Asians, Department of Justice, Minority Issues

Asian Americans Are Being Used As A Wedge To Advance The Anti-Affirmative Action Agenda

Many Asians are actually strong proponents of affirmative action.

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“Nobody wins when the family feuds / We all screwed ’cause we never had the tools / I’m tryna fix you / I’m tryna get these people with no stripes to be official / Y’all think small, I think Biggie / Y’all whole pass is in danger, ten Mississippi.” — Jay-Z

Affirmative action has survived multiple trips to the Supreme Court, but it may be severely amputated after the Trump administration’s mission to cut it down.

This week, the New York Times reported the White House is considering “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.”

ATL’s own Elie Mystal opined on the issue here. While Harvard Law Professor Noah Feldman and Stanford Law Professor Richard Thompson staked out differing positions on whether the Trump administration’s efforts to cripple affirmative action policies can ultimately succeed.

Feldman explained:

The Justice [Department’s] approach is a significant departure from past practice — because for the most part, anti-affirmative-action litigation has always been a private affair. The named plaintiffs in such cases are typically candidates who say they were denied admission on the basis of race….

Here Trump and Sessions will be breaking new ground. It’s another reminder that, whatever limits Trump faces in building coalitions to pass legislation, there is plenty he can do solely in the executive sphere to affect the country’s future.

While Thompson wrote:

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The Department of Justice (DOJ) now claims that job listings seeking lawyers to oppose affirmative action were merely put out in response to a complaint by Asian Americans claiming race discrimination in university admissions. Veteran DOJ civil rights lawyers, however, doubt this is true….

Although the DOJ may intimidate some schools into scaling back or dropping lawful affirmative action plans, it can’t actually force universities to eliminate affirmative action. It can only encourage racial antagonism and perhaps use affirmative action as a political distraction in the 2018 elections and beyond.

If we are to believe the Trump administration’s claim that they are only seeking lawyers in response to a single complaint filed in 2015 accusing Harvard of discriminating against Asian Americans in its undergraduate admissions processes, then conservative advocate Edward Blum should start becoming a household name.

Court watchers (especially in Texas) may recognize Edward Blum as the mastermind behind the case of Abigail Fisher, a white applicant who was denied admission to the University of Texas for the fall 2008 entering class, and the architect behind the Shelby County case, which invalidated critical provisions of the Voting Rights Act of 1965. Shortly after Blum’s 5-4 voting rights victory, Texas announced that a voter identification law that had been blocked would go into effect immediately, and that redistricting maps there would no longer need federal approval, according to The New York Times. Unfortunately for some, the Texas voter i.d. law was ultimately deemed illegal.

Blum may or may not be linked to the Coalition of Asian-American Associations’ 2015 complaint, but as the President of Students For Fair Admissions, Inc. (SFFA), he spearheaded the 2014 affirmative action cases against Harvard and the University of North Carolina at Chapel Hill. In fact, the Department of Education originally dismissed the 2015 complaint against Harvard because of Blum’s similar lawsuit against the university.

But now the DOJ has brought the Coalition’s complaint back to the forefront. Anurima Bhargava, who served as Chief of the Educational Opportunities Section of the Civil Rights Division at the DOJ under Obama, called the DOJ’s sudden efforts to suddenly revive the 2015 complaint “peculiar, at best.”

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The most recent SCOTUS case addressing affirmative action policies, decided in June 2016, upheld the University of Texas at Austin’s race-conscious program by a vote of 4 to 3. It was the second time, in two years, that affirmative action (via the Fisher v University of Texas at Austin I and II cases) survived SCOTUS. And after the cases of Abigail Fisher (the daughter of Blum’s friend) failed, Blum reset his sights on Asian Americans. Now Blum’s anti-affirmative action strategy is beginning to truly crystalize: to recruit and place Asian-Americans plaintiffs on the frontlines of the affirmative action battle.

According to Reuters:

Blum said his idea to bring an Asian-American lawsuit against affirmative action emerged about two years ago, after the Supreme Court decided the Fisher case. In an opinion rejecting a challenge to the University of Texas’ affirmative action policy, the court nevertheless suggested that it might be open to scrutinizing such policies more closely in the future.

‘That was the catalyst,’ Blum said, adding that he was ready to take things to a ‘higher, more dramatic’ level.

Despite Blum’s rather reductive use of Asian Americans as a model minority to dismantle affirmative action programs, many Asians, including myself, are actually strong proponents of affirmative action.

However, many other Asians, including 60+ affinity groups, are against such policies. Earlier this year, Blum began recruiting new Asian American plaintiffs at UT Austin through his SFFA website UTnotFair.com, which echoes his 2014 efforts at Harvard, using the former website HarvardnotFair.org.

Blum isn’t a politician (he unsuccessfully ran for Congress in the early 1990s), nor is he an attorney. But Blum is making his name as an alleged advocate for Asian Americans. Whereas Harvard once filed an amicus brief in support of the UT Austin’s use of race-conscious admissions policies to create a diverse student body, now the eyes of Texas will be following the DOJ’s and Blum’s renewed spotlight on Harvard’s affirmative action policies.

Blum is either really, really invested in Asian Americans getting into college, or there may be an ulterior motive. I cannot help but worry about how the pressure by the DOJ on schools to scale back or drop lawful affirmative action plans will ultimately corrode the pipelines to diversity in legal education.

There is something very odd about recruiting and handpicking Asian Americans to be the newest pawns in the affirmative action battle. Asian Americans don’t often receive the limelight, and I simply cannot imagine this is the way the majority of Asian Americans want to be viewed. But it is clear going forward, we will be key players in the future fight for or against affirmative action policies. More and more, I find our role in Blum’s complaints and his role as our savior and advocate peculiar, at best.

In last year’s affirmative-action case, an amicus brief was filed on behalf of former high-ranking officers and civilian leaders of our country’s armed services. As stated in their brief:

Broad access to the education that leads to leadership roles is essential to public confidence in the fairness and integrity of public institutions, and their ability to perform their vital functions and missions…. The fact remains: Today, there is no race-neutral alternative that will fulfill the military’s, and thus the nation’s, compelling national security need for a cohesive military led by a diverse officer corps of the highest quality to serve and protect the country.

For other examples of the need for diversity, just look at the problems in our school districts, public schools, police forces, and neighborhoods. Or simply read today’s newspaper headlines. Regardless of your views regarding affirmative action, it is important to understand the logic behind such proposals.

Whether you deem a policy impossible to implement or believe our system should be “colorblind,” it is important to understand the history of such policies and the legacies of our system.

For some, it is race-consciousness that is racism. For others, racism is reality and history.

Resumes are due to the White House on August 9 to work on this new mission, but this project should also serve as a wake-up call to those aiming to protect inclusive environments and worried about diversity dying in our education system.

Renwei Chung is the Diversity Columnist at Above the Law. You can contact Renwei by email at projectrenwei@gmail.com, follow him on Twitter (@renweichung), or connect with him on LinkedIn.

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