Missing the Trees for the Forest: How Progressives Neglect Anti-Asian Animus in Magnet School Admissions Controversies

In this Essay, I illustrate how Asian Americans’ positioning intersected with litigation strategy and constitutional issues in Coalition for TJ v. Fairfax County School Board—an important recent ruling from the U.S. Court of Appeals for the Fourth Circuit that deals with race-neutral public magnet school admissions policies. Since the U.S. Supreme Court struck down race-conscious university admissions in 2023, magnet school admissions have become the next constitutional battleground for diversity in education. The Supreme Court has thus far denied certiorari in two cases involving magnet school admissions, over dissents by Justice Samuel Alito. Nevertheless, these cases present significant disputed constitutional issues, and the Court is likely to hear one of the cases at some point. My focus here is to explicate the role of animus towards Asian American achievement (“anti-Asian animus”) in the magnet school cases and elite K–12 schooling more generally—an issue that all parties involved have neglected in various ways. I consider how the Pacific Legal Foundation (PLF) litigated Coalition for TJ strategically, seeking to change equal protection doctrine and partly de-emphasizing anti-Asian animus for that end. I examine the court rulings in Coalition for TJ, arguing that while the Fourth Circuit’s judgment was ultimately correct, its analysis of disparate impact and discriminatory purpose was flawed in a manner that allows anti-Asian animus to go unaddressed. On that latter point, I am in rare agreement with Justice Alito. I offer an alternative resolution to the case that addresses these issues. I then argue that progressive supporters of racial diversity and equity in education have particularly neglected to address hostility towards Asian American achievement. I show that in various forms, anti-Asian animus is prevalent within magnet school admissions controversies and in K–12 education more generally. Because progressives have ignored such anti-Asian animus, conservatives have captured the narrative on it—a development that has political consequences. My aim is to convince progressives to take anti-Asian animus more seriously, even as they support the admissions reforms that Asian American plaintiffs in several cases have challenged.

Table of Contents Show

Introduction

After the Supreme Court’s rebuke of race-conscious university admissions policies in Students for Fair Admissions v. President and Fellows of Harvard College (SFFA),[1] the next constitutional battleground for diversity involves race-neutral admissions policies at public magnet schools. The Pacific Legal Foundation (PLF)[2] has litigated several challenges to such policies, most notably Coalition for TJ v. Fairfax County School Board, where the Fourth Circuit reversed the district court and ruled for the Fairfax County School Board.[3] The Supreme Court declined to review the Fourth Circuit’s ruling, over a dissent by Justice Samuel Alito.[4] More recently, the Court also denied certiorari in the First Circuit case Boston Parent Coalition for Academic Excellence Corp. v. School Committee of the City of Boston, as Boston had replaced the challenged admissions policy and thus rendered the case moot.[5] But Justice Alito again dissented,[6] and Justice Neil Gorsuch also opined that while the Boston case was moot, it did raise issues that need to be resolved.[7] Eventually, the Court will likely confront the issues raised in Coalition for TJ and the magnet school cases.[8]

Like SFFA, Coalition for TJ and other magnet school cases involve Asian American plaintiffs—a facet that is intricately intertwined with the way these cases are litigated and the constitutional questions they raise.[9] But on this matter, progressive scholars examining Coalition for TJ and the magnet school cases have missed the trees for the forest. Progressives have been so focused on the big picture of defending racial diversity (the “forest”) that they have overlooked the details—particularly the subtle but influential role of anti-Asian animus (the “trees”)[10] in the cases. Hostility toward Asian American achievement was key to understanding Coalition for TJ. Yet progressives largely ignored it, and the major academic commentary on the case—a Stanford Law Review article by Professor Sonja Starr—simply dismissed it.[11]

Such erasure of anti-Asian animus yields an incomplete understanding of the magnet school cases and paints an oversimplified picture of Asian Americans’ positioning within the U.S. racial landscape.[12] While we are often exalted as a high-achieving “model minority,”[13] Asian Americans encounter a complex interplay of valorization and ostracism,[14] even in elite educational spaces where we are highly represented.[15] Some progressives have pointed to the high representation of Asian Americans in these spaces as a reason to dismiss allegations of anti-Asian animus.[16] But if progressives continue to miss the trees for the forest, they will alienate Asian Americans and undermine the goal of achieving racial diversity and equity.[17]

In this Essay, I illustrate how Asian Americans’ racial positioning intersected with litigation and constitutional issues in Coalition for TJ as a harbinger for the future. While I recognize that the larger battle for racial diversity and equity, the forest, is imperative, my focus in this Essay is on the trees: the under-analyzed role of anti-Asian animus. Part I provides the factual and legal background for Coalition for TJ. It discusses the change to the magnet school admissions policy at issue, along with the effect of this change on the admission of different groups. I also review the “intent doctrine” cases involved in the legal challenge to the admissions policy change. Part II considers how PLF litigated the case. I argue that PLF’s goal was to change equal protection doctrine to adopt its novel legal argument (which I call the “racial composition theory”) rather than to prevail on well-established law such as a racial animus claim. While PLF did present evidence of anti-Asian animus to garner sympathy, it did not have the incentive to fully develop an animus claim even if there had been sufficient evidence to do so.[18] Thus, PLF’s litigation strategy actually downplayed anti-Asian animus. Part III examines the legal rulings in Coalition for TJ. It considers the district court’s ruling for the plaintiffs and examines the Fourth Circuit’s reversal, focusing on the circuit court’s analysis of disparate impact and discriminatory purpose. I examine the Fourth Circuit’s majority, concurring, and dissenting opinions, along with Justice Samuel Alito’s dissent to the denial of certiorari. Part IV offers my critique of the Fourth Circuit’s ruling and my proposed alternative resolution. I contend that while the Fourth Circuit’s judgment in Coalition for TJ was ultimately correct, its analysis of disparate impact and discriminatory purpose was flawed in a manner that allows anti-Asian animus to go unaddressed. On that latter point, I am in rare agreement with Justice Alito. I draw upon both precedent and recent legal scholarship in my alternative resolution, which aims to rebuke anti-Asian animus while upholding efforts to increase racial diversity.

Part V highlights the broader prevalence of anti-Asian animus related to achievement. It shows that anti-Asian animus is common in magnet school controversies. Most notably, anti-Asian animus takes the form of civic ostracism[19]—the exclusion of Asian Americans from decision-making about admissions policies. Beyond the magnet school cases, Part V also highlights empirical studies that illustrate White resentment towards Asian American achievement in K–12 education. Part VI examines the political dimension of the magnet school cases. I argue that because progressives have largely ignored anti-Asian animus, conservatives have been able to capture the narrative on it. Concerns about magnet school admissions controversies have influenced local politics in several instances, with Asian Americans supporting more conservative candidates. This shift parallels a broader rightward trend among Asian Americans in the national context.

The Conclusion calls upon racial diversity and equity advocates to acknowledge and confront anti-Asian animus. I recount how in the 1980s, progressive scholars such as Professors Don Nakanishi (University of California, Los Angeles (UCLA) Asian American Studies professor), Ling-Chi Wang (University of California, Berkeley (Berkeley) Ethnic Studies professor and founder of Chinese for Affirmative Action), and Derrick Bell (first Black tenured professor at Harvard Law School and founding figure in Critical Race Theory) all acknowledged the significance of anti-Asian animus in elite university admissions controversies. Progressives have rightly critiqued the conservative portrayal of Asian Americans as victims of affirmative action and racial diversity initiatives. But ultimately, I argue that progressives must also vigorously denounce animus towards Asian American achievement, even as they support the admissions reforms that Asian American plaintiffs are challenging.

I. Background to Coalition for TJ

A.     Factual Background

Coalition for TJ was a challenge to the new admissions policy at Thomas Jefferson High School for Science and Technology (TJ) in Fairfax County, Virginia, which U.S. News & World Report ranked as the United States’ top public high school in 2021.[20] TJ’s racial composition was quite different from that of Fairfax County as a whole. For the Class of 2024 at TJ, admitted students were 17.7% White, 73.0% Asian American/Pacific Islander, 3.3% Latine, 6.0% Multiracial/Other, and less than 1.0% Black.[21] Conversely, Fairfax County’s population in 2019 was 61.1% White, 19.3% Asian American/Pacific Islander, 16.4% Latine, 9.7% Other, 9.7% Black, and 0.2% Native American/Alaskan.[22]

For over a decade, the underrepresentation of Black and Latine students at TJ has been an issue of concern.[23] In March 2020, the Virginia Assembly passed a budget bill requiring TJ and other magnet schools to present a report on diversity and propose admissions policy changes to increase enrollment of historically underrepresented groups.[24] This bill, along with nationwide activism after George Floyd’s murder, appeared to be a catalyst for change.[25] During the summer of 2020, various school officials, including TJ’s principal, Ann Bonitatibus, spoke publicly about the importance of greater representation of Black and Latine students at TJ.[26] Throughout that summer and fall, the Fairfax County School Board (Board) considered several different proposals to reform the school’s admission policy in conjunction with public feedback and studies of how these proposals would affect TJ’s racial demographics.[27] Subsequently, in December 2020, the Board voted to change TJ’s admissions policy, with the goal of increasing Black and Latine student representation.[28]

TJ’s prior admissions policy included an application fee, standardized test, and teacher recommendations, all of which the Board eliminated.[29] The new admissions policy also increased the grade point average (GPA) and course requirements for eligibility, incorporated a “Problem Solving Essay” and other holistic criteria, and guaranteed admission to the top 1.5 percent of eighth graders at each eligible middle school who met the minimum criteria.[30] The rest of the class was filled with the highest-scoring remaining applications.[31]

After the new admissions policy was implemented, the demographic profile of TJ’s admitted class changed significantly. For the Class of 2025, the population of Black admitted applicants increased by nearly 6 percentage points (1.2% to 7.1%), and the admission of Latine applicants increased by 8 pergentage points (3.3% to 11.3%), whereas the admission of White applicants also increased by approximately 5 percentage points (17.7% to 22.4%).[32] Conversely, the percentage of admitted Asian American applicants dropped by almost 20 percentage points (73.0% to 54.4%).[33] In response, the Coalition for TJ (Coalition), which was comprised of “primarily Asian American parents,”[34] filed a legal challenge to the new admissions policy. Represented by PLF, the Coalition alleged that the Board had changed the policy with the intent to limit the number of Asian American admittees to TJ, thus violating the Equal Protection Clause.[35]

B.     Legal Background

Unlike SFFA and prior university admissions cases, Coalition for TJ and other magnet school cases involve only facially race-neutral admissions policies. In these cases, neither the old nor the new admissions policies considered race as an admissions factor. Rather, the constitutional issue raised by Coalition for TJ and other magnet school cases is the purpose of the admissions policy change: Can a school change its admissions policy with the intent to alter the representation of racial groups in its admitted class?

This question implicates the “intent doctrine”: the requirement for a plaintiff to demonstrate intentional discrimination in order to establish an equal protection violation. In Washington v. Davis, the Supreme Court held that equal protection violations require proof that a state policy was adopted with an “invidious discriminatory purpose.”[36] Simply demonstrating that the policy had a disparate impact—a negative effect on one group—is not enough for an equal protection violation.[37] Davis noted that a discriminatory purpose “may often be inferred from the totality of the relevant facts,” including evidence of disparate impact.[38] Next, Village of Arlington Heights v. Metropolitan Housing Development Corp. laid out several factors to assess if the “totality of relevant facts” demonstrated a discriminatory purpose.[39] These factors (which became known as the “Arlington Heights factors”) included not only disparate impact but also the “historical background of the decision,” “specific sequence of events leading up to the challenged decision,” “[d]epartures from the normal procedural sequence,” and “legislative or administrative history . . . especially where there are contemporary statements by members of the decision-making body, minutes of its meetings, or reports.”[40] Subsequently, Personnel Administrator v. Feeney clarified the definition of “discriminatory purpose,” noting that it “implies more than . . . volition or . . . awareness of consequences.” [41] Rather, Feeney held that the state action had to occur at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group.[42]

In Coalition for TJ, it was undisputed that TJ’s new admissions policy intended to increase racial diversity—specifically the representation of Black and Latine students. But does this mean there was an invidious discriminatory purpose—that the policy change was also intended to reduce the representation of Asian American students?[43] And was anti-Asian racial animus part of this purpose? PLF’s arguments and litigation strategy complicated these questions.

