Where Does Affirmative Action Leave Asian-Americans?
The New York Times August 28, 2019 looks at the efforts to diversify, the Asian population, and the lawsuit against Harvard University
Where Does Affirmative Action Leave Asian-Americans?
A high-profile lawsuit against Harvard is forcing students and their families to choose sides.
By Jay Caspian KangPhotographs by Ronghui Chen
Published Aug. 28, 2019
Updated Aug. 30, 2019
For the purposes of this article, Alex Chen, an 18-year-old senior at the Bronx High School of Science in New York City, is the “typical Asian student.” Alex has a 98 percent average at one of the city’s elite public high schools, scored a 1,580 on the SAT and, as far as he knows, has earned the respect of his teachers. Alex is also the vice president of technology for the Bronx Science chapter of the National Honor Society, the director of graphics and marketing for TeenHacks L.I. (“the first hackathon for teens in Long Island”), a member of the cross-country team, the vice president of the school’s painting club, the president of the Get Your Life Together club (visitors from various businesses come talk to students) and the senator for his homeroom. In his free time, he plays Pokémon and goes on long jogs through Van Cortlandt Park in the Bronx. His parents, Qiao and Su, emigrated from China in the ’90s and worked their way through commuter colleges in Queens. They live along with Alex’s little brother in a modest apartment in outer Queens. In the specific yet ultimately abstracted and perhaps inhuman calculations particular to selective college admissions, Alex is a first-generation (considered a plus), middle-class (minus) Chinese-American (minus, arguably) with two college-educated parents (minus) from a major American city (minus) with aspirations to study either computer science (minus, given all the Asians who want to go into STEM disciplines) or political science (plus).
When I first met him in early August 2018, we struggled to find a time to meet up to talk about his thoughts on affirmative action and its effect on Asian-American students. Deep into the summer vacation before his last year of high school, Alex had been interning in the office of Assemblywoman Yuh-Line Niou while also completing a study on congressional legislators with a professor at New York University. There just was no time.
After Alex canceled our first agreed-upon date, I told him that in addition to writing for The New York Times Magazine, I was also writing a book, ran a small production company and had an 18-month-old daughter. And yet, despite these various jobs (as well as the fact that I wasn’t on summer vacation), I could meet him on any day and at any time for however long he pleased. My flexible schedule wasn’t a favor to him but simply a reflection of the life of a relatively productive adult.
“Well, that’s you,” Alex said, a bit scornfully.
We finally settled on a meeting in the financial district. Alex suggested a Dunkin’ Donuts exactly one door down from his internship office. When I arrived, I saw that it had no tables or booths, just three stools pushed up against the front window. I was hungry and slightly irritated, so I texted him and said I’d meet him at a Cuban lunch counter nearby. He walked through the front door a moment later — thin, with short-cropped hair, a neatly tucked button-up shirt and creaseless pants. He had a look of mild agitation about him, one that never really subsided. We shook hands.
“This is my list of priorities for the summer,” he said, opening a document on his phone. “You can see the sociology study is way up high because it’s really important to me, and cross-country is less high but still important.”
“Do you enjoy running?” I asked.
“Sometimes,” he said. “Do you want to see my list of colleges?”
He pulled up a spreadsheet on his phone with the names of 11 colleges listed in color-coded columns. “So, Binghamton and Rochester are the safeties, which is great, because I’d be totally thrilled to go to both. Carnegie Mellon and Rice are matches where I’m pretty sure I can get in. And these schools in red are my reaches.” Yale, M.I.T., Cornell, Princeton, Stanford, Vanderbilt and Brown.
“Would you really be happy going to Binghamton or Rochester?” I asked.
“Yes, because the value would be there for the price I’ll end up paying. They’re great schools and cheap.”
“I see Harvard isn’t on your list,” I said. “Are you worried it’ll be impossible because of ... you know.”
“I’m applying to Yale.”
“Sure,” I said. “But Harvard is Harvard.”
“Yes, and Yale is Yale,” he said.
“Do you want to go to Yale?” I asked.
“Define ‘want,’ ” he said.
It went on like this for a while. After a brief discussion about his internship and what it taught him about the importance of local political representation, I finally asked him how he felt about affirmative action.
