South-Asian families value education
Ask anyone in the South-Asian American diaspora what accounts for our success and why we are often referred to as the “model minority community,” and the answer is that we place high value on education.
69% of Indian American adults have a four-year college degree (East Asians and whites have rates of 51% and 30% respectively).
However, is America’s changing political climate and demographics endangering our access to higher education? Even though we are a clear minority in the U.S., is our educational and financial success leading to discrimination against us?
According to Students for Fair Admissions (SFFA), the answer is a definite yes. SFFA alleged that Asian students are discriminated against in the college admissions process, and they sued Harvard University and the University of North Carolina, claiming that their affirmative action programs are unfair to Asian American students.
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Diversity in America
In recent years there has been a real pushback against not just affirmative action programs in educational institutions but also against all kinds of Diversity, Equity, and Inclusion (DEI) policies by right-leaning political leaders. DEI policies seek to promote the fair treatment and full participation of all people, particularly groups who have historically been underrepresented or subject to discrimination based on identity and disability; but in this highly charged election season, the Republican Party has taken a clear stand against any such policy initiatives.
In states run by Republican majorities, there is an active move to limit diversity, equity, and inclusion initiatives. Given this polarized atmosphere, the question before the South-Asian community is this – are we going to stand with other fellow minorities to support them in their fight for equality and fairness?
At a 23rd October Ethnic Media Services panel speakers discussed the issue, “Diversity- Are We Moving Forward or Backward?” They gave an overview of how recent efforts to overturn affirmative action in higher education are affecting the admission process for minority students.
Niyati Shah, Director of Litigation at Asian Americans Advancing Justice explained how two recent landmark cases, SFFA v Harvard and SFFA v University of North Carolina, have changed the legal landscape of affirmative action. Now, race cannot be considered a factor while evaluating a student’s application for admission (an exception was made for military institutions). Shah explained that according to these two judgments, college admissions will be a zero-sum game, meaning that by granting admission to one person, there is a resultant loss for another.
In Shah’s view “this concept is based on a very faulty premise” because it doesn’t account for variations in the applicant pool from year to year; advantaging one student doesn’t necessarily place another student at a disadvantage, because each year there is variation in the percentage of minority representation.
Controversial SFFA Decision
In June 2023 the Supreme Court ruled in Students for Fair Admissions, Inc. v President and Fellows of Harvard College (SFFA v. Harvard) that race can no longer be considered a factor in university admissions, thereby undoing the affirmative action policy which had been in place since the 1960s at colleges and universities. In the majority opinion, Justice John Roberts held that affirmative action or race-based college admissions programs violate Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment the 14th Amendment, thereby reversing established precedent.
Legal Background
Since the 1960s, a student’s race has been one of many factors that Harvard College used as a factor in evaluating applications for admission. For more than 40 years the Supreme Court had acknowledged and repeatedly affirmed in various cases that such affirmative action programs were legal and justified.
In 1978 in the case of Regents of the University of California v Bakke the court held that a university’s admissions criteria which used race as a definite and exclusive basis for an admission decision violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. The plaintiff in the case was a white man who presented evidence that his grades and test scores surpassed those of many minority students who had been accepted for admission to medical school at the University of California, Davis. Bakke contended that he had suffered “reverse discrimination” based on race and that this was in violation of the Equal Protection Clause of the Fourteenth Amendment and contrary to the Civil Rights Act of 1964.
The Supreme Court, in a highly fractured ruling (six separate opinions were issued), agreed that the university’s use of strict racial quotas was unconstitutional and ordered that the medical school admit Bakke, but it also contended that race could be used as one criterion in the admissions decisions of institutions of higher education. Even though the court rejected the argument in support of quotas, it left the door open for race to be used as a criterion of consideration among many in admissions.
Race-conscious admissions
Again in 2003, Grutter v Bollinger upheld that the use of an applicant’s race as one factor in an admissions policy of a public educational institution does not violate the Equal Protection Clause of the Fourteenth Amendment if the policy is narrowly tailored to the compelling interest of promoting a diverse student body, and if it uses a holistic process to evaluate each applicant, as opposed to a quota system.
In 2013, in Fisher v University of Texas at Austin, (referred to as Fisher I) and in 2016 in Fisher v University of Texas at Austin (referred to as Fisher II) the court held that the race-conscious admissions program in use at the University of Texas are lawful under the Equal Protection Clause and that race can be one of many factors considered in college admissions as a critical means of creating diverse campus communities that benefit all students.
Race as a negative
While overruling all previous cases through the judgment in the SFFA case, the majority judgment written by Chief Justice Roberts, held that “the risk is that race would be used not as a plus, but as a negative—to discriminate against those racial groups that were not the beneficiaries of the race-based preference.
A university’s use of race, accordingly, could not occur in a manner that “unduly harm[ed] non-minority applicants.” It went on to say that Harvard’s admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue. To achieve the educational benefits of diversity, respondents measure the racial composition of their classes using racial categories that are over-broad (expressing, for example, no concern whether South Asian or East Asian students are adequately represented as “Asian”); arbitrary or undefined (the use of the category “Hispanic”); or under-inclusive (no category at all for Middle Eastern students). The unclear connection between the goals that respondents seek and the means they employ preclude courts from meaningfully scrutinizing respondents’ admissions programs.”
The judgment continued that the “respondents’ race-based admissions systems also fail to comply with the Equal Protection Clause’s twin commands that race may never be used as a “negative” and that it may not operate as a stereotype. The First Circuit found that Harvard’s consideration of race has resulted in fewer admissions of Asian-American students. Respondents’ assertion that race is never a negative factor in their admissions programs cannot withstand scrutiny. College admissions are zero-sum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.”
Continuing focus on diversity despite SCOTUS ruling
At the EMS discussion, Liz King of the Leadership Conference on Civil and Human Rights explained that even before the SFFA judgment, “colleges and universities have not adequately represented the diversity of talent and skills found across our nation. While the Supreme Court has erected new barriers to college access, college and university leaders and policymakers are not off the hook.”
She added that “barriers to equal opportunity in higher education are found in decisions made throughout the system.” In her view opponents of racial progress overstate the scope of the Supreme Court’s decision in the SFFA case, and that “we should take this judgment as a wake-up call, a call to action for everyone to double-down, take new action to achieve the national imperative of racial equity and diversity in higher education.”
Changing diversity on college campuses
Even though it’s only been a year since the Supreme Court struck down affirmative action, the adverse effects of the SFFA judgment on some college campuses are becoming evident. Data collected by MIT demonstrates that enrollment of Black, Hispanic, Native American, and Pacific Islander students has dropped from 31% to 16%; Asian American student enrollment has gone from 41% to 47%.
According to Inside Higher Ed, “the impact of the ruling on the demographics of selective colleges has been harder to ascertain.” Bryan Cook, the director of higher education policy at the Urban Institute has been tracking the effects of the court’s decision over the past year. He says, “collecting and analyzing the data for this year and the next year is going to be critical to having any sense of what the future of equitable admissions looks like.”
This article was sponsored with a fellowship by AAAJ-AAJC in Washington DC.