Harvard is fighting a lawsuit that claims the elite school’s consideration of race in its ultracompetitive admissions process is unfair to Asian-American applicants. | Glen Cooper/Getty Images Education GOP courts Asian-Americans with drive to end affirmative action

A legal battle over Harvard University’s use of race in admissions beginning Monday will ratchet up the Trump administration’s war on affirmative action, a play to the president’s base that also highlights a Republican bid to win the allegiance of the fastest growing racial group in the nation.

Harvard is fighting a lawsuit that claims the elite school’s consideration of race in its ultracompetitive admissions process is unfair to Asian-American applicants. The Trump administration has thrown its support behind the suit and launched its own investigation into claims the Ivy League school is discriminating against Asian-Americans — moves that could allow the GOP to win over a new group of angry voters.


Asian-Americans have long supported Democrats, tending to favor gun control, pathways to citizenship — and even affirmative action. But a vocal and growing segment of the Asian-American population is fed up with the use of race in admissions, which they believe holds Asian-Americans to higher standards than other groups — and some Republicans see an opening to start to woo a new bloc of supporters. GOP candidates in at least two congressional races this year have railed against affirmative action in explicit bids for Asian-American voters.

Asian-Americans unhappy with the use of race “have an ear, because they occupy a pretty unique place in American politics: They’re nonwhite voters who are opposing affirmative action,” said Janelle Wong, a professor of Asian-American Studies at the University of Maryland who supports affirmative action.

Polling shows the group still overwhelmingly supports Democrats and largely disapproves of President Donald Trump. But for Democrats, Wong said, it’s “time to sound the alarm.”

Morning Education A daily dose of education policy news — weekday mornings, in your inbox. Email Sign Up By signing up you agree to receive email newsletters or alerts from POLITICO. You can unsubscribe at any time. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

“If Asian-Americans move to the GOP — that’s the end of the ‘rainbow coalition' in the U.S., and that is a problem for the Democrats,” she said.

Led by longtime anti-affirmative-action activist Edward Blum, the lawsuit against Harvard is seen by many as the next opening to ban race in admissions — and its journey begins just after Trump added a fifth conservative justice to the Supreme Court, where the case is likely to end.

Students for Fair Admissions, Blum’s group, brought the suit against Harvard in 2014, and this summer the Justice Department joined in, accusing Harvard of discrimination in court filings. The DOJ asserted that “Harvard’s race-based admissions process significantly disadvantages Asian-American applicants compared to applicants of other racial groups — including both white applicants and applicants from other racial minority groups.”

“No American should be denied admission to school because of their race,” Attorney General Jeff Sessions said in a statement at the time.

It's just one piece of the Trump administration's crackdown on affirmative action. The DOJ has launched separate investigations into admissions policies at Harvard and Yale, the latter of which the Education Department’s civil rights office joined. And the two agencies this summer scrapped Obama-era guidance that called on school superintendents and colleges to consider race when trying to diversify their campuses.

Civil rights groups see it all as a coordinated drive to end affirmative action.

"It’s highly unusual for them to be involved in this way," said Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights, who led the DOJ’s Civil Rights Division during the Obama administration. "They are seeking at a very early stage to be very engaged and involved — and potentially even in the driver's seat — for a case that could rise to the Supreme Court. This is a much more aggressive posture for the Justice Department to be taking. It’s an unprecedented aggressive posture.”

The Trump administration’s investigations were spurred by complaints from the Asian American Coalition for Education, a relatively new organization with a goal of ending affirmative action. The group reports 20,000 individual supporters and lists more than 130 organizations as partners on its website.

AACE says it is nonpolitical, but Swan Lee, a co-founder and AACE’s board director, said in an interview that Republicans have been quicker to hear its arguments. The group initially filed its complaints during the Obama administration.

“For a very long time, when we complained about discrimination they would say, ‘No problem’ or take no action, like, ‘You should just accept it,’” she said. “We’re open to support from any politician, but, interestingly, it’s always Republican politicians who seem to care more about racial equality.”

The Harvard case, to be heard in a Boston courtroom, is significant because it targets an admissions policy that has been praised by the Supreme Court as a model. The high court has upheld affirmative action in college admissions multiple times. But with Justice Brett Kavanaugh now on the bench in place of Anthony Kennedy — a key swing vote who wrote the most recent opinion approving the use of race — the court may be less likely to greenlight the practice again.

“Harvard’s approach to holistic admission decisions has been widely adopted throughout higher education,” the American Council of Education, the nation's leading higher education lobbying group, wrote in a brief in the case on behalf of 37 college groups. “A victory for the plaintiff could upend this evolved and evolving system.”

