Supreme Court Decision Delivers Major U.S. Foreign Policy Win Against Beijing

In addition to its significant implications in the United States, the Supreme Court’s decision striking down Affirmative Action late last month was perhaps one of the more seminal foreign policy events of the last year.

With the war in Ukraine, Putin facing a possible coup, and Chinese saber-rattling in the Middle East, this may seem a strange claim to make, especially about a decision based on the U.S. Constitution which applied to American universities. However, Harvard and the other schools which practiced Affirmative Action did not merely claim the nebulous goal of training the future leaders of America – they suggested they were training a global elite.

Lost within debates about historical discrimination in America and statistics was a simple truth: the policies the Supreme Court struck down last month had not only sent a message to Asian Americans that they were unwanted and unvalued, but to a large part of the global population as well. At a time when the United States is trying to woo the populations of nations such as India, Japan, South Korea, and Vietnam to contain China, few messages could have been more destructive than that the U.S. Constitution saw them as less than individuals.

In the United States, the Affirmative Action decision failed to receive the media attention that Dobbs did last year, and had to compete for coverage with the Supreme Court’s decision to strike down the Biden administration’s unilateral attempt to write off hundreds of billions in student loans.

Abroad, however, the Affirmative Action cases were followed closely. Revelations from the discovery phase of the lawsuit against Harvard filled the media throughout Southeast Asia.

There is a parallel here with the situation in the 1950s, before the Civil Rights Act. Segregation was obviously unjust and a violation of constitutional principles of equal protection. But for Americans who were unpersuaded by those arguments against segregation, there was another, perhaps even more potent argument, in that the U.S. was in a Cold War and a major battleground was likely to be the newly independent states of Africa and Asia. How could the United States compete for their allegiance against Moscow when America’s new “allies” would face discrimination if they ever visited the United States?

In the 2020s, the United States is once again engaged in a kind of Cold War, this time against the Chinese Communist Party and the People’s Republic of China. The battleground is the allegiance of the populations and leaders of a string of nations stretching from Japan and South Korea, through the Philippines, South-East Asia, and India.

These lands are home to more than 40 percent of the world’s population, speak diverse languages, follow different religions, and look nothing alike. Nonetheless, as Justice Neil Gorsuch pointed out in his concurrence, to Harvard, they are all the same. They all merely count as “Asian” – an abstraction which makes neither geographic, nor cultural, nor linguistic, nor historic, nor even, dare we say, racial sense.

The U.S. won the Cold War through a superior, capitalist economic system which emphasized individual freedom, but also because others not only wanted to experience that freedom and prosperity, but were told they could. Segregation in America made that pitch untenable in Africa by communicating that the population could never share in the superior prosperity of the American system.

There has been a concerted effort by the People’s Republic of China to spread the message in the region that not only is America not as impressive as claimed, but that its system and prosperity will be off-limits to “Asians” due to institutionalized discrimination such as Affirmative Action admissions policies that unfairly disadvantaged Asian applicants.

Propaganda does not need to be true to be effective, but truth, or elements of it, tend to greatly enhance the effectiveness of propaganda campaigns. There was more than enough truth to the CCP’s charges to make them effective and allow the CCP and its allies to use the words of American liberals to indict them.

The actions of Harvard, and the systemic way in which it handed Asian applicants low “personality scores,” was bad enough. The manner in which Harvard’s actions were defended by virtually all of America’s liberal political establishment and much of corporate America was far worse.

To defenders of Affirmative Action, having a majority of Fortune 500 CEOs and the U.S. military file amicus briefs stating the importance of “diversity” – i.e., limiting Asian admissions – was proof the policy was correct. For Beijing’s propagandists, it was further evidence that American institutions were hostile not to communism on an ideological basis or the PRC on a geopolitical one, but rather to all “Asians” on a racial level. After all, Harvard and Biden’s generals certified that Asians were all the same.

In particular, the CCP and its allies focused on a topic Justice Neil Gorsuch singled out: the arbitrary nature of racial classifications. Justice Gorsuch noted how absurd it was to treat a Protestant Korean the same as a Catholic Filipino, a Muslim Malay, or a Hindu from India. Relatedly, one of the major challenges Beijing has faced to expansion in the region is the nationalist reaction against Chinese dominance within neighboring countries.

Armed with the American left’s blanket approach to racial identity, the CCP was able to message to the groups who were both traditionally the most pro-American and most likely to be impacted by U.S. affirmative action admissions practices.

These were the disenchanted children of the elite, who yearned for the freedom of the West and hoped to escape by enrolling at American universities. Chinese state media bombarded them with the revelations, including quotes by Harvard admissions officers and politicians defending Affirmative Action, in order to convince those young Asians that America did not want them, would not accept them, and that if they left they would be subject to constant discrimination. They could learn English, travel to America, and wave American flags. At the end of the day, America would still see them as at best “Asians” and quite possibly as indistinguishable from Chinese.

As a result, the CCP would have young people in other Asian nations believe, their prospects would rise and fall with those of China, whether they liked it or not.

There may well be reasons to be concerned about an influx of mainland Chinese students at American universities. Strong arguments can be made for favoring domestic applicants, especially from the middle and working classes, over wealthy foreigners.

However, it is critical that these decisions and exclusions not be done on the basis of race. If mainland Chinese students are to be restricted, it must be done on the basis that there is evidence they individually are security risks. The idea that they should be kept out because they are Chinese and Chinese are Asians who score too high on tests is unacceptable.

To then extend that discrimination to Taiwanese or American-born Chinese, much less Indians, Koreans, and Cambodians, is the height of injustice. It is, as the Court noted, an unconstitutional betrayal of what America stands for.

Moreover, it’s a geopolitical mistake. America’s greatest weapon in the Cold War and arguably from the founding was not its unique values and system of government which made it prosperous, but rather that America’s prosperity was open to all.

America’s success was not zero-sum. Unlike Germany’s power, which could only be exercised at the expense of France or Poland, America’s power could make anyone who embraced its values safer. America’s wealth could make anyone who embraced freedom richer. America’s elites, with their embrace of racial categorization, were risking throwing that away for the second time in sixty years. The Supreme Court has just helped the nation live up to its values.

Daniel Berman is a frequent commentator and lecturer on foreign policy and political affairs, both nationally and internationally. He holds a Ph.D. in International Relations from the London School of Economics. He also writes as Daniel Roman.