MUSKAAN ARSHAD: Were 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 surrounding removal of the monument. It was a really fraught experience. But now its been gone for a couple of years and theres a beautiful sunflower bed thats replaced it.
NARRATION: 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.
MUSKAAN ARSHAD: When I was growing up, there was always this inherent feeling that being brown, being Indian wasnt 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 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 youre 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 wasnt an accepted thing. My race was just essential in every part of my application, of who I am. Without mentioning my race and how it was part of my life, I dont think I could have painted a full picture of who I was, and maybe not even gotten into Harvard.
NARRATION: Its 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.
ARCHIVAL (CNN, 1-24-22):NEWS REPORT: Some big developments out of the Supreme Court today. The justice announced they will reconsider the issue of race based affirmative action in college admissions.
NARRATION: The man behind this Supreme Court fight is Edward Blum, a conservative activist whos spent decades seeding lawsuits to challenge affirmative action practices.
EDWARD BLUM: Kids check which race they belong to, and then theyre judged either affirmatively or negatively by competitive admissions officers based upon the box they check. That is inherently unfair. That is inherently polarizing and inherently illegal and unconstitutional.
NARRATION: 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.
ARCHIVAL (2018):EDWARD BLUM: 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.
NARRATION: That possibility has long worried some in the Asian American community, but it was one students fight that made it front page news attracting Blum to the cause.
ARCHIVAL (CBS, 8-6-17):NEWS ANCHOR: Michael Wang did everything he could to get into Harvard.MICHAEL WANG: Which actually sang Obamas Inauguration, multiple speech and debate awards, piano competitions.NEWS ANCHOR: But in 2013, the California high school student was rejected by his dream school, even as he says students with lower grades got in.
MICHAEL WANG: I spent middle school, high school really grinding away, taking as many AP classes as I could, participating in as many extracurriculars as humanly possible, really just trying to put together the best resume for these Ivy leagues and all these top tier institutions. Ultimately when I got my decisions, you know, they werent what I expected. So, I wrote to their admissions offices by e-mail 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 thats where, in 2013 I decided to file my complaints and thats how I got started on this whole road.
NARRATION: While the U.S. Department of Education ultimately decided not to act on Michael Wangs complaints, in 2014, Blum began to seek out Asian American students to bring a lawsuit.
ARCHIVAL (CNN, 6-16-18):NEWS REPORT: 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.
ARCHIVAL (FOX, 12-18-17):EDWARD BLUM: You cant remedy past discrimination with new discrimination.
NARRATION: Blums case has deeply divided the Asian American community.
ARCHIVAL (2018):NEWS REPORT: We are united today to protect opportunity. Blums lawsuit is racist in its effort to whitewash history.
ARCHIVAL:MICHAEL WANG: Were still a minority at the end of the day. Asians have been discriminated against I would hope that as a minority and as an Asian American, were not the ones losing out.
NARRATION: But Blums lawsuits have also reopened the larger debate one that the Supreme Court famously grappled with in 2003 in a case called Grutter v. Bollinger.
ARCHIVAL (CBS, 4-2-03):NEWS REPORT: For the first time since the seventies, 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.
ARCHIVAL (CBS, 12-2-02):BARBARA GRUTTER: They say things like were selective, but theyre making selections on racial lines.
ARCHIVAL (NBC, 6-6-03):NEWS REPORT: I think that the University of Michigan is using a preference that is based solely on skin color. And that is wrong.
ARCHIVAL (NBC, 12-19-03):NEWS REPORT: A position shared by more than two thirds of Americans, according to a Newsweek poll. Sixty-eight percent said they opposed racial preferences and college admissions for blacks. Seventy percent said they opposed preferences for Hispanics.
LINDA GREENHOUSE (FORMER NEW YORK TIMES SUPREME COURT CORRESPONDENT): 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, its been working, without it, wed 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 courts own evolution.
NARRATION: 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 OConnor.
LINDA GREENHOUSE: People paid a lot of attention because these issues of race really touched deep cords in the American fabric. One issue with affirmative action is that somebody gets a benefit on the basis of race. That means that, if its a zero sum game, somebody, because of their race, didnt 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.
CRISTINA RODRIGUEZ (FORMER OCONNOR LAW CLERK): We knew from the very beginning that whatever she thought the conclusion should be, we werent going to sway her from that. But she was someone who, in the difficult cases, was open to debate and compromise.
NARRATION: That desire for compromise was helped along by two unusual briefs.
CRISTINA RODRIGUEZ: 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 whove had the experience of interacting with those who are not necessarily like themselves.
LINDA GREENHOUSE: 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.
ARCHIVAL:SANDRA DAY OCONNOR: Student body diversity is a compelling state interest that can justify a narrowly tailored use of race in admission.
LINDA GREENHOUSE: Yes, theres room for a limited kind of affirmative action in higher education that doesnt have a fixed quota, that takes a look at each applicant as an individual. So, the decision in Grutter kept affirmative action alive.
NARRATION: OConnors 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.
LINDA GREENHOUSE: She did something very unusual in the opinion. She said, basically, We expect that 25 years from now American society would work this problem out, and it wont need us anymore. It wont need affirmative action anymore. That was a kind of a safety net at the time. And now, of course, its a looming vulnerability.
NARRATION: While Blum has highlighted the treatment of Asian Americans, the lawsuits brought by his group Students for Fair Admissions dont seek just to rejigger how race is used in university admissions.
They seek what Blum has advocated from the beginning.
LINDA GREENHOUSE: The whole Asian issue was just a stalking horse. What its really about is a university may not consider race full stop. And it the whole thing was an effort to get that question before this Supreme Court, and it has succeeded. Its now before the Supreme Court.
NARRATION: But Blums endgame goes too far for even some of those who have led the fight to re-evaluate these programs.
MICHAEL WANG: I think I may have set in motion things that might have been out of control. Affirmative action might just get completely tossed and I dont fully agree with that. I think affirmative action is still very necessary in helping minorities who actually do need it. Maybe theres one problem with implementation. That doesnt mean that we toss affirmative action out the door. There is a middle ground.
NARRATION: If Blums case succeeds, Californias experience in the 1990s and early 2000s may show the likely result.
LINDA GREENHOUSE: When there was a proposition that barred the use of race in admissions, African American representation in the class plummeted. So, that was kind of a controlled experiment.
If the court takes that most extreme position, its possible that these justices could basically hamstring, you know, all of American education, not just elite college education. And so the argument now is how much we care about that.
NARRATION: For student activists like Muskaan, the importance is clear.
MUSKAAN ARSHAD: 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. Were trying to pretend were in a society where race doesnt matter, where everything is race blind, and everything is equitable, when these systemic issues are still right underneath, but we just arent addressing that.