The Rise and Fall of Affirmative Action - Source: New Yorker

With a lawsuit against Harvard, Asian-American activists have formed an alliance with a white conservative to change higher education.

In 2012, Michael Wang, a senior at James Logan High School, in the Bay Area, was confident that he had done enough to get into one of his dream schools: Harvard, Yale, Stanford, and Princeton. He had the kind of G.P.A.—4.67—that looks like a typo to anyone older than thirty-five. He had aced the ACT and placed in the ninety-ninth percentile on the SAT. But Wang didn’t want to be seen merely as a bookworm—he was an accomplished member of the speech-and-debate team, and he had co-founded his school’s math club. He played the piano and performed in a choir that sang with the San Francisco Opera, and at Barack Obama’s first Inauguration.

The following spring, Wang was rejected from all the Ivy League universities he had applied to, except the University of Pennsylvania. (He made the wait lists at Harvard and Columbia, but was eventually turned down at those schools, too.) He was devastated, and wondered what more he could have done. Then he started thinking about all the impediments that no amount of hard work could overcome. Some of his classmates who had got into these schools, he thought, had less impressive credentials than his. But they were Hispanic and African-American. Had he been rejected because he was Asian?

Wang had always been told that Asian students in America were held to higher standards than everyone else. When he was young, his parents suggested that, if he wanted to go to a school like Harvard, he would have to outwork other Asian students. Swearing off television became a competitive advantage. In high school, his friends, who were predominantly Asian, believed that their race would work against them in the admissions process. Wang knew students whose families were mixed Asian and white who identified themselves as white on their applications, lest they be lumped in with all the other overachievers. The Princeton Review has, in the past, encouraged students of Asian descent to try to conceal their cultural identity. There are admissions-counselling companies, like Asian Advantage, in the Bay Area, that help students strategize their extracurricular activities (less piano and tennis), and others, like Ivy Coach, based in New York City, that promise to make students “appear less Asian” in their application materials.

Wang found this notion troubling. “How are you not supposed to be proud of who we are?” he asked me, in August, when I met him for lunch in San Francisco, where he works as a paralegal. His office is in the financial district, on the border of Chinatown. As we walked a few blocks to get noodles, passing from one San Francisco into another, he recounted his story.

In 2013, Wang began talking to family friends familiar with the law about his options. That June, he filed a discrimination complaint against Yale, Stanford, and Princeton with the Department of Education’s Office for Civil Rights. (He did not include Harvard and Columbia, since he was still on the wait lists there.) At first, he said, he hoped to “reap the benefits” himself—never mind that these schools were unlikely to reconsider an applicant who was trying to sue his way into the freshman class. But Wang came to see the issue as one of fairness, and he thought that perhaps he could help someone in the future. He studied the history of Asian-Americans and college admissions, and eventually came across the work of a conservative activist named Edward Blum, a financial adviser who has devoted his life to overturning race-conscious laws. Blum has shown a talent for pinpointing vulnerabilities in civil-rights law and attacking them in the courts. Wang and Blum spoke on the phone and they agreed to keep in touch. At the time, Blum was heading a nonprofit called the Project on Fair Representation, and was working with Abigail Fisher, a white student who, in 2008, had been rejected by the University of Texas at Austin. The school guaranteed admission to Texas students in the top ten per cent of their high-school class; from those under the threshold, like Fisher, admissions officers chose applicants through a process that considered, among other criteria, race and family background. Fisher sued the university, alleging that this policy was unconstitutional. Blum helped assemble, and cover the bills for, Fisher’s legal team. (The Supreme Court eventually ruled against Fisher, in 2016.)

Blum, and other activists, gave a narrative shape to Wang’s grievance. Asians were being discriminated against in the college-admissions process, and among those taking their spots were the primary beneficiaries of affirmative action, like African-Americans and Hispanics.

