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Few studies have focused on the role of Asian Americans in influencing how race is understood in affirmative action debates. However, accounting for the complicating presence of Asian Americans in the racial politics of affirmative action has become increasingly important. Informed by racial formation theory, this critical discourse analysis of selected amicus briefs from the Fisher v. University of Texas Supreme Court cases illuminated how Asian Americans attempted to racialize themselves in efforts to influence the affirmative action debate. Findings highlight a deep ideological divide between Asian Americans engaged in an ongoing discursive struggle over their racialization and affirmative action.


Asian Americans, affirmative action, college admissions policies

Affirmative action opponents have strategically presented Asian Americans as a racial mascot to undermine affirmative action (Allred, 2007; Chin, Cho, Kang, & Wu, 1996; [End Page 235] Takagi, 1992). As a racial mascot for anti-affirmative action campaigns, stereotypes of Asian American hard work and achievement present an ideal rhetorical foil to calls for racial equity efforts (Allred, 2007). Casting Asian Americans as a primary victim of affirmative action, political pundits opposed to the policy can depict affirmative action as racist (Kidder, 2000) while seeking to avoid appearing racist in their attacks (Leong, 2016).

However, the relationship between Asian Americans and affirmative action is more complex than the anti-affirmative action movement paints. Historically included in affirmative action, Asian Americans are now rarely acknowledged as direct beneficiaries in contemporary affirmative action plans, because they tend to be relatively well represented in enrollments at selective institutions1 (Lee, 2008). Nonetheless, they continue to benefit from affirmative action policies that increase campus diversity (Park & Liu, 2014).

Perhaps due to this complicated racial context, mainstream affirmative action supporters often make little to no mention of Asian Americans in their defense of the policy. However, they can no longer afford to be silent. In November 2014, Edward Blum's Students for Fair Admissions (SFFA) filed federal legal complaints on behalf of Asian American and White plaintiffs2, framing the end of affirmative action as a victory for civil rights (Mulhere, 2014).

This article presents a critical discourse analysis of eight selected documents from the 2013 and 2016 Fisher v. University of Texas cases to reveal how various Asian American organizations constructed racialized narratives about Asian Americans and Pacific Islanders to influence the affirmative action debate. Previous research has mostly positioned Asian Americans as objects of affirmative action debates. However, the SFFA lawsuits underscore the importance of reaching a more comprehensive understanding of how Asian Americans engage as racialized subjects in these debates (Park & Liu, 2014). Informed by racial formation theory, this study illuminates how Asian Americans tried to influence the legal debate through divergent ideological [End Page 236] lenses that shaped differing racialized narratives of Asian Americans. In the end, this study unveils the racial relevance and complicated implications of increased Asian American participation in the affirmative action debate.


Asian Americans have long utilized the federal court system to combat racially discriminatory policies, establishing seminal case law relevant to affirmative action (Ancheta, 2006). For example, in Yick Wo v. Hopkins (1886), the Supreme Court ruled that laws appearing to be racially neutral, but administered in a discriminatory manner, are unconstitutional and in violation of the Equal Protection Clause of the Fourteenth Amendment. This decision acknowledged the importance of looking beyond texts of statutes and into how they are administered with racially prejudicial intentions and outcomes, thus providing protection for individuals from discriminatory policies. In contrast, the Supreme Court held in Korematsu v. United States (1944) that the U.S. government's imprisonment of Japanese Americans during World War II was constitutional because the Justices reasoned that President Roosevelt's Executive Order 9066 met a compelling state interest outweighing the individual rights of Fred Korematsu and other Japanese Americans.

Although the Equal Protection Clause was established to ensure equal treatment, the Korematsu (1944) case allowed for the limited use of race in cases where there is a compelling state interest, establishing the requirement for race-conscious policies to meet strict legal scrutiny. To meet this stringent judicial review standard, it must be proven that a compelling state interest or goal exists to implement a race-conscious policy, that the implementation of the policy is narrowly tailored and thus not overly burdening to any group, and that there are no other means of achieving the intended public interest. Today, courts continue to deliberate over the balance between individual rights and state interests in the consideration of race in law. This is especially true in the affirmative action debate.

In Regents of the University of California v. Bakke (1978), a White male denied admission to the UC Davis Medical School claimed that the school's affirmative action policy violated the Equal Protection Clause. Justice Powell's ruling opinion upheld affirmative action, replacing the remediation of past racial discrimination (i.e., remedial rationale) with diversity as the only state interest that could justify the consideration of race in college admissions. The decision also declared racial quotas unconstitutional in admissions. In Grutter v. Bollinger (2003), a divided Supreme Court upheld the consideration of race as one of many factors in selective admissions for the purposes of achieving diversity, which was reaffirmed as a compelling state interest. The [End Page 237] Court also deemed the use of point systems in admissions to be too rigid in the Gratz (2003) case, which further limited how race could be considered in admissions.

In Fisher v. University of Texas (2013) and in Fisher II (2016), the Supreme Court was again faced with this central question: Is the consideration of race in college admissions permitted under the Equal Protection Clause of the Fourteenth Amendment? Affirmative action defenders had to prove that UT's program met a strict scrutiny standard consistent with Grutter (2003). In other words, UT had to prove that its race-conscious program was justified in achieving diversity on campus and that it was sufficiently limited so that no one was overly burdened or harmed. Once more, the Supreme Court reaffirmed that diversity was a compelling interest justifying the very limited use of race as one of many factors in university admissions programs (Fisher v. University of Texas, 2016, p. 5).

In presenting their cases, White anti-affirmative action petitioners in Grutter, Gratz, and Fisher have claimed that Whites are not the only ones harmed by race-conscious admissions policies; they suggested that Asian Americans, a racial minority, are also harmed. The increasing presence of Asian Americans in higher education adds a new layer of complexity to the debate, because they are a racially minoritized population that presents aggregate educational attainment statistics that challenge traditional notions of minorities in education (Liu, 2008).

As active participants but not direct litigants in affirmative action cases, Asian American groups have filed amicus curiae, or friend of the court briefs in each of the Supreme Court cases over college admissions. As interested third-party groups that are not named in a legal case, individuals or groups may submit these briefs to the court with the goal of influencing public opinion and judicial deliberations (Ledesma, 2007). These legal documents either reiterate or add information in support of a petitioner, respondent, or neither party's arguments in a court case. Notably, Spriggs and Wahlbeck (1997) have found that briefs seeking to reinforce a given position in a case tend to be more successful than those offering additional or unique information not mentioned by litigants.

Although longstanding Asian American civil rights organizations filed briefs in support of affirmative action in the Fisher cases as they had in the past, newer Asian American organizations also filed briefs against affirmative action. Submitted briefs in the Fisher cases highlighted an increasingly clear divide among Asian Americans who are actively engaged in the affirmative action debate, bearing important implications. Therefore, this study seeks to answer the question: How, and for what purposes, have Asian Americans racially represented themselves in the debate over affirmative action in the Fisher vs. University of Texas cases in the U.S. Supreme Court? [End Page 238]

Literature Review

Although Asian Americans have long been engaged in affirmative action cases, research on Asian Americans and affirmative action in college admissions has largely focused on how others have racialized them within these debates, and on whether and how they benefit from such policies. It has positioned Asian Americans as objects of policy deliberations. More recent research presented an important paradigm shift acknowledging the involvement of Asian Americans, reframing them as engaged citizens with diverse perspectives. However, little research has examined the particular arguments and motivations behind Asian Americans' involvement in these debates.

