Asians Used, Asians Lose: Strict Scrutiny from Internment to SFFA

Volume 113June 2025Jerry KangSymposium

Jun 30

Table of Contents Show

Introduction

In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA),[1] the Supreme Court ended race-conscious affirmative action[2] in higher education as we knew it. The organization that successfully brought suit, Students for Fair Admission (SFFA),[3] is hardly an Asian American civil rights organization. Instead, it is an entity created by Ed Blum, who has a long history of challenging affirmative action programs.[4] Nevertheless, SFFA specifically foregrounded the claim that Asian American applicants were treated worse than similarly situated Whites in the admissions process.[5] As such, SFFA seemed to be fighting what looked like straight-forward, old-school race discrimination: worse treatment of a racial minority (Asians) as compared to the racial majority (Whites).[6] But after a two week trial, the district court rejected that allegation and found no such discrimination. That finding was subsequently affirmed by the First Circuit Court of Appeals. In short, SFFA lost on the facts. But at the Supreme Court, they won a far bigger prize, not on the facts but on the law: the end of affirmative action as we know it.[7]

Many scholars, such as Vinay Harpalani[8] and Jonathan Feingold,[9] have called this a “bait-and-switch.” SFFA’s bait, which would draw attention, sympathy, and support, was stopping discrimination against Asian Americans. The switch was that SFFA’s litigation ended up doing something quite different—namely, ending affirmative action for underrepresented minorities. Superficially, these may appear to be the same thing. But that assumes that discrimination against Asian Americans is equivalent to affirmative action for underrepresented minorities.[10] As I explain below, that assumption conflates “negative action”[11] against Asians (i.e., Asians being treated worse than similarly situated Whites) with affirmative action granted to others. Unfortunately, ending affirmative action for others does not stop negative action against Asian Americans.[12]

This Essay extends the bait-and-switch critique by connecting SFFA to two earlier moments in equal protection history. The first is Japanese American internment during World War II and the Supreme Court’s creation of the strict scrutiny doctrine. The second is the affirmative action wars that occurred in the 1980s and 1990s, which resulted in the current doctrine requiring strict scrutiny even for “benign” affirmative action. In all three moments—internment, affirmative action wars, and SFFA—Asian Americans were curiously exploited. A pithy refrain captures my thesis: Asians used, Asians lose.

I. Japanese American Internment

A. Equal Protection

The Fourteenth Amendment’s Equal Protection Clause simply says that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”[13] Such a vague articulation cannot provide meaningful guidance, so courts have developed elaborate doctrinal machinery to determine whether equal protection rights have been violated. Today’s equal protection machine as applied to race discrimination has at least two fundamental design features. First, the Constitution does not register the brute fact of different outcomes or “disparate impact” as a violation of equal protection. Instead, it requires “intentional discrimination,”[14] which is different treatment of individuals on the basis of their race with some requisite state of mind.[15] Second, any intentional use of a facial racial classification counts as “intentional discrimination” regardless of normative motivation.[16]

Even if intentional discrimination is shown, the government can still prevail if it can withstand “strict scrutiny.”[17] Specifically, the state must demonstrate that the challenged law or decision is narrowly tailored (the means) to achieve a compelling interest (the ends). Where does this doctrine of strict scrutiny come from? The answer lies in Japanese American internment during World War II.[18]

B. Asians Used: To Birth Strict Scrutiny

After the bombing of Pearl Harbor on December 7, 1941, the U.S. government began a rapid process of curfew, evacuation, and relocation of Americans of Japanese descent along the West Coast.[19] These Japanese Americans did not receive individualized loyalty hearings. Instead, based on what we would now call racial profiling, the government imprisoned over one hundred thousand Japanese Americans for an average of nine hundred days under the guise of national security.[20] Along the way, the Supreme Court heard four cases[21] but adroitly avoided interfering with the military.[22] As I’ve explained elsewhere, the Court made sure to: (1) not obstruct the military machine; (2) never officially approve indefinite detention of loyal Americans; and (3) exculpate President Franklin D. Roosevelt and Congress by laying ultimate blame on a civilian agency somehow gone rogue (the War Relocation Authority (WRA)).[23]

The judiciary failed epically to guarantee the basic civil rights of Americans. Yet perversely, these very cases laid the foundations of what is celebrated as the strict scrutiny doctrine. In the first of the four internment cases heard by the Supreme Court, Hirabayashi v. United States,[24] the Supreme Court wrote: “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality . . . . [R]acial discriminations are in most circumstances irrelevant and therefore prohibited . . . .”[25] Eighteen months later, in Korematsu v. United States,[26] the Supreme Court elaborated:

[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.[27]

If we take these words at face value, then the Constitution looks attractive. Who would object to examining the restriction of civil rights for a single racial group? Who would deny that such infringements should be subjected to the “most rigid scrutiny”?

Notice also how the Court does not take an absolutist stance. In Hirabayashi, the Court says that “racial discriminations are in most circumstances irrelevant,”[28] which suggests they may indeed be sometimes relevant. In Korematsu, the Court points out that race-based curtailments of civil rights are not always unconstitutional.[29] On the one hand, “racial antagonism”[30]—which is nowhere defined—cannot be a justification. On the other hand, “pressing public necessity”[31] can.

The Court’s call for rigid scrutiny makes sense. After all, intentional race discrimination—which is the deliberate treatment of individuals differently on the basis of their racial categories—has historically been motivated by “racial antagonism” against racial minorities, grounded in assumptions of their racial inferiority. But when the Constitution officially prohibits such behavior, what will racist actors do? They will simply cloak their true motivations.

