The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A coalition of Asian-American groups has filed a complaint with the US Department of Education and the Department of Justice, arguing that Asians are discriminated against in admissions at elite universities:
A coalition of Asian-American organizations says the federal government should step in to change Harvard's approach to admissions, accusing the university of racial discrimination.
In a complaint filed with the U.S. Department of Education and the Justice Department on Friday, the coalition of more than 60 groups claims that the university unfairly holds Asian-American applicants to a higher standard. Asian-Americans have the lowest acceptance rates at Harvard University and other elite universities, the complaint alleges, despite having some of the highest test scores and overall academic achievement.
"People from all over the world came to America for equal opportunities. We are trying to bring those principles back to America," said Yukong Zhao, a Chinese-American author who helped organize the coalition. "This isn't just about discrimination and race. It is about justice for everyone, including (people of) all races, and social and economic statuses."
A lawsuit filed against Harvard in November also alleges discrimination against Asian-Americans. Both the complaint and the lawsuit argue that Harvard's admissions policies, which give racial preferences to African-Americans, Hispanics, and Native Americans, violate Title VI of the Civil Rights Act of 1964, which forbids racial discrimination at institutions that get federal funding. Most other selective universities, of course, have similar policies.
There is little doubt that affirmative action preferences do in fact negatively impact Asian-American applicants. If racial preferences are given to Groups A and B, that necessarily disfavors members of Groups C, D, and E who are not similarly favored. This is true even if the people who instituted the policy don't feel any special hostility towards members of the disfavored groups. Some studies also suggest that elite college admissions policies not only disfavor Asian-Americans relative to preferred minority groups, but also even relative to whites.
Concern about this issue within the Asian-American community is not a new phenomenon. Some twenty-five years ago, I attended a high school with a large Asian-American population. Even back then, many of my Asian classmates worried that their racial background would be a disadvantage in competing for admission to elite universities. What is new is that some Asian-American groups are taking the lead in trying to curtail racial preferences. The complaint against Harvard follows on the footsteps of the key role played by Asian-American Democrats in blocking an effort to reverse California's Proposition 209, which forbids racial preferences in California state universities. This development undermines claims that affirmative action is a simple issue that pits whites against racial minorities. In reality, there are minority interests on both sides. Some Asian groups support affirmative action preferences. But it is likely that the policy, at least as currently practiced, has a net negative impact on Asians.
The case of Asian-Americans also highlights tensions between the standard rationales for racial preferences in college admissions and the way they actually operate in practice. If the justification for racial preferences is to compensation for historical injustices inflicted against groups that have been subjected to widespread discrimination in American society, many Asian-American groups deserve not only equal treatment but preferences of their own. After all, there is a long history of discrimination against Chinese and Japanese-Americans by state and federal governments, including the cruel forcible internment of over 100,000 Japanese-Americans during World War II. The fact that these groups are relatively affluent today doesn't necessarily mean they are less deserving of compensation for past injustices. Perhaps they would be still better off were it not for the history of discrimination. After all, a thief who steals from a wealthy person is still required to compensate them. Moreover, it is not clear why relatively poor Asian-Americans should be denied compensatory preferences merely because other members of the same group may be wealthier.
Denying preferences to Asian-Americans may make more sense under the diversity rationale for affirmative action that has been endorsed by the Supreme Court. If the purpose of racial preferences is not to benefit the groups that get them, but to expose students from other backgrounds to new perspectives, then it might make sense to disfavor groups that are already well-represented at elite schools. But this rationale is still a poor fit for the policies actually practiced by most schools. If promoting diversity is the real objective, it does not make sense to treat Asian-Americans as an undifferentiated mass, all of whom are already "overrepresented." There are, in fact, major cultural and linguistic differences between various Asian groups. Chinese, Japanese, Koreans, Indians, and Vietnamese are not basically similar, interchangeable groups. And while some Asian groups are indeed disproportionately represented at elite schools, others—such as Cambodian and Filipino immigrants—are not.
A policy that truly seeks to use racial preferences to promote diversity would consider each Asian group separately, taking due account of their differing cultures and histories. Even if a school already has a "critical mass" of Chinese or Indians, it might not have a significant number of Cambodians or Vietnamese. A consistent diversity-oriented policy would also end the practice of treating "whites" as a single, undifferentiated category. Immigrants from Bulgaria and Sweden are no more interchangeable than Indians and Koreans are.
As I have written previously, I have some sympathy for the compensatory justice rationale for affirmative action, and relatively little for the diversity theory. I also believe that private institutions, including Harvard, should be free to pursue either policy, if they so choose; public universities, by contrast are (and should be) subject to strict constitutional constraints on the use of race in admissions. But whatever your view of these two standard justifications for affirmative action, the policies actually in force at most universities don't fit either one very well.