Foley Hoag Files Amicus Brief in U.S. Supreme Court on Behalf of AALDEF in Major Challenge to Affirmative Action in University Admissions

On behalf of its client the Asian American Legal Defense and Education Fund (AALDEF), a leading civil rights group, Foley Hoag recently filed an amicus brief in Fisher v. University of Texas at Austin urging the U.S. Supreme Court to affirm the constitutionality of the university’s undergraduate admissions program. Oral argument in the case is scheduled for October 10. 

Under Texas law, high school seniors who graduate in the top ten percent of their class are guaranteed admission to any state-funded university, and the majority of students at University of Texas at Austin (UT), the state’s flagship university, are admitted through this facially race-neutral program. The university fills the remaining seats through a program of individualized or “holistic” review, under which all applicants are able to benefit from the consideration of their race in the distinctive context of their background and experience. It is this latter review process that Fisher—a white woman who fell short of the ten percent threshold for university admittance—now challenges.

Fisher and her amici’s attack on UT’s admissions program is premised in part on the claim that it disadvantages Asian American applicants by giving preferential treatment to Hispanics and African Americans in the form of increased admissions and lower standardized test score requirements. They argue that UT has suppressed Asian American admission in order to match the racial demographics of Texas, and that its holistic admissions program is really a quota system intended to increase Hispanic enrollment. 

Foley’s brief uses admissions and enrollment data and social science research to rebut these claims. Census and admissions data, for example, show that the percentage of Asian American students enrolled at UT exceeds the percentage of Asian Americans in Texas by a factor of five. The data also show that a higher percentage of Asian American students are admitted through holistic admissions than Hispanic admittees. And differences in average standardized test scores among racial or ethnic groups at institutions such as UT reflect the racial/ethnic test score disparities already present in the applicant pool, resulting from socioeconomic differences, educational practices, and other environmental factors. In short, there is no evidence that UT has limited Asian American admissions in any manner.

Foley’s brief further argues that UT’s admissions program in fact benefits Asian Americans by allowing for the consideration of economic and educational inequities faced by students from certain ethnic subgroups—differences that are often hidden by the aggregation of data into a single “Asian” category and the promulgation of the harmful “model minority” myth.

Starkly different immigration histories have shaped Asian Americans’ socioeconomic experiences. For example, while many Chinese and Indian immigrants to the U.S. were admitted under employment preferences for educated professionals, most Vietnamese and other Southeast Asian immigrants arrived as refugees with few resources or contacts. Vietnamese students in Texas have experienced economic disadvantage, low educational attainment levels, and even racially motivated violence. UT’s policy of individualized review allows it to consider the unique experiences and potential of students who have grown up in such communities.

Both the District Court and Fifth Circuit upheld UT’s holistic admissions program as constitutional under the Supreme Court’s 2003 ruling in Grutter v. Bollinger (challenging the University of Michigan Law School’s admissions policy). Opponents of affirmative action, however, believe a majority may be inclined to overturn Grutter now that its author, Justice O’Connor, has been replaced by Justice Alito.

In addition to AALDEF, Foley’s brief was joined by 18 additional Asian American and Pacific Islander educational groups, and 52 higher education faculty members, as well as the Asian American faculty and student organizations at UT.

The Foley Hoag team consisted of Dean Richlin, Hemmie Chang, Robin Toone, and Diana Jong. Summer associate Melissa Stewart also contributed.