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Testing the Limits: Asian Americans and the Debate Over Standardized Entrance Exams

Vinay Harpalani[1]*


Asian Americans[2] are in a precarious position in America’s racial landscape. Within today’s most salient educational debates, they often find themselves positioned against other people of color.[3] Most notably, the U.S. Supreme Court has decided to hear the case of Students for Fair Admissions (SFFA) v. Harvard,[4] where Asian American plaintiffs are challenging race-conscious admissions policies that increase the admission of Black, Latinx, and Native American applicants. SFFA v. Harvard has marshaled Asian Americans’ racial positioning to attack such policies, building on a history of alleged discrimination against Asian Americans by elite universities. This case, along with its companion case of SFFA v. University of North Carolina at Chapel Hill,[5] threatens to end race-conscious admissions altogether.[6]

But while affirmative action is the immediate issue that is garnering national attention, another admissions policy may create an even greater divide between Asian Americans and other racial minority groups: the use of standardized entrance exams.[7] Standardized entrance exams are a key component of the pipeline to elite educational institutions.[8] Advocates for racial equity often view such tests as a barrier to the admission of the most historically oppressed groups.[9] But many Asian American families see them in an opposite light—as a means to overcome discrimination via objective measures of merit.[10] There have long been debates over the use of SAT and ACT in college admissions because of the disparate impact these tests have on admission of Black, Latinx, and Native American students.[11] Recently, many universities have decided to make these tests optional or discard consideration of them altogether,[12] and some Asian Americans believe this “test-blind” movement will augment discrimination against them.[13] Conflicts over standardized entrance exams to elite magnet high schools have also pitted Asian Americans against other people of color. In 2019, many Asian American families objected to New York City’s plan to phase out its Specialized High School Admissions Test (SHSAT), which led New York City Mayor at the time, Bill de Blasio, to backtrack on the plan.[14] And in Fairfax County, Virginia, there is a similar controversy over the entrance exam to Thomas Jefferson High School for Science and Technology (TJ).[15] Both of these controversies have led to lawsuits.[16]

Asian American civil rights organizations have long rejected positions that would pit them against other people of color. They have supported efforts to increase enrollment of underrepresented groups, including affirmative action and elimination of standardized entrance exams.[17] But a significant number of rank-and-file Asian American community organizations have taken the opposite positions on these issues.[18] This Article examines Asian Americans’ perspectives and positioning in these debates, situating these in context of historical animus and alleged discrimination against Asian Americans in elite educational realms. In Part II, the Article discusses the “model minority” stereotype, not only as a relative valorization of Asian Americans[19] but also as a threat to White dominance—a peril of the mind.[20] It notes how conservative activists have capitalized upon Asian Americans’ concerns about discrimination to attack race-conscious admissions policies. Then in Part III, it frames the NYC SHSAT and TJ controversies in light of this broader social, political, and historical context. The Article concludes in Part IV by arguing that advocates should assure that they understand this broader context and ensure that Asian American communities are properly involved in the conversation about replacing entrance exams. It is important to remove barriers to racial equity, including entrance exams if they form such a roadblock.[21] Nevertheless, when approaching divisive issues such as admissions reform, racial equity advocates must endeavor to include Asian Americans and consider the long-term implications for solidarity among people of color.

Social, Political, and Historical Context

Professor Claire Jean Kim’s racial triangulation framework[22] provides an ideal lens from which to examine how Asian Americans are pitted against other people of color. Stereotypes of Asian Americans play a key role in this process, which has played out recently in controversies over race-conscious university admissions. This provides the backdrop for the positioning of Asian Americans in debates regarding standardized entrance exams.

Racial Triangulation

The racial triangulation framework provides a nuanced analysis of racial dynamics, with a focus on Asian Americans. It depicts the racial positioning for different groups within American society. Professor Kim presents a “racial geometry,” defined by the various statuses accorded to these different groups: “superior/inferior” and “insider/foreigner.”[23] She also posits that racial groups are positioned relative to each other by processes of “relative valorization” and “civic ostracism.”[24] Relative valorization refers to the process of the dominant group (usually White Americans) exalting one minority group over another (e.g., valorizing Asian Americans over Black Americans).[25] This facilitates subordination of both groups (and especially Black Americans).[26] Civic ostracism refers to the process of defining the valorized group (Asian Americans) as foreign.[27] This gives the justification for limiting this group in the privileges of citizenship and political participation.[28]

In the racial triangulation framework, the model minority stereotype—the representation of Asian Americans as high academic achievers who are culturally superior to Black, Latinx, and Native Americans—is a form of relative valorization.[29] Conversely, the perpetual foreigner stereotype—the notion that Asian Americans are always tied to their ancestral homelands and not fully “American”—embodies civic ostracism. Relative valorization and civic ostracism come together with the peril of the mind stereotype—whereby Asian Americans are viewed as a foreign threat precisely because of their high achievement.[30] This process of racial triangulation is key to understanding Asian Americans’ perspectives and positioning in educational debates.

“Model Minority” to “Peril of the Mind”

The phenomenon of Asian American high academic achievement is well known. It is invoked as the basis for the “model minority” stereotype: the idea that Asian Americans have a superior work ethic and cultural values, which should be a “model” for other racial minority groups.[31] While it valorizes Asian Americans, this stereotype has often been employed to justify racial inequality, as conservatives ignore different histories and structural barriers faced by various groups and posit that all of them should follow the path of Asian Americans.[32] It also obscures the vast diversity among Asian Americans, many of whom still face various challenges and rampant discrimination.[33]

To the extent that it reflects observed differences in achievement, the model minority myth itself is rooted in structural inequalities. The Immigration Act of 1965[34] was designed to facilitate immigration of educated professionals from Asian countries.[35] This Act was a response to the Cold War, as the U.S. needed more scientists and engineers to compete technologically with the Soviet Union.[36] The children of these educated immigrants grew up with resources and social capital not accessible to other groups, and consequently, they became successful students and garnered admission to elite institutions.[37]

By the early 1980s, Asian Americans were becoming quite a visible presence on elite college campuses.[38] This caused backlash and resentment from some White students, who used racial epithets to label campuses with large numbers of Asian American students.[39] Massachusetts Institute of Technology (“MIT”) became “Made in Taiwan,” the University of California, Los Angeles (“UCLA”) became the “University of Caucasians Living Among Asians,” and elevators in buildings used by many Asian American students were labeled “[t]he Orient Express.”[40] White students also viewed Asian American students as “damn curve raisers”[41] and “‘hordes’ of ‘unfair competition.’”[42] They advised each other to avoid classes with high Asian American enrollment.[43] Ostracism of Asian Americans in the realm of elite education was underway.[44]

Asian Americans thus became a “peril of the mind”—a threat to White dominance in elite academic and educational settings precisely because of their academic success.[45] The peril of the mind trope is analogous to the resentment faced by Asian immigrant laborers who competed with White Americans for jobs in the late nineteenth and early twentieth centuries. At that time, immigrants from Japan, China, and Korea were dubbed the Yellow Peril, and immigrants from the Indian subcontinent were labeled as the Dusky Peril.[46] But while the Yellow Peril and Dusky Peril were generally threats to uneducated White laborers, peril of the mind has involved a perceived invasion of elite educational spaces designated for rich and powerful White Americans.

The peril of the mind trope has also become visible in K–12 education. Many White families leave public school districts that have large numbers of Asian American students, fearing that their own children will be academically outcompeted.[47] In 2005, the Wall Street Journal reported that a “New White Flight” was happening in the Silicon Valley suburbs of California.[48]The percentage of White students dropped significantly at both Lynbrook High School and Monte Vista High School,[49] but this was not due to any failure on the part of the schools—both were considered to be among the top public schools.[50]Rather, White parents thought that the schools were too academically competitive because of the growing numbers of Asian American students.[51]

A similar phenomenon is occurring in Johns Creek, Georgia, a relatively affluent suburb of Atlanta. Since the mid-2000s, the White student population in Johns Creek public schools has dropped by more than 50%.[52] White parents have blamed this exodus on the rigorous academic environment created by Asian American students’ success. For example, White parents have commented that:

Asian parents take their kids for extra tutoring. It’s not fair for the ‘regular’ kids. The high school is too competitive. My kids won’t get into a good college because of all of the Asians.[53]

Several others have also studied and documented the new “White flight” phenomenon in affluent public-school districts and other places.[54] The White parents involved seemingly feel entitled to having their children be high achievers and view Asian American children as unfair, “foreign” competition rather than hardworking immigrants who benefit American society.[55]

“Negative Action” and Affirmative Action

Asian Americans soon began to feel this ostracism. They sensed resentment to their increasing presence on elite college campuses, and as a result, they became suspicious that universities wanted to limit their numbers.[56]

Allegations of discrimination against Asian Americans in admissions emerged at several elite universities, including Harvard, Brown, Princeton, Stanford, University of California Berkeley, and UCLA.[57] Admissions data indicated Asian American applicants who were admitted had higher grades and test scores but were rated lower on non-academic components of the application, such as personal characteristics.[58] This reflected another stereotype of Asian Americans: that they are one-dimensional, “passive nerds.”[59]

The U.S. Department of Education, Office of Civil Rights (OCR), investigated several of these institutions, and it found that UCLA had discriminated against five Asian American applicants who had been rejected: OCR ordered that they be admitted.[60] And although the other universities were cleared of discrimination, Brown and Berkeley did acknowledge that they should be more transparent about their admissions processes and involve Asian Americans in conversations about admissions reform.[61] Asian Americans began to see that “objective” criteria such as standardized exams may work in their favor, while subjective ratings of personal characteristics could be used to discriminate against them.

