August 14, 2017

The Asian American Bar Association of the Greater Bay Area (“AABA”) is deeply concerned regarding media reports that the Department of Justice (DOJ) plans to investigate and potentially sue colleges and universities over race-based or affirmative action admissions policies.  The Civil Rights Division of the DOJ recently issued an internal announcement recruiting lawyers to work on “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.”  On August 2, the DOJ stated that the posting sought volunteers “to investigate one administrative complaint filed by a coalition of 64 Asian-American associations in May 2015 that the prior Administration left unresolved.”  That complaint, which was dismissed by the Obama administration as similar to a pending lawsuit, alleges racial discrimination against Asian Americans in the college admissions process at Harvard University.  While the nature and scope of the DOJ’s plans are unclear, AABA is significantly concerned that the DOJ announcement demonstrates an intent to target lawful race-conscious admissions programs, and that any such efforts will sow divisiveness in our communities rather than increase access to higher education for all Americans.

From its inception, AABA has been actively involved in supporting affirmative action in higher education.  AABA members filed an amicus brief in the landmark University of California v. Bakke (1978) case.  In Fisher v. University of Texas, 133 S.Ct. 2411 (2013) (Fisher I) and Fisher v. University of Texas, 136 S.Ct. 2198 (2016) (Fisher II), AABA joined amicus briefs urging the Supreme Court to uphold the University of Texas at Austin’s admissions program, which, like Harvard’s, aims to admit a diverse class in many ways and considers race as one factor in a holistic evaluation of each candidate.

AABA supports the use of affirmative action programs that consider race and ethnicity as part of an individualized, holistic review process in higher education. Historically, race-conscious admissions programs played a critical role in opening the doors of public and private universities to many Asian American and Pacific Islanders (AAPI) in the 1960s and 1970s. Today, certain AAPI subgroups continue to benefit from such programs, and all AAPI students benefit from more racially diverse college campuses.

Well-established U.S. Supreme Court precedent permits the use of race as one factor in the evaluation of an applicant and affirms that race-conscious admissions programs may be used as a means of obtaining ‘the educational benefits that flow from student body diversity.”  Grutter v. Bollinger, 539 U.S. 306, 330 (2003).  As the Supreme Court has recognized, “enrolling a diverse student body ‘promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.’” Fisher II, 136 S. Ct. at 2210 (quoting Grutter, 539 U.S. at 330).

“We will not be used as a wedge to engender divisions between communities of color,” says AABA President Miriam Kim.  “We acknowledge that affirmative action is an issue that divides the AAPI community, and we condemn illegal racial quotas and racial discrimination.  However, we believe that there continues to be a compelling interest in achieving diversity in education, and we support the use of race-conscious admissions programs in higher education.”