2015 COLUMBIA JOURNAL OF RACE AND LAW 79 
 

A CRITIQUE OF THE MOTIVATIONS BEHIND 

NEGATIVE ACTION AGAINST ASIAN 

AMERICANS IN U.S. UNIVERSITIES: 
THE MODEL VICTIMS 

 
SHAWN HO* 

 
To deal effectively with negative action against Asian Americans, it is crucial to first understand the motivations 
behind negative action.  This Article posits that these motivations are complex—they are an intricate tapestry 
of racism and benevolence interwoven with both conscious and unintentional aspects.  In theorizing about and 
critiquing these motivations by unpacking a 4-quadrant matrix, it seeks a deeper understanding of how to deal 
with negative action against the “Model Victims.”  This Article further suggests that the tensions arising from 
negative action flow from the Supreme Court’s adoption of a pure diversity rationale for affirmative action; it is 
necessary to have a more nuanced conception of college diversity that remains true to the spirit of remediation for 
America’s legacy of racial injustice while simultaneously seeking to dismantle stereotypes and racism.  Finally, 
it discusses the possible ways for Asian Americans to deal with negative action going forward.  Only by seriously 
grappling with its own history and the cultural scripts that disadvantage Asian Americans—and all groups of 
color—can America hope to effectuate its ideals of true meritocracy. 

 
I. INTRODUCTION............................................................................................... 80 
 
II. DEFINING NEGATIVE ACTION AGAINST ASIAN AMERICANS..................81 
 
III. MYRIAD WAYS THAT NEGATIVE ACTION IS PERPETUATED AGAINST ASIAN 

AMERICANS...................................................................................................... 82 
 

IV. THEORIZING AND CRITIQUING THE MOTIVATIONS BEHIND NEGATIVE 
ACTION AGAINST ASIAN AMERICANS.............................................................. 87 
 
A. Conscious Racism: Thinking That Asian Americans Are Unfair 

Competitors........................................................................................ 88 
 

B. Unintentional Racism: Believing The Corollaries Of The Model 
Minority Stereotype............................................................................90 
 
1. Asian Americans are Only Good at S.T.E.M. (Science, 

Technology, Engineering and Mathematics).......................91 
 

2. Asian Americans are Not Well-Rounded Students.............. 92 
 

3. Asian Americans are Below Whites in the United States’ Racial 
Hierarchy................................................................................ 93 
 



80 A Critique of the Motivations Behind Negative Action In U.S. Universities Vol. 5.2 
 

 
 

C. Conscious Benevolence: Thinking That Negative Action Leads To 
Diversity.............................................................................................. 94 
 

D. Unintentional Benevolence: Believing That Negative Action Reduces 
Racial Tension And Resentment Against Asian Americans..............95 
 

V. POSSIBLE WAYS FORWARD FOR ASIAN AMERICANS TO DEAL WITH NEGATIVE 
ACTION............................................................................................................ 96 
 

VI. CONCLUSION................................................................................................... 98 
 

I. INTRODUCTION 

The Asian American student was, by all traditional metrics, a consummate success: perfect scores on 
three college admissions tests, top of the class at a competitive high school, captain of the tennis team, and a 
volunteer for National Public Radio.1  Despite these accomplishments, Harvard University rejected the 
student’s application to join the 2014 entering class.2  The Students for Fair Admissions (SFA) filed a federal 
suit in Massachusetts in November 2014.  The SFA, a Texas-based non-profit organization, alleged that 
Harvard employs impermissibly “racially and ethnically discriminatory policies” when evaluating undergraduate 
students, which penalize Asian American applicants solely on the basis of race.3  

 
Was the student denied admission to a highly selective U.S. university because he is Asian American,4 

that is, because of “negative action”?  What are the motivations behind negative action against Asian Americans?  
Many writers have written about how the Asian American model minority stereotype has been used to argue 
against affirmative action.5  However, a conspicuous omission in the literature is the impact of the stereotype’s 
corollaries on negative action.  Negative action is immensely important as it affects the next generation of Asian 
American leaders, with adverse ripple effects on the numbers of Asian Americans in graduate schools, academia, 
and the professional fields.  Ultimately, negative action stymies Asian Americans’ aspirations to join America’s 
inner circle of political, economic, and social leaders, limits that leadership circle’s exposure to bright minds with 
fresh ideas, and breeds cynicism among Asian students and parents who emigrated here in search of opportunity.6  
To deal effectively with negative action against Asian Americans, it is crucial to first understand the motivations 
behind negative action.  

 

                                                           
* Legal Service Officer, Singapore; LL.M., Columbia University School of Law; LL.M., Cambridge University; LL.B. with 
Honors, National University of Singapore.  All views expressed in this article remain the author’s own views, and do not 
represent the views of his organization. 
1 Harvard Under Fire, THE ECONOMIST, Nov. 29, 2014, http://www.economist.com/news/united-states/21635027-does-
university-impose-silent-quotas-against-asian-americans-harvard-under-fire. 
2 Complaint at 8, Students for Fair Admissions v. President and Fellows of Harvard College, No. 14 Civ. 14176 (D. 
Mass. Nov. 17, 2014). 
3 Id. 
4  By “Asian American”, I refer to persons of Asian descent who live in the U.S., regardless of citizenship status.  The term 
“Asian American” can serve as a unifying identity based on the common experiences of Asian Americans because of the 
inability of most non-Asian Americans to distinguish between different Asian groups.  Robert S. Chang, Toward an Asian 
American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 CALIF. L. REV. 1243, 1246 n.7 (1993). 
5 Among the most prominent is Mari J. Matsuda, We Will Not Be Used: Are Asian-Americans the Racial Bourgeoisie?, in Where 
is Your Body?, 149-59, 150 (1997).  Frank H. Wu has criticized the use of the model minority stereotype (for political 
purposes) as a means of attacking affirmative action for other racial minority groups.  See Frank H. Wu, Neither Black Nor 
White: Asian Americans and Affirmative Action, 15 B.C. THIRD WORLD L.J. 225, 227 (1995). 
6 Daniel Golden, The New Jews: Asian Americans Need Not Apply, in THE PRICE OF ADMISSION: HOW AMERICA’S RULING 
CLASS BUYS ITS WAY INTO ELITE COLLEGES — AND WHO GETS LEFT OUTSIDE THE GATES 196, 200-01 (2007).   



2015 COLUMBIA JOURNAL OF RACE AND LAW 81 
 

What are the motivations behind negative action?  This Article argues that the motivations behind 
negative action against Asian Americans are not simply outright prejudice against those of Asian origin; rather, 
they are an intricate tapestry of racism7 and benevolence, with both conscious and unintentional aspects.   This 
Article further suggests that the tensions arising from negative action flow from the Supreme Court’s adoption 
of a pure diversity rationale for affirmative action, calling for an increased attention to the remediation rationale. 

 
Negative action is undoubtedly motivated partly by the conscious idea that defensive measures are 

required to curb unfair competition by Asian American students.  Racism in negative action may often stem 
from unintentional and often unconscious acceptance of the corollaries of the model minority stereotype:8 that 
Asian Americans are only good at S.T.E.M. (science, technology, engineering, and mathematics) fields, are not 
well-rounded, and ultimately below Whites in the American racial hierarchy.  

 
But such racism alone does not present a complete picture.  This Article also examines the purportedly 

benevolent aspects of negative action, in which admissions officers either consciously or subconsciously believe 
that negative action will eventually benefit Asian Americans by promoting racial diversity and reducing racial 
tension and resentment against Asian Americans.  This essay aims to critique the motivations behind negative 
action against Asian Americans, and in so doing, get a deeper understanding of how to deal with its 
consequences. 

 
In Part II, this Article will define negative action against Asian Americans.  In Part III, it will move on 

to examine the myriad ways that negative action is perpetuated against Asian Americans.  In Part IV, this Article 
will theorize about and critique the motivations behind negative action against Asian Americans and endeavor 
to unpack a four-quadrant matrix involving racism and benevolence that is both conscious and unintentional.  
Finally, Part V will conclude by discussing the possible ways for Asian Americans to deal with negative action 
going forward.  
 
II. DEFINING NEGATIVE ACTION AGAINST ASIAN AMERICANS 

Jerry Kang, Law Professor and Associate Provost at the University of California Los Angeles (UCLA) 
School of Law and the Korea Times-Hankook Ilbo Endowed Chair in Korean American Studies, defines 
negative action as:  
 

“Unfavorable treatment based on race, using the treatment of Whites as a 
basis for comparison.  In functional terms, negative action against Asian 
Americans is in force if a university denies admission to an Asian American who 
would have been admitted had that person been White.”9 

 
Negative action has been described as a “minus factor” applied to Asian American candidates relative to white 
candidates, a practice that is separate and apart from any affirmative action “plus factor” given to other minority 

                                                           
7 Frank H. Wu, The Symbolic Black and White: The New Challenges of a Diverse Democracy (2010) (unpublished manuscript) (on 
file with author) (“So what I’d like to suggest is that we must understand that much of the struggle that we face . . . has to 
do with the legacy, the shared burden of history that we together bear, it has to do with institutions and structures.  It has 
to do with those cases that we might well balk at calling ‘racism,’ yet where it is apparent that a pattern emerges that correlates to race: we lack 
the appropriate vocabulary to describe this protean phenomenon.  And so the label is less important than the effects.  Many would resist the term 
‘racism,’ even if they could be persuaded of the influence of race.  They can be won over with effective advocacy”) (emphasis added). 
8 Jerry Kang described the operation of racial stereotypes in our interactions with others as “racial mechanics …we map 
each other into racial categories that trigger associated racial meanings.”  Darren Seiji Teshima, A ‘Hardy Handshake Sort 
Of Guy’: The Model Minority And Implicit Bias About Asian Americans In Chin v. Runnels, 11 ASIAN PAC. AM. L.J. 122, 131. 
9 Jerry Kang, Negative Action Against Asian Americans: The Internal Instability of Dworkin’s Defense of Affirmative Action, 31 HARV. 
C.R.-C.L. L. REV. 1, 3 (1996) (emphasis added). 

