Affirmative Action for Lax Bros
affirmative action, Asian Americans, discrimination, racial bias
If the Supreme Court justices care about protecting Asian Americans from unfair discrimination, then they should hold that Harvard engaged in a pattern of biased evaluation of Asian American applicants to the benefit of white applicants, and require Harvard to either eliminate the personal rating or fix it. To the extent that other racial groups have unjustifiably benefited by being rated higher on the personal rating than Asian Americans, fixing the personal rating would eliminate that harm as well. Race should play no role in assessing a person’s character. The justices should also declare that the Athlete–Legacy–Dean’s List–Children of Faculty and Staff (ALDC) admissions track is unfair discrimination and require Harvard to abolish it. And if the justices also care about ensuring the inclusion of underrepresented racial groups in higher education, then they should uphold Grutter v. Bollinger. They can do both—protect Asian Americans from racial bias and promote inclusion of underrepresented racial groups. To overrule Grutter in the name of protecting Asian Americans would be raw judicial activism that does little to actually protect Asian Americans from discrimination that favors whites. To ban affirmative action would be a political act simply furthering many of the justices’ long-held animus toward racial inclusion.
Oh, Reginald, "Affirmative Action for Lax Bros" (2022). Law Faculty Articles and Essays. 1244.