Skip to content

2024 Ending Affirmative Action Does Not End Discrimination against Asian Americans

Abstract

In this article, I examine the complex relationship between affirmative action and discrimination against Asian Americans in college admissions, focusing on the 2023 Supreme Court decision in Students for Fair Admissions v. Harvard. I argue that while the Court effectively ended race-conscious admissions, this decision fails to address—and perhaps obscures—the core factors that disadvantage Asian Americans compared to White applicants in elite college admissions. Through careful analysis of how courts assess discrimination through different legal frameworks and statistical methods, I demonstrate that no court actually found legally cognizable discrimination against Asian Americans in the Harvard case. I explain how legacy preferences, athletic recruitment, and potentially biased personal ratings—all of which favor White applicants over Asian Americans—remain untouched by the SFFA ruling. Drawing on empirical evidence and legal doctrine, I conclude that ending affirmative action for underrepresented minorities does little to remedy discrimination against Asian Americans. Indeed, I suggest that equating these two distinct phenomena represents a category error that hampers rather than advances the development of equitable admissions policies. My analysis reveals how the weaponization of Asian American experiences in the affirmative action debate diverts attention from more significant barriers to racial equity in higher education.

“The upshot is that it’s simply wrong to think that the Supreme Court struck down discrimination against Asian Americans. The truth is that none was ever (legally) found.”

download PDF @ SSRN or https://escholarship.org/uc/item/58q6f8xb