For a bibliography on APAs and affirmative action, see Glenn Omatsu, Behind the Affirmative Action Debate: Two Visions of America, 21 Amerasia J. 251 (1995-1996).
6 Institutional affiliations are for identification purposes only.
7 In light of the enormous impact that “race” has had on American history, it is strange to realize the difficulty of defining what “race” actually is. Current thinking views “race” not as a precise biological categorization as much as a social, cultural, and political construction that is anything but precise. See, e.g., Michael Omi & Howard Winant, Racial Formation in the United States: From the 1960s to the 1990s 53-76 (2d ed. 1994).
8 See generally Morris Dees, Gathering Storm (1996) (documenting the growing menace that militia groups present to U.S. democracy and their links to White Supremacist organizations); Richard J. Herrnstein & Charles Murray, The Bell Curve: Intelligence and Class Structure in American Life (1994).
9 When the FHA issued its underwriting guidelines to loan officers, it declared that “[i]f a neighborhood is to retain stability, it is necessary that properties shall continue to be occupied by the same social and racial classes. A change in social or racial occupancy generally contributes to instability and a decline in values.” Dennis Judd & Todd Swanstrom, City Politics 204 (1994). Judd and Swanstrom report that renowned sociologist and consultant to the FHA, Homer Hoyt, issued a 1933 report to the FHA on the racial “ranking” of the most favorable to least favorable mortgage candidates:
1. English, Germans, Scotch, Irish, Scandinavians
2. North Italians
3. Bohemians or Czechoslovakians
4. Poles
5. Lithuanians
6. Greeks
7. Russian Jews of lower classes
8. South Italians
9. Negroes
10. Mexicans
Id. Lest there be any doubt, Hoyt emphasized that the racial hierarchy was not fluid for people of color, regardless of class or culture: “Except in the case of Negroes and Mexicans . . . these racial and national barriers disappear when the individuals of the foreign nationality groups rise in the economic scale or conform to the American standards of living . . . .” Id.
10 George Lipsitz, The Possessive Investment in Whiteness: Racialized Social Democracy and the ‘White’ Problem in American Studies, 47 Am. Q. 369, 372 (1995).
11 Judd & Swanstrom, supra note 9, at 205.
12 Melvin Oliver & Thomas Shapiro, Black Wealth/White Wealth 16 (1995).
13 See generally id. See also David D. Troutt, The Thin Red Line: How the Poor Still Pay More (1993) (documenting that poor people in minority neighborhoods pay more for basic services and necessities, such as food, housing, health care, banking, and credit services).
14 Skrentny, supra note 1, at 153 (quoting a speech by Lyndon Johnson).
15 See generally Keith Aoki, Foreign-ness & Asian American Identities: Yellowface, World War II Propaganda and Bifurcated Racial Stereotypes, 4 UCLA Asian Pac. Am. L.J. (forthcoming 1997); Richard Delgado & Jean Stefancic, Images of the Outsider in American Law and Culture: Can Free Expression Remedy Systemic Social Ills?, 77 Cornell L. Rev. 1258 (1992); David B. Oppenheimer, Negligent Discrimination, 141 U. Pa. L. Rev. 899, 908-09 (1993).
16 See, e.g., Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 321 (1987) (“This failure [to recognize that racism is both a crime and a disease] is compounded by a reluctance to admit that the illness of racism infects almost everyone.”).
17 PrimeTime Live: True Colors (ABC television broadcast, Sept. 26, 1991). In fact, recent studies show that residential segregation is increasing, not decreasing. See Douglas Massey & Nancy Denton, American Apartheid 81 (1993) (arguing that despite high hopes in the early 1970s following the passage of various civil right laws, segregation of Blacks and Whites persists at extremely high levels that is “so intense that it can only be described as hypersegregation”).
18 As philosopher Judith Jarvis Thompson put it: “No doubt few, if any [young White male applicants], have themselves, individually, done any wrongs to Blacks and women. But they have profited from the wrongs the community did. Many may actually have been direct beneficiaries of policies which excluded or downgraded Blacks and women perhaps in school admissions, perhaps in access to financial aid, perhaps elsewhere; and even those who did not directly benefit in this way had, at any rate, the advantage in the competition which comes of confidence in one’s full membership, and of one’s rights being recognized as a matter of course.” Judith Jarvis Thompson, Rights, Restitution, & Risk: Essays in Moral Theory 152 (1986).
19 By “White” we mean what the Census Bureau would call non-Hispanic White.
20 Massey & Denton, supra note 17, at 81, 109-14.
Through a series of exclusionary tactics, realtors limit the likelihood of black entry into white neighborhoods and channel black demand for housing into areas that are within or near existing ghettos. White prejudice is such that when black entry into a neighborhood is achieved, that area becomes unattractive to further white settlement and whites begin departing at an accelerated pace. This segmentation of black and white housing demand is encouraged by pervasive discrimination in the allocation of mortgages and home improvement loans, which systematically channel money away from integrated areas. The end result is that blacks remain the most spatially isolated population in U.S. history.
Id. at 114.
21 Jerry Kang, The Future of Affirmative Action in Higher Education, CrossCurrents 2 (Spring/Summer 1996); see also Paul Brest & Miranda Oshige, Affirmative Action for Whom?, 47 Stan. L. Rev. 855, 863 (1995) (“We believe that encounters among students from different backgrounds especially within an academic institution that seeks to encourage intergroup relations and discoursetend to reduce prejudice and alienation.”).
22 See Amici Brief of Columbia University, Harvard University, Stanford University, and the University of Pennsylvania at 13, Regents of the University of California v. Bakke, 438 U.S. 265 (1978) (claiming that an independently compelling goal of affirmative action is “diversifying the leadership of our pluralistic society”).
23 Memorandum from Walter Dellinger, Assistant Attorney General, to General Counsels, Justice Department Memorandum, June 28, 1995, 1995 DLR 125, text near note 37.
24 As the Supreme Court has explained in connection with broadcast diversity:
The judgment that there is a link between expanded minority ownership and broadcast diversity does not rest on impermissible stereotyping. . . . Rather, both Congress and the FCC maintain simply that expanded minority ownership of broadcast outlets will, in the aggregate, result in greater broadcast diversity. A broadcasting industry with representative minority participation will produce more variation and diversity than will one whose ownership is drawn from a single racially and ethnically homogeneous group.
Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 579 (1990), overruled on other grounds, Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995).
25 For further discussion of the connection between equality and the social meaning of governmental practices, see Jerry Kang, Negative Action Against Asian Pacific Americans: The Internal Instability of Dworkin’s Defense of Affirmative Action, 31 Harv. C.R.-C.L. 1, 21-36 (1996) [hereinafter Kang, Negative Action].
26 South Central Los Angeles had lost 70,000 high-wage jobs between 1978 and 1982. As of 1990, one third of all residents lived in households beneath the poverty line; one fourth was on public assistance and high school drop-out rates ranged from 63 to 79%. See Kye-young Park, The Morality of a Commodity: A Case Study of ‘Rebuilding L.A. Without Liquor Stores,’ 21 Amerasia J. 1 (1995/1996).
27 This is not to say that people can have role models only of their own race. Nonetheless, in America today, race continues to have social salience, such that the successes of a minority individual will often inspire other individuals of the same race to imagine and attempt similar success.
28 Stanley Fish, Affirming Affirmative Action, Salt Equalizer 7 (Summer 95). See generally Stephanie Wildman, Privilege Revealed (1996). See also Harlon Dalton, Racial Healing 105-26 (1995).
29 Peter H. King, On California: Story of a Story, L.A. Times, Apr. 5, 1995, at A3.
30 Dateline (NBC television broadcast, Jan. 23, 1996), available in WESTLAW, 1996 WL 6703887.
31 Id.
32 Id.
33 Richard H. Fallon, Jr., To Each According to His Ability, From None According to His Race: The Concept of Merit in the Law of AntiDiscrimination, 60 B.U. L. Rev. 815, 872 (1980) (emphasis omitted). Of the three conceptions of merit discussed, Professor Fallon notes that this conception “describes the reality of most programs of university admissions.” Id.
34 Chang-Lin Tien, Affirming Affirmative Action, in Common Ground: Perspectives on Affirmative Action . . . and Its Impact on Asian Pacific Americans, Asian Pacific American Public Policy Institute 19, 20 (1995).
35 See, e.g., Joel Dreyfus & Charles Lawrence III, The Bakke Case: The Politics of Inequality 128-29 (1979) (discussing a remarkable increase in standardized test scores and grades of Berkeley law students between 1967 and 1976, and of medical students nationwide between 1957 and 1975); Jean Webb, The 6 Percent Solution: Yale Law School’s Admissions Process, Yale Law Report, Spring 1994, at 15-16 (noting that Yale is the most selective law school, and had a 1/3 minority representation in the preceding class); Peter Applebome, The Debate on Diversity in California Shifts, N.Y. Times, June 4, 1995, §1, at 1 (quoting Bob Laird, admissions director at the University of California at Berkeley, as saying, “There’s a myth that in the course of diversifying the campus we’ve lowered our standards. . . . By any measure, the opposite is true. . . . [T]he current freshman class is stronger than the one 10 years ago.”); Bruce Weber, Inside the Meritocracy Machine, N.Y. Times, Apr. 28, 1996, §6 (Magazine), at 44, 46, 56 (noting that Harvard College is simultaneously increasingly selective and committed to substantial minority representation). See generally Philip J. Cook & Robert H. Frank, The Growing Concentration of Top Students at Elite Schools, in Studies of Supply and Demand in Higher Education (Charles Clotfelter & Michael Rothschild eds., 1993).
36 Cf. Helen L. Horowitz, Campus Life: Undergraduate Cultures from the End of the Eighteenth Century to the Present 189 (1987) (noting an increase in the number of 18- to 21- year olds attending college between 1930 and 1950); Richard N. Smith, The Harvard Century: The Making of a University to a Nation 169 (1986) (“Above all else, the G.I. Bill of Rights opened Harvard to a diversity of enrollment and outlook unimaginable [previously].”); id. at 214 (noting that the G.I. Bill and nationwide recruiting, including Blacks from the South, were part of Harvard’s program of replacing “prewar standards of social and economic standing” with “more stringent tests of selectivity”).
37 Troy Duster, The Structure of Privilege and Its Universe of Discourse, 11 Am. Sociologist 73-78 (May 1976).
38 Ling-chi Wang, Between Being Used and Being Marginalized in the Affirmative Action Debate: Re-envisioning Multiracial America from an Asian American Perspective, 6 Asian Am. Pol’y Rev. 49, 51-52 (1996).
39 Prior GPAs and standardized test scores are designed to predict future grades, but they do not accomplish this task perfectly. See, e.g., Franklin Evans, Recent Trends in Law School Validity Studies, in IV Reports of Law School Admissions Council Sponsored Research, 1978-1983, at 347 (1984); James C. Hathaway, The Mythical Meritocracy of Law School Admissions, 34 J. Legal Educ. 86 (1984); Linda Wightman & David Muller, An Analysis of Differential Validity and Differential Prediction for Black, Mexican American, Hispanic and White Law School Students (Law School Admissions Council Research Report 90-93 1990).
The Supreme Court has recognized that numerical indicators may poorly predict actual performance. In Griggs v. Duke Power Co., 401 U.S. 424 (1971), a unanimous Court noted the “inadequacy of broad and general testing devices . . . as fixed measures of capability.” It noted that “history is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment . . .” Id. at 433.
40 Cf. Ronald Dworkin, Law’s Empire 394 (1986) (arguing that the proposition that one should not be judged on a quality beyond one’s control “has been decisively rejected throughout American law and politics”).
41 See, e.g., John D. Lamb, The Real Affirmative Action Babies: Legacy Preferences at Harvard and Yale, 26 Colum. J.L. & Soc. Probs. 491 (1993); Nancy Folk, Deciding Who Goes to Yale, and Why, N.Y. Times, Feb. 12, 1995 (Connecticut Weekly), at 3, 3 (quoting Yale’s director of admissions as saying, “We have a stated commitment to students who are applying to us from families of Yale College graduates.”); William Honan, Picking a Class of ’98: The Early Returns Are in, N.Y. Times, Dec. 15, 1993, at B9, B9 (noting that Brown offers preferences to legacies). 42 See, e.g., Douglas L. Edwards, Rejected by College?, N.Y. Times, Apr. 9, 1983, 1, at 23, 23 (Edwards, a former admissions officer at Brown, notes that preference is given to “‘development cases’that is, applicants from families perhaps wealthy enough to donate a dormitory or endow a department.”).
