Asian American Lawyers: Then and Now

by Rebecca Cao

Introduction

Conversations about Asian Americans have only just captured national attention as anti-Asian hate crimes have escalated amidst the COVID-19 pandemic. Within the past two years, numerous discussions about Asian American identity, stereotypes of Asians, and America’s egregious history of exclusion against Asian Americans have surfaced, and, most recently in July 2021, Illinois became the first state to require the teaching of Asian American history in public school classrooms. As an aspiring lawyer who has paid attention to and often participated in such discourse, I have especially wanted to learn more about Asian American lawyers, who I believe can further enrich and complicate our understanding of Asian Americans overall. In what context did the first Asian American lawyers emerge? Who were some of the most prominent Asian American lawyers in the past, and how have they shaped American law? What are the unique obstacles that Asian American lawyers endure today? These are just some of the questions that have long interested me, and I will attempt to answer them in this article. 

While I have discovered a few sources that already examine these issues (which will be referenced later), this article will aim to provide a more cohesive narrative demonstrating the overall journey of Asian American lawyers from the 1880s to modern years. Its purpose is twofold: to briefly trace the emergence of Asian American lawyers throughout American history, and to illuminate the present conditions and challenges of Asian American lawyers today. To be clear, it is beyond the scope of this article to be comprehensive; it does not attempt to identify every single Asian American lawyer in Asian American history, and neither will it attempt to explicate every event or idea relevant to this topic. Instead, it will focus on what appears to be the most salient, recurring themes that characterize the Asian American experience in the legal field. More information about Asian American lawyers will likely be unearthed in later years, but I hope that this article will inspire more conversations about their impact and struggles in the meantime. 

Asian American Lawyers Throughout American History 

The first Chinese American licensed to practice law in the U.S. was Hong Yen Chang, born in Guangdong, China, who immigrated to America in 1872 as one of the 120 Chinese boys sent to study in the U.S. through the Chinese Educational Mission. Chang had arrived during a time of escalating anti-Chinese sentiment in America. One reason for such racial hostility included claims that the Chinese were inherently inferior, as demonstrated in the California Supreme Court’s 1854 ruling in People vs. Hall where Chief Justice John Murray wrote that the Chinese were “incapable of progress or intellectual development beyond a certain point, as history has shown.” As the number of Chinese immigrants working in America’s gold mines, factories, and agriculture grew, allegations from other laborers in America’s economy that the Chinese posed an economic threat further exacerbated racial tensions. Pressured by such xenophobia pervading the nation, the government eventually passed the Chinese Exclusion Act of 1882, which suspended skilled and unskilled Chinese laborers in mining from immigrating to the U.S. for ten years (and it would eventually be extended for another 10 years by the 1892 Geary Act, which also required all Chinese living in the U.S. to carry identification papers—which many observed were similar to “dog tags”at all times or suffer deportation). When Chang sought admission to the New York State Bar Association, the state’s Supreme Court rejected him since the Exclusion Act barred him from U.S. citizenship. But after Chang pressured the Association for two years, they eventually issued him a naturalization certificate and allowed him to reapply to the bar again. He was admitted in 1887. However, Chang was not as fortunate when he later moved to California, where the state’s Supreme Court deemed that his naturalization certificate from New York was invalid and thus rejected him from the bar. Chang was never allowed to practice law in California, although thanks to petitions from groups of law school students such as the Asian Pacific American Law Students Association, he was posthumously granted admission to the state’s Bar Association 130 years later in 2015. The first Chinese American lawyer in California wouldn’t emerge until nearly four decades after the Court’s decision in Chang’s case, when You Chung Hong, a son of Chinese immigrants, passed the state’s bar in 1923. He worked to repeal the Chinese Exclusion Act of 1882 that had obstructed Chang’s admission to the bar, testified in the U.S. Senate on immigration laws, and in 1933, became the first Chinese American permitted to practice before the Supreme Court. 

Alongside the Chinese Exclusion Act, the government also passed legislation thwarting South Asians from entering the U.S during this time. In 1917, the U.S. banned immigration from the entire Indian subcontinent through the Barred Zone Act. In the 1923 case, U.S. v. Bhagat Singh Thind, the Supreme Court ruled that Southeast Asians were ineligible for naturalization. An immigrant from Punjab, India, Dalip Singh Saund campaigned against these discriminatory policies. His efforts eventually resulted in Congress passing the Luce-Celler Act of 1946, which permitted more South Asians to immigrate to the U.S. and become U.S. citizens. After becoming a naturalized U.S. citizen in 1949, Saund was elected to Congress in the House of Representatives—and re-elected twice—thus becoming the first Asian American, Indian American, and first Sikh American to do so. 