II. Pacific Legal Foundation Argument and Strategy in Coalition for TJ

A.     Discriminatory Purpose and the Racial Composition Theory

On the surface, PLF sidestepped the question of anti-Asian animus. It argued that “[d]iscriminatory intent does not require racial animus”[44] or evidence “that any [Board] member . . . harbored racial hatred or animosity toward [Asian Americans].”[45] Rather, PLF proffered a novel legal argument, which I call its “racial composition theory.” Applying Feeney’s “‘because of,’ not merely ‘in spite of,’” standard,[46] PLF contended that “the Board’s [new admissions] policy was designed to increase Black and Hispanic enrollment, which would (by necessity) decrease the representation” of Asian-Americans at TJ.”[47] Under this theory, the Board did not merely adopt the new admissions policy “in spite of” its incidental effect of reducing Asian American representation. Rather, PLF argued that the new policy was adopted “because of” the Board’s intent to change the overall racial composition of TJ, which included the change in Asian American representation. Under PLF’s racial composition theory, the School Board’s intent to change racial composition was itself a discriminatory purpose—one that constituted an equal protection violation, even without racial animus.

To bolster its argument that the School Board was motivated by an invidious discriminatory purpose, PLF supplemented its racial composition theory with several other contentions. It argued that the new TJ admissions policy had a disparate impact on Asian American applicants.[48] PLF contended that “a simple before-and-after comparison” was the proper way to determine whether there was a disparate impact,[49] and it cited the drop in the proportion of admissions offers to Asian Americans (73 percent for the Class of 2024 vs. 54 percent for the Class of 2025).[50] Also, referencing the Arlington Heights factors, PLF pointed to several historical events and statements leading up to TJ’s admissions policy change: studies and discussions about how various admissions reforms would affect TJ’s racial composition, statements by Board members about the need to increase Black and Latine representation at TJ, and Virginia’s new bill requiring a report to the Governor on “progress towards diversity goals” at TJ.[51] PLF contended that “the discussion of TJ admissions changes was infected with talk of racial balancing from its inception.”[52]

PLF ultimately argued that because the Board had adopted TJ’s admissions policy with a discriminatory purpose—that the policy was adopted “at least in part . . . because of” its “adverse effects” on Asian Americans—strict scrutiny should apply. PLF argued that applying strict scrutiny, the burden to show that the new TJ admissions policy was narrowly tailored to further a compelling government interest shifted to the Board.[53] It noted further that the Supreme Court did not recognize diversity in K–12 education as a compelling interest, that no remedial interest existed, and that the Board’s only goal was unconstitutional “racial balancing.”[54]

PLF’s argument was inconsistent with precedent on both discriminatory purpose and application of strict scrutiny. The Supreme Court has never ruled that mere intent to change racial composition, without a facial racial classification, was an invidious discriminatory purpose.[55] Many if not most racial diversity initiatives, including those that are facially neutral, aim to reallocate resources between different groups. Additionally, PLF misapplied precedent when articulating the standard of review for facially race-neutral policies with such a purpose.[56] With its argument that strict scrutiny applied to TJ’s new admissions policy, PLF conflated the Davis line of cases with other inapposite rulings. Adarand Constructors, Inc. v. Pena ruled that strict scrutiny applies to all government facial racial classifications,[57] not to facially-neutral ones. Neither Davis nor Arlington Heights nor Feeney applied strict scrutiny, as they all involved facially-neutral policies.[58] So instead, PLF drew from Miller v. Johnson, a congressional redistricting case that stated, “statutes are subject to strict scrutiny under the Equal Protection Clause . . . when, though race neutral on their face, they are motivated by a racial purpose or object.”[59] However, Miller “require[d] strict scrutiny whenever race is the ‘overriding, predominant force’ in the redistricting process.”[60] Later, Hunt v. Cromartie reiterated that “strict scrutiny applies if race was the ‘predominant factor’ motivating the legislature’s districting decision.”[61] While employing Miller and Hunt’s criterion for strict scrutiny, PLF eschewed their “predominant” factor requirement and went back to citing Arlington Heights, which stated that “[i]mpermissible racial intent need only be a ‘motivating factor’—it need not be ‘the “dominant” or “primary” one.’”[62] But under Arlington Heights, even a policy with a “racially discriminatory purpose” is not automatically invalid or even subject to strict scrutiny.[63] Rather, the government has “the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered.”[64] If Coalition for TJ involved an impermissible motive that was not the “predominant force” in driving the admissions policy change, then the Arlington Heights standard should apply, not the much higher bar of strict scrutiny.

PLF thus misapplied and intermingled various lines of precedent to make its argument. It did so because it wanted to change the law: to remold equal protection in a manner that would forbid any policy with the purpose of increasing racial diversity. And PLF’s goal of changing the law is key to understanding how it treated anti-Asian animus in the case.

B.     The Role of Anti-Asian Animus

Despite arguing that evidence of racial animus was not necessary to establish an invidious motive, PLF did present such evidence. This evidence included videos of anti-Asian comments in education reform meetings, statements by Fairfax County School Board members about the influence of anti-Asian sentiment in the TJ admissions reform process, and non-standard and hurried procedures that excluded Asian American families from fully participating in the decision-making process.[65] PLF did not raise a separate count of racial animus but rather presented evidence of animus, in conjunction with the Arlington Heights factors, as part of its larger argument that TJ’s admissions policy was motivated by an invidious discriminatory purpose.

Regarding historical background, PLF’s complaint cited: (1) statewide meetings on education reform that included discussion of TJ’s high Asian American enrollment prior to its admissions policy change;[66] (2) a Youtube video of a Virginia General Assembly meeting, where a retired Fairfax County middle school teacher referred to Asian American families as “ravenous” and stated that families from India come to the United States—perhaps illegally—so their children can attend TJ;[67] (3) a statewide Diversity, Equity, and Inclusion (DEI) working-group meeting, where State Delegate Mark Keam stated that Asian American parents were “unethical,” that they “push their kids into [TJ],” that they were “using [TJ] to get into Ivy League schools,” and that their families were “not even going to stay in America”;[68] and (4) other comments that were “dog whistles,”[69] subtly referencing the stereotype of Asian American obsession with achievement.[70] Thus, there were direct comments and subtle innuendos reflecting anti-Asian animus in official government meetings that discussed TJ admissions.

PLF also cited contemporary statements by actual decisionmakers—Fairfax County School Board members who voted on the TJ admissions policy change. To support its summary judgment motion, PLF included exhibits with text messages between Board members themselves, which acknowledged anti-Asian sentiments in TJ admissions reform discussions.[71] In Fall 2020, Board Member Stella Pekarsky texted that one proposed admissions policy “will whiten our schools and kick [out] our Asians.”[72] Board Member Abrar Omeish responded that “there has been an anti [A]sian feel underlying some of this.”[73] Pekarsky then responded, “Of course . . . .”[74] In another exchange, Omeish asked Pekarsky if she thought that then-Fairfax County Public Schools Superintendent Scott Brabrand’s bias against Asian Americans was “deliberate.”[75] Pekarsky answered that Brabrand “[c]ame right out of the gate blaming [Asian Americans].”[76] Although Brabrand was not a Board member, he was heavily involved in the Board’s formulation and consideration of different proposed TJ admissions reforms.[77] These text messages from two Board members—the decisionmakers themselves—show that they believed that anti-Asian animus tainted the process through Brabrand’s involvement and perhaps in other ways.

Additionally, PLF pointed to departures from normal procedures. On October 6, 2020, two months before adopting the new TJ admissions policy, the Board voted on several matters at a “work session” where such votes do not normally occur.[78] Without public hearing or comment, the Board voted to stop using the standardized entrance exam, only one month before the exam was scheduled.[79] All of this happened a few weeks after a September 15, 2020 meeting, where Board members reviewed data “show[ing] that Asian students consistently performed better than students of other races on the TJ standardized admissions tests.”[80] Nationally, standardized tests are a particularly charged issue for Asian Americans in admissions controversies.[81] But the Board did not allow any further public input, even though some Board members believed the process “was moving too fast.”[82]

More generally, PLF referenced the specific sequence of events leading up to the admissions policy change. It contended that “the process for changing TJ admissions was unreasonably hurried and . . . there was a noticeable lack of public engagement and transparency—even among Board members.”[83] Discussions among the Board members continued into November 2020, focusing on the projected racial composition of TJ under various proposed admissions policies. But there was no agreement, and the new admissions cycle was approaching. In December 2020, the Board finally voted to adopt the new admissions policy that TJ eventually implemented.[84] However, Board Member Megan McLaughlin abstained, not because she opposed the new policy but rather because she believed “this is not how the Board should conduct its business” and because she “could not ‘recall a messier execution of Board-level work’ in her nine years on the Board.”[85]

But while this evidence bolstered its case, PLF did not file a separate count for anti-Asian animus. It did not emphasize the evidence of animus or present this evidence in a separate, organized fashion. The exhibits that reflected or referenced anti-Asian comments were mentioned only briefly in the text of PLF’s memorandum supporting its summary judgment motion.[86] PLF only referred to animus intermittently, within the context of its broader argument for racially discriminatory purpose—an argument that highlighted PLF’s racial composition theory and its focus on the numbers of students admitted rather than on instances of anti-Asian animus. PLF also conceded that the Board technically “d[id] not appear to have broken any procedural rules.”[87] And PLF only filed a federal equal protection claim, unlike plaintiffs in non-PLF-litigated magnet school cases who have concurrently filed state law claims to address racial animus.[88] Even if PLF believed that the evidence was insufficient for the Coalition to prevail strictly on an animus claim, it did not help the Coalition’s case to underplay this evidence. So why didn’t PLF pursue anti-Asian animus more vigorously in its litigation?

Because PLF, as an impact litigation organization, had no interest in prevailing via well-established law such as a racial animus claim, even if it could have. Instead, PLF’s goal was to change the law—to create an equal protection violation merely for the intent to affect racial composition and increase diversity, even through race-neutral means. Emphasizing animus too much in legal proceedings could have actually detracted from PLF’s goal, as it might provide another way to resolve the case—one that is far more rooted in precedent. So PLF used anti-Asian animus simply to buttress its argument and gain public sympathy, but not as a central feature of its litigation.

Thus, even if there had been enough evidence of anti-Asian animus for a viable equal protection claim, PLF did not have the incentive to develop that claim. It did not have the incentive to fully bring forth the evidence of animus, to file a separate count and vigorously litigate animus, or to file state law claims that focused on animus in addition to its equal protection argument that focused on the racial composition theory. PLF thus contributed to the erasure of anti-Asian animus in the Coalition for TJ litigation. We did not learn the actual extent of anti-Asian animus that was present or that motivated TJ’s admissions policy change[89] because doing so could have detracted from PLF’s goal. [90]

III. Coalition for TJ Rulings

A.     District Court

The Coalition prevailed at the district court, as Judge Claude Hilton’s opinion endorsed PLF’s reasoning almost in full. Judge Hilton adopted PLF’s theory of disparate impact as a “simple before-and-after comparison”[91] and tied it to the intent to change the racial composition at TJ.[92] Following PLF’s lead, he held that “discriminatory intent does not require racial animus.” [93] He further held that “the Board acted at least in part because of, not merely in spite of, the policy’s adverse effects” on Asian Americans, stating: “[T]he Board’s policy was designed to increase Black and Hispanic enrollment, which would, by necessity, decrease the representation of Asian-Americans.”[94] Citing Adarand, Judge Hilton applied strict scrutiny to the Board’s decision to change TJ’s admissions policy.[95] He invalidated the change and ordered the reinstatement of the old TJ admissions policy.[96] The Fourth Circuit stayed that ruling,[97] and the U.S. Supreme Court declined to lift the stay.[98]

B.    U.S. Court of Appeals for the Fourth Circuit

1.     Disparate Impact

Ultimately, the Fourth Circuit reversed the district court in a 2-1 ruling.[99] Judge Bruce King’s majority opinion analyzed disparate impact first.[100] The majority applied disparate impact not just as a starting point for invidious intent, but as a prerequisite:

[T]o demonstrate that an evenhanded, facially race-neutral policy like that challenged here is constitutionally suspect, the plaintiff . . . must show (1) that the policy exacts a disproportionate impact on a certain racial group, and (2) that such impact is traceable to an “invidious” discriminatory intent.[101]

The majority rejected PLF’s “simple before-and-after comparison.”[102] It noted that under the new TJ admissions policy, Asian Americans received a greater proportion of admissions offers to TJ (54.36 percent) than their percentage of applications to TJ (48.59 percent)—the only group to receive a greater percentage of offers than applications.[103] The majority also noted that under the new TJ admissions policy, there was an increase in the admission of low-income Asian American applicants and those from middle schools not well represented at TJ.[104]

Because the Fourth Circuit majority found that the new TJ admissions policy had no disparate impact on Asian Americans, it ruled that the plaintiffs’ “Equal Protection claim . . . fail[ed] as a matter of law and . . . [the court] could end [its] analysis . . . at this juncture.”[105]

Justice Allison Rushing’s dissenting opinion was quite critical of the majority’s analysis. She asserted:

[T]he majority rejects the very possibility that a State could ever discriminate against a racial group by intentionally reducing its success in a competitive process . . . . According to the majority, the Board could not have discriminated against Asian students by reducing their success rate—even intentionally and with a discriminatory purpose—so long as Asian students remain no less successful than students of other races. I don’t see why not. . . . If a State enacts a policy with the purpose and effect of trimming down the success of one particular racial group . . . it has discriminated against that racial group. . . . 