Effects of Affirmative Action on Asian Americans

Some have conceptualized Asian Americans as "caught in the crossfire" (Kidder, 2006) or "caught in the middle" (Inkelas, 2003) of affirmative action debates. Within this framing, research has positioned Asian Americans as a passive object between primary opposing subjects in debates. Research on the racialization of Asian Americans in affirmative action debates has mainly focused on the controversy over anti-Asian American quotas in the 1980s. At that time, the U.S. Department of Education's Office of Civil Rights (OCR) investigated claims of anti-Asian discrimination in favor of White applicants at Harvard and UCLA (Nakanishi, 1989; Takagi, 1992). The OCR found UCLA culpable of discriminatory practices, but cleared Harvard of charges, attributing higher admissions rates of Whites to legacy and student-athlete preferences (Takagi, 1992). Even though UC Berkeley was not investigated, its Chancellor apologized for discriminatory practices against Asian Americans (Wang, 1995). Though facts of the case pointed to concerns over anti-Asian discrimination that favored Whites, a practice Kang (1996) called "negative action," affirmative action opponents seized the opportunity to denounce the affirmative action. This case demonstrated the importance of racialized political discourse to advance color-blind terms in the affirmative action debate. According to Takagi (1992):

By bringing Asian achievement into the ring of conflict over Black and White differences in academic achievement, neoconservatives insisted that their free market vision of admissions was not racially motivated but, rather, inspired by fairness. Still, several neoconservative authors were acutely aware that their struggle to gore affirmative action once and for all was possible because the high achievers were Asian, not White.

(p. 120)

The anti-affirmative action movement, until the late 1980s, had been led by White lawyers on behalf of White plaintiffs (Park & Liu, 2014). Using negative action as a springboard, affirmative action opponents appropriated Asian American allegations of discrimination and used them to argue against [End Page 239] affirmative action (Nakanishi, 1989), positioning them as a racial mascot (Allred, 2007). They defined Asian Americans as "model minority" victims of affirmative action, placed in opposition to African Americans and other minorities, who are stereotyped as undeserving, to reinforce a system of white dominance (Kim, 1999; Takagi, 1992; Yosso, Parker, Solórzano, & Lynn, 2004) through color-blind racist ideology (Bonilla-Silva, 2006). The controversy contributed toward contemporary racial constructions of Asian Americans in higher education as an over-represented "yellow peril foreigner" and "model minority," two racialized figures unwelcome in higher education (Lee, 2006).

Other research has demonstrated how affirmative action and its resulting diversity benefit Asian Americans (Park, 2012). Some have also argued for the continued inclusion of Asian Americans in affirmative action (Asian American Law Students' Association, 1978; Brest & Oshige, 1995). Generally, this research has treated Asian Americans as pawns in policy debates, but it is important to recognize this diverse group's agency within this discourse.

Asian American subjectivity in affirmative action debates

Increasingly, research has recognized Asian Americans as actors with distinct views on affirmative action. Some have suggested a contentious affirmative action divide among Asian Americans (Inkelas, 2003; Ong, 2003). More recent research, however, has provided evidence of Asian American support for the policy (National Asian American Survey [NAAS], 2013; Park, 2009).

Park and Liu (2014) have argued for more research on "how Asian American experiences should affect public understanding of [affirmative action] itself" (p. 37). Specifically, they demonstrated how Asian Americans complicate conventional definitions of meritocracy and critical mass, presenting a compelling justification for recognizing the importance of Asian American experiences in the affirmative action debate. Accordingly, this study contributes to an understanding of the complex relationship between Asian Americans and affirmative action. It focuses on how those who submitted amicus briefs racialized themselves, hoping to influence the debate in the Fisher cases. We utilize Omi and Winant's (2015) theory of racial formation to understand how Asian American engagement in affirmative action debates has added nuance and complexity to public discourse on affirmative action.

Theoretical Framework: Racial Formation

The theory of racial formation is helpful for understanding how Asian Americans have sought to construct racial representations of their diverse population and interests to influence the affirmative action debate. Omi and Winant (2015) defined racial formation as "the process of race making, and its reverberations throughout the social order," and more specifically "the sociohistorical process by which racial identities are created, lived out, [End Page 240] transformed, and destroyed" (p. 109). Accordingly, meanings of race and structures of racism are fluid and dependent on dynamic sociohistorical contexts. Although race is not a biological reality, physical characteristics (e.g., skin color, hair texture, eye shape) are ascribed with "symbolic meanings and associations" (Omi & Winant, 2015, p. 13) rendered on them by social and political settings, time, and place3. As such, racial formation is an inherently ideologically contested social process. For example, the racialization of Asian Americans has changed significantly in the last century. In the late 1800s and first half of the 1900s, mainstream U.S. society viewed Asian Americans as an unclean and unassimilable population to be barred from immigrating to the U.S. (Hsu, 2015). These perceptions were drastically transformed by the late twentieth century according to policy changes that privileged highly educated and professionally skilled immigrants (Hsu, 2015). Thus, shifting policies, historical contexts, and sociocultural events, or what Omi and Winant (2015) called racial projects, can significantly influence, construct, and reconstruct meanings of race, racism, and race relations, particularly through public discourse. Accordingly, there is a strong relationship between public narratives and how the state and other social structures institutionalize racial meanings and inequalities (Omi & Winant, 2015). Consequently, how Asian Americans are discussed in the affirmative action debate not only shapes general perceptions of the population, it can also frame how race and racism are understood to influence court deliberations and policy change.

Critical Discourse Analysis

Guided by racial formation theory, we utilized a critical discourse analysis (CDA) method to illuminate how Asian Americans racialized themselves to influence the affirmative action debate. CDA is a systematic, transdisciplinary, descriptive, and normative method aimed at exposing the relationship between discourse and social processes (Fairclough, 2010). It reveals "the way discourse (re)produces social domination, that is, the power abuse of one group over others, and how dominated groups may discursively resist such abuse" (van Dijk, 2009, p. 63). CDA seeks to confront and ameliorate social domination and oppressive ideology advanced through discourse (Ayers, 2005). [End Page 241] Although CDA is not explicitly concerned with racial domination, previous research has used it to understand how whiteness is practiced in admissions viewbooks (Osei-Kofi, Torres, & Lui, 2013) and to identify implications of color-blind rhetoric in policymaking processes (Winkle-Wagner, Sulè, & Maramba, 2014). This study extends CDA by exploring the ways a racially minoritized group can also subjectively and discursively frame narratives about themselves in efforts to influence the racialization, and potentially the outcomes, of policy debates. Thus, paradoxically in this case, Asian Americans are simultaneously subjects and objects of the affirmative action debate. By analyzing amicus briefs authored and submitted by Asian American organizations, we presumed that these Asian Americans were enacting their agency and subjectivity in describing and discussing the effects of affirmative action on Asian American college access.


Our data included eight amicus briefs, submitted by five organizations, which all claimed to represent the interests of Asian Americans and Pacific Islanders (AAPIs)4 in the two Fisher Supreme Court cases. Table 1 provides a detailed summary list of the eight briefs. The anti-affirmative action Asian American organizations were relatively new compared to the pro-affirmative action Asian American organizations, which are among the oldest Asian American civil rights organizations. Two of the four anti-affirmative action briefs were co-authored by non-AAPI organizations.

An examination of amicus briefs is one way to understand how interest groups are engaging in a specific form of discourse and legal advocacy. However, we caution against an uncritical acceptance of amicus briefs as validated and accurate representations of Asian American voices and perspectives. Recent legal scholarship has critically examined the origins of amicus briefs and the coordinated nature of submissions to strategically shape and support arguments presented in the Supreme Court (Larsen & Devins, forthcoming). According to Larsen and Devins (forthcoming),

It is an open secret inside the beltway that as the sea of amici expands, a targeted amicus strategy becomes essential. Sophisticated players know they need an "amicus wrangler" to ensure their chosen expert voices (as opposed to the many competing ones) are appropriately highlighted.

