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John Donvan:

Hi, everybody, and welcome to another debate from Intelligence Squared. I’m John Donvan. And in this one, we’re going to be crossing paths with some decision making that’s going on right now in the Supreme Court. The issue is affirmative action in college admissions. Now, of course, affirmative action clashes have been going on for years, we have debated in the past on our stage. And the Supreme Court has ruled on it a number of times, finally landing in 2003, on what it intended to be a workable formula, at least for a time, that universities cannot legally set aside quotas for racial minorities. They cannot set numbers, but they can take race into account as one of many factors to consider when assessing an individual student for admission. But now something else is going on, the court is considering a fresh set of legal challenges. These involve admissions at the University of North Carolina and at Harvard University. And the Harvard case, in particular, represents a new line of attack from those who are opposed to schools using race as a determining factor for admission.

And that line of attack says that affirmative action that is practiced at Harvard, discriminates in particular against Asian Americans. The justices are now in the process of their deliberations on that issue, but we want to get to it now. So, here is the question before us. What we’re going to debate is, is affirmative action unfair to Asian Americans?

We have got two lawyers who are going to be debating this with us and I’d like to welcome them to the program. First, Lee Cheng has been involved in this issue for more than 30 years. He is the child of Chinese immigrants who learned English at the age of five. And in addition to working for a few different law firms, he has held C suite positions at companies like Newegg and Gibson guitars. Lee, thanks so much for joining us at Intelligence Squared.

Lee Cheng:

I am absolutely thrilled to be here, John, thank you for having me.

John Donvan:

And John Yang is President and Executive Director of Asian Americans Advancing Justice AAJC. The title describes his passion, he has been fighting for the rights of Asian Americans for a long time has also worked in the world of big law and in government.

Under President Obama, he was Senior Advisor for trade and Strategic Initiatives at the U.S. Department of Commerce. John, thanks so much, also, for joining us on Intelligence Squared.

John Yang:

Delighted to be here as well.

John Donvan:

So, before we get to our first round, I just want to check in to learn which side each of you will be arguing. So, Lee Cheng, please go first on the question is affirmative action unfair to Asian Americans? Do you say yes or no?

Lee Cheng:

I say absolutely, yes. But it’s nuanced.

John Donvan:

Thank you. Well, we like nuance on Intelligence Squared. So, I’m glad to hear you say that.

So, John Yang, this is a binary, so we know that you’re going to be arguing no, but to get it on the record, I want to have you say it. The question is affirmative action unfair to Asian Americans? Are you a yes or a no?

John Yang:

No, affirmative action is not unfair to Asian Americans, we should be able to talk about our race.

John Donvan:

All right, thank you, both of you, for telling us where you stand on this issue. So, let’s move to our first round, which will be opening arguments. You each get up to four minutes to present your opening case. Fair warning, I will break in if you hit time. Lee Cheng, you are up first. Your four minutes start now.

Lee Cheng:

Thank you again, John. So, like I said, affirmative action, in my views on it and most people’s views on it are far more nuanced than I think a lot of people would like to have us believe. I think for the purposes of this debate, I’m supposed to say categorically that affirmative action is unfair to Asian Americans. But with apologies to your format, and to you, I’m going to have to probably agree, right, that the definition of affirmative action that is broad in that, you know, my esteemed opponent, John Yang, would probably say, is really what a affirmative action is, is something I agree with, helping the disadvantaged achieve their potentials so that they can benefit society. Unfortunately, what I and the vast majority of people of almost every single ethnic group have consistently agreed with is the affirmative action, as implemented, has become a deeply corrupted travesty of what it was intended to be.

It was intended again to help the disadvantaged of all communities reach their potential. It is now commonly known to represent programs that determinatively and significantly use race, national origin and ethnicity to allocate societal opportunities and benefits. The ban against racial preference based and determinative affirmative action is not as John has implied something that would prevent people from talking about race, far from. Right? The ban is to prevent determinative use of race in various governmental programs in various governmental actions. As someone who has personally experienced discrimination based on this Orwellian use of the word affirmative, and studied the programs for decades, I can absolutely and categorically say that race based in determinative affirmative action is unfair to Asian Americans and any American who is excluded or discriminated against in its name. The impact of racial preferences based affirmative action programs on Asian Americans were first seen in the educational arena.

And I had a front row seat. When I was applying, as you mentioned, to high school in 1984. I was a relatively recent immigrant, and I was told by the then progressive as now progressive San Francisco Unified School District because I was specifically Chinese, I had to get a higher grade and score than even white kids, Korean kids and Japanese kids, not to mention black kids and Hispanic kids. And this was very blatant, very, very public. And this was purportedly to help enforce racial balancing in public schools in San Francisco. I got into Lowell. I was very fortunate. I saw this once again when I applied to college. And I got into Harvard. And I saw this once again when I applied to graduate school, and I had gotten into UC Berkeley Law School. And the impact of these programs that I witnessed that really, really struck me was that it tended to hurt the poor kids of the nonpreferred groups, the poor Asian Americans and poor white kids the most.

