Race matters, Jackson, Sotomayor give eloquent, angry defense of affirmative action

Justices Sonia Sotomayor and Ketanji Brown Jackson dissented from the conservative majority.

OPINION

Even though the US Supreme Court's ruling overturning affirmative action was expected, it didn't lessen the anger that still rose up Thursday morning. I'm furious.

The Supreme Court released their decision Thursday saying that Harvard's admission policy discriminated against Asian students applying to the school and ruled that the University of North Carolina's use of race to achieve a diverse student body was against the Constitution.

The vote was 6-3 in the complaint against UNC with the conservative justices in the majority. In Harvard's case, the vote was 6-2 with Associate Justice Ketanji Brown Jackson recusing herself because she was until, recently, a member of Harvard’s board of overseers.

The complaints against both schools was filed by Students for Fair Admissions, a questionable group headed by anti-affirmative action activist Ed Blum, who has been trying to end the policy for decades. In the case against Harvard, SFFA claimed that the school's affirmative action policy discriminated against Asian American applicants, who never showed up in court to testify.

The gist of the SCOTUS rulings was that schools could not use race as a factor in evaluating students applying for admission.

Personally, race helps define who I am. People who say they are color-blind -- and that includes the six conservative justices -- don't see me. The SCOTUS majority is saying my life experiences as a Filipino American does not matter.

To be clear, in the cases of Harvard and UNC, race is simply one of many factors used in evaluating student applicants, much like family income, a GPA, test scores and extra-curricular activities are factors. To say race doesn't matter, the Court erases a major part of my life story that forms my world view, my personality, my values. To say race doesn't matter, the Court majority says I don't matter.

FYI: Read the US Supreme Court ruling.

Justices Sonia Sotomayor and Ketanji Brown Jackson, the two women of color on the Court and both beneficiaries of "affirmative action" programs, in their scathing dissenting views, say it better than I can.

Sotomayor warned the decision will have a "devastating impact" on the United States. The SCOTUS majority's "vision of race neutrality will entrench racial segregation in higher education because racial inequality will persist so long as it is ignored."

In the Harvard case, Sotomayor wrote “that race can no longer be used in a limited way in college admissions,” the Court basically “cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

Sotomayor, a Puerto Rican who grew up in low-income housing projects and benefited from affirmative action policy herself, wrote in defense of the UNC admission policy of using race as one of several factors in evaluating student applicants to the public university. 

"The majority’s vision of race neutrality will entrench racial segregation in higher education because racial inequality will persist so long as it is ignored," she wrote. "Despite the Court’s unjustified exercise of power, the opinion today will serve only to highlight the Court’s own impotence in the face of an America whose cries for equality resound."

Jackson's no less fiery dissent of the UNC ruling, was a masterclass in the history of racism and affirmative action. Her dissenting opinion will likely be used in educating future lawyers.

"Our country has never been colorblind. Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well documented “intergenerational transmission of inequality” that still plagues our citizenry," writes Brown Jackson, the first Black woman on the Supreme Court.

Jackson continues: “With let-them-eat-cake obliviousness, on Thursday, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat.” ... “But deeming race irrelevant in law does not make it so in life.”

“If the colleges of this country are required to ignore a thing that matters, it will not just go away. It will take longer for racism to leave us. And, ultimately, ignoring race just makes it matter more.”

EDITOR'S NOTE: This is a developing story. check back later for updates and additional commentary, news and views from an AANHPI perspective. Follow @DioknoEd on Twitter or at his blog Views From the Edge.

Another SCOTUS target? AANHPI rally around Harvard's admissions policy using affirmative action

 

Asian Americans join other students of color in their support for Harvard's admission policies.

Harvard University and its supporters, girding themselves for the possible dismantling of affirmative action, filed a host of friend of the court briefs Monday. 

With Asan Americans reportedly alleging that Harvard discriminated against them in its admissions process, it is noteworthy that some of the strongest arguments on behalf of affirmative action came from Asian American groups and individuals.

Faced with an ultra conservative Supreme Court that through its reversal on Roe v. Wade demonstrated it has no respect for legal precedent, the Ivy League school , business, educators and legal organizations filed friends of the court briefs supporting the need for diversity in higher education and in the real world. The Supreme Court is expected to rule on the Harvard case in ints next session which begins Oct. 1.

The Asian American Legal Defense and Education Fund, filed a brief on behalf of itself and 121 other Asian groups or individuals) that said, “The notion that race-conscious admissions policies discriminate against Asian Americans relies on and perpetuates harmful stereotypes against Asian Americans. The Asian American community is vast and varied, including first-generation college students and children whose parents’ professions secured their immigration; children of working-class refugees and multigenerational Americans; speakers of over 300 languages; aspiring entrepreneurs, artists, teachers and more.”

Margaret Fung, AALDEF executive director, said: “Significantly, not a single Asian American applicant offered testimony claiming to be a victim of discrimination. Harvard’s individualized admissions process, which takes race into account, actually helps to dispel the harmful ‘model minority’ myth by recognizing the vast ethnic, language, and socioeconomic diversity within the Asian American community.”

Despite some attempts by nonAsian media to paint a deep divide among AANHPI, a number of polls, including a survey by AAPIData showed that Asian Americans overwhelmingly support affirmative action, three-to-one.