43 See Kahlenberg, supra note 1, at 54 n.75.
44 Ralph Frammolino & Mark Gladstone, UC Lobbyist Actively Pursued Aid Requests; Education: Records Show He Kept Detailed Logs of Efforts to Gain Admission for Applicants Connected to Political Figures, L.A. Times, Mar. 28, 1996, at A3; Ralph Frammolino & Mark Gladstone, Politicians Sought Aid of UC Lobbyist; Education: State Officials Made Requests for Admissions, Housing Aid and Other Assistance at Every UC Campus, Records Show, L.A. Times, Mar. 26, 1996, at A1.
45 Ralph Frammolino et al., UCLA Eased Entry Rules for the Rich, Well-Connected; Education: Chancellor and Top Aides Gave Admissions Help to Friends or Relatives of Donors and Others Records Show, L.A. Times, Mar. 21, 1996, at A1; Ralph Frammolino et al., Some Regents Seek UCLA Admissions Priority for Friends; Education: Gov. Wilson and Others Who Pushed to End Affirmative Action Are Among Officials Who Sought Assistance, Records Show, L.A. Times, Mar. 16, 1996, at A1.
46 Mark Gladstone & Ralph Frammolino, UC Berkeley Panel Handles Admission Requests by VIPs; Education: Special Committee Reviewed 240 Such Bids Over Past Three Years and Took No Action on 204 of Them, L.A. Times, Apr. 11, 1996, at A1.
47 See Skrentny, supra note 1, at 37-38:
The federal government and forty-seven states give preferences to veterans who take the civil service examination, which, ironically enough, was designed to ensure merit hiring. The federal government and most states, among sundry other measures, simply add ten points to the scores of disabled veterans or their wives, and five points to the scores of nondisabled veterans. After the bonus points are added, veterans are often to be preferred over nonveterans with equal scores. Seven states give absolute preference to all veterans who pass the examination.
48 Carl E. Brody, Jr., A Historical Review of Affirmative Action and the Interpretation of Its Legislative Intent by the Supreme Court, 29 Akron L. Rev. 291, 294-95 (1996).
49 See Fish, supra note 28, at 8.
50 115 S. Ct. 2097 (1995).
51 We note that the Fifth Circuit has recently rejected educational diversity as a compelling interest in Hopwood v. Texas, 84 F.3d 720 (1996). The Supreme Court recently denied certiorari in this case. Texas v. Hopwood, 116 S. Ct. 2581 (1996). It is important to note that, as a matter of law, a denial of a petition for certiorari has zero precedential effect. It is technically wrong to infer that the Supreme Court either approves or disapproves of the Fifth Circuit’s decision.
52 Before Adarand, race-conscious programs were often reviewed under what lawyers call “intermediate scrutiny.” We strongly believe that this “intermediate” level provides the appropriate degree of scrutiny and that strict scrutiny, as currently understood, is unnecessary. This is because intermediate scrutiny would easily smoke out and invalidate any malicious acts of discrimination of the Jim Crow vintage, while recognizing the substantial differences between old-style racial discrimination and affirmative action.
53 In Adarand, the Court made prominent use of the Japanese American internment in explaining why strict scrutiny was necessary to review even benign race-conscious remedies. It is only a slight oversimplification to describe the Court’s argument as, “Because we interned the Japanese Americans, we must get rid of affirmative action.” See generally Reggie Oh & Frank Wu, The Evolution of Race in the Law: The Supreme Court Moves From Approving Internment of Japanese Americans to Disapproving Affirmative Action for African Americans, 1 Mich. J. Race & L. 165 (1996).
54 The first APAs were Filipino seamen who abandoned their Spanish ships near Mexico and resettled in Louisiana in 1565 and 1815. See Marina E. Espina, Filipinos in Louisiana 38-39 (1988).
55 The Exclusion Act barred the entry of laborers for 10 years. The Act was amended and extended in 1884, 1888, 1892, and 1902, then made permanent in 1904. See Bill Ong Hing, Making and Remaking Asian America Through Immigration Policy, 1850-1990, at 23-26 (1993). See also Chae Chan Ping v. United States, 130 U.S. 581 (1889) (upholding the constitutionality of the 1888 Scott Act, which revoked tens of thousands of previously valid return-entry certificates). The Exclusion Act was not repealed until 1943, when our political alliance with China in World War II made the Act intolerable.
56 Prior to the Chinese Exclusion Act, Congress passed the Page Law in 1875 partly to respond to the perceived problem of Asian prostitution. Historian Ronald Takaki notes that the law “was enforced so strictly and broadly [that] it served not only to exclude Chinese prostitutes but also to discourage Chinese wives from coming” to America. Ronald Takaki, Strangers from a Different Shore: A History of Asian Americans 40 (1989).
57 Immigration Act of 1924, 43 Stat. 153, §13(c) (repealed 1952). A few Asians continued to enter the United States as non-quota immigrants through certain family unification exceptions.
58 This law principally targeted the Japanese. By this time, the Chinese had already been excluded by the Chinese Exclusion Acts.
59 Even after the 1965 reforms, Asian immigrants continue to suffer from a bureaucratic crawl in receiving visas. For example, spouses of U.S. citizens from the Philippines must wait an average of seven years. Siblings from the Philippines must wait over 13 years. See Hing, supra note 55, at 115.
60 The phrase comes from Kenneth L. Karst, Belonging to America: Equal Citizenship and the Constitution (1989).
61 See, e.g., United States v. Thind, 261 U.S. 204 (1923); Ozawa v. United States, 260 U.S. 178 (1922). Thind, described by the Court as a Hindu of high caste, was deemed not to be White despite various anthropological accounts that Indians were technically Caucasian. Ian Haney-Lopez, White by Law 79-109 (1996). Ozawa, a person of Japanese descent, had lived continuously in the United States for 20 years, had three years of education at the University of California, sent his children to American schools, attended American church, and spoke only English at home. Nonetheless, because he was not White, he could not naturalize. Yuji Ichioka, The Issei 210-26 (1988).
