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Excerpted From: Joseph D. G. Castro, Not White Enough, Not Black Enough: Reimagining Affirmative Action Jurisprudence in Law School Admissions Through a Filipino-American Paradigm, 49 Pepperdine Law Review 195 (January 2022) (279 Footnotes) (Full Document)

JosephCastroOn Ferdinand Magellan's 1520 expedition sailing from Spain on a westward route to the Americas, Magellan chanced upon an archipelago that would later be claimed for King Phillip II of Spain. The Spanish would proceed to colonize these islands and coalesce the native tribes into a country we now know as the Republic of the Philippines. “Filipino” was an identification reserved for men of Spanish descent born in the colonies. The natives were called “Indios,” inferior brown people of limited intelligence compared to their white European overlords, not unlike the other “Indios” half a world away in the Americas.

Toward the end of the 19th century, a group of men who called themselves “Ilustrados” ignited the Philippine Revolution. These men were nothing more than Indios who, having had the chance to study in Europe, realized that the color of their skin did not make them inferior to their colonial masters. The Ilustrados would take action to educate fellow Indios and fight for independence from the Spanish. Thus, the first Filipinos were reborn--natives who would no longer accept subjugation in their own land. One of the Ilustrados' central figures, José Rizal, inspired a Philippine revolution against Spain and was shot by Spanish colonists for treason. But Rizal's legacy of fighting for equality between the conqueror and the conquered would live on.

This Comment participates in the fight for racial equality in a new context-- affirmative action in law school admissions for United States citizens of all races. It does so in three ways: First, by using the Filipino-American experience, this Comment exposes concealed challenges in current affirmative action jurisprudence by adding sophistication to discussions surrounding race. Second, this Comment argues that the Supreme Court's application of faux strict scrutiny is inherently flawed because of the Court's refusal to challenge the universities' use of broad racial categorizations. Finally, this Comment proposes an alternative to current affirmative action policy that skirts strict scrutiny, attempts to remedy discrimination, and invites individual agency from all Americans.

Part II provides context by discussing the history of affirmative action rooted in the Fourteenth Amendment of the United States Constitution. Section III.A traces the evolution of affirmative action jurisprudence in the higher education context, while Section III.B uses the Filipino-American experience to highlight pervasive practical problems in current affirmative action policy in higher education. Section IV.A argues that the Court's abandonment of strict scrutiny effectively permitted universities to prevaricate in practice, insulating them from any meaningful scrutiny, and Section IV.B asserts that the lack of a limiting principle equates to an unconstitutional grant of complete deference to the universities. Part V proposes an affirmative action policy that eschews the unsolvable challenges of identity embedded in racial preferences and addresses the reality of past and present discrimination. Finally, Part VI summarizes and concludes.

[. . .]

California is one of the most liberal and diverse states in the union. Affirmative action has long been associated with the more progressive Democrats--California's hegemonic party. The 2020 defeat of Proposition 16, a ballot proposition repealing a 1996 popular-vote constitutional amendment prohibiting affirmative action in California, is both surprising and telling.

On the one hand, Proposition 16's defeat is surprising given the overwhelming support of California's democratically elected state and federal officials, along with key players in media, academia, and activism. But on the other hand, it is also telling: there seems to be something inherently repulsive in a judicially permitted equal protection policy that is intuitively unequal. Politicians and the media have profited on race. And while academia smugly pontificates with its own brilliance, its influence dissipates from the height of its ivory tower. I contend the electorate is not racist--but the electorate is deeply misinformed about affirmative action, especially regarding affirmative action's anti-subordination aspect as a remedy for past discrimination. Given the Supreme Court's “Don't Tell, Don't Ask” approach to affirmative action, who can blame them? Affirmative action, which is so closely tied with identity, has never been short on complexity.

This Comment is not a call to end affirmative action. It is a reminder of our national obligation to “engage in constant deliberation and continued reflection” on a subject that intersects diversity and unity--one that invokes our traditional national motto of E Pluribus Unum. It is a call to craft affirmative action policies in a manner that remains grounded in the undeniable reality of past and present discrimination, while providing a state-based solution that promotes both cohesive nation building and individual agency for all Americans. If the goal is to achieve diversity, and racial categorizations are a means to economize search costs to this end, then complications arising from the use of race are not worth their price in a country whose colors extend beyond black and white. Because of the Court's spineless strict scrutiny, we are left in the dark as to whether universities are performing unconstitutional covert racial balancing. We do not have the answers--but if our multiethnic republic's commitment to equal protection of the laws includes groups like Filipino-Americans--we cannot ignore the questions.


J.D. 2022, Pepperdine Caruso School of Law. B.S. 2010, Ateneo de Manila University.

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