Introduction
Students for Fair Admissions (SFFA) v. Harvard, a highly anticipated case that has, since 2015, loomed as the newest threat to the sanctity of affirmative action and the legacy of Brown v. Board, was taken up to be heard by the Supreme Court in November of 2022. Edward Blum, the anti-affirmative action activist leading SFFA v. Harvard, has made no pretenses about his goal to fully repeal affirmative action, stating on the homepage of Students for Fair Admissions that these programs are “unfair, unnecessary, and unconstitutional.”[i] A problematic consequence of Blum’s rise to prominence through repeated attacks on affirmative action is the increasing presentation in mainstream media of affirmative action as an issue of access and opportunity alone. This narrative, however, limits the scope of what affirmative action affects in practice — it suggests that the stakes of affirmative action are merely considerations about what student bodies’ racial makeups will look like and who will have access to quality education. In truth, the debate over affirmative action in higher education is an extension of a legal battle stretching as far back as Plessy v. Ferguson by which positions in the racial hierarchy are triangulated and codified in the law. Furthermore, the novel legal action presented by SFFA v. Harvard embodies an emerging and ascendant legal agency among Asian Americans.
Defining Racial Triangulation
The racial triangulation framework proposed by Asian American political scientist Claire Kim posits that American racial hierarchy can be arranged on a two-dimensional axis, with the vertical axis representing a racial group’s increasing perceived superiority and the horizontal axis representing their increasing perception as a racial insider group.[ii] This axis is formed mainly through two processes which Kim refers to as relative valorization and civic ostracism. Relative valorization describes the process of framing one racial group within a social hierarchy in order to denigrate another and is the driving positive force of the vertical axis. In contrast, the horizontal axis is negatively driven by processes of civic ostracism, in which a racial group is characterized as politically and socially disengaged. Kim further elaborates that civic ostracism acts as a cap on the process of relative valorization to isolate a racial group, strip their sense of efficacy, and solidify their minority status. In the context of Asian Americans, the model minority stereotype emerges as the dominant social force which positions Asian Americans in an intermediate position along the vertical axis, while a leftward positioning on the horizontal axis is maintained by a depiction of both immigrants and American-born individuals as intrinsically and irrevocably foreign.
The model minority stereotype holds that Asian Americans are an especially successful minority because of their hard work, cultural emphasis on education, and natural disposition toward academic achievement. While this characterization casts Asian Americans in a positive light, it generally serves to justify vitriol against other minorities, as shown by its historical popularity in conservative figures’ accounts of supposed deficiencies of Black and Latine communities in education and work ethic. Many Asian Americans themselves internalize and espouse these views, as is the case of Kenny Xu, whose book, An Inconvenient Minority, cites Asian American excellence as proof that critical race theory “cannot be true.”[iii] The general claim of these conservative critics is generally that, among immigrant groups, Asian Americans have spent the least amount of time in the United States, yet they have been most successful. Therefore, capping Asian American access to higher education or creating programs which give advantages to Black and Latine applicants is both unnecessary and fundamentally unfair. The deficiency of this argument, of course, is its lack of attention to the immigration policy that has led to immigrants from Asia possessing higher educational achievement in the first place. The 1965 Hart-Cellar Immigration Act gave entry preference to Asian students who brought professional skills to the United States.[iv] Inevitably, this policy favored higher-class Asians with access to the requisite education for gaining technical degrees— and eventually a white-collar jobs — in the United States. While hard work may contribute positively to anyone’s ability to find success, the rapid climb to which these critics refer is primarily a consequence of policy which favored those who already had greater access to social resources.
The Hart-Cellar Immigration Act and its expansive consequences on the development of a highly-educated professional Asian workforce thus emphasizes the importance of the legal sphere on the construction of race. Though commonly referred to as a social construct, race is not simply bound to construction by social factors; rather, the perceptions of individuals work in a positive feedback loop with our political and legal systems. When social attitudes of race form a political precedent, it forms racialized laws, and these laws in turn create conditions that further inform society’s understanding of race. Because the Hart-Cellar Act prioritized immigration of Asians with the resources to achieve technical degrees, it selected an ideal population and therein laid the foundation for the model minority stereotype which has driven Asian American racial positioning.
