Affirmative Action

[elan]

Justices Weigh Race as Factor at Universities

Luke Sharrett for The New York Times
Published: October 11, 2012



WASHINGTON - With the future of affirmative action in higher education hanging in the balance, the Supreme Court on Wednesday grappled with two basic questions, repeated by Chief Justice John G. Roberts Jr. in various forms at least a dozen times.

He wanted to know how much diversity was enough. And he wanted to know when colleges would be able to achieve an acceptable level of diversity without using racial preferences.
"What is the critical mass of African-Americans and Hispanics at the university that you are working toward?" Chief Justice Roberts asked a lawyer for the University of Texas at Austin. The chief justice never received a specific answer from the university's lawyer or from one representing the federal government.

Their reluctance to answer illuminated a tension in the court's precedents, which reject quotas but allow public universities to use race in admissions decisions as but one unquantifiable factor among many.
Had the lawyers responded to the chief justice by proposing a percentage goal, they would have run headlong into cases prohibiting quotas. In failing to offer a number, though, they left the court with very little to do in the face of precedents requiring judges to look closely whenever the government draws distinctions among people based on race.

"You won't tell me what the critical mass is," Chief Justice Roberts told the university's lawyer, Gregory G. Garre. "How am I supposed to do the job that our precedents say I should do?"
The questioning on Wednesday from the chief justice and his colleagues was by turns caustic, exasperated and despairing.

Justice Sandra Day O'Connor, who retired in 2006, attended the argument and listened attentively as her former colleagues debated whether to reaffirm, limit or overturn one of her legacies, her majority opinion in Grutter v. Bollinger, the 5-to-4 decision in 2003 that allowed public universities to take account of race as part of a "holistic review."

Her replacement by Justice Samuel A. Alito Jr., who has been hostile to affirmative action programs, may have altered the balance on the court on whether such admissions programs are constitutional.
The member of the court who now probably holds the decisive vote, Justice Anthony M. Kennedy, tipped his hand only a little, asking a few questions that indicated discomfort with at least some race-conscious admissions programs.

Those questions, along with his voting record, suggested that Justice Kennedy may be prepared to limit the Grutter decision. He told Mr. Garre that he was uncomfortable with the university's efforts to attract minority students from privileged backgrounds.

"What you're saying," Justice Kennedy said, "is that what counts is race above all."
He asked a lawyer for Abigail Fisher, a white woman who was denied admission to the university and who filed the lawsuit before the justices, whether the modest racial preferences used by the university crossed a constitutional line. Then he proposed an answer to his own question.

"Are you saying that you shouldn't impose this hurt or this injury, generally, for so little benefit?" he asked.
Justice Sonia Sotomayor summarized the central question in the case, echoing Chief Justice Roberts. "At what point - when - do we stop deferring to the university's judgment that race is still necessary?" she asked. "That's the bottom line of this case."

In the 2003 decision, Justice O'Connor wrote that she expected it to stand for 25 years. "I know that time flies," Justice Stephen G. Breyer said on Wednesday, "but I think only nine of those years have passed."

By the conclusion of the argument, it seemed tolerably clear that the four members of the court's conservative wing were ready to act now to revise the Grutter decision.

The court's more liberal members said there was no reason to abandon the earlier framework. "What is it we're going to say here that wasn't already said in Grutter?" Justice Breyer asked.
Justice Elena Kagan disqualified herself from the case, Fisher v. Texas No. 11-345, presumably because she had worked on the case as solicitor general. That leaves open the possibility of a 4-to-4 tie, which would have the effect of affirming a lower-court decision upholding the Texas program.

Ms. Fisher, 22, recently graduated from Louisiana State University and works as a financial analyst in Austin, Tex. Her lawyer, Bert W. Rein, was questioned closely by the more liberal justices about whether she suffered the sort of injury that gives her standing to sue.
They also pressed the point that the Texas program should pass muster under the 2003 decision. "It seems to me that this program is no more aggressive than the one in Grutter," Justice Ruth Bader Ginsburg said. "In fact, it's more modest."


