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What are the Texas affirmative action cases really about?

This article was translated into Chinese and published on WeChat through a collaboration with Chinese for Affirmative Action

Author: Wan Ting

(Image courtesy of Slate)

NOTE: This article has been adapted from an article we previously published, “I Talked With My Family About ACA-5,” in order to be able to republish its content on WeChat. See the original article here:

Affirmative action is in the news again—this time, in Texas.

You might remember the 2016 Fisher v. University of Texas case, in which a white student named Abigail Fisher, with the help of anti-affirmative action group SFFA, sued UT Austin for denying her admission based on her race. The court ruled in favor of UT Austin, therefore upholding the university’s race-conscious admission policies.

In 2021, SFFA has returned with a very similar case: SFFA v. University of Texas. Filed on behalf of two white students who also accused the university of denying them admission on the basis of race, federal Judge Robert Pitman again ruled in favor of UT Austin. Pitman stated that similar legal arguments had already been made twice at the Supreme Court level and that this most recent case was not “significant” enough to be relitigated. In other words, SFFA cannot bring back its case against the university.

While we could debate the legal and/or technical specifics of these cases, what I am more interested in is the misconceptions that these types of cases endorse. (Fisher’s case had hardly any basis to begin with, anyway: Among the students who were offered admission despite having lower grades than Fisher, only five were Black and Latinx, while 42 were white. 168 Black and Latinx students who had grades as good or even better than Fisher were also denied admission.) Attacking race-conscious admissions implies that we live in a country where race does not matter; or, alternatively, that race-conscious admissions do not in any way contribute to its purported goal of addressing racial inequalities. Therefore, to help us understand the broader context in which this most recent case is operating, I’d like to address these two common misconceptions:

  1. “The educational obstacles that students may face (i.e. not being able to afford extra tutoring, having to work a part-time job after school instead of studying, etc.) is a class issue. Therefore, considering race is unnecessary.”

  2. “Race-based affirmative action is just a band-aid solution for educational inequalities that exist way before students apply to college.”

“The educational obstacles that students may face (i.e. not being able to afford extra tutoring, having to work a part-time job after school instead of studying, etc.) is a class issue. Therefore, considering race is unnecessary.”

Maybe another way to put this is: does race matter? And therefore, do race-conscious admissions still matter?

This latest affirmative action case has emerged roughly a year after the most significant racial justice protests in recent history, though the Black Lives Matter movement itself was founded in 2013. I want to first reiterate that Asian Americans absolutely face racism, and Asian American lives absolutely matter. I will be the first to denounce anyone who says Asian lives shouldn't matter. But the U.S. currently values white lives more than Asian lives, Black lives, Latinx lives, Indigenous lives, and all other non-white lives. Black Lives Matter is therefore demanding that the country pay attention to the fact that we are still grappling with racism. Most people aren’t running around with signs that say “White lives matter more than everyone else’s,” but we know it to be true—especially if you are not white.

Racism was baked into our country’s founding. As writer Dihua has elaborated in a previous article, “racist ideology ebbs and flows in conjunction with economic and political circumstance. That is, racist beliefs proliferate when they serve incentive structures that depend on the marginalization of certain groups of people… Black people in the US have faced both exploitation and expropriation, beginning with their enslavement in the colonial era. The purpose of slavery, as the historian Barbara Fields has argued, was not ‘to produce white supremacy,’ but ‘to produce cotton or sugar or rice or tobacco’: enslavement created a class of people who, dispossessed of freedom, property, and rights, were forced to provide the labor necessary to get colonial economic enterprises such as cash crop agriculture off the ground. Even better, because slave labor was unpaid and lifelong, white planters could realize far greater profits than they could with a waged or temporary workforce comprising, say, indentured servants. Racist beliefs that Africans were ‘naturally’ or ‘biologically’ inferior and deserved to be enslaved because they were incapable of surviving otherwise helped to narratively reinforce enslaved Africans’ lived status as a dispossessed labor class.

Sure, slavery was technically abolished in 1865, but right after slavery was abolished, the government implemented the Black codes, which were essentially a legal way to put Black citizens into indentured servitude, to take voting rights away, to control where they lived and how they traveled and to seize children for labor purposes—not slavery, but the next best thing. The Reconstruction Act of 1867 weakened the effect of Black codes, allowing many Black men to start participating in politics, but Reconstruction only lasted 12 years. Retaliatory legislation then ushered in the Jim Crow era, in which Black and white people were segregated in all aspects of life: education, housing, public transportation, restaurants, prisons, drinking fountains, bathrooms, etc. What this meant in practice, however, was that Black people’s spaces were often inferior, if they existed at all: underfunded and crowded schools, poor hospital facilities, etc.

How about Asian people? There weren’t a lot of Asian people in the country during the Jim Crow era, but Asian people generally were not considered white and were also subject to school segregation, antimiscegenation laws (i.e. white and Asian people were not allowed to marry each other), and discriminatory business practices. The Chinese Exclusion Act, which prohibited the immigration of all Chinese laborers, was the first American immigration law to exclude a specific ethnic group. Congress passed it in order to assuage white workers’ concerns about preserving “racial purity” and Chinese men supposedly taking their jobs (sound familiar?), even though Chinese people composed only .002 percent of the nation's population.

