Disoriented: Asian Americans, Law, and the Nation-State

7

Reverse Racism! Affirmative Action, the Family, and the Dream That Is America We should transform “reverse racism” from a curse to an injunction (Reverse racism!). —David Roediger, Towards the Abolition of Whiteness (1974) I am a product of affirmative action. Thus, to imagine a world without affirmative action would require that I imagine a world without me, something that I am not inclined to do. I am reminded of a cartoon showing the philosopher Descartes saying, “I think, therefore I am.” The second frame shows him musing, “I think not, therefore . . .” The last frame is blank. I find it ironic that so many affirmative action babies can advocate against the policy responsible for their very existence. And although I disagree with much of what Stephen Carter says, I agree with him that we must invert the negative meaning attributed to the term “affirmative action baby,” and that in order to do so, we must embrace the term rather than reject it.1 Let me repeat, then, without shame that I am a product of affirmative action. And I refuse to imagine my own nonexistence. When confronting those who would abolish affirmative action on the basis of race and/or gender in education, employment, and contracting, my initial facetious response is to say, “Sure. But only if you get rid of the affirmative action policies that are putting black and, increasingly, Latino men in prison for long periods of times.” One particularly egregious statistic was produced by the Georgia criminal justice system, where 99 percent of those in prison for life under its second-drug-offender statute are African Americans .2 Results such as this do not occur without affirmative action, which takes place in the form of selective enforcement, selective prosecution, and 7 110 selective sentencing.3 So if we are going to get rid of affirmative action, I say that we should start in the criminal justice system. I have yet to persuade the forces against affirmative action to join me in this move to abolish affirmative action in our criminal justice system, but I use this notion of affirmative action in our prisons to do two things: first, to begin contesting our stock understandings of affirmative action; and second , to see how committed the anti-affirmative action forces are to a broad vision of social justice. People often mean very different things when they talk about affirmative action. To help clarify the discussion, David Oppenheimer offers five possible , nonexclusive meanings that might come under the rubric of affirmative action: (1) nondiscrimination; (2) outreach and recruitment; (3) self-examination ; (4) preference programs; and (5) quotas.4 Although these are useful in clarifying the debate, the lack of engagement that often mars conversations on affirmative action comes more from the different sides having vastly different notions of fairness or merit that inform their construction of “affirmative action.” These different notions stem in part from differing attitudes toward what the appropriate temporal framework is for understanding affirmative action.5 The forces that would save affirmative action characterize it as necessary to equalize opportunities for racial minorities and women.6 Informed by a certain notion of fairness located within an expansive temporal framework, this view allows consideration of the history of racial and gender oppression in addition to ongoing racial and gender discrimination. The forces that would destroy affirmative action offer a competing notion of fairness located within a narrow temporal framework that allows consideration only of the immediate parties to the transaction in question. A typical statement of this view takes the following form: The third answer to the embarrassment of present statistical [racial] disparity . . . is not . . . present, or even recent, racial discrimination in law faculty hiring. Rather, as plaintiff argues, the likely cause is general, diffuse social discrimination in the increasingly distant past that has made law practice (and thus law teaching) a white male bastion. That fact, of course, does not justify visiting the sins of the fathers on the sons; present-day racial discrimination against particular individuals is no remedy for past social discrimination .7 Antiaffirmative action forces characterize affirmative action as reverse discrimination or reverse racism and tell the story of the innocent white male. Reverse Racism! | 111 This story has captured the public’s attention in such a way that affirmative action is suffering what might be termed “death by anecdote.” The most gruesome death by anecdote that I have had the misfortune...