April 4, 2021 | Zhihan (Jill) Ji
Edited by Emily Steirman
Affirmative Action in the US and China
The term “affirmative action” was first introduced by President Kennedy with Executive Order 10925 in 1961, stating that the employment of workers should be “without regard to their race, creed, color, or national origin .” The same principle evolved to be applied to other fields, notably in higher education. Yet, it has always been a heated discussion as to whether race should be included as a factor in the college admissions process, with major arguments around reverse discrimination, the stigmatization towards the beneficiaries, and the constitutionality of the program itself. Although very different politically and judicially, the People’s Republic of China has been confronting a very similar issue- the equal distribution of higher education opportunities for its 55 ethnic minorities.
The Chinese version of affirmative action involves 4 major programs . First, the government establishes special educational systems catered to ethnic minorities with boarding schools and ethnic minority classes to increase people’s access to basic education in relatively underdeveloped and distant areas . Second, as “Law of the People’s Republic of China on Regional National Autonomy” states, the government appropriates an assistive budget to each region and assures the proportion appropriated for education . Third, the government adopts different language testing systems for ethnic minorities and lowers the admission standard for test scores to cultivate more ethnic minorities with PhD or master’s degrees. Fourth, the government emphasizes normal education, or the cultivation of good teachers, to train teachers specifically for ethnic minorities and elevate the social standing of teachers . To complement such programs, the government launches a “one-on-one” aid program to implement the “Project of Counterpart Aid from Schools in Eastern Regions to Schools of Poverty-stricken Areas in the Western Regions” where schools from the two regions are paired to assist each other .
Constitutionality of Affirmative Action
Despite the extensivity and long execution of the programs, some question the constitutionality of China’s affirmative action. Article 46 of the Constitution of the People’s Republic of China states that citizens have the rights to receive an education while Article 9 of the Education Law of People’s Republic of China stipulates the equality of such rights . Although both the Education Law and Higher Education Law list the rights of citizens, they lack specific and implementable regulation, meaning that the adoption of “affirmative action” betrays the principle of legal reservation, which claims that administrative work can only be executed when corresponding legislation exists . However, Article 4 of the Constitution states that the government should assist different regions in economic and cultural development based on different ethnic minorities’ traits and needs in order to achieve equality across all ethnicities as stated in Article 1 . The Ministry of Education designs policies regarding college admissions each year, which possess legislative mandate, meaning that such pro-ethnic minority policies have not violated the principle of legal reservation . In fact, Article 71 of the Law of the People’s Republic of China on Regional National Autonomy affirms that institutions should adopt a looser and more flexible admission standard for minorities .
The debate around constitutionality in China revolves around an interpretation of specific legislation as there are more concrete and detailed laws in place than in the U.S. Although a similar debate on affirmative action has been more prevalent in the United States, the main source of discourse is a series of Supreme Court cases. The first case was Brown v. Board of Education (1954) that prohibited the exclusion of minority students from white schools, marking the end of segregation de jure in education .
Unlike China that passed and included guidelines regarding helping and benefiting ethnic minorities, the specifics of affirmative action in the United States largely relied on different institutions and the rulings of Supreme Court cases that refined them. One indispensable case is Regents v. Bakke (1978), in which the “set-aside” program of the Medical School of the University of California Davis was brought to question and eventually deemed unconstitutional . With a 5-4 vote, Justice Powell explained that although giving minority applicants a boost in the admissions process is appropriate, having a racial quota that evaluates minority students apart from the entire candidate pool is unconstitutional . It is thus difficult to determine the constitutionality of affirmative action in the United States as the state has not officially issued or promulgated any and thus one needs to rely more on individual Supreme Court case rulings.
The Outcomes and Flaws
It is important to note that China puts a heavier emphasis on how equality in education can contribute to the overall unity of the nation and the reinforcement of a coherent national identity that can deter social unrest especially from ethnic minorities near country borders. Hence, the evaluation of the Chinese system offers much commentary on the preservation of Chinese culture and history.
Despite having many programs in place, affirmative action in China still lacks proper legislation regarding the education of ethnic minorities . The language used differs considerably from regular legislative terminology, undermining its authority in execution . Similarly in the US, there are no specific legislative guidelines on affirmative action, which leaves loopholes for certain institutions to exploit race-based selection processes. For example, the Medical School of the University of California Davis implemented a “set-aside” approach that racialized the admission process. China has a more centralized legislative system, thus making the principle of legal reservation a factor important enough to constitute unconstitutionality. Yet, the autonomy that states and institutions in the US have grants them the power to devise different policies, which arguably is not as efficient a system as it increases the reliance on Supreme Court intervention to further refine the regulation. Unlike complying to one standardized policy, self-devised policies may be examined and sued against as seen in past cases, clouding how affirmative action should be executed.
For historical reasons, many ethnic minorities inhabit western China, which has areas that are far more underdeveloped than the rest of China, exacerbating inequality due to an imbalance in resources . The shortage of governmental fiscal assistance made it difficult for different regions to match the quota for primary and secondary education . Likewise, in the US racial minorities also tend to live in underdeveloped and underprivileged neighborhoods that do not have the best public schools. To achieve a greater impact with affirmative action, only having institutions in the admissions process is not sufficient. The government should also partially be involved to reform the schools in neighborhoods mainly populated by minorities to minimize the inequality in people’s starting points.
