Hofstra University SFFA vs Harvard and Asian Americans Case Study Paper Format: Times New Roman, 12 size, 1 inch margin. Including abstract, introduuction

Hofstra University SFFA vs Harvard and Asian Americans Case Study Paper Format: Times New Roman, 12 size, 1 inch margin.

Including abstract, introduuction, analyze cases that I provided you, finding similarity and difference.discussion, conclusion.

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1. NOTE: JUSTICE OR JUST US?: SFFA V. HARVARD AND ASIAN AMERICANS IN AFFIRMATIVE ACTION,
92 S. Cal. L. Rev. 442
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NOTE: JUSTICE OR JUST US?: SFFA V. HARVARD AND ASIAN AMERICANS
IN AFFIRMATIVE ACTION
January, 2019
Reporter
92 S. Cal. L. Rev. 442 *
Length: 18050 words
Author: Cynthia Chiu*
* .Senior Editor, Southern California Law Review, Volume 92; J.D. Candidate, 2019, University of Southern
California Gould School of Law; B.A., Economics and Legal Studies 2015, University of California, Berkeley. I
greatly appreciate Professor Stephen Rich for his guidance and the editors of the Southern California Law Review
for their excellent work. Thank you to my family – Mom, Dad, Jen, Andy, and Matt – and to my friends for their
endless support and constant willingness to listen to me talk about this Note.
Text
[*442]
INTRODUCTION
Here is what I sometimes suspect my face signifies to other Americans: an invisible person, barely distinguishable
from a mass of faces that resemble it. A conspicuous person standing apart from the crowd and yet devoid of any
individuality. An icon of so much that the culture pretends to honor but that it in fact patronizes and exploits. Not just
people “who are good at math” and play the violin, but a mass of stifled, repressed, abused, conformist quasi-robots
who simply do not matter, socially or culturally. 1
I can recall excitedly filling out my college applications in the fall of 2010. I can recall writing my application essay
about my experience at a private, all-girls Catholic high school. I can recall being told to volunteer more and to join
speech and debate. I can recall being told that playing four years of varsity tennis would make me appear more
well-rounded. I can recall being told to not check the “Asian” box when the application asked for my ethnicity. At
eighteen years old, this sounds like being told it is better to be anything besides exactly who you are. I can recall
feeling that it was not enough to be the daughter of a first-generation immigrant from China and the granddaughter
of Japanese American citizens interned during World War II. 2 The appropriate box for me was apparently “Other.”
3
1
Wesley Yang, Paper Tigers: What Happens to All the Asian-American Overachievers When the Test-Taking Ends?, N.Y.
Mag. (May 8, 2011), http://nymag.com/news/features/asian-americans-2011-5 (expressing the author’s perspective on the Asian
American experience). This puts into context the complexity of the role that Asian Americans play not only in the affirmative
action discussion, but also in American society as a whole. When the stereotype that attaches to Asian Americans is that they
are all the same, what value can be placed on an individual Asian American’s conception of self?
2
Some of the experiences my maternal grandparents faced in the Japanese American internment camps are also discussed in
an article published by USC Gould School of Law. See 75 Years Later: The Impact of Executive Order 9066, USC Gould School
of Law (Feb. 16, 2017), https://gould.usc.edu /about/news/?id=4352.
Page 2 of 34
92 S. Cal. L. Rev. 442, *442
[*443] This revelation about my own experience was necessary to understand the frustration felt by the Asian
American community regarding college admissions. While this frustration may be well-founded, the Asian American
community is not unified on what the appropriate reaction to it should be. On one hand, the model minority myth 4
perpetuates a stereotype that portrays Asian Americans as successful. But on the other hand, Asian Americans feel
wide-spread discrimination that goes unrecognized due to an image of them as achievers of the “American
Dream.” This places Asian Americans in a precarious middle ground as a “racial bourgeoisie” 5 – stuck between
being viewed as “superior” but feeling inferior. Asian Americans should be cautioned, though, that serving in this
racial middle ground runs the risk of “reinforcing white supremacy if the middle deludes itself into thinking it can be
just like white if it tries hard enough.” 6 Asian Americans have long been left out of the white-black affirmative
action debate, and this opportunity to speak out should not be tarnished by being used as a tool to further white
images at elite universities.
