For nearly 50 years, conservatives opposed to affirmative action have attempted to use the courts to eliminate any consideration of race in university admissions. In case after case, their attempts ended in failure.
Yet judging from events at the Supreme Court on Monday, that may soon change. In a pair of closely related cases—Students for Fair Admissions Inc v. President & Fellows of Harvard College, and Students for Fair Admissions Inc v. University of North Carolina—the plaintiffs called for the total elimination of race-sensitive admissions. Their argument in these cases was not the traditional one that affirmative action discriminates against whites, but rather that it discriminates against Asians. One central argument that came up again and again in oral arguments is that just as Harvard imposed quotas in the 1920 to limit the number of academically talented Jewish students, it is now imposing quotas to limit the number of academically talented Asian American students.
The comparison is superficially compelling. A longstanding body of scholarship—by Stephen Steinberg, Marcia Graham Synnott, myself, and others—does in fact establish that Harvard, threatened by an influx of high-achieving Jewish students, did impose quotas on Jewish applicants in the 1920s, using elusive nonacademic qualities such as “character” and “personality” to limit their numbers. And in recent years, Harvard and other elite institutions have faced a surge in applications from Asian Americans with outstanding academic records, and they, too, have often been plagued by lower scores on personality assessments. Over the past decade, the portrayal of Asian Americans as the “New Jews” has gained traction, appearing everywhere from the Wall Street Journal to the New York Times, from the Atlantic to the Times of London.
Again, this notion that discriminated-against Asian American students in the 2020s are equivalent to discriminated-against Jewish students in the 1920s played a central role in Monday’s oral arguments. Three separate times, Justice Neil Gorsuch raised the issue of the origins of holistic admissions at Harvard in the 1920s and noted how the policy was used to impose a quota on Jewish students. Cameron T. Norris, the lawyer arguing for the petitioners, made the comparison between Asian Americans and Jews explicit, declaring “What Harvard is doing to Asians, like what it was doing to Jews in the 1920s, is shameful.”
When pressed on the issue, Seth Waxman, the lawyer representing Harvard, acknowledged that the imposition of quotas, though a “terrible stain” on Harvard’s history, has no bearing whatsoever on the way Harvard currently conducts its admissions process. Justice Samuel Alito, apparently unsatisfied, raised the issue of Jewish quotas yet again. Observing that Justice Lewis Powell’s deciding opinion in the landmark 1978 affirmative action case of Regents of the University of California v. Bakke failed to address the historical origins of Harvard’s admissions policies, Alito asked pointedly “did Harvard sell Justice Powell a bill of goods?”
Yet the comparison to the 1920s fails to capture some critical differences between the two cases. Unlike affirmative action, which the Students for Fair Admissions, or SFFA, wants to eliminate, the quotas against Jews were enacted for purposes of exclusion—part of a larger xenophobic and antisemitic movement that resulted in the highly restrictive Immigration Act of 1924. In sharp contrast, affirmative action policies at Harvard and elsewhere were enacted during the civil rights movement for purposes of inclusion—to increase the number of Black students and later Latinos and Native Americans, who had historically not had the opportunity to attend institutions like Harvard. As late as 1960, Harvard enrolled just nine black students in a freshman class of 1,212, Yale five in a class of 1,000, and Princeton a total of one in a class of 826.