Abstract

Excerpted From: Anna Nguyen, Asian Americans: Pawns to Negate Affirmative Action, 25 Loyola Journal of Public Interest Law 60 (Fall, 2023) (239 Footnotes) (Full Document Requested)

“Harvard Rated Asian-American Applicants Lower on Personality Traits.”

“Does Harvard Really Discriminate Against Asian American Students?”

“Harvard should apologize to Asian Americans today.”

These are just a few of the many headlines that sensationalized a Supreme Court case brought by a conservative group that used Asian Americans as a pawn to overturn precedent upholding the consideration of race in college admissions after failing to do so with a white plaintiff.

Twenty years ago, the Supreme Court recognized that “'the nation's future depend[ed] upon leaders trained through wide exposure’ to ideas and mores of students as diverse as this nation.” Affirmative action refers to action taken in order to increase employment or educational opportunities for women and minorities. In 1978, the Supreme Court recognized that universities could consider race as one factor of many in admissions programs because they had a compelling interest in the educational benefits of a diverse student body. For the next forty-five years, the Supreme Court continued to uphold precedent that affirmed the constitutionality of narrowly tailored race conscious admissions programs. However, critics of affirmative action argued that admissions programs were a form of reverse discrimination and were thus unconstitutional.

Edward Blum is a conservative activist who crafted over two dozen lawsuits in an effort to overturn affirmative action and voting rights laws. After failing to overturn affirmative action in Fisher v. University of Texas at Austin, Blum formed Students for Fair Admissions (SFFA) to facilitate litigation with the continued purpose of overturning precedent upholding affirmative action. Edward Blum and SFFA's decades-long crusade culminated in their use of Asian Americans as pawns to overturn affirmative action under the guise of advocating for Asian Americans. Blum and SFFA's use of Asian Americans as the plaintiffs in Students for Fair Admissions v. Harvard reaffirmed the model minority stereotype which has and will further drive a racial wedge between Asians and other minorities. The model minority stereotype functions to discredit the need for affirmative action in university admissions by asserting that Asians have been victims of discrimination and yet they are high achieving. Blum and SFFA argued that Universities were discriminating against Asians, despite their being high achievers, and were giving preference to Black or Latinx applicants, limiting the Asian admissions. This argument prevailed in the Supreme Court, and the Court deemed unconstitutional the consideration of race in any college admissions program. A prohibition on race-conscious admissions program would decimate the number of Black, Latinx, and Native American admits, and any race-neutral alternative would not adequately restore these college populations to their previous percentages.

Following the introduction in Section I, Section II of this Comment provides the jurisprudential framework of affirmative action. Section III explains how Asians in the United States transformed from being depicted as dirty, lazy, and immoral to becoming the model minority, providing context for Section IV. Section IV explains how the SFFA used Asians and the model minority stereotype as pawns to ban affirmative action. Next, Section V provides information on which states have banned affirmative action and the consequences of such bans. Nexts, in Section VI, this Comment argues that the Supreme Court erred in overturning precedent upholding affirmative action. Finally, Section VII presents several race-neutral alternatives to affirmative action that may be implemented to mitigate the effect that a ban on race-conscious admissions programs would have on the number of underrepresented minority students admitted.

[. . .]

As discussed above, affirmative action is necessary to attain the benefits of a diverse student body. Higher education is characterized by a free flow of ideas in which students are exposed to a wide array of viewpoints. Eliminating the limited consideration of race in admissions will detrimentally affect the future leaders of this nation by narrowing their exposure to diverse peers. The Supreme Court erred in its decision to ban the limited consideration of race in admissions programs.

Several race-neutral alternatives may mitigate the effects of a prohibition of affirmative action on the racial composition of a student body. Recognizing that there is nothing more effective in achieving student body diversity than a race-conscious admissions program, outreach and recruitment, top percent plans, and dropping legacy preferences are all race-neutral alternatives that have shown some limited positive results in increasing the number of underrepresented minorities following bans on affirmative action. Holistic review is the most promising race-neutral alternative that may mitigate the effects of a ban on affirmative action.

Anna is a J.D. Candidate for the class of 2024 at Loyola University New Orleans College of Law.