The U.S. Supreme Court will soon hear a controversial and racially sensitive case about racial equity: whether Harvard University and the University of North Carolina’s priority consideration of minority students such as African Americans and Latinos constitutes racial discrimination against Asian and white students.
Measures to specifically consider the racial background of admission applicants are commonly known as affirmative action. The paradox of such measures is that the purpose of affirmative action is to promote racial equity by allowing disadvantaged students from lower socioeconomic levels an opportunity to enter top universities. However, the manner in which these measures are carried out is a type of racial consideration or classification. Isn’t this unfair for candidates and applicants who are not included in such racial groups? In addition to the white people who are indignant about this, people of Asian descent, who are also a minority group that has a long history of being discriminated against, are even more dissatisfied. They argue that they are excluded only because they have the “incorrect” skin color and are losing out to Black and Latino students who have lower test scores. This, according to them, is racial discrimination.
In the past, almost all the people who have challenged the legality of affirmative action in court have been white. This time, however, it is Asian students. They have pointed out that Harvard has reduced admissions because the number of Asian American applicants was too great. They also argue that the racial discrimination and oppression endured by Asians who came to the U.S. in the 19th century was actually no less than that endured by African Americans. The new generation of Asian Americans must rely on good academic performance to achieve a higher socioeconomic status. Why should their chances of getting into a top university be limited because of their racial identity? Compared with the wave of hatred Asian Americans have experienced during the pandemic, is only the pain of Black and Latino people appreciated by the elites? Are Asian Americans ignored because they are too independent and self-reliant? Is the hard work of Asian Americans discounted because they are too successful? How preposterous!
In 2003, the Supreme Court grudgingly recognized, with conditions, race-based admission practices at public universities. However, it also set a 25-year limit on the practices. Today, while the time limit has yet to expire, the makeup of the court has changed. With six votes, the conservative justices were able to overturn abortion rights and greatly expand gun rights. It would not be impossible for them to prematurely end affirmative action.
In Taiwan, a similar controversy is the practice of giving “bonus points” to Indigenous people. In theory, Taiwan’s situation differs greatly from that of the U.S. On the one hand, legally, the status of Indigenous people and other ethnic minority groups is different. Taiwan’s constitution expressly stipulates that the state, “in accordance with the will of the ethnic groups,” will safeguard and support Indigenous education. The International Convention on the Elimination of All Forms of Racial Discrimination, which the Republic of China signed and ratified long ago, declared that these forms of affirmative action during transitional times are not racial discrimination. Therefore, the constitutionality and legality of affirmative action should not be a problem. On the other hand, Indigenous students are guaranteed admission through extra admission spots, so this really shouldn’t be called giving them “bonus points.” Admission opportunities will not be reduced for students who are not Indigenous. Furthermore, the vast majority of Indigenous students who enter top universities through this type of system perform just as well as other students.
Unfortunately, however, few people understand these guarantees and mistakenly believe that Indigenous students are admitted through bonus points and can get into top schools without needing to study, which some students gossip about. Because of this, some Indigenous students have hidden their Indigenous identity since childhood. In this reality, how can we expect Indigenous students to be proud of who they are? And how can we make them believe that this is a diverse, mutually prospering, equal and respectful society?
To make educational protections for Indigenous students more efficient and to avoid misunderstandings and reduce the likelihood of an American-style racial civil war, education authorities and individual schools perhaps need to take responsibility to more broadly explain that “bonus points” for Indigenous students is an oversimplified misunderstanding of the system. Furthermore, these measures should be reviewed on a rolling basis according to the social circumstances of Indigenous people and the socioeconomic status of individual students. With their self-governance, universities should make more diverse and flexible plans instead of adopting the lazy and imprecise strategy of giving bonus points across the board. After all, the goal of educational protections for Indigenous students is to actively support and give visibility to Indigenous culture, as well as promote equality and respect among races. We should take America’s experience as a warning and opportunity for vigilance and self-reflection.
The author is an associate professor of law at National Chengchi University.
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