As the crowd of us left the courtroom, the fire alarm not shrill enough to shake up our slow file, I overheard the man in front of me comment: “The way things are going, this trial’s never going to end.” This wasn’t the only joking going on. As the case got started – it was October 16, the second day of the Students for Fair Admissions v. Harvard trial – Judge Allison Burroughs reminded Harvard Dean of Admissions William R. Fitzsimmons that he would, in fact, still be under oath during the proceedings. It did not bode well when Judge Burroughs had to repeat the quip twice more for Fitzsimmons to understand.
Plaintiffs and defendants met at the US District Court of Massachusetts to hear the charges the Students for Fair Admissions (SFFA) nonprofit membership group is levying against Harvard University. In and out of court, it seems that the most emphasized accusation is the University’s policy of rating all applicants on “personality” and the fact that Asian-Americans are consistently rated lower on this score.
There are some who believe this is a deliberate method used to suppress the numbers of Asian-American applicants who are granted admission to Harvard. Opinion columnist Glenn Reynolds likened the process to Harvard’s former charge of rating Jewish applicants “down on ‘soft’ qualifications, so as to keep their numbers lower than their objective qualifications would warrant.”
Multiple sources refer to a 2013 internal report alleging the possibility that Harvard’s personality ratings may be indicative of bias against Asian Americans, which is said to have been buried by the administration. Even the Department of Justice argued that Harvard had willfully ignored this report in a larger statement contending discriminatory practices.
The question remains whether Harvard has been intentionally manipulating this rating system. Could low numbers be a byproduct of the scoring officers’ implicit bias? Is it some other unknown?
SFFA also charged Harvard with employing racial balancing and quotas. These approaches to affirmative action have long been considered unconstitutional, dating back to the 1978 Regents v. Bakke case where the Supreme Court countermanded the use of quotas in college admissions processes. In 2003, the justices ruled against the University of Michigan in Grutter v. Bollinger for assigning points to students for their race during the undergraduate applications process.
Judge Allison D. Burroughs is the most recent arbiter of affirmative action. Barack Obama nominated Burroughs to become a judge of the Massachusetts US District Court in 2014. She is known as an independent prosecutor, most recently for her decision to impose a seven-day restraining order on President Trump’s Muslim travel ban. She is also the daughter of a Harvard graduate, though Burroughs was rejected from the school herself.
Her first witness, though, is a Harvard alumnus. Dean Fitzsimmons, who joined Harvard’s admissions office in 1972, was the first in his family to attend college. During the trial’s first session, Fitzsimmons spoke of his own life and his time at Harvard – something, he testified, he could not have afforded without the tuition he received from his alma mater. He worked to pay the remainder because his parents couldn’t.
On the second day of the court proceedings, Fitzsimmons sat to the left of the lofty courtroom, bent slightly in his navy suit, computer and stacks of documents near for reference. The day began with interrogation by one of SFFA’s lawyers. At his prompting, Fitzsimmons testified that there are no written instructions on how race should be considered in Harvard’s admissions processes, though he acknowledged that this information may be passed orally during training. A Harvard Crimson article detailed how these trainings elaborated on demographic trends of Hispanic and Native populations and recognized the implicit and explicit biases Black students face, economic background notwithstanding, but failed to mention Asian-Americans.
Harvard had already rebutted SFFA’s accusations in a memorandum “in support of defendant’s motion for summary judgment” submitted to the court in June. Its authors explained the University’s “holistic” admissions policies to demonstrate that they do not employ quotas nor use race as a standard defining factor for any applications. They conceded that some applicants may be admitted where the defining factor is race, but this is only amongst extremely competitive applicants.
From the stand, Fitzsimmons rationalized the consideration of race as an attempt to bolster Harvard’s diversity: it gives students the opportunity to learn from people from every possible background. Race and ethnicity are becoming more important in this world, he claimed, and a diverse campus prepares students for that reality.
None of that morning’s charges directly addressed affirmative action, though this policy is what is at stake if the case is taken to the Supreme Court.
But what is affirmative action?
The answer differs depending on who you ask. In a New Yorker article titled “The Rise and Fall of Affirmative Action,” author Hua Hsu cites the findings of Professor OiYan Poon of Colorado State University, where thirty out of a group of thirty-six Asian-Americans she interviewed about affirmative action could not clearly define the policy.
