Contemporary Issues

1. Contemporary Issues Asian Americans and the Law Dr. Steiner

2. “The Model Minority” • Japanese are “model minority” who have established a “remarkable record” of achievement “by their own almost unaided effort” (as opposed to “problem minorities”) • William Petersen, Success Story, Japanese American Style, New York Times Mag., Jan. 6, 1966 • “Why are Asian Americans doing so exceptionally well? They must be doing something right. Let’s bottle it.” • Mike Wallace, 60 Minutes (CBS 1987) • “Asian-Americans: A ‘Model Minority’,” Newsweek, Dec. 6, 1982

4. Educational Achievement • In 2000, roughly 80 percent of both all Asians and all people in the United States 25 and older had at least a high school education. • However, a higher proportion of Asians (44 percent) than of the total population (24 percent) had earned at least a bachelor’s degree. • Asian Indians had the highest percentage with a bachelor’s degree, about 64 percent, whereas about 60 percent of Hmong, and about half of Cambodians and Laotians, had less than a high school education. • Japanese had the highest proportion (91 percent) with at least a high school education. • We the People: Asians in the United States (Census 2004)

5. The Myth of the “Model Minority” • Higher family incomes • Regional locations (New York, California, Hawaii) • Family incomes (instead of per capita incomes) • White nuclear families had 1.6 workers per family; Chinese American families had 2 workers per family; 2.1 for Japanese American families; 2.2 for Filipino families • Higher educational achievement with less return • Income inequality based upon education • Asian Americans earn less than whites with comparable educations: in 1992, college-educated whites earned almost 11% more than college-educated Asian Americans; white high school graduates earned 26% more than their Asian American counterparts

6. McGowan & Lindgren, Untangling the Myth of the Model Minority • First, Asian critical scholars argue that the model minority stereotype is wrong as a factual matter. Here Asian critical scholars scrutinize data that appear to demonstrate Asian educational, occupational, and economic success. Asian critical scholars argue that generalizations about “Asians” as a group are misleading . . . . In short, while the stereotype of Asian Americans as a very well educated, hard working, and fairly well-off minority group may be accurate for some individuals and some Asian national origin groups, it is decidedly wrong for other Asian American national origin groups and Asian immigrants.

7. McGowan & Lindgren, Untangling the Myth of the Model Minority • Second, Asian critical scholars argue that the reported success of Asian Americans as a model minority has created a backlash against their perceived success. Sensitive to the historical fact that whites in the Nineteenth and early Twentieth Centuries considered Asian immigrants’ tolerance for hard work to be threatening, some Asian critical scholars have argued that this more recent attention to the success of Asian Americans is merely the old fear of the “Yellow Peril” dressed in sheep’s clothing.

8. McGowan & Lindgren, Untangling the Myth of the Model Minority • Third, Asian critical scholars have argued that the model minority stereotype is also used as a cudgel against other minority groups and therefore entrenches white hegemony. Asian critical scholars argue that other minorities are measured against the model minority stereotype and remonstrated for their comparative educational and economic failures: if Asian Americans can succeed, what’s wrong with Blacks and Latinos? And if Asian Americans succeeded against the odds of discrimination and the strains of immigration without much government assistance, why should we invest in government programs for or give affirmative action to Blacks and Latinos?

9. McGowan & Lindgren, Untangling the Myth of the Model Minority • Fourth, Asian critical scholars have argued that the purely positive side of the model minority stereotype obscures discrimination against Asian Americans. While some Asian American ethnic groups do seem to enjoy educational and professional success, those successes, Asian critical scholars argue, obscures the barriers many Asian American professionals have confronted in becoming highly-placed mangers and the fact that Asian Americans seem to earn less per year of education than do whites.

10. Lowell High School • The situation at Lowell High School that led to the racial discrimination suit by Chinese Americans • District’s desegregation consent decree: each school had to enroll at least four of nine specified ethnic/racial group and no group could be more than 40-45% • Ethnic/racial composition of district had changed since 1983 (Chinese American students represented 19.5% of the district in 1983; 24% in 192; 32.1% in 2005) • Lowell is the only public school that uses highly selective admissions process

11. Lowell High School • Qualifying Scores at Lowell (69 point index) • Chinese: 66 • White, Japanese, Korean, Filipino, etc.: 59 • Blacks and Hispanics: 56

12. Lowell High School:Chinese American Democratic Club • Because of the racial ceilings, if a Chinese American student hopes to attend the competitive academic Lowell High School, he must achieve a near-perfect score on the exam and grade evaluation. If the applicant is White—he can receive a score in the 85th percentile and still gain entrance to Lowell. These policies have resulted in discrimination against Chinese American students.

13. Lowell High School:Local Chapter, NAACP • The Chinese are the largest group at most of the best schools in the city. They can’t have it all. If anything, I’d say lower the caps, don’t raise them—otherwise we’re headed back to segregated schools, only all Chinese instead of all white.

