Affirming a Corrupt System

SCOTUS reconsiders precedent yet again, targeting higher education


Infographic by Emma Li.

Emma Li, Co Editor-in-Chief

In 2022, the group Students for Fair Admissions (SFFA), led by conservative legal activist Edward Blum, sued the University of North Carolina and Harvard University for their use of affirmative action, claiming that Harvard discriminates against Asian American applicants. The Supreme Court of the United States (SCOTUS) heard the cases from late October to mid November 2022, and will make their case in the spring or summer of 2023. 

Position: The numbers of Asian Americans at Harvard have increased, so (a) affirmative action is working, or (b) affirmative action is no longer necessary.

Explanation: 28% of the entering class at Harvard this year is Asian American, while the overall Asian population in the U.S. is 7.2%. Depending on how someone looks at these numbers, this has only happened because affirmative action gives minorities an opportunity to achieve in higher education. On the other hand, some may say that this means that Asian Americans are doing just fine on their own, and the 2003 SCOTUS prediction that affirmative action will no longer be necessary in 25 years can happen now. 

Position: Diversity is important because when people of different backgrounds and experiences come to live and learn together in college, these students grow with each other to become better people. 

Explanation: One cannot really argue with that. In the wake of the Black Lives Matter movement along with the rise in hate crimes against Asian Americans during the COVID-19 pandemic, parts of the U.S. have put an increased emphasis on the value of diversity. Whether performative or genuine, it is undeniable that it is everywhere. In the wake of an awareness of the racism in America, a recommitment to affirmative action makes sense. 

Position: Schools should not have to consider race in admissions and be race blind, looking at wealth or location instead. 

Explanation: SCOTUS precedent states that race ought to be considered as one of many factors of a student’s application. Perhaps a Black or Latino student may be more likely to live in a less wealthy community with fewer resources – this argument says to look at the student’s location, such as through a school report, or the average income of the student’s city. On the flip side, Harvard and the University of North Carolina for the 2023 case have stated that race blind methods have not been as effective. Considering that Harvard is known for being pretty smart, it stands to reason that unless they are lying, it is probably true. 

Position: If affirmative action went away, the number of Black, Latino, and Indigenous students would decrease, and the admissions process would favor white and Asian students. 

Explanation: That is true. When California banned affirmative action in 1996, it immediately saw the effects. At UCLA, 7% of their students were Black, but that slipped to 3.93% by 1998. Arizona, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma and Washington have also banned affirmative action. 

Position: This is not looking good for Harvard – this is just like when they imposed quotas on Jewish students in the 1920s through scoring them on personality traits. 

Explanation: Harvard wanted their students to have “Harvard character” and their antisemitism meant playing into the stereotypes of rating Jewish people as selfish while the so-called Christian values of being team players meant their socially accepted Protestant applicants made it in. Blanket statements of Jews or Asians being nerdy and competitive do not take into account the pressure that these children face to live up to expectations typical of immigrant families to live a better life and earn it through schooling, and harm both the students who do and do not fit these molds.  

Position: If the SCOTUS overturns affirmative action, that breaks precedent and further damages the people’s trust in its judicial system.

Explanation: Precedent is the idea that what the SCOTUS has ruled before, it will generally follow. When the SCOTUS ruled that people have the right to abortion in 1973, that meant that if the topic came up again in court, following precedent means that justices would say, “yes, people have the right to abortion. We agreed on that in 1973.” When the SCOTUS does not follow precedent, people lose trust in the government. There is currently a six justice conservative supermajority, so there is that as well. 

Position: The goal is to eventually become race blind. 

Explanation: Schools have tried to look at factors such as wealth, location and schooling instead of race. There are 4,360 higher education institutions in the U.S. Even if only 10% of those institutions are actually trying, that is still 436 schools that have not found any solution better than affirmative action to try to balance out the scales of generational wealth, variations in k-12 education systems and barriers to testing. The fact is that racism still exists in America, and whether it is institutional through cycles of poverty or unknowingly in the minds of admissions officers, going race blind in 2023 would be a foolish idea indeed.

