Advancing Justice – Los Angeles (AAAJ-LA) held a press conference moments ago to announce that lawyers with the group will represent two Asian American & Pacific Islander (AAPI) high school students who wish to present their support of race-conscious affirmative action admission before the Supreme Court if and when the justices hear arguments next year about an anti-affirmative action lawsuit filed against the school by Edward Blum, the architect behind Abigail Fisher’s earlier failed attempts to dismantle affirmative action before the Court.
The two AAPI high school students represented by AAAJ-LA are current applicants to Harvard University, and both believe that race-conscious affirmative action is beneficial; AAAJ-LA filed paperwork yesterday to help the students join an existing group of diverse students who will have “amicus plus” status to present their support for affirmative action in a pending anti-affirmative action case, Students for Fair Admissions, Inc v. President and Fellows of Harvard College.
Supreme Court Justice Samuel Alito begins his dissenting opinion to Fisher v. University of Texas by pronouncing that “Something strange has happened since our prior decision on this case.” He wonders how the University of Texas (UT) could emerge victorious from its contest with Abigail Fisher over the constitutionality of its race-conscious admissions policy without addressing “the important issues in the case” raised by the Court three years ago (Fisher II 28). Then and now, UT did not meet Justice Alito’s strict scrutiny when explaining why affirmative action is a compelling interest for the government–the only reason allowed under the Fourteenth Amendment’s Equal Protection Clause for the state to make decisions based on the race and ethnicity of an individual. This time around, however, Justice Alito has a new reason to be skeptical.
Justice Alito devotes significant attention to his point that UT invalidates its compelling interest claim by discriminating against Asian Americans. “How can a diverse student body contribute to the greater good,” he seems to ask, “when Asian American diversity doesn’t count?” This would be a fair question if not for copious evidence refuting the notion that affirmative action discriminates against Asian Americans (see the amici submitted on behalf of UT representing over one-hundred Asian American organizations, including the Asian American Legal Defense and Education Fund and Asian Americans Advancing Justice). In this blog I want to draw attention to another, rather obvious flaw in Justice Alito’s thinking. Abigail Fisher isn’t an Asian American.
The University of Texas employs a so-called “Top Ten Percent Plan”, wherein the school automatically admits students from each of the state’s high schools who score within the top ten percent of their graduating class. The remainder of available slots are filled through a holistic review process that includes race as one of several characteristics used to assess applicants. Fisher — whose high school grades were insufficient to yield her automatic acceptance to the University of Texas — contends that she was rejected under holistic review because she is White and therefore that the University of Texas violated her 14th Amendment rights. However, independent review of her application and the characteristics of other applicants in 2008 demonstrate that Fisher’s application package was weak in comparison to others in her year, and that her rejection likely had nothing to do with the colour of her skin.
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.