Conservative Supreme Court could sound death knell of affirmative action

REGIONAL STUDIES EAST ASIA PROGRAM, HARVARD

Recent graduates celebrate during Harvard University's commencement ceremonies.

ANALYSIS

The US Supreme Court added affirmative action to it's hit list of progressive positions it wants to undermine or eliminate. First it gutted the Voting Rights Act, then added provisions that practically abolished Roe v. Wade in some states and now, on Jan. 24,  the Supreme Court decided to take on affirmative action.

For over a half century, the Supreme Court and almost all the lower courts have affirmed the need to take into account race as a factor in school admissions. But this is not a moderate court. The Republican controlled Senate and the GOP's rightwing has taken over the highest court in the land, now controlling six of the nine Justices. This is a new court, prone to making decisions on a partisan basis instead of relying on precedent and the Constitution.

And Asian Americans are right in the middle of this scrum that will decided the future of affirmative action, a keystone policy that has guided the US towards equity in school admissions and job opportunities for over a half-century.

"Affirmative action, diversity, and anti-discrimination programs are essential to opening up opportunities for women and people of color, including Asian Americans, in all aspects of public life, including higher education, and have been foundational building blocks for a more just and equitable society," said a statement from Asian American Advancing Justice, a coalition of five AAPI legal aid organizations.

On Jan. 24, the high court decided to hear the arguments in the cases of Students for Fair Admissions v. Harvard University, and SFFA v. University of North Carolina.

In both complaints, SFFA contends that the admissions processes of the universities discriminated against qualified Asian Americans.

SFFA, a front for anti-affirmative action activist Edward Blum, purports to represent Asian American students who were allegedly denied admission to these schools in favor of less qualified students.

“Harvard and the University of North Carolina have racially gerrymandered their freshman classes in order to achieve prescribed racial quotas,” said Blum in a statement. “Every college applicant should be judged as a unique individual, not as some representative of a racial or ethnic group.”

Lower courts and in two previous decisions by the Supreme Court have recognized the need to consider race as one factor in the school admission process in order to open its campuses to groups that have been underrepresented. The courts have admitted the necessity to retain affirmative action, which was first introduced in 1965 and received its first legal challenge in 1978.

The last time the High Court ruled on affirmative action was in 2016 involving the University of Texas admission procedures. At the time, the Justices ruled in favor of using race as a factor in admissions.

But that was then. Today, the Supreme Court is ruled by six conservative majority, including three who were appointed by Donald Trump. The Supreme Court will likely hear oral arguments on the case in October this year and render a ruling in 2023.

In order to avoid the appearance of "reverse discrimination," a flaw that plagued Blum's other attempts to prove affirmative action discriminated against White students, he convinced disgruntled Asian American applicants who failed to get admitted to Harvard to join a complaint against Harvard.

The legal complaint was filed in 2014. Although lower courts filed in favor of Harvard, Blum persisted and appealed the case to the U.S. Supreme Court in 2020. The Justices deferred hearing the case, but asked the U.S. Solicitor General to give Biden administration's position and recommendation. The Solicitor General last November recommended that the Justices  reject Blum's appeal.

Of the 2,230 first-year students accepted at Harvard in the fall of 2021, 25.9% were Asian American; Blacks made up 15.9%; Latinos, 12.5%; Native American, 1.1%; Native Hawaiian, 0.5%. Whites made up about 45% of the class of 2025, still the largest ethnic group.

“Race continues to unfairly limit educational opportunities for students of color,” said. Niyati Shah, director of litigation for the group Asian Americans Advancing Justice, after the court announced its decision to accept the case. “Race-conscious admission policies provide the chance for the student to tell their whole story, inclusive of their race, ethnicity, and lived experiences, in addition to their academic achievements.

Shah added: "Asian Americans are being used as a wedge in these cases to try to dismantle race-conscious admissions policies, but the fact is 70% of Asian Americans support affirmative action. ... We reject the use of Asian Americans as proxies to attack the constitutionality of race-conscious programs. Race-conscious programs should not be conflated with racial quotas or other forms of unlawful discrimination.”

EDITOR'S NOTE: I was admitted to the University of California, Berkeley under the affirmative action program. For additional commentary, news and views from an AAPI perspective, follow me on Twitter @DioknoEd.

New immigration rules target pregnant women and immigration advocates

Pregnant women are the latest targets of Donald Trump's harsh immigration policies. The administration also wants to make it harder for immigrants or refugees to find legal help.

The Trump administration on Thursday published new visa rules aimed at restricting "birth tourism", in which women travel to the United States to give birth so their children can have a coveted US passport.

“This ugly development is ultimately an issue of racial profiling of Asians. The Trump administration will go to any lengths to demean immigrant women. Millions of Asian people come to the U.S. to visit their families and targeting them because of their race or country of origin is discriminatory and wrong," said National Asian Pacific American Women’s Forum Executive Director Sung Yeon Choimorrow in a statement.

As an immigrant woman who has experienced harassment at an airport when I was pregnant, this incident and the administration’s rule are disturbing, invasive, and reveal the coercive and invasive methods that our government will use to enforce the new rule," Choimorrow's statement continued.

"This administration has a track record of detaining pregnant people and has made it impossible for victims of domestic violence and sexual assault to seek asylum. There is no justification for the harm they have done to immigrant women or for their xenophobic agenda.”"

Visa applicants will be denied tourist visas if they are determined by consular officers to be coming to the US primarily to give birth, according to the rules in the Federal Register. It is a bigger hurdle to overcome, proving they are traveling to the US because they have a medical need and not just because they want to give birth in the country, according to Al Jazeera.

Trump's administration has attempted to restrict most forms of immigration. Birthright citizenship, which is embedded in the US Constitution - anyone born in the US is considered a citizen. Trump has threatened to go against the Constitution in order to end that right, but scholars and members of his administration have said it is not so easy to do.

Consular officials be placed in a nearly impossible position of having to visually determine if a woman is pregnant because they are not allowed to asked a visa applicant if she is pregnant.

Trump also wants to make it illegal to offer legal help when people have problems with immigration rules or their status in the US, 

Advancing Justice | AAJC (Asian Americans Advancing Justice | AAJC) filed an amicus brief Jan. 22 before the Supreme Court in United States v. Sineneng-Smith to urge the Court to strike down a federal statute that makes it a felony to “encourage or induce” individuals to enter or remain in the U.S. unlawfully.

This statute has the potential to chill the everyday work of immigrants’ rights advocates and service providers who often assist undocumented individuals, their families, and their communities. The brief was joined by 33 community-based, advocacy, and social services organizations.

“This statute threatens everyday interactions with immigrants and people advocating on behalf of them because any speech that could be construed as helping an immigrant stay in the United States would be seen as a violation of the law,” said Niyati Shah, assistant director of legal advocacy at Advancing Justice | AAJC. 

“In a time where there is already so much fear, immigrant communities and their advocates should be able to receive legal help and information without fear that such help will subject them to prosecution.”