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82 A Critique of the Motivations Behind Negative Action In U.S. Universities Vol. 5.2 
 

 
 

applicants.10  Adrian Liu has argued that while affirmative action reduces race discrimination in admissions by 
enlarging the notion of merit in a way that benefits all groups, negative action disadvantages Asian Americans 
on the basis of race and maintains the discriminatory effects of traditional admissions policies.11   
 

Negative action has also been likened to the treatment of Jewish people.  In the early 20th century, 
Jewish applicants to universities and jobs faced similar responses to those which face many Asian Americans 
today; mainstream American society viewed Jewish people as a competitive threat and inherently disloyal to 
America, leading many universities to establish higher admissions standards for Jewish applicants than for their 
non-Jewish white counterparts.  In fact, in the early 20th century, some Ivy League institutions placed strict caps 
on the number of Jewish students they would accept.12  In today’s negative action landscape, such caps are no 
longer used.  Jerry Kang notes, however, that negative action can be implemented either by a “hard” system of 
inflexible quotas or by a “soft” unquantified, gestalt admissions calculation.13  The substantial discretion 
afforded to college admissions officers, coupled with the relative secrecy of the admissions process, allows for 
such “soft” calculations to play important but unknown roles in Asian American students’ chances of success.  
The next part of this Article will document some of the more common ways in which Asian Americans are and 
have been disadvantaged, whether consciously or not, in the college admissions process. 

 
It is worth noting that the forms of negative action this Article deals with are undoubtedly not 

exclusively used to disadvantage Asian American applicants.  Negative action also applies to disadvantage other 
racial minorities, such as African Americans and Latinos.  This paper focuses on the impact of negative action 
on Asian Americans, due to several unique aspects of the Asian experience in America.  Though the population 
of people of Asian origin is growing faster than any other racial group in America, Asian Americans represent 
roughly five percent of the U.S. population.14  Consequently, it is more difficult for Asian Americans to organize 
politically to address these issues, and Asian organizing efforts and campaigns to build political leverage and 
power are particularly difficult.  Organizing efforts are further hampered by the linguistic, cultural, and 
phenotypic diversity encompassed by the term “Asian American.”  These differences mean that the experiences 
of Asian American differ vastly; the South Asian American experience in the wake of the terrorist attacks of 
September 11th, 2001, for example, has differed greatly from the experiences of other Asian Americans. 
 
III. MYRIAD WAYS THAT NEGATIVE ACTION IS PERPETUATED AGAINST ASIAN AMERICANS  

 
There are several indicators that negative action is being employed—both explicitly and implicitly—

against Asian Americans in university admissions.  As a purely empirical matter, Asian American students often 

                                                           
10 William C. Kidder, Negative Action versus Affirmative Action: Asian Pacific Americans are Still Caught in the Crossfire, 11 MICH. 
J. RACE & L. 606 (2006).  This Article thus does not seek to criticize the use of affirmative action to broaden conceptions 
of merit and remedy institutional racism as a result of overt discriminatory policies of the past; rather, it will seek to lay 
out the problems of the current framework under which many universities operate, resulting in widespread problems of 
negative action. 
11 Adrian Liu, Affirmative Action & Negative Action: How Jian Li’s Case Can Benefit Asian Americans, 13 MICH. J. RACE & L. 
391, 397 (2008). 
12 See Kidder, supra note 11 (Noting the harmful effects of unsupported claims regarding Asian Americans influencing 
public discourse).  See also Scott Jaschik, New Arguments on Affirmative Action, INSIDE HIGHER ED (June 21, 2006), 
http://www.insidehighered.com/news/2006/06/21/affirm.  Ultimately, it is the “iron law” of university admissions at 
work: “An institution will retain a particular process of selection only so long as it produces outcomes that correspond to 
perceived organizational interests (of the dominant White majority).”  Ling-Chi Wang, Meritocracy and Diversity in Higher 
Education: Discrimination Against Asian Americans in the Post-Bakke Era, 20 THE URB. REV. 189, 191 (1988). 
13 Kidder, supra note 8.  Other commentators have noted that negative action exists in many forms - it can involve outright 
discrimination against Asian Americans, admission limits on Asian Americans in the name of maintaining diversity, or 
existing bias in admissions policies that disadvantage Asian Americans relative to Whites. See Liu, supra note 12, at 414. 
14 Anna Brown, U.S. Hispanic and Asian Populations Growing, but for Different Reasons, PEW RESEARCH CTR. (June 26, 2014),  
http://www.pewresearch.org/fact-tank/2014/06/26/u-s-hispanic-and-asian-populations-growing-but-for-different-
reasons/. 



2015 COLUMBIA JOURNAL OF RACE AND LAW 83 
 

need to perform better on standardized exams to receive the same benefit as their white counterparts.  A 2009 
study by Espenshade and Radford established that, controlling for other factors of students’ backgrounds, a 
student who self-identifies as Asian would need to score on average 140 points higher on the Standardized 
Admissions Test (“SAT”) than a white student, 320 points higher than a Latino student, and 450 points higher 
than a black or African American student to gain admission to the same undergraduate institution.15  Thus, 
whether in the form of “hard” or “soft” negative action, the data strongly suggests that at least some Asian 
Americans are being denied admissions into universities to which their similarly qualified white colleagues are 
admitted. 

 
Some upper level administrators at prestigious U.S. universities have explicitly admitted to taking 

negative action against Asian Americans.16   The Chancellor of the University of California, Berkeley (“UC 
Berkeley”), for example, stated that “It is clear that decisions made in the admissions process indisputably had 
a disproportionate impact on Asians.”  California Congressman Rohrabacher took a more conservative tone in 
remarking, “That's academic gobbledygook for: ‘We discriminated.’”17  After such contentious debates about 
the role of race in admissions decisions, California banned all state governmental institutions from considering 
race and ethnicity in areas of public employment, public contracting, and public education in 1996, forcing all 
state schools to adopt completely race-blind admissions policies.18  As a result, over the past 20 years, the 
percentage of students of Asian descent accepted into UC Berkeley has increased sharply from 25% in 1989 to 
about 45% in 2012.19  Certain private schools in California began to follow this pattern as well, with similar 
results; California Institute of Technology, a private university that has adopted a similar race-blind admissions 
policy, displayed a similar trend: the percentage of its students of Asian descent increased from 25% in 1992 to 
about 43% in 2013.20  Importantly, such race-blind measures are not without problems.  Proposition 209 has 
been repeatedly challenged by pro-affirmative-action groups; data suggests that the adoption of race-blind 
admissions policies has had the effect of dramatically reducing the number of black and Latino students 
admitted to University of California schools.  At UC Berkeley, for example, the admissions rate for black 
students fell from 49% in 1997 to just 24% in 1998—the first year of students admitted after the new policies 
went into effect.21 
 

Despite these changes in California schools, most highly selective universities have continued to use race 
in their admissions decisions, enacting and maintaining an array of policies that negatively affect Asian 
Americans.22  Indeed, Asian American student populations are relatively low at most highly selective universities: 
15.5% of Yale’s 2013 entering class is Asian American, compared with 16.1% of Dartmouth’s, 17.6% of 
Princeton’s, and 19.1% of Harvard’s.23  Such numbers are artificially controlled, both in the past and now, through 
a variety of policies where negative action is brought to bear against Asian Americans.  
 

                                                           
15 THOMAS J. ESPENSHADE AND ALEXANDRIA WALTON RADFORD, NO LONGER SEPARATE, NOT YET EQUAL: RACE 
AND CLASS IN ELITE COLLEGE ADMISSION AND CAMPUS LIFE (2009). 
16 See Kang, supra note 10, at 19 (noting examples of universities admitting to some forms of negative action). 
17 Harold Johnson, Model Victims, NAT’L REV., July 20, 1992, at W7, available online at 
http://findarticles.com/p/articles/mi_m1282/is_n14_v44/ai_12504486/. 
18 CAL. CONST. art. I, § 31 
19 Rohin Dhar, Do Elite Colleges Discriminate Against Asians?, PRICEONOMICS (Apr. 24, 2013), 
http://blog.priceonomics.com/post/48794283011/do-elite-colleges-discriminate-against-asians 
20 Stephen Hsu, 20 years @15 percent, does Harvard discriminate against Asian-Americans?, Spartan Ideas, MICH. STATE U. (Nov. 
18, 2014), http://spartanideas.msu.edu/2014/11/18/20-years-15-percent-does-harvard-discriminate-against-asian-
americans/ 
21 Michael Dobbs, Universities Record Drop in Black Admissions, WASHINGTON POST, Nov. 22, 2004, at A01, available online 
at http://www.washingtonpost.com/wp-dyn/articles/A2830-2004Nov21.html. 
22 Pat K. Chew, Asian Americans: The ‘Reticent’ Minority and Their Paradoxes, 36 WM. & MARY L. REV. 1, 63 (1994). 
23 Kara Miller, Do colleges redline Asian-Americans?, THE BOSTON GLOBE (February 8, 2010), 
http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2010/02/08/do_colleges_redline_asian_americ
ans/. 

