Affirmative Action Case Splits Asian Americans

Asian American lawyers have taken a strong stand on university affirmative action in the case to be heard by the U.S. Supreme Court this week -- and on opposite sides of the issue.

The San Francisco-based Asian American Legal Foundation agrees with the white plaintiffs and urges the court to end race-based admission policies.

“The Constitution protects individuals, and individuals should not be judged on their race,” says Alan Tse, a San Francisco lawyer.

But the National Asian Pacific American Legal Consortium, a coalition of 25 Asian civil rights groups, sides with the University of Michigan and urges the court to preserve affirmative action.

“This is about fairness and equal opportunity. Asian Americans benefit from diversity. They are not hurt by it,” says Julie Su, a lawyer for the Asian Pacific American Legal Center in Los Angeles.

The division of opinion reflects, in part, the history and status of Asian Americans.

They are a racial minority group that has suffered from racism and blatant discrimination.

However, some critics of affirmative action say Asian American students may be put at a disadvantage if universities give preference to applicants who are black or Latino.

“My sense is that most Asians are supportive of affirmative action generally, especially in employment and business. But the situation is a bit muddier for higher education,” said Bill Lann Lee, a San Francisco attorney who led the Justice Department’s civil rights division in the Clinton administration.

While most civil rights law focused on discrimination against blacks, the Supreme Court’s earliest civil rights rulings dealt just as often with exclusionary laws against Chinese people in California.

The Constitution was amended after the Civil War to stop Southern states from mistreating the newly freed slaves and to require the “equal protection of the laws.” This amendment, the 14th, passed with high hopes but was steadily weakened by the Supreme Court and did little to help blacks.

However, federal judges in California -- and the Supreme Court itself -- invoked the new equality standard in the 1880s to strike down laws that excluded Chinese people from government jobs, from fishing in state waters and from operating laundries in San Francisco.

But the high court’s record regarding Asians is spotty too.

When legal scholars cite the high court’s worst equal-protection rulings of the 20th century, they often point to Korematsu vs. U.S., the 1944 decision that upheld the internment of Japanese Americans during World War II.

In the 1970s, when the Supreme Court first took up the issue of college affirmative action, Asian American lawyers strongly supported admission policies that gave an advantage to minority students. At that time, Asian students qualified for this preference.

Allan Bakke, a rejected white applicant, had sued UC Davis Medical School, claiming discrimination.

In response, the university conceded that it set aside 16 of its 100 slots for members of a “minority group,” which it defined as “blacks,” “Chicanos,” “Asians” and “American Indians.”

In 1978, the court struck down this “quota” as unconstitutional, but also said a university may consider a student’s race in order to create diversity.

By the early 1980s, the soaring admission rates for Asian Americans prompted university officials to drop them from the minority category.

“These programs ended when they were no longer needed. And there was no longer a need for Asians to be included,” said Lee, the former civil rights chief.

But Asian critics of affirmative action say they fear that a Supreme Court ruling would allow colleges and universities to put ceilings on the number of Asian American students.

Their brief to the Supreme Court describes diversity rules in the San Francisco public schools that limited the proportion of Chinese Americans to 45% of a school’s enrollment.

The rules also limited the number of Chinese students who could gain admission to the city’s elite Lowell High School.

When some Chinese American students were turned away from their neighborhood elementary schools, parents sued in federal court, and the school district agreed to abandon the policy.

“We fought the San Francisco schools for five years over this, and the only protection we had was the constitutional principle against race-based laws,” Tse said.

If the Supreme Court says the University of Michigan is entitled to raise or lower the number of minority students, the ruling could allow public schools to do the same, he said.

But proponents of affirmative action stress that they are not in favor of quotas or ceilings.

“They are trying to bring up examples of strict numerical limits, but that’s not what we are talking about. Affirmation action is about opportunities,” said Su, the Los Angeles lawyer. “I think it’s unfortunate they have tried to pit Asian Americans against other communities of color.”

She said opinion surveys show that most Asian Americans support affirmative action.

In 1996, 76% of Asian American voters in California said in an election exit poll that they voted against Proposition 209, the ballot measure that barred the state from giving “preferential treatment” to any person because of race or ethnicity.

University of California officials say the change in admission policies has had little, if any, effect on the number of Asian American students.

In 1997, before Proposition 209 went into effect, Asian American students accounted for 33.2% of the students admitted to the nine UC campuses. In 2002, they accounted for 33.8% of those admitted.

Asian Americans are the second-largest minority group in California, behind Latinos. In the 2000 census, Asians made up 11% of the state’s population, while Latinos were 32% and blacks 6.7%.

Nationwide, Latinos accounted for 12.5% of the population, blacks 12.3% and Asians 3.6%.

Divided opinion on affirmative action is not limited to Asian Americans. A similar debate has taken place among Jewish organizations.

The American Jewish Committee, which opposed the use of quotas in the Bakke case, filed a brief this year supporting the University of Michigan.

“Flexible goals aimed at increasing the numbers of minority students at a given university are not the same as unconstitutional quotas,” the group says.

However, the Anti-Defamation League filed a brief on the other side.

“While strongly sympathetic to the goal of increasing the numbers of minority students in our nation’s selective universities, the ADL continues to adhere to the principle that school admissions programs must be race neutral,” it says.

The high court is scheduled to hear arguments in the Michigan case Tuesday.