On Feb. 13, 2016, during my international travel, I learned from CNN that United States Supreme Court Justice Antonin Scalia had passed away. This saddened me, adding a deep layer of worry on top of the fatigue of body and mind that resulted from tiring international travel. His sudden death casts a large shadow on Indian Americans’ and other Asian Americans’ pursuit of equal education rights for our children for generations to come. For Asian American children who assume they can pursue the American dream through hard work, the future looks much less hopeful because of his death.
Whether or not universities are permitted to use race as a factor in admitting students makes a huge difference in our children’s chances to live the American Dream.
For example, in California, where race cannot be considered, Asian American admission rates in the state’s top universities are almost double those of Ivy League Schools where race is a still an important factor in college admissions. This is why, when California Senator Edward Hernandez proposed Senate Constitutional Amendment No. 5 (SCA5), trying to restore race as a factor in the admissions process in 2014, many Asian Americans were outraged. They mobilized, formed a large number of grass-roots organizations, and defeated SCA5. Nationwide, only eight states, including California, Florida, Michigan, Washington, Nebraska, Arizona, New Hampshire, and Oklahoma, prohibit the use of race in university admissions. In the remaining 42 states, especially in New England where America’s elite universities are concentrated, there is widespread discrimination against Asian American children in the college admissions process.
For most Asian Americans, Justice Scalia may be an unfamiliar name. As a proponent of the judicial doctrine of original intent, Justice Scalia championed the American founding principle of equal opportunity. He has been a strong supporter of equal education rights in his opinions concerning the granting of racial preferences in college admissions. In the 2003 case of Grutter v. Bollinger, Justice Scalia, Justice Rehnquist and Justice Kennedy joined Justice Thomas in opposing the use of race in college admissions to achieve diversity. In the first hearing of Fisher v. University of Texas in 2013, Justice Scalia, as a member of the majority, voted to further limit the use of race in college admissions. Moreover, he wrote he would overturn Grutter v. Bollinger and completely ban the use of race in college admissions. In 2014, in Schuette v. BAMN, Justice Scalia joined the majority opinion, supporting the State of Michigan’s total ban of racial considerations in college admissions.
Justice Scalia and three other conservative justices are firm supporters of equal education rights for Asian American children and children of all racial groups. If Justice Kennedy joins in, the Supreme Court would have a chance to form a majority that totally bans the use of race in college admissions in the remaining 42 states.
However, Justice Scalia’s sudden death significantly weakens the conservative voice on the U.S. Supreme Court. This may result in a catastrophic blow to Asian Americans’ pursuit of equal education rights. This is because any person nominated by President Obama to fill his seat will likely be a liberal who supports racial preferences in college admissions. Liberals will then have the five votes necessary to uphold them, which will perpetuate the discrimination against Asian Americans.
At present, the Senate Republican majority are taking an uncompromising stand, determined not to accept the nominee. Even if Senate Republicans block it this time, November’s presidential election is another huge uncertainty. If the Republican Party loses the election, the Democratic Party president will have the opportunity to nominate between two and four Supreme Court Justices. The liberal justices will then become the majority for the next 20 or 30 years, and race-based college admissions will continue.
Asian-American children’s futures are at risk: either President Obama's nominee gets approved or, if the Democratic Party wins the presidential election, Asian-American children will have no chance to obtain equal education rights in the next 20 or 30 years!
At this seemingly hopeless moment, fortunately, Asian American children still have a glimmer of hope: It relies on the upcoming ruling in Fisher v. University of Texas. What is special about this case is that Justice Kagan has excused herself from this ruling because of her earlier involvement of this case. If Kennedy and the three remaining conservative justices join forces, the conservative justices still have a chance to form a majority because the death of Justice Scalia just changes a 5:3 ruling to 4:3 ruling. In this case, the upcoming ruling of this case in late spring may further restrict or totally ban the use of race during the college admissions.
It is very important to realize that the following one or two months will be the most critical moment for Asian Americans to fight for our children’s equal education rights. If we sit back and take no action, the next chance to totally ban racial discrimination in college admissions will not come for another 20 or 30 years. Asian American children of the next two generations will continue to be treated as second-class citizens.
Justice Scalia has passed away and left us with a very serious crisis and challenge. As Asian parents and community leaders, we can't afford to live without a sense of crisis, die in silence, and allow our children’s dreams to be denied. The Asian American Coalition for Education will take the lead in ending this discrimination. By working together with all of you, we will make an important difference in the lives of our children!
I dedicate this article to the memory of Justice Scalia, who believed that the use of race in college admissions is wrong, and as a wakeup call to Asian American communities. We need to act now!