high schools in the West, where there were fewer Jewish students. But eventually, he landed on a reworking of the admissions process that would include an evaluation of more subjective qualities of students, effectively changing the way merit was judged.

Harvard began to require that students submit a recommendation letter, personal essays, description of their extracurricular activities, and photograph—sound familiar? Today, holistic review and evaluation of students’ character is a norm in the college admissions process—and it’s exactly where colleges might have the chance to discriminate against Asian students, just as they did to Jewish students a century ago.

“Just as Harvard in the 1930s thought that Jewish students lacked the character to make them good Harvard men,” said Kenneth L. Marcus, the former assistant secretary for civil rights at the Department of Education, “so today they often view Asian students as lacking the appropriate character.”

Lowell succeeded in his mission to reign in the number of Jewish students enrolled at Harvard—by 1933, Jewish enrollment was back down to 15%

Journalist Malcolm Gladwell points out that this discrimination could very well be a matter of branding for these elite schools, whose admissions officers are in the “luxury-brand-management business.” “If Harvard had too many Asians, it wouldn’t be Harvard, just as Harvard wouldn’t be Harvard with too many Jews or pansies or parlor pinks or shy types or short people with big ears,” he writes, referencing notes that Harvard admissions officers made on candidates’ files reading “Short with big ears,” “Seems a tad frothy,” and “we just thought he was more of a guy.”

Asian Americans fear that today, top schools are doing the same thing to them that they did to Jewish students. Blum harnessed the energy and manpower behind these concerns to form Students for Fair Admissions (S.F.F.A.), the group that brought the lawsuits against Harvard and the University of North Carolina. They allege that the schools are violating Title VI of the Civil Rights Act—which prohibits any program or activity receiving federal money from practicing discrimination “on the basis of race, color, or national origin”—with practices of “racial balancing, using race as a mechanical plus factor, and not adequately considering race-neutral alternatives.” But unlike previous affirmative action lawsuits, the plaintiffs—in Students for Fair Admissions Inc. v. President and Fellows of Harvard College and Students for Fair Admissions Inc. v. University of North Carolina, which have been consolidated into one case—have lodged a unique complaint: that these schools intentionally discriminate against Asian applicants.

By giving Asian students lower marks in the very subjective “personal” category of application evaluations, S.F.F.A. claims that Harvard has essentially set a quota that limits the Asian enrollment to about 20%. The group’s complaint quotes a college counselor at a selective New York City high school who relayed a Harvard admissions officer’s feedback that certain Asian students weren’t admitted because “so many” of them “looked just like” each other on paper. Michael Wang, who filed a discrimination complaint against a handful of Ivy League schools that rejected him, relayed what an investigator from the Department of Education told him was a common line used by admissions officers: “Oh, typical Asian student. Wants to become a doctor. Nothing special here.”

In earlier affirmative action cases like Bakke, said Harvard Law School professor Randall Kennedy, “many people thought, ‘Gosh, how rich. White supremacy in the United States…and now all of a sudden white people are the victims of racial oppression?’ But now, even better to have a ‘people of color’ victim. In the court of public opinion, this made a lot of sense, and I think it’s been quite effective.”

Lower courts have all sided with the universities. But a Supreme Court more conservative than the one that presided over Bakke, Grutter, and Fisher could be poised to gut affirmative action in higher education entirely.