FedSoc Blog

Asian-Americans Divided over High Court Racial Preference Case


by Publius
Posted August 14, 2012, 4:49 PM

According to Thomson Reuters:

On Monday, dozens of Asian-American organizations filed amicus briefs at the U.S. Supreme Court arguing that universities should be allowed to consider race in admissions decisions. Five Asian-American groups were not among them.

That's because those groups already filed their briefs in the closely watched University of Texas case -- on the other side. They argued in May that the school's race-conscious admissions policies hurt Asian-Americans by giving less qualified candidates a leg up on admissions.

The dueling briefs provide stark evidence of a growing rift within the Asian-American community over the role race should play in college admissions. This split could have implications for how the court resolves one of the hottest cases on its docket this term, which begins in October.

The views of Asian-Americans, as expressed in amicus or "friend-of-the-court" briefs, could take on added significance in the court of public opinion and perhaps with the justices themselves, said UCLA School of Law professor Eugene Volokh.

The traditional justification for affirmative action has been to prevent schools from becoming all white, Volokh said. "That rhetoric becomes more complicated once you recognize that race-based systems discriminate against Asians as much as whites."

There have been pockets of resistance to affirmative action among Asian-Americans for years. But the rift has gotten more pronounced in the Texas case, which prominently features the impact of race-based admissions on Asian-Americans themselves.

The plaintiff's main brief challenging the University of Texas's affirmative action plan mentions Asian-Americans 22 times and argues that they are victims of a race-based system that favors blacks and Hispanics.

"We've come up a lot more in the briefs than we normally do," said Khin Mai Aung, an attorney at the Asian American Legal Defense and Education Fund, which supports the University of Texas program. "Normally we're just invisible."

At the University of Texas, students in the top 10 percent of the state's high schools are automatically admitted into the public university system. For the remaining spots, public universities can consider race to create a critical mass of underrepresented minorities on campus, including blacks and Latinos.

The challenge to the Texas system was brought by Abigail Fisher, a white student who says the University of Texas at Austin denied her admission in 2008 because of her race, in violation of the U.S. Constitution's Equal Protection Clause. By trying to mirror the racial composition of the state of Texas, Fisher argues, the school has essentially imposed a racial quota system, which is illegal under the Supreme Court's 1978 Bakke decision.

Fisher is asking the court not to just bar outright racial quotas, but to ban public universities from considering race at all in admissions. Many legal observers say the conservative-dominated high court may be sympathetic to Fisher's position.

Edward Blum, the director of the Washington-based Project on Fair Representation, is the principal architect behind the University of Texas lawsuit. He said Asian-Americans will likely remain front and center in the case.

"An empirical case can be made that the group that has suffered the most from racial preferences (in the affirmative action era) has been Asians," Blum said.

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