It's been called the "bamboo ceiling:" the perception that brilliant Asian-American high school students face an unspoken admissions quota when it comes to higher education, barring some worthy scholars from the nation's elite colleges and universities.

Under the theory, gatekeepers at those public and private schools tacitly pass over highly-qualified Asian kids for mediocre African-American and Hispanic students, for the sake of superficial campus diversity.

Though the bamboo ceiling hasn't made many headlines, analysts say a civil case currently underway in federal district court – but clearly designed to reach the Supreme Court – could open a new front in the decades-long courtroom war over race-conscious admissions policies in higher education.

And it could give Edward Blum, a conservative legal warrior and avowed enemy of affirmative action, another chance to attack programs that benefit African-Americans and Hispanics.

Harvard "is engaging in a campaign of invidious discrimination by strictly limiting the number of Asian-Americans it will admit each year and by engaging in racial balancing year after year," according to a statement on the website of Students for Fair Admissions, Blum's organization, which is behind the lawsuit. "These discriminatory policies in college admissions are expressly forbidden by the Fourteenth Amendment and federal civil rights laws."

A stockbroker-turned-conservative activist, Blum is the sole proprietor of Project for Fair Representation, SFFA's parent organization and a one-man conservative think tank. Its sole mission: dismantling public-sphere affirmative action-style programs Blum says perpetuate inequality and restrict fair opportunities for minorities.

Project for Fair Representation was behind a series of Supreme Court cases – perhaps most famously, representing Abigail Fisher, a college student who sued the University of Texas over its race-conscious admissions programs after she was denied admission. Last year, the high court sided with Texas, allowing the university to continue using race as one of several factors to decide which high school students are granted admission.

Affirmative action-style admissions programs remain "on relatively safe grounds for the time being, given the current composition of the the Supreme Court" and its 2016 ruling in Fisher v. University of Texas. Although the court agreed to let those programs stand, "the door remains open for a challenge," Christopher Alan Bracey, a George Washington University law professor with expertise on the issue, writes in an email interview.

What's beyond dispute is the impact Blum has had on the halting national conversation on race and institutional remedies designed to reverse the effects slavery and Jim Crow have had on African-Americans.

For more than two decades, Blum has been the architect of roughly a dozen lawsuits against affirmative action and race-based programs, part of his crusade to create a "color-blind" society. Since 2009, four of them have made it to the Supreme Court, and legal analysts believe Students for Fair Admissions v. Harvard University could join the list, perhaps as early as this year.

But Blum's attempt to argue that Asians are unfairly harmed by college affirmative-action programs may be backfiring.

Though he's spent more than two years recruiting students to become the public face of the lawsuit, Blum got only a handful of takers; his argument has sharply divided the Asian community, and spurred a backlash. Some say Blum is right, but most others agree that Blum cares more about getting rid of programs that harm whites than he does about seeing more Asian kids on elite college campuses.

"On the one hand, there is a sense that Asian-Americans are in fact being held to a higher standard when it comes to college admissions," writes Bracey. Yet "there is a sense" that he's using the community "to mount a more generalized attack on race preferences."

That's the rub, says Stella Flores, director of access and equity at New York University's Steinhardt Institute for Higher Education Policy. Blum's lawsuits ignore economic and educational diversity within the Asian community itself – for example, children of South Asian immigrants are more likely to come from lower-income homes led by parents without bachelor's degrees than families with roots in other Asian regions – and don't address more substantive, everyday effects of racial bias.

"Asians experience a lot of discrimination in terms of how they look and how they are treated," Flores says, citing the "model minority" stereotype and a recent Fox News segment in which the reporter unabashedly mocked Asians while interviewing them on camera.



Blum, she says, "is assuming that a [racial] group doing well," like Asians, only face reverse discrimination, like some whites believe, "and that's naive."

To that point, the Los Angeles chapter of Asian Americans Advancing Justice, a civil rights group, filed in December a friend-of-the-court brief siding with Harvard – and found a high-achieving Asian-American high school student willing to be its public face.

"Part of the Ivy League obsession of some Asian-Americans may be rooted in a sense of insecurity about our place in America," Jason Fong, a high school senior and Harvard applicant, said in a statement. In real life, he adds, an Ivy League degree "is not enough to stop people from screaming at us to 'go home.'"