The Myth of the Great Dissenter and Triangulation in Plessy v. Ferguson
Racial triangulation extends as far back as Plessy v. Ferguson, and it has been utilized in bipartisan fashion, even by those whom history has remembered as progressive champions, including Justice John Marshall Harlan, who is famously known as “The Great Dissenter” for his stances in favor of civil liberties. Scholars often paint Harlan as a Justice against the tide, an emerging progressive maverick on an otherwise oppressive and racially myopic Court. However, Justice Harlan’s past is more checkered than historians often let on: in addition to owning slaves, Harlan defended a member of the Klu Klux Klan charged with involvement in several lynchings. Still, he had grown up alongside Robert Harlan, a light-skinned slave believed to be his older half-brother.[v] Such a past, scholars claim, “set Harlan apart” from the other Justices and influenced his emergence as a civil rights champion.[vi]
But for all the vivid description of Justice Harlan’s racial beneficence in his jurisprudence, these characterizations fail to account for his uncompromisingly harsh stance on Asian Americans, particularly Chinese immigrants. In Wong Kim Ark, the landmark case responsible for establishing the jus soli principle of citizenship, Harlan voted against granting birthright citizenship to the defendant Wong on the grounds that Chinese Americans “cannot become citizens nor acquire a permanent home here, no matter what the length of their stay may be.”[vii] It is with this racial animosity towards Chinese Americans that Harlan’s famous dissent in Plessy later supports itself. As mentioned prior, racial triangulation emerges during times of racial negotiation in the legal sphere, and Plessy demonstrates this archetype precisely, as the doctrine of separate but equal racial spaces comes into question and is ultimately held constitutional. Plessy, of course, also continues to influence the legal fight over affirmative action by its key connection to Brown v. Board, which demonstrated that separate educational facilities were unconstitutional under the Fourteenth Amendment. Harlan writes,
There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the state and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race.[viii]
While Harlan’s dissent against the majority’s imposed doctrine of separate-but-equal is facially progressive, his reasoning relies heavily on the civic ostracism of Asian Americans to construct an ideal of racial equality as a Black and White dichotomy.
The reasoning applied in the present case against affirmative action utilizes a rhetorical approach opposite to Harlan’s by relying on the model minority stereotype’s positive contributions to triangulation rather than appealing to Chinese foreignness. Where Harlan justifies his dissent by ostracizing Chinese Americans relative to African Americans, SFFA bases a proposed repeal of affirmative action by using Asian Americans’ model minority status to villainize African Americans and Latines. This trend is reflective of changes in the hierarchical positioning of Asian Americans; while Asian Americans were primarily understood through Yellow Peril rhetoric emerging in opposition to Chinese immigrant work in the time of Plessy, Asian Americans now act as a wedge minority, enabling political groups to redefine racial boundaries.
Negative Action, Merit, and Proportionality
While Kim’s model of racial triangulation gives a working framework to analyze the forces influencing positioning in racial hierarchy, it does not account for the specific mechanisms through which affirmative action contributes to this positioning. Legal scholar Jerry Kang’s theory of negative action, as well as attorney Chan Hee Chu’s more recent description of the Proportionate Ideal, provide insight on the complex social and legal foundations that account for affirmative action’s specific role in triangulation.
Two critical issues at the heart of SFFA’s challenge are, first, an alleged systematic assignment of low personality score to Asian applicants to Harvard in their interviews (though both the District Court of Massachusetts and the First Circuit Appeals Court found that a multidimensional statistical analysis did not support this), and second, a claim that practices such as this scoring embody Harvard’s establishment of a soft quota on Asian Americans which systematically disadvantages them.[ix] To address the concern over admissions disadvantage (i.e., negative action), I will first refer to Jerry Kang’s work, while Chu’s work serves to better contextualize concerns over soft quotas and multicultural or racial diversity targets generally.
Kang’s article on negative action against Asian Americans has been a mainstay of Asian American legal scholarship on affirmative action since the late nineties, providing a means by which negative action policies can be implemented so long as they do not create disadvantages stemming from racial stigma. According to Kang, negative action constitutes disadvantage applied to a minority group using white applicants as a basis for comparison. Negative action, Kang argues, facially presents a dilemma for liberals: while progressive ideals broadly support affirmative action to benefit racial minorities, they are against imposition of negative action against Asian Americans as a minority group.[x] To resolve this dilemma, Kang proposes a framework dependent on what he calls the “banned meanings” construction of a right to equality.[xi] Under the banned meanings framework, individuals have a right not to suffer disadvantage resulting from stigma associated with their racial identity. Key to the banned meanings approach is that it does not put a blanket prohibition on negative action. In fact, Kang asserts that negative action may be fully justified under the banned meanings approach as long as individuals do not suffer disadvantage as a result of stigma. For example, negative action would be appropriate if one were denied admission to further a valid diversity interest and not on account of one’s Asian identity. As such, admissions exclusion is justified under Kang’s framework.
