Subcommittee Hearing on H.R. 2128 - "Equal Opportunity Act of 1995"
December 7, 1995
2237 Rayburn House Office Building
10:00 a.m.
Thank you for the honor of testifying before the House Judiciary Committee, Constitution Sub-Committee. It is a testament to the strength of the American democracy that the son of Asian immigrants can be called upon to contribute to one of the important political debates of the day. It is also appropriate as the twenty-first century approaches and our society becomes increasingly multi-racial and multi-cultural, that the many Asian Americans, Arab Americans, Latinos, and others -- who have always been here -- are finally recognized and take part in the processes of government.
Race is no longer literally a black and white matter. Given the rapid demographic changes occurring in this country, if we are to make progress on the American dilemma, we must see that we share a future and that we should work together.
With the hope that I can contribute modestly in the public debate over affirmative action, I will take this opportunity to testify on three related subjects. First, I offer a personal note of background that explains where I am coming from and shows the vantage point from which many of us view race even if we are unaware of it. Second, I argue that the many Asian American experiences support affirmative action, contrary to the "model minority" image used by some politicians to suggest that Asian-Americans somehow are the example that defeats the much-needed programs. Third, I conclude as a legal scholar that H.R. 2128 is unnecessary and unwise.
As an initial matter, being an assistant professor of law at Howard University in Washington, D.C., I am reminded of the importance of race every morning when I arrive at work. While I have the privilege of being the first Asian American on the faculty at the school of law, it has been for more than a century the leading institution in the United States for the education of black lawyers.
Since becoming a member of the academy, I often have been asked what it is like to be a minority at an historically black university and whether my decision to come here serves as some sort of ideological statement. The people who ask about being an Asian American at Howard are almost all of them sincere and well-meaning. Despite their common curiosity, they are of diverse racial backgrounds. Most are white, some are black, and a few are Asian American.
After awhile, though, their inquiries started me thinking. More than might be meant by the people asking the questions, I believe that the inquiries reflect and reveal the invisible but powerful influence of race on our perceptions.
When I was considering where I should begin my teaching career, nobody thought to ask, "Well, what will it be like to be the only Asian American at a white school?"
Of course, that would have been true at every law school with which I had interviewed. The majority of the 175 law schools in this country have never had an Asian American professor. The few Asians they have hired have been foreign nationals teaching foreign subjects. And after they hire an Asian American, who knows how long it will be until they hire another.
Yet I wonder if many people who are white -- or for that matter Asian American -- look at a law school that has a student body that is predominantly white and a faculty that is almost exclusively white and see it as a "white" law school. Indeed, I doubt that anybody would believe that joining the faculty at such a "white" law school represented as much a political choice as a politic one.
My conclusion is that many of us have become afflicted with a type of partial color-blindness. With this partial color-blindness, it is as if being an Asian American among African Americans is regarded as unusual but being an Asian American among whites is accepted as normal. Perhaps we all have an unconscious bias toward assuming that white society is not only the culture of the majority but also the culture that is ideal. The ambitious Asian American, like the ambitious African American, is expected to pass into white culture.
Ironically, institutions that are perceived as black can be more integrated than institutions that form the mainstream. When I look out at the classroom, I see a half dozen white faces among the fifty students: when I attend faculty meetings, I also see that many whites among my, two dozen or so colleagues. These numbers of whites are equal if not greater than the numbers of blacks found at most law schools.
However. I don't believe that the black and white schools are exact mirror images. They have differed from their very origins. Historically black institutions came into existence because blacks basically- were denied an opportunity for education elsewhere. The same cannot be said of white institutions, many of which were segregated either by law or in practice.
Because of the unique role of historically black institutions, I am convinced that there is a value to having a place where African Americans can be in the majority rather than the minority in numerical terms as well as leadership positions. If everything were integrated, individual African Americans (not to mention Asian Americans) would be perpetually alone among a group of whites. The effect is so overwhelming that only from the outside -- or when roles are reversed -- is the identity of the whites as a community even noticeable.
The white who finds himself thrust into the experience of being a racial minority likely takes little comfort in being told that color-blindness is the rule being enforced for his benefit. He also may notice that the neutral norms taken for granted by everyone else around him are in fact subtlety and not so subtlety designed by and for the majority -- not him.