Asian Americans Advancing Justice (Advancing Justice) filed two amicus briefs Monday before the U.S. Supreme Court in SFFA v. Harvard, affirming its longstanding support for race-conscious admissions in higher education.

“For centuries, communities of color, including Asian Americans, have struggled against racial discrimination and faced systemic barriers to education, employment, and immigration, among other challenges,” said John C. Yang, President and Executive Director of Advancing Justice – AAJC. “Race, ethnicity, and our lived experiences are integral parts of our personal story and collective history. Holistic admissions ensures all students have the opportunity to share their whole story in addition to their academic achievements.”

The amicus brief affirms that Harvard and UNC’s race-conscious admissions programs do not discriminate against AAPI students, but rather expand their access to higher education. The brief also highlights the educational benefits of racial diversity for AAPI communities and asserts that eliminating the consideration of race in admissions programs will harm AAPI and other students of color.

“Our communities know better than to give into extremist strategist Edward Blum’s years-long mission to deny Black, Latinx, Asian American, and other communities of color equal voting rights and educational opportunities,” said Aarti Kohli, Executive Director of Advancing Justice - Asian Law Caucus. “As a parent, my children have had more chances to grow and thrive because of affirmative action, diversity, and anti-discrimination programs in our education systems. As a civil rights lawyer, there’s no question these attacks on the constitutionality of race conscious programs are a thinly veiled strategy to limit educational opportunities for all students of color.”

Students for Fair Admissions headed by anti-affirmative action activist Edward Blum filed the complaint against Harvard in 2014. The lower courts have ruled in favor of Harvard.'s admission policies. 

Blum hopes the current  conservative majority in the Supreme Court will overturn the concept of affirmative action which has survived four earlier SCOTUS cases. The conservative majority of Justices demonstrated they have no problem overturning long-standing precedent when  in June they ruled, 6-3, against Roe v. Wade, which gave women the right to abortion.

Harvard also got a big boost when big tech companies led by Apple and Google filed a brief asked the Supreme Court not to do away with affirmative action, saying the companies seek racial diversity when hiring employees.

They were among roughly 70 companies in the technology, finance and health care industries staking a claim in one of the high court’s most watched cases during its next term.

"Diverse workforces improve … business performance — and thus strengthen the American and global economies. [The companies] seek employees who have been educated at universities with exposure to a broad array of life experiences and viewpoints, and who can bring diverse perspectives and experiences to the workplace,” the 47-page brief read.

Some of the other major companies that signed onto the brief include Airbnb, American Airlines, American Express, Dell Technologies, Johnson & Johnson, Mattel, PayPal, Meta Platforms, Starbucks, The Hershey Company, The Kraft Heinz Company, Uber, United Airlines and Walgreens Boots Alliance.

Harvard's defenders included a host of other universities who point to the 1978 case of Regents of University of California v Bakke, where the high court ruled that racial quotas were unlawful, but consideration of race as one part of an admissions factor is constitutional.

The president of the University of California system and chancellors of UC’s 10 campuses said their system was an example of what the court should avoid.

“For the past 25 years, UC has served as just such a laborator(y) for experimentation,” the brief said. “After Proposition 209 (which banned affirmative action) barred consideration of race in admissions decisions at public universities in California, freshmen enrollees from underrepresented minority groups dropped precipitously at UC, and dropped by 50% or more at UC’s most selective campuses. Since then, UC has implemented numerous and wide-ranging race-neutral measures designed to increase diversity of all sorts, including racial diversity … Those programs have enabled UC to make significant gains in its system-wide diversity. 

"Yet despite its extensive efforts, UC struggles to enroll a student body that is sufficiently racially diverse to attain the educational benefits of diversity. The short-fall is especially apparent at UC’s most selective campuses, where African American, Native American, and Latinx students are underrepresented and widely report struggling with feelings of racial isolation.”

Hoping to sway the six Catholic Supreme Court Justices, Georgetown University filed a brief as part of a joint effort with 56 Catholic institutions, including the University of Notre Dame, the College of the Holy Cross, DePaul University and Villanova University. Their brief affirms that the right to consider racial diversity in a holistic admissions process to build a diverse student body and learning environment is essential to their academic and religious missions. Achieving racial diversity in admissions, the brief asserts, is “inextricably intertwined” with Catholic universities and colleges’ religious foundations.

The brief also argues that this right is rooted in the First Amendment’s Free Speech and Free Exercise Clause, particularly for Catholic higher education institutions, whose ability to have discretion in how they choose students is critical to their religious missions. 

Harvard's own student and alumni amici attested to how a diverse campus benefits all students, including addressing racial isolation and increasing cross-racial understanding and cultural competency that better prepared them for their professional careers. 

Asian American amici, some who testified in court, also affirmed benefiting from race-conscious admissions policies at Harvard, which provided them the opportunity to share their whole story, including their race and ethnicity, background, and diverse experiences. Asian American students which the Students for Fair Admissions purport to represent offered no in-person testimony.

“Absolute neutrality has never been a universal constitutional principle,” Harvard argued in its own behalf, saying that the framers of the Constitution’s 14th Amendment saw race-conscious measures as necessary to ensure Black people’s “equal participation in society” following the Civil War.