Even during World War II, decades before the modern civil rights era, military elites took pains to hide racist motivations, at least in official documents headed for judicial review. For instance, General John L. DeWitt, who was in charge of the Western Command and who called for internment, believed that loyalty was racial.[32] Accordingly, he wrote in his Final Report that his call for internment was not because of some military exigency—“that there was insufficient time in which to make [an individualized loyalty] determination.”[33] DeWitt believed that the Japanese people were irredeemably disloyal, that “[t]he Japanese race is an enemy race . . . .”[34]

This surely sounds like “racial antagonism” even by 1940s standards. And it was this admission against interest that the War Department’s savvier strategists took pains to suppress. Every copy of DeWitt’s original Final Report was destroyed, except for one copy found in the National Archives decades later.[35] The revised and reissued Report merely said that “[t]o complicate the situation no ready means existed for determining the loyal and the disloyal with any degree of safety.”[36]

The Department of Justice’s brief to the Supreme Court in Korematsu originally included a footnote signaling that the Final Report might not be entirely credible. But the printing presses were literally stopped, and this footnote was bowdlerized into an anodyne disclaimer requesting judicial notice of the Final Report only as to the specific facts cited in the brief itself.[37] As the internment example demonstrates, when “racial antagonism” is legally prohibited, people will move their antagonistic motivations underground. To uncover the truth, the Court realized that it must engage in strict scrutiny.[38] This is what I call the “skeptical sensor” justification for strict scrutiny, which, again, makes perfect sense.[39]

C. Asians Lose: No Constitutional Violation

So far, we have learned that strict scrutiny was founded on the backs of Asians. But how was that theory applied in practice? Well, Fred Korematsu actually lost his case.[40] Remember that the point of rigid scrutiny was to look for something “bad” like racial antagonism, prejudice, or hostility. But in Korematsu, none was ever found. As the Court explained:

To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded . . . because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire . . . .[41]

According to the Court, the government had good reason to think that Japanese Americans, by virtue of their ethnicity, would assist the Japanese Empire and be disloyal to the United States.[42] Correlatively, it was rational to place racial restrictions on them in the name of national security.[43] In other words, the plausible stereotype of ethnic loyalty made internment no longer a case of racial antagonism, prejudice, or hostility. It was just common sense.[44]

In sum, Japanese American litigants were lured with a winsome theory of equal protection. And their cases were used to build a doctrine that promised robust scrutiny. Asians used. But in practice, the judiciary delivered something far more flaccid. It produced an uncritical acceptance that ethnic ties trumped national loyalties. Asians lose.

II. Strict Scrutiny of Affirmative Action

A. Means-Ends Analysis

After the wartime cases, the Court continued to develop the doctrine of “strict scrutiny.” By the end of the 1960s, the Court decided that strict scrutiny would be performed via means-ends analysis.[45] First, the government action would be inspected for a compelling interest (recall how that was foreshadowed by “pressing public necessity” from Korematsu). Second, the government’s chosen means would have to be narrowly tailored to furthering that compelling interest.

This means-ends technology was understood to serve the skeptical sensor function. As popularized by John Hart Ely in his influential book, Democracy and Distrust, strict means-ends scrutiny would smoke out illicit motivations hiding behind a façade of neutrality.[46] Here’s how. What might you infer if some government law, regulation, or exercise of discretion is poorly tailored to the proffered governmental interest? If the method adopted is weirdly inefficient (e.g., underinclusive, overinclusive, or ignores an obviously superior technique), one might question whether the government sought to achieve what it officially claimed. Perhaps the real motivation was something more sinister or racially antagonistic. This is how the “narrow tailoring” inquiry is supposed to further strict scrutiny’s epistemological function.[47]

B. Asians Used: To Justify Strict Scrutiny as a Skeptical Sensor

How then should this strict scrutiny-via-means-ends approach apply to race-conscious affirmative action programs, which began in the late 1960s? Unsurprisingly, judges who normatively disfavored affirmative action pointed out that these programs involved intentional discrimination on the basis of race.[48] Accordingly, they argued for consistent application of strict scrutiny, hoping that “strict in theory” would be “fatal in fact.”[49] By contrast, judges who favored affirmative action emphasized their radically different pedigree and motivation: to disrupt White supremacy, not to cement it. Accordingly, they argued that affirmative action should be subject to either rational basis or intermediate scrutiny.[50] These lower levels of review would make affirmative action far more likely to survive legal challenge.

After decades of litigation, the advocates of strict scrutiny across-the-board eventually prevailed. The clearest victory came in Adarand Constructors, Inc. v. Pena,[51] decided in 1995. Writing for the majority, Justice O’Connor implored us to remember Korematsu, which taught us that even the most rigid scrutiny can fail to unmask illegitimate racial classifications:

We think that requiring strict scrutiny is the best way to ensure that courts will consistently give racial classifications that kind of detailed examination, both as to ends and as to means. Korematsu demonstrates vividly that even “the most rigid scrutiny” can sometimes fail to detect an illegitimate racial classification . . . . Any retreat from the most searching judicial inquiry can only increase the risk of another such error occurring in the future.[52]

In other words, the lesson of the internment was that we should have been stricter with strict scrutiny. And to avoid repeating such mistakes, courts should double down and adopt strict scrutiny across-the-board. Again, Asians used: The Court used Japanese American tragedy as rhetorical justification for applying strict scrutiny to affirmative action programs.

C. Asians Lose: Strict Scrutiny Deployed as a Substantive Bar

Unfortunately, in affirmative action cases, strict scrutiny never actually operated as a prejudice polygraph that detected what Korematsu identified as the essential object of interest: racial antagonism.[53] In other words, there was no serious claim that an affirmative action program was adopted out of a desire to disrespect, denigrate, or delimit Whites. Instead, for affirmative action programs, strict scrutiny has always functioned more as a substantive bar that demanded a compelling interest and impeccable design.[54]

In practice, this substantive bar was extremely difficult to clear because the Court restricted, as a matter of law, what could count as a “compelling interest.” Most importantly, a sincere interest in remedying general societal race discrimination was deemed not compelling.[55] Accordingly, an affirmative action program that was adopted with that objective—without racial antagonism toward any group—would fail constitutional muster regardless of how well it was designed.

Here again, the refrain repeats. Internment was used to justify strict scrutiny of affirmative action programs: Asians used. But the doctrine never really smoked out racial antagonism or even related motivations based on “illegitimate racial prejudice or stereotype,” “illegitimate notions of racial inferiority,” or “simple racial politics.”[56] Instead, it erected an extremely high substantive bar that struck down most race-conscious programs, including those designed to remedy societal discrimination.