Three-quarters of applicants from Texas are admitted to the university under a program that guarantees admission to the top students in every high school in the state. That program, which has produced substantial diversity, is not directly at issue in the case.

Students from Texas who missed the cutoff, like Ms. Fisher, and those from elsewhere are considered under standards that take account of academic achievement and other factors, including race and ethnicity.

Mr. Garre said the percentage program worked to create diversity only because "by and large, the minorities who are admitted tend to come from segregated racially-identifiable schools." Justice Alito responded by questioning a passage in Mr. Garre's brief, in which he told the justices that the university should be free to supplement that pool with more privileged minority students, thus "increasing diversity within diversity."

"I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds," Justice Alito said.

Justice Kennedy also seemed taken aback by the approach. "You want underprivileged of a certain race and privileged of a certain race," Justice Kennedy told Mr. Garre. "So that's race."

A decision forbidding the use of race at public universities would almost certainly mean that it would be barred at most private ones as well under Title VI of the Civil Rights Act of 1964, which forbids racial discrimination in programs that receive federal money.

Justice Sotomayor told Mr. Rein, the lawyer representing Ms. Fisher, that she sensed an agenda. "You don't want to overrule Grutter," she said. "You just want to gut it."

[Dutty]

  nobody eh touchin this thread with ah ten foot pole

[Bakes]

Complicated issue... and many don't really understand the nuances.  Don't think it has anything to do with ten-foot poles.

[asylumseeker]

Complicated issue... and many don't really understand the nuances.  Don't think it has anything to do with ten-foot poles.

VERY ...

Incidentally, yesterday Public Radio International (PRI) did a comparative piece on the Brazilian and French affirmative action models vis-a-vis the American model. The treatment was interesting to a degree. Although not superficial, a few minutes of radio airtime was insufficient to go deep, but they did touch on the underlying philosophical differences in the three nations. A chunk of the broadcast featured comments by Tanya Hernandez @ Fordham Law.

A transcript of the broadcast and a download are available here:
http://www.theworld.org/2012/10/affirmative-action-brazil/

Also more from her @ the Huffington Post:

The View of Affirmative Action From the Other Side of the Americas

The October 10, 2012, Supreme Court argument in the Fisher v. Texas affirmative action case marks a peculiar turning point in the racial history of the United States and its inspiration in worldwide civil rights movements. Just as the United States Supreme Court reconsiders the constitutionality of race-based affirmative action programs in higher education, Latin American countries such as Brazil are actively adopting nationwide affirmative action policies. The Brazilian context can provide the Supreme Court with useful guidance in comprehending the continued importance of affirmative action in pursuing racial equality.

Indeed, the affirmative action challenge to the University of Texas at Austin's use of race in its undergraduate admissions decisions makes a sharp contrast to the Brazilian Supreme Court's unanimous endorsement of affirmative action just this past April when it declared that the Federal University of Brasilia's affirmative action program was not only constitutional but an important duty and social responsibility of the nation-state in its enforcement of equality. After this historic decision was issued, Brazilian legislators enacted the "Law of Social Quotas." As of August 29, 2012, the new law requires public universities to reserve half of all new admission spots for Brazilian public school students (many of whom are African-descendants). In addition, the law requires that 50 percent of those spots be reserved for African-descendants and persons of indigenous ancestry in numbers proportional to their relative populations within each state. Of the 81 senators representing Brazil's 26 states, only one voted against the bill.

In contrast to Brazil's new broadly encompassing embrace of affirmative action, the United States Supreme Court is now considering a challenge to even the most meager of race-conscious considerations. Most students at the University of Texas at Austin are admitted under a state law (the "Top Ten Percent Plan"), which requires the university to admit all Texas residents who rank in the top ten percent of their high school class. For the remainder of the class, UT undertakes a holistic "whole-file" review of applications. This process allows the school to consider additional criteria, such as essays, leadership qualities, extracurricular activities, awards, work experience, community service, family responsibilities, socio-economic status, languages spoken in the home, and -- as of 2005 -- race. It is this modest consideration of race alongside a host of other factors that is now at issue in the Supreme Court.