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84 A Critique of the Motivations Behind Negative Action In U.S. Universities Vol. 5.2 
 

 
 

Until quite recently in the history of Asians in America, many universities used strict quota systems to 
cap the number of Asian American admissions.  For example, Asian American students used to be denied 
admission to Brown University regardless of their credentials once their number reached a historically determined 
upper quota.24  A Brown study revealed that each fall, the admissions office established a set of enrollment goals 
based on the structure of the previous year’s freshman class.25  The number of admitted students was monitored 
throughout Brown’s admissions season to ensure that the relative proportions of athletes, minorities, and alumni 
children, remained fairly constant from year to year.26  As would be expected, this admissions process perpetuated 
the university’s existing racial composition and failed to account for demographic changes within American 
society at large.  As Asian immigration began to increase following the passage of the Immigration and Nationality 
Act of 1965—which ended the ban on immigration from all Asian countries which had been in place for 
decades—Asians came to represent the fastest growing group of applicants for university admission.  Brown’s 
continued use of historically determined upper quotas, however, did not adjust the number of students of Asian 
origin admitted accordingly, keeping the number of Asian students disproportionately low.27  Brown later 
conceded that such a quota was unfair towards Asian American applicants.28  And in the late 1970s, the Supreme 
Court ruled that strict racial quotas are not permitted.29   
 

Current forms of negative action are often more subtle and less overtly racialized.  A common form 
of such subtle negative action is the practice of comparing Asian American students only to each other during 
the admissions process.  Such a mechanism keeps some level of racial quota in place by implying that 
universities should only accept the most qualified candidates from each racial group.30  Universities further 
disadvantage students of Asian origin and artificially deflate their numbers by instituting a minimum verbal SAT 
score.31  Though the SAT has been refined and changed over the years—for example, by splitting the verbal 
component into critical reading and writing sections—the verbal competencies tested by the SAT continue to 
be a mainstay of the exam.  Asian Americans previously argued that UC Berkeley instituted a minimum 400 
SAT verbal score to limit Asian American admission rates.32  The Chancellor repeatedly denied the existence 
of a minimum verbal score.33  In the history of UC Berkeley, the Chancellor went on, such a criterion had never 
before been used to reject qualified applicants in the competitive admissions pool.34  In all published 
announcements, catalogs, and application forms, the policy had always been to use only the combined SAT 
verbal and math scores, the combined scores of three achievement tests, and GPA, for competitive admissions 
decisions.35  In the end, under pressure from the Asian community, UC Berkeley’s Assistant Vice Chancellor 
admitted that, “At one point (in 1984) a minimum 400 Verbal SAT score was set, but shortly after the written 
directive was issued, it was withdrawn.”36  While on its face, such a policy might seem to serve a school’s interest 
in ensuring English language competency of its student body, the disparate impact such a policy had on Asian 
                                                           
24 U.S. COMM’N. ON CIVIL RIGHTS, CIVIL RIGHTS ISSUES FACING ASIAN AMERICANS IN THE 1990S 13, 112.  See also Chew, 
supra note 17, at 63. 
25 Grace W. Tsuang, Assuring Equal Access of Asian Americans to Highly Selective Universities, 98 YALE L. J. 659, 669 (1989).  
Things do not appear to have changed in the 21st century; for example, the summary of the best practices from a diversity 
manual reminds admissions officers to be “aware of demographic statistics from previous years.”  Summary of Best 
Practices from Preserving Diversity in Higher Education: A Manual on Admissions Policies and Procedures After the University of 
Michigan Decisions, Bingham McCutchen LLP, Morrison & Foerster LLP, and Heller Ehrman White & McAuliffe LLP 1, 
37 (2004).   
26 Id. at 669. 
27 Id. at 669. 
28 U.S. COMM’N. ON CIVIL RIGHTS, supra note 25, at 112. 
29 Board of Regents of the University of California v. Bakke, 438 U.S. 265 (1978). 
30 Liu, supra note 12 at 421-22. 
31 Gabriel J Chin et. al., Beyond Self Interest: Asian Pacific Americans Toward a Community of Justice: A Policy Analysis of Affirmative 
Action, 4 ASIAN PAC. AM. L.J. 129, 139 (1996).   
32 Tsuang, supra note 26, at 674. 
33 Id. 
34 Wang, supra note 13, at 197. 
35 Id. 
36 Id. 



2015 COLUMBIA JOURNAL OF RACE AND LAW 85 
 

students was troubling.  Nationally, students scored an average of 426 points on the verbal section of the SAT.  
The university knew that Asians, on average, scored 28 points below the national average on the verbal section 
of the SAT, placing the average Asian verbal score at 398—just two points below the “neutral” cutoff selected 
by UC Berkeley.37  Such circumstances, combined with the history of Asian exclusion and the relative secrecy 
of the policy, give rise to a strong inference that the intent behind the secret decision was to disqualify some 
UC Berkeley-eligible Asian American applicants from competition with white applicants.38  Similar forms of 
language discrimination that disproportionately impact Asian applicants include the practice of giving additional 
points to those applicants who were exempt from remedial English, and to those who had four years of a 
foreign (European) language.39 Although these criteria appear to be neutral, they have a disparate impact against 
applicants of immigrant and refugee backgrounds, many of whom are Asian American.40  Some universities 
have taken the opposite approach to Asian exclusion by increasing minimum GPA requirements for an 
automatic admission but not altering the minimum test score for automatic admission.  Since Asian Americans 
were historically more likely to be admitted automatically on the basis of GPA, this change effectively reduced 
their numbers.41 
 

Another area in which admissions officers for public universities can bring to bear negative action 
against Asian American applicants is in the practice of redirection.  The University of California system, for 
example, maintains UC Berkeley as its flagship university by redirecting certain applicants to other, less 
prestigious, schools within the state system.42  Given the substantial discretion afforded to admissions officers 
in this redirection, Asian Americans are redirected at much higher rates than any other group.43  Indeed, UC 
Berkeley has a policy of redirecting applicants of poor and disadvantaged backgrounds “who are not Blacks, 
Hispanic or Native Americans” to other universities.44  Previously, UC Berkeley-eligible and non-competitive 
applicants who were poor and disadvantaged (regardless of race) were not redirected to other campuses.  
Subsequent investigations revealed that this decision—which represented a major policy shift from a 
socioeconomic to a race-based admission program—was made without the participation and approval of the 
Academic Senate Committee on Admissions and Enrollment.45  Since there has always been a larger proportion 
of Asian American applicants who are from disadvantaged backgrounds in the San Francisco Bay area than 
Whites, the decision to redirect poor students while exempting other racial groups disproportionately affected 
Asian American applicants.46 
 

Finally, and most significantly, legacy preferences47 are another form of negative action.  Legacies give 
special consideration to applicants with family members who are alumni or who have contributed financially to 
the school.48  At Harvard, 16% of the 2,023 admitted students in 2014 had at least one alumni parent.49  While 
universities may claim that legacy preferences strengthen alumni bonds and tradition, these preferences were 

                                                           
37 Id. 
38 Id. 
39 Id. at 199. 
40 Id.  See also Chin et. al., supra note 32, at 139. 
41 See Chew, supra note 17 at 63. 
42 Wang, supra note 13. 
43 Id. 
44 See supra note 10, at 196.   
45 Id.  To compound matters, the change was never announced publicly.  Id. 
46 Id.   
47 C.N. Le, A Closer Look at Asian Americans and Education, New Horizons for Learning, JOHNS HOPKINS SCHOOL OF ED. 
(Dec. 2001), available online at http://education.jhu.edu/PD/newhorizons/strategies/topics/multicultural-
education/A%20closer%20look%20at%20asian%20americans%20and%20education/.  
48 Liu, supra note 12, at 403. 
49An Hereditary Meritocracy [sic], THE ECONOMIST (Jan. 24, 2015), http://www.economist.com/news/briefing/21640316-
children-rich-and-powerful-are-increasingly-well-suited-earning-wealth-and-power. 



86 A Critique of the Motivations Behind Negative Action In U.S. Universities Vol. 5.2 
 

 
 

originally introduced to give advantages to Whites over Jewish American applicants.50  As white applicants are 
more likely to have family members who are alumni or who have contributed financially to the school, legacies 
also tend to benefit white students over Asian Americans.51  From 1979 to 1988, Asian Americans accounted 
for 15.7% of all Harvard applicants but only 3.5% of alumni children.52  
 

The aforementioned examples delineate the wide variety of policies that currently exist to negatively 
affect Asian Americans in U.S. universities.  The reasons for these policies are complex and often inconsistent, 
but are nevertheless important to understand in crafting effective solutions to the negative action problem.  In 
its next part, this Article will turn to examining and critiquing the motivations behind negative action against 
Asian Americans.   

                                                           
50 Ann C. McGinley, The Emerging Cronyism Defense and Affirmative Action: A Critical Perspective on the Distinction Between 
Colorblind and Race Conscious Decision Making Under Title VII, 39 ARIZ. L. REV. 1003, 1041 n.237 (1997).  Harvard and 
Princeton accept 40% and 35% of legacies respectively but only 11% of all applicants.  At Notre Dame, nearly a quarter 
of students are children of graduates.  See Le, supra note 49. 
51 Liu, supra note 12, at 403. 
52 Golden, supra note 6, at 202.   

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2015 COLUMBIA JOURNAL OF RACE AND LAW 87 
 

IV. THEORIZING AND CRITIQUING THE MOTIVATIONS BEHIND NEGATIVE ACTION AGAINST 
ASIAN AMERICANS  

While it is easy to consider active racism the sole motivating force behind negative action, such a belief 
is too simplistic.  The motivations behind negative action against Asian Americans are complex and include 
both the conscious and unintentional aspects of racism and benevolence.  In the table below, marked Table 1, 
the intersections of each of these aspects are termed in ways that will be explained throughout this section.    
 
