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 Abstract

Excerpted From: Nicole Gon Ochi and OiYan Poon, Asian Americans and Affirmative Action--UNC Amicus Brief In the United States District Court , 24 Asian Pacific American Law Journal 29 (2020) (86 Footnotes) (Full Document)

GonandPoon

Asian Americans have become central to the legal and public debate around race-conscious admissions. In moving for summary judgment, Students for Fair Admissions, Inc. (SFFA) notes that the University of North Carolina at Chapel Hill (UNC) ôholds Asian Americans to a higher academic standardö than underrepresented minorities, which includes African American, Latino, and Native American applicants.

Amici reject this contention.

First, there is no evidence that UNC holds Asian Americans to a higher academic standard than underrepresented minorities or that Asian Americans are disadvantaged by UNC's race-conscious holistic admissions policy. Second, eliminating the consideration of race will not address the needs of underrepresented Asian American subgroups, and no reasonable race-neutral alternatives exist.

Amici support the promise of integrated and equal public education set forth in Brown v. Board of Education and believe that eliminating the consideration of race would be devastating to all communities of color, including AAPIs.

 


*32 I. UNC's Nuanced View of Test Scores Does Not Hold Asian Americans to a Higher Academic Standard Than Underrepresented Minorities

 

SFFA asserts that UNC holds Asian Americans to a higher academic standard than underrepresented minorities because UNC considers context when evaluating standardized test scores. Because Asian Americans have higher average test scores than underrepresented minorities, SFFA assumes that this practice disadvantages Asian Americans.

But SFFA's argument is only as solid as the test scores upon which it is based. In fact, test scores are neither good indicators of academic ability nor race-neutral. The predictive limitations and inherent racial biases of standardized tests are well-documented by social scientists and have been acknowledged by the courts. UNC's use of test scores as part of a holistic review does not hold Asian Americans to a higher academic standard; it merely levels the playing field for underrepresented minorities who would otherwise be unfairly disadvantaged.

A. Standardized Test Scores Fail to Predict Academic Potential or Future Success

Numerous studies show that test scores fail to predict success beyond first-year college grades. For example, the leading study on U.S. graduation rates found that test scores have no statistically significant effect on college graduation rates--a far better measure of academic success than first-year grades. Another study of law school graduates determined that a combination of LSAT scores and undergraduate GPA failed to predict career success, as measured by income, satisfaction, and service contributions.

Additionally, some studies have found that SAT test scores' predictive value is limited even for first-year college grades. For example, analyses of the University of California system show that SAT scores explain less than two percent of the variance in first-year grades and are largely redundant of other information provided through the holistic application process. In short, overreliance on SAT scores to compare and rank similar students incorrectly predicts who will ultimately perform well in college and beyond, particularly for students of color.

B. Racial Biases Cause Disparities in Test Scores for Underrepresented Minorities Independent of Socioeconomic Disadvantage

On average, African American, Latino, Native American, and certain AAPI ethnic groups have lower standardized test scores than white students. Unfortunately, these test score gaps are continuing to grow as our school system resegregates. The racial disparities in standardized tests are often attributed to socioeconomic factors because students of color are disproportionately low-income and cannot afford expensive test-preparation courses that inflate scores for wealthier students. These students are also more likely to be taught by less-skilled or less-experienced teachers, attend schools in distressed neighborhoods or suburban areas where they are socially isolated, and be unfairly assigned to lower academic tracks throughout their elementary and high school years, all of which are factors that contribute to poor test-readiness and lower performance on standardized tests. However, socioeconomic disadvantage does not adequately explain the racial disparities in standardized testing on its own. Instead, ôrace has a large, independent, and growing statistical effect on students' SAT/ACT scores after controlling for other factors. Race matters as much as, if not more than, family income and parents' education in accounting for test-score difference.ö For example, one factor contributing to the role that race plays in creating the testing gap is ôstereotype threat,ö which artificially lowers test scores for students of color who internalize messages that they are intellectually inferior.

