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Affirmative action is facing its toughest test yet. Dozens of Harvard students are headed to D.C. in its defense

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Students in the Affirmative Action Coalition march from Harvard through Cambridge, chant in support of diversity and affirmative action on college campuses. (Robin Lubbock/WBUR)
Students in the Affirmative Action Coalition march from Harvard through Cambridge, chant in support of diversity and affirmative action on college campuses. (Robin Lubbock/WBUR)

On Monday, the U.S. Supreme Court will hear arguments in a pair of blockbuster cases challenging the consideration of race in college admissions at Harvard and University of North Carolina at Chapel Hill.

Both cases, brought by a group called Students for Fair Admissions, challenge the legality of affirmative action policies at the institutions. The case against Harvard specifically alleges discrimination against Asian American applicants to maintain a racial balance at the college.

Many Asian American students at Harvard are mobilizing to speak out against what they see as the plaintiff's efforts to use Asian Americans as a "wedge" in a longstanding crusade to dismantle affirmative action in higher education, a practice that was first upheld by the Court 40 years ago — and has withstood legal challenges ever since.

Over 100 Harvard students plan to travel to Washington this weekend, both to bear witness to the landmark case and to defend the school's race-conscious admissions policies at a very vulnerable moment.

The case dates back to 2014, when Students For Fair Admissions, or SFFA — a group led by conservative legal activist Edward Blum -- alleged that Harvard was deliberately excluding qualified Asian American applicants.

It’s set to be a whirlwind weekend: chartered buses will leave Cambridge at 3 a.m. on Sunday to make the eight-hour trip to Washington, and the students will be back on campus Monday night after oral arguments.

On Sunday, students organized by the Coalition for a Diverse Harvard, two dozen student affinity groups and outside civil-rights groups will take part in a "celebration of diversity" in the district. On Monday, students will gather on the courthouse steps while the justices hear arguments in the UNC and Harvard cases.

That so many Harvard students are making the trip to D.C. is evidence of real passion for diversity and equity at the school, argues sophomore Kylan Tatum, a co-lead organizer.

"It's Halloween weekend," Tatum said, laughing. "Often college students aren't willing to sacrifice that ... to go protest."

Organizers plan to distribute and design signs and coordinate a speaking schedule outside the court while a handful enter to hear oral arguments.

Since 1978, the Supreme Court has recognized that colleges and universities have a "compelling interest" to pursue diversity through the use of race-conscious admissions, as long as it isn't achieved by means of fixed racial quotas. More recently, the court has affirmed the policy so long as no other "race-neutral" alternatives are available.

Harvard prevailed on those grounds in district court in 2019, with U.S. District Judge Allison Burroughs finding "no persuasive documentary evidence of any racial animus or conscious prejudice against Asian Americans." The ruling was upheld on appeal in 2020.

But this case was always destined to wind up before the Supreme Court.

Meanwhile, many Asian American students on campus say they resent being made the face of the controversial suit.

Ali Makani, president of Harvard's South Asian Association, said part of the reason behind the group's participation in the D.C. events is "to take a stance, as South Asians, to say, 'No, we actually defend affirmative action and believe in the merits of it.'"

That’s another reason for their presence in Washington this weekend: an in-person protest in service of what Tatum calls "narrative change."

"Edward Blum's claim is that affirmative action discriminates against Asian Americans, and that most Asian Americans are not supportive of affirmative action," Tatum said. "What does it say that a significant portion of the Asian student groups at the school that he's suing are showing up in D.C. and protesting against [his case]?"

Kylan Tatum, a Harvard sophomore, is among the 100-plus Harvard students traveling to Washington to defend affirmative action policies. (Max Larkin/WBUR)
Kylan Tatum, a Harvard sophomore, is among the 100-plus Harvard students traveling to Washington to defend affirmative action policies by holding a rally and march. (Max Larkin/WBUR)

Tatum says SFFA's arguments have "cultivated division" between groups — and ignore the more complex realities of race and ethnicity.

As a person who is both Black and Vietnamese, Tatum — who grew up in New Jersey — has lived with that complexity: "I was very frequently told in high school that, 'oh, like, Kylan is good at math because he's part Asian.' " (They're now majoring in history and literature, with a minor in women, gender and sexuality.)

As they speak on Monday outside the Court, Tatum will be flanked by classmates who represent other Asian American groups at Harvard, including fellow sophomore Muskaan Arshad.

After growing up in a predominantly white part of Arkansas, Arshad — who was born in India — says life at Harvard was a revelation.

"I can't imagine a college experience that isn't as diverse and accepting as this one," Arshad said.

'Almost A Guarantee'

The Supreme Court's rulings on the pair of affirmative action cases won't arrive until next year. But given the strong conservative majority currently sitting on the court, legal experts suggest there's little doubt about the outcome.

“I think it’s almost a guarantee that at least five of the right-wing justices side with the plaintiffs — to take off the table the right for historically white institutions to take race into account," said Jonathan Feingold, an associate professor at the Boston University School of Law.

Feingold, along with Vinay Harpalani, a law professor at the University of New Mexico, submitted an amicus brief in the Harvard case, arguing that only by explicitly considering race in admissions can institutions unwind historical racial "advantages" for white applicants.

If SFFA and Blum were serious about promoting "fair admissions," Feingold said, they would have taken aim at the legacy preferences given to the children of alumni, which favor predominantly white and wealthy applicants. (Prior court filings revealed that nearly 34% of legacy applicants were admitted to Harvard between 2014 and 2019, compared to 5.9% for non-legacy applicants over the same period.)

The racial diversity among Harvard's admitted students has grown consistently in the last 10 years.

About 40% of its newest class of admitted students are white, compared to 56% a decade ago. During that same time frame, the share of admitted students who are Asian American rose from 21% to 28%. Meanwhile, the share of admitted Black applicants increased from 10% to 15% — while Latino admissions have remained largely flat.

Still, some of the students going down to Washington for oral arguments share Feingold's fatalistic view.

“There are a lot of students who, personally, just deep down believe that the Supreme Court is going to strike it down — that it’s not going to be ruled as constitutional, that affirmative action is gonna be taken away," said Harvard senior and organizer Angie Shin. "It's going to be really sad; it’s gonna be a lot."

Kylan Tatum says affirmative action is aimed at worthy goals — fostering diversity, preventing "tokenism" of racial minorities, and opening doors that were closed to past generations.

Those goals, Tatum said, will survive — whatever the court decides. “While it may not go the exact way we wanted, we can still find different methods of doing the best we can."

Some experts say it will be difficult to assemble maximally diverse college campuses without being permitted to consider race in admissions. But Tatum says students plan to keep up the fight.

WBUR's Vanessa Ochavillo contributed to this report.

Related:

Max Larkin Twitter Reporter, Edify
Max Larkin is a multimedia reporter for Edify, WBUR's education vertical.

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