How the Supreme Court has ruled on affirmative action in the past determines today’s metric. The New Yorker article outlined the history of the policy, whose origins can be traced back to New Deal Provisions, came to be defined as a corrective measure for racial discrimination, and is now championed as a “plus” that can increase a campus’s diversity.
Edward Blum, head of SFFA and the man spearheading its campaign against Harvard, is not satisfied with this argument. He finds race a contentious factor. In 1992, Blum tried and failed to join the Houston Congress in 1992, and subsequently filed a case alleging that gerrymandered districts favored racial minority candidates. He continued his activism in other cases, notably in Fisher v. University of Texas, which challenged affirmative action on behalf of his young, white female client. The case, which lost at court, argued against a policy of choosing applicants partly based on race (though any Texas students who were in the top ten percent of their class were assured admission).
Now, Blum and SFFA “seek 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.” Information on SFFA is largely limited to what is provided on its web page. The organization represents individuals who “believe that racial classifications and preferences in college admissions are unfair.”
Harvard reviewed the organizational structure of Students for Fair Admissions in its memorandum. The authors claimed that Edward Blum is using this case to advance his own personal ideology, and that since SFFA “is not a true membership organization that can sue on behalf of its members” (rather, SFFA is a facsimile representing Edward Blum), it should not have been allowed to bring the case to court.
But SFFA is by no means slogging ahead in its mission alone. The Asian American Coalition for Education represented 156 other Asian-American organizations in an amicus brief submitted to Boston’s US District Court on July 30, 2018 in support of SFFA. Even the Department of Justice has weighed in on the case, condemning Harvard’s admissions practices as an attempt at racial balancing.
On Sunday October 14, I attended a Students for Fair Admissions rally in Boston’s Copley Square with a team assigned to follow the event. People were milling as we arrived, and only about half of the folding seats so neatly lined in front of the rally’s stage were filled. A quick head count suggested a crowd of about two hundred and fifty to three hundred. Over the course of the event’s three hours, we discovered that many of the attendees had flown in from places like California, Florida and Washington State. The attendees were almost uniformly Asian-American, generally middle aged or older.
The rally organizers had enlisted a wide range of speakers, including high school pupils, a group of children dreaming grand futures, two Harvard undergraduates and more prominent guests. The talks were emotional, calling for fairness, consideration, and equality. Others bordered on the aggressive.
Vijay Chokal-Ingam, brother of comedian Mindy Kaling and author of the book “Almost Black: The True Story of How I Got Into Medical School by Pretending to Be Black,” addressed the audience in a tone of sharp censure. Chokal-Ingam decried Dean Fitzsimmons for “destroy[ing] the dreams of hundreds of thousands of ambitious young people whose only crime was the color of their skin and the shape of their eyes.” He called for his immediate resignation, swiftly following with an accusation: Harvard had used the audience’s “hard-earned money” to discriminate against them.
Before the more prominent speakers took stage, the sidelines of the event erupted in brief ruckus: a group had arrived with a banner emblazoned with the slogan, “THANK YOU PRESIDENT TRUMP 4 MERITOCRACY.” Kathy Zhu, a young Trump supporter, flailed to dispel a crowd of rallygoers attempting to block the banner with their SFFA signs. Zhu argued her right to attend, though other participants commented that it was never meant to be a partisan event.
A current junior at the University of Central Florida, Zhu had flown up to first canvas for conservative congresspeople in New Hampshire before joining the rally to call for the action of President Trump, because, she claimed, “only he can make a difference for this.” Her larger message was in support of meritocracy: she interpreted the sign as a “Thank you President Trump for merit,” claiming, “our country is based on merit, not by race.”
Another woman joined in after Zhu was left to guard the large sign. This woman carried her own banner, in English and Chinese, screaming when security got too close and chanting: “I fight for my kids.” Others have echoed this sentiment. Activist Yukong Zhao, resident of Florida, founded the Asian American Coalition for Education in part to fight to maintain California Proposition 209, which got rid of affirmative action in the state. Zhao offered that his own son, who excelled in school, was not accepted to any elite universities.
The rally’s attendees also focused on their status as American citizens. For this group, comprised partially of recent immigrants, the American Dream is still a dear promise. In “The Rise and Fall of Affirmative Action,” Hua Hsu explains that individuals who have only recently come to the United States are fighting for their interests, but without a broader understanding of the American Civil Rights movement. They are “a group of newer Americans fighting for the American Dream,” and who may be “the only ones who speak about meritocracy and fairness without a trace of irony.”
