In his last three years at Westmoore High School, Seth Phung said he learned about the nuance of race-conscious affirmative action in an unconventional way: watching “Last Week Tonight with John Oliver.” He said he’s always loved laughing, and the explanation of affirmative action and Asian American issues through various comedy shows made it easier to digest.
Phung, a history and economics junior and the Asian American Student Association chair for the Asian Pacific Islander Desi American Leadership Conference, said, although his view has changed, he believes race-conscious affirmative action is necessary. However, he said the feeling of obligation and the potential for insincerity causes mixed feelings among some minority groups.
“Affirmative action, on paper, sounds like an amazing idea to combat systemic issues,” Phung said. “Systemic racism gives minorities an inherent disadvantage, but there is a weird dynamic of giving us things just because we’re minorities. It doesn’t feel deserved. It feels tokenized, like virtue signaling in a sense.”
In 2012, Oklahoma became one of nine states to ban affirmative action in public employment, contracting and education, including university admissions.
Conversations regarding affirmative action recently resurfaced after the U.S. Supreme Court heard oral arguments on Oct. 31, 2022, for two lawsuits against Harvard University and the University of North Carolina by Students for Fair Admissions. The organization alleged the two institutions’ race-conscious policies discriminated against Asian American students.
The Asian American community now finds itself at the front of diversity discussions, with these two court cases standing between upholding race-conscious policies or banning them outright.
The Asian American Voice
Joseph Thai, OU law professor, said the Asian American community is deeply divided about affirmative action and whether it’s a help or a hindrance in college admissions. In the Students for Fair Admissions cases, there are Asian American groups advocating for both sides.
Thai, who attended Harvard for undergraduate and law school, said he didn’t experience any discrimination by the university.
“The fact I’m Asian obviously didn’t preclude me from getting admitted, and the education I received was transformative,” Thai said. “In my own experience, Harvard has done a much better job including and supporting Asian Americans than OU has done.”
Thai said the OU’s Office of Admissions and Recruitment’s Diversity Enrichment Programs website mentions Asian Americans among the groups it serves, but noticed other sections of the page where Asian, Pacific Islander and Desi students are left out, such as the OU Affinity Committees section.
“Whether unintentional, which is bad, or intentional, which is worse, the message between the lines is that Asian Americans are not part of the ‘diversity in its many beautiful forms’ that OU seeks to include and celebrate,” Thai said.
Thai said since the University of North Carolina is a public university, its lawsuit is a constitutional law case, bringing into question the constitutionality of affirmative action under the 14th Amendment’s Equal Protection Clause, which protects against government discrimination.
Since Harvard is a private institution, the 14th Amendment does not apply. Instead, it’s a federal law case under Title VI of the Civil Rights Act, which prohibits programs that receive federal funding from discriminating on the basis of race, color or national origin.
He said one good thing from these cases is the increased awareness of the discrimination and invisibility that Asian American communities face. Thai said these cases have sparked helpful conversations about what universities can and should do to include minorities.
Diversity in the classroom
Oklahoma, along with 18 other states, filed an amicus brief in support of Students for Fair Admissions. It stated that, despite its prohibition of using race as a factor in university admissions, its flagship universities remained just as diverse as when affirmative action was banned in the state, and there has been no “long-term severe decline” in minority admissions, with the state citing OU as evidence.
In 2013, the year following Oklahoma’s ban on affirmative action, OU’s Norman campus saw admission among Black and Native American freshmen fall by 22 percent and 11 percent, respectively. In 2014, admission among Hispanic freshmen fell by 24 percent.
OU’s class of 2026 is the most diverse freshman class it has ever admitted, but Native American and Hispanic admissions are still down from the previous year, falling 1 percent and 9 percent, respectively.
On Jan. 18, OU President Joseph Harroz Jr. released his annual statement reaffirming the university’s commitment to affirmative action and equal opportunity employment to staff, faculty and student employees.
The statement reasserted the university’s compliance with state and federal laws while also promoting diversity and equity through OU’s affirmative action plan.