62 In fact, the change in U.S. immigration and naturalization law and policy may have less to do with enlightened racial attitudes and more to do with the converging Cold War interests of U.S. foreign policymakers seeking to win the “hearts and minds” of unaligned Third World countries. John Hayakawa Torok, “Interest Convergence” and the Liberalization of Discriminatory Immigration and Naturalization Laws Affecting Asians, 1943-65, in Chinese America: History And Perspectives 1995, at 1 (1995).
63 “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” U.S. Const., amend. XIV, §1 (emphasis added).
64 The argument was that the Chinese, although subject to American law and taxation, were not “subject to the jurisdiction” of the United States as required by the Fourteenth Amendment.
65 169 U.S. 649 (1898). The Court explained that the phrase “subject to the jurisdiction” was intended merely to exclude children of parents in diplomatic service or of soldiers in hostile occupation of the country. Id. at 688. It also explained that “[t]o hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage, who have always been considered and treated as citizens of the United States.” Id. at 694.
Justice Fuller disagreed, and in a rhetorical flourish, added that “the presence within our territory of large numbers of Chinese laborers, of a distinct race and religion, remaining strangers in the land, residing apart by themselves tenaciously adhering to the customs and usages of their own country, unfamiliar with our institutions, and apparently incapable of assimilating with our people, might endanger good order, and be injurious to the public interests . . . .” Id. at 731 (quoting Fong Yue Ting v. United States, 149 U.S. 698, 717 (1893). Justice Harlan, who is widely quoted for advancing a color-blind Constitution in his dissent in Plessy v. Ferguson, 163 U.S. 537 (1896), joined Fuller’s dissent.
66 See Regan v. King, 48 F. Supp. 222 (N.D. Cal. 1942).
67 See, e.g., Neil A. Lewis, Bill Seeks to End Automatic Citizenship for All Born in the U.S., N.Y. Times, Dec. 14, 1995, at A26.
68 See Robert Shogan, Abortion Foes Shred Dole’s Tolerance Clause; GOP: Draft Platform Would Also Deny Citizenship to Children Born in United States to Illegal Immigrants, L.A. Times, Aug. 6, 1996, at A1.
69 Lewis, supra note 67, at A26.
70 See, e.g., Sucheng Chan, This Bittersweet Soil: The Chinese in California Agriculture, 1860-1910, at 51-52, 371-74 (1986); John Wunder, Anti-Chinese Violence in the American West, 1850-1910, in Law for the Elephant, Law for the Beaver: Essays in the Legal History of the North American West 212 (John McLaren et al. eds., 1992). For an historical overview of racially motivated violence against Chinese, Japanese, Asian Indian, Filipino, and Koreans in the U.S., see Sumi Cho, Model Minority Mythology and Affirmative Action: Supreme Stereotypes of Asian Americans 48-56 (June 11, 1996) (unpublished manuscript, on file with authors) [hereinafter Cho, Model Minority Mythology].
71 Robert S. Chang, Toward an Asian Pacific American Legal Scholarship: Critical Race Theory, Post-structuralism, and Narrative Space, 81 Cal. L. Rev. 1241, 1255 n.55 (1993). Professor Chang notes that this may be a gross underestimate because most incidents were not documented.
72 See, e.g., Charles J. McClain & Laurene W. McClain, The Chinese Contribution to the Development of American Law, in Entry Denied: Exclusion and the Chinese Community in America, 1882-1943, at 3 (Sucheng Chan ed., 1991); Charles J. McClain Jr., The Chinese Struggle for Civil Rights in Nineteenth Century America: The First Phase, 1850-1870, 72 Cal. L. Rev. 529 (1984).
73 For instance, California’s anti-miscegenation law was not repealed until 1948. See Hyung-chan Kim, Dictionary of Asian Pacific American History 137 (1986). The Supreme Court struck down all anti-miscegenation laws as unconstitutional in Loving v. Virginia, 388 U.S. 1 (1967).
74 See Gong Lum v. Rice, 275 U.S. 78 (1927) (affirming federal constitutionality of Mississippi constitutional requirement of separate schools for Whites and “colored races”).
75 See, e.g., People v. Hall, 4 Cal. 399 (1854). This de jure disability was removed by the 1870 federal Civil Rights Act.
76 This led to the famous Supreme Court decision in Yick Wo v. Hopkins, 118 U.S. 356 (1886), which is commonly cited for the propositions that the Equal Protection Clause of the 14th Amendment protects all persons, not just citizens, and that uneven enforcement of a facially neutral law may amount to an equal protection violation.
77 See Takahashi v. Fish and Game Comm’n, 334 U.S. 410 (1948) (striking down the California law).
78 See, e.g., Terrace v. Thompson, 263 U.S. 197 (1923) (upholding alien land laws in Washington); Porterfield v. Webb, 263 U.S. 225 (1923) (upholding alien land laws in California).
79 See Takahashi, 334 U.S. at 413; Oyama v. California, 332 U.S. 633 (1948).
80 See Fujii v. California, 242 P.2d 617 (1952).
81 Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2106 n.* (1995) (interim edition).
82 See Takaki, supra note 56, at 15.
83 Carey McWilliams, Prejudice; Japanese-Americans: Symbol of Racial Intolerance 251 (1944).
84 Korematsu v. United States, 323 U.S. 214 , 215 (1944).
85 See Peter Irons, Justice at War: The Story of the Japanese American Internment Cases 202-03, 280-89, 293, 303-05 (1983); Eric K. Yamamoto, Korematsu Revisited Correcting the Injustice of Extraordinary Government Excess and Lax Judicial Review: Time for a Better Accommodation of National Security Concerns and Civil Liberties, 26 Santa Clara L. Rev. 1, 10-19 (1986) .
86 Korematsu, 323 U.S. at 233 (Murphy, J., dissenting).
87 Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984)
88 Id. at 1416-17 (N.D. Cal. 1984) (quoting Commission on Wartime Relocation and Internment of Civilians, Personal Justice Denied (1982)) (granting Fred Korematsu’s writ of coram nobis and setting aside his criminal conviction).
89 Roger Daniels, Concentration Camps; North America: Japanese in the United States and Canada During World War II, at xvi (1981).
90 See Frank H. Wu, Neither Black Nor White: Asian Americans and Affirmative Action, 15 B.C. Third World L.J. 225, 238 n.65 (1995) (listing representative articles about the model minority myth).