Harvard’s website cites Asian American student acceptance at 25.9% and African American students at 15.9% out of 2,320 total. Lower courts have ruled in favor of Harvard and UNC, but the university remains steadfast in its mission to diversify its student body.

“Harvard has repeatedly studied and continues to evaluate the importance of student-body diversity to its educational objectives and whether a race-conscious admissions process remains necessary to achieve them,” Harvard's brief said. “But as the district court observed, ‘we are not there yet.’”

“No alternative is presently workable,” states Harvard. “Until that changes, Harvard must be allowed to consider race as one of many characteristics in admissions to achieve the compelling benefits of student-body diversity.”

The Advancing Justice brief affirms that Harvard and UNC’s race-conscious admissions programs do not discriminate against AAPI students, but rather expand their access to higher education. The brief also highlights the educational benefits of racial diversity for AAPI communities and asserts that eliminating the consideration of race in admissions programs will harm AAPI and other students of color. 

“For too long, the model minority myth has propagated a false premise that AAPIs don’t benefit from race conscious admissions practices,” said Connie Chung Jose, CEO, Asian Americans Advancing Justice Southern California (AJSOCAL). “The reality is that our communities also face discrimination and barriers to opportunities that race conscious admissions can address. And for AAPI students and other students of color, having a racially diverse student body is not only important to their educational experience, but often necessary to fully articulate the hurdles, achievements, and personal development experiences intrinsic to college admissions evaluations.”

EDITOR'S NOTE: For additional commentary, news and views from an AANHPI perspective, follow @DioknoEd on Twitter.

Conservative Supreme Court could sound death knell of affirmative action

REGIONAL STUDIES EAST ASIA PROGRAM, HARVARD

Recent graduates celebrate during Harvard University's commencement ceremonies.

ANALYSIS

The US Supreme Court added affirmative action to it's hit list of progressive positions it wants to undermine or eliminate. First it gutted the Voting Rights Act, then added provisions that practically abolished Roe v. Wade in some states and now, on Jan. 24,  the Supreme Court decided to take on affirmative action.

For over a half century, the Supreme Court and almost all the lower courts have affirmed the need to take into account race as a factor in school admissions. But this is not a moderate court. The Republican controlled Senate and the GOP's rightwing has taken over the highest court in the land, now controlling six of the nine Justices. This is a new court, prone to making decisions on a partisan basis instead of relying on precedent and the Constitution.

And Asian Americans are right in the middle of this scrum that will decided the future of affirmative action, a keystone policy that has guided the US towards equity in school admissions and job opportunities for over a half-century.

"Affirmative action, diversity, and anti-discrimination programs are essential to opening up opportunities for women and people of color, including Asian Americans, in all aspects of public life, including higher education, and have been foundational building blocks for a more just and equitable society," said a statement from Asian American Advancing Justice, a coalition of five AAPI legal aid organizations.

On Jan. 24, the high court decided to hear the arguments in the cases of Students for Fair Admissions v. Harvard University, and SFFA v. University of North Carolina.

In both complaints, SFFA contends that the admissions processes of the universities discriminated against qualified Asian Americans.

SFFA, a front for anti-affirmative action activist Edward Blum, purports to represent Asian American students who were allegedly denied admission to these schools in favor of less qualified students.

“Harvard and the University of North Carolina have racially gerrymandered their freshman classes in order to achieve prescribed racial quotas,” said Blum in a statement. “Every college applicant should be judged as a unique individual, not as some representative of a racial or ethnic group.”

Lower courts and in two previous decisions by the Supreme Court have recognized the need to consider race as one factor in the school admission process in order to open its campuses to groups that have been underrepresented. The courts have admitted the necessity to retain affirmative action, which was first introduced in 1965 and received its first legal challenge in 1978.

The last time the High Court ruled on affirmative action was in 2016 involving the University of Texas admission procedures. At the time, the Justices ruled in favor of using race as a factor in admissions.

But that was then. Today, the Supreme Court is ruled by six conservative majority, including three who were appointed by Donald Trump. The Supreme Court will likely hear oral arguments on the case in October this year and render a ruling in 2023.

In order to avoid the appearance of "reverse discrimination," a flaw that plagued Blum's other attempts to prove affirmative action discriminated against White students, he convinced disgruntled Asian American applicants who failed to get admitted to Harvard to join a complaint against Harvard.

The legal complaint was filed in 2014. Although lower courts filed in favor of Harvard, Blum persisted and appealed the case to the U.S. Supreme Court in 2020. The Justices deferred hearing the case, but asked the U.S. Solicitor General to give Biden administration's position and recommendation. The Solicitor General last November recommended that the Justices  reject Blum's appeal.

Of the 2,230 first-year students accepted at Harvard in the fall of 2021, 25.9% were Asian American; Blacks made up 15.9%; Latinos, 12.5%; Native American, 1.1%; Native Hawaiian, 0.5%. Whites made up about 45% of the class of 2025, still the largest ethnic group.

“Race continues to unfairly limit educational opportunities for students of color,” said. Niyati Shah, director of litigation for the group Asian Americans Advancing Justice, after the court announced its decision to accept the case. “Race-conscious admission policies provide the chance for the student to tell their whole story, inclusive of their race, ethnicity, and lived experiences, in addition to their academic achievements.