More Asian American lawyers emerged during and shortly after the U.S.’ participation in World War II. For example, Minoru Yasui, a Japanese American lawyer, established a practice in Portland to help Japanese Americans affected by Executive Order 9066, by which President Franklin Delano Roosevelt authorized the internment of Japanese Americans and noncitizens from Japan. Yasui also refused to evacuate to an internment camp and was consequently sentenced to a year in prison. When he was released in 1944, he practiced law in Colorado, where he advocated for the Japanese community in America to receive reparations. During this time, Fred Korematsu, a son of Japanese immigrants, was arrested for resisting his displacement to an internment camp; this incident would eventually result in Korematsu vs. U.S. (1944), where the Supreme Court upheld Executive Order 9066—but nearly four decades later in 1983, Dale Minami, an Asian American lawyer, would reopen and help overturn this decision.

Furthermore, although they are often overlooked, Asian American lawyers directly served in America’s war efforts. Herbert Choy, a graduate of Harvard Law School, served in the U.S. Army Judge Advocate General’s Corps (from 1942-1946), which “represents the legal interests of soldiers and the U.S. Army,” according to the U.S. Army Judge Advocate General’s Corps brochure. When he returned to America, he became the first Korean American in the United States admitted to the bar. Another Asian American graduate of Harvard Law School, Hiram Fong, served as Judge Advocate in the U.S. Air Force, after which he became the first Asian American U.S. Senator from 1959 to 1977 from Hawaii and the first Asian American to receive delegate votes to be nominated for the President of the United States. 

Asian American lawyers also actively contributed to the social change movements that swept America in the 1960s—most notably, Patsy Mink, a third-generation Japanese American from Hawaii and graduate of University of Chicago Law School. Several years after being rejected from all jobs she applied to because of her interracial marriage, Mink became the first Asian American woman to serve in Congress when she won a seat in the U.S. House of Representatives in 1964. As a Congresswoman, Mink helped address the needs of the women’s rights movement through sponsoring the first childcare bill, in addition to passing the 1974 Women’s Educational Equity Act which allocated $30 million a year for programs in schools that promoted gender equality, improved women’s academic and job opportunities, and expunged gender stereotypes from educational curricula. She even co-wrote the Title IX law which stated that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” Mink also championed educational reform more broadly as she pushed for legislation introducing bilingual education, in addition to introducing the first Early Childhood Education Act. 

Asian American Lawyers in the Modern Era

The population of Asian American lawyers has grown considerably since the 2000s. According to “A Portrait of Asian Americans in the Law,” a 2017 report published by Yale Law School and the National Asian Pacific American Bar Association and compiled by Eric Chung, Samuel Dong, Xiaonan April Hu, Christine Kwon, and Goodwin Liu, “the number of Asian American lawyers has grown from 20,000 [in 2000] to 53,000 [in 2017], comprising nearly 5 percent of all lawyers nationwide.” Additionally, the report establishes that over the past three decades, the number of Asian Americans enrolled in law school has nearly quadrupled to 8,000, demonstrating the largest spike of any racial or ethnic group—and that they are more likely to attend highly ranked law schools. But it also notes that most recently in 2016, the number of Asian American students entering law school in general was the lowest in more than 20 years. The report doesn’t attribute an exact reason for such a steep decline and recommends further research into this trendline. 

With respect to the numerous Asian American lawyers who are already in the field today, however, data from the report reveals that very few of them hold leadership positions in the legal profession. Of course, while Kamala Harris has become the first South Asian American Vice President, most Asian American lawyers in general struggle to become leaders. Although 7.05% of respondents in the Vault and Minority Corporate Counsel Association’s (Vault/MCCA) 2015 survey of 225 law firms were Asian American, the data indicated that only 2.09% of them had seats on executive management committees,  2.32% on partner review committees, and 3.78% on associate review committees. Moreover, few Asian Americans serve as state judges. Even in states such as Maryland and New York—both home to a significant number of Asian Americans—less than 1 percent of their state appellate or general jurisdiction trial judges were Asian American in 2014. Even fewer Asian Americans serve in supervisory positions at the federal level; the “Portrait” highlights that in 2016, there were only three Asian American United States Attorneys in office—out of all 94 available positions—with one in each of the following areas: Hawaii, Guam and the Northern Mariana Islands, and the Southern District of New York. Data from a 2014 survey in the “Portrait” also found that, out of the 2,437 elected prosecutors in the nation, only four were Asian American. Asian Americans also rarely serve in the higher ranks of academic administration at law schools. In 2013, only three Asian Americans were law deans out of the 202 in the country, and only 18 Asian Americans out of the nation’s 709 associate or vice deans. 

