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Law; Affirmative Action; Students for Fair Admission v. Harvard;


In 2022, the U.S. Supreme Court will again hear arguments on the constitutionality of race-conscious affirmative action in college admissions. This outcome was far from foretold: the late Justice Ruth Bader Ginsburg had suggested the Court might never take up affirmative action in admissions again. Yet after dragging its feet on granting certiorari, the Court agreed to hear Students for Fair Admissions (SFFA) v. Harvard. This time, however, the case has a substantially different and quite controversial posture. That posture centers on alleged discrimination against Asian and Pacific American (APA) students applying to college. Some APA students are divided on affirmative action. Going all the way back to the Court’s door-opening decision in Regents of the University of California v. Bakke, the relationship between APA students and affirmative action has been questioned. The proponents of affirmative action plans often have not produced compelling answers. Some scholars suggest that the issue may be intractable under current doctrine, as APA applicants do not neatly fit into either the “diversity” interest adopted in Grutter v. Bollinger, nor the “remedy for societal discrimination” interest generally rejected by the Court. Growing hostility and violence against APAs in the United States during the COVID-19 pandemic only bolsters the gravity of the case, as this hostility exhibits the deeply rooted and lingering discrimination from which APA communities still suffer. This Comment proceeds in three parts. Part I sets forth relevant history as to the U.S. government’s targeting of APAs and the relevant law governing policies that consider race in university admissions. Part II examines a central tension in equal protection jurisprudence between the “anti- subordination” principle and the “anti-classification” principle. Part III argues that grounding the university’s compelling interest in diversity in anti- subordination values would revitalize race-based affirmative action in higher education admissions while also advancing the interests of APA students.