The Harvard Crimson

A Better Case for Affirmative Action

What — and who — is affirmative action really for?
By Sophia C. Scott

A Better Case for Affirmative Action

What — and who — is affirmative action really for?
By Josie F. Abugov

We arrived via overnight bus. Dozens of bedraggled Harvard undergraduates, some still in their Halloween costumes, joined a few graduate students on a 3 a.m. bus to Washington, D.C on October 30. We got to the capital just in time for lunch and a speaker series about the event that brought us there: the oral arguments in two Supreme Court cases on affirmative action, Students for Fair Admissions v. Harvard and Students for Fair Admissions v. The University of North Carolina. The next day, after a marginally better night’s sleep than the one before, we went to a rally outside the Supreme Court.

We were a sea of pale blue t-shirts, buttons, and bandanas, waving posters, chugging coffee, and huddling around a podium. The rally began, and a man stepped up to the mic to introduce himself.

“My name is Rakim Brooks, and I’m president of the Alliance for Justice, and I am a beneficiary of affirmative action,” he said.

“How many of you are beneficiaries of affirmative action? Raise your hand,” Brooks continued. I raise my hand — I’d heard this line many times this weekend — as does most of the crowd.

“Everybody’s hands should be up,” he says, and everybody’s hands go up, “because the secret they don’t want you to know is that we all benefit from affirmative action.” We cheered, the #DefendDiversity slogans on our apparel undulating like a wave of progressive blue beetles.

“White, Black, brown — whoever you are, wherever you come from, you are a beneficiary of affirmative action. When one of us succeeds, all of us succeed, particularly when that success is rooted in equity,” Brooks says. A high pitched “woot” cuts through his brief pause. He continues: “It’s just that simple.”

By Julian J. Giordano

Not long after Brooks’s speech, it started drizzling, and then pouring. The camera crews began to leave. I huddled with the other students under umbrellas as the speakers continued, until the rain got to be too much for a few of us who walked over to a nearby church and listened to a broadcast of the Supreme Court’s oral arguments.

The decades-old practice of affirmative action in university admissions is on the line, and with the court’s conservative supermajority, it’s not sounding good for our side — the side defending race-conscious admissions at Harvard. We expected this, but it was still hard to hear. We could tell things were off to a bad start when, in the UNC case, Justice Clarence Thomas said, “I’ve heard the word ‘diversity’ quite a few times, and I don’t have a clue what it means. It seems to mean everything for everyone.” Everyone in the church groaned.

‘I didn’t come here to beg white people’

At the end of October, the Supreme Court heard oral arguments for SFFA v. Harvard and SFFA v. The University of North Carolina, two lawsuits spearheaded by Edward J. Blum, a tireless conservative activist who has been hellbent for decades on eliminating affirmative action. Though not a lawyer, Blum has backed over two dozen lawsuits that include efforts to strike down race-conscious admissions as well as attempts to challenge voting rights. In 2013, a Blum-led suit that reached the Supreme Court dismantled a key provision of the Voting Rights Act. Three years later, he narrowly lost in Fisher v. University of Texas, a case in which Blum’s plaintiff, Abigail Fisher, alleged that the University of Texas had discriminated against her in its admissions process because she is white.

After years of representing white clients in affirmative action lawsuits, Blum recalibrated — in the Harvard case, SFFA alleges that the University discriminates against Asian applicants in favor of Black, Hispanic, and Native American ones. In the UNC case, Blum alleges discrimination against both white and Asian applicants.

It appears almost certain that the decades-old Supreme Court precedent upholding affirmative action will be overturned. With a 6-3 conservative majority on the court and the recusal in the Harvard case of Justice Ketanji Brown Jackson ’92 because of her former seat on the Harvard Board of Overseers, the question is not whether affirmative action will be gutted, but whether it will be entirely gutted.

That approximately 40 percent of colleges and universities currently use some form of affirmative action means that the outcomes of the Harvard and UNC cases will have tangible and troubling consequences. We know this because it has already happened in California, in Michigan, and the seven other states that banned affirmative action in public universities. In the wake of these bans, flagship state schools have spent decades — and millions of dollars — trying to bring the number of Black and Latinx students back to what they once were. They have not been successful.

In 2020, Black students comprised only 3.7 percent of Berkeley’s student body, about half of what it had in 1990; last year, Berkeley had only 27 Native students out of an incoming class of almost 7,000. Black and Latinx students are less represented at elite public universities than they were 35 years ago. Modeling for the University’s team suggests that if Harvard stopped considering race in its admissions process, it would also experience a substantial change: the number of Black students would decrease by more than half, the number of Asian students would increase by a few percentage points, and the number of white students would increase the most.

