Abstract

Excerpted From: Vinay Harpalani, Missing the Trees for the Forest: How Progressives Neglect Anti-Asian Animus in Magnet School Admissions Controversies, 113 California Law Review 939 (June, 2025) (223 Footnotes) (Full Document)

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), the next constitutional battleground for diversity involves race-neutral admissions policies at public magnet schools. The Pacific Legal Foundation (PLF) 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. The Supreme Court declined to review the Fourth Circuit's ruling, over a dissent by Justice Samuel Alito. 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. But Justice Alito again dissented, and Justice Neil Gorsuch also opined that while the Boston case was moot, it did raise issues that need to be resolved. Eventually, the Court will likely confront the issues raised in Coalition for TJ and the magnet school cases.

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. 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”) 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.

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. While we are often exalted as a high-achieving “model minority,” Asian Americans encounter a complex interplay of valorization and ostracism, even in elite educational spaces where we are highly represented. Some progressives have pointed to the high representation of Asian Americans in these spaces as a reason to dismiss allegations of anti-Asian animus. 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.

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. 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 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.

[. . .]

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. 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. 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. Faculty and administrators at various universities made anti-Asian comments, and there were allegations of anti-Asian discrimination in admissions, including one that was proven at UCLA. 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.” Berkeley Professor Ling-Chi Wang, a founder of Chinese for Affirmative Action, compared elite universities' disdain for high Asian American enrollment to the “Jewish problem” they invoked in the early twentieth century. 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.”

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. 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). This is also precisely what one would expect under Bell's interest-convergence theory.

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. 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. If progressives truly want to include Asian Americans in the multiracial coalitions they have long talked about, 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. 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.

Vinay Harpalani. Don L. & Mabel F. Dickason Endowed Chair in Law and Professor of Law, University of New Mexico School of Law.