“BAIT-AND-SWITCH”: HOW ASIAN AMERICANS WERE WEAPONIZED TO DISMANTLE AFFIRMATIVE ACTION.

In this Article, I discuss how Students for Fair Admissions (SFFA) employed a bait-and-switch strategy which used Asian American plaintiffs to attack and dismantle race-conscious university admissions. I focus on Students for Fair Admissions v. Harvard (2023), one of the recent cases where the U.S. Supreme Court struck down the use of race as an admissions factor. I contend that Asian Americans started at the center of the SFFA v. Harvard litigation but were eventually moved to the periphery, with their major concerns going unaddressed by the Supreme Court. Initially, the Harvard case emphasized “negative action”—discrimination against Asian American applicants vis-à-vis White American applicants. However, SFFA’s negative action claim, which was always weak, faded into the background as the case progressed, and the focus shifted to eliminating affirmative action. This is precisely what happened at the U.S. Supreme Court, where the Justices’ conservative bend essentially predetermined the ruling. SFFA’s initial claims of intentional discrimination against Asian Americans were not addressed by the Court. SFFA itself only briefly alluded to biases against Asian Americans and it eschewed its own proposed remedy for such biases. The conclusion considers the broader implications of this analysis, as Asian American plaintiffs continue to be used in challenges to racial diversity and equity policies in admissions and other educational realms. [ABSTRACT FROM AUTHOR]