Why, despite demonstrating an overall and significant growth of lawyers, is there such a dearth of Asian Americans working as leaders in the law? A possible answer may include the model minority myth, which stereotypes Asian Americans as hardworking and “smart,” but too passive and socially inept to hold leadership positions. Indeed, in Elisabeth Frater’s article, “Asian American Attorneys: Shattering Conventional Norms,” Reed Smith Partner Min S. Suh confirms that “there is a perception, especially in the legal community, that Asian American lawyers are not suitable for management or leadership positions due to the stereotype that Asian Americans lack the personality to influence and lead others.” Joseph J. Centeno, a partner with Philadelphia’s Obermayer Rebmann Maxwell & Hippe, further buttresses this point: he adds that “in our society, to be a leader in any industry, you have to be bold, you have to take risks, and you have to be out there and network and create relationships with people… but Asian Americans [are often seen as] not being aggressive or assertive and being meek or sometimes a geek.” In the survey featured in the “Portrait,” many Asian American lawyers indicated that, throughout their experience in the legal profession, the most common traits that they were associated with at their jobs were “quiet,” “introverted,” “passive,” and “awkward.” Few to none of them reported that they believed they were seen as “assertive,” “extroverted,” or “loud.”

The misconception of Asians as perpetual foreigners in America may also account for another reason why Asian Americans struggle to further advance in the legal field. In the “Portrait” survey, one Asian American lawyer reported that “[she’s] an immigration lawyer. When [she] go[es] to immigration court, [she’s] mistaken for the alien.” Moreover, the Western fetishization of the sexualized, “exotic” Asian woman also poses significant obstacles for female Asian American lawyers that may thwart them from further elevating their legal careers. The same immigration lawyer from the “Portrait” survey mentioned above also revealed that “when [she] go[es] to jail to visit a client, [she’s] mistaken for their girlfriend.”  Another respondent in the “Portrait” survey explained that “being an Asian woman added another layer as men were often more interested in expressing themselves as romantic prospects as opposed to colleagues.” 

Moving Forward 

Sources confirm that Asian American lawyers have demonstrated outstanding progress since the 1880s, despite having once been barred from practicing law. Yet they continue to face significant obstacles in the profession. Although Asian American lawyers have helped shape, build, and change American law for nearly 200 years, they are still reduced to outdated, fictitious stereotypes that preclude them from becoming leaders in the field today. Now it is time for those not only in the legal field, but also the rest of America in general, to reflect on these realities and consider how we should move forward and treat our Asian American lawyers in the future to help them reach their full potential.

The U.S. Criminal Justice System Needs to Start Treating Children Like Children

by Bianca Ortiz

On any given day, tens of thousands of incarcerated children are forced to eat, sleep, and learn in  juvenile detention centers and adult prisons across the United States. 

News stories of children being charged for harmless behaviors have become increasingly publicized, with examples ranging from not completing homework and participating in cafeteria food fights to stealing 25-cent candy. While there are child offenders who commit more serious crimes, they all deserve fair trials and sentences that take into account their young age.  

Research from Stanford University shows that children have difficulty understanding the long-term consequences of their decisions and lack cognitive control during emotional situations. Experts also link moral conscience to the prefrontal cortex, which does not fully develop until adulthood and is often delayed in children who experience trauma as a result of being victimized early in life.

When a child is charged with a crime, a court will decide whether they will be tried as a child or an adult based largely on the severity of the crime. Those with less serious offenses are treated as children and have their cases heard by juvenile judges that have the power to remand them to a juvenile detention center while those treated as adults may be remanded to an adult prison with protective custody.

Meanwhile, parents of child offenders are forced to foot the bill for nightly housing in juvenile detention centers. Laws requiring these parental payments were meant to avoid burdening taxpayers and to encourage parents to keep their children out of trouble. However, the reality is that most of these parents are low-income and incapable of paying. Although some states have decided to end this practice, laws about charging parents are highly decentralized and can vary from county to county, creating large disparities.

