Asian Americans, College Admissions, and Fisher v. Texas: Frequently Asked Questions

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What is Fisher v. UT-Austin?

In June 2013, the Supreme Court decided Fisher v. University of Texas at Austin, which examined the legality of University of Texas at Austin's ("UT-Austin") race-conscious undergraduate admissions policy. The case began when Abigail Fisher, a White applicant, sued UT-Austin for rejecting her college application. Fisher alleged that UTAustin's admissions policy violates the 14th Amendment's Equal Protection Clause and federal civil rights statutes.

The Asian American Legal Defense and Education Fund (AALDEF) filed an amicus brief to the Supreme Court in support of UT-Austin because we believe that preventing colleges from considering diversity as one part of the picture in admissions will have a harmful effect on Asian Americans and others in higher education.

In Fisher, the Supreme Court reaffirmed a compelling interest in higher education diversity, while sending UT-Austin's plan back to the 5th Circuit Court of Appeals for further review without ruling on its legality. It concluded the 5th Circuit didn't correctly apply existing law under Grutter v. Bollinger and Gratz v. Bollinger by deferring too heavily to UT-Austin's judgment.

How does UT-Austin's admissions policy work?

UT-Austin's admissions policy is a two-step process. Most freshmen are admitted at step one: the state's Top Ten Percent Plan (for example, 86 % of freshmen were admitted this way in 2009). The Top Ten Percent Plan is a policy that guarantees admission to applicants who are Texas high school seniors with GPAs in the top 10% of their class, without looking at other factors like SAT scores, extracurricular activities, leadership, or overcoming adverse experiences. [1] In step two of UT-Austin's policy, the remaining number of freshmen are admitted based on an individual review of their overall applications, which takes into account a broad range of factors like academic ranking, leadership, extracurricular activities, diversity factors (including race), and socio-economic status.

UT-Austin's policy was fashioned to comply with the Supreme Court's 2003 Grutter v. Bollinger decision, which held that race can be one of many factors considered in college admissions to attain campus diversity. Under Grutter, a school can try to attract enough racial minority students so that students from those communities won't feel isolated or like spokespeople for their race on campus. What UT-Austin's policy does NOT do is to reserve a specific number of slots or a percentage of its class for minority students - which is prohibited by the Supreme Court and at odds with the diversity goals UT-Austin's admissions policy is trying to achieve.

Well, isn't Fisher right?  In America, it's wrong to discriminate on the basis of race.  Aren't diversity considerations just special treatment for certain groups?

It's not just wrong to racially discriminate--it's illegal. The U.S. Constitution and federal law prohibit schools from discriminating against applicants based on their race, in addition to other attributes like sex, religion, or national origin. When a university denies admission to an applicant based on one of these characteristics, that's "negative action." An Asian applicant who is the victim of negative action would have been admitted if she or he were White. In the past, universities have used negative action against minorities to preserve the traditional White character of colleges. Today, this can take the form of legacy and donor admissions.AALDEF emphatically opposes negative action. In fact, we have a long track record of fighting negative action against Asian students, workers, immigrants, and others.

But negative action is not the same as diversity considerations, which are a constitutional way to promote diversity in a university's student body to benefit all students. In a legal race-conscious admissions plan--like UT-Austin's--race is not the only factor and it is not the deciding factor in determining who gets admitted. This is different from negative action, which rejects non-White applicants solely because of their race or for factors related to their race.

Racial minorities are not the only ones who benefit from UT-Austin's admissions policy, which promotes taking into account all of the factors of a student's application in determining merit. A rural White student who is the first in her family to attend college can benefit, as can an Asian refugee student from the inner-city, or a Black or Latino student from other circumstances.

What's the difference between allowing diversity considerations and having a so-called "merit-based admissions" program?

