By Guest Contributor: David Shih (@professorshih)
Originally posted on David Shih
Supreme Court Justice Samuel Alito begins his dissenting opinion to Fisher v. University of Texas by pronouncing that “Something strange has happened since our prior decision on this case.” He wonders how the University of Texas (UT) could emerge victorious from its contest with Abigail Fisher over the constitutionality of its race-conscious admissions policy without addressing “the important issues in the case” raised by the Court three years ago (Fisher II 28). Then and now, UT did not meet Justice Alito’s strict scrutiny when explaining why affirmative action is a compelling interest for the government–the only reason allowed under the Fourteenth Amendment’s Equal Protection Clause for the state to make decisions based on the race and ethnicity of an individual. This time around, however, Justice Alito has a new reason to be skeptical.
Justice Alito devotes significant attention to his point that UT invalidates its compelling interest claim by discriminating against Asian Americans. “How can a diverse student body contribute to the greater good,” he seems to ask, “when Asian American diversity doesn’t count?” This would be a fair question if not for copious evidence refuting the notion that affirmative action discriminates against Asian Americans (see the amici submitted on behalf of UT representing over one-hundred Asian American organizations, including the Asian American Legal Defense and Education Fund and Asian Americans Advancing Justice). In this blog I want to draw attention to another, rather obvious flaw in Justice Alito’s thinking. Abigail Fisher isn’t an Asian American.
Of course, Justice Alito never said that Abigail Fisher is an Asian American. But he also never said that she is white. The landmark case Regents of the University of California v. Bakke (1978) references white racial identity ninety times. Similarly, the rulings from Hopwood v. Texas (1996) and Grutter v. Bollinger (2003) recognize white identity as well as the whiteness of their petitioners as salient information. Justice Alito mentions white people only ten times in his fifty-one page dissent, and not once does he use the word in reference to Fisher herself. Yet the words “Asian American” appear sixty-two times in his dissent. If not for the ubiquity of Abigail Fisher’s image in the media today, one might think that Justice Alito were examining the petition of a person like me–a Chinese American.
Taking his cue from anti-affirmative action groups such as The Asian American Legal Foundation and The 80-20 National Asian-American Educational Foundation, but also formulating his own unique rationale, Justice Alito wastes little time before censuring UT for failing to explain “why the underrepresentation of Asian-American students in many classes justifies its plan, which discriminates against those students” (Fisher II 26). UT discriminates against Asian Americans, he argues, despite their being more racially-isolated and lonely than “Hispanics.” He is offended even by UT’s use of the term Asian American because it collapses the “backgrounds . . . ideas and experiences” of people belonging to various Asian ethnic groups (Fisher II 50-51). In short, UT doesn’t care about Asian American people, Justice Alito implies.
This approach is strange. Why lay out the putative disadvantage of being Asian American when your petitioner is a white woman? Why not explain how UT discriminates against white people?
One reason is that opponents of affirmative action do not have to make that argument in order to win. Since Bakke, the compelling interest of affirmative action is not remediating the effects of institutional racism but cultivating a thing called diversity. Affirmative action is constitutional or unconstitutional depending on whether you can prove that diverse classrooms improve learning and therefore society–not whether you can prove that white people have a leg up on black, Latinx, or Native American people when it comes to getting a good education and making a good living. Thus the responsibility of being truly race conscious falls not on the state but on vulnerable students of color, who are expected to educate their white peers in order to justify their own place at the table. It is an unjust burden, and diversity may kill affirmative action still.
But another reason to go on about Asian Americans is to sidestep a sustained consideration of white people as a racial group. Justice Alito’s dissent deliberately avoids this conversation and, therefore, all of the reasoned debate it would engender. Whence the amici from pro-white organizations or the citation of research on white victimhood? When the social position of white people is not up for critique, the racial status quo is maintained. The most powerful white supremacy is that which improves social outcomes for white people without involving them as white people in the struggle. Justice Alito’s dissent now enters the record as an authoritative framing of the meaning of Asian American identity.