In my view, this created a net loss for all Americans, including those of Asian descent, but proving that case is beyond the scope of this Essay. So, let me stake out more modest claims. First, Asian Americans lost in the immediate sense that they could no longer participate in affirmative action programs that slightly expanded their opportunities in small businesses, government contracts, and professions where they were under-represented. Second, they lost (as did all Americans) through a bait-and-switch. The Court sold us an advanced legal technology that could detect racial antagonism and stereotyping, but what we got was a cruder, second-best machine that bluntly blocked nearly all race-conscious decisions.

III. SFFA v. Harvard

A. Diversity as a Compelling Interest

By subjecting race-conscious affirmative action programs to strict scrutiny and narrowly defining what counts as a “compelling interest,” the Court guaranteed that only a few affirmative action programs could survive constitutional challenge. But Justice Powell carved out one prominent exception in a landmark affirmative action case, Regents of the University of California v. Bakke, decided in 1974.[57] In his solely-authored opinion, Justice Powell cast the deciding vote on the grounds that educational diversity could constitute a compelling interest in higher education.[58] That view, although joined by no other Justice, operated as the effective law until it received majority blessing in Grutter v. Bollinger, decided in 2003.[59]

On this understanding, colleges and universities tailored race-conscious affirmative action admissions programs to fly under the banner of diversity. To be sure, some were poorly designed and consequently struck down.[60] Others, however, were better built and survived strict scrutiny.[61] But in 2023, SFFA effectively overturned the forty-five years of precedent since Bakke. Writing for a six-justice majority, Chief Justice Roberts held that “diversity” was now too ill-defined a concept to constitute a compelling interest.[62] Without expressly overruling Grutter, SFFA effectively ended all race-conscious affirmative action programs that relied on this venerable rationale.[63]

B. Asians Used: To Propel Litigation

As noted in the Introduction, what’s curious about SFFA was the intentional foregrounding of Asian Americans at trial and in the media. (As its banner image, SFFA’s website features a biracial Asian youth looking down at a phone with luxe headphones around their neck.)[64] SFFA’s complaint led with the allegation that universities treated Asians worse than Whites in the admissions process.[65] At trial, SFFA offered both qualitative and quantitative evidence in support of its allegation.

In terms of qualitative evidence, SFFA offered racially stereotypical comments made during the admissions process about Asian applicants.[66] But the district court found that these comments could well have been “truthful and accurate.”[67] They were minimized as idiosyncratic, and the court concluded that there was no “systematic reliance on racial stereotypes.”[68] (Query whether comparable comments made of other racial groups would have been similarly tolerated.) In sum, the court found no “pervasive bias against Asian Americans among Harvard’s admissions officers or its admissions leadership.”[69]

In terms of quantitative evidence, SFFA offered a multiple regression analysis.[70] A multiple regression examines the relationship between many predictor variables—such as test scores, grade point averages, personal ratings, and demographic factors—and an outcome variable (in this case, admission to Harvard). The analysis estimates how much each predictor variable (e.g., race) is associated with the outcome variable (i.e., admission) while statistically controlling for other predictors in the model. The statistical argument triggered a battle of experts who fought over two critical terrains.[71]

First, the parties differed over which applicants should be included in the model. Harvard wanted to include a broader set of applicants, including athletes, legacies, applicants specifically marked on a dean’s list (otherwise known as “development cases”), and children of faculty (ALDCs).[72] By contrast, SFFA wanted to exclude ALDCs as atypical because they are given huge preferences in admissions.[73]

Second, the parties differed over whether personal ratings[74] should be included as one of the predictor variables in the regression. Again, Harvard wanted to include the variable because it was an actual merit criterion used by admissions officers.[75] Yet again, SFFA wanted to exclude it, suggesting that biased subjective personal ratings are one of the ways that race influenced admissions.[76] Including or excluding predictor variables in a multiple regression pose inverse risks. On the one hand, omitting a relevant variable could ignore an important real-world factor of decision-making (“omitted variable bias”). But including a variable, especially one that overlaps with a variable that’s already in the regression model, risks diluting the importance of both variables. Including an overlapping variable can make both variables seem less important and cause each to lose statistical significance (“included-variable bias”).[77]

Not surprisingly, the parties’ differing model specifications led to differing statistical conclusions. Under SFFA’s specifications, which excluded ALDCs from the dataset and personal ratings as a predictor variable, race mattered: Asians were treated worse than similarly situated Whites in certain years.[78] By contrast, under Harvard’s inclusion of ALDCs in the dataset and personal ratings as a relevant variable, race was not statistically significant.[79] From Harvard’s perspective, Asians might appear to have a lower admission rate than Whites, but that difference could be explained away because ALDCs (who are given tremendous preferences) and applicants with higher personal ratings[80] are both disproportionately White. In other words, there may be a disparate impact on Asian Americans caused by preferences granted to ALDCs and applicants with personal charisma, but there was no intentional discrimination on the basis of race.

C. Asians Lose: No Discrimination Found

The district court sided with Harvard. It held that including legacies, athletes, dean’s interest list candidates, and children of faculty made sense. After all, they constitute a whopping 30 percent of admitted students, and their inclusion “more accurately reflects how the admissions process works and takes into account a larger percentage of the admitted class.”[81] The court also thought it sensible to include personal ratings as a predictor variable. After all, personal ratings were actually used in the admissions process and were not simply pretext for race discrimination.[82] The court acknowledged that implicit bias might infect personal ratings. But in the end, the court wasn’t sure. Even if implicit bias was a factor, it was probably entering more upstream in the admissions process through lack of high school support and weaker recommendation letters, for which Harvard should not be held responsible.[83]

After considering all the evidence, the district court ultimately concluded: “[T]here is no evidence of any racial animus whatsoever or any intentional discrimination on the part of Harvard beyond its use of a race conscious admissions policy, nor is there evidence that any particular admissions decision was negatively affected by Asian American identity.”[84] The First Circuit Court of Appeals affirmed that finding.[85] Stated objectively: Asians lose.

D. Asians Win? Death of Affirmative Action

But SFFA prevailed at the Supreme Court. Their victory did not come from the high court reversing the district court’s factual findings for clear error. Instead, victory came from a dramatic change in law: Diversity could no longer function as a compelling interest.[86] Thus, race-conscious affirmative action programs relying on diversity could no longer satisfy strict scrutiny. At the Supreme Court, SFFA won what it truly sought.

