Affirmative action in U.S. higher education is dead. Last month, the Supreme Court, ignoring a half-century of precedents, struck down race-conscious admissions at both Harvard and the University of North Carolina, finding that they violated the equal protection clause of the Fourteenth Amendment. Over the past five decades, race-conscious admissions programs in higher education, which have been narrowly affirmed by the Court on three occasions, have helped to partially desegregate colleges and universities, increase educational and employment opportunities for students of color, and grow the non-white middle-class. They have also been a special target of the right. So when President Trump appointed three conservative justices in rapid succession, affirmative action supporters feared the worst. On June 29, 2023, the Court delivered the expected coup de grâce with a 6-3 ruling in favor of Students for Fair Admissions, the plaintiff. It is now up to colleges and universities across the nation to figure out what the ruling means for them.
Postmortem analyses have focused on what the ruling tells us about the Court’s rightward turn and concurrent trends in national politics. Undoubtedly, the ruling marks another stunning victory for white conservative legal strategist Edward Blum and his deep-pocketed donors, the same team that brought us Shelby County v. Holder (2013), in which the Court eviscerated the Voting Rights Act of 1965. What has been missing from these discussions is an analysis of what Students for Fair Admissions v. Harvard tells us about American racial politics, past and present. The case in fact serves as a window onto deep structures of racial power that persist beneath surface-level political trends. When Blum and his donors suffered defeat in Fisher v. University of Texas (2013), an affirmative action case involving a plaintiff who was a white woman, Blum pivoted: “I needed Asian plaintiffs … so I started … HarvardNotFair.org.” A year later, having found his plaintiffs, he formed Students for Fair Admissions (SFFA) and brought suit against Harvard and UNC. My focus here is on the lawsuit against Harvard, but what I say broadly applies to the lawsuit against UNC as well. Why did Blum recruit Asian-American students to take down programs aimed at mitigating the abjection of Black people? What does this suggest about white-Asian collusion in the reproduction of structural anti-Blackness? And what has been the historical relationship between whites weaponizing Asian Americans and the latter weaponizing themselves against the Black struggle for equality?
My new book, Asian Americans in an Anti-Black World, published this year, shows that these racial dynamics reflect the hierarchy of groups in the U.S. racial order, which is itself an artifact of the age of slavery. Although we are taught that the nation is making steady, irreversible progress toward racial equality, the truth is decidedly less sanguine. Scholars in Black studies and adjacent fields have demonstrated that centuries of racial slavery bequeathed us the global inheritance of structural anti-Blackness, where society and its institutions are organized around the hatred of Blackness. Blackness is abjected, and those deemed not-Black continuously distance themselves from it in order to lay claim to full humanity. What historian Saidiya Hartman calls “the afterlife of slavery” powerfully illuminates the through-line from slavery to Jim Crow, convict leasing, lynching, entrenched segregation, police violence, and mass incarceration. That whites as a group have historically been committed to keeping Black people on the bottom, that they have been hostile to any form of assistance or recompense to Black people from the Civil War to the present, helps us to understand why even modest policies like affirmative action provoke outrage and resistance. What is at stake in the Harvard case is not just the composition of the college’s next incoming class, but the reproduction of structural anti-Blackness and the reproduction of the status quo in our society.
And what about Asian Americans? Philosopher Lewis Gordon argues that the U.S. racial order is defined by this principle: Be white, but above all, don’t be black. Riffing on Gordon, I contend that Asian Americans have always been seen as not-white but above all, not-Black: less than whites, yes, but also—and more importantly—more intelligent, more civilized, more capable, and more human than Black people. Asian Americans are pushed down by the historical force of white supremacy but lifted up by the historical force of anti-Blackness.
For white Americans, the relevant principle has been: Better Asians than Blacks. When the first Chinese laborers arrived in California in the mid-1800s, they were deemed inferior to white workers but also, crucially, as superior to Black workers (enslaved or free). As a result, they enjoyed types of mobility, employment, and advancement denied to the latter. Most important, they were seen as unenslaveable. Even at the height of the Chinese exclusion movement in the 1870s, when white nativists were intent upon driving out the Chinese, they acknowledged the latter as subjects of a once-great civilization, whereas they saw Africans as brutes who lived in the jungle with wild animals. The Chinese were eventually expelled from the nation, but not from the family of nations or humankind, as congressional debates and other records from the period attest.