Shah added: "Asian Americans are being used as a wedge in these cases to try to dismantle race-conscious admissions policies, but the fact is 70% of Asian Americans support affirmative action. ... We reject the use of Asian Americans as proxies to attack the constitutionality of race-conscious programs. Race-conscious programs should not be conflated with racial quotas or other forms of unlawful discrimination.”

EDITOR'S NOTE: I was admitted to the University of California, Berkeley under the affirmative action program. For additional commentary, news and views from an AAPI perspective, follow me on Twitter @DioknoEd.

Appeals court: Harvard's admission policy does not discriminate against Asian Americans

This photo of Harvard was taken before the coronavirus pandemic.

Harvard University did not discriminate against Asian American applicants in its admission process an appeals court ruled Thursday (Nov. 12), setting up a likely showdown at the Republican-packed U.S. Supreme Court.

The decision by the First Circuit Appeals Court  agreed with a district court ruling made that Harvard's use of race in admissions was legal. In September, U.S. District Judge Allison Burrough rejected allegations by some Asian American students who claimed the school systematically discriminated against them with its admissions policy, which considers factors beyond test scores to decide who gets accepted at the prestigious school

"The issue before us is whether Harvard's limited use of race in its admissions process in order to achieve diversity in the period in question is consistent with the requirements of Supreme Court precedent," Appeals Court Judge Sandra Lynch in the ruling. "There was no error."

"Today's decision once again finds that Harvard's admissions policies are consistent with Supreme Court precedent, and lawfully and appropriately pursue Harvard's efforts to create a diverse campus that promotes learning and encourages mutual respect and understanding in our community," said Harvard spokeswoman Rachael Dane . "As we have said time and time again, now is not the time to turn back the clock on diversity and opportunity."

The lawsuit against Harvard was raised by Students for Fair Admission. The group said it will probably appeal to SCOTUS. It will be the first affirmative action case for the new conservative-dominated court and newly installed activist Justice Amy Coney Barrett.

"While we are disappointed with the opinion of the First Circuit Court of Appeals, our hopeis not lost," Edward Blum, the anti-affirmative action advocate who leads SFFA said. "This lawsuit is now on track to go up to the U.S. Supreme Court where we will ask the justices to end these unfair and unconstitutional race-based admissions policies at Harvard and all colleges and universities."

SFFA's cause was hurt in the lower courts because none of the Asian Amerian applicants supposedly harmed by Harvard's admission policy did not want to testify in court. Harvard, in contrast, produced students of various ethnicities who spoke about the benefits of having a diverse student body.

More than 40,000 students applied to Harvard's undergraduate college this fall, and fewer than 5% were offered admission. Of those admitted, Harvard said 24.5% identified as Asian American, 14.8% as African American or Black, 12.7% as Latinx and 1.8% as Native American.

EDITOR'S NOTE: A word of caution, this is news sprinkled with opinion. Readers are encouraged to seek multiple news sources to formulate their own positions.

2019 Review: Affirmative action debate exposes schism in Asian American community

A small but vocal group of conservative Asian Americans were used by the anti-affirmative action Students for Fair Admissions to attack affirmative action. The courts ruled in October 2019 that Harvard admissions process did not discriminate against Asians. 

Meanwhile, the conservative Asian Americans were successful in the state of Washington, where voters upheld a 20-year old law, Initiative 200, that forbade the use of affirmative action.

Students for Fair Elections, led by anti-affirmative action activist Edward Blum, argued that Asian Americans with high test scores were being denied admittance to Harvard while applicants with lower test scores were being accepted.

During arguments in 2018, it was learned that school's admission process had some significant flaws, specifically the portion about personality where Asian American applicants allegedly received lower scores.

The battle for affirmative action also put a spotlight on the wide differences within the Asian American community between mostly new immigrants from China with older Asian American groups which had aligned themselves with other people of color in support of affirmative action. The fracture threatens to widen even further as conservatives try to use the differences to pit Asians as a wedge against other communities of color.

In Washington State,  the New York Times reports that the state's Office of Minority and Women’s Business Enterprises found that before the ban, about 10 percent of government contracts awarded to businesses certified as being led by minorities or women. Since the ban was instituted, that proportion has dropped to about 3 percent.

The University of Washington's main campus in Seattle is the most competitive in admissions in the state has had the greatest impact.

The most recent federal data show the university's student body mix has more Asian Americans (25%) than their share of the state population. But the shares of white (42%), black (3%), Latinx (8%) and Native American (less than 1%) students lag their share of the state population.

Much of the opposition in Washington was led by a well organized Asian American group, who worried that affirmative action could affect their record of success in university admissions. Like the Harvard case, affirmative action opponents were made up of newer immigrants from Asia, primarily China.

The majority of Asian Americans support affirmative action but mainstream media - as in the Harvard case - kept reporting the story as if the anti-affirmative action group represented the general view of the AAPI community, effectively using Asian Americans as a wedge between the AAPI communities and other people of color.

Lawmakers in other states, such as California, Texas, Michigan, Florida and Arizona, which have similar bans on affirmative action, watched the Washington results with interest as they consider overturning those bans.

