Today, Explained - Affirmative reaction

Episode Date: October 17, 2018

Harvard is on trial. A group of Asian Americans is facing off against the college in court, where it might dismantle the very affirmative action law that was meant to help minorities. Learn more about your ad choices. Visit podcastchoices.com/adchoices

In 2012, Michael Wong was a senior at James Logan High School, one of these pretty competitive high schools in California's Bay Area. And he had really tried to position himself to check off all the boxes that colleges look at. You know, he had really high grades, I think something like a 4 or 6. He'd aced all the standardized tests, but he'd also done a lot of community work, organizing sort of clubs and being part of the debate team. And he felt pretty confident that he would get into at least one of the four schools that he applied to. I think he dreamed of going to Harvard, Yale, Stanford, and Princeton.

Unfortunately, he didn't get into any of these schools. And he started looking around, and he realized that other people at his high school had gotten into some of these schools. And he started to think about what made their cases stronger than his. And one thing he realized was that none of these other people were Asian. It sort of spoke to this informal belief among Michael and some of his friends that to be Asian American and to be applying to these elite schools, you had to be extra good. So he started looking into things he could do to figure out whether this was true. He began to ask questions, and these questions really captured the imagination,

not just of some anti-affirmative activists who were working at the sort of D.C. policy level, but also among a lot of Asian Americans, particularly middle class, sort of newer immigrants living in California. And these two sort of constituencies are now at the forefront of this Harvard lawsuit that is currently underway, which could potentially end affirmative action as we've known it for the past decade. You know when the average person's upset, they call a friend, they have a good cry, maybe they take it out on someone else. The point is they move on.

Michael Wong isn't your average person. He took all that emotion and turned it into something much, much bigger. Michael Wong's emotion walked into a courtroom in Boston on Monday. The case is contending that Harvard is systematically discriminating against students based on race. Aaliyah Wong wrote about the case for The Atlantic. It homes in on Asian Americans and tries to twist the narrative by saying, ironically, you know, this policy that was designed to elevate the outcomes of disadvantaged minorities is actually disadvantaging a minority that it was designed to serve. And the funny thing about it is this. Michael Wong isn't even the plaintiff. He's not even involved in this case. The plaintiff in this case about Asian American college admissions

is actually an organization run by an older white guy. The suit is being brought by an organization called Students for Fair Admissions. And the key person behind the suit is a man named Ed Bloom. We will finally sort of achieve what, you know, the great founders and visionaries of the civil rights movement taught us. And that is your race and your ethnicity really shouldn't count for anything, whether it's in college admissions or jobs. He's a white man. He is a legal strategist. He's not the actual attorney. But he's basically the mastermind behind this lawsuit, but also a bunch of other affirmative action suits and even voting rights suits in the country. Most famously, I guess, Fisher v. University of Texas, the last

affirmative action case to go to the Supreme Court. Abigail Fisher brought the case in 2008. She sued UT Austin after the school rejected her, she claims, in favor of minority applicants with lower grades and test scores. So how did Ed Bloom transition from saying white people are being disadvantaged by affirmative action policies to saying Asian Americans have been disadvantaged by affirmative action policies? Was that sort of a marriage of convenience, a natural progression? What? A lot of people who I've spoken with have consensus that he was motivated by these larger concerns about affirmative action and Asian Americans kind of emerged as the ideal

political pawns in this effort. I needed Asian plaintiffs, and finding plaintiffs to challenge the Ivy League admissions policies, Harvard in particular, is not an easy thing to do. With previous cases, it was basically that whites no longer have the privilege they once had, so it's kind of a harder argument to make. But when you're using Asian Americans, it becomes a little bit easier to sympathize with the claims. And the

lawsuit is saying that Asian Americans as a whole are being disadvantaged. But really, when you look at who has been the most vocal around the issue, it is almost exclusively Chinese Americans. So it really is a very distinct sector of that population. So what's the argument Ed Bloom and this group, the SFFA, is making right now? How do they think Harvard is discriminating against Asian Americans, sounds like East Asian Americans in particular? First, I'll kind of walk you through the way that Harvard approaches admissions, which has grown increasingly complex. They approach each candidate through the lens of five categories, one being just the overall, but the four specific ones, academic, extracurricular, athletic, and personal.

