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,…
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