To hold otherwise misses the point of discriminatory-intent claims under the Equal Protection Clause.[106]

2.     Discriminatory Purpose

While its disparate impact analysis could have concluded the case, the Fourth Circuit majority did go on to analyze invidious discriminatory purpose.[107] The majority, concurring, and dissenting opinions also clashed in this analysis. The majority stated that even “if the challenged admissions policy actually imposed a disparate impact on Asian American applicants to TJ,” the evidence of discriminatory purpose was “far too sparse.”[108] The majority correctly rejected PLF’s racial composition theory, noting that under Feeney, it is “wholly insufficient” to infer a discriminatory purpose because “a ‘natural and foreseeable consequence’” of increasing Black and Latine enrollment would be reducing Asian American enrollment.[109]

However, although the Fourth Circuit majority was correct on the racial composition theory, the majority’s consideration of anti-Asian animus was cursory—perhaps because consideration of anti-Asian animus was purely dicta and unnecessary for the ruling.[110] The majority did not specifically address the anti-Asian comments at meetings or the Board’s text messages. It also did not address the vote to eliminate the standardized admissions test at the October 6 work session, which broke standard protocol. The majority disputed the district court’s claim about the process being “rushed” and “unreasonably hurried.”[111] The majority also noted the Board spent four whole months examining TJ’s admissions policy and engaged school officials and the public during this time.[112] This engagement included consideration of various proposed admissions policies at public meetings with public comment, along with “targeted outreach” methods to community members.[113]

In his concurrence, Judge Toby Heytens referenced the anti-Asian comments and text messages. He underscored that the Coalition did not produce “statements from any decisionmaker suggesting a purpose of disadvantaging any applicant based on race.”[114] Judge Heytens also noted that the text exchange between Pekarsky and Omeish about unfairness to Asian American applicants concerned Superintendent Brabrand’s earlier proposal for changing TJ’s admissions policy, which was rejected by the Board.[115] And Judge Heytens stated that while some Board members thought that Brabrand “came out of the gate blaming [Asian Americans]” and was “demeaning” and “racist” towards Asian Americans, Brabrand was not a Board member and did not have a vote on TJ’s admissions policy.[116]

Nevertheless, Judge Allison Rushing’s dissenting opinion lamented what she believed was inadequate attention to anti-Asian animus. She opined:

The majority does not engage with these text messages beyond its conclusory remark that they do not support a finding of “intent to” . . . “scale down [TJ’s] share of Asian American students.” . . . But the messages, and the evidence as a whole, tell a different story.[117]

Judge Rushing also noted that the vote to remove the test came shortly after Board members reviewed data showing that Asian American students continually outperformed other groups.[118] In Judge Rushing’s view, the Fourth Circuit’s ruling did not adequately consider the evidence of anti-Asian animus, which could support a discriminatory purpose for changing TJ’s admissions policy.

C.    U.S. Supreme Court Denial of Certiorari and Justice Alito’s Dissent

In February 2024, the Supreme Court denied the Coalition’s certiorari petition.[119] Justice Alito, joined by Justice Clarence Thomas, dissented from the denial of cert.[120] Although Alito noted that he “would not reach the question whether the District Court correctly analyzed all the evidence in this case,”[121] he echoed Judge Rushing’s critique of the Fourth Circuit majority’s disparate impact analysis.[122] Alito highlighted how the majority’s approach could mask racial animus. He offered a hypothetical where a basketball coach intentionally reduced the number of Black players, but where Black players remained overrepresented even after the reduction.[123] And he expressed doubt that the Court would reject liability for racial animus in that scenario.[124]

I suspect some non-dissenting Justices might have agreed with Justice Alito that the Fourth Circuit erred in its disparate impact analysis, but they may have believed that the Fourth Circuit reached the correct judgment in rejecting PLF’s racial composition theory and that other facts did not demonstrate a discriminatory purpose for changing TJ’s admissions policy.[125] If so, hearing Coalition for TJ now would take time and effort without changing the result and could also draw more negative public attention to the Court. In the wake of SFFA, and with other magnet school cases to come, the Justices may have thought it best to put off addressing disparate impact until there is a future live controversy.

Coalition for TJ raises interesting questions about equal protection cases that involve a combination of legitimate and discriminatory purposes for enacting a policy. How should the courts handle a case where some actors influencing a policy change were motivated by a valid purpose (such as desire to increase representation of historically marginalized groups), while others harbored a discriminatory purpose (such as anti-Asian sentiments)? This question has become more significant, as conservatives pit Asian Americans against other groups of color in cases such as SFFA v. Harvard and the magnet school cases. Yet it has been ignored by progressive advocates for diversity, who have often treated any claim of anti-Asian animus in these cases as illegitimate and unworthy of attention.[126] It is in this vein that I give my alternative approach to Coalition for TJ.

IV. Alternative Approach to Coalition for TJ

A.     Critique of Fourth Circuit Ruling

In my view, the Fourth Circuit reached the correct judgment in Coalition for TJ and rightly rejected PLF’s racial composition theory. However, I agree with Judge Rushing and Justice Alito that the Fourth Circuit majority’s disparate impact analysis was erroneous and could mask anti-Asian animus.[127] I would elaborate further that disparate impact is not a separate prong that must be fulfilled independent of discriminatory purpose.[128] Rather, it is a component of the discriminatory purpose analysis itself. In Davis, the Supreme Court held that “an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact . . . that the law bears more heavily on one race than another.”[129] Later, in Arlington Heights, the Court held that disparate impact is just one factor in “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.”[130] The Court also provided additional Arlington Heights factors to guide future courts’ analysis of “the totality of relevant facts.”[131] Thus, contrary to the Fourth Circuit’s analysis in Coalition for TJ, disparate impact was not intended as a prerequisite to the discriminatory purpose inquiry. It was intended to be part of that inquiry.

The parties in Coalition for TJ quarreled over the precise definition of “disparate impact,”[132] but this was not necessary. What really should have mattered was whether the facts as a whole supported a finding of discriminatory purpose. At TJ, the proportion of admitted Asian Americans dropped in the first year of the new policy, and no other group saw such a drop.[133] Whether or not we call this a “disparate impact,” it was an adverse effect on a single group and thus provides evidence of a discriminatory purpose. Conversely, the fact that Asian Americans remained overrepresented and fared better than other groups under the new policy provides evidence against such a purpose. Neither is dispositive: Both are just part of the “totality of relevant facts,” which also includes evidence that the Board’s motivation was to increase representation of Black and Latine students at TJ and also the evidence of anti-Asian animus in the process. With respect to disparate impact, equal protection claims differ from employment discrimination claims under Title VII of the Civil Rights Act of 1964.[134] In a Title VII case, disparate impact alone can create a presumption of liability.[135] Thus, defining “disparate impact” precisely in a Title VII case is important, as the definition itself can determine liability.[136] However, that is not so for an equal protection case, where discriminatory purpose is necessary for liability and thus becomes the key inquiry.[137] Even when it is useful to define disparate impact precisely, such as to identify appropriate comparison groups,[138] the definition should not be a gatekeeper for equal protection claims.

The Fourth Circuit’s misguided disparate impact inquiry short-circuited its analysis of discriminatory purpose and specifically anti-Asian animus. And its cursory analysis also contained flaws. For example, to counter the assertion that the process of changing TJ’s admissions policy was rushed, the majority touted four months of public engagement and discussion by the Board. But the majority neglected the fact that those four months yielded no agreement, which is why the process became rushed as the next TJ admissions cycle approached. Additionally, Judge Heytens’s concurrence focused solely on animus among Board members and dismissed other influential actors, such as then-Superintendent Brabrand, who was heavily involved in the TJ admissions reform process,[139] and whom two of the Board members felt harbored anti-Asian sentiments.[140] And none of the opinions discussed the anti-Asian comments that were made at statewide education reform meetings and directly referred to TJ.[141]

Nevertheless, the evidence of anti-Asian animus was most likely insufficient to establish a discriminatory purpose. The primary motivation for changing TJ’s admissions policy was to increase Black and Latine representation, not to discriminate against Asian Americans. PLF did not have incentive to fully develop an animus claim, but even if PLF had done so, such a claim would probably not have been successful unless there was more evidence of anti-Asian animus. It is notoriously difficult to establish discriminatory purpose under the intent doctrine established by the Davis line of cases.[142] In Coalition for TJ, the difficulty of establishing intent led to a pro-diversity result, where the Fourth Circuit upheld TJ’s new admissions policy, which boosted Black and Latine enrollment. But ironically, progressives have long critiqued the intent doctrine for impeding racial equity by making it difficult to prove an equal protection violation.[143] They should not hide behind the intent doctrine now and use it as an excuse to ignore anti-Asian animus. Rather, I propose an alternative way to approach cases like Coalition for TJ.

B.     Proposed Alternative Resolution

My proposed resolution has several steps. First, although the available evidence of anti-Asian animus does not support a ruling for the plaintiffs, I do not believe courts should ignore it. Rather than simply holding that the evidence of animus is too attenuated to establish a discriminatory purpose, I would look to progressive scholarship that aims to expand the intent doctrine. Professor Kerrel Murray proposes the concept of “discriminatory taint”: “an objectively ascertainable relationship between an earlier policy and a later, similar policy.”[144] Murray posits a legal framework to evaluate and potentially invalidate a new policy that is “tainted” by an earlier discriminatory one.[145] The same logic could apply for older policy discussions and proposals that “taint” an enacted policy. In Coalition for TJ, there was evidence that the new TJ admissions policy was tainted with anti-Asian sentiment, shown by: (1) anti-Asian comments at state legislative hearings and meetings that discussed TJ admissions reform; (2) text messages by Board members suggesting that they believed that then-Superintendent Brabrand harbored anti-Asian sentiments which may have been reflected in his proposals for changing TJ’s admissions policy and may have influenced the admissions reform process; and (3) procedural irregularities that excluded input from Asian American families, such as the irregular vote to eliminate the standardized test at a work session and the rushed process to change TJ’s admissions policy.

Second, in that vein, I would recognize Coalition for TJ as a mixed-motive case: one that involved a combination of a permissible purpose and a discriminatory purpose.[146] The permissible purpose (and predominant one) was increased enrollment of Black and Latine students at TJ, and the impermissible purpose was anti-Asian animus.[147] I would find that while the evidence of animus shows there was a partially discriminatory purpose, that does not itself trigger strict scrutiny as PLF contended.[148] Rather, under Arlington Heights, the proper analysis is a mixed-motive one: Proof of “a racially discriminatory purpose” does not itself invalidate the government action but rather shifts the burden to the government of showing that same action would have been taken even without the discriminatory purpose.[149]

Third, applying this framework, the available evidence indicates that the predominant purpose of changing TJ’s admissions policy was to increase racial diversity by improving representation of Black and Latine students at TJ. Thus, the Board could meet the burden of showing it would have changed TJ’s admissions policy even if there was no anti-Asian animus tainting the process. I would rule for the Board on those grounds. My approach would reach a pro-diversity result, and it would also formally rebuke anti-Asian animus. As precedent, it could strengthen future claims where evidence of racial animus is attenuated or limited, as has long been the case for many marginalized groups bringing anti-discrimination claims. This approach could also have a deterrent effect on invidious discrimination more broadly, because courts could treat such discrimination as “taint” and it would have consequences further into the future. Additionally, courts could order or incentivize measures to combat animus, such as review and oversight of implemented policies and measures to ensure inclusion of all stakeholders in the decision-making process.