Wang’s curiosity about the process has helped launch a chain of events that might ultimately alter the course of civil-rights history. In 2013, as Wang was preparing to go to college—he attended Williams—he was interviewed by officials at the Department of Education. Colleges generally say little about their decision-making processes, describing them as a “secret sauce” that makes each school distinct. (Being vague also protects them from legal liability.) But one of the investigators looking into Wang’s claim confirmed that many Ivy League admissions officers had, in the past, talked stereotypically when evaluating Asian-American applicants. “Oh, typical Asian student. Wants to become a doctor. Nothing special here,” Wang said, paraphrasing what the investigator had relayed to him. (The Office for Civil Rights did not make a judgment in Wang’s case.)

Few people knew about Wang’s complaint until July, 2014, when he wrote an op-ed for the San Jose Mercury News describing the “anger” that Asian-Americans felt about being held to unfair standards. Wang’s article and his case were picked up by Chinese-immigrant newspapers and social media. Though Wang professes to be in favor of affirmative action, the most egregious aspects of his story captivated a small but vocal network of Chinese-Americans, who had heretofore shown little interest in American politics. Spurred by WeChat, a Chinese social-media platform, and encouraged by what they saw as the next great civil-rights struggle, they threw their support behind Wang and other Asian-American students penalized by the college-admissions process.

These activists found an ally in Blum. That November, Blum filed a federal lawsuit against Harvard University. The suit advances a surprising line of argument. Instead of claiming that the process is unfair to whites—an increasingly tough sell, at least in the media—the suit suggests that affirmative action, a mechanism intended to help minorities such as Asian-Americans, is actually being used to harm them. Blum hopes for a college-admissions process in which there would be no race or ethnicity boxes to check, and students would be evaluated more or less anonymously. To bring the suit, Blum created Students for Fair Admissions, a membership organization roughly modelled on the A.C.L.U. and the N.A.A.C.P., which sued the university on behalf of its members, some of whom were students with stories similar to Wang’s.

S.F.F.A. alleges that Harvard attempts to curate the racial breakdown of each incoming class. In order to achieve classes that, in recent years, have been roughly half white, twenty per cent Asian-American, fifteen per cent black, and twelve per cent Hispanic, Harvard routinely gives Asian-American applicants—who often excel when it comes to standardized testing, grades, and extracurricular activities—lower marks in the more subjective “personal” category, which includes everything from the student’s admissions essay to letters of recommendation and alumni interviews. If S.F.F.A. can prove that Harvard engages in “balancing,” which is illegal, the school could be forced to remove any considerations of race and ethnicity from its admissions process. Harvard maintains that its process is a “whole person review,” in which applicants aren’t reduced to a single factor, whether it’s academic excellence or their racial and ethnic identity. “We do not discriminate against applicants from any group,” Rachael Dane, a Harvard spokesperson, told me. “I don’t use the term ‘balance,’ because we don’t balance.”

After the Harvard filing, Blum gave talks at Asian-American community functions, and at any event that would have him. He found people who were eager to join his movement. On October 15th, the U.S. District Court for the District of Massachusetts, in Boston, will begin hearing S.F.F.A.’s suit. The day before, organizers are planning to hold a rally outside the courthouse, to be attended by predominantly Chinese-American anti-affirmative-action activists from throughout the country. (S.F.F.A. has also filed a suit against the University of North Carolina–Chapel Hill, alleging that its race-conscious admissions policy is unlawful, though no trial date has been set.)

This alliance, between a white conservative tactician and a comparatively inexperienced base of recently energized Asian-American activists, has complicated the traditional optics of the civil-rights and diversity debates. Winifred Kao, a lawyer at the Asian Law Caucus, said that Blum was not “a champion for Asian-Americans, by any means.” Rather, he was “using Asian-Americans as a wedge, as we’ve often been used, throughout our racial and civil-rights history.” Many of Blum’s critics point to a video in which he admits that he “needed” Asian plaintiffs to pursue this latest challenge to affirmative action. “I feel that the Asian-American student population and community is being used as a pawn in a chess game, around limited resources in élite sectors of American society,” Prudence Carter, a sociologist and the dean of the Graduate School of Education at the University of California, Berkeley, told me. “I think that the entire world can see that.”