And it really didn’t tend to help the poor kids of the supposedly preferred groups, African Americans and Hispanics. So, you know, what we have seen in the present are expansions of these programs, into jobs, into other government programs, like private programs, where the government has significant coercive power, like loans and licenses of contracts. It is over and over again, you know, a message that clearly says that some people are going to be excluded, you know, including Asian Americans, many Asian Americans, simply because other Asian Americans have done well in society and in life. And over and over again, we are also hearing people say, often people who are self-proclaimed progressive people say that over Asian Americans are not diverse or are overrepresented in various arenas.

So, I would actually say that absolutely affirmative action programs, as implemented, are harmful and discriminatory against Asian Americans.

John Donvan:

Okay, thank you very much.

Now, I want to turn it over to John Yang, you are arguing no to the answer of whether affirmative action is unfair to Asian Americans. In other words, you are saying it is fair to Asian Americans.

John Yang:

Right. Thank you very much, John. And thanks, Lee, I look forward to this debate. We should talk about how affirmative action is as implemented because I think Lee is exactly right, as we don’t want to just talk in theory, but talk in fact. So, if we want to talk about the Harvard case, in particular, there was an over 100-page decision by the Harvard district court that found that there was no evidence of discrimination against Asian Americans. Likewise, the first circuit the appellate court in Boston, in 100-page opinion likewise concluded that there were no findings that would suggest discrimination against our community, the Asian American community. And let me be clear, if we did find there was evidence of Asian Americans, groups such as mine would sue on behalf of our community.

I think it’s important to note that in this case, no Asian American student, or frankly, no student, for that matter, testified that they were denied a spot on Harvard, or that they are somehow discriminated against because of their policies. On the other hand, we had a number of students testify, including Asian American students, testified about the benefits of affirmative action, the benefits of diversity on campus at Harvard.

I think it’s also important to recognize the statistics. 28 percent of the incoming class of Harvard this year is Asian American, whereas Asian Americans only represents 7 percent of the American population overall. If you look at the steady increase of Asian Americans on Harvard’s campuses, you know, it was only 3 percent in 1980, shortly after the Bakke decision, and now it’s 28 percent, which is an exponential growth that exceeds our growth in the American population. And one final statistic would be the fact that the class of 2021, last year’s incoming class at Harvard had about 21.8 percent applicants who are Asian American, whereas the admittees from the Harvard class was 22.2 percent.

So, again, that’s suggests statistically that we were not discriminated against.

Look, we all know that Harvard and similarly, types of similar types of colleges have very exceedingly high standards. They get 60,000 applications a year, and they only make 2000 offers a year. If they want to fill their class with all valedictorians, they could easily do that several times over. You know, they reject approximately 50 percent of the applicants that get perfect SATs scores. So, the question is, how do they create a group that promotes their educational equity and to promote a group that has all of these complexities within, sort of, a student body? So, if we’re looking at just grades and GPA alone, then that would not be the full measure of what Harvard is trying to accomplish.

It’s also important to recognize that Asian Americans by and large support affirmative action, polls that we have done consistently show approximately 70 percent of Asian Americans support affirmative action, recognize the value that it gives to our community as a whole. And we don’t want to be in a position that we played the so-called model minority.

The last thing I would want to say is that when we talk about affirmative action, ultimately, it’s about being able to tell our stories in our college applications, if we’re focusing on colleges and universities. Being able to recognize that race does still matter in this community, that we are not in a race blind society, and to be able to tell our stories that includes race and ethnicity. I agree that it’s not about quotas. It’s not about caps. But that’s not what these systems are about. These systems are about valuing the whole person, the whole story. And that whole story includes the use of race in a beneficial way.

John Donvan:

All right let’s continue round one now with some discussion of the points that have been made in your opening statements.

I want to take a question to you, John, from something that — Lee told a personal story about getting the message when he was a high school student, and then getting the message again when he was applying to college, that as an Asian American, when it comes to the scores — and I understand you say scores aren’t part of the whole — aren’t the entire picture, but that when it comes to scores, he and other Asian Americans have to have higher numbers than blacks and Latinos and whites as well, I believe, and that that on its face is just not fair.

John Yang:

So, if I were to answer that, I mean, firstly, certainly to the extent someone hold that to your face, I do think that that’s inappropriate. And that goes to something around counselors and how they’re approaching issues. But if we’re to take a step back, in terms of understanding, sort of, the whole admissions process. You know, the admissions process includes more than just GPAs, more than just test scores.

So, in that context, if all we’re focusing on is those two things, even at Harvard, or Yale, or any of these Ivy League schools, you have to make a distinction, then how do you make that distinction among those people?

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And it’s too simplistic to say, well, all right, you know, someone that gets an 800 SAT is better than someone who has 790 SAT, because at a certain point, right, we all recognize that they are qualified.

John Donvan:

More from Intelligence Squared U.S. when we return.

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Welcome back, I’m John Donvan. And this is Intelligence Squared U.S. Let’s jump right back into our discussion.

John Yang:

And that’s the other important thing, I think, to recognize about these policies that are in place. We’re not talking about anyone that is not qualified to go to these schools.