These admissions controversies in the 1980s involved “negative action”—discrimination against Asian American applicants specifically in favor of White applicants.[62] But conservatives capitalized on Asian Americans’ concerns about negative action to mount an attack on affirmative action—by creating policies designed to boost representation of Black, Latinx, and Native American students.[63] Although the U.S. Supreme Court’s 1978 decision in Regents of the University of California v. Bakke allowed universities to use race as an admissions factor,[64] race-conscious admissions policies were challenged and curbed in various ways during the next several decades. In 1996, California voters passed Proposition 209,[65] which amended the state constitution to ban race-conscious government policies. Although a majority of Asian Americans opposed Proposition 209, it was a divisive issue.[66] Other states passed similar bans.[67] Conservative advocacy organizations such as the Pacific Legal Foundation[68] and the Center for Individual Rights[69] also brought legal challenges to race-conscious university admissions.[70] In 2003, the U.S. Supreme Court affirmed in Grutter v. Bollinger that universities could use race as a flexible, individualized admissions factor to achieve a diverse student body.[71] The Court reaffirmed that ruling in 2016, with its decision in Fisher v. University of Texas at Austin (Fisher II).[72] However, the Court was deeply divided in both cases; Grutter was decided by a 5–4 vote, while Fisher II was a 4–3 decision.[73] The U.S. Departments of Education and Justice also conducted further investigations of whether universities were discriminating against Asian Americans, particularly during the Donald Trump Administration.[74]

These events set the context for SFFA v. Harvard. SFFA[75] is led by well-known anti-affirmative action activist Edward Blum,[76] founder of the Project on Fair Representation.[77] Blum was the architect of the Fisher v. University of Texas at Austin litigation.[78] But while Plaintiff Abigail Fisher was the public face of that litigation,[79] the plaintiffs in SFFA v. Harvard are anonymous.[80] It is known that they include rejected Asian American applicants to Harvard, including one who was a high school valedictorian with a perfect ACT score in addition to many other extracurricular activities and accomplishments.[81] SFFA’s membership also includes Asian American high school students who intend to apply to Harvard,[82] along with parents of such students.[83]

Although it has lost its case against Harvard at the district court[84] and First Circuit Court of Appeals,[85] the U.S. Supreme Court could reverse those rulings and may well do so.[86] The Harvard case has brought much scrutiny to the admissions process at elite universities, and SFFA has drawn upon Asian Americans’ concerns about being racially stereotyped. It is undisputed that Asian American applicants to Harvard are scored lower on the “personal rating,” which assesses leadership, humor, grit, sensitivity, and other personal characteristics.[87] SFFA has tried to attribute this to the passive nerd stereotype,[88] contending that Harvard’s admissions officers are biased.[89] SFFA also draws on the peril of the mind trope, arguing that Harvard and other elite institutions do not want their campuses to look too “foreign” and thus have put in place “Asian” quotas, similar to Harvard’s previous quotas for Jewish applicants.[90] It alleges that these quotas are hidden by Harvard’s holistic admissions process. SFFA highlighted one disturbing statement from a Harvard alum who explicitly asked the University to limit the number of “orientals” on campus.[91] It showed that the Harvard Administration was lax in its response to this incident.[92] Moreover, SFFA used this lax response to create divisions, as it posited that Harvard would have been more vigilant in responding to similar comments against Black students.[93]

In its litigation, SFFA has strategically combined notions and perceptions of relative valorization and civic ostracism, creating a narrative that Asian Americans are victimized by both negative action and affirmative action. The remedy it seeks—removal of all references to race from college applications—would eliminate both.[94]

Controversies over Standardized Entrance Exams

In light of this history of real and perceived discrimination, Asian Americans may legitimately view standardized entrance exams as “objective” criteria, which allow them to overcome discrimination. Professor Julie Park describes how “[t]est prep is a rite of passage” for many Asian American families and students.[95] A larger percentage of Asian American high school students—particularly Korean Americans—take test prep courses than other groups.[96] Professor Park also notes how test prep companies market specifically to Asian Americans.[97] Immigrant families are familiar with intense exam preparation and high-stakes testing, which is the norm in countries such as China and South Korea.[98] They see college entrance exams in a similar light, and Asian American children often “get frequent messages from an early age about the importance of doing well on tests.”[99] All of these phenomena influence Asian American views on entrance exams.

Consequently, efforts to eliminate standardized entrance exams can also strike Asian Americans as discriminatory. The peril of the mind trope looms in the background of such concerns, as eliminating the standardized tests may reduce the number of Asian Americans admitted to elite educational institutions. And civic ostracism of Asian Americans is apparent in the SHSAT and Thomas Jefferson High School controversies.

College Entrance Exams and the “Test-Blind Movement”

A growing number of higher education institutions are making college entrance exams optional or discarding them altogether. [100] In recent years, over 1,200 colleges and universities have begun to offer admission without requiring college entrance exams.[101] Many institutions suspended testing requirements because of the COVID-19 pandemic.[102] Harvard did so and will continue to make the tests optional through at least 2026.[103] In light of the SFFA v. Harvard case, this has led some to contend that Harvard’s admissions process will further discriminate against Asian Americans as it becomes more subjective.[104] More broadly, all of this situates Asian Americans against the movement to eliminate standardized tests such as the SAT and ACT, which colleges and universities have used for decades.

Some universities were making test scores optional on a permanent basis even before the pandemic.[105] In 2021, the University of California system (UC) determined that it will not consider college entrance exam scores even in an optional manner.[106] The Asian American Coalition for Education (AACE) has sharply criticized this policy, arguing that the elimination of college entrance exams “will particularly harm Asian-American students who are inappropriately labeled as ‘overrepresented’ at UC, in spite of tremendous within-group socioeconomic and cultural diversities.”[107] AACE also echoed some of claims brought out in SFFA v. Harvard, applying them to the “test-blind movement”:

With standardized tests being dropped, Asian-American children become easy victims of various radical acts of racial balancing, through which some colleges use opaque and subjective admission criteria including racial stereotypes to limit Asian-American admissions.[108]

There is no consensus among Asian Americans on college entrance testing and its effects on enrollment. Some studies have indicated that the use of college entrance exams does not significantly affect Asian American enrollment at elite universities[109] and that exams may actually limit the admission of low-income Asian Americans.[110] Studies have also indicated that tests may be biased against certain Asian American groups,[111] and eliminating such tests may lead to an increase in enrollment of Southeast Asian Americans in particular.[112]

Nevertheless, in conjunction with their precarious positioning in the affirmative action debate, Asian Americans’ concerns about elimination of college entrance exams are understandable. The salience of the peril of the mind trope should not be dismissed by advocates of the “test-blind” movement.

New York City’s Specialized High School Admissions Test Controversy

Asian Americans have become intricately involved in the ongoing debate about eliminating New York City’s Specialized High School Admissions Test (“SHSAT”).[113] SHSAT is a 150-minute test with English Language Arts and Mathematics sections.[114] It has been the sole factor in admission to eight of the nine selective New York City public high schools for the past fifty years.[115] Over the past few decades, there has been a stark underrepresentation of Black and Latinx students admitted to these schools.[116] For example, in 2019, of the 895 students admitted to Stuyvesant High School’s Class of 2023, 65.6% were Asian or Asian American, 21.7% were White, and only 0.8% were Black.[117] Black students were also highly underrepresented at other selective high schools.[118]

These racial disparities raised concerns for those interested in educational equity. In June 2018, then New York City Mayor Bill de Blasio proposed to eliminate the SHSAT.[119] Under his proposal, the SHSAT would gradually be phased out over three years.[120] The proposed new policy would be based on eighth-grade class rank, offering admission to the top 7% of the class in each middle school.[121]

Additionally, Mayor de Blasio and Department of Education Chancellor Richard Carranza, Chancellor of New York City’s Department of Education, made changes to the Discovery Program, which is intended to assist low-income students in gaining admission to the specialized high schools.[122] These changes dictated that Discovery Program participants would be allotted 20% of seats at each specialized high school, and that the program would be limited to particular intermediate schools based on an Economic Need Index (ENI)—a measure of the percentage of students in a school who face economic hardship.[123]

Asian American families objected to De Blasio’s proposal and felt they had not been involved in the conversation.[124] One report found that elimination of the SHSAT would reduce the percentage of Asian American students at the specialized high schools from 60.9% to 31.3%, while enrollment of Black students would increase from 3.7% to 18.7%.[125] The proposed changes to the Discovery Program also allegedly had an adverse effect on Asian American children.[126]

A group of Asian American community activists mobilized against the elimination of the SHSAT.[127] They led protests against the new admissions policy outside of New York City Hall.[128] In April 2019, New York State Senator John Liu, who is the Chair of the State Senate Committee on New York City Education, stated that when the specialized high school admissions reforms were being devised, “the Asian community . . . was completely excluded, not inadvertently, but intentionally and deliberately.”[129] With public pressure and the threat of legal action, Mayor de Blasio discarded his initial proposal, but he still advocated for eliminating the SHSAT.[130] He also faced criticism for suggesting that those who opposed elimination of the SHSAT were “opponents of ‘justice and progress.”[131]