This Note examines the arguments made in Students for Fair Admissions v. Harvard College, which allege that
Harvard’s consideration of race is a violation of Title VI of the Civil Rights Act of 1964 because it is not narrowly
tailored to a compelling interest of diversity. 7 The complaint filed by Students for Fair Admissions (“SFFA”) 8
came off the back of Justice [*444] Alito’s comments in his dissent in Fisher v. University of Texas at Austin
(Fisher II), which proposed the possibility that Asian Americans may face discrimination in admissions. 9 While
this was an important inclusion of Asian Americans in the discussion, Justice Alito’s comments in Fisher II
perpetuated the logical fallacy that Asian Americans 10 are losing admission spots to African Americans and
Hispanic Americans due to affirmative action, and may have encouraged the initiation of SFFA’s action against
Harvard College. However, while the frustration experienced by many in the Asian American community over what
feels like racial ceilings on Asian American admissions at elite universities is valid, these ceilings are the result of
negative action aimed against Asian Americans, not the result of affirmative action. Prohibiting universities from
3
This is not to diminish the experience of those applicants who have to check “Other” because the ethnicity or culture they
identify with is not listed, which is a separate but serious issue as well. This is to highlight the feeling of being told that your
chances of admission would be greater if the university does not know you are Asian American, indicating Asian Americans get
deducted points in comparison to even white applicants. It is not a comforting notion when many applicants of Asian-American
descent have first or last names that reveal their identity regardless of what ethnicity they mark on their application. The
description of my experience applying to colleges is not to insinuate that I should have been accepted to a specific university
based upon my qualifications. The qualifications I describe are those of a typical applicant, whereas the suggestion of checking
the “Other” box is a less universal experience. It is part of what helps me to understand the frustrations felt by many in the AsianAmerican community who are pushing back against Harvard’s admissions policies.
4
See infra note 57 and accompanying text.
5
The concept of a “racial bourgeoisie” was coined by Mari Matsuda. Mari J. Matsuda, We Will not be Used: Are Asian
Americans the Racial Bourgeoisie?, in Where Is Your Body? And Other Essays on Race, Gender, and the Law 149, 149-50
(1996). It refers to an idea that Asian Americans fall into a racial middle ground that acts as a buffer between whites and African
Americans, with Asian Americans stuck being too privileged to be minorities and too foreign to be honorary whites. Id.
6
Matsuda, supra note 5, at 150.
7
Complaint at 100-01, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 14-cv-14176 (D.
Mass. Nov. 17, 2014), 2014 WL 6241935. This Note is limited in scope and does not discuss whether the Supreme Court is
likely to hear this case or any likely outcome. This Note is limited to critiquing the arguments set out in Students for Fair
Admissions’ (“SFFA’s”) complaint that were argued during the trial, which concluded in November 2018, trying to create
background on why the Asian American community may be divided on this issue, and making a suggestion for the future of
affirmative action as the discussion begins to include Asian Americans. See Chloe Foussianes, A Timeline of the Harvard
Affirmative Action Lawsuit, Town & Country (Nov. 2, 2018), https://www.townandcountrymag.com/society/money-andpower/a24561452/harvard-lawsuit-affirmative-action-timeline.
8
SFFA is a “newly-formed, nonprofit, membership organization whose members include highly qualified students recently
denied admission to [Harvard and the University of North Carolina at Chapel Hill], highly qualified students who plan to apply to
both schools, and parents.” Project on Fair Representation Announces Lawsuits Challenging Admissions Policies at Harvard
Univ. and Univ. of North Carolina-Chapel Hill, Students for Fair Admissions, https://studentsforfairadmissions.org /project-on-
Page 3 of 34
92 S. Cal. L. Rev. 442, *444
considering race as part of a holistic admissions process will not eliminate the negative action felt by Asian
Americans.
