Affirmative Action Lives On

AAPIs are celebrating The Court’s affirmation of race-conscious admissions

In the second iteration of the Fisher v. University of Texas case to come before the U.S. Supreme Court, the Court narrowly affirmed the University of Texas’s holistic admission program by a vote of 4–3. They held it constitutional for the University to consider an applicant’s race as “a factor of a factor of a factor” when it makes admissions decisions. With Justice Scalia’s passing and Justice Kagan’s recusal from the case (she had worked on the case previously as Solicitor General), and Senate Judiciary Committee members’ refusal to proceed with the judicial nominations process to confirm a ninth justice, there were only seven justices left to decide this pivotal case. As he has in so many other influential cases, Justice Kennedy cast the deciding vote, which is particularly noteworthy in this case as Justice Kennedy had never ruled in favor of an affirmative action plan prior to this decision.

The Court once again recognized that the objective of achieving the benefits of diversity in education was a compelling government goal. “The destruction of stereotypes, the promotion of cross-racial understanding, the preparation of a student body for an increasingly diverse workforce and society, and the cultivation of a set of leaders with legitimacy in the eyes of the citizenry” were recognized by the Court as being a government interest of the highest order.

After a “Top Ten Percent” plan was statutorily enacted in Texas, the University was compelled to grant admission on the basis of an applicant’s rank within their graduating class. But the Court recognized that this “blunt instrument” was a poor means of attaining the University’s stated goal of achieving diversity in its student body. In fact, the Court recognized that reducing admissions decisions to a pure numbers game failed to give the University the nuanced tools it would need to achieve student diversity. “Class rank is a single metric, and like any single metric, it will capture certain types of people and miss others.”

Most striking about the Court’s opinion to me — not just as an ethnic minority, but as an Asian American, specifically — was Justice Alito’s mammoth 50-page dissenting opinion, portions of which he took the unusual step of reading from the bench. The dissent frequently referenced the Asian American applicant and suggested that as efforts were made to accommodate African American and Latino applicants, affirmative action plans discriminated against Asian Americans.

However, consider that prior to 2003, the University was forbidden by law to consider an applicant’s race at all. As part of the record below, we, therefore, are privy to admissions data both when the University was forbidden to consider race as a factor in its admissions decisions and after when they were permitted to consider every applicant holistically. The data does not show that the University’s affirmative action policies harmed AAPIs at all, and AAPI admissions did not go down.

Justice Alito clearly views university admissions as a zero sum game and his dissent pits Asian Americans as a wedge group against other communities of color. In fact, our studies have shown that 64% of registered Asian American voters are in favor of affirmative action plans.

Moreover, Justice Alito paints a monochromatic picture of Asians in his dissent. But he fails to recognize the reality that Asian Americans and Pacific Islanders (AAPIs) consist of many different communities, each with their own unique challenges. Not every AAPI is the ultra-high-achieving model minority so often portrayed in popular culture. Filipinos, Hmong, Laotian, and Native Hawaiian and Pacific Islanders, for example, are among those AAPIs who greatly benefit from affirmative action in higher education admission decisions.

The decision in Fisher undoubtedly represents a win for the civil rights community on the affirmative action front. But any jubilation that follows must be tempered. As made clear by the dissenting opinion — and several cases in lower courts throughout the nation — AAPIs continue to be cited as a wedge group and pitted against other minority groups. Asian Americans refuse to be the tactical face to challenge affirmative action policies.

As we celebrate the Court’s affirmation of the value and importance of race-conscious admissions policies in college admissions, we will remind those who would have us stand in opposition to other communities of color: Asian Americans are not your wedge.