Negative action against Asian Americans: The internal instability of Dworkin's defense of affirmative action

Harvard Civil Rights-Civil Liberties Law Review

Volumn 31, Issue 1, 1996, Pages

  Kang, Jerry ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 9444220204     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (264)

1. MICHAEL ROSENFELD, AFFIRMATIVE ACTION AND JUSTICE: A PHILOSOPHICAL AND CONSTITUTIONAL INQUIRY 170 (1991).
2. Larry Liebert, Demos Mull New Scenario, Bush Focuses on the Prize, S.F. CHRON., June 20, 1991, at A21.
3. In last term's Adarand Constructors Co. v. Pena, 115 S. Ct. 2097 (1995), the Supreme Court adopted strict scrutiny for all governmental racial classifications, remedial and otherwise. See id. at 2113. Affirmative action is also being attacked on the legislative front. Currently, several bills before Congress seek to eliminate race and gender preferences in the areas of public and private employment, education, and contracting. For example, Senator Jesse Helms (R-N.C.) has sponsored the "Civil Rights Restoration Act of 1995," which would amend the Civil Rights Act of 1964 to make preferential employment or union membership decisions on the basis of race, color, religion, sex, or national origin an unlawful employment practice. S. 26, 104th Cong., 1st Sess. (1995); S. 318, 104th Cong., 1st Sess. (1995); see also Act to End Unfair Preferential Treatment, H.R. 1764, 104th Cong., 1st Sess. (1995); Act to End Unfair Preferential Treatment, S. 497, 104th Cong., 1st Sess. (1995); American Action Act of 1995, H.R. 1840, 104th Cong., 1st Sess. (1995). See generally Joe Klein. The End of Affirmative Action, NEWSWEEK, Feb. 13, 1995, at 36. If California politics is a bellwether for national politics, then concerns about the death of affirmative action are not paranoid. On July 20, 1995, the Regents of the University of California abolished the use of race-based preferences in student admissions, hiring, and contracting. See UC Regents, In Historic Vote, Wipe Out Affirmative Action, L.A. TIMES, July 21, 1995, at Al. In addition, the "California Civil Rights Initiative," which would ban race and gender based preferences in government hiring, contracts, and public education, may qualify for the November 1996 ballot. See Affirmative Action Debate Halts Meeting of U.C. Regents. L.A. TIMES, May 19, 1995, at Al.
4. In last term's Adarand Constructors Co. v. Pena, 115 S. Ct. 2097 (1995), the Supreme Court adopted strict scrutiny for all governmental racial classifications, remedial and otherwise. See id. at 2113. Affirmative action is also being attacked on the legislative front. Currently, several bills before Congress seek to eliminate race and gender preferences in the areas of public and private employment, education, and contracting. For example, Senator Jesse Helms (R-N.C.) has sponsored the "Civil Rights Restoration Act of 1995," which would amend the Civil Rights Act of 1964 to make preferential employment or union membership decisions on the basis of race, color, religion, sex, or national origin an unlawful employment practice. S. 26, 104th Cong., 1st Sess. (1995); S. 318, 104th Cong., 1st Sess. (1995); see also Act to End Unfair Preferential Treatment, H.R. 1764, 104th Cong., 1st Sess. (1995); Act to End Unfair Preferential Treatment, S. 497, 104th Cong., 1st Sess. (1995); American Action Act of 1995, H.R. 1840, 104th Cong., 1st Sess. (1995). See generally Joe Klein. The End of Affirmative Action, NEWSWEEK, Feb. 13, 1995, at 36. If California politics is a bellwether for national politics, then concerns about the death of affirmative action are not paranoid. On July 20, 1995, the Regents of the University of California abolished the use of race-based preferences in student admissions, hiring, and contracting. See UC Regents, In Historic Vote, Wipe Out Affirmative Action, L.A. TIMES, July 21, 1995, at Al. In addition, the "California Civil Rights Initiative," which would ban race and gender based preferences in government hiring, contracts, and public education, may qualify for the November 1996 ballot. See Affirmative Action Debate Halts Meeting of U.C. Regents. L.A. TIMES, May 19, 1995, at Al.
5. In last term's Adarand Constructors Co. v. Pena, 115 S. Ct. 2097 (1995), the Supreme Court adopted strict scrutiny for all governmental racial classifications, remedial and otherwise. See id. at 2113. Affirmative action is also being attacked on the legislative front. Currently, several bills before Congress seek to eliminate race and gender preferences in the areas of public and private employment, education, and contracting. For example, Senator Jesse Helms (R-N.C.) has sponsored the "Civil Rights Restoration Act of 1995," which would amend the Civil Rights Act of 1964 to make preferential employment or union membership decisions on the basis of race, color, religion, sex, or national origin an unlawful employment practice. S. 26, 104th Cong., 1st Sess. (1995); S. 318, 104th Cong., 1st Sess. (1995); see also Act to End Unfair Preferential Treatment, H.R. 1764, 104th Cong., 1st Sess. (1995); Act to End Unfair Preferential Treatment, S. 497, 104th Cong., 1st Sess. (1995); American Action Act of 1995, H.R. 1840, 104th Cong., 1st Sess. (1995). See generally Joe Klein. The End of Affirmative Action, NEWSWEEK, Feb. 13, 1995, at 36. If California politics is a bellwether for national politics, then concerns about the death of affirmative action are not paranoid. On July 20, 1995, the Regents of the University of California abolished the use of race-based preferences in student admissions, hiring, and contracting. See UC Regents, In Historic Vote, Wipe Out Affirmative Action, L.A. TIMES, July 21, 1995, at Al. In addition, the "California Civil Rights Initiative," which would ban race and gender based preferences in government hiring, contracts, and public education, may qualify for the November 1996 ballot. See Affirmative Action Debate Halts Meeting of U.C. Regents. L.A. TIMES, May 19, 1995, at Al.
6. In this Article, the phrase "affirmative action" means preferential treatment of individuals on the basis of their membership in a minority racial group. Although public opinion seems to turn decidedly on whether the phrase "affirmative action" or "preferential treatment" is used, see Gray in the Debate of Color, WASH. POST, June 5, 1995, at A1, I see no such difference for purposes of legal and philosophical analysis. When referring to minority racial groups, I use the basic categories employed by universities: White, African American/Black, Latino, Asian American, and Native American. I capitalize the label "White" as I capitalize all other racial categories to emphasize their central similarity: they are all names we have given to the social constructions of race. Finally, I use the term "Asian American" in a way similar to that of universities when they classify students by race for admission purposes. For example, the School of Law at the University of California at Los Angeles uses "Asian American" to include those individuals who identify themselves as "Chinese/Chinese American, Japanese/Japanese American, Korean/Korean American, Pacific Islander, Filipino/Filipino American, Vietnamese, Thai, East Indian/Pakistani, and Other Asian" on a self-reporting basis. UCLA School of Law 1995-1996 Bulletin & Application.
7. See Hopwood v. Texas, 21 F.3d 603 (W.D. Tex. 1994) (finding compelling interests - in remedying the present effects of past educational discrimination and pursuing diversity - but invalidating the Texas Law School affirmative action program because it was not narrowly tailored); Podberesky v. Kirwan, No. 93-2527; 93-2585, 1994 U.S. App. LEXIS (4th Cir. 1994) (invalidating a race-based scholarship because it was not narrowly tailored as a remedy for the present effects of past discrimination).
8. I do not distinguish between public institutions, which are state actors, and private institutions, which are not, because private universities that receive federal funds must at least obey the requirements of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-4 (1988 & Supp. V 1993), which incorporates the Fourteenth Amendment's standards for equal protection. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 287 (1978) (Powell, J.). Of course, the regulations promulgated under Title VI may reach farther than the statute itself or the Equal Protection Clause. See Guardians v. Civil Service, 463 U.S. 582, 592-93 (White, J.), 618-24 (Marshall, J., dissenting), 642-43 (Stevens, J., joined by Brennan and Blackmun, JJ., dissenting) (1983).
9. I reconstruct Dworkin's defense of affirmative action by examining three consistent but not identical arguments, whose publication dates span a decade. See RONALD DWORKIN, LAW'S EMPIRE 386-87, 393-97 (1986) [hereinafter DWORKIN, LAW'S EMPIRE]; RONALD DWORKIN, A MATTER OF PRINCIPLE 293-303 (1985) [hereinafter DWORKIN, A MATTER OF PRINCIPLE]; RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 223 (1977) [hereinafter DWORKIN, TAKING RIGHTS SERIOUSLY].
10. I reconstruct Dworkin's defense of affirmative action by examining three consistent but not identical arguments, whose publication dates span a decade. See RONALD DWORKIN, LAW'S EMPIRE 386-87, 393-97 (1986) [hereinafter DWORKIN, LAW'S EMPIRE]; RONALD DWORKIN, A MATTER OF PRINCIPLE 293-303 (1985) [hereinafter DWORKIN, A MATTER OF PRINCIPLE]; RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 223 (1977) [hereinafter DWORKIN, TAKING RIGHTS SERIOUSLY].
11. I reconstruct Dworkin's defense of affirmative action by examining three consistent but not identical arguments, whose publication dates span a decade. See RONALD DWORKIN, LAW'S EMPIRE 386-87, 393-97 (1986) [hereinafter DWORKIN, LAW'S EMPIRE]; RONALD DWORKIN, A MATTER OF PRINCIPLE 293-303 (1985) [hereinafter DWORKIN, A MATTER OF PRINCIPLE]; RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 223 (1977) [hereinafter DWORKIN, TAKING RIGHTS SERIOUSLY].
12. In analyzing whether negative action is in force, it is critical to keep every characteristic of the applicant constant except for race. Therefore, if a socioeconomically disadvantaged White were admitted in favor of a wealthy, privileged Asian American, this does not necessarily indicate that negative action is in effect. It may well be that the poor White was preferred not because of race but because of class.
13. See. e.g., 42 U.S.C. §§ 1981, 1982 (1988 & Supp. V 1993) (referring to the contracting and properly rights of "White" citizens).
14. Whites are used as the reference baseline for two reasons. First, when discussing policies of preference, one must have some baseline of nonpreferential treatment in order to make sense of the very notion of preference. Second, since the treatment of Whites is used as the baseline to distinguish favorable treatment of racial minorities in affirmative action, clarity recommends using the same baseline for unfavorable treatment of Asian Americans in negative action. Of course, this is not to say that the issue whether an Asian American would have been admitted had she been some other racial minority is uninteresting from a doctrinal, policy, or ethical perspective. Indeed, renouncing the traditional bipolar analysis of race - White versus non-White (usually Black) - and examining minority-minority interrelations promises to shed great light on controversies such as affirmative action. See, e.g., TOMAS ALMAGUER, RACIAL FAULT LINES 2 (1994,) (identifying Black/White bipolarism as one problem with current understandings of race).
15. Whether the constitutionality of an affirmative action program should turn on this distinction has been questioned. See, e.g., Alan M. Dershowitz & Laura Hanft, Affirmative Action and the Harvard College Diversity-Discretion Model: Paradigm or Pretext, 1 CARDOZO L. REV. 379, 382-86 (1979).
16. See Fleming & Pollak, infra note 61, at 47; Michael Winerip, Asian-Americans Question Ivy League's Entry Policies, N. Y. TIMES, May 30, 1985, at B1, B4 (discussing how Asian Americans have historically not enjoyed preferential admissions at elite colleges as have Blacks, legacies, and athletes).
17. See James Gibney, The Berkeley Squeeze, NEW REPUBLIC, Apr. 11, 1988, at 15; Harold Johnson, Model Victims, NAT'L REV., July 20, 1992, at W7 (suggesting that "doing justice" for Asian Americans requires the dismantling of "reverse discrimination in favor of specially anointed groups"); Andrew Hacker. Affirmative Action: The New Look, N.Y. REV. BOOKS, Oct. 12, 1989, at 63, 64 ("Splintering the discussion even further is whether ceilings for Asians result from the expansion of Black and Hispanic admissions, and thus are the result of affirmative action.").
18. See James Gibney, The Berkeley Squeeze, NEW REPUBLIC, Apr. 11, 1988, at 15; Harold Johnson, Model Victims, NAT'L REV., July 20, 1992, at W7 (suggesting that "doing justice" for Asian Americans requires the dismantling of "reverse discrimination in favor of specially anointed groups"); Andrew Hacker. Affirmative Action: The New Look, N.Y. REV. BOOKS, Oct. 12, 1989, at 63, 64 ("Splintering the discussion even further is whether ceilings for Asians result from the expansion of Black and Hispanic admissions, and thus are the result of affirmative action.").
19. See James Gibney, The Berkeley Squeeze, NEW REPUBLIC, Apr. 11, 1988, at 15; Harold Johnson, Model Victims, NAT'L REV., July 20, 1992, at W7 (suggesting that "doing justice" for Asian Americans requires the dismantling of "reverse discrimination in favor of specially anointed groups"); Andrew Hacker. Affirmative Action: The New Look, N.Y. REV. BOOKS, Oct. 12, 1989, at 63, 64 ("Splintering the discussion even further is whether ceilings for Asians result from the expansion of Black and Hispanic admissions, and thus are the result of affirmative action.").
20. See Carol Innerst, UC-Berkeley Law School Agrees to Halt Race Quotas, WASH. TIMES, Sept. 29, 1992, at A7 (quoting Assistant Education Secretary for Civil Rights Michael Williams' acknowledgement that Boalt Law School's admissions program disadvantages some Asian groups).
