WRC Director Featured on Boston University Law Review
Boston University Professor Vinay Harpalani published an article titled, Americans, Racial Stereotypes, and Elite University Admissions, 102 B.U. L. Rev. 233 (2022) in honor of the Boston University inaugural Diversity and Inclusion issue. Assistant UIC Law Professor and director of the Legal Writing Resource Center Shakira Pleasant was among three other scholars to submit responses to the article, to which Professor Harpalani issued follow up replies.
View Professor Pleasants article and Professor Harpalani's response below.
"A Black Man May Eliminate Race-Conscious Admissions in the United States" Heading link
Shakira D. Pleasant*
Online Symposium: Vinay Harpalani’s Asian Americans, Racial Stereotypes, and Elite University Admissions
103 B.U. L. Rev. Online 147 (2023)
An invited response to Vinay Harpalani, Asian Americans, Racial Stereotypes, and Elite University Admissions, 102 B.U. L. Rev. 233 (2022).
Professor Vinay Harpalani’s (Harpalani) article—Asian Americans, Racial Stereotypes, and Elite University Admissions—shares undeniable accounts of discrimination against Asian Americans.[1] However, it is the framing of negative action[2] and its impact on Asian American admissions that is most intriguing.
When Harpalani wrote about the affront on race-conscious admissions and California being a focal point of these battles, it sparked the title for this response.[3] The current composition of the Supreme Court[4] and its consolidation of the Harvard University and University of North Carolina cases (“SFFA cases”) signaled the direction the Court may be heading—to dismantle race-conscious admissions. This descriptive piece focuses on my estimation of who may write the decision and how the Court may frame overturning forty plus years of precedent.[5]
Harpalani notes that “[b]y conflating negative action and affirmative action, [Students for Fair Admissions (“SFFA”)] has attempted to pit Asian Americans against other minority groups.”[6] I agree. SFFA purports to protect the interests of Asian Americans over those who are Black, Latinx, or Native American. SFFA’s litigation strategy is a classic tactic of divide and conquer.[7] But it is due to this tactic that I contend that a Black man, Justice Clarence Thomas, [8] will likely author the majority opinion that eliminates the use of race-conscious admissions in the United States.[9]
A decision prohibiting race-conscious admissions aligns with Justice Thomas’ ideals. Moreover, California has enforced a similar policy for more than twenty-five years. In California, Ward Connerly (“Connerly”)—another Black man—helped eliminate the use of race-conscious admissions through Proposition 209.[10] Justice Thomas and Connerly share similar beliefs and they are acquainted with one another.[11]
Justice Thomas is a descendant of West African slaves known as the Gullah Geechee people.[12] In his memoir, Justice Thomas espoused:
[A]ffirmative action . . . had become a fact of life at American colleges and universities . . . . As much as it stung to be told that I’d done well in the seminary despite my race, it was far worse to feel that I was now at Yale because of it. I sought to vanquish the perception that I was somehow inferior to my white classmates . . . . [I]t was futile . . . to suppose that I could escape the stigmatizing effects of racial preference, and I began to fear that it would be used forever . . . to discount my achievements.[13]
Another Black man, author and economist Thomas Sowell, affirmed Justice Thomas’ belief that “job quotas, charity, subsidies, [and] preferential treatment . . . tend to undermine self-reliance,”[14] which then impacts attempts by ethnic minorities to raise their income.[15]
Connerly lived in Sacramento, California, during his formative years.[16] He later became a University of California Regent[17] and then Chairman of the California Civil Rights Initiative, where he ushered in what would become known as Proposition 209.[18]
In his book, Creating Equal: My Fight Against Race Preferences, Connerly writes about a conversation between him and then California Governor, Pete Wilson.[19] Connerly says:
[T]he conclusion[] I had reached was that “affirmative action”—an attempt to reach out to qualified students and help them gain admission to the university—was not what was going on at UC. Rather, we had created a system of “preferences”—a commitment to put a certain number of black and ethnic students into the university, even if their admission meant discriminating against those who were better qualified.[20]
Connerly was intentional about using the word “preferences” rather than “affirmative action” in the language of Proposition 209.[21] In 2020, Californians voted no on Proposition 16, which would have repealed Proposition 209.[22]
Harpalani’s article mentioned several themes. Two may illustrate how the Court could frame its opinion: First, how the SFFA cases are different, and second, establishing that racial balancing is impermissible.
Foremost, the Court will have to distinguish the SFFA cases to overrule Grutter and other cases. One way the SFFA cases are different are that the Court permitted an organization to sue, rather than an individual Asian American plaintiff. [23] Based on data presented during the SFFA cases,[24] the Court may try to show that SFFA’s claims are capable of repetition if not resolved now.[25]
Next, the Court has previously ruled that the Equal Protection Clause abhors racial balancing and Title IV requires a similar analysis.[26] Whether the Court applies the Equal Protection Clause or Title IV, Justice Thomas believes that constitutional equality means that everyone is treated the same, irrespective of race.[27] Additionally, Justice Thomas disagrees with the diversity rationale.[28] In sum, the Court will find a way to justify its decision.