The Issue at Hand: Affirmative Action should be argued on the grounds of discrimination, diversity is the outcome


Natalie Lutz

General Opinion Graphic

Skand S., Columnist

Editor’s Note: This column does not represent the opinion of The Daily Barometer. This column reflects the personal opinions of the writer.

Affirmative action is currently being argued in the US Supreme Court; the ruling is due soon.

The case, brought in by Students for Fair Admissions – a nonprofit that believes racial classifications and preferences in college admissions are unfair, unnecessary and unconstitutional – has sued Harvard and University of North Carolina.

SFFA’s claim is that Harvard’s race conscious admissions discriminate against Asian American applicants and UNC’s inclusion of race as a factor for admissions violates the Title VI of the Civil Rights Act of 1964.

This case is contesting Grutter v. Bollinger, a 2003 ruling that upheld the affirmative action policy. Usually, previous Supreme Court decisions are held as a precedent. However we are all well aware of the current court’s stance on precedence, based on what happened last Summer with the overturning of Roe v Wade.

Given the conservative and libertarian majority on the court, I am very confident that this would lead to a total ban on affirmative action policy across the nation.

While this may not affect Oregon State University specifically, it is predicted to have an impact on colleges across the nation.

According to Noah Buckley, the director of the office of admissions, OSU does not use race as a factor in admissions as it has been able to admit every on-time academically qualified applicant up to this point, regardless of race.


Oral Hearings

What surprised me when I was hearing the oral arguments for the case of Students for Fair Admissions v. University of NC was that Ryan Y. Park, the lawyer representing UNC, was primarily arguing in favor of affirmative action on the basis of diversity.

I disagree, it should be argued solely on the grounds of discrimination.

Affirmative action was introduced as an attempt to mitigate the biases that have persisted and exist in the US due to discrimination against groups based on their race, ethnicity, gender, disability or areas where groups are historically marginalized.

The policy was signed in Executive Order 11246 by President Lyndon. B. Johnson in 1965 at the peak of the Civil Rights movement.

Discrimination is at the core of this policy – as it should be. Racial discrimination in the United States has been very much intentional and shows up in various ways in employment, hiring, housing, incarceration and even in colleges.


The issue with diversity as the argument

Racial and ethnic diversity on a university campus is good but I fear that arguing this policy on the basis of diversity alone can lead to negative side effects.

People often use diversity as a proxy for discrimination. Diversity encompasses a plethora of criteria that also includes height of the person, choice of music, dominant hand, etc. while discrimination on the other hand is a very specific act of injustice against people belonging to certain groups to deprive them of their full rights to educational opportunities.

For the case of Oregon State University, one can argue on the grounds of diversity that we need more politically right-leaning students. However, there is no evidence to show that right-leaning students or students with other political viewpoints have been systematically discriminated against and hence I would argue that this criteria will not fall under affirmative action.

However, the university, being an independent entity, can have diversity goals different from the affirmative action criteria – under which the admissions committee can decide if a diverse population varying across political spectrum is something that they want.

Though one could argue that considering race or ethnicity under the broader diversity goal might be beneficial – there is enough compelling evidence from two briefs filed by University of Michigan and University of California stating that such race-neutral measures have been inadequate in addressing racial diversity.


SFFA’s history with affirmative action

SFFA has had a long history of vetting for students from minority groups and challenging race in the affirmative action policy. In 2016, SFFA argued the case for Abigail Fischer who claimed that she was not admitted to the University of Texas, Austin despite having better scores than some of the other students because she was white.

UT did agree that several students got in despite their scores being lower than Fischer, according to ProPublica, but only five of those students were Black or Hispanic and 42 were white!

This showed that the admissions process at UT was holistic one where – race was a factor – not the factor. The justices eventually ruled 5-4 against Fischer and upheld the policy.

Facing the defeat did not let SFFA step back. They instead turned their eyes to yet another minority – Asian Americans – to further perpetuate the “model minority myth.”

“I needed plaintiffs. I needed Asian plaintiffs,” said Edward Blum, the founder of SFFA in a 2016 speech. This goes to show that SFFA is searching specifically for Asian Americans to use as pawns for their unjust and unreasonable stance on affirmative action.

With the ongoing case against Harvard, SFFA has claimed that the university uses quotas to cap the Asian American admissions. However, the complaint barely addresses the fundamentally flawed concept of legacy admissions – preferential treatment to applicants with at least one parent who has graduated from Harvard.

Some people call this “affirmative action for the rich,” but I would push back on the narrative that such a phrasing may draw. This is not affirmative action as there is no discrimination involved and it fundamentally seeks to further entrench existing class inequalities — sheer entitlement of the rich — rather than address them.


Model Minority Myth and Immigration

According to a 2022 Pew Research study, a majority of people (74%), including Asian Americans (63%) say that race should not be a factor in admissions.

However, one needs to consider another crucial factor at play – immigration. A large number of Asian Americans have had a very different path to this country than most African Americans and Hispanic people.

The influx of Asian American immigrants (and other immigrants) was possible because of the Immigration and Nationality Act of 1965, which came as a result of activism and protests by numerous Black folks and allies during the Civil Rights movement.

In the past, the US has intentionally made sure that Chinese people were deprived of the opportunity to immigrate with the 1882 Chinese Exclusion Act. Yes, the government did not even try to hide the racism!

In my opinion, the immigration policy of the US continues to exploit the socioeconomic inequalities such as caste in South Asia, or class privilege in the home country under the criteria of “skilled labor.”

And it is mostly these socially and economically privileged – who have a safety net of returning to their home country in case of a fateful event – who happen to have the “skills” and end up immigrating – essentially reinforcing the socioeconomic divide within the US.

Asian Americans are far from being a monolith. My colleague at The Daily Barometer, Alan Nguyen, beautifully lays out the nuances and complexities of the term Asian American in his column.

The socioeconomic conditions of people living in Hawaii and territories such as Guam and the Northern Mariana Islands, which have a significant population of Asian Americans are very different from the rest.

Equating the experiences of families of Japanese Americans who were forcibly incarcerated in concentration camps in 1942, Afghan soldiers and refugees, Vietnam war refugees, Burmese Americans (who are one of the lowest income groups), Hmong Americans and Bhutanese refugees who arrived very recently, with the predominant Asian population is unfair.


When does affirmative action end?

One of the questions I get when I argue for affirmative action is “When does this end?”

Justice Sandra Day O’Connor, while writing for the majority in Grutter v. Bollinger opined that the “Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

I am not sure how Justice Day O’Connor came up with the magical number of 25!

To me, the answer is very straightforward – the use of race in affirmative action ends when discrimination on the basis of race ends.

Let me be very clear, I do not think this is the only policy that will help end discrimination. Rather, it is one of the policies that I think is helpful to alleviate this problem and whose outcome is racial diversity.

Well, the next logical question is: How does one know if we are free from discrimination? How do you measure it?

There are several proxies available for this. Number of discrimination cases per year, systematic surveys to gauge if people feel that they have been subjected to biases, median annual income of a racial group, interventional studies differing only in applicant’s race in context of job hiring and promotions, housing or other opportunities are some of them.

Race has been central to the United States’ formation and operation. Race does play an important role in shaping one’s life. In my opinion, every socioeconomic policy needs to consider race as a factor by default. The only situation that I would be convinced otherwise is if one can causally prove that its effect on the policy is negligible.

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