Reforms to the Discovery Program continued to move forward.[132] The Pacific Legal Foundation (PLF) filed a lawsuit against New York City on the behalf of concerned Asian American parents, moving to enjoin the changes to the Discovery Program.[133] PLF argued that these changes were intended to discriminate against Asian Americans.[134] It pointed to statistics which purportedly showed the disparate impact of the changes on Asian American applicants.[135] It also referenced statements by Mayor DeBlasio about the low representation of Black and Latinx students at the specialized high schools,[136] along with a remark by Chancellor Carranza that no “one ethnic group owns admission to the[] [specialized] schools.”[137] In March 2019, the U.S. District Court for the Southern District of New York denied the Plaintiffs’ motion for a preliminary injunction.[138] The case continues to be litigated.[139]

Unlike debates over elite university admissions, students affected by SHSAT reforms are generally not from privileged backgrounds. For the 2012–2013 academic year, 46.8% of students accepted to specialized high schools received free or reduced price lunches.[140] More recent data indicated that 61% of Asian American students offered admission to the specialized high schools lived in poverty—the same percentage as Black students receiving offers, and greater than the 53% of Latinx students who received offers.[141] Also, according to data from 2014, 29% of Asian Americans in New York City lived below the poverty line: the highest percentage of any group.[142] Most Asian American students in New York City’s specialized high schools come from low-income families,[143] and all groups have long viewed these schools as a means to upward mobility.[144] New York City has itself contended that the proposed new admissions policy would benefit all low-income students, including those who are Asian American.[145]

Various other social, historical, and political factors affect Asian Americans’ views of the SHSAT controversy. Wai Wah Chin, former President of the Chinese American Citizens Alliance Greater New York (CACAGNY), invoked the peril of the mind trope by comparing the proposed elimination of the SHSAT to the Chinese Exclusion Act of 1882. He noted that “[Chinese immigrants] ‘were excluded because we did better than others[] … [d]oes that sound familiar?’”[146] Chinese American proponents of the SHSAT have also noted that Chairman Mao Zedong suspended college entrance exams during China’s Cultural Revolution—a development they saw as counterproductive.[147] And in parallel debates over educational curriculum, CACAGNY has referred to “critical race theory” as a “hateful fraud” and a “common source of anti-Asian racism.”[148] This signals another potential divide among people of color, as conservative activists try to link various issues that can pit Asian Americans against other groups.

The controversy over the SHSAT is ongoing. For now, the test remains. In 2021, 28% of Asian American students who took the SHSAT received admissions offers for specialized high schools, compared to 27.4% of White students, 7.1% of Native American students, 4.3% of Latinx students, and 3.5% of Black students.[149] The SHSAT also became an issue in the 2021 New York City mayoral election. In majority Asian American precincts, there were English and Chinese language signs noting Republican Curtis Sliwa’s support for the “merit-based SHSAT.”[150] Although he lost the election to Democrat Eric Adams, Sliwa won a higher percentage of votes in precincts that were majority Asian American than he did for other precincts.[151] He won 44% of votes in majority-Asian American precincts, compared to 40% in majority-White precincts, 20% in majority-Latinx precincts, and 6% in majority-Black precincts.[152] While a majority of Asian Americans still voted for Adams, U.S. Representative Grace Meng, a Democrat from Queens, cautioned in the wake of the election that:

When our Democratic leaders talk about issues facing minority communities, oftentimes they are only talking about Black and Spanish communities. . . . But [the Asian American] community is the fastest growing community. And we are also minorities.[153]

Representative Meng’s message should ring true not only for Democratic leaders but also for all advocates for racial and educational equity. Referencing Professor Claire Jean Kim’s racial triangulation framework, Professor Osamudia James notes that Asian Americans “status as unassimilable left them excluded from consultation during policy development meant to address racial inequality, even though Asian Americans have and continue to experience economic and racial marginalization in New York City.”[154] The exclusion of Asian Americans from conversations on SHSAT reform represents the civic ostracism that Professor Kim describes,[155] and it threatens to pit Asian Americans against other people of color.

Coalition for Thomas Jefferson v. Fairfax County School Board

Asian American groups have also organized in opposition to the new admissions policy at Thomas Jefferson High School for Science and Technology (“TJ”) in Fairfax County, Virginia.[156] TJ was established in 1985 and has been ranked by U.S. News and World Report as the top public high school in the U.S.[157] In 2019, the population of Fairfax County, numbering over one million in total, was 61.1% White, 9.2% Black, 19.3% Asian American/Pacific Islander, 0.2% Native American/Alaskan, and 9.7% Other, with 16.4% also identifying as Hispanic/Latinx.[158] But there was a huge racial skew among the 486 students admitted to TJ in the class of 2024: 17.1% White, 73.0% Asian American/Pacific Islander, 3.3% Hispanic/Latinx, 6.0% Multiracial/Other, and less than 1.0% Black.[159]

At that time, admission to TJ was determined through a two-part process. The first part involved an application fee and a standardized exam with math, reading, and science components.[160] Students who scored high enough on the test advanced to the second stage of the process, which involved an application with essays and teacher recommendations.[161] In December 2020, the Fairfax County School Board voted to change the process of admission to TJ for the class of 2025 in order “to improve diversity at the school.”[162] The proposed new process eliminated the application fee, standardized entrance exam, and teacher recommendations.[163] It dictated that “[t]he top 1.5 percent of the eighth grade class at each public middle school meeting the minimum standards will be eligible for admission.[164] Admission for the eligible applicants would be determined by a holistic review process based on GPA; a “problem-solving essay”; various attributes and experiences factors, including economic disadvantage; English speaking status; and representation from the schools attended by the applicants.[165]

Many Asian American families felt that the new proposed admissions plan discriminated against their children and would lead to a substantial drop in the number of Asian American students at TJ.[166] The Pacific Legal Foundation also filed a lawsuit against the Fairfax County School Board (the “School Board”) on behalf of the Coalition for TJ (“the Coalition”) which included “primarily Asian American parents.[167] As with the SHSAT controversy in New York City, Asian American families in Fairfax County felt excluded from the process. The timing of the decision gave little opportunity for these families to voice their concerns.[168] The Coalition noted that the vote to repeal the admissions test occurred only a month before the exam was scheduled,[169] and that it happened at one of the “work sessions”—meetings that often do not involve voting on such matters.[170] The Coalition further alleged that such “work sessions” are not open to the public[171] and that the School Board disallowed further public comment or involvement on the TJ admissions processes.[172] Coalition for TJ contended that TJ’s new admissions policy violated the Equal Protection Clause because it has a discriminatory purpose: it is intended to boost enrollment of Black and Latinx students at TJ,[173] which “’necess[arily] decrease[s] the representation’ of Asian Americans at TJ.”[174] It thus asserted that the School Board’s actions meet the “because of, not merely in spite of” standard for intentional discrimination set in Personnel Administrator of Massachusetts v. Feeney.[175]

On May 21, 2021, Judge Claude Hilton of the U.S. District Court for the Eastern District of Virginia denied the School Board’s motion to dismiss the lawsuit, but he also denied the Coalition’s request to enjoin the new TJHSST admissions policy for the fall incoming class, stating that it was late in the admissions cycle and such an injunction would be too disruptive.[176] The racial composition of students offered admission for TJHSST’s class of 2025 was markedly different from the prior year.[177] The admitted class saw increases in the percentage of Black students (>1.0% to 7.1%), Hispanic/Latinx students (6.0% to 11.3%), and White students (17.1% to 22.4%).[178] Conversely, the percentage of admissions offers to Asian American students dropped from 73.0% to 54.4%—a decline of almost 20%.[179]

However, on February 25, 2022, Judge Hilton issued a ruling for the Coalition for TJ.[180] Judge Hilton agreed with the Coalition that the Fairfax County School Board “acted at least in part because of, not merely in spite of, the policy’s adverse effects” on Asian Americans.[181] He applied the Arlington Heights factors for determining racial purpose: “(1) the impact of the official action; (2) the historical background of the decision; (3) the specific sequence of events leading up to the challenged decision; and (4) the legislative or administrative history.”[182] Judge Hilton found that the process for changing TJ’s admissions policy was “unreasonably hurried and [] there was a noticeable lack of public engagement and transparency.”[183] He noted that the voting took place during work sessions, which deviated from normal procedure.[184] In particular, he cited that the vote to eliminate the “longstanding admissions exam” took place “without any public notice[,]”[185] and that the School Board rejected a motion to allow more input from the community.[186] Judge Hilton also charged that “[t]he discussion of TJ admissions was infected with talk of racial balancing from its inception[,]”[187] which made the policy change “patently unconstitutional.”[188] And he agreed with the Coalition that “[i]mpermissible racial intent need only be a motivating factor . . . not . . . the dominant or primary one . . . [and] [t]he Board members need not harbor racial animus to act with discriminatory intent.”[189]

Fairfax County School Board is appealing the district court ruling to the U.S. Court of Appeals for the Fourth Circuit.[190] Meanwhile, on Friday, March 11, 2022, Judge Hilton denied the School Board’s request to stay his order striking down TJ’s admissions policy.[191] The School Board appealed that denial and the Fourth Circuit granted the stay on March 31, 2022.[192] On April 8, 2022, the Coalition filed an emergency application to the U.S. Supreme Court to vacate the stay pending appeal.[193] The case thus went to the Court’s “shadow docket”—where the Court issues orders without explanation or its “normal procedural regularity.”[194] On April 25, 2022, the Supreme Court denied the Coalition’s application to lift the stay, with Justices Alito, Gorsuch, and Thomas dissenting from that order.[195] TJ’s new admissions policy remains in place pending review by the Fourth Circuit, and the Supreme Court may still eventually hear the case if the Fourth Circuit ruling is appealed.