In a complex factual situation where racial diversity efforts and anti-Asian sentiments might unfortunately show up on the same side, my proposed resolution facilitates the former without leaving the latter unaddressed. But regardless of whether the Supreme Court would adopt this resolution or otherwise address anti-Asian animus, my broader point is for progressive advocates of racial diversity and equity in education to address it. Progressives should not ignore, dismiss, or minimize anti-Asian animus in elite educational settings. Rather, they should actively acknowledge its presence, denounce it, and address it by whatever means are available. Hostility towards Asian American achievement is not new. It has long existed in higher education,[150] and it is now even more common in elite K–12 education.[151]

V. Prevalence of Anti-Asian Animus

A.     Magnet School Admissions Controversies

1.     Derogatory Comments Towards Asian Americans

Anti-Asian animus can take overt or subtle forms, as seen in the magnet school cases. The most obvious instances are comments expressing hostility towards Asian Americans or acknowledging that there is such hostility in the context of policy discussions. In Coalition for TJ, various actors at statewide education reform meetings made negative comments about Asian American TJ applicants and their families. Two Board members opined that the Superintendent harbored anti-Asian sentiments, which influenced his admissions policy proposals and the process of TJ admissions reform. Some other magnet school cases have also involved anti-Asian comments. In Boston Parent Coalition for Academic Excellence Corp. v. School Committee for Boston,[152] which included both White and Asian American plaintiffs, Michael Loconto, the Chair of the Boston School Committee, resigned after he was caught mocking Asian American names at a virtual committee meeting.[153] And in Friends of Lowell Foundation v. San Francisco Unified School District,[154] a member of the San Francisco Board of Education also made disparaging comments about Asian Americans.[155]

But most people do not openly voice such hostilities in public forums. Explicit comments alone will underestimate the level of anti-Asian animus. One must also examine more subtle actions that marginalize Asian Americans.

2.     Civic Ostracism

More common than explicit remarks are procedures that exclude Asian Americans from important decision-making regarding policy changes. This phenomenon reflects what Professor Claire Jean Kim calls civic ostracism: the exclusion of Asian Americans from political participation and privileges of citizenship.[156] Professor Kim notes that Asian Americans are especially vulnerable to political marginalization because we are seen as undeserving foreigners.[157] Arlington Heights recognized that “[d]epartures from the normal procedural sequence” could indicate discriminatory purpose and animus towards disadvantaged groups.[158] In Coalition for TJ, the vote to eliminate TJ’s standardized entrance exam,[159] conducted at a work session without public comment just one month before the exam was scheduled,[160] and the rushed process of changing the admissions policy towards the end,[161] constitute civic ostracism.

The most blatant example of civic ostracism in the magnet school cases thus far was in Friends of Lowell Foundation.[162] The plaintiffs, who were largely Asian American and joined by the conservative Asian American Legal Foundation, actually prevailed because the vote to change Lowell High School’s admission to a lottery system violated California’s public meeting laws, as it took place without even “minimally adequate” notice.[163] The title of the resolution for the vote was “In Response to Ongoing, Systemic Racism at Lowell High School,” but neither the resolution nor the meeting agenda said anything about an admissions policy change.[164]

Magnet school admissions controversies in New York City and Loudoun County, Virginia have also involved civic ostracism of Asian Americans. In June 2018, then-New York City Mayor Bill de Blasio proposed to eliminate New York’s Specialized High School Admissions Test (SHSAT).[165] New York State Senator John Liu, chair of the State Senate Committee on New York City Education, contended that “the Asian community was completely excluded, not inadvertently, but intentionally and deliberately” from discussions about the proposed change.[166] De Blasio eventually withdrew the proposal, but Professor Osamudia James notes how the Asian American community’s “status as unassimilable left them excluded” even though they were important stakeholders who would be affected by the proposal.[167]

Asian Americans also encountered civic ostracism in Boyapati v. Loudoun County School Board,[168] another Virginia magnet school admissions case that was not litigated by PLF. The mostly South Asian American plaintiffs filed not only a federal equal protection claim [169] but also state law claims,[170] including an alleged violation of the Virginia Freedom of Information Act (VFOIA).[171] The plaintiffs raised the VFOIA claim because the Loudoun County School Board departed from standard procedure. The School Board first rejected the admissions policy change at a public meeting. But then the School Board members withdrew from the public meeting, had a private discussion, and took a revote where they approved the change.[172] Although the court rejected the plaintiffs’ VFOIA claim,[173] the departure from standard procedure still served to ostracize Asian American families who were stakeholders, leaving them out of the pertinent conversation.

B.     Empirical Evidence

Beyond the magnet school cases, there is plenty of empirical evidence of hostility towards Asian American achievement in K–12 education generally. For the past twenty years, White families have been leaving high-performing school districts as the Asian American student population grows because the schools are becoming too academically competitive.[174] This phenomonon, the “new White flight,”[175] is most apparent in California, which has by far the largest Asian American population of any state.[176] Asian Americans in Silicon Valley and the Bay Area have reported that they believe the new White flight is rooted in negative stereotypes of them as “excessively competitive.”[177] Empirical research has backed their concerns. In 2023, a large demographic study by Princeton University researchers reported that “parental concerns about academic competition” from Asian Americans could explain White flight from suburban, high socioeconomic public schools in California.[178] Also, Professor Willow Lung-Amam conducted an in-depth, qualitative study of the growing Asian American presence in Fremont, California, where she found:

Whereas many established White families claimed they want less competitive schools that offered a more “well-rounded” and “balanced” education, Asian American families were widely associated with an increasing sense of academic competition, stress, and a culture that placed premium on high grades and academic rigor. Tensions over these differences . . . led a number of White families to leave the neighborhood and the district.[179]

Others have also reported that the new White flight is occuring in various places as the Asian American population grows and White families increasingly fear academic competition.[180] In the Atlanta suburbs, White parents leaving high-performing school districts made comments like, “Asian parents take their kids for extra tutoring. It’s not fair for the ‘regular’ kids.”[181] Also, an experimental study conducted by Frank L. Samson illustrated anti-Asian animus mirrored in a hypothetical admissions scenario.[182] Samson found that when confronted with examples of Asian American academic success, White subjects lowered minimum academic standards for admission,[183] while Asian American subjects did not.[184] Moreover, Professor Natasha Warikoo notes that it is often relatively affluent White liberals who harbor the most visible animus towards Asian American achievement. In her qualitative study of a high school in an affluent East coast suburb, Professor Warikoo reported that:

White parents . . . tended to identify as liberal and expressed great appreciation for the racial diversity in their town . . . . Over 80 percent of adults in the town voted for Joe Biden . . . . But their appreciation for diversity only went so far. . . . [W]hen . . . Asian American kids bested their kids, [W]hite parents attempted to alter the very system designed to privilege them.[185]

All of these findings echo the comments labelling Asian American families in Fairfax County, Virginia, as “ravenous” and “unethical” for “push[ing] their kids into [TJ].”[186] It is quite easy to envision similar sentiments among White parents in any of the magnet school cases, whether or not these sentiments are spoken out loud or are otherwise provable. And whether or not conservatives emphasize anti-Asian animus in the magnet school litigation, they do highlight such animus in political discourse. By ignoring the subtle presence of anti-Asian animus, progressives cede the narrative about it to conservative opponents of diversity initiatives. And this capitulation could have consequences for Asian American political affiliation and coalition-building among people of color.

VI. Political Impact of Anti-Asian Animus

A.     Conservative Capture of the Narrative

Progressives should be very concerned that in both the legal and the public sphere, conservative opponents of diversity initiatives have been most outspoken about animus towards Asian American achievement.[187] Conservative organizations have used anti-Asian animus not only in their litigation strategy but also in their political strategy. In the process of opposing diversity initiatives, conservatives argued that federal civil rights agencies and the Biden Administration ignored discrimination against Asian Americans in education, citing both SFFA and Coalition for TJ.[188]

The discourse around these cases also shows how conservatives leverage not only anti-Asian animus itself but also liberal and progressive neglect of this animus. Allegations of discrimination against Asian Americans were a centerpiece of the SFFA v. Harvard litigation, serving various ends. Students for Fair Admissions (SFFA) employed such allegations in manipulative ways, linking them to its attack on race-conscious university admissions.[189] But SFFA also uncovered troubling instances of anti-Asian animus. It cited an incident where an elderly Harvard alum suggested in a letter that Harvard should limit the number of “oriental” students on campus to 5 percent.[190] Harvard’s President and Admissions Director reacted merely by writing back with a polite letter thanking him for the suggestion.[191] Harvard argued correctly that this incident was not relevant to the admissions lawsuit.[192] Nevertheless, in the broader public sphere, polite letters and purely legalistic answers are insufficient responses to such blatantly racist incidents. SFFA questioned whether the response would have been so polite if the alum’s comments had been anti-Black rather than anti-Asian.[193]

Would the Fourth Circuit majority and others so readily have dismissed the Board members’ text messages if those had referenced anti-Black or anti-Latine sentiments? Would the racist comments at the Virginia statewide education reform meetings go unaddressed if they had been directed at a group other than Asian Americans? Justice Alito’s dissent to the Coalition for TJ certiorari denial suggested not.[194] Alarmingly, Alito’s dissent was the most thorough rebuke of anti-Asian animus (and of those who ignore it) in any Supreme Court opinion. Justice Alito’s view here may have wider appeal to Asian Americans. Many Asian Americans, including those who support racial diversity and equity, believe that educational institutions do not take anti-Asian racism seriously.[195] And if progressives continue to ignore animus towards Asian American achievement, that could make conservative, anti-diversity rhetoric more appealing to Asian Americans.

B.     Recent Electoral Trends

Politically, Asian Americans have been voting more conservatively in recent national elections.[196] Professor Karthick Ramakrishnan notes that “2012 represented the high-water mark in Asian American support for a Democratic presidential candidate, and it has been going down ever since.”[197] In the 2024 presidential election, Democrat Kamala Harris won the Asian American vote over Republican Donald Trump by 54 percent to 39 percent, but Trump improved his share by 5 percentage points from 2020, while Harris lost 7 percentage points compared to President Joe Biden in 2020.[198] And in its “Asian Voter Guide,” the pro-Trump political action committee, Asians Making American Great Again, highlighted that “President Trump supports equal education rights for Asian Americans, helping win lawsuits against Harvard and suing Yale University.”[199]

It remains to be seen whether such national electoral trends will continue. But the magnet school cases themsleves have become politicized on a local level, also to the benefit of conservatives. Coalition for TJ and Boyapati came to bear in the 2021 Virginia gubernatorial race. Republican Glenn Youngkin, who ultimately prevailed, publicly supported the plaintiffs in both cases, some of whom volunteered for his campaign.[200] In the 2021 New York City mayoral election, Republican Curtis Sliwa supported the “merit-based SHSAT.”[201] Although Sliwa lost to Democrat Eric Adams, he received more support in majority Asian American precincts than elsewhere.[202] And in the June 2023 elections for New York City’s thirty-two Community Education Councils (CECs), supporters of the SHSAT fared far better than opponents.[203] Additionally, in 2022, Asian American opposition to Lowell High School’s lottery admissions system sparked the recall of three San Francisco Board of Education members, including the one who had made anti-Asian comments.[204]

Progressives who are not Asian American have long neglected engaging with our communities,[205] instead relying heavily on left-leaning Asian American organizations to voice support for racial diversity.[206] But rank-and-file Asian Americans are more unsure and divided about diversity issues.[207] Many Asian Americans believe they have experienced anti-Asian animus because of their achievement. If conservatives are the only ones speaking to that experience, it should not be surprising if Asian Americans move rightward politically.

Conclusion

Coalition for TJ and the magnet school cases are a critical juncture for multiracial coalition building. Progressives have nobly sought to remove barriers to racial diversity and equity, including barriers in admissions policies. Progressives are right to critique the model minority stereotype of Asian Americans and show how it is used as a weapon against Black and Latine Americans.[208] And progressives are right to condemn anti-Blackness among Asian Americans and point out the various advantages that many (though not all) Asian Americans have over other people of color.[209] But advocates for racial diversity and equity should not miss the trees for the forest. All of us fall prey to the model minority stereotype ourselves if we treat high-achieving Asian Americans as immune from anti-Asian animus directed at achievement.