What accounts for this divergence in national perspectives across the Americas? In some respects the racial justice movement in the United States is a victim of its own past success. While the formal mechanisms for addressing racial inequality have long been in place, there is a growing societal belief that it is no longer necessary for the government to be proactively engaged in ensuring racial equality. A racial hierarchy continues to exist alongside a deteriorated social commitment to race-based programs. The early U.S. civil rights movement was astonishingly successful at making the goal of racial equality a stated national norm and catalyzing government programs designed to provide concrete access to jobs and education. However, the movement's very success contributes to the notion that blacks and other persons of color no longer require legal assistance in accessing equal opportunity. Indeed, President Obama's election in 2008 is viewed as the culmination of U.S. racial transcendence, so that now the United States presents itself as "racially innocent " in much the same way Latin America has long claimed to be because of its absence of official Jim Crow laws of racial segregation. At the same time, systemic racism has not been eradicated in the United States, as evidenced by the long-standing institutional racial disparities in employment, educational attainment, access to health care and capital, residential segregation, and disparate incarceration and execution rates.

The approximately 150 million people of African descent in Latin America have long been plagued by similar experiences of systemic racism and social exclusion. While African descendants represent about one-third of the total population in Latin America they make up 40 percent of the poor and have been consistently marginalized and denigrated as undesirable elements of the society since the abolition of slavery. Because Latin America is a region that has long claimed that all racial distinctions were abandoned with the abolition of slavery, a U.S. comparison to the Latin American racial democracy version of "postracialism " is an instructive platform from which to assess the viability of contemporary assertions of postracialism in the United States - a rhetoric that contends that racism has already been largely transcended. As the longtime scholar of comparative race relations Anani Dzidzienyo notes, examining the Latin American racial context "can provide insights for Afro-Americans who are today having to confront the mainstream's assumptions concerning 'the end of racism' in a post-Civil Rights U.S. society." It should thus be quite instructive to observe that Brazil's recent Supreme Court endorsement of race based affirmative action was rooted in the perception of the state as having a duty to guarantee the "conditions of equality" for groups that have historically lived on the margins of society, enabling them to fully exercise their human rights and fundamental rights. If the United States wishes to maintain its historical role as an inspiration and model for other civil rights movements across the globe, the Supreme Court in today's oral argument should also view the conditions of equality as paramount in the legitimacy of affirmative action.

Tanya K. Hernandez, Professor of Law Fordham Univ. School of Law and Author of "Racial Subordination in Latin America: The Role of the State, Customary Law, and the New Civil Rights Response" (Cambridge Univ. Press)

http://www.huffingtonpost.com/tanya-k-hernandez/fischer-v-texas_b_1951278.html

[Bakes]

I disagree with her a bit... I don't blame the alleged sucicesses of the Civil Rights movement, but rather the resistance of conservative ideology to the notion of promoting minorities at the expense of whites.  I think quotas make people nervous...and for good reason.  We are largely a merit-based society, one steeped in puritanical and capitalistic notions.  Brazil has more of a Bolivian socialist outlook where equality is paramount, even if only superficial measures are taken.  By that I mean that previous Brazilian governments have only paid lip service to equality, but since Lula there appears to have been a more honest discussion about it.

This 'socialist' outlook is true for all of South and Central America, and thus to me explains the differences in approach from the American perspective.  The "postracialism" talk out of Latin America that Hernandez references comes from the Utopian socialist egalitarian perspective, naive and facetious though it be, rather than from a position of vindictiveness that I think is driving the talk in the US.  "Look, you got a black President, now you have no excuse and you can shut up your whining" is pretty much the way the Rush Limbaughs of the world look at it, not from a position of real, or even feigned equality.  This is what is largely driving opposition to Affirmative Action here in the US, and prolonging any real progress.

