Diversity or discrimination?

From the US to Malaysia, affirmative action policies are receiving new scrutiny from new perspectives, Sally Tyler writes.

Part of the recent drama surrounding Brett Kavanaugh’s confirmation to the Supreme Court of the United States concerned speculation about how the Trump appointee would rule on fundamental questions of civil rights and individual liberties.

Much public and media attention focused on his potential role in undermining the right to legal abortion, should the new court overrule the landmark case law articulated in the Roe v. Wade decision, as many observers think the high court may be poised to do.

Receiving less attention, but equally deserving of consideration, are questions about how justices appointed by Trump will stand on the issue of affirmative action policy.

A case heard in the US District Court on 16 October, Students for Fair Admissions, Inc. v. Harvard, will likely travel to the Supreme Court in the near term, challenging the constitutionality of the use of race in Harvard’s admissions decisions. Launched by a conservative political strategist who has sought unsuccessfully for more than a decade to use litigation to end the practice of affirmative action, the current case employs a new legal strategy.

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Previous cases opposing affirmative action have featured white plaintiffs who claim they were denied slots at leading US universities due to preference being given to racial minorities, but the current lawsuit was initiated by the conservative group nominally on behalf of a handful of Asian-American students who claim that Harvard’s race-conscious policy, meant to help create student diversity, has unfairly barred them from the university.

Defenders of affirmative action claim this is an overtly political attempt to end the policy using Asian American students as a smokescreen. Many Asian-American civil rights and legal defence groups have added their voice in amicus briefs filed in support of Harvard’s policy.

Reaction to the case belies the stereotype of Asian-Americans as a monolithic community, as more recent Chinese immigrants accustomed to an academic system heavily-dependent on exam scores have rallied to oppose affirmative action, while Asian-Americans who have been in the US for several generations tend to support the policy.

The university maintains that it would be impossible to make admissions decisions on academic record alone, as among the 37,000 applications for 2,000 places in the class of 2019 were more than 8,000 with perfect grades and more than 5,000 with perfect SAT scores; and that its policy of considering academic, athletic, extracurricular and personal qualities has resulted in an increase in the percentage of Asian-Americans at the school over the years in which race-conscious policy has been utilised.

The case is being heard in the wake of a Trump Administration decision to walk away from Obama-era guidance on affirmative action, signalling clear sailing for an end to race-conscious policies from the White House.

The Obama Administration maintained that the goal of racial diversity was so critical for schools and broader American society that a consideration of race in admissions policy was acceptable, so long as the standards were narrowly tailored to meet a compelling government interest.

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In contrast, Malaysia’s array of bumiputra principles contained within its New Economic Policy (NEP) could hardly be described as narrowly-tailored. Though they include educational affirmative action, the policies feature a wide range of preferences meant to benefit bumiputra (ethnic Malays).

Examples include discounted new housing prices for bumiputra buyers regardless of income and a market basket of government-run mutual funds available exclusively for bumiputra, which average sharply higher returns than those available through commercial banks.

Critics say the policies have created a non-competitive workforce that serves as a drag on Malaysia’s economic development potential, as well as an entrenched form of corruption which brings hidden costs to public sector contracts without adding value.

Though the policies have resulted in rapidly-amassed wealth for some Malays, other native Malays, particularly those in rural areas, remain impoverished and stand to be left behind in the evolving global economy.

Originally a staunch supporter of the NEP during his first turn as prime minister, Mahathir may have shifted his views due to the urgency of providing his nation with a competitive chance in the 21st-century economy, particularly if Malaysia is to meet its stated goal of becoming a developed economy by 2020. Soon after assuming office, he charged the Council of Eminent Persons with making recommendations to amend bumiputra policy.

Despite the disparate outcomes of the policies, it is unclear whether ethnic Malays, who still comprise the overwhelming majority of the country, would support changes. It’s a bold gamble on Mahathir’s part, one which could see his surprise return to power brought down by popular defeat, or which could see him celebrating a century on the planet in a newly-strengthened nation which supports both equity and achievement.