Position: Educational diversity is important because it makes students better people, so admissions should consider race as one of many factors. 

Explanation: Institutions that use a holistic admissions process supposedly look at each application individually to get the big picture of a student. A student’s GPA and test scores are only part of it, so extracurriculars and volunteer work finds it way into the picture. Factors that may hold a student back such as an underfunded school, being a first generation immigrant, or the first to apply to college can also tip the scales in a student’s favor. There are many factors that hold students back in the admissions process, such as race, that should not be overlooked. Each person is different, so holistic is the way to go, especially for highly selective schools. 

Position: Brown v. Board of Education (1954) was a landmark decision by the Supreme Court, which unanimously voted for ending segregation in schools. Although nothing actually changed for quite some time, people on both sides of the affirmative action argument now are using it to say (a) a lack of segregation means colorblind admissions or (b) a lack of segregation did not come about without activism, which means a commitment to affirmative action. 

Explanation: The reason why both sides can use the same case to argue two different positions is that the language of the decision is just vague enough to support both arguments. The case supports equality, which in the early stages of progression, means colorblind admissions. A more nuanced, equitable, approach would fall into the second argument that affirmative action takes race into account on top of many other factors and implications surrounding race. 

Position: Almost everyone gets rejected from Harvard, so what is all the fuss about?


From a general perspective: Before racial quotas were ruled unconstitutional, Allan Bakke sued the University of California because his test scores were higher than some of the minority students who were accepted. There are people who work very hard to get their test scores as close to perfect as they can get, getting tutoring, practice tests, and taking more tests. 60% of people who take the ACT a second time will score higher. However, that costs money. It costs $60 to take the ACT without writing, $85 with, and even more with late registration fees. The official practice book is $30, and there are all sorts of tutors out there. So, there is privilege that comes with higher test scores that people with lower incomes, typically racial minorities, cannot afford. 

From an Asian American perspective: Many immigrants see higher education as a way to climb the social ladder. In more pleasant political times with China, the US provided many scholarships to send STEM students over to graduate school in America. Those immigrants have since planted roots and had children. This has undoubtedly led to the model minority myth, along with the idea of tiger parenting where parents push their children to attend top 20 schools. The big fuss about getting rejected from Ivies is that this is being a minority without any of the so-called pity benefits. These students know they have to work ten times harder to get a chance to stand out among the many students just as passionate as they are on the same topics, but “look the same.” The system has put minorities against each other because these groups are all being put down for different reasons, either not getting a chance at all, or getting rejected despite all the work and sacrifice. No one wins here, and the real argument is not “us or them,” but somewhere in between. 

Position: If admissions cannot look at just test scores and cannot look at just race, what can they look at?

Explanation: Plenty of top schools have gone test optional with COVID-19 and remained so, with some even going test blind. So, that is one way to take down some barriers to higher education. Quotas have been ruled unconstitutional, so admissions generally look at everything else, like GPA, extracurriculars and essays. Essays, interviews and videos can also help admissions to glean information on personality. 

Position: Some Asian Americans support affirmative action – what about that?

Explanation: There are Asian Americans who say that their story cannot be looked at in a race blind way – and that absolutely makes sense. Affirmative action is necessary for many minorities to get ahead, including Asian Americans. Being an immigrant is an important part of someone’s identity, and cannot be looked at without race, and the race card is absolutely something to pull honestly. Again, this is about the search for an equitable admissions process, although it looks like we will be looking for quite some time. 

Position: Legacy admissions put wealthy white applicants at an advantage, so really no minorities are winning in this system.

Explanation: Legacy admissions give an advantage to students whose parents went to that school. For example, an estimated 25% to 35% of admitted students at Ivy League schools are legacy students, which is a huge advantage at schools with acceptance rates below 10%. This is a system in place that still benefits upper class white applicants and would be one of the first to go if affirmative action were to be overturned. Unfortunately, schools are unwilling to let go of this because of the benefit of donations that allow these schools to maintain their resources, which also goes into financial aid for first generation Ivy students who would not be able to afford tuition otherwise. 