I share the reservations of some critics that it stigmatizes students and contextualizes black achievement... having personally been the target of the same.  The positives definitely outweigh the negatives however.

[asylumseeker]

nobody eh touchin this thread with ah ten foot pole

Join us. 

[g]

I will just wager a couple experiences.

I went to a HBCU in Washington DC and affirmative action was alive and kicking, Howard was considered to be the #1 minority school so companies came in droves and in the engineering and business schools, almost 70% of the graduating class already had jobs (well back when the economy was good). We all knew the undercurrent of those companies was to fulfill some diversity program. When the students went on their summer interns or permanent positions nobody seemed to care where they came from or what their grades where, in most of those cases you had to be re-trained in anyways. I've learnt that a college degree is more about demonstrating you can complete a curriculum of study with some competency. Grades are the focus of graduate school and even if you work for a few years, the graduate programs are more inclined by what you have done with your job experiences.

I also interned for a couple summers at a local Construction Project Management company. A small company of PMs with an Afro American/Caribbean CEO. There was a local government policy back in those days (dont know if it still holds) that any local construction project over a particular threshold had to outsource a percentage of their work to small business.

Now of course small companies like the one i worked for could never compete for the mega construction projects but the law instructed that the mega companies like Turner, Donohoe etc. that they must outsource to the companies registered with the Local Small Business Development and Minority Business Enterprise Center.

It encouraged entrapraneurship and a guarantee of a piece of the pie to small business. Of course there are conditions to maintain your minority and small business membership and of course naturally the objective of these programs is to ultimately ensure that small business grow and eventually outgrow these programs.

But it may be a different kind of affermative action but i've seen how effective it was.

[Bakes]

Yeah g... that is a different type of Affirmative Action and not really comparable, if you ask me.  What you refer to is the SBA 8(a) program, which gives a leg up to minority owned businesses doing business with the government.  I used to work for one such contractor back in the day and it's a great way to get a foot in the door... tons of money to be made with these government contracts as it applies to both state and federal contracting.  Because no "individual" is affected, it's not nearly as controversial as individual rights aren't being affected.  Additionally, for the minority-owned business, there is no 'stigma' or assumption of inferiority (not that they would care) since all companies are measured by the same performance metric, minority-owned or not.

I think what is problematic with Affirmative Action is that many of the programs allow for deviations from the standard admission criteria in favor of giving a minority a chance.  In other words, if Harvard's average SAT score for incoming students is an 1800 on the SAT and a GPA of 3.7... for minority candidates it might be 1500/3.0.  I think this is what gives opponents of AA ammunition in attacking the initiatives as giving "undeserving" students a spot over deserving ones.  For the 8(a) businesses, everyone responds to the same RFP's and must present qualifying past-performance reports indicating their capability to perform... which is why no one can knock them on qualification.

[elan]

Yeah g... that is a different type of Affirmative Action and not really comparable, if you ask me.  What you refer to is the SBA 8(a) program, which gives a leg up to minority owned businesses doing business with the government.  I used to work for one such contractor back in the day and it's a great way to get a foot in the door... tons of money to be made with these government contracts as it applies to both state and federal contracting.  Because no "individual" is affected, it's not nearly as controversial as individual rights aren't being affected.  Additionally, for the minority-owned business, there is no 'stigma' or assumption of inferiority (not that they would care) since all companies are measured by the same performance metric, minority-owned or not.

I think what is problematic with Affirmative Action is that many of the programs allow for deviations from the standard admission criteria in favor of giving a minority a chance.  In other words, if Harvard's average SAT score for incoming students is an 1800 on the SAT and a GPA of 3.7... for minority candidates it might be 1500/3.0.  I think this is what gives opponents of AA ammunition in attacking the initiatives as giving "undeserving" students a spot over deserving ones.  For the 8(a) businesses, everyone responds to the same RFP's and must present qualifying past-performance reports indicating their capability to perform... which is why no one can knock them on qualification.

