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Asian-American Affirmative-Action Lawsuit Against Harvard Has Always Been On Behalf Of Mediocre White People

If white supremacists cared about Asian-American students, they'd be fighting to hold Harvard accountable to Bakke, not destroy it.

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(Photo by Mark Wilson/Getty Images)

Today, the federal trial gets underway in Students for Fair Admissions versus Harvard University. It’s the lawsuit brought on behalf of Asian-American students, alleging Harvard’s affirmative-action policies are discriminatory. It’s a case designed specifically to kill affirmative action.

This is a case where two things are true at the same time. Thing one doesn’t get enough play: The Asian-American plaintiffs have an excellent and under-appreciated case against Harvard. The raw numbers make a compelling story for Asian-American excellence. An internal Harvard study revealed that if the university looked only at academic factors, Asian-Americans would make up 43 percent of its class. That’s more than twice as much as the 20 percent Asian-American that their classes usually represent.

Thing two that is true: The legitimate complaints of the Asian-American plaintiffs are being used as a tool by white supremacists who do not care about their concerns. The group “Students for Fair Admissions” was founded by Ed Blum, a conservative white guy who has made attacking social programs that benefit African-Americans into an entire career. Pretending Ed Blum cares about Asian-American students is like saying Portuguese slave traders were doing it to save native South Americans from hard labor.

Blum does not want 43 percent of the Harvard class to be made up of Asian-American students. Instead, he wants Harvard to stop using race as one factor among many, but to keep using all the other non-academic factors. There’s no Ed Blum lawsuit trying to get Harvard to stop using legacies as a factor in admissions, there’s no lawsuit trying to get Duke to stop using a fundamentally sound jump-shot as a factor in admissions, there’s no lawsuit trying to get Liberty to stop using pastor recommendations as a factor in admissions. There’s only the ongoing, generational effort to rinse black people out of higher education.

It’s too bad, because Harvard University almost certainly discriminates against Asian-American applicants in a number of ways. Foremost is the fact that because so many Asian-Americans have absolutely outstanding test scores, good luck getting in if you don’t. If there is an abundance of “crazy rich Asians” with perfect SAT or ACT scores, don’t try being the Vietnamese-American whose parents were refugees who merely scored in the top 15th percentile while working two jobs and helping your parents with rent. Best hit up Rutgers if you didn’t make the mathlete team.

You can tell Blum’s lawsuit is disingenuous, because it — and the media coverage of it — is hyper-focused on “ending” affirmative-action and calling into question “race-based preferences.” It’s looking at only one prong of Bakke and trying to gut it.

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The legal underpinning of affirmative-action in college admissions rests on two straight-forward principles. The Supreme Court case, Regents of the Univ. of Cal. v. Bakke, held that colleges and universities could use race as “one factor among many” in their admissions process, and that colleges and universities could not use a quota system to fill their classes.

For the class of 2022, Harvard University received 42,749 applications. It admitted 1,962 people. The 4.59 percent admissions rate is a record low for the school. The forces against affirmative-action would have you believe that they want those roughly 2,000 spots to go to people based on “merit,” and then define “merit” to only mean a student’s grade point average and standardized test score.

Such an admissions policy would be stupid and those people know it. That’d be like filling out a basketball team with only the five people who jumped the highest and performed the best on a three point shooting skills contest.

No matter what those 4.59 percent, and their parents, want you to think, getting into Harvard or any other top university is not all about “merit” so closely and illogically defined. The 4.59 percent who get are not objectively “smarter” than the other 40,787 applicants. A school with an overabundance of choice is going to look at any number of factors in order to come up with a first year class. A totally non-comprehensive list of factors could include: quality of high school, improvement over time, leadership opportunities, engagement with your civic or religious community, teacher recommendations, athletic prowess, artistic prowess, personal essay, geographic diversity, international diversity, alumni connections, criminal records, likelihood of matriculation, likelihood of dropping out of Harvard to start your own multi-billion dollar company, and also probably whether your Instagram is covered with Confederate Flags.

Perfect test scores are nice… but they are “one factor among many.” One would hope that Harvard would turn down a Brett Kavanaugh type: a kid with sterling academic credentials and a propensity to go to gang rape parties, if they had credible information about the latter.

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No honest person can say that admissions to top universities is solely about academic merit, whether those universities consider an applicant’s race or not. And no decent person would want them to be. If you can not see the “merit” of an applicant with a middling GPA who happens to be a world-class pianist, or the “merit” of an applicant who performed merely decently on a standardized test she prepared for under the hallway light at the homeless shelter, then your definition of “merit” makes you unworthy of admission to the Harvard Extension School, much less the undergraduate college.

A lawsuit designed to help Asian-American students would be looking at the second prong of Bakke, and would be trying to uphold it. If Harvard is in violation of the law, it’s not because it uses race as a factor, but because there seems to be an illegal “quota” on the number of Asian-American students it admits. Harvard’s class represents about the same percentage of Asian-Americans now as it did in the 1990s. That’s despite the fact that the Asian-American population in the United States has grown by 72 percent since 2000. Harvard seems to be keeping its Asian-American population “stable,” and when you look at the disgusting ways some involved with Harvard admissions have “rated” Asian-American applicants, it sure seems like they’re using an unspoken quota system to do it.

This should be a point-and-click violation of Bakke. You can easily uphold the principles of affirmative-action, while finding Harvard guilty of imposing a racial quota. It’s really not hard.

If you held Harvard to the standard in Bakke, then it would have to stop holding race against Asian-American students. But if you overturn Bakke, then Harvard can just look at the factors that help white students. Which outcome do you think Blum, and the white-supremacist-industrial complex, wants?

There are a bunch of academically mediocre privileged white students who get in over an academically stellar Asian-American students. If you take out race, but leave all the other non-academic factors, those factors generally benefit white students over all others, including Asian-Americans. White students are more likely to be legacies, and they’re more likely to be connected with alumni who can write powerful recommendation letters. They’re more likely to have access to schools that promote their excellence in non-academic endeavors, and more likely to have parents who can take them from “seems to like music” to “world-class pianist” status.

Blum doesn’t want the white kids to lose out. He wants them to get in over an academically mediocre African-American student. Some black kid who battled food insecurity and failing schools and used books to get almost the same score as a white kid who took two hours off from Fortnite every weekend to be driven to his test prep tutor.

Blum is probably going to win. If not in district court this week, then when the case invariably gets appealed to the Supreme Court. Instead of upholding precedent in Bakke, the Court will likely overturn it. The hard-right majority opinion will probably be written by Clarence Thomas, a man whose entire career has been devoted to pulling the ladder up behind him, then admonishing people who can’t scale the cliff.

It’ll be a bad day for African-Americans, Latinos, and white women — who are actually the primary beneficiaries affirmative-action style policies in the employment context, but don’t seem to know it.

But it won’t be a good day for Asian-Americans. You can’t make a deal with white supremacists and come out ahead. Without Bakke, all of the “race-neutral” ways universities use to neg Asian-American applicants will still be in place. Blum and his cohort will have an important victory over black and brown people. Asian-Americans will still be trying to out-compete all of the other Asian-Americans out there for the limited number of spots not already earmarked for white kids who have the right connections.

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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