Asian Pacific American Law Journal

Today’s challengers of affirmative action in university admissions allege that these policies discriminate against Asian Americans. However, this focus detracts from a more just and effective locus of intervention: admissions disparities between white and Asian American applicants. Notably, defenders of affirmative action err when they reject claims of discrimination against Asian Americans by pointing to differences in facially neutral characteristics between white and Asian American applicants to explain away these admissions disparities. They fail to recognize how these differences in facially neutral factors between white and Asian American applicants resultfrom legacies of racial injustice.

To avoid this error, this Article draws on anti-subordination and sociological literature to posit that identifying unfair treatment against Asian American applicants is fundamentally a normative issue. The question of whether the admissions disparities between white and Asian American applicants evince discrimination will never be settled without grappling with which facially neutral criteria can fairly and legitimately explain these disparities. An inquiry into the fairness of facially neutral criteria must consider how such criteria build on the subordination of Asian Americans. To concretize this inquiry, this Article uses the analyses and data from SFFA v. Harvard to examine the fairness of certain facially neutral criteria that contribute to admissions disparities between white and Asian American applicants, criteria that scholars have neglected to consider. These admissions factors are parental occupation, declared career interests, and additional preferences for legacy applicants. This Article then seeks to invigorate a public conversation about the complex considerations that undergird labeling admissions criteria unfair. It concludes by suggesting possible reforms to admissions schemes based on how these public deliberations may unfold.