Table 1: 

 
 

Negative action is motivated in part, of course, by the conscious racist thought that defensive measures 
are required to prevent unfair competition by Asian American students (Quadrant 1).  Racism in negative action 
also stems, however, from unintentionally53 believing the corollaries of the model minority stereotype 
(Quadrant 2).54  Such corollaries include socialized beliefs about Asian American student achievement, such as 
the idea that Asian Americans are only good at S.T.E.M. (Science, Technology, Engineering and Mathematics) 
fields, that Asian Americans are not well-rounded students, or that Asian Americans are below Whites in the 
racial hierarchy in the United States.   

 
This Article also examines what I have termed the “benevolence” aspects of negative action, in which 

admissions officers either consciously think or unintentionally believe that negative action would eventually be 
beneficial for Asian Americans, for example, by promoting racial diversity (Quadrant 3), or reducing racial 
tension and resentment towards Asian Americans (Quadrant 4).  As Jerry Kang noted,  

 
one could assume that the responsible admissions officers . . . were racists 
who relished disadvantaging Asian Americans … another possible 
explanation is that these admissions officers sincerely, if mistakenly, believed that 

                                                           
53 Virginia W. Wei, Asian Women and Employment Discrimination: Using Intersectionality Theory To Address Title VII Claims Based 
on Combined Factors of Race, Gender, and National Origin, 37 B. C. L. REV., 771, 799. 
54 GARY OKIHIRO, MARGINS AND MAINSTREAMS: ASIANS IN AMERICAN HISTORY AND CULTURE 141 (1994) (“[T]he 
yellow peril and the model minority are not poles, denoting opposite representations along a single line, but in fact form 
a circular relationship that moves in either direction.”).  

Motivation Behind Negative 
Action 

 
Conscious 

 
Unintentional 

 
Racism 

 
 

Unfair Competitor 
(Quadrant 1) 

 
    

 
 

Corollaries of the Model Minority 
Stereotype  
(Quadrant 2) 

     

 
 

Benevolence 

  
 

 Promote Racial Diversity 
(Quadrant 3) 

 

 
 

Reduce Racial Tension  
and Resentment  

(Quadrant 4) 
 
 

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88 A Critique of the Motivations Behind Negative Action In U.S. Universities Vol. 5.2 
 

 
 

curtailing the admission of Asian Americans would serve various pedagogical 
and social goals.55   

 
Admissions officers have acknowledged that various forms of conscious and unintentional biases influence 
their admissions decisions.56  Reports by various universities including Brown57 and Stanford58 underscore the 
extent to which such conscious and unintentional factors negatively impact Asian American admission rates. 

A. Conscious Racism: Thinking That Asian Americans Are Unfair Competitors  
 

Some admissions officers think that negative action towards Asian Americans is necessary in order to 
limit “unfair competition”.  The idea of Asian Americans as treacherous unfair competitors59 possessing mindless 
horde-like qualities60 has long been one of the predominant forms of anti-Asian bias in the United States.61  White 
America has historically treated Asians sceptically, viewing them as unfair competitors for jobs because of their 
docility—which made them willing to work in worse conditions and for lower wages than Whites—and 
collectivism; as early as the 1800s, for example, Japanese farmers62 and Chinese laborers63 were resented for 
competing for scarce employment opportunities by taking positions at lower wages.64  Whites believed that 
contending with Asian American workers was unfair due to the fact that “[Asian Americans] can live where others 
stronger than [them] would starve.  Give [them] fair play and this quality enables [them] to drive out stronger races 
(1869 newspaper editorial).”65  These sentiments were also echoed in Chae Chan Ping v U.S. where the Supreme 
Court stated that it was pointless for Whites to compete against Asian Americans.66  In the same vein, the 
President of the Seattle Anti-Japanese League in 1920 asserted that Asian Americans “will work harder, deprive 
themselves of every comfort and luxury, make beasts of burden of their women, and stick together, making a 
combination that America cannot defeat.”67 
 

Such anti-Asian prejudice is sometimes erroneously rationalized by the assumption that Asian 
Americans are doing too well.68  Envy of Asian American success and prosperity prompted some white 
Americans to react defensively and erect protectionist barriers around scarce resources.69  Historical examples 
of such defensive measures include California’s 1852 mining tax levied against non-citizen miners (the vast 
majority of whom were Asian American miners),70 San Francisco’s manipulation of its licensing authority to 

                                                           
55 Kang, supra note 10, at 19 (emphasis added). 
56 Tsuang, supra note 26 at 669. 
57 Id. at 665.  BROWN U., REPORT TO THE CORPORATE COMMITTEE ON MINORITY AFFAIRS FROM ITS SUB-COMMITTEE. 
ON ASIAN AMERICAN ADMISSIONS (1984). 
58 STAN. UNIV., CUAFA SUB-COMMITTEE REPORT ON ASIAN-AMERICAN ADMISSIONS 14 (1986).  See also Tsuang, supra 
note 26, at 665. 
59 Natsu Taylor Saito, Model Minority, Yellow Peril: Functions Of "Foreignness" In The Construction Of Asian American Legal Identity, 
4 ASIAN L.J. 71, 72 (1997). 
60 Keith Aoki, Foreign-Ness & Asian American Identities: Yellowface, World War II Propaganda, And Bifurcated Racial Stereotypes, 4 
ASIAN PAC. AM. L.J. 1, 4, 33(1996). 
61 Wang, supra note 13, at 189.   
62 ERIC K. YAMAMOTO ET. AL., RACE RIGHTS & REPARATIONS: LAW AND THE JAPANESE AMERICAN INTERNMENT 37 
(2001). 
63 Teshima, supra note 6, at 127. 
64 Harvey Gee, A Review of Frank Wu’s Renegotiating America’s Multi-Colored Lines, N.Y.C. L. REV. 203, 226 (2002). 
65 ROGER DANIELS, ASIAN AMERICA: CHINESE AND JAPANESE IN THE UNITED STATES SINCE 1850 40 (1988).   
66 Chae Chan Ping v. U.S., 130 U.S. 581 (1889) (“[Asian Americans] were generally industrious and frugal.  Not being 
accompanied by families, except in rare instances, their expenses were small; and they were content with the simplest fare, 
such as would not suffice for our labourers and artisans.  The competition between them and our people was for this reason altogether 
in their favor . . . .”) (emphasis added).   
67  Kang, supra note 7, at 42 (emphasis added). 
68 Chin et. al., supra note 26, at 151. 
69 Chew, supra note 17, at 60. 
70 Yamamoto et al., supra note 56, at 37. 

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close Chinese laundries while allowing white-owned laundries to remain open in the 1880s,71 the Chinese 
Exclusion Act of 1882,72 the Gentlemen's Agreement of 1907 which excluded Japanese immigrants,73 and 
California’s passage of a law barring noncitizens of Japanese origin—which, as Japanese people could not 
naturalize at this point in history, effectively applied to all persons of Japanese origin—from fishing in state 
waters in the 1950s.74 
 

Such concerns about unfair competition continue to plague Asian Americans in the college admissions 
process.  With regard to the scarcity of spots in highly selective U.S. universities, admissions officers may feel 
compelled to react defensively via negative action against the unfairly competitive Asian American students (who 
are allegedly super-human and capable of studying inhuman hours without any need for leisure)75 since the “grade-
grubbing Asian-Americans crowd out everyone else”.76  After all, at stake are places in traditional institutions 
from which the U.S. recruits its future leaders and elites.77  William Kidder argues that universities fear a return 
to the yellow peril or Asian people taking over.78  These fears stoked by notions of “Japan Inc.”, “Pacific Century”, 
“and the rise of the East and decline of the West”.79  As UC Berkeley’s alumni magazine stated so vividly:  

 
I can't help but notice: So many Asians!  Black head of hair after jet-black 
head of hair . . . uncomfortable notion stews in me, and the words push 
[through my] Berkeley-bred politically correct mindscreen: The Asians are 
taking over.80 

 
These examples, though anecdotal, tell us that Asian American stereotypes are an important facet of the Asian 
American experience in applying to and potentially matriculating at schools like UC Berkeley.  It seems 
reasonable to believe that such fears of an “Asian takeover” is in fact directly and indirectly contributing to 
negative action against Asian American students.  
 

Such problematic racial ideas are inaccurate and ultimately harmful to both schools and students.  The 
allegation that Asian Americans are overly competitive is, quite simply, not accurate.  Some Asian Americans 

                                                           
71 This practice was struck down in the case of Yick Wo v. Hopkins, 118 U.S. 356 (1886), after the Supreme Court found 
that all but one Chinese-owned laundries had been denied permits while nearly all white-owned laundries had been 
granted them.  Id. at 374. 
72 See generally Michael Patrick Cullinane, The “Gentlemen’s” Agreement—Exclusion by Class, 32 IMMIGRANTS & MINORITIES 
139 (2014).  
73 Saito, supra note 53, at 75. 
74 Yamamoto et al., supra note 56, at 37.  For a full list of the myriad ways in which state and municipal governments 
sought to disadvantage Asian Americans, see Tsuang, supra note 26, at 666 n.51 (citing various examples of state-
sponsored discriminations faced by Asian Americans). 
75 See Daniels, supra note 59, at 322 (quoting sentiments that Asian Americans are “the most hard-working, disciplined 
people imaginable” such that observers “don’t know when they sleep.”).  See Aoki, supra note 54, at 33 (noting alleged 
sub-human characteristics of Asian Americans, like “capable of working inhuman hours” and “threatening to the hard-
working.”). 
76 Jay Mathews, Asian American Students and School Stereotypes, WASHINGTON POST, Jan. 8, 2008, 
http://www.washingtonpost.com/wp-dyn/content/article/2008/01/08/AR2008010802038.html.  These sentiments are 
reminiscent of the early twentieth century where Ivy League schools limited the number of Jewish students despite their 
outstanding academic records to maintain the primacy of upper-class White protestants. 
77 Wang, supra note 13, at 201-202.  
78 See Kidder, supra note 8, at 606 (arguing that Asian Americans would benefit the most from eliminating affirmative 
action).  See also Scott Jaschik, New Arguments on Affirmative Action, INSIDE HIGHER ED, June 21, 2006, 
http://www.insidehighered.com/news/2006/06/21/affirm (discussing an article arguing that “the primary beneficiaries 
of the end of affirmative action in college admissions would be Asian American applicants.”). 
79 Wu, supra note 4, at 229. 
80 Michelle Ling, Facing the Asian Invasion, CAL. MONTHLY, Dec. 1998, available online at 

http://modelminority.com/joomla/index.php?option=com_content&view=article&id=159:facing-the-asian-invasion-
&catid=41:identity&Itemid=56 (emphasis added). 