More recent scholars, however, have provided more critical examinations of the negative action framework. For example, Chu’s 2016 note When proportionality equals Diversity: Asian Americans and affirmative action has challenged subsequent interpretations of Kang’s framework because of two embedded assumptions: first, that racial proportionality in admissions is a valid construction for affirmative action policy, and second, that affirmative action and negative action are separable. Many progressive Asian American scholars have come to define affirmative action as a purely enhancing factor to amend our nation’s racial inequalities and are quick to dismiss its opposition within the Asian American community. Chu, in contrast, argues that negative and affirmative action cannot be so easily separated because the design of affirmative action assumes “that true equality of opportunity entails equality of outcomes,” which Chu calls the Proportionate Ideal.[xii] To accomplish this, schools have been careful not to overrepresent any particular racial group in their student body. Overrepresentation is generally defined by comparing population figures with actual representation in schools. This basis is problematic, however, because restriction on admissions intended to prevent overrepresentation necessarily limits Asian American admits, because Asian Americans are among the lowest racial population share in the United States at around six percent.[xiii] The Proportionate Ideal, therefore, necessarily invokes both positive (i.e., affirmative) and negative adjustments differentially for different racial minorities.
Chu’s argument is significant because the separation of negative and affirmative action is often at the foundation of calls to reject anti-affirmative action activists’ concerns over Asian American academic merit. Asian American pro-affirmative action scholars argue that affirmative action, being separate from negative action, does not harm Asian Americans. They claim that “merit” can simply be reduced to social advantages enjoyed by immigrant families whose members possess technical graduate degrees. But what constitutes merit in any applicant largely amounts to administrative hand-waving, both in the educational and employment spaces. Some studies have demonstrated that job recruiters place greater value on whether an applicant has identity overlap with themselves than with the objective value of the applicant.[xiv] However, merit becomes a more relevant rebuttal if Asian Americans are inherently disadvantaged by the Proportionate Ideal, as Chu argues. Constructed this way, merit forms a bulwark against the blanket disenfranchisement of Asian American applicants, a sentiment that finds its way into SFFA v. Harvard by establishing the merit of Chinese American applicants as a counterweight to alleged lowered personality scoring.
Asian American Agency in Triangulation: A Look at the SFFA Amicus Briefs
Taken together, the amicus briefs in SFFA reveal an ascendant legal agency in racial formation among Asian American coalitions. Kim’s original article regarding racial triangulation focuses primarily on the socio-legal forces that are exerted on Asian Americans. However, Students for Fair Admissions opens the opportunity for more frank discussion regarding a minority’s voluntary engagement with triangulation.
Before turning to the briefs individually, it is important to identify the way in which SFFA v. Harvard works within the framework of racial triangulation. The argument put forth by Edward Blum and SFFA is that Asian Americans are being subjected to unfair disadvantage to benefit Black and Latine applicants in higher education. The petitioners thus valorize Asian Americans by calling attention to how hard working and high achieving Asian Americans are. This characterization is then used to justify the removal of affirmative action under the premise that these programs are putting an artificial cap on minorities with high academic merit. Constructed within Kim’s theoretical axis, African American and Latine applicants get an artificial vertical augment to their position from affirmative action, while Asian Americans either lose a middle position or lack the benefit of a similar augment. Consequently, white applicants maintain their position within this racial geometry, but minority students’ proximity increases. Thus, as with Plessy before it, SFFA presents a crisis in the structure of US racial hierarchy, embodying a negotiation among Asian Americans themselves on how their race is codified in the law. Many of the petitioners within SFFA are Chinese immigrants, the only racial group to be categorically barred from immigrating to the United States’ history through the 1882 Chinese Exclusion Act, something many amicus briefs bring attention to.[xv] When placed in this historical context, SFFA may appear to be more than Chinese immigrants buying into the model minority stereotype for college admissions. Rather, so goes the argument of many anti-affirmative action amici, SFFA v. Harvard presents an opportunity for Chinese immigrants to fight against a new chapter of perceived exclusion resulting from Harvard’s alleged lower personality scoring of Chinese applicants.