Because of Japan’s stunning victory in the Russo-Japanese War of 1904–1905 and its ascendancy to the status of the first non-European “great power,” Japanese immigrants were perceived more favorably than their Chinese counterparts. Japanese Americans were subjected to decades of racial persecution in the Western states, as well as wartime internment in the wake of Japan’s bombing of Pearl Harbor. But they were also spared the extreme forms of violence inflicted upon Black people through Jim Crow segregation, convict leasing, and lynching. Japanese Americans at the Jerome internment camp in Jim Crow–era Arkansas went on day passes into town, where they were encouraged to frequent white establishments and stay away from Black people. Japanese-American soldiers training at Camp Shelby in Mississippi were instructed to sit in the white seats on the bus. On occasion, Japanese-American internees and soldiers were audience to or participated in blackface minstrelsy performances.
The weaponization of Asian Americans against the Black struggle began in earnest during World War II. During this conflict, Black activists seized the opportunity to call out the U.S. government for Jim Crow and lynching on the world stage. At the same time, Japan’s wartime propagandists relentlessly spotlighted American anti-Blackness. Faced with an unprecedented public relations crisis, U.S. officials, with the help of journalists, invoked Japanese Americans as a living refutation of the charges of racism. Once they passed a written loyalty test, Japanese-American internees were given material support to get jobs, resettle (anywhere but the West Coast), and join the U.S. Armed Forces. They were lauded as proof that hardworking, patriotic “minorities” could prosper—and that Black people were therefore to blame for their failure to thrive. The government used Asian Americans, the good minority, to claim that racial barriers were more imagined than real.
After the war, the Soviets, too, pointed to the lynching and segregation of Black Americans as evidence of the racist American state. The federal government submitted an amicus brief in Brown v. Board of Education (1954), urging the Supreme Court to reverse Plessy v. Ferguson (1896) in order to counter such Cold War propaganda. This was the backdrop against which Asian Americans began to be admitted into white neighborhoods and workplaces. Prior to World War II, for example, restrictive covenants in California had routinely barred both Black people and Asian Americans from buying or renting homes from white homeowners. After the war, however, whites lowered their resistance to Asian-American neighbors while fighting Black integration as fiercely as ever. Commenting on Los Angeles in the early 1960s, a Nisei (second-generation Japanese American) minister indicated that “white sellers viewed Japanese Americans as a tolerable alternative to Blacks who, they feared, would trigger a neighborhood ‘invasion.’”1 A similar pattern emerged in postwar Chicago, where the not-Blackness of Japanese Americans coming out of internment camps allowed them to move into white neighborhoods and get promoted over Black people (including those with more seniority) in the workplace. For their part, most Asian Americans accepted the invitation to get closer to whiteness and move further from Blackness. The rewards included greater educational and employment opportunities and greater social and economic mobility within and across generations.
In The Color of Law (2017), Richard Rothstein shows that the systematic segregation of Black Americans was deliberately brought about over the course of the 20th century by the concerted efforts of officials at all levels of government, in collusion with all manner of private interests, in all regions of the United States. He also shows that this was inflicted on Black people alone. Whites have been more willing to assimilate with Asian Americans than with Black people in housing, educational spaces, workplaces, and social spaces. As a result, Asian Americans have been, to a considerable extent, exempted from ghettoization, over-policing, the school-to-prison pipeline, and mass incarceration. While this acceptance has happened alongside ongoing anti-Asian discrimination, and while it has varied according to the Asian group’s national origin, socioeconomic profile, timing, and mode of entry into the United States, Asians have undeniably benefited from being not-Black in an anti-Black order.