“It’s complicated,” Alex said. “I understand why it exists and why it might be necessary to create the society we all want,” he went on. “But I also understand there are ideas that make it seem like Asians aren’t discriminated against at all.”
“What ideas?” I asked.
He gave me a look that communicated his deep, and perhaps justified, frustration with me. These ideas, I gathered, had been implicit in every conversation Alex had ever had about college admissions, but they rarely found clear expression. “So how do you feel about affirmative action?” I asked again.
“I understand the thinking behind affirmative action, but I just wish the message wasn’t that Asians are all so privileged and rich and buying their way into colleges,” he said, referring to the perception that Asian parents in effect buy their kids’ test scores through expensive preparation programs and private tutoring. “And I wish that it didn’t mean that my work didn’t count in the same way as other people’s work.”
This was an unsatisfying answer but not an uncommon one. In 2014, an organization with the cryptic name Students for Fair Admissions filed a lawsuit against Harvard College on behalf of Asian-American applicants who claimed they had been victims of discrimination and bias. In August 2018, the Department of Justice filed a statement of interest in the case, arguing against Harvard’s motion to dismiss it and claiming that “Harvard has failed to prove that its use of race survives strict scrutiny.” Following all the attention that action received, I began asking Asian kids across the country about affirmative action, which was widely seen to be the real issue.
The case, which after a lengthy trial last autumn is expected to be decided by Judge Allison D. Burroughs sometime in the coming months, has pushed many Asian-Americans into a spotlight they had eagerly been avoiding for the past 20 years. The students felt uneasy, and perhaps unworthy, discussing race, especially within a context where they were personally implicated. As such, many refused to go on the record for fear of saying something controversial. The opinions ranged from “We shouldn’t be punished for doing well” to “We all need to sacrifice to make a better, more just society.” Most of them said they had always known it would be harder for them to get into college, but only a few called this an injustice. There was nothing approaching a consensus, but they were, for the most part, extremely conflicted and embarrassed by the whole business.
Their internal conflict, however inchoate and strangled by euphemism, paled next to the angst of what I’ll call the upwardly mobile Asian-American population — the sort of people who had attended Harvard or Yale or Princeton or Stanford and who, in other circumstances, would have publicly and loudly supported any goal pursued in the name of diversity. Over the past year, I found myself constantly talking about the Harvard case with this cohort, many of them friends and colleagues, not only for journalistic reasons but also because it was always on our minds. These conversations usually started with perfunctory statements like “Listen, I know I’m not supposed to say this” or “This is a complicated issue,” but they almost always ended with a surprisingly declarative conclusion.
“Look, I support Harvard’s right to pursue the diversity they want,” said one Asian-American who described herself as a “staunch supporter of affirmative action.” “But of course they discriminate against Asian kids.”
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On the first day of the trial for Students for Fair Admissions (S.F.F.A.) v. the President and Fellows of Harvard College, which took place over three weeks in late 2018, a problem presented itself: It was almost impossible to figure out who or what, exactly, was on trial. In his opening statement, Adam K. Mortara, the lead attorney for S.F.F.A. and a former clerk for Justice Clarence Thomas, declared, “The future of affirmative action is not on trial.” Then he added, “Diversity and its benefits are not on trial.” This came as news to the dozens of Asian-American activists who had traveled to Boston to support the lawsuit, as well as the gallery of reporters who piled into the stiff, unyielding press benches in Courtroom 17 of the John Joseph Moakley United States Courthouse in Boston with assignments to cover “the affirmative-action trial.”
A thin man sat in the back of the courtroom in a suit two sizes bigger than what’s fashionable these days. Every now and then he would jot down something in a notebook and then return to watching dispassionately with his hands folded in his lap. This was Edward Blum, the 67-year-old president of S.F.F.A., and paradoxically enough, given that he is a white man with no direct connection to the school, the only person named on the side of the plaintiffs in the lawsuit against Harvard. Blum is not a lawyer or a politician, but he may be the most influential and effective opponent in the country of any progressive policy that tries to distinguish people by race and ethnicity. He exerts influence, in large part, because of his connections to wealthy conservative donors, but also from an indefatigable resolve to flood the legal system with lawsuits, some of which eventually make it to the Supreme Court.