“But Asian people have worked so hard to get where we are! See? We’ve experienced so much racism, but unlike Black people, we still have such high household incomes and educational achievement!”

Asian people have undoubtedly faced enormous challenges coming to this country. But we’re not quite done with history yet. First of all, while any non-white American faces racism in America, Black people were enslaved in America for 200 years and Asian people were not. Please do not interpret this statement as me claiming that Asians do not face racism and hardship in America. This is a commonly expressed sentiment I see on WeChat anytime an article talks about the racism that other minorities experience. It is not what I am trying to say.

What are the effects of being enslaved? Was everything magically fixed as soon as slavery ended? No, as we saw from the Black codes and Jim Crow laws. But is everything magically fixed as soon as we remove the Jim Crow laws? Many of us second-generation kids have learned about slavery and segregation in US history, but the racism that lingered after the Jim Crow laws is much more complex. Here is how a recent New York Times article describes it:

"While unchecked discrimination still plays a significant role in shunting opportunities for black Americans, it is white Americans’ centuries-long economic head start that most effectively maintains racial caste today. As soon as laws began to ban racial discrimination against black Americans, white Americans created so-called race-neutral means of maintaining political and economic power. For example, soon after the 15th Amendment granted black men the right to vote, white politicians in many states--understanding that recently freed black Americans were impoverished--implemented poll taxes. In other words, white Americans have long known that in a country where black people have been kept disproportionately poor and prevented from building wealth, rules and policies involving money can be nearly as effective for maintaining the color line as legal segregation. You do not have to have laws forcing segregated housing and schools if white Americans, using their generational wealth and higher incomes, can simply buy their way into expensive enclaves with exclusive public schools that are out of the price range of most black Americans."

Today, because of this country’s history, Black Americans continue to face enormous disadvantages across many aspects of life, including employment, education, housing, and more. (To read about this in more detail, I would encourage you to check out this article.)

But how do our families figure into the picture? We can find our answer in the Immigration Act of 1965, which got rid of earlier quotas on immigration based on national origin (now there’s a real quota) and instead prioritized reuniting families, skilled laborers, and professionals. After 1965, so many Asians immigrated to the United States that the percentage of Asians in the US went from less than 1% in 1965 to 6% in 2015, and the modern immigration wave from Asia accounts for one-quarter of all immigrants who have arrived in the U.S. since 1965. And because immigration policies favored skilled laborers and professionals, immigrants from South and East Asia are more likely than U.S.-born residents to have a bachelor’s degree or more. Afterward came the Immigration Act of 1990, which increased the number of permanent work-based visas and made changes to the temporary skilled worker categories—again favoring highly educated, highly skilled immigrants.

Nobody lands on American soil fully aware of its history. I certainly am continuing to learn, even though I was born here. Many of my international friends from Asia have told me about how coming to America—going from the majority to the minority—was the first time they became aware of their race. But if we do look at history, the Asian people who immigrated to this country after 1965, which includes our family, are on average more educated and more skilled because of the way that immigration policies were structured. Many end up entering high-paying fields such as science, medicine, technology, and finance. I am not saying that immigrating to this country as an Asian person is easy, or that we do not face discrimination. I am also not saying that every single Asian who came to America after 1965 came with a Ph.D. You’d only need to look at other groups of Asian American immigrants, who were often fleeing conflict in Vietnam, Myanmar, and Bhutan to know this. (Arriving as a refugee from a war-torn country inevitably corresponds with lower than average median household income, and lower rates of educational attainment. Chinese Americans in New York City also have one of the highest poverty rates of any ethnic group.) But many Asian Americans did get more of a headstart in this country when they arrived because they happened to be people who already had advantages to begin within their home country.

Along the same lines, Asian Americans do not experience the legacy of slavery in the same way that Black Americans do—especially Asian Americans who immigrated to America after 1965, one year after the Jim Crow era ended. Post-1965 Asian immigrants arrived in a country that had just outlawed discrimination based on race, color, religion, sex, or national origin: the Civil Rights Act of 1964, a victory won by many activists like Martin Luther King, Jr. Post-1965 Asian immigrants did not begin their lives in America after being enslaved for 200 years, but they were able to benefit from legal changes brought about by those who were previously enslaved. Again, this is not inherently any Asian person’s fault and it does not mean that Asians do not experience hardships and racism. This only means that just as our struggles are real, Black people’s struggles are also very real, and at times very different from our struggles. By living in this country, we inherit its legacy—whether or not we decide to recognize it. And our lives are affected by this legacy, whether we like it or not.

Why do I bring up all of this history when talking about affirmative action? The additional consideration of race in the college application process is simply attempting to take into account the fact that we are still living with the weight of this country’s racism. Race inevitably shapes every person’s life—white, Asian, Black, Latinx, or Indigenous, or any combination of them.

