As an Asian American graduate of Harvard University and a Constitutional law professor, I’ve been repeatedly asked about my thoughts on the affirmative action lawsuit (SFFA v. Harvard). The short answer is that I’m deeply conflicted; the longer answer is that I believe affirmative action is good public policy in a multiracial country, but that the justices got race wrong in a fundamental way—on both the left and the right wing of the court.
The case centered on whether the Constitution’s equal protection clause permits the use of race as a factor in college admissions. The ruling—outlined by Chief Justice John Roberts—decided that race can no longer be used for this purpose because favoring racial minorities disfavors the racial majority, while the dissent argued that affirmative action is essential to remedying past discrimination against these same groups. But both opinions adopted a flawed understanding of race—especially for Asian Americans.
Both interpretations match a pattern in U.S. Constitutional law, which typically conceives of race as something you can see: essentially, skin color. From Reconstruction to the civil rights era, the law has specifically focused on fairness between Black and white people, even though racial demographics have since shifted. The Black/white binary was stretched as other racial groups became more pronounced.
Even before the landmark decision Brown v. Board of Education ordered the desegregation of classrooms for Black students in the south, there were Latino students segregated in Texas classrooms (Hernandez v. Texas). Chinese students sat isolated in classrooms designed for disabled children due to their inability to understand English instruction in San Francisco’s Chinatown (Lau v. Nichols). In these moments, students of other races benefitted from the stretching coverage of laws originally designed to protect Black students.
But in other cases, the binary contracted, as when the Supreme Court prevented Japanese and Indian people from being able to obtain naturalized citizenship (Ozawa v. U.S.). Evidently, Asians were not white enough to escape discrimination, but neither were they Black enough to benefit from anti-discrimination laws.
Evidently, Asians were not white enough to escape discrimination, but neither were they Black enough to benefit from anti-discrimination laws.
The Black/white binary stretched beyond its breaking point with the Asian American plaintiffs in SFFA v. Harvard. Neither the conservative nor the liberal justices knew how the race laws should apply to the Asian American plaintiffs.
The majority opinions place Asian Americans with whites in the racial binary. They prefer to see race as something experienced symmetrically across Black and white categories, such that fairness requires admission policies that treat both groups the same way: by not taking race into account. But hiding race would not protect Asian American students from race conscious policies.
The opinions from Justices Neil Gorsuch and Clarence Thomas suggest Harvard’s policies used race as a “negative” against Asians because it operates on the stereotype of Asian Americans as academically successful, model minorities. Why is seeing Asian Americans in a positive light a negative? For one, it lumps together racial experiences of a vaguely demarcated group at the risk of missing individual experiences.
Justice Ketanji Brown Jackson also stuck to the Black/white binary in her dissent. She described the Fourteenth Amendment as a direct rebuke of enslaving Black persons and defined the purpose of affirmative action as remedying its continuing harms, such as the disparities in access to quality public schools for many Black students. She implies that race conscious anti-discrimination laws stop short of protecting white students and also Asian American students.
Justice Sonya Sotomayor’s dissent reinforces the Black/white binary, but she places Asian American students with Black students. “There is no question that the Asian American community,” she wrote, “continues to struggle against potent and dehumanizing stereotypes in our society.” Without directly addressing whether Harvard engaged in such stereotyping, Sotomayor concluded that Asian American students’ negative experiences are similar to that of Black students and so they would benefit from the same legal protections.
The conception of race as a struggle between Black and white is too simple. It makes Brown a victory over earlier laws that permitted racial segregation, such as the infamous Plessy v. Ferguson, which upheld de jure racial segregation against Black persons. Asians are not white (as Jackson implies), but they are also not Black (as Sotomayor implies). Asians have a unique history in the racial landscape of America that positions them in a more favorable position than other minority groups for some dimensions and a less favorable position for others, a phenomenon Professor Claire Jean Kim calls racial triangulation.
Asians have a unique history in the racial landscape of America that positions them in a more favorable position than other minority groups for some dimensions and a less favorable position for others.
Some view the academic performance of Asian American students as evidence that they rank higher in the racial hierarchy than other minority groups. But in addition to overlooking divergent trajectories within the Asian American experience, scholars say that seeing Asian Americans as a model minority renders them a threat to the white majority. This view links being a model minority with the historical exclusion of Asian Americans. Asian Americans were excluded and interned because they were seen to be an economic and a national security threat. Thus, limiting Asian Americans as model minorities in higher education feeds the problematic narrative of Asian Americans as a yellow peril during earlier eras.
Even when celebrated, Asian Americans can be painted as outsiders to American mainstream culture. While I am grateful for the opportunities that flowed from a Harvard degree, as a student, carving out a space for myself in the Ivy League as an Asian American woman with a foreign surname sharply contrasted the experience of classmates who belonged in the proverbial old boys’ club. The fact that I was unfamiliar with Harvard tradition reminds me of another stereotype in the SFFA opinion: that Asian Americans are “perpetual foreigners.”
To be honest, I am not sure if affirmative action has helped or hurt my individual chances when I’ve applied to a string of schools, scholarships, and jobs that I’ve sometimes been granted and other times denied. I’m also not sure if it helped or hurt the Asian American plaintiffs in SFFA v. Harvard. The court doesn’t tell us because that fact was not central to the crux of the case.
Harvard may have erred by taking “negative action” against Asian Americans in its reliance on personal ratings from alumni interviewers, notwithstanding the conflicted district court record, but the ruling doesn’t address that. If indeed Harvard had lowered the personal ratings for Asian American applicants, it would have been garden variety racial discrimination. A better solution would’ve been to end the personal rating system, not ending affirmative action.
The Supreme Court presents a false choice by suggesting that affirmative action hurts white students while helping their Black counterparts. I believe it’s possible to uphold race conscious affirmative action in a way that acknowledges that racial diversity has changed. This multiracial America includes Black, white, Asian American, Latino, Native American, and other students.
The justices’ inability to understand Asian American diversity reveals a major problem with the law. They need to catch up to the personal stories of students living in multiracial campuses. Doing so will require more than a return to the laws preceding SFFA v. Harvard; it will require a fundamental re-envisioning of race and a reckoning with how it continues to change.