The court ruling on Harvard Admissions is being appealed and will probably end up at the US Supreme Court, which has a conservative majority thanks to Trump and Senate Pro Tem Mitch McConnell, which in 2015-2016 thwarted President Obama's Supreme Court appointment of Judge Merrick Garland.

2019 REVIEW 
Part 1: AAPI political visibility explodes on nat'l scene
Part 3: Trump immigration policies shake up, wake up AAPI communities
Part 4: Hollywood 'discovers Asians

Harvard's admissions' ruling appealed

Asian American students demonstrated in favor of Harvard's admission process. 

It was no surprise that just days after a federal judge ruled that Harvard's admissions process did not discriminate against Asian American applicants, his ruling was appealed.
US District Court Judge Allison D. Burroughs on Oct. 1 ruled that while Harvard could improve its admissions process with more training and monitoring, it is “very fine,’’ legally sound, and uses race only in a narrow way.

Students for Fair Admissions is appealing to the US Court of Appeals for the First Circuit in Boston, according to a court filing.

Edward Blum, president of the group, said in statement, “Students for Fair Admissions looks forward to making our appeal to the US First Circuit Court of Appeals and, if necessary, to the US Supreme Court.’’

William F. Lee ’72 — the lead trial lawyer for Harvard and the senior fellow of the Harvard Corporation, the University’s highest governing body — said that Harvard will “vigorously” defend Burrough’s decision.

“The Court’s ruling that Harvard does not discriminate on the basis of race in its admissions process, and that Harvard’s pursuit of the diverse student body central to its educational mission is lawful, was very gratifying and provides a clear path forward to resolve this important case,” Lee said in a statement. “Harvard will vigorously defend the Court’s decision in this case.”

“Throughout this trial and after a careful review of all exhibits and written submissions, there is no evidence of any racial animus whatsoever or intentional discrimination on the part of Harvard beyond its use of a race conscious admissions policy, nor is there any evidence that any particular admissions decision was negatively affected by Asian American identity,’’ wrote Burroughs in her 130-page ruling.

The ruling came nearly a year after the trial that pitted Harvard against Students for Fair Admissions. Burroughs said the plaintiff, “did not present a single admissions file that reflected any discriminatory animus, or even an application of an Asian American who it contended should have or would have been admitted absent an unfairly deflated personal rating.’’

"Blum’s cynical attempt to use members of the Asian American community seeks to pit people of color against one another," wrote the ACLU, which filed a friend of the court brief in the case.

If Blum gets his wish, statistical projections show that white applicants will be the primary beneficiaries. Not talking about race doesn’t erase discrimination; it reinforces the privileges of white applicants by ignoring the ways in which deep-seeded structural racial inequality impacts individualsm, contends the ACLU.It is Blum's intention to appeal the case all the way to the U.S. Supreme Court where he hopes its conservative majority will rule any admissions process that uses race as one of its factors.

"Affirmative action" was signed into law by President John F. Kennedy through executive order. Universities use race as a factor in the admissions process because for centuries, race was used against certain groups of people to deny them equal opportunity to study and graduate from elite institutions such as Harvard.

In an earlier case filed by Blum's group, Fisher v. University of Texas, the Supreme Court allowed race to be used as a factor in admissions at the University of Texas, as long as it is not the only factor used in deciding who gets into that school.

If the reconstituted Supreme Court, heavily weighted by extreme conservatives because of appointments made by Donald Trump, rules against Harvard, it could dismantle the  admissions processes  of schools throughout the country and hiring practices by government  agencies and private businesses.

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Judge rules Harvard admissions doesn't discriminate against Asian Americans

Harvard students rallied in favor of the university's admission policies before the trial begain in 2018.

Harvard's affirmative action policy "passes constitutional muster" and doesn't discriminate against Asian Americans ruled a federal judge Tuesday (Oct. 1).

In U.S. District Court for the District of Massachusetts federal Judge Allison D. Burroughs issued her decision, saying "the Court finds no persuasive documentary evidence of any racial animus or conscious prejudice against Asian Americans." In the decision, Burroughs said that while Harvard's admissions program is "not perfect," "ensuring diversity at Harvard relies, in part, on race conscious admissions."

“Ultimately, the Court finds that Harvard has met its burden of showing that its admissions process complies with the principles articulated by the Supreme Court in Fisher II,” she wrote, referring to an earlier affirmative action challenge, Fisher v. University of Texas, which was instigated by anti-affirmative action advocate Edward Blum.

Blum was also president of Students for Fair Admissions (SFFA), which reportedly represents several Asian American students in the case against Harvard. Blum said he was disappointed in Burrough's ruling.

"SFFA will appeal this decision to the 1st Court of Appeals and, if necessary, to the U.S Supreme Court," he said.

Blum's statement demonstrates that while the Boston court trial is over, the debate over affirmative action is far from over. With the conservative majority currently in the Supreme Court, civil rights advocates fear that affirmative action could still be overturned.

