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Asian Americans have long occupied a precarious position in America’s racial landscape, exemplified by controversies over elite university admissions. Recently, this has culminated with the Students for Fair Admissions, Inc. v. President & Fellows of Harvard College case. In January 2022, the Supreme Court granted certiorari in this case, and it will hear arguments and make a ruling in the next year or so. Students for Fair Admissions (“SFFA”) has attempted to link “negative action,” or discrimination against Asian Americans in admissions in favor of White Americans, with “affirmative action,” or race-conscious admissions policies intended to increase the enrollment of underrepresented applicants. This Article examines SFFA v. Harvard and the social and historical context for the case, focusing on the role of racial stereotypes of Asian Americans.

The Article is novel in three respects. First, it goes beyond the “model minority” stereotype of Asian Americans as high academic achievers. The model minority stereotype is important, but there are other stereotypes of Asian Americans that are also significant in admissions controversies. Second, this Article examines negative action not only from a legal and empirical lens, but also from a contextual and perceptual standpoint. It argues that Asian Americans’ perceptions of negative action are as important as the realities and that these perceptions should be addressed. The division created by allegations of negative action could have implications beyond the affirmative action debate.

Third, the Article integrates legal scholarship and analysis with the work of scholars in Asian American Studies. This integration provides valuable insights on the positioning of Asian Americans in America’s racial hierarchy. The Article ultimately argues that Asian Americans should support affirmative action and that racial justice advocates should address negative action even if its tangible impact is small. Although the SFFA v. Harvard litigation attempts to create political divides between people of color, it also brings opportunities for mutual understanding and coalition-building. By engaging these opportunities, Asian Americans can become more prominent contributors to the discourse on American racism.

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Boston University Law Review





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