By Jerry Kang
Excerpted from "Negative Action Against Asian Americans: The Internal Instability of Dworkin's Defense of Affirmative Action"
Harvard Civil Rights-Civil Liberties Law Review
Winter 1996

I propose . . . [a new] vision of equality, which guards against the imposition of stigma.  This alternate conception, which I call "banned meanings," provides that an individual has the right not to suffer disadvantage from a governmental practice that conveys an objective social meaning of stigma.

According to the 1990 census, Americans of Asian descent constitute approximately three percent of the national population; however, at certain educational institutions, Asian Americans represent from five to fourteen times that percentage of the student body. In light of these facts, consider the following hypothetical:

Suppose that a university's admissions formula, based entirely on standardized test scores and high school grade point average, generated a student body over fifty percent Asian American. Inspired by President Clinton's promise to make his cabinet look like America, the university adopts the "Look Like America" diversity admissions program. This initiative establishes as a minimum target that the percentage of African Americans, Latinos, Asian Americans, and Native Americans in the student body should be their percentage of the national population. Recognizing that admissions slots are finite, the "Look Like America" program also establishes that at a maximum, the student body percentage of any racial group can be no greater than three times its national population percentage.

The university adopts this program because a utilitarian calculus that credits no prejudiced preferences indicates that the new admissions system will have more social and pedagogical benefits than costs. Under these circumstances, the hypothetical "Look Like America" program institutes a regime of negative action against Asian Americans: before the program, the student body was fifty percent Asian American; after the program, the student body may contain no more than nine percent. Thus, certain Asian Americans will be denied admission, although given their academic qualifications, they would have been admitted had they been White. . . .

Toward Empathy

The objective methodology of the banned meanings conception requires the court to reach its answer by interpreting the social meaning of negative action from the perspectives of the litigating parties.

First, the court must put itself in the position of the university defendant. From its vantage point, the court would peruse the data and analysis presented to the university policymakers to see how and why they concluded that Condition I, net benefit, was satisfied. The court would also examine the text of the policy and its administrative and political history to get some rough gauge of the degree, if any, to which prejudice, in its egregious or subtle forms, may have affected the policymakers' decisions.

To make the comparison between Dworkin's banned sources conception and my banned meanings conception meaningful, however, let us continue to assume that both Conditions I (net benefit) and II (purity) hold true. Under these conditions, the university instituted negative action as part of the "Look Like America" program because of an unprejudiced utilitarian calculus. While the university may understand why others might view the program as stigmatic, it will conclude that this view is ultimately unjustified. Adopting the university's perspective, the court will reach the same conclusion.

The court must not stop here, however, as would current Equal Protection doctrine and Dworkin's banned sources conception in their singular search for discriminatory motive or prejudiced preferences. Under the banned meanings conception, the court must also do an interpretive turn from the Asian American plaintiff's perspective.

At its foundation, such an interpretation would be grounded in Asian American history, in particular, how governmental action has historically come to bear on Asian Americans. For nearly the entire history of the United States, our immigration and naturalization laws facially discriminated against Asians.  Also, up to just this century, the legislative, executive, and judicial branches of our state and federal governments handicapped Asian Americans in their rights to property, education, marriage, and political participation.  Indeed, our very constitutional icons of equality are tarnished by anti-Asian prejudice. Justice Harlan's dissent in Plessy v. Ferguson, revered for transcending the morality of its time to presage Brown v. Board of Education, betrayed our anti-Asian bias.  And Asian Americans cannot forget that the author and architect of Brown, Chief Justice Earl Warren, actively promoted the internment of Japanese Americans during World War II while he governed the State of California.

An interpretive turn from the plaintiff's perspective would also situate negative action in a more contemporary context of racial prejudice faced by Asian Americans. Specifically relevant are two stereotypes--that Asian Americans are "unfair competitors" and that they represent the "model minority."