Regardless of the merits of the Coalition’s legal claim, Asian American families in Fairfax County are stakeholders in the TJ admissions policy and have legitimate concerns about the process by which it was changed.[196] Similar to the SHSAT controversy in New York City, the exclusion of Asian American families in Fairfax County from the decision-making process reflects civic ostracism that has often been used to define Asian Americans as “foreign” and deny them the privileges of citizenship and political participation.[197] Like Edward Blum and the Project on Fair Representation in SFFA v. Harvard, PLF has exploited these concerns and employed the peril of the mind trope as part of its litigation and political strategy. In the Coalition for Thomas Jefferson complaint, PLF pointed to several instances where it alleged that Asian American students and families were described in similar fashion—as “ravenous” and “unethical,” with parents “push[ing] their kids into [TJ].”[198] It noted one instance where a retired Fairfax County Public School teacher referred specifically to immigrant families from India in this manner and allegedly suggested that some of these families came to the U.S. illegally.[199] Aside from that remark, however, it is not clear that other comments were directed specifically at Asian Americans families.

Nevertheless, PLF also highlighted criticism of test preparation courses, which are commonly taken by Asian American students.[200] It noted that at an NAACP Town Hall meeting, Superintendent Scott Brabrand lamented that “thousands upon thousands” of dollars are spent on such courses.[201] And at a later listening session for students of TJ, Virginia Secretary of Education Atif Carney allegedly compared such test prep to illegal “performance enhancement drugs.”[202]

Similar to SFFA, Coalition for TJ has created a narrative of discrimination against Asian Americans. But while SFFA’s Asian American Plaintiffs are anonymous, many children of Coalition parents are named in its Complaint.[203] These include East and South Asian Americans in grades 4 to 8, some of whom were applying to TJ as eighth-graders, and others in lower grades who are enrolled in gifted programs.[204] If the TJ case continues to advance through the federal courts and gains more attention, it will have a tangible human face—innocent children who will be portrayed as victims of an allegedly discriminatory admissions policy.[205]

PLF also aims to position Asian American families against #BlackLivesMatter and the Movement for Racial Justice.[206] It references protests after the killing of George Floyd in May 2020 as the impetus for changing TJ’s admissions policy.[207] Coalition for TJ’s Motion for Summary Judgment quotes Fairfax County School Board member Karen Keys’Gamarra from a June 2020 school board meeting:

[I]n looking at what has happened to George Floyd, we now know that our shortcomings are far too great[,] . . . so we must recognize the unacceptable numbers of things as unacceptable numbers of African Americans that have been accepted to T.J.[208]

The Coalition’s Motion for Summary Judgment provides similar statements from Ann Bonitatibus, another Fairfax County School Board Member.[209] This framing by PLF expands the juxtaposition of Asian Americans and Black Americans beyond elite admissions. It situates Asian Americans not only against affirmative action and educational equity but against a broader range of initiatives to address racism.

The TJ case became an issue in the 2021 Virginia gubernatorial election,[210] as SHSAT controversy did in the New York City mayoral race.[211] Republican Glenn Youngkin sided with the Coalition and also articulated his concern for the recent wave of discrimination and bias against Asian Americans more generally.[212] In the same speech, Youngkin denounced critical race theory, tying the TJ entrance exam controversy to broader “culture wars” over teaching about racism.[213] Asian Americans still voted overwhelmingly for Democrat Terry McCauliffe, by more than a 2-to-1 margin.[214] But Youngkin narrowly defeated McCauliffe, in part by emphasizing parental control over public education.[215]

The legal implications of the TJ case could be enormous. Unlike the lawsuit in New York City, which focused on the Discovery Program for disadvantaged students, Coalition for TJ v. Fairfax County School Board challenges the changes to TJ’s admissions policy for all students.[216] And while SFFA v. Harvard has mounted a direct challenge to the Grutter framework for race-conscious admissions, the NYC Discovery Program and TJ controversies go one step further. Both parties agree that the Discovery Program and TJ’s new admissions policy are race-neutral because they do not directly consider any individual applicant’s race.[217] If the TJ case eventually reaches the U.S. Supreme Court on the merits, it could implicate race-neutral measures that are intended to increase racial diversity in selective institutions. Such measures include Texas’s Top Ten Percent Law, which is race-neutral because it automatically admits students to the University of Texas at Austin based solely on class rank.[218] Commentators including the late Justice Ruth Bader Ginsburg and retired Justice David Souter have contended that the Top Ten Percent Law and similar percentage plans are not really “race-neutral” because they were intended to increase representation of underrepresented minority groups.[219] The U.S. Supreme Court has not directly considered this argument, but TJ’s new admissions policy is “race-neutral” and uses class rank as an initial step.[220] Thus, the TJ case could essentially bring the same issue to the Court.[221] And with a ruling adverse to the Fairfax County School Board, the Court could strike down a plethora of facially neutral measures that are intended to increase racial diversity. It will have done so with Asian American Plaintiffs as the face of the case.


Asian Americans are caught in the midst of a significant and complex battle over educational equity in America. As the U.S. Supreme Court prepares to hear SFFA v. Harvard, affirmative action in university admissions will be the most visible issue in that battle. However, in the longer term, debates over standardized entrance exams may have an even greater impact on both educational equity and the racial positioning of Asian Americans. Such debates could pit Asian Americans against other people of color even more than affirmative action.

It is important for everyone, including Asian Americans, to support efforts at racial equity in education. Given this nation’s history of denying educational opportunity to Black Americans, Latinx, and Native Americans, there is a moral imperative to remedy the inequities that exist. Nevertheless, advocates for racial and educational equity should recognize the difficult challenges that can arise in the process, given the history of animus and civic ostracism that Asian Americans have faced. Asian American families need to be fully included in conversations about admissions reforms and other changes where they are stakeholders. Incidents of bias and animus towards Asian Americans, which have increased in the wake of the COVID-19 pandemic,[222] should always be taken seriously and met with the same vigilance as they would for any other group.[223] Asian Americans should also be included in diversity initiatives when appropriate, and they should be a larger part of conversations about racism in America. Stereotypes of Asian Americans are a powerful aspect of American racial ideology, and Asian Americans’ perspectives and positioning are essential for understanding the racial dynamics of U.S. society—particularly the educational stratification that exists in this nation.

Although it will be challenging, all of these measures can help to preserve coalitions between people of color as they confront admissions reforms and other divisive issues. If standardized entrance exams themselves are a barrier to educational access for Black, Latinx, and Native American students, they should be eliminated, or at least used in a manner that does not reinforce racial inequities in education. But given the perceived value of elite education in America, those who are able and motivated will adapt to any new admissions policy. Ultimately, educational inequities cannot be remedied by admissions reforms: they must be alleviated at their roots, through vigorous advocacy by robust progressive coalitions. The divisions created by controversies over elite school entrance exams and related issues could lead to broad political realignments that position Asian Americans against other people of color.[224] Such realignments would be unfortunate and would outlast the effects of any specific educational reforms. If such reforms are not approached carefully and inclusively, there may be dire long-term consequences for racial equity and justice in America.[225]

