Reappropriate Joins AANHPI Organizations in Filing as SCOTUS Amici for Affirmative Action | #Edu4All

November 3, 2015

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Three national Asian American, Native Hawaiian & Pacific Islander civil rights organizations filed separate amicus briefs today in support of affirmative action; the briefs were filed in relation to the upcoming Fisher v. University of Texas case scheduled to be heard by the Supreme Court on December 9th.

In addition to briefs filed by the Asian American Legal Defense Fund (AALDEF) and the National Asian Pacific American Bar Association (NAPABA), the brief filed by Asian Americans Advancing Justice (AAAJ) was signed by over 160 national AANHPI groups and individuals, including by this blog. Other signatories hail from all parts of the AANHPI diaspora, in terms of ethnicity, gender and group focus.

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The three briefs filed today outline the critical value of race-conscious affirmative action policies for all members of the AANHPI community, and why efforts by Abigail Fisher and her conservative supporters to eliminate such diversity programs will have damaging consequences for AANHPI students and the entire United States. Writes AAAJ et al. as a summary of the 92-page brief:

Even though UT Austin’s program is modeled closely on others sanctioned previously by this Court, Petitioner Abigail Fisher and her amici are attempting to invalidate UT Austin’s program as part of a larger effort to roll back all such race-conscious programs. To bolster their ideological challenge, they seek to portray AAPIs as victims who are categorically “excluded” and “burdened” by affirmative action programs. The undersigned Amici reject these unfounded claims that AAPIs are harmed by such programs, and categorically oppose such efforts to use the AAPI community as a wedge group to curtail opportunities for racial minorities.

First, Petitioner and her amici disregard the reality that affirmative action programs have opened and continue to open doors for AAPIs in higher education. Instead, they peddle a form of revisionist history where AAPIs achieved educational parity solely by dint of their own efforts and “merit.” This ignores, however, the fact that AAPIs historically benefited from inclusion in race-conscious admission programs, that certain AAPI subgroups continue to need and benefit from such programs today, and that all AAPI students benefit from more racially diverse (and less racially hostile) college campuses.

Second, Petitioner and her amici advocate a form of “color-blind” admissions that would force universities to willfully ignore race even while they attempt to comprehensively evaluate applicants. Unfortunately, this conception of “color-blindness” is a form of “reality-blindness.” The undersigned Amici believe that race is a legitimate consideration when universities assess many different indices of past disadvantage and future potential, cannot be replaced by other considerations such as socioeconomic status, and provides important context for other admissions criteria such as standardized test scores. While race remains relevant in American life, universities should not be handicapped and forced to disregard this relevant (and often important) consideration in their attempts to accurately and holistically evaluate applicants.

Third, Petitioner and her amici’s challenge is based on a generalized objection to all race-conscious programs, not evidence specific to UT Austin. Notwithstanding their baseless accusations, the actual facts demonstrate that UT Austin’s holistic review process expressly includes, and in no way harms, AAPIs:

  • There was no drop in AAPI overall admissions to UT Austin, even after the consideration of race in 2005;
  • There was no drop in AAPI holistic admissions to UT Austin, even after the consideration of race in 2005;
  • Those AAPI holistic admissions included many AAPIs with below-average test scores, before and after the inclusion of race in 2005; and
  • The inclusion of race in holistic review in 2005 did not cause or increase any existing “test score gap” between AAPI applicants and other applicants.

Where none of the trends that would suggest “negative action” designed to harm AAPIs is borne out by the record, AAPIs should not be used as an excuse for dismantling crucial affirmative action programs. Accordingly, like the consistent majority of AAPIs who have supported affirmative action over the years, the undersigned Amici affirm the importance of raceconscious policies such as UT Austin’s. And while there is no evidence that UT Austin excludes AAPIs from benefitting from holistic review, Amici support such programs even when AAPIs are not directly included. Race-conscious programs have played, and continue to play, an important role in desegregating and diversifying higher education for all, and Amici stand by the promise of integrated and equal public education set forth in Brown v. Board of Education.

Yes, this blog whole-heartedly considers itself a signatory to this argument, and the full amicus brief.

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AALDEF’s urges the court to distinguish between affirmative action and diversity programs and negative action that has been used to discriminate against Asian American applicants, noting that these two types of programs are distinct. NAPABA notes that affirmative action programs have historically improved representation for many Asian Americans in a variety of professional and academic spheres, and continues to do so for many AANHPI today. They write in the joint press release about the value of diversity programs:

“We recognize that Asian Pacific Americans, like other groups, have endured cases of discrimination and lack of opportunities which continue to impact us today. The low numbers of minority groups in the legal profession, government, and corporate leadership underscore the need to remove barriers to higher education and increase diversity,” says George C. Chen, president of NAPABA. “Courtrooms, law firms, and law schools must be filled with people of different backgrounds so that we can better understand and respect the diversity of the American public.”

Today’s three amici reflect the finding that race-conscious affirmative action programs are wildly popular in the AANHPI community; more than two-thirds of AANHPI’s surveyed in national and state-level surveys respond favourably on the subject. Many of the AANHPI organizations have long been vocal in their support of affirmative action programs, including when over 135 AANHPI groups across the country joined together in an open letter of support earlier this year.

The amici are part of an “outpouring” of pro-affirmative action amici, similar to what was seen in 2012 during the first Fisher case. This week, several high-profile universities also filed a joint amicus brief in support of affirmative action programs. Brown University, Dartmouth University, Princeton University, Stanford University, Yale University, MIT, the University of Chicago, Columbia University, Cornell University, John Hopkins University, Duke University, Vanderbilt University, and the University of Pennsylvania co-authored a brief explaining the importance of campus diversity to academic quality and student life. Harvard filed a separate amicus brief also in support of affirmative action, as did the University of California, the University of Michigan,  the American Psychological Association, the American College of Physicians, two members of the US Commission on Civil Rights, and a coalition of nearly 300 US college basketball coaches.

In contrast, a single amicus brief has been filed opposing affirmative action by the Asian American Coalition for Education, a coalition that represents approximately 100 Asian American — mostly Chinese American — member groups. Earlier, that organization was involved in a failed attempt to file a complaint about Harvard University’s affirmative action programs to the Department of Education.

The Supreme Court sent the first Fisher case back down to the lower courts, where the Court of Appeals once again upheld the constitutionality of the University of Texas’ diversity programs. This ruling prompted the Supreme Court to once again hear Abigail Fisher’s wild assertion that holistic review programs racially discriminated against her  objectively mediocre college application.

SCOTUS afficionados predict that there is a low possibility that the justices will completely overturn affirmative action in Fisher II, although most also agree that they might rule that more strict scrutiny must be applied. Until such time as the justices hear arguments and issue a ruling, it is critical — as concerned AANHPI; as racial justice activists; as people generally interested in higher education access for all — that we continue to communicate the importance of race-conscious affirmative action programs for ensuring academic opportunity for the most marginalized and disadvantaged students (including many AANHPI students) among us.

For more information on AANHPI working to protect affirmative action, please visit asianamericancivilrights.org. Also check out AAAJ, NAPABA, and AALDEF, and share this post and your own support of affirmative action to #edu4all.

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