Asian-Americans "have historically benefitted greatly from the consideration of race," Nicole Ochi, supervising attorney at Advancing Justice-Los Angeles, said in the statement. "We refuse to be used as a wedge by outside players" using fear to manipulate their community.

The stance inspired a Twitter hashtag, #NotYourWedge

Not so, says Blum.

"Their claims don't make any sense," Blum says in a brief interview in January. "Whites, blacks and Hispanics are benefiting from Harvard's Asian quota. Asians are the most harmed by these preferences and quotas."

And he seems to have a friend in Supreme Court Justice Samuel Alito, a stalwart of the court's 5-member conservative bloc. In a scalding, 50-page dissent to the court's ruling in Fisher v. Texas last year, Alito seemed to practically invite Blum to find an Asian plaintiff and try again.

Though it has policies that boost black and Hispanic admissions, Texas "completely [ignores] its [own] finding that Hispanics are better represented than Asian-Americans in UT classrooms," Alito wrote. "In fact, they act almost as if Asian-American students do not exist," putting the court in the untenable position of "deciding which races to favor."

Then, quoting an Asian civil rights group's filing in a different case, Alito delivered the coup de grace: "The Court's willingness to allow this 'discrimination against individuals of Asian descent in UT admissions is particularly troubling, in light of the long history of discrimination against Asian Americans, especially in education.'"

"This is affirmative action gone berserk."

That caught the attention of several analysts and observers, who questioned Alito's point.

"Justice Alito mentions white people only ten times in his fifty-one page dissent, and not once does he use the word in reference to Fisher herself," writes David Shih, an English professor at University of Wisconsin-Eau Claire, critiquing the justice's opinion in a blog post last year. "Yet the words 'Asian American' appear sixty-two times."

If people didn't already know Fisher, the plaintiff in the case, is white, Shih writes, "one might think that Justice Alito were examining the petition of a person like me – a Chinese American."

Still, Blum may have another powerful ally besides Alito. Time could be on his side.

When Justice Antonin Scalia, a fiery conservative and arch critic of race-based programs, died suddenly last February, former President Barack Obama nominated Merrick Garland, a centrist appellate judge, to replace him. But Senate Republicans, worried Garland would break the decades-long conservative majority and pull the court to the left, linked arms and blocked him from getting a confirmation hearing, effectively scuttling his nomination and keeping the seat open until after Obama left office.

On Tuesday, President Donald Trump nominated Neil Gorsuch, a young, staunchly conservative federal judge, for the vacancy. If confirmed as the newest Supreme Court justice, Gorsuch would restore the short-handed bench to full strength and reconstitute its 5-4 conservative majority.

Meanwhile, analysts predict Trump could get at least one more vacancy to fill on the high court before the end of the year. Speculation centers on the court's two octogenarians: Justice Ruth Bader Ginsburg, 83, who survived pancreatic cancer, and Justice Anthony Kennedy, 80, a moderate conservative who voted with the liberals in the Texas case..

If either of them vacate the bench, Trump and the GOP Senate majority could create a nearly implacable, 6-3 conservative majority on the high court – a scenario highly favorable to Blum, whose case is probably at least a year away from Supreme Court consideration.

Still, Shih, the college English professor, writes that Blum, and perhaps Alito, don't seem to understand how race works in America.

When he was a Texas freshman in 1987, "I didn't want my race to matter to anyone. It was much easier and comfortable to think about myself in a race-neutral way – as an individual," Shih wrote. When someone handed him a flyer about an Asian-American student organization meeting, he felt "a twinge of resentment" that the student "had judged me by my race alone."

"I saw Asian American identity then in the same way that Justice Alito does now, as a burden to individuality," Shih wrote. But experience, and knowledge of himself and his community has taught him differently,

"If you're lucky, like me, you stop thinking this way, eventually learning that you don't become an Asian American all by yourself," he said. "You don't become any race all by yourself. I hope the next Abigail Fisher knows that."

Tags: race, affirmative action, Harvard University, minority students, college admissions

Joseph P. Williams Staff Writer

Joseph P. Williams is a news editor with U.S. News & World Report. E-mail him at JWilliams@usnews.com.


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