21. See Selena Dong, Too Many Asians: The Challenge of Fighting Discrimination Against Asian-Americans and Preserving Affirmative Action, 47 STAN. L. REV. 1027 (1995); Frank Wu, Neither Black nor White: Asian Americans and Affirmative Action, 15 B.C. THIRD WORLD L.J. 225, 276 (1995) ("[I]f it is permissible to harm whites to help blacks, then it is permissible to harm Asian Americans to help whites, isn't it?"); Mari Matsuda, We Will Not Be Used, 12 ASIAN L. CAUCUS REP. 1. 6 (July 1990) ("I condemn the voices from my own community that are translating legitimate anger at ceilings on Asian admissions into unthinking opposition to affirmative action floors needed to fight racism.").
22. See Selena Dong, Too Many Asians: The Challenge of Fighting Discrimination Against Asian-Americans and Preserving Affirmative Action, 47 STAN. L. REV. 1027 (1995); Frank Wu, Neither Black nor White: Asian Americans and Affirmative Action, 15 B.C. THIRD WORLD L.J. 225, 276 (1995) ("[I]f it is permissible to harm whites to help blacks, then it is permissible to harm Asian Americans to help whites, isn't it?"); Mari Matsuda, We Will Not Be Used, 12 ASIAN L. CAUCUS REP. 1. 6 (July 1990) ("I condemn the voices from my own community that are translating legitimate anger at ceilings on Asian admissions into unthinking opposition to affirmative action floors needed to fight racism.").
23. See Selena Dong, Too Many Asians: The Challenge of Fighting Discrimination Against Asian-Americans and Preserving Affirmative Action, 47 STAN. L. REV. 1027 (1995); Frank Wu, Neither Black nor White: Asian Americans and Affirmative Action, 15 B.C. THIRD WORLD L.J. 225, 276 (1995) ("[I]f it is permissible to harm whites to help blacks, then it is permissible to harm Asian Americans to help whites, isn't it?"); Mari Matsuda, We Will Not Be Used, 12 ASIAN L. CAUCUS REP. 1. 6 (July 1990) ("I condemn the voices from my own community that are translating legitimate anger at ceilings on Asian admissions into unthinking opposition to affirmative action floors needed to fight racism.").
24. Cf. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 309 n.45 (1978) ("[T]he University is unable to explain its selection of only the four favored groups - Negroes, Mexican-Americans, American Indians, and Asians - for preferential treatment. The inclusion of the last group is especially curious in light of the substantial numbers of Asians admitted through the regular admissions process.").
25. See generally Pat K. Chew, Asian Americans: The "Reticent" Minority and Their Paradoxes, 36 WM. & MARY L. REV. 1, 61-64 (1994); Grace W. Tsuang, Assuring Equal Access of Asian Americans to Highly Selective Universities, 98 YALE L.J. 659, 660-65 (1989) (presenting the evidence of admission ceilings on Asian American admissions). See also Don Nakanishi, A Quota on Excellence, in THE ASIAN AMERICAN EDUCATIONAL EXPERIENCE: A SOURCEBOOK FOR TEACHERS AND STUDENTS, 273, 279 ("Every campus that launched its own ad hoc inquiry to examine and resolve this debate - Brown, Princeton, Harvard, Berkeley, and Stanford, among others - has found that Asian/Pacific applicants have stronger group-level academic profiles than other groups"). Indeed, at prestigious Lowell High School in San Francisco, a peculiar regime of negative action against Asian Americans is explicit. Lowell High School, a competitive-entry, public magnet school, is required by desegregation consent decree to have no single racial group compose more than a set percentage of a given class; in Lowell's case, it is 40%. See San Francisco NAACP v. San Francisco Unified Sch. Dist., 576 F. Supp. 34, 61 (N.D. Cal. 1983). See generally Hannah Nordhaus, Consent Decree Battle Exposes Rifts in Rights Groups' Agendas, S.F. RECORDER, Jan. 12, 1995, at 1. Because of this cap, Lowell denies admission to certain Asian Americans (specifically Chinese Americans), who would be admitted if they were White. See Nanette Asimov, S.F. Schools Sued Over Enrollment Restrictions, S.F. CHRON., July 12, 1994, at A13; Frank H. Wu, At Lowell High, Who Is Equal to Whom?, S.F. CHRON., Sept. 21, 1994, at A23. See generally Dong, supra note 15, at 1030-31 (presenting the question of how Asian Americans can simultaneously argue in favor of preferential treatment for some minority groups over Whites and against the sort of discrimination that is occurring at Lowell High School). A little history adds perspective to the modern problem; the doctrine of "separate but equal" education applied not only to Blacks but also to Asian Americans. See Gong Lum v. Rice, 275 U.S. 78 (1927). Not surprisingly, before the 1960s, Asian Americans were de facto excluded from elite universities. See John H. Bunzel & Jeffrey K.D. Au, The Asian Difference, in RACIAL PREFERENCE AND RACIAL JUSTICE: THE NEW AFFIRMATIVE ACTION CONTROVERSY, 455, 460 (Russell Nieli, ed. 1991) [hereinafter Bunzel & Au, Asian Difference].
26. See generally Pat K. Chew, Asian Americans: The "Reticent" Minority and Their Paradoxes, 36 WM. & MARY L. REV. 1, 61-64 (1994); Grace W. Tsuang, Assuring Equal Access of Asian Americans to Highly Selective Universities, 98 YALE L.J. 659, 660-65 (1989) (presenting the evidence of admission ceilings on Asian American admissions). See also Don Nakanishi, A Quota on Excellence, in THE ASIAN AMERICAN EDUCATIONAL EXPERIENCE: A SOURCEBOOK FOR TEACHERS AND STUDENTS, 273, 279 ("Every campus that launched its own ad hoc inquiry to examine and resolve this debate - Brown, Princeton, Harvard, Berkeley, and Stanford, among others - has found that Asian/Pacific applicants have stronger group-level academic profiles than other groups"). Indeed, at prestigious Lowell High School in San Francisco, a peculiar regime of negative action against Asian Americans is explicit. Lowell High School, a competitive-entry, public magnet school, is required by desegregation consent decree to have no single racial group compose more than a set percentage of a given class; in Lowell's case, it is 40%. See San Francisco NAACP v. San Francisco Unified Sch. Dist., 576 F. Supp. 34, 61 (N.D. Cal. 1983). See generally Hannah Nordhaus, Consent Decree Battle Exposes Rifts in Rights Groups' Agendas, S.F. RECORDER, Jan. 12, 1995, at 1. Because of this cap, Lowell denies admission to certain Asian Americans (specifically Chinese Americans), who would be admitted if they were White. See Nanette Asimov, S.F. Schools Sued Over Enrollment Restrictions, S.F. CHRON., July 12, 1994, at A13; Frank H. Wu, At Lowell High, Who Is Equal to Whom?, S.F. CHRON., Sept. 21, 1994, at A23. See generally Dong, supra note 15, at 1030-31 (presenting the question of how Asian Americans can simultaneously argue in favor of preferential treatment for some minority groups over Whites and against the sort of discrimination that is occurring at Lowell High School). A little history adds perspective to the modern problem; the doctrine of "separate but equal" education applied not only to Blacks but also to Asian Americans. See Gong Lum v. Rice, 275 U.S. 78 (1927). Not surprisingly, before the 1960s, Asian Americans were de facto excluded from elite universities. See John H. Bunzel & Jeffrey K.D. Au, The Asian Difference, in RACIAL PREFERENCE AND RACIAL JUSTICE: THE NEW AFFIRMATIVE ACTION CONTROVERSY, 455, 460 (Russell Nieli, ed. 1991) [hereinafter Bunzel & Au, Asian Difference].
27. See generally Pat K. Chew, Asian Americans: The "Reticent" Minority and Their Paradoxes, 36 WM. & MARY L. REV. 1, 61-64 (1994); Grace W. Tsuang, Assuring Equal Access of Asian Americans to Highly Selective Universities, 98 YALE L.J. 659, 660-65 (1989) (presenting the evidence of admission ceilings on Asian American admissions). See also Don Nakanishi, A Quota on Excellence, in THE ASIAN AMERICAN EDUCATIONAL EXPERIENCE: A SOURCEBOOK FOR TEACHERS AND STUDENTS, 273, 279 ("Every campus that launched its own ad hoc inquiry to examine and resolve this debate - Brown, Princeton, Harvard, Berkeley, and Stanford, among others - has found that Asian/Pacific applicants have stronger group-level academic profiles than other groups"). Indeed, at prestigious Lowell High School in San Francisco, a peculiar regime of negative action against Asian Americans is explicit. Lowell High School, a competitive-entry, public magnet school, is required by desegregation consent decree to have no single racial group compose more than a set percentage of a given class; in Lowell's case, it is 40%. See San Francisco NAACP v. San Francisco Unified Sch. Dist., 576 F. Supp. 34, 61 (N.D. Cal. 1983). See generally Hannah Nordhaus, Consent Decree Battle Exposes Rifts in Rights Groups' Agendas, S.F. RECORDER, Jan. 12, 1995, at 1. Because of this cap, Lowell denies admission to certain Asian Americans (specifically Chinese Americans), who would be admitted if they were White. See Nanette Asimov, S.F. Schools Sued Over Enrollment Restrictions, S.F. CHRON., July 12, 1994, at A13; Frank H. Wu, At Lowell High, Who Is Equal to Whom?, S.F. CHRON., Sept. 21, 1994, at A23. See generally Dong, supra note 15, at 1030-31 (presenting the question of how Asian Americans can simultaneously argue in favor of preferential treatment for some minority groups over Whites and against the sort of discrimination that is occurring at Lowell High School). A little history adds perspective to the modern problem; the doctrine of "separate but equal" education applied not only to Blacks but also to Asian Americans. See Gong Lum v. Rice, 275 U.S. 78 (1927). Not surprisingly, before the 1960s, Asian Americans were de facto excluded from elite universities. See John H. Bunzel & Jeffrey K.D. Au, The Asian Difference, in RACIAL PREFERENCE AND RACIAL JUSTICE: THE NEW AFFIRMATIVE ACTION CONTROVERSY, 455, 460 (Russell Nieli, ed. 1991) [hereinafter Bunzel & Au, Asian Difference].
28. See generally Pat K. Chew, Asian Americans: The "Reticent" Minority and Their Paradoxes, 36 WM. & MARY L. REV. 1, 61-64 (1994); Grace W. Tsuang, Assuring Equal Access of Asian Americans to Highly Selective Universities, 98 YALE L.J. 659, 660-65 (1989) (presenting the evidence of admission ceilings on Asian American admissions). See also Don Nakanishi, A Quota on Excellence, in THE ASIAN AMERICAN EDUCATIONAL EXPERIENCE: A SOURCEBOOK FOR TEACHERS AND STUDENTS, 273, 279 ("Every campus that launched its own ad hoc inquiry to examine and resolve this debate - Brown, Princeton, Harvard, Berkeley, and Stanford, among others - has found that Asian/Pacific applicants have stronger group-level academic profiles than other groups"). Indeed, at prestigious Lowell High School in San Francisco, a peculiar regime of negative action against Asian Americans is explicit. Lowell High School, a competitive-entry, public magnet school, is required by desegregation consent decree to have no single racial group compose more than a set percentage of a given class; in Lowell's case, it is 40%. See San Francisco NAACP v. San Francisco Unified Sch. Dist., 576 F. Supp. 34, 61 (N.D. Cal. 1983). See generally Hannah Nordhaus, Consent Decree Battle Exposes Rifts in Rights Groups' Agendas, S.F. RECORDER, Jan. 12, 1995, at 1. Because of this cap, Lowell denies admission to certain Asian Americans (specifically Chinese Americans), who would be admitted if they were White. See Nanette Asimov, S.F. Schools Sued Over Enrollment Restrictions, S.F. CHRON., July 12, 1994, at A13; Frank H. Wu, At Lowell High, Who Is Equal to Whom?, S.F. CHRON., Sept. 21, 1994, at A23. See generally Dong, supra note 15, at 1030-31 (presenting the question of how Asian Americans can simultaneously argue in favor of preferential treatment for some minority groups over Whites and against the sort of discrimination that is occurring at Lowell High School). A little history adds perspective to the modern problem; the doctrine of "separate but equal" education applied not only to Blacks but also to Asian Americans. See Gong Lum v. Rice, 275 U.S. 78 (1927). Not surprisingly, before the 1960s, Asian Americans were de facto excluded from elite universities. See John H. Bunzel & Jeffrey K.D. Au, The Asian Difference, in RACIAL PREFERENCE AND RACIAL JUSTICE: THE NEW AFFIRMATIVE ACTION CONTROVERSY, 455, 460 (Russell Nieli, ed. 1991) [hereinafter Bunzel & Au, Asian Difference].