I should say so as not to be misunderstood that I value integration. My personal opinions on race have evolved only when I have sought out new experiences such as being at Howard.
As I finish my first semester teaching, I realize that I have learned as much as I have taught. I also have realized that we all have much more to learn in race relations.
Next, I would like to share what it is that I have learned in my research on Asian Americans and affirmative action. I would like to refute the notion that Asian Americans in particular are hurt b,,, affirmative action for African Americans. Many people see Asian Americans as a "model minority." The "model minority" is a myth. It is an important myth though. Thanks to the "model minority" myth, Asian Americans have become crucial to the debate on affirmative action in an unfortunately divisive manner.
Anyone who knows about Asian Americans knows about the model minority myth. Since the arrival of Asian immigrants in the nineteenth century, and most notably since the 1960s, this ubiquitous super-minority image has suggested that Asian American achieve economic success and gain societal acceptance through conservative values and hard work. No matter how frequently and thoroughly the model minority image is debunked, it returns as a troublesome stereotype in race relations.
According to this popular portrayal of an entire race, Asian Americans have achieved their famous up-by-the-bootstraps rendition of a Horatio Alger hero through a combination of talent, hard work, and conservative values, and not due to government entitlements, by racial preferences, or with complaints of discrimination. Through the image, which can be seen everywhere from magazine articles to popular portrayal. Asian Americans are depicted as champion entrepreneurs and collegiate whiz kids. the Immigrant parents working as urban green grocers as their American children "-in the annual Westinghouse science talent search.
Contrary to this simple perception, only some Asian Americans have made significant strides in their socioeconomic status. The model minority image is a myth because Asian Americans have not achieved economic success except in a superficial sense: comparing equally educated individuals in most professions, and even controlling for immigrant or native-born status, whites earn more money than Asian Americans. Qualifications count less than race, in a pattern of regular discrimination, not so-called "reverse" discrimination.
Overall, Asian Americans remain underrepresented in the many areas and also continue to experience straightforward discrimination. Most often, Asian Americans are treated as if they were all foreigners getting ahead by unfair competition, and they face the "glass ceiling" that allows them to progress only up to a certain point. Furthermore, opponents of affirmative action -- including some Asian Americans among them -- forget that Asian Americans have benefited greatly from the civil rights movement and the legal reforms it produced.
The discrimination which Asian Americans in fact face can be reinforced by the exaggerations of the model minority myth. This occurs, for example, when non-Asian Americans believe that Asian Americans should be subjected to maximum quotas in college admissions because they have done too well and represent unfair competition.
Moreover, the model minority myth is deployed in ways that expose the insincerity of its goodwill. The myth is used to denigrate other racial minorities. It is use d to ask African Americans. rhetorically. "Well, the Asian Americans succeeded, why, can't you?" As the original New York Times article introducing the image during the Civil Rights Era put it, Asian Americans stand in contrast to "problem minorities."
Criticisms of the model minority myth based both on its empirical bases and political uses have been made for more than a generation. The critique of the model minority myth presents a case study in the transition of ideas about race from academic circles to the popular press. By 1980 there was a sizable scholarly literature disproving the model minority myth. By 1990 mass media articles had appeared, initially opinion pieces, later news articles. Histories of Asian Americans by Ronald Takaki, Sucheng Chan, and Roger Daniels added authority to the arguments.
The critique, disappointingly, also offers an example of the failure of rational argument against racial stereotyping. "Model minority myth" is a popular phrase, perhaps because of the alliteration. But the "model minority" is still emphasized over the "myth." The controversial book The Bell Curve, for example, places Asian Americans nominally at the top of its racial hierarchy of intelligence quotient scores, which it argues effectively determine socioeconomic status.
Even the most famous Asian American of late, Los Angeles Judge Lance Ito, who presided over the O.J. Simpson in 1994 and 1995, could not escape racial stereotyping. Some commentators described Judge Ito as "neutral" in the racialized "trial of the century." But Judge Ito -- an American bom in the internment camps. culturally assimilated. English speaking, and married to a white woman who herself is an important public figure -- could not maintain his "neutral" place racially. Despite his Judicial role and corresponding neutrality in the symbolism of the trial process, and even though his racial status mav have seemed irrelevant. it became relevant to observers. One revealing episode was Senator Alfonse D'Amato's appearance on a radio show mid-way through the trial. In his remarks, Senator D'Amato mocked Judge Ito as having a heavy Asian accent, later explaining that he was using the racial reference simply as a means of criticizing the course of the trial. Numerous other racial references to Judge Ito and Asian American witnesses occurred within the trial itself and in the extensive media coverage, much of it with racial identification of an individual's Asian American background as a negative feature.
