Let me begin with a bald statement: Race-conscious affirmative action is not about diversity. Rather, it is about justice. And it is about the kind of justice that the American legal system is ill-equipped to deliver: transitional justice._^[1]

You might ask, who am I and what standing do I have in making such an assertation? My response is simple: I’m a naturalized citizen and the experience of writing a book on China’s political-legal culture has made me take a keen interest in the debate on affirmative action and the recent SCOTUS ruling on the unconstitutionality of race-conscious college admissions. Still, you ask, what does the rule of law or the lack thereof in China have to do with America’s fight over affirmative action? A quick answer is: a lot, in the sense that the US and China have chosen radically different paths in redressing historical wrongs. And the reflecting on the difference may help us process the adverse ruling.

When Americans think of transitional justice, they think of countries like South Africa, Cambodia, and Argentina, countries that bid painful farewell to oppressive regimes and birthed new democratic governance through a wrenching process of truth and reconciliation. Yet insofar as transitional justice is about coming to terms with historical injustices in collective, organized, and bracing fashion, it is a far more common experience than legal theorists have generally recognized. In my view, the entire post-Civil War US history can be viewed as one of the longest episodes of transitional justice in world history. 

There are arguably few historical wrongs more grievous than slavery. If we pull the lens far back enough, we can say that the fight over affirmative action is playing out the century and a half-long process of trying to right the wrongs of slavery. It is a process, following the cataclysm of the Civil War and the aborted Reconstruction, that has largely unfolded within a constitutional framework. History textbooks prominently feature ground-breaking legislations such as the 14^th Amendment (1868) and the Civil Rights Act (1964) and landmark Supreme Court rulings from Plessy v. Ferguson (1896) and Brown v. Board of Education (1954) to Regents of the University of California v. Bakke (1978). And yet the fact that the fortune of affirmative action is so swiftly reversed goes to show how difficult it is to remedy the legacy of slavery within the legal bounds of claims and counter-claims, one court case at a time. 

In my book A Certain Justice: Toward an Ecology of the Chinese Legal Imagination, I bifurcate the concept of justice into high justice and low justice._[2] High justice belongs to the domains of politics and morality whereas low justice is what the law delivers. High justice prioritizes just ends or substantive justice whereas low justice prioritizes just means or procedural justice, whatever the outcomes. In the former, social groups can make collective claims, whereas in the latter only individuals (or legal persons) have legal standing. Grave historical wrongs such as slavery, colonialism, apartheid, and genocide pertain to high justice and require a political-moral reckoning. If shoehorned into a civil or criminal legal framework, their legacies have a way of festering beneath an orderly proceduralism and ostentatious even-handedness. 

In the US context, as Richard Thompson Ford points out in a pair of powerful essays, systemic racism and white supremacy have persisted under cover of colorblindness in the post-Jim Crow era. While affirmative action, growing out of the civil rights struggles, has made significant strides towards reparative justice—the keystone of transitional justice—it was dealt a near death blow in Bakke which disallowed racial quotas, essentially repudiating affirmative action’s core mission while code-switching the discourse to “diversity.” Justice Lewis Powell’s much celebrated opinion affirming the educational benefits of diversity as a compelling state interest for all intents and purposes put affirmative action on life support._[3] Subsequent legal challenges have further attenuated the policy, resulting in institutional retreat and ebbing public support.

The problem with diversity, according to Ford, is that it encourages a view of America as a nation of minorities who are equally vulnerable to discrimination. After all, the thinking goes, it was not that long ago that Irish and Italian Americans were excluded from the prosperous mainstream dominated by white Anglo-Saxon protestants. The principle of colorblindness asks Black Americans to bide their time in hopes of repeating the success stories of the Irish and the Italians. In confusing race with ethnicity and cultural difference and being unmoored from the moral imperative of reparative justice, the diversity rationale has become increasingly indefensible before the powerful logic of equal protection as enshrined in the 14^th Amendment. In the end, colorblindness amounts to a form of historical blindness—to history and its long shadows.

In China, the new People’s Republic that arose from the rubble of protracted warfare in 1949 chose a very different path in pursuit of transitional justice. The new communist state did not think that deep-rooted socioeconomic injustices could be righted by an adversarial legal regime that can’t see the forest of class oppression for the trees of individual grievances. In Chapter 3 of A Certain Justice, I argue that the Chinese revolution is a radical project of transitional justice that combined revolutionary violence with state-mandated affirmative action. Most readers probably have some familiarity with the former, which culminated in the infamous Cultural Revolution. But state coercion and violence is inseparable from the latter, more prosaic but in many ways also more consequential panoply of policies and programs, ranging from the Land Reform (land to the tiller), the “iron rice bowl” (employment security for urban residents) and preferential college admissions for the children of workers and peasants, to special welfare provisions for the nation’s 55 ethnic minorities. One might say that the state went far beyond merely putting its thumb on the scale—it abolished the scale altogether.