90 A Critique of the Motivations Behind Negative Action In U.S. Universities Vol. 5.2 
 

 
 

may indeed be hardworking due to reasons ranging from a need to make an honest living and support their 
families to being determined to try their best after entering the United States as refugees and immigrants.  
However, homogenizing Asian American identity under this banner is grossly—and statistically—inaccurate.  
For example, one Northeastern University study compared Asian American students and white students 
matched by gender, comparable scores on college entrance exams, and socioeconomic backgrounds as indicated 
by their parents’ educational backgrounds.  Contrary to the fearsome competitor stereotype, the Asian 
American students had lower grade point averages, were more likely to be on academic probation, were more 
likely to withdraw for medical reasons, and were less likely to graduate than their white counterparts.81  Beyond 
this, constructing a monolithic idea of “competitive Asian” ignores the multiplicity of experiences within the 
Asian American community.  Some Asian American communities, for example, have a higher rate of poverty 
than the national average; 37.8% and 29.3% of Hmong-Americans and Cambodian-Americans respectively live 
below the poverty line in the U.S., as compared to the national average of 12.4%.82  These students are often 
the least able to access higher education, and are often the ones in need of the most help to adjust to college 
life.83  Yet a belief in the inherent competitiveness and diligence of all Asians often leads these students to elect 
not to pursue higher education or, upon admission, drop out at high rates.84 
 

B. Unintentional Racism: Believing The Corollaries Of The Model Minority Stereotype  
 

The model minority stereotype has been extensively studied; on a very basic level, it refers to the idea 
that Asian Americans, through their hard work, intelligence, and emphasis on education and achievement, have 
been successful in American society.85  Proponents of this stereotype point to certain statistics about Asian 
American success, such as the fact that about 42% of all Asian American adults have college degrees.86  Like 
many racial stereotypes, while the model minority stereotype contains some truth, “it is exaggerated, distorted, 
and often presented without causes and contexts.”87  Racial stereotypes of Asian Americans have deep 
structural roots and continue to pervade society because of the expanding reach and scope of contemporary 
media, only exacerbated by the trend towards the concentration of media control in the hands of increasingly 
fewer proprietors.88 
 

                                                           
81 Elizabeth S.W. Ahn Toupin & Linda Son, Preliminary Findings on Asian Americans: “The Model Minority” in a Small Private 
East Coast College, 22 J. CROSS-CULTURAL PSYCHOL. 403, 406-412. 
82 NAT’L. COMM’N. ON ASIAN AM. AND PAC. ISLANDER RESEARCH IN EDUC., THE ASIAN/PAC./AM. INSTITUTE AT 
N.Y.U., THE STEINHARDT INSTITUTE FOR HIGHER EDUC. POL’Y. AT N.Y.U. & COLLEGE BOARD, ASIAN AMERICANS 
AND PACIFIC ISLANDERS - FACTS, NOT FICTION: SETTING THE RECORD STRAIGHT 21 (2008). 
83 See generally Yang Sao Xiong, Hmong Americans’ Educational Attainment: Recent Changes and Remaining Challenges, 13 HMONG 
STUDIES J. 52 (2012). 
84 Id. 
85 Alfred Chueh-Chin Yen, The Diversity Among Us, 19 W. NEW ENG. L. REV. 36, 37 (1997) (noting that “image of the 
Asian-American as the highly successful, highly educated person who makes a lot of money, is free of discrimination, 
and who has worked hard to get ahead.”).  See also Daniels, supra note 65, at 317 (noting that the concept of “model 
minority” is now generally applied to “describe successful, upwardly mobile Asian Americans.”); Chew, supra note 17, at 
24 (arguing that “model minority” is “[t]he belief that Asian Americans are successfully assimilated into American 
society.”). 
86 Don Nakanishi noted that the rise in the number of Asian Americans in U.S. colleges can be explained by 
demographic changes; for example, the Asian American population increased from 1.5 million in 1970 to 3.5 million in 
1980 and then to 7 million in 1990.  Don T. Nakanishi, A Quota on Excellence? The Asian American Admissions Debate, in 
THE ASIAN AMERICAN EDUCATIONAL EXPERIENCE: A SOURCE BOOK FOR TEACHERS AND STUDENTS 273, 276 (Don 
T. Nakanishi & Tina Yamano Nishida eds., 1995).  See also Le, supra note 47 (arguing that “receiving an education is of 
paramount importance for the Asian American community.”).  
87 Frank H. Wu & William Kidder, Perspectives: Asian Americans Aren’t White Folks’ ‘Racial Mascots’, DIVERSE: ISSUES IN 
HIGHER EDUC. (Oct. 4, 2006), http://diverseeducation.com/article/6480/.  
88 See Aoki , supra note 54, at 3 (listing important works showing the pervasiveness of negative stereotypes against Asian 
Americans.). 



2015 COLUMBIA JOURNAL OF RACE AND LAW 91 
 

Admissions officers unintentionally believe that negative action against Asian Americans is justified 
because of the following corollaries of the model minority stereotype: (1) Asian Americans are only good at 
S.T.E.M. (Science, Technology, Engineering and Mathematics),89 (2) Asian Americans are not well-rounded 
students,90 and (3) Asian Americans are below Whites in the racial hierarchy in the United States. This Article 
elaborates on each in turn. 
 

1. Asian Americans are Only Good at S.T.E.M. (Science, Technology, 
Engineering and Mathematics)  

 
One corollary of the model minority stereotype is that Asian Americans are essentialized to be only 

“mathematically and technically oriented rather than verbally skilled.”91  One Harvard admissions officer said 
that Asian Americans’ admission chances are hurt as many who apply are pre-medical, science, and technical 
types.92  MIT’s Dean of Admissions described a top Asian American applicant as “yet another textureless math 
grind.”93  According to Pulitzer Prize–winner Daniel Golden, Asians are typecast “in college admissions offices 
as quasi-robots programmed by their parents to ace math and science.”94  Hence, while Asian Americans are 
deemed to be contenders for the Westinghouse Science Talent Search, their university admission chances are 
negatively impacted as they are not perceived by admissions officers to be good in other areas, including the 
humanities, law, and social sciences. 
 

This essentialization of Asian Americans as only being mathematically and technically oriented needs 
to be challenged for many reasons.  First, a low admissions rate for Asian Americans into non-mathematical 
and technical fields has a negative spill-over effect on academia; Asians remain underrepresented in numerous 
fields, such as history (2.2%), sociology (2.2%), English/literature (2.1%), philosophy (1.8%), education (1.6%), 
psychology (1.4%), political science (1.3%), and law (0.9%).95  It also leads to a serious underrepresentation of 
Asian Americans Ph.D. holders in the humanities and social sciences.96   This observation has important 
consequences for the relatively high percentage of Asian Americans who do, in fact, pursue humanities and 
social sciences.  The notion of Asian Americans only being interested in pursuing S.T.E.M. fields is meritless.97  
In fact, Asian Americans seem more inclined to pursue degrees in non-S.T.E.M. fields than other groups; in 
2003, for example, 26.1% of Asian Americans who received degrees majored in social sciences and the 
humanities, compared to the nationwide average of 19.5%.98  Yet these degree holders, due to the unfair stigma 
associated with Asian Americans as only interested in S.T.E.M., may be unable to break into advanced degree 
programs or academia in their fields. 
 

Universities are often explicit about the ways in which they stereotype Asian American applicants.  
Brown's Admissions Director had opined that the low Asian American admissions rate is due the overwhelming 

                                                           
89 See Aoki, supra note 54, at 46 (noting that Asian Americans are “imputed with preternatural technical expertise and a 
near-genetically based knowledge of the intricacies of science and mathematics.”).  
90 Tsuang, supra note 26, at 663.   
91 Teshima, supra note 6, at 130. 
92 Tsuang, supra note 26, at 671 n.84. 
93 Golden, supra note 4, at 201.   
94 Id.  See also NAT’L. COMM’N. ON ASIAN AM. AND PAC. ISLANDER RESEARCH IN EDUC., supra note 82, at 28 (noting that 
Asian Americans openly and routinely discuss the “extreme pressure and demands by their parents to enter disciplines 
that they perceive to be secure, for example, Science, Technology, Engineering and Mathematics (STEM).”).  
95 Chin et al., supra note 26, at 154. 
96 Id. at 155-156 (noting that 70% of all Ph. D. degrees earned by Asian Americans were in engineering, life sciences, and 
physical sciences, whereas Asian Americans are underrepresented in humanities and social sciences.) 
97 Tsuang, supra note 26, at 663-665.  
98 NAT’L. COMM’N. ON ASIAN AM. AND PAC. ISLANDER RESEARCH IN EDUC., supra note 82, at 7 (showing that 26.1% of 
Asian American students, as compared to 19.5% of students for the national average, majored in social sciences and the 
humanities in 2003).   