The statistics make clear that eliminating race-conscious admissions dramatically decreases diversity. For Blum, this was not surprising — eliminating diversity seems very well to be one of his goals. But what was surprising was the fact that Harvard’s lawyer, Seth P. Waxman ’73, struggled to defend the University’s practices, too.

“Race for some highly qualified applicants can be the determinative factor, just as being an oboe player in a year in which the Harvard-Radcliffe orchestra needs an oboe player will be the tip,” he said. To which Chief Justice John G. Roberts Jr. ’76 shot back, “We did not fight a civil war about oboe players.”

Listening to the arguments, I got a sense that there was something missing in Waxman’s thinking — something that went beyond the imperative of “diversity,” something that Waxman just couldn’t say.

The diversity rationale for affirmative action –– the idea that we should use race-conscious admissions because of a university’s overarching interest in creating diverse student bodies –– is not popular among the general public. Around three-fourths of Americans oppose the use of race as a factor in college admissions, according to a Pew Research poll conducted earlier this year. Most Democrats oppose it, most Black people oppose it, and most Asian people oppose it.

Even the students at the rally in Washington, clad in #DefendDiversity paraphernalia, seemed wary of the limits of this slogan. David Lewis ’24, the political action chair of the Black Students Association, said to the crowd, “Don’t be confused by our Defend Diversity slogan. I did not come here to prove to racists that my Black peers and I belong. I didn’t come here to beg white people. I didn’t come to prove that we can improve other students’ educational experiences by adding spice and flavor to some melting pot, and I sure as hell did not come to prove that we are affirmative action imposters taking spots from supposedly smarter and more qualified white students.”

Implicit within Lewis’s statement was a skepticism of a kind of hollow diversity that primarily serves the interests of white people and elite institutions. Indeed, many of Waxman’s arguments seemed to be about the benefits that students of color bring to educational spaces. So, is this what diversity at Harvard means? Is this what it has always meant? Listening to the lawyers and justices circle around, yet gesture toward, something else, I wondered: what — and who — is affirmative action really for? If there is more to this case than diversity, what will we lose when we lose affirmative action?

We’ve always been ‘diverse’

Race has never been absent here. From the school’s literal inception, nonwhite people, specifically Black and Indigenous people, have lived and worked at Harvard. Race existed here, with force, as a violent social construct. Of course it did — race is at the foundation of this country.

In the middle of Old Yard, where a cluster of colorful aluminum chairs now sits on a patch of yellowing grass, there once stood a brick building designated as Harvard’s Indian College. A plaque in front of Matthews Hall reads, “Here American Indian and English students lived and worked in accordance with the 1650 Charter calling for the education of the English and Indian youth of this country.”

The Natives at Harvard College point to this history in their draft statement for media releases about the SFFA case, highlighting that Indigenous students attended the Indian College Harvard built on native land while their communities experienced “plague, warfare, colonialism, and the pressures of assimilationist and education practices.” Harvard created the Indian College with an explicit assimilationist intent — the male Native students who ate, studied, and lived alongside their white counterparts were supposed to absorb the Puritan teachings of the school and spread these ideas to their communities.

Harvard is still governed by the Charter of 1650, a colonial document where the fledgling Harvard Corporation outlined its institutional goals. In the charter, college is spelled “colledge” and godliness — spelled “godlynes” — is one of the school’s foundational principles. So, too, is “the education of English and Indian youth.”

When Harvard wrote the Charter of 1650, and when Harvard established the Indian College, the buying, selling, and trading of both Black and Indigenous people was legal in Massachusetts and practiced on campus.

This spring, the University released a report on Harvard and the Legacy of Slavery, a 100-plus-page document outlining the school’s financial, intellectual, and direct ties to slavery. In an introductory section on Indigenous and African slavery, the report describes, for instance, how the summer after Harvard’s founding in 1636, the ship named Desire left carrying 17 Pequot War prisoners and, after the enslavement of these people in Bermuda, returned two years later to the Boston Harbor with an unknown number of Africans. One of those Africans, the report suggests, may have been a man enslaved by Harvard’s first schoolmaster, Nathaniel Eaton.

This man, known only as “The Moor” within official archives, could have known the Pequot woman whom John Winthrop, one of the founders of the Massachusetts Bay Colony and a namesake of Winthrop House, enslaved before the Desire’s initial departure. The man called “The Moor” and the woman enslaved by Winthrop might have been on campus when Caleeb Cheeschateamuck became Harvard’s first Native American graduate in 1665. It is possible that these two men and this one woman knew similar shortcuts around this campus, that they crossed paths during their daily routines, that they made eye contact during stolen moments of leisure.