Genevieve Bonadies Torres, the associate director of the Educational Opportunities Project at the Lawyers Committee for Civil Rights Under Law, said she anticipates seeing similar drops in admissions from marginalized communities if affirmative action becomes banned nationwide such as in states like California and Michigan.
“Banning affirmative action is a signaling factor that students of color are not welcome,” Bonadies Torres said. “Students of color feel more isolated, alienated and experience harassment at greater rates. It’s very important to have sufficient numbers of same-race peers in classrooms to combat that sense of tokenism.”
Phung said he believes affirmative action sometimes perpetuates the model minority myth, which can be harmful to Asian students.
The model minority myth is the perception that Asian Americans are the “perfect” minority, excelling in creating their own “American Dream” where other minority groups fail, according to the Pew Research Center. The myth tends to pit students of color against one another and dismisses the discrimination against Asians and Pacific Islanders.
Phung and other AASA members contributed essays to the organization’s monthly magazine, with February’s theme being centered on examining and rebelling against the stereotypes around the Asian American community, including the model minority myth.
Bonadies Torres said race and ethnicity play an integral role in people’s daily lives and it is virtually impossible for them to share their stories without some reference to race. She said many of her clients say racial diversity on campus has a direct impact on the quality of their education and their confidence to excel in an increasingly diverse society.
Thai said one of the benefits of a diverse student body is the variety of perspectives. OU College of Law, he said, is the flagship of the state and is a pipeline for the leaders of Oklahoma’s future, actively educating them.
He said if future leaders aren’t taught and nurtured in a diverse environment, then the future of Oklahoma will reflect this and fall behind.
“Diversity not only makes OU a richer educational experience, but it is essential to making Oklahoma a more diverse and competitive state,” Thai said. “The world is getting more diverse, and, to keep up with other states and countries, we need to foster the understanding and the connections that are made through a diverse student body.”
Previous court cases
In the early to mid 2010s, Students for Fair Admissions had a similar case in Fisher v. University of Texas at Austin — a Supreme Court case where Abigail Fisher, a white woman, filed a lawsuit against UT after her application was denied in 2008.
She argued that the university’s use of race as an admission consideration violated the 14th Amendment. UT disputed this, stating that its race-conscious policy is for those not included in or admitted through the Top Ten Percent Law, which accounts for about 25 percent of the students they admit.
UT’s decision to consider race among applications for those who don’t fall within the Top Ten Percent Law followed Grutter v. Bollinger, where the Supreme Court upheld a race-conscious admissions program at the University of Michigan Law School.
Texas’ Top Ten Percent Law requires public higher education institutions to admit all high school seniors ranked in the top 10 percent of their class. This was in response to the Fifth Circuit Court’s Hopwood v. Texas, where four white plaintiffs successfully challenged UT’s admission policy on equal protection grounds after being denied admission to The University of Texas at Austin School of Law.
Carla Pratt, the OU Ada Lois Sipuel Fisher Chair in Civil Rights, Race and Justice and an OU law professor, wrote a research paper in 2014 titled “The End of Indeterminacy In Affirmative Action,” which focused on the Fisher case and its ramifications.
Pratt said it was well understood and expected after the Fisher case that there would be more challenges to affirmative action. She believes the landmark case Regents of the University of California v. Bakke negatively impacted people’s view of affirmative action by ignoring and rejecting the original rationale, which was to address the impacts of discrimination.
Allan Bakke, a white man, applied to the University of California Davis School of Medicine and was rejected twice. The school’s affirmative action program reserved 16 out of 100 spots for qualified students of color in each admitted class. Bakke’s college GPA and test scores exceeded those of the minority students admitted in the two years in which he was denied, and he claimed he was excluded due to his race.
This case, although overall upheld race-conscious affirmative action in university admissions, prohibited racial quotas. Pratt said this decision asserts that race-conscious policies exist due to the school’s interest in the educational benefits of diversity, and that it erases and ignores the history of racial oppression faced by minority groups.
“The court really went off the rails with (Regents of the University of California v. Bakke),” Pratt said. “Bakke was the beginning of the end, and we were set on this path to end race-conscious policies.”
