The bifurcated Asian American response to Fisher II: controversy goes on

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Last month, the author explored how Asian Americans view affirmative action policies.  As the Supreme Court prepares to hear Fisher II, this issue reappeared to the author personally in her role as a student leader.

By Jennifer Chun
Associate Editor, Vol. 21

In 1997, Texas passed a law (now referred to as the “Top 10%” Plan) that guarantees Texas residents who graduate in the top ten percent of their high school class an automatic admission to all state-funded universities. In 2008, Abigail Fisher, a white American high school student and a Texas resident, applied for undergraduate admission to the University of Texas in Austin (“UT Austin”), a public university.[1] Since she did not graduate in the top ten percent of her class, she did not qualify for the Top 10% Plan.[2] UT Austin considered her application under its “holistic review program” that evaluates each applicant as an individual, a process that includes considering the applicant’s race.[3] When UT Austin rejected Fisher under this review, she sued the school and other related defendants, claiming that UT Austin’s consideration of race in admission decisions violated her rights under the Fourteenth Amendment’s Equal Protection Clause.[4] The University responded that its consideration of race in undergraduate admission decisions was a narrowly tailored means of pursuing diversity in its undergraduate population, and therefore not unconstitutional.[5]

The Supreme Court ruled that the Equal Protection Clause of the Fourteenth Amendment does permit the consideration of race in undergraduate admission decisions but only under strict scrutiny[6], “a form of judicial review that courts use to determine the constitutionality of certain laws.” Under this standard, UT Austin’s “holistic review program” is constitutional only if “precisely tailored to serve a compelling governmental interest” of achieving diversity in higher education. This means that the program should have been “necessary to achieve the benefits of diversity” because “no race-neutral alternative would provide the same benefits.” The Supreme Court thus remanded the case to the Fifth Circuit to conduct such strict scrutiny examination.[7] The Fifth Circuit then ruled that UT Austin’s race-conscious “holistic review program” is constitutional.[8] Fisher subsequently appealed to the Supreme Court, which announced that it will re-hear the case on December 9th.

fisher
Abigail Noel Fisher, Plaintiff

On its surface, Fisher v. University of Texas at Austin I (or II) presents nothing new. It is preceded by a history of other anti-affirmative action cases and cannot be argued to be any more contentious than its predecessors.

What strikes me as new, however, is the vociferous reaction the Supreme Court’s announcement to re-hear the case has elicited from an unexpected racial minority group that was not part of any court’s consideration in Fisher I: the Asian Americans.

Even after reading The Economist’s October 3, 2015 article on the rising trend of Asian Americans more vigorously pursuing legal and political means to address the alleged “race quota” system against Asian American college applicants, I did not think that Asian Americans would be too sharply divided on this issue, as they, like other racial minorities, tend to vote Democratic, a trend that is expected to become only stronger. I realized how wrong I was when I, as part of Michigan Law’s Asian and Pacific American Law Students Association (APALSA) executive board, received a passionate email on October 26, 2015 from Asian Americans Advancing Justice – Los Angeles (“Advancing Justice”), asking Michigan Law’s APALSA to sign its amicus brief to the Supreme Court supporting UT Austin’s affirmative action policy.[9]Advancing Justice’s amicus brief was ultimately signed by “141 Asian American and Pacific Islander organizations, student groups, and bar associations, as well as, 9 members of academia,” including Michigan Law’s APALSA. The opposing amicus brief was signed by 118 similar organizations.

My greatest concern regarding this reaction is that Fisher II will be used by the opposing sides of the affirmative action issue to create schism within the Asian American community. I already detected signs of such schism from the email by Advancing Justice to Michigan Law’s APALSA in which it argues that “[i]t is critically important that we not allow conservative forces to use our communities as a racial wedge.”[10] I also noticed that the list of supporting organizations in the opposing amicus brief is overwhelmingly composed of those affiliated with the Chinese Americans, the largest Asian American ethnic group with the fourth highest attainment of bachelor’s degrees among Asian Americans. In contrast, “the educational attainment of Hmong, Cambodian, Laotian, and Vietnamese Americans is the lowest among Asian American ethnic groups and similar to those of Latinos and African Americans,” rendering them more likely to support affirmative action in higher education.

I am also worried that this issue will further isolate the Asian American community from racial minority peers with whom Asian Americans historically have had a shaky alliance. This worry stems from the anti-affirmative action amicus brief that describes UT Austin’s affirmative action policy as (1) an unconstitutional “racial balancing” that favors Latino American applicants over Asian American applicants[11] and (2) “an effort by academic and political elites to curry favor with a powerful voting bloc [the Latino Americans in Texas].”[12] The only evidence presented in the brief supporting this argument are statistics comparing the demographics of Texas with the undergraduate population at UT Austin, and UT Austin’s own statement about this demographic difference. Citing that the Texas population is composed of 36% Latinos and 3.4% Asians while its undergraduate population is composed of 20% Latinos and 19% Asians, UT Austin stated that “[such] significant differences…prevent the University from fully achieving its mission.”[13] First, UT Austin’s statement reflects a legitimate concern for a public university, considering that “public education” was founded in the United States for the purpose of “educat[ing]…the whole people”. Second, making such a leap of conclusion as this brief does on the demographic difference alone carries the risk of stereotypically and unilaterally portraying the Latino American students at UT Austin as “free riders” who were admitted primarily based on the color of their skin.

In any case, I expect the disagreement within the Asian American community on whether to support affirmative action in higher education to continuously be polarizing, even long after the Supreme Court rules on Fisher II. In the meantime, I want to share the two key opposing amicus briefs on this issue and invite the readers of the MJR&L blog to respond.

Reader responses in the form of a short essay or comment should be directed to mjrl.web@gmail.com with the subject line, Fisher II.  Select responses may be published on the blog.

[1] Fisher v. Univ. of Tex., Oyez, https://www.oyez.org/cases/2012/11-345 (last visited Nov. 8, 2015).

[2] Fisher v. Univ. of Tex. at Austin, 758 F.3d 633, 637 (5th Cir. 2014).

[3] Id. at 638.

[4] Fisher v. Univ. of Tex., Oyez, https://www.oyez.org/cases/2012/11-345 (last visited Nov. 8, 2015).

[5] Id.

[6] Id.

[7] Id.

[8] Fisher, 758 F.3d at 660.

[9] E-mail from Quinn Nguyen, Impact Litig. Law Clerk, Asian Am. Advancing Justice – L.A., to Asian Pac. Am. Students Ass’n, Univ. of Mich. Law Sch. (Oct. 26, 2015, 04:01 EST) (on file with author).

[10] Id.

[11] Brief of Amici Curie the Asian Am. Legal Found. & the Asian Ame. Coal. for Educ. (representing 117 affiliated Asian Am. org.) in Support of Petitioner at 6, Fisher v. Univ. of Tex. at Austin II, (No. 14-981).

[12] Id.

[13] Id. at 11-12.