To combat the stress of incarceration on young children and their parents, both New York and New Jersey have recently passed legislation to raise the age at which children may be tried in court as adults. However, the fact remains that in 22 states, there are no minimum age requirements for transferring a child into adult criminal courts, meaning that a child of any age in those states could end up in an adult prison for the rest of their life.

The U.S. Supreme Court has acknowledged the issue of excessive sentencing for child offenders in landmark cases Roper v. Simmons (2005) and Graham v. Florida (2009), in which the Court reversed decisions to impose the death penalty on a juvenile offender and to sentence a minor to life without parole for a non-homicidal offense, respectively. The Supreme Court opinions to reverse these prior holdings were made on the grounds that the childrens’ original sentences violated the U.S. Constitution’s Eighth Amendment prohibition on “cruel and unusual punishment.”

Rights for juvenile offenders were expanded further by the Supreme Court in Miller v. Alabama (2012) and Montgomery v. Louisiana (2016). In Miller v. Alabama, Miller appealed his sentence of life in prison without parole for a homicidal offense on the grounds that punishing a 14-year-old for the rest of his life was cruel and unusual. In a 5-4 decision, the Supreme Court reversed his sentence, with the majority opinion concluding that life without parole is a disproportionate punishment for a juvenile, thus affirming that sentencing for child offenders must be treated as constitutionally different from adult offenders.

This decision was reaffirmed in Montgomery v. Louisiana, in which Miller v. Alabama was used as precedent to assert that sentencing schemes that impose mandatory life sentences onto juvenile offenders are unconstitutional. The Court held a 6-3 decision in favor of Montgomery, stating that the Miller decision applied retroactively to Montgomery’s case. 

In the majority opinion, Justice Kennedy wrote, “In light of what this Court has said in Roper, Graham, and Miller about how children are constitutionally different from adults in their level of culpability, […] prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.”

Montgomery, who is 73 years old but was just 17 years old at the time of his crime, is now eligible to be considered for parole. His case has also opened the door for other cases of child offender sentencing decisions to be re-evaluated based on this new standard. Thus far, Montgomery v. Louisiana has allowed more than 500 offenders to be released on parole. 

However, the Supreme Court ought to recognize the capacity for rehabilitation of child offenders beyond the scope of life sentences. Even short stays in juvenile centers can have a profound negative impact on children due to harsh living conditions. For example, two juvenile correctional facilities in Wisconsin were recently hit with a class-action lawsuit in J.J. v. Litscher (2017) for keeping children in solitary confinement, spraying them with mace, and denying them therapeutic programs. 

Confinement in juvenile centers has become particularly harmful during the COVID-19 pandemic, which has caused centers to cut visits from families and friends to prevent the spread of the virus, leaving thousands of incarcerated young people feeling extremely isolated.

Despite clear issues, some have argued that punishing minors will serve a positive long-term function by teaching children at a young age that their actions have consequences. The problem is that not all children are subject to the same punishments. 

While white children make up the largest share of juvenile detainees in 45 of 50 states in the U.S. as of 2019, children of color — particularly African American children — are disproportionately represented in juvenile detention centers and are referred to juvenile courts at a higher rate than their white peers. This can be attributed to a number of factors, the most troubling of which include racial bias from judges and prosecutors.

In 2018, the Senate reauthorized the Juvenile Justice and Delinquency Protection Act to update national standards on the judicial treatment of minors. The bill, introduced by Senators Chuck Grassley (R-IO) and Sheldon Whitehouse (D-RI) aims to create restrictions on locking children up for statute offenses (eg. skipping school or running away from home), reduce racial disparities in the juvenile justice system, and support alternatives to incarceration for nonviolent offenders. Proposed alternatives include behavior management programs, problem-solving courts, street and home-based services, and drug abuse prevention and education services.

Experts in the fields of psychology and constitutional law have made steps towards affirming that children are not as capable as adults of understanding the consequences of their actions. Now, federal, state, and local laws must reflect this truth and discontinue practices that are overly punitive and insufficiently rehabilitative towards child offenders who cannot yet fully appreciate the weight of their transgressions.