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92 A Critique of the Motivations Behind Negative Action In U.S. Universities Vol. 5.2 
 

 
 

number of Asians applying as “pre-meds”—student who hope to pursue careers in medicine.99  In response, 
the Asian American Students Association argued that the Director had never defined what constitutes a “pre-
med”; instead, he based “his determination on subjective considerations and stereotypes of Asian applicants.”100  
Brown's Faculty Committee on Minority Affairs (COMA) rejected the idea that there are too many Asian “pre-
meds” and found that the claim results from a “reliance on inference and not necessarily on the applicant’s 
declared major.”101  Similarly, before adopting a completely race-blind admissions process, UC Berkeley had 
suggested that its low admissions rate for Asian Americans was due to too many Asian American applicants to 
the College of Engineering.102  Yet in its two largest engineering departments, the admissions rates of Whites 
exceeded that of Asian Americans in all seven years studied.103 
 

2. Asian Americans are Not Well-Rounded Students  
 

Another corollary of the model minority stereotype that is used to justify negative action is the perception 
that Asian Americans are not well-rounded students.104  Asian Americans are characterized as one-dimensional,105 
not well-balanced,106 and as participating in fewer extracurricular activities in high school than their white 
counterparts.107  Consequently, while Asian Americans may score well on academic ratings, they perform less well 
on personal ratings108 and when they are assessed as part of a holistic review.109 
 

This problem is exacerbated by the fact that the admissions process is susceptible to racial stereotyping.  For 
example, descriptions of focused interest in science or engineering might be interpreted positively when applied to 
Whites (e.g. “the student delves deeply into one topic and learns it thoroughly”), and negatively when applied to Asian 
Americans (e.g. “the student has narrow interests”).110  
 

                                                           
99 Tsuang, supra note 26, at 663.   
100 Id.  See also Suzanne Schlosberg, Asians Charge Discrimination As Admit Rate Drops To 15 Percent, BROWN DAILY 
HERALD, May 8, 1986, at 1, 10.  BROWN CORP. COMM. ON MINORITY AFFAIRS, STATISTICAL SUMMARY BY THIRD 
WORLD CATEGORIES FOR CLASSES '79-'87 (1983), reprinted in ASIAN AM. STUDENTS ASSOC. (AASA), ASIAN AMERICAN 
ADMISSION AT BROWN UNIVERSITY, Tables 2a, 2b (Oct. 11, 1983).  
101 Tsuang, supra note 26, at 664.  See also SUBCOMMITTEE ON ASIAN AM. ADMISSIONS, REPORT TO THE CORPORATE 
COMMITTEE ON MINORITY AFFAIRS FROM ITS SUB-COMMITTEE ON ASIAN AMERICAN ADMISSIONS (Brown University, 
Feb. 10, 1984).    
102 Tsuang, supra note 26, at 664.  See generally Linda Mathews, When Being Best Isn't Good Enough: Why Yat-pang Au Won’t Be 
Going to Berkeley, L.A. TIMES, July 19, 1987 (developing story of controversy in Asian American admissions in Berkeley). 
103 Tsuang, supra note 26, at 664;  AUDITOR GENERAL OF CAL., A REVIEW OF FIRST YEAR ADMISSIONS OF ASIANS AND 
CAUCASIANS AT THE UNIVERSITY OF CALIFORNIA AT BERKELEY, 58-65 (Oct. 1987).   
104 See C.N. Le, supra note 40. 
105 See Tsuang, supra note 20, at 664.   
106 See Pat K. Chew, supra note 17, at 63. 
107 L. Biemiller, Asian Students Fear Top Colleges Use Quota System, THE CHRONICLE OF HIGHER EDUC., Nov. 19, 1986, at 
34; Irene Chen, Two Students Challenge Asian American Admission Discrimination, BROWN DAILY HERALD (Feb 9, 2007), 
http://www.browndailyherald.com/campus-news/two-students-challenge-asian-american-admission-discrimination-
1.1674972.   
108 See Tsuang, supra note 26, at 663.    
109 Timothy Egan, The Little Asia on the Hill, N.Y. TIMES (Jan 7 2007), 
http://www.nytimes.com/2007/01/07/education/edlife/07asian.html?pagewanted=all. 
110 STAN. UNIV., CUAFA SUB-COMMITTEE REPORT ON ASIAN-AMERICAN ADMISSIONS 14 col. 2 (1986).  See also 
Tsuang, supra note 26, at 665 n.42.   



2015 COLUMBIA JOURNAL OF RACE AND LAW 93 
 

The perception that Asian Americans are not well-rounded students also stems from the fact that they 
are thought to be quiet,111 non-assertive,112 and lacking in English language113 and interpersonal skills.114  Asian 
Americans are thought to be less active in classrooms, and less likely to serve as charismatic and effective 
leaders.115  Hence, for university admissions, Asian Americans tend to be scored poorly and not be given a 
“plus” for more intangible characteristics such as leadership qualities116 and special talents.117  
 

This essentialization of Asian Americans students as not being well-rounded can be challenged in 
multiple ways.  Studies of Asian American applicants to Harvard, Brown, and UC Berkeley refute the 
stereotypical perception that Asians avoid extracurricular activities.  A Department of Education study of 
58,000 high school students found that Asian American students take part in all extracurricular offerings at 
rates comparable to those of their white counterparts.  13% of Asian Americans participated in band or 
orchestra compared to 14% of Whites; 30% of Asian Americans participated in varsity athletics, compared to 
34% of Whites; 9% of students of Asian origin, compared with 13% of white origin, participated in drama and 
debate.  In certain areas, in fact, Asian American participation in extracurricular activities exceeded white 
student participation.  Asian students had higher participation rates for student government (21% versus 16% 
for Whites) and honorary clubs (28% versus 17% for Whites).118 
 

Further, even if such stereotypes about Asian American identity were true, they would not explain the 
disproportionately low admissions rates of Asian American students compared with their white counterparts.  
Take, for instance, the case of Stanford University, which assigns each applicant a “non-academic rating” based 
on extracurricular achievements; a study found generally that Asian Americans were still admitted at a lower 
rate even when they received the same non-academic rating as Whites.119  Thus, it is clear that something more 
perniciously discriminatory at work. 

 
3. Asian Americans are Below Whites in the United States’ Racial Hierarchy  

 
The third corollary of the model minority stereotype that is used to justify negative action of Asian 

Americans is the idea that even though they are a “model” for other minorities and are deployed as the “racial 
middle” of the white-black racial hierarchy,120 Asian Americans are still an inferior minority to Whites121 in the 
racial hierarchy.122   
 

                                                           
111 Christopher Shea, Victim of success?: Are Asian American Students Discriminated Against in College Admissions?, BOSTON 
GLOBE (Nov. 26, 2006).  See also Liu, supra note 9, at 415. 
112 See Aoki, supra note 54, at 46.  See also Chew, supra note 17, at 38; Teshima, supra note 6, at 130.   
113 U.S. CENSUS BUREAU, THE AMERICAN COMMUNITY – ASIANS: 2004 4 (2007).  
114 See Wu, supra note 4, at 245. 
115 Lydia Lum, Asian-Americans Hope To Build Pipelines to College Presidencies, DIVERSE: ISSUES IN HIGHER EDUC. (Oct. 5, 
2009), http://diverseeducation.com/article/13097/asian-americans-hope-to-build-pipelines-to-college-presidencies.html. 
116 BINGHAM MCCUTCHEN, LLP ET. AL., PRESERVING DIVERSITY IN HIGHER EDUCATION: A MANUAL ON ADMISSIONS 
POLICIES AND PROCEDURES AFTER THE UNIVERSITY OF MICHIGAN DECISIONS 20. 
117 See Egan, supra note 104. 
118 SAMUEL S. PENG, SCHOOL EXPERIENCES AND PERFORMANCE OF ASIAN-PACIFIC AMERICAN HIGH SCHOOL 
STUDENTS Table 9 (1984).  Profiles of SAT candidates also indicated that ‘Asian-American students [were] more likely to 
participate in social, ethnic, or community organizations’ than other SAT candidates.  THE COLLEGE BOARD, PROFILES, 
COLLEGE-BOUND SENIORS xix (1985).  See also Tsuang, supra note 26, at 663-65.   
119 STAN. UNIV., CUAFA SUB-COMMITTEE REPORT ON ASIAN-AMERICAN ADMISSIONS Table 5 (1986).  See also Tsuang, 
supra note 26, at 664.    
120 Matsuda, supra note 3, at 149-50. 
121 Teshima, supra note 6, at 128.  It is paradoxical that what may be transformative (Asian Americans being commended as 
a model minority instead of being seen as a competitor) can also be deeply legitimizing of the status quo (Asian Americans 
are still seen as an inferior minority to Whites). 
122 Saito, supra note 53, at 89. 