The significant effect of race on SAT/ACT scores reflect the inherent racial bias in the development of standardized tests. According to test expert Jay Rosner: Each individual SAT question ... is required to parallel the outcomes of the test overall. So, if high-scoring test-takers--who are more likely to be white (and male, and wealthy)--tend to answer the question correctly in pretesting, it's a worthy SAT question; if not, it's thrown out. Race and ethnicity are not considered explicitly, but racially disparate scores drive question selection, which in turn reproduces racially disparate test results in an internally reinforcing cycle.

*35 Because the very process of test construction favors test questions that white test-takers answer correctly more often than black test-takers, it is dangerous to take standardized test scores at face value without recognizing the racial context of those scores.

At bottom, ô[a] combined score of 1000 on the SATs is not always a 1000. When you look at a Striver [a student disadvantaged in the testing process by socioeconomic status, race, or other factors] who gets a 1000, you're looking at someone who really performs at a 1200.ö

C. UNC Considers the Context of Achievement on Standardized Tests to Provide a Fair Appraisal of Academic Potential

According to the National Standards for Educational and Psychological Testing developed by the American Educational Research Association, Psychological Association, and National Council on Measurement in Education, disparities between groups in test scores should ôtrigger heightened scrutiny for possible sources of test bias.ö These standards encourage universities to mitigate the adverse impact of biased tests, which often involves taking race, ethnicity, and socioeconomic status into consideration when evaluating a student's test scores is precisely what UNC does.

UNC explicitly recognizes the limitations of standardized test scores. As a result, admissions officers consider test score gaps for underrepresented minorities, first-generation applicants, and students from lower socioeconomic backgrounds when reading applications. This accords with industry best practices.

By putting test scores in their proper place, UNC is able to consider a wider, more diverse range of candidates who have other characteristics that are better predictors of college and career success than test scores. Indeed, a growing body of empirical research shows that character skills rival cognition in predicting educational attainment. For example, a 2007 study found that a lower SAT score is associated with a greater degree of ôgrit,ö which in turn, is associated with a higher GPA at an elite institution. Another study concluded that conscientiousness and a willingness to work hard matter more than SAT scores and high school GPA in predicting college GPA. Thus, UNC's holistic race-conscious admissions process allows for the recognition of individual applicants' whole-human dignity and unique qualifications in a way that lifeless numbers could never do.

D. UNC's Consideration of Context to Evaluate Standardized Test Scores Does Not Harm Asian Americans

UNC's consideration of context to evaluate standardized test scores does not disadvantage anyone, including Asian Americans, because it merely cures ôestablished inaccuracies in predicting academic performance.ö A higher test score is a poor predictor of a person's ultimate capacity to be successful at UNC and does not--and should not--entitle anyone to admission at UNC or any other selective university. In fact, UNC explicitly rejects the notion that its goal is ôto maximize the average SAT score or the average eventual GPA of the entering class.ö Instead, UNC employs a holistic admissions process that ôconsider[s] each person as a unique and complex human beingö and seeks to enroll ôaccomplished and capable students who are diverse in all ways.ö

Under UNC's holistic admissions process, SAT scores by themselves explain less than twelve percent of admissions decisions. Therefore, the fact that Asian American admits to UNC have SAT scores that are higher than African American admits is immaterial. Even if UNC did not consider race when evaluating SAT scores, the test score gap would remain, as it did at UC Berkeley and UCLA after Proposition 209 banned the consideration of race in the admissions process. SFFA's own expert conceded that Asian Americans have the highest admission rate of any racial group for in-state residents, which is inconsistent with any suggestion that UNC's race-conscious admissions process disfavors Asian Americans 

 


II. Eliminating the Consideration of Race Will Not Address the Needs of Underrepresented Asian Americans and Pacific Islanders

 

SFFA contends that UNC's admission system treats Asian Americans as a monolithic block of similar applicants. In fact, it is SFFA's position that would elide the important distinctions among AAPIs. As Amici well know, AAPIs are a uniquely heterogeneous racial group. Contrary to the popular and insidious misconception that AAPIs are universally successful in the education context, many Southeast Asian, Native Hawaiian, and Pacific Islander subgroups suffer from school segregation, inadequate preparation for college, standardized test score gaps, and other barriers to higher education. When AAPIs are viewed as a homogeneous group, the needs of the most underserved AAPIs are obscured.

