Affirmative Action Is Racist—Against Asians. It's Time for SCOTUS to Overturn It | Opinion

Affirmative action may be on its last legal legs. The Supreme Court is set to hear arguments in cases against Harvard and the University of North Carolina challenging their use of racial preferences in college admissions. The cases, which will be heard on October 31, could overturn the Court's earlier rulings, which concluded that achieving "student body diversity" represented a "compelling interest" justifying the otherwise illegal use of race in selecting students.

The Harvard case in particular gets to the heart of the problem with the current use of racial preferences because it spotlights how affirmative action for Black and Hispanic students largely comes at the expense of another racial minority that has itself historically been subject to discrimination: Asian-Americans.

Evidence presented in Students for Fair Admissions Inc. v. President & Fellows of Harvard College showed that Asian enrollment at Harvard would be up to 50 percent higher if affirmative action were eliminated. Asian applicants receive the lowest scores on a vague "personal rating" assigned by admissions officials in Cambridge who have never met them, even though local alumni interviewers rate them as highly as other students, leading to the conclusion that they are being discriminated against based on their race alone.

Asian American Students Stroll on Harvard University
Asian American Students Stroll on Harvard University Campus mark peterson/Corbis via Getty Images

Evidence also showed that the Court's initial rulings in favor of affirmative action were founded on a lie, given that they held out Harvard's "holistic" admissions system as the model for permissible racial preferences, when in fact that system was originally put in place for the express purpose of excluding Jews, stereotyped at the time as uncultured bores in much the same way as Asians are today. "Holistic" admissions criteria stressing "character" rather than academic achievement were introduced at Harvard (and other elite schools) in the 1920's in a blatant effort to place an informal quota on Jews, whose numbers had grown to over 25 percent of the student body under merit-based standards. The effort succeeded—much as Harvard's effort to keep Asians out today has—and Jewish enrollment plummeted to about 15 percent, where it remained until the 1940's.

Indeed, there has been an uncanny parallel between Jewish enrollment figures at Harvard then and Asian enrollment over the last 40 or so years. Both climbed steadily, dropped sharply, and then essentially flatlined.

The conclusion is unmistakable: Harvard now deems another upstart, achievement-oriented minority that has been too successful under objective standards to be deficient in subjective measures of "character."

Preferences for other minority groups have been a clear detriment to Asian-Americans, as documented in a 2009 Princeton study, which found that Asian students applying to highly selective colleges faced odds three times as high as similarly qualified whites, six times as high as similar Hispanics, and an incredible 16 times as high as similar African-Americans.

Asians need SAT scores 140 points higher than whites, 270 points higher than Hispanics and some 450 points higher than Blacks (out of 1600 points) to be admitted to these schools.

In other words, an Asian applicant with an SAT score of 1500 has only the same chance of being accepted as a white student with a 1360, a Latino with a 1230 or an African-American with a 1050.

An earlier Princeton study of the same data reached the staggering conclusion that nearly 80 percent of slots awarded to African-American and Hispanic students under preferential admissions come from Asian-Americans rather than whites. More recent data from UCLA, as well as Harvard's own data, unearthed in the case before the Supreme Court, confirm that the cost of the racial preferences at top colleges is now primarily borne by Asian-Americans.

That this would be so even though there are many more white than Asian applicants might seem incongruous at first blush. One would expect that whites would at the very least bear the cost of racial preferences in proportion to their share of the applicant pool. But they do not; they are apparently the last to go, while Asian-Americans are typically the first. This suggests, as do the consistently lower "personal ratings" given to Asian applicants, that in deciding who must give up their seats in the name of racial diversity, admissions officers have been falling back on racial stereotypes of Asians.

Race-conscious admission, once seen as a tool for combatting racial bias, now provokes it.

Justice Sandra Day O'Connor famously said at the end of her majority opinion upholding affirmative action, "We expect that 25 years from now, the use of racial preferences will no longer be necessary."

While the sell-by date set by Justice O'Connor may still be a few years away, it's time to pull the plug now.

Dennis Saffran, @dennisjsaffran, is an appellate attorney and political and policy writer based in Queens, New York. He submitted an amicus brief to the Supreme Court on behalf of the National Association of Scholars supporting the plaintiff in the Harvard and UNC cases.

The views expressed in this article are the writer's own.