In addition to S.F.F.A., Blum also heads the Project on Fair Representation, the litigation fund behind Fisher v. the University of Texas at Austin, the last major challenge to affirmative action to reach the Supreme Court, in which Abigail Fisher, a white woman, was one of two women claiming to have been rejected from a spot she deserved because of preferences given to people of color. On two separate occasions within the last decade, Blum and his attorneys argued that the University of Texas was placing too much weight on race in nonautomatic admissions. Blum lost this challenge in 2016, but he has also done quite a bit of winning: In 2013, he won a landmark decision in Shelby County v. Holder, which gutted the key provisions of the 1965 Voting Rights Act by effectively ending federal oversight of elections. Blum would not be taking the stand in the Harvard case.
A sweeping elimination of affirmative action still requires the cooperation of the Supreme Court, which was responsible for another odd dynamic in the trial. A vast majority of the testimony and argumentation was about Asian-Americans, but the actual lawsuit unfolded in a way that didn’t have much to do with Asians at all. The inevitability of an appeal, which would then raise the stakes, made the entire trial feel somewhat like an opening act. At the #DefendDiversity rally at the start of the trial, Jessica Tang, president of the Boston Teachers Union and a Harvard alumna, said that “Edward Blum is not a friend to Asian-Americans” and accused him of using Asian-Americans as pawns in a vile legal game. S.F.F.A. was making three broad claims:
One: Harvard’s use of racial preferences far exceeded the Supreme Court’s allowance of race as “one, nonpredominant factor in a system designed to consider each applicant as an individual,” as Justice Anthony Kennedy described it in Grutter v. Bollinger in 2003. A landmark affirmative-action ruling, it involved the University of Michigan Law School and upheld the principle that race is only supposed to be a “plus” that is considered when two applicants are otherwise indistinguishable. In those instances, race can be a “tip” that allows a university to seek the diversity it desires.
Two: Harvard, by keeping black, Latino and Asian admissions rates at a relatively steady equilibrium, despite demographic changes in its applicant pool, had created a de facto quota system. Quotas have been illegal since the Supreme Court’s 1978 decision in Regents of the University of California v. Bakke, the first major challenge to affirmative action in higher education.
Three: Harvard had not adequately explored race-neutral alternatives required by the legal parameters of affirmative action. This requirement was reaffirmed in Fisher v. University of Texas, allowing a school to consider an applicant’s race only when “no workable race-neutral alternatives would produce the educational benefits of diversity.”
Despite what Mortara said about affirmative action not being on trial, S.F.F.A. has been extremely forthright about its expectation that regardless of Burroughs’s decision, it will eventually be arguing in front of the Supreme Court. Over the course of the past year, I asked Blum on a few occasions what he hoped to get out of all this. His stance never changed. His “mission,” he told me again in August, is to remove race from college admissions: “We believe that a student’s skin color or ethnic heritage should not be used to help or harm that student’s prospects of being admitted to a college or university.” When I asked if the ultimate goal, then, was to end racial preferences not only in college admissions but also in all parts of the law, Blum said: “Yes! Absolutely. I won’t deny it.”
To get to the Supreme Court, S.F.F.A. needed to justify the lawsuit both in the courtroom and to the public. According to Blum, Abigail Fisher, the daughter of a family friend, had suffered greatly from her years of national attention as a result of her case against the University of Texas. To avoid putting another young person through the same thing and to bring a fresh angle to the fight, Blum and his attorneys decided to represent an anonymous and amorphous group of plaintiffs. (Every request I made to talk to any of these unnamed persons was denied by S.F.F.A.’s attorneys.) They chose, instead, to build a case out of spreadsheets and statistical data obtained through pretrial discovery, which in turn set up something of a phantom showdown: Students were discussed almost entirely through the abstraction of test scores, grades and extracurricular accomplishments. In their opening and closing statements, the attorneys for S.F.F.A. went through charts and spreadsheets, many of which were centered on something called the “personal rating,” a portion of Harvard’s application review that judges traits like “courage,” “openness to new ideas and people” and “effervescence.”
Their charts showed that Asian-American applicants outperformed white applicants in academics and extracurriculars and lagged behind in athletics and legacy considerations. When it came to the personal rating, Asian applicants rated significantly worse. Harvard never convincingly explained or contested the disparity.