There is no difference. Allowing diversity considerations, or having a so-called "race-conscious admissions" program, is the same as having a so-called "merit-based program," and UT-Austin's program is a good example of this. The basis for admission for the vast majority of its freshman class is only grades (under the Top Ten Percent Plan), and the remainder of applicants are judged holistically based on an Academic Achievement Index (grades plus test scores) and a Personal Achievement Index (which includes a large number of factors such as extracurricular activities, leadership, and family background, as well as race). The vast majority of these factors are direct markers of different kinds of achievement or "merit." Considering factors like race only provides some context for those achievements and the struggles faced by applicants and those similarly situated to them.

Asian Americans might not be hurt by diversity considerations, but are they helped by them?

Here are a few of the ways in which Asian Americans are helped by diversity considerations in admissions:

  • Asian Americans as a group continue to be underrepresented in certain academic programs. For example, after Proposition 209 banned race-conscious admissions in California, Asian enrollment at UC Berkeley fell in some graduate programs. And across all UC law schools, White enrollment rose dramatically (59.8% to 71.7%) immediately after 209, while Asian enrollment fluctuated by less than 1%.

  • When admissions and enrollment data on Asian students is broken down by ethnicity, it's clear that particular Asian ethnic subgroups face unique social and economic disadvantages and remain underrepresented across the board at selective colleges and graduate programs. Well-meaning people have depicted Black and Latinos as the typical beneficiaries of diversity considerations and Asian Americans as "model minorities." But in reality, some Asian ethnic subgroups' education levels are just about the same as Blacks and Latinos. For example, Blacks and Latinos above the age of 25 hold bachelor's degrees at 18% and 13% respectively, compared to 14% for Cambodian and Hmong communities and just 12% for Laotians. When Asian Americans are not all lumped together within one catch-all category, the "model minority" myth falls apart.

  • Exposure to diversity is one of the most important parts of education. From kindergarten on, we don't only take one subject or read one author or learn one perspective. Nowhere is this more important than in colleges and universities, where students from all over the country, and sometimes even the world, can have the opportunity to learn together. In our increasingly globalized world, no education is complete if it doesn't include the opportunity to interact with people of different racial, ethnic, and cultural backgrounds. Diversity is also necessary in breaking down the racial stereotypes that Asian Americans face throughout their educational and professional lives. Now that Asian Americans are the fastest growing population in the United States, it's more important than ever that Asian American students are equipped to be leaders in a global workforce.

So if some Asians face particular struggles in their communities, why not just look at class status? Why the need to look at race?

UT-Austin's plan already considers class as one of many factors in admissions. But race and ethnicity are unique elements of diversity separate and apart from other important factors like class. Due to the large number of economically disadvantaged White applicants, admissions policies that consider only class diversity won't do an adequate job of achieving overall diversity. Coming from a different racial or ethnic background gives students valuable experiences and abilities that they can bring to the table - whether it's speaking a different language, growing up in a different culture, or having a different perspective. This is true for Asian, Black, Latino, and White students. By only bringing together students of diverse economic backgrounds, colleges will miss out on a great deal of diversity. That's why UT-Austin is so committed to defending race-conscious admissions policies.

I've heard people say that my son could get into all of the University of California schools--but not the East Coast elite schools--because California bans race-conscious admissions.  Wouldn't Asian Americans get fair treatment at competitive schools if they banned diversity considerations?

Not quite. Serious doubts remain about whether California's ban on race-conscious admissions policies (Proposition 209) had a positive impact on Asian applicants' chances. In fact, in the nine years before Proposition 209 ended race-conscious admissions policies in California, Asian student enrollment at University of California (UC) schools rose twice as fast it did in the 14 years after race-conscious policies were banned.

In any event, there is evidence that banning diversity considerations further disadvantaged some Asian students. That's because the 24 distinct ethnic groups that make up the Asian American community have a range of academic achievement and challenges. In California, for example, 40% of Cambodians and Laotians haven't finished high school -- twice the statewide rate. After Proposition 209, these Asian American subgroups, among others, remained drastically underrepresented in freshman classes at UC schools. Diversity considerations, like those used by UT-Austin, can be critical in ensuring that the range of Asian American applicants' experiences are given the individual consideration they deserve.

Why should Asians give up spots to Blacks and Latinos at most selective colleges?