What the plaintiffs are saying is that, by and large, Asian American students have higher test scores, better grades, even more prolific extracurricular resumes. That's proven in the data that often negates the prospects of an otherwise strong candidate. But I guess Ed Bloom is saying that none of that should even matter. Like we should just be letting in the best students, pure meritocracy. So what's Harvard saying in its defense to this suit? They see diversity as including race, but definitely not being limited to that. They see diversity as pertaining to academic disciplines, geography, background in terms of income and the educational achievement of parents. And so it's really, really hard to say, again,

that something like race is categorically allowing them to use quotas. Doesn't a place like Harvard let a whole lot of students in based on legacy and sports? Yeah, I was reading one analysis that found that as many as 40% of white students at Harvard are either legacies, which are the students who have relatives who are alumni, or students who are recruited for athletics, which is a similar category in that it's predominantly white affluent students. And that's according to an analysis by Julie Park, who's a professor at the University of Maryland. And by citing that data about the legacy admissions and the athletic recruits, Harvard's saying the plaintiffs in their analysis of the student record data omitted students who had been admitted through those particular avenues, and that sort of skewed their conclusions. It seems kind of like this backwards irony, Harvard saying, you know,

we don't discriminate against Asian American students, but we do discriminate to make sure that, you know, 40% of the white students who go to this school get in on account of athletics, or because mommy and daddy and grandpappy and uncle Tim went to Harvard? Yeah, so it's basically throwing itself under a bus to avoid being thrown under an even bigger bus. Huh. I wonder, do we know how young Asian Americans feel about this lawsuit? Has this been like a rallying point for lots of young Asian Americans? Or is this just limited to, you know, high achieving East Asian Americans who are trying

to go to the, you know, best university in the world? If you look at the polling data, 73% of Asian Americans, not including Chinese Americans, support affirmative action. That's according to a recent survey. But even today, four in 10 Chinese Americans say they support affirmative action. So this notion that this is a widespread opposing force among Asian Americans is flawed. If this Massachusetts court sides with Ed Bloom and the SFFA, what happens to Harvard's admissions process? Either way, whatever the ruling is, we're inevitably going to see an appeal and work its way up to the Supreme Court, or at least that's what a lot of legal observers suspect

will happen. If and when it does make it to the Supreme Court, a lot of people, particularly those who kind of fundamentally support the values and the strategies baked into it, are really nervous that this will mark the death knell for affirmative action everywhere. Because even now, we're left with a very limited scope by which that can take place. There's not much left to salvage. Aaliyah Wong reports on education at The Atlantic. We reached out to Ed Bloom, who runs Students for Fair Admissions, the plaintiff in the case. He kindly declined because he's a little too close to the action

on this one. Coming up, how affirmative action went from this big, grand idea to help right historical wrongs, to this tiny little thing that helps people get into the most elite universities in the world. This is Today Explained. Thank you. story and this case and affirmative action in The New Yorker, how far back exactly does affirmative action go?

It traces back in a government context to FDR and the New Deal. By this act, employers are bound to bargain collectively with an organized majority of their workers. The Supreme Court opposed the Wagner Act, and broad New Deal legislation becomes constitutional by the deciding vote of a single justice. People who were parts of unions, there were reprisals against them, right? So companies that had done so were told to act affirmatively to restore people, even if they were part of the labor unions. It really begins to mean what we today see it to mean. In the 1960s, President Kennedy issued an executive order.

We hope in the next few days to have an executive order forthcoming which will strengthen the employment opportunities both in and out of the government for all Americans. He urged government institutions, government contractors to act affirmatively in promoting policies of non-discrimination. The initial impetus for affirmative action was really to make up for the sins of the past. It was very clear in saying, for hundreds of years, entire classes of individuals in the United States didn't start at the same starting line as everyone else. And what can we do about that? What happens in the 70s? Is that when you start to see affirmative action being challenged?

Or is everyone on board? You know, a lot of people were on board with affirmative action. It had bipartisan support. Obviously, Kennedy and Johnson weren't very specific about what affirmative action was. So the courts began to kind of figure out which interpretations of affirmative action were actually constitutional and which were not. The landmark case was the Bakke decision in 1978. First case on today's calendar is number 76811, Regents of the University of California against Bakke. A white applicant to the UC Davis Medical School thought that he would have gotten into the school had he not been white. At the time, the medical school set aside something like 16 seats for minorities.