Nearly a half-century ago, Regents of the University of California v. Bakke (1978) brought the weaponization of Asian Americans into higher education. In his governing opinion, Justice Lewis F. Powell Jr. struck down a race-conscious admissions program at the UC Davis School of Medicine on the grounds that setting aside 16 spaces for minority students constituted a quota in violation of the Fourteenth Amendment’s guarantee of equal protection. Moreover, the remedial purpose of this quota was untenable, according to Justice Powell, because the nation’s messy ethnic pluralism meant that all groups, even whites, faced discrimination at times. Thus the original “societal discrimination” rationale for affirmative action was too “amorphous” to justify the use of racial classifications, even in a non-quota form. Nevertheless, promoting “diversity” in the college classroom could be understood as a “compelling state interest.” In other words, race-conscious admissions that pursued “diversity” rather than remediation, and did so without a numerical quota, would pass strict scrutiny. Here Justice Powell mentioned Harvard’s “holistic” admissions policy—where race is but one factor among many—as the gold standard. In the end, the Court saved race-conscious admissions in higher education, but only after fatefully detaching it from its original purpose and placing it on the untested ground of “diversity.”
Asian Americans were crucial props in Justice Powell’s ruling, despite being buried in the footnotes, because they were both well represented among UC Davis School of Medicine’s ordinary admissions and included in the set-aside minority program. On three separate occasions, Justice Powell suggested that Asian Americans did not appear to need affirmative action to gain admission, and that this fact weakened the program’s anti-discrimination rationale: If Asian Americans could make it despite discrimination, why couldn’t Black people? Note that the under-specificity of the term discrimination allowed Justice Powell to conflate structural anti-Blackness with anti-Asian discrimination. Only by assuming an equivalence between the two groups was he able to use Asian Americans to justify his move away from the policy’s remedial purposes. The question Justice Powell should have asked was: How are Asian Americans structurally advantaged over Black people in ways that generate more opportunities and favorable group outcomes for the former?
During the 1980s and ’90s, as many colleges and universities focused their race-conscious admissions efforts on “underrepresented minorities,” Asian Americans (already well-represented through ordinary admissions) were sometimes not included. White conservatives rushed to say affirmative action was penalizing hardworking Asian-American students as well as white students, giving the right racial cover as it tried to end affirmative action once and for all. Progressive Asian-American organizations complained about whites using Asian Americans in these debates, but to no avail. When the University of California bowed to its conservative regents and banned race-conscious admissions in 1995, the supposedly negative impact of race-conscious admissions on Asian-American students was a prominent conservative talking point.
Then, starting in the mid-1990s, a new anti–affirmative action fighting force emerged on the scene: conservative, affluent Chinese immigrant professionals, organized mostly into local and regional groups. These right-wing Asian Americans have joined right-wing whites as full partners in the campaign to end race-conscious admissions, thereby weaponizing themselves against the Black struggle for equality.
Motivated by concern about their children’s educational opportunities, these activists are well-educated, well-resourced, and extraordinarily effective. One group, the Asian American Legal Foundation (AALF), successfully sued to end race-conscious admissions at Lowell High School, a prestigious magnet school in San Francisco—resulting in a dramatic drop in Black and Latino enrollment. In 2014, the same year that Blum’s SFFA filed suit against Harvard, a coalition of conservative Chinese immigrant groups led the successful charge to defeat Senate Constitutional Amendment 5, a pro–affirmative action measure sponsored by Democrats in the California Legislature, thus assuring that the University of California and California State University systems would continue to be prohibited from using race-conscious admissions. Ideologically aligned with Blum, conservative Chinese activists have launched complementary lawsuits and investigations, amplified his talking points, submitted amicus briefs in his lawsuits, promoted his ideas in the mainstream media and on Chinese social media, and attended his rallies.
Consider, for a moment, the amicus brief that the AALF filed in Fisher v. University of Texas I (2013), one of the two cases—along with Grutter v. Bollinger (2003)—that the Supreme Court heard on race-conscious admissions in higher education between Bakke and Students for Fair Admissions v. Harvard. After summarizing the long history of anti-Chinese discrimination in the United States, the AALF argued that race-conscious admissions placed an additional burden on Asian Americans, rendering them the most-discriminated-against minority group. The AALF wrote:
Efforts to manipulate the racial composition of schools necessarily come with a steep cost—borne in the first instance by individuals on the wrong side of the racial balancing act because their racial groups lack political or social clout. … The costs of such racial gerrymandering fall not merely on members of a supposedly privileged racial majority, but on individuals belonging to any non-preferred or ‘overrepresented’ race that must be displaced in order to increase the numbers of a preferred or ‘underrepresented’ race or ethnicity.