We should understand this representation of Asian Americans as indicative of how the system of racism evolves in order to maintain itself. Specifically, Asian Americans have become a proxy group for white Americans. According to Justice Alito,
Justice Alito stashes white racial identity behind terms such as “other applicants” and “students who do not receive the same boost.” Ironically, he later faults the majority on the Supreme Court and the Fifth Circuit for acting “almost as if Asian-American students do not exist,” their “willful blindness to Asian-American students” a “shameless” omission intended to maintain “the neat story the Fifth Circuit wanted to tell” (Fisher II 47-8). The “neat story” of white supremacy upheld by Justice Alito here is that white people do not have a race.
Justice Alito implies that the “limited number of spaces” at UT are fought over by students of color alone. But white students also vie for these spaces, and they capture more than their share of them. For the Class of 2008, which Abigail Fisher had applied to, white students claimed 790 of 1,208 seats (65%) through the holistic selection process that considers race (Supp. App. 157a). This share exceeds the share of white students (48%) yielded by the “race-neutral” Top Ten Percent Plan. Thus, white students are overrepresented in UT’s race-conscious yield–in every year from 2005 to 2008, post-Grutter–a fact that refutes the claim that “African-Americans and Hispanics” receive a racial “boost.” In fact, the numbers suggest that Justice Alito has it backward: there is something about white racial identity that inequitably generates the “plus factors” privileged by the holistic selection process.
Here it’s not necessary to review all of the social advantages correlated with whiteness that would light up a college application. My main point is not to make whiteness more visible; it is to show how whiteness has enlisted Asian American identity to make itself less visible. Most would agree that it is less controversial for a white jurist to defend Asian Americans against oppression than it is for him to champion the rights of white people. (Accordingly, in recent years, only the opinions of Justice Clarence Thomas have regularly and unequivocally stated that affirmative action discriminates against white people.) The oppressed Asian American college student is only this year’s version of the model minority stereotype that stands in for virtuous whiteness while standing apart from deficient blackness.
And yet I believe that the long-familiar stereotype of the Asian American as the “honorary white” is making room for something new and insidious. We are witnessing racism adapt to the present political landscape through the representation of white people as “honorary Asian Americans” when doing so suits white interests. As I have stated before, whiteness will appropriate what it finds lacking in itself. Here I’m not talking about Scarlett Johansson and the cultural appropriation of Asianness, which is an important, related issue, but the appropriation of a juridical identity. What Asian American students have that white students do not have is legal standing that does not expose whiteness to scrutiny in affirmative action challenges.
This is the thinking of Students for Fair Admissions (SFFA), which, in 2014, brought suit against Harvard University and the University of North Carolina-Chapel Hill. Founded by Edward Blum, who orchestrated Abigail Fisher’s lawsuit and others targeting Civil Rights gains, SFFA appears to be seeking an Asian American face for its lawsuits. Having waited for guidance from the Fisher ruling, SFFA and Harvard are now set to proceed with this new challenge to affirmative action. These lawsuits may yet find themselves before the Supreme Court because the “sui generis” nature of UT’s admissions process–a Frankenstein’s monster of race-conscious and race-neutral policies–may not offer guidance for a review of Harvard’s and UNC’s more straightforward affirmative action policies. Still, Justice Alito’s dissent–especially his newfound interest in Asian Americans–now seems to be more strategic than “passionate, scattershot, and often barely coherent.” Time will tell.
In 1987, I started my first year as an undergraduate at UT. This was before the advent of the Top Ten Percent Plan, so I don’t know how much my being Chinese American mattered to UT. But I do know that in those days I didn’t want my race to matter to anyone. It was much easier and comfortable to think about myself in a race-neutral way–as an individual. This was my mindset as I was walking through the West Mall one afternoon, when someone pushed a piece of paper into my chest. It was a flyer inviting me to an Asian American student organization meeting. I can still recall the twinge of resentment I felt toward the Asian person with the flyers. She had judged me by my race alone. I saw Asian American identity then in the same way that Justice Alito does now, as a burden to individuality. If you’re lucky, like me, you stop thinking this way, eventually learning that you don’t become an Asian American all by yourself. You don’t become any race all by yourself. I hope the next Abigail Fisher knows that.
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