The Trump administration’s Justice Department recently announced that it would investigate and file suit against colleges and universities whose affirmative action policies discriminate on the basis of race. This new priority is unsurprising: Conservatives have long opposed affirmative action, and cracking down on policies perceived to disadvantage white people is likely to play well with Trump’s nearly all-white base.
Yet affirmative action opponents are trying hard to argue that they are concerned about more than just white people. A comment by Roger Clegg, president of the conservative Center for Equal Opportunity, provides a window into one strategy the latest war on affirmative action will probably adopt. “It is frequently the case that not only are whites discriminated against now, but frequently Asian Americans are, as well,” Clegg said.
Anti-affirmative action activist Edward Blum has specifically attempted to recruit Asian American plaintiffs, using ads with photographs of Asian American students to do so. (A Blum-backed lawsuit against Harvard University currently features a highly qualified Asian American plaintiff, perhaps as a more appealing alternative to unsuccessful plaintiff Abigail Fisher, who lost before the Supreme Court in Fisher v. University of Texas and whose qualifications would not have merited admission to the University of Texas regardless of her race.)
Yet this new tactic fails in multiple ways. The argument that affirmative action harms Asian American people is simply inaccurate. And worse, the argument is strategic rather than motivated by real concern for the well-being of Asian Americans.
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Legal precedent, extensive research and experience support the idea that affirmative action has benefits for all students, including Asian American students. The Supreme Court has accepted since 1978, and reaffirmed just last year, that race-conscious admissions policies comply with the Constitution when they promote diversity and include a holistic evaluation of all students. Research supports this view, finding that diverse learning environments improve learning, increase interracial understanding and better prepare students for careers in a diverse society.
As professional educators, we can attest firsthand to the benefits of affirmative action. Diverse classrooms promote discussions that would not occur in racially homogeneous learning environments. In our constitutional law classes, for example, we have found no substitute for the firsthand accounts of black and brown men who have been racially profiled, or for the narratives of Japanese American students whose relatives were sent to internment camps during World War II.
Moreover, affirmative action programs benefit Asian American students in specific and concrete ways. Historically, such programs were critical in making public higher education available to Asian Americans in the 1960s and 1970s, prior to which Asian Americans had suffered exclusion and de jure segregation in public education like other people of color. So Asian Americans are already the beneficiaries of affirmative action in education, both firsthand and as the children of people who benefited firsthand and who consequently had improved professional opportunities and greater economic security.
Affirmative policies continue to benefit Asian American students and communities today. While not every Asian American subgroup remains underrepresented, many are for at least some schools, including Vietnamese, Thai, Lao, Burmese, Filipino, Hmong, Native Hawaiian and Pacific Islander students. Race-conscious admissions policies give school officials the latitude to take into account the unique experiences of these individuals.
Given the many ways that affirmative action benefits Asian American students and their communities, we should see conservative solicitude for Asian Americans “harmed” by affirmative action as strategic rather than genuine. Conservative opponents of affirmative action have not, generally speaking, taken an interest in other issues that affecting Asian American welfare in unique ways, ranging from employment discrimination to health care to immigration.
So why the conservative concern when it comes to affirmative action? The answer is that Asian Americans provide a convenient tool for opponents of affirmative action. By framing opposition to affirmative action as concern for Asian Americans, opponents of affirmative action can protect the existing racial hierarchy — with white people at the top — while disguising their efforts as race-neutral rather than racially motivated.
We suspect that Asian Americans will see through this clumsy and cynical attempt to deploy them in service of dismantling affirmative action. And at least for the time being, the Supreme Court has been clear that affirmative action policies are constitutional. But if anything, anti-affirmative action efforts demonstrate the need for racial diversity. One way to improve upon the shallow racial understanding of affirmative action opponents is to ensure diverse educational environments that promote clear thinking and honest conversation about racial issues.
Nancy Leong is a professor at the University of Denver Sturm College of Law. Erwin Chemerinsky is a dean and professor of law at the University of California, Berkeley School of Law.
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