Chan Hee Chu


In recent years, Asian Americans have become key players in the affirmative action debate. The current legal scholarship, however, has painted an overly simplistic picture of the impact of affirmative action on Asian Americans. Frank Wu, William C. Kidder, and other scholars have asserted that negative rather than affirmative action is the cause of any discrimination in school admissions against Asian Americans. Negative action, defined as the “unfavorable treatment based on race, using the treatment of Whites as a basis for comparison,” denies Asian Americans admission to institutions of higher learning in favor of whites. Thus, while affirmative action treats race as a “plus factor” for beneficiaries, negative action treats race as a “minus factor” for Asian Americans. In contrast, this Article argues that affirmative and negative action cannot be severed so easily because of their shared premise. Schools have implemented both policies based on the “Proportionate Ideal”—the belief that true equality of opportunity entails equality of outcomes. The Proportional Ideal provides justification for the use of statistical parity evidence that all race-based affirmative action programs inherently require. Problematically, programs using parity evidence have the de facto goal of proportionality. Moreover, since the Proportionate Ideal rejects exceptionalism of any group, the “overrepresentation” of admitted Asian American students has been portrayed as the byproduct of advantages rather than any conception of merit worth rewarding. In this way, the Proportionate Ideal limits Asian American enrollment whether they are compared to underrepresented minorities or whites. Since affirmative action and negative action are closely linked, scholars need to take better care when critically examining the impact of race- conscious admission policies on Asian Americans. Scholars have been too quick to criticize Asian American opposition to affirmative action and have also overlooked the potential harms of such policies, including the devaluation of the Asian American identity. Regardless of whether Asian Americans choose to support or reject affirmative action, the decision must be made only after a full and honest analysis. This Article seeks to provide more balance to the current debate.



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