The undergraduate Affirmative Action Coalition held a speaker event with Harvard Institute of Politics fellows Gloria Browne-Marshall, a professor of Constitutional Law at John Jay College, and Judith LeBlanc, the executive director of the Native Organizers Alliance. Partway through the conversation, Browne-Marshall and LeBlanc began discussing the role of “diversity” within the SFFA case. Browne-Marshall critiqued the idea of “diversity” as the end all be all of justice — from the shores of Virginia to Boston Harbor, she said, this country has always been “diverse.” So when we talk about diversity now, we must really mean something else.

Affirmative action was originally meant to benefit Black and Indigenous people whose families had endured generations of white supremacy, as well as women of all races barred from educational and professional opportunities. President John F. Kennedy ’40 first used the term in 1961 when he established the Committee on Equal Employment Opportunity, urging federal contractors to take “affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin.” In 1965, President Lyndon B. Johnson required all government contractors to use affirmative action to promote equal employment opportunities. Policies specifically aimed at increasing the numbers of women and racial minorities continued under the Johnson, Nixon, Carter, and Reagan administrations.

However, the system we have today is a flimsy version of the original. Whittled down over the years, affirmative action rests on shaky ground — not only in the courts, but within its own logic. What emerged from the Civil Rights Movement as one way to address centuries of oppression against Black and Indigenous people transformed into a justification for race-conscious admissions that cannot account for histories of racism or its ongoing effects. Instead, within higher education, we have the diversity rationale. As established by the course in two key affirmative action cases, schools can take race into account during admissions because of a state interest in diversity of all kinds — racial, socioeconomic, and geographic.

Theodore M. Shaw, the former president of the NAACP Legal Defense Fund, witnessed the decline.

“I was at the Supreme Court on June 28, 1978, when Bakke was decided or announced,” he told a crowd of activists, lawyers, and organizers the day before the oral arguments. “I left the court devastated because even though we, I, have fought to defend diversity ever since then, for African Americans at the moment that Bakke was decided, and frankly still today in significant ways, Bakke was a loss — I don’t have time to explain all that.”

What Shaw didn’t have time to explain was that Justice Lewis Powell’s majority opinion 44 years ago in Regents of the University of California v. Bakke changed everything. In the case, a 35-year-old white man applying to medical school alleged the University of Davis’s racial quota system infringed upon his Fourteenth Amendment rights. The court was split down the middle. Four justices believed that the cap on white students violated Title XI, which prohibits discrimination on the basis of race for any institution that receives federal funding, while the other four ruled it did not. Siding with the university, Justice Harry Blackmun ’29 famously wrote, “In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.”

Powell saw things differently. He believed in the permissibility of race-conscious admissions but held a less progressive view about our collective responsibility to address racism, writing, “There is a measure of inequity in forcing innocent persons in [Bakke’s] position to bear the burdens of redressing grievances not of their making.” His ruling prevented the use of a racial quota system but allowed universities to take race into consideration because of schools’ “compelling” interest in having a diverse student body. This rationale gave new meaning to the Equal Protection Clause in the Fourteenth Amendment, which guarantees equal protection under the law. It became the cornerstone of future affirmative action cases, namely Grutter v. Bollinger in 2003, which upheld the University of Michigan Law School’s affirmative action policies for its intent to promote diversity. Now, SFFA is asking the court to overturn Grutter.

This diversity rationale has guided colleges’ approach to expanding their numbers of minority students and accounting for societal inequities. “I think that the basic narrowness of what the court allows for affirmative action to be is in a lot of ways responsible for this, right? It can’t be a reparative thing,” New Yorker staff writer Jay Caspian Kang tells me in an interview. “It would be illegal if it was.”

These shifts around affirmative action can make the discourse surrounding it dizzying. “Here’s why I hate talking about affirmative action,” says Anthony Abraham Jack, an assistant professor at the Harvard Graduate School of Education. “It has been forced to change so much from addressing past wrongs that were written into American law, that was the DNA of American culture, to now saying that having a Black or a Latinx classmate is a benefit to white people, therefore, it’s a benefit to society. Yeah. So when you talk about affirmative action, it’s like, which wave? After which court case?”

‘It’s still a PWI, but there’s a Black community that’s not just me’

No one should be surprised the diversity rationale has fared so well. Everyone’s included — what’s not to like? Diversity conveniently benefits every powerful institution in this country and every white person in this country hoping to become powerful. It connotes an image of a gentle white man active listening to a Black woman emphatically detail her generational trauma. He is moved, he’s learned so much, and the two cooperate so well together that they generate the most revenue in all of McKinsey’s history. Put simply, diversity has neoliberal vibes. I saw a sign at the rally that read, “Diversity is good for white people.”