Race-conscious admissions are a spoils system that deliver the goods to “preferred” minorities (paradigmatically, Black people) who supposedly have “political or social clout,” while unfairly burdening Asian Americans, who lack such clout. (It is not explained why the spoils system does not reward whites, who presumably have the most clout.) Black people have captured structures of power and are “gerrymandering” college admissions to benefit themselves. In this brief, the realities of the anti-Black order are precisely inverted.
And the climactic moment in the AALF brief: “Grutter will be seen as the Plessy of its generation.” Grutter, which upheld the precedent set by Bakke concerning the constitutional permissibility of race-conscious admissions under certain conditions, was compared to the case that upheld the system of Jim Crow in the South well into the 20th century. The AALF uprooted Black people from their own history and replaced them with Chinese Americans, while trading on the moral authority of the Black struggle. Black people are racist Jim Crow legislators upholding segregation, Asian Americans are Homer Plessys courageously challenging segregation laws, and the Grutter Court is engaged in crimes against humanity. Once again, the AALF turned reality on its head.
Grutter was ultimately affirmed in Fisher v. University of Texas II, but in his dissenting opinion, Justice Samuel Alito (joined by Chief Justice John Roberts and Justice Clarence Thomas) quoted the AALF’s amicus brief three times about the negative impact of race-conscious admissions on Asian Americans, almost as if he were teeing up the ball for Ed Blum, whose lawsuit against Harvard was already making its way up to the Court.
In November 2014, the newly formed SFFA filed an initial complaint against Harvard, alleging that its “holistic” admissions plan, the one cited as exemplary by Justice Powell in Bakke, was an “elaborate mechanism for hiding Harvard’s systematic campaign of racial and ethnic discrimination against certain disfavored classes of applicants.” According to SFFA, Harvard was using racial quotas to limit Asian-American enrollment, just as it had used quotas to limit Jewish enrollment in the early 20th century. Plaintiffs asked the District Court in Massachusetts to issue “a permanent injunction prohibiting Harvard from using race as a factor in future undergraduate admissions decisions,” as well as a declaratory judgment that “any use of race or ethnicity in the educational setting violates the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.” No explanation was given as to why a challenge to a purported ceiling on Asian Americans necessitated barring the use of race altogether—even as a “plus” factor for certain underrepresented groups.
The complaint’s authors opined:
[T]he proper response [to the ceiling on Asian-American admittees] is the outright prohibition of racial preferences in university admissions—period. … Harvard and other academic institutions cannot and should not be trusted with the awesome and historically dangerous tool of racial classification. As in the past, they will use any leeway the Supreme Court grants them to use racial preferences in college admissions—under whatever rubric—to engage in racial stereotyping, discrimination against disfavored minorities, and quota-setting to advance their social-engineering agenda. Strict scrutiny has proven to be no match for concerted discrimination hidden behind the veil of ‘holistic’ admissions. There may be times when social problems can be solved democratically. But massive resistance to racial equality is not one of them. See Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294 (1955).
Note the reference to the Brown decision, echoing the AALF’s comparison of Grutter to Plessy. Asian-American applicants are Daisy Bateses braving a mob of hateful whites to integrate Little Rock Central High School, while Harvard admissions officers and their Black allies are die-hard segregationists committed to thwarting racial equality by any means necessary. The persistent truth of Black abjection, the sordid history of how Harvard and other elite institutions excluded Black students in the past, the modest integrationist intent of Harvard’s admissions plan, and the structural advantages that Asian Americans enjoy as not-Blacks in an anti-Black society—all of these were denied by the alternative reality concocted by SFFA and its conservative Chinese immigrant colleagues.