(p. 5) [End Page 242]
Table 1. A A F I F II
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Table 1.

Asian American amicus briefs in Fisher I and Fisher II

[End Page 244]

Thus, it is important to recognize the limitations of this data. While the briefs in this study claim to represent the perspectives of AAPIs, the "am-icus machine" described by Larsen and Devins and the key participation of non-AAPI organizations in co-authoring and submitting briefs point to the limitations of these briefs in representing the totality of AAPI populations and perspectives. Moreover, authoring and submitting amicus briefs to the federal court system requires a level of technical knowledge that the average person does not possess, suggesting that the shepherding of these AAPI amicus briefs was led by a select group of individuals. Furthermore, as will be seen, some of the briefs are primarily concerned with Chinese American interests and may not actually represent the diversity of perspectives and ideologies found among Asian Americans and Pacific Islanders. Therefore, it is important to acknowledge that these briefs represent the views of AAPIs with requisite know-how to submit amicus briefs to the Supreme Court. While they represent some AAPI views on affirmative action, they should not be viewed as documents representing all AAPI perspectives.

Nonetheless, these eight briefs embody a valuable source of data and offer opportunities to better understand opposing viewpoints on the relationship between affirmative action and AAPIs. They remain relevant for analysis and discussion because they are powerful representations of given viewpoints intended to influence Supreme Court decisions. Each brief presented particular narratives of AAPI experiences and interests through the practice of legal discourse, seeking to influence policy outcomes for the nation (Larsen, 2014). As such, analysis of these briefs offers important insights into the exercise of racial power related to Asian Americans that can affect the future of affirmative action in higher education.


Fairclough (2010) outlined a three-part approach in CDA to explain "… how discourse systematically constructs versions of the social world" (Rogers, Malancharuvil-Berkes, Mosley, Hui, & Joseph, 2005, p. 371). First, CDA examines relationships between texts and social processes. Informed by racial formation theory, this study examined how Asian American amici exerted racial power through the selected amicus briefs to construct racialized narratives about the relationship between affirmative action and racism specifically related to Asian Americans. Second, CDA engages in a systematic analysis of texts. Accordingly, we methodically engaged in an initial descriptive coding process (Patton, 2002) of the eight documents to become familiar with the texts and to describe strings of text using short phrases found in the documents. We then constructed an analytical question based on a review of initial codes: How did this participant in the Fisher cases racially represent Asian Americans to argue for or against affirmative action in college admissions? Combining the first set of codes with this question, we created [End Page 245] broader thematic codes (e.g., "Asians as the 'new Jews'" and "rejecting the racial mascot"), which were uploaded to a qualitative software package for a re-analysis of texts. Finally, CDA is unambiguously normative in seeking to address social injustices (Winkle-Wagner et al., 2014). Therefore, we focused our analysis on the connections between presented racialized narratives of Asian Americans (i.e., differing "versions of the social world") to oppose or support affirmative action (i.e., relationship between discourse and social processes, and normative frame), paying particular attention to how and why they sought to influence the Court.


We established trustworthiness by engaging in a process of self-reflexivity, triangulating our data, and seeking disconfirming evidence. We continually engaged in critical self-reflection over the analysis of texts in this study, first acknowledging our personal biases as Asian Americans who believe we have directly and indirectly benefited from these policies. Given our positionality, we continually bracketed our biases and reflected on how our personal values affected our analysis, but did not silence our commitments to racial equity, given the normative nature of CDA. By studying eight amicus briefs, we also triangulated data to seek a convergence in how the briefs presented racialized narratives of Asian Americans and their interests in the policy debate (Creswell & Miller, 2000). Through this process of triangulation, we sought disconfirming and contradictory evidence in developing thematic findings. We followed these techniques to produce a fair representation of all perspectives presented in the documents.

Our analysis revealed an ideological disagreement between Asian American opponents and proponents of affirmative action, which informed their racial narratives used to advance their particular legal arguments. Although both sides acknowledged the racially minoritized status of Asian Americans, ideological differences led to conflicting racial characterizations of the population that supported their respective legal arguments.

The Ideological Divide

Although differing ideological paradigms of equality and liberty fueled the persistent debate over affirmative action, it is important to first note that adversaries often shared a common value for a basic conceptualization of equality (Moses, 2016). In this case, amici on both sides of the debate generally shared an understanding that Asian Americans are a racially minoritized population requiring civil rights advocacy. For example, AALF and JEP (2012) (see Table 1 for full list of acronyms) claimed that AALF serves "to protect and promote the civil rights of Asian Americans" (p. 1). Similarly, Brandeis and 80-20 (2012) stated a commitment to "equal opportunity and [End Page 246] civil rights for Asian Americans and all people" (pp. 1-2). Likewise, AACE was described as an "organization devoted to promoting equal rights for Asian-Americans in education and education-related activities" (AALF & AACE, 2015, p. 2). Pro-affirmative action groups also stated a commitment to civil rights. AALDEF (2012) stated that it "protects and promotes the civil rights of Asian Americans. By combining litigation, advocacy, education, and organizing, AALDEF's Educational Equity Program promotes the rights of Asian American and Pacific Islander students in K-12 and higher education" (p. 1). Similarly, Advancing Justice (2012) stated a mission "to promote a fair and equitable society for all by working for civil and human rights and empowering Asian Americans and Pacific Islanders and other underserved communities" (p. 1).

There was also a general consensus among amici on both sides that Asian Americans have experienced racial discrimination. With the exception of Brandeis and 80-20's (2012) brief, all of the documents described the relevance of historical anti-Asian laws. Perhaps because the Louis D. Brandeis Center for Human Rights Under Law, an organization that advocates for Jewish people, served as lead author in the Brandeis and 80-20 (2012) brief, it provided an extensive history of anti-Jewish quotas at elite institutions instead of discussing Asian American history in contextualizing their central argument against affirmative action.

The seven other briefs provided varying levels of detail about Asian Americans and racism. Through its three briefs, AALF provided the most extensive historical summaries of Chinese American struggles against anti-Asian laws governing immigration (e.g., United States v. Wong Kim Ark, 1898), educational rights (e.g. Tape v. Hurley, 1885 and Lum v. Rice, 1927), business ownership (e.g., Yick Wo v. Hopkins, 1886), and civil rights (e.g., Hirabayashi v. United States, 1943; Korematsu v. United States, 1944; People v. Hall, 1854). They concluded that:

State officials have always argued that their classification of individuals by race, and discriminatory programs, were justified by important governmental purposes, and even the most racist programs have found support with "experts," including ivory tower academics and even military leaders. Yet, our country's history has always, in the end, demonstrated that classification and discrimination by race was a mistake.

(AALF & AACE, 2015, p. 7)

Rather than implicate white supremacy for these injustices, anti-affirmative action groups blamed the act of recognizing racial categories as racist, advancing a color-blind ideology.

Guided by a broader lens of racial egalitarianism, pro-affirmative action amici also acknowledged a history of anti-Asian discrimination in their briefs, but politically aligned themselves with other communities of color. For example, Advancing Justice (2015) stated that: [End Page 247]

AAPIs, like African Americans, Latinos, and Native Americans, were subject to historic exclusion and de jure segregation in public education, particularly in California with its significant AAPI population. Even after the California Supreme Court ruled in 1885 that the San Francisco School Board was required to provide Chinese students a public education, the California Legislature provided separate, segregated schools for "children of Mongolian or Chinese descent" until 1947. Although Brown v. Board of Education … invalidated the "separate but equal" doctrine, it did not end racial discrimination in public education or its harms for AAPI communities.

