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Excerpted From: Vinay Harpalani, Asian Americans, Racial Stereotypes, and Elite University Admissions, 102 Boston University Law Review 233 (February, 2022) (525 Footnotes) (Full Document)

VinayHarpalaniAdmission to elite universities is a highly contested issue--not only because it creates competition between excellent students but also because it implicates charged social and political issues such as race. Affirmative action in higher education is a paradigmatic example of how American racial ideology pits different racial groups against each other. This involves not only conflicts between White Americans and particular minority groups, but also among different minority groups--especially conflicts involving Asian Americans and other people of color.

Such conflicts have long permeated the affirmative action debate. But these conflicts have recently become more prominent, due in large part to the work of the anti-affirmative action organization, Students for Fair Admissions (“SFFA”). SFFA has filed lawsuits challenging race-conscious admissions policies at several universities, including Harvard University, the University of North Carolina at Chapel Hill (“UNC Chapel Hill”), Yale University, and the University of Texas at Austin (“UT Austin”). for Fair Admissions, Inc. v. President & Fellows of Harvard College (“the Harvard case”) has gained the most attention thus far. While past challenges to race-conscious university admissions have typically involved White applicants, the Harvard case is different because it includes Asian American plaintiffs. SFFA's arguments have focused mostly on the treatment of Asian Americans in the admissions process and in other university activities.

SFFA lost its case against Harvard at the U.S. District Court of Massachusetts and at the U.S. Court of Appeals for the First Circuit and appealed to the U.S. Supreme Court. The Court granted SFFA's petition for a writ of certiorari on January 24, 2022. In the next year or so, the Supreme Court could rule that race-conscious admissions policies are unconstitutional. And given the conservative make-up of the Court, this would be the likely outcome. Moreover, SFFA's litigation strategy of using Asian American plaintiffs has broad implications--not only for affirmative action, but also for racial equity in education and racial justice in America.

While the Supreme Court could end affirmative action with the Harvard case, the legal questions implicated in the case are not novel. The case rehashes frameworks for the constitutionality of race-conscious policies that have already been established and refined. However, the social and political dynamics of the case have immense consequences for relations between different racial groups. At elite universities, admitted Asian Americans have indisputably attained higher standardized test scores and grades than all other groups, including White Americans. Although Asian Americans are well represented at these institutions, the possibility or perception that they face discrimination in admissions is of great concern to many in the Asian American community. And while many Asian American organizations have historically taken a stance in support of affirmative action, a growing number of such organizations have come out in opposition to race-conscious university admissions in recent years.

Consequently, the Harvard case has sparked various racial and ethnic divisions. It has created internal conflict among Asian Americans--who are not a monolithic group themselves--and it has also pitted Asian Americans against other minority groups. Divisions between these groups--all of whom should have an interest in dismantling White privilege and supremacy--would undermine racial justice. In that vein, it is important to distinguish challenges to affirmative action to benefit underrepresented groups, such as Black and Latina/o Americans, from claims of discrimination against Asian Americans in favor of White Americans. Antiracist initiatives can then both defend affirmative action and address Asian Americans' concerns.

This Article aims to make those two goals--defending affirmative action and addressing Asian Americans' concerns--compatible in theory and in practice. It counters SFFA's project by addressing the legitimate concerns about discrimination in university admissions against Asian Americans. It also argues that Asian Americans should emphatically support affirmative action. The Article pursues these dual goals by showing how various racial stereotypes of Asian Americans permeate the allegations of discrimination against them and how those stereotypes are part of a broader racial ideology that pits minority groups against each other. It argues that breaking down this ideology requires vigorous support for affirmative action and active opposition to negative action.

This Article adds to analyses of the Harvard case and the broader discourse on Asian Americans and university admissions in three major ways. First, it goes beyond the “model minority” stereotype of Asian Americans--the idea that Asian Americans are high academic achievers because of their work ethic and that other groups should follow in their footsteps. The model minority stereotype is important, but it is only one of the stereotypes that should be part of the conversation. The “perpetual foreigner” stereotype--the idea that Asian Americans do not belong in the United States and remain tied to their ancestral homelands no matter how long or for how many generations they have lived in the United States also necessary for understanding the positioning of Asian Americans in controversies surrounding university admissions. Moreover, the model minority and perpetual foreigner stereotypes intersect through further tropes which influence how Asian Americans view elite university admissions. All of these factors complicate the role of racial stereotypes in the affirmative action debate.

Second, this Article expands on the concept and implications of “negative action” against Asian Americans in admissions specifically in favor of White Americans. The Harvard case has attempted to link negative action with “affirmative action”--race-conscious admissions policies intended to increase the enrollment of Black, Latina/o, Native American, and other underrepresented applicants. Several scholars have argued convincingly that negative action--in the form of a “White bonus”--accounts for any discrimination that occurs against Asian Americans. Nevertheless, the historical and political context for allegations of negative action is also important and merits a more in-depth analysis. This context is particularly informative for assessing how Asian Americans view elite university admissions and approach the application process for these institutions. Allegations of negative action also have implications beyond the affirmative action debate. The divisions they create could pit Asian Americans against other people of color in other education and admissions debates, such as those concerning standardized testing--which is a pipeline to elite high school and university admissions.

