-We're here at the center of Bentonville Square.
There used to be a Confederate statue housed here.
I was involved in the activism and the protesting, uh, surrounding
removal of the monument.
It was a really fraught experience.
But now it's been gone for a couple years,
and there's a beautiful sunflower bed that’s replaced it.
Muskaan Arshad became a social activist due to her own challenges
growing up Asian American in Arkansas.
So in 2021 when she applied to college, she decided to
write about how race had often defined her experiences.
-When I was growing up, there was always this inherent feeling that
being brown, being Indian, wasn't good enough.
I think the youngest time I experienced that was when I
was in class and we were doing, like, an activity that involved
everyone holding hands, and, just – no one would touch me.
Just being, like, seven years old and hearing
and seeing your peers, like, not be able to touch you just because of
your skin color, and thinking you're just inherently dirty in some way.
That was just an extremely hurtful moment, and I think just was the
first instance of many that really cemented the fact that being brown,
being Indian, being Asian American wasn't an accepted thing.
My race was just essential in every part of
my application, in who I am.
Without mentioning my race and how it was part of my life, I don't
think I could have painted a full picture of who I was, and maybe
not even gotten into Harvard.
It's the kind of history that universities like Harvard have long
given special attention to because of Supreme Court decisions dating
back to the 1970s solidifying the idea that colleges can consider race
in admissions in order to promote diversity.
But two lawsuits now before the Court are challenging
this idea.
-Some big developments out of the Supreme Court today.
The justices announced they will reconsider the
issue of race-based affirmative action in college admissions.
The man behind the Supreme Court fight is Edward Blum, a
conservative activist who’s spent decades seeding lawsuits to
challenge affirmative action practices.
-Kids check which race they belong to and then they're judged, either
affirmatively or negatively, by competitive admissions offices
based upon the box they check.
That is inherently unfair.
That is inherently polarizing and inherently illegal and unconstitutional.
Blum lost an earlier case in which he represented a white student who
challenged affirmative action at the University of Texas.
But his current lawsuits, against Harvard and the
University of North Carolina, Chapel Hill, have drawn attention for a
more unusual argument: that universities are using affirmative
action policies to discriminate against one minority group,
Asian Americans.
-Harvard systematically raises the bar for Asian Americans and
systematically lowers it for whites, African Americans and Hispanics.
We allege that Harvard has a quota.
That possibility has long worried some in the Asian American
community, but it was one student’s fight that made it front page news,
attracting Blum to the cause.
-Michael Wang did everything he could to get into Harvard.
-I actually sang at Obama's inauguration.
Multiple speech and debate awards.
Uh, piano competitions.
-But in 2013, the California high school student was rejected by his
dream school, even as he says students with lower grades got in.
-I spent middle school, high school really grinding away, taking as
many A.P. classes as I could, participating in as many
extracurriculars as humanly possible, really just trying to put
together the best resumé
for these Ivy Leagues and all these top-tier institutions.
Ultimately when I got my decisions, you know, they
weren't what I expected.
So I wrote to their admissions offices by email and asked them,
can you tell me how you utilize race as a factor of admission?
All I wanted to see was, you know,
is me being Asian American
something that disadvantaged me on my application.
And the answers I received back from those
admissions offices were unsatisfactory.
And so that’s where, you know, in 2013 I decided to file
my three complaints, and that's how I got started on this whole road.
While the U.S. Department of Education ultimately decided not to
act on Michael Wang’s complaints, in 2014, Blum began to seek out
Asian American students to bring a lawsuit.
-The lawsuit against Harvard University for discriminating against
Asian American applicants just took a new twist, with claims that the
bias against them is a – quote, personal thing – including such
traits as positive personality, likability and attractive to be with.
-You cannot remedy past discrimination
with new discrimination.
Blum’s case has deeply divided the Asian American community.
-We are united today to protect opportunity.
Blum's lawsuit is racist in its effort to whitewash history.
-We're still a minority at the end of the day.
Asians have been discriminated against.
I would hope that as a minority, as an Asian American,
we're not the ones losing out.
But Blum’s lawsuits have also reopened the larger debate,
one that the Supreme Court famously grappled with in 2003 in a case
called Grutter v. Bollinger.
-For the first time since the ’70s, the Supreme Court today took
affirmative action in education dead on: Can race be a factor in
college admissions, period.