91 For example, House Speaker Newt Gingrich stated that “Asian Americans are facing a very real danger of being discriminated against because they are becoming overrepresented at prestigious universities that have affirmative action plans.” Clarence Page, Asian Americans in Middle of California Controversy, Oregonian, May 24, 1995, at D7. California Governor Pete Wilson declared in a CNN interview, “Twenty years ago if a more qualified African American student was denied a position in a college class because of his or her skin we called it discrimination and rightly condemned, but now Caucasians and Asian Americans are being discriminated against in the name of affirmative action.” CNN television broadcast, May 1, 1996.
92 See Takaki, supra note 56, at 475; Diane Crispell, Family Ties Are a Boon for Asian-Americans, Wall St. J., Sept. 28, 1992, at B1.
93 Takaki, supra note 56, at 475.
94 See Sucheng Chan, Asian Americans: An Interpretive History 168 (1991).
95 One final problem common to such research analyzing 1970 and 1980 census data is that income comparisons typically fail to hold educational levels constant. As a result, APA income is misleadingly high since APAs on the average have more years of schooling than the average American. See Takaki, supra note 56, at 475-76. Controlling 1970 and 1980 census income data for educational levels, non-Hispanic White Americans have higher incomes than APAs. In other words, in order to achieve equality, APAs must overinvest in education or other forms of human capital. Id. at 475-76 n.6 (citing research by Amado Cabezas, Gary Kawaguchi, and Larry H. Shinagawa). As Cabezas and Kawaguchi have shown, in order to earn an income comparable to White men, Japanese American men acquired more education and worked longer hours. Males from other APA ethnic groups do not match the income level of their White counterparts when human capital investments are controlled. Korean American men earned only 82% of White men’s income, Chinese American men 68%, and Filipino men 62%. Id.
96 See infra part III.C.
97 Data from 1989 to 1991 reflect that 48% of APA males between ages 25 and 64 have four or more years of college education, compared to 29% of White males in the same age bracket. For females, the percentages are 38 for APAs and 23 for Whites. See Paul Ong & Suzanna J. Hee, Work Issues Facing Asian Pacific Americans: Labor Policy, in The State of Asian Pacific America: Policy Issues to the Year 2020, at 141, 144 (1993) [hereinafter Ong & Hee, Work Issues].
98 Hing, supra note 55, at 198 app. See also Ong & Hee, Work Issues, supra note 97, at 145. At the same time, the Immigration and Reform Act of 1965 granted U.S. labor unions the ability to approve or disapprove preferences according to the supply of blue-collar labor, thereby limiting working-class immigrants. Thus, after 1965, the combined preference for technicians and professionals and limitations on blue-collar immigrants served to increase the proportion of South and East Asian immigrants from middle and upper-middle class families. These professional class Asian immigrants were a marked departure from the largely working-class immigrants from China, India, Japan, Korea, and the Philippines prior to 1965.
99 This preference was modified in 1976 to require a job offer from an employer prior to immigration. Nevertheless, the remaining family reunification preferences continued the disproportionate representation of the educated class by allowing educated Asians who had already immigrated to sponsor their often highly educated relatives. Bill Ong Hing, Making and Remaking Asian Pacific America: Immigration Policy, in The State of Asian Pacific America: Policy Issues to the Year 2020, at 127, 131 (1993).
100 L. Ling-chi Wang, Trends in Admissions for Asian Americans in Colleges and Universities: Higher Education Policy, in The State of Asian Pacific America: Policy Issues to the Year 2020, at 49, 52 (1993).
101 Stanley Sue & Sumie Okazaki, Asian American Educational Achievements: A Phenomenon in Search of an Explanation, in The Asian American Educational Experience 139 (Don T. Nakanishi & Tina Y. Nishida eds., 1995) (“To the extent that mobility is limited in noneducational avenues, education becomes increasingly salient as a means of mobility. That is, education is increasingly functional as a means for mobility when other avenues are blocked.” )
102 As Professors Sue and Okazaki have recognized, one must then investigate why other minority groups have not adopted the same attitude toward overinvestment in education. See id. at 141. Tentatively, they suggest that different groups may develop different folk wisdoms about success. And although all people of color may share abstract beliefs in the value of education, APAs seem to hold a more concrete belief that “success in life has to do with the things studied in school.” Id. at 142.
103 For instance, different Asian ethnic groups have markedly different average incomes. Paul Ong & Suzanne J. Hee, Economic Diversity, in The State of Asian Pacific America: Economic Diversity, Issues and Policies 31-56 (Paul Ong ed., 1994) [hereinafter Ong & Hee, Economic Diversity]; Hing, supra note 55, at 135-38, 171-74. 104 One 1869 newspaper editorial complained, “Chinaman can live where stronger than he would starve. Give him fair play and this quality enables him to drive out stronger races.” Roger Daniels, Asian America: Chinese and Japanese in the United States Since 1850, at 40 (1988).
105 William Petersen, Success Story: Japanese-American Style, N.Y. Times, Jan. 9, 1966 (Magazine), at 20, 20-21.
106 In The Bell Curve, authors Charles Murray and Richard Herrnstein revive the notion that African Americans are inherently intellectually inferior to Whites and Asians:
Despite the forbidding air that envelops the topic, ethnic differences in cognitive ability are neither surprising nor in doubt. Large human populations differ in many ways, both culturally and biologically. It is not surprising that they might differ at least slightly in their cognitive characteristics. . . . East Asian (e.g., Chinese, Japanese) whether in America or Asia, typically earn higher scores on intelligence and achievement tests than White Americans . . . . The average White person tests higher than about 84 percent of the population of Blacks . . . . Herrnstein & Murray, supra note 8, at 269-70.
107 See Dinesh D’Souza, The End of Racism: Principles for a Multiracial Society 24 (1995) (identifying “the main contemporary obstacle facing African Americans [as their] destructive and pathological cultural patterns of behavior”).
108 Mari Matsuda, We Will Not Be Used, 1 UCLA Asian Am. Pac. Islands L.J. 79, 80-81 (1994).
109 See supra III.A.
110 Mari J. Matsuda, Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100 Yale L.J. 1329, 1361 (1991). Professor Matsuda has reminded us that every person speaks with an accent. She also reports sociolinguistic research that reveals “comprehension is as much a function of attitude as it is of variability.” Id. at 1362.