29. See generally Pat K. Chew, Asian Americans: The "Reticent" Minority and Their Paradoxes, 36 WM. & MARY L. REV. 1, 61-64 (1994); Grace W. Tsuang, Assuring Equal Access of Asian Americans to Highly Selective Universities, 98 YALE L.J. 659, 660-65 (1989) (presenting the evidence of admission ceilings on Asian American admissions). See also Don Nakanishi, A Quota on Excellence, in THE ASIAN AMERICAN EDUCATIONAL EXPERIENCE: A SOURCEBOOK FOR TEACHERS AND STUDENTS, 273, 279 ("Every campus that launched its own ad hoc inquiry to examine and resolve this debate - Brown, Princeton, Harvard, Berkeley, and Stanford, among others - has found that Asian/Pacific applicants have stronger group-level academic profiles than other groups"). Indeed, at prestigious Lowell High School in San Francisco, a peculiar regime of negative action against Asian Americans is explicit. Lowell High School, a competitive-entry, public magnet school, is required by desegregation consent decree to have no single racial group compose more than a set percentage of a given class; in Lowell's case, it is 40%. See San Francisco NAACP v. San Francisco Unified Sch. Dist., 576 F. Supp. 34, 61 (N.D. Cal. 1983). See generally Hannah Nordhaus, Consent Decree Battle Exposes Rifts in Rights Groups' Agendas, S.F. RECORDER, Jan. 12, 1995, at 1. Because of this cap, Lowell denies admission to certain Asian Americans (specifically Chinese Americans), who would be admitted if they were White. See Nanette Asimov, S.F. Schools Sued Over Enrollment Restrictions, S.F. CHRON., July 12, 1994, at A13; Frank H. Wu, At Lowell High, Who Is Equal to Whom?, S.F. CHRON., Sept. 21, 1994, at A23. See generally Dong, supra note 15, at 1030-31 (presenting the question of how Asian Americans can simultaneously argue in favor of preferential treatment for some minority groups over Whites and against the sort of discrimination that is occurring at Lowell High School). A little history adds perspective to the modern problem; the doctrine of "separate but equal" education applied not only to Blacks but also to Asian Americans. See Gong Lum v. Rice, 275 U.S. 78 (1927). Not surprisingly, before the 1960s, Asian Americans were de facto excluded from elite universities. See John H. Bunzel & Jeffrey K.D. Au, The Asian Difference, in RACIAL PREFERENCE AND RACIAL JUSTICE: THE NEW AFFIRMATIVE ACTION CONTROVERSY, 455, 460 (Russell Nieli, ed. 1991) [hereinafter Bunzel & Au, Asian Difference].
30. See generally Pat K. Chew, Asian Americans: The "Reticent" Minority and Their Paradoxes, 36 WM. & MARY L. REV. 1, 61-64 (1994); Grace W. Tsuang, Assuring Equal Access of Asian Americans to Highly Selective Universities, 98 YALE L.J. 659, 660-65 (1989) (presenting the evidence of admission ceilings on Asian American admissions). See also Don Nakanishi, A Quota on Excellence, in THE ASIAN AMERICAN EDUCATIONAL EXPERIENCE: A SOURCEBOOK FOR TEACHERS AND STUDENTS, 273, 279 ("Every campus that launched its own ad hoc inquiry to examine and resolve this debate - Brown, Princeton, Harvard, Berkeley, and Stanford, among others - has found that Asian/Pacific applicants have stronger group-level academic profiles than other groups"). Indeed, at prestigious Lowell High School in San Francisco, a peculiar regime of negative action against Asian Americans is explicit. Lowell High School, a competitive-entry, public magnet school, is required by desegregation consent decree to have no single racial group compose more than a set percentage of a given class; in Lowell's case, it is 40%. See San Francisco NAACP v. San Francisco Unified Sch. Dist., 576 F. Supp. 34, 61 (N.D. Cal. 1983). See generally Hannah Nordhaus, Consent Decree Battle Exposes Rifts in Rights Groups' Agendas, S.F. RECORDER, Jan. 12, 1995, at 1. Because of this cap, Lowell denies admission to certain Asian Americans (specifically Chinese Americans), who would be admitted if they were White. See Nanette Asimov, S.F. Schools Sued Over Enrollment Restrictions, S.F. CHRON., July 12, 1994, at A13; Frank H. Wu, At Lowell High, Who Is Equal to Whom?, S.F. CHRON., Sept. 21, 1994, at A23. See generally Dong, supra note 15, at 1030-31 (presenting the question of how Asian Americans can simultaneously argue in favor of preferential treatment for some minority groups over Whites and against the sort of discrimination that is occurring at Lowell High School). A little history adds perspective to the modern problem; the doctrine of "separate but equal" education applied not only to Blacks but also to Asian Americans. See Gong Lum v. Rice, 275 U.S. 78 (1927). Not surprisingly, before the 1960s, Asian Americans were de facto excluded from elite universities. See John H. Bunzel & Jeffrey K.D. Au, The Asian Difference, in RACIAL PREFERENCE AND RACIAL JUSTICE: THE NEW AFFIRMATIVE ACTION CONTROVERSY, 455, 460 (Russell Nieli, ed. 1991) [hereinafter Bunzel & Au, Asian Difference].
31. See generally Pat K. Chew, Asian Americans: The "Reticent" Minority and Their Paradoxes, 36 WM. & MARY L. REV. 1, 61-64 (1994); Grace W. Tsuang, Assuring Equal Access of Asian Americans to Highly Selective Universities, 98 YALE L.J. 659, 660-65 (1989) (presenting the evidence of admission ceilings on Asian American admissions). See also Don Nakanishi, A Quota on Excellence, in THE ASIAN AMERICAN EDUCATIONAL EXPERIENCE: A SOURCEBOOK FOR TEACHERS AND STUDENTS, 273, 279 ("Every campus that launched its own ad hoc inquiry to examine and resolve this debate - Brown, Princeton, Harvard, Berkeley, and Stanford, among others - has found that Asian/Pacific applicants have stronger group-level academic profiles than other groups"). Indeed, at prestigious Lowell High School in San Francisco, a peculiar regime of negative action against Asian Americans is explicit. Lowell High School, a competitive-entry, public magnet school, is required by desegregation consent decree to have no single racial group compose more than a set percentage of a given class; in Lowell's case, it is 40%. See San Francisco NAACP v. San Francisco Unified Sch. Dist., 576 F. Supp. 34, 61 (N.D. Cal. 1983). See generally Hannah Nordhaus, Consent Decree Battle Exposes Rifts in Rights Groups' Agendas, S.F. RECORDER, Jan. 12, 1995, at 1. Because of this cap, Lowell denies admission to certain Asian Americans (specifically Chinese Americans), who would be admitted if they were White. See Nanette Asimov, S.F. Schools Sued Over Enrollment Restrictions, S.F. CHRON., July 12, 1994, at A13; Frank H. Wu, At Lowell High, Who Is Equal to Whom?, S.F. CHRON., Sept. 21, 1994, at A23. See generally Dong, supra note 15, at 1030-31 (presenting the question of how Asian Americans can simultaneously argue in favor of preferential treatment for some minority groups over Whites and against the sort of discrimination that is occurring at Lowell High School). A little history adds perspective to the modern problem; the doctrine of "separate but equal" education applied not only to Blacks but also to Asian Americans. See Gong Lum v. Rice, 275 U.S. 78 (1927). Not surprisingly, before the 1960s, Asian Americans were de facto excluded from elite universities. See John H. Bunzel & Jeffrey K.D. Au, The Asian Difference, in RACIAL PREFERENCE AND RACIAL JUSTICE: THE NEW AFFIRMATIVE ACTION CONTROVERSY, 455, 460 (Russell Nieli, ed. 1991) [hereinafter Bunzel & Au, Asian Difference].
32. See Gibney, supra note 13, at 17 (quoting the remarks of Rep. Dana Rohrbacher (R-Cal.)), who compared discrimination against Asian Americans in universities to that against Jews in the 1920s); Benjamin Pimentel, Asian Americans' Awkward Status, S.F. CHRON., Aug. 22, 1995, at Al (quoting the remarks of Joe Gelman, campaign manager for the California Civil Rights Initiative, concerning quotas imposed on Asian American students).
33. See Liebert, supra note 2.
34. Susan Page, Off and Running, Pete Wilson; A Series of Interviews with Presidential Hopefuls. NEWSDAY, Aug. 27, 1995, at A38 (quoting Pete Wilson as stating "And when we . . . grant admission to a public university based not upon individual merit but instead upon membership in a racial or ethnic group that is favored under the law, we are sending a terrible signal. That is by definition racial discrimination. It was wrong 35 years ago when the victims were African Americans. It's wrong today when the victims are Asians, Caucasians.").
35. See infra note 48.
36. See, e.g., Frank Wu, supra note 15, at 226 (discussing how the model minority trope pits Asian Americans against other minority groups).
37. The affirmative action issue has a history of fragmenting political groups that had previously united on civil rights causes. See Nathan Glazer, Racial Quotas, in RACIAL PREFERENCE AND RACIAL JUSTICE: THE NEW AFFIRMATIVE ACTION CONTROVERSY 3, 26 (Russell Nieli, ed. 1991) (noting that among Jewish groups, including the Anti-Defamation League and the American Jewish Congress, none supported Bakke in his suit against affirmative action); Randall Kennedy, Persuasion and Distrust: A Comment on the Affirmative Action Debate. 99 HARV. L. REV. 1327 (1986) (describing how affirmative action splintered the consensus that passed the Civil Rights Act).
38. The affirmative action issue has a history of fragmenting political groups that had previously united on civil rights causes. See Nathan Glazer, Racial Quotas, in RACIAL PREFERENCE AND RACIAL JUSTICE: THE NEW AFFIRMATIVE ACTION CONTROVERSY 3, 26 (Russell Nieli, ed. 1991) (noting that among Jewish groups, including the Anti-Defamation League and the American Jewish Congress, none supported Bakke in his suit against affirmative action); Randall Kennedy, Persuasion and Distrust: A Comment on the Affirmative Action Debate. 99 HARV. L. REV. 1327 (1986) (describing how affirmative action splintered the consensus that passed the Civil Rights Act).
39. Dworkin claims that society can define its general interest in one of two principal ways. It could adopt a utilitarian model in which the general interest of society will benefit from maximizing preferences. Or, it could adopt an idealistic model in which the general interest is achieved not by giving society's members more of what they want but by making society more closely resemble some vision of the ideal community. See DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 7, at 266, 274. Of course, the utilitarian model can be seen as an element of the set of idealistic models.
40. See DWORKIN, LAW'S EMPIRE, supra note 7, at 381. This deontological notion that the violation of an individual's rights can trump an efficient social policy is a fundamental component of liberal political theory. See, e.g., JOHN RAWLS, A THEORY OF JUSTICE 3 (1971).
41. See DWORKIN, LAW'S EMPIRE, supra note 7, at 381. This deontological notion that the violation of an individual's rights can trump an efficient social policy is a fundamental component of liberal political theory. See, e.g., JOHN RAWLS, A THEORY OF JUSTICE 3 (1971).
42. See DWORKIN, A MATTER OF PRINCIPLE, supra note 7, at 295.
43. Id. at 294.
44. See DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 7, at 224. Dworkin adds that it is not the "business of judges, particularly in constitutional cases, to overthrow decisions of other officials because the judges disagree about the efficiency of social policies." Id. at 224; see also Adarand Constr. Co. v. Pena, 2097, 2122 n.5 (Stevens, J., dissenting) ("I am not persuaded that the psychological damage brought on by affirmative action is as severe as that engendered by racial subordination. That, in any event, is a judgment the political branches can be trusted to make."); Mark Strasser, The Invidiousness of Invidiousness: On the Supreme Court's Affirmative Action Jurisprudence, 21 HASTINGS CONST. L.Q. 323, 401 (1994).
45. See DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 7, at 224. Dworkin adds that it is not the "business of judges, particularly in constitutional cases, to overthrow decisions of other officials because the judges disagree about the efficiency of social policies." Id. at 224; see also Adarand Constr. Co. v. Pena, 2097, 2122 n.5 (Stevens, J., dissenting) ("I am not persuaded that the psychological damage brought on by affirmative action is as severe as that engendered by racial subordination. That, in any event, is a judgment the political branches can be trusted to make."); Mark Strasser, The Invidiousness of Invidiousness: On the Supreme Court's Affirmative Action Jurisprudence, 21 HASTINGS CONST. L.Q. 323, 401 (1994).
46. 438 U.S. 265 (1978).
47. See DWORKIN, A MATTER OF PRINCIPLE, supra note 7, at 298; see also THOMAS NAGEL, MORTAL QUESTIONS 91 (1979) (explaining that if affirmative action is unjust, it is much more difficult to defend on social utilitarian grounds).
48. See DWORKIN, A MATTER OF PRINCIPLE, supra note 7, at 298; see also THOMAS NAGEL, MORTAL QUESTIONS 91 (1979) (explaining that if affirmative action is unjust, it is much more difficult to defend on social utilitarian grounds).
49. See DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 7. at 225; see also San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) (holding that primary and secondary educations do not implicate fundamental interests).
50. See DWORKIN, A MATTER OF PRINCIPLE, supra note 7, at 299 ("There is no combination of abilities and skills and traits that constitutes 'merit' in the abstract . . . .").
51. DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 7, at 225; see also Kenneth L. Karst & Harold W. Horowitz, Affirmative Action and Equal Protection, 60 VA. L. REV. 955, 961-62 (1974) (describing "merit" as a function of social needs).
52. DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 7, at 225; see also Kenneth L. Karst & Harold W. Horowitz, Affirmative Action and Equal Protection, 60 VA. L. REV. 955, 961-62 (1974) (describing "merit" as a function of social needs).
53. Although not pursued by Dworkin, the notion of deserving the rewards associated with one's merit presents deeper philosophical difficulties. See, e.g., RAWLS, supra note 25, at 74.
54. On a superficial reading, one might find a contradiction between Dworkin's stances that (1) there is no right to be judged as an individual and (2) the right to equality is a right that flows directly to the individual and not to any racial group. However, there is nothing inconsistent in claiming that the Equal Protection Clause protects individual rights, not "group rights" - whatever they may be - but that the nature of that protection does not require state actors to treat each individual as unique, whose full human complexity must be considered regardless of the administrative cost.
55. See generally THOMAS SOWELL, KNOWLEDGE AND DECISION 83-93 (1980) (discussing the nature of sorting and labeling, and the costs and benefits of better information).
56. See DWORKIN, A MATTER OF PRINCIPLE, supra note 7, at 299-300.
57. Indeed, being treated as an "individual" might simply mean being treated as a member of one particular group as opposed to a different group. See Karst & Horowitz, supra note 33, at 961.
