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Common ground on affirmative action
The National Law Journal
Asian-Americans have taken center stage in the debate over affirmative action. With the U.S. Supreme Court preparing to issue a new ruling on the constitutionality of affirmative action in America's colleges and universities, much attention has been paid in the courts and in the media to the Asian-American community's perspective on higher education admissions.
In the case now before the court, 94 Asian-American civil rights and community-based organizations joined briefs filed by the Asian American Legal Defense and Education Fund (which we co-authored) and the Asian American Center for Advancing Justice in support of the University of Texas at Austin (U.T.). These groups contend that Asian-Americans, like students of other races, benefit from the kind of diversity that enriches their education and prepares them for careers in the global workplace, and that Asian applicants in communities struggling with low educational attainment will suffer if programs like U.T.'s are dismantled.
On the other side, the petitioner Abigail Fisher contends that she was denied admission at U.T. due to its use of diversity considerations in admissions which, she claims, unfairly favors Latinos and African-Americans at the expense of white applicants (like herself) as well as Asians. Fisher refers to Asian-Americans throughout her briefs and argues that U.T. employs race in admissions decisions to their detriment. Her position was supported by five Asian-American organizations.
It is not surprising that there is a diversity of views on affirmative action within the Asian-American community. We should also note, however, two fundamental points of agreement. First, it is imperative that all discrimination against Asian-Americans in educational admissions be eliminated. Second, colleges and universities should take into account the tremendous ethnic, cultural and economic diversity among Asian-Americans. An examination of these points of convergence, as well as why different groups have drawn opposite conclusions from them, illuminates broader questions about the role of affirmative action today.
Both sides in the Fisher casevigorously oppose discrimination, or what University of California at Los Angeles School of Law Professor Jerry Kang has described as "negative action," against Asian-Americans in higher education admissions. Simply put, it is unacceptable to hold Asian-American applicants to a higher standard than white applicants. There can be no "glass ceiling" imposed on their admission, no quotas nothing like the abhorrent policies used to limit enrollment of Jews and others throughout the past century.
Fisher and her supporters have argued that U.T.'s policies are precisely that: "overt discrimination against Asian Americans." They claim that the university limits the admissions of Asian-Americans in order to mirror the demographics of Texas. In our brief, we show this is not the case. Since U.T. adopted its current policy, the percentage of Asian-American students enrolled at U.T. has exceeded the percentage of Asians in Texas by a factor of five. As U.S. District Judge Sam Sparks wryly observed, if U.T.'s purpose was to limit Asian-American admissions to match "the racial composition of the State," it has done "a particularly bad job of it."
TWO WAYS TO BENEFIT
In fact, while foes of affirmative action have tried to frame Asian-Americans as victims of affirmative action, an examination of policies like U.T.'s reveals that Asian-Americans gain not only from the well-documented educational benefits of student diversity once they are admitted, but also from the individualized consideration of their race during the admissions process itself. No student automatically benefits simply because he or she belongs to an underrepresented or disadvantaged group. Rather, any applicant including Asian-Americans and whites can benefit from consideration of her race as part of her distinctive background and experiences. Simply put, U.T.'s plan recognizes that the racial and ethnic background of applicants informs their perspectives and contributions to the classroom and campus life. It is part of each applicant's story no more or less than other experiences like growing up in a multilingual family or having exposure to different cultures.
Second, given the exceptionally diverse nature of the Asian-American community, reflecting the manifold ethnicities, languages, traditions, economies and geographical scope of Asia itself, there is an emerging consensus that Asian-Americans should not, in Justice Samuel Alito Jr.'s words, be "lumped together" for purposes of educational admissions.
As we discuss in our brief, the pervasive "model minority" stereotype is belied by the fact that different migration paths taken by Asian-Americans have led to stark economic and educational disparities today. In Texas, for example, communities with a high concentration of Indian- and Chinese-American residents have achieved greater economic and educational success than Vietnamese and other Southeast Asian communities established primarily by refugees.
Supporters of Fisher, like the Asian American Legal Foundation, argue that because "[g]rouping Asian Americans by race…tends to disadvantage the economically poorer individuals within that group," the consideration of race in higher education admission must be abandoned. We agree with this diagnosis, but not the prescription. Consistent with the Supreme Court's prior rulings in Grutter and Gratz, admission programs can and should take into account differences within racial groups. By considering race and ethnicity in the distinctive context of each applicant's background and experience, a truly individualized admissions program will increase the likelihood of admission for those who do not have the same social mobility and capital as others.
In addressing this point, U.T.'s brief explains how its admissions policy is well poised to consider differences within racial groups. It cites ethnicity as a separate element of diversity in addition to race, and it describes how layering individualized review on top of U.T.'s automatic "Top 10 percent" admissions plan allows for the consideration of "diversity within different racial groups of individuals." Individualized review gives U.T. the flexibility to consider differences in the experience and perspective of different applicants from a common racial background.
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 firstname.lastname@example.org. Robert Toone is a partner at Foley Hoag focusing on financial and commercial litigation, education and government investigations. He can be reached at email@example.com.