It is noteworthy that conservatives did not always monopolize the discourse on anti-Asian animus. In the 1980s, when the Asian American student population at elite universities grew, there was a backlash.[210] Faculty and administrators at various universities made anti-Asian comments,[211] and there were allegations of anti-Asian discrimination in admissions, including one that was proven at UCLA.[212] UCLA Asian Americans Studies Professor Don Nakanishi commented that Asian Americans “have become victims of their own academic success” and are “viewed as a threat,” and that university administrators were “worrying about . . . how to curb the decline of [W]hite students in the [University of California] system.”[213] Berkeley Professor Ling-Chi Wang, a founder of Chinese for Affirmative Action,[214] compared elite universities’ disdain for high Asian American enrollment to the “Jewish problem” they invoked in the early twentieth century.[215] And in a 1987 essay, Professor Derrick Bell—the first Black tenured professor at Harvard Law School, a founding figure in Critical Race Theory, and a renowned racial justice activist—asserted that when elite collleges’ “status as . . . mainly [W]hite institution[s] [were] threatened” by “a growing number of highly qualified Asian students,” the colleges began “changing the definition of merit.”[216]

One could readily posit the same in today’s magnet school cases. Bell’s statement was rooted in the very logic of American racism. If the elite White liberals want to preserve their own power over elite educational spaces, then at some point they must take actions to limit the growing Asian American presence in these spaces.[217] And such actions could include support for racial diversity initiatives that increase the enrollment of Black and Latine students (although it remains relatively low), while also increasing enrollment of White students and decreasing that of Asian American students (although it stays relatively high).[218] This is also precisely what one would expect under Bell’s interest-convergence theory.[219]

In this context, the trees are quite important. Progressives should recognize that there is animus towards Asian American achievement; that this animus can unfortunately be coupled with legitimate and noble efforts to increase racial diversity; that conservatives will exploit this animus to attack racial diversity initiatives; and that conservatives will also highlight and politicize the failure of progressives to address this animus, particularly when progressives do rebuke animus towards other groups. Moreover, everyone should understand why Asian Americans are concerned about anti-Asian animus in the context of admissions reforms.[220] Even if our numbers remain relatively high at elite institutions, failure to confront anti-Asian animus is an acquiescence to racism and an affront to Asian American dignity.[221] If progressives truly want to include Asian Americans in the multiracial coalitions they have long talked about,[222] then progressives must acknowledge and rebuke all instances of anti-Asian animus, even when such instances are not legally actionable. Asian Americans should support racial diversity efforts even when doing so lowers Asian American enrollment.[223] But it is also important to take on the difficult task of addressing the anti-Asian racism that can be embedded within those very same efforts.

Copyright © 2025 Vinay Harpalani, Don L. & Mabel F. Dickason Endowed Chair in Law and Professor of Law, University of New Mexico School of Law. I thank Professors Jonathan Glater and Russell Robinson, along with Ryley Lawrence-Devine and the Editors of the California Law Review, for inviting me to participate in the “Equality Besieged: A Critical Analysis of Supreme Court Jurisprudence” Symposium. Professors Jonathan Feingold and Jerry Kang provided helpful insights for this Essay, and Natalia Listwan’s research assistance was valuable in its production. I am also grateful to the University of New Mexico School of Law and Boston University School of Law for providing support and resources to do this work. Additionally, Karina Sanchez, Alizeh Hussain, William Clark, Ryan Laws, Grace Oyenubi, Hailey Stewart, Alexa O’Brien, Abby Smith, Emily Rehmet, A.J. Shattuck, Rachel Talkington, Meghan Mitchell, Sarah DiMagno, and others provided excellent feedback and editing throughout the publication process. And two years ago, Professor Matthew Shaw challenged me to critique progressive diversity advocates more forcefully for neglecting Asian Americans’ concerns about discrimination in admissions. This Essay aims to do so.

           [1].     Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 230–31 (2023).

           [2].     About Pacific Legal Foundation, Pac. Legal Found., https://pacificlegal.org/about/ [https://perma.cc/JD3C-6T9V]. Because PLF devised the litigation strategy in Coalition for TJ, I mostly refer to it rather than the plaintiffs themselves when discussing the case.

           [3].     68 F.4th 864 (4th Cir. 2023), cert. denied, 218 L. Ed. 2d 71 (Feb. 20, 2024).

           [4].     Coal. for TJ v. Fairfax Cnty. Sch. Bd., 218 L. Ed. 2d 71 (Feb. 20, 2024) (Alito, J., dissenting). Justice Thomas joined Justice Alito’s dissent for denial of certiorari in Coalition for TJ.

           [5].     89 F.4th 46 (1st Cir. 2023), cert. denied, 145 S. Ct. 15 (2024). Boston Parent Coalition and Coalition for TJ raise some similar issues. In this Essay, I will focus on Coalition for TJ in detail and allude to Boston Parent Coalition only to reinforce a few points.

           [6].     Bos. Parent Coal. for Acad. Excellence Corp. v. Sch. Comm. for Bos., 145 S. Ct. 15 (2024) (Alito, J., dissenting). Justice Thomas again joined Justice Alito’s dissent.

           [7].     See id. at 15 (Gorsuch, J., respecting the denial of certiorari).

           [8].     In addition to Coalition for TJ and Boston Parent Coalition, PLF has been litigating cases in New York and Montgomery County, Maryland, both of which are pending at different stages. See generally Chinese Am. Citizens All. of Greater N.Y. v. Adams, 116 F.4th 161 (2d Cir. 2024); Ass’n for Educ. Fairness v. Montgomery Cnty. Bd. of Educ. (AFEF II), 617 F. Supp. 3d 358 (D. Md. 2022). There have also been magnet school admissions cases highlighting Asian American plaintiffs in San Francisco and Loudoun County, Virginia that were not litigated by PLF. See generally Friends of Lowell Found. v. S.F. Bd. of Educ., No. CPF-21-517445 (Cal. Super. Ct. S.F. Cnty. Nov. 18, 2021); Boyapati v. Loudoun Cnty. Sch. Bd., No. 1:20-cv-01075, 2021 WL 943112 (E.D. Va. Feb. 19, 2021). Also, there is a case in Philadelphia that does not focus on Asian Americans—although it does allege discrimination against White and Asian American students. See generally Sargent v. Sch. Dist. of Phila., No. 22-1509, 2024 WL 4476555 (E.D. Pa. Oct. 11, 2024).

           [9].     See generally Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864 (4th Cir. 2023); Bos. Parent Coal. for Acad. Excellence Corp., 89 F.4th 46; Chinese Am. Citizens All. of Greater N.Y., 116 F.4th 161; AFEF II, 617 F. Supp. 3d 358; Friends of Lowell Found., No. CPF-21-517445; Boyapati, 2021 WL 943112.

         [10].     I use the term “anti-Asian animus” specifically to refer to hostility towards Asian American educational achievement, although I recognize that Asian Americans encounter animus for many other reasons as well. See generally Vinay Harpalani, Can “Asians” Truly Be Americans?, 27 Wash. & Lee J. C.R. & Soc. Just. 559 (2021). I typically do not use the term “Asian” as shorthand for “Asian American” because doing so reinforces the stereotype of Asian Americans as foreigners rather than Americans. Id. at 588 (“As long as Asian Americans are thought of simply as ‘Asians,’ we will never truly be seen as Americans.”). The exception is when this stereotype is inherent in the topic I am discussing, as with anti-Asian animus.

         [11].     See Sonja Starr, The Magnet School Wars and the Future of Colorblindness, 76 Stan. L. Rev. 161, 210 (2024) (contending that in Coalition for TJ, “the plaintiff (and the district court) appeared to concede that it had introduced no evidence of anti-Asian animus” and that “no . . . evidence [of anti-Asian animus] was introduced” in the legal proceedings). Professor Starr is mistaken here. See infra Parts II.B and III.A. Professor Starr does acknowledge that one cannot “rule out the possibility that anti-Asian bias did affect the . . . process.” Starr, supra, at 209. But that is a truism: One cannot prove a negative. Although her article is informative on many aspects of the magnet school cases, its consideration of anti-Asian animus is flawed and insufficient.

         [12].     Another commentary on Coalition for TJ compared Asian American parents to White segregationists and focused narrowly on the model minority stereotype of Asian Americans as high achievers. See Janel A. George, The Myth of Merit: The Fight of the Fairfax County School Board and the New Front of Massive Resistance, 49 Fordham Urb. L.J. 1091, 1114 (2022). The model minority stereotype is important, and I have written about it elsewhere. See Vinay Harpalani, Asian Americans, Racial Stereotypes, and Elite University Admissions, 102 B.U. L. Rev. 233, 243–45, 310–12 (2022). But one cannot ignore the fact that Asian Americans are also stereotyped as “perpetual foreigners” who “can never be truly American.” See id. at 245, 249. Moreover, the model minority and perpetual foreigner stereotypes intersect when Asian Americans become a “peril of the mind”—a threat to White dominance precisely because of our high achievement. See id. at 254–56. Such stereotypes are an important part of the story in Coalition for TJ and other magnet school cases. See also infra Part V (discussing how many White Americans from elite backgrounds are increasingly viewing Asian Americans as an academic threat). Asian Americans are thus situated quite differently from White Americans, past and present. See generally Harpalani, supra note 10.

         [13].     Harpalani, supra note 12, at 233, 243–45, 310–12.

         [14].     See Claire Jean Kim, The Racial Triangulation of Asian Americans, 27 Pol. & Soc’y 105, 107 (1999) (discussing how “Asian Americans have been racially triangulated vis-à-vis Blacks and Whites” through “processes of ‘relative valorization’” (exalted over Black Americans) and “civic ostracism” (portrayed as “immutably foreign and unassimilable”)).

         [15].     See Harpalani, supra note 12, at 267–73.

         [16].     See Starr, supra note 11, at 210–11 (noting that under the new Thomas Jefferson High School for Science and Technology admissions policy “Asian students represented 60% of the class, triple their share of the county school population . . . . [I]f this was an anti-Asian policy, it was a remarkably ineffective one”); Stacy L. Hawkins, Finding Common Ground, 103 B.U. L. Rev. Online 131, 132 n.13 (2023), https://www.bu.edu/bulawreview/files/2023/05/HAWKINS.pdf [https://perma.cc/Z6CA-LX7X] (contending that because “Asian American students are disproportionately overrepresented . . . at elite colleges, universities, and high schools[,] . . . this belies any claim of discrimination against Asian Americans in admission to these schools”).

         [17].     I use the term “progressive” broadly to refer to all advocates for racial diversity and equity. I consider myself to be both Asian American and progressive—a dual identity shared by many others. But to an extent, this Essay necessarily juxtaposes those two identities. For purposes of this Essay, I identify myself with Asian Americans (whom I refer to as “we”) rather than progressives (whom I refer to as “they”).

         [18].     See infra Part II.B. I discuss the sufficiency of the evidence in infra Part IV, where I evaluate the Fourth Circuit ruling and propose an alternative resolution to the case.

         [19].     See Kim, supra note 14, at 107.

         [20].     U.S. News Announces 2021 Best High School Rankings, PR Newswire (Apr. 27, 2021), https://www.prnewswire.com/news-releases/us-news-announces-2021-best-high-schools-rankings-301277337.html [https://perma.cc/7E8L-7B6J]. In 2024, U.S. News & World Report ranked TJ as the 14th best public high school in America. 2024 Best U.S. High Schools, U.S. News & World Rep., https://www.usnews.com/education/best-high-schools/national-rankings [https://perma.cc/HVT2-ZBS8].

         [21].     TJHSST Offers Admission to 486 Students, Fairfax Cnty. Pub. Schs. (June 1, 2020), https://www.fcps.edu/news/tjhsst-offers-admission-486-students [https://perma.cc/9CL2-J2UA].

         [22].     Xuemei Han, Fatima Khaja & Madhur Lamsal, Demographics Report 2019: County of Fairfax, Virginia II-6 (Dec. 2019), https://www.fairfaxcounty.gov/demographics/sites/demographics/files/assets/demographicreports/fullreport.pdf [https://perma.cc/3DSM-P3XJ].

         [23].     See Kevin Sieff, Black, Hispanic Students Dwindle at Elite Va. Public School, Wash. Post, (Oct. 30, 2010), https://www.washingtonpost.com/wp-dyn/content/article/2010/10/30/AR2010103003460.html [https://perma.cc/J92Q-ACMS] (noting that even in 2010, “[y]ears of efforts to raise [B]lack and Hispanic enrollment at [TJ] [had] failed”). In 2012, civil rights organizations filed a complaint to the U.S. Department of Education alleging that students who were Black, Latine, or had a disability were being excluded from TJ. See Thomas Jefferson High School for Science and Technology Hit with Civil Rights, Discrimination Suit, HuffPost (July 25, 2012) https://www.huffpost.com/entry/thomas-jefferson-high-sch_n_1700247 [https://perma.cc/3ML8-PEXC].

         [24].     Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 1:21cv296, 2022 WL 579809, at *6 (E.D. Va. Feb. 25, 2022), rev’d, 68 F.4th 864 (4th Cir. 2023).

         [25].     Id.

         [26].     Id. at *7.

         [27].     Id. at *3.

         [28].     School Board Chooses Holistic Review as New Admissions Policy for TJHSST, Fairfax Cnty. Pub. Schs. (Dec. 18, 2020), https://web.archive.org/web/20220810193827/https://www.fcps.edu/news/school-board-chooses-holistic-review-new-admissions-policy-tjhsst?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term= [https://perma.cc/P2HU-DW5M].