58. See DWORKIN, A MATTER OF PRINCIPLE, supra note 7, at 301.
59. DWORKIN, LAW'S EMPIRE, supra note 7. at 394; see also Richard H. Fallon, Jr. & Paul C. Weiler, Firefighters v. Stotts: Conflicting Models of Racial Justice, 1984 Sup. CT. REV. 1, 38 (explaining that distinctions based on immutable characteristics are not normally considered violative of moral rights).
60. DWORKIN, LAW'S EMPIRE, supra note 7. at 394; see also Richard H. Fallon, Jr. & Paul C. Weiler, Firefighters v. Stotts: Conflicting Models of Racial Justice, 1984 Sup. CT. REV. 1, 38 (explaining that distinctions based on immutable characteristics are not normally considered violative of moral rights).
61. See DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 7, at 226. From this passage, readers might wonder whether Dworkin conflates morality with law, and thereby elides the difference between moral philosophy and constitutional interpretation. Dworkin would deny making such an elementary error. In fact, it has been argued that Dworkin's theory of jurisprudence in general, and constitutional interpretation in particular, are sophisticated attempts to reconcile the strands of positivism and natural law intertwined in Anglo-American jurisprudence. See Richard H. Fallon, Jr., Reflections on Dworkin and the Two Faces of Law, 67 NOTRE DAME L. REV. 553, 553-55 (1992).
62. See DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 7, at 226. From this passage, readers might wonder whether Dworkin conflates morality with law, and thereby elides the difference between moral philosophy and constitutional interpretation. Dworkin would deny making such an elementary error. In fact, it has been argued that Dworkin's theory of jurisprudence in general, and constitutional interpretation in particular, are sophisticated attempts to reconcile the strands of positivism and natural law intertwined in Anglo-American jurisprudence. See Richard H. Fallon, Jr., Reflections on Dworkin and the Two Faces of Law, 67 NOTRE DAME L. REV. 553, 553-55 (1992).
63. See DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 7, at 226-27.
64. Dworkin distinguishes concepts from conceptions in the following manner: "At the . . . [concept] level agreement collects around discrete ideas that are uncontroversially employed in all interpretations; at the [conceptions level] the controversy latent in this abstraction is identified and taken up." DWORKIN, LAW'S EMPIRE, supra note 7, at 71.
65. Cf. Owen M. Fiss, Groups and the Equal Protection Clause, in EQUALITY AND PREFERENTIAL TREATMENT 85 (Marshall Cohen et al., eds. 1977) (explaining how the antidiscrimination conception is not the sole mediating conception of the more abstract Equal Protection Clause). Some have also argued that the concept of equality is not only indeterminate but entirely empty. See Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537, 547 (1982). But see Kenneth L. Karst, Why Equality Matters, 17 GA. L. REV. 245 (1983).
66. Cf. Owen M. Fiss, Groups and the Equal Protection Clause, in EQUALITY AND PREFERENTIAL TREATMENT 85 (Marshall Cohen et al., eds. 1977) (explaining how the antidiscrimination conception is not the sole mediating conception of the more abstract Equal Protection Clause). Some have also argued that the concept of equality is not only indeterminate but entirely empty. See Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537, 547 (1982). But see Kenneth L. Karst, Why Equality Matters, 17 GA. L. REV. 245 (1983).
67. Cf. Owen M. Fiss, Groups and the Equal Protection Clause, in EQUALITY AND PREFERENTIAL TREATMENT 85 (Marshall Cohen et al., eds. 1977) (explaining how the antidiscrimination conception is not the sole mediating conception of the more abstract Equal Protection Clause). Some have also argued that the concept of equality is not only indeterminate but entirely empty. See Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537, 547 (1982). But see Kenneth L. Karst, Why Equality Matters, 17 GA. L. REV. 245 (1983).
68. See DWORKIN, LAW'S EMPIRE, supra note 7. at 383.
69. See Paul Brest, Foreword: In Defense of the Antidiscrimination Principle, 90 HARV. L. REV. 1, 7 (1976) (discussing how race-dependent decisions that appear to be rational may actually be based on assumptions about the differential worth of racial groups).
70. See DWORKIN, LAW'S EMPIRE, supra note 7, at 383.
71. See id. at 387.
72. 163 U.S. 537 (1896).
73. See DWORKIN, LAW'S EMPIRE, supra note 7, at 383-84.
74. David Strauss has noted the irony of calling the banned categories approach "colorblind." In one sense, giving individuals the right to prohibit the state from making any classifications on the basis of race promotes an official obliviousness to race. However, in another, equally meaningful sense, specifically selecting out race as a special taboo characteristic - qualitatively different from age, eye color, blood type, or any other physical characteristic - despite race's occasional usefulness as a proxy for other relevant characteristics is not to be blind to race but to be especially sensitive to it. See David Strauss, The Myth of Colorblindness, 1986 SUP. CT. REV. 99, 114 (1986).
75. Id.
76. See supra text accompanying notes 39-40 (presenting Dworkin's views rejecting this supposed right). Indeed, the banned categories conception, in its categorical color-blindness, could lead to absurd results. See Charles Fried, Comment, Metro Broadcasting, Inc. v. FCC: Two Concepts of Equality. 104 HARV. L. REV. 107. 111 n.19 (1990) ("If a criminal gang has an exclusive racial composition, it would be fanatical to require the government to ignore this act in recruiting agents to infiltrate that gang.").
77. DWORKIN, A MATTER OF PRINCIPLE, supra note 7, at 300. Another articulation of this conception is "that preferences that are rooted in some form of prejudice against one group can never count in favor of a policy that includes the disadvantage of that group." See DWORKIN, LAW'S EMPIRE, supra note 7, at 384.
78. DWORKIN, A MATTER OF PRINCIPLE, supra note 7, at 300. Another articulation of this conception is "that preferences that are rooted in some form of prejudice against one group can never count in favor of a policy that includes the disadvantage of that group." See DWORKIN, LAW'S EMPIRE, supra note 7, at 384.
79. See DWORKIN, LAW'S EMPIRE, supra note 7, at 384.
80. In his defense of affirmative action, Dworkin does not clearly define what he means by prejudice. In my view, racial prejudice spans a spectrum. At the extreme, there is pure antipathy and contempt, which in a utilitarian framework would translate to the negative valuing of minority welfare. Less extreme is prejudice that involves mere selective indifference or unthinking callousness toward the welfare of a particular racial group which, again in a utilitarian scheme, would lead to the undervaluing of minority interests. See JOHN HART ELY, DEMOCRACY AND DISTRUST 157 (1980). Antipathy and selective indifference often cause and thereafter are reinforced by misperceptions, in which race is used as an unjustified proxy for individual behavior. See Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 339 (1987) (describing how stereotypes provide a lens through which one sees events, a process that in turn reaffirms stereotypes themselves); THOMAS SOWELL, MARKETS AND MINORITIES 19 (1981) (describing a form of economic discrimination in which different transaction terms are offered to individuals because they are perceived differently on the basis of group membership); cf. David Chang, Discriminatory impact, Affirmative Action, and Innocent Victims: Judicial Conservatism or Conservative Justices?, 91 COLUM. L. REV. 790, 793 n.9 (describing racial prejudice as having prescriptive (animus or favoritism) and descriptive (stereotype) modes). I believe Dworkin's banned sources conception would ban preferences tainted by any of the three modes of prejudice identified above: antipathy, selective indifference, or misperception.
81. In his defense of affirmative action, Dworkin does not clearly define what he means by prejudice. In my view, racial prejudice spans a spectrum. At the extreme, there is pure antipathy and contempt, which in a utilitarian framework would translate to the negative valuing of minority welfare. Less extreme is prejudice that involves mere selective indifference or unthinking callousness toward the welfare of a particular racial group which, again in a utilitarian scheme, would lead to the undervaluing of minority interests. See JOHN HART ELY, DEMOCRACY AND DISTRUST 157 (1980). Antipathy and selective indifference often cause and thereafter are reinforced by misperceptions, in which race is used as an unjustified proxy for individual behavior. See Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 339 (1987) (describing how stereotypes provide a lens through which one sees events, a process that in turn reaffirms stereotypes themselves); THOMAS SOWELL, MARKETS AND MINORITIES 19 (1981) (describing a form of economic discrimination in which different transaction terms are offered to individuals because they are perceived differently on the basis of group membership); cf. David Chang, Discriminatory impact, Affirmative Action, and Innocent Victims: Judicial Conservatism or Conservative Justices?, 91 COLUM. L. REV. 790, 793 n.9 (describing racial prejudice as having prescriptive (animus or favoritism) and descriptive (stereotype) modes). I believe Dworkin's banned sources conception would ban preferences tainted by any of the three modes of prejudice identified above: antipathy, selective indifference, or misperception.
82. In his defense of affirmative action, Dworkin does not clearly define what he means by prejudice. In my view, racial prejudice spans a spectrum. At the extreme, there is pure antipathy and contempt, which in a utilitarian framework would translate to the negative valuing of minority welfare. Less extreme is prejudice that involves mere selective indifference or unthinking callousness toward the welfare of a particular racial group which, again in a utilitarian scheme, would lead to the undervaluing of minority interests. See JOHN HART ELY, DEMOCRACY AND DISTRUST 157 (1980). Antipathy and selective indifference often cause and thereafter are reinforced by misperceptions, in which race is used as an unjustified proxy for individual behavior. See Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 339 (1987) (describing how stereotypes provide a lens through which one sees events, a process that in turn reaffirms stereotypes themselves); THOMAS SOWELL, MARKETS AND MINORITIES 19 (1981) (describing a form of economic discrimination in which different transaction terms are offered to individuals because they are perceived differently on the basis of group membership); cf. David Chang, Discriminatory impact, Affirmative Action, and Innocent Victims: Judicial Conservatism or Conservative Justices?, 91 COLUM. L. REV. 790, 793 n.9 (describing racial prejudice as having prescriptive (animus or favoritism) and descriptive (stereotype) modes). I believe Dworkin's banned sources conception would ban preferences tainted by any of the three modes of prejudice identified above: antipathy, selective indifference, or misperception.
83. In his defense of affirmative action, Dworkin does not clearly define what he means by prejudice. In my view, racial prejudice spans a spectrum. At the extreme, there is pure antipathy and contempt, which in a utilitarian framework would translate to the negative valuing of minority welfare. Less extreme is prejudice that involves mere selective indifference or unthinking callousness toward the welfare of a particular racial group which, again in a utilitarian scheme, would lead to the undervaluing of minority interests. See JOHN HART ELY, DEMOCRACY AND DISTRUST 157 (1980). Antipathy and selective indifference often cause and thereafter are reinforced by misperceptions, in which race is used as an unjustified proxy for individual behavior. See Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 339 (1987) (describing how stereotypes provide a lens through which one sees events, a process that in turn reaffirms stereotypes themselves); THOMAS SOWELL, MARKETS AND MINORITIES 19 (1981) (describing a form of economic discrimination in which different transaction terms are offered to individuals because they are perceived differently on the basis of group membership); cf. David Chang, Discriminatory impact, Affirmative Action, and Innocent Victims: Judicial Conservatism or Conservative Justices?, 91 COLUM. L. REV. 790, 793 n.9 (describing racial prejudice as having prescriptive (animus or favoritism) and descriptive (stereotype) modes). I believe Dworkin's banned sources conception would ban preferences tainted by any of the three modes of prejudice identified above: antipathy, selective indifference, or misperception.
84. See DWORKIN, A MATTER OF PRINCIPLE, supra note 7, at 300-01.
85. See DWORKIN, LAW'S EMPIRE, supra note 7, at 394.
86. See DWORKIN, A MATTER OF PRINCIPLE, supra note 7, at 301.
87. For example, communitarian theories, which reject traditional liberalism's strong separation between the right and the good, refuse to see individual rights as absolute vetoes on society's pursuit of the good. See Michael J. Sandel, Morality and the Liberal Ideal, NEW REPUBLIC, May 7, 1984, at 15, 16-17. See generally MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982). From an entirely different perspective, critical legal scholars doubt whether the standard, liberal rights discourse has been efficacious in improving the welfare of subjugated peoples. See, e.g., Kimberlé W. Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331, 1349-56 (1988) (describing the "New Left" criticism of legal rights discourse).
88. For example, communitarian theories, which reject traditional liberalism's strong separation between the right and the good, refuse to see individual rights as absolute vetoes on society's pursuit of the good. See Michael J. Sandel, Morality and the Liberal Ideal, NEW REPUBLIC, May 7, 1984, at 15, 16-17. See generally MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982). From an entirely different perspective, critical legal scholars doubt whether the standard, liberal rights discourse has been efficacious in improving the welfare of subjugated peoples. See, e.g., Kimberlé W. Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331, 1349-56 (1988) (describing the "New Left" criticism of legal rights discourse).
89. For example, communitarian theories, which reject traditional liberalism's strong separation between the right and the good, refuse to see individual rights as absolute vetoes on society's pursuit of the good. See Michael J. Sandel, Morality and the Liberal Ideal, NEW REPUBLIC, May 7, 1984, at 15, 16-17. See generally MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982). From an entirely different perspective, critical legal scholars doubt whether the standard, liberal rights discourse has been efficacious in improving the welfare of subjugated peoples. See, e.g., Kimberlé W. Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331, 1349-56 (1988) (describing the "New Left" criticism of legal rights discourse).
90. Compare Macklin Fleming & Louis Pollak, The Black Quota at Yale Law School, PUBLIC INTEREST, Spring 1970, at 44, 44-49 (letter of Macklin Fleming) (arguing against affirmative action at law schools) with Kennedy, supra note 23, at 1329-34 (arguing for affirmative action).
