The Asian-American amici in Fisher part ways due to fundamental disagreements about how affirmative action functions and its potential for positive social change. Fisher's supporters assume that affirmative action must necessarily lump Asians into a single, undifferentiated category. We show this is not the case, and explain how, consistent with Grutter and Gratz, affirmative-action plans can consider differences among applicants of the same racial background.
Ultimately, what separates us is confidence in the value of diversity. The handful of Asian-American organizations supporting Fisher do not seem to believe that consideration of race and ethnicity has any legitimate, beneficial role in educational admissions. This informs their analysis of what drives admissions bias against Asian-Americans, as well as their belief that no affirmative-action plan can benefit Asian-Americans who face educational disadvantages, are from underrepresented ethnicities or contribute unique perspectives to campus life due to their racial experience. In contrast, we believe firmly in the value of racial and ethnic diversity in education. We know that lawful affirmative action does not permit racial discrimination, and we have faith in its potential to benefit students of all races.
Khin Mai Aung is director of the Educational Equity Program at the Asian American Legal Defense and Education Fund, where she conducts national advocacy and legal representation concerning civil rights in public elementary through high schools and in higher education. She can be reached at email@example.com. Robert Toone is a partner at Foley Hoag focusing on financial and commercial litigation, education and government investigations. He can be reached at firstname.lastname@example.org.