  1. * Henry Weihofen Professor and Associate Professor of Law, University of New Mexico School of Law. J.D. (2009), New York University School of Law; Ph.D. (2005), University of Pennsylvania. Jeffrey Hoagland provided outstanding research assistance for this Article. Additionally, the editors of the South Carolina Law Review—particularly Dixie McCollum, Matt Stevens, Samuel Williams, Sydney Douglas, Montana York, and Matthew Abney—provided excellent suggestions during the editing process.
  2. . This Article uses the term “Asian American” unless it is referencing specific groups or organizations that have chosen another term. Additionally, the Article does not use “Asian” as shorthand for “Asian American.” Although is often used for brevity, the simple label “Asian” lumps together 4.5 billion people, conflating the vastly different experiences of people who live in Asian countries, recent immigrants to the United States, and Asian Americans who were born in the United States. Omitting the “American” part of “Asian American” is especially problematic for a group that continues to be stereotyped as foreign and viewed as un-American. See Vinay Harpalani, Can “Asians” Truly Be Americans?, 27 Wash. & Lee J. C.R. & Soc. Just. 559, 560 n.1 (2021).
  3. . See generally Vinay Harpalani, Asian Americans, Racial Stereotypes, and Elite University Admissions, 102 B.U. L. Rev. 233 (2022).
  4. . Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (SFFA), 397 F. Supp. 3d 126 (D. Mass. 2019), aff’d, 980 F.3d 157 (1st Cir. 2020), cert. granted, 142 S. Ct. 895 (2022).
  5. . Students for Fair Admissions, Inc. v. Univ. of N.C., No. 1:14-cv-00954, slip op. at 119–20 (M.D.N.C. Oct. 18, 2021) (holding that UNC Chapel Hill’s race-conscious admissions policy does not violate the Equal Protection Clause or Title VI of the Civil Rights Act of 1964), cert. granted sub nom., Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (SFFA), 142 S. Ct. 895 (2022).
  6. . See Laura Krantz & Deidre Fernandes, Supreme Court Agrees to Hear Harvard Affirmative Action Case, Could Cause ‘Huge Ripple Effect’ in College Admissions, Boston Globe (Jan. 24, 2022, 7:57 PM), [].
  7. . See Kyle Spencer, For Asians, School Tests Are Vital Steppingstones, N.Y. Times, (Oct. 27, 2012), [] (describing standardized tests in New York City public schools as vital for immigrants to get into elite institutions).
  8. . Id.
  9. . See id.
  10. . See id.
  11. . See, e.g., John Rosales & Tim Walker, The Racist Beginnings of Standardized Testing, Nat’l Educ. Ass’n (Mar. 20, 2021), [].
  12. . Bianca Quilantan, Colleges Dump Online SAT and ACT, Fueling Anti-Testing Movement, POLITICO (May 21, 2020, 8:18 PM),
    colleges-dump-online-sat-and-act-fueling-anti-testing-movement-274284 [].
  13. . Harpalani, supra note 2, at 304.
  14. . ‘Our Plan Didn’t Work’: De Blasio Indicates Openness to Keeping the SHSAT, Spectrum News NY1 (Sept. 25, 2019, 10:01 PM), [].
  15. . James Finley, The Legal Battle Over the Nation’s Top High School Reveals a Lot About NoVA’s Education Chaos, N. Va. Mag. (Nov. 11, 2021), https:// [].
  16. . See infra Sections III.B, III.C.
  17. . See Jennifer Lee et al., Asian Americans Support for Affirmative Action Increased Since 2016, AAPI Data: Data Bits (Feb. 4, 2021), []; Asian American Civil Rights Orgs Affirm Race-Conscious College Admissions Expand Opportunities for All Students of Color, Asian Ams. Advancing Just. (Jan. 24, 2022), [] (“Affirmative action, diversity, and anti-discrimination programs are essential to opening up opportunities for women and people of color, including Asian Americans . . . . Contrary to measuring merit, universities have increasingly recognized that standardized test scores are poor predictors of future academic success and have a troubling record of racial bias.”).
  18. . Harpalani, supra note 2, at 304, 324.
  19. . See Claire Jean Kim, The Racial Triangulation of Asian Americans, 27 Pol. & Soc’y 105, 107 (1999) (arguing that Asian Americans experience both “relative valorization” and “civic ostracism” when positioned against members of different racial groups).
  20. . Harpalani, supra note 2, at 254–56.
  21. . For purposes of this Article, I also take no position on whether the elimination of entrance exams would in fact benefit Black, Latinx, and Native American applicants. That depends on exactly what selection methods would replace the tests. Predictions or even results from the first year of a new admissions policy may not be indicative. Over the course of years, motivated applicants will adapt their strategies to the policy, if they have the resources to do so.
  22. . Kim, supra note 18, at 106.
  23. . Id. at 106–07.
  24. . Id. at 107.
  25. . Id.
  26. . Id.
  27. . Id.
  28. . Id.
  29. . Vinay Harpalani, Racial Triangulation, Interest Convergence, and the Double-Consciousness of Asian Americans, 27 Ga. St. Univ. L. Rev. 1361, 1369 (2021).
  30. . Id.
  31. . See Harpalani, supra note 2, at 244–49; Niral Shah, ‘Model Minority’: It’s No Use Disguising Racism as a Compliment, The WIRE (Mar. 22, 2021),
    society/model-minority-its-no-use-disguising-racism-as-a-compliment [].
  32. . See Harpalani, supra note 2, at 310–12.
  33. . See generally id. at 312–18.
  34. . Immigration and Nationality Act of 1965, Pub. L. No. 89-236, 79 Stat. 911.
  35. . See Harpalani, supra note 2, at 246.
  36. . Id.
  37. . Id. at 247.
  38. . Dana Takagi, The Retreat from Race: Asian-American Admissions and Racial Politics 22 (1992).
  39. . Id. at 60.
  40. . Id.
  41. . Linda Mathews, When Being Best Isn’t Good Enough: Why Yat-pang Au Won’t Be Going to Berkeley, L.A. Times (July 19, 1987), [].
  42. . Takagi, supra note 37, at 60.
  43. . Id.
  44. . This dual relative valorization and civic ostracism of Asian Americans occurred long before the 1980s: it began with the first wave of immigrants from Asian countries in the last nineteenth and early twentieth centuries. See Harpalani, supra note 28, at 1372–73 (discussing valorization and civic ostracism of Asian American immigrants in 19th century).
  45. . For a full description and etymology of the peril of the mind trope, see Harpalani, supra note 2, at 254–56.
  46. . Id. at 249.
  47. . Id. at 255–56.
  48. . Suein Hwang, The New White Flight, Wall St. J. (Nov. 19, 2005), https://www.wsj.
    com/articles/SB113236377590902105 [].
  49. . Id.
  50. . Id.
  51. . Id. (noting that one particular parent left Monte Vista’s parents’ night with concerns that school focused too heavily on test scores and prestige of colleges that its graduates attended).
  52. . Anjali Enjeti, Ghosts of White People Past: Witnessing White Flight from an Asian Ethnoburb, Pac. Standard (June 14, 2017), [] (“In a decade, the white population at our local elementary school plummets from 397 to 195 white students, or from 55 percent to 23 percent of the total student body.”).
  53. . Id.
  54. . See Deirdre Oakley, Trespassers? Asian Americans and the Battle for Suburbia, by Willow S. Lung-Amam, Berkeley, University of California Press, 2017, 41 J. Urb. Aff. 409, 410 (2018) (book review) (“In her interviews, Lung-Amam found that though White flight from the highly demanding STEM[]-focused schools was dominant, some Asian households had grown weary of the cutthroat academic environment as well, opting to send their children to other good but less competitive and stressful schools.”); Press Release, Research Ties Persistence of ‘White Flight’ to Race, Not Socioeconomic Factors, Ind. Univ. (Apr. 10, 2018), []; Jenny Tsai, “Too Many Asians at This School”: Racialized Perceptions and Identity Formation 45 (Mar. 2007) (B.A. thesis, Harvard College), []; Richard Keiser, Subverting the American Dream, Le Monde Diplomatique (Sept. 2020), [] (recognizing patterns of “White flight” in Maryland, New Jersey, and New York). But see Robert W. Fairlie & Alexandra M. Resch, Is There “White Flight” into Private Schools? Evidence from the National Educational Longitudinal Survey, 84 Rev. Econ. & Stat. 21, 31–32 (2002) (finding strong evidence “that white families are fleeing public schools with large concentrations of poor minority schoolchildren” but that data concerning White flight from Asians is “less clear”).
  55. . See D.G. Hart, The American Virtue of Hard Work, Real Clear Pub. Aff. (Oct. 8, 2021),
    d_work_797958.html (discussing “narrative of America as a society of immigrants, inventors, and industrialists whose labor made America remarkable.”) []. But see Jonathan Malesic, The Future of Work Should Mean Working Less, N.Y. Times (Sept. 23, 2021), (noting that “work sits at the heart of Americans’ vision of human flourishing . . . but . . . often doesn’t live up to these ideals.”) [].
  56. See Takagi, supra note 37, at 23–24 (“At some universities, Asian Americans made charges of discrimination outright—accusing university officials of using illegal quotas and ceilings—to limit Asian American enrollment. At other schools, Asian American students and/or faculty concerned about possible discrimination against Asian American applicants requested reviews of undergraduate admissions policies.”).
  57. . See id. at 57–108 (describing controversies involving Asian Americans and admissions at various elite universities).
  58. . See id. at 81–82 (noting how various university officials described Asian American applicants as “not well-rounded” and “’below average in personal ratings”).
  59. . See Harpalani, supra note 2, at 257–60.
  60. . U.S. Gen. Acct. Off., HEHS-96-23, Department of Education: Efforts by the Office for Civil Rights to Resolve Asian-American Complaints 26 (1995); Liliana M. Garces & OiYan Poon, The Civ. Rts. Project, Asian Americans and Race-Conscious Admissions: Understanding the Conservative Opposition’s Strategy of Misinformation, Intimidation & Racial Division 9 (2018), https://www.civilrights
    midation-racial-division/RaceCon_GarcesPoon_AsianAmericansRaceConsciousAdmi.pdf [].
  61. . See Takagi, supra note 37, at 65–66, 96.
  62. . See Jerry Kang, Negative Action Against Asian Americans: The Internal Instability of Dworkin’s Defense of Affirmative Action, 31 Harv. C.R.-C.L. L. Rev. 1, 3 (1996); Harpalani, supra note 2, at 263–64.
  63. . See Harpalani, supra note 2, at 273–74.
  64. . 438 U.S. 265, 378 (1978).