The amicus brief filed by the Louis D. Brandeis Center for Human Rights Under Law and the Silicon Valley Chinese Association Foundation exemplifies a voluntary engagement by Chinese Americans in triangulation. This brief focuses primarily on historical discrimination against Jewish applicants by Harvard, claiming that “[t]oday, Harvard discriminates against Asian Americans in admissions in the same manner in which it discriminated against Jews in the 1920s and 1930s.”[xvi] To illustrate the alleged discrimination, the authors point to a surge in admissions of Asian applicants followed by a precipitous drop, a pattern seen in Jewish admit rates after Harvard instituted deliberate measures to reduce their representation in the student body under the pretense of maintaining broad character traits.[xvii] It is easy to see how this argument reaches to extremes by equating administrative worries about potential overrepresentation of Asian Americans based on population data with anti-Semitic attitudes in Harvard’s past admission scheme. But barring the extremity of this brief’s argument, it constitutes a claim by an Asian American legal group about what their racial group should legally deserve.
Interestingly, pro- and anti-affirmative action Asian legal groups overlap significantly in their use of academic ideas and language. A brief filed in support of Students for Fair Admissions by the Asian American Coalition for Education (AACE) and the Asian American Legal Foundation (AALF) focuses its argument on reducing the racial stigma endured by Asian American applicants. The authors claim that racial classification causes feelings of ‘racial inferiority’ and ‘racial hostility’ among Asian Americans.[xviii] They also point to common advice given to Asian applicants to disguise their Asian identities: the Princeton Review, for example, advises Asian Americans not to attach a photograph to their application or answer optional questions about their ethnicity, “especially if [they] don’t have an Asian-sounding surname,” to avoid raising racial stigma in evaluations.[xix] The concern raised by AACE is essentially an embodiment of Kang’s concept of negative action ––under his banned meanings approach, damage to an Asian applicant’s self-image would constitute an unacceptable imposition of racial stigma. Thus, elimination of race-conscious admissions would be justified to avoid discrimination that results from stigma.
A brief filed on behalf of the respondents by the Asian American Legal Defense and Education Fund (AALDEF) also discusses the implications of a verdict against Harvard in much of the same language. However, they argue that race-conscious admissions policies work to the benefit of Asian Americans by “guard[ing] against grouping Asian Americans into one monolithic ‘Asian’ category and blurring the distinct realities faced by different subgroups.”[xx] AALDEF argues that eliminating race-conscious admissions would ultimately force Asian Americans to suffer stigma by obscuring “how race and ethnicity have shaped [applicants’] experiences.”[xxi] Concerns over generalization, then, play into the rhetoric of both sides of the affirmative action debate among Asian Americans.
The three briefs examined above give insight into the complicated negotiation that is happening among Asian Americans. For supporters of affirmative action, removing the consideration of race prevents Asian American applicants from showcasing important parts of their racial identity that would give them dimension that could protect against the potential prejudices of an admissions officer. For its opponents, the consideration of race in the first place obscures merit by imposing racial framing or stigma onto an applicant prematurely. SFFA v. Harvard, then, is not simply about who deserves a seat in a given university, as popular representations of the affirmative action debate might have us believe. The real question is how to prevent generalization and improper attribution of stereotypes to Asian Americans.
Implications for Agency and Future Directions
The overlap in language between these two briefs demonstrates that progressive discussion of affirmative action as it pertains to Asian Americans is lacking. This stems from a weakness in literature which Chu calls attention to: progressive Asian American scholarship has failed to engage meaningfully with criticisms of affirmative action, so it lacks the necessary depth to separate its position meaningfully from those critical of affirmative action. Chu’s advice that Asian American scholars not cast away concerns over merit or insist on solely positive factors in affirmative action is helpful. Also, scholarship should, especially in the wake of SFFA v Harvard, move from abstract, theoretical discussions about affirmative action toward more robust solutions to better respond to the rapidly-changing affirmative action landscape, further differentiate their scholarship from conservative positions, and provide solutions to universities seeking alternative routes of retaining campus diversity if affirmative action is repealed. While overly optimistic in retrospect, Justice Sandra Day O’Connor’s proposal of a 25-year expiry on the necessity of racial preferences in college admissions remains a relevant marker of the legal design of affirmative action as an ideally temporary measure. This is not to say that the solution is its immediate elimination (quite the opposite), but rather that we might better understand affirmative action as a makeshift solution to an ongoing problem of racial equity in the United States.
