Left Out of Affirmative Action

Unequal Protection of the Laws

A black applicant who pulled himself out of the ghetto and into a junior college may thereby demonstrate a level of motivation, perseverance, and ability that would lead a fair-minded admissions committee to conclude that he has more promise for law study than the son of a rich alumnus who achieved better grades at Harvard.

That applicant would be offered admissions not because he is black, but becauseas an individual, he has shown the potential. . . . Such a policy would not be limited to blacks or Chicanos . . . or American Indians. . . . A poor Appalachian white, whose lineage is so diverse as to defy ethnic labels, may demonstrate similar potential and thus be accorded favorable consideration by the committee. —Supreme Court Justice William O. Douglas, dissenting, DeFunis v. Odegaard, 1974


No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.U.S. Civil Rights Act of 1964, Title VI


On April 1, the Supreme Court will hear oral arguments on the University of Michigan's affirmative action policies—and therefore, on similar admissions rules at other colleges and universities. At the University of Michigan, extra admissions points are given to blacks, Hispanics, and Native Americans. In the law school, 10 to 12 percent of each entering class must be black, Chicano, Native American, and mainland Puerto Rican.

More than 300 friend-of-the-court briefs have been submitted to the Supreme Court in support of the University of Michigan by civil rights groups, many Fortune 500 corporations, and some 30 retired military and civil defense officials. One of the 30 or so briefs opposing the University of Michigan's plan is by the Asian American Legal Foundation in San Francisco, which cites a statement by the Supreme Court in Adarand Constructors v. Peña (1995):

"The Fifth and Fourteenth Amendments to the Constitution protect persons, not groups. It follows from that principle that all governmental action based on race . . . should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection [of the laws] . . . has not been infringed." Accordingly, these equal-protection rights guaranteed by the Fourteenth Amendment are guaranteed to the individual.

In all the fierce debates about affirmative action through the years, Asian Americans have seldom been heard from. They are certainly a minority, making up less than 4 percent of the population, but receive no extra points from admissions committees at the University of Michigan or any other college or university I know of. I was drawn to get the Asian American Legal Foundation brief by a column in the February 11 issue of New York University's student newspaper, the Washington Square News.

The writer, William Phung, noted that affirmative action actively discriminates against Asian Americans. He refers briefly, in a telling example, to a fact that I found in a more complete form in a February 2 New York Times story by Jacques Steinberg:

In 1999, the University of Michigan law school "accepted only one of the 61 Asian Americans, or 2 percent, who were ranked in the middle range of the applicant pool, as defined by their grades and test scores, according to court filings. The admissions rate for whites with similar grades and scores was 3 percent. But among black applicants with similar transcripts, 22 out of 27, or 81 percent, were offered admission."

Yet, in the March 2 New York Times, commentator Brent Staples declares—as the Times editorials also insistently maintain—that "the University of Michigan program in no way resembles a quota system." (The 10 to 12 percent requirement at the law school is not a quota?)

This fervent denial of how affirmative action in college admissions actually works is echoed in the February 7 Chronicle of Higher Education by William Bowen (president emeritus of Princeton University) and Neil Rudenstine (former president of Harvard University). "No one contends," they say, "that white students are being excluded by any college or university today simply because they are white." As usual, no one mentions whether Asian Americans are excluded.

William Phung emphasizes that Asian American students are stereotyped as "inherently intelligent," and therefore are thought not to require preferential treatment. And also, he adds, the common perception is that "blacks and Hispanics are more likely to come from disadvantaged backgrounds and substandard education" than Asian Americans, who "obviously come from well-off families."

But, says Phung, "in 2001, the U.S. Census Bureau reported that a staggering 88 percent of Asian students have at least one immigrant parent, compared to 65 percent for Hispanics." Moreover, many Asian Americans "speak English as a second language, and have to overcome significant cultural gaps." Phung is the child of two immigrants from Asia.

As for the "well-off families," reporters covering labor unions and their attempts to organize Asian American workers against highly resistant employers can bear witness that many Asian children grow up in families headed by the working poor.

Phung's column ends: "If we are to keep affirmative action, the policy needs to be reworked to recognize the fact that not all Asians are rich geniuses. . . . Simply dropping affirmative action helps just as much, if not more, than retooling it."

Often overlooked by many of the participants in this debate is that there are millions of kids from low-income families in dead-end schools—black, Hispanic, white, and Asian American—who never even think of applying to college.

In July 1998, in a Public Broadcasting Service dialogue on race moderated by President Clinton, Richard Rodriguez, a Mexican American journalist, was asked by Clinton whether, if Rodriguez were president of a university, he would want a "racially diverse" faculty and student body.

Clinton clearly didn't get the answer he expected. "I think," said Rodriguez, "you would start at the bottom of the social ladder. You would start at the first grade rather than at a graduate school to decide which ones of us get into law school. You would make sure America has a system of education that saved children in the first grade, because we lose [them] there." All children thus lost should be rescued.

To be continued.

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