SFFA’s use of Asian Americans to target affirmative action is a parallel to the double movement that occurred in the
nineteenth century. While there was a movement toward inclusion based on increased egalitarianism among white
males to reduce barriers based on wealth and property ownership, there [*445] was also a movement toward
exclusion of African Americans, women, Native Americans, and non-white immigrants. 11 SFFA and the
organization’s creator, Edward Blum, move to include Asian Americans as part of the group deemed worthy enough
to “earn” spots at elite universities only to maintain the dominance needed to continue to exclude other groups. The
status that is ascribed to different groups comes with a series of stereotypes and associations that the larger,
dominant group naturalizes to determine whether the group is eligible for certain benefits, like admission to elite
universities. 12 Asian Americans should be wary about their sudden inclusion in this larger group, when they had
for so long been denied eligibility for status as citizens and still continue to be given the stereotype of “perpetual
foreigner.” 13 Similar to the poor white males of the nineteenth century, the inclusion of Asian Americans could
simply be used to maintain the dominance of wealthy white 14 males and to perpetuate a “white image” in elite
universities.
Part I of this Note examines the current standard of affirmative action: that the only acceptable justification for raceconscious admissions policies is one of educational diversity. Part II discusses the role of Asian Americans in the
affirmative action discussion, with an understanding that Asian Americans have been subject to unrecognized
historical discrimination and treated as a “racial bourgeoisie” 15 due to perpetuation of the model minority myth.
Part III describes the background and status of SFFA v. Harvard, analyzes the complaint’s arguments, including
those made at trial, and [*446] criticizes the bases for the complaint. Part IV suggests that the future role of Asian
fair-representation-announces-lawsuits-challenging-admissions-policies-at-harvard-univ-and-univ-of-north-carolina-chapel-hill
(last visited Jan. 21, 2019). The president of Students for Fair Admissions is Edward Blum, who is also the president of the
Project on Fair Representation, which was founded in 2005 “to support litigation that challenges racial and ethnic classifications
and preferences.” About Us, Project on Fair Representation, https://www.projectonfairrepresentation.org/about (last visited Jan.
21, 2019). The Project on Fair Representation has been involved in admissions lawsuits with other universities, including Fisher
v. University of Texas at Austin. Brittany N. Ellis, The Harvard Admissions Lawsuit, Explained, Harv. Crimson (Nov. 7,
2016),http://www.thecrimson.com/article /2016/11/7/harvard-admissions-lawsuit-explainer.
9
Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198, 2227 n.4 (2016) (Fisher II) (Alito, J., dissenting) (“The majority’s assertion
that UT’s race-based policy does not discriminate against Asian-American students … defies the laws of mathematics. UT’s
program is clearly designed to increase the number of African-American and Hispanic students by giving them an admissions
boost vis-a-vis other applicants.”).
10
I acknowledge that the term “Asian American” encompasses many different cultures and experiences, adding to some of the
problems of Asian Americans being viewed as a monolithic group. However, the use of terms such as “Asian Americans,”
“African Americans,” and “Hispanic Americans” is not intended to describe the experience of all individuals within such “groups,”
but as a way to discuss the larger-scale issues surrounding affirmative action within the context of SFFA v. Harvard. The terms
“Asian Americans,” “African Americans,” and “Hispanic Americans” were chosen based on how college admissions categorize
ethnicity. See Admissions Statistics, Harvard C., https://college.harvard.edu /admissions/admissions-statistics. The discussion
of stereotypes in this Note is used solely to acknowledge their negative impact and not to recognize them as truth, and while
stereotypes in any context may be harmful, it may be necessary to discuss them in order to understand our own internal biases.
11
See Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History 212-17 (1999). In order to maintain
dominance and power, wealthy white males recognized they would need to expand the civic identity to include poor white males.
Id. By creating a dissonance between poor whites and minority groups, wealthy white males were able to maintain their power in
the political system. Id.
12
See id. at 197-242 (describing American ascriptivism). Smith offers a theory that the American political system developed
with influence from an ascriptive tradition based on racist, sexist, and nativist assumptions that only allowed certain individuals to
take part in the American civic identity. Id. SFFA’s complaint may be a reaction to the egalitarian civic reforms over the last few
decades, showing that democratic principles have failed to create a shared sense of “peoplehood” and instead left people
Page 4 of 34
92 S. Cal. L. Rev. 442, *446
Americans in the affirmative action discussion is one of increased political activeness and unity and argues for a
change in the way elite universities value Asian American diversity when assessing applicants in a holistic process.