Scholars who view higher education as a primary site for defining American racial hierarchy might therefore benefit from engaging with the underlying problem behind SFFA with the idea that affirmative action is designed to end. By now, it is clear that the debate that SFFA v. Harvard produces is not simply limited to the configuration of racial identities in education but extends to legal racial construction itself. Just as Plessy remains relevant to the understanding of affirmative action, engagement with racial triangulation will surely form a precedent for the future discussions of racial hierarchy. Intersectional solutions that span across institutions will be crucial for promoting equity, encouraging solidarity, and increasing access to higher education.
All this, of course, comes after the hard work in the present. Before Asian Americans can bridge the intersectional gap, the community as a whole must have a substantial reckoning with how it will approach our role in racial formation. That means questioning the bases of alliances that the community has formed and maintaining a critical lens on the complex entanglement between the legal system and America’s vision of racial equality.
[i] Help us eliminate race and ethnicity from college admissions, Students for Fair Admissions – Students for Fair Admissions, https://studentsforfairadmissions.org/ (last visited Oct 2022).
[ii] Claire Jean Kim, The Racial Triangulation of Asian Americans, 27 Polit. Soc. 105 (1999).
[iii] Brian Flood, Success of Asian Americans debunks critical race theory, “Inconvenient Minority” author says, Fox News (2021), (last visited Nov 16, 2022).
[iv] Immigration and Naturalization Act of 1965, (1965).
[v] Gilbert King, The great dissenter and his half-brother Smithsonian.com (2011), https://www.smithsonianmag.com/history/the-great-dissenter-and-his-half-brother-10214325/ (last visited Oct 2022).
[vi] Id.
[vii] Wong Kim Ark, 169 U.S. 537, 563 (1896) (Harlan, J., dissenting)
[viii] Plessy v Ferguson (Harlan, J., dissenting)
[ix] Jeffrey R. Howard & Sandra Lynch, Students for Fair Admissions, Inc. v. Presidents and Fellows of Harvard College, (2020).
[x] Jerry Kang, Negative action against Asian Americans: The internal instability of Dworkin's defense of affirmative action SSRN (2005), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=707624 (last visited Oct 2022).
[xi] Id.
[xii] Chan Hee Chu, When Proportionality Equals Diversity: Asian Americans and Affirmative Action Berkeley Law Library Catalog (2016), https://lawcat.berkeley.edu/record/1127323?ln=en (last visited Oct 2022).
[xiii] U.S. Census Bureau quickfacts: United States, US Census Bureau Quickfacts, https://www.census.gov/quickfacts/fact/table/US/PST045221 (last visited Oct 2022).
[xiv] Lauren A. Rivera, Hiring as cultural matching, 77 American Sociological Review 999–1022 (2012).
[xv] Exclusion : Chinese : immigration and relocation in U.S. history : classroom materials at the library of congress : library of Congress, The Library of Congress, https://www.loc.gov/classroom-materials/immigration/chinese/exclusion/ (last visited Oct 30, 2022).
[xvi] Jonathan A. Vogel, BRIEF AMICUS CURIAE OF THE LOUIS D. BRANDEIS CENTER FOR HUMAN RIGHTS UNDER LAW AND THE SILICON VALLEY CHINESE ASSOCIATION FOUNDATION IN SUPPORT OF PETITIONER, 2
[xvii] Id., 3, 4.
[xviii] Lee C Cheng & Gordon M Fauth, BRIEF OF AMICI CURIAE THE ASIAN AMERICAN COALITION FOR EDUCATION AND THE ASIAN AMERICAN LEGAL FOUNDATION IN SUPPORT OF PETITIONER, 20.
[xix] Id., 22
[xx] Dean Richlin et al., BRIEF OF AMICI CURIAE ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND ET AL. IN SUPPORT OF RESPONDENTS, 73., 13
[xxi] Id., 15