Saturday, September 23, 2017

Frank Wu

  Neither Black Nor White: Asian Americans And Affirmative Action, 15 B.C. Third World L.J. 225-284, 277-284 (1995).  

A hypothetical college observes that there is a rise in Asian-American applicants, and furthermore observes that they are increasingly competitive. The college can treat Asian-American applicants and white applicants equally. Assuming that the college has affirmative action for African Americans, the result will be an overall decrease in the proportion of white students accepted, a proportion that may even decrease at a faster rate than the proportion of whites in the general population. As in other areas of racial balance, there is a "tipping point" beyond which whites will not tolerate a diminishing of their presence and influence. The college, accordingly, institutes a form of affirmative action for whites. Asian-American applicants must perform to the highest standard, while white applicants are held to an intermediate standard, with affirmative action for African Americans remaining unchanged.
The college takes away from Asian Americans to give to whites, but if challenged, makes the claim that it is taking away from Asian Americans to give to African Americans (or to maintain diversity, meaning fewer Asian Americans and more African Americans). This may be done with quotas, or with more subtle means such as preferences shown to legacies (children of alumni). Preferences for legacies are a form of affirmative action for whites, on the whole. Typically, they are not seen as offensive to meritocracy. Assistant Attorney General Reynolds alluded to the phenomenon of affirmative action for whites parenthetically: "inevitably . . . there will be pressure to squeeze out Asian Americans in order to make room for other minorities (or for whites) . . ." Reynolds's speech, carefully crafted though it may have been, also was highly revealing. The insertion of "inevitab[ility]" is not inevitable. It is used to create the impression that it is natural, pre- ordained, not subject to further discussion, that Asian Americans must be disparately affected by affirmative action. Reynolds's reaction to this "inevitabl[e]" outcome is interesting: the objection is to only the former course of action, "mak[ing] room" for minorities, not the latter, "Lebensraum" for whites.

There are two responses to this reading of the facts. The response that the reading is descriptively wrong cannot be made consistent with the claim that affirmative action has a special effect on Asian Americans. The more aggressive and persuasive response is to agree that the reading is descriptively right but also normatively so, that affirmative action for whites is neither more nor less problematic than affirmative action for African Americans; it is only a matter of whose ox is gored. This more aggressive response to affirmative action for whites is heard with increasing frequency. In an early discussion of the program at issue in Bakke, one white ethnic author argued that whites should be included in affirmative action, because as he put it, "[w]e are certainly much worse off than Orientals." Later, the push was for more than inclusion of whites in affirmative action; it was for inclusion of whites to the exclusion of Asian Americans. Officials at the University of California campuses at Berkeley and Los Angeles indicated, respectively, "if we keep getting extremely well- prepared Asians, and we are, we may get to the point when whites will become an affirmative action group," and as the campus "will endeavor to curb the decline of Caucasian students . . . [a] rising concern will come from Asian students and Asians in general as the number and proportion of Asian students entering at the freshmen level declines--however small the decline may be."

This aggressive response deserves reasoned rebuttal. It may be tempting to dismiss the concept of affirmative action for whites as obviously racist, but it is not obviously racist, at least not to those whites who have proposed this course of action. The issue of affirmative action for whites, in the face of reputed Asian-American success, is not resolved by referring to any of the already extant theories of affirmative action. The answer cannot be the tautology that politically, affirmative action cannot benefit whites, because constitutionally, whites cannot be benefitted by affirmative action (even if that may be supported by doctrine as it rests at the moment). Such an answer alone is neither principled nor persuasive. It implicitly carries on with a bipolar and essentialist view of race.

There is only one theory of affirmative action that would support its use for whites, and that is a proportionate representation theory. A proportionate representation theory inherently must be applied consistently. If that were done, it would benefit African Americans much more than it would whites. There do not appear to be any advocates who would support the latter who also have supported the former. Regardless, avoiding white "underrepresentation" ensures white dominance.

Some of these problems with the affirmative action debate are attributable to a mistake by liberals. The proponents of affirmative action may be faulted for accepting a bipolar essentialism. As opponents of affirmative action have tried to define "majority" as meaning "white," so proponents of affirmative action have made a countermove and tried to define "minority" as meaning "black." For liberals to treat affirmative action as if it benefits all racial minorities may be political cowardice or political prudence, but such a tactic brings only a temporary respite. By doing so, they fail to address the tensions among racial minority groups--which should not be exaggerated or exacerbated by external forces, but which do exist--and they fail to advance and inform racial discourse. Missing an opportunity, liberals fail to recognize that the demand by some whites for affirmative action represents their dissatisfaction over fundamental inequalities in American society. . . .

