Abstract

Excerpted From: Harvey Gee, Unprecedented: Asian Americans, Harvard, the University of North Carolina, and the Supreme Court's Striking down of Affirmative Action, 51 UC Law Constitutional Quarterly 187 (Winter 2024) (275 Footnotes) (Full Document)

Asian Americans should not allow others to use our community as a pawn to dismantle the hallmark achievements of the Civil Rights Movement.

Last term, the Supreme Court's conservative Justices effectively ended the use of affirmative action by overturning four decades of precedent. In the historic decision Students for Fair Admissions, Inc. v. President and Fellows of Harvard College Students for Fair Admissions, Inc., Petitioner v. University of North Carolina, et al. (“SFFA v. Harvard”), Asian Americans took center stage as petitioners to advocate against the use of race in Harvard and UNC's admissions processes by claiming that those systems discriminated against them. While novel from the outside, the case was far from unexpected.

Court observers and politically-minded individuals knew that it was only a matter of time before the conservative members of the Court could find the right justification to end affirmative action. Indeed, SFFA v. Harvard did not arrive at the Court through an organic process driven by concerns shared in a majority of the Asian American community. Conservative organizations and donor groups generated capital, found plaintiffs, and organized precursor cases to chip away at affirmative action over several years. Edward Blum, a longtime conservative advocate for colorblindness, led the charge because he believes we are living in a post-racial world where formal discrimination no longer exists, and therefore affirmative action is no longer necessary. His conviction motivated him to found Students For Fair Admissions (SFFA) and work with the Asian American Coalition for Education (AACE), a conservative interest group consisting largely of first-generation wealthy Chinese American immigrants. Together, they contended that universities implemented discriminatory practices against Asian Americans during their admissions processes. But there was more. They also argued that the court should abolish affirmative action not only because it was unnecessary, but also because any consideration of race in university admissions helps Black Americans and Latino Americans while hurting Asian Americans--thus using our community as a wedge group to undermine the interests of other minority groups. The conservative Court seized on these unrelated arguments to achieve its goal of ending affirmative action and upending decades of social justice progress.

This article seeks to put this litigation and the Justices' reasoning in their proper social, historical, and political context, and by reading the ruling closely, we can see that the arguments proffered by affirmative action opponents about the lawsuit were false. In fact, SFFA v. Harvard will perpetuate discrimination and exacerbate unfairness, the inverse outcome these opponents supposedly wanted to prevent. Part I explores how the Court's approach to affirmative action changed from the emergence of the Civil Rights Movement through many of the pivotal affirmative action cases, like University of California v. Bakke and Grutter v. Bollinger, which defined how the Court applied the strict scrutiny standard to evaluate potential instances of racial discrimination prior to the 2010s. Part II then seeks to contextualize the struggle over the role of affirmative action within the Asian American community. It delves into two core mythologies that haunt these discussions--the Perpetual Foreigner Myth and the Model Minority Myth, which preserve and even strengthen the current racial hierarchy with Whites at the top, Asian Americans in the middle, and Latino and Black Americans near the bottom. Readers need a basic understanding of these mythologies because Part III focuses on Fisher v. University of Texas: a case that illustrates how activists and one dubiously sympathetic Justice would later tokenize Asian Americans in their efforts to dismantle affirmative action. These feigned concerns for Asian Americans is a way to limit admissions to other racial minorities and admit more Whites under the guise of race-neutral admissions policies. Part IV dives into SFFA v. Harvard itself to show how the Court discarded affirmative action precedent and the arguments the dissenting Justices deployed to point out the decision's weaknesses. Finally, the article ends by advocating for interracial solidatry to resist further attacks on the hallmark achievements of the Civil Rights Movement.

[. . .]

Justice Ginsburg once wrote: “It is well documented that conscious and unconscious race bias, even rank discrimination based on race, remain alive in our land, impeding realization of our highest values and ideals.” This statement is as true today as when she wrote it in her Grutter concurrence, in which she diligently documented the constitutional precedents that the Court would end in SFFA v. Harvard. Almost thirty-five years after Bakke, and as evident in SFFA v. Harvard, Asian American communities continue to debate and disagree about affirmative action. While there is more work still needed, Asian Americans have also taken and will continue to take action in to support affirmative action and participated in solidarity efforts.

Regardless of what the Court may think, Asian Americans remain underrepresented. Sotomayor acknowledged as much when she wrote in her dissent that “[t]here is no question that the Asian American community continues to struggle against potent and dehumanizing stereotypes in our society.” For example, many Asian Americans who do experience success climbing the corporate ladder still encounter discrimination through subconscious biases and racial preferences. The Pew Research Center reported that 50% of Whites held subconscious preferences for other Whites over Asians, the highest level of implicit racial preference tracked. Furthermore, non-Asians subject Asian Americans to racial stereotypes, and ridicule Asian Americans as passive individuals who lack leadership skills, resulting in glass-ceilings, blocking their path to the highest professional tiers of elected bodies, corporate boardrooms, and mainstream media. Many still perceive Asian Americans as intelligent and industrious yet quiet, introverted, and lacking interpersonal skills and charm. The Court deliberately ignored these realities to pursue a colorblind ideal to advance the interests of whiteness and honorary whiteness.

This article has hopefully demonstrated that limiting to race relations to an outmoded Black/White binary fails to address important issues concerning other racial groups in a constructive manner. Color-blindness is an inadequate social and legal policy, so in a post-SFFA world, racial justice advocates will need to look for new ways to advance our cause. For example, the Affirmative Action Initiative from 1996 banned the consideration of race by state universities in California. The legislation initially resulting in a significant drop in the admission rates of Black and Latino American freshman applicants at UC Berkeley and UCLA. In 1998, Asian American admission rates significantly declined at five of the eight University of California campuses. Today, Asian Americans currently represent 42% of the student body at UC Berkeley. We should give more attention to what the UCs may be doing right and also learn from what they're doing wrong so that we can continue to expand access to higher education for all.

But no matter what comes next, one thing is clear: we must work together to resist the fallacy of color-blindness and protect the achievements of the Civil Rights Movement. When (not if) we successfully build a true meritocracy grounded in equity, then no racial group will have to choose one color over another to access the powers and privileges of higher education.

The author is an Attorney in San Francisco. He previously served as an attorney with the San Jose City Attorney's Office, Office of the Federal Public Defender in Las Vegas and Pittsburgh, and the Federal Defenders of the Middle District of Georgia.