Shabnam Afsah | India Currents
Ask anyone in the South Asian American diaspora why we are often referred to as the “model minority community,” and a common answer is that we place a high value on education.
Among Indian American adults, 69% have a four-year college degree; East Asians and Whites have rates of 51% and 30% respectively.
However, is America’s changing political climate endangering access to higher education for students of color?
According to Students for Fair Admissions (SFFA), the answer is a definite yes. Alleging that Asian students are discriminated against in the college admissions process, SFFA successfully sued Harvard University and the University of North Carolina in two Supreme Court decisions last year, claiming that their affirmative action programs are unfair to Asian American students.
The resulting rulings on June 29, 2023 effectively overturned affirmative action in U.S. college and university admissions programs.
Diversity in America
In recent years, there has been pushback by right-leaning political leaders against not just affirmative action programs in educational institutions but also against all kinds of Diversity, Equity, and Inclusion (DEI) policies.
DEI policies seek to promote the fair treatment and full participation of all people, particularly groups who have historically been underrepresented or subject to discrimination based on identity and disability; but in this highly charged election season, states run by Republican majorities have taken a clear stand against any such policy initiatives.
At an October 23 Ethnic Media Services panel, speakers discussed the issue of how recent efforts to overturn affirmative action in higher education are affecting the admission process for minority students.
Niyati Shah, director of litigation at Asian Americans Advancing Justice, explained how the two landmark cases, respectively concerning Harvard University and the University of North Carolina, have changed the legal landscape of affirmative action. Now, race cannot be considered a factor while evaluating a student’s application for admission; an exception was made for military institutions.
Shah explained that according to these two judgments, college admissions is a “zero-sum game,” meaning that by granting admission to one person, there is a resultant loss for another.
In Shah’s view, however, “this concept is based on a very faulty premise” because it doesn’t account for variations in the applicant pool from year to year; advantaging one student doesn’t necessarily place another student at a disadvantage, because each year the percentage of minority representation among overall applications varies.
Background on the Supreme Court decision
In the Supreme Court’s 2023 majority opinion, Justice John Roberts held that affirmative action or race-based college admissions programs violate Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment the 14th Amendment, thereby reversing established precedent.
Since the 1960s, a student’s race has been one of many factors that Harvard College used as a factor in evaluating applications for admission. For over 40 years, the Supreme Court had acknowledged and repeatedly affirmed in various cases that such affirmative action programs were legal and justified.
In 1978, in the case of Regents of the University of California v Bakke, the court held that a university’s admissions criteria which used race as a definite and exclusive basis for an admission decision violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.
The plaintiff in the case was a white man who presented evidence that his grades and test scores surpassed those of many minority students who had been accepted for admission to medical school at the University of California, Davis.
Bakke contended that he had suffered “reverse discrimination” based on race and that this was in violation of the Equal Protection Clause of the Fourteenth Amendment and contrary to the Civil Rights Act of 1964.
The Supreme Court, in a highly fractured ruling (six separate opinions were issued), agreed that the university’s use of strict racial quotas was unconstitutional and ordered that the medical school admit Bakke, but it also contended that race could be used as one criterion among others in the admissions decisions of institutions of higher education. Even though the court rejected the argument in support of quotas, it left the door open for race to be used as a criterion of consideration among many in admissions.
Again, in 2003, Grutter v Bollinger upheld that the use of an applicant’s race as one factor in an admissions policy of a public educational institution does not violate the Equal Protection Clause of the Fourteenth Amendment if the policy is narrowly tailored to the compelling interest of promoting a diverse student body, and if it uses a holistic process to evaluate each applicant, as opposed to a quota system.
In 2013 with Fisher v University of Texas at Austin and in 2016 with Fisher v University of Texas at Austin, the court held that the race-conscious admissions program in use at the University of Texas are lawful under the Equal Protection Clause and that race can be one of many factors considered in college admissions as a critical means of creating diverse campus communities that benefit all students.
While the SFFA judgement overruling all these previous cases, the majority judgment in 2023 written by Chief Justice Roberts held that the risk at stake is that race would be used not as a positive, but as a negative factor against students, effectively discriminating against students that were not the beneficiaries of the race-based preference.
The judgment continued: “The First Circuit found that Harvard’s consideration of race has resulted in fewer admissions of Asian-American students. Respondents’ assertion that race is never a negative factor in their admissions programs cannot withstand scrutiny. College admissions are zero-sum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.”
Changing diversity on college campuses
Over one year since the Supreme Court struck down affirmative action, the adverse effects of the SFFA judgment on some college campuses are already becoming evident.
Data collected by MIT demonstrates that enrolment of Black, Hispanic, Native American, and Pacific Islander students has dropped from 31% to 16%; Asian American student enrolment rose from 41% to 47%.
According to Inside Higher Ed, “the impact of the ruling on the demographics of selective colleges has been harder to ascertain.”
At the EMS discussion, Liz King of the Leadership Conference on Civil and Human Rights said that even before the SFFA judgment, “colleges and universities have not adequately represented the diversity of talent and skills found across our nation. While the Supreme Court has erected new barriers to college access, college and university leaders and policymakers are not off the hook.”
“Barriers to equal opportunity in higher education are found in decisions made throughout the system,” she continued. “We should take this judgment as a wake-up call — a call to action for everyone to double down and take new action to achieve the national imperative of racial equity and diversity in higher education.”
This coverage is made possible through the Ethnic Media Services / AAJC reporting project on diversity after affirmative action.