He had been told sort of informally that he probably could have gotten in had those quotas not been in place. The Supreme Court heard his case. They ruled in his favor in that he was allowed to go to medical school. Insofar as the California Supreme Court held that Bakke must be admitted to the Davis Medical School, we affirm. They ruled against the admissions policy at the school. Insofar as the California court prohibited Davis from considering Reyes as a factor in admissions, we reversed. So quotas were deemed illegal.

But something really interesting happened in that case. Four of the justices were against affirmative action. Four of them were for affirmative action, but as a means of redressing sort of prior historical injustice. The deciding vote came down to Justice Lewis Powell, and he rejected the premise of kind of historical reparation. Discrimination by society at large with no determined effects is not sufficient to justify a petitioner's racial classification. In my view, the only state interest that fairly may be viewed as compelling on this record

is the interest of a university in a diverse student body. He had really created the notion of diversity that we today use, not just in affirmative action, but sort of in everyday parlance. What did the public think about affirmative action? There are certainly people who thought affirmative action wasn't radical enough. From a progressive point of view in the 70s, there were even people who thought affirmative action wasn't worth thinking about because there was so much more that the government could do. There was so much more that could be asked of institutions. The idea of a quota system seemed quite token and conservative. There's this really fascinating blaxploitation film called The Spook Who Sat By The Door.

How do we retrieve the lost black vote? Gil, why don't we accuse the CIA of a racially discriminatory hiring policy? They have no Negroes, except on a menial level, you know. So they decide to just promote a black clerical worker to become an agent. How long have you been with us now? A bit more than five years, sir. And you've done well. You're a credit to your race. Thank you, sir. And the experience sort of so radicalizes him because, you know, he had never had access to CIA training and sort of what the interior halls of

power were like. You really want to mess with Whitey? I can show you. And he ends up sort of going back and training folks and fomenting this sort of revolution against the white establishment. The number of uprisings by black guerrillas in cities across the nation. The president has declared a state of national emergency. It's sort of this trope for how we talk about questions of merit and qualification today. So when does all this change? When does affirmative action become so divisive? I think one of the big inflection points in the affirmative action gave Californians the chance to vote affirmative action out.

And that was Proposition 209. It was a huge turning point in sort of affirmative action in the popular imagination. Proposition 209 would end all race and gender considerations in public education, government contracts, and hiring. What happened with the proposition? Proposition 209 outlawed affirmative action in sort of government contracting, also higher education. One of the really notable aspects of Prop 209 was that it was associated with a black businessman in UC region named Ward Connerly. I supported a measure that brought the principle of equality to the state of California

and that ended the discrimination against Chinese kids and Vietnamese kids who were excelling in their studies over blacks and Latinos and Native Americans. Connerly's presence really complicated how people understood affirmative action. There's always been people of color who oppose affirmative action for a variety of reasons. Very rarely did people get the chance

to sort of center them in a public debate. It really exploded how people traditionally understood affirmative action. Within a couple years, the population of Black and Latino students in the UC system really plummeted. And it really took them some time to recover and figure out ways to bring that kind of diversity back to the UC system. Did Prop 209 catch on? Yeah. So within a few years, quite a few other states did indeed outlaw affirmative action. And Oklahoma voters approved an amendment that wipes out affirmative action.

In a big decision today, the Supreme Court allowed the state of Michigan to ban affirmative action at colleges. How did something that was so broad and ambitious, though maybe undefined, end up just being the principle, it really destroyed an entire rationale for it, right? So the best rationale for affirmative action continues to be, in my mind, as amends for the past. And yet, that's an argument that you're no longer allowed to make. You can't constitutionally advance that kind of argument. Instead, we have this difficult-to-define notion of diversity, and we've seen that idea of diversity get sort of chipped away at over the past 30 years, and I think that's why it ends up in something as seemingly small as college admissions. Hua Xu is a staff writer at The New Yorker. I'm Sean Ramos from This Is Today Explained. Hello, this is Sean. Hi, Sean. Hi, Sean. How's it going? I said, hi, Sean.

It's been a long day. Who's Sean? I'm Sean. Oh, hi, Sean. You said hi to yourself? I did. That's cool, right? That's a totally normal thing.

That's admirable. Yeah. Oh, man. We've been at it for a while today. Sorry. We start early.