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94 A Critique of the Motivations Behind Negative Action In U.S. Universities Vol. 5.2 
 

 
 

Pat K. Chew is the Salmon Chaired Professor and Distinguished Faculty Scholar at the University of 
Pittsburgh School of Law, and was named the inaugural recipient of the Keith Aoki Asian Pacific American 
Jurisprudence Award in 2014.  She notes that Asian Americans are the “model minority” but not “model 
Americans”—while Whites view Asian Americans in more favorable terms than African Americans and 
Latinos, they still view Asian Americans as less intelligent, more violence-prone, lazier, and more likely to prefer 
living off welfare than Whites.123  Perhaps, worst of all, Asian Americans are viewed as a unit, rather than 
individuals,124 and as perpetual foreigners.125  
 

C. Conscious Benevolence: Thinking That Negative Action Leads To Diversity  
 

Some admissions officers think that negative action towards Asian Americans leads to a more diverse 
campus,126 and that this diversity eventually benefits Asian Americans.127  Such rationales for negative action 
suggest that Asian American students themselves feel that they have lost something by going to universities 
where there are many Asian Americans, as they do not get a chance to develop their intercultural skills for the 
real world.128  Proponents of negative action have advanced several possible reasons for why negative action 
towards Asian Americans leads to a more diverse campus.  Some argue that controlling the number of Asian 
Americans ensures that there are more spaces for less represented minorities such as Latinos and African 
Americans.129  Others claim that the educational experience at these universities will be enriched with a variety 
of cultures and viewpoints.130  Because of their myopic focus on their academic studies, such advocates claim, 
Asian Americans detract from the universities’ creativity.131  Having fewer Asian Americans contributes to the 
universities’ culture of fostering student leadership through student clubs, sports teams, and artistic groups.132   
 

Admissions officers striving for a diverse student population may aspire towards a system of 
proportional representation by race; the University of California, for example, admitted that their goal was 
general parity between the racial and ethnic composition of the undergraduate enrolment and the state 
population in general.133  Other universities may seek for a university’s student population to reflect the racial 
and ethnic minority representation of its respective locality.134  Yet another goal is for admissions officers to 
strive for a flexible critical mass or variable goal of admitted minorities, and to monitor the demographic 
composition of the admitted class to evaluate the status of these goals or critical masses.135   

 
Admissions officers striving for a diverse student population may draw inspiration from the Supreme 

Court cases of Board of Regents of the University of California v. Bakke (“Bakke”), Gratz v Bollinger (“Gratz”), and 
Grutter v. Bollinger (“Grutter”).  In Bakke, Justice Powell indicated that it may be permissible to consider race if it 
was simply one factor in the admissions decision.136  Accordingly, admissions policies that only consider race 
as a "plus" factor are constitutionally permissible in order to attain a diverse student body.  Grutter and Gratz 
were a connected pair of cases in which the United States Supreme Court dealt with the affirmative action 

                                                           
123Aoki, supra note 54, at 32-33. 
124 See Miller, supra note 18. 
125 Matthew Yi and Ryan Kim, Asian Americans seen negatively: results of landmark survey called startling, disheartening, SFGATE 
(Apr. 27, 2001), http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2001/04/27/MN199998.DTL.  
126 Wang, supra note 13, at 200.   
127 Miller, supra note 18. 
128 Id. 
129 Kang, supra note 7, at 15; Wang, supra note 13, at 200.   
130 Egan, supra note 104. 
131 Mathews, supra note 69. 
132 Id. 
133 Wu, supra note 4, at 245, 269. 
134 Annette B. Alaskan, Looking At Diversity And Affirmative Action Through The Lens Of Filipino/A American Students' 
Experience At UCLA And Berkeley, 9 ASIAN PAC. AM. L.J. 44, 77. 
135 BINGHAM MCCUTHEN, LLP, ET. AL., supra note 116, at 11. 
136 Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 317-18 (1978). 



2015 COLUMBIA JOURNAL OF RACE AND LAW 95 
 

admissions policies of the University of Michigan at the law school (hereinafter “Michigan Law School”) and 
undergraduate (hereinafter “Michigan”) levels respectively.  In Grutter, the court upheld Michigan Law School’s 
race-conscious admissions program which sought to obtain a “critical mass” of racial minorities; the flexibility 
of Michigan Law School’s policy distinguished it from a strict quota, as it considered a multitude of other factors 
in addition to race, ensuring individualized consideration of each applicant.137  The Supreme Court’s decision 
to strike down Michigan’s admissions policy in Gratz as unconstitutional, on the other hand, emphasized that 
policies which automatically and inflexibly assign benefits on the basis of race, such as Michigan’s point system 
that allocated a fixed number of points for under-represented minority group members, are constitutionally 
suspect.138  The Supreme Court’s opinions in Grutter and Gratz reinforce the importance of flexible and holistic 
admissions policies that employ a limited use of race.   

 
Diversity as a basis for negative action against Asian Americans is troubling for several reasons.  

Ultimately, as diversity lacks an objective and precise definition, it can be formulated to exclude Asian American 
applicants.139  First, diversity is a more capacious concept than that based on race and ethnicity alone;140 it also 
encompasses a diversity of experiences, ideas, socioeconomic backgrounds, and religious beliefs.141  Second, 
even for race and ethnicity, one can advance a strong argument that Asian Americans - which comprise so 
many different cultures - considerably enhance the universities’ diversity.  As discussed above, the ethnic, 
linguistic, cultural, and phenotypic variation encompassed in the term “Asian American” belies the idea that 
Asian Americans are monolithic and can be considered unitary for purposes of diversity.  Asian American 
freshmen at schools like UC Berkeley comprise, among others, Chinese, Indians, Koreans, Pakistani, Filipino, 
Japanese, Vietnamese, and Myanmese.142 
 

Third, the case-law (e.g. Bakke) did not intend diversity to be used as a justification for discrimination 
against racial minorities such as Asian Americans.143  The concept of diversity was used in Bakke to legally 
justify the universities’ use of an affirmative action program to bring in historically discriminated and 
underrepresented racial minorities; it was not meant as a basis for setting an unspecified upper limit of 
enrollment for well-qualified but overrepresented Asian Americans.144  Otherwise, what was intended to be a 
shield for preferential admissions becomes distorted into a sword against a minority group seeking 
admissions.145   Indeed, the Supreme Court itself has subsequently suggested that the very purpose of 
affirmative action is remedial; such policies are meant to correct the structural problems associated with the 
history of Black and Latino exclusion from higher education.146  Universities’ myopic focus on proportional 
diversity—criticized elsewhere for its failure to actually remedy educational disparities because of the types of 
black and Latino students selected147—thus also serves to disadvantage Asian American applicants. 

                                                           
137 Grutter v. Bollinger, 539 U.S. 306, 336 (2003). 
138 Gratz v. Bollinger, 539 U.S. 244 (2003). 
139 Liu, supra note 9, at 411. 
140 Tsuang, supra note 26, at 671-72. 
141 Liu, supra note 9, at 419-20. 
142 Egan, supra note 104. 
143 Tsuang, supra note 26, at 672. 
144 Wang, supra note 13, at 200.  
145 Tsuang, supra note 26, at 672. 
146 Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 789-90 (Kennedy, J., 
concurring). 
147 Valerie Strauss, Why we still need affirmative action for African Americans in college admissions, THE WASHINGTON POST: 
ANSWER SHEET (July 3, 2014), http://www.washingtonpost.com/blogs/answer-sheet/wp/2014/07/03/why-we-still-
need-affirmative-action-for-african-americans-in-college-admissions/. 



96 A Critique of the Motivations Behind Negative Action In U.S. Universities Vol. 5.2 
 

 
 

D. Unintentional Benevolence: Believing That Negative Action Reduces Racial Tension 
And Resentment Against Asian Americans 

Some admissions officers may believe that negative action benefits Asian Americans by reducing the 
racial tension and resentment against Asian Americans.  This benevolent (albeit misguided) view may have 
historical roots in the early 20th century with regard to Jewish students in highly selective U.S. universities.  At 
that time, Dartmouth’s President used liberal rhetoric to justify mobilizing its alumni to interview, screen, and 
reject Jewish applicants, explaining it as the only way to prevent anti-Semitism from increasing in the U.S. as it 
had in Nazi Germany.148  Meanwhile, Harvard’s President said “If every college in the country would take a 
limited proportion of Jews, we should go a long way toward eliminating race feeling among the students, and, 
as these students passed out into the world, eliminating it in the community.”149  In the 1980s, University of 
California’s President candidly admitted that the overrepresentation of Asian Americans had caused racial 
“unrest” among Whites who had been experiencing a decline in representation.150   
 

One possible reason why proponents of this theory believe negative action reduces the racial tension 
is that it blunts the extraordinarily competitive environment that has emerged, for example, at UC Berkeley, 
where white and Asian American students vie head to head not only for admission but also for access to coveted 
majors such as engineering and business administration, particularly in light of an increasingly competitive job 
market.151  Another explanation as to why negative action may reduce racial tension is that it reduces the number 
of Asian American students whose images as diligent super-students have often kindled resentment in other 
students.152  At the University of California, Davis, some members of the Asian American community even 
interpreted the murder of an Asian American graduate student as a sign that Asian Americans were studying 
too hard and getting too competitive.153  Such racial tension worsens during difficult economic 
circumstances.154 
 

This basis for negative action, even if well-intentioned, can be criticized on several fronts.  First, it is 
highly questionable whether reducing the number of Asian Americans in fact reduces racial tension.  Even if one 
accepts that tenuous link, it is unfair that the cost of reducing racial tension is borne solely by Asian Americans.  
The problems discussed above lie solely with white students’ racist conceptions of Asian Americans; catering to 
those views at the expense of Asian American communities is unjust.  In fact, it may actually be counter-
productive if it creates a pent-up resentment among Asian Americans.  Finally, such actions only preserve—
rather than correct and equalize—disparate power structures benefiting Whites; the same principles used to attack 
affirmative action for black and Latino applicants—the meritocracy principle where the efficiency of competition 
in academics benefits society—is somehow displaced when dealing with Asian American admissions.155  The 
logical inconsistency of this approach evinces its pretextual nature; such policies exist primarily to preserve white 
America’s advantages in higher education.   
 
V. POSSIBLE WAYS FORWARD FOR ASIAN AMERICANS TO DEAL WITH NEGATIVE ACTION 
 

Having thus presented several of the problems associated with negative action against Asian 
Americans, this Article now turns to re-envisioning the admissions process.  What would be the ideal university 
admissions system?  A more race-blind admissions system across the U.S. universities is likely to lead to the 
popular universities becoming like UC Berkeley and the California Institute of Technology in terms of the 
                                                           
148 Wang, supra note 13, at 204-05; Kang, supra note 7, at 40. 
149 Wang, supra note 13, at 204-05. 
150 Id. at 200. 
151 Id. at 193.   
152 DANA Y. TAKAGI, THE RETREAT FROM RACE: ASIAN-AMERICAN ADMISSIONS AND RACIAL POLITICS 60 (1992). 
153 RONALD TATAKI, STRANGERS FROM A DIFFERENT SHORE 479 (1989). 
154 Daina C. Chiu, The Cultural Defense: Beyond Exclusion, Assimilation and Guilty Liberalism, 82. CAL. L. REV. 1053, 1092 - 
1093 (1994).  Chin, supra note 26, at 151. 
155 Gee, supra note 58, at 220.   