Affirmative Action Admissions Regimes are Unconstitutional: Strict Scrutiny Should Mean Something

by Myles McKnight and Benjamin Edelson

Harvard’s affirmative action saga continues, or so we hope. After losses in the Federal District Court and the First Circuit Court of Appeals, the non-profit group seeking to do away with Harvard’s race-obsessed admissions regime has filed a Petition for Writ of Certiorari in our Nation’s highest tribunal. Students for Fair Admissions petitions the Court to consider overruling Grutter v. Bollinger, the narrow 2003 decision which held that the University of Michigan Law School’s race-conscious admissions program was constitutional because it satisfied strict scrutiny. Grutter’s loose reasoning leads us to think that the Court should overrule, so we’ll canvass just one reason for believing so here.

Whatever you make of the merits of Harvard’s affirmative action program, there are constitutional questions that lurk beneath the operation of any state-sponsored policy which prescribes differential treatment on the basis of race. No one denies this. Policy is one thing, constitutionality another. And when government policy (or the policy of institutions that receive government funding, like Harvard) makes racial classifications, reviewing courts must apply the test of strict scrutiny to determine whether or not those policies meet constitutional muster.1 For the unfamiliar: A race-conscious policy satisfies strict scrutiny if it 1) furthers a compelling (i.e. necessary) state interest, and 2) is “narrowly tailored” such that the policy minimizes, to the extent possible, differential treatment on the basis of race. If a policy discriminates on the basis of race only to the degree necessary to meet a compelling interest, it stands the test of strict scrutiny. 

Harvard argues that its policy meets this standard. We think that’s wrong. In fact, we don’t think an affirmative action regime like Harvard’s can ever satisfy strict scrutiny for reasons we’ll present below. But first, some preliminaries. 

The compelling interest claimed by the law school in Grutter was the procurement of the educational benefits that stem from having adequately diverse classrooms (what Justice Thomas calls “classroom aesthetics”).2 In fact, of the interests historically offered as justifications for affirmative action admissions practices, the Court has held that this is the only one that can be compelling.3 Before turning to whether or not this interest actually is compelling, we should point out that there is serious reason to doubt that this interest is truly the one that animates affirmative action policies like Harvard’s. 

Let’s grant, for a moment, that the end to which the policy is tailored is the procurement of the educational benefits that stem from classroom diversity. (The alleged compelling interest is not racial diversity qua racial diversity, but rather the educational benefits that stem from that diversity). 

Why limit the diversity to racial diversity? If the interest in the educational benefits that stem from racial diversity is indeed compelling, presumably there are other forms of diversity that would produce similarly significant, and similarly valuable, educational benefits. And those would be compelling too, right?4 

We can, in fact, think of other diversity domains wherein composition shifts would shock the academic status quo at elite universities just as much as or even more than adjustments in racial composition, thereby providing educational benefits at least as tangible and significant. Here are a few: political, ideological, and religious diversity among professors and students. Nevertheless, it is no secret that evangelical Christians and conservatives go dramatically underrepresented at institutions like Harvard or, say, Princeton. Can it really be that the educational benefits that stem from racial diversity are compelling interests while the educational benefits that stem from political, ideological, and religious diversity are not? Indeed, in the context of academe, where the cause of truth-seeking through academic discourse is advanced, one would think that the most prized form of diversity would be ideological. There can be little doubt that healthy ideological diversity would have at least as tangible an impact on the ability of students to navigate an ideologically, racially, and religiously diverse world as racial diversity would.

All of this should give us real pause before buying into the notion that the educational benefits that stem from racial diversity are the real interests at play. To us, it seems more plausible that the interest is something akin to the following: the rectification of societal ills and tragedies of minority underrepresentation. We think that this is a laudable interest, but it is not the one once alleged by the University of Michigan Law School or the one alleged by Harvard today. Moreover, the fulfillment of this specific interest by affirmative action was explicitly thrown away by Justice Powell in Bakke.

If you disagree with us so far, you might be tempted to respond: “Ah, well, conservatives and evangelicals are not historically marginalized groups. It’s wrong to analogize intellectual and religious diversity to racial diversity in this way!” Well, you’ve proved our point: Your interest lies in the rectification of historic societal ills.  

Let’s leave this aside. As a matter of fact, we do have reason to conclude that the asserted interest of procuring educational benefits is not the one that the Court should evaluate here. This is because the phrase “educational benefits that flow from racial diversity” is actually a gross misstatement of the more precise interest motivating Harvard’s scheme. We construe it as follows: the procurement of the educational benefits that stem from racial diversity, consistent with the maintenance of prestige and the general standards of the institution.

