On December 17th, 2014, the nonprofit organization Students for Fair Admissions (SFFA) filed suit in the Massachusetts District Court against Harvard College, alleging racial discrimination in its admissions policy. However, the targets of the allegedly discriminatory practice are Asian Americans, a group that most people would not associate with a disadvantaged minority. The lawsuit comes just three years after the Department of Education investigated Harvard’s admissions process for possible discrimination against Asian Americans.

Some of the facts alleged in the complaint seem to confirm what many Asian families have long suspected: elite institutions have unspoken quotas that make it more difficult for Asian applicants to be accepted. According to the complaint, from 2003 to 2012, Asian Americans averaged around 17 percent of the Harvard student body. However, by 2008, Asian Americans made up over 27 percent of Harvard’s applicant pool, and approximately 46 percent of “applicants with academic credentials in the range from which Harvard admits the overwhelming majority of students.” This threshold refers to any applicant with an SAT score over 2200. The complaint also draws parallel to Harvard’s effort to suppress Jewish enrollment during early 20th century, which led Ivy League schools to consider factors such as “characters” and “leadership” during the admissions process.

Moreover, while the number of college-aged Asian Americans has roughly doubled between 1992 and 2011, enrollment of Asian Americans at Ivy League institutions has largely remained constant. By comparison, institutions that do not account for race or ethnicity in their admissions process, such as Cal Tech and UC Berkeley, have seen their share of Asian American students grow in line with the country’s general demographics.

While Harvard has denied any race-based admissions practice, the lawsuit raises important question about how racial perceptions negatively affect Asian Americans. The myth of the model minority has largely excluded Asian Americans from national conversations about race and discrimination. They do not benefit from affirmative action programs, while at the same time, suffer from shifting standard of excellence. Let’s take a look at college admissions again. A 2013 survey by sociologist Frank L. Samson showed that white Californians’ view of a meritocratic admission system changed based on racial information. When the test subjects were told that Asian Americans began to constitute a plurality for the incoming class, white evaluators lowered the minimum class rank and test percentile standard for admitting white applicants and raised the requirements for admitting Asian American students.

Race-based admissions policies create many tangible benefits, but they also have the potential to create arbitrary distinctions within racial minorities. Such policies have not freed minorities from the consequences of discrimination, but instead may have created more subtle forms of discrimination that are harder to identify and eliminate. In Democracy and Distrust, John Hart Ely wrote, “It makes no sense to employ the value judgments of the majority as the vehicle for protecting the minorities from the value judgments of the majority.” It is dubious how an admission system built by policymakers with little connection to or understanding of the minority experience could promote the flourishing of minority groups.

Race-based policies have focused on creating substantively fair results by attempting to remedy the lingering effects of historical discrimination and promoting a diverse educational environment. However, the current affirmative action program may exclude well-qualified minorities from important opportunities that would empower them. Moreover, the racial label “Asian” contains a wide range of ethnic and national identities, each with its own unique social and political experience. An admission system that makes it harder for Asian Americans to be accepted by elite institutions would exclude many who have suffered from persistent discrimination and disadvantages, something that affirmative action programs are supposed to solve. Overt racism and discrimination may be a thing of the past, however, biased racial perceptions still influence the decision-making of our political and social institutions in subtle ways, just as the Samson study showed.

This is not an attack on racial affirmative action programs. However, the system as it is currently structured is an imperfect and blunt tool for helping racial minorities. Regardless of whether Harvard’s admission policy is discriminatory toward Asian Americans, we must ask if our current perception of race has created new forms of discrimination that are less likely to attract public attention and scrutiny.