And therein is where most people go against AA. Do you think if the same standards are administered (Not sure how many institutions lower there qualification for minorities) across the board but a quota rule still apply it may change people views?

[Bakes]

And therein is where most people go against AA. Do you think if the same standards are administered (Not sure how many institutions lower there qualification for minorities) across the board but a quota rule still apply it may change people views?

I doubt it... I think Americans are opposed to the notion of 'quotas' irrespective as to the merits of how or why they are implemented.

[asylumseeker]

... I think what is problematic with Affirmative Action is that many of the programs allow for deviations from the standard admission criteria in favor of giving a minority a chance.  In other words, if Harvard's average SAT score for incoming students is an 1800 on the SAT and a GPA of 3.7... for minority candidates it might be 1500/3.0.  I think this is what gives opponents of AA ammunition in attacking the initiatives as giving "undeserving" students a spot over deserving ones.  ...

Why yuh didn't use Georgetown as your "example"?

[Bakes]

Why yuh didn't use Georgetown as your "example"?

...because Georgetown doesn't have a separate admissions criteria for minority students.

[gawd on pitch]

I have a habit of offending some on here with my "left" Afri-centric positions/opinions.. I will like to quote rapper Immortal Technique for this one..

"Affirmative Action aint reverse discrimination... That shit is a pathetic excuse for reparations"

For those who offended... Kiss my arse. Its time we start telling it as it is and quit trying to accommodate people feelings.

[Bakes]

I have a habit of offending some on here with my "left" Afri-centric positions/opinions.. I will like to quote rapper Immortal Technique for this one..

"Affirmative Action aint reverse discrimination... That shit is a pathetic excuse for reparations"

For those who offended... Kiss my arse. Its time we start telling it as it is and quit trying to accommodate people feelings.

Well, your intelligent, well-thought out contribution to the discussion is certainly appreciated.

[gawd on pitch]

I have a habit of offending some on here with my "left" Afri-centric positions/opinions.. I will like to quote rapper Immortal Technique for this one..

"Affirmative Action aint reverse discrimination... That shit is a pathetic excuse for reparations"

For those who offended... Kiss my arse. Its time we start telling it as it is and quit trying to accommodate people feelings.

Well, your intelligent, well-thought out contribution to the discussion is certainly appreciated.

Just put it this way.. Affirmative Action should focus on the Income and Economic aspects more, rather than mere "participation" and "diversity". Dont get me wrong, I am for diversity.

Check this out Bakes.. This Affirmative Action talk is only in the news now because there are people in high places in America that consider the playing field to be levelled now i.e. Obama. 

These stories questioning Affirmative Action have always existed. But this begs the question of why is this story receiving attention now? What is the context in America right now? Could it be that it is a presidential election, where you have a black president who might have benefited from such policies, versus a presidential candidate, who did not need any government policy?

[asylumseeker]

...
These stories questioning Affirmative Action have always existed. But this begs the question of why is this story receiving attention now? What is the context in America right now? Could it be that it is a presidential election, where you have a black president who might have benefited from such policies, versus a presidential candidate, who did not need any government policy?

Absolutely not.

[gawd on pitch]

...
These stories questioning Affirmative Action have always existed. But this begs the question of why is this story receiving attention now? What is the context in America right now? Could it be that it is a presidential election, where you have a black president who might have benefited from such policies, versus a presidential candidate, who did not need any government policy?

Absolutely not.

News nowadays is less about informing the public and more about generating consent and creating public opinion. Especially in America

[Bakes]

Just put it this way.. Affirmative Action should focus on the Income and Economic aspects more, rather than mere "participation" and "diversity". Dont get me wrong, I am for diversity.

Check this out Bakes.. This Affirmative Action talk is only in the news now because there are people in high places in America that consider the playing field to be levelled now i.e. Obama. 

These stories questioning Affirmative Action have always existed. But this begs the question of why is this story receiving attention now? What is the context in America right now? Could it be that it is a presidential election, where you have a black president who might have benefited from such policies, versus a presidential candidate, who did not need any government policy?