         [29].     See Coal. for TJ, 2022 WL 579809, at *1. For more information on the standardized exam for admission to TJ, see Fairfax Cnty. Pub. Schs., Student Handbook 1 (2012), https://www.fcag.org/documents/TJ%20practice%20test%202012.pdf [https://perma.cc/M5VT-UUB6].

         [30].     Coal. for TJ, 2022 WL 579809, at *2. See also School Board Chooses Holistic Review as New Admissions Policy for TJHSST, supra note 28.

         [31].     Coal. for TJ, 2022 WL 579809, at *2.

         [32].     See TJHSST Offers Admission to 550 Students; Broadens Access to Students Who Have an Aptitude for STEM, Fairfax Cnty. Pub. Schs. (Jun 23, 2021), https://www.fcps.edu/news/tjhsst-offers-admission-550-students-broadens-access-students-who-have-aptitude-stem [https://perma.cc/477Q-WSZ5].

         [33].     Id.

         [34].     Complaint and Demand for Jury Trial at 3, Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 1:21-cv-296 (E.D. Va. Mar. 10, 2021).

         [35].     See id. at 21–24.

         [36].     426 U.S. 229, 242 (1976).

         [37].     Id.

         [38].     Id.

         [39].     429 U.S. 252, 267–68 (1977).

         [40].     Id.

         [41].     Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979).

         [42].     Id.

         [43].     Both lower court and Supreme Court cases have used a variety of terms that denote “discriminatory purpose.” These include “invidious intent,” “impermissible motive,” and various other combinations of the words “invidious” or “impermissible” with “purpose,” “intent,” or “motive.” It is not clear whether these terms are synonymous or how much they overlap. In this Essay, I presume they are essentially synonymous and stick to the term “discriminatory purpose,” even if the opinion uses a different, analogous term.

         [44].     Plaintiff’s Memorandum in Support of Motion for Summary Judgment at 32, Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 1:21-cv-00296 (E.D. Va. Dec. 3, 2022).

         [45].     Id. Professor Starr mistakenly drew on these statements to conclude that PLF had introduced no evidence of anti-Asian animus, when, in fact, PLF had merely argued that such evidence was not necessary for the plaintiffs to prevail. See Starr, supra note 11, at 210 n.215 and accompanying text. PLF did introduce evidence of anti-Asian animus, although as I note, it had no interest in prevailing based on such evidence. See infra Part II.B.

         [46].     Feeney, 442 U.S. at 279.

         [47].     Plaintiff’s Memorandum in Support of Motion for Summary Judgment, supra note 44, at 32.

         [48].     Id. at 14.

         [49].     Id.

         [50].     Id.

         [51].     Id. at 19–21.

         [52].     Id. at 27.

         [53].     See id. at 33.

         [54].     Id. at 33–34.

         [55].     See Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864, 889 (4th Cir. 2023) (Heytens, J., concurring) (“I am aware of no decision from the Supreme Court . . . applying strict scrutiny to a facially neutral admissions policy.”).

         [56].     PLF’s strategy is apparent when contrasting the language in its complaint and Memorandum in Support of its summary judgment motion. In the former, PLF uses the term “racial discriminatory purpose,” but in the latter it switches to “racial purpose.” Compare generally Complaint and Demand for Jury Trial, supra note 34, with Plaintiff’s Memorandum in Support of Motion for Summary Judgment, supra note 44. This reflects PLF’s attempt to apply doctrines and standards created for intentional racial discrimination to policies intended to increase racial diversity.

         [57].     515 U.S. 200, 227 (1995).

         [58].     Davis uses the term “strictest scrutiny” once, referring to disparate impact rather than purpose. Washington v. Davis, 426 U.S. 229, 242 (1976) (“Standing alone, [disparate impact] does not trigger the rule, that racial classifications are to be subjected to the strictest scrutiny . . . .” (citation omitted)). Arlington Heights uses “strict scrutiny” only once, in similar fashion. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 259 (“[A] disparity in racial impact alone does not call for strict scrutiny.”). Feeney does not use the term “strict scrutiny,” as it was about gender classifications, which are subject to intermediate scrutiny. See Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). In dicta, Feeney states that “[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.” Id. at 272 (citations omitted). But even here, Feeney presumed that racial discrimination was the only purpose or the predominant one. Arlington Heights proffers the standard that governs when a discriminatory purpose is secondary to a legitimate one. See 429 U.S. at 270 n.21 (“Proof that the decision . . . 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 . . . the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered. If this were established . . . there would be no justification for judicial interference with the challenged decision.”).

         [59].     515 U.S. 900, 913 (1995).

         [60].     Id. at 909.

         [61].     526 U.S. 541, 547 (1999) (emphasis added).

         [62].     Plaintiff’s Memorandum in Support of Motion for Summary Judgment, supra note 44, at 13 (quoting Arlington Heights, 429 U.S. at 265–66).

         [63].     Arlington Heights, 429 U.S. at 270 n.21.

         [64].     Id.

         [65].     This is an example of what Professor Kim refers to as civic ostracism. See Kim, supra note 14, at 107 (defining civic ostracism as the process by which Asian Americans are “construct[ed] . . . as immutably foreign and unassimilable . . . to ostracize them from the body politic and civic membership”).

         [66].     Complaint and Demand for Jury Trial, supra note 34, at 16.

         [67].     Id. at 15–16 (citing Asra Nomani, Retired FCPS Teacher Singles Out Students from India and Calls Parents “Ravenous,” YouTube (Sept. 23, 2020), https://www.youtube.com/watch?v=0rWdIXuYFqA&ab_channel=AsraNomani [https://perma.cc/T752-A4U2].

         [68].     Id. at 16. See also Ilya Somin, TJ High School Lawsuit Could Set Important Precedents, Bacon’s Rebellion (Mar. 17, 2021), https://www.baconsrebellion.com/wp/tj-high-school-lawsuit-could-set-important-precedents/ [https://perma.cc/9REC-6FFU].

         [69].     See Ian Haney López, Dog Whistle Politics, at ix (2015) (defining “dog whistle politics” as “coded racial appeals that carefully manipulate hostility towards nonwhites”).

         [70].     See Complaint and Demand for Jury Trial, supra note 34, at 17 (contending that “[i]n an August 2020 town hall meeting hosted by the Fairfax County, Virginia, chapter of the NAACP, [then-Fairfax County Public Schools Superintendent, Scott Brabrand] complained that TJ students spent ‘thousands upon thousands’ of dollars on test prep for the TJ admissions test, laying the groundwork for negative stereotyping of TJ’s majority Asian-American student body” (citing Fairfax County NAACP, Town Hall on Systemic Racism, Facebook, at 1:28:31 (Aug. 5, 2020), https://www.facebook.com/watch/live/?v=650397622538856&ref=watch [https://perma.cc/GF6L-XBBQ])); id. (“[I]n a September 8, 2020, listening session for students of TJ and the Maggie L. Walker School, Virginia Secretary of Education, Atif Qarni, reinforced Brabrand’s stereotypes, comparing test preparation to illegal ‘performance enhancement drugs.’” (citing Asra Nomani, Virginia Education Secretary Compares Test Prep to Using Illegal ‘Performance Enhancing Drugs,’ YouTube (Sept. 13, 2020), https://www.youtube.com/watch?v=w5RcAhRyB6g&ab_channel=AsraNomani [https://perma.cc/LPL7-UMJS])).

         [71].     See Plaintiff’s Memorandum in Support of Motion for Summary Judgment, supra note 44, at Exs. J, M. The exhibits are also available at BREAKING. TJ Papers of School Board Emails and Texts: TJHSST Admissions Changes Had “an anti asian feel underlying some of this, hate to say it lol,” Parents Defending Educ. (Jan. 10, 2022), https://defendinged.org/incidents/tjpapers/ [https://perma.cc/UM45-URLP].

         [72].     Plaintiff’s Memorandum in Support of Motion for Summary Judgment, supra note 44, at Ex. J.

         [73].     Id.

         [74].     Id.

         [75].     Id. at Ex. M.

         [76].     Id.

         [77].     See Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 1:21cv296, 2022 WL 579809, at *2–10 (E.D. Va. Feb. 25, 2022).

         [78].     Id. at *3.

         [79].     Id. at *8.

         [80].     Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864, 897 (4th Cir. 2023) (Rushing, J., dissenting).

         [81].     See Vinay Harpalani, Testing the Limits: Asian Americans and the Debate over Standardized Entrance Exams, 73 S.C. L. Rev. 759, 770–87 (2022).

         [82].     Coal. for TJ, 2022 WL 579809, at *8.

         [83].     Plaintiff’s Memorandum in Support of Motion for Summary Judgment, supra note 44, at 22.

         [84].     Id. at 9–10.

         [85].     Id. at 26.

         [86].     See id. at 27–32.

         [87].     Id. at 22.

         [88].     See Boyapati v. Loudoun Cnty. Sch. Bd., No. 1:20-cv-01075, 2021 WL 943112 (E.D. Va. Feb. 19, 2021) (unsuccessfully raising claim under Virginia Freedom of Information Act (VFOIA), Va. Code Ann. § 2.2-3713 (2024)); Friends of Lowell Found. v. S.F. Bd. of Educ., No. CPF-21-517445 (Cal. Super. Ct. S.F. Cnty. Nov. 18, 2021) (successfully raising claim under Ralph M. Brown Act (“The Brown Act”), Cal. Gov’t Code §§ 54950–54963).

         [89].     I am not contending that there was sufficient evidence for the Coalition for TJ plaintiffs to prevail, even if it was all uncovered and introduced. My later analysis presumes that there was not sufficient evidence. See infra Part IV.B.

         [90].     This also may have put the Coalition for TJ plaintiffs’ interests at odds with those of PLF. In some sense, this represents the classic dilemma between clients’ and lawyers’ interests within impact litigation. See generally Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470 (1976). Of course, the plaintiffs may have agreed with PLF’s goals and consented to its litigation strategy. But even if so, PLF’s manner of litigating Coalition for TJ downplayed anti-Asian animus.

         [91].     Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 1:21cv296, 2022 WL 579809, at *6 (E.D. Va. Feb. 25, 2022).

         [92].     Id. at *6–10.

         [93].     Professor Starr again mistakenly drew on this statement to conclude that the district court “acknowledged that there was no claim of anti-Asian animus.” Starr, supra note 11, at 199. Judge Hilton only asserted that the plaintiffs did not have to prove anti-Asian animus to prevail. He did not speak to whether anti-Asian animus actually played a role in the TJ admissions policy change.

         [94].     Coal. for TJ, 2022 WL 579809, at *10.

         [95].     Id.

         [96].     See id. at *11.

         [97].     Order at 1, Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 22-1280 (4th Cir. Mar. 31, 2022).

         [98].     Coal. for TJ v. Fairfax Cnty. Sch. Bd., 142 S. Ct. 2672 (2022).

         [99].     Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864, 871 (4th Cir. 2023).

      [100].     Id. at 879–82.

      [101].     Id. at 879 (emphasis added).

      [102].     Id. at 880.

      [103].     Id. at 881.

      [104].     Id. at 881–82.

      [105].     Id. at 882.

      [106].     Id. at 903–04 (Rushing, J., dissenting).

      [107].     Id. at 882–86 (majority opinion).

      [108].     Id.

      [109].     Id. at 886. Additionally, in his concurrence, Judge Toby Heytens rejected PLF’s argument for applying strict scrutiny, stating that he was “aware of no decision from the Supreme Court or [the Fourth Circuit] applying strict scrutiny to a facially neutral admissions policy.” Id. at 889 (Heytens, J., concurring).

      [110].     See id. at 882 (majority opinion) (noting that analysis could end after rejection of disparate impact).

      [111].     Id. at 884.

      [112].     Id.

      [113].     Id.

      [114].     Id. at 889 (Heytens, J., concurring).

      [115].     Id.

      [116].     Id. Judge Heytens also noted that some Board members praised Asian American families for the “huge sacrifices” they make to “prioritize education.” Id.

      [117].     Id. at 901 (Rushing, J., dissenting).

      [118].     Id. at 893–97.

      [119].     Coal. for TJ v. Fairfax Cnty. Sch. Bd., 218 L. Ed. 2d 71 (2024).

      [120].     Id. at 71 (Alito, J., dissenting).

      [121].     Id. at 75.

      [122].     See id. at 74–76.

      [123].     Id. at 75.