Two white females say the University of Michigan denied
them admission using tough standards for whites.
-They say things like, we're selective, but they're making
selections on racial lines.
-I think that the University of Michigan is using a preference that
is based solely on skin color.
And that is wrong.
-A position shared by more than two-thirds of Americans, according
to a Newsweek poll.
68 percent said they opposed racial preferences
in college admissions for Blacks. 70 percent said they
opposed preferences for Hispanics.
-Those who were challenging the affirmative action program were
arguing that there was something deeply offensive about counting
and sorting people by race.
On the other side, of course, was: Look, it's been working.
Without it, we'd be back to where we were.
So these are two profoundly different ways of
looking at the problem, and it came at a very important moment in the
Court's own evolution.
At the center of that Court was a conservative former politician who
had overcome discrimination to become its first female justice, but
struggled with the question of affirmative action.
Her name was Sandra Day O’Connor.
-People paid a lot of attention because these issues of race really
touched, uh, deep cords in the American fabric.
One issue with affirmative action is that, um,
somebody gets a benefit on the basis of race.
That means that, if it's a zero-sum game, somebody
because of their race didn't get that benefit, and
that really bothered her.
I think she very deeply grappled with the issue that was
presented in Grutter, and the deeper issue about the role of race
in American life and American law.
-We knew from the very beginning that whatever she thought the
conclusion should be, we weren't going to sway her from that.
But she was someone who, in the
difficult cases, was open to debate and compromise.
That desire for compromise was helped along by two unusual briefs.
-One from the military, emphasizing why affirmative action in the
academies is important to producing diverse leadership, and
then one from Fortune 500 companies that emphasized why
having diverse institutions is important in populating the
workforce with people who've had the experience of interacting with
those who are not necessarily like themselves.
-The arguments made sense to her as a reflection of the America that
she knew, and that she had watched from this perch as a
Supreme Court justice.
And so she came up with her very modulated response.
-Student body diversity is a compelling state interest that can
justify a narrowly tailored use of race in admissions.
-Yes, there's room for a limited kind of affirmative action in higher
education that doesn't have a fixed quota, that takes a look at each
applicant as an individual.
So the decision in Grutter kept affirmative action alive.
O’Connor’s ruling was important because it upheld the use of
affirmative action to racially diversify universities,
and because it affirmed a broad rationale:
doing so was good for the country.
But her ruling also contained a ticking time bomb.
-She did something very unusual in the opinion.
She said, basically, we expect that, uh, 25 years from now
American society would have worked this problem out, and, uh,
it won't need us anymore.
It won't need affirmative action anymore.
That was a kind of a safety net at the time, and now of course it's a
looming vulnerability.
While Blum has highlighted the treatment of Asian Americans, the
lawsuits brought by his group, Students for Fair Admissions, don’t
seek to just rejigger how race is used in university admissions.
They seek what Blum has advocated from the beginning.
-The whole Asian issue was just a stalking horse.
What it's really about is, a university may not
consider race, full stop.
And the whole thing was an effort to get that
question before this Supreme Court, and it has succeeded.
It's now before this Supreme Court.
But Blum’s endgame goes too far for even some of those who have
led the fight to re-evaluate these programs.
-I think I may have set in motion things that
might have been out of control.
Um, affirmative action might just get completely tossed.
And I don't fully agree with that.
I think affirmative action is still very
necessary in helping minorities who actually do need it.
Maybe there’s this one problem with implementation.
That doesn’t mean that we toss affirmative action out the door.
There is a middle ground.
If Blum’s case succeeds, California’s experience in the 1990s
and early 2000s may show the likely result.
-When there was a proposition that barred the use of race
in admissions, African American
representation in the class plummeted.
And so that was kind of a controlled experiment.
If the Court takes that most extreme position,
it's possible that these justices could basically hamstring, um,
you know, all of American education, not just elite college education.
And so the argument now is, um,
how much should we care about that?
For student activists like Muskaan, the importance is clear.
-I think a quote that really sticks with me is that no racial group has
a monopoly on talent or intelligence, but certain students do
have a monopoly on opportunity.
And I think race-conscious admissions
really takes that into account.
We're trying to pretend we're in a society where race
doesn't matter, where everything is race-blind and everything is
equitable, when these systemic issues are still right underneath, but
we just aren't addressing that.