2015 COLUMBIA JOURNAL OF RACE AND LAW 97 
 

percentage of students of Asian descent, that is, 45% and 43% in 2012 and 2013 respectively.156  Further, such 
a system would do nothing to remedy the existing disadvantages facing black and Latino applicants in the 
college admissions process.  Perhaps the best approach is to push for a more nuanced view of “diversity”; by 
advancing a deeper understanding of the heterogeneous makeup of America’s imperfect racial categorizations: 
“Asian American” populations cannot be “represented” by persons of Chinese, Japanese, Korean, and Indian 
origin alone.  “African American” students cannot simply be recent immigrants from various parts of the 
continent.  Rather, schools must broaden their understandings of racial identity and the complicated links 
between race, ethnicity, and immigration to create a truly inclusive environment. 
 

Which strategies should be employed then to move towards this “ideal” with regard to dealing with 
negative action against Asian Americans?  Litigation is probably not the most effective way of dealing with 
negative action.157  This is because legal challenges often require a long runway in terms of time and other 
resources.  Furthermore, university admissions are subjective – it is not easy to pinpoint specific examples of 
bias by admissions officers who have to, by necessity, reject many applicants with great resumes (near perfect 
SAT scores and many extra-curricular activities).  These admissions officers use qualitative tools such as 
personal essays which are highly subjective in nature.  As aforementioned, negative action is also partly 
motivated by unintentional racial bias which legal means are ill-equipped to handle.  Finally, given courts’ 
general reluctance to recognize disparate impact theories of discrimination, only by showing overt and 
conscious discriminatory treatment can lawsuits progress.  This is not to devalue the countless amicus briefs, 
lawsuits, and complaints filed by Asian American groups to challenge educational segregation.  Such suits can 
be fairly effective tools to engage and educate community-based organizations and their constituencies thereby 
helping to ameliorate the adverse effects of negative action, and to draw attention to important issues affecting 
the community.158 
 

Such litigation strategies should be supplemented, however, by some extra-legal means to tackle the 
underlying motivations of racism and benevolence behind negative action.  Grassroots organizing—from both 
Asian American communities outside of schools and Asian American student populations at schools—could 
push for more diversity recruitment coordinator positions.  In doing so, these groups could propose guidelines 
pressing for the broader conceptions of diversity referenced briefly above.  Asian Americans can also expand 
lobbying efforts against negative action, focusing efforts on building up a critical mass of Asian American 
faculty and institutional leaders, and promoting positive Asian American role models. 
 

First, creating more recruitment coordinator positions and educating them specifically to the issues 
addressed in this Article can reduce the hurdles faced by Asian American applicants in the admissions process 
of highly selective universities.159  These recruitment coordinators can help fellow admissions officers to 
recognize and overcome racial stereotypes160 and educate them on the diversity of the Asian American 
community (i.e. wealth of experiences, ideas, socioeconomic backgrounds, and religious beliefs).161  The 
universities should be required to submit annual reports to the recruitment coordinators documenting the 
admission rates for Asian Americans compared to Whites.  Such a reporting requirement would ensure that the 
universities are more vigilant in their efforts to eliminate discriminatory barriers for Asian American applicants 
and would also provide an external monitoring mechanism.162  Importantly, these recruitment coordinators 
could also measure the success of the “plus factor” of affirmative action in improving the admissions rates of 
African American students beyond just recent immigrants.  
                                                           
156 Dhar, supra note 20; Hsu, supra note 21. 
157 See Tsuang, supra note 26, at 665 (noting how this problem can be dealt with legally under a constitutional equal 
protection claim). 
158 Robert S. Chang and Karin Wang, Democratizing the Courts: How an Amicus Brief Helped Organize the Asian American 
Community to Support Marriage Equality, 14 UCLA ASIAN. PAC. AM. L.J. 401, 402. 
159 Tsuang, supra note 26, at 677. 
160 Id. at 677. 
161 Liu, supra note 11, at 419-20. 
162 Tsuang, supra note 26, at 677. 



98 A Critique of the Motivations Behind Negative Action In U.S. Universities Vol. 5.2 
 

 
 

 
Second, Asian Americans should expand lobbying efforts against negative action.  Successful lobbying 

by the Asian American Law Students’ Association led to UC Berkeley’s Boalt Hall School of Law to create 
“The Asian Special Admissions Program” in 1970, which was unfortunately dismantled 5 years later.163  
Presently, Asian Americans are less politically organized and vocal than many other racial groups in the U.S.164  
This is unsurprising, as the Asian American community is not homogeneous; almost 30 distinct groups are 
lumped together under the Asian American rubric, from the fifth-generation Japanese-American to the Hmong 
farmer.165  In addition, while the Asian American community is growing rapidly, it lacks sufficient size to 
generate political clout.  Hence, in order for Asian Americans to have a powerful voice, Asian Americans must 
work in coalition with other communities that have overlapping interests.166  Discrimination in education affects 
all communities of color, though it may take different forms against each; by building effective coalitions with 
other racial groups, Asian American organizers can push for a more equitable education system overall. 
 

Third, in the middle to long term, organizers should focus on building up a critical mass of Asian 
American faculty and institutional leaders.  Presently, such Asian American leaders are too few in number and 
not the decision-makers of most highly selective universities.  Save for a few exceptions, Asian American leaders 
are woefully underrepresented in university leadership; just 33 college or universities in the United States—less 
than 1% of all universities—are led by Asian Americans.167  Having a critical mass of Asian American faculty 
and institutional leaders is essential for advocating and providing leadership for and about Asian American 
students.   

 Finally, we should promote positive Asian American role models to the rest of the U.S. population to 
combat the unintentional bias of the admissions officers.168  These role models should be high achievers with 
well-rounded lives and/or have excelled in fields not usually associated with Asian Americans.  Present day 
examples include the Harvard-educated NBA basketballer Jeremy Lin, Judge Denny Chin (the only active judge 
of the U.S. Court of Appeals outside of California and Hawaii), Yul Kwon who was the Yale Law School and 
Stanford-educated lawyer and management consultant who won “Survivor” which catapulted him to People 
magazine’s lists of “Sexiest Men Alive” and “Hottest Bachelors”, and actor Daniel Dae Kim who starred in the 
hit TV series “Lost” and “Hawaii Five-O”.169  A slightly dated example but one who had ample positive media 
exposure is the former top-ranked tennis player Michael Chang.  While the diversity of the Asian American 
community makes it difficult for role models to represent the entire community, such examples can break down 
many of the stereotypes of Asian Americans discussed in the Article.  Such a long term strategy can re-negotiate 
Asian Americans’ racialized identity170 and combat the unintentional bias of admissions officers.  

VI. CONCLUSION 

Negative action against Asian Americans has important ramifications - it affects the next generation of 
Asian American leaders, with adverse ripple effects on Asian American numbers in graduate schools, academia, 

                                                           
163 See Asian Am. Law Students Assoc., Report of the Boalt Hall Asian American Special Admissions Project, 5 AMERASIA J. 21 
(1978). 
164 Aoki, supra note 54, at 46; Chew, supra note 17, at 4. 
165 Patricia Alex, The Secret World of College Admissions, IVY SUCCESS: THE RECORD (Jan. 30, 2005), 
http://ivysuccess.com/therecord013005.html. 
166 Chang, supra note 153, at 405-406. 
167 NAT’L. COMM’N. ON ASIAN AM. AND PAC. ISLANDER RESEARCH IN EDUC., supra note 82, at 7.  
168 See Chin, Supra note 26, at 136 n.28. (Stating that “This is not to say that people can have role models of only 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.”).  
169 Jeff Yang, The Real Reason Why Asian Americans are Outmarrying Less, WALL ST. J.: SPEAKEASY (Apr. 16, 2012), 
http://blogs.wsj.com/speakeasy/2012/04/16/the-real-reason-why-asian-americans-are-outmarrying-less/. 
170 See Aoki, supra note 54, at 60 (arguing that the history of Asian American racial stereotyping can and should be 
destabilised and reinterpreted through new artistic, cultural, economic, and legal means). 

http://danieldaekim.com/


2015 COLUMBIA JOURNAL OF RACE AND LAW 99 
 

and the professional fields.  To deal with negative action against Asian Americans, it is crucial to first understand 
the motivations behind negative action.  This Article has argued that the motivations behind negative action 
against Asian Americans are complex – they are an intricate tapestry of racism and benevolence interwoven with 
both conscious and unintentional aspects.  In critiquing the motivations behind negative action against Asian 
Americans by unpacking a four-quadrant matrix, this Article has sought a deeper understanding of how to deal 
with negative action against the “Model Victims.”   

 
In order to build power in the Asian American community, such stereotyping and racialized disadvantage 

must be addressed in a more honest and meaningful way.  Universities’ current approaches to student body 
demographics—whether UC Berkeley’s pure meritocracy system or the aesthetic diversity approaches of Yale or 
Harvard—are inadequate to ensure truly equal access to higher education.  This Article argues that it is necessary 
to have a more nuanced conception of college diversity that remains true to the spirit of remediation for America’s 
legacy of racial injustice while simultaneously seeking to dismantle stereotypes and racism.  Only by seriously 
grappling with its own history and the cultural scripts that disadvantage Asian Americans—and all groups of 
color—can America hope to effectuate its ideals of true meritocracy.