NEWS

Harvard Lawsuit Raises Potential Threat to Affirmative Action


By Seoyeon Kim '21, Managing Arts & Living Editor | Nov. 6, 2018 | 148-7

A lawsuit alleging that Harvard’s admissions process discriminates against Asian-American applicants began its trial on Oct. 15 in the federal district court of Massachusetts in Boston. The case, which became national news after the group Students for Fair Admissions (SFFA) filed a complaint against Harvard in 2014, has the potential to change how colleges and universities use affirmative action practices in their admissions process.


In its lawsuit, SFFA argues that Harvard illegally engages in racial balancing in order to limit the number of Asian-American students admitted each year and that by utilizing these “racially and ethnically discriminatory policies,” Harvard’s admission policies are in violation of Title VI of the Civil Rights Act of 1964. SFFA, which is made up of over 20,000 students, parents and others interested parties, points to data which shows, according to SFFA, that Asian-American applicants are consistently ranked lower on “personality,” hurting their chance of admission despite academic and extracurricular achievements.


SFFA is led by Edward Blum, a white lawyer who has been a long-time opponent of affirmative action. Blum gained prominence after his work on Fisher v. University of Texas in 2016, a case in which he argued against the “reverse discrimination” policies of affirmative action that allegedly denied plaintiff Abigail Fisher, who is white, admission into the University of Texas at Austin. The Supreme Court decided against Blum and Fisher, alleging that considering race in college admissions is constitutional as long as its intent is to increase diversity on campus.


His leadership has raised questions from those concerned about the future of affirmative action, who question whether the Harvard lawsuit is aimed at uncovering discrimination against Asian Americans or simply at dismantling race-conscious policies. The legal implications of this trial have the potential to shape college admissions for years to come.


Professor of American Studies Franklin Odo has followed the case closely and said that regardless of the trial’s outcome, it is likely to be appealed. The case will “presumably make it up to the Supreme Court,” he said.


For ShoYoung Shin ’19 and other students of color, affirmative action is not simply a remedy for past injustices — the notion that the era of racial discrimination is over helps conceal systemic inequalities which are permanent and pervasive.


“My education at Amherst and the opportunities I have been afforded are because of affirmative action and other efforts for equity,” Shin said in an email interview. “I see this as a low-income, Korean-American immigrant woman.”


Shin emphasized that “affirmative action is necessary today to create a more just society in the future.”


Odo agreed, noting that “affirmative action is a minor but important intervention in trying to combat not just historical but contemporary racism in this country.” According to Odo, considering the new conservative majority on the Supreme Court with newly-confirmed Justice Brett Kavanaugh, the prospects of affirmative action remaining in place are “dismal.”


The administration of President Donald Trump has also made it clear that it supports SFFA’s mission. On Aug. 30, the U.S. Department of Justice filed a “statement of interest” in the case, accusing Harvard of committing “unlawful racial discrimination.” Backed by disgruntled students and parents, conservatives and the government, SFFA’s case looks to be a strong one.


SFFA is not a representative group for all Asian Americans. According to the group Asian Americans & Pacific Islanders (AAPI) Data, although Chinese-American support for affirmative action has declined in recent years, nearly two-thirds of Asian Americans supported the policy in 2016. In the face of the Harvard lawsuit, many Asian American activists have spoken out, warning members of the SFFA that they are being used as a racial wedge, a term which describes how the portrayal of Asian Americans as non-minorities is used to deepen the divide between whites and other people of color.


Shreeansh Agrawal ’19 researched a recent Massachusetts bill at this past summer. The bill, which was voted down in 2018, intended to mandate the breakdown of Asian-American groups by ethnicity on state-collected forms and was driven by the fact that large discrepancies exist between ethnic groups in Asian-American communities.


The Harvard case, he said, is rooted in this presumption that all Asian Americans are the same and that they share the same experiences. “There’s a danger,” he added. “Because there are so many of these sensitivities in the Asian-American community that are exploitable by an institution like Harvard for example, they open themselves up to that kind of politics and rhetoric.”


The personality ratings are an example of that exploitation, he said. “When you rate those personalities, they’re not a measure of the intrinsic capacity of that human being. It’s very often a result of how that human being has had to grow up in their circumstances.”


In Agrawal’s eyes, however, the lawsuit “opens up a can of worms that we’ve kept closed for too long.”


“Though there are some dark, insidious elements to it and though I don’t think the motivations behind it are good, I do think it’s very helpful in bringing out these discrepancies between Asian Americans,” he said.


Shin said that the issues of Asian-American discrimination and affirmative action should be separate. “I am concerned, disappointed and hurt when people, including admissions officers, do not see Asian people as individuals with complexities and worth and instead rely on stereotypes,” she said. “But terminating affirmative action would not change that; in fact, affirmative action is all the more necessary to challenge problematic mindsets and dominant American culture.”


Professor Odo also described the situation as a dilemma. “I can sympathize with the Chinese parents and the kids who failed to get into the schools they wanted to attend. But I think it’s important to understand that there are larger issues at stake,” he said. “There are millions of Asian Americans who are working-class and poor, who don’t have access to cram schools and SAT prep, who are really smart and worthy of some support from affirmative action.”


Amherst’s Chief Policy Officer and General Counsel Lisa Rutherford declined to comment on the case but noted that “at Amherst we continue to abide by the law and deeply believe in the mission of the college to educate [individuals] of exceptional potential from all backgrounds.”


The Student reached out to President Biddy Martin for comment but did not recieve a response by press time.


The trial is expected to conclude in three weeks.