We’re talking about sort of within that huge population of qualified students, how do they make decisions? And certainly, for me, and if you look at the evidence, there’s no suggestion that Asian Americans are being categorically shut out of the process because of their race.

John Donvan:

But the — well, I’ll let Lee step in, rather than —

Lee Cheng:

You know, John, first of all, just to clarify for you, right, the program that I’m describing was one that was mandated by the city of San Francisco, for racial mixing purposes. It was a criterion that existed for 20 years, where if you were specifically Chinese, you had to get a higher score on the admissions index. Right? Holistic admissions program merely mask that discrimination better. And I think you’re sticking your head in the sand when you deny the evidence before everyone’s eyes, that Harvard created and used the personality criteria to discriminate against Asian Americans. Asian Americans — I’m shocked that you wouldn’t find appalling, right, a program where Asian Americans receive lower personality scores by people who have never met them in Harvard admissions office.

I’m just shocked that you would agree that Asian Americans cannot — are categorically viewed as undesirable, having no effervescence, personality, confidence by Harvard admissions —

John Donvan:

John, just before you respond, I’m going to jump in. I’m going to jump in John and Lee because I think a lot of our listeners may not know about this personal score. So, at Harvard, and I assume that because Harvard is so influential, the model has been used in other places. Applicants are given scores on a range of domains of talents or skills. They include academic they include athletic, they include extracurriculars, but another one of them is now called the personal score, and the individual is judged on I have a list from this comes from the from the discovery in the Harvard case.

Here’s a list of the sort of things that people are scored on for the personal score. courage in the face of seemingly insurmountable obstacles, leadership, maturity, genuineness, selflessness, humility, resiliency, judgment, citizenship, spirit and camaraderie with peers. And what Lee is talking about is the fact that Asian Americans, as a group, score significantly lower than other groups in this personal score. And I think Lee, you’re saying that that’s actually deliberate, or that’s that that’s actually a mechanism of exclusion. So, I’m just giving that background to let John respond.

Lee Cheng:

It is, you know. So, I — let me just provide some more background because I’ve been interviewing for Harvard College admissions now for 28 years. Right? It’s — there are three main criteria. There’s personality, academics, and extracurriculars. And Harvard doesn’t actually interview most of the applicants, alumni interviewers do. And alumni interviewers do not score Asian Americans any lower on personality, but Harvard categorically does, by orders of magnitude.

John Yang:

Okay, so if I could respond. First, it is a personal rating, not a personality rating. And I think the word choice is important here, because by saying that it’s a personality score is suggesting that Harvard is somehow grading down on the personalities of Asian Americans. And, John, you do have it right, that the factors that go into the personal ratings are as you listed. Number two is, if you look at the actual District Court opinion, it did not say that there was a significant difference between the scores of Asian Americans and other camps. Now, it is correct to say that the district court noted a statistical difference between the two categories putting Asian Americans and others. But then it also went on to find that that evidence was not compelling. Because there were a number of other factors that could explain that that were not related to race and not related to ethnicity. If we were to go down that route, there actually was a statistical what I would call anomaly also with the Asian Americans academic rating, whereby Asian Americans were scored higher for no apparent statistical reason.

So, then — or no apparent causation reason. So, then, are we suggesting that Asian Americans were discriminated in favor of with respect to academic rating? So, there’s a lot to unpack there. At the end of the day, I think we should defer to the district court’s opinion, where it thoroughly addressed all of these issues, as well as the expert opinions and came to this conclusion.

I appreciate, John, that you’re talking about we shouldn’t just focus on Harvard. I think this does go to something that’s important to me, though, is that we need to examine the evidence, because there are definitely anecdotes out there about what people believe is happening. But when we look at the evidence, we look at the statistics, it does not suggest this type of quota, this type of cap that has happened.

Lee Cheng:

The evidence absolutely suggests that cap and quota. And I’ll accept the fact that the district court and the court of appeals ruled the way that they do, and I would observe that your reliance on their findings is about to very likely be overturned by the U.S. Supreme Court.

Even that court itself has never been free from error. Right? After all, we have very, very infamous precedents like Dred Scott and Plessy v. Ferguson and Korematsu to look back upon. And I think an over reliance on the findings of courts, on the opinions of generals, I think, has proven throughout history, but to be very, very harmful to individual rights and civil rights, especially of nonwhites and including Asian Americans.

But on the personality score side, again, I have been involved in Harvard College admissions now for 28 years. And I’ve been looking at those criteria. And I’ve been applying those criteria and submitting write up reports to Harvard. And I can tell you categorically each of the three main criteria, academics, extracurriculars, and personal ratings are graded from one to five and defined in a very, very granular way. Okay? They don’t mess around. They’re trying to get to an objective sort of determination of how to make a class when so many qualified people are applying.

And so, there’s no question historically, statistically, that Asian Americans — and it’s shocking to me again, that you bring up the fact you where you suggest Asian Americans are getting a benefit on the academics, Asian Americans on grades and test scores have led the way for decades. In the 90s, when you and I applied to college, John, Asian Americans were said to be boring grade grubbers. And I think it’s unfair for you to suggest that Asian Americans are in any way boring grade grubbers anymore. Your kids, my kids, everybody now knows extracurriculars —

John Donvan:

I don’t think — I mean, just in fairness, and in terms of the tone of this thing, I don’t think I heard John suggest anything like that, Lee.