The model minority myth ought to self-destruct. After all, to be able to see Asian Americans as a racial group, especially a racial group which can be contrasted with other racial groups, reqwres a highly developed sense of color-consciousness. if society were color-blind in the sense of blotting out race and all references to race, it would be impossible to point at Asian Americans, much less use them as an example. Ironically, therefore, when Asian Americans are used to attack affirmative action, the case for evaluating the merit of individuals comes to focus on the supposed success of a racial group.
Although the model minority myth and color-blindness are contradictory, some individuals have used Asian Americans to argue against affirmative action. They have done so by asserting that Asian American success demonstrates that racial minorities no longer face discrimination. The Asian American experiences are neither so simple nor should thev be so simply used.
Asian Americans have been drawn into the debate over affirmative action only, recent years. In the constitutional sphere, Asian Americans have had a minor presence in Supreme Court case law on the subject until this past term.
The earliest case on affirmative action to reach the Supreme Court, DeFunis v. Odegaard, went unresolved because of mootness problems but mentioned Asian Americans by name. In a separate opinion, Justice William O. Douglas -- an iconoclastic liberal who had voted with the majority in the Japanese American internment case of Korematsu v. United States and defended his decision in a footnote in DeFunis -- argued that "there is no Western state which can claim that it has always treated Japanese and Chinese in a fair and even-handed manner."
Subsequently, Asian Americans and other non-black racial minorities were relegated to the footnotes. In the best known case on affirmative action, Bakke v Regents of the University of California, Justice Powell stated in footnote 45 that "the inclusion of' Asians in the affirmative action program "is especially curious in light of the substantial numbers of Asians admitted through the regular admissions process."
This year, the Supreme Court decided the historic case of Adarand Constructors, Inc. v. Pena. There, the Court cast doubt on certain types of affirmative action for African Americans and other racial minorities. The Adarand opinion affects not oniv so-called "reverse discrimination" but also straightforward regular discrimination. It applies the highest standard of judicial review, "strict scrutiny," to all racial references in the law regardless of the underlying intent, impact or context of the law at issue. "Strict scrutiny" has almost alwavs resulted in the challenged governmental action being struck down as unconstitutional.
Adarand appears more definitive than any of its predecessors. The plaintiff in the suit, Adarand Constructors. Inc.. sought to bid on federal government contracts, the regulations for which included set-asides for socially and economically disadvantaged businesses. Racial minorities, status, which was defined as including African Americans, Latinos, Asian Americans, Native Americans, and others, but of course excluding whites, created a presumption of disadvantaged status for purposes of benefiting from the set-aside.
In ruling in favor of Adarand, writing for five of the nine members of the court, Justice Sandra Day O'Connor held that affirmative action would be treated like other racial classifications and subjected to "strict scrutiny." Under the O'Connor opinion, the case was remanded to the lower courts for a determination of whether the set-aside could meet "strict scrutiny;" it was not struck down outright. The case is likely to result in far fewer affirmative action programs being approved by the lower courts.
Interestingly, in reaching its holding, the Adarand majority relied heavily on the Korematsu case. As many will recall, Korematsu was an infamous decision upholding the constitutionality of the intenunent of Japanese Americans during World War II. The people who were imprisoned were suspected wrongly of disloyalty as a group because of their ancestry. There was no individual treatment even for native-born United States citizens. In the fifty years since, the executive and legislative branches have acknowledged that the internment was motivated by racial prejudice.
The Court treats Korematsu as analvtlc support for its holding in Adarand as well as a rhetorical example of the dangers of relving on race to prove other characteristics. In two lengthn, passages In Adarand, the Court discusses the Korematsu statements as setting up the "strict scrutinn"' test. The contemporary Court observes of its wartime predecessor that "in spite of the 'most rigid scrutiny' standard it had just set forth, the Court then inexplicably. . . concluded that... the racially discriminatory [internment] order was nonetheless within the Federal Government's power." The Court motivated largely by racial prejudice, wartime reiterates that the internment was hysteria, and a failure of political leadership." In Adarand at last, the dissenting Justices in the Korematsu case are vindicated, for they challenged a law that "falls into the ugly abyss of racism."
