Asian Americans at Center of Lawsuit Against Harvard

A lawsuit alleging that Harvard University’s admissions policy is biased against Asian Americans went to trial on Monday in Boston, with a decision expected to be made in three weeks by U.S. District Court Judge Allison Burroughs.

The trial stems from a lawsuit filed against Harvard by Arlington, Va.-based Students for Fair Admissions (SFFA) nearly four years ago and has implications for affirmative action policies at universities across the country.

The plaintiffs, who have the support of the U.S. Department of Justice, argue that Asian American applicants, despite having the strongest academic records of any ethnic group, are admitted at the lowest rate because of low “personal ratings.” Harvard denies any wrongdoing and Asian American civil rights groups argue that Asians are being used as a tool by opponents of affirmative action.

When the lawsuit was filed, SFFA said in a statement, “The Trump Administration in July withdrew Obama-era guidance that gave colleges a wink and a nod to racially discriminate. This means that colleges like Harvard that use racial preferences in admissions will receive more legal scrutiny …

“Between 2011 and 2016, the Obama Education Department issued seven notices advising colleges how they may legally promote racial diversity. The 1964 Civil Rights Act prohibits racial discrimination by institutions receiving federal funds. But the Supreme Court has held that colleges may consider race in admissions as long it isn’t the ‘decisive’ factor. Quotas and point systems are forbidden.

“The Obama department advised colleges to consider race as part of what it called an ‘individualized, holistic review of all applicants.’ Colleges also were urged to consider race-neutral alternatives, but that they need not be adopted if they are ‘unworkable.’ In other words, it’s the thought that counts. Many colleges took the guidance as cover to discriminate.

“Harvard’s practices will be the first to be examined under this new spotlight. Students for Fair Admissions has sued the school for discriminating against Asian American applicants and unconstitutionally favoring other minority groups …

“Consider Harvard’s ‘holistic’ admissions review. Applicants are rated on a scale of one to six on academics, extracurricular activities, athletics and highly subjective ‘personal’ criteria. Admissions officers also assign applicants an overall score …

“Asian Americans boasted higher extracurricular and academic ratings than all other racial groups. They also received higher scores from alumni interviewers. But they were rated disproportionately lower on personal criteria. Only about one in five Asian Americans in the top 10 percent of academic performers received a ‘2’ personal rating. Yet blacks and Hispanics with much lower grades and SAT scores received high personal ratings.”

Asian American Coalition for Education

Yukong Zhao, president of the Asian American Coalition for Education.

The Asian American Coalition for Education (AACE), which consists of 132 organizations nationwide, filed a civil rights complaint against Yale University over its admissions policy and received support from the U.S. Department of Education’s Office for Civil Rights. AACE also filed a complaint against Harvard.

“Unfortunately, after mounting evidence of Harvard’s anti-Asian racial discrimination was revealed by Students for Fair Admissions during its lawsuit against Harvard University, Yale University and a few other elite American universities still refused to abandon their discriminatory admissions practices modeled after Harvard,” AACE said in a statement. “Instead, they jointly filed an amicus brief on July 30, 2018 supporting Harvard’s anti-Asian discrimination under a convenient pretense of diversity …

“Asian American communities are pleased to see that the Trump Administration has taken several concrete steps to provide Asian American children with the equal protection of the laws. Last November, the U.S. Department of Justice started to investigate Harvard’s admissions practices as a direct result of the AACE-led civil rights complaint against Harvard in May 2015.

“On July 3, 2018, the Trump Administration adopted AACE policy recommendations on college admissions by rescinding seven policy documents that promoted racial balancing in postsecondary education. In August 2018, DOJ issued United States’ Statement of Interests in support of Students for Fair Admissions’ lawsuit against Harvard University. Today, we are very heartened to learn that the U.S. Departments of Education and Justice are launching a joint investigation into Yale University’s discriminatory practices against Asian American students.”

AACE President Yukong Zhao had a message for American colleges: “Please stop your unlawful admission practices and treat Asian American students fairly and lawfully. Asian Americans follow the laws, work hard, and make tremendous contributions to American economic prosperity and technological leadership in the world. Our children deserve to have equal rights to pursue their American dreams.”

Harvard’s Response

In an open letter to the university community dated Oct. 10, Harvard President Lawrence Bacow wrote, “Let me be unequivocal: The college’s admissions process does not discriminate against anybody. I am confident the evidence presented at trial will establish that fact. The Supreme Court has twice ruled on this issue and has held up our admissions process as an exemplar of how, in seeking to achieve a diverse student body, race may enter the process as one factor among many in consideration.

