May 13, 2023
Asian Americans and the Bait-and-Switch Attack on Affirmative Action
Lee and Leon Karelitz Chair in Evidence and Procedure, Professor of Law, University of New Mexico School of Law
This piece is part of a blog series highlighting key legal issues facing Asian American and Pacific Islander communities.
As the U.S. Supreme Court considers challenges to affirmative action at Harvard and the University of North Carolina at Chapel Hill, Asian Americans find ourselves in a precarious position. Students for Fair Admissions (SFFA), the organization bringing these challenges, operates deceptively. At the outset of the cases, it contended that “a 2013 U.S. Supreme Court decision essentially forbids [race-conscious admissions policies].” But SFFA founder Edward Blum, a longtime foe of affirmative action, himself orchestrated the litigation in Fisher v. Texas I (2013) and Fisher II (2016). The Fisher cases resulted in the Supreme Court upholding affirmative action, and Blum even expressed disappointment in the Fisher ruling. That is why SFFA brought the current lawsuits. For the Harvard case, SFFA uses a bait-and-switch strategy with Asian Americans as plaintiffs by deliberately conflating two distinct concepts: “negative action” and affirmative action.
Although Asian Americans are well represented at Harvard, SFFA contends that the university wants to limit our enrollment. There is a history to such claims. As our numbers increased at selective schools, some White students and administrators viewed Asian Americans as overly competitive and feared that elite campuses would look “too foreign.” Harvard denies intentionally engaging in such discrimination; thus the burden fell on SFFA to prove it. Doing so is very difficult and implicates a line of Supreme Court cases, including Washington v. Davis (1976), Village of Arlington Heights v. Metropolitan Housing Development Corporation (1977), and Personnel Administrator v. Feeney (1979). Even if Harvard discriminates against Asian Americans, the prospects for winning this claim were always dim.
In contrast, affirmative action refers to policies such as race-conscious admissions that tend to benefit underrepresented groups. Harvard admits to using race-conscious admissions policies, so SFFA does not have to prove intent. This implicates a different line of cases: Regents of the University of California v. Bakke (1978), Grutter v. Bollinger (2003), and Fisher I and II. The burden falls on Harvard to show its admissions policy satisfies strict scrutiny. Harvard has the difficult task here, particularly with a Supreme Court that is quite hostile to affirmative action.
SFFA’s bait-and-switch began with its first claim against Harvard, which focused entirely on negative action. Using statistical models, SFFA highlighted the higher academic credentials of admitted Asian American applicants compared to admitted White applicants. It noted how over 40 percent of White undergraduates at Harvard received admissions preferences for athletes or children of alumni, donors, and faculty/staff. Asian Americans had the lowest representation in these categories, which have a much larger impact on their admissions numbers than affirmative action. SFFA pointed to racist comments against Asian Americans by a Harvard alum, and it noted the Harvard administration’s blasé response to these comments. It also cherrypicked comments from admissions files which seemed to stereotype Asian Americans as passive and socially-inept stereotypes that many of us have experienced. And SFFA furthered this claim by showing that Asian Americans were rated lower than all other applicants on Harvard’s personal rating—a score that assesses leadership ability, social skills such as humor, and other desirable personality traits.
While these findings are problematic, none of them prove intentional discrimination. SFFA’s negative action claim was doomed from the start. But this claim was an integral part of SFFA’s litigation strategy. It provided the “bait” to make Asian Americans the focus of the Harvard case. And SFFA’s second claim—an attack on affirmative action—was the “switch.”
SFFA’s second claim did not focus on Asian Americans. Rather, it contended that Harvard violated the guidelines for affirmative action laid out in Grutter and Fisher. Those guidelines, developed by Justices who were very ambivalent towards affirmative action, are vague enough to invite such challenges. As a remedy, SFFA wanted universities to remove from applications any information that would identify an applicant’s race. Doing so could address negative action, but it would also eliminate affirmative action.
The U.S. District Court for the District of Massachusetts ruled for Harvard on both claims. SFFA did not prove intentional discrimination against Asian Americans, and Harvard also demonstrated that its race-conscious admissions policy was consistent with Grutter and Fisher. But in evaluating the statistical models, the district court noted that Harvard did not fully explain the difference between White and Asian American applicants’ personal ratings. The court suggested that implicit bias—a form of unconscious racism—might be responsible.
Unlike intentional discrimination, implicit bias is not legally actionable. Nevertheless, SFFA seized upon this finding on appeal. It argued that Harvard bore the burden to explain the lower personal rating scores of Asian American applicants—an argument inconsistent with the Washington v. Davis line of cases. The U.S. Court of Appeals for the First Circuit rejected those arguments and affirmed the district court ruling. But the Supreme Court then granted SFFA’s petition for a writ of certiorari.
At the Supreme Court, SFFA’s bait-and-switch strategy became fully visible. It argued that the Court should overrule Grutter altogether. The claim of discrimination against Asian Americans was at the forefront of the district court case, but that now only played a small part. SFFA retreated from its proposed remedy of eliminating all references to race from applications, conceding that race could be revealed in applicants’ essays. It thus eschewed its own proposal for preventing negative action and focused mostly on striking down affirmative action. And unfortunately, most observers think that SFFA will prevail.
Nevertheless, Asian Americans should recognize SFFA’s bait-and-switch. Negative action is different from affirmative action. Asian Americans are stereotyped as socially inept, and we are viewed as a foreign threat because of our academic success. These are aspects of White supremacy, and even if Asian Americans are well represented at elite universities, civil rights advocates should acknowledge and address any negative action that occurs. But Asian Americans should also advocate for inclusion of underrepresented groups. Otherwise, we become mere pawns in a war against racial diversity and equity. And this war is far from over.
I thank Professor Jonathan Feingold of Boston University School of Law for his helpful feedback on this blog post.
Vinay Harpalani is a Professor of Law and the Lee and Leon Karelitz Chair in Evidence and Procedure at the University of New Mexico School of Law. His scholarship focuses on the intersections between race, education, and law, as he explores the nuances of racial diversity and identity from various disciplinary perspectives.