Above, I explained how Asians lost on the facts. But could the end of affirmative action nevertheless count as a “win,” at least for those Asian ethnicities that were generally excluded from affirmative action? Consider the Asian Americans who sided with SFFA simply to maximize their chances of admission. Did they win anything? I think the most honest answer is that they did, but the benefit is much smaller than widely assumed.

First, we all suffer from a sort of “probability neglect” bias, which involves focusing more on the event and less on its probability.[87] In other words, with the end of affirmative action, individuals that were not included in affirmative action will tend to focus on the additional available slots without appreciating the very low probability that they will actually get them.

Back in 2002, Goodwin Liu called this the “causation fallacy.”[88] He explained how reserving a small number of seats for minorities does not appreciably affect the chance of admissions for average White applicants. This is because there are so many more White applicants as compared to slots targeted for underrepresented minorities. In 1998, Thomas Kane explained this phenomenon by referring to accessible parking spots.[89] When you’re looking for parking in a busy lot, you will inevitably drive by an unused accessible parking spot, then grumble, “If only we got rid of ‘preferences’ for disabled people, I’d be parked by now!” In truth, every single frustrated driver, all day long, will have that sentiment. But what would really happen if that slot were converted to a regular parking space? It would have been filled up almost immediately by some other car, and you’d still be looking for parking. In the admissions context, there are relatively few underrepresented minorities in elite institutions and so many more White and Asian applicants. Even if affirmative action ended, those few slots would likely be taken by some other White or Asian.

Second, the most important factor influencing Asian American admissions is a form of negative action against them in favor of Whites.[90] This can arise indirectly from preferences given to legacies[91] and athletes[92] (who are disproportionately White) and the use of subjective personal ratings[93] that are vulnerable to implicit biases. Ending affirmative action for underrepresented minorities does nothing to mitigate these internal admissions factors.

Enrollment data post-SFFA provide some additional insight. If negative action against Asian Americans were driven principally by affirmative action programs, we would expect to see (1) Asian American enrollment increase, and (2) more importantly, increase more than White enrollment. But that is not what we generally see. For instance, at Harvard, the percentage of Asian Americans remained constant after SFFA, although Harvard altered its counting methodology from prior years, so comparison is difficult.[94] Publicly available enrollment data from thirteen elite schools[95] do not tell any consistent story. On the one hand, MIT, Columbia, and Brown showed increases in Asian American enrollment. On the other hand, Princeton, Yale, Dartmouth, Duke, and the University of Virginia (UVA) all had decreases. At Princeton, Yale, Amherst, Tufts, UVA, and Washington University in St. Louis, White students fared even better than Asian American students from the previous year.[96] This cursory review should be taken with a large grain of salt because this was not a random sample, the schools used different counting methodologies, data were incomplete across schools, and there was a general rise of students who declined to state their race or labeled themselves multiracial.[97] But the data simply do not support the claim that ending affirmative action for underrepresented minorities uniformly boosted Asian American enrollment, especially as compared to White enrollment.

One final point bears mention. When Asian Americans graduate, even from elite institutions, they will enter professions and industries where they are not well-represented, especially at higher levels of leadership.[98] Some of this drop-off will be caused by implicit bias and identity threat.[99] Unfortunately, the policies, procedures, and practices that could help counter these phenomena require us to be mindful of race, sometimes explicitly so. But as a practical matter, the same social and political forces that produced SFFA will prevent these strategies from being adopted as various diversity and inclusion initiatives lose support. Some Asians do win a little, but to my mind, it is a pyrrhic victory.

Conclusion

“Asians used, Asians lose” is this Essay’s anthem. First, in the 1940s, we were used as formwork to pour the concrete of strict scrutiny, even as we were caged. Second, in the 1990s, the Court invoked wartime internment to justify strict scrutiny even for affirmative action programs. We were told that we needed strict scrutiny as a skeptical sensor to detect covert racism, so that we would never again repeat the internment. However, strict scrutiny never actually functioned as some epistemological probe. Instead, it just erected a substantive bar, a hyper-justification requirement that sharply delimited race-conscious remedies. Compared to what was promised, we received a far cruder machine better suited for formalistic colorblindness than a genuine search for racial prejudice, stereotyping, or even selective solicitude. Finally, in the 2020s, Blum used Asians to mobilize support for the SFFA litigation. SFFA explicitly called out worse treatment of Asian Americans compared to otherwise identical Whites in higher education admissions. But the lower courts found no such discrimination on the facts. On this there can be no dispute: Asians lost. And the Supreme Court used the litigation as a vehicle—not to vindicate Asians but to effectively end the diversity rationale for affirmative action in higher education.

For Asian Americans who care mostly about their self-interest, the end of affirmative action may provide some benefit in marginally increased chances of admission. But that benefit is slight. Remember that the most significant factors decreasing Asian American admissions have nothing to do with affirmative action granted to others. Instead, it is caused by a form of negative action created by preferences for legacies, athletes, geographies, and subjective personal ratings. And ending affirmative action does nothing to mitigate these factors.

In my view, this small increase in admissions probability is not worth the much larger social cost of ending affirmative action in higher education. But justifying this claim systematically is beyond the scope of this Essay. My only ask is that when we have that conversation,[100] we do so without confusion or disinformation about what was promised by Blum and SFFA when the lawsuit started. Asian Americans should understand what was actually delivered.[101]

Copyright © 2025 Jerry Kang, Ralph and Shirley Shapiro Distinguished Professor of Law and (by courtesy) Asian American Studies at UCLA School of Law. Helpful research assistance was provided by Max Winlock, Katrina Zhu, and the UCLA School of Law librarians. Thanks also to Ahilan Arulanantham, Jonathan Feingold, Jonathan Glater, Vinay Harpalani, Helene Kim, Sunita Patel, Russell Robinson, Noah Zatz, and participants of convenings held at UCLA, Berkeley, and Harvard Law Schools.

[1]. 600 U.S. 181 (2023). Although the opinion consolidated cases brought against Harvard and the University of North Carolina (UNC), in this Essay, I focus on the Harvard case.