SFFA misses this important detail. Its proposed remedy of eliminating race from the admissions process would only further disadvantage the most marginalized AAPIs in UNC's admissions process. The most underserved AAPIs need race-conscious admissions policies and disaggregated data to achieve educational equity for all AAPIs in North Carolina and across the United States.

A. Aggregated Data Obscures the Needs of Underrepresented Asian Americans and Pacific Islanders in North Carolina

Asians and Asian Americans do not qualify as underrepresented minorities because they represent eighteen percent of the undergraduate student body at UNC, even though Asians only represent 3.1 percent of the population in North Carolina. However, this aggregated data very likely obscures underrepresentation of particular AAPI subgroups.

AAPI communities in North Carolina are extremely diverse. The largest AAPI ethnic group is the Asian Indian community, followed by the Chinese, Vietnamese, and Filipino communities. North Carolina is also home to significant ethnic minority communities from Southeast Asia, such as the Montagnard community from Vietnam and the Hmong community, many of whom settled in North Carolina as refugees. As of the last census, more than 6,600 Native Hawaiians and Pacific Islanders lived in North Carolina. The most commonly spoken Asian languages in North Carolina are Chinese (including Mandarin, Cantonese, and other varieties of Chinese language), Vietnamese, and Arabic. Thirty percent of Asian Americans in North Carolina report speaking English less than ôvery well,ö with some subgroups reporting much lower levels of English proficiency, such as the Vietnamese community, fifty percent of whom report speaking English less than ôvery well.ö AAPIs in the state also practice a range of religions including Buddhism, Hinduism, Islam, Sikhism, and Christianity.

These diverse AAPI communities in North Carolina experience varying economic and educational barriers. For example, according to the 2011-2015 American Community Survey, Hmong, Korean, Pakistani, and Cambodian Americans had a higher rate of poverty than an average of 13.5 percent for Asian Americans overall, with Pakistani Americans experiencing a 27 percent rate of poverty. Additionally, only between 58 and 75 percent of Cambodian, Laotian, Vietnamese, and Hmong Americans in North Carolina have a high school diploma, compared to over 85 percent of North Carolinians overall who have a high school diploma. Only about 7.8 percent of Cambodian Americans, 14.3 percent of Hmong Americans, 9.2 percent of Laotian Americans, and eighteen percent of Vietnamese Americans have a bachelor's degree or higher in North Carolina, compared to 28.4 percent for the state overall.

Although disaggregated admissions data for North Carolina is not available, studies from other regions have found substantial disparities in representation in admissions as well. For example, a 2015 study of California's AAPI population revealed underrepresentation of Filipinos, Native Hawaiians, Samoans, Guamanians, and Fijians in the University of California system compared to their percentage of California's AAPI population. A 2013 study of UCLA admission rates found that some AAPI subgroups, such as Hmong, Bangladeshi, Filipino, Thai, Cambodian, Indonesian, and Pakistani, have significantly lower admit rates than the average for all AAPIs. The same study similarly showed significant disparities in the representation of AAPI subgroups at UC Berkeley relative to their proportional representation in the state. For example, Southeast Asians (Laotians, Cambodians, Hmong, and Vietnamese), Filipinos, Pacific Islanders (Samoans, Guamanians, Tongans, and Native Hawaiians) are all underrepresented in UC Berkeley's applicant pool.

B. Eliminating the Consideration of Race Will Disadvantage the Most Marginalized Asian American and Pacific Islander Applicants

SFFA tries to paint Asian Americans as victims of UNC's race-conscious admissions policy, but its requested remedy of eliminating race completely from the admissions process--to make it impossible to discern the race or ethnicity of any applicant be extraordinarily detrimental for AAPIs, particularly the most marginalized AAPIs in North Carolina. Eliminating the consideration of race would not make UNC's admissions process race-neutral; it would only serve to reinforce racial segregation and widen the existing racial disparities in educational opportunity for students of color, including many AAPIs.

