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Boston University Law Review Online

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affirmative action, antidiscrimination law, Asian Americans, educational opportunities


Civil Rights and Discrimination | Constitutional Law | Law


Affirmative action, particularly its most well-known variant, race-conscious college admissions practices, has long occupied a precarious position in constitutional jurisprudence of equal protection and statutory antidiscrimination law. As a policy matter, affirmative action practices are necessary to reduce the impact of durable structural barriers to opportunity that have been imposed on members of identifiable racial groups because of their race. Legally, they’re on far less secure footing.

As a constitutional matter, these measures have been summarily divorced from any reparative purpose since the “diversity rationale” emerged from Regents of the University of California v. Bakke as the only compelling interest a public college or university may have in race-consciousness enrollment management. Without “a [predicate] judicial determination of constitutional violation,” a public college or university simply cannot appeal to remedy to justify its use of race classifications. The question currently before the Court in Students for Fair Admissions, Inc. v. University of North Carolina is whether the diversity rationale alone is constitutionally sufficient. In the companion case, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the question is whether a federal-funds-receiving educational institution’s consideration of race can be compatible with the Title VI statutory requirement that such institutions not discriminate on racial grounds. Unlike in the University of North Carolina case, the certified question in the President & Fellows of Harvard College case specifically asks if institutional consideration of race “penalize[es] Asian-American applicants.”

This is the first time that the Court has explicitly asked for consideration of the effects race-conscious admissions policies might have on Asian Americans. Though this motivating premise is left unstated, in Professor Vinay Harpalani’s article, Asian Americans, Racial Stereotypes, and Elite Admissions, it’s long overdue.



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