If Blum’s suit is successful, the effect will be felt far beyond Harvard. It will limit the freedom that academic institutions have often had in pursuing their unique educational missions. The lawsuit, and Blum’s efforts to change the cultural conversation surrounding diversity and discrimination, could end affirmative action in higher education as we know it.

Affirmative action has never been adequately defined. Historians often trace the concept to Franklin Roosevelt’s New Deal provisions insuring equal-employment opportunities, regardless of “race, color, or creed.” The term first appeared in a policy context in the National Labor Relations Act of 1935, which allowed workers to unionize without fear of retribution. Employers who were found to have discriminated against an employee were required to rehire him, or to make amends, through “affirmative action.” Harold Ickes, the Secretary of the Interior under Roosevelt, went one step further, establishing a quota system to insure that Public Works Administration projects employed a fixed percentage of African-Americans. (Many local officials refused to comply.) Throughout the forties and fifties, there was a broad, top-down drive to build fair-employment practices and to integrate institutions like the armed forces and public schools. But the first time the government used the term in relation to race was in March, 1961, when John F. Kennedy signed Executive Order 10925, which required government contractors to “take affirmative action” to help realize the nation’s goal of “nondiscrimination.” (Hobart Taylor, Jr., a young lawyer who helped draft the order, chose the phrase for its alliterative quality. We could all be debating “positive action” instead.)
The premise of affirmative action was that, for African-Americans, the status quo was innately negative. To act affirmatively was to acknowledge the history of denigration and inequity that continued to define black life, and to come up with ways in which the future could be different. But Kennedy’s efforts didn’t prescribe any specific remedies. When, a few years later, in a new executive order, Lyndon Johnson reiterated the commitment to affirmative action, he didn’t have anything specific in mind, either, though one draft memorandum, dated January, 1964, listed twenty-five possible interpretations, from eliminating segregated smoking areas and cafeterias to publicizing equal-employment policies. (In 1967, Johnson amended his order to ban discrimination on the basis of sex. In the affirmative-action debate, the gains for women in education and in the workplace aren’t often considered.)

In the face of government slowness, affirmative action came to be defined by the judicial system. In 1978, the Supreme Court considered a case brought by Allen Bakke, a white man who believed that, if he had been a minority, he would have been admitted to the medical school at the University of California, Davis. Bakke’s claim of “reverse discrimination” galvanized the long-simmering resentment that some whites felt in the wake of the civil-rights era. Justice Lewis Powell was the case’s pivotal figure; he joined four Justices in striking down Davis’s admissions policy, which included a quota for underrepresented minorities. But he joined the other four Justices in upholding affirmative action as permissible under the law, singling out for praise Harvard’s admissions system, which regarded race or ethnicity as a “plus” rather than as a determining factor. Unlike his colleagues, who largely supported affirmative action as a corrective to historical injustice, Powell based his decision on the principle of “diversity.” This was not the original impulse of the civil-rights movement—the presence of African-Americans at the lunch counter wasn’t about enriching the environment of Woolworth’s. Powell’s compromise changed the terms of affirmative action. Admissions policies could no longer acknowledge the past; they could only advance a more diverse future. Diversity eventually became a self-rationalizing principle, and produced an entire industry of counselling and compliance.

Throughout the seventies, higher education and business were expansive in their duty to act affirmatively—an effort supported by both Republicans and Democrats. But there were also seeds of backlash, which drew on the accusations of reverse discrimination that had animated Bakke’s grievance.

In the early nineties, Glynn Custred, an anthropologist at California State University, Hayward, who had told the Washington Post that affirmative action was like “reversed Jim Crow,” met Tom Wood, a Ph.D. recipient who believed that affirmative action was the reason he could not find a professorship. Together, they drafted Proposition 209. Known as the California Civil Rights Initiative, Prop. 209 would ban affirmative action in educational settings. For the first time, American voters were given the chance to weigh in on large-scale affirmative-action policies. Prop. 209 passed in November, 1996.

The effect on the enrollment of people of color was immediate. Between 1995 and 1998, offers of admission to African-Americans at Berkeley and U.C.L.A. declined by fifty-five per cent. Pedro Noguera, a professor of education at U.C.L.A., was a faculty member at Berkeley at the time. “You end up with the University of California at Berkeley or U.C.L.A. looking more like Ole Miss, where most of the black students are athletes, not there for academic reasons,” he told me.