Nor would a strictly class-conscious admissions system be an adequate alternative, because class is not a sufficient proxy for race to understand ôeach person as a unique and complex human beingö or to achieve comparable levels of racial diversity. SFFA's proposal--ôa multi-faceted socioeconomic preferenceö reduce Asian American representation at UNC, increase racial disparities, and result in a more racially hostile campus for all students of color, including AAPIs. Against the backdrop of biased test scores and unequal distribution of prior educational opportunities, this alternative is neither race-neutral nor workable.

First, UNC cannot possibly accomplish its goal ôto understand [each] candidate individually, comprehensively, and holistically,ö without the consideration of race. Race is a unique and inextricable aspect of a person's identity for which there is no substitute. As one student testified in SFFA v. Harvard: Race-blind admissions is active erasure. To try to not see my race is to try to not see me simply because there is no part of my experience, no part of my journey, no part of my life that has been untouched by my race. And because of that, it would be nearly impossible for me to try to explain my academic journey to try to explain my triumphs without implicating my race.

The same is true for Asian American students, like Sally Chen, a Chinese-American Harvard student who testified, ôBeing Chinese-American, being the daughter of Chinese immigrants ... [and] how I navigated being a translator and advocate. That was so fundamental to my background and my story, my identity, that I don't think I could have left it out.ö Thang Diep, a Harvard senior who immigrated to the United States from Vietnam when he was eight years old wrote his college essay about rejecting his Vietnamese identity after being bullied as a child and then learning to embrace his ethnic identity as he began to understand institutionalized racism in high school. He testified: ô[T]o portray my growth authentically and really show ... the admission officer [who] I really am ... [was] crucial for me to ... share this journey of not just learning English, but this journey of rejecting and erasing my own identity [that is] ... such a huge part of who I was when applying and still who I am now.ö

Second, the educational benefits of diversity cannot be achieved when socioeconomic diversity is substituted for racial diversity. Models that rely exclusively on class-based affirmative action perform poorly in terms of ensuring racial diversity, such that ôeven relatively aggressive [socioeconomic status]-based affirmative action policies do not mimic the effects of race-based policies on racial diversity.ö This is evident in SFFA's preferred model, which reduces Asian American representation in favor of greater white representation in SFFA's simulation. This is not an adequate alternative because it fails to ôpromote [the university's] interest in the educational benefits of diversityö as effectively as UNC's current race-conscious admissions policy. In fact, a 2015 study of multiple colleges revealed that an admissions scheme that gives significant weight to both race and class--as UNC's policy does--results in more class diversity than one that relies on class alone. The authors write that, ôIn tandem, race and [socioeconomic status]-based policies seem to improve both race and [socioeconomic] diversity beyond what is achieved using either plan in isolation.ö Although these results are perhaps initially surprising, they underscore the fact that students cannot be reduced to simply race or class. Considering both in relation to one another most closely resembles the actual lived experience of students and better informs their likely enrollment decisions.

Third, some race-neutral alternatives--like those proposed by SFFA--rely on standardized tests, such as the SAT and ACT, which are known to be racially biased. As discussed in detail above, while standardized admissions tests may appear race-neutral on their face, they are not. For reasons related to sampling, testing, and design, standardized tests ôguarantee[] the lower performance of African Americans and Chicanos on the SAT.ö Therefore, racial disparities in admissions at UNC would increase if UNC did not consider race. Although AAPIs tend to have high test scores in the aggregate, there are tremendous disparities in SAT scores among AAPI subgroups. For example, a 2013 study of SAT scores in Asian ethnic enclaves showed that test-takers in Chinese ethnic enclaves scored an average of 1656, whereas Hmong and Filipino enclaves averaged 1174 and 1208, respectively. In Alhambra, California, a city that is predominantly Chinese, about seventy percent of test takers scored more than 1500 on their SAT; in contrast, in a predominantly Hmong ethnic enclave in Sacramento and a predominantly Filipino ethnic enclave in Daly City, only 7.6 percent and 12.8 percent of test-takers respectively achieved the same results. Under SFFA's race-blind models, the most marginalized AAPIs will experience even more structural barriers to admission while also losing the tools to demonstrate their unique contributions to diversity.