(pp. 7-8)

Similarly, AALDEF (2012) framed Asian American experiences with racism as similar to those experienced by other minoritized groups and declared, "Without question, there is a disturbing history of discriminatory admission policies, particularly at elite private universities, affecting Jews, African Americans, Asian Americans, women, and others" (p. 10). By linking their experiences of racial discrimination with those of other people of color, they suggested that these diverse groups share concerns over systems that privilege White men. This specificity in contextualizing anti-Asian discrimination was not provided by anti-affirmative action amici, whose color-blind lens did not lead them to distinguish differences between racist immigration bans, internment camps, and affirmative action policies meant to increase racial equity.

Although both sides agreed that Asian Americans have experienced racist policies, they clearly disagreed on virtually every other detail on Asian Americans and affirmative action. Arguing that the policy harmed Asian Americans, AALF, 80-20, and AACE were guided by color-blind ideology. Moses (2016) explained, "Supporters of color blindness believe … that it is pernicious to individual liberty to account for race through public policy" (p. 26). The color-blind ideological framework of abstract liberalism, which "… involves using ideas associated with political liberalism (e.g., 'equal opportunity,' the idea that force should not be used to achieve social policy) and economic liberalism (e.g., choice, individualism) in an abstract manner to explain racial matters," (Bonilla-Silva, 2006, p. 28) characterized the anti-affirmative action briefs. In turn, meritocracy and individualism, two key aspects of abstract liberalism (Bonilla-Silva, 2006), were particularly prevalent in the anti-affirmative action texts.

On the other side, through a racial egalitarian lens (Moses, 2016), affirmative action proponents argued that AAPIs, like other minoritized groups, benefited from the policy. Guided by notions of racial egalitarianism, they believed "past and present racism and inequality in the United States compels the state to allow race consciousness in public policies related to educational and employment opportunities" (Moses, 2016, p. 26). This ideological divide characterized the divergent interpretations of Asian American history, affirmative action and its legalities, and ultimately differing opinions on the state's role in balancing ideals of liberty and equality in public policy (Moses, 2016). [End Page 248]

"New Jews" and Color-blind Ideology

Asian American affirmative action opponents positioned themselves as a disfavored racial minority harmed by affirmative action, unlike other people of color and more like Jews, an ethnic minority that became White (Brodkin, 1998). Following color-blind ideology, they leveraged their minority status to challenge affirmative action. They aimed to undermine diversity as a compelling state interest and argued that the policy harmed Asian Americans.

Asian Americans as "new Jews" and model minority

Establishing Asian Americans as a racialized minority that has confronted racist and xenophobic policies, anti-affirmative action briefs characterized Asian Americans as "new Jews." Nearly half of the Brandeis and 80-20 (2012) brief detailed a history of Ivy League anti-Jewish quotas, concluding that "just as Asian Americans today sustain a disproportionate admissions burden in the name of 'diversity,' so too were Jews restricted at one time in the name of 'diversity' and 'balance'" (p. 31). Insisting that Asian Americans face quotas at elite institutions as an "undesirable" ethnic minority similar to Jews, AALF and AACE (2015) explained:

Asian American applicants to elite colleges and universities today apparently face the same informal quotas faced by Jews who applied to … prestigious institutions during the first half of the 20th century. Beginning in the 1920s, Harvard College and other prominent colleges and universities reacted to the perceived "over-representation" of Jews in their student bodies by setting up quotas.

(p. 23)

Although these briefs claimed to represent Asian Americans as a whole by repeatedly using the term "Asian American," their focus was clearly on Chinese American history. Detailing a history of anti-Chinese American laws, AALF and JEP (2012) explained, "In the 1800s and 1900s, individuals of Chinese descent were disparagingly viewed as faceless members of a 'yellow horde' and subject to numerous racist restrictions purporting to serve the greater public good" (p. 14). These anti-Chinese laws "… gave rise to the expression 'a Chinaman's Chance,' a phrase meaning 'having little or no chance of succeeding'" (AALF & JEP, 2012, p. 14). The only cases of anti-Asian discrimination not involving Chinese Americans cited were the Japanese American interment cases of Hirabayashi v. United States (1943) and Korematsu (1944). Moreover, the majority of organizations and leaders listed in the briefs were Chinese American, suggesting that anti-affirmative action efforts could more accurately be characterized as Chinese American and not Asian American.

Advancing the "new Jews" narrative, these briefs highlighted an image of hard work and high achievement among Chinese Americans, who thus merit and are entitled to elite college admission. Notably, Chinese Americans, [End Page 249] inclusive of Taiwanese Americans, have attained among the highest levels of educational attainment in the U.S. along with South Asian Americans (e.g., Indians, Pakistanis, etc.), though many Southeast Asian Americans (e.g., Cambodians, Hmong, etc.) and Pacific Islanders have among the lowest attainment levels (CARE, 2008). AALF and JEP (2012) acknowledged that "Asian Americans are in fact a highly heterogeneous group coming from numerous countries and widely varied ethnic, cultural, intellectual, economic, and political backgrounds" (p. 28). However, instead of recognizing that socioeconomic disparities suggested a need for affirmative action, they stressed the fallacies of racial categorization, describing the term Asian American as an "artificial category" in accordance with color-blind ideology (AALF & JEP, 2012, p. 29). Thus, they framed AAPI disparities as a natural occurrence by stating, "Some come from highly educated backgrounds, many others not so much. Some come from cultures that aggressively promote education, others from cultures that take a less demanding approach (not every Asian child has a 'Tiger Mom')" (AALF & JEP, 2012, p. 28). Though on the surface AALF and JEP (2012) acknowledged Asian American heterogeneity, their purpose was to advance ideals of color-blind meritocracy by pointing out the importance of culture for upward mobility and an assumption of American exceptionalism in liberty and opportunity, stating that Asian Americans are "… here because they, their parents, and their ancestors believed that the United States would afford them and their descendants a better life, greater opportunity, and the blessings of liberty" (AALF & JEP, 2012, p. 29). Thus, their recognition of Asian American diversity was informed by color-blind ideology, which led them to dismiss lesser achieving Asian Americans as failing to adhere to a culture of hard work, rather than recognize the history of war that has violently displaced Southeast Asian Americans.

Consistent with the notion of Asian American high achievement, AALF and AACE (2015) cited Ron Unz's5 opinion that elite college enrollments of Asian Americans should grow at a rate similar to the increase in the Asian American population nationally:

Unz found, "the share of Asians at Harvard peaked at over 20 percent in 1993, then immediately declined and thereafter remained roughly constant at a level 3-5 points lower." He found this particularly suspicious considering that the underlying population of Asian Americans had throughout this period been growing at the fastest pace of any American racial group. … At the same time that Asian American academic achievement was shooting upward, "the relative enrollment of Asians at Harvard was plummeting, dropping by over half during the last twenty years, with a range of similar declines also occurring at Yale, Cornell, and most other Ivy League universities."

(p. 27) [End Page 250]

Unz and anti-affirmative action amici therefore made a logical leap between the growing Asian American population and "academic achievement shooting upward" (AALF & AACE, 2015, p. 27). The argument relied on an underlying belief in Asian American academic supremacy. Accordingly, these briefs distanced Asian Americans from other racial minorities, whom they argued were favored at their expense.

To undercut the Supreme Court's affirmation of diversity as a compelling interest for affirmative action, AALF and AACE (2015) situated Asian Americans as a racial wedge, interchangeably using the terms "racial discrimination" and "preferences" to incriminate UT's affirmative action program for anti-Asian racism. In situating Asian Americans in competition with other people of color, they stated that "… UT insisted on giving preferences to Hispanic applicants, while disfavoring Asian American applicants …" (2015, p. 6). Taken together, these briefs complained that "racial preferences" prevented Asian Americans from reaping rewards to which their hard work has entitled them, while privileging others who are presumed as lacking work ethic and thus less deserving. As Brandeis and 80-20 (2012) explained, Asian Americans "… demonstrate academic excellence at disproportionately high rates but often find the value of their work discounted on account of either their race, or nebulous criteria alluding to it" (p. 3), underscoring an Asian American supremacist attitude in dismissing affirmative action.