There is conjecture that many of those who support the SFFA side are a relatively homogenous group. Harvard undergraduates Julie S. Chung, senior advisor and previous co-president of the Harvard-Radcliffe Asian American Women’s Association and co-chair of the Pan-Asian Council, and Alexander Z. Zhang, co-president of the Harvard-Radcliffe Chinese Students Association and co-chair of the Pan-Asian Council, acknowledged this fierce backlash, which largely concerns the disaggregation of data of the Asian-American ethnic category, in an interview on October 5.
Chung, who had co-authored a piece on the lawsuit with Zhang back in July, explained that this group is mostly East-Asian, and largely Chinese American. She predicted that this group, which is against data disaggregation “for the Asian-American sample” would probably “be the same people used by Blum and SFFA when they do their protest this upcoming month.”
Parents know that their children are fighting for a limited number of spots in elite universities, and disaggregation would likely mean fewer places left for Chinese-Americans. Zhang likened it to “an acknowledgment of privilege and trying to defend that.” Since 2012, the number of Chinese-Americans who support affirmative action has fallen, though it remains popular with other Asian-Americans.
Author Hua Hsu focused on the Chinese-Americans most taken with SFFA. Hsu detailed a movement where Chinese-immigrant newspapers picked up on the earlier case of Michael Wang, who “filed a discrimination complaint against Yale, Stanford, and Princeton with the Department of Education’s Office for Civil Rights.” After championing the case and frustrated with “being held to unfair standards,” these Chinese-Americans are now actively engaged in American politics.
Some question whether today’s American Dreamers understand the implications of their actions. As Chung intimated, there are those who believe that Edward Blum is using the Asian-American plaintiffs in this case to advance his own agenda. Are the Asian-Americans that SFFA represents being manipulated to form the face of a campaign that will end affirmative action? Professor OiYan Poon believes so, claiming that Blum recruited this group of Asian-Americans for “racial mascotting.” Others reference a video where “Blum admits that he ‘needed’ Asian plaintiffs” for this case. If the case is taken to the Supreme Court and leads to the dismantling of affirmative action, SFFA’s plaintiffs will in all likelihood lose out as a group – for it will be White applicants who have the most to gain from the death of the policy.
Race-conscious admissions policies are intended to benefit historically marginalized groups. Julie Chung described it as a two-part system: “Addressing historical inequalities,” but understanding that “eliminating race-conscious admissions wouldn’t really allow applicants to talk about their race, when in fact… race plays a huge part in many people’s identities… there’s a part of identity formation that can’t just simply be explained by your class background.”
Alexander Zhang seconded Chung, clarifying: “I think there’s a misconception as it stands of what affirmative action means – you get, like, plus X number of points for race. It just doesn’t make sense to exclude race because it’s so integral to so many applications.”
In Harvard’s memorandum, the authors explained that the University has created committees that have done rigorous review of its admissions policies. The conclusion: there is no reasonable alternative to race-conscious admissions that would allow the university to maintain its current level of diversity.
Inequality is still a major force on college campuses, and a focus on diversity is one way to address that. Other states have banned affirmative action and instituted policies that focus on socioeconomic status, but these universities have not successfully preserved “classes with an ethnic makeup that mirrors that of the states where they have been used.” Other suggestions might include decreasing legacy acceptance rates, but in its memorandum, Harvard argued the value of maintaining connections with wealthy and influential alumni.
Where, then, can we go from here?
Whatever the path, there will be problems. Meritocracy is not perfect, just like affirmative action is not perfect. Some claim meritocracy cannot even exist in an admissions system, that “however you measure these things—whatever you do [in the admissions process]—is going to privilege one group and disadvantage another group.” And if affirmative action is upheld, Harvard and other universities nationwide will have to answer for its past mistakes.
Julie Chung explained the ambiguities surrounding these issues well: “I think that people falsely equate this as a struggle between Harvard as the good guy and SFFA as the bad guy… We’re just trying to say, at the end of the day, we want race-conscious admissions to continue, and affirmative action policies to continue.” But, she clarified, “that doesn’t mean that they can’t be improved, or that there isn’t more work to be done to genuinely support students of color on campus.”