Harvard’s motion for summary judgment countered that Harvard’s admissions plan did not place a ceiling on Asian-American enrollment or otherwise discriminate against the group. As Justice Powell affirmed in Bakke, Harvard’s admissions plan passed the Court’s strict scrutiny test for the use of racial classifications insofar as it pursued a compelling state interest (diversity), was narrowly tailored, considered race flexibly as just one factor among many, and had exhausted race-neutral alternatives. Moreover, Asian-American students’ percentage in Harvard’s incoming class increased by 29 percent over the past decade, to nearly 23 percent in 2014. (To put this in perspective, Asian Americans make up roughly six percent of the U.S. population.) Since months of discovery had produced “no documentary or testimonial support” for the charge that Harvard uses quotas and pursues “racial balancing,” the plaintiffs’ case was “entirely statistical” and, as such, had to demonstrate “gross disparities” in order to meet the bar of evidence. That it failed to do. The statistical analysis of Harvard admissions data conducted by the university’s expert, David Card, found “no negative effect of Asian-American ethnicity” on prospects for admission. The District Court in Massachusetts ruled in Harvard’s favor, as did the First Circuit Court of Appeals. SFFA promptly appealed to the Supreme Court.
Writing for the majority, Chief Justice Roberts declared that Harvard’s admissions plan violated the equal protection clause of the Fourteenth Amendment because it failed to pass strict scrutiny, used race in a negative way or as a stereotype, and did not contemplate its own endpoint. On the first point, Roberts argued that diversity was not a compelling state interest because the goals associated with it—training leaders, preparing students to live in a pluralistic society, creating new knowledge, promoting the exchange of ideas, broadening understanding, breaking down stereotypes, and so on—were “not sufficiently coherent” to be measured and assessed. On the second point, Roberts wrote that Harvard’s use of race harmed Asian Americans, noting that the First Circuit Court of Appeals found that the use of racial classifications resulted in fewer Asian-American students being admitted, and that the District Court found it resulted in fewer Asian-American and white students being admitted. Finally, on the third point, Roberts referred back to the Grutter Court’s statement that race-conscious admissions must end at some point, presumably within 25 years.
Justice Sonia Sotomayor’s dissent, joined by Justices Ketanji Brown Jackson and Elena Kagan, rejected the majority opinion as “not grounded in law or fact and contraven[ing] the vision of equality embodied in the Fourteenth Amendment.” It strongly suggested that the majority was operating in bad faith. On the first point above, for example, Sotomayor charged the Court with “overrid[ing] its longstanding holding that diversity in higher education is of compelling value” and “seek[ing] cover [for this move] behind a unique measurability requirement of its own creation.” On the second point above, she noted the Court here relied on (and mischaracterized) a single footnote from the First Circuit’s opinion. Drawing upon the amicus brief submitted by the Asian American Legal Defense and Education Fund, she countered that, on the whole, race-conscious admissions in fact benefited Asian Americans. Finally, on the third point above, Sotomayor argued that “[t]his new durational requirement is also not grounded in law, facts, or common sense,” since it was well known that the Grutter Court’s comments about 25 years “were nothing but aspirational statements.” Justice Jackson also wrote a dissenting opinion, joined by Justices Kagan and Sotomayor, focusing on the “[g]ulf-sized race-based gaps [that] exist with respect to the health, wealth, and well-being of American citizens” and how these are reproduced intergenerationally.
The Court’s conservative majority, most of its members having already gone on record as forcefully opposing race-conscious admissions, thus struck down Harvard’s plan without providing a satisfactory legal account for why it departed from stare decisis. A policy that made modest headway against segregation in higher education for the past half-century has become a casualty of a concerted effort to roll back the gains of the civil rights era and maintain structural anti-Blackness in perpetuity. Asian Americans were weaponized, and weaponized themselves, in this fight. It is important that we recognize these patterns as entrenched historical patterns that will almost certainly be repeated in future conflicts, including the one brewing in the California legislature over the recommendations of the Black reparations commission. Students for Fair Admissions v. Harvard is historically significant for dismantling race-conscious admissions in higher education. It is also not an aberration, but a window onto the racial dynamics that shaped our past and will, in all likelihood, shape our future.
1 Scott Kurashige, The Shifting Grounds of Race [return to text]
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