Position: Affirmative action is useless unless institutions provide extra support to the students they admit who come from fewer resources so diversity is not a number, but those students actually belong. 

Explanation: Part of the support for SFFA is that the admitted minorities do not have scores as high as Asian American applicants, while the purpose of affirmative action is to attempt to break cycles of poverty perpetuated by a lack of higher education. If those students were provided additional support in the K-12 system or at those institutions, that implies actual care for education, rather than fulfilling diversity requirements. 

Position: Edward Blum is leading SFFA in order to use his white male privilege to protect the Asian American plaintiffs. 

Explanation: Conservative legal strategist Edward Blum has been suing people since the 90s, first for redistricting when he lost an election for Congress in Bush v. Vera (1996), then primarily in cases involving affirmative action, multiculturalism and redistricting such as Northwest Austin Municipal Utility District No. 1 v. Holder (2009), Fisher v. University of Texas (2013), Shelby County v. Holder (2013), Evenwel v. Abbott (2016) and Fisher v. University of Texas II (2016). In an interview with the New York Times, Blum explained that he believes that no one should be judged by the color of their skin. 

“Most Americans don’t want race to be part of your application to college,” Blum said. “They don’t want the police to use race as a profiling tool to prevent crime… Your race and your ethnicity should not be something used to help you or harm you in your life’s endeavors.” 

While this is a nice sentiment, and taken out of context, many major sides would agree. Ultimately, it is undoubtable that we are once again pitting minorities against each other, without any real, solid compromises in the near future. 

These are the controversial ones. If you are easily offended, shield your eyes. 

Position: Admissions discriminate against Asian Americans by scoring them lower on personality traits. 

Explanation: Holistic admissions will look at likeability, kindness, courage, positivity, being widely respected, emotional intelligence, self efficacy, creativity, open mindedness, curiosity, willingness to stretch and most importantly, leadership. Documents that surfaced in 2018 supported claims that Asian Americans tend to score lower in these personality tests. At the same time, Asian immigrant parents see getting their children into a top college as the pinnacle of upward social mobility. They believe that their high performing children are getting passed over because of their race, and when they go get help in college admissions, the industry of college advisory only supports their suspicions. Students are told to try to look “less Asian” by steering these children away from activities such as piano, violin, venu flute, Chinese school or AP exams, chess and tennis. Part of the reason why these activities are so stereotypically “Asian” is because parents come from countries where they learn to play the numbers game, and the West’s holistic view influences them to look at what their fellow immigrants are doing. The idea that Asians “all look the same” because coding club and debate looks good for college leads to being excluded for playing the game too well. And on top of the pressure to have the best scores and most well rounded application while scoring high on being likable and unique individuals, students also have to aim for a “hook,” the quality that makes someone “Ivy League material.” It is, essentially, the ability to change the world. No wonder people are suing after all the work that goes into that. 

Position: So is it different this time, since the argument has opened to include Asian Americans along with white people at the top?

Explanation: Yes and no and maybe. Every time, it has been a white person that has sued, and this time it is an organization founded by a white man on behalf of the Asian Americans who agree that they are getting passed over for being too successful, too stereotypical. The model minority myth has been and always will be a myth. Students work really hard to get to the top, and getting passed over for being too conventional is a tough pill to swallow. These kids are not born perfect little computer science machines. If affirmative action were to go away, it would benefit these students a lot and make it all worthwhile. It makes the sacrifices their families make to raise their children in a different country worth it, makes the all-AP schedule worth it, makes the long hours at work or at the computer or at that tournament worth it. These students are poised differently from other minorities in America because their parents typically come on scholarship, and the vast majority of their ancestors were not directly enslaved during critical moments of U.S. history. However, being a model minority does not put these groups on the same level of the white side of American history.