Third, building from its analysis of racial stereotypes and broader view of affirmative action, this Article focuses specifically on the racial positioning and experiences of Asian Americans. It brings the rich and pioneering work of Asian American Studies into the legal academic conversation on affirmative action and negative action. Historians, political scientists, and theorists such as Claire Jean Kim, Michael Omi, Gary Okihiro, Vijay Prashad, Ronald Takaki, and Ellen Wu contribute valuable perspectives that illustrate how Asian Americans fit into American racial ideology and contemporary debates on charged issues such as affirmative action. Additionally, sociologists such as Grace Kao, Jennifer Lee, Min Zhou, Julie Park, and Sapna Cheryan have contributed empirical studies that focus on the tangible experiences of Asian American students. These perspectives bring new insights to the analysis of the Harvard case. They supplement legal analyses by illuminating the historical and social forces around the case. This Article also builds on the work of the limited but important legal scholarship that has engaged Asian American Studies, and thus it expands the burgeoning field of Asian American jurisprudence and Critical Race Theory.

Part I discusses stereotypes of Asian Americans, focusing on how they play into debates about elite admissions. It gives a historical overview of the model minority and perpetual foreigner stereotypes, and it relates these to the more specific stereotypes of Asian Americans that permeate admissions debates: “peril of the mind” and “passive nerd.” Part II examines the history of Asian Americans in debates about elite admissions. It distinguishes between affirmative action and negative action, and then it delves into allegations of negative action in the 1980s, as Asian Americans became more visible on elite college campuses. This Part also traces how negative action became tied to affirmative action. Part III analyzes the Harvard case, focusing on allegations of negative action and the weaponization of Asian Americans to attack affirmative action. This Part delves into the arguments that SFFA has made, the evidence that came out in the case, the courts' analysis of this evidence, and the broader discourse around the case. It also considers how Asian Americans and other people of color might be similarly pitted against each other in debates over standardized testing. Part IV proposes ways to combat this divide. This Part considers how American racial ideology has pitted Asian Americans against other minority groups, through a process of “racial triangulation” and the weaponization of the model minority stereotype. It discusses challenges faced by Asian Americans that are often masked by the model minority stereotype and the importance of recognizing and addressing those challenges. This Part also discusses ways to address overt and implicit bias against Asian Americans, increase Asian Americans' race-consciousness, and incorporate Asian Americans' perspectives more into discourse on American racism. This involves recognition of the weaponization of Asian Americans against other groups of people of color and understanding of the experiences that Asian Americans have with racial stereotyping and xenophobia.

[. . .]

The Harvard case illustrates how Asian Americans fit into the complex ideology of American racism. For the past four decades, conservative activists have sought to link affirmative action that benefits Black, Latina/o, and Native Americans with negative action that discriminates against Asian Americans. SFFA's lawsuits are the culmination of that strategy: they represent a broad project that can pit different minority groups against each other. The political consequences of doing so could be devastating for racial equity.

In spite of the efforts of SFFA and other conservative organizations, 70% of Asian Americans support affirmative action. Many Asian Americans recognize that they are well represented at elite universities, and that race-conscious admissions policies have a very small impact on their representation. Asian American scholars and activists have argued that their immediate self-interest should not be the main consideration for issues such as affirmative action and racial equity.

However, support for affirmative action varies by ethnic group and other factors. Chinese Americans in particular are more likely to oppose affirmative action; some Chinese Americans have vocally opposed affirmative action on social media platforms such as WeChat. Rank-and-file Asian Americans are more divided than civil rights organizations, and there are a growing number of Asian American organizations that have taken stances against affirmative action.

Consequently, Asian Americans and all people of color should recognize the commonality of their struggles and the synergy of their social movements. Even Asian American opponents of affirmative action see some of these common struggles--unlike their White counterparts, they largely agree that racism is a significant problem in America. And there can also be common ground in building solutions. It is no coincidence that in the 1960s, as America grappled with domestic and global changes, civil rights advances for Black Americans coincided with the expansion of immigration from Asia. Throughout American history, Black and Asian American antiracist movements have long drawn upon each other to support a variety of causes, from combatting racist violence to fighting for ethnic studies programs on college campuses. Public attention to the oppression of one group emboldens other groups to fight. In the past year, Stop AAPI Hate has gained momentum because the Black Lives Matter movement brought public attention to racial violence and demanded action against it. Even subtler issues, such as combatting racial stereotyping and implicit bias through trainings and education, are common ground for all people of color and more generally for everyone interested in racial equity and justice.

SFFA's lawsuits are an immediate threat to unity among people of color. But they also afford the opportunity to raise race-consciousness among Asian Americans and to educate all groups about American racial ideology and hierarchy. Asian Americans have a large role to play here, but all advocates for racial justice and equity have to understand where Asian Americans are coming from. The inclusion of Asian Americans' history and perspectives in the affirmative action and negative action debates, and their positioning in America's racial hierarchy more generally, should be a significant part of any conversation on American racism. This process can help to build robust coalitions among people of color, and it can turn SFFA's racial project on its head.

Henry Weihofen Professor and Associate Professor of Law, University of New Mexico School of Law. J.D., New York University School of Law, 2009; Ph.D., University of Pennsylvania, 2005.

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