91. See, e.g., ALEXANDER BICKEL, THE MORALITY OF CONSENT 133 (1975) ("The lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society."); William Van Alstyne, Rights of Passage: Race, the Supreme Court, and the Constitution, 46 U. CHI. L. REV. 775, 809-10 (1979) ("[O]ne gets beyond racism by getting beyond it now: by a complete, resolute, and credible commitment never to tolerate in one's own life - or in the life or practices of one's government - the differential treatment of other human beings by race."). For a critique of this banned categories conception, see Neil Gotanda, A Critique of "Our Constitution Is Color-Blind", 47 STAN. L. REV. 1 (1991).
92. See, e.g., ALEXANDER BICKEL, THE MORALITY OF CONSENT 133 (1975) ("The lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: discrimination on the basis of race is illegal, immoral, unconstitutional,
93. See, e.g., ALEXANDER BICKEL, THE MORALITY OF CONSENT 133 (1975) ("The lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society."); William Van Alstyne, Rights of Passage: Race, the Supreme Court, and the Constitution, 46 U. CHI. L. REV. 775, 809-10 (1979) ("[O]ne gets beyond racism by getting beyond it now: by a complete, resolute, and credible commitment never to tolerate in one's own life - or in the life or practices of one's government - the differential treatment of other human beings by race."). For a critique of this banned categories conception, see Neil Gotanda, A Critique of "Our Constitution Is Color-Blind", 47 STAN. L. REV. 1 (1991).
94. For a more direct critique of Dworkin's argument, see, for example, Luke C. Harris & Uma Narayan, Affirmative Action and the Myth of Preferential Treatment: A Transformative Critique of the Terms of the Affirmative Action Debate, 11 HARV. BLACKLETTER L.J. 1, 26-29 (1994).
95. DWORKIN, A MATTER OF PRINCIPLE, supra note 7, at 294.
96. See id. at 297.
97. See UNITED STATES COMMISSION ON CIVIL RIGHTS, CIVIL RIGHTS ISSUES FACING ASIAN AMERICANS IN THE 1990s 13, 15 (1992) [hereinafter CIVIL RIGHTS ISSUES].
98. For example, the 1994 entering class of the University of California at Los Angeles consisted of 43.2% Asian Americans. See Letter from Don Nakanishi, Director of UCLA Asian American Studies Center, to Faculty Advisory Committee 3 (Oct. 10, 1994). Asian Americans were also the largest racial group of the 1994 entering classes at University of California campuses at Berkeley, Irvine, and Riverside. See id. At Stanford, the percentage of Asian Americans in the 1994 entering class is 24%. See Stanford University Public Affairs, Stanford Facts (1994) (brochure). Yale's 1995 incoming class is 16.7% Asian American. See Undergraduate Admissions and Financial Aid Profile of the Class of 1999, ALUMNI SCH. COMMITTEE NEWSL. (Alumni Sch. Comm., Yale Univ., New Haven, Conn.), Sept. 1995, at 6-7.
99. As a matter of positive law, negative action specifically directed against Asian Americans is likely illegal because it explicitly disadvantages a racial minority. See Civil Rights Act of 1964, Title VI, § 601, 42 U.S.C. § 2000d (1988); Strauder v. West Virginia, 100 U.S. 303 (1879) (invalidating race-specific classifications that explicitly disadvantage racial minorities). See generally Tsuang, supra note 17.
100. See ELY, supra note 56, at 161 ("Increased social intercourse is likely not only to diminish the hostility that often accompanies unfamiliarity, but also to rein somewhat our tendency to stereotype in ways that exaggerate the superiority of those groups to which we belong. The more we get to know people who are different in some ways, the more we will begin to appreciate the ways in which they are not, which is the beginning of political cooperation.") (footnotes omitted).
101. Indeed, if we must have a baseline, why should it not be calculated state-by-state? See Paul Ong & Suzanne J. Hee, Economic Diversity, in THE STATE OF ASIAN PACIFIC AMERICA: ECONOMIC DIVERSITY, ISSUES AND POLICIES 31, 33-34 (Paul Ong ed., 1994) (noting that Los Angeles, San Francisco, Oakland, and New York house nearly 30% of all Asian Pacific Americans); CIVIL RIGHTS ISSUES, supra note 66, at 15 (presenting data that "[a]lthough only 19 percent of the general U.S. population lived in the West in 1980, 56% of the Asian American population did"). Universities might also establish a baseline as indicated by the racial make-up of the applicant pool. See Don Nakanishi, supra note 17, at 280 (explaining how the statistic of 20% Asian Americans in the 1987 Berkeley entering class suggests "overrepresentation" as compared with national or state population, but not as compared with the fact that 30.8% of the applicants to Berkeley were Asian American); cf. David B. Davis, The Other Zion: American Jews and the Meritocratic Experiment, NEW REPUBLIC, Apr. 12, 1993, at 29. 30 ("Anti-semites have long exploited the notion that representation should be roughly proportional to the general population.").
102. Indeed, if we must have a baseline, why should it not be calculated state-by-state? See Paul Ong & Suzanne J. Hee, Economic Diversity, in THE STATE OF ASIAN PACIFIC AMERICA: ECONOMIC DIVERSITY, ISSUES AND POLICIES 31, 33-34 (Paul Ong ed., 1994) (noting that Los Angeles, San Francisco, Oakland, and New York house nearly 30% of all Asian Pacific Americans); CIVIL RIGHTS ISSUES, supra note 66, at 15 (presenting data that "[a]lthough only 19 percent of the general U.S. population lived in the West in 1980, 56% of the Asian American population did"). Universities might also establish a baseline as indicated by the racial make-up of the applicant pool. See Don Nakanishi, supra note 17, at 280 (explaining how the statistic of 20% Asian Americans in the 1987 Berkeley entering class suggests "overrepresentation" as compared with national or state population, but not as compared with the fact that 30.8% of the applicants to Berkeley were Asian American); cf. David B. Davis, The Other Zion: American Jews and the Meritocratic Experiment, NEW REPUBLIC, Apr. 12, 1993, at 29. 30 ("Anti-semites have long exploited the notion that representation should be roughly proportional to the general population.").
103. Indeed, if we must have a baseline, why should it not be calculated state-by-state? See Paul Ong & Suzanne J. Hee, Economic Diversity, in THE STATE OF ASIAN PACIFIC AMERICA: ECONOMIC DIVERSITY, ISSUES AND POLICIES 31, 33-34 (Paul Ong ed., 1994) (noting that Los Angeles, San Francisco, Oakland, and New York house nearly 30% of all Asian Pacific Americans); CIVIL RIGHTS ISSUES, supra note 66, at 15 (presenting data that "[a]lthough only 19 percent of the general U.S. population lived in the West in 1980, 56% of the Asian American population did"). Universities might also establish a baseline as indicated by the racial make-up of the applicant pool. See Don Nakanishi, supra note 17, at 280 (explaining how the statistic of 20% Asian Americans in the 1987 Berkeley entering class suggests "overrepresentation" as compared with national or state population, but not as compared with the fact that 30.8% of the applicants to Berkeley were Asian American); cf. David B. Davis, The Other Zion: American Jews and the Meritocratic Experiment, NEW REPUBLIC, Apr. 12, 1993, at 29. 30 ("Anti-semites have long exploited the notion that representation should be roughly proportional to the general population.").
104. See generally SUCHENG CHAN, ASIAN AMERICANS: AN INTERPRETIVE HISTORY 54-56 (1991) (summarizing discriminatory immigration laws restricting entry of Chinese, Japanese. Koreans. Asian Indians, and Filipinos into the United States). Only after 1965 did the United States eliminate national origin quotas and begin accepting significant numbers of Asian immigrants. See id. at 145-46.
105. Indeed, any baseline presents the danger of locking in the effects of past discrimination. For example, if the baseline were the racial make-up of high school graduates who applied to a particular university, it may be seen as sanctioning historical discrimination against racial minorities who have lower graduation and application rates in part because of past discrimination. Cf. Griggs v. Duke Power Co., 401 U.S. 424, 430 (1971).
106. See Matsuda, supra note 15, at 6: When university administrators have secret quotas to keep down Asian admissions, this is because Asians are seen as destroying the predominantly white character of the university. Under this mentality, we can't let in all those Asian over-achievers AND maintain affirmative action for other minority groups. We can't do both because that will mean either that our universities lose their predominantly white character, or that we have to fund more and better universities. To either of those prospects, I say so what?
107. See Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 CAL. L. REV. 1242, 1264 & n.104 (1993) (noting selective targeting of Korean American establishments by L.A. rioters).
108. See Bill Ong Hing, Beyond the Rhetoric of Assimilation and Cultural Pluralism: Addressing the Tension of Separatism and Conflict in an Immigration-Driven Multiracial Society, 81 CAL. L. REV. 863, 889, 912 (1993) (noting interracial conflicts between Asian Americans and other racial minorities).
109. See Amici Brief of Columbia University, Harvard University, Stanford University, and the University of Pennsylvania at 13, Regents of the University of California v. Bakke, 438 U.S. 265 (1978) (claiming that an independently compelling goal of affirmative action is "diversifying the leadership of our pluralistic society").
110. For detailed explanation of the word "prejudice," see supra note 56.
111. See Strauss, supra note 51, at 109 ("The facts might be such that a government decision maker wholly lacking in any racial bias would rationally choose an explicitly racial criterion as a means of achieving some legitimate objective.")
112. See DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 7, at 237-38.
113. Cf. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265. 400 (1978) (Marshall, J.) (explaining the unique plight of American Blacks).
114. See Brest, supra note 46: Bunzel & Au, Asian Difference, supra note 17, at 465-68 (giving examples of Asian American stereotypes used by admissions officers); John Hart Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. CHI. L. REV. 723, 731 (1974): The fact that a group has repeatedly been disadvantaged in ways that no one could rationally defend should make us suspicious of any legislation that singles out that group for disadvantage. There is reason to suspect that the prejudices which generated the plainly irrational legislation of past eras are also partly responsible for the more facially palatable classifications of the present day.
115. See Brest, supra note 46: Bunzel & Au, Asian Difference, supra note 17, at 465-68 (giving examples of Asian American stereotypes used by admissions officers); John Hart Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. CHI. L. REV. 723, 731 (1974): The fact that a group has repeatedly been disadvantaged in ways that no one could rationally defend should make us suspicious of any legislation that singles out that group for disadvantage. There is reason to suspect that the prejudices which generated the plainly irrational legislation of past eras are also partly responsible for the more facially palatable classifications of the present day.
116. See Tsuang, supra note 17, at 672 n.92 ("Harvard no longer uses Overrepresentation' to reduce its 25-33% Jewish student population down to the 3% that Jews represent in the general population, nor does it limit the numbers of alumni children to their overall national representation.")
117. A clarification in nomenclature is warranted here. Such limiting of opportunities for Whites does not qualify as "negative action" within my definition since the treatment of Whites is the very basis for comparison. Of course, even though this limiting of opportunities is not called negative action, it is indisputable that affirmative action programs negatively affect White applicants.
118. See generally Bruce L. Ackerman, Integration for Subsidized Housing and the Question of Racial Occupancy Controls, 26 STAN. L. REV. 245, 297 (1974) (advocating a balancing test to determine the validity of integration quotas). See id. at 309.
119. See, e.g., Clark v. Board of Educ., 705 F.2d 265 (8th Cir. 1983) (approving integration quota in schools); Parent Ass'n. v. Ambach, 598 F.2d 705 (2d Cir. 1979) (same); Otero v. New York City Hous. Auth., 484 F.2d 1122 (2d Cir. 1973) (approving housing integration quota).
120. See Harold Johnson, Model Victims, NAT'L REV., July 20, 1992, at W7 (describing that Department of Education investigators "announced that UCLA had indeed given illegal preference to whites over Asians in admissions to its mathematics grad programs").
121. Brown University adopted a historically determined upper quota for Asian American students. See CIVIL RIGHTS ISSUES, supra note 66, at 112. Brown conceded that there was unfairness toward Asian American applicants. See Bunzel & Au, Asian Difference, supra note 17, at 461; see also Winerip, supra note 12, at B1.
122. Brown University adopted a historically determined upper quota for Asian American students. See CIVIL RIGHTS ISSUES, supra note 66, at 112. Brown conceded that there was unfairness toward Asian American applicants. See Bunzel & Au, Asian Difference, supra note 17, at 461; see also Winerip, supra note 12, at B1.
123. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 520 (1989) (Scalia, J., concurring in judgment).
124. See, e.g., Fried, supra note 53, at 109-10 n.15; Morris B. Abram, Commentary, Affirmative Action: Fair Shakers and Social Engineers, 99 HARV. L. REV. 1312, 1313 (1986) (decrying affirmative action proponents as social engineers who demand an equality of results).
125. See RAWLS, supra note 25, at 20-21, 48-50.
126. See, e.g., CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 338-46 (1993); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 16-21, at 1515-21 (2d ed. 1988); Owen M. Fiss, Groups and the Equal Protection Clause, in EQUALITY AND PREFERENTIAL TREATMENT 85 (Marshall Cohen, Thomas Nagel, & Thomas Scanlon, eds. 1977); Ruth Colker, Anti-Subordination above All: Sex, Race, and Equal Protection, 61 N.Y.U. L. REV. 1003, 1010 n.18 (1986); Lawrence, supra note 56; Todd Rakoff, Washington v. Davis and the Objective Theory of Contracts, 29 HARV. C.R.-C.L. L. REV. 63, 70-71 (1994).
