By Emil Guillermo, Special to CNN
(CNN) – Asian-Americans helped build the transcontinental railroad in the 1860s. They are being used again, this time to build the case to destroy something that has transported millions of people of color to a more equitable life in America: affirmative action.
Not bad for a good, but not great, student who failed to qualify for admission to the University of Texas in 2008 under the state’s Top Ten Percent Plan.
The plan calls for all students in the top 10% of their graduating classes, regardless of race, to be automatically admitted to state schools. After that, the school fills out its admitting class by considering remaining students on a number of factors – among them, race.
The policy was designed to keep with current law, which allows for affirmative action.
Fisher, who was in the top 12%, didn’t make the cut.
Fisher’s case is weak. To bolster her claim, she has enlisted the aid of Asian-Americans.
In the main brief of her case, Asian-Americans are mentioned 22 times. Her lawyers argue that the Texas system is race-based and favors blacks and Hispanics over whites and Asians.
One key standard of legality is whether there’s a quota. Texas does not use one, but Fisher claims there’s a de facto quota since the admissions numbers try to mirror the state’s population.
Surprisingly, a handful of Asian-American groups, most notably the group 80-20, filed briefs in support of Fisher in July. It claimed to have 50,000 names from an online petition drive that showed Asian-Americans were against affirmative action.
But any self-respecting Asian-American math whiz knows that self-selected website petitions don’t mean a thing. This month, the National Asian-American Survey (PDF) showed that nearly three-quarters of all Asian-Americans support affirmative action.
Little wonder, then, that dozens of Asian-American legal and community groups have filed their own briefs in vigorous opposition to Fisher.
Are Asian-Americans harmed by the policy? Well, no. In fact, UT’s individualized admissions process recognizes differences among the larger group of Asian-Americans and the unique experiences of Southeast Asians. This combats the idea that Asian-Americans are a monolithic “model minority.”
Are Asian-Americans subjected to a quota? Once again, no. The Asian-American population at UT exceeds the percentage of Asian-Americans in the state.
Do non-admitted Asian-Americans’ higher SAT test scores prove that they were discriminated against by UT? No.
If they are in the top 10% of the class based on grades, they got in. Race is not a factor, nor are SAT scores. After that, race and test scores, among other factors, can be taken into account, but the admissions stats show no shortfall of Asian-Americans admitted.
Indeed, Asian-Americans have been helped by the UT plan and would be harmed greatly if it were ended.
The Asian-American Legal Defense and Education Fund brief (PDF) was more tightly focused on UT’s policy and the absence of “negative action,” while the Asian-American Center for Advancing Justice’s brief (PDF) took a broader view of affirmative action and diversity and their respective benefits to society.
It also most clearly recognized the blatant attempt by Fisher to pit Asians against blacks and Latinos.
“(We) reject any attempt to use Asian-Americans as a wedge group to curtail opportunities of racial minorities, given that all such groups share a history of discrimination and a legacy of working together to overcome those barriers to equality,” the brief said.
Pitting minority groups against each other is really the most insidious aspect of Fisher’s legal strategy, one that has been employed in the past but seldom at the Supreme Court level. Such a tactic only exposes the weakness of the case.
Relying on Asian-Americans to carry her water, Fisher should fail on merit.
The opinions expressed in this commentary are solely those of Emil Guillermo.