By Guest Contributor: David Shih (@professorshih)
Originally posted on David Shih
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.