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Lawsuits challenge affirmative action as discriminatory against Asian-Americans

Lawsuits challenge affirmative action as discriminatory against Asian-Americans

Federal Court Complaints filed against Harvard and UNC-Chapel Hill

A newly formed group, the Students for Fair Representation, has filed suit challenging racial and other affirmative action preferences at Harvard and the University of North Carolina at Chapel Hill.

The lawsuits are brought by the same law firm that represented Fisher in Fisher v. Texas, in which the Supreme Court ruled that affirmative action plans were subject to strict scrutiny in applying the Equal Protection Clause:

The parties asked the Court to review whether the judgment below was consistent with “this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U. S. 306 (2003).” Pet. for Cert. i. The Court concludes that the Court of Appeals did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 305 (1978) (opinion of Powell, J.). Because the Court of Appeals did not apply the correct standard of strict scrutiny, its decision affirming the District Court’s grant of summary judgment to the University was incorrect. That decision is vacated, and the case is remanded for further proceedings.

In particular, whether affirmative action and diversity goals discriminate against Asian-Americans has been a hot political issue, as this report from last spring indicates:

Nearly 20 years after California became the first state to ban the use of race and ethnicity in college admissions, a proposal to reinstate affirmative action has sparked a backlash that is forging a new divide in the state’s powerful Democratic Party and creating opportunity for conservatives.

The debate is unfolding in the nation’s most populous and most ethnically diverse state as an unrelated U.S. Supreme Court ruling upholds voters’ rights to decide whether racial considerations should factor into university selections.

The California proposal would allow voters to rescind their state’s affirmative action ban, but unexpected pushback from families of Asian descent who mobilized through Chinese-language media, staged rallies and organized letter-writing campaigns has all but killed the measure this year.

An Op-Ed in The Harvard Crimson weighed in:

No one wants to talk about Asian-Americans in the affirmative action debate. With the recent ruling that upheld Michigan’s ban on affirmative action, the divisive pushback by Asian-American political leaders and interest groups regarding the reinstatement of affirmative action in California, and the unsettling “Harvard Not Fair” campaign that seeks to capitalize on the insecurities of rejected applicants based on race, one thing is clear: Asian-Americans are left to converse in the backroom during any nationwide discussion on affirmative action.

As Asian-Americans, our placement in the affirmative action debate puts us at an unfair disadvantage against everyone but ourselves. Why is this? Because people on both sides of the affirmative action debate oversimplify the Asian-American experience to suit their needs. Asian-Americans are cast as the “unexplained minority exception” in the cost-benefit analysis of who “wins” and “loses” in affirmative action.

From the Students for Fair Representation Press Release:

Today, the Project on Fair Representation announces the filing of two lawsuits challenging the racial preference admissions policies of Harvard and the University of North Carolina-Chapel Hill.

Read the complaint against Harvard

Read the complaint against UNC-Chapel Hill

The plaintiff in both lawsuits—Students for Fair Admissions (SFFA)— is a newly-formed, nonprofit, membership organization whose members include highly qualified students recently denied admission to both schools, highly qualified students who plan to apply to both schools, and their parents.

The Harvard lawsuit alleges the university is engaging in a campaign of invidious discrimination by strictly limiting the number of Asian Americans it will admit each year and by engaging in racial balancing year after year. These discriminatory policies in college admissions are expressly forbidden by the Fourteenth Amendment and federal civil rights laws.

Students for Fair Admission’s complaint highlights data and analysis that strongly suggests that white, African-American, and Hispanic applicants are given racial preferences over better qualified Asian-Americans applying for admission to Harvard.

Additionally, the complaint demonstrates that Harvard is not in compliance with the new “strict scrutiny” standards articulated in 2013 by the U.S. Supreme Court in Fisher v. University of Texas at Austin. The Fisher opinion unambiguously requires schools to implement race-neutral means to achieve student body diversity before turning to racial classifications and preferences.

The UNC-Chapel Hill lawsuit alleges that, like Harvard, the University is not in compliance with the new Fisher strict scrutiny requirements. Students for Fair Admissions explains in its complaint that UNC has admitted in an amicus brief it submitted to the Supreme Court in the Fisher case that the school can maintain, and actually increase, racial diversity through race-neutral means if it ends its race-based affirmative action policies. Students for Fair Admissions argues that this compels the university to end its racial classifications and preferences and adopt some combination of race-neutral policies instead.

The discrimination against Asian-Americans at Harvard and both schools’ blatant failure to comply with recent Supreme Court directives with regard to race preferences are emblematic of the behavior of the vast majority of competitive colleges throughout the country. Because of this, Students for Fair Admissions asserts in its complaints that racial classifications and preferences in college admissions are inadministratable; a violation of the Fourteenth Amendment and federal civil rights laws; and must be ended as a matter of policy and law.

