Students for Fair Admissions’s suit against Harvard presented a new twist on anti-preference litigation: rather than arguing that Harvard’s preferences discriminate against whites in favor of blacks, sffa argued that Harvard discriminates against Asians in favor of whites. This shift reflected both reality and legal strategy. Asian students everywhere are the most penalized when meritocratic admissions are scrapped for a race-based system, since their academic qualifications surpass those of all other racial and ethnic groups.
But litigation calculus also influenced the changed focus. SFFA v. Harvard was filed in 2014, when Justice Anthony Kennedy was still on the Supreme Court. Kennedy had been a pivotal vote for upholding racial preferences. If sffa’s attorneys could convince him that his pro-preference jurisprudence was now harming Asians—themselves a minority and thus part of the student “diversity” that preferences were supposed to enable—they would have a better chance of persuading him to reverse that jurisprudence, their thinking went. And using whites, rather than blacks, as the benchmark for anti-Asian discrimination avoided the appearance of pitting one minority group against another, a charge which left-wing preference supporters routinely make.