Lee Cheng:

Well, so in fairness, John didn’t say that. But what John said was that, you know, Harvard shouldn’t just be using grades anymore. Right? He missed the whole extracurricular criteria. I listened to that very carefully. He missed the whole extracurricular criteria, where Asian Americans are now also excelling at the highest possible level.

I listened to exactly what he said. You’re right. I agree with him.

John Donvan:

Okay, let’s let John jump in.

John Yang:

Right. I mean, look. And again, what I am suggesting is that we have to look at all of this as a holistic review. You’re absolutely right, we should be considering extracurriculars, we should be considering the academic rating, we should be concerned with the personal rating. And I think Harvard also has an athletic rating, as well as a couple of other ratings that factor into all of this. But again, statistically, and I’m interested in what evidence that you’re looking at, statistically, and based on the evidence, and I agree with you, certainly the district court of appeals could be overruled. But the evidence submitted to date in the Harvard case, the evidence that I know of with respect to the various affirmative action programs does not suggest systemic discrimination against Asian Americans.

Now, again, I think we do have a point of agreement here that are certain admissions counselors, or others that have engaged in stereotyping? That’s probably true.

But the question here is, is that systemic? Is that a policy of all of these affirmative action programs? And there, there’s no evidence to suggest that it is. And to say that we know that it’s happening, and it’s happening of smoke and mirrors, and it’s just a substitute for quotas that are prohibited, I just don’t see the evidence. Again, when I look at the numbers, there’s a direct correlation with the number of people that apply, the number of people that are admitted. Unless we’re suggesting, somehow that Asian Americans are super, so much more qualified, that we should be getting even a higher percentage, I just don’t quite buy the argument without more statistics and more evidence.

Lee Cheng:

The statistics are actually right there. I mean, the plaintiff’s counsel — plaintiff’s experts introduce a mountain of statistics, the control test for admissions historically. And in schools like — the control school has always been Cal Tech. Cal Tech also does not just consider grades and test scores. Right? But Cal Tech also doesn’t really use race.

And in schools like Cal Tech, at schools like UC Berkeley, immediately post-209, the percentage of Asian Americans went up to — admit it went up to about 45 percent. 40 percent to 45 percent. So, to your earlier point, though, John, that you raised earlier, you know, that you made earlier about Asian Americans constituting 28 percent of the Harvard student body. That increase has literally been the result of this lawsuit. For about 20 years — and believe me, I’ve been tracking this carefully every year since I’ve graduated. For about 20 years, the percentage of Asian Americans admitted to Harvard every year hovered between 19 and 22. And then the lawsuit occurred. And every single year Harvard increased the percentage of Asian Americans admitted until it’s reached 28. Right? So, I don’t think that that was by accident. I think squeaky wheels in this society get grease. Okay?

John Donvan:

All right. So, Lee, I want to come in with this question then. You know, Harvard, since we keep talking about Harvard, Harvard has a bad track record going back 100 years when it comes to discrimination against Jews. The university almost very openly, made it clear that they wanted to reduce the number of Jews who were at that time doing well on the entrance exam, which was the main criterion for getting into the school and their numbers were going up.

And as an institution, Harvard didn’t like that. And they instituted a holistic approach, which began to bring in other qualities. And that holistic approach began to count against Jews. There were assessments of their character, for example, that were not as positive as the non-Jews who were applying to the school at the time. What was clear there was a racial animus, they didn’t like Jews. I’m wondering, are you making the argument that Harvard and other universities are putting the thumb on the scale against Jews deliberately out of racial animus towards Asian Americans?

Lee Cheng:

Against Asian — [laughs] the racial animus is not as apparent but there is absolutely racial animus.

I see racial animus whenever someone suggests that a school that is plurality Asian American or has significant numbers of Asian Americans is not sufficiently diverse, especially when diversity has been suggested as a you know, in such an extraordinary and valuable ideal for a society to achieve. I see it when people say that Asian Americans are overrepresented, I see it when I hear your response to these fights against racial preferences, that Asians have it all and we just want to — we want it all and we want too much. And I view what Harvard is doing as very much something that incites hatred and dislike and disrespect against, and even violence against Asian Americans every bit as much as calling COVID a China flu. And I do see an undercurrent of anti-Asian —

John Donvan:

Okay, so that’s a yes you feel that these institutions that are practicing this approach have something against Asians, or at least something against too many Asians in the same way that Harvard had that feeling about Jews.

I just wanted to see if you felt that that there was — it wasn’t an accidental byproduct, it was part of the program was to keep down the number of Asians for some reason.

So, John, I want to — you heard what Lee had to say. I’d just like to get your response to that.