Throughout the hearings, various conservative justices — Roberts, Gorsuch, Barrett — questioned Waxman when race-conscious admissions will end, referencing the majority opinion from Grutter, which predicted that “ 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” After a tense exchange with Gorsuch, who said curtly, “It’s a real simple question. If Harvard doesn’t have an answer, that’s fine, but does Harvard have some view about when?”, Waxman responded that the University does not.

If Waxman wasn’t bound by a diversity rationale, his answer to the conservative justices’ questions about affirmative action’s end date would be more straightforward: affirmative action will no longer be necessary when racial disparities become indiscernible.

“I wish I didn’t have to believe in affirmative action, right? I think it’s a very flawed system,” Chelsea Wang ’25, the political action chair of the Asian American Association, tells me. “It doesn’t feel right to judge people by their race and even to note that.” But we don’t have the leisure of living in a colorblind world. Wang continues, “I will support affirmative action as long as people are still disadvantaged by their race.”

Wang’s perspective on the necessity of affirmative action elucidates an irony about the whole debate. Even though schools and courtrooms are bound by the diversity rationale, common-sense understandings of affirmative action are about equity. “At some fundamental level, everybody knows — Harvard knows, the University of North Carolina knows, the challengers know — that the reason for affirmative action programs is something like either restorative justice or contemporary distributive justice,” says Mark V. Tushnet ’67, professor emeritus at Harvard Law School.

An underlying belief that affirmative action should be redistributive is why people often react with unease when they learn that Generational African Americans, a term for people whose descendants were enslaved in this country and have lived here for generations, are underrepresented within Black populations at elite institutions. While the University does not release data within racial groups — only what the overarching Black population is — this is an unspoken truth widely acknowledged within Harvard’s Black community. We know that affirmative action, as Harvard has practiced it, has achieved cosmetic diversity while failing to open up seats to the communities that bear the brunt of systemic racism.

We know that anti-Blackness and anti-Indigeneity are two specific kinds of American evils. We do not need to know that intergenerational mobility for these two groups is lower than all other demographics in the country — and that even being born into a wealthy family does not insulate these two groups from future economic precarity — to understand this. But we fear confronting this knowledge will unravel everything else. As Kiersten B. Hash ’25 says, “conceding that we need to consider race as a factor in college admissions is conceding that systemic racism exists — period, point blank — in this country.”

Our implicit commitment to distributive justice also explains why the wealth disparities at schools like Harvard feel like such a betrayal of the schools’ values. Over three times as many students come from the top 1 percent than from the bottom 20 percent. And Harvard’s less stratified than its Ivy peers! At Brown, the median parent income is over $200,000, and more students came from the top 0.1 percent than the bottom 20 percent. Kang calls these schools “elite egalitarian,” because “the one thing that everyone is there is, pretty much across the board, rich now.”

In the Harvard Class of 2019, only 29 percent of Black and Hispanic students were “disadvantaged,” meaning that their parents made less than $80,000 or didn’t have a college degree. Among the general U.S. population, the median income of Black households in the United is only around $48,000.

Speaking on the disproportionate wealth within historically disadvantaged minority groups, Kang notes that this “doesn’t mean that, like, every minority kid at Harvard or one of these schools is from a wealthy doctor background, but some of them are, and the schools, I think, are quite dishonest about that.” Still, the perversion of affirmative action, from a Civil Rights Movement effort to address past harm into a loosely defined system to create multicultural Disneylands of predominantly wealthy students, leaves progressives in a pickle.

Before Roberts castigated Waxman about oboe players, the Chief Justice proposed a predictable but mostly misguided hypothetical about a Black legacy applicant who grew up in Grosse Pointe, an affluent suburb in Michigan. Roberts said, “I mean, you’re concerned about diversity of viewpoint. Let’s say his viewpoints tend to be very close to the white applicants and he grew up in Grosse Pointe, had a great upbringing, comfortable, his parents went to Harvard, he’s a legacy, and yet, under your system, when he checks African American, he gets a tip.” Waxman responded that race isn’t always a relevant factor for admission — under Harvard’s race-conscious admission policy, race is allowed to be a “tip” for applicants, but that doesn’t mean this always happens. In fact, race is rarely the definitive “tip.” Roberts’s statement that this hypothetical applicant gets a tip as soon as he “checks African American” is false.

