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Jewish World Review March 18, 2003 / 14 Adar II, 5763

Nat Hentoff

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Affirmative action: A different voice | Throughout the pitched battles on affirmative action, Asian-Americans are hardly ever mentioned or heard from. William Phung hopes to change this. A columnist for the Washington Square News, New York University's student newspaper, he writes that "Asians make up fewer than 4 percent of the total American population, so they clearly are a minority."

But Asian-American students get no "plus factors" at the University of Michigan, whose policies are now before the Supreme Court, nor at other colleges practicing affirmative action. Indeed, affirmative action, Phung says, actively discriminates against Asian-Americans.

For example, he points out that, in 1999, the University of Michigan Law School "admitted 2 percent of Asian applicants with average transcripts. That same admissions board admitted 81 percent of similar black applicants."

Asian-American applicants, he adds, suffer from the false stereotype that they are "inherently intelligent," and therefore, do not need preferential treatment. Moreover, the common belief is that "blacks and Hispanics" -- unlike Asians -- "are more likely to come from disadvantaged backgrounds and (a) substandard education."

Citing 2001 data from the U.S. Census Bureau, Phung notes "that a staggering 88 percent of Asian students have at least one immigrant parent, compared to 65 percent for Hispanics." And many Asian-Americans "speak English as a second language, and have to overcome significant culture gaps."

Phung is the child of two Asian immigrants. As many reporters who have covered labor unions can testify, large numbers of Asian-American children grow up in families with immigrant parents who are among the working poor. Contrary to the stereotype, their parents do not have well-paying positions at high-tech or other companies.

More than 300 friend-of-the-court briefs have been sent to the Supreme Court supporting the University of Michigan's preference policies. Among the 30 or so in opposition, there is one from the Asian American Legal Foundation in San Francisco that emphasizes that "there is ample reason to look askance at any program that classifies people by ethnicity to achieve some 'ideal' racial composition. There is no difference between a policy of admitting some people because there are 'not enough' of their race and a policy of excluding others because there are 'too many' of theirs," as happens to Asian-American applicants at some colleges.

Favoring affirmative action -- as pursued by the University of Michigan and other colleges and universities -- is Harvard Law School professor Randall Kennedy, whom I usually agree with on constitutional issues. He writes in The American Prospect magazine that "white 'victims' of affirmative action occupy the ranks of the unintentionally injured."

First of all, the standard rationale for colleges giving a "plus" to black and Hispanic applicants is that they must intentionally be admitted in enough numbers to provide a "critical mass" in the student body so that the other students will benefit from a diversity of views and backgrounds. But poor qualified white Appalachian applicants don't figure into that ideal of diversity, thereby intentionally injuring them.

Nor is passing over qualified Asian-American students unintentional -- any more than when the University of Washington Law School in Seattle refused admission to a white mother on welfare because, said the school, she would not contribute "significantly" to diversity -- not being "a member of a racial group subject to discrimination." But Harvard Law School accepted her, since most of the other students didn't know any welfare mothers. That's diversity!

Phung concluded that "if we are to keep affirmative action, the policy needs to be reworked to recognize the fact that not all Asians are rich geniuses."

It might be better, he wrote, to simply drop affirmative action.

Supreme Court Justice William O. Douglas, writing in the same vein as Phung, once said that "the Equal Protection Clause (in the Constitution) commands the elimination of racial barriers, not their creation." Instead, he said, applicants who have overcome odds -- poverty, discrimination, handicaps -- should get a "plus factor," but not solely because of race or ethnicity. Coming from a diversity of disadvantaged backgrounds, they should be seen and respected as the individuals they are, whatever the race or ethnicity.

In deciding the University of Michigan affirmative action cases, the Supreme Court should consider the voices of Phung and Douglas and should keep in mind that there is, in fact, a quota at the University of Michigan Law School. Ten to 12 percent of each entering class must be black, Chicano, Native American or mainland Puerto Rican. But the University of Michigan says it doesn't have a quota.

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JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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