Does China’s experience show that extra-legal means—dispensing outright with the pretense of impartiality—are more effective in meeting transitional justice goals? How does one adjudicate the success or failure of China’s unapologetic affirmative action policy? How do China’s poor reputation and spotty record of human rights protection help us see anew such controversial questions as: what should be the proper role of the government in righting historical wrongs? and whether class should replace race as the basis of affirmative action? Readers won’t find direct answers to these questions in A Certain Justice, but they could acquire a new perspective on the US dilemma by considering the experience of a nation that made radically different moral choices. 

Consider China’s own version of affirmative action in college admissions. There are two phases to the policy. During the Mao era (1949-76), the state sought to break the intellectual elites’ hold on educational opportunity and resources by giving greater weight to class background and ideological purity than to grades and test scores. It became even possible for a young peasant, worker, or soldier to be “recommended” to college solely on the basis of their class identity and political loyalty. There was also a separate educational track for ethnic minorities comprised of minorities-only schools and colleges as well as ethnic cohorts and preparatory classes at Han-dominated institutions._[4] The immediate post-Mao era saw the restoration of the National College Entrance Examination colloquially known as the Gaokao, which was eagerly embraced by a generation of urban youth sent by Mao to the countryside to be “tempered” by manual labor and thus deprived of a formal academic education. Over the past four decades, the Gaokao has become a rite of passage for millions of high school graduates in which one’s test scores alone determine one’s college placement and future prospects. For a couple of days every June, the entire nation is gripped by a paroxysm of Gaokao-induced anxiety, mania, and hope. 

Although ridden with structural disparities and marred by the occasional cheating scandal, the Gaokao has been hailed as the fairest institution China has ever invented or reinvented as a modern iteration of its famed civil service examination system of imperial times. As Zachary Howlett has remarked, its image of fairness sits side by side with public knowledge of preferential and positive policies such as regional quotas, varying score cutoffs by province, and bonus points for minority applicants. Integral to the state’s high justice agenda of national integration, such social engineering programs could not be challenged in the courts as a low justice matter. But as with many inconvenient or unpopular state policies, people find work-arounds such as Gaokao migration (moving one’s household registration to a province with lower thresholds to selective universities) and falsification of one’s ethnicity to qualify for a boost to one’s scores._[5]

In seeking to understand China’s political-legal culture, I have found the distinction between high justice and low justice immensely useful. China’s affirmative action policy falls squarely within the high justice domain with its aim of achieving equality among groups and classes rather than among individuals and in its willingness to allow the former to trump the latter. The hierarchy of justice allows us to explain the overriding legitimacy of the regime and the popular piety it enjoys for all the violence and terror it has unleashed on the populace and in spite of the unfulfilled promise of shared prosperity. In Xi Jinping’s China, the rule of law or fazhi is enshrined as a core socialist value. Some scholars prefer to render fazhi as “rule by law” to emphasize the fact that the law is a tool of governance more to punish malfeasance for disturbing the social order and much less to defend individuals against power. No one is above the law in China, but the party-state is. As the locus of high justice, the state is both the wellspring and ultimate guarantor of low justice, or justice between individuals. Thus when a citizen is wronged by a local official, he or she is as likely to ascend the “petition” ladder all the way to Beijing as to scale the staggered court system as an American might—all the way to the Supreme Court._[6] In the popular imagination, local governments may be hopelessly rotten, but the higher one goes, the cleaner and more upright the officials are. Eventually, wise and perspicacious leaders in the center will incisively overrule local tyrants and corrupt cadres and restore justice for the long-suffering common folk.

In the conclusion of my book, I ponder the occlusion of high justice in the American legal system and legal imagination whereby the law is explicitly conceptualized as a safeguard against the depredations of power. Americans’ ambivalence toward their government is most visibly cashed out in the many cases that ordinary citizens bring against various levels of government, including the federal government. Low justice is the essence and glory of American jurisprudence, and Americans proudly regard the rule of law as their greatest gift to humanity. But the near total eclipse of high justice, or the subordination of politics and morality to law, is not without a cost. 

As critical legal studies scholars have long pointed out, law is ill-equipped to address the systemic inequities of racism, sexism, and colonialism. The fact that the law has been deployed effectively in combatting these problems in the past (especially in the area of hate crime legislation) has in a way also narrowed the American political imagination. There is a tendency to resort all too quickly to the courts instead of the more laborious and seemingly interminable path of finding political solutions to the nation’s many entrenched and intractable problems. As Alexis de Tocqueville observed long ago: “scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question.”_[7] Why debate about the moral right and wrong when the law can tell you, in no uncertain terms, whether something is fair or unfair, whether you have a right or you don’t, and whether you are or are not guilty? Why wade into the muddy waters of politics and morality when the law can give you black-and-white answers.

For example, one might attribute the proliferation of firearms, the epidemic of gun violence, and the maddening lack of political will to do anything about it in the US to Americans’ reverence for the Constitution, so much so that they are unable or unwilling to see the potential contradiction between the First and Second Amendment. How can a society armed to the teeth really honor freedom of speech?_[8] One need only think of the Red Guard movement during the Cultural Revolution to see that the temptation to impose one’s will through the threat of violence makes abiding by the norms of civil society highly unappealing and inexpedient. Why argue if you can cow the other party into fearful acquiescence?_[9] So long as gun control is mired in the juridical arena, there is little hope of amelioration.