The complaints focus heavily on the alleged implicit discrimination against Asians, likening it to past discrimination against Jews, particularly at Harvard:

5. Worse still, Harvard is not even pursuing its claimed “critical mass” interest. Rather, even under governing Supreme Court precedent, Harvard is violating Title VI for at least four reasons. First, Harvard is using racial classifications to engage in the same brand of invidious discrimination against Asian Americans that it formerly used to limit the number of Jewish students in its student body. Statistical evidence reveals that Harvard uses “holistic” admissions to disguise the fact that it holds Asian Americans to a far higher standard than other students and essentially forces them to compete against each other for admission. There is nothing high-minded about this campaign of invidious discrimination. It is “illegitimate racial prejudice or stereotype.” Croson, 488 U.S. at 493.

6. Second, Harvard is engaging in racial balancing. Over an extended period, Harvard’s admission and enrollment figures for each racial category have shown almost no change. Each year, Harvard admits and enrolls essentially the same percentage of African Americans, Hispanics, whites, and Asian Americans even though the application rates and qualifications for each racial group have undergone significant changes over time. This is not the coincidental byproduct of an admissions system that treats each applicant as an individual; indeed, the statistical evidence shows that Harvard modulates its racial admissions preference whenever there is an unanticipated change in the yield rate of a particular racial group in the prior year. Harvard’s remarkably stable admissions and enrollment figures over time are the deliberate result of systemwide intentional racial discrimination designed to achieve a predetermined racial balance of its student body.

7. Third, Harvard is failing to use race merely as a “plus factor” in admissions decisions. Rather, Harvard’s racial preference for each student (which equates to a penalty imposed upon Asian-American applicants) is so large that race becomes the “defining feature of his or her application.” Grutter, 539 U.S. at 337. Only using race or ethnicity as a dominant factor in admissions decisions could, for example, account for the remarkably low admission rate for high-achieving Asian-American applicants. Harvard’s admissions decisions simply are not explainable on grounds other than race. High-achieving Asian-American applicants are as broadly diverse and eclectic in their abilities and interests as any other group seeking admission to Harvard. They compete in interscholastic sports, are members of the school band, work part-time jobs after school, travel, and engage in volunteer work just like everyone else. It is not a lack of non-academic achievement that is keeping them from securing admission. It is Harvard’s dominant use of racial preferences to their detriment.

The lawsuits hit a weakness in affirmative action as applied in the real world.

Quotas — whether explicit or implicit — are an integral part of the goal of diversity, by definition.

Lyle Dennistan at ScotusBlog sees a bigger goal of the lawsuits, ending affirmative action completely:

The saga over the use of race in selecting new college entrants that began with the Supreme Court’s famous ruling in Regents of the University of California v. Bakke nearly four decades ago now has a new chapter — and it is intended to be the final one. Two lawsuits, filed Monday in federal courts against two major universities, are crafted to eventually put before the Supreme Court an explicit plea to overrule Bakke and later decisions on the issue….

The lawsuits do not ask the courts to abandon the idea that racial diversity among college students is a valid educational goal. Instead, they contend that diversity can be achieved by race-neutral alternatives, so public colleges and those that receive federal funds should be ordered to end, altogether, any use of race in the process.

Besides Bakke, the lawsuits specifically aim at the Court’s 2003 decision in Grutter v. Bollinger. In last year’s Fisher decision, the lawyers for the disappointed University of Texas applicant, Abigail Noel Fisher, did not ask the Court to strike down the Grutter precedent. Even so, the resulting decision in Ms. Fisher’s case largely supplanted Grutter with a new and more demanding test for colleges when they use race as a factor in admissions.

Because these cases will proceed initially in federal district courts, the judges assigned to them will not have the power to overrule any Supreme Court decision. The Court has made it clear repeatedly that, if any of its rulings is to be set aside, only the Justices have the authority to do so.

However, the Harvard and UNC lawsuits clearly were prepared to build a case in lower courts so that, perhaps two or three years from now, the lawsuits could reach the Supreme Court for an ultimate test of affirmative action, at least in college admissions.

Because Harvard is a private university, it was sued under Title VI of the 1964 Civil Rights Act, which bars racial discrimination in education at institutions that receive federal funds — as Harvard clearly does.

UNC-Chapel Hill is a state university, so it is subject to the Fourteenth Amendment’s guarantee of legal equality.

The question is whether and how universities can navigate around the Equal Protection Clause and federal anti-discrimination legislation in accomplishing diversity.