14. “Too Many Asians” • The problems faced by multiethnic school districts in desegregating and the particular problems raised by magnet schools

15. “Too Many Asians” • Why Dong argues that Lowell High School’s racial caps should be considered under the Supreme Court’s case law on higher education and not on public school desegregation • Dong wants Chinese students not to be capped, and policy would likely be upheld under public school case law • Not all public schools are the same

16. “Too Many Asians” • The four legal strategies available to plaintiffs • Racial preferences are per se invalid • Racial preferences should be restricted to purely remedial purposes • Racial preferences violate Bakke • Equal protection requires Chinese applicants to be treated the same as whites

17. San Francisco NAACP v. San Francisco Unified School District, 413 F. Supp.2d 1051 (N.D. Cal. 1999) • All of us do not have equal talent, but all of us should have an equal opportunity to develop our talents.This oft-stated creed of President John F. Kennedy is at the core of the dispute between the parties in these two related desegregation lawsuits . . . In an effort to provide equal opportunity for San Francisco's 65,000 schoolchildren of exceptionally diverse origins, the parties in these two related desegregation cases, have strenuously endeavored to achieve President Kennedy's goal, albeit from often sharply differing viewpoints.

18. San Francisco NAACP v. San Francisco Unified School District, 413 F. Supp.2d 1051 (N.D. Cal. 1999) • [In 1998], the Ninth Circuit affirmed this Court's finding that the assignment of students by race subjects the students to a race-based classification by a state actor. Such racial classifications are subject to strict scrutiny, and may be used by the government only if necessary to correct the effects of government action of a racist character. The Ninth Circuit found that the burden of justifying the racial classification fell upon the defendants.

19. San Francisco NAACP v. San Francisco Unified School District, 413 F. Supp.2d 1051 (N.D. Cal. 1999) • It described the issues remaining for trial as follows:As race may permissibly be used by government in the very limited way described, two issues remain for trial: Do vestiges remain of the racism that justified paragraph 13 of the consent decree in 1983? Is paragraph 13 necessary to remove the vestiges if they do remain?

20. AsianAmericans and Higher Education • The first-year enrollment of Asian Americans at Harvard rose from 3.64% in 1976 to 12.8% in 1986 • Enrollment at Stanford rose from 5.71% in 1976 to 14.74% in 1986 • Enrollment at MIT went from 5.32% in 1976 to 20.59% in 1986 • First-year enrollment at UC Berkeley went from 17.1% in 1976 to 26.5% in 1986

21. Ronald Reagan, Remarks on Signing the Asian/Pacific American Heritage Week Proclamation (May 3, 1988) • Well, for many groups, education has been a key ingredient in realizing the American dream. And one area in which Asian-Pacific Americans have particularly excelled is in education. Their accomplishments are proof that respect for learning, family encouragement—plus a whole lot of hard work and diligent study—pays off with high grades, advanced degrees, and successful careers.

22. Ronald Reagan, Remarks on Signing the Asian/Pacific American Heritage Week Proclamation (May 3, 1988) • I know there's a growing concern that some universities may be discriminating against citizens of Asian and Pacific heritage, accepting a lower percentage of these applicants than get admitted from other groups, despite their academic qualifications. Well, to deny any individual access to higher education when it has been won on the basis of merit is a repudiation of everything America stands for.

23. Victor Davis Hanson, Profiles in Diversity, Claremont Review of Books (Summer 2005) • Upon arriving in the Bay Area, [Robert J. Birgeneau, the new Chancellor of the University of California, Berkeley] quickly vowed to solve the problems he had found. Surprisingly, these had nothing to do with a decline in academic standards, deterioration in the quality of Berkeley's key departments, or a state funding crisis. Instead, the Chancellor complained that Berkeley has fewer Native American, Hispanic, and African-American students enrolled than it should—the campus was only 3% black, 9.5% Hispanic, and 0.4% Native American, in contrast with about 45% Asian-American and about 33% white. (The California population comprises 6.5% blacks, 33% Hispanics, 0.92% Native Americans, 11% Asian-Americans, and 45% whites.) Birgeneau is obsessed with racial diversity, as determined by percentages and quotas.

24. Victor Davis Hanson, Profiles in Diversity, Claremont Review of Books (Summer 2005) • He is oddly quiet, too, about the more explosive issue of the Asian-American presence. This group constitutes almost half the Berkeley student population, even though Asians probably make up only about 11% of California residents and 4% of the general U.S. population. Why doesn't Birgeneau admit that achieving his racial utopia would require deliberately reducing the enrollment of Asian-American students. . . .? But because the new Chancellor is obviously a sensitive sort, he cannot say what he apparently means: something like, “We have too many Asians, almost five times too many, and I am here to impose a quota on them and other suspect races.”

25. Victor Davis Hanson, Profiles in Diversity, Claremont Review of Books (Summer 2005) • Remember, too, that Asians have suffered a particularly long history of discrimination in California. Despite everything from immigration quotas to forced internment during World War II, they have the highest high-school graduation rates in the state, while blacks and Hispanics suffer the lowest. What, then, could we learn from the Asian-American experience that seems to render past hurdles to achievement irrelevant to present academic performance?