Advancing color-blind policy

As "new Jews," Asian American affirmative action opponents set themselves apart from other communities of color as a model minority to legally undermine the policy. Notably, they did not challenge admissions privileges granted to children of alumni and student athletes, which largely benefit White applicants. Instead, they took aim at the concepts of diversity and critical mass as ill-defined ploys to maintain quotas against Asian Americans, under a guise of holistic review. AALF and JEP (2012) argued:

Admissions programs are encouraged to hide the use of race and their goal of proportional racial representation behind the façade of 'holistic' evaluations, to bury or refuse to keep data on the use of race in their decisions, and to manipulate their definitions of 'critical mass' in order to justify continuing preferences.

(p. 5)

Although this quote suggests a concern over a lack of transparency in selective admissions, none of the briefs focused on advocating for systemic transparency. Instead, these groups advanced ideological notions of individualism and meritocracy. This was demonstrated by their faith in high-stakes tests as the best measurement of academic merit, made clear in each briefs' repeated citations of research by Thomas Espenshade. According to AALF & JEP (2012), "under race based admissions policies, Asian-American applicants [End Page 251] face a 235- to 280-point higher admissions hurdle than Hispanic and African-American applicants and a 50-point higher admissions hurdle than White applicants solely because of their race" (p. 10). All four anti-affirmative action briefs cited this statistic as definitive evidence of anti-Asian discrimination. Although Brandeis and 80-20 (2012) acknowledged that Espenshade and Radford "denied that their research necessarily proves 'that elite college admission officers are necessarily giving extra weight to black and Hispanic candidates just because they belong to underrepresented minority groups'" (p. 9), they dismissed the scholars' caution. Responding to Espenshade and Radford's note that a range of factors contribute to test-score differences, Brandeis and 80-20 (2012) stated:

The "information at hand" reveals that the "constellation of other factors" is merely pretext for invidious discrimination. Admissions officers start with a racial ideal - whether hard or soft, a quota nonetheless - and then seek students possessing vague qualities that allegedly happen to be present within racial groups in proportions inverse to academic achievement.

(p. 10)

Affirmative action opponents placed an exaggerated value on the ability of tests to evaluate student potential for college success (Santelices & Wilson, 2010), and relied on tests to prove an anti-Asian effect in affirmative action connected to holistic review processes.

Interestingly, these briefs rarely mentioned "affirmative action" as the target of their efforts. AALF (2012) had no mention of the term affirmative action, while Brandeis and 80-20 (2012) placed the phrase affirmative action in quotation marks (p. 7) in its only naming. Additionally, AALF and JEP (2012) distinguished between race-conscious affirmative action, which they opposed, and race-neutral affirmative action programs. In the one naming of affirmative action in its brief submitted in Fisher II, they granted that:

To the extent that individual students of some ethnic groups are found to be underrepresented, local governments may take measures to bring about meaningful change, such as improving K-12 education in disadvantaged communities, supplemented with reasonable affirmative action programs that use race-neutral criteria such as socioeconomic factors … it is a mistake to allow schools to grant racial preferences to individuals of favored groups or to single individuals of disfavored groups out for unfair burden. …

(AALF & AACE, 2015, p. 28)

The very limited naming of affirmative action in these briefs might suggest that these amici are very specifically concerned with discrimination against Asian Americans, presumably a "disfavored group" in their argument, and not necessarily with affirmative action itself.

However, opponents continue to adhere to color-blind ideology in their arguments against race-conscious affirmative action policies. As such, they [End Page 252] maintained a focus on demonstrating how UT's program failed to meet strict scrutiny, questioning the notions of critical mass and diversity. According to AALF (2012):

UT Austin's pretense that its racial discrimination is motivated by the desire to achieve a "critical mass" of underrepresented minorities is belied by the fact that it grants no preferences to Asian Americans even though they are less well represented in UT Austin classrooms than Hispanics, a racial category granted preference in the admissions process.

(p. 15)

The use of quotation marks around critical mass underscored AALF's skepticism over the legitimacy of critical mass of underrepresented minorities related to diversity as worthy goals justifying race-conscious policies. Without a clear Court-defined concept of "critical mass," affirmative action opponents tried to convict UT's program of practicing illegal racial quotas and balancing through a quantitative framework. AALF and JEP (2012) interpreted the Grutter (2003) decision as the Court's faulty acceptance of "the proposition that racial diversity was a compelling state interest that justified racial preferences … buried within a broader 'holistic' set of admissions policies directed at achieving an undefined 'critical mass' of certain minority students" (p. 23). Showing that UT's enrollment consisted of 20% Latinx and 19% Asian American students in 2008, AALF and AACE (2015) argued that "the admission program's true purpose cannot be the achievement of a 'critical mass' of Hispanic students. UT's true goal is racial balancing - that is, making the student body mirror the racial composition of the State of Texas" (p. 11). Relatedly, they contended:

The finding of the Fifth Circuit that Hispanics are insufficiently represented even though present in larger numbers than Asian Americans means either: (1) that court was wrong and there is a critical mass of both; or (2) Asian Americans are not worth as much as Hispanics in promoting "cross-racial understanding," breaking down "racial stereotypes," and enabling students to "better understand persons of different races." Grutter, 539 U.S. at 329. The latter … is unsupported by anything in the record. It is also racist.

(2015, p. 11)

Furthering its criticism of the Fifth Circuit Court's understanding of Asian Americans, AALF and JEP (2015) stated:

The Fifth Circuit erroneously described the issue as being "white" versus "minority," failing to consider that Asian Americans, members of an ethnic minority group, are the most harmed by the challenged program. … If the Fifth Circuit's failure to recognize the burden of the UT program on Asian Americans was inadvertent, and based on mistaken belief that somehow Asian Americans are "white" and privileged, shame on that court.

(pp. 8-9) [End Page 253]

Italicizing "minority" to describe Asian Americans, the brief underscored a belief in affirmative action as discriminatory against Asian Americans as a minority group, and denigrated UT's claims of seeking a goal of diversity.

However, "any attempt to provide a one-size-fits-all number, absent other contextual considerations, would not only undermine the complexity of what is needed [to achieve critical mass] but could also render it an impermissible quota under constitutional requirements" (Garces & Jayakumar, 2014, p. 116). As research has shown, critical mass is contextually fluid and necessary to derive educational benefits of diversity (Garces & Jayakumar, 2014; Park, 2013). At the same time, the achievement of diversity is not as amorphous as affirmative action opponents claimed. Indeed, Garces and Jayakumar (2014) asserted that institutions can regularly assess "progress toward achieving [specific] conditions for fostering dynamic diversity" (p. 121).

Anti-affirmative action briefs insisted that all race-conscious policies violated the Equal Protection Clause. Emphasizing inconsistencies in the treatment of Asian Americans, a long-suffering yet hard-working and high-achieving minority group, anti-affirmative action briefs sought to undermine the Grutter precedent, which affirmed that race could be used as one of many factors in admissions to meet an interest of diversity. Their argumentation relied on a color-blind ideology, which guided them to consciously highlight Asian Americans' minority status and paradoxically align them with the attainment of whiteness modeled by Jews.

