Jerry Kang, Asians Used, Asians Lose: Strict Scrutiny from Internment to SFFA, 113 Cal. L. Rev. 979 (2025).
Abstract
In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), the Supreme Court ended race-conscious affirmative action in higher education as we knew it. The organization that successfully brought suit, Students for Fair Admission (SFFA), is hardly an Asian American civil rights organization. Instead, it is an entity created by Ed Blum, who has a long history of challenging affirmative action programs. Nevertheless, SFFA specifically foregrounded the claim that Asian American applicants were treated worse than similarly situated Whites in the admissions process. As such, SFFA seemed to be fighting what looked like straight-forward, old-school race discrimination: worse treatment of a racial minority (Asians) as compared to the racial majority (Whites). But after a two week trial, the district court rejected that allegation and found no such discrimination. That finding was subsequently affirmed by the First Circuit Court of Appeals. In short, SFFA lost on the facts. But at the Supreme Court, they won a far bigger prize, not on the facts but on the law: the end of affirmative action as we know it.
Many scholars have called this a “bait-and-switch.” SFFA’s bait, which would draw attention, sympathy, and support, was stopping discrimination against Asian Americans. The switch was that SFFA’s litigation ended up doing something quite different—namely, ending affirmative action for underrepresented minorities. Superficially, these may appear to be the same thing. But that assumes that discrimination against Asian Americans is equivalent to affirmative action for underrepresented minorities. As I explain, that assumption conflates “negative action” against Asians (i.e., Asians being treated worse than similarly situated Whites) with affirmative action granted to others. Unfortunately, ending affirmative action for others does not stop negative action against Asian Americans.
This Essay extends the bait-and-switch critique by connecting SFFA to two earlier moments in equal protection history. The first is Japanese American internment during World War II and the Supreme Court’s creation of the strict scrutiny doctrine. The second is the affirmative action wars that occurred in the 1980s and 1990s, which resulted in the current doctrine requiring strict scrutiny even for “benign” affirmative action. In all three moments—internment, affirmative action wars, and SFFA —Asian Americans were curiously exploited. A pithy refrain captures my thesis: Asians used, Asians lose.
Keywords: Asian Americans, affirmative action, SFFA, strict scrutiny, higher education, admissions, Internment, Japanese Americans, World War II, Students for Fair Admissions, negative action
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