Sunday, August 09, 2020

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 Abstract

Excerpted From: Frank H. Wu, Neither Black Nor White: Asian Americans and Affirmative Action, 15 Boston College Third World Law Journal 225 (Summer, 1995 (252 Footnotes) (Full Document)

FrankHWuThe time has come to consider groups that are neither black nor white in the jurisprudence on race. There are many fallacies in the affirmative action debate. One of them, increasingly prominent, is that Asian Americans somehow are the example that defeats affirmative action. To the contrary, the Asian-American experience should demonstrate the continuing importance of race and the necessity of remedial programs based on race.

Most recently, for example, House Speaker Newt Gingrich has carefully included Asian Americans in his attack against affirmative action. Gingrich has asserted that “Asian Americans are facing a very real danger of being discriminated against” because they are becoming too numerous at prestigious universities which have affirmative action. Similarly, the sponsors of the anti-affirmative action ballot proposal in California refer to Asian Americans as a “cultural group” that has become “overrepresented” in the University of California system, in contrast to “other groups.”

Again and again, claims are made that Asian Americans, like whites, suffer because of affirmative action for African Americans. By the rhetoric, it would almost seem as if Asian Americans, more than whites, have become the “innocent victims” of so-called “reverse discrimination.”

The deployment of Asian Americans as an exemplary group in race relations is nothing new. The model minority myth of Asian Americans has been used since the Sixties to denigrate other nonwhites. According to the model minority myth, Asian Americans have suffered discrimination and overcome its effects by being conservative, hard-working, and well-educated, rather than through any government benefits or racial preferences.

If they are hurt at all by affirmative action, Asian Americans are harmed no differently from whites. The real risk to Asian Americans is that they will be squeezed out to provide proportionate representation to whites, not due to the marginal impact of setting aside a few spaces for African Americans.

The linkage of Asian Americans and affirmative action, however, is an intentional maneuver by conservative politicians to provide a response to charges of racism. The advocates against affirmative action can claim that they are racially sensitive, because, after all, they are agitating on behalf of a non-white minority group. These opponents of affirmative action also claim that if racial “quotas” are to be used, they should be used to benefit whites as well.

The attention paid to Asian Americans is disingenuous. It pits Asian Americans against African Americans, as if one group could succeed only by the failure of the other. Asian Americans are encouraged to view African Americans, and programs for them, as threats to their own upward mobility. African Americans are led to see Asian Americans, many of whom are immigrants, as another group that has usurped what was meant for them. Indeed, Asian Americans frequently are imagined as the beneficiaries of special consideration, although they almost always are excluded from race-based college admissions and employment programs.

The very fact that Asian Americans are praised as a race belies the cause of color-blindness. The perception of even assimilated Asian Americans as perpetual foreigners reveals how important race remains. To be a citizen, an Asian American must be thought of as an honorary white, someone who is not considered a minority.

The economic success of Asian Americans, while it has been exaggerated, also suggests that there are pervasive and deeply-rooted causes creating the primarily black underclass. To address these problems requires the consideration of race.

The argument against affirmative action is significantly weakened when Asian Americans are honestly acknowledged. The objection must be more than that affirmative action refers to race, because society looks at race in so many contexts. The objection must be that affirmative action discriminates against whites. But if Asian Americans and whites compete against one another equally and fairly, affirmative action cannot be said to single out either group, much less be said to subjugate whites.

This Article argues that although there are many real issues that result from the dramatically changing demographics of the country, the dilemma of Asian Americans and affirmative action should be understood as an issue which has been manufactured for political gains.

This Article uses the affirmative action debate to examine the complex interplay of the model minority image and the law. Through the controversy over affirmative action, the model minority myth and its legal implications become apparent. The relationship of Asian Americans to affirmative action represents the relationship of Asian Americans to the law generally--this study extends beyond Asian Americans to other unrecognized racial and ethnic groups, but also beyond affirmative action to other areas governed by the law.

Part II presents an historical overview of the model minority image. The examples include Chinese immigrant experiences in the nineteenth century, Japanese-American experiences prior to and during World War II, and the modern myths of Asian-American experiences. In Part III, the model minority image is evaluated using aspects of contemporary critical race theory scholarship. The model minority image confounds bipolar essentialist approaches to equal protection jurisprudence, demonstrates the ambiguity of racial stereotyping, and emphasizes the importance of context in understanding the use of racial references within the law. In Part IV, the model minority image and its political purposes are analyzed. The model minority image is criticized as a means of attacking affirmative action for other racial minority groups. The historical and sociological materials presented set the stage for the normative analysis, and critical race theory provides the tools for that analysis. Finally, Part V offers general principles for legal reform that may be taken from the specific case study.

[. . .]

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.


Teaching Fellow, Stanford University Law School. J.D., University of Michigan; B.A., Johns Hopkins University.


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Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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