On Affirmative Action and Fisher v. UT: Why Asian Americans Will Lose if Fisher Wins


May 31, 2012

By the Asian American Center for Advancing Justice

The U.S. Supreme Court has agreed to review Fisher v. University of Texas at Austin, a potentially landmark case that could end the use of race-based affirmative action in higher education. The Court ruled nine years ago that although quota systems in admissions processes were unconstitutional, race can be used as a positive factor, just not a decisive factor. The Court reasoned that considering race as a factor—or race-consciousness—in the admissions process is important because a diverse student body improves the education of all students. Fisher, a White woman, claims that she was unconstitutionally denied admission to the University of Texas at Austin (UT-Austin) as a result of its affirmative action policy.  With this new case, the Court’s previous ruling that race can be considered as part of the admissions process, is in danger of being overturned.

The Asian American Center for Advancing Justice (Advancing Justice)—Asian American Institute (AAI), Asian American Justice Center (AAJC), Asian Law Caucus (ALC), and Asian Pacific American Legal Center (APALC) will be filing an amicus brief urging the Supreme Court to uphold race-conscious admissions.

We need affirmative action policies because not everyone has an equal opportunity to succeed.   Universities should be allowed to consider the whole person, including one’s experiences as a racial minority, so that the opportunities that come from higher education are available to all qualified students.   Asian Americans may appear to be well represented at some of the most selective universities, but among the various Asian ethnic groups, many, like Southeast Asians, continue to be vastly underrepresented. A university should be allowed to consider race as one of many factors in order to promote equal opportunity and educational diversity in its classrooms and on its campus.

Additionally, Asian Americans continue to be underrepresented in corporate sector managerial positions and public contracting. Affirmative action programs provide Asian Americans with invaluable employment and business opportunities that otherwise would not be available.

Furthermore, affirmative action is needed to offset the racial discrimination captured by the use of admissions criteria like grade point average (“GPA”) and SAT scores. Without considering race, the use of GPAs and SAT scores in admissions is unfairly biased against minority students. Over-reliance on GPA and SAT scores results in the filtering out of qualified minority applicants whose contributions to the learning environment is crucial to enhance the competiveness of all students in the increasingly global and multi-cultural workforce.

GPAs are not colorblind measures of merit because many students of color, particularly low-income Blacks, Latinos, and certain Asian and Pacific Islander sub-groups continue to attend separate and unequal schools with higher concentrations of poverty, fewer qualified teachers, higher teacher turnover, fewer honors and Advanced Placement (“AP”) courses, greater overcrowding, and fewer overall resources —factors which all impact a student’s GPA.  Many undergraduate schools, including the University of California and UT-Austin, exacerbate the differences by inflating GPAs or assigning additional weight to an applicant for the completion of AP courses.  Even where AP courses are offered, many minority students are unable to take the courses because they are discriminatorily assigned into lower educational tracks.

Studies have also documented bias in standardized tests like the SAT which disproportionately impacts students of color. Experts have observed, for example, that the test norming process that is used to select standardized test questions inadvertently favors the selection of questions that white students have answered correctly over questions that minority students have answered correctly. Minority students also face unequal pressures and stereotypes that influence their test taking experience in adverse ways. Moreover, testing bias is the only logical explanation for the documented and significant racial test score gaps that persist even between white and minority students with identical academic numerical credentials. Students of color should not have their academic achievements diminished based on a four hour test that cannot fully capture a student’s potential. Where admissions processes rely on criteria like GPA and SAT scores, the reality of how racial discrimination shapes those criteria must be taken into account. Without considering race, use of the criteria is unfairly biased in favor of White students.

For these and other reasons that we will be posting about in the next months, Advancing Justice will continue to advocate for the protection of affirmative action and diversity programs.

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