111 Cynthia K. Lee, Beyond Black and White: Racializing Asian Americans in a Society Obsessed with O.J., 6 Hastings Women’s L.J. 165, 175 (1995) (quoting Sen. D’Amato) (emphasis added).
112 “Senator Ernest Hollings of South Carolina suggested that a factory’s employees ‘draw a mushroom cloud and put underneath it: Made in America by lazy and illiterate workers and tested in Japan.’” Jerry Kang, Note, Racial Violence Against Asian Americans, 106 Harv. L. Rev. 1926, 1940-41 (1993).
113 See Pat K. Chew, Asian Americans: The “Reticent” Minority and Their Paradoxes, 36 Wm. & Mary L. Rev. 1, 46-53 (1994).
114 For example, he was one of the youngest elected delegates to the 1978 Hawaii State Constitutional Convention.
115 See Lee, supra note 111, at 186.
116 Telephone Interview with Bruce Yamashita (Sept. 9, 1996).
117 Pursuant to Executive Order 11246, the first federal affirmative action policy, the Office of Federal Contract Compliance Programs was created to monitor affirmative action compliance by those institutions receiving federal grants and contracts. An “underutilization analysis” was developed to determine when units or institutions hired below the parity rate in light of the available pool of minority applicants.
118 438 U.S. 265 (1978). In the highly divided Bakke opinion, Justice Powell was able to eke out a narrow plurality for the striking of the Davis plan as a quota and the approval of the use of race in admissions as a “plus” factor to further the compelling interest of “diversity.” See id. at 313-14. Moreover, as Professor Foster suggests, “the diversity concept originated in Bakke, was further developed in Metro Broadcasting, and has since been increasingly invoked in societal discourse because of the legitimacy lent to the concept in those cases.” Sheila Foster, Difference and Equality: A Critical Assessment of the Concept of ‘Diversity,’ 1993 Wis. L. Rev. 105, 111 (1993).
More recently, the future of the diversity rationale has been put in question. See Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996). For a brief analysis of Hopwood as precedent, see supra note 51. See also Donald L. Beschle, “You’ve Got to Be Carefully Taught: Justifying Affirmative Action After Croson and Adarand", 74 N.C. L. Rev. 1141, 1152-53 (1996) (contending that Powell’s forward-looking rationale in Bakke lost ground in subsequent cases that focused on the existence of past guilt to justify affirmative action).
119 Professor Chin argues that the vagueness that inheres in the diversity standard accompanied by academia’s loose application of Bakkean affirmative action requirements currently jeopardizes the future viability of Bakke and diversity-based affirmative action before the Rehnquist Supreme Court. Gabriel J. Chin, Bakke to the Wall: The Crisis of Bakkean Diversity, 4 Wm. & Mary Bill Rts. J. 881, 890-911, 924-30 (1996).
120 Unfortunately, the general decline of “racial discrimination” from the public discourse in favor of the less controversial goal of “diversity” was consistent with a variety of reactionary explanations for the under-parity representation of various groups of color in society’s institutions, ranging from those of The Bell Curve variety that resurrected long discredited notions of biological inferiority, see supra note 106, to model minority paradigms that posit the cultural inferiority of non-model minority groups.
121 Linda J. Zimbler, National Center for Educational Statistics, U.S. Dep’t of Educ., Faculty and Instructional Staff: Who Are They and What Do They Do? 7, 14-15 (1994). The underrepresentation in these fields is particularly troubling given the importance of these research areas to community issues and formation. Some may argue that such categorical concentrations represent free choice or cultural priorities of APAs as a group as opposed to exclusionary practices. This analysis begs the question by failing to see that exclusionary practices or stereotyping may shape cultural priorities of a group or individual. For example, if English departments are reluctant to hire APA literature professors based on prevalent stereotypes of poor language and communication skills, then APAs considering doctoral programs will rationally forego pursuing Ph.D.s in English, which in turn, reinforces the problem. While exercising their “free choice,” individuals can certainly be expected to respond to the effects of racial and cultural stereotyping.
More research and data collection needs to be conducted to measure the extent to which external factors influence career decisions. Some qualitative research and anecdotal evidence confirm the presence of entry barriers for APA faculty in non-stereotypical fields and disciplinary tracking prior to the Ph.D. stage. Ironically, however, the perceived success of APAs in higher education renders consistent research and useful data collection by monitoring agencies the exception, not the rule.
122 Zimbler, supra note 121, at 15, table 6 (reporting statistics for full-time faculty with any instructional responsibilities by race/ethnicity for Fall of 1992). For recent data on law school hiring, see Alfred C. Yen, A Statistical Analysis of Asian Americans and the Affirmative Action Hiring of Law School Faculty, 3 Asian L.J. (forthcoming 1996).
123 Deborah Carter & Reginald Wilson, Tenth Annual Report on Minorities in Higher Education 29 (American Council on Education 1991) (noting that APAs were only 1.4% of all higher education administrators in 1989, while constituting 4.7% of all full-time faculty).
124 See Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989). In Wards Cove, despite segregated conditions described in the dissent as a “plantation,” the Supreme Court found that the categorical concentration of predominantly APA workforce in the low-skill jobs and their underrepresentation in management or skilled jobs did not constitute employment discrimination. To add insult to injury, when Congress overruled the Court’s elevated standard of proof for employment discrimination cases in the Civil Rights Act of 1991, both Houses approved a special exemption for the Wards Cove employers, thereby denying relief under the act triggered by the APA and Alaska Native Wards Cove plaintiffs.
125 Asian Pacific Americans for Affirmative Action, We Won’t Go Back!: Why Asian Pacific Americans Should Support Affirmative Action 8 (1996) (on file with authors).