Asians don't give up spots to Blacks and Latinos -- they compete for spots with students of all backgrounds. Opponents of diversity considerations sometimes describe college admissions as a zero-sum game for applicants of color, with Asians on one side and Blacks and Latinos on the other. That framework assumes there are only a fixed number of spots left for students of color after Whites and other students have been admitted. If this were true, it would mean that when an Asian student applies to a university, she or he competes solely with Asian, Black, and Latino candidates for the remaining spots.

If different minorities had to compete only with each other (and not Whites) for a set number of spots, this would be, in effect, a cap on minority admissions or a quota--which is strictly prohibited by the Supreme Court under the Grutter decision. It would also mean that White students were not in competition with Asian, Black, or Latino students for admission into selective colleges. At schools with diversity considerations like UT-Austin's, the admissions process puts all applicants, regardless of race, in one single pool, then considers all the factors that make each of them a good fit for the school, including their contribution to campus diversity.

In the most selective schools, college admission is an unavoidably competitive process. But it should not be a race for the remainder. Under a fair admissions policy, White students must compete for admission on a level playing field alongside Black, Asian, and Latino students. UT-Austin's admissions policy ensures that this happens by valuing what makes applicants unique, like the immigrant experience, overcoming discrimination, or being exposed to more than one culture. Asians, among others, benefit from all of these considerations.

Is it true that Asian Americans need higher SAT scores than others to be accepted to selective universities?

No. One study claimed that 15 years ago, Asian applicants had to score 140 points higher on the SAT (on a 1600 scale) than Whites to have the same rate of admission. Of course, if such a thing were true, that might be evidence of discrimination against students of color, or negative action--the exact opposite of race-conscious admissions policies. Negative action is illegal -- Asian applicants should never have a harder time getting accepted to college than White applicants.

But before we jump to conclusions, remember that SAT scores are not the only or best indicator of an applicant's merit. Some researchers have pointed out that grades are just as (if not more) important than SATs for college, and that Asians with the same SAT scores on average have slightly lower GPAs than Whites. Others contend that SAT test scores of Asian applicants are sometimes inflated because some schools include international Asian students along with domestic Asian American students, and statistically international Asian students have higher SAT scores. (For example, at New York University's Stern School of Business, nearly 50% of applicants are international Asian students). Still others have pointed out that Asian students apply disproportionately more to majors and departments that heavily value quantitative measures of merit like test scores (e.g., business), rather than those that emphasize an applicant's body of work (e.g., graphic design).

That's why a gap in SAT scores between racial groups does not, standing alone, prove negative action. But if all relevant factors were considered alongside SAT scores, and it turned out that colleges were in fact discriminating against Asians or other racial minorities, then AALDEF would certainly look into taking action.

If diversity considerations benefit all applicants, why do Asian Americans oppose them?

Actually, the weight of research shows that Asian Americans, by and large, support diversity considerations. In a multi-city survey by the Inter-University Consortium for Political and Social Research from 2000, 63.1% of Asian Americans indicated that "affirmative action is a good thing," 18.6% reported that it "doesn't affect Asian Americans," and only 5.7% reported that it is a "bad thing." AALDEF's own exit polls found that 75% of Asian American voters in Michigan rejected Michigan's Proposal 2, a state referendum banning race-conscious policies. Also, a recent study by Pew Research Center reported that only 12% of Asian Americans expressed a belief that race-conscious admissions policies hurt them. Regardless of what opponents of diversity considerations have claimed, the evidence says that people of color stand together on this issue more often than not!

AALDEF is requesting public comments and suggestions for additional FAQ responses in order to further develop this resource.

To submit comments and additional questions, please email with the subject heading "Diversity FAQs." You may also send paper comments to: Asian American Legal Defense and Education Fund, 99 Hudson St., 12th Fl, New York NY 10013.

Download the FAQs [pdf]

Download the Fisher v. UT Factsheet [pdf]

Download Asian Americans and Affirmative Action: Myth vs. Reality [pdf]

[1] The percentage under the Top Ten Percent Plan has been narrowed from the 10% to the top 8% or 9% in the past few years, and may be adjusted again moving forward.


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