Still, in this exchange, the competing logics of diversity and redistribution collapse on themselves. I had two immediate reactions from Roberts’s statements: one, the Chief Justice is right to be skeptical about well-off applicants getting a boost in the admissions process, and two, he’s never met a Black kid from the suburbs. The assumption that this hypothetical Grosse Pointe applicant has viewpoints “very close to the white applicants” and therefore wouldn’t bring the real Blackedy Blackness that Harvard wants from its students of color is wildly insulting and wrong. It implies that class eclipses race — that it removes you from both the violences of racism and the joys of culture and community. Regardless, the framing of Roberts’s question suggests the existence of The Black Perspective; while we want diversity on the macro level, each individual “diverse” candidate should fulfill a racial expectation.

Whatever beliefs this mythical kid has is definitionally a Black perspective, but that’s not the real question Roberts is asking. He’s pointing to the collective understanding that affirmative action should benefit people who come from historically marginalized backgrounds and face socioeconomic disadvantage, which I believe is true. Given the realities that multiple studies have shown that socioeconomic affirmative action decreases racial diversity (helping less advantaged white people more than any marginalized racial group), we arrive once again at Blackmun’s epithet that to address racism we must take account of race.

A better version of affirmative action should specifically target socioeconomically disadvantaged people of color, but, of course, that wasn’t the question at hand. The question at hand was whether a made-up Black kid from Michigan can really say he’s Black even though his mom is a lawyer or something.

Despite its occasional shallowness, diversity is still a baseline good backed by empirical evidence. Research on diversity in college environments suggests it increases critical thinking, self-confidence, and student motivation across the board. There’s also the annoying but understandable evidence that diversity specifically benefits white students. According to The Century Foundation, “the presence of students of color stimulates an increase in the complexity with which white students approach a given issue.” While we get to cosplay as tricky little riddles for our white classmates, a noted benefit of diversity for students of color is that people are less likely to be racist toward us because we have strength in numbers.

During the rally at the Supreme Court and at the event the day before, I noticed that many of the speeches referenced one of two things: experiences in majority minority underfunded schools and neighborhoods, or experiences being The Only One in the room. Both of these memories understandably led students to connect the value of diversity to the imperative for affirmative action.

Though I was deeply moved by the students’ stories, these two kinds of justifications for affirmative action made me realize that neither of them captured my own experience. If you amalgamated the faces of all the people I’m closest to, the result would look a lot like that slightly fetishizing National Geographic article that said everyone would be Blasian or whatever in 2050. The diverse and privileged upbringing I had probably contributes to my cynicism of diversity as a judicially defensible metric. I love my diverse classrooms, diverse friend groups, and diverse family more than anything, but after 22 years living as a poster child for the “what are you” question, I’m almost insulted at the idea that diversity is the pinnacle of social justice, rather than a nurturing way to live life and find community.

“We can’t just be here for diversity sake and then face onslaughts of racial abuse — aka microaggressions — on the daily and be expected to just take it on and then become these mammies and educate all these white kids from the suburbs,” says Hash. “That’s not our job. That’s Harvard’s job.”

For many student activists on campus, the University is not their usual ally. The prison divestment movement, recent graduate student strikes, and support for the Lanier family to retain the daguerreotypes of their enslaved ancestors all critique Harvard practices and inequities. But in the legal fight for affirmative action, there’s an “intersecting interest,” Hash says. She continues, “It is good that, at least for now, we have elite institutions supporting affirmative action, even if it’s not for the same reasons. I think we always have to level-set as a community and recognize our fight is not their fight.”

There’s a pretty universal sentiment among affinity groups, for instance, that the school proudly claims us when it’s convenient for them but shies away from our institutional demands. This disconnect leaves students doubting the moral purity behind the University’s diversity efforts — and creates added pressure to solve institutional gaps within their community. Hash describes it as a feeling of “running around and trying to put your hands on everything.”

“You can get burnt out so quickly, because you really feel like the institution doesn’t care, and then they only care when it’s convenient to them,” Hash says, “and then [you’re] expected to turn around and have to organize like it’s your duty, it’s your right as a Black person. Mind you, we’re in midterm season.” Jack’s 2019 book “The Privileged Poor” demonstrates the inequities less privileged students face once accepted into selective schools. His analysis squares with Hash’s experience: “Everyone is talking about getting in, but no one is talking about what happens when students are on campus.”

In a conversation with me a couple weeks before the event, Lewis described how even as he’s “been joining in with these Defend Diversity hashtags and liners that do well according to the media and polls,” it doesn’t always sit right with him.