The ambiguity of relevant legislation allows many to exploit the benefits provided. In both China and the US, there are students who fabricate their ethnic or racial identities particularly to enjoy such benefits and increase their chance of admission . In China, some, especially those who may not be able to enter prestigious universities without an extra ethnicity-based boost, migrate to autonomous regions to enjoy the local benefits . Such behaviors only exacerbate the lack of understanding and hostility among peoples as this paints the policies as an unfair way to make up for the incompetence of some individuals when such a discrepancy in academic ability actually exist because of societal inequality resulting from historical and modern conditions . This further stigmatizes the target groups as unqualified to the extent that they might internalize such criticism, damaging their experience with higher education and defeating the purpose of affirmative action .
Besides harming the target groups, however, affirmative action can prompt reverse discrimination, meaning that it harms the chances of admissions for more qualified students who are not minorities [2,6]. The recent cases on certain prestigious colleges’ unfair treatment towards Asian students reflect such a possibility.
The special historical context and purpose of affirmative action in China also require it to be able to preserve different ethnic minorities’ culture. The standardization of the school system detaches ethnic minorities from their own cultural heritage and only indoctrinates them with the mainstream culture . This assimilation is not conducive to the long-term development and stability of autonomous regions . Already seen in some more remote regions populated mainly by minorities, there is public dissent towards “cultural cleansing,” or this act of diluting the local culture and imposing Han education. Many feel threatened and disrespected by the central government as they gradually become disconnected from their heritage.
Possible Future Changes
Before discussing possible changes, a question that demands more exploration is what type of equality relevant legislation should pursue. Formal equality emphasizes equality before the law and that all should be treated the same. Yet, with something as complex as affirmative action, the adoption of the same legislation for everyone can still result in drastically different outcomes . Substantive equality, on the other hand, focuses on equality and fairness in the final results . A more ideal way to evaluate equality should be with proportion, meaning that the ratio between people receiving higher education and the total population of that ethnic minority or race should be roughly the same . With this goal established, specific legislative and policy changes should then focus on guaranteeing both equalities in starting points and outcome, meaning that students of all ethnicities or races should have the same access to educational resources and higher education.
First, policies should no longer single out one ethnicity or race as doing so deepens barriers among different peoples . Emphasis or investment in only one particular group ignores other groups and prevents the achievement of equality in proportion as it creates an incentive for hostile competition and jealousy. One notable example is how the Asian American community’s frustration towards colleges’ unfairly strict admission standards easily translates to discontent towards affirmative action. The dissent derives from the fact not all minorities are included or necessarily benefiting from the affirmative action program in the status quo. Equality by proportion should be achieved across all minorities and thus policies should not be exclusive.
Second, affirmative action should no longer focus on only ethnicity or race but incorporate other factors such as differences in socioeconomic background and cultural differences . This prevents the benefits from flowing to people who do not need them as much as others. Not all ethnic minorities live in western autonomous regions in China and not all racial minorities come from underprivileged neighborhoods in the US. A white student can also be in an unfair situation and needs special assistance. Having a more comprehensive program also prevents the exploitation of the policies and phenomena such as the Gaokao Migration where families purposefully move to a poorer province for college admissions .
Third, institutions should invest more in minority student support and realize that affirmative action should not end or be restricted to the admission process . Many students can feel a lack of confidence or even sense inhospitality around campus. It is the schools’ responsibility to have more organizations for conventionally underrepresented groups to value and cherish their voices and contribution to the communities .
Despite the political and historical differences between China and the United States, the two countries share their issues around their multicultural demographics and particularly in the adoption of affirmative action. The two systems have much to learn from each other and should develop together to eventually achieve equality in proportion.
Ji is a freshman majoring in International Studies with a minor in Film and Media Studies and Spanish. She also has contributed a review of China’s new surrogacy policies to the Online Publication.
 “affirmative action”. LII / Legal Information Institute, 2020, https://www.law.cornell.edu/wex/affirmative_action.
 Wang, Chuanfa. “A Study of China’s Preferential Differentiated Educational Treatments for Minority Nationalities- an analysis of the bonus-point policy for minority candidates in college entrance examination from the perspective of reverse discrimination.” The Ideological Front 43.05(2017): 48-58.
 Fang, Yueping & Wang, Quansheng. “A Study of Higher Education Equality and Its Realization Paths for Ethnic Minorities in China- from the Perspective of Equal Access to Education”. Journal of Research on Education for Ethnic Minorities. 30.02(2019): 42-49.
 Mishkin, Paul J. “The Uses of Ambivalence: Reflections on the Supreme Court and the Constitutionality of affirmative action.” University of Pennsylvania Law Review, vol. 131, no. 4, 1983, pp. 907–931.
 Yang, Fang. “On the Justice of Policy of Adding Points in the University Entrance Examination Applying to Minority Nationalities in China.” Ethno-national Studies. 06(2010):9-20.
 Fischer, Mary J., and Douglas S. Massey. “The effects of affirmative action in higher education.” Social Science Research 36.2 (2007): 531-549.
 Howell, Jessica S. “Assessing the impact of eliminating affirmative action in higher education.” Journal of Labor Economics 28.1 (2010): 113-166.
Photo Credit: South China Morning Post
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