[2]. To be “race-conscious” or “on the basis of race” is not self-defining. See Issa Kohler-Hausmann, What Did SFFA Ban? Acting on the Basis of Race and Treating People as Equals, 66 Ariz. L. Rev. 305, 317–49 (complicating the many ways one might act on the basis of race). By “race-conscious,” I mean a program that directly and explicitly considers an applicant’s racial categories as one factor in the admissions decision.

[3]. See Students for Fair Admissions, https://studentsforfairadmissions.org [https://perma.cc/UQ6U-XS5H] (Aug. 6, 2024).

[4]. See Lulu Garcia-Navarro, He Worked for Years to Overturn Affirmative Action and Finally Won. He’s Not Done., N.Y. Times (July 8, 2023), https://www.nytimes.com/2023/07/08/us/edward-blum-affirmative-action-race.html [https://perma.cc/95UA-K8GK] (“[Blum] first brought the issue of affirmative action before the Supreme Court in 2012, with Fisher v. University of Texas — a case he ended up losing.”) (italics added).

[5]. Blum affirmatively recruited Chinese plaintiffs. See Harvey Gee, Moving Forward Together: Asian Americans and Allyship in Non-Black-and-White America, 58 U. S.F. L. Rev. 172, 214 (2024). At an event sponsored by the Houston Chinese Alliance in 2015, he says on video: “I needed Asian plaintiffs.” OiYan Poon, Edward Blum: “I needed Asian plaintiffs,” YouTube, at 18:44 (July 30, 2018), https://www.youtube.com/watch?v=DiBvo-05JRg&t=1124s [https://perma.cc/ZPM3-GU8C].

[6]. For examples where SFFA specifically highlighted the worse treatment of Asians as compared to Whites, see Complaint ¶¶ 205–08, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 397 F. Supp. 3d 126 (D. Mass. 2019) (No. 14-cv-14176). Indeed, the first count of six counts in the complaint was labeled “Intentional Discrimination Against Asian Americans.” Id. at 101. For examples in their motion for summary judgment, see Jonathan P. Feingold, SFFA v. Harvard: How Affirmative Action Myths Mask White Bonus, 107 Calif. L. Rev. 707, 734–35 (2019) (Appendix A).

[7]. By affirmative action “as we know it,” I refer to an admissions process that explicitly considers an applicant’s racial category to further the compelling interest of “diversity.” After SFFA, it is possible that alternative justifications may be deemed compelling and survive strict scrutiny. See Kimberly West-Faulcon, Affirmative Action After SFFA v. Harvard: The Other Defenses, 74 Syracuse L. Rev. 1101, 1125–27 (2024).

[8]. See Vinay Harpalani, The Need for an Asian American Supreme Court Justice, 137 Harv. L. Rev. F. 23, 32 (2023) (“The victimhood narrative began with SFFA’s ‘bait-and-switch’ litigation strategy.”).

[9]. See Feingold, supra note 6.

[10]. It also assumes that Asian Americans, across all ethnicities, were never actually included in affirmative action programs, which is not the case.

[11]. I coined the term in 1996. See Jerry Kang, Negative Action Against Asian Americans: The Internal Instability of Dworkin’s Defense of Affirmative Action, 31 Harv. C.R.–C.L. L. Rev. 1, 3 (1996); see also Gabriel J. Chin, Sumi Cho, Jerry Kang & Frank Wu, Beyond Self-Interest: Asian Pacific Americans Toward a Community of Justice, a Policy Analysis of Affirmative Action, 4 UCLA Asian Pac. Am. L.J. 129, 159 (1996) (distinguishing affirmative action, neutral action, and negative action). Other scholars, like Jonathan Feingold, have called this an “Asian penalty” or conversely a “White bonus.” Feingold, supra note 6, at 710, 720.

[12]. See generally Jerry Kang, Ending Affirmative Action Does Not End Discrimination Against Asian Americans, 28 UCLA Asian Pac. Am. L. J. 91 (2024).

[13]. U.S. Const. amend. XIV, § 1.

[14]. Washington v. Davis, 426 U.S. 229, 235 (1976); Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 277 (1979).

[15]. For further explanation of how our anti-discrimination laws are sometimes sensitive to “different treatment” versus “different outcomes,” see Kang, supra note 12, at 92–93.

[16]. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (adopting strict scrutiny for all racial classifications regardless of motivation).

[17]. See, e.g., Feeney, 442 U.S. at 272 (“A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification . . . . This rule applies as well to a classification that is ostensibly neutral but is an obvious pretext for racial discrimination.”); Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 562 (3rd Cir. 2002) (“Once a plaintiff establishes a discriminatory purpose based on race, the decisionmaker must come forward and try to show that the policy or rule at issue survives strict scrutiny . . . .”). Unless a facially race-conscious action is at issue, the government’s defense is typically that it has not engaged in intentional discrimination in the first place and not that it did so for compelling reasons. In such cases, a finding of intentional discrimination is the end of the matter except for potential disputes on causation. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 271 n.21 (1977) (“Proof that the decision by the Village was motivated in part by a racially discriminatory purpose would not necessarily have required invalidation of the challenged decision. Such proof would, however, have shifted to the Village the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered.”).

[18]. In truth, the origin story of strict scrutiny is multi-faceted, complex, and confused. For an illuminating analysis, see Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267 (2007). For a trace of strict scrutiny (specifically in the domain of race discrimination), see id. at 1275–78.

[19]. For a brief history of “the internment machine” in the law reviews, see Jerry Kang, Denying Prejudice: Internment, Redress, and Denial, 51 UCLA L. Rev. 933, 937–42 (2004).

[20]. See id. at 940, 942.

[21]. The four in chronological order of decision are: Hirabayashi v. United States, 320 U.S. 81 (1943); Yasui v. United States, 320 U.S. 115 (1943); Korematsu v. United States, 323 U.S. 214 (1944); Ex parte Endo, 323 U.S. 283 (1944).

[22]. The Court artfully deployed various doctrines, often admired as “passive virtues” or “judicial minimalism,” to achieve its objective. See Kang, supra note 19, at 943–55, 958–65.