      [124].     Id. Justice Alito also lamented that First Circuit had already cited the Fourth Circuit’s disparate impact analysis to reject an equal protection challenge in Boston Parent Coalition. Id. at 75–76 (citing Bos. Parent Coal. for Acad. Excellence Corp. v. Sch. Comm. for Bos., 89 F.4th 46, 57–58 (2023)). Later, when he dissented to the Supreme Court’s denial of certiorari in Boston Parent Coalition, Justice Alito reiterated his critique of this disparate impact analysis. Bos. Parent Coal. for Acad. Excellence Corp. v. Sch. Comm. for Bos., 145 S. Ct. 15, 17 (2024) (Alito, J., dissenting). Alito also noted that Michael Loconto, chair of the School Committee of Boston, had made anti-Asian comments during a virtual public meeting. Id. See also Max Larkin, Boston School Committee Chair Resigns After Outrage over His Mocking of Asian American Names, WBUR (Oct. 22, 2020), https://www.wbur.org/news/2020/10/22/loconto-mocking-resigns [https://perma.cc/8WBJ-N93N].

      [125].     Later, in his statement on the denial of certiorari in Boston Parent Coalition, Justice Gorsuch noted that he agreed with Justice Alito on “a number of significant concerns about the First Circuit’s analysis,” even though he voted to deny certiorari because the case was moot. 145 S. Ct. at 15 (Gorsuch, J., respecting the denial of certiorari).

      [126].     For example, Professor Starr dismisses anti-Asian animus as a motive for changing TJ’s admissions policy by stating that “[i]nstead, the record supports the story [she has] told: The policy changes sought to address TJ’s near-total exclusion of Black and [Latine] students . . . .” Starr, supra note 11, at 211. But “instead” creates a false dichotomy. It is quite possible (and likely) that different actors in the process possessed different motives. See infra Part IV.B. One should not employ evidence of the noble motive to increase racial diversity at elite schools to erase evidence of the nefarious motive to limit Asian American enrollment at these schools. As noted earlier, Professor Starr is mistaken in claiming that the plaintiffs failed to introduce evidence of anti-Asian animus and that the district court acknowledged this failure. See supra notes 45, 93.

      [127].     Professor Starr also recognizes the shortcomings of the Fourth Circuit majority’s analysis. She notes that disparate impact “should not be interpreted in a way that insulates genuinely nefarious government conduct from constitutional challenge.” Starr, supra note 11, at 220. She also discusses whether proof of discriminatory purpose itself, without disparate impact, could constitute an equal protection violation. Id. at 215–21. But in my view, Professor Starr does not appreciate the gravity of the issue, as she neglects the evidence of anti-Asian animus in Coalition for TJ and does not view it as a “true animus case.” Id. at 220. See also supra notes 11, 16, 45, and 126 and accompanying text.

      [128].     Justice Alito made a similar point when dissenting to the denial of certiorari in Boston Parent Coalition. See 145 S. Ct. at 17 (Alito, J., dissenting) (“[T]he lower courts mistakenly treated evidence of disparate impact as a necessary element of an equal-protection claim. To my knowledge, [the U.S. Supreme Court] ha[s] never said as much.”).

      [129].     Washington v. Davis, 426 U.S. 229, 242 (1976). See also Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977) (noting that disparate impact is just one factor in “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available”). But see Michael C. Dorf, Race-Neutrality, Baselines, and Ideological Jujitsu After Students for Fair Admissions, 103 Tex. L. Rev. 269, 300 (2024) (“In equal protection cases, a plaintiff must show disparate impact and discriminatory intent to trigger strict scrutiny.” (citing Davis, 426 U.S. at 239 (“[O]ur cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.”))). I read Davis here to hold merely that disparate impact alone is insufficient for an equal protection claim, not that disparate impact and discriminatory intent are separate, independent prongs of such a claim. Nevertheless, many lower courts have applied Davis in the manner suggested by Professor Dorf, including the Fourth Circuit in Coalition for TJ and the First Circuit in Boston Parent Coalition.

      [130].     Arlington Heights, 429 U.S. at 266.

      [131].     Id.

      [132].     See Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864, 879–82 (4th Cir. 2023).

      [133].     Id. at 892, 902 (Rushing, J., dissenting).

      [134].     42 U.S.C. § 2000e-2.

      [135].     See Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971) (noting that “Congress directed the thrust of [Title VII of the Civil Rights Act of 1964] to the consequences of employment practices, not simply the motivation”) (emphasis added).

      [136].     See, e.g., Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650–51, 654–55 (discussing the appropriate comparison group for the Title VII case). For more discussion of the variety of ways that courts have defined disparate impact in both constitutional and statutory cases, see generally Dorf, supra note 129. Professor Dorf notes that “there is no one-size-fits-all rule for determining the correct baseline for measuring disparate impact.” Id. at 303.

      [137].     See supra Part I.B.

      [138].     See, e.g., Wards Cove Packing Co., 490 U.S. at 650–51, 654–55. For more discussion of how courts have viewed disparate impact in the magnet school cases, see Starr, supra note 11, at 216–21.

      [139].     See Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864, 888–91 (4th Cir. 2023) (Heytens, J., concurring).

      [140].     See text accompanying supra notes 71–76.

      [141].     See supra notes 65–69 and accompanying text.

      [142].     See, e.g., Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 319 (1987) (“[A] motive-centered doctrine of racial discrimination places a very heavy, and often impossible, burden of persuasion on the wrong side of the dispute. Improper motives are easy to hide. And because behavior results from the interaction of a multitude of motives, governmental officials will always be able to argue that racially neutral considerations prompted their actions. Moreover, where several decisionmakers are involved, proof of racially discriminatory motivation is even more difficult.” (footnote omitted)).

      [143].     Id. (“Minorities and civil rights advocates have been virtually unanimous in condemning [Washington v. Davis] and its progeny. They have been joined by a significant number of constitutional scholars who have been equally disapproving, if more restrained, in assessing its damage to the cause of equal opportunity.” (footnotes omitted)).

      [144].     W. Kerrel Murray, Discriminatory Taint, 135 Harv. L. Rev. 1190, 1192 (2022).

      [145].     See generally id. I do not have the space to rigorously apply Murray’s framework here, but the general concept of discriminatory taint suffices for my current purpose.

      [146].     Cf. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (establishing a mixed-motive framework for Title VII cases). For a discussion of mixed-motives in law, see generally Andrew Verstein, The Jurisprudence of Mixed Motives, 127 Yale L.J. 1106 (2018). I will defer on how much evidence of animus should be necessary to establish a mixed-motive. Courts can make that determination if they ever adopt my proposal.

      [147].     See supra Part II.B.

      [148].     See supra text accompanying notes 55–63.

      [149].     Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270 n.21 (1977). Professor Murray proposes a similar test for evaluating his notion of “discriminatory taint” in conjunction with disparate impact. See Murray, supra note 144, at 1237 (“A tainted relationship is prima facie evidence that justifies shifting a burden of production to the government of demonstrating the taint’s extirpation. Although the ultimate burden of proof never shifts, it counts in the plaintiff’s favor on the ultimate question if the government cannot purge the taint by showing no disparate impact or a substantial, taint-sensitive showing of necessity.”).

      [150].     See Dana Y. Takagi, The Retreat from Race: Asian Pacific Americans and Racial Politics 60 (2d ed. 1998); Harpalani, supra note 12, at 267–73.

      [151].     See infra Part V.

      [152].     89 F.4th 46 (1st Cir. 2023).

      [153].     See Larkin, supra note 124. Loconto had thought that his microphone was muted when he made the derogatory comments. Id. Later, two other Boston School Committee members resigned after the revelation that they had denounced White parents in text messages. See Christopher Gavin, Boston School Committee Members Resign over Racially Charged Texts sent During October Meeting, Boston.com (June 8, 2021), https://www.boston.com/news/schools/2021/06/08/boston-school-committee-members-resign-over-racially-charged-texts-sent-during-october-meeting/ [https://perma.cc/MX8C-8CF8].

      [154].     No. CPF-21-517445 (Cal. Super. Ct. S.F. Cnty. Nov. 18, 2021).

      [155].     See Thomas Fuller, ‘You Have to Give Us Respect’: How Asian Americans Fueled the San Francisco Recall, N.Y. Times (Feb. 17, 2022), https://www.nytimes.com/2022/02/17/us/san-francisco-school-board-parents.html [https://perma.cc/P6L3-DDSD].

      [156].     Kim, supra note 14, at 107 (defining civic ostracism as processes “whereby dominant group A (Whites) constructs subordinate group B (Asian Americans) as immutably foreign and unassimilable with Whites on cultural and/or racial grounds to ostracize them from the body politic and civic membership”). For examples of the civic ostracism of Asian Americans throughout U.S. history, see generally id.

      [157].     Id. at 126 (“White opinionmakers continue to police the boundary between Whites

and Asian Americans by imputing permanent foreignness to the latter.”); see generally Harpalani, supra note 10.

      [158].     Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977).

      [159].     See supra text accompanying notes 78–79.

      [160].     Id.

      [161].     See supra text accompanying notes 83–85.

      [162].     Friends of Lowell Found. v. S.F. Bd. of Educ., No. CPF-21-517445 (Cal. Super. Ct. S.F. Cnty. Nov. 18, 2021).

      [163].     Id. at 1 (noting violation of Ralph M. Brown Act (“The Brown Act”), Cal. Gov’t Code §§ 54950–54963).

      [164].     Id. at 3.

      [165].     Clio Chang, Whose Side Are Asian-Americans On?, New Republic (Sept. 24, 2018), https://newrepublic.com/article/151328/whose-side-asian-americans-on [https://perma.cc/7WHC-UFXR].

      [166].     Chris Fuchs, At Forum on NYC’s High School Admissions, Frustration Rules, NBC News (Apr. 12, 2019), https://www.nbcnews.com/news/asian-america/forum-nyc-s-high-school-admissions-frustration-rules-n993966 [https://perma.cc/5RMP-SRFE].

      [167].     Osamudia James, Risky Education, 89 Geo. Wash. L. Rev. 667, 714 (2021).

      [168].     No. 1:20-cv-01075, 2021 WL 943112 (E.D. Va. Feb. 19, 2021).

      [169].     Id. at *7–10.

      [170].     Id. at *10–11.

      [171].     Va. Code Ann. § 2.2-3711(B) (2024). As noted earlier, PLF raised no VFOIA claim in Coalition for TJ because prevailing on such a claim would not serve the goal of changing equal protection doctrine. See supra text accompany notes 83–85.

      [172].     Boyapati, 2021 WL 943112, at *5, *10.

      [173].     Id. at *11.

      [174].     Suein Hwang, The New White Flight, Wall St. J. (Nov. 19, 2005), https://www.wsj.com/articles/SB113236377590902105 [https://perma.cc/6F9G-F43L].

      [175].     Id.

      [176].     In 2024, California had approximately 6.93 million Asian Americans; the next highest Asian American population was in New York, which had approximately 2 million. See Asian American Population by State 2024, World Population Rev., https://worldpopulationreview.com/state-rankings/asian-population [https://perma.cc/RJP9-MV2Z]. California’s population is 17.8 percent Asian American, second only to Hawaii’s 57.4 percent. Id.

      [177].     Hwang, supra note 174 (noting that in schools with large Asian American student populations (such as those in Cupertino, California), White parents make negative generalizations about Asian Americans as “excessively competitive”). Asian American families from Cupertino also contend that “[t]op schools in nearby, [W]hiter Palo Alto . . . also feature heavy course loads, long hours of homework and overly stressed students . . . But [W]hites don’t seem to be avoiding those institutions, or making the same negative generalizations . . . suggesting that it’s not academic competition that makes [W]hite parents uncomfortable but academic competition with Asian-Americans.” Id.

      [178].     Leah Platt Boustan, Christine Cai & Tammy Tseng, White Flight from Asian Immigration: Evidence from California Public Schools 14, (Nat’l Bureau of Econ. Rsch., Working Paper No. 31434, 2023).

      [179].     Willow S. Lung-Amam, Trespassers? Asian Americans and the Battle for Suburbia 55 (2017).

      [180].     See, e.g., Richard Keiser, Subverting the American Dream, Le Monde diplomatique (Sept. 2020), https://mondediplo.com/2020/09/14usa [https://perma.cc/EP38-D9BB] (“Today a new [W]hite flight is taking place. This time upper-middle-class [W]hite families are leaving neighbourhoods with increasing house values because Asian American families have moved in, whose children have become top achievers in public schools. Fleeing a neighbourhood with low crime, great schools and high prestige may not be a good financial strategy, but [W]hites are again protecting their children by preserving their place at the top of the meritocratic hierarchy.”).

      [181].     Anjali Enjeti, Ghosts of White People Past: Witnessing White Flight from an Asian Ethnoburb, Pac. Standard (August 25, 2016), https://psmag.com/news/ghosts-of-white-people-past-witnessing-white-flight-from-an-asian-ethnoburb [https://perma.cc/8CEN-K6C2].

      [182].     See generally Frank L. Samson, Altering Public University Admission Standards to Preserve White Group Position in the United States: Results from a Laboratory Experiment, 57 Compar. Educ. Rev. 369 (2013).

