Coalition Building in the Higher-Education Melting Pot

Dennis Fan

Now-faded black-and-white pictures remind us of that famous moment in Selma, Alabama: There marched Dr. Martin Luther King, Jr. and Rabbi Abraham Joshua Heschel, physically locked together in a common front.

And so goes the histories of many of the nation’s civil-rights movements. While the civil-rights movement of the 1950s and 1960s was undeniably about a long history of oppression for Blacks in America, something more was in the air. Blacks did not just receive their rights through their protests that resulted in their Civil Rights Act of 1964. Instead, they pulled together unions, churches, civic organizations, and students (all comprising many racial groups) to craft an Act that satiated a multiplicity of interests.[1] Similarly, the more recent LGBT-rights movement built momentum by drawing in straight allies, some perhaps on the Supreme Court.[2]

But what happens when the interests of politically disadvantaged groups become misaligned? History suggests that an inability to find common interests significantly decreases the likelihood of systemic civil-rights reform.

I.  The Students for Fair Admissions Cases

Two recent related cases in higher education both highlight this phenomenon and provide a jumping-off point for thinking about the future of coalition building. In November 2014, Students for Fair Admissions, Inc., a nonprofit organization representing “highly qualified students recently denied admission to schools,”[3] brought cases against Harvard University and University of North Carolina at Chapel Hill (respectively, Harvard University[4] and UNC[5]).

On the legal front, the suits are framed as direct challenges to Regents of University of California v. Bakke,[6] a landmark Supreme Court case holding valid the use of race in college admissions.[7] Bakke and its progeny comprise the constitutional foundation for practices making accessible institutions of higher learning for minorities everywhere.[8] The disdain of some to Bakke and its approved “affirmative action” is no secret. Bakke has been challenged before;[9] undoubtedly also, it will be challenged again.

But Harvard University and UNC are not your run-of-the-mill cases against affirmative action in higher education. The complaints focus not on the plight of white students but on how the current college-admissions regime hurts Asian Americans.[10] For instance, the Harvard complaint reveals that Asian Americans need SAT scores 140 points higher than those of white applicants,[11] and the UNC complaint proffers a 202-point gap between Asian-American and African-American applicants.[12] In short, the cases claim that Asian Americans are losing out badly under Bakke.

The subtext is clear: Affirmative action was the grand bargain to provide racial minorities a chance to succeed in the United States, but you, Asian Americans, were not invited. The cases insist that affirmative action pits Asian Americans and other racial minorities (e.g., African Americans, Latinos) in a zero-sum battle over finite admissions spots. [13] Affirmative action, to the plaintiffs, is too blunt of an instrument; while it benefits some, it disadvantages Asian Americans, and neither rhyme nor reason guide it.[14]

This Asian-American attack against affirmative action is not new. Some in the Asian-American community have been complaining of it for years if not decades.[15] And if we take the Harvard University and UNC complaints’ claims as true, then as a statistical matter, it is more difficult for Asian Americans to gain admission to institutions of higher learning.[16] To affirmative action’s detractors, affirmative action itself, a practice that looks out for other minorities but not Asian Americans, is the culprit.

II.  Critiquing the New Affirmative-Action Cases

The Students for Fair Admissions cases attempt to drive a wedge between the Asian-American community and other minority communities who have received the admissions boon from affirmative action. Presumably, without Asian-American support, the already unstable coalition holding together affirmative action in college admissions would further crumble.[17]

The complaints, however, in some respects mischaracterize the interests of the Asian-American community, which often align with those of other minority groups. To begin, the complaints presuppose that admission in and of itself is the end game of a college education. Asian Americans thus suffer harm when admission is made more difficult. The reality is not so simple. Just like everybody else, Asian Americans also benefit from an academic community comprising diverse peoples, experiences, and interests.[18] Colleges are tasked to first and foremost construct meaningful learning environments to even admit students into.

The focus on testing and grades also denigrates Asian Americans everywhere. It disparages their achievements and character to say that Asian Americans should be admitted to college because they happened to beat a test that otherwise puts out vast disparities based on race. Asian Americans may do better on standardized tests, but that is a rocky normative basis to celebrate their accomplishments. Indeed, overreliance on a testing apparatus might be seen to violate other civil-rights guarantees;[19] in this sense, the Asian-American plaintiffs in the Students for Fair Admissions cases should be careful what they ask for.

But if equalizing admissions on the basis of standardized metrics is not the answer, what is? In other words, what issues in higher education might mobilize Asian-American and other communities alike? A good place to start would be prejudice and stereotyping in the review of applications. The Harvard University complaint alludes to this, and gets it right: Asian Americans who aspire to stereotypically Asian-American professions (e.g., medicine) are penalized for being boring, conformist, or lacking in self-determination.[20]

Groups might also mobilize around spearheading initiatives that protect the most powerless or least privileged among us, which has much been the history of civil-rights movements to date. Aside from supporting affirmative action generally, Asian Americans might consider how blanket consideration of applicants as “Asian American” masks inequalities within the group; while many East Asians come from relative educational privilege, new Americans from, say, Cambodia or the Philippines do not fare as well in the American educational system.[21] Treating them like all other Asian Americans for college-admissions purposes only causes further inequities.

Finding common ground is key for maintaining educational progress. And there are many civil-rights initiatives where that common ground can be found, whether it be in stopping prejudices in college admissions or helping the historically underprivileged—or perhaps in fighting legacy admissions or stamping out inequalities that arise after matriculation. As this nation’s civil-rights history shows (and as the Students for Fair Admissions cases try to impede), positive change in civil rights is contingent on us finding ways to be more together, and less apart.

