The degree to which race should constitutionally factor into university admission policies has been tensely debated — for and against — in American history. But some professors think the current Justice Department's focus on affirmative action shows that the administration may be using Asian Americans as a wedge against racial equality and diversity.
Under Donald Trump, the administration first ventured into the debate in August after the New York Times obtained documents detailing the Justice Department's intention to investigate and sue institutions suspected of discriminating against white applicants through affirmative action. Recently, though, the department's focus has shifted to alleged discrimination against Asian American applicants in Harvard's admission policy.
The Department of Justice reopened the 2015 discrimination case against the university, which Barack Obama's Department of Education dismissed. On Nov. 17, Acting Assistant Attorney General John Gore informed Harvard University that it could face a possible lawsuit for reportedly not complying with the department's request to view its student admission documents.
"Please be advised that if Harvard does not comply with the document request in full by that deadline, we may file a lawsuit to enforce Harvard's Title VI access obligation," Gore wrote in a letter. A Harvard spokesperson gave the following response on Tuesday,
As we have repeatedly made clear to the Department of Justice, the university will certainly comply with its obligations under Title VI. We have an obligation to protect the confidentiality of student and applicant files and other highly sensitive records, and we have been seeking to engage the Department of Justice in the best means of doing so.
Kimberly West-Faulcon, a law professor at Loyola Law School who teaches social justice and constitutional law, says that the Trump administration's concern for Asian American students is questionable as there is little to no evidence that the policy hurts the group. Are black Americans or Latinos really prioritized over Asian Americans? "The answer is no," West-Faulcon says. "Affirmative action for other racial groups is not a cause of discrimination against Asian Americans."
West-Faulcon points to the "false linkage" between discrimination against Asian Americans and affirmative action" and says that using this particular racial group as a "wedge" has happened before. "Many Asian Americans are well aware of that," she says.
West-Faulcon may have a point. This wouldn't be the first time Asian Americans were co-opted by conservatives against affirmative action. In 2013, white student Abigail Fisher accused the University of Texas for discriminating against her on basis of its admission policy. To support her argument, Fisher argued that the university's policy apparently hurt Asian Americans, but the Supreme Court ruled against Fisher and remanded her case.
It's just part of a common strategy on the right to basically use Asian Americans, Chinese Americans in particular, as a wedge in racial politics.
West-Faulcon questions the Justice Department's concern for the students and points to one of the main crusaders against affirmative action, conservative litigant Edward Blum. Blum — who is one of the figures campaigning against Harvard — also provided litigation advice to Fisher in 2013. "If the heart of this concern were to vindicate the civil rights of Asian Americans, you would approach the lawsuit differently," she says.
West-Faulcon's opinion is echoed by Emily Houh, law professor at the University of Cincinnati College of Law. She says that if Trump's presidency was indeed concerned about Asian students, it would improve, for example, its record on immigration — not fixate on university admission policy.
"It's just part of a common strategy on the right to basically use Asian Americans, Chinese Americans in particular, as a wedge in racial politics," she says. "This is a strategy that's been used over and over again only when it serves, in my opinion, to supporting white supremacy structurally."
Houh says the administration's hyper-focus on Asian Americans is a "rhetorical cover" for a rollback of civil rights laws. According to her, it reveals the Trump administration's fear of a "black and brown America." West-Faulcon shares a similar view. "You've got someone who is a longtime opponent of not just affirmative action but civil rights laws writ large. [Blum's] long-term agenda is to really eliminate any kind of race conscientiousness that operates to include groups that have been victims of historical discrimination." In November, Blum explained his dedication against affirmative action in these words to the New York Times, "Your race and your ethnicity should not be something used to help you or harm you in your life’s endeavors."
West-Faulcon's "historical discrimination" presumably points to America's bitter history of excluding students of color from enrolling at institutions such as Stanford, Massachusetts Institute of Technology, Ohio State University, University of Michigan, and dozens more. Such a pushback against affirmative action could have devastating economic consequences for the employment prospects of minority students. If the Justice Department is successful in weakening affirmative action, she says, it could end up "excluding more people of color from the workplace." The American workplace, as it is, already lacks racial diversity.
Perhaps it would help those who use Asian Americans as a "rhetorical cover" to see the benefits of affirmative action. Risa Lieberwitz, who teaches labor and employment law at Cornell University and is also the General Counsel of the American Association of University Professors, points to affirmative action's contribution to academic environments and calls it a "positive" element for campuses. "To have a body of students who are diverse in many ways, makes for a better education and for a better experience for all students," she says.
Lieberwitz — like West-Faulcon and Houh — finds the present Justice Department's preoccupation with affirmative action "quite aggressive." She says, "I think it's pretty clear that the Trump administration and the Justice Department within the Trump administration is hostile to the idea of affirmative action and the idea of considering race as a way of achieving greater diversities within the universities." She adds that it's apparently hesitant to embrace "the notion of equality."
Passed in 1961 during John F. Kennedy's presidency, the ultimate goal of affirmative action was to build an equitable society. The mission was comprehensively explained by then-president Kennedy in a speech at Howard University in 1965.
We seek not just freedom, but opportunity. We seek not just legal equity, but human ability, not just equality as a right and a theory, but equality as a fact and equality as a result.
For those who still oppose affirmative action, it may help to remember that, technically, race is only one of the many complex metrics used to — "holistically," as Lieberwitz puts it — evaluate a student's application. After all, using a racial quota to increase a university's diversity was declared illegal by the Supreme Court in 1978.
Ultimately, the running sentiment from each professor seems to be that the Trump administration should encourage meaningful racial diversity in college campuses. By using Asian Americans as a rhetorical prop against affirmative action, it seems as if Trump's Justice Department is allocating time and resources of its civil rights division to polarizing campaigns.