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.

This project seeks to examine the ways in which the unique history of fetishization and criminalization of the Asian American body has been and continues to be used to justify violence against the Asian American community, especially those groups most marginalized, such as women, migrants, and sex workers. From early-held Western ideas of Asia as an exotic land ripe for conquest and resource extraction, to notions of early Asian American laborers as machine-like “coolies” who drove down wages and threatened white livelihoods, to the Atlanta tragedy against female spa workers being justified through “eliminating temptation” rhetoric, the desire to consume the Asian American body through labor and sex has been and continues to be used to justify and perpetuate violence and exclusion against the Asian diaspora in the United States.

This paper will focus on how Asian and Asian American women exist at a unique intersection of labor and sex that leaves them particularly vulnerable to violence. In Part I, I will examine the development of the cultural and legal consciousness of the Asian woman in the United States and the impact of this construct upon the law. In Part II, I will explore non-carceral approaches to healing and forward movement for our communities.

Between March 2020 and March 2022, Stop AAPI Hate received over eleven thousand reports of anti-Asian hate and discrimination. Analysis of the data indicates that 67% of incidents involve harassment, 17% involve physical assault and 12% involve civil rights violations, including refusal of service, vandalism and discrimination in housing and the workplace. Impacts on community members have been significant. Many have turned to criminal law enforcement as the answer. Given that a significant majority of incidents reported to Stop AAPI Hate are not hate crimes, more appropriate means of addressing the harm include prevention and non-carceral approaches, such as civil rights enforcement, community safety, and education equity. Toward that end, Stop AAPI Hate focused its efforts in California on the No Place for Hate CA Campaign that resulted in the enactment of two bills, SB 1161 and AB 2448, to address harassment in public transit and discrimination in retail. Stopping anti-Asian hate and preventing it from happening in the future can only be achieved through a comprehensive framework which includes providing redress and resources to victims through civil rights enforcement, ensuring long term community safety through strong wages and safe, affordable housing, and guaranteeing education equity by teaching ethnic studies in K-12 schools.

The judicial tools of standards of review are designed to recognize historical inequities by applying heightened burdens of proof for discrimination and the abridgment of constitutional rights. In this Article, I argue that, in the past twenty-seven years since Adarand Constructors v. Peña, the Supreme Court’s contextual application of strict scrutiny for race and national origin discrimination has evolved to a point of instability, rendering its outcomes indeterminate. This instability is a result of our national conflict over when and how to use race to remedy race-based discrimination.

The Court has selectively applied different standards of deferenced epending on the reasons that the government uses race. In applying these standards, the Court treats governmental use of race, whether benign or invidious, as two sides of the same problem, when in fact they are distinct legal questions. In other words, the Court treats the use of race as suspect regardless of its remedial application. This universalist approach has been defended as the best method to address and capture the complexity of different contexts. However, the universalist approach at its core, represents two diametrically opposed viewpoints on the role of race in American society.

This inconsistency extends back before Adarand to the 1942 Korematsu v. U.S. decision. Since Korematsu, the Court has overwhelmingly given substantial deference—what I refer to as ultra-deference—to government rationales of national security and safety over the interest of civil liberties and civil rights protections for minorities and marginalized groups. Since the September 11, 2001 terrorist attacks, this practice of ultra-deference has become firmly established in regulatory and jurisprudential practices. Most recently, the principles of Korematsu reappeared in the 2018 Trump v. Hawaii decision. Justice Robert’s opinion reflects that, even when presented with clear and convincing evidence of religious and national origin discrimination that should trigger a higher standard of strict scrutiny, ultra-deferential justices are willing to imply a presumption of a rational basis for government justifications.

This ultra-deference occurs despite insufficient facts to satisfy the standard threshold for the discharge of the government’s burden of proof when its policy discriminates on the basis of race and national origin. Ultradeference is manifested in the mechanics of when, whether, and how to apply the strict scrutiny standard of review to suspect classifications of race and national origin. Ultra-deference to national security and safety rationales has been most often used in cases involving politically sensitive issues such as immigration. It has been presumed in cases where the Court deemed the national security interest of paramount importance to outweigh evidence of even invidious motivation, let alone disparate impact.

While others may argue that a contextual application of strict scrutiny is an appropriate individualized response to the diversity of factual scenario striggering the suspect classification of race, such deference is in direct contrast to the universalist application of strict scrutiny to race-conscious policies regardless of benign, remedial, or invidious purposes. This inconsistency raises the importance of a thorough legal analysis of the role that implicit bias plays when there is clear evidence of disparate impact on the basis of race or national origin.

Due to centuries of anti-Asian discrimination in U.S. immigration policy and in its court system, many Asian Americans have migrated relatively recently. As a result, many Americans of East and South Asian descent maintain common cultural values such as respect for elders, filial piety, and community wellbeing. This Article examines how these values affect Asian Americans’ approach to decisions regarding the elderly, in particular caregiving, end of life decisions, and estate planning. Finally, the Article proposes suggestions for future research to improve outcomes and meet the legal needs of a growing, aging population.