127. See, e.g., CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 338-46 (1993); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 16-21, at 1515-21 (2d ed. 1988); Owen M. Fiss, Groups and the Equal Protection Clause, in EQUALITY AND PREFERENTIAL TREATMENT 85 (Marshall Cohen, Thomas Nagel, & Thomas Scanlon, eds. 1977); Ruth Colker, Anti-Subordination above All: Sex, Race, and Equal Protection, 61 N.Y.U. L. REV. 1003, 1010 n.18 (1986); Lawrence, supra note 56; Todd Rakoff, Washington v. Davis and the Objective Theory of Contracts, 29 HARV. C.R.-C.L. L. REV. 63, 70-71 (1994).
128. See, e.g., CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 338-46 (1993); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 16-21, at 1515-21 (2d ed. 1988); Owen M. Fiss, Groups and the Equal Protection Clause, in EQUALITY AND PREFERENTIAL TREATMENT 85 (Marshall Cohen, Thomas Nagel, & Thomas Scanlon, eds. 1977); Ruth Colker, Anti-Subordination above All: Sex, Race, and Equal Protection, 61 N.Y.U. L. REV. 1003, 1010 n.18 (1986); Lawrence, supra note 56; Todd Rakoff, Washington v. Davis and the Objective Theory of Contracts, 29 HARV. C.R.-C.L. L. REV. 63, 70-71 (1994).
129. See, e.g., CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 338-46 (1993); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 16-21, at 1515-21 (2d ed. 1988); Owen M. Fiss, Groups and the Equal Protection Clause, in EQUALITY AND PREFERENTIAL TREATMENT 85 (Marshall Cohen, Thomas Nagel, & Thomas Scanlon, eds. 1977); Ruth Colker, Anti-Subordination above All: Sex, Race, and Equal Protection, 61 N.Y.U. L. REV. 1003, 1010 n.18 (1986); Lawrence, supra note 56; Todd Rakoff, Washington v. Davis and the Objective Theory of Contracts, 29 HARV. C.R.-C.L. L. REV. 63, 70-71 (1994).
130. Kenneth L. Karst, Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 4 (1977). See generally KENNETH L. KARST, BELONGING TO AMERICA (1989) [hereinafter KARST, BELONGING TO AMERICA].
131. Kenneth L. Karst, Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 4 (1977). See generally KENNETH L. KARST, BELONGING TO AMERICA (1989) [hereinafter KARST, BELONGING TO AMERICA].
132. Id. at 6.
133. 100 U.S. 303 (1879).
134. Id. at 308.
135. 347 U.S. 483 (1954). Brown is commonly understood to have affirmed the "color-blind" principle, Dworkin's banned categories conception of the right against racial discrimination. But as Professor Randall Kennedy has explained, in the 1950s and 1960s, racial classifications were used to subjugate Blacks. As such, it made strategic sense for civil rights advocates to argue in favor of a colorblind Constitution. Moreover, "initially neither civil rights leaders nor the Supreme Court really knew what racial equality would entail . . . ." Kennedy, supra note 23, at 1335 n.32. Many scholars now argue that "the concept of race-blindness was simply a proxy for the fundamental demand that racial subjugation be eradicated." Id. at 1335.
136. 163 U.S. 537 (1896).
137. Brown, 347 U.S. at 495.
138. See Kennedy, supra note 23, at 1341 n.49.
139. See TRIBE, supra note 91, § 16-15, at 1477.
140. 403 U.S. 217 (1971).
141. Id. at 229 (Blackmun, J., concurring).
142. Id. at 241.
143. Id.
144. 438 U.S. 265 (1978).
145. Id. at 325 (Brennan, White, Marshall, and Blackmun, JJ., concurring in part and dissenting in part).
146. Id. at 357-58.
147. Id. at 361. The Court has recognized stigma as a dispositive element in many other cases. See. e.g., Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 601 (1990) (Stevens, J., concurring); New York City Transit Auth. v. Beazer, 440 U.S. 568, 592 (1979) (upholding employment policy because it implied no "disrespect" for the excluded group); United Jewish Org. v. Carey, 430 U.S. 144, 165 (1977) (upholding state plan which "represented no racial slur or stigma with respect to [W]hites or any other race").
148. In using the word "right," I do not mean to say that this is an absolute right that society categorically may not infringe, in any circumstance, regardless of consequences. Few, if any, such rights exist. As will be made clear shortly, this right is secured by requiring the appropriate level of Equal Protection scrutiny of governmental practices.
149. The banned meanings conception, in its use of an objective social meaning construct, resembles a seminal theory advanced by Charles Lawrence. See Lawrence, supra note 56. Lawrence argues that current Equal Protection doctrine's quest to discover conscious racism is fundamentally misconceived because racism exists beneath self-awareness. Since "the 'cultural meaning' of an allegedly racially discriminatory act is the best available analogue for, and evidence of, a collective unconscious that we cannot observe directly," Lawrence proposes a test that would "evaluate governmental conduct to determine whether it conveys a symbolic message to which the culture attaches racial significance. A finding that the culture thinks of an allegedly discriminatory governmental action in racial terms would also constitute a finding regarding the beliefs and motivations of the governmental actors." Id. at 324. The banned meanings conception differs from Lawrence's theory in that he uses an objective social meaning approach to ask a different question and then infer a different conclusion. Whereas he asks whether the "cultural meaning" of a challenged practice involves race in any sense. I ask more narrowly whether the objective social meaning is that the people burdened are properly the object of prejudice. Whereas Lawrence infers from the fact that the culture attaches racial significance to governmental conduct as evidence of unconscious racism. I infer nothing about the psychological states of state actors. Instead, my inference is moral and political, not psychological. My point is that because transmitting such a message risks treating those burdened not as equals - regardless of the existence of conscious or unconscious racism - such a practice should be strictly scrutinized. This banned meanings conception further draws upon ideas articulated by Todd Rakoff. See Rakoff, supra note 91. Rakoff argues that Equal Protection doctrine's focus on discriminatory intent is misplaced. When one examines the actual subjective intent of legislators, one finds that the reason they passed any piece of legislation is due to various constituent pressures. Thus, instead of looking at intent, Rakoff suggests looking at the social meaning of an official action, which better gauges the complex of forces in democratic politics that led to the law's passage. Since different parties may have different subjective understandings of an official action, Rakoff draws from the objective theory of contract interpretation, and "adopts as its arbiter the understanding of the external witness." Id. at 77. My theory most differs from Rakoff's in its use of objectivity. I assume that an "objective" view cannot be reached without first empathizing with the various relevant "subjective" views. Rakoff, however, locates objective meaning in some neutral, disinterested perspective - borrowed from the well-established law of contracts - that does not meaningfully involve the perspectives of the particular parties. See id. at 85.
150. See supra note 56.
151. Cf. Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concurring) ("Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.") (emphasis added).
152. THOMAS NAGEL, THE VIEW FROM NOWHERE 5 (1986) (emphasis added).
153. See Sandra Harding, After the Neutrality Ideal: Science, Politics, and "Strong Objectivity," 59 Soc. RES. 567, 570 (1992); Martha Minow, Foreword: Justice Engendered 101 HARV. L. REV. 10, 74-75 (1987).
154. See Sandra Harding, After the Neutrality Ideal: Science, Politics, and "Strong Objectivity," 59 Soc. RES. 567, 570 (1992); Martha Minow, Foreword: Justice Engendered 101 HARV. L. REV. 10, 74-75 (1987).
155. See Harding, supra note 114, at 570-72.
156. Cf. Lynne N. Henderson, Legality and Empathy, 85 MICH. L. REV. 1574, 1579 (1987) ("[Empathy is] understanding the experience or situation of another, both affectively and cognitively, often achieved by imagining oneself to be in the position of the other.").
157. Cf. Ruth Colker, Anti-Subordination Above All: Sex, Race, and Equal Protection, 61 N.Y.U. L. REV. 1003, 1010 n.18 (1986) (advocating an antisubordination conception of equal protection that focuses on what minority groups hear, not on what government intends). Colker argues that although open, illicit motivation by the government may be sufficient to invalidate the law under an antisubordination principle, it is not always necessary. See id.
158. 465 U.S. 668 (1984).
159. Id. at 690 (O'Connor, J., concurring).
160. See id. ("The meaning of a statement to its audience depends both on the intention of the speaker and on the Objective' meaning of the statement in the community."); cf. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 632-33 (1943) ("A person gets from a symbol the meaning he puts into it . . . ."); William P. Marshall, "We Know it When We See It": The Supreme Court and Establishment, 59 S. CAL. L. REV. 495, 533 (1986) (noting that the meaning of symbol depends on the interpretive community).
161. See Kennedy, supra note 23, at n.49 (describing the difference in reactions of a Black person to being called "nigger" by a Black friend or by a White stranger).
162. See id. at 1341; Lawrence, supra note 56, at 352 ("If stigmatizing actions injure by virtue of the meaning society gives them, then it should be apparent that the evil intent of their authors, while perhaps sufficient, is not necessary to the infliction of the injury."); cf. DWORKIN, LAW'S EMPIRE, supra note 7, at 58 (arguing that intention provides at least the formal structure for interpretive claims). But see Steven D. Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the "No Endorsement" Test, 86 MICH. L. REV. 266, 294 (1987) (arguing in the establishment context that the objective meaning of a governmental practice depends solely on the subjective intent of lawmakers).
163. See id. at 1341; Lawrence, supra note 56, at 352 ("If stigmatizing actions injure by virtue of the meaning society gives them, then it should be apparent that the evil intent of their authors, while perhaps sufficient, is not necessary to the infliction of the injury."); cf. DWORKIN, LAW'S EMPIRE, supra note 7, at 58 (arguing that intention provides at least the formal structure for interpretive claims). But see Steven D. Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the "No Endorsement" Test, 86 MICH. L. REV. 266, 294 (1987) (arguing in the establishment context that the objective meaning of a governmental practice depends solely on the subjective intent of lawmakers).
164. 163 U.S. 537 (1896).
165. Charles Black, The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421, 427 (1960).
166. See Plessy, 163 U.S. at 551 (1896) (arguing that if a badge of inferiority attaches to Blacks, it is not due to the act itself, but to their interpretation of it).
167. See Henderson, supra note 1 16, at 1576 ("Empathy aids both processes of discovery - the procedure by which a judge or other legal decisionmaker reaches a conclusion - and processes of justification - the procedure used by a judge or other decisionmaker to justify the conclusion - in a way that disembodied reason simply cannot.").
168. See Marshall, supra note 120, at 539 (describing the symbolic value of jurisprudence and how court decisions help form society's expectations).
169. See Memphis v. Green. 451 U.S. 100, 153 (1981) (Marshall, J., dissenting) ("[I]t defies the lessons of history and the law to assert that if the harm is only symbolic, then the federal courts cannot recognize it.").
170. This two-step procedure is fleshed out in greater detail, not only in the doctrinal section below, but also in part IV, which applies this procedure to the negative action portion of the "Look Like America" diversity program. See infra text accompanying notes 171-202.
171. Cf. Lawrence, supra note 56, at 358 (noting the use of a "cultural meaning" test in Establishment Clause cases). This analogy has been noted by various other commentators. See, e.g., Christopher L. Eisgruber, Political Unity and the Powers of Government, 41 UCLA L. REV. 1297, 1302 (1994) (advancing a political unity principle that prohibits the creation of religious and racial factions); Gary C. Leedes, Rediscovering the Link Between the Establishment Clause and the Fourteenth Amendment: The Citizenship Declaration, 26 IND. L. REV. 469, 514 (1993); Rakoff. supra note 91, at 90.
172. Cf. Lawrence, supra note 56, at 358 (noting the use of a "cultural meaning" test in Establishment Clause cases). This analogy has been noted by various other commentators. See, e.g., Christopher L. Eisgruber, Political Unity and the Powers of Government, 41 UCLA L. REV. 1297, 1302 (1994) (advancing a political unity principle that prohibits the creation of religious and racial factions); Gary C. Leedes, Rediscovering the Link Between the Establishment Clause and the Fourteenth Amendment: The Citizenship Declaration, 26 IND. L. REV. 469, 514 (1993); Rakoff. supra note 91, at 90.
173. Corporation of the Presiding Bishop of the Church of Jesus Christ of the Latter Day Saints v. Amos, 483 U.S. 327, 348 (1987) (O'Connor, J., concurring) (emphasis added); see also Allegheny County v. American Civil Liberties Union, 492 U.S. 573, 628 (1989) ("[T]he endorsement test asks the right question about governmental practices challenged on Establishment Clause grounds, including challenged practices involving the display of religious symbols . . . ."); Thorton v. Caldor, Inc., 472 U.S. 703, 711 (1985) (O'Connor, J., concurring) ("There can be little doubt that an objective observer or the public at large would perceive this statutory scheme precisely as the Court does today.") (emphasis added).
174. Lynch v. Donnelly, 465 U.S. 668, 694 (1984) (O'Connor, J., concurring) (emphasis added); see also Employment Div. v. Smith, 494 U.S. 872, 886 n.3 (1990) (holding that the same level of exacting scrutiny applies to classifications based on race as to those based on religion).
175. See Lynch, 465 U.S. at 687-88 (O'Connor, J., concurring) (arguing that endorsement brands adherents as insiders and nonadherents as outsiders of the political community); see also Arnold H. Loewy, Rethinking Government Neutrality Towards Religion Under the Establishment Clause: The Untapped Potential of Justice O'Connor's Insight, 64 N.C. L. REV. 1049, 1050 (1986).
176. Neil Gotanda has intriguingly explored the analogies between the Religion Clauses of the First Amendment and the Equal Protection Clause. Gotanda argues that individuals should have the right to exercise freely the cultural aspects of race. He further argues that government may not establish one race as superior over all others. See Gotanda, supra note 62, at 67.
177. See Capitol Sq. Review Bd. v. Pinette, 115 S. Ct. 2440, 2450 n.3 (1995) (Scalia, J.) (criticizing expansive application of the endorsement test by noting uncertainty "whether the hypothetical beholder who will be the determinant of 'endorsement' should be any beholder (no matter how unknowledgeable). or the average beholder, or (what Justice Stevens accuses the concurrence of favoring) the 'ultra-reasonable' beholder").