Asian American (and Pacific Islander) Diversity and Racial Egalitarian Ideology

Asian American affirmative action supporters portrayed Asian Americans and Pacific Islanders as a diverse population with wide-ranging educational attainment levels along ethnic lines. Countering affirmative action opponents' positioning of Asian Americans as a racial wedge, policy supporters asserted that AAPI disparities allied them with Latinxs, African Americans, and Native Americans. Based on their racial narrative of AAPIs, they argued that AAPIs continue to benefit from affirmative action, reaffirming that the policy measured up to strict legal scrutiny.

Diversity and disparities

Pro-affirmative action briefs presented a more ethnically inclusive description of Asian Americans than opponents did. They incorporated Pacific Islanders in their briefs, often using the term Asian Americans and Pacific Islanders. For example, AALDEF (2015) described AAPIs as "… a unique cross-section of identities and experiences that spans a range of comparative privilege and disadvantage" (p. 3). They also explained that the model minority myth advanced by affirmative action opponents "… masks tremendous diversity within the Asian American and Pacific Islander community. Many Asian applicants in communities struggling with low educational attainment will suffer if admissions programs such as UT's [End Page 254] are dismantled" (AALDEF, 2015, p. 4). As revealed here, they often used AAPI interchangeably with the term Asian American, disregarding Pacific Islander calls to be recognized as an identity distinct from, yet allied with Asian Americans (Kauanui, 2008). Simultaneously, AALDEF (2015) recognized that Pacific Islanders "… like Native Americans have been subjected to colonization and marginalization on their own native land. Their postcolonial histories and relative lack of agency have made these communities the most misrepresented … by the model minority myth" (pp. 29-30). The occasional slippage between the terms AAPI and Asian American suggests an instability in AAPI panethnicity, centering of Asian American voices, and marginalization of Pacific Islanders in the public discourse.

Incorporating Pacific Islanders to form a diverse AAPI interest group, proaffirmative action amici highlighted vast socioeconomic disparities. AALDEF (2012) explained that "many Southeast Asian and Pacific Islander communities remain economically disadvantaged and struggle with long-term poverty, language and literacy issues as well as post-traumatic stress disorder" (p. 29). Similarly, Advancing Justice (2012) recognized relevant differences among AAPIs "such as the Vietnamese, Laotian, Hmong, Tongan, and Native Hawaiian populations - who tend to be more economically disadvantaged and have less access to educational resources" (p. 21). They went on to state that "Some Asian American subgroups - Hmong, Cambodian, Laotian and Vietnamese Americans - have educational attainment rates similar to those of Latinos and African Americans" (Advancing Justice, 2012, p. 9).

These amici, therefore, aligned AAPI interests with those of other communities through a broad people of color coalitional framework, and not with Jews and other Whites, by presenting AAPI socioeconomic disparities. In a footnote, for example, Advancing Justice (2015) presented a brief summary of socioeconomic inequalities among AAPIs:

Hmong and Cambodian children have the highest rates of poverty in California; more than two-thirds of Hmong, Samoan, Cambodian, and Vietnamese freshmen received need-based financial aid; large proportions of Vietnamese, Thai, Korean, Chinese, and Cambodian communities have limited English proficiency.

(p. 11)

Furthermore, AALDEF (2012) contended that:

Students belonging to [certain Asian subgroups] in Texas and elsewhere have faced pervasive social and economic disadvantages akin to that experienced by many African Americans and Latinos, educational attainment levels that are among the lowest of all ethnic and racial groups.

(p. 5)

Countering stereotypes of high achievement to argue that AAPIs can benefit from affirmative action, these amici provided detailed statistics on AAPI [End Page 255] socioeconomic disparities, invoking a deficit thinking framework of what it means to be a racial minority (Valencia, 1997) to position AAPIs as legitimate minority groups like Latinxs and African Americans who receive needed institutional attention and resources. Unfortunately, the use of this framework underlying notions of what it means to be racially minoritized fails to implicate systems of whiteness that maintain the oppression of people of color (Poon, Squire, Kodama, Chan, Manzano, Furr, & Bishundat, 2016).

Nonetheless, presenting AAPI ethnic diversity and disparities was foundational to pro-affirmative action amici's strategy to undermine opponents' framing of Asian Americans as a racial wedge. According to Advancing Justice (2015), anti-affirmative action Asian American amici aimed:

… to portray AAPIs as victims who are categorically 'excluded' and 'burdened' by affirmative action programs. [We] reject these unfounded claims … and categorically oppose such efforts to use the AAPI community as a wedge group to curtail opportunities for racial minorities. …

(p. 4)

Aligning AAPI interests in solidarity with other minorities, Advancing Justice (2012) stated:

Asian Americans, Pacific Islanders, African Americans, Latinos, and Native Americans share a history of racial segregation in education. Despite this shared history, Petitioner and several amici argue that admissions programs that provide equal opportunity for African American and Latinos necessarily harm Asian Americans.

(p. 7)

Rejecting AAPIs as a racial wedge, these amici repeatedly showed that some AAPIs face socioeconomic barriers similar to those experienced by other minorities. In contrast to affirmative action opponents whose "notion of equal treatment always means same treatment, without regard to social structures, context, and past or present discrimination" (Moses, 2016, p. 39), policy supporters argued the importance of relevant differences in educational experiences among AAPIs to developing policy solutions for racial equity.

Reaffirming egalitarian benefits of affirmative action

Illustrating AAPIs as a diverse population faced with inequitable barriers to education like other minorities, pro-affirmative action amici were then able to argue that AAPIs benefit from both remedial and diversity goals of affirmative action programs. By doing so, they counteracted assertions that affirmative action harmed Asian Americans. Although the remediation of past and present discrimination is no longer a legally accepted justification for affirmative action (Moses, 2016), pro-affirmative action amici nonetheless argued that affirmative action continued to remedy inequities faced by AAPIs. For example, Advancing Justice (2015) contended: [End Page 256]

Contrary to arguments by Petitioner's [Asian American] amici, affirmative action programs ameliorate rather than exacerbate the long history of discrimination and exclusion experienced by AAPIs. Race-conscious admissions programs played a critical role in opening the doors of public and private universities to many AAPIs in the 1960s and 1970s.

(pp. 8-9)

Each brief offered examples of how affirmative action increased opportunities to disadvantaged AAPIs. AALDEF (2012) presented a hypothetical case of a Southeast Asian American student "whose parents are refugees and who attends a majority-minority public high school in Texas," suggesting that the student "may receive a higher [admission] score than she would absent the consideration of race" (p. 37). Likewise, Advancing Justice (2012) acknowledged that UT's review process included a preference for applicants from homes where "languages other than English are spoken" (p. 26), which would presumably benefit large numbers of AAPIs. In fact, Advancing Justice (2012) showed Asian American increases in admission "with the highest percentages [of admission] occurring after UT Austin began considering race in 2005" (p. 26). AALDEF (2015) concluded, "Narrowly tailored, individualized admissions programs like UT's are well suited to take into account the heterogeneity of the Asian American and Pacific Islander community as they pursue the substantial educational benefits of student diversity" (p. 35).

Pro-affirmative action amici also reaffirmed how AAPIs benefited from diversity resulting from affirmative action programs. For example, AALDEF (2012) explained:

It is critical to recognize that benefits from the diversity produced by an individualized race-conscious admissions process accrue to all students, including Asian Americans and Pacific Islanders. Studies have demonstrated that interactions with a diverse student body, both in and out of the classroom, lead to positive learning and civic outcomes for Asian American students.

(pp. 37-38)

Advancing Justice (2012) further outlined how Asian Americans "benefit from and contribute to the diversity produced by holistic admissions decisions … "which was assumed to produce an environment conducive to "training for a diverse workplace, increasing cross-racial interactions, and reducing isolation of racial groups" (p. 15). Moreover, according to AALDEF (2012), "Asian Americans and other groups come to see each other more favorably, which leads to improved intergroup relations and reduced racial stereotyping" (p. 38).

