The amicus briefs for those challenging affirmative-action policies at the University of Texas were due to the Supreme Court earlier this week, and among the most talked about are those filed by Asian-American groups. Traditionally, most Asian-American organizations have supported affirmative action, but as Peter Schmidt notes in the Chronicle, the decision of three major Indian-American organizations to oppose affirmative-action policies this week “reflects a marked departure from the position most other Asian-American groups have taken on the issue.” The Indian-American groups joined the Asian American Legal Foundation, which has long opposed affirmative action, in filing amicus briefs calling for an end to racial preferences.

The increasing split within the Asian-American community is awkward for supporters of affirmative action because the case of Asian Americans highlights two significant vulnerabilities of racial-preferences programs.

First, the treatment of Asian Americans under diversity policies underlines the tension between the historic “remedial” notion of affirmative action (that we should seek to compensate victims of discrimination) and the reality that affirmative-action policies today sometimes penalize members of groups who were historically victims of discrimination.

While Asian Americans were not the subject of slavery in America, Japanese Americans were interned during World War II, and Chinese Americans have been subjected to segregation. The Asian American Legal Foundation brief notes that “Asian-American schoolchildren were some of the first victims of the separate-but-equal doctrine endorsed in Plessy v. Ferguson.”

Yet race-conscious policies appear to significantly damage the prospect of Asian-American applicants today. When affirmative action was banned in California in 1996, the brief from Indian-American groups notes, Asian freshman enrollment at UC Berkeley soared from 37.3 percent in 1995 to 46.6 percent in 2005. According to a study by Thomas Espenshade and Chang Chung of Princeton University, eliminating racial preferences of all types would increase Asian-American admission at several elite universities studied from 23.7 percent to 31.5 percent.

Likewise, Columbia University’s Andrew Delbanco points out in his new book, College: What It Was, Is, and Should Be, that at Berkeley, where grades and test scores count overwhelmingly, Asian-American students now make up almost 50 percent of the student body, while at Princeton, where “personal qualities” figure into the mix, Asians constitute less than 20 percent of the class. Even accounting for the fact that California is more heavily Asian (13 percent) than the rest of the country (around 5 percent), the discrepancy between the two institutions is “striking,” Delbanco writes.

Second, the emphasis of affirmative action on group representation, and “under-representation” in the case of African Americans and Latinos, raises issues of what to do about “overrepresentation” of groups like Asian Americans. It is true, as supporters of affirmative action argue, that one can draw a principled distinction between “floors” (ensuring groups have minimal representation) and “ceilings” (capping the representation of certain groups.) But, in practice, it appears that universities have come to apply both floors and ceilings, which helps explain why Asian Americans have to score 140 SAT points higher than whites to be admitted at selective institutions, according a recent book by Espenshade and Alexandria Walton Radford. In both sets of amicus briefs, Asian-American groups draw a parallel between Jewish quotas from the early part of the twentieth century, and caps on Asian admission today in an environment where race is routinely accepted as a valid factor to be considered. Both briefs quote journalist Daniel Golden’s contention that “Asian Americans are the new Jews, inheriting the mantle of the most disenfranchised group in college admissions.”

As long as Asian American groups presented a mostly solid phalanx of support for affirmative action, these issues could be downplayed. But with the emergence of a split, the thorny issues posed by Asian Americans may be hard for the U.S. Supreme Court to ignore.