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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.

NEXT: Why Does the Supreme Court Refer to Preferences for Hispanics/Latinos as "Racial Preferences"?

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  1. Asia has been recognized as a continent for a long time, and the idea of 'Asian' (or 'Asiatic,' or 'Oriental,' etc.,) culture is certainly not new. Were all those people crazy or dumb? Are those who talk of 'Arabic' culture, or ' African culture,' or 'Jewish culture' crazy or dumb? Are those who speak of 'Western' or 'European' culture being crazy or dumb?

    1. "The Orient" and "Oriental" referred to East Asia, and primarily Japan and China. India was not "the Orient," nor was the Philippines. And Asia is a continent, but then West Asians are classified as white, with an arbitrary line drawn at the Western borders of Pakistan and China, except that people from former Soviet Asian republicans are "white" regardless of geography. You are trying to make sense of an arbitrary category. The sense it does make is that the category does closely match who was excluded from citizenship under old racist citizenship laws. But why that would be the criterion one would use for a category meant for "educational diversity" as opposed to say, civil rights enforcement is, I think, inexplicable.

      1. ""The Orient" and "Oriental" referred to East Asia, and primarily Japan and China."

        Wasn't Said's famous book called 'Orientalism?' It wasn't about Japan and China, was it?

        "India was not "the Orient,"

        OK, so this seems strange to me. I'm a fan of the old The Shadow radio shows. Iirc they talk about the hero's ability to cloud men's minds, that he "developed these abilities in India specifically, under the guidance of a "Yogi priest" who was "Keeper of the Temple of Cobras" in Delhi." The show also said "Several years ago in the Orient, Cranston learned a strange and mysterious secret - the power to cloud men's minds."

        Seems like the show had heard about the idea that the Orient involved India...

        1. Sorry, to clarify, "the Orient" could be used narrowly or broadly, but in the American context, when we referred to "the Orient" or "Orientals" in terms of *people,* we were almost always referring to East Asians. This is, in fact the origin of the "Asian" category. We used to classify Japanese and Chinese separately, and Filipinos were entirely distinct. People referred to Japenese and Chinese Americans collectively as "Orientals." But Oriental came to be seen as offensive. So activists argued for replacing Oriental with "Asian." No one really cared, because almost all "Orientals"/"Asians" in the U.S. were Japanese or Chinese. But then people starting coming to the US from all over, and given that the category was Asian, they stuck them all in that category, which still meant "not Caucasian but from Asia." And they added Pacific Islander, which ensured that Filipinos would be "Asian" and not "Hispanic." So South Asians were classified in the early 70s as "white/Caucasian" becuase though Asian they were not "Orientals." But a lobbying group of Indian Americans protested that they weren't "white", so they stuck them, also, in the "Asian/Pacific Islander" group. So what was originally a category meant to encompass Chinese and Japanese and a handful of other wound up encompassing a much larger group. No one actually thought, though, that say, Indians and Japanese were similar, including, of course, Indians and Japanese.

          1. OK, this seems like backpedaling (" could be used narrowly or broadly", "when we referred to "the Orient" or "Orientals" in terms of *people,*." "we were almost always"). This is, admittedly, a single data point. One might not think it's important as it represents a 'pop culture' data point. But 'The Shadow' was a *hugely* popular radio show in the 1930's. And, it seems that the writers of the show easily conflated India and 'the Orient.'

            This makes me think that perhaps you've made a quite common mistake: entering into generalized scholarly activity about an area in which you're only at best acquainted in a narrow sub-area of the same.

            1. It's actually the opposite. Bernstein has been on such a deep dive into the history of racial classification by the government that he hasn't posted on anything else in years. But since official government categories are all he has been looking at, he completely missed that yes, "oriental" in pop culture was understood to include India, and the Philippines, and southeast Asia, from an even earlier date.

              1. Why should the pop culture definition of race matter here, as opposed to the one(s) used by the State?
                Reminds me of the now discredited English-born Justice Sutherland's denial of citizenship to US World War I veteran Bhagat Thind based on the "average man" (as channeled by an English immigrant who never served at least): "It may be true that the blond Scandinavian and the brown Hindu have a common ancestor in the dim reaches of antiquity, but the average man knows perfectly well that there are unmistakable and profound differences between them to-day. . . "

                1. What is identity?

                  Everyone human is different from everyone else as reflected in identity documents and - empirically speaking - in unique genetic makeup, biometric characteristics, not to mention personal development of mind and soul over the life course over which each of us has some control within circumstances and constraints.

                  The notion of identity being based on group affiliation/ membership (or imposed assignment to one of a limited class of categories) is an adulteration of the concept that each individual is unique and equal in dignity as a general normative principle (which also underlies the concept of human rights, which are not tribe- or nation/state-specific).

                  So, as for differences, each is different in myriad ways from all others. What should count, and serve as a selection criterion?

          2. No one actually thought, though, that say, Indians and Japanese were similar, including, of course, Indians and Japanese.

            The British thought that. They had an all-purpose acronym to unify the class: WOGs. The, "O" stands of course for, "Oriental."

            None of those, including Indians and Japanese, would have been admitted except as servants to a pre-WW II British club in Singapore—at least not until the Japanese shot their way in.

            Americans today typically do not distinguish a Sikh, from an Arab, from a Malay wearing a turban. Dress them all in traditional costumes, or in Western business clothes, and my guess is that few Americans indeed could distinguish among natives of Kazakhstan, Manchuria, Korea, or Japan.

            Not sure what that means for the law of social policy, but it does point toward difficulties ahead if it all gets determined by a style of legal reasoning which almost no one on the policy side—neither policy makers nor policy consumers—recognizes or practices.