Tuesday's "decision is a critical victory for Asian American students, who benefit from affirmative action and support race-conscious admissions policies,” said Aarti Kohli, executive director of Advancing Justice - Asian Law Caucus. “While we must do more to ensure that Asian American students do not face unequal opportunities through harassment, stereotyping and language barriers, the use of race-conscious admissions policies — which safeguard against discrimination — is an important step.”

Rep. Judy Chu, D-CA, said, “It is shameful that the educational playing field remains unequal for so many students of color, including many within the Asian American and Pacific Islander (AAPI) community who continue to face significant barriers to attaining a college degree. 

"For instance, only 14% of Laotians, 16% of Cambodians, and 19% of Pacific Islanders have a bachelor’s degree. These educational disparities show us why it is important to expand opportunities to higher education for all students, including AAPIs, who have benefited from race-conscious admissions policies that help to level the playing field," she continued.

Harvard University President Lawrence S. Bacow wrote in a statement Tuesday that the College’s consideration of race in its admissions process “helps us achieve our goal of creating a diverse student body that enriches the education of every student.”

“Everyone admitted to Harvard College has something unique to offer our community, and today we reaffirm the importance of diversity—and everything it represents to the world,” he wrote.

“I applaud the Harvard students who made their voices heard in this case and during the trial. They made vividly clear the benefits of student body diversity,” he wrote. “I also saw firsthand the intense commitment of many, including all those who testified, and who defended and supported the University, with tremendous acumen and skill, and I am deeply grateful for their excellent work.”

HARVARD UNIVERSITY

None of the Asian American students SFFA purportedly represents didn't want to testify during the trial. The testimony of the students in favor of affirmative action played a major factor in Burrough's decision. She wrote that their testimonies showed how race played a critical role in their experiences before and during their time at Harvard.

"The students who are admitted to Harvard and choose to attend will live and learn surrounded by all sorts of people, with all sorts of experiences, beliefs and talents" she wrote. "They will have the opportunity to know and understand one another beyond race, as whole individuals with unique histories and experiences. It is this, at Harvard and elsewhere that will move us, one day, to the point where we see that race is a fact, but not the defining fact and not the fact that tells us what is important, but we are not there yet."

The basis for Blum's lawsuit was that Harvard discriminated against Asian applicants who had higher test scores than some of the students admitted through Harvard's admission policies which considers race as one factor in looking at a student holistically.

The trial and debate also exposed an apparent schism in the Asian American community that Blum took advantage of. Generally, it pitted long-time AAPI civil rights organizations against newer immigrants -- primarily from China -- who pushed for a pure meritocratic evaluation of test scores, GPA and extracurricular activities without out taking into account other socio-economic factors -- including race -- in an applicant's background.

With the focus on Harvard's admissions, researchers also learned that the university had a high proportion of so-called "legacy" students, who are children of large donors, alumni, children of alumni or who have special skills, such as athletics. Roughly three-quarters of white legacy students would have been rejected if they had been treated the same as non-white legacy students. 

“As an Asian American, affirmative action helped give me a fair shot in Harvard’s application process,” said student Sally Chen, who testified in support of Harvard in the trial last fall. “The court made the right decision for Asian Americans, for diversity in education, and for all of the students like me who believe race is an important part of our identity and something we deserve to be able to share. The fight for racial equity is far from over. I will continue to fight for race-conscious policies on behalf of other Asian American students at Harvard and across other college campuses.”

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Anti-affirmative action battle moves to U. of North Carolina

Buoyed by their anti-affirmative action arguments on behalf of Asian American applicants to Harvard, Students for Fair Admissions has opened another front at the University of North Carolina-Chapel Hill.
SFFA, led by long-time affirmative action opponent Edward Blum, seeks to end race-conscious admissions at both universities. In their briefing, SFFA suggest that in addition to whites, Asian Americans are also supposedly disadvantaged by UNC's race-conscious admissions policy.

Blum said the group's filing contain calculations from an expert witness saying an Asian American male applicant from North Carolina with a 25% chance of getting into the school would have his probability increase to about 67% if he were Latino. It would rise to more than 90% if he were African American.

Asian Americans Advancing Justice, an affiliation of five civil rights organizations, alongside over 60 Asian American groups and 25 professors, with Fox Rothschild LLP filed an amicus brief today in support of race-conscious holistic admissions at UNC. Participants in this brief whole-heartedly attest that race-conscious admissions policies result in more equitable and integrated universities and enhance the educational experiences of all students.

UNC-Chapel Hill, which wants U.S. District Judge Loretta Biggs to hold a hearing on its dismissal motion, says there are no racial or ethnic quotas in the admissions process, and race is one of many factors considered.

"No reasonable trier of fact could conclude on this record that the university uses quotas, engages in racial set asides or point allocations, or intentionally discriminates against applicants based on race," the school's brief said.

"In its academic judgment, the university has determined that pursuing the educational benefits of diversity is integral to fulfilling its mission to prepare the next generation of leaders," the school's brief continued..

More than 4,300 first-year students entered UNC-Chapel Hill last fall, with over 43,000 first-year applications filed.

"A 'color-blind' admissions policy is not race-neutral; it merely reinforces racial segregation and widens existing disparities in educational opportunities for people of color, including many Asian Americans and Pacific Islanders (AAPIs)," said Nicole Gon Ochi, supervising attorney at Asian Americans Advancing Justice - Los Angeles. "We refuse to be used as a weapon to dismantle programs that increase opportunities for students of color."

