Discrimination based on parentage and discrimination based onrac e

[Frank H. Wu]

Dear Colleagues,

Regarding Asian Americans, alumni preferences, and affirmative action:

  Again, Asian Americans make it apparent that color-blind meritocracy
isn’t really what affirmative action opponents favor at all. Their
treatment of Asian Americans shows that they are inconsistent in their
color-blindness and selective in their meritocracy.
  Juxtaposing the backlash against affirmative action with the campaign
to close the borders exposes the duplicity of the respective arguments.
In attacking affirmative action, many people start with the belief that
we should literally not see race. In trying to close the borders, some
of these same individuals end up looking right at race.
  In Alien Nation – the most influential book on immigration policies
published in the past generation – Peter Brimelow declared in an aside
that he dislikes affirmative action, because it is unfair to judge
persons based on skin color. Brimelow devoted the majority of his work
to inveighing against allowing anyone else to come to this country,
because “this country has always had a specific ethnic core. . . and
that core is white.” Despite their endorsement of color-blind
competition, in the immigration context Brimelow and others quite
quickly become nationalistic and protectionist.
  They have prevailed in setting policy. For a would-be immigrant to
come here on a permanent basis for an employment opportunity, the
company trying to hire her must demonstrate that there are no “able,
willing, and qualified” native workers. The federal government, through
the Labor Department, must certify that the test has been satisfied. The
phrasing of the requirement is important. A citizen who wishes to take
the job offer automatically beats out an immigrant, even if the citizen
is only marginally meets the standard and the immigrant is exceptionally
talented.
  On the college campus, the reluctance to face international rivals has
led to efforts to restrict the total number of foreign students. Many
public universities are under political pressure to limit the number of
international students they accept. At some schools, in the Ph.D
programs for technical fields, almost all of the graduate students are
from overseas – Asians who are temporary residents during their
education. The stereotypical calculus instructor – with the thick
glasses and a bad haircut, speaking English poorly and confusing r’s and
l’s – is somehow threatening. Either he will stay here and try to
practice his profession, taking jobs, or he’ll go home to becoming an
adversary, stealing trade secrets; wherever he goes, he presents a
problem.
  As many administrators of research universities will tell you,
however, international students are a positive asset. They fill low-paid
teaching slots that Americans aren’t interested in. Our Generation X
prefers to take their bachelor’s degrees in electrical engineering to a
high-tech start-up company and start making more money than their
professors immediately, instead of wasting their youth in a graduate
program. Plus, the foreigners pay full tuition for their degrees.
  The movement against international students reveals an inconsistency.
If we were committed to attracting the best qualified individuals in a
color-blind manner, we ought to welcome them wherever they come from. By
meritocratic measures, we should treat foreigners the same as we do
citizens – even or especially if their competition is threatening.
  At elite private universities, another form of preference is routine.
Alumni children, who are referred to as “legacies,” are actively
recruited and then admitted by special standards. Author Richard D.
Kahlenberg reported in The Remedy, his brief for class-based affirmative
action, that Harvard College in its 1988 entering class enrolled more
such students than its total number of African Americans, Mexican
Americans, and Native Americans.
  An alumni preference policy benefits predominantly whites – privileged
whites. Furthermore, it benefits those whites who are not
well-qualified, but who are fortunate enough to have had ancestors,
specifically fathers and grandfathers, who attended the schools when
they were virtually all-white and absolutely all-male. As recently as
fifty years ago, these schools discriminated among even whites, taking
few white ethnics and poor students; they informally restricted the
number of Jews.
  While many critics of affirmative action claim it creates some sort of
“stigma” for its beneficiaries, the same shame apparently does not
afflict alumni children. Barbara Bergmann, in her book Defending
Affirmative Action, observed that people who have take advantage of
nepotism tend to take pride that they, like their forebears before them,
are where they feel at home. They might be offended if they were not the
third generation at the alma mater. They are able to join the same
dining club as their parents, and buildings are named after their
relatives.
  In response to this comparison, some opponents of affirmative action
declare that they would do away with alumni preferences too. It is easy
enough to write off alumni preferences. It is telling, though, that most
people do not feel the same visceral anger about alumni preferences that
they do toward affirmative action. Nobody bothers to agitate against
alumni preferences, organizing ballot initiatives and the like. They are
rationalized as the ordinary course of business, creating ties between a
family and an institution, encouraging donations from wealthy donors.
  If advocates against affirmative action lived up to their principles,
they would set their priorities straight. They would start off by
seeking to eliminate alumni preferences and the many other preferences
with racial effects that favor well-to-do groups: better funding for
suburban schools with majority white enrollments; the availability of
advanced placement curriculum that enhances grade point averages; and
the highly effective private tutoring for standardized tests, among
other programs that are directed to primarily whites. It would be
regrettable if alumni preferences ended just as enough minorities could
take advantage of their largesse.
  Similarly, the best public universities have their own preference
programs. Every state with a higher education system that is selective
discriminates to the benefit of its residents and against non-residents.
Resident students and out-of-state students typically have different
credentials. Or more accurately, state residents are less qualified than
out-of-state students on average by objective measurements. As galling,
the out-of-state residents need to take out much higher loans to receive
exactly the same education, since they pay twice the tuition charges as
a resident student sitting next to them in the same class.
  At this point, many reasonable people will protest, “come on, it’s
obvious why we can’t do that.” Yet it is obvious only because we all
assume that some persons are members of the community who understand
that they own its institutions; other people are outsiders who cannot
make the same claims about rights. The entitlements enjoyed by insiders
are so obvious they become invisible. For whatever reason, most of us
simply are not as troubled by advantages given to the native-born
citizen, the alumni child, the state resident, the politically
connected, or the wealthy, as we are of relatively modest efforts to
become racially integrated.
  By themselves, none of these examples is an argument for affirmative
action. Taken together, they show some ironies of our consideration of
affirmative action. Our behavior is consistent, not with color-blindness
and meritocracy, but with our sense of community and membership. Our
conceptions of community are not color-blind. Membership confers merit.
We accept that some people should be at certain places; they belong at
the institutions just as the institutions belong to them.

  Incidentally, investigations into allegations of maximum quotes on
Asian Americans at Ivy League schools in the 1980s concluded that the
result of disparities between admissions rates between whites and Asian
Americans was not affirmative action but alumni preferences (and it also
wasn't lack of sports or extra-curiccular activities, or emphasis on
pre-med majors on the part of Asian Americans).
--
PLEASE NOTE THAT THIS IS MY ONLY E-MAIL ADDRESS.

Frank H. Wu, Associate Professor, Howard University Law School
2900 Van Ness St., N.W., Wash. D.C. 20008 202-806-8065 p 202-806-8436 f
(c) 2000 Frank H. Wu; please do not circulate this message without prior
consent.

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