26. Nuclear physicist accused of espionage because he copied files from one computer to another at Los Alamos National Laboratory Placed in solitary confinement and held without bail Racialization: disloyalty as marker of foreignness Wen Ho Lee

27. John Deutch, CIA Director • Took top-secret files home with him • Unsecured home computer had 16,000 pages of classified documents, including “black ops” covert operations • Home computer wasn’t shielded from hackers • When Deutch found out about investigation, he deleted more than a 1000 files from his computer and refused interviews with CIA investigators • Potential charges included unauthorized removal of classified documents and concealment or attempt to remove or destroy government documents • Never charged but security clearance removed

28. Judge James Parker’s Apology to Wen Ho Lee (Sept. 13, 2000) • What I believe remains unanswered is the question: What was the government's motive in insisting on your being jailed pretrial under extraordinarily onerous conditions of confinement until today, when the Executive Branch agrees that you may be set free essentially unrestricted? This makes no sense to me.

29. Judge James Parker’s Apology to Wen Ho Lee (Sept. 13, 2000) • I believe you were terribly wronged by being held in custody pretrial in the Santa Fe County Detention Center under demeaning, unnecessarily punitive conditions. I am truly sorry that I was led by our Executive Branch of government to order your detention last December. • Dr. Lee, I tell you with great sadness that I feel I was led astray last December by the Executive Branch of our government.

30. Judge James Parker's Apology to Wen Ho Lee (Sept. 13, 2000) • Although, as I indicated, I have no authority to speak on behalf of the Executive Branch, the President, the Vice-president, the Attorney General, or the Secretary of the Department of Energy, as a member of the Third Branch of the United States Government, the Judiciary, the United States Courts, I sincerely apologize to you, Dr. Lee, for the unfair manner you were held in custody by the Executive Branch.

31. Cultural Racial ClassificationsGotanda, Comparative Racialization

32. Racial Category of Chinese • Inferiority • Foreignness • Cases on racialized foreignness • Chew Heong: Field’s dissent (“a separate people”) • Chae Chan Ping: Field says Chinese are “strangers in the land” • Fong Yue Ting: Gary repeats “strangers in the land” language • Plessy v. Ferguson: Harlan in dissent says Chinese are a “race so different” they can’t become citizens

33. Chinese Racialized Foreignness:Chew Heong (1884) Field, J., dissent • [The Chinese] have remained among us a separate people, retaining their original peculiarities of dress, manners, habits, and modes of living, which are as marked as their complexion and language. . . . They do not and will not assimilate with our people; and their dying wish is that their bodies may be taken back to China for burial.

34. Chinese Racialized Foreignness: Fong Yue Ting (1889) Gray, J. • After some years’ experience under that treaty, the government of the United States was brought to the opinion that the presence within our territory of large numbers of Chinese laborers, of a distinct race and religion, remaining strangers in the land, residing apart by themselves, tenaciously adhering to the customs and usages of their own country, unfamiliar with our institutions, and apparently incapable of assimilating with our people, might endanger good order, and be injurious to the public interests, . . .

35. Chinese Racialized Foreignness:Chae Chan Ping (1889) Field, J. • [The Chinese] remained strangers in the land, residing apart by themselves, and adhering to the customs and usages of their own country. It seemed impossible for them to assimilate with our people, or to make any change in their habits or modes of living.

36. “Strangers in the Land”Leviticus 19:33-34 • And if a stranger sojourn with thee in your land, ye shall not vex him.But the stranger that dwelleth with you shall be unto you as one born among you, and thou shalt love him as thyself; for ye were strangers in the land of Egypt. (King James) • When an alien lives with you in your land, do not mistreat him. The alien living with you must be treated as one of your native-born. Love him as yourself, for you were aliens in Egypt. (NIV)

37. Chinese Racialized Foreignness:Plessy v. Ferguson (1896) Harlan, J., dissent • There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race.

38. Language rights:Asian American Business Group (1989) • On premises signs of commercial or manufacturing establishments which have advertising copy in foreign alphabetical characters shall devote at least one half of the sign area to advertising copy in English alphabetical characters. Commercial or manufacturing establishments which have on premises signs with foreign alphabetical characters shall also display in Arabic numerals their address in figures not less than three and one half inches in height.

39. Asian American Business Group:Governmental Interest • Ready identification of commercial structures to facilitate the reporting of emergencies

40. Proposed Constitutional Amendment Establishing English as the official language of the United States HJ Res. 43 (Tancredo, R.-Colo.) • Section 1. The English language shall be the official language of the United States. As the official language, the English language shall be used for all public acts including every order, resolution, vote, and election, and for all records and judicial proceedings of the Government of the United States and the governments of the several States. • Section 2. The Congress and the States shall enforce this article by appropriate legislation.

41. Language and Assimilation • [T]he first generation often has trouble with English. This was true in 1900, and it’s true today. It’s hard to learn a new language as an adult. . . . [W]hat really matters is the second generation: the linguistic future lies with those who come of age in the United States. . . .[V]irtually everyone who grows up in America today eventually learns English. This is for every national group and at every socioeconomic level, and it happens no matter what language your parents or grandparents speak at home. • Tamar Jacoby, The New Immigrants