The 64@50 series presents several of the major debates explored in the Fall 2014 reading group of the same name, organized by Columbia Law students to reflect on the fiftieth anniversary of the Civil Rights Act of 1964.


[1] See Sheryll D. Cashin, The Civil Rights Act of 1964 and Coalition Politics, 49 St. Louis U. L.J. 1029, 1036–38 (2005) (describing grassroots organizations that formed coalitions with civil-rights activists).

[2] See William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 Mich. L. Rev. 2062, 2179–92 (2002) (discussing progress of gay-rights movement).

[3] Our Cases, Project for Fair Representation, http://www.projectonfairrepresentation.org/cases/ (last visited Mar. 1, 2015).

[4] Compl., Students for Fair Admissions, Inc. v. Harvard Univ., No. 14-cv-14176 (D. Mass. Nov. 17, 2014) [hereinafter Harvard University Complaint].

[5] Compl., Students for Fair Admissions, Inc. v. Univ. of N.C., No. 14-cv-954 (M.D.N.C. Nov. 17, 2014) [hereinafter UNC Complaint].

[6] 438 U.S. 265 (1978).

[7] See Lyle Denniston, Direct New Challenges to Bakke Ruling, SCOTUSblog (Nov. 17, 2014, 10:17 am), http://www.scotusblog.com/2014/11/direct-new-challenges-to-bakke-ruling/ (noting nonprofit’s connection with the Fisher v. University of Texas at Austin case and desire to overrule Bakke).

[8] See Bakke, 438 U.S. at 314 (“[T]he interest of diversity is compelling in the context of a university’s admissions program . . . .”).

[9] See, e.g., Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003).

[10] In the Harvard University Complaint, supra note 5, ¶ 16, the member of Students for Fair Admissions, Inc., is Asian American; in the UNC Complaint, supra note 6, ¶ 14, the applicant is white.

[11] See Harvard University Complaint, supra note 5, ¶ 208 (“The Espenshade-Radford study also expressed the admissions penalty facing Asian Americans in terms of SAT-point equivalents. The authors reported that Asian Americans needed SAT scores that were about 140 points higher than white students, all other quantifiable variables being equal, to get into elite schools.”).

[12] UNC Complaint, supra note 6, ¶¶ 57, 87.

[13] See Harvard University Complaint, supra note 5, ¶ 205 (“This statistical evidence establishes that Harvard is intentionally discriminating against Asian Americans by making it far more difficult for Asian Americans than for any other racial and ethnic group of students to gain admission to Harvard.”); UNC Complaint, supra note 6, ¶ 57 (“For example, there is over a 200-point SAT gap and a 0.31 high-school GPA gap between Asian Americans and African Americans admitted to UNC-Chapel Hill.”).

[14] Cf. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 723–24 (2007) (describing the limited view of diversity used by the school districts).

[15] See, e.g., Ethan Bronner, Asian-Americans in the Argument, N.Y. Times (Nov. 1, 2012), http://www.nytimes.com/2012/11/04/education/edlife/affirmative-action-a-complicated-issue-for-asian-americans.html; Tiffany Ayuda, How Affirmative Action Affects Asian Americans, Mochi (Spring 2010), http://www.mochimag.com/article/how-affirmative-action-affects-asian-americans.

[16] There is at least firm statistical evidence that on some metrics Asian Americans will have a more difficult time getting into private colleges than similarly situated whites. See Carolyn Chen, Op-Ed., Affirmative Action and the Breaking of the ‘Bamboo’ Ceiling for Asian Americans, L.A. Times (June 13, 2013), http://articles.latimes.com/2013/jun/13/opinion/la-oe-chen-fisher-asian-affirmative-action-20130613 (mentioning study done that showed Asian Americans needed to score 140 points higher on their SATs than whites).

[17] See Domenico Montanaro, NBS News/WSJ Poll: Affirmative Action Support at Historic Low, NBC News (June 11, 2013, 1:41 am), http://firstread.nbcnews.com/_news/2013/06/11/18885926-nbc-newswsj-poll-affirmative-action-support-at-historic-low (showing decreasing support for affirmative action); Where Does California Stand on Affirmative Action, Nat’l Asian American Survey (Sept. 25, 2014), http://www.naasurvey.com/reports/field-2014-affaction.html (showing Asian Americans generally favor affirmative action less than Blacks and Latino/as).

[18] See Bronner, supra note 16 (“More important, some argue, Asian-Americans themselves benefit from the campus diversity the system produces.”).

[19] See Memorandum from Damon T. Hewitt, NAACP Legal Defense and Educational Fund, Inc., to New York Office, Office for Civil Rights, U.S. Department of Education (Sept. 27, 2012) (arguing that reliance on SHSAT standardized test in New York high-school system, which resulted in gross over-enrollment of Asian Americans, might violate Title VI).

[20] See Harvard University Complaint, supra note 5, ¶¶ 252–61; see also Yascha Mounk, Op-Ed, Is Harvard Unfair to Asian Americans?, N.Y. Times (Nov. 24, 2014), www.nytimes.com/2014/11/25/opinion/is-harvard-unfair-to-asian-americans.html (“The truth is not that Asians have fewer distinguishing qualities than whites; it’s that—because of a longstanding depiction of Asians as featureless or even interchangeable—they are more likely to be perceived as lacking in individuality.”).

[21] See Emil Guillermo, In California, SCA 5 May Be DOA Due to Asian Americans Against Affirmative Action, Asian American Legal Defense & Education Fund (Mar. 14, 2014, 1:06 pm), http://aaldef.org/blog/in-california-sca-5-may-be-doa-due-to-asian-americans-against-affirmative-action.html (describing how in California “segments of the Asian American and Pacific Islander community, most notably the Filipino, Southeast Asian, and Pacific Islander groups, remain woefully underrepresented”).