In October 2006, Asian American student Jian D filed a civil rights complaint against Princeton University claiming that Princeton's affirmative action policies were discriminatory. Li argues that affirmative action gives preferences to non-Asian minorities at the expense of Asian students. Li's case aligns the interests of Asian Americans with Whites who challenge affirmative action and suggests that such policies are inherently discriminatory because they exclude students based on race and sacrifice merit. This Article argues that Li's exclusion is not due to affirmative action but is likely due to "negative action," the unfavorable treatment of Asian Americans relative to Whites. Affirmative action is not discriminatory because it considers a multitude of factors, including race, to achieve a diverse student population. Nor does affirmative action sacrifice merit; rather, it redefines merit in a way that can benefit students of all racial groups. On the other hand, negative action is discriminatory and prevalent. Whether it takes the form of legacies, admission limits or racial group comparisons, negative action discriminates against Asian Americans based on their race and contributes to existing inequalities in admissions. Framing Li's case as a claim against negative action instead of affirmative action is a more accurate analysis that attacks ongoing discrimination in admissions, but preserves affirmative action's benefit for all racial groups.
Affirmative Action & Negative Action: How Jian Li's Case Can Benefit Asian Americans,
Mich. J. Race & L.
Available at: https://repository.law.umich.edu/mjrl/vol13/iss2/2