Emil Guillermo: Whatever happens, the SCOTUS opinion on the Harvard affirmative action case won't be the last word

Image for Emil Guillermo: Whatever happens, the SCOTUS opinion on the Harvard affirmative action case won't be the last word
Photo by Alyssa Schukar/Harvard Gazette.

I have been dreading every single move by the Supreme Court so far this month.

This is the moment we’ve all been waiting for ever since a decision was promised before the summer recess.

Before that it was Halloween, when the Supreme Court heard both sides present their arguments. And before that, it was the trial itself in Boston in 2018, and then a lower court ruling for Harvard in Oct. 2019, and then the appeal to the First Circuit by the plaintiffs in Feb. 2020 that ultimately failed. That meant SCOTUS would have the last word.

Then again, we thought the Fisher v. University of Texas case in 2013 and 2016 would be the last step of a battle, when a white plaintiff, Abigail Fisher, challenged and failed to end affirmative action.

For good, some of us thought.

Seven years ago, it seemed that the policy had prevailed once and for all, as the courts found it still permissible to consider race as one of several factors in the admissions process.

Settled, right?

But now, the Supreme Court’s makeup has changed to an ultra-conservative 6-3, and the anti-affirmative action careerists found a better victim.

Us. Asian Americans.

The anti-affirmative action advocate Ed Blum trolled the internet and found aggrieved Asian Americans among past rejected applicants to Harvard and the University of North Carolina. Blum, a conservative who cut his teeth fighting against the Voting Rights Act, formed the innocuous sounding “Students for Fair Admissions,” and the fight continued.

I’ve written before how I think that affirmative action cannot survive a 6-3 court:

I’ve even readied for this day with some meditation:

I’ve speculated that the Court maybe could keep affirmative action alive by affirming the lower court’s ruling in favor of Harvard.

In Thursday’s decision in Allen v. Milligan, the Alabama redistricting case, the Court did exactly that, with Roberts and Kavanaugh joining Sotomayor, Kagan, and Brown-Jackson to show us a different looking court. But it’s likely just a 5-4 shape we can cheer temporarily.

Maybe the Supreme Court could allow the lower court’s decision upholding race-conscious admissions but criticize Harvard’s annoying consideration of personality factors.

Just my wistful thinking.

Most analysts are convinced the conservative court will have its way and end affirmative action this time.

As an Asian American Filipino who has lived during the entire history of affirmative action, I know my life would be totally different without it.

Would I have gotten a chance to attend San Francisco’s academic magnet Lowell High School? It didn’t hurt that I had straight As. But I didn’t have straight As or perfect scores when I applied as a senior to Harvard.

Harvard never used the phrase affirmative action. They just were interested in me, my story, my background, what I overcame.

What I overcame was the racial disadvantage felt by many Filipinos in America. But now I was a qualified student who was seen and recognized.

And accepted.

That wouldn’t have happened if a sense of affirmative action, formal or informal, did not exist.

A rejection of race-conscious admissions would have an impact on every aspect of our society where there’s a choice to be made involving people.

In a world of limited resources and opportunities, how do we assure fairness?

Over the years, we’ve had an effective way to consider equity and diversity.

It certainly isn’t perfect, but It’s an approach that has been responsible for the creation of at minimum middle-class wealth and achievement for many people of color.

That’s how effective it’s been.

It’s called affirmative action. If it’s reversed by the court, what’s left?

A passive, but acceptable form of racism to protect a dwindling number of whites in America?

Well, that’s why Asian Americans were so important.

A group branded by the phrase “Model Minority” was destined to play a role to mischaracterize the policy and get rid of a tool that really has served people of color much better than many realize.

As I await the opinion, I keep wondering how we got to this place where affirmative action, a tool of inclusion, devolved from being seen as a positive to a negative.

Just remember: no matter what happens with the Supreme Court, if affirmative action is replaced, gutted, or retained in part, we will always be in a struggle to ensure our inclusive America.

NOTE: I will talk about this column and other matters on “Emil Amok’s Takeout,” my AAPI micro-talk show. Live @2p Pacific. Livestream on Facebook; my YouTube channel; and Twitter. Catch the recordings on

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Emil Guillermo is an independent journalist/commentator. Updates at Follow Emil on Twitter, and like his Facebook page.

The views expressed in his blog do not necessarily represent AALDEF’s views or policies.

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