Harvard’s defense, argued by Bill Lee, a 69-year-old Chinese-American attorney and a graduate of the class of 1972, was mostly predictable, if not entirely coherent. On one front, Harvard resorted to bureaucratic denial: It claimed that every piece of information, however damning, had to be placed within the context of the entire admissions process. And while Lee took great pains to detail how an application went through an initial reader and then an alumni interviewer and then a subcommittee and then the final 40-person committee, he never addressed the specifics of how decisions were made, except to say that the committee considered “the whole person.” In the end, the only definitive, knowable thing about the admissions process was that race was said to be only one small part of an opaque process.
On the other front, Harvard and its allies went on an ideological offensive. The multicultural and empathetic vision of the country — represented on Harvard’s side by lawyers of all races and a steady stream of Asian, black and Latino students who gave testimony about why they, despite less than perfect test scores and G.P.A.s, deserved to be on campus — would not be possible without the tireless efforts of places like the Harvard admissions office to change the face of elite society in America. Lee ended his opening statement with a personal anecdote: Forty-two years earlier, when he argued his first case in front of a federal judge, every person in the courtroom, save the deputy, was a white man. “Look around the courtroom today,” Lee said. “Many institutions, many people have contributed and worked tirelessly to make this happen. Among them are colleges and universities.”
This could easily have been seen as a shot at S.F.F.A.’s cross-examining lawyers, who were all white. But Harvard’s story made even less sense than S.F.F.A.’s. The array of amicus speakers gave breathless testimony about the dangers of gaslighting and the crippling self-doubt that comes with being told that your feelings of alienation and racial othering are all imagined or not worthy of concern. Then Lee stood up and told the judge that S.F.F.A.’s own claims of implicit racial bias were outrageous, because Harvard admissions were an unknowably complicated, nuanced and sensitive process that involved 40 thoroughly trained people.
Lee and the Harvard admissions officers who were called to the stand also talked about the school’s endlessly adjustable process, which could take factors like standardized test scores and G.P.A.s and place them within the proper context. The goal in all this, of course, was to root out systemic racism and relative privilege. But when it came to explaining away the disparities in the personal rating, Harvard presented years of data showing that Asian-American applicants, despite superior academic and extracurricular ratings, uniformly received worse recommendations from their teachers and guidance counselors. Lee did not extrapolate on what this might mean, but there was really only one possible conclusion to draw: If there was bias in the personal ratings, it came from the teachers and guidance counselors, not from Harvard’s admissions officers. And Harvard, despite its complex and sensitive system calibrated to ferret out and correct bias, apparently took these teachers and guidance counselors at their word — Asian students, year after year, were just a bit less personally appealing than white students and significantly less personally appealing than those who were black or Latino.
When Mortara and S.F.F.A.’s other attorneys asked Harvard admissions officers on the stand if they believed Asian applicants had less desirable traits than their white counterparts, they, of course, said no, they did not.
From a letter to The Harvard Crimson by a student named David A. Karnes, arguing against affirmative action for Asian-American applicants:
“Current U.S. Census figures show that Asian-Americans today penetrate all income levels and, in general, have attained an above-average standard of living. The barriers to equality which did indeed exist in the past for this group have largely vanished.”
And a rebuttal, a few weeks later, from a student named Charles D. Toy:
“Mr. Karnes adheres to the same misconception about Asian-Americans which has plagued them since intelligent people began to recognize and repudiate the savagery of official discrimination. Because he now perceives some ostensible penetration by Asian-Americans into various social and economic levels, Mr. Karnes concludes that most Asian-Americans no longer suffer the oppression of their status as a minority in this country.”
These two letters were published in the fall of 1976. Earlier that semester, Josephine M. Lok and Bet Har Wong, Asian-American freshmen roommates at Radcliffe, tried to attend an orientation banquet for minority students and found that they were not among the invitees. In a lengthy article about the beginning of the Asian-American student movement at Harvard published in March of this year in The Crimson, Lok said she didn’t really make a big deal of the omission because “we didn’t have that whole awareness.” But other Asian-American students on campus saw the incident as representative of their unseen, and largely unwelcome, presence there. This stood in direct contrast with federal law at the time; in 1977, for example, the Department of Labor designated minority groups as consisting of “negroes, Spanish-speaking, Orientals, Indians, Eskimos and Aleuts.”