126 Chinese for Affirmative Action, The Broken Ladder ’92: Asian Americans in City Government 5 (1992).
127 Id.
128 Id.
129 Id. at 11.
130 For example, APA women face unique problems such as racialized sexual harassment that goes unaddressed by parity measurements. APA women are particularly susceptible to these types of workplace discrimination. For a more in-depth treatment of Asian Pacific American women and sexual harassment, see Sumi Cho, Converging Stereotypes in Racialized Sexual Harassment: Where the Model Minority Meets Suzie Wong, in Adrien Wing, Critical Race Feminism (forthcoming 1997). See also University of Pennsylvania v. EEOC, 493 U.S. 182 (S. D. Iowa 1990); Jew v. University of Iowa, 749 F. Supp. 946 (1990); Paul v. Stanford University, 1986 WL 614 (N.D. Cal.); Martha Chamallas, Jean Jew’s Case: Resisting Sexual Harassment in the Academy, 6 Yale J. L. Fem. 71 (1994); Tape of Forum, Asian Pacific Americans Fighting Back (October 1991) (on file with author). The cases of Jean Jew at the University of Iowa, Rosalie Tung at the University of Pennsylvania, and Diane Yoshikawa Paul at Stanford reveal an appalling manifestation of racial and sexual harassment that may represent only the tip of the iceberg.
131 See generally Takagi, supra note 5. Takagi explores admissions controversies in the mid-1980s for APA students at elite universities such as UC Berkeley, UCLA, Brown, Harvard, Princeton, and Stanford. APA applicants and community leaders voiced concern over admissions rates that were lower than that of White applicants, despite having generally stronger median levels of educational achievement. See id. at 23, 59. “‘Not only, then, are Asians being admitted overall at rates lower than Whites, but the very categories that seem to provide large advantages for Whites are not terribly consequential for Asians. Going to a prep school almost doubles the chances that a white applicant will be admitted, while the Asian applicant’s chances actually decline.’” Id. at 30-31 (quoting David Karen, Who Gets in to Harvard: Selection and Exclusion at an Elite College 318 (1985) (unpublished dissertation, Harvard University)).
132 See generally Eugenia Escueta & Eileen O’Brien, Asian Americans in Higher Education: Trends and Issues, American Council of Education Research Briefs Series, Vol. 2, No. 4, (1991); Sumi Cho, Confronting the Myths: The State of Asian American Academic Employment; Proceedings of 10th Annual Asian Pacific Americans in Higher Education Conference (forthcoming 1996); Yen, supra note 122. 133 Eugenia Escueta & Eileen O’Brien, Asian Americans in Higher Education: Trends and Issues, in The Asian American Educational Experience 259, 267 (Don T. Nakanishi & Tina Yamano Nishida eds., 1995).
134 Chinese for Affirmative Action, The Broken Ladder ’92: Asian Americans in City Government 5 (1992).
135 One definition of “glass ceiling” discrimination is forwarded by Bettina Plevan, Chair of the 1992 Committee on Women in the Profession of the Association of the Bar of the City of New York: “The glass ceiling refers to the transparent but very real barrier between middle management and its professional equivalent and the more elusive realm of success at the top of the ladder . . . .” Cynthia F. Epstein et al., Glass Ceilings and Open Doors: Women’s Advancement in the Legal Profession, 64 Fordham L. Rev. 306, 306 (1995). For a discussion of how the glass ceiling operates against APA scientists and engineers, see Paul Ong & Evelyn Blumenberg, Scientists and Engineers, in The State of Asian Pacific America: Economic Diversity, Issues and Policies 165-89 (Paul Ong ed., 1994).
136 Escueta & O’Brien, supra note 132, at 8. This means that APAs as a group also have the largest proportion of untenured, tenure-track faculty. Various unfair tenure and promotion practices serve the same purpose as earlier practices that excluded APAs from unions and occupational sectors, namely the preservation of White property interests in the best jobs and positions of privilege within occupations. Ironically, model minority stereotypes may trigger academic jealousy and fears of unfair competition that isolate APAs from established (and voting) colleagues as well as from junior faculty. Often, such fears of Asian superiority are compensated by negative model minority ascriptions of deficits in such intangible categories as “presence,” “self-confidence,” or “collegiality” that are then used to deny APA candidates promotion or tenure.
137 Id. (citing Equal Employment Opportunity Commission, Higher Education Staff Survey, 1989 EEO-6 Detail Summary Report (unpublished data, 1991)).
138 Historical discrimination and contemporary problems provide the unifying social conditions for construction of a pan-ethnic “Asian Pacific American” identity. While it makes historical sense to aggregate the experiences of Americans of Chinese, Japanese, Korean, Filipino, Asian Indian, Vietnamese, Cambodian, and others of ethnic Asian Pacific descent to discuss an APA history of discrimination, it is dangerous to aggregate all APA groups in a contemporary “Horatio Alger”-like American success narrative. In fact, there are wide disparities in the socioeconomic status among various Asian subgroups. Ong & Hee, Economic Diversity, supra note 103, at 31-56.
139 Herbert Barringer et al., Education, Occupational Prestige, and Income of Asian Americans, 63 Soc. of Educ. 27, 29 (1990).
140 Carter & Wilson, supra note 123, at 22, 24-25, 27-28. The authors report that in 1989, the full-time male to female faculty percentages by racial minority group were as follows:
| PERCENTAGE OF FULL-TIME FACULTY (1989) | MEN | WOMEN |
| African American | 53% | 47% |
| Latina/o | 67% | 33% |
| American Indian | 66% | 34% |
| APA* | 79% | 21% |
* Note that ACE statistics use the term Asian American regardless of U.S. citizenship, and therefore includes both citizens and noncitizens. See also Escueta & O’Brien, supra note 132, at 8.
This American Council of Education (“ACE”) study also revealed that in 1989, women earned only 29% of APA Ph.D.s compared to 43% of all women earning doctorates in the general population. Furthermore, while APAs as a group have the lowest tenure rate of all groups at 41%, APA women suffer an even lower rate of 31%. Categorical concentrations also differ widely according to gender. As mentioned above, engineering has the highest concentration of APA faculty. Almost 17% of all APA men employed in higher education work in this field. However, only 1.1% of APA women are employed as faculty in engineering departments. APA men are 4% of all full-time faculty, but have higher percentage representations in computer sciences (10%), natural sciences (7%), and first-professional disciplines (7%). By contrast, the only over-parity representation of APA women exists in the field of foreign languages and area studies.
141 See generally U.S. Civ. Rts. Comm’n Rep., Civil Rights Issues Facing Asian Americans in the 1990’s (1992) [hereinafter Civil Rights Issues]; Oversight Hearing Before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, 100th Cong., 1st Sess. (1987). See also Chang, supra note 71, at 1252-55; Kang, supra note 112.
