UCLA School of Law professor Jerry Kang, who served as the university’s founding vice chancellor for equity, diversity and inclusion, has spent his career examining the intersection of race, technology, and civil rights. In a new paper published in the California Law Review, "Asians Used, Asians Lose: Strict Scrutiny from Internment to SFFA," Kang discusses a striking pattern throughout American legal history, from Japanese American internment during World War II to recent U.S. Supreme Court affirmative action rulings.

While Asian Americans have repeatedly been invoked to build and justify equal protection constitutional doctrine, they have often failed to benefit from these legal developments. In the context of elite higher education, Kang argues, the real barrier to Asian American advancement isn't affirmative action helping other groups, it's "negative action," where Asian Americans are treated worse than comparable white students.

As debates over affirmative action, discrimination, and civil rights continue to evolve, Kang, the Ralph and Shirley Shapiro Distinguished Professor of Law, challenges conventional narratives about Asian American experiences in higher education and beyond. He shares his insights in this conversation:

In your new paper, what's the through line you're drawing from Japanese American internment during World War II to the recent Supreme Court affirmative action cases?

There's a really important constitutional doctrine called strict scrutiny that's central to how courts understand race discrimination, including affirmative action policies. Strict scrutiny is the highest level of judicial review — it requires that whenever government uses race in decision making, it must pursue a "compelling interest," and the way it pursues that interest must be "narrowly tailored," meaning it must be really well designed to achieve its ends. It's very hard to pass strict scrutiny, which is exactly the point — it's supposed to make racial classifications extremely difficult to justify.

My claim is that the development of strict scrutiny has, in really interesting and upsetting ways, used Asians to both build up the doctrine and prop it up, even though in three important moments it involved Asians losing, not winning.

The doctrine was created in the 1940s during Japanese American internment. In Korematsu v. United States, the landmark Supreme Court case in 1944, the Court wrote that "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect" and must be subject to "the most rigid scrutiny." That sounds great, except Fred Korematsu actually lost his case. The Court said targeting Japanese Americans wasn't racial prejudice because "we are at war with the Japanese Empire." They used Asians to create this lofty legal standard, but Asians lost in the end.

In the 1990s, Justice O'Connor invoked Korematsu to justify applying strict scrutiny to affirmative action programs designed to increase opportunity for racial minorities. She said we must never forget Korematsu and need strict scrutiny to smoke out hidden racial prejudice whenever race is used, even for affirmative action programs, to avoid similar errors. Again, Asian trauma was used rhetorically to justify and extend strict scrutiny doctrine. But the doctrine was never really used to detect racial prejudice in affirmative action programs. Instead, it just made these programs really hard to adopt.

Finally, in 2023, the Supreme Court case Students for Fair Admissions (SFFA) v. Harvard, Asians were used as the battle cry to attack Harvard's admissions program, with arguments that Asians were being discriminated against even as compared to white students.

Although the plaintiff, SFFA, won its case, no court, including the Supreme Court, actually found any discrimination against Asians. Instead, SCOTUS used the case to change the law and simply hold that educational diversity was effectively no longer a “compelling interest.” By the way, SFFA never asked for relief that would most directly help Asian students, like addressing implicit bias in interviews or prohibiting preferences for legacies and athletes that disproportionately help white students.

So across eight decades, Asian Americans have been the rhetorical vehicle for building constitutional equal protection doctrine, but in prominent cases, they've not actually benefited from it.

In SFFA, Asian Americans were positioned as victims of affirmative action, but you've argued that this narrative misses the real discrimination happening. Can you explain "negative action" and how it reframes these debates?

This gets to the heart of what I think is the most important issue: the difference between affirmative action and what I call "negative action."

First, to repeat, the courts found there was no discrimination against Asian Americans. So, striking down Harvard's program couldn't fix a problem because no problem was acknowledged.

But here's what I think is really happening: The real source of decreased admission chances for Asian Americans isn't affirmative action given to others but "negative action" — being treated worse than white students. It's a simple question: If an Asian student who didn't get into Harvard had been white, would they have been admitted? If the answer is yes, that's negative action.

This happens principally because of implicit biases that read Asian Americans as less charismatic or less likely to be leaders, and structural preferences for legacies, athletes, and geographical diversity. Asians are disproportionately less likely to be legacies, since most of our immigration was permitted only after 1965; less likely to be athletes in elite country club sports like tennis, lacrosse, or crew, which are disproportionately white; and less likely to live in rural or smaller communities.

What I care most about is negative action. We can debate whether excluding certain groups from affirmative action is fair, but under no circumstance can I think of justifications where white people should be treated better than Asian people in admissions. If it's all a “melting pot” and we (“Asians”) made it, why treat Asians worse than white people instead of the same?

What do the data tell us about the impact on admissions for Asian American students since the Supreme Court ended affirmative action in 2023?

If you thought ending affirmative action would make things wonderful for Asians and that their admission rates would jump through the roof, that's not what the data suggest.

Looking at data from the Fall 2024 admissions cycle, what we found was unevenness. Some schools like MIT, Columbia, and Brown showed increases in Asian American enrollment. Others like Princeton, Yale, Duke, and Dartmouth had decreases. And at certain institutions, white student admissions actually increased even more than Asian students.

This supports my argument that the real issue was never affirmative action — it was negative action. If you don't address the underlying biases and structural preferences that disadvantage Asian Americans relative to white students, simply eliminating affirmative action won't solve the problem.

What do you see as the most important civil rights challenges facing Asian American communities in the future?

I see extremes. On one end, hate crimes spiked during COVID when Asians were made salient as “perpetual foreigners.” Whether it's geopolitical challenges with China or another virus, the idea that Asians aren’t fully American can be ginned up by politicians and lead to violence against Asian Americans regardless of their education or economic status.

At the other extreme is subtle discrimination through implicit biases and structures. I tell parents: Even if you get your kid into an elite school, what happens when they enter the corporate world? The same racial processes that read your kid as not “leadership material,” not sufficiently charismatic, will constrain their opportunities. If we've given up tools like diversity and inclusion, that's short-sighted even if we care about only our children.

More generally, my scholarship emphasizes the peculiar role Asian Americans play in American racial politics. We occupy a liminal position — we could identify as honorary whites or as people of color. We do have to choose.

I try to emphasize the value of remembering our particular experience of discrimination — internment, exclusion, hate crimes — and using that to get us to commit to universalist principles ensuring everyone gets a fair shot, regardless of race. It can't just be self-interest for my people, my children, my tribe. That's not the American project. Asian Americans should remember their own stories of not being given a fair shot and commit to making sure everyone gets one. That's what would make this country great.