After 9/11, hate crimes against South Asian Americans spiked, even resulting in incidents involving murder and permanent brain damage. Today, in 2021, in San Francisco, people are being spat on in the street just because they are Chinese-looking. Violence against Asian Americans is on the rise all across the country because of the coronavirus, and I wrote an entire thesis about the coronavirus-related anti-Asian racism that Chinese American women face. Asian lives matter, but the US certainly doesn’t seem to think they do.

It’s awful to see—and even more awful to experience. Hearing “corona” sneered at me in the streets, and even just bearing witness to the tragic Atlanta shooting, were some of my lowest points this year. But it’s necessary to recognize that the same white supremacy that spits at Asian-looking people in the street telling them to go back to their country also disproportionately kills Black men like George Floyd, even though Black people on average resist less to police officers. It’s the same system that ensures that schools that mostly serve students of color get $23 billion less funding than mostly white school districts, that disciplines Black students more frequently and more severely than white students for the same misbehaviors, and that is responsible for Black maternal mortality rates so abysmal, it’s considered a human rights issue. Black lives matter, but the US certainly doesn’t seem to think they do.

And so to finally return to the initial concern: race cannot be substituted for class. It is absolutely true that race is very tied to class. Because of this country’s history with slavery, Black people have been denied the opportunity to accumulate wealth for generations. But solely basing affirmative action on class does not fix everything.

If we hypothetically compare a poor white student and a poor Asian American student—and for the sake of argument, let’s say everything about their socioeconomic status is exactly the same—we know that both students will face hardships as they grow up. Maybe they both had to work two jobs and take care of a sick relative growing up, and they both couldn’t afford SAT tutoring.

But the poor white student did not grow up being teased about his mom’s funny accent and did not grow up getting mistaken for every other white boy in his class. The poor white student never had to bear the burden of becoming the family’s translator and learn how to navigate bills and tax laws in middle school, as is this case for many second-generation Asian Americans. That poor white student (God forbid) will be more likely to die of an unintentional injury, unlike Asian Americans, whose leading cause of death among ages 15-24 is suicide. Class cannot completely explain away anti-Asian violence.

By the same token, if we replace the Asian American student with a Black American student, that poor white student did not grow up watching people clutch their bags in fear every time they walked past someone. That poor white student, just by virtue of having a white-sounding name, will be more likely to get a job interview. That poor white student will be encouraged by his teachers to take advanced classes, unlike his Black classmates. That poor white student will not be shot by a police officer for playing with a toy gun. There are realities in this country that exist beyond class, and they have real impacts on people’s mental and physical health. The science backs it up.

“Race-based affirmative action is just a band-aid solution for educational inequalities that exist way before students apply to college.”

We can all agree that people born into money, white people, and men usually have it easier in life—not necessarily through any fault of their own, but because of the way our society is. Affirmative action recognizes that and is therefore trying to account for these different experiences. We did not start with a level playing field and arbitrarily decide to pick one group to elevate above everyone else. The playing field was not level to begin with.

Affirmative action is absolutely a band-aid attempt. These inequalities in education show up long before students apply to college, and if anyone truly believes that affirmative action will cure racism, I would be the first person to vehemently disagree with them. Wouldn’t it be better if we could fix racial inequalities from the beginning and judge people purely based on their merits? Of course. Yes! A million times yes. But we cannot solve centuries of racism by suddenly deciding not to see race. We have to recognize that the Black, Asian, Latino, and Native American students who are applying to college right now have had their lives shaped by race. In other words, when we mark our racial identity on our college applications or public employment applications, we are simply providing a fuller, more accurate picture of our lives in which race is one of many, many factors that has had an effect.

At the same time, of course, we have to do the best we can to remove these inequalities from the very beginning—we can have affirmative action and we can vote to fund schools better. Both are moving towards the same goal.


Why do I continue to reflect on the importance of affirmative action, despite being several years past the college application process? It’s partially because affirmative action does indeed continue to impact me as a college graduate, but it’s also because when we talk about affirmative action, we are also talking about what it means to be a racialized person in this country—something that affects all of us, no matter what background we come from. We’re talking about getting into college, but we’re also talking about how I grew up my whole life desperately wishing I were white, wondering why a random white boy jeered Konnichiwa at me in the park and feeling indescribably sad when my mom told me about all the times people have screamed at her Chinese American colleagues to “go back to where you came from.”

I graduated high school not knowing much about what I wanted to do besides the vague notion of being ‘pre-med,’ but somehow, my academic trajectory at college has heavily centered around race and ethnic studies. And maybe the biggest lessons I’ve learned thus far is that one, my personal experience as an Asian American cannot even begin to encompass the diversity of the “Asian American” experience; and two, being Asian American means coexisting with and acknowledging the history of this country and the experiences of every other racial group. To me, it is unproductive to point fingers and tear down other racial groups, when what we really should be focusing on is changing the system that made us all lower-class citizens in this country in the first place.


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