  65. .William C. Kidder, Affirmative Action in Higher Education: Recent Developments in Litigation, Admissions and Diversity Research, 12 Berkeley La Raza L.J. 173, 204 (2001). In 2020, California voters rejected a referendum to repeal its state constitutional ban on affirmative action. Vinay Harpalani, What the California Vote to Keep the Ban on Affirmative Action Means for Higher Education, The Conversation (Nov. 10, 2020, 8:22 AM), [].
  66. . State Propositions: A Snapshot of Voters, L.A. Times (Nov. 9, 1996), [].
  67. . See Kidder, supra note 64, at 195 (discussing Washington’s ban on affirmative action).
  68. . Pac. Legal Found., [].
  69. . Ctr. for Individual Rights, [].
  70. . Garces & Poon, supra note 59, at 10; Harpalani, supra note 2, at 303.
  71. . 539 U.S. 306, 334 (2003). However, in Grutter’s companion case, Gratz v. Bollinger, the Court rejected a mechanical point system that awarded a fixed number of points to all underrepresented minority applicants. 539 U.S. 244, 270 (2003).
  72. . Fisher v. Univ. of Tex. at Austin (Fisher II), 136 S. Ct. 2198, 2207 (2016).
  73. . Grutter, 539 U.S. at 310; Fisher II, 136 S. Ct. at 2204.
  74. . See generally Vinay Harpalani, “Trumping” Affirmative Action, 66 Vill. L. Rev. Tolle Lege 1 (2021).
  75. . About, Students for Fair Admissions, [].
  76. . Sarah Hinger, Meet Edward Blum, the Man Who Wants to Kill Affirmative Action in Higher Education, ACLU (Oct. 18, 2018, 3:00 PM), [].
  77. . E.g., Morgan Smith, One Man Standing Against Race-Based Laws, N.Y. Times (Feb. 23, 2012), [].
  78. . See Hinger, supra note 75.
  79. . Stephanie Mencimer, Here’s the Next Sleeper Challenge to Affirmative Action, Mother Jones (July 19, 2016), [].
  80. . Id. See also Complaint at 8–9, Students for Fair Admissions, Inc. v. President and Fellows of Harvard Coll., 397 F. Supp. 3d 126 (D. Mass. 2019) (No. 1:14-cv-14176), 2014 WL 6241935.
  81. . Complaint, supra note 79, at 8. In contrast to Abigail Fisher, who allegedly may not have had the academic credentials for a high chance of admission to the University of Texas at Austin, the plaintiffs in SFFA v. Harvard are stellar academic achievers. See Mencimer, supra note 78.
  82. . Complaint, supra note 79, at 9.
  83. . Id.
  84. . Students for Fair Admission, Inc. v. President & Fellows of Harvard Coll. (SFFA), 397 F. Supp. 3d 126, 183 (D. Mass. 2019).
  85. . Students for Fair Admission, Inc. v. President & Fellows of Harvard Coll. (SFFA), 980 F.3d 157, 164 (1st Cir. 2020).
  86. . See Krantz & Fernandes, supra note 5 (observing that “Justices John Roberts, Samuel Alito, and Clarence Thomas have expressed a desire to strike down the legal precedent upholding race-conscious admissions”).
  87. . Harpalani, supra note 2, at 292.
  88. . See id. at 286.
  89. . See id. at 287–88.
  90. . See id. at 286–87.
  91. . Id. at 294–95.
  92. . Id. at 295.
  93. . Id. at 296. Other supporters of affirmative action have noted the hypocrisy of liberals downplaying allegations of racism against Asian Americans. See Jonathan Chait, The Left Is Gaslighting Asian Americans About College Admissions, Intelligencer, Feb. 8, 2022, (noting that author “support[s] affirmative action” but that it is difficult to “[i]magine a liberal in any other context being presented with evidence that a [] minority group is faring systematically worse on a subjective personality measure and concluding that this does not reflect a pattern of discrimination.”) [].
  94. . Harpalani, supra note 2, at 285–86 n.311 and accompanying text.
  95. . Julie J. Park, Test Prep Is a Rite of Passage for Many Asian-Americans, The Conversation (Nov. 28, 2018, 6:42 AM) [hereinafter Park, Test Prep Is a Rite of Passage], []; Julie J. Park, It Takes a Village (or an Ethnic Economy): The Varying Roles of Socioeconomic Status, Religion, and Social Capital in SAT Preparation for Chinese and Korean American Students, 49 Am. Educ. Rsch. J. 624, 626 (2012) [hereinafter Park, It Takes a Village] (“For a significant portion of . . . Asian American students, taking SAT prep is a rite of passage . . . .”).
  96. . Id.
  97. . See Park, It Takes a Village, supra note 94, at 627.
  98. . See Park, Test Prep is a Rite of Passage, supra note 94. In 2018, Chinese high school students scored highest among 79 participating countries on an international standardized test of “reading, math, and science skills.” Stephen Johnson, China’s schoolkids beat American students in all academic categories, The Present (Dec. 5, 2019), (“Chinese students far outperformed their international peers in a test of reading, math, and science skills, according to the 2018 results of the Program for International Student Assessment. [T]he results . . . showed that the poorest 10 percent of students in China still outperformed the OECD average . . . perhaps surprising for a country with an average household net adjusted disposable income per capita that’s about three times less than the [average of the 79 countries participating in the test].”) [].
  99. . See Park, Test Prep is a Rite of Passage, supra note 94.
  100. . See Nick Anderson, Harvard Won’t Require SAT or ACT Through 2026 as Test-optional Push Grows, Wash. Post (Dec. 16, 2021),
    ation/2021/12/16/harvard-test-optional-college-admissions/ [].
  101. . Press Release, Nat’l Ctr. for Fair & Open Testing, More Than Half of All U.S. Four-Years Colleges and Universities Will Be Test-Optional for Fall 2021 Admission (June 15, 2020), [].
  102. . See Anderson, supra note 99.
  103. . Id.
  104. . See, e.g., William A. Jacobson, Harvard Dropping SAT Requirement for Several More Years Enables More Anti-Asian Discrimination, Legal Insurrection (Dec. 29, 2021), [].(arguing that Harvard discriminates against Asian Americans through “use of ‘soft’ factors in admissions decisions” and that elimination of the requirement for college entrance exams is “an obvious ploy to hide the evidence of anti-Asian discrimination[.]”).
  105. . See Anderson, supra note 99.
  106. . See Christine Tran & Saumya Gupta, University of California announces it will not use SAT, ACT in admissions decisions, Daily Bruin (May 14, 2021), [].
  107. . AACE Strongly Opposes University of California President’s Proposal to Abandon SAT and ACT in Student Admissions, Asian Am. Coal. for Educ. (May 19, 2020), [].
  108. . Id.
  109. . See, e.g., Anthony Carnevale & Michael C. Quinn, Georgetown Univ. McCourt Sch. Pub. Pol’y, Ctr. on Educ. & Workforce, Selective Bias: Asian Americans, Test Scores, and Holistic Admissions 8 (2021), https://1gyhoq479ufd3y [] (discussing a study of 91 selective colleges’ and universities’ admissions data that concluded that “[e]ven if standardized test scores were the only factor considered in admissions, the Asian American share of enrollment at the most selective colleges would increase by no more than 2 percentage points”).
  110. . See id.
  111. . See Nicole Gon Ochi & OiYan Poon, Asian Americans and Affirmative Action—UNC Amicus Brief, 24 UCLA Asian Pac. Am. L.J. 29, 33 n.16 (2020) (citing Robert Teranishi, et al., CARE, iCount: A Data Quality Movement for Asian Americans and Pacific Islanders in Higher Education 18 (2013), []).
  112. . See Douglas H. Lee, Colo. State Univ., Race & Intersectional Stud. in Educ. Equity, Eliminating Standardized Testing to Increase Access: Southeast Asian Americans and the University of California System 2–7 (2020),
    2020/05/RISEreport_SATii-UCSystem-SEAsians_final.pdf [].
  113. . See Eliza Shapiro, Only 7 Black Students Got into Stuyvesant, N.Y.’s Most Selective High School, Out of 895 Spots, N.Y. Times (Mar. 18, 2019),
    18/nyregion/black-students-nyc-high-schools.html [].
  114. . See The SHSAT: A Study Guide, Spectrum News (June 19, 2018, 10:25 AM), [].
  115. . Shapiro, supra note 112. In 1971, New York passed the Hecht-Calandra Act, N.Y. Educ. Law § 2590-g(12)(b) (1997), which dictated that “[a]dmissions to the Bronx High School of Science, Stuyvesant High School and Brooklyn Technical High School and such similar further special high schools which may be established shall be solely and exclusively by taking a competitive, objective and scholastic achievement examination.” Christa McAuliffe Intermediate Sch. PTO v. de Blasio, 364 F. Supp. 3d 253, 264 (S.D.N.Y.), aff’d, 788 F. App’x 85 (2d Cir. 2019). This text has been amended to state that “admissions to the special schools shall be conducted in accordance with the law in effect on the date preceding the effective date of this section.” Id. at 264 n.6.
  116. . Shapiro, supra note 112.
  117. . Id.
  118. . See id. (“Another highly selective specialized school, the Bronx High School of Science, made 12 offers to black students this year, down from 25 last year.”); see also Eliza Shapiro & K.K. Rebecca Lai, How New York’s Elite Public Schools Lost Their Black and Hispanic Students, N.Y. Times (June 3, 2019),
    03/nyregion/nyc-public-schools-black-hispanic-students.html [] (explaining how black and Latina/o students were not always so starkly underrepresented in the NYC specialized high schools). The representation of Black and Latina/o students was much higher a few decades ago, even with the SHSAT as the sole admission criterion. For example, in 1976, Black and Latina/o students comprised 23% of students at the Bronx High School of Science (compared to 9% in 2017), 14% of students at Stuyvesant High School (compared to 4% in 2017), and 50% of the students at Brooklyn Technical High School (compared to 14% in 2017). Id.
  119. . See Mayor de Blasio and Chancellor Carranza Announce Plan to Improve Diversity at Specialized High Schools, N.Y.C. Off. of the Mayor (June 3, 2018), []; see also N.Y.C. Dep’t Educ., Specialized High Schools Proposal 6 (2018), [].
  120. . See Clio Chang, Whose Side Are Asian-Americans On?, New Republic (Sept. 24, 2018), [https://perma.
  121. . See Alvin Chang, The Fraught Racial Politics of Entrance Exams for Elite High Schools, Vox (June 14, 2018, 9:10 AM), [].
  122. . Christina Veiga, Program aiming to integrate NYC’s specialized high schools continues to enroll few black and Hispanic students, Chalkbeat (May 1, 2020, 4:33 PM), []. The SHSAT was a source of controversy even at its inception in 1971. Proponents of the test claimed that it would preserve “high standards” that were being eroded by the New York City’s Board of Education’s reforms, while opponents saw it as “an attempt by whites to guard against increased numbers of blacks and Puerto Ricans” in the specialized high schools. See Francis X. Clines, Assembly Votes High School Curb, N.Y. Times, May 20, 1971, at 1, []. The bill implementing the SHSAT also limited the percentage of “gifted disadvantaged students” admitted to the specialized high schools via the Discovery Program. Id.
