1996 Negative Action against Asian Americans

Negative Action against Asian Americans

Negative Action Against Asian Americans:  The Internal Instability of Dworkin’s Defense of Affirmative Action, 31 HARV. C.R.-C.L. L. REV. 1-47 (1996).

Abstract

Ronald Dworkin has forcefully argued that because affirmative action does not violate the constitutional rights of Whites, it must be allowed to do the work of promoting racial equality. But the sword he forges to justify affirmative action has a double-edge that cuts unexpectedly against the liberal orthodoxy. In particular, Dworkin’s theory justifying affirmative action for certain minority groups, consistently applied under plausible empirical conditions, can authorize what I call negative action against Asian Americans.

By negative action, I mean unfavorable treatment based on race, using the treatment of Whites for comparison: Negative action against Asian Americans is in force if a university denies admission to an Asian American who would have been admitted had that person been White. The fact that Dworkin’s theory justifies both affirmative action for racial minorities and negative action against Asian Americans suggests an internal instability within his theory. It is an instability because although traditional liberals are comfortable with the idea of affirmative action – admitting racial minorities into universities who would not have been admitted if they were White – they are uncomfortable with the idea of negative action against Asian Americans – rejecting Asian Americans who would have been admitted if they were White.

Prompted by this instability, I reconsider Dworkin’s particular conception of the right to equality, which lies at the heart of his affirmative action defense. I argue that an alternate conception of equality based on the degree to which the objective social meaning of a governmental practice is stigmatic is superior to Dworkin’s conception because it avoids the internal instability in a principled and normatively attractive manner.

  • Keywords: affirmative action, Asian Americans, equal protection, quotas, negative action, colorblind
  • [download published version @ SSRN]