The better rebuttals to affirmative action for whites are offered by a traditional justification of affirmative action coupled with a more daring approach to racial justice; the former is procedural, the latter is substantive.

The traditional justification is that offered by John Hart Ely, and accepted by the Supreme Court in limited form: it is acceptable for the majority to disadvantage itself to benefit a minority, but it is not acceptable for the majority to disadvantage a minority, nor to disadvantage a minority in the course of benefiting another minority. With the latter prohibition, Ely had in mind the plausible concern that American Jews would be systematically disadvantaged by affirmative action. That concern is realized with Asian Americans.

Under the Ely approach, it is constitutional for some groups to be treated better than the majority, but not for any groups to be treated worse than the majority. Whites and Asian Americans can mildly disadvantage themselves provided they are equally disadvantaged, for the important purposes of affirmative action. Whites cannot advantage themselves and disadvantage Asian Americans, no matter how important the purposes of affirmative action. In starkest form, it would be impermissible to simply deny Asian Americans admission to a college and reserve the resulting open slots for African Americans.

Although constitutional cases have assumed that "majority" and "white," and "minority" and "black" are synonymous terms, respectively, those assumptions should not be treated as an absolute or universal truth. They have never been accurate universally, and increasingly are inaccurate demographically. At the intersections of race and gender, where white males are a minority, and women a majority, it becomes obvious that minority group status, strictly speaking, has never been the prerequisite for heightened scrutiny under equal protection analysis. In addition to seeing that the "majority" shifts (or should shift), it must be seen that "majority" is not necessarily "white," and that "majority" does not necessarily mean a numerical majority. That brings full circle the Ely analysis: it is where a group is always, or almost always, in the minority, and is permanently disadvantaged by that status, that constitutional concerns arise.

The more daring approach to racial justice is to conceive of affirmative action as one part of a more powerful anti-subordination principle. An anti-subordination principle should be seen as a continuation of the civil rights movement, and of the original desegregation cases such as Brown v. Board of Education. An anti-subordination principle, carried out full force, should go far beyond legal analysis; it should compel legislative change and profound societal change.

In the limited and mundane realm of legal analysis, an anti-subordination principle would alter the results in specific cases. In evaluating discrimination claims, this principle would begin with a cultural meaning test, placing the burden on the defendant to demonstrate a legitimate purpose where there were disproportionate impacts. Obviously, the conditions faced by African Americans would be central concerns. To justify affirmative action, an anti-subordination principle would require a showing of past, present, or future discrimination. Proportionate representation or diversity rationales would be insufficient by themselves. The cultural meaning test could be blended with the type of statistical showing that appellate courts have required following Croson, leaving considerable flexibility consistent with federalism and local needs. The use of the cultural meaning test would permit whites to bring claims of racial discrimination, but prevent them from doing so where there was not at least the same factual basis already demanded of racial minorities.

In the specific area of Asian Americans and affirmative action, the Ely approach and the critical race theory approach de-couple the "model minority" and "reverse discrimination." The former approach requires that Asian Americans merely be considered, and the latter approach requires that Asian Americans be considered on their terms, rather than as honorary whites or constructive blacks. Depending on circumstances, Asian Americans might be included or excluded from programs that had a racial component. If they were excluded, however, they would be treated no worse than the majority (that is, generally, no worse than whites). At Lowell High School in San Francisco, they would be admitted with the same test scores as whites; there would be no distinction drawn between Asian Americans and whites for institutional decision-making purposes. As a result of these changes in legal analysis, Asian Americans could no longer be used as the example that defeats affirmative action in political discourse. Affirmative action would be rid of its most vexing constitutional consideration if Asian Americans were considered more explicitly. Affirmative action could have minimum quotas for beneficiaries without having maximum quotas for any specified group--because whites and Asian Americans would compete to determine the allocation of the majority of spaces. Taken together, the Ely approach and the critical race theory approach work well. The former looks to the decision-making by the dominant group, and the latter looks to the impact on the subordinated group. Each of the two approaches shows symmetry. The symmetry is between the legal analysis and the situation at issue, not between reified conceptions of racial groups. As in traditional equal protection analysis, the similarly situated are similarly treated. Improving on traditional equal protection analysis, the basis of similarity has shifted from white/black to shifting majority/permanently disadvantaged minority (not necessarily equated with white/black) or dominant/subjugated. It would be as ambitious as naive to suppose that these approaches could constitute new neutral principles, but perhaps they may be taken as evolving equitable principles.

Affirmative action, in the end, is only a means. Opposition to affirmative action is not necessarily support for racism, but it can be. The appropriate response to opponents of affirmative action is the query, real rather than rhetorical, of how they might propose to achieve racial justice by other means.    

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