- The Washington Times - Saturday, May 21, 2022

When the country’s top-ranked public high school changed its admissions policy two years ago, it insisted the goal wasn’t to hurt Asian Americans.

Nonetheless, offers of enrollment to Asian American students at Thomas Jefferson High School for Science and Technology in Fairfax County, Virginia, plummeted 19 points from nearly three-quarters of the incoming class to 54%.

In Montgomery County, Maryland, officials at the premier school system likewise insisted they wanted to help Black and Hispanic students, not punish Asian Americans, who made up a disproportionate number of spaces in the selective magnet schools.

Still, offers of enrollment to Asian American students at Takoma Park Middle School’s STEM magnet program slipped from 39% to 31% in 2018 after the county changed its admissions policy. Hispanic and Black students made significant gains, and even White students grabbed a larger share of offers, topping Asians for the first time in years.

At Montgomery County magnet schools that didn’t make changes, the share of offers to Asian Americans increased.

As school districts across the country rush to rebalance their selective programs to help Black and Hispanic students, it’s becoming clear that the change often comes at the expense of another minority.

A case involving Harvard University and its treatment of Asian American applicants is pending before the Supreme Court, with oral arguments expected in the justices’ next term.

The question before the court is whether affirmative action policies designed to help one demographic are legal if the result is disproportionately damaging to another demographic.

Schools say they are trying to help traditionally disadvantaged demographics and intend no harm to Asian Americans. Some school systems have carefully structured their policies to be facially race-neutral by using other measures to change the composition of their student bodies.

Opponents of the school admissions policies, though, say admissions are zero-sum. Any policy aimed at helping someone get a spot means someone else is losing out. Increasingly, it’s Asian Americans who lose.

“Asian American students are being discriminated against,” said Ilya Shapiro, a Supreme Court and judicial nominations expert. “I think the Supreme Court’s guidance will broadly have an effect on any sorts of affirmative action programs.”

Past Supreme Court decisions have limited how schools can pursue affirmative action. Justices have found that quotas and similar stark racial dividing lines are illegal, though diversity itself can be a factor in admissions.

Harvard says it follows that policy by whittling down some 15,000 applicants from “fully qualified” to just 1,600. The school says it is not picking unqualified applicants over applicants who are qualified but is selecting a more diverse group than it otherwise might.

Harvard acknowledges its policy is “race-conscious.”

Other schools say their changes are race-neutral and use different yardsticks, such as income or geographic diversity, to boost minority numbers.

Shortly after the death of George Floyd in 2020, Thomas Jefferson’s principal said something needed to change. The school’s racial composition of students was too out of kilter with the racial makeup of the county, she said.

The school board agreed. It moved to ditch application fees and an admissions exam and reserved spaces for students from middle schools that didn’t traditionally send as many students to Jefferson.

On its face, the policy doesn’t target race, but given the realities of where Asian families live, the effect was to slash their numbers.

Offers of enrollment to Asian American students from Fairfax County fell to 54% for the class of 2025, down from 73% a year earlier, according to data from the Coalition for TJ, which sued to challenge the school’s policy.

About 20% of the county’s population is Asian, and so is the public schools’ student population.

Black students were the winners in the change at Jefferson. Offers of enrollment surged to 7% of the incoming class, up from 1% for the class of 2024. Hispanic enrollment offers reached 11%, up from 3%, and White enrollment rose from 18% to 22%. Multiracial enrollment was static at 5%.

The real change, however, appears to be in academic excellence. By choosing top students from each school rather than countywide, the school leaves out some of the best.

The Fairfax County Association for the Gifted says just 18% of county students offered enrollment next year at the high school — with a curriculum focusing on science, technology, engineering and math — had completed algebra 2 or higher. That is about half the rate of the previous class. By contrast, 31% of offers went to students who had completed only the bare minimum level of math, algebra 1, up from 5% in the previous class.