The Adarand Court continues with its powerful dicta on Karematsu, beyond disapproving of the earlier decision. Korematsu serves a purpose, as a warning against judicial laxity in reviewing racial classifications. The Court states, "Korematsu demonstrates vividly that even'the most rigid scrutiny'can sometimes fail to detect an illegitimate racial classification." And furthermore, "any retreat from the most searching judicial inquiry can only increase the risk of another such error occurring in the future."
The use of the Korematsu decision in the Adarand opinions is troubling. It represents an advance for Asian Americans as it is a retreat for AfTican Americans-, overall . possibly, it is a setback for society at large. It shows that Asian Americans, who were unimportant when they faced racism, can become important when they can be used to attack remedies for similar racism.
Worse than the mere use of the Korematsu opinion in the Adarand case are the increasingly prominent reappearances of the model minority myth in the political sphere. Asian Americans have emerged politically in the debate over affu-inative action, though often as pawns. House Speaker Newt Gingrich, California Governor Pete Wilson, and leaders of the California CCRI anti-affirmative action campaign are among the many political leaders who point to Asian Americans and their supposed success to assert that affirmative action is not needed.
As it has become less acceptable openly to compliment Asian Americans to condemn African Americans, it has become more acceptable to come to the defense of Asian Americans as a means of casting doubt on the advances of the civil rights movement.
Ironically, if Asian Americans are hurt by affirmative action, they are hurt ative action for whites -- not for African Americans. In the 1980s, Asian American high school students displayed increasing grades and test scores, but their rate of admissions to prestigious universities hit a plateau and actually declined at some institutions. Abusing the concept of meritocracy, admissions officials changed the standards. They explained that Asian American applicants, despite their impressive records, were too bookish and not well-rounded enough for the Ivy League and other top schools.
The Department of Education investigations into the matter concluded that if Asian Americans were constrained by quotas. it was only- for the permissible reason of admitting more "legacies" -- alumni children -- a group that was predominantly white. This form of racial preference. which whatever its Justification is nonetheless a deviation from meritocracy faced surprisingly little organized opposition.
Due to the college admissions controversy, manv Asian Americans themselves have come to believe that any maximum quotas placed upon them at universities or by employers must be the result of minimum quotas for Aftican Americans or other groups.
The real risk to Asian Americans, however, is that they will be squeezed out to reserve representation for whites, not African Americans. This has been the case, for example, in the San Francisco school district, where Chinese American students must score higher than white students to gain admission to the best public high school in the city. Asian Americans and whites could be held to the same standard, without eliminating affirmative action at the high school. Eliminating affirmative action likely would eliminate almost all African American and Latino students from the school.
Most importantly, the arguments against affirmative action are significantly weakened when Asian Americans are acknowledged honestly. The objection to affirmative action is that it "discriminates" against whites and Asian Americans. But if Asian Americans and whites compete against one another equally and fairly. even if affirmative action hurts them it does so collectively and cannot be said to single out either group in the sense meant by racism.
The attention paid to Asian Americans, moreover, is inflammatory. It pits Asian Americans against African Americans, as if one could succeed only by the other failing. Asian Americans are encouraged to view African Americans, and programs for them. as threats to their own upward mobilitn,. African Americans are led to see Asian Americans, many but not all of whom are immigrants, as another group that has usurped what was meant for them.
Nevertheless, in the continuing debate over affirmative action, Asian Americans can play a positive role. Asian Americans, like all Americans, might be ambivalent about affirmative action, but nonetheless ought to be appalled at the extreme proposals being offered.
Finally, then, I would like to turn to H.R. 2128. This Bill is extreme. There are more moderate courses that can and should be taken that would preserve equal protection in the law as well as equal opportunity in reality.
H.R. 2128 is extreme because after the Adarand decision, there is no doubt that quotas are unconstitutional. The Clinton Administration has agreed and is conducting a thorough review of all affirmative action programs. The only type of affirmative action that can be practiced today is the best type: recruiting and hiring and retaining and promoting qualified racial minorities and women, people who would stand as likely a chance as white men of being selected but for the prejudice that still remains in society.
