Legalized Racial Discrimination

Dr. Malcolm Cross

Acts of bigotry in the form of verbal abuse and physical violence against Asian Americans are certainly matters of concern. Also of concern are more subtle forms of bigotry, whether or not deliberately intended, against Asian Americans in both our public schools and in some of our institutions of higher learning. 

Currently, before the United States Supreme Court is the question of whether efforts to limit the number of Asian Americans enrolled at Harvard and the University of North Carolina constitute unconstitutional discrimination on the basis of race.  Harvard and UNC argue that they each want to create a “diverse” student body and rely on previous Supreme Court cases—Bakke and Gutter, especially—which say that the achievement of affirmative action and diversity goals fulfill a compelling public interest and that race can be a “plus factor” in determining who may be admitted—and who excluded.  

The Students for Fair Admissions, Inc., the plaintiff in each case, argues that “Today, Harvard’s ‘personal rating’ in the admissions process is used to evaluate Asian-American applicants based on prejudicial assumptions and stereotypical characteristics with the intention of reducing the admissions of Asian-Americans. Harvard uses a ‘personal rating’ in the admissions process today that examines, among other characteristics, an applicant’s ‘leadership,’ ‘self-confidence,’ ‘likeability,’ and ‘kindness’ as evidenced by the applicant’s interview, essays, extracurricular activities, letters of recommendation, and anything else in the application. Harvard denies using race in connection with how it scores applicants on the personal rating, but the data reveal that the low personal ratings for Asian Americans, as a group, reduce their admissions to a statistically significant degree. African-American applicants, as a group, routinely receive the highest personal ratings, followed by Hispanics, then whites, and then Asian Americans at the bottom. For example, in the highest academic decile, 46.97% of African Americans receive a 1 or 2 score on the personal rating, 34.21% of Hispanics, 29.62% of Whites, and 22.20% of Asian Americans.” 

For a more detailed argument, see

Also at issue is the treatment of Asian American school children in the Fairfax County, Virginia, public schools.  In 2020, Fairfax County school officials were disturbed by the fact that Asian Americans made up 73% of the students enrolled in its Thomas Jefferson High School of Science and Technology.  To create, so they said, a more “diverse” student body, they, therefore, abandoned the strictly merit-based admissions criteria and substituted a lottery system as well as more recruitment from other public schools in its system.  The percentage of Asian-American students fell to 54%.  A federal judge ruled that the new admissions system did, in fact, promote racial discrimination against Asian Americans and ordered the merit-based system reinstated.  They now constitute about 66% of the students enrolled.

Both the Thomas Jefferson High School and, indeed, the entire Fairfax County Public Schools are embroiled in another controversy concerning the notification of their students of the results of the annual competition for National Merit Scholarships.  Winning a scholarship is based on the score achieved on the Pre-Scholastic Aptitude Tests (PSATs). Those who win not only get some financial assistance for college, but they also win the prestige which will increase their chances of winning admission to the top colleges of their choice.

But last year administrators of several schools in the FCPS system, including TJHS, initially delayed telling the winners of the coveted National Merit Scholarships of their achievement.  The winners were thereby deprived of information which would have otherwise helped them compete for enrollment in top colleges and universities.

Several explanations for this failure have been offered, yet these explanations tend to raise more questions than they answer.  For example, the FCPS superintendent initially said the failure to inform the winners enrolled in TJHS was simply an oversight.  Yet this “oversight” occurred simultaneously throughout the school district.  Did different administrators at different schools simultaneously commit the same “oversight.” Some critics have said the information was withheld from the winners to avoid damaging the self-esteem of those who did not win.  It has been noted that the FCPS paid $455,000 to a consultant to help the FCPS develop programs to produce “equal outcomes for every student, without exception.”  What cause-and-effect relationship, if any, exists between the promotion of equity and the suppression of news about merit-based awards?

One point seems certain:  75% of the students who won national merit scholarships in Fairfax County yet who were deprived of the information when it would have been most timely were—you guessed it—Asian Americans.  Coincidence?

To date, the lower federal courts have upheld as constitutional the admissions policies of Harvard, the University of North Carolina, and other colleges and universities using race as a factor in determining who may and may not be admitted to their programs.  The Thomas Jefferson High School of Science and Technology and the Fairfax County Public Schools are vigorously contesting efforts by the State of Virginia to determine if racism in their treatment of Asian American students helps explain the damage done to them.  Should any of these schools prevail, Asian Americans will arguably become the one racial minority against which racial discrimination is legal.  But victories of Asian Americans will move America closer to the ideal of equal protection of the laws for everyone.

Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.

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