From the plaintiff's perspective, negative action will be seen to manifest antipathy toward Asian Americans because they are resented for being "unfair competitors," who compete too well against "real," that is "White," Americans in academics. As I have noted elsewhere, "in educational settings, the performance of Asian Americans has come to challenge and threaten the status of white students."  The fact and perception of Asian American academic success have generated resentment on campuses, at times leading to anti-Asian graffiti, physical and verbal attacks, and intimidation.  Negative action, which forces Asian Americans out to let Whites in, will be seen as part of this overall negative reaction toward Asian Americans. Supporting this view will be the precedent of negative action programs instituted against Jewish students in the 1920s and 1930s in elite institutions such as Harvard College.  Just as universities attempted to cap the number of Jews lest they "take over" the campus, Asian Americans would suspect that universities are now "capping" the number of Asian American students.

Further, negative action will be seen to manifest selective indifference toward Asian Americans. Viewed as the "model minority," Asian Americans are believed to be better off economically and socially than they in fact are. However, in fact, the percentage of Asian Americans living in poverty is nearly one-and-a-half times greater than the percentage of impoverished Whites.

In the academic context, the "model minority" stereotype views Asian Americans as a monolithic bloc of self-starting, hard-working, homeworkloving "whiz kids" hard-wired to succeed in academia. Negative action, which requires Asian Americans to shoulder a greater burden than Whites, will be seen as a foreseeable consequence of society's tendency to believe that all Asian Americans either face no racial discrimination or are genetically and culturally equipped to overcome such adversity by prodigious industry and sheer will.

Negative action will be seen as being callously indifferent to the fact that, although on the average Asian Americans may perform better than other Americans on certain metrics of academic achievement, significant numbers of Asian Americans in fact perform below the national mean. It will be seen as being indifferent to the fact that many Asian Americans, especially recent immigrants from Southeast Asia, desperately need affirmative help, not negative burden.  Even for those Asian Americans who do perform extremely well, negative action will be seen as creating a double standard: an Asian American must be twice as good to get the same opportunities and recognition. In sum, from the plaintiff's perspective, the court would conclude that the social meaning of the "Look Like America" program is strongly stigmatic because it transmits a message of antipathy and selective indifference.

Finally, in making a claim about an Asian American plaintiff's perspective, I should not be misread as suggesting that there is an essentialist Asian American viewpoint.  Instead, what I have offered is a hypothetical case that a plaintiff could make and the result an empathic court would reach if such a case were made. It bears repeating that under the banned meanings conception, the court does not make interpretive turns from abstract perspectives completely unanchored from the case or controversy before it. Rather, the court ties its empathic viewpoint shifting to the parties before it, including the individual plaintiff (or class of plaintiffs) who is claiming that her individual right to equality has been violated.

Toward Equality

After situating itself in the perspectives of the university defendant and the Asian American plaintiff, the court must attempt a second-order interpretation reconciling these two divergent viewpoints.  In attempting this reconciliation, the court must examine the perspectives that generated the interpretations for blindspots, insensitivities, and oversensitivities. For example, the court would surely consider whether Asian Americans who hear a stigmatizing message are being too sensitive. Many would argue that negative action marks Asian Americans not with a badge of inferiority but with a badge of merit: negative action is necessary because individuals of Asian descent, on average, perform too well scholastically. Admission ceilings, therefore, do not stigmatize Asian Americans; rather, they lionize them.

This argument, while having surface appeal, fails to realize that calling people "superior" at a particular task is hardly assurance against stigma. Consider, for example, the pernicious stereotype that those of the Jewish faith are good with money. Similarly, stereotypes that Asian Americans are somehow "whiz kids" or the "model minority" are just shades away from the stereotype that, by their "superiority," they constitute unfair competitors who consume economic and educational opportunities that should go to "real" Americans.  A statement by the president of the Seattle Anti-Japanese League in 1920 illustrates how labels of superiority can be laden with contempt:

[The Japanese] are not inferior to us. In fact, they constantly demonstrate their ability to best the white man at his own game in farming, fishing, and business. They will work harder, deprive themselves of every comfort and luxury, make beasts of burden of their women, and stick together, making a combination that America cannot defeat.

