Academic journal article Texas Review of Law & Politics

Affirmative Action's Badge of Inferiority on Asian Americans

Academic journal article Texas Review of Law & Politics

Affirmative Action's Badge of Inferiority on Asian Americans

Article excerpt


In 1896, the Supreme Court upheld the constitutionality of racially segregated railcars in Plessy v. Ferguson,1 dismissing the argument that "separation of the two races stamps the colored race with a badge of inferiority."2 In dissent, Justice Harlan wrote that the Constitution "is color-blind, and neither knows nor tolerates classes among citizens."3 Fifty-eight years later, in Brown v. Board of Education of Topeka,4 the Supreme Court vindicated Justice Harlan's view and overturned Plessy in a decision ending racial segregation in public schools, writing that "[s]eparate educational facilities are inherently unequal."5 The Brown Court rested its holding on the very argument that Plessy had rejected- that separation based on race stamps people of color with a badge of inferiority. Irrespective of the educational conditions of segregated schools, the very act of separating black students from white students "generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."6

In this Article, I argue that racial preferences, sometimes referred to as race-based affirmative action, are incompatible with the logic of Brown. By employing racial quotas and holding Asians to a higher standard for admission solely because of their race, universities deny Asians an opportunity to earn admission "on equal terms" with students of other races.7 By treating Asians differently from white, black, Hispanic, and Native American students, and making it more difficult for them to earn admission solely on account of their race, schools demean their accomplishments and stamp them with a badge of inferiority as to their status in the community. As a result, racial preferences are contrary to Brown v. Board of Education of Topeka.

In Part I, I provide a brief overview of the history of racial discrimination against Asians in the United States. In Part II, I discuss twenty-first century stereotypes against Asians, which Jane Hyun has described as part of a "bamboo ceiling" preventing Asians from achieving positions of leadership in the United States.8 Part III discusses how universities employing racial preferences rely on these same stereotypes to diminish the accomplishments of Asians, stamping Asians with a badge of inferiority. Because racial preferences are demeaning toward Asians on account of their race, I conclude that racial preferences cannot be reconciled with Brown and its repudiation of Plessy.


One of the greatest hazards of any discussion about the Asian experience in America is the arbitrariness of that racial category. As the American-born son of Chinese immigrants, I had no conception of myself as "Asian" until I was asked to identify my race on standardized tests and college applications using America's crude and antiquated system of racial classification. Many Americans, particularly those who are biracial, have had similar experiences.9 The arbitrariness of the racial category of Asian is a central topic of Eric Liu's book The Accidental Asian.10 As I have often remarked, people in China do not consider themselves to be of the same race as people in India, but in the United States they are classified under a single race-Asian- which happens to encompass more than half the earth's population. Indeed, the 2016 National Asian American Survey showed that many Americans are confused about which groups are encompassed by the word Asian.11 Although Chinese, Japanese, and Koreans were overwhelmingly perceived as being Asian, Indians and Pakistanis were seen as not Asian by over 40% of whites and other Asians.12 For clarification, I use the term Asian in this Article to refer to all Asian and Pacific Islander groups recognized in the Census or the Common Application.

As a result of the arbitrariness of the racial category of Asian, it is difficult to comprehensively discuss the history of discrimination against Asians in America. …

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