In contrast. H.R. 2128 would eliminate everything except for recruiting in the vast and influential sphere of federal government contracting. As a result, perversely, minorities would be told about opportunities to participate, but not given them. Indeed, given the wording of the bill, it is even unclear that recruiting would be permissible.
In other words, about all that the Bill would accomplish is eliminating the few programs that can be established where there is evidence of discrimination. All that would be affected are cases where there is no doubt that there is discrimination, and its existence is proven by rigorous statistical data. This point must be emphasized: the Supreme Court has indicated quite clearly that the government can use affirmative action only where and when it proves that there is racism and sexism. Furthermore, the ent bears the burden of proof in this respect. Accordingly, if even that tiny government remnant of affirmative action is destroyed, there is absolutely nothing worthwhile left. Again, even if there is racism and sexism, ongoing and systematic, the government would have no ability whatsoever actually to remedy it if H.R. 2128 became the law.
Thus, the attacks on affirmative action are symbolic. A victory for the proponents of H.R. 2128 would produce very little for white males, because there are more general problems that are causing our economic difficulties, but it would be devastating to racial minorities and women. For almost no gain to white men there would be an almost complete loss to racial minorities and women.
The rhetoric directed against so-called "reverse discrimination" would be persuasive if it were depioved against regular discrimination now and again. While no doubt "reverse discrimination" against whites occurs occasionally, regular discrimination against African Americans remains much more prevalent and vigorous, whether measured by statistics on employment discrimination and housing segregation, or episodes such as the Rodney King beating. The Glass Ceiling Commission, an independent body composed pn'man'l-,- of business leaders, concluded that aside from the gross underrepresentation of racial minorities and women in top corporate positions, even companng blacks and whites who were equally qualified and holding similarjobs the blacks were paid significantly less. The comparison of regular discrimination and reverse discrimination verges on the absurd.
In apparent opposition to affirmative action, meritocracy is repeated like a mantra. The concept of meritocracy is attractive, even beguiling. As its promoters put it, meritocracy means opportunities offered on the basis of a combination of ability and effort, with no extraneous factors considered.
Despite the difficulties of doing so, our society has always been obsessed with classifying and measuring people. More than ever before, we have persuaded ourselves that can be scientific as well as just. Real meritocracy would have much to overcome, though, because the best indication of an individual's future economic success is their parents' economic status, not any form of intelligence testing.
There are so many deviations from meritocracy that it is difficult to keep count. In college admissions, for example virtually every state university grants preferences to state residents sometimes by setting strict quotas. Applicants whose parents attended the institutions and athletes on scholarship also are admitted even if they are underqualified. Taxpavers, alumni, and football fans would hardly have it any other way.
At the workplace, everyone who has been an employee knows that their supervisors can set standards that are at best subjective. Likewise, people who have evaluated the work of others know that it is difficult to explain how decisions were made.
The most popular metaphor for meritocracy is the world of sports, with its team standings and individual rankings. Despite win-loss records and statistics, even athletic competitions are imperfect meritocracies. Teams have diverse needs to fill in drafts and make choices based on their own particular criteria and under salary constraints; players in different positions must perform different tasks; and everyone has bad days. Sporting events are apt for revealing the artificial nature of many standards. As one law professor who likes to play basketball has argued, the definition of merit changes dramatically if the basket is lowered six inches.
Again, Asian Americans know well that merit can be manipulated. Good grade and high test scores can be turned into a disadvantage, a sign that an individual or a whole group is nerdy and lacks people skills.
Sometimes surprisingly, all of us potentially can benefit from an expansive view of what constitutes merit. In the best known Supreme Court decision on affirmative action, Allen Bakke claimed that he was rejected by a medical school because he was N&-hite. The record of the case, however, suggests that Bakke may have been denied admission because he was considered too old. Unless they are abolished, the best affirmative action programs operating todan, would weigh even Bakke's life experience as a positive factor.
Affirmative action, in the end, is only a means. Opposition to affirmative action is not necessarily support for racism. but it can be. The appropriate response to opponents of affirmative action is the query, real rather than rhetorical, of how they might propose to achieve racial justice by other means.
There are so many things we should be doing to advance racial justice.
Affirmative action can be only one part of an overall plan. But it is an important
part because its loss would represent a loss of our sense of community and our
faith.
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