That is nonsense talk... Fisher v. University of Texas has been coming down the pipeline for some time now.  It is "receiving attention" for the same reason that Grutter v. Bollinger received attention 10 years ago and even back then we knew the matter wasn't settled, that it was only a matter of time before another challenge to Affirmative Action was brought.  Your position is further undermined by the fact that the issue has no bearing on the current Presidential election.

[gawd on pitch]

...
These stories questioning Affirmative Action have always existed. But this begs the question of why is this story receiving attention now? What is the context in America right now? Could it be that it is a presidential election, where you have a black president who might have benefited from such policies, versus a presidential candidate, who did not need any government policy?

Absolutely not.

News nowadays is less about informing the public and more about generating consent and creating public opinion. Especially in America

You are right Bakes. This issue has been in the courts for some time. But I have been hearing more about this just recently. These stories that question Affirmative Action have always been lingering. Its a coincidence that the courts are dealing with it now. But regardless, these stories can deeply shape peoples opinions especially during the last lap of the elections.

I may sound like a conspiracy theorist, but dealing with race related issues moments before an election can certainly shape peoples/public opinion as well as an election.

[asylumseeker]

To spur the discussion lil bit ...

Note that the position adopted by Asian Americans (as a generalized group) on this matter is starkly on the other side of that more prominently/dominantly favored by African Americans and Hispanic Americans. Asians (tend to?) support Fisher's arguments ... African Americans and Hispanics (tend to?)support the contentions of The University of Texas.

[Bakes]

You are right Bakes. This issue has been in the courts for some time. But I have been hearing more about this just recently. These stories that question Affirmative Action have always been lingering. Its a coincidence that the courts are dealing with it now. But regardless, these stories can deeply shape peoples opinions especially during the last lap of the elections.

I may sound like a conspiracy theorist, but dealing with race related issues moments before an election can certainly shape peoples/public opinion as well as an election.

This particular suit was filed in 2008 and wound it's way thru the courts, first at the District Court level, then the Appellate Court (Sixth Circuit Court of Appeals I believe), before the the US Supreme Court granted certiorari earlier this year.  This case won't be decided until early next year... well after the election, so I'm not sure how it's supposed to influence the election... unless merely talking about Affirmative Action in the news is somehow supposed to be damaging to Obama.

To spur the discussion lil bit ...

Note that the position adopted by Asian Americans (as a generalized group) on this matter is starkly on the other side of that more prominently/dominantly favored by African Americans and Hispanic Americans. Asians (tend to?) support Fisher's arguments ... African Americans and Hispanics (tend to?)support the contentions of The University of Texas.

It is both to the benefit and detriment of Asian Americans that they favor assimilation as much as they do.

[asylumseeker]

Asian-American rift over Supreme Court affirmative action case

Aug 14 (Reuters) - On Monday, dozens of Asian-American organizations filed amicus briefs at the U.S. Supreme Court arguing that universities should be allowed to consider race in admissions decisions. Five Asian-American groups were not among them.

That's because those groups already filed their briefs in the closely watched University of Texas case -- on the other side. They argued in May that the school's race-conscious admissions policies hurt Asian-Americans by giving less qualified candidates a leg up on admissions.

The dueling briefs provide stark evidence of a growing rift within the Asian-American community over the role race should play in college admissions. This split could have implications for how the court resolves one of the hottest cases on its docket this term, which begins in October.

The views of Asian-Americans, as expressed in amicus or "friend-of-the-court" briefs, could take on added significance in the court of public opinion and perhaps with the justices themselves, said UCLA School of Law professor Eugene Volokh.

The traditional justification for affirmative action has been to prevent schools from becoming all white, Volokh said. "That rhetoric becomes more complicated once you recognize that race-based systems discriminate against Asians as much as whites."

There have been pockets of resistance to affirmative action among Asian-Americans for years. But the rift has gotten more pronounced in the Texas case, which prominently features the impact of race-based admissions on Asian-Americans themselves.