In the following twenty years, a wave of ballot initiatives inspired by Prop. 209 were successful, in Washington, Michigan, Nebraska, Arizona, and Oklahoma. (In addition, affirmative action was outlawed in Florida, through an executive order, and in New Hampshire, through legislation.) In some states, like Texas, California, and Florida, colleges and lawmakers explored other ways to maintain racial diversity, such as considering socioeconomic factors in admissions decisions, or creating programs to guarantee admission to public colleges for the top graduates from each high school. But the most powerful defense of affirmative action came, once again, from the courts. In 2003, the Supreme Court ruled, in Grutter v. Bollinger, involving the University of Michigan Law School, and in Gratz v. Bollinger, regarding the University of Michigan’s undergraduate-admissions policy, that educational institutions had a compelling interest in promoting diversity. Elise Boddie, a professor at Rutgers Law School, observed that the conservative challengers to affirmative action “keep losing.” “When you have Bakke, the Grutter case, and now Fisher—those are three cases where the Court, over the period of [forty] years, has affirmed the importance of diversity as a constitutional value,” she said.

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Cases like these, which involve college admissions, tend to draw headlines. But, in 2007, the Supreme Court made an important ruling in Parents Involved in Community Schools v. Seattle School District No. 1. At stake was whether a school district could use race as a “tiebreaker” when assigning students to different campuses, as a way to achieve diversity and avoid what amounted to segregated schools. The Court deemed such attempts at “racial balancing” in educational institutions to be unlawful.

The effect of this back-and-forth has been that we tend to consider affirmative action only in a narrow spectrum of activities. Nearly sixty years after Kennedy’s broad mandate, which arose out of a desire to transform society, our understanding of it—and our wrangling about it in the courts and in the media—has come down to the relatively small issue of school admissions. Even victories for affirmative action establish precedents that draw the circle of acceptable practices ever smaller.

Suspicions about the fitness and the qualifications of nonwhites didn’t begin with affirmative action. But it has become the most prominent way that these suspicions are aired, since the stakes are so clear. Life rarely seems so zero-sum as it does when we imagine that we are vying for the lone seat in the classroom.

“Affirmative action is part of a larger struggle,” Randall Kennedy, a professor at Harvard Law School, told me. “The much larger struggle is the struggle against the idea that the United States is a white man’s country. Do people of Asian ancestry benefit from that larger struggle against the notion that America is a white man’s country? Yes, absolutely.”

The origins of affirmative action assumed a racial binary of whites and blacks. “Asian-Americans often don’t have the opportunity to be complex in mainstream portrayals,” Vincent Pan, the co-head of Chinese for Affirmative Action, a San Francisco-based advocacy organization, told me. Stories of academic overachievement came to define how many outsiders understood Asian-Americans. In 1971, Newsweek praised Asian-Americans for “out-whiting the whites.” This trope of the “model minority” has proved to be a persistent stereotype, a tribute to a community that seems to work hard and complain very little. Michael Wang felt that it was only recently that Asian-Americans, long fearful of rocking the boat, had grown tired of accepting “second best.”

This past summer, I met Joe Wei, the managing editor of the World Journal, a Chinese-language newspaper with bureaus in New York, San Francisco, and Los Angeles, at a café in Manhattan’s Chinatown. Wei, who has a broad face and a gentle but assertive voice, has been a reporter and an editor at the World Journal for twenty-six years. The paper is a vital resource for new immigrants, providing information about voting, garbage pickup, and civic rights. “We’re helping them become citizens,” Wei, who was born and raised in Taiwan, told me. “We help them as a live encyclopedia.”
“Let’s start here,” Wei said, unfolding a napkin and drawing a horizontal line with a pen. He began recounting the history of Chinese people in America, beginning with westward expansion and the gold rush, in the mid-nineteenth century, when an influx of largely poor Chinese immigrants provided cheap, often indentured, labor. They were the ones who founded the Chinatowns. Wei marked a spot on the time line: the Chinese Exclusion Act of 1882, born of xenophobia, which effectively ended Chinese immigration for sixty years. And then, coinciding with the Cold War, another mark on the line: the sixties, as the United States began recruiting talented students, particularly in the sciences and math, from places like Taiwan and Hong Kong. Wei was describing people like my parents, who came from Taiwan in the early seventies, for graduate school. It was no surprise that communities like the one I grew up in were seen as the model minority—our ranks had been selected to come to America and pursue largely untroubled middle-class lives. As the Civil Rights Act of 1964 was remapping the rights of America’s minority populations, the Immigration and Nationality Act of 1965, which favored skilled labor, and attracted young science and engineering students from Asia, was reshaping who those minorities were.