The lawsuit marks a new approach for Blum, SFFA’s founder, who has pushed legal challenges to affirmative action in the past, including a lawsuit against the University of Texas at Austin. That suit, which went to the Supreme Court, was on behalf of Abigail Fisher, a white woman who claimed the university’s rejection of her application in 2008 violated the equal protection clause.

The Supreme Court disagreed, and in 2016 issued a 4-3 ruling in UT’s favor.

The ruling built on years of precedent. In a landmark 1978 ruling, the court banned racial quotas but said race could still be considered as one of many factors in admissions. In two separate rulings in legal challenges to the use of race by the University of Michigan and its law school, the court again approved affirmative action but continued to narrow the ways it could be used.

In the latest court fight, Students for Fair Admissions will make four arguments: that Harvard intentionally discriminates against Asian-Americans; that it engages in illegal racial balancing; that Harvard’s use of race falls outside what the Supreme Court has allowed; and that Harvard doesn’t need to consider race at all to shape its freshman class.

Harvard has said SFFA’s lawsuit is based on a "deeply flawed statistical analysis" and presents a "misleading narrative." It has called the Justice Department’s brief supporting SFFA "a thinly veiled attack" on Supreme Court precedent that "uncritically adopts SFFA's flawed narrative."

Civil rights groups argue that affirmative action actually benefits Asian-American applicants, who, if anything, are harmed by Harvard’s benefits for white legacy students, recruited athletes and children of staff and faculty — not by its consideration of race. They point out that the Asian-American student population has grown sharply over the past several years and that Asian-Americans now make up more than 20 percent of Harvard’s student body — compared to roughly 6 percent of the U.S. population.

“Ed Blum is just trying to use Asian-Americans as a cover for his true agenda of changing policies that will ultimately benefit white students who already have the most advantages in the admissions process and in life,” said Nicole Ochi, supervising attorney at Asian Americans Advancing Justice — Los Angeles, a group helping defend Harvard in the trial.

Blum said such assertions "are weak and intellectually lazy. Hundreds of Asian-American advocacy groups have joined our efforts to end Harvard’s discriminatory admissions policies.”

Polling shows Asian-Americans still broadly support affirmative action, however. A 2018 survey of Asian-American voters by AAPI Data, a program led by Karthick Ramakrishnan at the University of California, Riverside, found 58 percent of Asian-Americans think affirmative action programs are a “good thing.”

But that support does not extend to all subgroups of the diverse Asian-American population. Just 38 percent of Chinese-Americans believe affirmative action is a good thing, according to the survey. About as many Chinese-Americans, 36 percent, are undecided, while more than a quarter have decided it’s a bad thing. Vietnamese-Americans are also skeptical, with just 40 percent saying affirmative action is a good thing.

But Kham Moua, associate director of policy and advocacy at OCA — Asian Pacific American Advocates, says “the reality is that the majority of Asian-Americans support the program or are indifferent to it.”

The civil rights group began as an organization of Chinese-Americans in 1973, but recently rebranded. Moua said that despite the group’s longtime support of the use of race in admissions, it now has “small pockets that are vocally opposed to affirmative action.”

Many of these affirmative action opponents are more affluent and recent immigrants from China, said OiYan Poon, an assistant professor of higher education leadership at Colorado State University who has studied the trend. Many attended elite colleges in China and came to the U.S. to pursue advanced degrees, she said.

“This particular segment of the population is a very small minority of folks — they are getting a lot of media attention. They're creating, essentially, a public spectacle that’s drawing a lot of attention,” she said.

That includes Republicans. The campaign for Rep. Mimi Walters, a Republican fighting for reelection in Orange County, California, recently sent out a mailer highlighting the DOJ investigation at Yale. The mailer said Walters wants the House to launch its own investigation into “discrimination against Asian-American students at Ivy League and other top universities.”

Democrats have hoped a growing Asian-American population there could help them win the historically red district, and Walters is aiming to peel off some of that support as several polls show Democratic challenger Katie Porter leading the tight race.

In Virginia, Corey Stewart, a Republican trying to unseat Sen. Tim Kaine, a Democrat, has vowed to introduce legislation to ban universities from considering race if they receive federal money. He made the pitch at a Vietnamese-American mall in Falls Church, a D.C. suburb in which Asian-Americans are the second largest racial group, at 10 percent of the population.

Stewart, who trails Kaine significantly in polls, told Fox News he was approached by Chinese-American residents who told him why they oppose affirmative action: “I always knew that race was a factor in college admissions, but I didn’t realize how bad it was until some citizens brought it up,” he said.