He said that his educational experience before college was isolating. The only Black person in his K-8 environment, he was forced to endure racism and microaggressions no one took seriously. He felt like he couldn’t fully be himself. “Coming to Harvard,” he said, “It’s still a PWI, but there’s a Black community that’s not just me.”

“I think now I’m somebody who is able to join this cause, fight for what I believe in, say whatever I want to say, even if it may not be palatable to white peers or authority figures, in part because I have like Black upperclassmen, Black authority figures,” says Lewis, whose experience of self-growth flips the script about who we implicitly consider the protagonists of diversity stories. He does feel indebted to the diversity of Harvard’s campus — but to him, that means Harvard’s Black community.

‘At least weird’

One of the more upsetting parts of the hearing was an exchange between Waxman and Justice Samuel A. Alito Jr. about the University’s assigning Asian applicants the lowest “personal rating” compared to all other racial groups. Harvard’s lawyers say this number is practically meaningless within the admissions process, but the personality rating actually seems like the cornerstone of the holistic process. Admissions officers overview the students’ non-academic materials — essays, high school recommendations, alumni interviews — to adjudicate the “integrity, courage, kindness, and empathy” of the applicants.

Waxman told the court that there is no evidence Harvard discriminates against Asian Americans and said the personal rating is just “a matter of triage.” In our conversation, Tushnet says, “there were examples in the case of what can only be described as express discrimination against Asian Americans.”

Harvard’s student leaders and activists don’t see it this way. The members of the Affirmative Action Auxiliary board I spoke to, as well as representatives from Asian American legal and justice organizations, emphatically rejected the suggestion of anti-Asian bias within the case.

“If we uncovered evidence that affirmative action was operating to discriminate against Asian Americans, we would be on the side challenging affirmative action, not defending,” Marita Etcubañez, the senior director of strategic initiatives of Asian Americans Advancing Justice, said in her speech on the steps of the Supreme Court. “But that’s not what’s happening, despite what our opposition is alleging.”

Indeed, the trial court in the SFFA v. Harvard case did not find evidence of racial discrimination against Asian applicants. The AAJC, as well as the students I spoke to, also pointed to the growth of Asian American representation within the Harvard population, from 3 percent in 1980 to the nearly 30 percent we see today.

Organizers cautioned against falling for the “Asian penalty gap” narrative, saying that Asian Americans were assigned “very slightly weaker personal ratings — only 0.05 points difference between Asian American and white applicants” and noting that applicants of all races receive weaker personal ratings from admissions officers than from alumni interviews.

In sum, AAJC concluded that in contrast to SFFA’s claims, Asian Americans benefit from race-conscious admissions. The group cites a Georgetown report that suggests more than one-fifth of current Asian American students at elite schools would not have been accepted under a test-only admissions practice.

When we spoke before the oral arguments, Kang said Asian American students were treated in a way that was “at least weird,” and worthy of attention.

“I understand the theory. The fear is what’s going to probably happen in the next couple of weeks and that there needs to be a full-on defense. So even if you quietly disagree with it, then you just kind of swallow it because there’s a bigger game at play,” Kang says. But he adds that while this mindset makes sense for the NAACP Legal Defense Fund or nonprofits organizing around affirmative action, he doesn’t think “it should be the job of journalists to talk about things in that sort of way.”

For Asian American Harvard students advocating to preserve affirmative action, the fight stems from a belief in the importance of forging cross-racial solidarity and dispeling racist myths about Asians. “The stereotype claims that we are apolitical, hardworking, that we are really only here to work for our own benefit, our own gain. And that isn’t true,” Wang says. “They’re saying that we are willing to ignore the racism against other people, and that we would do anything to benefit ourselves.”

SFFA’s claims, students contend, portray Asians as a monolith and exacerbate the dangerous effects of the model minority myth, which Kylan N. Tatum ’25 says “obscures the social, political, and historical struggles of Asian Americans” and “seeks to explain the position of other minority groups through frameworks of inherent inferiority or laziness, instead of as a product of social barriers.”

“Being both Black and Asian myself, I often see attempts to misrepresent both of those groups,” says Tatum, who serves as political action chair for the Asian American Association alongside Wang. “There are members of my family who I know smarter than who were not able to graduate high school or were not able to go to college because of a variety of structural barriers.”

By stereotyping Asian applicants, SFFA is indeed erasing socioeconomic and educational disparities within the umbrella term of “Asian,” a group that is the most economically divided of any racial group in the country. Quyên Đinh, executive director of the Southeast Asia Resource Action Center, describes how affirmative action specifically benefits Southeast Asians. According to SEARAC, 27 percent of Vietnamese, 17 percent of Cambodian and Hmong, and 14 percent of Laoitan Americans hold a bachelor’s degree or higher; in contrast, 70 percent of South Asian Americans do.

