By Terry Baynes
(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.
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'
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.
(Editing by Eric Effron, Ted Botha and Prudence Crowther)