John Yang:

Yeah, and I’ll admit, I must disagree with that assessment that there is some type of racial animus. Again, the evidence that I see does not exist. Again, you can always cherry pick a couple of comments here and there to suggest that someone is stereotyping Asian Americans, just as you could cherry pick, here and there, comments about any racial or ethnic group. Frankly, I think the other conversation we should have about affirmative action is, who is this designed to help? What are we trying to achieve? What we’re trying to achieve is to make sure that we have educational equity, that we are ensuring that underrepresented groups do have the opportunity. And here when I say underrepresented groups, obviously, we are talking about African Americans and Latino Americans and Native Americans.

But also, we are talking about Asian Americans that traditionally have not had a shot. And that’s also what affirmative action is designed to do, again, is this notion of recognizing that race matters, that you can use what’s called a tip, we will —

John Donvan:

Okay, explain tip again, to people who don’t know this language.

John Yang:

A tip is this notion that you can use race as a favorable factor when you are assessing a person —

John Donvan:

Tips the balance in favor the person.

John Yang:

Tips the balance in favor of a person, that’s exactly right. Thank you for that, yes. And the recognition that certain groups have had challenges. Now, again, a lot of this comes out in personal essays, a lot of this comes out in all sorts of different facets. So, it’s not as if there is some magic number that has been put on like a plus 10 factor for any particular race or ethnicity that has been prohibited by the Supreme Court.

So, we want to be very, very careful about the nuance to which is universities are trying to operate. I mean, I appreciate what Lee is saying, but I think that there’s a much greater nuance and there’s not this type of racial animus. And again, when I say I think that I don’t see the evidence for that, I really don’t see the evidence for that.

John Donvan:

Lee, do you care to respond, because I can move on?

Lee Cheng:

I have seen the evidence for that. I’ve seen it in programs that say that if you’re specifically Chinese, you have to score higher. I’ve seen it in not random comments, but comments by institutional leaders that Asians are overrepresented. I’ve seen it in comments by Bill Clinton in 1992, that without racial preferences, the UC system would be all Asian. Right? You know, and that was by the President of the United States at the time. So, you know, when you look at the evidence presented in this court, that the Supreme Court will shortly overrule I believe the district court and the court of appeals I’ll bet you a dinner, John, that they will, okay, because it’s overwhelming that race is absolutely used in a determinative way.

I even support and I would agree with you that race matters. I totally agree with you. I have been on the receiving end of racial discrimination, including violence in my life. And I see it, it happens. I also agree that race could be used as a tip; I’m actually supportive of the Bakke standard. However, race has been used intermittently at Harvard.

John Donvan:

Can you tell people what the Bakke Standard is please.

Lee Cheng:

The Bakke Standard is that race should matter, and it can be used as one of many equal factors. It can be used as the tip that John is talking about. And a tip is all it should be used for. However, when you look at how it’s been applied at Harvard, what the evidence shows is that Asian Americans are in the top quintile of academics and extracurriculars, which is really the only quintile where Harvard admits students. Anybody not in the top quintile of academics and extracurriculars will not be able to keep up with the Harvard Courseload. Okay? So, they have a — their chances of getting the top personal score is something like half of the chance of a white student, seven times less than that of the Hispanic student, eight times less than a black student.

So, again, unless someone is asking, is basically saying that Asian Americans are just categorically, right, less personable than kids of any other ethnic group, that’s the smoking gun, right there, along with many others.

John Donvan:

All right, I want to step back for a moment. Let’s wrap up this first round here. And just take a very brief moment outside of the arguments to just get a deeper sense of what inspires each of you to take the side and the argument that you do. Just let me be a brief moment of autobiography. And I’m going to come to you first John Yang, because, you know, among your many other undertakings, you’re a defender of and you’re an advocate for the rights of Asian Americans in many venues like employment and voting. You’re also a champion of immigration rights. And you have said that when you heard Donald Trump refer the idea, referred to immigrates as being a group that included rapists, et cetera, you took it very personally.

So, why was that so personal to you? And how does that reaction fit into the side of the argument that you’re taking in this debate?

John Yang:

Thank you for that, John. So, I am what some would call an illegal alien. I was at one point in my life, an undocumented immigrant. I was from the time I was nine to the time I graduated from high school.

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And so, when I heard someone, and it could be anyone, it doesn’t have to be political, say that illegal aliens are a drain on society, in many ways, it is personal to me, because they in some ways are referring to me. So, it is important to stand up for me for the rights of people that don’t have privileges that I have had the fortune of sharing and to fight for their rights.

John Donvan:

I’m John Donvan. This is Intelligence Squared U.S. We’ll hear more from our debaters right after this.

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Welcome back to Intelligence Squared U.S. I’m John Donvan. Let’s get back to our debate.

Lee, I want to take the same question to you about something from your life. You recently published a letter on Twitter that you wrote to the President of Harvard, and you were talking about your son who’s now at the point of applying to college. And you said he’s applying to 30 schools because as an Asian American male, he, I’m quoting you now, “He doesn’t have any reason to believe that his hard work and talent gives him more than a de minimis chance to gain admission into almost any selective admission college.”

You said he’s under tremendous stress. You said that this pains you, it outrages you. And you said, I will never be able to forgive this act of evil committed against my child, no matter what your intention and Harvard’s. I just wanted you to take a moment to talk about, you know, this passion, that you feel you were wronged, and now you feel it’s happening to another generation.