142 See Civil Rights Issues, supra note 141, at 46-47.
143 Kang, Note, supra note 112, at 1928.
144 John Hayakawa Torok, Committee Against Anti-Asian Violence, Chronology of Bias-Motivated or Related Killings Since 1981 (1993).
145 Special Circumstance, AsianWeek, May 10, 1996, at 4.
146 Penalty enhancement statutes provide for harsher penalties for crimes motivated by prejudice against groups.
147 Other examples of anti-Asian violence include: a police detective brutalized Long Guang Huang while falsely arresting him in May 1985; youths fractured the skull and legs of Sing Vang, a Vietnamese refugee, in September 1985; a gang called the “Dotbusters” beat to death Navroze Mody, an Asian Indian American, in September 1987. In 1989, Jim Loo, a Chinese American, was murdered in a pool room fight in which he was called “gook,” “chink,” and blamed for the death of American soldiers in Vietnam. The same year, a gunman motivated by racial hatred strafed a schoolyard with an automatic weapon, killing five children of Southeast Asian descent. In 1990, Hung Troung, a fifteen year-old [sic] Vietnamese youth, was killed by two men, said to be skinheads, shouting “white power.” While screaming “Karate! Karate!,” skinheads in Denver forced six Japanese students to stand in a line and beat them with baseball bats. In the summer of 1992, some of the rioters in Los Angeles deliberately targeted Asian American businesses. A nineteen-year-old Vietnamese American, Luyen Phan Nguyen, was beaten to death at a party while onlookers yelled “Viet Cong.”
Kang, Note, supra note 112, at 1927 n.11. See also Cynthia K. Lee, Race and Self Defense: Toward a Normative Conception of Reasonableness, 81 Minn. L. Rev. (forthcoming Dec. 1996) (discussing the murder of Yoshihiro Hattori, a foreign exchange student killed in alleged self-defense, and the shooting of Steffan Wong by a neighbor who presumed that Wong, because he was Asian, posed a martial arts threat) (manuscript at 43-56, on file with authors); John Hayakawa Torok, On the Intersections of Violence Racial Nativism, Law and White Supremacy: An Asian American Perspective (June 2, 1994) (unpublished manuscript presented at the 5th Annual Critical Race Theory workshop, on file with authors). Torok catalogs the following: A white public school teacher pushed 19-year old Ly Yung Cheung to her death in front of a New York city subway train in 1984. He believed that he was pursued by Asian demons and stated, “Now we’re even” as she died. Jean Har-Kar Fewel, an 8-year old orphan and native of Hong Kong was found raped, murdered, and left hanging from a tree in North Carolina. In the apartment of the man arrested for her murder, police found a copy of a Penthouse magazine that included a photopictorial that eroticized the torture, bondage, killing, and hanging of young Japanese women. Paul Him Chow was bludgeoned to death in Greenwich Village in 1988, his face and head beyond recognition. Police refused to classify the attack as bias-related despite their determination that there were at least four attackers and the victim’s prior complaints of harassment for being gay and Asian in the same area. 148 See generally National Asian Pacific American Legal Consortium, 1995 Audit of Violence Against Asian Pacific Americans: The Consequence of Intolerance in America (1996).
149 See, e.g., Carol Innert, College Admission Study Finds Asian-Americans Have a Gripe, Wash. Times, Dec. 16, 1995, at A5; Living by the Numbers: Has the Time Come to Abolish Affirmative Action? An Interview with the Two Sponsors of What Has Been Called ‘the Angry White Men’s Initiative,’ S.F. Chron., Feb. 12, 1995, at Zone 1 (Sunday).
150 See Kang, Negative Action, supra note 25, at 2 n.4.
151 See Cho, Model Minority Mythology, supra note 70.
152 Jerome Karabel & David Karen, Go to Harvard; Give Your Kid a Break, N.Y. Times, Dec. 8, 1990, at 25; Karen De Witt, Harvard Cleared in Inquiry of Bias, N.Y. Times, Oct. 7, 1990, §1, at 35; Letter from Thomas J. Hibino, Acting Regional Director, Office for Civil Rights, U.S. Department of Education, to Derek Bok, President, Harvard University (Oct. 4, 1990) (on file with the authors).
153 This sort of treatment is called “neutral action,” in contrast to both “affirmative action” and “negative action.” See supra III.D.1, 3.
154 For example, during the Reagan administration, the Office of Federal Contract Compliance Programs, charged with enforcing Title VII anti-discrimination laws for public employers, suffered severe budget cuts that slashed personnel more than 50% between 1979 and 1985. M.V. Lee Badgett & Heidi I. Hartman, The Effectiveness of Equal Employment Opportunity Policies, in Economic Perspectives on Affirmative Action 57, 63 (Margaret C. Simms ed., 1995). Badgett and Hartman note a similar phenomenon of declining federal enforcement of anti-discrimination laws under the Equal Employment Opportunity Commission during the Reagan years.
Id. See also Jennifer Russell, The Race/Class Conundrum and the Pursuit of Individualism in the Making of Social Policy, 46 Hastings L.J. 1353, 1436-37 (1995) (observing that “[u]nder the Reagan administration, there was no serious enforcement against civil rights valuations by schools, colleges, or job training institutions. Instead, civil rights agencies slashed data collection, investigations, and public release of information . . . . Although the laws were still on the books, the basic attitude was to minimize enforcement.”).
155 Sumi Cho, A Theory of Racial Mascotting, Remarks at the First Annual Asian Pacific American Law Professors Conference (Oct. 14, 1994) (discussing how APAs have been relegated to the role of a “racial mascot” for conservatives in contemporary political battles).
156 Eric Yamamoto forwards the concept of “simultaneity” to convey that APAs as a group are not simply subjugated by Whites or manipulated by Whites as a “model minority,” but also exercise agency to oppress African Americans and Latina/os. For example, APAs may be discriminated against by Whites (ceilings on Asian admissions at elite schools); be manipulated by Whites (forwarded by affirmative action opponents as the true victims); and simultaneously be perpetrators of oppression (by opposing affirmative action when it does not serve their immediate interests). Professor Yamamoto advocates “interracial justice,” a basic commitment to anti-subordination among groups of color. Eric Yamamoto, Rethinking Alliances: Agency, Responsibility, and Interracial Justice, 3 UCLA Asian Pac. Am. L.J. (forthcoming Oct. 1996).