      [183].     See id. at 385.

      [184].     See id. at 387.

      [185].     Natasha Warikoo, Race at the Top: Asian Americans and Whites in Pursuit of the American Dream in Suburban Schools 156 (2022). Notably, many of the communities in California where the new White flight is occurring are also quite politically liberal.

      [186].     Complaint and Demand for Jury Trial, supra note 34 at 15–16.

      [187].     See, e.g., Nomani, supra note 67. For discussion of how plaintiffs in SFFA v. Harvard attempted to highlight anti-Asian animus, see Harpalani, supra note 12, at 286–96. See generally Vinay Harpalani, The Need for an Asian American Supreme Court Justice, 137 Harvard L. Rev. Forum 23 (2023) (arguing that the conservative narrative on Asian Americans prevailed in SFFA v. Harvard).

      [188].     See Alison Somin, Watchdog or Lapdog?, L. & Liberty (Nov. 29, 2023), https://lawliberty.org/watchdog-or-lapdog/ [https://perma.cc/N6MS-6LNK].

      [189].     See Harpalani, supra note 187, at 29; Vinay Harpalani, “Bait-and-Switch”: How Asian Americans Were Weaponized to Dismantle Affirmative Action, 71 Drake L. Rev. 323, 324–25 (2024) (“SFFA structured its litigation as a ‘bait-and-switch,’ where it combined a weak intentional discrimination claim that centered on Asian Americans with a challenge to race-conscious university admissions writ large. . . . This was a combined legal and political strategy. At the outset, SFFA attempted to create sympathy for Asian Americans, a group that has historically faced racial discrimination and stereotyping. Its claim that Asian Americans faced intentional discrimination in admissions vis-à-vis White Americans (‘negative action’) garnered significant attention. But to the extent that any such intentional discrimination exists, SFFA’s litigation was never going to stop it, or even stop unconscious racism and implicit bias against Asian Americans. Rather, SFFA’s real goal was always to stop Harvard from using race-conscious admissions policies (‘affirmative action’) that predominantly benefited underrepresented groups—Black, [Latine], and Native Americans. Asian Americans were mere pawns in this strategy.”).

      [190].     See Harpalani, supra note 12, at 295.

      [191].     Id.

      [192].     Id.

      [193].     Id. In 2020, Dean Will Norton of the University of Mississippi School of Journalism and New Media resigned after emails revealed he repeatedly tolerated a donor’s racist and sexist views, which “referred to the tennis star Serena Williams with a gorilla emoji [and] complained about ‘black hookers’ and ‘gangbangers.’” See Emma Pettit, Downfall of a Dean: How Accusations of Courting a Racist Donor Derailed a Career and Disrupted a Program, Chron. of Higher Educ. (Aug. 5, 2021), https://www.chronicle.com/article/downfall-of-a-dean [https://perma.cc/E2KC-U8N5]. This incident was more egregious than the one at Harvard, in terms of the donor’s comments, Norton’s reaction to them, and the nature of the stereotypes it invoked. Nevertheless, an organization like SFFA or PLF could readily compare the two incidents and argue that universities take racism and animus more seriously when it is directed against groups besides Asian Americans.

      [194].     Coal. for TJ v. Fairfax Cnty. Sch. Bd., 218 L. Ed. 2d 71, 71–73 (Alito, J., dissenting).

      [195].     See, e.g., Ji-Yeon Yuh, Opinion, Yuh: On Racism Against Asians and Asian Americans at Northwestern, Daily Nw. (Oct. 4, 2021), https://dailynorthwestern.com/2021/10/04/opinion/yuh-on-racism-against-asians-and-asian-americans-at-northwestern/ [https://perma.cc/X8KZ-QFFL]. Some Asian Americans who have attended my conference presentations on SFFA v. Harvard and Coalition for TJ have shared with me that while they support racial diversity and equity initiatives, they feel silenced when trying to discuss anti-Asian animus. One such attendee put it starkly, saying he felt like he was being told by progressives to basically “sit down, shut up, and support affirmative action.” Leaders of Asian American community groups have also conveyed to me that their group members believe concerns about anti-Asian animus in admissions are not taken seriously. Moreover, even progessives who acknowledge the existence of anti-Asian animus can respond to it flippantly. A progressive White colleague who supported racial equity once told me specifically that he wanted to utilize White resentment toward Asian American success on college entrance exams as a means to eliminate these exams. Fortunately, I convinced him that it is a bad idea to employ or reinforce racial animus of any kind for any purpose.

      [196].     See David Leonhardt, Asian Americans, Shifting Right, N.Y. Times (Mar. 9, 2023), https://www.nytimes.com/2023/03/06/briefing/asian-americans-conservative-republican.html [https://perma.cc/PQB8-ZH3S].

      [197].     Kimmy Yam, Asian Americans Favored Harris but Shifted Right by 5 Points, NBC News (Nov. 6, 2024), https://www.nbcnews.com/news/asian-america/asian-americans-exit-poll-harris-trump-rcna179005 [https://perma.cc/8BR8-GGWA].

      [198].     Id.

      [199].     Ten Reasons for Asian Americans to Vote for Trump, AsiansMAGA, https://www.asiansmaga.org/asian-voter-guide [https://perma.cc/S6BF-R3KA].

      [200].     See Asra Q. Nomani, How “Mama Bears” Won a Court Victory—and Helped Elect a Governor—in Virginia, Educ. Next (Aug. 23, 2022), https://www.educationnext.org/how-mama-bears-won-court-victory-helped-elect-governor-virginia-immigrant-parents-asia-fight-discrimination/ [https://perma.cc/FKZ4-9VEY]. More recently, Suhas Subramanyam, newly elected U.S. Representative from Virginia’s Tenth Congressional District and former Virginia state legislator, noted that the TJ admissions controversy led some lifelong South Asian American Democrats to vote Republican or consider doing so. See Simon Montlake, Why Indian Americans are Shifting Right – and Poised to Serve in Top Trump Roles, Christian Sci. Monitor (Jan. 6, 2025), https://www-csmonitor-com.cdn.ampproject.org/c/s/www.csmonitor.com/layout/set/amphtml/USA/Politics/2025/0106/indian-american-politics-patel-dhillon [https://perma.cc/NZG4-GJ9B]. Representative Subramanyam, a Democrat, noted that “he understands the frustration of parents in his district and supports merit-based admissions to elite schools.” Id.

      [201].     See Jay Caspian Kang, Opinion, Democrats Still Don’t Understand Asian American Voters, N.Y. Times (Nov. 15, 2021), https://www.nytimes.com/2021/11/15/opinion/republican-democrat-asian-voter.html [https://perma.cc/2998-TBAY].

      [202].     Rong Xiaoqing, Clifford Michel, Suhail Bhat & Will Welch, Chinese Voters Came Out in Force for the GOP in NYC, Shaking Up Politics, The City (Nov. 11, 2021), https://www.thecity.nyc/politics/2021/11/11/22777346/chinese-new-yorkers-voted-for-sliwa-gop-republicans [https://perma.cc/6ZRN-5HZ8].

      [203].     Amy Zimmer & Reema Amin, PLACE-Endorsed Candidates Win Nearly 40% of Seats on NYC’s Parent Councils, Chalkbeat (June 16, 2023), https://www.chalkbeat.org/newyork/2023/6/16/23764178/community-education-council-election-place-integration-school-admissions-equity/ [https://perma.cc/4BUM-JBVG].

      [204].     See Fuller, supra note 155.

      [205].     See Matthew Patrick Shaw, The Perils of Asian-American Erasure, 103 B.U. L. Rev. Online 140, 144 (2023) (noting that “affirmative action advocates . . . have ourselves to blame for decades of negligence towards . . . the [Asian American] community”); Jonathan Feingold, The Right to Inequality: Conservative Politics and Precedent Collide, 57 Conn. L. Rev. 1, 60 n.364 (2024) (“Even if unintended, selective indifference to Asian American communities and their concerns likely aggravates preexisting dynamics of civic ostracism and social alienation.”).

      [206].     See, e.g., Vinay Harpalani, From the DeVine Gift to the Devil’s Bargains: Asian Americans in the Ideology of White Supremacy, 103 B.U. L. Rev. Online 151, 155 (2023).

      [207].     Id. at 155–56. See also Neil G. Ruiz, Ziyao Tian & Jens Manuel Krogstad, Asian Americans Hold Mixed Views Around Affirmative Action, Pew Rsch. Ctr. 2, 6, (June 8, 2023), https://www.pewresearch.org/wp-content/uploads/sites/20/2023/06/RE_2023.06.08_Asian-Americans-Affirmative-Action_Report.pdf [https://perma.cc/DB4C-UXNM] (finding in 2022–23 nationally representative survey of Asian American adults that while 53 percent agreed that “[a]ffirmative action is a good thing[,]” only 21 percent agreed that “[c]olleges should consider race or ethnicity in admissions decisions”).

      [208].     See Harpalani, supra note 12, at 248, 310–12.

      [209].     See id.; Jennifer Lee & Min Zhou, From Unassimilable to Exceptional: The Rise of Asian Americans and “Stereotype Promise,” 16 New Diversities 7, 8–9 (2014) (noting that “contemporary Asian immigrants to the United States are highly educated and highly-selected from their countries of origin” and that Asian Americans can be “viewed through the lens of a positive stereotype, which, in turn, can enhance the performance of Asian American students”).

      [210].     See Dana Y. Takagi, The Retreat from Race: Asian Pacific Americans and Racial Politics 60 (2d ed. 1998); Harpalani, supra note 12, at 267–73.

      [211].     See Harpalani, supra note 12, at 270.

      [212].     See id. at 272.

      [213].     Linda Mathews, When Being Best Isn’t Good Enough: Why Yat-pang Au Won’t Be Going to Berkeley, L.A. Times (July 19, 1987) https://www.latimes.com/archives/la-xpm-1987-07-19-tm-4573-story.html [https://perma.cc/78RQ-TR32].

      [214].     Ling-chi Wang, Asian Am. & Asian Diaspora Stud., https://aaads.berkeley.edu/faculty/ling-chi-wang/ [https://perma.cc/TTC8-7V3Q].

      [215].     Mathews, supra note 213. See also L. Ling-Chi Wang, Meritocracy and Diversity in Higher Education: Discrimination Against Asian-Americans in the Post-Bakke Era, 4 (Inst. for Soc. Sci. Rsch., Working Paper Vol. 4, No. 20, 1988-89), https://escholarship.org/content/qt6bc3v3p8/qt6bc3v3p8_noSplash_62826c1ead2525edfdd71f6f6c6c664f.pdf?t=krn7dm [https://perma.cc/7TD6-HZQF]. SFFA would later use the analogy between anti-Jewish and anti-Asian discrimination in its challenge to Harvard’s admissions policy. See Harpalani, supra note 12, at 286–88.

      [216].     Derrick Bell, The Unspoken Limit on Affirmative Action: The Chronicle of the DeVine Gift, in And We Are Not Saved 140, 145 (1987). Professor Bell noted that “the ‘admit’ rate for Asian-Americans fell from 39 percent to 17 percent in the last decade.” Id. at 282 n.2 (citation omitted).

      [217].     See Harpalani, supra note 206, at 152.

      [218].     See id. at 153 (“Fueled by the soft bigotry of low expectations, White liberals are far less threatened by small increases in Black, [Latine], and Native American presence on elite campuses than by the skyrocketing numbers of Asian Americans.”).

      [219].     See Derrick A. Bell, Jr., Comment, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518, 523 (1980) (noting that interest of people of color advance only when they are aligned with White interests). White interest in maintaining dominance at elite institutions by limiting Asian American presence could align with Black, Latine, and Native American interest in greater representation at these institutions. As Coalition for TJ itself illustrates, a simple policy change, such as elimination of a standardized entrance test, could serve White, Black, Latine, and Native American interests while working to the detriment of Asian Americans. See also 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) (noting how liberal defenses of affirmative action, such as the one posed by philosopher Ronald Dworkin, could also justify “negative action”—discrimination against Asian Americans specifically in favor of similarly situated White Americans).

      [220].     See supra notes 210–219 and accompanying text.

      [221].     The relatively high numbers may be relevant to determining whether there is a legally cognizable harm to Asian Americans. See supra text accompanying notes 102–104. But it is not an excuse to ignore the anti-Asian comments and civic ostracism that Asian Americans have faced in the context of admissions controversies. See supra Parts V, VI.A.

      [222].     See, e.g., Efrén O. Pérez, Diversity’s Child: People of Color and the Politics of Identity 15–17 (2021).

      [223].     See generally 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 (1996).