Moments of crisis reminded the diverse, far-flung Asian-American community of the need to unify across lines of class, geography, and national origin. Wei added a mark at 1982, the year that Vincent Chin, a young Chinese-American man, was beaten to death in the suburbs of Detroit by two white men. They pleaded guilty to manslaughter, and were given three years’ probation and a modest fine. The lenient verdict prompted outrage and nationwide organizing, and became a turning point in Asian-American politics.

At the nineties, Wei drew a heavy vertical line. After the massacre in Tiananmen Square, in 1989, the United States began welcoming immigrants from mainland China in large numbers. The Chinese Student Protection Act of 1992 provided green cards to nearly fifty-five thousand Chinese nationals, and this influx accelerated in the two-thousands, particularly after the financial crisis spurred a desire for foreign investment. As of 2016, there were an estimated 21.4 million Asians in the U.S., approximately 4.9 million of whom were of Chinese descent. Wei said that the more recent immigrants included engineers and tech workers, among others, with enough resources to move straight to the suburbs. They have arrived at a time when China is ascendant. “They don’t know about Chinese Exclusion,” Wei said. “They don’t know who is Vincent Chin.”

Many of these immigrants can be found on WeChat, which is something like a messaging app combined with Twitter, and was introduced in China in 2011. It quickly became the primary way that Chinese people engage with the digital world. “You turn [off] your WeChat in Beijing airport. Then you turn on in J.F.K., and everything comes on,” Wei said. “You never go out of China, because everything is in WeChat.” In the past few years, researchers have grown concerned about misinformation on WeChat, which has more than a billion users. Chi Zhang, a doctoral student at the University of Southern California’s Annenberg School of Communication, told me about fake stories of Muslim terrorism, lawless sanctuary cities, and schemes to contaminate the blood supply, all designed to stoke fear among Chinese immigrants.

In October, 2013, “Jimmy Kimmel Live!” aired a brief segment that became one of the least likely geopolitical turning points ever. While asking children for their views on some of America’s biggest problems, Kimmel pointed out that China owned much of our debt. What should be done? A six-year-old said that we should kill all the Chinese. Rather than scolding him, Kimmel deferred to a late-night host’s most trustworthy tool: a bemused, knowing grin. The bit went viral in the Chinese media, where an abbreviated, translated version had Kimmel advocating genocide against Chinese people. The World Journal picked up the story. Kimmel apologized. The White House eventually had to weigh in, saying that the comments did not “reflect mainstream views of China in the United States.” Vincent Xie, who was inspired by the incident to start a WeChat account called Civil Rights, told me that it didn’t matter if Kimmel was joking. “Would he have made such a joke about African-Americans or Jews?” he asked me, in Mandarin.

Among Chinese immigrants, particularly first-generation ones, the Kimmel segment became part of a story about how liberals in this country took Asian-Americans for granted—“the sense,” Chi Zhang said, “that Chinese-Americans are sacrificed in the left agenda to achieve so-called equality for other minority groups.”