Lee Cheng:

Let me correct something, I don’t feel that I was wronged in the sense that I didn’t get into a school, I actually got into Lowell, I got into Harvard, and I got into Berkeley, I don’t care about getting any kids into any school, I care about how my children are viewed, I cared about how Asian Americans are viewed and treated under the law. Right? And what I object to is the fact that Asians are viewed as undesirable, as less valuable, because we’re considered less diverse, because we’re considered less additives to this false god of racial diversity and ethnic diversity.

So, it’s become very personal now, where it used to be just something that was a matter of principle.

So, I used to get beat up because I was Asian American and didn’t speak English, I ate, you know, funny food, and I wore funny looking clothing. And I had a haircut that was literally shaped like a bowl. Okay? Like many Asian Americans. And so, I always had in my heart a, you know, I think, a desire to stand up and fight for the underdog. And so, when nobody stood up for the rights of Chinese American kids in San Francisco, a group of friends and I did, we did that. That’s what motivated us. But now, it’s very personal. I have three kids. I have one applying to college right now and he is going through that experience right now. You know, he’s been told that basically, he’s not additive, that’s the message that’s being sent. He’s not as additive to diversity. So, that’s what motivates me even more now to keep pushing and keep fighting. And I’ve been fighting for 30 years.

We — my group — a group I founded launched the very first lawsuit that featured Asian American plaintiffs challenging a program that was based upon racial mixing.

John Donvan:

All right, so thank you to both of you, because we know that you care deeply about this. But having insight as to why you care so deeply about it is really, really useful to us understanding where you’re coming from.

All right let’s move on to our second round. And we’d like to start out the second round this way. I want to give each of you a chance to put a real question to the other. And I want to be clear, I don’t want to hear you return to your talking point. I would really like you to ask a question that challenges your opponent’s argument, likely a weakness in their argument. You know, the question that you feel the other person really needs to answer. So, John Yang, I’ll have you go first. Why — what question do you want to put to Lee Cheng?

John Yang:

Yeah, actually, and I want to see if we can find a point of agreement, because I heard him say that he does agree that a tipping point might be appropriate at some level, but he disagrees with affirmative action, or at least certainly the Harvard standard.

So, my question would be help me design a system that recognizes race, recognizes that grades and test scores are not the be all and end all, but yet doesn’t fall afoul of what you’re talking about in terms of somehow capping Asian Americans or capping any particular group. What does that look like to you?

Lee Cheng:

I think the system can be easily designed, you just have to have a lot of transparency. So, you basically just list out all of these criteria like Harvard has with extracurriculars, academics, and personality. Right? So, criteria, like athletics actually falls under extracurriculars, just to let you know, I mean, I’ve seen that. And sometimes athletics can become a tipping — can become a super point. But race can certainly be factored in somewhere. And people just, I think, have to understand if it’s just one of many criteria, that’s all it counts for. You just numericize everything, which is exactly what Harvard does.

Harvard, even numericizes personal scores, it’s one through five, and they very, very clearly define it. They could actually recognize all of the different factors of intersectionality. Right? So, it’s not just race, you had made a point earlier, John, about, you know, the deed to have representation, right, it is well known that the benefits of racial preference do not go to poor black Americans, a plurality of not majority of race-based slots actually go to African immigrants in West Indies, immigrants from the West Indies, something like 40 percent, at least, okay. And 70 plus percent of all of the race reserved seats at Harvard, of every single ethnic group ends up with rich people, with rich kids. So, what Harvard is doing is really aggregating rich people. So, you could design the program. If you and I sat down, I can design that program for you, I can guarantee you, Harvard would not accept it, because it’s not going to result in the racial balancing, that’s illegal, that Harvard wants.

John Yang:

I guess what I haven’t heard, if you don’t mind, is what you’ve described seems to be what Harvard is trying to design. But it sounds like just you feel like they aren’t given sufficient guidance, or that there is some sort of racial animus that needs to be taken out of them in assigning these ratings and assigning some of these scores that we’re talking about. And because what — yeah, so let me leave it there to see if I’m misunderstanding that, because I didn’t hear something different than what Harvard is already doing. Because they are pretty transparent about all of these different factors. I mean, maybe you’re objecting to how they come up with a number.

Lee Cheng:

It’s the weight that they give to race, as demonstrated by statistics that you refuse to acknowledge, and disagree about.

John Yang:

Wait, now that’s unfair to say that I refuse to acknowledge statistics, there is a battle of the — at a minimum, there’s a battle of the experts if we’re talking about the Harvard case. And in that battle, at least at the district court level, the District Court resolved in favor of Harvard.

[talking simultaneously]

Lee Cheng:

You refuse to acknowledge these statistics that show that Asian Americans are getting categorically massively lower personal scores by several orders of magnitude.

John Donvan:

All right, I’m going to declare an impasse on that one. But Lee, I’d like to know what your question is to John, what do you think he needs to have answered here?