Citing research on how AAPIs benefited from affirmative action, these briefs refuted anti-affirmative action amici's contentions that UT's program harmed Asian Americans, asserting that the policy's use of race was sufficiently narrow and thus did not negatively affect AAPIs. Denouncing claims that a test-score gap was resounding evidence that affirmative action was anti-Asian, AALDEF (2015) explained: [End Page 257]

Even though Plaintiff's Amici repeatedly suggest that Asian American applicants must achieve higher SAT scores in order to gain admission to UT, it merely observes that in 2008, Asian American students admitted through individualized admissions had a mean SAT score of 1346 … compared to a mean score of 1300 for Whites. From this data point, one cannot extrapolate that Asian Americans suffer the greatest harm from UT's policy. These differences cannot be attributed to UT's race-conscious admissions policy because similar variations in SAT scores excited throughout UT's race-neutral admissions period between 1997 and 2004. … Similar gaps have existed and continue to exist in SAT scores for students admitted under the race-neutral Top 10% plan. … It is thus spurious to attack UT's admissions policy based on a longstanding phenomenon that has existed under race-neutral and race-conscious policies alike.

(pp. 18-19)

Accordingly, these briefs dismissed claims that UT's program was anti-Asian. Advancing Justice (2015) asserted that "Where none of the trends that would suggest 'negative action' designed to harm AAPIs is borne out by the record, AAPIs should not be used as an excuse for dismantling crucial affirmative action programs" (pp. 5-6).

Discussions of "negative action" and whether UT's program amounted to rejecting "… an Asian American who would have been admitted had that person been White" (Kang, 1996, p. 3) was another focal point in these briefs. Aware that in some cases the implementation of race-conscious admission policies could harm AAPIs, AALDEF (2015) acknowledged that they:

… do not dispute the disturbing history of discriminatory admission policies, particularly at elite private universities affecting Jews, African Americans, Asian Americans, women, and others. Nor do amici deny the possibility that some institutions may be applying exclusionary admissions policies against minority applicants, including Asian Americans, today. The undersigned amici would vigorously oppose any cap, quota, bias, or other kind of negative action, formal or informal, affecting Asian Americans or any other group.

(p. 15)

Rejecting claims of negative action, Advancing Justice (2012) stated:

Notably, [anti-affirmative action] amici repeatedly conflate the constitutionally permitted consideration of race in programs designed to include certain groups for a compelling purpose under Grutter with impermissible programs to exclude or otherwise take "negative action" against members of a racial group solely because of their race. The suggestion that all considerations of race are uniformly invidious has no basis in the Court's jurisprudence.

(pp. 24-25)

They distinguished between race-conscious policies for diversity and discriminatory policies, through a racial egalitarian ideology that accounts for relevant inequities that justify affirmative action (Moses, 2016). [End Page 258]

Together, pro-affirmative action briefs presented a narrative of AAPIs as a racially diverse and complex population that continues to collectively benefit from affirmative action like other students. Taking up Matsuda's (1997) plea to Asian Americans "to think about the ways in which our communities are particularly susceptible to playing the worst version of the racial bourgeoisie role," they confronted anti-affirmative action briefs' contentions that the policy harmed Asian Americans (p. 150). Addressing an audience of Asian Americans and recognizing the racial cross-roads at which Asian Americans find themselves, Matsuda (1997) shared: "I hope we will not be used to deny educational opportunities to the disadvantaged and to preserve success for only the privileged" (p. 154). Accordingly, pro-affirmative action briefs critically challenged the ways affirmative action opponents used a particular racialized narrative of Asian Americans to combat affirmative action. They also presented their own racial narratives of AAPIs to reassert that they benefited from, and were not harmed by, affirmative action.


Stemming from a deep ideological rift among Asian Americans, each set of amicus briefs presented divergent racialized narratives about who Asian Americans (and Pacific Islanders) are and how they are affected by affirmative action. Asian American advocacy groups presented differing racialized depictions, hoping to influence Supreme Court deliberations over whether the University of Texas's program met the requirements of strict legal scrutiny required by law. Accordingly, each amicus brief represented Asian American racial projects seeking to influence discursive notions of AAPIs as related to affirmative action policy through a broader social process of racial formation (Omi & Winant, 2015). As a result, the racialized narratives of AAPIs and their relationship with affirmative action remain constantly contested.

Briefs submitted in opposition to affirmative action drew from a colorblind ideology and framework of abstract liberalism. They opposed affirmative action based on an individualistic and market-based notion of equal opportunity disconnected from the Civil Rights Movement (Bonilla-Silva, 2006). Like their White affirmative action opponents, these Asian Americans "can appear 'reasonable' and even 'moral,' while opposing almost all practical approaches to deal with de facto racial inequality" (Bonilla-Silva, 2006, p. 28). Furthermore, they dismissed the fact that many Asian Americans continue to be underrepresented in higher education, demonstrating an investment in current stereotypes of Asian American success and hard work.

On the other side of the debate, briefs submitted by AAPI affirmative action supporters argued that AAPIs benefited both directly and indirectly from affirmative action, aligning themselves with African American and [End Page 259] Latinx interests through a racial egalitarian ideology. These organizations also acknowledged the great diversity of AAPIs, asserting that Southeast Asian Americans and Pacific Islanders experience significant barriers to educational success like other students of color, primarily through a socioeconomic class analysis. This may suggest that these groups consider both class and race to be important in the application of affirmative action policy. In doing so, they presented a complex narrative of AAPIs, with some benefiting as a population experiencing disparities (i.e., Southeast Asians and Pacific Islanders) and others (i.e., presumably higher achieving East and South Asian Americans) who also benefit from racially diverse environments.

In addition to illuminating the importance of ideological differences in the affirmative action debate (Moses, 2016), this project, the Supreme Court decision, and Justice Alito's dissenting opinion in Fisher II (2016) suggest that racialized narratives of Asian Americans will play a key role in future cases over affirmative action. While Justice Kennedy's opinion in Fisher II directly cited AALDEF's (2015) brief, dismissing claims that UT's program harmed Asian Americans, Justice Alito's dissent quoted AALF's (2015) brief to suggest that the policy discriminated against Asian Americans. Indeed, this CDA study illuminated how a racialized minority group can leverage power and racialized discourse to influence policy debates within broad processes of racial formation.

The reviewed briefs represented an ongoing power struggle over higher education, which is an important ideological state apparatus (ISA) that shapes social relations of race and power (Althusser, 2004). In the process of racial formation, ISAs are used to control the reproduction of inequalities and social structures, mainly limiting power to a White elite (Althusser, 2004; Omi & Winant, 2015). Educational ISAs allow the ruling class to maintain hegemonic social control; they serve to inculcate the masses with hegemonic ideologies, and to sort individuals into an inequitable social structure (Althusser, 2004). Still, education remains an important place of ideological struggle and resistance against the status quo (Althusser, 2004; Giroux, 1983).

Because "race does ideological and political work" through the process of racial formation (Omi & Winant, 2015, p. 111), it is important to understand how and why stakeholders, like AAPIs, are engaged in racial work to determine who can access selective institutions. Therefore, the Fisher cases bear important racial implications for college access as well as larger aspects of sociopolitical life in the U.S. Because prestigious college graduates often assume leadership in powerful national and global organizations, admission at these institutions signals entry into the highest of social classes (Guinier, 2015). Thus, governing parameters of admission can determine the racial composition of the ruling class, and affirmative action threatens the maintenance of its whiteness (Lipsitz, 2006). [End Page 260]

This project suggests the need for additional research on how Asian Americans engage in processes of racial formation. Recognizing the power of racial meanings and their fluidity as demonstrated by the Jewish racial model of attaining whiteness (Brodkin, 1998), Asian American affirmative action opponents distanced themselves from Latinxs, African Americans, and even Asian Americans who lag behind in academic achievement. Are Asian American affirmative action opponents, who are actually more accurately described as Chinese American, trying to attain whiteness? They seem to be walking a fine line between simultaneously highlighting their racial minority status and laying claim to culturally superior attributes to advance a colorblind ideology that is fundamental to reproducing white supremacy. Yet, their assumptions of Chinese American supremacy and a deficit-thinking framework that dismisses other Asian Americans and minorities faced with disparities align with color-blind racism and white supremacy (Bonilla-Silva, 2006). This analysis suggests that these Chinese Americans wish to attain whiteness and its associated privileges, following the Jewish racial model of becoming white yet maintaining ethnic ties.

