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The Non-Preferred Minority
Michigan, Asians, and Arbitrariness.


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Peter Kirsanow

Many college administrators do not hold this truth to be self-evident: that all men are created equal. In the Wonderland that is the campus-diversity industry, individuals from some racial/ethnic groups are more equal than others. And any rational attempt to discern how colleges separate the favored from the disfavored is a lesson in caprice, bias, and subjectivity — the supreme triumvirate of unequal treatment.

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The racial-preference regime favors some — but not all — minority groups: Blacks, Hispanics, and Native Americans, yes; Asian Americans, no. Indeed, were Asian-American students not discriminated against in the college-admissions process, they would constitute the largest minority group, if not an outright majority, at many schools. As Peter Schmidt noted in the June 6, 2003, Chronicle of Higher Education, the percentage of Asian-American applicants granted admission at the University of Texas-Austin rose from 68 percent to 81 percent immediately after the Hopwood decision struck down race-based admissions policies in the Fifth Circuit. The New York Times reported (February 2, 2003) that after California’s Proposition 209 ended race-based admissions, the percentage of Asian-American freshmen at Berkeley rose a full 6 percent.

Asian Americans, though only 4 percent of the nation’s population, account for nearly 20 percent of all medical students. Forty-five percent of Berkeley’s freshman class, but only 12 percent of California’s populace, consists of Asian-Americans. And at UT-Austin, 18 percent of the freshman class is Asian American, compared to 3 percent for the state.

This “over-representation” has produced much consternation among elites who view racial preferences as the best mechanism for ensuring the “proper” racial mix on college campuses. President Clinton worried that, without preferences, “there are universities in California that could fill their entire freshman classes with nothing but Asian-Americans.”

Of course, Asians are not the first racial or ethnic group whose admissions rates were intentionally suppressed because of their comparative academic achievement: During much of the 20th century, several Ivy League schools employed clever devices to curtail the influx of Jewish students. But the exclusion of Asian Americans from the list of the preferred is incongruent with today’s campus-diversity rationale: that a mix of races and ethnicities, both in the classroom and in social settings, has a compelling pedagogical value; and that where the percentage of minorities falls below a certain “critical mass,” that pedagogical value is diminished, not only because there are fewer opportunities for interaction between the races/ethnicities, but also because minorities will necessarily feel inhibited from expressing themselves, thereby depriving the campus of alternative opinions.

All of which begs the question: Why is this pedagogical value upset if Asian-American students are admitted at rates consistent with their qualifications?

It remains unclear how college administrators determine that optimum educational benefits are derived from a student population that is, for example, 65 percent white, 14 percent black, 12 percent Hispanic, 3 percent Native American, and 6 percent Asian American. Has some anthropological chemist concluded that a certain racial/ethnic mix makes student neurons fire best? Or will the neurons misfire if the percentage of Asians crests above, say, 8 percent? And why do neurons seem to fire just as well at Berkeley, where the freshman class is nearly half Asian, as at Yale, where the Asian-student population is only slightly more than one-tenth of the overall total?

When confronted with the absurdities inherent in the diversity rationale, preference proponents sometimes resort to the “historically disadvantaged or discriminated against” sub-rationale for preferring certain groups. The argument is that the presence of individuals from groups that have been discriminated against in the past (and are therefore disadvantaged in the present) brings distinctive insights and perspectives to the educational experience.

But while the median income and degree-attainment rates of Asian Americans exceed those of any other racial group in the country, there can be no dispute that Asian Americans have been discriminated against historically. From the Chinese Exclusion Act, to laws banning Japanese land ownership, to prohibitions against the public employment of Chinese, Asians have regularly been singled out for discriminatory treatment. Indeed, the Supreme Court has occasionally had to offer reminders that Chinese-Americans are indeed “persons” entitled to equal protection under the Fourteenth Amendment.

Moreover, not all “Asians” are socio-economically advantaged or “overrepresented,” a fact that highlights the clumsy tendency of preference policies to arbitrarily lump individuals of varying cultures, religions, and pigments into one category. Chinese, Japanese, and Korean Americans tend to do relatively well both in terms of college attendance and economic status, but Cambodians, Vietnamese, and Laotians much less so, and many of Southeast Asian descent are at the very bottom of the socioeconomic and educational ladders. (The status of Asian-Indians so confounds college-admissions alchemists that Indians are typically identified as “White” rather than “Asian.”)

In the end, it is clear that there are no objective standards justifying the exclusion of Asians (however defined) from the list of preferred minorities. The determination of what constitutes an under-represented minority and who gets a preference is entirely within a given college’s discretion. That is nothing less than a license to discriminate. As the district court that initially struck down the Michigan preference program in Grutter v. Bollinger stated, if a college singles out “African-Americans and Hispanics for special commitment today, there is nothing to prevent it from enlarging, reducing or shifting its list of preferred groups tomorrow without any reasoned basis or logical stopping point.”

Preferences giveth and preferences taketh away.

Peter Kirsanow is a member of the U.S. Commission on Civil Rights.



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