US Attorney General Jeff Sessions added heat to a controversy over affirmative action policies at top US universities and whether they discriminate against Asian American applicants when he confirmed earlier this month that the Department of Justice (DOJ) is probing the matter.

But as the flap escalates, a noted Asian American educator argues that critics on both sides of the debate are ill-informed and fail to take into account the latest thinking on the issue by the US courts.

OiYan Poon, an assistant professor of higher education leadership at Colorado State University, says that many fail to grasp that the US courts have increasingly favored the legal concept of creating “diversity” rather than “racial equity” through such admissions.

As such, Poon argues that an ongoing controversy over whether top US universities like Harvard unfairly hold Asians to a higher admission standard than either whites, African Americans and Hispanics is misplaced since the courts have moved away from “race” as a major factor in admissions.

“I chastise all parties,” said Poon, an Asian American researcher who focuses on the racial politics of college access, higher education policy, affirmative action, and Asian Americans. “The debate on all sides of the issue is ill-informed.”

She says the misunderstanding applies to both conservatives who seek to overturn US university affirmative action policies in the courts, as well as liberals who defend the use of racial preferences in determining admissions for minority groups.

“They are not connected to how admissions actually works,” said Poon, a former university admissions screener. 

US courts ‘favor diversity’

Poon said the legal drift of US courts over the years has been to de-emphasize “race” in favor of “diversity”.

In Bakke v Regents, a landmark case in 1978, she noted that the Supreme Court ruled that public universities (and government agencies generally) could not set specific numerical targets based on race for admissions or employment. The Court said that “goals” and “timetables” for diversity could be set instead.

Another pivotal case, Poon noted, was Grutter v Bollinger in 2003 when the Supreme Court voted to uphold the affirmative admissions policy of the University of Michigan Law School. The court ruled 5-4 that the school had a compelling interest in promoting class diversity. It also said that a policy that favored “underrepresented minority groups”, but also took into account many other factors, didn’t amount to a quota system that was unconstitutional.

In 2016’s Fisher v University of Texas, the most recent challenge to affirmative action, the Supreme Court upheld a University of Texas admissions policy that allowed race and ethnicity to be considered as only one of many factors in determining admissions.

Diversity as interpreted by the courts, according to Poon, now transcends racial quotas to take into account specific talents or abilities, life experience, socio-economic background and other factors to determine if a candidate is qualified for admission.

“(University admissions) is no longer about racial equity, it’s about creating diversity,” Poon told Asia Times. “It’s about creating the best learning environment possible for students.”

The Asian American Coalition for Education filed a complaint against Harvard University in 2015 alleging the school has discriminatory practices against Asian Americans. Photo: iStock/Getty
The Asian American Coalition for Education filed a complaint against Harvard University in 2015 alleging the school has discriminatory practices against Asian Americans. Photo: iStock/Getty

DOJ probes Harvard

The move by Sessions, a Trump appointee, to probe allegations of bias against Asian American students in Harvard admissions dovetails with a November 2014 lawsuit filed against the school by conservative activist Edward Blum. The suit contends that top-rung Asian students and being denied admission to Harvard in favor of less-qualified African American and Hispanic students.

Blum acted as a legal strategist for the plaintiff in Fisher v University of Texas.

The DOJ probe also appears to support a complaint filed against Harvard in May 2015 by more than 60 Asian American organizations over the school’s admissions policies regarding ethnic Asian students.

The action, which takes the form of an administrative complaint rather than a conventional lawsuit, alleges that Harvard holds Asians to a higher admissions standard than African Americans, Hispanics and whites. Blum’s group, the conservative Students For Fair Admissions, is supporting the complaint.

Critics say Blum and other conservatives are harnessing opposition to affirmative action in some segments of the Asian American community to stir court challenges that will overturn such policies at US colleges nationwide. Blum has told Asia Times that his only goal is to remove “race” as a consideration in university admissions.

Harvard, for its part, publicly says that its admissions policy is fair and that it considers each candidate on a “whole” or “holistic” basis, and not just on test scores and grades alone — consistent with standards set by the US Supreme Court.

One-sided media coverage

Poon argues there are “many more” Asian American community groups nationwide who support affirmative action policies as opposed to those that do not. Case in point: the website of Asian Americans for Civil Rights and Equality lists more than 135 groups nationally that support affirmative action.

“It’s frustrating to see in the media only reporting on what this particular group [of more than 60 organizations] is doing,” Poon said.

She also alleges that some of the “Asian American” organizations supporting the complaint against Harvard are not in fact Asian American, and that at least one group she checked has a board composed entirely of whites.

Yukong Zhao, the president of the Asian American Coalition for Education, the group that lodged the complaint against Harvard, denied the allegations. “I am shocked by such politically motivated accusations,” Zhao told Asia Times.

“Many such grassroots Asian American organizations joined our complaint against Harvard University,” Zhao said. “They were newly established, but represent the true voice of majority Asian American parents.” He also denied the existence of a supporting group with a white board, saying the confusion may be tied to organizations with similar names.

More transparency needed

OiYan Poon
OiYan Poon

Poon considers herself an independent researcher, but comes down squarely on the side of affirmative action and holistic college admissions.

“To fight affirmative action and holistic review [in the college admissions process] is quite self-defeating for any Asian American because all the evidence, research, the empirical data show that affirmative action and holistic review has benefited Asian Americans,” Poon said.

She notes that when affirmative action and holistic admissions policies were used at the University of Texas at Austin, data indicates that the number of Asian American students at the school rose significantly. She notes this was the same Texas campus that was the target of the suit in Fisher v University of Texas.

“[This is an admissions policy] that especially hard-working, low-income, under-resourced Asian Americans greatly benefit from,” Poon said.

At the same time, she criticizes the opaqueness of the admissions process at many US universities, arguing that more transparency is needed to ensure fairness and promote public understanding.

As someone who often addresses conferences of college administrators and admissions officers, Poon notes: “I always tell them, ‘You guys do a terrible job of explaining what actually happens.’ So in some ways, I understand the anxiety, especially among Asian Americans who are rabidly opposed to affirmative action, because no one explains to them what is involved.”