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I have been waiting decades for this. I had feared that I would pass on to the next life before it happened.

Now we just need two more lawsuits: (1) a lawsuit challenging the false notion that state sovereignty can be trumped by fed policy; and (2) a lawsuit about DNA identification being an establishment of identity and therefore a declaration of personhood. (If rapists and putative fathers can be identified by DNA, then so can fetuses)

Since it isn’t white males, this will work.

If you haven’t done so, please be sure to read the Harvard Crimson op-ed (linked above) in its entirety. It’s quite an eye-opener.

Three Asian-American “women’s studies” students at Harvard tell us that minority groups should not be fighting among themselves for more college admissions. These ladies oppose the effort to eliminate Affirmative Action in admissions as unfair to both blacks and Asians. Because you see, the problem is not that there are too many over-qualified Asian, or too many under-qualified black, college applicants. No, the real problem is that there are just too many WHITE people getting admitted to college:

“The United States is quickly becoming a country with a majority-minority population, but white students still comprise over 60 percent of the college student population. As minorities, why do we have to fight over spots in the college admissions process when the ‘majority’ refuses to budge in the first place?”

So according to these Harvard-educated geniuses, the answer to the problem of an admissions system that discriminates against Asian applicants is not to have an admissions policy that ignores race altogether and focuses solely on merit. No, what we really need is a race-based admissions policy that actively keeps out more WHITE applicants!

    Ragspierre in reply to Observer. | November 17, 2014 at 12:26 pm


    The ONLY place where institutional racism is practiced and approved in America is the Collective.

    That’s it. That’s the front and back, the alpha and omega.

      Observer in reply to Ragspierre. | November 17, 2014 at 1:45 pm

      Because the best way to stop actively discriminating against Asian applicants is to start actively discriminating more against white applicants, because . . . fairness, or something.

    NC Mountain Girl in reply to Observer. | November 17, 2014 at 12:33 pm

    I wonder if the Asians who are pre-med share the opimions of these three women’s studies majors.

    weenchit in reply to Observer. | November 17, 2014 at 3:33 pm

    This is exactly what I would expect. The racialists are afraid of Asians doing them in so instead they will try to seduce Asians to accept their own place on the race Wheel of Misfortune for school admissions. And it might work; more and more I see Asians joining in the “down with evil white people” mentality. Because if you can tear down someone who might be your competition one day, why not? Call it arbitrage. But Asians will have to weigh the benefit of the satisfaction they will receive when tearing down the white devil with the limitation a race quota will impose on their own people. I’m not sure the professional racialists will be able to sneak that through unnoticed, but who knows? They got Obama elected twice.

The Confucian foundation of several Asian cultures helps to explain why in an academic meritocracy Asian students rise to the top and can lay claim to disproportional admission into to universities. First, in the Confucian social hierarchy, scholars are at the top. In many Asian families there is both cultural pull and parental push to excel in school. Second, parents and other family elders have deep respect from children and younger relatives. Since human beings generally try to seek approval, this aspect of humanity is amplified in Asian cultures with a Confucian foundation. While working for a decade in East Asia, I’ve seen Confucian influence on behavior play out over and over.

    This is particularly true in Singapore where I had my primary and part of my tertiary education. Affirmative Action is still an alien concept to me.

I’ve said it before; if you want to see a quiet, reserved, shy Asian mother suddenly transform into a raging Tiger Mom, bring up affirmative action and university admissions.

My hairstylist is a Japanese woman originally from Osaka. Very sweet, shy woman.

Our oldest daughter is the same age as her daughter, her only child.

When our daughters were applying to colleges, every time I got my haircut we would compare notes and share experiences and advice.

When I brought up the fact that many non-Asian minority students have a much easier time being accepted into competitive schools, she flew into a long, very animated lecture. I mean she was venting lots and lots of pent up frustration and anger. “It’s not fair! It’s not fair!” she kept interjecting.

She was holding a pair of scissors this whole time as she pounded her fists on my shoulders. A bit scary.

    Ragspierre in reply to LukeHandCool. | November 17, 2014 at 12:40 pm

    Aren’t you glad she wasn’t wearing a burka….


    It is either comb it or put sunscreen on it.

    tom swift in reply to LukeHandCool. | November 17, 2014 at 5:19 pm

    “It’s not fair! It’s not fair!” she kept interjecting.

    Not to worry, her daughter still gets her fair share of Affirmative Action.

    The only people who have to get by on their own merits are white and Asian males.

