Affirmative Action Keeps Some Students Out

Editor’s note: Roger Clegg is president and general counsel of the Center for Equal Opportunity.

In November 2006 Jian Li filed a discrimination complaint against Princeton University.  He graduated in the top 1 percent of his high-school class and received a perfect score of 2400 on the SAT, as well as perfect or near-perfect scores on the SAT subject-matter tests in math, physics, and chemistry.  But those achievements were not good enough for Princeton, which turned down his application, as did Harvard, MIT, Penn, and Stanford.

Mr. Li was aware that his race worked against him, since most selective universities give preference to African Americans, Latinos, and Native Americans over Asian, Arab, and European Americans.  So he filed a complaint with the U.S. Department of Education’s Office of Civil Rights, arguing that students of Asian ancestry were judged by different criteria than some other groups were.

Whatever the Obama administration decides to do with Mr. Li’s complaint (it is still “investigating”) there is no doubt that Asian Americans are discriminated against in university admissions.  The studies published by my organization, the Center for Equal Opportunity, over the past 15 years have analyzed the admissions data obtained from the schools themselves through freedom-of-information requests, and have concluded that African Americans and, frequently, Latinos are given significant preferences over both whites and Asians.

Our study of the University of Michigan, for example, found that in 2005 an in-state male with no parent ties to the school, a 1240 cumulative SAT, and 3.2 high-school grade-point average had a 92 percent chance of admission if black and an 88 percent chance if Latino – but only a 14 percent chance if white and a mere 10 percent chance if Asian.  Our study of six North Carolina schools – North Carolina State and the University of North Carolina campuses at Asheville, Chapel Hill, Charlotte, Greensboro, and Wilmington – found the same pattern.

Students of Asian ancestry appear to face the same kind of treatment that Jewish students did decades ago. They’re held to higher standards than applicants from other groups in order to keep their numbers down and ensure more room for less academically gifted students from “underrepresented” groups.

In this Boston Globe story from February, Professor Kara Miller argued that elite colleges and universities in effect “redline” Asian-American students because they don’t want too many students from this group known for academic diligence. Borrowing a phrase from Daniel Golden’s book The Price of Admission, Miller calls Asians “the new Jews.”

It’s also revealing that the Princeton Review Student Advantage Guide advises Asian students to avoid checking a race box and not to send a picture if they can avoid doing so.

In my view, the use of racial preferences is wrong even if the only victims are white males.  But here I’d like to focus on why, when the victims are Asian students, the use of preferences is even more untenable.

The Equal Protection Clause of the Fourteenth Amendment to the Constitution forbids the denial of “the equal protection of the laws.”  Whatever kinds of discrimination it forbids, it certainly forbids racial discrimination; and even if we adopt a liberal (and antitextual) interpretation that minorities are afforded greater (i.e., unequal) protection than nonminorities, Asians are clearly a minority – in fact, a smaller minority than African Americans and Latinos.

Or consider Title VI of the 1964 Civil Rights Act, the other key law when it comes to university admissions.  It states:  “No person in the United States shall, on the ground of race, color, or national origin, … be subjected to discrimination ….”  Interpreting that to allow discrimination against some racial minorities and not against others has no basis in text, or history.

Alas, the Supreme Court has chosen to ignore the law’s plain wording and allows racial discrimination whenever five justices believe it makes sense as a policy matter, as in its 2003 decision in the University of Michigan law school case, Grutter v. Bollinger.  But any fair-minded policy decision must weigh benefits against costs, and here it is clear that the costs of such discrimination overwhelm any benefits.

The two main justifications for preferential admissions are that they help remedy past or ongoing discrimination, and that there are educational benefits from campus diversity.  Neither is persuasive, and especially not when Asians are being discriminated against.

They, after all, have themselves been victims of discrimination—of the politically incorrect variety in the past, and of the politically correct version now—so the remedial rationale doesn’t work.

As for the diversity rationale, it is rooted in stereotyping—it assumes that skin color automatically tells us something about a person’s perspectives and experiences. That problem is exacerbated when the person being discriminated against belongs to a group that is not only heterogeneous but is, indeed, frequently stereotyped. Asians are often treated like a herd of overly studious geeks who do nothing to make the campus “interesting.”

While the benefits of using racial preferences are extremely dubious, the costs are serious and largely irrefutable. Here’s a partial list.

It passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the school; it encourages a scofflaw attitude among college officials; it mismatches students and institutions, guaranteeing failure for many of the former; and it papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive.

All of these costs are present, and many are heightened, when the victims of the discrimination are Asian Americans.

Sometimes the mask slips, and it is revealed that “diversity” is another word for “quota.”  Since California has a high percentage of Asian Americans, it is no surprise to find the mask slipping there.

“Our diversity is our great strength,” President Clinton declared in a 1995 interview with the Sacramento Bee. “If a university says, ‘Look, we’re only going to let in qualified people, but we think that the life of the university will be strengthened if we had different kinds of people,’ then I think that’s a legitimate thing.”  Otherwise, he added, “there are universities in California that could fill their entire freshman classes with nothing but Asian Americans.”

When California public universities were required by the passage of Proposition 209 in 1996 to end—or, at least, curtail and disguise—their affirmative action, the numbers at selective schools went up dramatically for Asians.  Recent efforts to circumvent Proposition 209, including by downgrading the use of the SAT, seem to be aimed at reversing that meritocratic trend.

The strongest force for racial preferences is a visceral one: “America has a sad history of discriminating against blacks in favor of whites, and we have to do something to make up for that.”  Although that was never a very good argument as a matter of logic or policy, it is powerful emotionally.

But in an America that is increasingly multiracial and multiethnic, we shouldn’t have a legal regime that sorts people according to skin color and what country their ancestors came from, then treats some better and others worse based on which silly little racial or ethnic boxes they check.

African Americans are no longer the largest minority group:  Latinos are.  And Asians, too, are a rapidly growing minority.  So even if, in 1965, you had a visceral sense that it was okay to give a preference to blacks over whites, how do you feel, in 2010, when a Latino is given a preference over an Asian?  What is the historical or emotional – or moral or legal – justification for that?