The consideration of race in university admissions, one of many factors in the admissions process, has been critical for many schools to fully understand an applicant's background and experiences beyond test scores.

"The data shows that these policies help all students of color, including Asian Americans," said Dr. OiYan Poon, assistant professor of Higher Education and director of the Race & Intersectional Studies for Educational Equity (RISE Center) at Colorado State University. "Removing the consideration of race in admissions would hurt the most marginalized of AAPI students and be detrimental to the educational climate and environment, from which all students benefit."

Race-conscious admission policies have been credited with offsetting the inherent racial biases of other admission factors, such as SAT/ACT scores. They are also a factor in creating more diverse student bodies on university campuses that more closely reflect regional or national demographics. Studies show that colleges and universities that reach the highest levels of diversity have fewer incidents of racial hostility. Students report having a more positive learning experience in schools with race-conscious admission processes.

Mainstream media coverage of the Harvard case may have given the impression that the majority of the AAPI community was against affirmative action. In actuality, there is overwhelming support for affirmative action.

"Removing the consideration of race at UNC would be a disservice to all communities of color, including the diverse AAPI subgroups in North Carolina," said Chavi Khanna Koneru, executive director of North Carolina Asian Americans Together. "Our state is home to significant ethnic minority communities from Southeast Asia who experience varying economic and educational barriers. Saying that Asian Americans are not underrepresented minorities at UNC only obscures the needs of underrepresented Asian Americans."

"The growing Southeast Asian community in our state is not a monolith; each student deserves the holistic review long prized by our state's flagship university," said Matthew Nis Leerberg, North Carolina-based partner at national law firm Fox Rothschild LLP. 

The case against Harvard's admission policies has already gone to court and a ruling is expected any day. Like the Harvard case, UNC's case is expected to be appealed all the way to the U.S. Supreme Court.

Asian Americans Advancing Justice stands firmly in support of UNC, race-conscious admission policies, and all students of color. We will continue to fight alongside other communities of color for greater equity and justice in this country.

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Sunday Read: What's up, 2019? Affirmative action divides AAPI community

PERHAPS NO OTHER ISSUE threatens to divide the Asian Americans than affirmative action.

Even though the majority of Asian Americans support the program that helps disadvantaged students vs. privileged students, a vocal and organized minority have been successful in grabbing the headlines in the debate over Harvard's admission policies, which has been charged with being biased against Asian Americans.

The plaintiff's lawyers in the Harvard case opened his arguments by saying that the trail was not about affirmative action. But egging on the aggrieved Asian American students and providing legal support is Students for Fair Admissions, a group headed by Edward Blum who has spent decades fighting affirmative action, which allows schools to take race under consideration in order to create a diverse student body.

EDITOR'S NOTE: What's Up, 2019: is part of series of posts about issues facing the AAPI community in the coming year. 

• Trump wants to deport public benefit recipients
• Immigration reform strikes at heart of Asian America
• Asian Americans might balk at filling out 2020 Census 

The trial began in November and lasted 10 days. The judge is expected to render a decision this month. No matter what U.S. District Court Judge Allison Burrough rules, both sides of the argument, Harvard and Students for Fair Admissions, say they will appeal all the way to the U.S. Supreme Court.

Students for Fair Admission says Harvard intentionally keeps the admission rate of Asian Americans below 20 percent despite statistically having the highest test scores among all ethnic groups. Blum stated that his goal is to eliminate total consideration as race as a factor for admission to Harvard. 

Blum's critics believe a ruling for the plaintiffs would eliminate the use of any affirmative action and work against qualified, but underrepresented, minorities.

The debate revealed a schism in the Asian American community, roughly delineated by recent immigrants from China and Asian Americans who have been in this country longer than a generation.

New immigrants, without the knowledge of this country's civil rights battles and how minorities had to fight for affirmative action, believe that admissions should be based solely on grades and SAT scores. They claim that less qualified students - mostly blacks and Latinos - were taking slots that they believe should be going to Asian Americans with higher test scores and better grades.

Affirmative action supporters, made up of many of the older Asian American civil rights organizations who fought for affirmative action and other equal opportunity programs,  argue that not all Asian Americans fit into the model minority myth that the Harvard plaintiffs seem to accept.


For example, although about half of Asian Americans hold a bachelor’s degree or higher, only 27 percent of Vietnamese Americans and 17 percent of Hmong and Cambodian Americans hold at least a bachelor’s degree, according to a 2014 report from the Center for American Progress and AAPI Data.

A similar argument is being made in New York City where Asian American students form the majority of the student body in the city's college-prep high schools. Mayor Bill de Blasio and schools Chancellor Richard Carranza made changes to an admissions policy that some members of the Asian American community claim discriminates against Asian American students.

Instead of relying on scores on the Specialized High School Admissions Test, or SHSAT, the change would reserve spots for the top students in every middle school in low-income neighborhoods. That would eliminate 11 schools with a majority Asian American student body but more than double the number of black and Latino students.

Those admission changes are scheduled to begin in 2019 and would nearly double offers to black and Latino students from approximately 9 percent to approximately 16 percent, according to the mayor's office.

