Abstract

Excerpted From: Vinay Harpalani, “Bait-and-switch”: How Asian Americans Were Weaponized to Dismantle Affirmative Action, 71 Drake Law Review 323 (2024) (163 Footnotes) (Full Document)

As the U.S. Supreme Court struck down affirmative action in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA v. Harvard), the Asian American plaintiffs suing Harvard occupied a peculiar role within the case. They were at the forefront of the litigation early on, but their role subsided and was only in the background of the Supreme Court's ultimate ruling. Moreover, the use of Asian Americans in this manner was a deliberate strategy by Students for Fair Admissions (SFFA). SFFA structured its litigation as a “bait-and-switch,” where it combined a weak intentional discrimination claim that centered on Asian Americans with a challenge to race-conscious university admissions writ large.

This was a combined legal and political strategy. At the outset, SFFA attempted to create sympathy for Asian Americans, a group that has historically faced racial discrimination in stereotyping. Its claim that Asian Americans faced intentional discrimination in admissions vis-à-vis White Americans (“negative action”) garnered significant attention. But to extent that any such intentional discrimination exists, SFFA's litigation was never going to stop it, or even stop unconscious racism and implicit bias against Asian Americans. Rather, SFFA's real goal was always to stop Harvard from using race-conscious admissions policies (“affirmative action”) that predominantly benefited underrepresented groups-- Black, Latina and Latino, and Native Americans. Asian Americans were mere pawns in this strategy.

In this Article, I discuss how SFFA employed its bait-and-switch strategy, and how its strategy used Asian Americans. I focus on SFFA v. Harvard, rather than the companion case, Students for Fair Admissions Inc. v. University of North Carolina (SFFA v. UNC), which received much less attention in the lower court litigation. My argument is that Asian Americans started at the center of the SFFA v. Harvard litigation but were eventually moved to the periphery, with their major concerns going unaddressed by the Supreme Court. Part II examines the bait-and-switch by SFFA, both conceptually and concretely. First, Part II.A lays out the distinction between negative action and affirmative action, giving a brief history of each. This sets the backdrop to analyze SFFA's litigation strategy. Next, Part II.B discusses the initial Harvard litigation, where SFFA employed its negative action claim, which had always had little chance of success, to advance an affirmative action challenge, which had a much greater chance of success at the U.S. Supreme Court. Subsequently, Part II.C examines the rulings and later litigation in SFFA v. Harvard from the district court through the Supreme Court, highlighting how the role of Asian Americans diminished as the case progressed. At the Supreme Court, the Justices' conservative bend essentially predetermined the ruling. The conclusion considers the broader implications of this analysis, as Asian American plaintiffs continued to be used in challenges to racial diversity and equity policies in admissions and other educational realms.

[. . .]

The bait-and-switch in SFFA v. Harvard was only one step in the exploitation of Asian Americans. We are caught in a war on racial diversity and equity in education, often pitted against other groups of color such as Black, Latina and Latino, and Native Americans. While this is not a new phenomenon, it became much more visible with SFFA v. Harvard and we should take that as a call to action. We have been weaponized to serve a conservative agenda and this weaponization is far from over.

The next battlefields are standardized tests and magnet high school admissions. These controversies present a larger dilemma than SFFA v. Harvard, as some of them have involved more overt racism and the exclusion of Asian Americans from important decision-making. Part of the reason that Asian Americans have been weaponized is that social justice advocates have long ignored, or minimized the possibility of, negative action in admissions, and they have neglected the backlash to Asian American educational success more generally. But despite this neglect, Asian Americans must still recognize the bait-and-switch that happened in SFFA v. Harvard--a case that featured discrimination against Asian Americans but did not result in any mandate to address negative action or ALDC preferences that it highlighted at the outset. All social justice advocates should recognize and work to eliminate any kind of animus or bias against Asian Americans. But Asian Americans should not allow ourselves to be used to dismantle racial equity and diversity initiatives. And although it may sometimes require us to look “beyond self-interest” in the immediate sense, racial equity and diversity benefit all Asian Americans--and all Americans--in the long term.

Copyright © 2024 by Vinay Harpalani, Don L. and Mabel F. Dickason Endowed Chair in Law and Professor of Law, University of New Mexico School of Law. Visiting Professor, Boston University School of Law (Spring 2024). J.D., New York University School of Law, 2009; Ph.D., University of Pennsylvania, 2005.