      2. The show was in the 30's btw.

    2. Cmon really? I mean I never was one to admire your brand of 'logic' but this is pretty weak even for you.

      Because some crotchety old Ancient Greek writer deciding to lump asia together for convenience thousands of years ago and it became the standard, it justifies a 21st century organization with hoards of computers and scientists continuing to the same to an impoverished Hmong and a wealthy Chinese scion?

      You're basically just saying. 'Cuz Its always been this way' didn't know you were a conservative.

      1. Lol, poor Amos. Yeah, if you want to argue the idea of 'Asians' is a recent, made up thing then, yes, pointing to an Ancient Greek writer referencing the same kind of undercuts that.

        1. Nobody's arguing whether the classification of Asian is recent or old. The debate is whether its a justifiable surrogate indicator to level people through economic rewards. Do you have any argument that supports this other than the age of the term asian?

          1. You goofball, at least read all the comments in this very thread! lol

            1. You’re missing the point, perhaps intentionally because you’re probably smart enough to understand it. The past doesn’t matter at this point, the question is whether it’s a reasonable way to classify now. Bernstein makes a pretty good case that it’s not.

            2. You're dodging the issue. I don't GAF about etymology or the history of terminology or anything like that. I asked you repeatedly if you had any actual arguments for lumping so many people together for the purpose of affirmative action and you haven't offered any so I guess not.

    3. "Are those who talk of 'Arabic' culture, or ' African culture,' or 'Jewish culture' crazy or dumb?"

      Maybe not crazy or dumb, but my fellow Arabists and I always cringe when people use the word Arabic to refer to anything other than the language (although a quick dictionary check has indicated that this is at least somewhat precedented). Arab culture would be better.


      It's kind'a crazy to call German and Czech Texans Anglos, too, ain't it? But there you have it.

      Perhaps the Anglos (the ones with pedigree from Anglistan proper) should be called Teutons, or Normans, or Indo-Europeans, in acknowledgement of various cross-channel raids and invasions? Or Celts, if their ancesters hail from the uplands and outer fringes of Gran Britannia.

      Point being: the drill-down (and Who is classed as what?) applies just as much to purported "whites".

  2. A) I'm sure Harvard would love to use more granular classifications if they were available. If the outcome of this case is simply, we need to have more options on the Common Application for race / ethnicity / background, I'm sure everyone would be happy (except the evil plantiffs).

    B) I imagine Harvard's #1 guiding principle (beyond just, what data is available) is how the social scene plays out on campus, i.e. how the students self-organize. If there's an "Asian-Americans at Harvard" society, then the question is, how did that come about and is it under-inclusive or too generic? If it's the natural grouping that the students themselves come to, then it makes sense to use for admissions. (One sub-goal of diversity is to make sure those campus social / cultural communities can be sustained.)

    1. B. They’re miserable, self loathing, self isolating, and exclusionary. It destroys a campus.

  3. Wow. You spent 400+ words just to avoid the obvious; it’s about a general physical appearance and dullness.

    Almost all Asiand have dark hair, slanty eyes, and compact bodies.

    It’s not just external appearance. Asians are slower, less focused. They never excel in athletics or any competition requiring fast, accurate responses.

    Asians are only superior at slow games, like spelling bees and SATs.

    Top universities are right to limit Asians. Sure, they study their asses off to overcome limitations. But to be overachievers, they’re the least happy and well-adjusted students.

    Who wants a campus half filled with miserable, chain- smoking, suicidal people?

    1. That's amazingly racist of you, but if Harvard stopped admitting dull people...

      miserable, chain- smoking, suicidal people?
      You just described MIT.

      1. You just described MIT.


      2. Racist? I noticed that you didn’t say anything was inaccurate.

        Your dig at MIT was funny.

    2. You're going to fit right in here

  4. When grouped its far easier to limit numbers as a whole to raise representations of desired groups. If they break up the category they would have to admit to their bias against specific nationalities

  5. I agree with David and Ilya that affirmative action in higher education is on balance a bad thing, but I think I have a better reason. Forget about the "fairness" of the practice and consider its results in the real world.

    The major factor determining an individual's success at a university is whether he can handle the pace of study required. High school grades and tests like the SAT (before they polluted it with economic scores) are the best way to measure that readiness. Simply put, if a university admits an unready student, he is simply going to flunk out, thus wasting the time, money, and effort of the student, his parents, and the school.

    This will affect black students most strongly because they get the worst average preparation from attending public K-12 schools. Getting more black kids into university is a very worthy goal if it can be done in such a way that they will graduate. But by the time they graduate from our public high schools it is too late.

    The place to fix education is in grades K-12. Either by improving the public system or by using vouchers to create a better system.

    1. This certainly isn't true at Harvard. Anyone who gets into Harvard can deal with Harvard.

      I doubt it's true at any college, except if colleges are willing to admit students knowing they're unlikely to succeed, whether to check some diversity boxes or bilk a couple years' tuition. To the extent that's happening, let's stop.

      1. Why? Part of the business plan for junior colleges is collecting all the admission fees and up-front fees and tuition from students who’ll never complete their first semester.

        They’re counting on a percentage to fail. Many universities wouldn’t have the space for all the students, if they could expect every incoming freshman to graduate.

  6. Alt-ortho suggestion for da Chinaman offspring at Harvard:

    "homo genius"

    Partial credit: John Steinbeck, Cannery Row, CA

  7. Why? Because it's bad for the people who end up with less money and more debt for no reason. And therefore bad for society, bad for America.

    Obviously colleges currently doing this would have to have less freshmen and more upperclassmen. That doesn't seem like a problem.

    It could be accomplished with penalties, like, colleges have to refund the tuition for students who are admitted but are unable to graduate.

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