[23]. See Endo, 323 U.S. at 302–04 (holding that the WRA was never authorized to detain concededly loyal American citizens of Japanese descent). Endo was the one victory among the four cases heard by the Supreme Court. Endo should not, however, be seen as absolution for Korematsu, as some have suggested. Instead, the Supreme Court through Endo exculpated President Roosevelt and Congress from all corporate responsibility for interning the Japanese Americans. See Jerry Kang, Watching the Watchers: Enemy Combatants in the Internment’s Shadow, 68 L. & Contemp. Probs. 255, 270–75 (2005) (discussing the legacy of Endo and how courts have misremembered its holding in “naïve” and “flat-out” wrong characterizations).

[24]. 320 U.S. 81 (1943).

[25]. Id. at 100. For more detailed treatment of this case, see Jerry Kang, Dodging Responsibility: The Story of Hirabayashi v. United States, in Race Law Stories (Devon Wayne Carbado & Rachel F. Moran eds., 2008).

[26]. 323 U.S. 214 (1944).

[27]. Id. at 216 (emphasis added).

[28]. 320 U.S. at 100 (emphasis added).

[29]. 323 U.S. at 216.

[30]. See id.

[31]. See id.

[32]. DeWitt testified to Congress that “it makes no difference whether he is an American citizen, he is still a Japanese. American citizenship does not necessarily determine loyalty . . . . You needn’t worry about the Italians at all except in certain cases. Also, the same for the Germans except in individual cases. But we must worry about the Japanese all the time until he is wiped off the map.” Comm’n on Wartime Relocation & Internment of Civilians, Personal Justice Denied 66 (1982) (quoting testimony before House Naval Affairs Subcommittee, Apr. 13, 1943).

[33]. Petition for Writ of Error Coram Nobis, Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984) (No. CR-27635W) (quoting DeWitt’s original version of the Final Report), reprinted in Justice Delayed: The Record of the Japanese American Internment Cases 125, 140 (Peter Irons ed., 1989).

[34]. The quotation continues, “and while many second and third generation Japanese born on United States soil, possessed of United States citizenship, have become ‘Americanized,’ the racial strains are undiluted.” Personal Justice Denied, supra note 32, at 82 (quoting DeWitt).

[35]. This suppression of exculpatory evidence ultimately triggered the 1980s coram nobis cases, which led to the overturning of the 1940s criminal convictions. See Kang, supra note 19, at 976–85 (discussing the federal courts’ vindications of Korematsu, Yasui, and Hirabayashi by “acknowledg[ing] publicly how much the petitioners had been wronged”). Regrettably, this was done in a manner that exculpated the wartime Supreme Court of any responsibility. See id. at 985–97.

[36]. Peter Irons, Justice at War: The Story of the Japanese American Internment Cases 210 (1983) (quoting DeWitt’s revised version of the Final Report).

[37]. See Kang, supra note 19, at 978–79.

[38]. See, e.g., Johnson v. California, 543 U.S. 499, 505 (2005) (“The reasons for strict scrutiny are familiar. Racial classifications raise special fears that they are motivated by an invidious purpose.”).

[39]. See Jerry Kang, Rethinking Intent and Impact: Some Behavioral Realism About Equal Protection, 66 Ala. L. Rev. 627, 639–40 (2015) (describing “sensor” function).

[40]. Korematsu v. United States, 323 U.S. 214, 224 (1944).

[41]. See id. at 223 (emphasis added).

[42]. See id. at 223–24.

[43]. See generally Hirabayashi v. United States, 320 U.S. 81, 94–95 (1943) (suggesting that “reasonably prudent men” had “ample ground” to believe that the Japanese in America “might reasonably be expected to aid a threatened enemy invasion”).

[44]. That common sense has recently been formally rejected by the Supreme Court. See Trump v. Hawaii, 585 U.S. 667, 710 (2018) (“The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful . . . .”). That said, this might have been dicta and the use of “solely” leaves the door ajar.

[45]. See generally Fallon, supra note 18, at 1273–84 (explaining the development of the strict scrutiny doctrine).

[46]. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 146–50 (1980).

[47]. For lengthier explanation, see Kang, supra note 39, at 639–40.

[48]. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 520 (1989) (Scalia, J., concurring in the judgment).

[49]. See id. at 552 (1989) (Marshall, J., dissenting); see, e.g., id. at 521 (Scalia, J., concurring) (suggesting that “only a social emergency rising to the level of imminent danger to life and limb” can justify race-based action).

[50]. See id. at 743–44 (Marshall, J., dissenting).

[51]. 515 U.S. 200 (1995). A prior important victory for those who sought strict scrutiny of affirmative action was City of Richmond, 488 U.S. 469.

[52]. Adarand Constructors, 515 U.S. at 236 (quoting Korematsu v. United States, 323 U.S. 214, 223 (1944).

[53]. Korematsu v. United States, 323 U.S. 214, 216 (1944).

[54]. See Kang, supra note 39, at 643–44 (describing the “substantive justification” function of means-ends scrutiny); see also Fallon, supra note 18, at 1302–03 (disaggregating three different functions of strict scrutiny—nearly categorical prohibition, weighted balancing test, and illicit motivation test).

[55]. See, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 307 (1978) (opinion of Powell, J.); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986) (plurality opinion) (“Societal discrimination, without more, is too amorphous a basis . . . for imposing a racially classified remedy” because “a court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future.”).

[56]. City of Richmond, 488 U.S. at 493.

[57]. 438 U.S. at 314–15.

[58]. See id.

[59]. 539 U.S. 306, 329 (2003) (holding that the University of Michigan Law School had “a compelling interest in a diverse student body” because “attaining a diverse student body is at the heart of the Law School’s proper institutional mission . . . .”); see also Fisher v. Univ. of Tex. at Austin, 579 U.S. 365, 366–67 (2016) (holding that the “University [of Texas at Austin] articulated concrete and precise goals” related to obtaining educational diversity that “mirror[ed] the compelling interest . . . approved in prior cases”).

[60]. See, e.g., Gratz v. Bollinger, 539 U.S. 244, 270–76 (2003) (finding the University of Michigan’s College of Literature, Science and the Arts’ admissions program too broad to “achieve the interest in educational diversity”).