Law in liberal democracies is a paradigmatic case of what Lorraine Daston calls “thin rules.” Thin rules aspire to uniformity, stability, and universality. In the face of messy reality, however, they are often too coarse-grained and unbending to be truly effective. This is where “thick rules” come in. Thick rules are contextual, flexible, and discretionary; they are full of explanations, examples, caveats, and exceptions, all of which serve to cast the preconditions for thin rules into relief. Behind every imperious thin rule, Daston maintains, there are thick rules ready to step in to clean up after it._[10] The dynamics between thick rules and thin rules correspond to that between high justice and low justice. The American style of rule of law overwhelmingly relies on law’s thin rules and is suspicious of the thick rules of politics and moral judgment. For example, we can think of the relationship between the 14^th Amendment and affirmative action as that between a universal thin rule and a set of thick rules cognizant of the tragic imperfections of reality and the painstaking collective efforts required to mitigate them. If the former sees only discrete individuals as rights-bearers, the latter attends to the tangled webs of ties that bind us into interdependent communities of fate. If the former characterizes us as meritocratic players on a level playing field, the latter takes stock of the social production of individual merit. Affirmative action demands that we transcend the squeaky-clean realm of thin rules and its low justice of fairness, that we not lose sight of the historical mission of transitional justice, that we reach for the high justice of equity.

When I became naturalized as a US citizen decades ago, I read somewhere that America asks preciously little of its citizens, too little: to be an American, all one needs to do is not break the law. The American Dream promises the world to each of us, but it says nothing about what we owe the country as a political community beyond taxes. As a result, new immigrants seduced by the shining but paper-thin myth of the America Dream may not be well attuned to the thick description of citizenship that says sharing in America’s bounty means also shouldering its historical burdens. Complaining about reverse discrimination betrays an unwillingness to assume that obligation. Collective responsibility is moral in nature and not contingent on the legal validity of collective guilt. Redressing the wrongs of slavery is incumbent upon every American citizen, not just those whose ancestors may have participated in the enslavement of the African diaspora. Affirmative action requires buy-in from everyone who partakes of a system that perpetuates structural racism. It is not about fairness between individuals, but about a long overdue reparative justice. It’s about who we are as a nation and a people.

Be that as it may, Americans are also justified in their wariness of leaving too many important decisions to politics and morality. In a pluralistic and increasingly fractious society, law seems the only viable peacemaker. Anything “thicker” or “higher” provokes the specter of tyranny. As noted above, Americans prefer to settle all disputes—even something as momentous as the outcome of a presidential election—at the low justice level, as a matter of fairness, in the format of claims and counter-claims. And seeing how high justice serves to squelch low justice in China only cements their conviction that the thin rule of law is the only legitimate rule and that everything else is a slippery slope to anarchy or autocracy. But it may well mean that we have to settle for a thin gruel of justice incapable of nourishing a healthy democracy. As Ford urges: “Let old men and women in black robes peddle in substitute justice. We must demand the real thing.”_[11]

[1] I would like to thank Zachery Howlett and Charlotte Lindemann for their help with this essay.

[1] I would like to thank Zachery Howlett and Charlotte Lindemann for their help with this essay.

[2] Haiyan Lee, A Certain Justice: Toward an Ecology of the Chinese Legal Imagination (Chicago: University of Chicago Press, 2023).

[3] Richard Thompson Ford, “Derailed by Diversity,” The Chronicle of Higher Education, September 2, 2022; “The False Promise of Colorblind Admissions,” The Chronicle of Higher Education, May 16, 2023. See also Brian Leiter, “Academic Ethics: Is ‘Diversity’ the Best Reason for Affirmative Action?” The Chronicle of Higher Education, September 20, 2017; Natasha K. Warikoo, The Diversity Bargain: And Other Dilemmas of Race, Admissions, and Meritocracy at Elite Universities (Chicago: University of Chicago Press, 2016).

[4] Barry Sautman, “Affirmative Action, Ethnic Minorities and China's Universities,” Washington International Law Journal vol.7, no.1, 1998.

[5] Zachary M. Howlett, Meritocracy and Its Discontents: Anxiety and the National College Entrance Exam in China (Ithaca: Cornell University Press, 2021).

[6] For a memorable and harrowing depiction of the phenomenon of petitioning, see Zhao Liang’s documentary Petition《上访》(2011).

[7] Quoted in Douglas E. Edlin, “Learning about Equality: Affirmative Action, University Admissions, and the Law of the United States,” Affirmative Action in China and the U.S.: A Dialogue on Inequality and Minority Education, ed. Minglang Zhou and Ann Maxwell Hill, 227-246 (New York: Macmillan, 2010), 229. 

[8] Firmin Debrabander, “The Freedom of an Armed Society.” The New York Times, December 16, 2012.

[9] Haiyan Lee, “Guns, Fairytales, and Red Guards.” MCLC Resources Center, May 13, 2016 (originally published on Parlio.com).

[10] Lorraine Daston, Rules: A Short History of What We Live By (Princeton: Princeton University Press, 2022), 267.

[11] Richard Thompson Ford, “Derailed by Diversity.”