The second-order interpretation would also involve examining precedents and moments in legal history that generated similar disputes over the meaning of governmental practices. In particular, a court could not avoid seeing a strange, if somewhat forced, parallel to the Japanese internment cases. In the relocation camps of World War II, Japanese Americans were forced to bear a greater burden than Americans of German or Italian descent to further the interest of national security.  In the universities of today, negative action asks Asian Americans to bear a greater burden than Americans of European descent to further the interest of decreasing racial prejudice. Although we are assuming the truth of Condition II (purity) in the pages of this Article, in the real world involving a live case or controversy, a court applying the banned meanings conception cannot be so confident. It would weigh heavy indeed on the court's mind that only a half- century ago, a majority of the Justices of the Supreme Court confidently pronounced that Condition II applied to the internment of Japanese Americans, that the internment was justified by " p ressing public necessity," not "racial antagonism."

At the end of the reconciliation process, the court would conclude that the objective social meaning of the "Look Like America" admissions program is strongly stigmatizing. The program does not treat Whites and Asian Americans indistinguishably, giving Asian Americans neither affirmative nor negative action, in what may be called a regime of neutral action. Rather, it excludes Asian Americans to make room for more Whites. By so doing, negative action sends an objective message of antipathy caused by resentment, jealousy, and fear, as well as a message of indifference caused by the misperception that Asian Americans constitute a monolithic bloc of overachievers who can afford to shoulder extraordinary burdens. At bottom, its social meaning is that although it is and has always been acceptable for universities to be populated predominantly by Americans who happen to be White, it is unacceptable for them to be populated predominantly by Americans who happen to be Asian American.

Thus, under the banned meanings conception, the "Look Like America" program would involve a suspect classification, and strict scrutiny would be appropriate. As such, the negative action component of the "Look Like America" program would be examined to make certain that the state interests were compelling and that the means chosen were narrowly tailored to those interests. Negative action would be struck down as unconstitutional because so far strict scrutiny has been "strict" in theory but "fatal" in fact.

Affirmative Action for Racial Minorities

The result differs when the banned meanings conception is applied to the indirect ceiling on White admissions caused by affirmative action for racial minorities. The court would first have to select the appropriate track for Equal Protection analysis by asking whether the objective social meaning of affirmative action stigmatizes Whites as the proper objects of antipathy or selective indifference.

From the university's perspective, affirmative action obviously does not stigmatize Whites. Affirmative action was not adopted to subjugate or ignore Whites; rather, it was adopted to produce net-benefit by creating a more heterogeneous academic environment and ultimately a less prejudiced society. Stepping empathically into the shoes of the White plaintiff, however, the court may well view affirmative action as "reverse discrimination" that broadcasts a message of antipathy and selective indifference toward Whites.

In reconciling these divergent perspectives, a court would conclude that the objective social meaning of affirmative action is not strongly stigmatic for several reasons. From a historical perspective, Whites do not share a legacy of racial oppression with racial minorities. And today, Whites continue to exhibit dominance in the educational, corporate, and political realms.  Against this backdrop, affirmative action programs do not manifest the objective message that Whites are political or social outsiders.

Furthermore, under the banned meanings approach, it will often be perfectly constitutional to give Asian Americans neither affirmative nor negative action. Under this regime of neutral action, Asian American and White individuals would face the same indirect burden caused by affirmative action programs targeted for non-Asian minorities. To be sure, Whites and Asian Americans may resent the burden that they bear, but again, resentment is not stigma. If even a racial minority can be constitutionally asked to shoulder the same burden as Whites, it is hard to argue that affirmative action conveys the objective social meaning that Whites--because they are White--deserve society's antipathy or indifference.

Finally, it is also possible that a racial minority who is included in an affirmative action program might challenge it on Equal Protection grounds, arguing that affirmative action programs stigmatize racial minorities as inherently incapable of succeeding without preferential treatment.  This argument would fail under the banned meanings conception because this conception requires that the challenged governmental practice somehow harm, injure, or disadvantage the plaintiff independent of any stigma associated with that practice. There is no such disadvantage here: the racial minority's access to higher education is in no way hindered. To the contrary, it is improved. In addition, the objective social meaning of affirmative action programs in general is not strongly stigmatic. Its social meaning is not that racial minorities are properly the objects of antipathy or selective indifference. Instead, affirmative action policies show solicitude and sensitivity to the welfare of racial minorities whose life prospects have been capriciously diminished by racial prejudice.

Since the objective social meaning of affirmative action is not strongly stigmatic, strict scrutiny is unwarranted, and under either intermediate or rational basis scrutiny, a reasonably constructed affirmative action program would pass constitutional muster. . . .