Lee Cheng:

So, back in 1993-94, when a couple of friends and I helped organize the Ho v. San Francisco Unified School District. Right? We found out that for 20 odd years, Chinese American parents and kids, poor ones, were approaching Asian American civil rights groups and telling them, hey, you know, we’re being forced to score higher than kids of any other ethnic group. And they approached Henry Der of Chinese for affirmative action and other civil rights groups, and they were told, hey, nothing to see here. This is for a good cause. Okay? It’s purportedly they help poor black kids. You know, nothing to see. We think you should go away, and you should go apply to other high schools.

What would you say to an Asian American parent or child if there was a program that required them to score, and you can prove it statistically? Score higher or achieve more to get to the same result?

John Yang:

Well, the question for me is, what does it mean to score higher, right? If the only determinant for admission was these so-called objective marks about grade point average and test scores, then I would challenge what the system is. Right? Because if — you’re saying that all right, they have to score higher, but the part of the system is trying to design to create, you know, a community that is diverse, then I think we need to push back against this notion that those test scores, the scoring higher is all that matters. Because if we look at even any university, I mean, again, the Harvard statistics are the one that I know the most, you know, 30 percent of that community, the Harvard admittees are alumni, legacies, Dean’s List, which means the Dean designate special interest people, you know, not to name names, but like the Jodie Foster, Jared Kushners, you know, Chelsea Clintons of the world, right?

And faculty, you know, relatives of faculty members, 30 percent of the admissions are that those categories, whereas they only represent 5 percent of the people that are applying. So, if we’re trying to design a system along the lines that you’re talking about, let’s be, again, more open to recognize that it’s not just on sort of test scores that we should be looking, we need to be looking at how we create an equitable system overall.

Now, to your specific point, if someone is saying no, you have to score higher than all of these, these are the objective measures, we don’t value Asian Americans as much. You know, I can’t speak for what happened in the past. But I will say that our organization has spoken up when we have seen that happen. So, I can’t speak to the past, but at least for the present, when we see discrimination, we will try to address it. But we don’t see that overall, with the affirmative action policies that we see in place.

John Donvan:

All right, I want to ask a question, as we have talked about some of the cases that have come up in the past the Bakke case from the late 1970s, and then the Grutter case in 2003. These were cases that set up the precedents that are now being challenged in the Supreme Court. And one of the important points there was the court’s opinion back then, that using race as one of several factors was a kind of discrimination that was permitted under strict scrutiny because there was a compelling government interest in achieving diversity as an educational ideal and benefit in the university system to all students, not — the argument was no longer being made just to students who had been marginalized or underprivileged, but to all students. And in the arguments that took place in the cases that were brought up now, in the particularly in the case, the UNC case, the University of North Carolina, Justice Thomas asked a question, he said, I’ve heard the word diversity quite a few times and I don’t have a clue what it means.

It seems to mean everything for everyone. So, what do you make of that line of questioning? And how do you think diversity is best achieved in school admissions? Is it a value to aim for? Lee, I believe I heard you say in your opening that you believe it is, but I’d like you to take on Justice Thomas’s position on this.

Lee Cheng:

Right. So, diversity has come to mean, I think, you know that it has become a proxy for race and for gender. And so, even the definitions that we’re using right now, the way that we’re describing people, right? You know, John indicated that 28 percent of Harvard student body is Asian American, what does that even mean? Right? How can we, you know, how can we possibly believe that people who come from a continent of dozens of countries and speaking thousands of languages, right, are somehow the same or very, very substantially similar? Similarly, with black, what does that mean?

There’s a vast gap between African immigrants and African Americans in the gaps between, you know, people who happen to be black, whatever that means, again, you know, are huge as between rich black people and poor black people. So, I support diversity based upon, you know, some sort of holistic assessment, but where race is used as a proxy and overweighted, that’s what I and most Americans are vehemently against, because that is racist.

John Donvan:

All right. So, John, what I think I hear Lee saying is that the concept of diversity is sort of in the abstract makes sense. But then in reality, it’s been corrupted. And I would like you to take that on.

John Yang:

Well, I guess I would look at it and say, in reality, it has not been corrupted. And in fact, we need to do more. Because if you look at the statistics related to people of color in C suites of females in C suites, you look at the statistics, and Lee obviously knows this well, with respect to general councils, or equity partners and law firms.

Communities of color are still lagging. And so, we need to do more to make sure that those communities are being lifted up. So, in that sense, I think that diversity is more than an abstract concept, it is one that we need to strive for, and we need to create policies to help get to a more equitable result.

I do appreciate what Lee is saying about that 28 percent number that I used, but I use that more to set up what the prima facie cases so to speak. If people are saying that Harvard is discriminating, they have to show that there is a disproportionate impact, a negative impact being faced by Asian Americans. And you look at that 28 percent number, we’re only we’re only 7 percent of the population. At least it might cause someone to question like that doesn’t sound like discrimination to me. But I agree with Lee with this is where we need to dig a little bit deeper, is understand those statistics, because the reality is that there are communities that are underrepresented, oftentimes they are poor. I would agree with you as well there, but this is why we need to consider race where — and create these policies where that it can have a beneficial effect.