The plaintiff's main brief challenging the University of Texas's affirmative action plan mentions Asian-Americans 22 times and argues that they are victims of a race-based system that favors blacks and Hispanics.

"We've come up a lot more in the briefs than we normally do," said Khin Mai Aung, an attorney at the Asian American Legal Defense and Education Fund, which supports the University of Texas program. "Normally we're just invisible."

At the University of Texas, students in the top 10 percent of the state's high schools are automatically admitted into the public university system. For the remaining spots, public universities can consider race to create a critical mass of underrepresented minorities on campus, including blacks and Latinos.

The challenge to the Texas system was brought by Abigail Fisher, a white student who says the University of Texas at Austin denied her admission in 2008 because of her race, in violation of the U.S. Constitution's Equal Protection Clause. By trying to mirror the racial composition of the state of Texas, Fisher argues, the school has essentially imposed a racial quota system, which is illegal under the Supreme Court's 1978 Bakke decision.

Fisher is asking the court not to just bar outright racial quotas, but to ban public universities from considering race at all in admissions. Many legal observers say the conservative-dominated high court may be sympathetic to Fisher's position.

Edward Blum, the director of the Washington-based Project on Fair Representation, is the principal architect behind the University of Texas lawsuit. He said Asian-Americans will likely remain front and center in the case.

"An empirical case can be made that the group that has suffered the most from racial preferences (in the affirmative action era) has been Asians," Blum said.

BEST-EDUCATED, FASTEST-GROWING

Asian-Americans, numbering more than 17 million, account for around 6 percent of the U.S. population, according to the 2010 Census. With diverse roots tracing back to places as varied as China, the Philippines and India, Asian-Americans comprise the nation's highest-income, best-educated and fastest-growing racial minority group, the Pew Research Center reported in June.

Advocates caution against viewing Asian-Americans as a monolithic group of overachievers and say they are a population with broad cultural and economic diversity. The more disadvantaged subgroups, including Southeast Asians and Pacific Islanders, directly benefit from affirmative action, some advocates argue.

At the same time, upwardly mobile Asian-Americans are facing more competition in college admissions as the minority population grows and elite colleges become even more selective. Harvard, for example, accepted a record-low 5.9 percent of applicants into its incoming class for 2012. Asian-Americans comprise 21 percent of the class, a number that has remained relatively steady for the past five years. Critics say the percentage would be higher if admissions were based on merit alone. At the prestigious Stuyvesant High School, a public high school in New York City where admission is based solely on an entrance exam, the student body is 72 percent Asian.

The Asian-American community is served by numerous civil rights and legal aid organizations that started to form in the 1970s. This legal apparatus has historically lined up to defend affirmative action.

The last time the Supreme Court took up the issue, in 2003, at least 28 different Asian-American advocacy groups signed onto briefs in defense of the University of Michigan Law School's use of race in admissions. Only the San Francisco-based Asian American Legal Foundation, a group formed specifically to fight racial preferences, opposed the Michigan policy.

The Supreme Court in that case ruled that universities could consider a candidate's race as part of a "holistic" evaluation to ensure academic diversity. That means schools can consider race alongside a host of other factors, such as extracurricular activities, family responsibilities and economic status, the court ruled in a 5-4 decision.

This time around, the Asian-American community appears less united. When the Supreme Court announced in February that it would hear the University of Texas case, a nonprofit called the 80-20 National Education Foundation, which promotes equal opportunities for Asian-Americans, decided for the first time to oppose race-conscious admissions. (The foundation, named after an aspiration to unite 80 percent of Asian-American voters around issues affecting them, continues to support race-conscious hiring in the workplace and in government contracts.)

The group's founder, Shien Biau Woo, a former Democratic lieutenant governor of Delaware, said his group decided to take its new stance after its online survey of 47,000 Asian-Americans found overwhelming support for race-neutral admissions based on merit alone.

