During last October’s oral arguments in the supreme court’s affirmative action cases, Justice John Roberts interrupted Harvard’s lawyer, Seth Waxman, to ask: “Isn’t that what the case is about, the discrimination against Asian Americans?”
In a word, no.
The decisions in the twin cases filed against Harvard and the University of North Carolina did not turn significantly on the alleged harms done to Asian Americans, but rather on how the justices interpreted the equal protection clause of the 14th amendment.
Instead Asian Americans – who, in the American racial hierarchy, have always been placed between complicity and justice – were mainly there for display, as mostly white lawyers on both sides Asiansplained their history and positions to the court.
After failing in their 2015 case Fisher v University of Texas to end affirmative action, calling it discriminatory against whites, Ed Blum and his former plaintiff, a white woman named Abigail Fisher, co-founded a group they called Students for Fair Admissions (SFFA). They pivoted to highlighting Asian American plaintiffs, gambling correctly that the court would be more likely to accept that a historically excluded minority group had been discriminated against by affirmative action.
They adopted the tactics, methods, and even some of the arguments of pro-affirmative action Asian Americans who had been fighting universities for decades. They tapped into a network of conservative Asian American activists, funded and supported by groups like the Pacific Legal Foundation, a conservative thinktank. Mike Yukong Zhao and his Asian American Coalition for Education mobilized immigrant parents for demonstrations on WeChat. These efforts were furthered by waves of disinformation.
But in order to win at court, SFFA deployed some stage trickery – disappearing Asian Americans at just the right moment. From the district court to the supreme court, SFFA produced exactly zero students and Asian Americans to testify. Even after forcing Harvard to turn over nearly 100,000 pages of documents, they could not produce a single individual case of discrimination.
Harvard introduced four students, two of whom were Asian American. Sally Chen, a low-income, first-generation Chinese immigrant student accepted in 2015, testified that she was accepted amid a vast pool of valedictorians with perfect SATs and 4.5 GPAs only because of the school’s holistic admissions process. She was able to tell her story, be seen, and valued. Judge Sotomayor noted this in her dissent, writing: “At bottom, race-conscious admissions benefit all students, including racial minorities. That includes the Asian American community.”
SFFA stacked its legal team with former clerks of Judge Clarence Thomas. Then it gave its case gravitas with a blinkered history of anti-Asian discrimination that ignored everything after the 1940s. Thomas later included this version of events in his concurring opinion.
He added: “Given the history of discrimination against Asian Americans, especially their history with segregated schools, it seems particularly incongruous to suggest that a past history of segregationist policies toward blacks should be remedied at the expense of Asian American college applicants.”
But when Asian Americans first brought complaints of exclusion to the universities like Harvard, the University of California at Berkeley, Brown, Stanford and UCLA in the 1980s, they did not see a zero-sum game of competing oppressions – just more of the same racist exclusion that had affected Blacks and Asians alike. They felt they were exposing the lies of colorblind merit and colorblind meritocracy.
In 1983, Asian American Ivy League students, including Harvard students who had worked in their school’s admissions office, wrote a damning expose of implicit bias in the institutions’ practices: “We feel that some admissions officers think all Asian Americans are passive – or should be. So they penalize those who do not conform to their racist stereotypes.”
Forty years later, university lawyers could not offer satisfactory explanations for why Asian Americans still scored lower on personal ratings than other groups. Harvard claimed those scores had no impact on final admissions decisions, but this defense did them no favors with skeptical Asian Americans who had not forgotten.
Worse, Harvard claimed that discrimination against Asian Americans had never been proven in court, a cynical bit of sophistry. And hundreds of pro-affirmative action Asian American civil rights lawyers, scholars and non-profit professionals signed briefs that failed to even reference this history or their community’s heroic 75-year fight for equal opportunity and affirmative action. They seemed to believe the best strategy was to silence themselves and parrot Harvard’s line – nothing to see here.
From October to March every year, existential questions about self-presentation –should I hide my Asianness? Should I be myself? – and stories of possible past admissions discrimination – was it? Was it not? – ratchet up anxiety in households from Cupertino to McLean. Perhaps more than any other group, Asian Americans are invested in the ideal of meritocracy and feel betrayed by the practice of it.
Yet polls conducted just before the decision still found anywhere from 53% to 69% of Asian Americans support affirmative action programs. Diversity remains a core value for most Asian Americans, even if a loud minority contests it.
The spotlight will shift now to public magnet high schools like Thomas Jefferson high, Lowell high, and Stuyvesant high, where Asian Americans constitute a majority of students, and pro- and anti-diversity Asian Americans have been fighting over admissions policies. To paraphrase the question the writer Hua Hsu once posed to affirmative action opponents: “How much is enough?”
Not long after SFFA’s white lawyers explained the model minority myth to the justices, Florida’s Governor Ron DeSantis moved to ban the study of African American studies while requiring schools to teach a pothole-strewn version of Asian American studies. Asian and Black educators decried DeSantis’s move as a naked ploy to weaponize their histories of exclusion in a game of racial respectability politics.
Some Asian American voices against affirmative action now recognize they were used. Michael Wang, the 27-year old whose meetings with Ed Blum over his failed attempt to get into Harvard helped propel the creation of Students for Fair Admissions, recently conceded: “A part of me regrets what I’ve put forward.” After being denied admission to Harvard, Wang enrolled at Williams College and characterized his time there as wonderful.
“Affirmative action is a Band-Aid to the cancer of systemic racism,” he said. “All I wanted was an answer. Instead of an answer, all I got was 10 years of questions.” His frustration is now our national tragedy.
Jeff Chang’s books include We Gon’ Be Alright: Notes on Race and Resegregation. He was a co-founder of the Student Coalition for Fair Admissions, organized at UC Berkeley in 1987 by Asian American and other students to fight discrimination against Asian Americans and defend affirmative action