“During the trial, the plaintiff is likely to make provocative assertions that will receive public attention and cause some to question our admissions practices. I want all of you to know that each Harvard College student is admitted affirmatively. Each student brings something special to our community and contributes to our rich learning environment in a way that is unique.

“Harvard would be a dull place — and not likely achieve the educational aspirations we have for our students — if we shared the same backgrounds, interests, experiences, and expectations for ourselves.

“At the same time, this lawsuit has the potential to create divisions on our campus and in our broader alumni community. Reasonable people may have different views, and I respect the diversity of opinion that this case may generate. I would hope all of us recognize, however, that we are members of one community — and will continue to be so long after this trial is in the rearview mirror. What kind of community we will be, however, will be determined by how we treat each other over the next few weeks.

“As I said in my inaugural address, we must be quick to understand and slow to judge. I hope we will approach one another with mutual respect and consider all points of view, not just during the trial but also beyond it.

“Every day on our campus provides countless opportunities to learn — both from the vast intellectual resources at our disposal and from those we encounter who make this community special. We have and will continue to embrace and celebrate diversity in every possible dimension.”

Support for Affirmative Action

Asian Americans Advancing Justice – Los Angeles has gotten involved by filing papers on behalf of two prospective Asian American and Pacific Islander Harvard applicants who support affirmative action.

“Advancing Justice-LA and the students chose to get involved in this case because the vast majority of Asian Americans support affirmative action and have historically benefited greatly from the consideration of race,” said Nicole Ochi, the organization’s supervising attorney. “We refuse to be used as a wedge by outside players stoking the insecurities of newer Asian immigrants, provoking them to lash out at the very programs that have helped communities of color gain access to higher education.

“In our current political climate where racism and bigotry continue to be normalized, it is more important than ever to acknowledge that race still matters and should not be the only aspect of an applicant’s story that is excluded from consideration in the admissions process.”

In 2014, Edward Blum of SFFA orchestrated the lawsuit against Harvard. The case marks the first time that Asian Americans have been overtly recruited and placed as the primary challengers of a race-conscious admissions policy. In the Fisher, Grutter, Gratz, and Bakke cases, the plaintiffs featured were white and usually female. On Blum’s Project on Fair Representation website, the image of an Asian American student is featured next to the caption: “Were you denied admission to Harvard? It may be because you’re the wrong race.”

“Blum is the architect of a series of lawsuits designed to eliminate the consideration of race in admissions and voting, rolling back decades of progress on civil rights,” Advancing Justice-LA said in a statement. “This past summer the U.S. Supreme Court upheld the consideration of race in Fisher II as one factor in a holistic admissions policies. In their decision, the court acknowledged that the empirical data demonstrates that race-neutral alternatives do not result in the same levels of diversity and that Asian Americans do not necessarily lose out under affirmative action.

“The current case against Harvard is the first time that a private university’s affirmative action policy has been challenged and could lead to another fight before the Supreme Court. Under a Trump Administration, there is a high likelihood that the Supreme Court would rule less favorably on the issue.”

“Part of the Ivy League obsession of some Asian Americans may be rooted in a sense of insecurity about our place in America,” said Jason Fong, a high school senior and Harvard applicant. “However, we know that in real life, an Ivy League pedigree is not enough to stop people from screaming at us to ‘go home’ or to stop U.S. Immigration and Customs Enforcement from picking us up or stop TSA from racially profiling and escorting us off an airplane. Thus, if we are trying to use education as some sort of shield against discrimination, it isn’t working.

“I got involved in this case because I feel it’s important for Asian Americans like myself to ask why we aren’t doing more to fight against racism directly. And as someone who has benefited greatly from being educated in an environment with great diversity in race, class and thought, I believe diversity is a valuable criteria for any campus to embrace.”

“Opponents of affirmative action continue to peddle the myth that affirmative action hurts Asian American students by placing quotas on their admissions into elite colleges in favor of African American and Latino students. This is an absolute lie,” said Ochi. “Quotas, in fact, have been unconstitutional for decades.”

Advancing Justice-LA and the students sought to join the case as special “amicus plus” status along with the Lawyers’ Committee for Civil Rights Under Law, Lawyers’ Committee for Civil Rights and Economic Justice, and pro bono counsel Arnold & Porter, who represent a diverse group of Asian, African American, Latino, and Native American prospective and current Harvard students.

With “amicus plus” status, the students in this case will have an opportunity to file an amicus brief at any dispositive juncture in the case, participate in oral argument, and submit evidence, which greatly amplifies the students’ voice beyond typical amicus standing.