A lawsuit filed by Pacific Legal Foundation in federal court alleges that the proposed changes for admission prevents Asian American students from vying for those seats and violate their equal protection rights under the 14th Amendment. 

Plaintiffs are seeking an injunction to keep the the city schools from implementing the new admission procedures.

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Sunday Read: Trial hears closing arguments in case challenging Harvard admission criteria

ASAM NEWS

DESPITE CHARGES of discrimination against Asian Americans, attorneys for Harvard maintain the real goal of the lawsuit against it is to eliminate all consideration of race in admissions, reports CNN.

Harvard attorneys made that statement in closing arguments Friday (Nov. 2) in the three-week long trial asserting that Harvard intentionally penalizes Asian Americans in their “personal rating,” despite high academic scores.

Both sides gave their closing argument in the case Friday that will ultimately be decided by U.S. District Court Judge Allison Burroughs.

Students for Fair Admission, led by Edward Blum, says Harvard intentionally keeps the admission rate of Asian Americans below 20 percent despite statistically having the highest test scores among all ethnic groups. Blum stated that his goal is to eliminate total consideration as race as a factor for admission to Harvard. 

Blum's critics believe a ruling for the plaintiffs would eliminate the use of any affirmative action and work against qualified, but underrepresented, minorities.

The class of 2022, the latest to be admitted to Harvard is made up of 23 percent Asian Americans, 15 percent African Americans and 12 percent Latinos.

Admittance to Harvard is highlty competitive. At stake are 1600 spots for admissions from 40,000 applicants.

In the class of 2019, 8,000 applicants had perfect GPAs and 5,000 had perfect math and verbal SAT scores. You don’t have to be a math whiz to understand all of those students could not be admitted, making the ultimate choices highly debatable and subjective.

“That Asian Americans get worse personal ratings year after year is pretty strong evidence that racial bias has crept into the system,” attorney John Hughes said in closing arguments for the plaintiffs, reported MSN.

Harvard countered that there is “almost no correlation” between “personal rating” and academics while acknowledging that Asian Americans score lower personal ratings, on average.

Harvard's lead attorney William Lee, an Asian American representing his alma mater, pointed out that Students for Fair Admissions has previously unsuccessfully challenged affirmative action using white applicants and only lately has recruited Asian American students. 

He also praised the Harvard students and alumnae, the majority of whom were Asian Americans, who spoke in favor of the race criteria and pointed out that no Asian Americans testified on behalf of SFFA.

"We've heard from the students themselves. We've heard from the students who are living diversity every day," Lee said in his concluding remarks. "Although much progress has been made, there is much to be done."
A decision from Judge Burroughs is not expected for months. The judge has indicated she will hold a post-trial briefing with all parties to discuss any remaining issues.

Win or lose, both SFFA and Harvard said they would appeal if the decision goes against them. It is expected that the case will make its way to the U.S. Supreme Court.

Views From the Edge contributed to this report.
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Harvard on Trial: Admission guidelines clarified just days before lawsuit went to court, says Globe

AFTER TWO WEEKS of the plaintiffs presenting evidence and testimony alleging bias against Asian American applicants to Harvard, the school's lawyers continued their counter argument with their supporters and experts.

As the trial entered the third and final week, The Boston Globe published a story saying that new guidelines surrounding the use of race were given to its admission evaluators.

"Harvard’s updated guidelines for seemingly the first time explicitly tell admissions officials evaluating the crop of students for the class of 2023 in what instances they should consider an applicant’s race. And they provide far more detailed information on how to measure personal qualities such as courage, leadership, and resiliency. Harvard’s use of these attributes in the admissions process is at the center of the complaint by the Students for Fair Admissions," reported the Globe.

The guidelines, issued about 10 days before the start of the current trial addressed those unquantifiable qualities that are under the microscope in the lawsuit, also told admission officers to not lean favorably to only outgoing students, but also to consider introverts, as well.

Harvard's lawyers presented one of Harvard's alumnae, Ruth J. Simmons, president of Prairie View A&M University and the former president of Brown University, endorsed Harvard's practice of giving points or preferences for legacy students or children of rich donors.

“It is entirely appropriate for them to believe that it would be wonderful if their children could also enjoy the same benefits that they enjoyed as students,” Simmons said of alumni of Ivy League institutions. “We’ve been made stronger by benefit of that [alumni] involvement... one way for us to signal how important that is to us is that we consider their children in the context of our admissions process.”

Under cross-examination, she clarified that students who didn't qualify or meet Harvard's academic standards should not be admitted simply because they have the privilege of privilege.

Later in the day, taking the stand was economist David E. Card, a University of California at Berkeley professor whom Harvard employed to analyze its admissions data ahead of the trial.

Card challenged the conclusion of anti-Asian discrimination in Harvard's admissions policies that were presented by the expert of the Students for Fair Admissions, which brought the lawsuit to trial. 

"My conclusion is that the statistical evidence does not support the claim that Harvard discriminates against Asian-American applicants," said Card. "There is no statistical evidence that Harvard has engaged in racial balancing."

He also said, "Race is a factor in admissions to Harvard. It is a factor that is valued in some candidates," he said. "There is never a situation where race alone is determinative."

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