[61]. See, e.g., Grutter, 539 U.S. at 334–36 (holding the University of Michigan Law School’s plan to “attain[] a critical mass of underrepresented minority students” sufficiently narrowly tailored to withstand the Court’s strict scrutiny analysis).

[62]. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 214 (2023) (holding that Harvard’s and UNC’s stated goals for their race-based admissions programs were “not sufficiently coherent for purposes of strict scrutiny”). A few compelling interests remain available, such as managing racial violence in prisons and perhaps racial profiling at the border. See, e.g., Johnson v. California, 543 U.S. 499, 514 (2005) (permitting racial segregation to ensure prison safety); United States v. Martinez-Fuerte, 428 U.S. 543, 562–63 (1976) (permitting patrol agents to consider Mexican ancestry). But see United States v. Montero-Camargo, 208 F.3d 1122, 1135 (9th Cir. 2000) (“Hispanic appearance is, in general, of such little probative value that it may not be considered as a relevant factor where particularized or individualized suspicion is required.”). It is hard to see their relevance to college admissions. One path, however, shows promise. With social scientist Mahzarin Banaji, I have argued that stopping race discrimination now is a compelling interest worth litigating. See Jerry Kang & Mahzarin R. Banaji, Fair Measures: A Behavioral Realist Revision of “Affirmative Action,” 94 Calif. L. Rev. 1063, 1075–78 (2006) (arguing that stopping discrimination caused by implicit social cognitive processes can be a compelling interest and justify narrowly tailored, race-conscious “fair measures”).

[63]. This does not mean, however, that race cannot be mentioned in a personal essay. See Russell K. Robinson, The Incoherence of the “Colorblind Constitution,” 113 Calif. L. Rev. 997 (June 2025). The Supreme Court also suggested that military academies might be sui generis. See SFFA, 600 U.S. at 213 n.4.

[64]. See Students for Fair Admissions, supra note 3.

[65]. See Complaint, supra note 6, ¶¶ 205–08.

[66]. Examples include admissions officers calling Asian Americans “quiet,” “bland,” “hard worker[s],” and “not exciting.” See Students for Fair Admission v. President & Fellows of Harvard Coll., 397 F. Supp.3d at 156.

[67]. Id. at 157.

[68]. Id.

[69]. Id. at 158.

[70]. Id. at 158–159.

[71]. Id.

[72]. Id. at 160 (“[T]he Court agrees with [Harvard] that including ALDCs in the statistics and econometric models leads to more probative evidence of the alleged discrimination or lack thereof.”).

[73]. See id.

[74]. See id. at 162.

[75]. See id. at 166.

[76]. See id. at 159.

[77]. See Andrew Gelman, Daniel E. Ho & Sharad Goel, What Statistics Can’t Tell Us in the Fight over Affirmative Action at Harvard, Bos. Rev. (Jan. 14, 2019), https://www.bostonreview.net/articles/andrew-gelman-sharad-goel-daniel-e-ho-affirmative-action-isnt-problem/ [https://perma.cc/GAM8-UZSP] (“[M]odels can be misleading not only for the variables they omit, but also for the variables they include. Even if a variable helps to explain away a disparity between groups, that variable may itself be the product of discrimination or have little rational relation to a legitimate policy goal.”).

[78]. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 980 F.3d 157, 202 (1st Cir. 2020) (“SFFA’s preferred model without the personal rating shows a statistically significant overall average marginal effect of -0.34%. This means that, on average, the model shows that an Asian American student has a 0.34% lower chance of admission to Harvard than a similarly situated [W]hite student and that this effect is statistically significantly different from zero.”). This worse treatment was found only in one of the six years analyzed. In two other years, Asian Americans seemed to have a statistically higher probability than otherwise identical Whites. See id. at 202–03.

[79]. Id. (“[T]he statistical model using the personal rating showed no discrimination against Asian Americans.”)

[80]. See Gelman et al., supra note 77, at 8 (“On average, alumni give [W]hite and Asian American applicants similar ratings, but Harvard staff give [W]hites substantially better reviews than they give Asian Americans. For the alumni-assigned ratings, 50 percent of Asian American applicants and 51 percent of [W]hites were rated as having ‘very strong’ or ‘outstanding’ personal traits. But for personal ratings awarded by Harvard’s internal admissions staff, only 18 percent of Asian Americans were in the top group, compared to 23 percent of [W]hites. White applicants received these top ratings about 30 percent more often than Asian Americans.”).

[81]. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 397 F. Supp. 3d 126, 174 (D. Mass. 2019).

[82]. As the Court of Appeals explained, “[S]ince race is correlated with the personal rating but not influenced by it, excluding it would increase the risk of misleading regression results.” SFFA, 980 F.3d at 202.

[83]. The district court recognized the “possib[ility] that implicit biases had a slight negative effect on average Asian American personal ratings, but the Court concluded that the majority of the disparity in the personal rating between [W]hite and Asian American applicants was more likely caused by race-affected inputs to the admissions process (e.g. recommendations or high school accomplishments) or underlying differences in the attributes they may have resulted in stronger personal ratings.” SFFA, 397 F. Supp. 3d at 171. For concerns about implicit bias impacting Asian American applicants, see Patrick Hornbeck, Implicit Bias Against Asian Americans: A Blind Spot in the Harvard Admissions Case, 52 J.L. & Educ. 123, 137–150 (2023). For a broader discussion of implicit bias, identity threat, and affirmative action, see generally Kang & Banaji, supra note 62.

[84]. SFFA, 397 F. Supp. 3d at 201–02. This is common but sloppy verbiage. “Animus” is not required for a finding of intentional discrimination.

[85]. SFFA, 980 F.3d at 204.

[86]. Count I of the original complaint was intentional discrimination against Asian Americans, but Count VI challenged “Any Use of Race As A Factor In Admissions.” Complaint, supra note 6, at 114. The first question presented in SFFA’s cert petition is “Should this Court overrule Grutter v. Bollinger . . . ?” See Petition for Writ of Certiorari at i, SFFA, 600 U.S. 181 (No. 20-1199). For analysis of how SFFA altered the emphasis of its arguments in the trial, appellate, and Supreme courts, see Harpalani, supra note 8, at 32–36. For insights into how the Supreme Court Justices discussed Asian Americans during oral argument but then largely left them out of the majority opinion, see Robinson, supra note 63.