Again, I think where we’re stuck is sort of how we consider it in a way that doesn’t lead to some of the results that Lee is projecting. But I haven’t heard yet something that is better that actually makes sense.

John Donvan:

All right, well, let’s move into our closing round now. And in this round, you just get to take one more crack at the issue after you’ve heard everything each of you has had to say. So, Lee, I’m going to give you 90 seconds to make your closing statement. Again, the question is, is affirmative action unfair to Asian Americans? You’re saying yes, it is. 90 seconds now.

Lee Cheng:

So, as you mentioned earlier, John, race based affirmative action, as it was permitted by the Supreme Court in 1974, and then in 2003, was never really supposed to be permanent. It was always intended to be temporary. And the Supreme Court justices who wrote the controlling decisions, indicated that it wasn’t, the determinative use of race was a necessary evil.

In 1974, it was Justice Powell who said 40 years, let’s give it a shot. 40 years. You know, Justice O’Connor in 2003, said 25 years. So, we’ve been experimenting now with supposedly benign racism for almost 50 years. And real people have been hurt. I brought to you the concrete example of Chinese American kids who are kept out of a public high school because of their ethnic origin, because people wanted to achieve racial mixing there. I brought to you, you know, concrete examples of, you know, in evidence backed examples of Harvard College, basically toggling down the personality scores of Asian Americans to levels that are unimaginably low, you know. And so very, very few people have benefited. Right? If people want to put into a program where there’s such a high cost, at least somebody should benefit. So, 50 years after these race-based programs have been put into place, poor black people are still poor, poor black people are still not achieving, academically, the way that everyone would like to see every community achieve. Right?

So, it’s time I think, for everybody to take a step back and try to think about better ways. Right? To achieve equality and equity and, you know, the benefits of our society for everybody in a way that moves us forward on issues of race, while allowing us to talk about race while allowing us to acknowledge race, to not make race so central to our lives.

John Donvan:

Okay, thank you very much.

And John Yang, your turn to make your closing statement. You’re saying it is not true that affirmative action is unfair to Asian Americans. Your closing statement, please.

John Yang:

Sure. First, just to correct the record, I did not say that affirmative action should be time limited. I do think that race does continue to matter. You know, it would be a nice idea to have, but we are not there yet.

I think there are a couple of things. Number one is I think we all agree that race does matter. It should play a role. The question is how much? And Lee suggested that affirmative action has not done any good. Now, I would venture to say based on the studies that we’ve talked about, that, without affirmative action, Asian Americans would not benefit any from it. But the one thing we did not talk about is without affirmative action, this is the case then in California, that the enrollment of Hispanic Americans, African Americans plummeted significantly. And so, to suggest that affirmative action hasn’t done anybody any good, is statistically inaccurate.

The last thing I would say is, I agree that we need to look at the statistics and the evidence. And I very much worry when we say that personal scores were toggled significantly. That’s not what the district court said. And we could debate about what the district court and experts have said about the impact.

But certainly, at the end of the day, the statistics that we have shown that affirmative action has not affected Asian Americans. If we want to talk about equity for Asian Americans, we should be talking about a whole wide range of different issues, but not focus on this one narrow issue.

[music playing]

John Donvan:

Thank you, John Yang.

And I want to say to both of you, John Yang, and Lee Cheng, thank you so much for joining us for this conversation and debate on Intelligence Squared. I so appreciated how you conducted this sharp disagreement with civility and mutual respect. And also, as you promised, in the beginning, Lee, some nuance that you both brought to the conversation. It’s really what we aim for. And I want to thank you both for joining me on Intelligence Squared.

Lee Cheng:

Thank you, John, and John.

John Yang:

Thank you, Lee and John.

John Donvan:

And the conversation you just heard perfectly captures why we do this. You know that the way discourse happens these days is pretty broken. And it’s why it is so refreshing but also unusual to hear two people who disagree actually be able to converse rationally and civilly and shed light, not just to blow smoke.

And we know from so many of you that’s exactly why you listen to what we’re doing and why I’d like to remind you that as you turn to us for that we turn to you for support. We’re a nonprofit. And it’s contributions from listeners like you that keep us going. So, please consider sending us a buck or two or 10 or 50. Whatever works for you. It will give you a stake in what we’re doing here each week, and it will mean that we are here this week, next week and beyond. For now, I’m John Donvan, and we’ll see you next time.

Thank you for tuning into this episode of Intelligence Squared made possible by a generous grant from the Laura and Gary Lauder venture philanthropy fund. As a nonprofit our work to combat extreme polarization through civil and respectful debate is generously funded by listeners like you, the Rosenkranz Foundation and friends of Intelligence Squared. Robert Rosenkranz is our chairman, Clea Conner is CEO, David Ariosto is head of editorial, Julia Melfi, Che O’Meara [spelled phonetically] and Marlette Sandoval are our producers.

Damon Whitmore [spelled phonetically] is our radio producer. And I’m your host, John Donvan. We’ll see you next time.

[end of transcript]

This transcript has been lightly edited for clarity. Please excuse any errors.