ASIANS 'THE NEW JEWS' (Zando!!!!!! )

Woo's organization enlisted the National Federation of Indian American Associations, the Indian American Forum for Political Education and the Global Organization of People of Indian Origin, as well as a Jewish group, the Louis D. Brandeis Center for Human Rights Under Law, to sign onto an amicus brief. The Asian American Legal Foundation filed its brief on the same side.

"Asian Americans are the new Jews, inheriting the mantle of the most disenfranchised group in college admissions," the 80-20 brief argued, drawing parallels with methods Ivy League colleges used to limit Jewish enrollment in the 1920s.

Indeed, the shift in the Asian-American community recalls a rift that developed in the 1970s between Jewish groups and their traditional allies in the civil rights community over affirmative action.

"Many in the Jewish community were still nursing their wounds from having caps on Jews in Ivy League schools," said Marc Stern, general counsel at the American Jewish Committee.

The 80-20 Foundation brief noted that after California voted to ban affirmative action in public universities in 1996, Asian-American freshmen enrollment at the University of California at Berkeley shot up almost 10 percent over 10 years.

The brief also cited a 2009 study by Princeton sociologist Thomas Espenshade that found that Asian-American applicants have to score an average of 140 points higher than white students on the SAT for the same chances of admission at private universities. Whites, in turn, must score 310 points higher than blacks and 130 points higher than Latinos.

The impression that Asian-Americans are increasingly anti-affirmative-action is not one that other advocates for the community want to let stand: The briefs filed by the 80-20 Foundation and the others in May sparked a furor.

Two groups, Asian Pacific Americans in Higher Education and the National Commission on Asian American and Pacific Islander Research in Education, released policy papers in June that attacked the 80-20 Foundation's survey methodology. They argued that the survey targeted the foundation's members and attracted participants with similar views.

A majority of Asian-Americans voted against California's ban on affirmative action in public universities in 1996, the pro-affirmative-action groups noted. They also cited the Pew Research Center report from June, which found that 60 percent of Asian-Americans said their ethnicity makes no difference when it comes to getting into college.

In their briefs filed on Monday, the groups disputed claims made by Fisher, the plaintiff in the case, that the Texas policy pits racial groups against each other. The University of Texas does not set target numbers for any particular racial group or even track the number of admitted students by race, one of the briefs argued.

The Asian-American supporters of affirmative action were joined by several Jewish groups that submitted their own briefs, including the Anti-Defamation League and the American Jewish Committee.

Khin Mai Aung of the Asian American Legal Defense and Education Fund argued in her brief that under its program, the University of Texas has the flexibility to consider the ethnic background and immigrant history of any applicant, including Asians and whites.

The significant Vietnamese population in Texas, which includes refugees who came to the Gulf Coast for shrimping work, especially stands to gain, her brief said.

In an interview, Aung acknowledged that the argument against affirmative action may have more resonance when it is being advanced by Asian-Americans and other minorities. Groups like the 80-20 Foundation, she said, are being used by Fisher's legal team as "racial mascots."

The 80-20 Foundation's Woo took issue with that characterization and said his group made an independent decision to get involved in the case, based on the best interests of Asian-Americans.

http://newsandinsight.thomsonreuters.com/Legal/News/2012/08_-_August/Asian-American_rift_over_Supreme_Court_affirmative_action_case/

[Bakes]

Advocates caution against viewing Asian-Americans as a monolithic group of overachievers and say they are a population with broad cultural and economic diversity.

This has particular resonance for me and was the first thing that came to mind... it was borne out by the comments by the attorney for the Asian American Legal Defense and Education Fund,  Khin Mai Aung, whose name I highlight for a reason.  Typically when we speak of Asian achievement we are really just talking about Chinese/Taiwanese-Americans... and then to a lesser extent, Japanese-Americans and Korean-Americans (and yes, Indians... if yuh counting them among the "Asians").  We hear little about academic achievement among South East Asians... as Mr. Mai Aung appears to be.  Understandably they will be more supportive of the UT brief.

[asylumseeker]

Ah coming back to this thread after the U.S. presidential election ...