Fisher v. University of Texas was a blow to those battling against racial preferences. However, for those looking for any silver lining, Justice Alito’s dissent provides some relief. For the first time in a major affirmative action case, a Supreme Court Justice gave a meaningful discussion about Asian-Americans’ place in the racial preference debate.
In dissent, Justice Alito questions why the majority fails to address the University of Texas’s treatment of Asian-Americans. He notes that the majority ignored that Hispanic students are better represented at the University than Asian-Americans, yet Hispanic applicants continue to receive preferential treatment. He observes that the majority “act almost as if Asian-American students do not exist.”
He makes two major observations that illuminate the problems faced by Asian-Americans. First, by neglecting to discuss the Asian-American community, the majority ignores how the University is simply racially balancing its student population, which is plainly unconstitutional. Indeed, racial balancing seems to be the best explanation for why the University grants preferential treatment to Hispanic applicants, but not Asian-American applicants, even though more Hispanic students attend the University.
Second, Justice Alito notes that the University’s use of race ignores that Asian-Americans are not a monolithic group. Asian-Americans encompass individuals of Chinese, Japanese, Korean, Vietnamese, Cambodian, Hmong, Indian and other ethnic backgrounds. It is “ludicrous to suggest that all of these students have similar backgrounds and similar ideas and experiences to share.” Despite the ethnic diversity of the Asian-American community, it does not seem like the University is committed to ensuring that there is a “critical mass” of Cambodian-American, Vietnamese-American, or Hmong-American students, even though members of these ethnic groups are generally less likely to go to college.
In the racial preference debate, Asian-American students are inconvenient for the pro-preference narrative. Proponents of racial preferences ignore Asian-Americans. Hopefully, Justice Alito’s dissent will lead to more discussion about how Ivy League schools are discriminating against Asian-Americans by placing an arbitrary cap (approximately 18%) on their total enrollment, how New York City tried to enact an admission policy for its magnet schools that appeared to be aimed at lowering the enrollment of poor Asian-American students, and how many Asian-Americans have to distort their identity out of a legitimate fear that colleges will discriminate against them because of their racial background. It is a disgrace that anyone in America would have to hide their identity out of fear of discrimination.
There are currently more racial preference cases making their way through the court system. Right now, cases challenging the University of North-Carolina-Chapel Hill and Harvard University’s racial preference programs are being litigated. Unlike previous major cases, the plaintiffs in the North Carolina and Harvard cases are Asian-Americans. Maybe the inclusion of Asian-American plaintiffs will help shine a light on the truly discriminatory nature of racial preferences. One can hope.