  123. . See Christa McAuliffe Intermediate Sch. PTO, supra note 114, at 262, 267–68.
  124. . Elizabeth A. Harris & Winnie Hu, Plan to Diversify Elite High Schools Draws the Ire of Asian Groups, N.Y. Times, June 6, 2018, at A18; see Pooja Salhotra, Fight Intensifies Over Exam That’s Said to Keep Black Students Out of NYC’s Elite High Schools, Bedford & Bowery (Dec. 4, 2020), [].
  125. . See N.Y.C. Indep. Budget Off., Admissions Overhaul: Simulating the Outcome Under the Mayor’s Plan for Admissions to the City’s Specialized High Schools 4 (2019), [].
  126. . See Christa McAuliffe Intermediate Sch. PTO, supra note 114, at 277.
  127. . See Harris & Hu, supra note 123; Beenish Ahmed, Asian-American New Yorkers Rally in Opposition to Reform of Elite Specialized High Schools, WNYC News (July 5, 2018), [].
  128. . See Harris & Hu, supra note 123.
  129. . Chris Fuchs, At forum on NYC’s high school admissions, frustration rules, NBC News (Apr. 12, 2019, 5:56 PM), [].
  130. . See Spectrum News Staff, ‘Our Plan Didn’t Work’: De Blasio Indicates Openness to Keeping the SHSAT, Spectrum News N.Y. 1 (Sept. 25, 2019), [].
  131. . Chris M. Kwok, The Inscrutable SHSAT, 27 Asian Am. L. J. 32, 34 (2020).
  132. . See Christa McAuliffe Intermediate Sch. PTO, supra note 114, at 264–71.
  133. . See id. at 261.
  134. . See id. at 277.
  135. . See id. at 268.
  136. . See id. at 263–64.
  137. . Id.
  138. . Id. at 261.
  139. . See Stopping New York’s Attempt to Discriminate Against Asian-American Students, Pacific Legal Foundation, [].
  140. . Kenny Xu, The Test Will Set You Free, Tablet (July 12, 2021), [].
  141. See Specialized High Schools Proposal, supra note 118, at 13.
  142. . Victoria Tran, Asian Americans are Falling Through the Cracks in Data Representation and Social Services, Urb. Inst. (June 19, 2018), []. This percentage varies depending on the poverty measure used. New York City’s 2019 Social Indicators and Equity Report found that the percentage of Asian Americans in New York City living in poverty varied from 23.4% to 26.6% from 2013 to 2017. N.Y.C. Mayor’s Off. Econ. Opportunity, Social Indicators and Equity Report 2019, at 68 (2019), [
    B44M-2WCP]. The report notes that “Asian and Hispanic/Latinx New Yorkers have had the highest poverty rates for each year the NYCgov poverty rate has been published.” Id. at 67. The New York City Government Poverty Measure reported that between 2015 and 2019, the Asian American poverty rate varied from 20.8% to 22.4%. N.Y.C. Mayor’s Off. Econ. Opportunity, New York City Government Poverty Measure 2019, at 60 (2019), [https://perma.
    cc/V2JX-YCZ6]. A June 2018 report by the Asian American Federation indicates that by New York City’s measure, 25.6% of Asian Americans lived in poverty from 2012 to 2016. See Asian Am. Fed’n, Hidden in Plain Sight 14 (2018),
    []. Alternatively, the Census Bureau’s American Community Survey reported that during that same time period, 19.9% of Asian Americans lived in poverty. Id.
  143. . See Alia Wong, 4 Myths Fueling the Fight Over NYC’s Exclusive High Schools, The Atlantic (Mar. 21, 2019),
    -admissions-controversy-fact-or-fiction/585460/ [].
  144. . See Xu, supra note 139.
  145. . See Wong, supra note 142.
  146. . Rong Xiaoqing, Test Anxiety, City J. (Apr. 4, 2021),
    org/asian-american-activists-fighting-ncy-school-reform [].
  147. . See id.
  148. . Id. However, there are some Asian Americans who support both the SHSAT and critical race theory, such as Chris Kwok, a professor at Hunter College. See id.
  149. . Specialized High School Offers to Black, Latino Students in NYC See Decline, 4 New York (Apr. 29, 2021), [].
  150. . See Jay Caspian Kang, Opinion, Democrats Still Don’t Understand Asian American Voters, N.Y. Times (Nov. 15, 2021), [].
  151. . Rong Xiaoqing et al., Chinese Voters Came Out in Force for the GOP in NYC, Shaking up Politics, The City (Nov. 11, 2021),
    11/11/22777346/chinese-new-yorkers-voted-for-sliwa-gop-republicans [
  152. . Id.
  153. . Id.
  154. . Osamudia James, Risky Education, 89 Geo. Wash. L. Rev 667, 714 (2021). Professor James further contends that “[t]riangulation masked the historical and current overrepresentation of white students in the [specialized high] schools, an overrepresentation that was not targeted for change in the mayor’s proposal.” Id.
  155. . See supra Section II.A.
  156. . See Complaint and Demand for Jury Trial, Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 1:21-cv-00296 (E.D. Va. Mar. 10, 2021).
  157. . See 2021 Best U.S. High Schools, U.S. News & World Rep., https://www.usnews.
    com/education/best-high-schools/national-rankings [].
  158. . Xuemei Han et al., Demographics Report 2019: County of Fairfax, Virginia II-6,
    demographicreports/fullreport.pdf [].
  159. . TJHSST Offers Admission to 486 Students, Fairfax Cnty. Pub. Schs. (June 1, 2020), [
  160. . See Complaint and Demand for Jury Trial, supra note 155, at 10. For more information on the standardized exam for admission to TJ, see Fairfax Cnty Pub. Sch., Student Handbook 1 (2012),
    %202012.pdf [].
  161. . See Complaint and Demand for Jury Trial, supra note 155, at 10.
  162. . See School Board Chooses Holistic Review as New Admissions Policy for TJHSST, Fairfax Cnty. Pub. Schs. (Dec. 18, 2020), [].
  163. . Id.
  164. . Id.
  165. . Id. (noting selection would take place via “holistic review . . . of students whose applications demonstrate enhanced merit . . . evaluated on [students] grade point average (GPA); a portrait sheet where [students] will be asked to demonstrate Portrait of a Graduate attributes and 21st century skills; a problem-solving essay; and experience factors, including students who are economically disadvantaged, English language learners, special education students, or students who are currently attending underrepresented middle schools.”).
  166. . See Matthew Barakat, Suit Alleging Admissions Discrimination at Thomas Jefferson HS Moves Forward, NBC4 Wash. (May 21, 2021),
  167. . Complaint and Demand for Jury Trial, supra note 155, at 3.
  168. . Id. at 13–14.
  169. . Id. at 13.
  170. . Id. at 13–14.
  171. . Id.
  172. . See id. at 14.
  173. . See Plaintiff’s Memorandum in Support of Motion for Summary Judgment at 32, Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 1:21-cv-00296 (E.D. Va. 2022).
  174. . Id. Although it presented evidence of anti-Asian American sentiment among members of the Fairfax County School Board and other state officials, Coalition for TJ argued that “[d]iscriminatory intent does not require racial animus.” Id.
  175. . Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979).
  176. . See Bakarat, supra note 165.
  177. . See TJHSST Offers Admission to 550 Students; Broadens Access to Students Who Have an Aptitude for STEM, Fairfax Cnty. Pub. Schs. (Jun 23, 2021), [].
  178. . Id.
  179. . Id.
  180. . Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 1:21-cv-296, 2022 WL 579809 (E.D. Va. Feb. 25, 2022).
  181. . Id. at *10.
  182. . Id. at *5 (citing Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266–68 (1977)).
  183. . Id.
  184. . Id. at *8.
  185. . Id.
  186. . Id.
  187. . Id. at *9.
  188. . Id. at *10 (citing Fisher v. Univ. of Tex. at Austin (Fisher I), 570 U.S. 297, 311 (2013)).
  189. . Id. at *5; see also supra note 173 and accompanying text. Even back in May 2021, when he denied the Plaintiffs’ motion for preliminary injunction, Judge Hilton seemed at least in part to agree with them. When he denied the School Board’s motion to dismiss the lawsuit, he stated that “[e]verybody knows the [new admissions] policy is not race neutral, and that it’s designed to affect the racial composition of the school.” Barakat, supra note 165. If the U.S. Supreme Court strikes down race-conscious university admissions via individualized review, in either SFFA v. Harvard or another case, then advocates for racial equity should be ready for Coalition for Thomas Jefferson v. Fairfax County School Board to raise the constitutionality of policies that have the purpose of garnering racial diversity even if they do not involve consideration of an individual applicant’s race.
  190. . See Hannah Natanson, Fairfax School Board Appeals Judge’s Invalidation of Thomas Jefferson Admissions System, Wash. Post (Mar. 14, 2022, 6:49 PM), [].
  191. . See Hannah Natanson & Rachel Weiner, Judge Denies Fairfax Schools Option to Leave Thomas Jefferson Admissions Policy in Place, Wash. Post (Mar. 11, 2022, 12:19 PM), [].
  192. . Order at 1, Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 22-1280, (4th Cir. Mar. 31, 2022) [].
  193. . Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 22-1280 (4th Cir. Mar. 31, 2022), petition for cert. filed,
    5038911_FINAL%20FINAL%20TJ%20APPLICATION.pdf [].
  194. William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y. Univ. J. L. & Liberty 1, 1 (2015) (describing Supreme Court’s “shadow docket” as “a range of orders and summary decisions that defy its normal procedural regularity”). Professor Stephen Vladeck describes the shadow docket as “the significant volume of orders and summary decisions that the Court issues without full briefing and oral argument.” Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123, 125 (2019). In recent years, the shadow docket has received much attention because “its use seems to be growing, along with its influence on the law.” Louis Jacobson, The Supreme Court’s ‘shadow docket’: What You Need to Know, PolitiFact, (Oct. 18, 2021), [].
  195. . Order denied, Coal. for TJ v. Fairfax Cnty. Sch. Bd., (Apr. 25, 2022) [].
  196. . In his opinion, Judge Hilton noted that “the Board does not appear to have broken any procedural rules.” Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 1:21-cv-296, 2022 WL 579809, at *7 (E.D. Va. Feb. 25, 2022). Nevertheless, one can at least question whether the School Board’s actions violated the Virginia Freedom of Information Act, which states:No resolution, ordinance, rule, contract, regulation or motion adopted, passed or agreed to in a closed meeting shall become effective unless the public body, following the meeting, reconvenes in open meeting and takes a vote of the membership on such resolution, ordinance, rule, contract, regulation, or motion that shall have its substance reasonably identified in the open meeting.