“We’re here because we believe in admissions policies that see that we are more than a number,” Đinh says. “And that is part of my story and our story, and my SAT score that didn’t even break 1000 was my story.”

She lists aspects of her upbringing that exist beyond grades and scores that complicate her narrative: born and raised in low-income neighborhoods; an English language learner; a proud daughter of a single dad; a byproduct of a beautiful but under-resourced K-12 education system. “Driving myself to the SATs, filling out my own FAFSA, and only then finding out just how poor we were when I saw my dad’s tax return,” she continues. “My story, our story, should not be the minority but the norm.”

Again, Harvard doesn’t release statistics on intraracial demographics, but just as GAA students suspect they are a minority among Black students, it’s a common sentiment in Asian affinity groups that East Asians and South Asians constitute the majority of Harvard’s Asian population. In a 2017 Crimson op-ed, Elizabeth Y. Sun ’19 wrote, “When I think Asian, I think East Asian and then Indian. A lot of this has to do with the fact that I am Chinese American, but even more has to do with the fact that these are essentially the only two areas of Asia that I see represented at Harvard.” Similarly, the grad student union’s recent win of instituting a formal anti-caste discrimination policy at the University brought to light the low population of marginalized-caste students and the casteism some have experienced here.

Students oppose SFFA’s efforts because they can see that SFFA does not have Asian students’ best interests at heart. Anyone responsible for gutting the Voting Rights Act cannot have Asian people’s best interests at heart. Anyone whose decades-long political career has only served white people cannot understand the fraught, unstable position that Asian Americans occupy in this country. Solidarity is a sticky thing; the immediate interests of all marginalized groups don’t always coalesce, and yet our long-term interests always do.

Indeed, SFFA is alleging racism within Harvard’s allocation personal scores, yet their hopeful outcome — the termination of affirmative action — wouldn’t get rid of the personal score at all. In other words, as Harvard Law School Professor Jeannie Suk Gerson wrote in a recent article, “The practice of race-conscious admissions is not what has limited the number of Asian American students; it is instead the parts of the process in which Harvard claims not to think about race at all.” In the absence of race-conscious admissions, the University will probably rely more on personality ratings, as they “play with formulas to produce a diverse class in which Asian admissions don’t get unacceptably out of proportion,” Suk Gerson writes.

According to SFFA’s own logic, the ending of affirmative action could put Asian applicants in greater danger of implicit or explicit discrimination.“If anything,” Suk Gerson writes, “the personal-ratings morass may suggest that what’s needed to check unconscious biases are more transparently and forthrightly race-conscious efforts, not less.”

Sally Chen ’19, who testified for Harvard in the 2018 district court trial, connected the rise in nationwide anti-Asian violence to the imperative of defending affirmative action. “None of our issues exist in silos,” she said to the hundreds of predominantly Asian advocates preparing to rally before the Court. “With this precipitous rise in hate-fueled injustices against Asian Americans across the country … I’m reminded of what this case is really about. It’s protecting our civil rights, and when I say civil rights, I mean all of our rights.”

‘Addiction to exclusivity’

It’s unclear what the post-affirmative action world of elite institutions is going to look like. Harvard’s modeling suggests that ending race-conscious admissions would halve the number of Black, Latinx, Native, Hawaiian, and Pacific Islander students at the University. But others say the most selective schools won’t change very much; Harvard, for instance, might be an edge case. With over 60,000 applicants last year competing for less than 2,000 spots, the College may have the leeway to craft a racially diverse class without the explicit use of race.

Tushnet and Kang predict that overturning affirmative action won’t materially look that different, at least not at Harvard. “They’ll be a sort of headline victory for the challengers and they’ll walk away saying, ‘we’re satisfied with this ideological victory.’ And then outcomes on the ground are not going to change all that much.”

While the numbers on Harvard’s campus may not change dramatically, students of color may experience new pressures within the admissions process. They will likely be encouraged to highlight their racial or ethnic background in their personal essay. With the infamous “box” to check one’s race eliminated, admissions officers may search for racial “proxies,” and some students (and their counselors) will be inclined to foreground their racial identities.

But if students don’t — or can’t — disclose their race, proxies will fill the void of the box. Jack finds this process deeply insufficient. “First gen is not a proxy for race. Social class is not a proxy for race. What I fear is that there is no proxy for race because nothing gets at what is captured in the history of exclusion in this country than what box you check as your racial or ethnic group,” he says.

