Why the Affirmative Action Case Against Harvard Isn’t Actually About Fair Treatment for Minority Students

Yuvraj Joshi
Updated
It could have implications across the country.

In this op-ed, Yuvraj Joshi, human rights lawyer and doctoral researcher at Yale University, looks at what's at stake in Edward Blum's affirmative action lawsuit against Harvard University.

Edward Blum’s latest attempt to end affirmative action goes to trial this week. Blum, a non-lawyer responsible for orchestrating multiple anti-affirmative action lawsuits, is the president of Students for Fair Admission, an organization with the mission, he told The Washington Post, "to eliminate the use of race and ethnicity in college admissions. I believe his goal is to shift the way America views affirmative action, from a practice that benefits racial minorities to one that harms them. His means: Asian Americans.

Blum brought Abigail Fisher’s unsuccessful case against the University of Texas Austin before the Supreme Court. Yet, a white woman with mediocre grades wasn’t the ideal plaintiff to claim unfair admissions practices. Blum is now relying on undisclosed Asian American plaintiffs. In doing so, he is tapping into the “model minority” stereotype that portrays Asian Americans as high achieving, making their exclusion for elite universities seem doubly unfair.

“I needed Asian plaintiffs . . . so I started . . . HarvardNotFair.org,” Blum said, according to Harvard's court filing, about starting Students for Fair Admissions, a group claiming that Harvard’s admissions program discriminates against Asian Americans. In court papers, Blum alleges that Harvard’s admissions practices have “disproportionately negative effect on Asian Americans” compared to white applicants.

Harvard has denied any intentional discrimination, pointing out that the percentage of Asian-Americans admitted has increased by 29 percent in the last 10 years and calling the 2013 report that Blum cites "preliminary and incomplete."

For his part, Blum pins the blame for any disadvantage Asian Americans experience on affirmative action. If there was no consideration of race in admissions, he argues, more Asian Americans would be admitted to Harvard. The part he leaves out is that the consequences of that may be far fewer Black, Latinx, and Native American applicants.

I believe Blum is using Asian Americans to invert the common understanding of affirmative action as a practice that benefits racial minorities. This strategy seems designed to serve two purposes.

One is to bolster opposition to race-sensitive admissions by fueling sympathy for, and resentment among, unsuccessful minority applicants. Presumptively high-achieving minorities are more appealing plaintiffs than mediocre white applicants. And, although surveys show the majority of Asian Americans support affirmative action programs, making Asian Americans out to be the victims may enlist new allies in the battle against affirmative action.

The other reason for focusing on Asian Americans may be to erase the impression of racial hostility and resentment against African Americans. Blum has a history of challenging laws designed to protect racial minorities, notably in the 2013 case Shelby County v. Holder that struck down vital provisions of the Voting Rights Act. Ending affirmative action has long been part of a broader conservative agenda.

Blum’s latest crusade seems to be more of the same. If Blum was truly concerned about the treatment of minority applicants, he might focus his legal challenge on the preferences granted to mainly white and wealthy “legacy” applicants. Or, he might demand that Harvard take more positive steps to ensure that implicit bias against racial minorities does not become a barrier to their admission.

Instead, Blum proposes to end all consideration of race in admissions. And focusing on Asian Americans gives certain opponents of affirmative action cover that their disdain for policies of racial consideration is not itself racially motivated.

Blum’s argument is bound to be powerful in the court of public opinion. The plight of Asian American applicants resonates beyond the traditional opponents of affirmative action and draws the sympathies of liberals concerned about implicit racial bias.

Leading up to this week’s trial, even avowed supporters of affirmative action have understandably voiced concerns about the allegations against Harvard. As law professor Nancy Leong writes, “the prospect of Harvard’s admissions office rating Asian American applicants lower on personality than other racial groups is both troubling and disheartening.” Blum may be counting on people’s legitimate concerns about racial bias to bolster his unfounded attacks on affirmative action.

Blum’s position also has enthusiastic friends on a conservative Supreme Court. Conservative justices have long invoked minority-centered arguments against affirmative action, including the claim that affirmative action itself excludes particular racial minorities.

Perhaps in anticipation of Blum’s litigation, Justice Alito charged in 2016 that UT Austin discriminates against Asian Americans and “seemingly views the classroom contributions of Asian-American students as less valuable than those of Hispanic students.” Newly appointed Brett Kavanaugh, who derided a federal affirmative action program as “a naked racial set-aside,” may similarly couch his opposition in minority-protective terms.

Should courts embrace Blum’s position, their decisions could have implications for affirmative action programs across the country. The results for efforts to integrate America’s universities would be profound and potentially devastating.

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