178. See, e.g., Palmore v. Sidoti, 466 U.S. 429 (1984).
179. See, e.g., Craig v. Boren, 429 U.S. 190 (1976).
180. See, e.g., Williamson v. Lee Optical of Okla., 348 U.S. 483 (1955).
181. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954) (holding that classifications based solely on race are constitutionally suspect because they violate our traditions); Korematsu v. United States, 323 U.S. 214, 216 (1944) (holding that all legal restrictions that curtail the civil rights of a racial group are subject to "the most rigid scrutiny"). The other track-determining variable is whether the governmental practice burdens a fundamental right. See, e.g., Shapiro v. Thompson, 394 U.S. 618 (1969) (travel); Levy v. Louisiana, 391 U.S. 68 (1968) (parent-child relationship); Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) (voting); Fiss, supra note 44, at 90.
182. 426 U.S. 229 (1976).
183. Washington v. Davis, 426 U.S. 229, 242 (1976) (holding that proof of racially discriminatory intent is required to show violation of the Equal Protection Clause). Moreover, "'[d]iscriminatory purpose' . . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (citation and footnote omitted).
184. Under the banned meanings conception, the question of whether a suspect classification exists is answered by judge, not jury. This approach is analogous to the judge's determination of whether endorsement exists under Justice O'Connor's theory of the Establishment Clause. See Lynch v. Donnelly, 465 U.S. 668, 693-94 (1984) (O'Connor, J., concurring).
185. See Minow, supra note 114, at 14, 51, 58-59.
186. Id. at 59-60 (quoting Brief for the Plaintiff, Plessy v. Ferguson, 163 U.S. 537 (1896), reprinted in CIVIL RIGHTS AND THE AMERICAN NEGRO 298, 303-04 (Albert Blaustein & Robert Zangrando eds., 1968)).
187. See, e.g., Ellison v. Brady, 924 F.2d. 872 (9th Cir. 1991). Recently, the Supreme Court avoided addressing the reasonable woman standard head-on. In Harris v. T.G. Forklift Sys., 114 S. Ct. 367 (1993), the Court acknowledged that the district court applied a reasonable woman standard but used the locution a "reasonable person" instead of a "reasonable woman" in its own analysis. See id. at 370.
188. 473 U.S. 432 (1985).
189. Id. at 455 (Stevens, J., concurring) (emphasis added).
190. Cf. Harding, supra note 114, at 585 ("Starting thought from lives other than one's own should not be a controversial idea since it is presumably the goal of a good part of the educational process. Students are expected to be able to understand how the world looked by starting their thought from the objective historical conditions in which lived Aristotle, Galileo, Shakespeare, and other thinkers whose ideas are often 'alien and possibly repugnant' to many of these students.").
191. For other examples of empathic reasoning in the Supreme Court, see generally Henderson, supra note 116, at 1593-1638.
192. See, e.g., Judicial Diversity, ST. Louis POST-DISPATCH, Oct. 16, 1994, at 4B (reporting that in fall 1994, the federal bench remained exclusively male in 15 states and exclusively White in 26 states).
193. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 294 n.34 (1978) (Powell, J.) (citations omitted).
194. See Fiss, supra note 44, at 152.
195. See International Shoe Co. v. Washington, 326 U.S. 310 (1945).
196. DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 7, at 231 (emphasis added).
197. Cf. Harding, supra note 114, at 583 ("Listening carefully to what marginalized people say - with fairness, honesty, and detachment - and trying to understand their life worlds are crucial first steps in gaining less partial and distorted accounts of the entire social order; but these could not be the last step.").
198. 451 U.S. 100 (1981).
199. Id. at 128.
200. Id.
201. Id. at 147 (Marshall, J., dissenting).
202. See generally DWORKIN, LAW'S EMPIRE, supra note 7, at 82 (calling such skepticism "external" and concluding that it "cannot threaten any interpretive project").
203. See Rakoff, supra note 91, at 85 (describing society as characterized by multiple, only partially overlapping, points of view that "vary more in their wider claims than they do in their reasoned evaluation of the evidence presented in particular cases").
204. Cf. Capitol Sq. Review and Adv. Bd. v. Pinette, 115 S. Ct. 2440, 2466 (1995) (Stevens, J., dissenting) (arguing that someone who interpreted the presence of an exotic cow at the zoo as a symbol of the government's approval of the Hindu religion would be clearly unreasonable under the endorsement test).
205. See generally KARST, BELONGING TO AMERICA, supra note 92, at 236 ("No useful legal system, and no principle of law that matters, can eliminate judgment from the process of judging.").
206. A finding of discriminatory intent, while superficially a finding of a "bald fact," necessarily involves an exercise in judgment in hard cases. See Rakoff, supra note 91, at 91; cf. Edwards v. Aguillard, 482 U.S. 578, 638 (1987) (Scalia, J., dissenting) ("[T]his Court has [long] recognized [that] determining the subjective intent of legislators is a perilous enterprise."); Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 265 (1977). See generally Paul Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive, 1971 SUP. CT. REV. 95 (1971); John Hart Ely, Legislative and Administrative Motivation in Constitutional Law, 79 YALE L.J. 1205 (1970) (describing difficulties of finding discriminatory intent); Note, Reading the Mind of the School Board: Segregative Intent and the De Facto/De Jure Distinction, 86 YALE L.J. 317, 322 n.29 (1976) (discussing the problems of institutional intent).
207. A finding of discriminatory intent, while superficially a finding of a "bald fact," necessarily involves an exercise in judgment in hard cases. See Rakoff, supra note 91, at 91; cf. Edwards v. Aguillard, 482 U.S. 578, 638 (1987) (Scalia, J., dissenting) ("[T]his Court has [long] recognized [that] determining the subjective intent of legislators is a perilous enterprise."); Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 265 (1977). See generally Paul Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive, 1971 SUP. CT. REV. 95 (1971); John Hart Ely, Legislative and Administrative Motivation in Constitutional Law, 79 YALE L.J. 1205 (1970) (describing difficulties of finding discriminatory intent); Note, Reading the Mind of the School Board: Segregative Intent and the De Facto/De Jure Distinction, 86 YALE L.J. 317, 322 n.29 (1976) (discussing the problems of institutional intent).
208. A finding of discriminatory intent, while superficially a finding of a "bald fact," necessarily involves an exercise in judgment in hard cases. See Rakoff, supra note 91, at 91; cf. Edwards v. Aguillard, 482 U.S. 578, 638 (1987) (Scalia, J., dissenting) ("[T]his Court has [long] recognized [that] determining the subjective intent of legislators is a perilous enterprise."); Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 265 (1977). See generally Paul Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive, 1971 SUP. CT. REV. 95 (1971); John Hart Ely, Legislative and Administrative Motivation in Constitutional Law, 79 YALE L.J. 1205 (1970) (describing difficulties of finding discriminatory intent); Note, Reading the Mind of the School Board: Segregative Intent and the De Facto/De Jure Distinction, 86 YALE L.J. 317, 322 n.29 (1976) (discussing the problems of institutional intent).
209. See Dershowitz & Hanft, supra note 11, at 387-93.
210. See id. at 393.
211. The banned meanings conception avoids many of the problems of motivational scrutiny because the conception embraces a thoroughly interpretive methodology that seeks less to discover the true, secret motivations of the state actor and more to interpret a social text whose objective meaning is socially constructed and thereby knowable.
212. Again, Justice O'Connor's insights in Establishment Clause jurisprudence argue in favor of recognizing that the political status of individuals can be affected, that borders between insiders and outsiders can be drawn in intricate ways: "[T]he Establishment Clause forbids a State from hiding behind the application of formally neutral criteria and remaining studiously oblivious to the effects of its actions. Governmental intent cannot control, and not all state policies are permissible under the Religion Clauses simply because they are neutral in form." Capital Sq. Review and Adv. Bd. v. Pinette, 115 S. Ct. 2440, 2454 (1995).
213. Karst, supra note 92, at 8.
214. To mask the tragedy of choice by taking refuge in rules does not negate the tragedy. Empathy cannot necessarily tell us what to do or how to accomplish something, but it does alert us to moral choice and responsibility. It also reminds us of our common humanity and responsibility to one another. We could do worse - indeed we have done worse - than to employ the knowledge empathy imparts to us. Henderson, supra note 116, at 1653.
215. See generally Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 267-68 (1977) (identifying historical background, including legislative and administrative history, as relevant to an inquiry of invidious discriminatory purpose).
216. See supra note 71; Chew, supra note 17, at 12-13; Chang, supra note 74, at 1289-1300.
217. See Anti-Asian Violence: Oversight Hearing Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 100th Cong., 1st Sess. 65 (1987) [hereinafter Hearings on Anti-Asian Violence] (statement of Floyd Shimomura, Japanese American Citizens League) ("Over 600 pieces of legislation directed against persons of Asian ancestry were enacted between the late 1800s and the early 1900s.").
218. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886) (holding selective enforcement of laundry licensing restrictions a violation of the Equal Protection Clause of the Fourteenth Amendment).
219. See, e.g., People v. Hall, 4 Cal. 399, 404-05 (1854) (describing the Chinese in America) ("The anomalous spectacle of a distinct people, living in our community . . . whose mendacity is proverbial; a race of people whom nature has marked as inferior, . . . and who are incapable of progress or intellectual development beyond a certain point, as their history has shown; differing in language, opinions, color, and physical conformation.").
220. See, e.g., Charles J. McClain, In Re Lee Sing: The First Residential-Segregation Case, 3 W.L. HIST. 179, 179 (1990) (describing "the first attempt by an American municipality to segregate its inhabitants [Chinese residents and businessmen] on the basis of race"); Edwin E. Ferguson, The California Alien Land Law and the Fourteenth Amendment, 35 CAL. L. REV. 61, 61 (1947) (arguing against the constitutionality of a law that denied "aliens ineligible for citizenship the right to own, lease, or otherwise enjoy land, except to the extent provided by treaty").
221. See, e.g., Charles J. McClain, In Re Lee Sing: The First Residential-Segregation Case, 3 W.L. HIST. 179, 179 (1990) (describing "the first attempt by an American municipality to segregate its inhabitants [Chinese residents and businessmen] on the basis of race"); Edwin E. Ferguson, The California Alien Land Law and the Fourteenth Amendment, 35 CAL. L. REV. 61, 61 (1947) (arguing against the constitutionality of a law that denied "aliens ineligible for citizenship the right to own, lease, or otherwise enjoy land, except to the extent provided by treaty").
222. See, e.g., Gong Lum v. Rice, 275 U.S. 78 (1927) (approving of "separate but equal" education for Asian Americans).
223. See, e.g., Recent Decision, Marriage: Miscegenation, 22 CAL. L. REV. 116 (1933) (describing California statute proscribing the issuance of marriage licenses between Whites and "Mongolians").
224. See Chew, supra note 17, at 9-10; CIVIL RIGHTS ISSUES, supra note 66, at 7. For a brief list of state endorsed discrimination against Asian Americans, see Tsuang, supra note 17, at 666 n.51. See also Charles J. McClain & Laurene Wu McClain, The Chinese Contribution to the Development of American Law, in ENTRY DENIED: EXCLUSION AND THE CHINESE COMMUNITY IN AMERICA, 1882-1943 3, 3-24 (Sucheng Chan ed., 1991) (describing Chinese American litigation against discriminatory state action).
225. See Chew, supra note 17, at 9-10; CIVIL RIGHTS ISSUES, supra note 66, at 7. For a brief list of state endorsed discrimination against Asian Americans, see Tsuang, supra note 17, at 666 n.51. See also Charles J. McClain & Laurene Wu McClain, The Chinese Contribution to the Development of American Law, in ENTRY DENIED: EXCLUSION AND THE CHINESE COMMUNITY IN AMERICA, 1882-1943 3, 3-24 (Sucheng Chan ed., 1991) (describing Chinese American litigation against discriminatory state action).
226. See Plessy v. Ferguson, 163 U.S. 537, 561 (1896) (Harlan, J., dissenting) ("There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States . . . . I allude to the Chinese race."). Those who wonder whether I am inferring too much from this quotation should consider Neil Gotanda's point that Justice Harlan evinced the same anti-Chinese bias in a subsequent case. In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Court held that a person of Chinese ancestry born on U.S. soil was an American citizen under the plain command of the Fourteenth Amendment. Two Justices, however, disagreed. Justice Harlan joined Justice Fuller's dissent, which argued in part that the inassimilable Chinese "might endanger good order, and be injurious to the public interests . . . ." See id. at 731 (quoting Fong Yue Ting v. United States, 149 U.S. 698, 717 (1893)). See generally Neil Gotanda, "Other Non-Whites" in American Legal History, 85 COLUM. L. REV. 1186, 1189-90 (1985) (reviewing PETER IRONS, JUSTICE AT WAR (1983)).
227. See Plessy v. Ferguson, 163 U.S. 537, 561 (1896) (Harlan, J., dissenting) ("There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States . . . . I allude to the Chinese race."). Those who wonder whether I am inferring too much from this quotation should consider Neil Gotanda's point that Justice Harlan evinced the same anti-Chinese bias in a subsequent case. In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Court held that a person of Chinese ancestry born on U.S. soil was an American citizen under the plain command of the Fourteenth Amendment. Two Justices, however, disagreed. Justice Harlan joined Justice Fuller's dissent, which argued in part that the inassimilable Chinese "might endanger good order, and be injurious to the public interests . . . ." See id. at 731 (quoting Fong Yue Ting v. United States, 149 U.S. 698, 717 (1893)). See generally Neil Gotanda, "Other Non-Whites" in American Legal History, 85 COLUM. L. REV. 1186, 1189-90 (1985) (reviewing PETER IRONS, JUSTICE AT WAR (1983)).