Bonadies Torres said affirmative action has been challenged since the 1970s with Marco DeFunis, Jr. v. Odegaard. The Supreme Court has upheld affirmative action each time.
DeFunis noticed his test scores were better than the students of color who were admitted to the University of Washington School of Law, where he was denied admission. He alleged he was discriminated against on the basis of his race and argued that, as a Sephardic Jewish man, he was a minority and should have been admitted.
The U.S. Supreme Court ruled that the entire case was moot as, by the time it was heard, DeFunis had been admitted and was in his final term. However, the Supreme Court of Washington ruled the university didn’t have to admit DeFunis, and affirmative action decisions were necessary for diversity in public education.
If affirmative action were to be overturned, Bonadies Torres said the U.S. Supreme Court would have to “bulldoze” through four decades of precedents and years of support from military leaders, educators, fortune 500 leaders and the medical community encouraging race-conscious policies.
Amicus briefs filed during the Harvard and University of North Carolina cases from the same sectors continue to indicate their support for race-conscious policies.
Students for Fair Admissions
Students for Fair Admissions was founded by Edward Blum, its current president, who is a conservative legal strategist, despite having no formal legal degree or experience, and has organized numerous lawsuits against voting rights laws and civil rights laws.
Phung said, given Students for Fair Admissions’ past with the Fisher case, he believes the Harvard and University of North Carolina petitions are utilizing the “presumed perfectness” of Asian Americans and the discrimination they face to front their own agenda.
“We’re unfortunately the perfect pawn in a bigger racial game,” Phung said. “There’s a good reason that racial discussions are mainly Black and white, but when Asian Americans come into play … they always ask, ‘If Asian Americans can do it, why can’t African Americans?’ We’re the perfect scapegoat, and it’s unfortunate because white people don’t want to or can’t parse the nuance, and Black people are understandably a little pissed about that.”
Pratt said Students for Fair Admissions is using the model minority myth, grouping the Asian American community into a monolithic category to argue that affirmative action is harmful to the “most successful” racial minorities.
She said there is great diversity in the Asian American community, and it is important to remember that the model minority myth is a myth for a reason.
“Each group has a unique history relative to the U.S. government, and that unique history creates a different positionality for each group that impacts their opportunities,” Pratt said. “Diversity within racial groups is really important for providing opportunity, rebutting stereotypes and preventing isolation of students on campus.”
Bonadies Torres said Blum’s actions and large network of conservative funders make it evident that his mission is to reduce civil rights gains in education, voting, women’s rights and immigrant rights.
“It’s all connected to efforts that suppress the voices and participation of all members of our society,” Bonadies Torres said. “The network Blum is part of deserves our attention and vigilance to make sure we resist these attacks and continue to speak out about why a multiracial democracy that includes those of all backgrounds is essential to our progress.”
OU Daily reached out to Students for Fair Admissions for a statement about the ongoing lawsuits but did not receive a response by the time of publication.
The U.S. Supreme Court will come to a decision in the spring or summer of 2023. Thai and Pratt said they expect race-conscious affirmative action to be banned, given the court’s current composition, which they said is primarily conservative.
Bonadies Torres said those involved with the civil rights community will continue to focus on their efforts on fighting for students of color and for the colleges that will “open doors of opportunity” to people of all backgrounds.
“At the heart of these cases are students of color,” Bonadies Torres said. “Our democracy really depends on interacting with those who are different from us across socioeconomic background, across geography and across race, which continues to be a salient factor in the U.S.”
This story was edited by Alexia Aston, Karoline Leonard, Jazz Wolfe and Jillian Taylor. Nikkie Aisha and Francisco Gutierrez copy edited this story.
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Highly recommend folks listen to the oral arguments for these cases. It's fascinating to hear them try to justify ongoing race-based preferences, to argue that they are necessary and should be temporary but never actually define the criteria for getting rid of them or proving what is sufficient "diversity". Even more fascinating is that Harvard invented their system of "multi-factor" diversity precisely to Exclude jews from their classes, and the Supreme Court found that unconstitutional back in the 20's, and now they're using exactly the same system, but arguing this time it's ok.
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