On Monday, I was at the Supreme Court for five hours of oral arguments on affirmative action. In constitutional debates about the issue, both sides like to lay claim to Justice John Marshall Harlan’s celebrated dissent in Plessy v. Ferguson—the 1896 case that notoriously held that requiring separate train cars for Black and white passengers did not violate the Fourteenth Amendment, and that was eventually overruled in Brown v. Board of Education. Harlan wrote, “In view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Predictably, the plaintiff in the two current affirmative-action cases, Students for Fair Admissions, takes the “color-blind” language to mean that the equal-protection clause forbids all racial classifications for any purpose, including race-based affirmative action. The defendants, Harvard and the University of North Carolina, along with the U.S. government as amicus, instead take the anti-caste idea to prohibit subjugation based on notions of racial inferiority—which surely allows race-conscious measures to insure diversity.
But read just a bit further in Harlan’s famous dissent, and you’re hit with a meaning that’s not so debatable, in lines that are not so frequently quoted: “There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race.” Harlan’s aim was clearly to recognize Black citizens’ equal membership in the polity. Along the way, he also treated as a given that, because of racial difference, Chinese people were prevented from entering the country, and excluded from participation in its political life and from the civil rights of white and Black citizens. Harlan’s assumption was consistent with decades of American governance. In the years after the Civil War, both Republicans and Democrats portrayed the Chinese arriving on the Pacific Coast as an invading horde, a heathen, unassimilable people. Congress barred Asian women suspected of prostitution in 1875 and passed the Chinese Exclusion Act in 1882. In the Senate, lawmakers supporting the exclusion of Chinese called them a “degraded and inferior race,” and said that their “machine-like” ways made it difficult for U.S. laborers to compete. (The law was repealed in 1943, just in time for the Court to hold that the internment of Japanese Americans did not violate the Constitution.)
The Harvard and U.N.C. cases, in which the Court is expected to undermine or eliminate race-based affirmative action, are among the few Supreme Court cases in history that explicitly involve Asian Americans. The cases address Asian Americans’ uncertain place in American society, and the Court is considering them in a period of increased anti-Asian violence. I am an Asian American supporter of affirmative action who attended élite universities, and the first Asian American woman to be tenured at Harvard Law School. For all these reasons, I wanted to be in the courtroom for the oral arguments. What I observed by being there in person was a striking contrast between the overrepresentation of Asians at selective universities and the paucity of Asians present at such an important moment in the highest court in the land. Apart from Ryan Park, arguing as North Carolina’s solicitor general, and William Lee, who had been the trial lawyer in the Harvard case, there were almost no Asians in attendance among the scores of members of the Supreme Court bar and the public. I was also one of a tiny number of Asians, and perhaps the only East Asian person, among the many dozens of reporters in the press seats.
Several Justices on the Court, which also obviously lacks Asians, emphasized that universities are the “pipeline” to diverse leadership, and that the representation of minorities in leadership positions cannot improve if they are not admitted in sufficient numbers to selective universities. To support the point, Elizabeth Prelogar, the U.S. Solicitor General, pointed out that only two out of the twenty-seven lawyers arguing in the Court in late October to early November are women. “I think it would be reasonable for a woman to look at that and wonder, Is that a path that’s open to me, to be a Supreme Court advocate?” This “common-sense example,” which she hoped “would resonate with this Court,” though important, was somewhat inapt, because women today account for, as she said, “fifty per cent or more of law-school graduates”—including of the most élite schools. The problem in the case of women is real, but it is plainly not a university-pipeline issue. (Justice Elena Kagan had, minutes earlier, mentioned “statistical evidence that suggests that colleges now, when they apply gender-neutral criteria, get many more women than men.”) Prelogar’s point did, however, inadvertently underline the fact that, for Asians, as for women, robust representation among university students has been slow to translate to leadership positions in our country, particularly in the worlds of government, rarified legal advocacy, the media, the judiciary, and the Court itself.
This exchange did seem to reflect the awkward mismatch contained in these cases. S.F.F.A. is asking the Court to declare race-conscious affirmative action unlawful—and that Harvard and U.N.C. in fact discriminated against Asian Americans. But, as evidence in the Harvard case in particular suggested, the practice of race-conscious admissions is not what has limited the number of Asian American students; it is instead the parts of the process in which Harvard claims not to think about race at all.
The strongest aspect of the discrimination claim against Harvard involves something called the personal rating. As early as 1969, the Crimson reported that the personal rating, assigned by admissions officers based on interviews, high-school officials’ reports, and essays, “has become by far the most important factor in Harvard’s admissions process,” because the increased academic strength of the applicant pool was making it harder to select students based on grades and test scores. It reported that, for the class of 1968, “there is just about no correlation between admission to Harvard and such factors as SAT scores, rank-in-class, and predicted rank list,” but “the correlation between admissions and the personal factor is better than 90 per cent.” The article quoted the dean of admissions saying, “We are justified and obligated to trust a hunch.”
When the Harvard case first went to trial, in 2018, S.F.F.A. alleged that Harvard uses the personal rating, in which admissions officers score applicants on qualities such as “integrity, helpfulness, courage, kindness,” even “effervescence,” to discriminate against Asian American applicants. Admissions records showed that, despite alumni interviewers, who met with applicants, having given Asian students scores that were as high or higher than those of white students, admissions officers, who normally did not meet with applicants, gave Asians the lowest personal ratings of any racial group. The trial, which I attended, focussed on these disconcerting questions: Did Asian students, who had higher academic and extracurricular ratings than white applicants, actually have worse personalities than all others? Or was the personal rating concealing an impermissible racial quota?
The discussion was obviously charged, evoking the old idea of Asians as “a race so different from our own,” as Harlan put it, whose “machine-like” qualities make it hard to compete, as senators feared. It also excavated Harvard’s use of “diversity,” including geographical diversity, a century ago, as a mechanism to limit the admissions of Jews, who were also perceived as lacking character. But, in the end, the district court rejected the most sinister readings of the personal rating. It found that Harvard’s admissions process “may reflect some implicit biases” that, “while regrettable, cannot be eliminated in a process that must rely on judgments about individuals,” and that “a few identified imperfections” in the system did not amount to intentional discrimination against Asians.
At Monday’s arguments, Justice Samuel Alito grilled Harvard about Asians’ low personal ratings. “It has to be one of two things. It has to be that they really do lack integrity, courage, kindness, and empathy to the same degree as students of other races, or there has to be something wrong with this personal score,” he said. “Why are they given a lower score than any other group?” The question was one that Harvard’s lawyer must have been preparing to answer for at least four years. And yet the seasoned Supreme Court advocate Seth Waxman, a former U.S. Solicitor General, seemed cornered and stuck. During several uncomfortable minutes, he at first tried to deflect the question; then, somewhere in the midst of multiple attempts by Alito to get him to answer, an assist from the Chief Justice, and Waxman’s telling assurance, “I’m not trying to filibuster you,” he managed to say that the personal ratings reflect “what teachers said, what guidance counselors said, what these students wrote” in essays. (Those inputs would have to be quite poor to offset the alumni interviewers’ high scores.) In other words, Asian applicants deserved the low personal ratings—or, perhaps, if there was any discrimination, it was by high-school officials, not Harvard.