Fourth, numerous studies have documented the negative impact on campus climate when a race-conscious admissions policy is eliminated. AAPIs are not immune from these impacts. A recent empirical study reported that AAPI students experienced direct racial hostility in the forms of racial bullying, racial slurs, and racial profiling, as well as indirect intimidation as a result of witnessing racist acts directed towards other students of color. Studies show that colleges and universities that reach the highest levels of diversity have fewer incidents of racial hostility. AAPI students also reported experiencing pressure to segregate from or assimilate to the dominant White culture, feeling silenced in academic exchanges and campus spaces, and suffering from stereotyping as a perpetual foreigner or model minority. These experiences are exacerbated when universities do not consider and value race.

In sum, SFFA's effort to dismantle UNC's race-conscious admissions program would destroy racial diversity and exacerbate the disadvantages that the most underserved AAPIs already face in the admissions process. A more nuanced approach to AAPI prospective students, which uses disaggregated data in tandem with UNC's existing race-conscious admissions policy is the best path to serving the diverse AAPIs in North Carolina.


Conclusion

Amici reject SFFA's efforts to dismantle UNC's race-conscious admissions program, which has increased educational opportunities for diverse North Carolinians, including Asian Americans. UNC appropriately considers context-- including the racial biases inherent in standardized test scores--when evaluating applicants. This does not give an unfair preference to underrepresented minorities. Rather, UNC's race-conscious admissions process is only a small effort to level a playing field that is still stacked against underrepresented minorities. Moreover, neither race nor test scores predominate in UNC's holistic admissions process. Amici also reject SFFA's class-based alternatives to the consideration of race, which will undermine UNC's holistic admissions process, reduce racial diversity, and harm campus climate for everyone, including AAPIs. Amici recognize that these alternatives will harm, rather than benefit the most underrepresented AAPI subgroups in North Carolina and refuse to be used as a weapon to limit opportunities for their African American, Latino, and Native American brothers and sisters.

*44 This the 5th day of March, 2019.



This brief is submitted by several member organizations of Asian Americans Advancing Justice (Advancing Justice), including the following nonprofit, nonpartisan organizations: Advancing Justice--Los Angeles, Advancing Justice--Asian Law Caucus, Advancing Justice--AAJC, Advancing Justice--Atlanta, and Advancing Justice--Chicago. Through litigation, direct legal services, policy advocacy, community outreach and education, and organizing, Advancing Justice's mission is to promote a fair and equitable society for all by working for civil and human rights and empowering Asian Americans and Pacific Islanders (AAPIs) and other underserved communities.

<p">Advancing Justice is joined in this brief by seventy-two civil rights groups, advocacy organizations, bar associations, business associations, academic institutions, student organizations, and other associations and organizations and twenty-one professors, including several based in North Carolina. See Exhibit A. Amici have longstanding histories of serving the interests of Asian Americans, Native Hawaiians, and Pacific Islanders. The undersigned Amici have a substantial interest in this case because they support race-conscious programs designed to improve equal access for all. Amici recognize that AAPIs and other communities of color have fought together against racial discrimination and segregation and for greater equity and justice in this country. Amici recognize that AAPIs have obtained greater rights and opportunities in employment, contracting, and education because of historic civil-rights struggles led by other communities of color. Accordingly, Amici respectfully file this brief in opposition to Plaintiff's Motion for Judgment (Dkt. 158).

 

 

 

Nicole Gon Ochi is a senior attorney on the Education Equity team at Public Advocates.

OiYan Poon, Ph.D., is an associate professor of Higher Education at Colorado State University.


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