But the larger question, it seems, for Kang and Tushnet, is whether it’s worthwhile to focus on schools like Harvard. Tushnet considers this hyperfixation on elite institutions a major misstep, when the reality is that “the engines for social and economic advancement is getting a college degree from wherever you get it, and the more high school students who are qualified to get college degrees and who get them, the better our nation will be.”

In a recent piece for the New Yorker, Kang basically called Harvard irredeemable: “The real tragedy here is that the most consequential ruling on affirmative action had to come out of the Harvard case, given that there’s so little to admire or even defend about the most exclusive and élite institution of higher education in the U.S., perhaps even the world.” Between lower admissions standards for legacies, donors, and athletes, and student bodies that simultaneously mimic the racial diversity and credit card limits of the Gossip Girl reboot cast, Kang thinks Harvard, and schools like it, are inequitable to the point of no return.

“There’s nothing that those schools can do that’s going to make any type of difference unless they stop being what they are, right? And they’re never going to stop being what they are,” he tells me. “I don’t think it’s quite like, ‘who cares?’ Because obviously, these are very powerful institutions that do occupy a ton of the public’s imagination; I don’t think you can change that.”

Instead, Kang believes we need to be more realistic about what the possibilities of change would actually look like. “I think my prescription for this has always been much more radical than being able to change the admissions system within schools,” he says. “I think that America needs to break its addiction to exclusivity.”

‘You think that’s good enough?’

After the five hours of oral arguments, Elie Mystal ’00, a justice correspondent for the Nation, tweeted the most likely outcomes of this ruling: “Racist white people will be happy. AAPI people will not be helped. Harvard will continue admitting diverse classes of students. Non-elite schools will take a nosedive in terms of Black representation.” When I read this on the nine-hour bus ride from Washington, I struggled to digest the bleak assessment. As flawed and inequitable as I find Harvard’s admissions process and as dubious as I am that transformational change will emerge from the most elitist places in the world, the central fact is that the court will likely prevent more young people of color from gaining access to places of power.

I know this is probably more ideological than material; that Harvard and its hyper-elite peers may even look the same; that the disproportionate wealth here means these schools are defending a hypocritical set of standards; that great swaths of lower-privileged students will ascend into the middle class through colleges that don’t give a rat’s ass about affirmative action because they don’t need to.

All this is true, and yet the ending of affirmative action is devastating. Even if this case was purely ideological — which it’s not — the ideology of affirmative action dissenters is at best a flippancy about Black, Indigenous, and Latinx students existing in elite spaces, and at worst an active attempt to prevent us from entering places like Harvard. “They believe they have this kind of apriori right of ownership of spots at Harvard and Yale and Princeton and Stanford, right? Like we’ve let in too many people by lowering our standards,” Jack says. “But what they're really saying is, ‘we should have those spots, they should be automatically geared towards us.’ And a lot of that gets lost in the dialogue.”

Regardless of proxies or edge cases or anything, the material outcomes of ending affirmative action means fewer of us in the places where, whether or not they should be, are the bastions of power. Most people in the court that day probably went to Harvard or Yale — all but one Supreme Court Justice attended these two law schools. Anyone who values doing the right thing in this country should be disheartened and embarrassed that the highest court in the land is ensuring that there will be fewer people of color in selective institutions of higher education.

An exchange between Justice Elena Kagan and Cameron T. Norris, the lawyer arguing on behalf of SFFA, reveals the underlying cruelty of Blum’s goals. After Norris noted that “besides its racial statistics” Harvard is “not diverse at all,” citing racial disparities and the fact that only 9 percent of its incoming class are conservative, Kagan asked, “Are you saying now that there is an interest and a compelling interest in racial diversity among other kinds of diversity? I mean, whether Harvard should be more socioeconomically diverse, it probably should be. I mean, is there an interest in racial diversity?”

Norris fumbled a bit, before answering no — diversity is not a compelling interest to justify race-conscious admissions. Kagan pushed him: “The premise of your argument is that even if race-neutral criteria could not achieve the object, Harvard can’t use race-conscious criteria. And that must be because you think it’s just not important enough, isn't that right?” Norris responded that he disagreed and noted that if “Harvard just turned off race in its admission process,” the College would still have 6 percent African Americans, 9 percent Hispanic, so 15 percent underrepresented minorities within its student body (he didn’t mention Indigenous students).

Kagan asked, “So you think that’s good enough? But how about if it were 2 percent? I mean, the nature of your argument is that it doesn’t matter. That’s what the nature of your argument is.”

ScrutinyFront Middle Feature