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Asian Advocacy Group May Not Intervene in 'Fisher' Case, 1st Cir. Rules

By Jonathan R. Tung, Esq. on December 14, 2015 | Last updated on March 21, 2019

The affirmative action hot-potato case of Fisher v. University of Texas is back in SCOTUS and already causing people to froth at the mouth. Justice Antonin Scalia kicked off public gasps with a question that suggested that black and Hispanic students might perform better at less competitive schools. His comments would result in massive response from minority students who wished to intervene in a challenge to Harvard's race-based admissions practices. Well, the First Circuit has ruled that this appearance may not move forward.

Now that this most critical of affirmative action cases is back in the nation's highest court, can the public expect any consistency as to the constitutional place race should or ought to play in college admissions?

Civil Rights Group Sues Harvard

Back in May, more than 60 Asian American organizations filed a federal complaint against Harvard University in which allegations were lodged at the university that its admissions were unconstitutionally discriminatory in a way that unfairly excluded Asians. In general, there was a call by collective for elite institutions to stop considering race as a factor during the admissions, process -- a call that has been the hallmark of anti-affirmative action critic, Ward Connerly, spearhead of California's Prop 209.

"Diversity" vs. "Diversity"

The general accusation by groups like SFFA is that elite universities achieve racial diversity by giving preferential treatment to applicants who are black and Hispanic, thereby negatively and disproportionately affecting Asians. Some students have claimed that they will decline to reveal their ethnic background for fear that doing so honestly would hurt their chances of admission. There is even an incentive to lie.

But on Wednesday, as Fisher played out in SCOTUS, the lower Court of Appeals for the First Circuit decided that SFFS students could not appear on behalf of anti-immigration because Harvard and its counsel already made it clear that they would defend the university's race-conscious admissions zealously.

This raises the question of what the word "diversity" means. Does it mean a student body whose ethnic composition generally reflects the town in which the school is situated? Or does it mean something else? Indeed, some ask if it even should mean something else.

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