228. As Attorney General for the State of California, Earl Warren testified before the Tolan Committee and recommended the evacuation as a "preventative measure against 'a widespread simultaneous campaign of sabotage' directed at defense installation." After the Hirabayashi case, then-Governor Warren "predicted that the return of Japanese Americans to the West Coast would result in widespread sabotage and 'a second Pearl Harbor in California.'" PETER IRONS, JUSTICE AT WAR 213, 252 (1983).
229. See generally Note, Racial Violence Against Asian Americans, 106 HARV. L. REV. 1926, 1930-33 (1993) (identifying five current stereotypes of Asian Americans: submissive, model minority, unfair competitors, foreigners, and fungible). On the stereotype of "foreigners," see Margaret Chon, On the Need for Asian American Narratives in Law: Ethnic Specimens, Native Informants, Silences and Storytelling, 3 ASIAN PAC. AM. L.J. (forthcoming 1996) (manuscript at 5, April 1995 draft on file with author) ("Even those Asian Americans who can trace their lineage within the borders of the United States for three or four generations frequently experience the conflation of foreigness with otherness, as in the oft-expressed reaction to our presence: 'you speak such good English!'").
230. See generally Note, Racial Violence Against Asian Americans, 106 HARV. L. REV. 1926, 1930-33 (1993) (identifying five current stereotypes of Asian Americans: submissive, model minority, unfair competitors, foreigners, and fungible). On the stereotype of "foreigners," see Margaret Chon, On the Need for Asian American Narratives in Law: Ethnic Specimens, Native Informants, Silences and Storytelling, 3 ASIAN PAC. AM. L.J. (forthcoming 1996) (manuscript at 5, April 1995 draft on file with author) ("Even those Asian Americans who can trace their lineage within the borders of the United States for three or four generations frequently experience the conflation of foreigness with otherness, as in the oft-expressed reaction to our presence: 'you speak such good English!'").
231. See Note, supra note 182, at 1936.
232. See Keith Osajima, Asian Americans as the Model Minority, in REFLECTIONS ON SHATTERED WINDOWS: PROMISES AND PROSPECTS FOR ASIAN AMERICAN STUDIES 171 (Gary Y. Okihiro et al. eds., 1988) (explaining how the increasing number of Asian students threatens White students). See generally DANA Y. TAKAGI, THE RETREAT FROM RACE: ASIAN-AMERICAN ADMISSIONS AND RACIAL POLITICS 58-60 (1992).
233. See Keith Osajima, Asian Americans as the Model Minority, in REFLECTIONS ON SHATTERED WINDOWS: PROMISES AND PROSPECTS FOR ASIAN AMERICAN STUDIES 171 (Gary Y. Okihiro et al. eds., 1988) (explaining how the increasing number of Asian students threatens White students). See generally DANA Y. TAKAGI, THE RETREAT FROM RACE: ASIAN-AMERICAN ADMISSIONS AND RACIAL POLITICS 58-60 (1992).
234. Examples of graffiti strewn on campus walls include: "'Chink, chink, cheating chink!' 'Stop the Yellow Hordes.,' 'Stop the Chinese before they flunk you out.'" RONALD TAKAKI, STRANGERS FROM A DIFFERENT SHORE 479 (1989).
235. See Mari J. Matsuda, Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100 YALE L.J. 1329, 1407 n.86 (1991) (describing anti-Asian incidents at the University of Connecticut and Seattle, Washington); David Arase, Education is Failing Asian-Americans, L.A. TIMES, Mar. 16, 1992, at B5 (describing the altering of a banner that originally read "Asian American Studies Now!" to "Asian Americans Die Now!").
236. See Mari J. Matsuda, Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100 YALE L.J. 1329, 1407 n.86 (1991) (describing anti-Asian incidents at the University of Connecticut and Seattle, Washington); David Arase, Education is Failing Asian-Americans, L.A. TIMES, Mar. 16, 1992, at B5 (describing the altering of a banner that originally read "Asian American Studies Now!" to "Asian Americans Die Now!").
237. See generally Hearings on Anti-Asian Violence, supra note 173, at 13 (statement of Rep. Matsui of California); TAKAKI, supra note 185, at 479 (claiming that increased anti-Asian sentiment accompanies the rise of the model minority stereotype). As another example, at the University of California at Davis, some members of the Asian American community interpreted the murder of an Asian American graduate student as a sign that they "were studying too hard and getting too competitive." Racist leaflets approving the killing appeared soon thereafter. Six months earlier, a group called "White Power" had praised the killing of Thong Hy Huynh, a Vietnamese student at a nearby high school. See Hearings on Anti-Asian Violence, supra note 173, at 58-59 (statement of Floyd Shimomura, Deputy Attorney General of California).
238. See generally Hearings on Anti-Asian Violence, supra note 173, at 13 (statement of Rep. Matsui of California); TAKAKI, supra note 185, at 479 (claiming that increased anti-Asian sentiment accompanies the rise of the model minority stereotype). As another example, at the University of California at Davis, some members of the Asian American community interpreted the murder of an Asian American graduate student as a sign that they "were studying too hard and getting too competitive." Racist leaflets approving the killing appeared soon thereafter. Six months earlier, a group called "White Power" had praised the killing of Thong Hy Huynh, a Vietnamese student at a nearby high school. See Hearings on Anti-Asian Violence, supra note 173, at 58-59 (statement of Floyd Shimomura, Deputy Attorney General of California).
239. In 1922, Harvard's President Abbott Lawrence Lowell took a similar stand and contended that a quota would actually help Jews by reducing anti-Semitic resentment. In less than a decade, new admissions policies enforcing a "silent quota" lowered the number of Jews at Harvard from nearly 22 percent to 10 percent of the student body. Davis, supra note 70, at 31.
240. See Dershowitz & Hanft, supra note 11, at 392; Nakanishi, supra note 17, at 275: To keep a lid on the number of Jewish students - denounced as "damned curve raisers" by less talented classmates - the universities imposed quotas, sometimes overt, sometimes covert . . . . Today's "damned curve raisers" are Asian Americans, who are winning academic prizes and qualifying for prestigious universities in numbers out of proportion to their percentage of the population. And, like Jews before them, the members of the new model minority contend that they have begun to bump up against artificial barriers to their advancement. (quoting Linda Matthews, reporter for L.A. TIMES).
241. See Chew, supra note 17, at 8 n.10 (citing surveys of Whites' beliefs regarding discrimination against Asian Americans); Ong & Hee, supra note 70, at 32-37 (explaining how national statistics of household income overestimate the actual affluence of Asian Americans).
242. See Ong & Hee, supra note 70, at 35 ("Using the official poverty line, 14 percent of the Asian Pacific American population lived in households with an income below the poverty line in 1989.").
243. See, e.g., Neil Gotanda, Asian American Rights and the "Miss Saigon Syndrome", in ASIAN AMERICANS AND THE SUPREME COURT: A DOCUMENTARY HISTORY 1087, 1088 (Hyung-Chan Kim ed., 1992) (labeling the view that Asian Americans face no discrimination as the "Miss Saigon Syndrome").
244. Nearly half of all Americans of Southeast Asian descent live in poverty. See Ong & Hee, supra note 70, at 36-37.
245. See, e.g., Jim Chen, Unloving, 80 IOWA L. REV. 145, 155 (1994) ("What I have written so far should shatter any illusion that American immigrants from Asia respond monolithically to whatever common legacy of discrimination they may share . . . . Looks do not equal voice.").
246. Before attempting this distanced reconciliation, the court may want to enter the perspectives of intervenors and amici. For example, the views of minority groups similarly situated to Asian Americans, such as Jews, may be highly relevant.
247. See Wu, supra note 22, at 229 (explaining that the "Janus-like" nature of model minority images "permits ostensibly 'positive' characteristics to be turned into 'negative' attributes").
248. See Note, supra note 182, at 1931, 1934-36.
249. See Elizabeth Becker, Private Idaho, NEW REPUBLIC, May 4, 1992, at 9.
250. This comparison would not seem too forced given the prominent role of the internment cases in last Term's affirmative action decision. See Adarand Constr. Co. v. Pena, 115 S. Ct. 2097 (1995). The internment is rich with irony. The legal battle against the forced relocations spawned the "suspect classification" doctrine, although it was egregiously misapplied in United States v. Korematsu, 323 U.S. 214 (1944), itself. In dissent, Justice Roberts referred to the relocation centers as "concentration camps" and "prison." Id. at 230 (Roberts, J., dissenting). Justice Murphy flatly called the evacuation orders a fall "into the ugly abyss of racism," id. at 233, supported by mere "half-truths and insinuations," id. at 239, not reasonably related to any imminent danger, id. at 241 (Murphy, J., dissenting).
251. Americans of German and Italian ancestry were not evacuated. See CIVIL RIGHTS ISSUES, supra note 66, at 10; see also Korematsu, 323 U.S. at 243 (Jackson, J., dissenting).
252. Korematsu, 323 U.S. at 216.
253. See generally Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1 (1972). But see Adarand, 115 S. Ct. at 2097. There are two doctrinal hooks that the court could use to invalidate the law. The program could either fail ends-scrutiny because the net utilitarian benefit of negative action would not be compelling or fail means-scrutiny since a program of negative action would not be narrowly tailored to the ends sought.
254. See THOMAS NAGEL, MORTAL QUESTIONS 103 (1979) ("The self-esteem of whites as a group is not endangered by such a practice, since the situation arises only because of their general social dominance . . . ."); Karst, supra note 92, at 52-53.
255. See Adarand, 115 S. Ct. at 2135 (Ginsburg, J., dissenting) (noting the continuing effects of racial caste in "our workplaces, markets, and neighborhoods"); see also John Chandler, Blacks, Latinos Lag Whites in Completing High School, Attending College, L.A. TIMES, Mar. 14, 1995, at A23 (reporting findings of the American Council on Education); Frank Swoboda, Minorities, Women Are Rare in Management, WASH. POST, Mar. 16, 1995, at A1 (stating that the Glass Ceiling Commission found that 97% of senior managers at the Fortune 1000 industrial corporations are White men). See generally Gotanda, supra note 62, at 51 ("[A]n argument [that strict scrutiny should be applied to a government practice denying a white applicant certain benefits under an affirmative action program] would be historically, socially, and analytically insupportable. There is no history of subordination of whites by Blacks and there are no social science analyses - sociological, psychological, or linguistic - that suggest continuing subordination of Whites by Blacks."); supra note 151 and accompanying text.
256. See Adarand, 115 S. Ct. at 2135 (Ginsburg, J., dissenting) (noting the continuing effects of racial caste in "our workplaces, markets, and neighborhoods"); see also John Chandler, Blacks, Latinos Lag Whites in Completing High School, Attending College, L.A. TIMES, Mar. 14, 1995, at A23 (reporting findings of the American Council on Education); Frank Swoboda, Minorities, Women Are Rare in Management, WASH. POST, Mar. 16, 1995, at A1 (stating that the Glass Ceiling Commission found that 97% of senior managers at the Fortune 1000 industrial corporations are White men). See generally Gotanda, supra note 62, at 51 ("[A]n argument [that strict scrutiny should be applied to a government practice denying a white applicant certain benefits under an affirmative action program] would be historically, socially, and analytically insupportable. There is no history of subordination of whites by Blacks and there are no social science analyses - sociological, psychological, or linguistic - that suggest continuing subordination of Whites by Blacks."); supra note 151 and accompanying text.
257. Cf. John Hart Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. CHI. L. REV. 723, 727 (1974) ("It is not 'suspect' in a constitutional sense for a majority, any majority, to discriminate against itself.").
258. See Dong, supra note 15, at 1029 (arguing that educational diversity "should never be used to justify giving whites preferential treatment relative to a minority group"); Wu, supra note 22, at 284 (arguing for what I call "neutral action" at Lowell High School).
259. See, e.g., Adarand, 115 S. Ct. at 2097, 2119 (Thomas, J., concurring in part and concurring in judgment) ("So-called 'benign' discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence.").
260. See supra text accompanying notes 154-155.
261. See, e.g., Bakke v. Regents of the Univ. of Cal., 438 U.S. 265 (1978) (Brennan, White, Marshall, and Blackmun, JJ., concurring in part and dissenting in part) ("Nor can the [affirmative action] program reasonably be regarded as stigmatizing the program's beneficiaries or their race as inferior."). Admittedly, this interpretation is contextual. For example, if a university adopted an affirmative action program with a preamble stating that the program was necessary because non-Whites are genetically inferior to Whites, then it would be an easy case that such a program would be objectively stigmatic. Of course, this example would prima facie violate Condition II as well.
262. This piece leaves unexplored many issues related to a stigma theory of Equal Protection. For instance, how does the banned meanings conception apply to the question whether a gender classification is stigmatic or whether it "realistically reflects the fact that the sexes are not similarly situated in certain circumstances"? Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 469 (1981).
263. The banned meanings conception should also assuage Justice O'Connor's fear that "[a]ny retreat from the most searching judicial inquiry [that is, strict scrutiny] can only increase the risk of another such error [as in Korematsu] occurring in the future." Adarand, 115 S. Ct. at 2117. The banned meanings conception, which does not automatically track all race-based programs onto "strict scrutiny," explicitly requires the court to view the practice from the plaintiff's perspective. By doing so, the banned meanings conception guards against repeating the Japanese internment cases better than current doctrine, which, after all, failed miserably in Korematsu itself.
264. DWORKIN, A MATTER OF PRINCIPLE, supra note 7, at 294.