In contrast, pro-affirmative action Asian Americans embraced socioeconomic disparities among AAPIs and racially aligned themselves with other communities of color. To counter the high achievement stereotype inherent to the racial mascot imagery and to argue that AAPIs benefit from affirmative action like other students of color who presumably lag behind White middle-class standards of achievement, they too followed a deficit-thinking framework that remains prevalent in discourses over racial inequalities in education (Valencia, 1997). Although they asserted that high achieving Asian Americans still benefit from diversity resulting from affirmative action, this rhetorical approach fell short in countering the hegemonic Asian American success narrative. In other words, they stressed the underrepresentation of Southeast Asian Americans and Pacific Islanders to argue the benefits affirmative action, but they did not fully account for the over-representation of East and South Asian Americans. Yet, they maintained a broad AAPI panethnic identity in their efforts supporting affirmative action.

This study serves as one example of Asian Americans exercising agency in the process racial formation. Through the amicus briefs, they demonstrated strikingly different ways of representing themselves, undoubtedly reflective of how they wish to be perceived. In concert with Omi and Winant's (2015) racial formation theory, this study suggests that the racialization of Asian Americans, particularly in relation to affirmative action debates, is continually evolving and hotly contested, even within Asian American communities.

Our analysis reflects a shift in understanding how interest groups can engage in processes of racial formation, as demonstrated by the involvement of Asian Americans in constructing their own racial narratives. New [End Page 261] federal complaints targeting affirmative action filed by and on behalf of Asian Americans against Ivy League universities, as well as the development of Asian American coalitions for affirmative action, illustrate the continuing battle over the racial construction of Asian Americans. Our study confirms Omi and Winant's (2015) claim that racial groups can and do exercise political agency in attempts to alter, or maintain, the U.S. racial order and challenge, or maintain, systems of racial oppression.

Theoretically, the difference between these racial narratives bears implications on the notion of panethnicity. According to scholars of panethnicity, "the development of bridging organizations and solidarities among subgroups of ethnic collectivities that are often seen as homogeneous by outsiders" represents collective political responses to shared structural inequalities (Lopez & Espiritu, 1990, p. 198). This study suggests that distinct Asian American and Pacific Islander panethnic identities may be emerging along the lines of economic class, educational attainment, and ideologies of race and racism. This racial division deserves additional research, as this debate spotlights the instability of panethnic identities. Moreover, it raises the following question: Who should policymakers and legal advocates recognize as legitimate representations of Asian American interests in affirmative action?

To answer these questions and to inform democratic policy debates, scholars have an important responsibility to produce more research on AAPIs, race, and education (Moses, 2016; Nakanishi, 1995). This study was limited to eight selected amicus briefs representing AAPI interests. Future research on the racialization of AAPIs in higher education policy discourse can account for how others who do not identify as AAPIs explicitly and implicitly racialize AAPIs and the implications of their racial work. For example, analysis of the relationship between how AAPIs and others racially frame the population can further reveal whether and how racially minoritized groups can exert power over policymaking structures. We also encourage affirmative action advocates to account for the complex experiences and demographics of AAPIs to strengthen the defense of affirmative action through a framework of inclusive racial justice. Pro-affirmative action AAPI briefs can serve as an initial guide to develop strategies for defending affirmative action that account for the complexities of Asian Americans in these evolving racialized debates.


The submission of amicus briefs by AAPI organizations in both Fisher cases presented an opportunity to understand how and why AAPIs are representing themselves in public discourse. This study revealed how Asian Americans actively engaged in an ideological struggle, presenting racialized narratives about themselves to influence a policy debate. In doing so, some [End Page 262] of their racialized narratives aligned with whiteness and color-blind ideology, while others sought to disrupt how Asian Americans were presented as racial mascots against affirmative action through a racial egalitarian ideology. The racial terms of current federal cases on affirmative action in admissions have been outlined by the briefs reviewed in this study. Arguments presented by anti-affirmative action Asian American briefs parallel how Blum and SFFA are racially depicting Asian Americans in their lawsuits against Harvard and the University of North Carolina.

It has become clear that Asian Americans, and to some extent Pacific Islanders, will play an increasingly central role in the debate over affirmative action. Therefore, additional research is needed to inform rigorous democratic discourses over the policy challenge of balancing ideals of equality and liberty (Moses, 2016). Reflecting on the 1980s anti-Asian admission fight, Nakanishi (1995) stated that the "… controversy might not have escalated and become so explosive if there had been a body of knowledge that all parties … could have used to test … assumptions and assertions about Asian/Pacific American college applicants" (pp. xi-xii). Understanding how AAPIs are engaged as subjects, and not just as objects, in policy discourses can advance an understanding of the complex nature of racial politics, ideological and discursive strategies in affirmative action debates, and avoid the silencing racial mascot phenomenon.

OiYan A. Poon

Dr. OiYan Poon is an assistant professor of higher education and director of the Center for Racial Justice in Education and Research at Colorado State University. Her research focuses on racial politics and discourses in higher education.

Megan S. Segoshi

Dr. Megan Segoshi is a consultant for Campus Labs. She completed her Ph.D. in hig her education at Loyola University Chicago.


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1. Although Asian Americans as a collective racial group are highly represented in college enrollments, research has demonstrated that Southeast Asian Americans continue to face significant barriers to high school completion, college entry and completion, and that most Asian Americans do not attend elite institutions (CARE, 2008), which may explain the inclusion of Southeast Asian Americans as targets in affirmative action programs in states like Wisconsin.

2. Unlike the Bakke (1978), Grutter (2003), and Fisher (2013; 2016) cases, which claimed violation of the Equal Protection Clause of the Fourteenth Amendment, SFFA is claiming that affirmative action, holistic review practices, and legacy preferences violate Title VI of the U.S. Civil Rights Act. The legal implications of this difference is beyond the scope of this article.

3. Race and ethnicity, though separate concepts, bear important relevance to Asian Americans and Pacific Islanders (AAPIs). While racial identity refers to group membership based on shared experiences of systematic, institutionalized discrimination, ethnicity refers to one's specific ethnic or cultural identity (i.e., Vietnamese, Samoan, etc.). Racial and ethnic identity may differ in their salience for AAPIs, who vary in their other social identities, such as generational status or immigration history (Accapadi, 2012). For the purposes of this paper, AAPIs are treated as a diverse racial group, comprised of many distinct ethnic identities.

4. The term Asian American and Pacific Islander (AAPI) is a collective, panethnic identity representing a racial coalition between Asian Americans (i.e., Filipinxs, East Asians, South Asians, and Southeast Asians) and Pacific Islanders (i.e., Native Hawaiians, Samoans, Tongans, Chamorro, and other Pacific Islanders). Initially emerging from the U.S. Census Bureau's decision to cluster the two relatively small populations together in 1980, by 2000 Pacific Islander organizations advocated for state recognition of Pacific Islanders as a distinct racial group.

5. Ironically, Unz is well-known for advancing anti-immigrant policies (Willon, 2016).

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