    Va. Code Ann. § 2.2-3711(B) (West, Westlaw through the 2022 Reg. Sess.).

  197. . See supra Sections II.A, II.B.
  198. . Complaint and Demand for Jury Trial, supra note 155, at 15–16. These comments reflect the stereotype of Asian American “tiger” parents who pressure their children to achieve academic success. See generally Amy Chua, Battle Hymn of the Tiger Mother (2011) (coining term “tiger mother” and describing how her parenting style was influenced by Chinese heritage); see also Su Yeong Kim, What Is “Tiger” Parenting? How Does it Affect Children?, Developmental Psych., Summer 2013, at 26, 28, (offering a critique of “tiger” parenting) [].
  199. . Complaint and Demand for Jury Trial, supra note 155, at 15–16.
  200. . See id. at 17.
  201. . Id.
  202. . Id.
  203. . See id. at 4–7.
  204. . Id. Additionally, Coalition for TJ reports that it has one member who “identifies as Black but is half Asian American.” Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 1:21-cv-296, 2022 WL 579809, at *1.
  205. . See supra notes 74–79 and accompanying text for more about the Plaintiffs in Fisher v. University of Texas at Austin and SFFA v. Harvard. If children of the Coalition for TJ members do eventually provide a public human face to the Coalition’s case, it would have an eerily ironic parallel in Brown v. Board of Education, where part of the strategy was to underscore the harm of segregation to Black children. See Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954) (“To separate [Black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”); see also Vinay Harpalani et al., Doll Studies, in 2 Encyclopedia of Race & Racism 67, 68 (Patrick L. Mason et al. eds., 2d ed. 2013) (“[B]y emphasizing the vulnerability of young and innocent children, [Brown] presented racism as a human dilemma—creating an emotional appeal to end segregation that no amount of legal reasoning could have accomplished.”).
  206. . See Plaintiff’s Memorandum in Support of Motion for Summary Judgment, supra note 172, at 5–6.
  207. . Id.
  208. . Id. at 6.
  209. . Id. at 6, 20.
  210. . See Here’s a Message from Glenn Youngkin Especially for Coalition for TJ. UPDATE: Governor-Elect Youngkin!, Coal. for TJ (Apr. 9, 2021), https://www.facebook
    .com/CoalitionforTJ/videos/heres-a-message-from-glenn-youngkin-especially-for-coalition-for-tj-update-gover/973036116564362/ [] [hereinafter Here’s a Message from Glen Youngkin].
  211. . See supra notes 149–152 and accompanying text.
  212. . Here’s a Message from Glen Youngkin, supra note 209.
  213. . Id. See also James Oliphant et al., Culture War on Education Rages in Virginia Governor’s Race, Reuters (July 22, 2021), [].
  214. . Scott Clement et al., Exit Poll Results from the 2021 Election for Virginia Governor, Wash. Post (Nov. 3, 2021), [].
  215. . Id.
  216. . See Plaintiff’s Memorandum in Support of Motion for Summary Judgment, supra note 205, at 1–2.
  217. . See Jeffrey R. Young, What an Admissions Fight at America’s ‘Best’ High School Says About Educational Equity, EdSurge (May 25, 2021),
  218. . Tex. Educ. Code Ann. § 51.803(a-1) (West, Westlaw through the 2021 Reg. and Called Sess. of the 87th Leg.).
  219. . See Gratz v. Bollinger, 539 U.S. 244, 303 n.10 (2003) (Ginsburg, J., dissenting) (“Calling . . . 10% or 20% plans ‘race-neutral’ seems to me disingenuous, for they ‘unquestionably were adopted with the specific purpose of increasing representation of African-Americans and Hispanics in the public higher education system.’”); Id. at 298 (Souter, J., dissenting) (“‘[P]ercentage plans’ are just as race conscious as the point scheme (and fairly so), but they get their racially diverse results without saying directly what they are doing or why they are doing it.”); Fisher v. Univ. of Tex. at Austin (Fisher I), 570 U.S. 297, 335 (2013) (Ginsburg, J., dissenting) (“[O]nly an ostrich could regard the supposedly neutral alternatives [referring to Texas’s Top Ten Percent Law] as race unconscious . . . . [T]he vaunted alternatives suffer from ‘the disadvantage of deliberate obfuscation.’”) (quoting Gratz, 539 U.S. at 298) (Souter, J., dissenting);Fisher I, 631 F.3d at 242 n.156, rev’d, 570 U.S. 297 (2013) (“A court considering the constitutionality of the [Top Ten Percent Law] would examine whether Texas enacted the Law (and corresponding admissions policies) because of its effects on identifiable racial groups or in spite of those effects”); Brief for Social Scientists Glenn C. Loury et al. as Amici Curiae Supporting Respondents, Grutter, 539 U.S. 306 (2003) (Nos. 02-241, 02-516), WL 402129, at *3, *9 & *10 (noting that “it is not clear that [percentage] plans are actually race-neutral” and that some “have signaled interest in … challeng[ing]” such plans.).
  220. . See Complaint and Demand for Jury Trial, supra note 155, at 15.
  221. . One difference between the TJ admissions policy and Top Ten Percent Law is that the former involves not only class rank but also individualized review of applicants as part of a competitive application process. In the context of race-conscious admissions in K–12 education, former Justice Anthony Kennedy addressed this issue. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 789 (2007) (Kennedy, J., concurring in part and concurring in the judgment) (“School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible.”). If the U.S. Supreme Court strikes down TJ’s admissions policy on the merits, advocates for racial equity and diversity programs will have to argue for a similar distinction for race-neutral programs. With Justice Kennedy no longer on the Court, it is difficult to envision the Court upholding such a distinction.
  222. . See Aggie J. Yellow Horse et al., Stop AAPI Hate National Report 3 (Nov. 21, 2021).
  223. . Recently, University of Pennsylvania Carey Law School Professor Amy Wax expressed racist sentiments about Asian Americans, stating that “as long as most Asians support Democrats and help to advance their positions, I think the United States is better off with fewer Asians and less Asian immigration.” Glenn Loury, Amy Wax Redux, Glen Show (Jan. 2, 2022), []. Many University of Pennsylvania students, alumni, and others expressed their outrage at these comments. See Jared Mitovich, Penn Law Professor Amy Wax’s Anti-Asian Comments Spark National Scrutiny, Daily Pennsylvanian (Jan. 5, 2022),
    2022/01/amy-wax-asian-american-comments-penn-law []. The Law School’s Dean, Theodore Ruger, announced that he has “decided it is [his] responsibility as Dean to initiate the University procedure governing sanctions taken against a faculty member” in response to Wax’s comments. Ted Ruger, January 18 Statement About Actions Regarding Amy Wax, Penn Law (Jan. 18, 2022), [].
  224. . Discussion of Justice Stephen Breyer’s replacement on the U.S. Supreme Court led to another instance where Asian Americans were pitted against Black Americans. After Justice Breyer announced his retirement, Ilya Shapiro, who is set to begin a faculty position at Georgetown Law School, tweeted that South Asian American Sri Srinivasan was “objectively [the] best pick for [President] Biden” to appoint, but that instead Biden would choose a “lesser Black woman” because of his prior promise. See Blake Montgomery, New Georgetown Law Exec Deletes ‘Appalling’ Tweets About Biden SCOTUS Picks, Daily Beast (Jan. 27. 2022, 4:46 PM), []. Georgetown Law School Dean William Treanor denounced Shapiro’s remarks. Id. But the Georgetown Black Law Students Association (BLSA) went a step further and called for Shapiro’s appointment to be revoked. Letter from Geo. Law Center Black Law Students Ass’n, to Geo. Law Center Admin. (Jan. 28, 20022),
    d/1aAbUX9alwA9vQYdqemBeBVnD0OcBb0Xl46f0q_lCtnw/edit []. Among the many reasons it gave for this request, the BLSA noted that “Shapiro’s comments pit South Asian communities against Black communities in furtherance of White supremacy[,] [which] . . . undermines the inclusive environment Georgetown University claims to ‘stand for.’” Id.
  225. . Part of this conversation should question the existence of elite education itself. By definition, elite education is a scarce resource that can only be accessed through a selective process—else it would not be deemed “elite.” Competition for any scarce resource will lead to conflict and inequity. Given the racial structure and dynamics of U.S. society, the only way to eliminate racial conflict and inequity may be to eliminate elite educational institutions altogether.