The Volokh Conspiracy

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Will the Supreme Court Ask Harvard How it Justifies Treating "Asian Americans" as a Homogenous Category?


Affirmative action in higher education raises all sorts of interesting legal, political, and ethical issues. In the specific context of litigation alleging that Harvard discriminates against Asian students, now pending before the Supreme Court, I wonder if any of the Justices will ask Harvard University's counsel how it justifies classifying "Asian Americans" as a homogenous category.

Let's assume, for the sake of argument, that preferences for African Americans, Hispanics, and Native Americans are justified, legally and otherwise. Let's also assume–though it's far from unproblematic–that it makes sense to classify everyone with European, North African, and West Asian ancestry as generically "White."

The problem remains that in keeping track of the race/ethnicity of its students for "diversity" purposes, Harvard classifies students with ancestry in the rest of Asia as "Asian American." This includes everyone from Pakistani to Chinese to Indonesian to Filipino to Vietnamese Americans. These various groups differ dramatically in appearance, cuisine, culture, and religion. South Asians, East Asians, and Micronesians, all encompassed within the "Asian American" category, even have different genetic and anthropological origins.

Let's say Harvard already has admitted 20% "Asian Americans." They are now considering admitting their first Hmong applicant. Does it make any sense to consider this individual, for "diversity" purposes, as the 20%-plus "Asian," rather than as the first Hmong?

Indeed, while "Asians" have a reputation for being "overrepresented" and economically successful, that is primarily true of Indian, Chinese, Japanese, and, to a lesser extent, Korean Americans. Vietnamese, Bangladeshi, Indonesian, Cambodian, Hmong, and other Asian subgroups are not "overrepresented" in elite educational institutions. Some of these groups have quite poor average socioeconomic indicators. Filipino Americans have a achieved a good measure of economic success, on average, but as late as 1970 they were one of the poorest ethnic groups in the United States.

Native Hawaiians and Pacific Islanders used to be in the "Asian American or Pacific Islander" category. But they successfully lobbied for their own category after discovering that they faced discrimination in admissions in mainland universities because they belonged to an "overrepresented" category, even though their particular groups were "underrepresented."

Harvard, of course, is simply following the classifications used by the Department of Education, and the government as a whole. But to pass the "strict scrutiny" the Court applies to racial classifications, one would imagine that Harvard would have to come up with something better than, "we use these categories for diversity purposes because we use them in our reports to the Department of Education," especially given, as I've noted in previous posts, that the categories were not invented with affirmative action in mind, much less with "educational diversity" in mind.

Justice Alito noted in Fisher v. University of Texas that it "would be ludicrous to suggest that all [students classified as 'Asian'] have similar backgrounds and similar ideas and experiences to share." Such a "crude" and overly simplistic" racial category cannot possibly serve as a meaningful basis for deciding how "individuals of Chinese, Japanese, Korean, Vietnamese, Cambodian, Hmong, Indian and other backgrounds comprising roughly 60% of the world's population" would contribute to a college campus."

I'm not quite sure what Harvard's lawyer would or could say if asked why, say, Filipino, Nepalese, and Mongolian applicants are placed in the same "diversity" category, especially given that only a minority of people assigned to that category actually identify as "Asian" or "Asian American." See JANELLE WONG ET AL., ASIAN AMERICAN POLITICAL PARTICIPATION: EMERGING CONSTITUENTS AND THEIR POLITICAL IDENTITIES 162 (2011) (finding that less than 40% of Indian, Chinese, and Filipino respondents identified as "Asian" or "Asian-American," even as a secondary identity.) We will never know unless one of the Justices asks.