Professor Phil Lee will publish his article “SFFA v. Harvard: Racial Triangulation and the Invidious Myth of Colorblindness” in Volume 84 of the Maryland Law Review. He presented this paper at the St. John’s Faculty Scholarship Retreat on September 22, 2023. Here is the abstract:

In Students for Fair Admissions, Inc. (SFFA) v. President and Fellows of Harvard College, a case in which the Supreme Court ended the practice of race-conscious admissions in higher education, Asian Americans were used as a wedge between White people and non-Asian minorities to eradicate a mechanism that fostered greater racial diversity in student bodies in many highly selective institutions across the country. A majority of Supreme Court justices justified their decision in the name of “colorblindness.” However, the way the justices positioned Asian Americans against other people of color was not colorblind. It was consistent with the long-standing race-conscious ways in which racial meaning has been created by pitting Asian Americans against other minoritized groups.

Political scientist Claire Jean Kim theorized the ways in which Asian Americans have been constructed by major opinionmakers in America through a process of racial triangulation. Specifically, Asian Americans have been historically defined in relation to both White people and other people of color. Kim argued that Asian Americans have undergone relative valorization as they have been favorably juxtaposed to other minoritized groups who have been deemed problematic. At the same time, Asian Americans have been the subject of civic ostracism as they have been excluded from full membership into American life through social and political marginalization and outright exclusion. Through these seemingly contradictory processes, in which one minority group was seen as better than other minority groups, but not quite as good as White people, Asian Americans were constructed and used as a tool to justify the racial status quo.

Racial triangulation is a useful lens to view the current controversy surrounding race-conscious admissions in higher education. In SFFA v. Harvard, Asian Americans were framed as the model minority who was being unfairly harmed by the policies that were designed to help those minoritized groups deemed problematic. While relying on this framing, the Supreme Court justices who struck down race-conscious admissions presented their “colorblind” jurisprudence as a civil rights victory. It was not.

This Article proceeds in five parts. Part I traces the evolution of the diversity rationale from Bakke to Fisher. Part II discusses how Asian American plaintiffs were recruited by SFFA in its challenge to race-conscious admissions in higher education and applies Claire Jean Kim’s theory of racial triangulation and the myth of the model minority to contextualize SFFA’s legal action. Part III analyzes the decision in SFFA v. Harvard and how the justices in the majority claimed they were applying a colorblind jurisprudence while relying on racial triangulation to position Asian Americans as the model minority whom the Court felt the need to protect against problematic minorities. Part IV deconstructs the myth of the model minority and highlights its many harms. Finally, Part V critiques a colorblind approach in law and introduces a possible way forward that embraces color-consciousness and multiracial alliances.