According to the article describing Wong and Lok’s strange rejection, after a group of Asian students confronted Fred Jewett, the dean of admissions, he told The Crimson in 1976 that Harvard did not count Asians as minorities because their enrollment numbers exceeded their share of the general American population. The demographics of the Harvard applicant pool, in other words, overruled everything else, whether common sense or the lived realities of many of the Asian students who attended Harvard.
These deliberations over race and privilege did not take place in a vacuum. In 1975, just a year before Wong and Lok were turned away from the minority-students banquet, Allan Bakke, a 35-year-old white man, was rejected for the second time by the medical school at the University of California, Davis. At the time, under a transparent affirmative-action policy, the school had reserved 16 of each class’s 100 spots for a “special admissions” program that considered the applications of “economically and/or educationally disadvantaged” students. Those applicants deemed disadvantaged were evaluated by a separate committee with different standards. After Bakke sued U.C. Davis, a California court ruled that the school’s program violated the Equal Protection Clause of the 14th Amendment, which prohibits racial discrimination. In 1978, the Supreme Court agreed that Bakke had been discriminated against.
In the court’s decision in Bakke, Justice Lewis F. Powell cited Harvard’s admissions plan as the paragon of how diversity could be pursued in college admissions — because the school acknowledged, he wrote, that “a farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer.” The Bakke ruling meant that explicit quotas were unconstitutional, but when confronted with two equally qualified students, a school could give a “tip” to the one who could bring his or her unique regional or racial flavor to the college’s melting pot.
The spiritual language of affirmative action — to remedy the nation’s sins and to help underprivileged minorities who had been the victims of generational oppression — fell out of the legal conversation around affirmative action, mostly because any talk of “giving a leg up” to a certain number of students sounded too much like a quota system. “Diversity” became the new justification for considering a student’s race. It was no longer about righting history’s wrongs or ending poverty. It was now about the “something” a student from a different background could “bring” to campus.
In 1988, William Bradford Reynolds, who was an assistant attorney general and chief of the civil rights division in the Reagan administration’s Justice Department, spoke at a symposium on Asian-American university admissions sponsored by Senator Tom Daschle of South Dakota, a Democrat. By this point, official complaints of discrimination had been filed by Asian-American students at several top universities. In 1984, after a lengthy internal review, Brown University concluded that Asian-American applicants had been “treated unfairly.” By the time Reynolds took the stage to give his remarks, the Office of Civil Rights at the Department of Education had begun investigating admissions at several schools, including Harvard and U.C.L.A.
Until Reynolds’s speech, the question of discrimination against Asian applicants had not been explicitly placed within the context of affirmative action, at least not by someone in such a prominent position. But he noted “substantial statistical evidence” that Asian-Americans faced “higher hurdles than academically less qualified candidates of other races,” and he added that “rejection of such applicants ironically appears to be driven by the universities’ ‘affirmative-action’ policies aimed at favoring other, preferred racial minorities.” In this formulation, Asian students were being pitted against other minority groups for scarce, precious opportunities.
Over the next two years, the rules of the racial zero-sum game of college admissions took shape. The solidarity movements that started at Harvard in the late ’70s were supplanted by an uneasy coalition of conservative white politicians, writers and attorneys and Asian-American legal activists. In 1990, according to a lengthy study by Dana Y. Takagi, a professor at U.C. Santa Cruz, the Office of Civil Rights opened an investigation into whether white applicants had been discriminated against at U.C. Berkeley. One of the original complainants was Arthur Hu, a Chinese-American software programmer who, using data made public by the school, had painstakingly charted the test scores and academic credentials of black, white and Asian applicants.
Thirty years after Reynolds’s speech, Students for Fair Admissions revisited the 1988 playbook and filed its lawsuit against Harvard, claiming that its admissions process had discriminated against Asian applicants. During that time, the Asian population in the United States has grown to more than 21 million in 2016 from roughly 3.5 million in 1980, and a relatively narrowly defined group that used to apply mostly to Chinese and Japanese immigrants has been expanded to include everyone from the Hmong people to Koreans to South Asians. Attempts to corral all these peoples into one monolithic identity have become increasingly harder to reconcile. Asians are found throughout the socioeconomic spectrum. If it’s a silly endeavor to quantify racial oppression, it’s also absurd to equate the experience of a Sikh kid in Wisconsin with that of a Korean-American kid in Los Angeles.