      Mike45 in reply to tom swift. | November 17, 2014 at 8:41 pm

      My son — half Korean and half American Jew — used the “whitest” photo of him and avoided any mention of his Asian side in his college applications. He did not mention that he spoke Korean fluently or that he had a black belt in TaeKwonDo. All because of the discrimination against Asians in college admissions, thanks to Affirmative Action.

      Thanks to years of careful planning by his mother, he is Lutheran, and he is bilingual (trilingual, actually) in German! So he pretends to be neither Korean nor Jewish, but German!

        platypus in reply to Mike45. | November 18, 2014 at 12:43 am

        It’s perfectly fine that he pretends to be something he’s not. Leftists and libs pretend they’re sane all the time.

It looks like this lawsuit is based on California activist Ron Unz’s work.

Ron Unz’s methodology is very convincing that Admissions to elite colleges neither “look like America,” nor look like America’s elite students. After Unz’s article was published, many bloggers tried to “debunk” it by substituting databases that produced unconvincing Howlers like “Less than 5% of the Ivy league is Jewish.”.

So it looks like Unz’s research is still the most authoritative until detailed admissions data can be discovered, which is what this lawsuit could do. Unz’s work is either true or false and discovery should prove which.

Subotai Bahadur | November 17, 2014 at 1:46 pm

As an American of Chinese ancestry I am of two minds. Yes, I want to see affirmative action dismantled root and branch.

Long ago when the world was new and we had just chased the woolly mammoths out of Boulder, Colorado; while a student I had a part time job as a tutor and counselor for the Asian-American Educational Opportunities Program. It was blatant quota time in the affirmative action world. Each protected class got a certain number of guaranteed admissions. Because we weren’t white and had epicanthic folds; they gave us a quota before they figured out that we weren’t good sheep. We were the only group that screened our applicants for college readiness. My main job was tutoring in a pidgin of English and Chinese for those with limited language skills, and counseling. The counseling for most of our students involved convincing them NOT to try to work full time and be a student full time. The only two flunk outs we had were trying to do both and were in STEM fields.

We saw the other EOP programs, and in fact took the Native American program under our wing for the first few years. They did not have the critical mass of successful students to be tutors and counselors and they had to literally fight the BIA who did not want college educated Native Americans. Threats to families on reservations were commonplace, and once we had to bail out the head of the Native American program because when he went back to Washington for Christmas [he was Yakima] the BIA threw him in jail without charge as soon as he set foot on the reservation. We had to send a lawyer to spring him.

The recruiting process for the Black EOP [this was before “African American” became the PC phrase] and UMAS [United Mexican American Students] was asking someone of the right melanin content and DNA if they wanted to go to college, with no screening process to see if they could cut it. The Black EOP program had no tutoring and counseling. The UMAS program held tutorials about how they were oppressed and how Colorado actually did not belong to the US, but to the Socialist Nation of Atzlan. No academic tutoring and counseling.

Not surprisingly, they flunked out en-masse. And then demonstrated outside of Regent Hall at the racist unfairness of it all. It was not necessarily all the fault of the flunking students. They were not prepared to be ready for an intensive full time college experience.

Affirmative Action quotas throw the unprepared into an environment where they are going to fail and be embittered for the rest of their lives. Which probably is the goal. It makes more sense to match people by their skills and preparation to a school that fits.

Which is better for the student and his future family? Getting a degree from a community college on a part time basis over time, and then getting a job; or being thrown into a full time university and flunking out?

If the goal is to improve the lot of the protected classes, the answer is obvious.

As to my qualms about the lawsuits, Harvard is nothing more than a factory for molding the elitist Nomenklatura of the American Socialist State. Outside the STEM fields [and they are losing that] they have neither academic standards nor ethical standards. I would not want my children to go there any more than I would want them to go to UCal Berkeley. In fact, one daughter got accepted at a number of universities. Two were Ivy League [though not Harvard], and I put my foot down. No Ivy League schools for just those reasons. She got her double degree in 5 years at a private university elsewhere on a 50% scholarship.

    Don’t forget that the ones who really aren’t cut out for it are also the ones who are forced to borrow to cover expenses. Flunking out is bad enough but what about the thousands of dollars in student loans that become due because they aren’t in school any more?

    Double whammy anyone?

JimMtnViewCaUSA | November 17, 2014 at 3:35 pm

I’m old enough to remember when South Africa was denounced for keeping careful track of people’s racial composition and then decide their future based on that.

Now the US is the country that keeps tabs on your race every time you get a loan or apply for a job or take a class or …. It’s disgusting.

If DNA is an identification being an establishment of identity and therefore a declaration of personhood for a fetus, doesn’t that mean if you have one of your kidneys removed, it qualifies for personhood too, as it has the same DNA as a fetus?

Upon removal would you suggest providing it a surname?