The following year, SCA-5, a bill that sought to overturn Proposition 209 and restore the consideration of race in school admissions, passed in the California State Senate. Polling data suggested that California voters were open to the bill. A survey from 2012 showed that Asian-Americans supported affirmative action by a three-to-one margin. But many Asian-Americans who had rarely participated in grassroots politics began mounting a campaign against SCA-5, which some called “Skin Color Act 5.” A post on a Web site for South Asian professionals called it “the most racist bill in the history of California.” The most fervent activism came from Chinese-Americans, who used WeChat as an organizing tool. For many lawmakers, unaware of WeChat, or the gateway effects of the Kimmel affair, this loud and aggressive opposition to SCA-5 came as a surprise. Much of the Chinese-American organizing was happening beyond the reach of mainstream media. Activists coördinated mailings to flood politicians’ offices, and staged demonstrations dramatizing their plight as an overlooked minority. In March, 2014, SCA-5 was withdrawn.

Yukong Zhao, who lives in Florida, was one of the activists. Zhao arrived in the United States in
1992, and focussed on graduate school in urban affairs and business, finding a job, his visa and citizenship, and family life. He rose through the ranks at Siemens. During the financial crisis, Zhao noticed that many Chinese families had not lost their homes. He began exploring the cultural differences between Asians and everyone else, and self-published a book on the subject in 2013. After the Kimmel incident, Zhao became more engaged. He read about SCA-5, and published an op-ed denouncing it in the World Journal. The next year, he started an organization called the Asian American Coalition for Education. Later, the issue came closer to home. He told me that his son had been a victim of discrimination: despite superlative grades and test scores, he was not accepted to a “top” college. “He has a classmate, who is Hispanic—she got admitted by Johns Hopkins but he did not,” Zhao said.

Zhao met Edward Blum through a Chinese reporter. “I noticed that when a black kid is wrongfully accused by the police, many African-American organizations stood up behind that kid,” Zhao said. “But, when Asian-American children are discriminated, no organizations stood up.” The work of conservative activists like Blum helped give context for what Zhao and others were already doing. “Asian-Americans are the most discriminated by this kind of race-based college admissions,” Zhao said. “We need to let the American society know our suffering.”

Zhao was adamant that they weren’t “tools” of Blum. On the contrary, he continued, “the complaints against Harvard really originated in the movement against SCA-5.” In 2016, Zhao got more than sixty Asian-American advocacy groups to file complaints with the Department of Justice and the Department of Education, alleging discrimination by Harvard. (The Department of Education dismissed the complaint, but the Department of Justice opened an investigation in 2017. In September, it began investigating Yale’s admissions policies as well.)

Though Joe Wei was broadly supportive of people like Zhao, he was apprehensive about what might result from their efforts. He wasn’t sure that newer immigrants understood the “history of struggle,” or the importance of diverse schools that weren’t “one hundred per cent Asian.” “I feel like, ‘Hey, stop it. Don’t push this hard,’ ” he said. “Because you don’t want to ruin everything. After all, we are latecomers. We are new to this country.”

In May, 2015, about six months after filing the lawsuits against Harvard and U.N.C., Blum went to the Bay Area to speak to the foundation arm of a small organization called the Silicon Valley Chinese Association. He paid his own way, and talked to a couple of hundred Chinese people curious about his legal strategy. There was a buffet afterward.

Blum believed that he was advancing a strong legal challenge to affirmative action, but he hadn’t yet found the kind of popular support that his movement needed. He wasn’t going to find it, he said, among his “buddies at A.E.I., Hudson, and Cato,” the conservative think tanks. At the time, the membership of Students for Fair Admissions had plateaued at “a few thousand,” he told me. After his visit to the S.V.C.A., the group’s leaders encouraged its members to spread the word. Many took to WeChat. Within three days, Blum says, about fifteen thousand people had joined S.F.F.A., crashing the organization’s Web site.

Events like these, which went largely unnoticed by the press, began to reshape how Chinese immigrants understood affirmative action. But they confirmed what researchers like Karthick Ramakrishnan, at U.C. Riverside, and Janelle Wong, at the University of Maryland, have found: although Asian-Americans consistently support affirmative action, since around 2012 support among Chinese-Americans has noticeably fallen. Wong believes that the change in Chinese-American attitudes had to do “with the spread of information and misinformation” on WeChat. Although liberal WeChat accounts, like one called Chinese American, have emerged in response to the popular conservative ones, they are outnumbered.