And yet, when it comes to college admissions at elite schools, the conversation seems stuck in the past. None of the underlying questions have changed since Wong and Lok were turned away from that freshman banquet. Are Asians actually minorities? And if diversity — whatever that means — is the goal of affirmative action, how many Asians does a school really want on campus?
I’m a bit embarrassed to admit that I found Alex somewhat annoying at first. If I had been an alumni interviewer tasked with rating Alex’s personality on a scale of 1 to 6, with 1 being a student who showed unusual intellectual curiosity, grit and effervescence and 6 being a mumbling 4chan troll who would be a nightmare for his roommates, I would have given Alex a solid 3.
In my early 20s, I taught high-school English, and like many teachers, I grew to see students as types that recur over and over again. Alex struck me as the sort who would turn in perfectly competent papers about the assigned book, whether by Hawthorne or Ellison or Salinger, but wouldn’t engage with the text on an emotional level, at least not in the “Dangerous Minds” way that most young teachers want to see. And so I saw in Alex the stereotype of the Asian grade-grubbing machine. His résumé seemed filled with dubious positions: Really, what is the vice president of technology for a National Honor Society chapter?
I don’t say any of this to excuse myself or even say something as banal as “sometimes stereotypes are real.” I would just like to clear the air before we go on much more about Alex Chen, affirmative action and the broken way we talk about race and privilege in this country. The act of reporting on your “own people,” especially for prestigious outlets, requires a certain arrogance and presumption — that because you look like your subject, your perspective carries some revelatory power that might escape a standard, white journalist. I used to believe this was true, but I am no longer so certain.
Like Alex, I am a first-generation Asian-American with two college-educated parents. Unlike Alex, I grew up in majority-white, upper-middle-class college towns that exposed me to all the pathways to success that lay outside pure academic achievement. I spent my early childhood in a graduate-student housing complex just a few blocks from Harvard’s campus, where my father was getting his post-doctorate degree in organic chemistry. My mother made ends meet by babysitting for the children of professors. (In my early 20s, I ended up at the Columbia M.F.A. creative-writing program with the sister of one of these children. Her father was a famous physicist who wrote best-selling novels, and although I never brought up the fact that my mother had changed her sister’s diapers, I’ve thought a lot about how quickly the gap in our backgrounds had been erased.) By the time I graduated from a very good public high school in North Carolina, I could rattle off almost all the other very good high schools across the country, whether St. Mark’s, Isidore Newman, Montgomery Bell Academy, Thomas Jefferson Academy, Harvard-Westlake, Lexington High School or New Trier. By the time I was in my 30s, in a professional world stocked with Ivy Leaguers, I realized that everyone I knew from the D.C. area went to Sidwell Friends or Georgetown Day or Potomac, and everyone I know from Los Angeles went to Harvard-Westlake. Perhaps such distinctions seem trivial in the face of every other type of privilege, but within the context of one Harvard alumnus or alumna interviewing a prospective one, these references can lay out the common ground. What might seem like grade-grubbing ambition in a foreign context gets humanized within familiar spaces.
During that first meeting, I asked Alex if he had ever considered applying for a scholarship at any of New York City’s elite private schools, like Horace Mann, Collegiate or Dalton.
“What are those?” he asked. “Are those schools in the city?”
Which is all to say, if we’re going to see how Alex Chen, who would receive roughly the same credits and debits from affirmative action as I would, measures up, we should at least give an honest accounting of his past.
So here are some more relevant facts: Alex’s father, Qiao, immigrated to the United States in 1994, when he was 21. He grew up in poverty in the countryside of Fujian Province. He describes his hometown as a thoroughly corrupt place where people like him could not get anything done without bribing a local official. When Qiao was 18, his father moved to Flushing, Queens, where he found construction work and began saving up money. Qiao came three years later, after his father secured a green card, and worked in restaurants around Queens and Long Island. He spoke no English, but he enrolled in Queens College, which had an E.S.L. program for international students.
In 2000, Qiao brought his wife, Su, to the United States, and she moved into the basement apartment Qiao shared with his father in Flushing. Qiao saw life in America pragmatically — he acknowledges that he faced discrimination — and it was hard to go anywhere outside C