As the schools move to correct what they say are lingering injustices and imbalances in outcomes, they are struggling with perceptions and realities as to who qualifies as a “minority.”

That Asians are a numerical minority is undeniable. Those checking the Asian box on the 2020 census constituted a little more than 7% of the U.S. population.

Still, the term “minority” has become freighted with new meanings. By serving as a definition for having a disadvantage and lack of power, it doesn’t easily fit Asians into the same category as Black or Hispanic.

The debate divides Asian Americans themselves.

At Harvard, some of the most vociferous defenders of the current policy are Asian American students who say the more diverse population has enhanced their educational experience. In Fairfax County, though, many Asian American parents who have structured their livelihoods around the chance of getting a child into Jefferson are the most vocal opponents of the new admissions policy.

Some analysts have begun to wonder whether Asian Americans have become “the new Jews” as a minority that is OK to target for its members’ social successes.

Indeed, the plaintiffs challenging Harvard said the policy used to tamp down Asian American numbers has roots in anti-Jewish admissions policies from the early 20th century.

School officials decided something had to be done after the Jewish population rose from 7% of the incoming class in 1900 to more than 27% by 1925. A. Lawrence Lowell, the president of Harvard at the time, was explicit in his goal of reducing the number of Jewish students: He said it was tainting the Protestant nature of the student body.

The school ditched its merit-based admissions policy and adopted a holistic approach that evaluated factors such as “character.” The school also capped admissions so it could say that more than enough qualified students had applied and it needed other factors to select the student body.

Hans von Spakovsky, a senior legal fellow at The Heritage Foundation, led a panel discussion in 2018 posing the question: Are Asian Americans the new Jews? He said Harvard uses the same policy today, but with Asian Americans as the target.

“They are basically using the same methods today they used 100 years ago,” Mr. von Spakovsky said. “It’s not just Harvard doing this. It is all of these elitist schools in the Northeast.”

The lawsuit against Harvard already may be succeeding.

Asian American enrollment at Harvard hovered at about 20% for five years until 2014.

Students for Fair Admissions filed its lawsuit in November of that year, and admissions of Asian Americans have risen steadily ever since. Offers for the most recent class hit nearly 26%.

Harvard’s case is one of two the Supreme Court has agreed to hear. The other is from the University of North Carolina at Chapel Hill, a leading public institution. 

The two cases could upend Supreme Court precedent governing race-conscious admissions policies.

In the Bakke case in 1978, the justices delivered a landmark decision upholding affirmative action policies in general by ruling that race could be a factor in admissions. One of the justices even cited Harvard’s holistic approach as a model for how affirmative action should work.

In 2003, the high court revisited the issue in Grutter v. Bollinger, ruling that diversity was a valid concern but programs must be narrowly tailored.

In issuing the opinion, however, Justice Sandra Day O’Connor closed with a stern admonishment that schools had a time limit for turning to race.

“The court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” she wrote.

The Harvard and North Carolina cases have beaten her deadline by six years as lower courts struggle with applying Grutter.

A federal district judge in Virginia ruled the Fairfax County policy illegal, but an appeals court put that decision on hold. Meanwhile, a federal judge in Maryland has ruled that a challenge to Montgomery County’s policies, brought by the Association for Education Fairness, can proceed.

The Supreme Court said this spring that Fairfax County could continue using its policy while the case is pending.

Jonathan Turley, a law professor at George Washington University, said courts need guidance from the justices.

“The question is whether there are five justices now ready to create a bright-line rule against the use of race as a criteria for admissions,” he said. “There is ample evidence that Harvard was using its criteria to disadvantage Asian students on the basis of their race. The issue is whether any reliance on race could not be barred. Lower courts have longed for a greater degree of clarity from the court.”

Affirmative action programs, including tiebreaking preferences and quotas, have gained public support. Gallup found last year that 62% of Americans support affirmative action programs for racial minorities.

In 2003, when the justices issued the Grutter ruling, support was just 47%.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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