[87]. See Cass R. Sunstein, Probability Neglect: Emotions, Worst Cases, and Law, 112 Yale L.J. 61, 61–76 (2002). Sunstein focused on bad outcomes, but a similar probability neglect could take place with high affect, salient benefits (i.e., admission into an elite college).

[88]. Goodwin Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions, 100 Mich. L. Rev. 1045, 1052–55 (2002). For applications to the Asian American community, see Kimberly West-Faulcon, Obscuring Asian Penalty with Illusions of Black Bonus, 64 UCLA L. REV. Discourse 590, 597–601 (2017); see also William C. Kidder, Negative Action Versus Affirmative Action: Asian Pacific Americans are Still Caught in the Crossfire, 11 Mich. J. Race & L. 605, 611–16 (2006).

[89]. See Thomas J. Kane, Racial and Ethnic Preferences in College Admissions, in The Black-White Test Core Gap 431, 453 (Christopher Jencks & Meredith Phillips, eds. 1998).

[90]. See Feingold, supra note 6, at 721–24.

[91]. Recent empirical work confirms this understanding. See generally Joshua Grossman, Sabina Tomkins, Lindsay C. Page & Sharad Goel, The Disparate Impacts of College Admissions Policies on Asian American Applicants, 14 Sci. Reports 4449 (2024). Joshua Grossman and colleagues analyzed 685,709 applications to eleven highly selective colleges from 2015 to 2020. They isolated key variables such as standardized tests, high school GPA, extracurricular activities, etc., and ran nested logistic regressions to compare the odds of attendance between White, East Asian, Southeast Asian, and South Asian applicants. Because they lacked information about specific admissions decisions, they instead used attendance as a proxy for admission to one of these elite schools. Given the high yield of the schools, they thought this proxy was reasonable. See id. at 7. The odds that Asian American applicants were admitted to at least one of these schools were 28 percent lower than the odds for White students controlling for similar test scores, GPAs, and extracurricular activities. See id. at 4. For South Asians specifically, the gap was stunningly 49 percent lower odds. See id.

Legacy status and (interestingly) the geography of high school attended explained much of this disparity. As compared to a model that controlled for standardized tests, high school GPA, extracurricular activities, and gender and family socioeconomics, adding legacy status as a predictor variable changed the odds disparity for all Asian Americans from 31 percent to 21 percent (a change of 10 percent). See id. (compare Model 5 and Model 7). Geography had a comparable magnitude effect. See id. (compare Model 5 and Model 8).

[92]. See Uma Jayakumar, William C. Kidder, Eddie Comeaux & Sherod Thaxton, Race and Privilege Misunderstood: Athletics and Selective College Admissions in (and Beyond) the Supreme Court Affirmative Action Case, 70 UCLA L. Rev. Discourse 230, 243–44 (2023) (“Across these six Ivy League schools, [W]hite students make up 71 percent of athletes. Only 6 percent of athletes are Black, 5 percent are Asian American, 3 percent are Latinx, and close to zero are American Indian and Pacific Islander athletes.”); see also Grossman et al., supra note 91, at 7 (“[A]mong inferred [athlete] recruits, [W]hite applicants outnumber Asian American applicants by a factor of four to one.”).

[93]. Peter Arcidiacono, Josh Kinsler & Tyler Ransom, Asian American Discrimination in Harvard Admissions, 144 Eur. Econ. Rev. 1, 12 (2022) (“Asian Americans would see 20 [percent] higher odds of receiving a 2 or better on the personal rating if they were treated as [W]hite applicants.”).

[94]. See Hopi Hoekstra, New Harvard College Admissions Data, Harv. Fac. of Arts and Sci. (Sept. 11, 2024), https://www.fas.harvard.edu/2024/09/11/new-harvard-college-admissions-data/ [https://perma.cc/H9SQ-SWCE]; see also Elyse C. Goncalves, Matan H. Josephy & Neil H. Shah, Experts are Confused by Harvard’s Race Data. Here’s Why., Harv. Crimson (Sept. 13, 2024), https://www.thecrimson.com/article/2024/9/13/experts-confused-harvard-race-data/ [https://perma.cc/7473-U33Z].

[95]. These schools (including most of the Ivy League) were selected because they had published enrollment data on their websites as of September 27, 2024. They include: Amherst, Brown, Columbia, Dartmouth, Duke, Harvard, MIT, Princeton, Tufts, UNC, UVA, Washington University at St. Louis, and Yale. I personally compiled publicly available enrollment data from these thirteen schools for the purposes of this analysis. Enrollment Data Spreadsheet (on file with author).

[96]. See id.

[97]. See id.

[98]. See, e.g., Maria Zhu, New Evidence on the Underrepresentation of Asian Americans in Leadership Positions, 227 J. Econ. Behav. & Org 1, 23 (2024) (finding East and Southeast Asian men “less likely to hold management and executive positions compared to White men with similar qualifications”); Tyler Dang, Katherine Fang, Benji Lu, Michael Tayag & Goodwin Liu, Am. Bar Ass’n & Nat’l Asian Pac. Am. Bar Ass’n, A Portrait of Asian Americans in the Law 2.0: Identity and Action in Challenging Times 3 (2022) (“Underrepresentation of Asian Americans in the top ranks of the legal profession persists.”).

[99]. See, e.g., Jerry Kang, Nilanjana Dasgupta, Kumar Yogeeswaran & Gary Blasi, Are Ideal Litigators White? Measuring the Myth of Colorblindness, 7 J. Empirical Legal Stud. 886, 899–915 (2010) (showing predictive validity of implicit stereotypes and evaluation of Asian American lawyers).

[100]. For a valuable addition to that conversation, see Vinay Harpalani, Missing the Trees for the Forest: How Progressives Neglect Anti-Asian Animus in Magnet School Admissions Controversies, 113 Calif. L. Rev. 943 (2025).

[101]. See generally Mari Matsuda, We Will Not Be Used, 1 UCLA Asian Am. Pac. Islands L.J. 79 (1993) (worrying that Asian Americans will be politically manipulated through confusion about affirmative action).

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