I. THE CURRENT AFFIRMATIVE ACTION STANDARD
All racial classifications are subject to strict scrutiny, even where the classification is non-invidious as it is for
affirmative action. This requires the means to be “narrowly tailored” to a “compelling government interest.” 16 For
affirmative action, Regents of the University of California v. Bakke established that diversity, through its educational
benefits, is a compelling state interest under strict scrutiny analysis. 17 Diversity was originally conceived as simply
racial diversity; however, Justice Powell’s majority opinion in Bakke advocates for a diversity that goes beyond race
to include diversity of ideas, opinions, and backgrounds in order to improve the educational experience. 18 The
Court explicitly bans the use of a quota system where race is used as a dispositive factor in admissions, but it
permits race to be used as one of many factors in the diversity consideration. 19 There is a [*447] clear rejection
of race being used as a permissible factor in admissions as a means to remedy past discrimination; instead, the
Court focuses on the instrumental justification, which states that race can provide educational benefits by accepting
candidates with diverse experiences. Justice Powell specifically cites to Harvard’s admissions policy, which uses
race as one of many “plus factors,” in a holistic consideration of an applicant, as a permissible example of a policy
that would allow an institution to maintain freedom in its academic goals. 20
Justice Powell’s opinion in Bakke created the blueprint for the Court in Grutter v. Bollinger to firmly establish that
diversity is the only justification for race-conscious admissions policies that would satisfy strict scrutiny. 21 The
Court continued to recognize that there were educational benefits 22 from diversity that could satisfy a compelling
government interest. 23 Grutter determined that admissions policies seeking to obtain a “critical mass” of diverse
students were not a violation of the prohibitions against racial balancing and proportional representation. 24 Critical
mass does not refer to a specific quota or percentage, but refers to “meaningful numbers” sufficient to “encourage[]
desiring for a return to some “superior culture” of the past. For Asian Americans to become included in those SFFA deem worthy
enough to have earned their spots at Harvard, it comes at the cost of perpetuating stereotypes such as the model-minority myth,
which are ultimately harmful to the Asian American community. SFFA may be willing to include Asian Americans in higher
education, but does this inclusion also apply where it does not benefit the white community?
13
See infra notes 73, 76-77 and accompanying text.
14
Throughout this Note, the terms “minority” and “white” were chosen to label groups in the admissions process as opposed to
terms like “preferred” and “non-preferred” applicants or any other potential distinction. This is not to say that the admissions
experience of all white applicants or all minority applicants is the same.
15
See Matsuda, supra note 5, at 149-50.
16
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Strict scrutiny is the most stringent form of judicial review
courts use in determining the constitutionality of laws. To pass strict scrutiny, the law must be “narrowly tailored” to achieve a
“compelling state interest.” Id. Racial classifications are subject to strict scrutiny, and even where there is non-invidious motive,
such as the case for affirmative action, strict scrutiny still applies. See Korematsu v. United States, 323 U.S. 214, 216-24 (1944)
(representing the first official use of strict scrutiny for racial classifications, though the Court’s finding that the law was narrowly
tailored to a compelling state interest of national security has been criticized for being based on unfounded data provided by the
state and was expressly overruled in Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018)); Adarand, 515 U.S. at 227.
17
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 311-14 (1978). Justice Douglas’s dissenting opinion in Defunis v.
Odegaard, 416 U.S. 312, 321-44 (1974), in which he argued that courts should give deference to educators in admissions
policies, set the stage for Justice Powell’s opinion in Bakke. See Bakke, 438 U.S. at 311-14. The extent to which diversity would
be able to apply as a compelling government interest to other areas outside of public education is uncertain. Grutter v. Bollinger,
539 U.S. 306, 329 (2003) (“We have long recognized that, given the important purpose of public education and the expansive
freedoms of speech and thought associated with the university environment, universities occupy a special niche in our
constitutional tradition.”).
Page 5 of 34
92 S. Cal. L. Rev. 442, *447
underrepresented minority students to participate in the classroom and not feel isolated.” 25 The Court gives
institutions of higher education deference in deciding whether they need diversity to pursue their educational
mission. 26 Once the university determines diversity to be one of [*448] its educational goals, a race-conscious
admissions policy is permissible only if race is used as merely a “plus factor” in the context of a holistic process that
involves individualized consideration. 27 Individualized consideratio…
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