In our view, that second clause (“…prestige and general standards of the institution”) is a necessary component of the true interest to be weighed. Before explaining why this is the case, we should first take care to note that the maintenance of institutional prestige couldn’t possibly be a compelling interest. The compelling interest doctrine, as applied to race-conscious policies, provides the courts with a mechanism to smoke out illegitimate racial differentiation in all but situations of total necessity; “compelling” does not mean “preferable” or “laudable.” As historically applied to race-conscious policies, strict scrutiny has rejected interests even as important as the “best interests” of children. Race-conscious policies have otherwise typically stood only when they serve interests of such immense necessity as national security, the functionality of government, and safety from violence.5 In any case, should you prefer a looser conception of “compelling interest” than we do, it’s still immensely difficult to see how the maintenance of institutional prestige could ever rise to the qualification of compulsory. To quote Justice Scalia: “If that is a compelling state interest, everything is.”

So, if we’re correct in construing the relevant interest as we do, an affirmative action scheme like Harvard’s cannot pass the test of strict scrutiny. And if that is the case, it is unconstitutional. So, why are we correct?

Suppose you were devising an admissions scheme designed to secure the educational benefits that stem from classroom diversity. You’re not interested in prestige or maintaining the “high standards” for admission that make your university so elite – you know that those interests couldn’t be compelling. So, how do you do it? Your policy will need to be narrowly tailored, meaning it will have to be as race-neutral as possible while still increasing the diversity of your classrooms. If your interest lies only in the educational benefits that flow from increased racial diversity, perhaps you’ll come up with a lottery system so that your admitted class will be more reflective of a diverse applicant pool. Or, maybe you’ll adopt an approach to evaluating applications that gives less weight across the board to factors that, on average, tend to cut against the admissions chances of disadvantaged minority students (e.g. SAT scores). This would substantially reduce the disadvantage faced by applicants from historically marginalized communities. Because reduced consideration of such factors would apply to all applicants, you might not have to consider racial background at all.

But instead, you opt for a scheme that deliberately favors applicants from some minority groups by applying different standards of admission to students on the basis of their racial identities.6 Anyone can see that that scheme is not narrowly tailored to the interest in the way that the aforementioned alternatives might be; there are more race-neutral ways to attain sufficient classroom diversity than this scheme. Indeed, such a race-conscious admissions scheme can only be narrowly tailored if the interest itself is adjusted to accommodate the claim of narrow tailoring. Thus, an affirmative action admissions regime like Harvard’s, which applies different standards to different races in order to produce classroom diversity without sacrificing any degree of prestige, is only narrowly tailored in the context of an interest which includes the maintenance of the prestige secured by exclusive admission standards. And the interest in prestige and exclusivity, as we have suggested, cannot be compelling.

Importantly, we haven’t passed judgment on the policy merits of affirmative action. We believe that the rectification of societal ills and tragedies of minority underrepresentation are important and laudable interests. They are, moreover, perfectly constitutional interests. However, this does not mean that the Constitution gives wide latitude to policymakers who wish to realize these aspirations by devising policies that prescribe differential treatment between races. Rather, our Nation’s reckoning with its painful history of racial discrimination has led to the application of a rigorous legal safeguard designed to smoke out all but the most indispensable considerations of race. That safeguard is strict scrutiny. For a policy that discriminates between individuals on the basis of race to survive a constitutional challenge, it must do battle with strict scrutiny. The sort of policy we address here loses that battle.


1 Adarand v. Peña, 515 U.S. 200 (1995)

2 Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325 (2003)

3 See Justice Powell’s opinion in Bakke. Bakke, 438 U.S. 265 (1978)

4 It’s true that many schools, including Harvard, consider certain other forms of diversity during the admissions process (Harvard also considers geographic diversity, for example). 

5 From Justice Thomas in Grutter: “Where the Court has accepted only national security, and rejected even the best interests of a child, as a justification for racial discrimination, I conclude that only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a ‘pressing public necessity.’ Cf. Lee v. Washington, 390 U. S. 333, 334 (1968) (per curiam) (Black, J., concurring) (indicating that protecting prisoners from violence might justify narrowly tailored racial discrimination); Croson, supra, at 521 (Scalia, J., concurring in judgment).”

6 That this is the mechanism by which affirmative action policies achieve their ends is not a subject of debate.

This article was edited on April 27, 2021.