ARTICLE: Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space

Robert S. Chang +

+ Visiting Assistant Professor, Golden Gate University School of Law. A.B. 1988, Princeton University; M.A., J.D. 1992, Duke University. Copyright (c) 1993 by California Law Review, Inc. and Asian Law Journal.

I am indebted to Todd Hughes and Jasmin Patel for their moral support and invaluable comments during the writing of this Article. My gratitude also extends to the University of Puget Sound School of Law for its support which permitted me to present a version of this Article at the 1993 Midwest Asian American Students Union Spring Conference at Ohio State University. I would also like to thank the editors of Asian Law Journal and the California Law Review, with special thanks to Karin Wang of Asian Law Journal and to Eugene Pak and Cathy Ostiller of the California Law Review.

SUMMARY:

... Four big (white) policemen for one small (Asian) man, in a deserted parking lot--no witnesses if it came to that. ... The successful inculcation of the model minority myth has created an audience unsympathetic to the problems of Asian Americans. ... This story illustrates the danger of the model minority myth: it renders the oppression of Asian Americans invisible. ... To the extent that Asian Americans accept the model minority myth, we are complicitous in the oppression of other racial minorities and poor whites. ... Nor is this false belief in the Asian American model minority myth confined to the general public--it has infected government officials and members of the judiciary. ... The Koreans "thought that the Chinese and Japanese immigrants before them had provoked white anti-Asian reactions by retaining their old ways and keeping to themselves." ... Ironically, despite these efforts by Japanese, Korean, Asian Indian, and Filipino immigrants to "westernize" and to be accepted, they were treated by white Americans as merely different strains of the same "Yellow Peril" first embodied by the Chinese. ... Because many Asian American problems are clouded and silenced by such misperceptions as the model minority myth, change will occur only when voice is given to the stories of the disempowered. ...  

As Asian Americans join the legal academy in growing numbers, they change the face of the academy and challenge its traditional legal doctrines. The author announces an "Asian American Moment" in the legal academy and an opportunity to reverse the pattern of discrimination against Asian Americans. Traditional civil rights work and current critical race scholarship fail to address the unique issues for Asian Americans, including nativistic racism and the model minority myth. Space must be made in the legal academy for an Asian American Legal Scholarship and the narratives of Asian Americans. The author states that the rational-empirical mode is inadequate as a justification for narrative scholarship and argues for a post-structural basis for Asian American Legal Scholarship. He gives a few historical examples of how narrative can be used to effect social change. Finally, the author offers a framework for constructing an Asian American Legal Scholarship which acknowledges the tremendous diversity among the disempowered but which also recognizes that it is through solidarity that Asian Americans will gain the freedom to express their diversity.

TEXT:

PRELUDE

I am a second generation Korean American without any achievements in life and I have no education. What is it you want to hear from me? My life is not worth telling to anyone.

You know, it seems to me there's no use in me telling you all this! I was just a simple worker, a farmworker around here. My story is not going to interest anybody.

Of the different voices in which I speak, I have been most comfortable with the one called silence. Silence allowed me to escape notice when I was a child. I could become invisible, and hence safe.

Yet now I find myself leaving the safety of my silence. I wonder if this is wise. I teach legal writing; I want to teach substantive law. I have been told that engaging in nontraditional legal scholarship may hurt my job prospects, that I should write a piece on intellectual property, where my training as a molecular biologist will lend me credibility.

I try to follow this advice, but my mind wanders. I think about the American border guard who stopped me when I tried to return to the United States after a brief visit to Canada. My valid Ohio driver's license was not good enough to let me return to my country. He asked me where my passport was. I told him that I did not have one and that it was my understanding that I did not need one, that a driver's license was sufficient. He told me that a driver's license is not proof of citizenship. We were at an impasse. I asked him what was going to happen. He said that he might have to detain me. I looked away. I imagined the phone call that I would have to make, the embarrassment I would feel as I told my law firm in Seattle that I would not be at work the next day, or maybe even the day after that--until I could prove that I belonged. I thought about my naturalization papers which were with my parents in Ohio. I thought about how proud I had been when I had become a citizen.

Before then, I had been an alien. Being a citizen meant that I belonged, that I had the same rights as every other American. At least, that is what I used to believe. Things have happened since then that have changed my mind. Like the time I was driving in the South and was refused service at a service station. Or the time I was stopped in New Jersey for suspicion of possessing a stolen vehicle. At first, it was just two cops. Then another squad car came. Four big (white) policemen for one small (Asian) man, in a deserted parking lot--no witnesses if it came to that. Perhaps they were afraid that I might know martial arts, which I do, but I am careful never to let them know. When my license and registration checked out, they handed back my papers and left without a word. They could not even say that one word, "Sorry," which would have allowed me to leave that incident behind. I might have forgotten it as a mistake, one of those unpleasant things that happen. Instead, I have to carry it with me because of the anger I feel, and because of the fear—fear of the power that certain people are able to exercise over me because of this (contingent) feature that makes me different. No matter how hard I scrub, it does not come clean. No matter how hard I try, and I do try, I can never be as good as everyone else. I can never be white.

These are the thoughts that intrude when I think about intellectual property. I try to push them away; I try to silence them. But I am tired of silence.

And so, I raise my voice.

* * *

Professor Jerome Culp raised his voice when he proclaimed boldly to the legal academy that it was in "an African-American Moment," a time "when different and blacker voices will speak new words and remake old legal doctrines." He also cautioned that "those in the legal academy who cannot speak the language of understanding will be relegated to the status of historical lepers alongside of Tory Americans and Old South Democrats." It remains to be seen whether his prophecy will come true. The mainstream legal academy has largely ignored his proclamation and the work of other critical race scholars, if frequency of citation is to be taken as a measure of attention, and some legal scholars have condemned the methods of critical race scholarship.

Nevertheless, the time has come to announce another such moment, an Asian American Moment. This Moment is marked by the increasing presence of Asian Americans in the legal academy who are beginning to raise their voices to "speak new words and remake old legal doctrines." This Moment brings new responsibilities for Asian American legal scholars. This Moment brings new challenges. This Moment also brings us hope.

INTRODUCTION: MAPPING THE TERRAIN

Asian Americans suffer from discrimination, much of which is quantitatively and qualitatively different from that suffered by other disempowered groups. The qualitative difference, in that Asian Americans suffer as Asian Americans and not just generically as persons of color, has certain implications for the study of Asian Americans and the law. One implication is that traditional civil rights work, with its focus on color blindness or denial of substantial difference, even when done in the context of securing rights for Asian Americans, is inadequate to address fully the needs of Asian Americans. Another implication is that critical race theory, which claims that race matters but which has not yet shown how different races matter differently, is also inadequate to address fully the needs of Asian Americans. To help complete the picture, there must be an Asian American Legal Scholarship. This Asian American Legal Scholarship will provide a framework that will encompass and mediate between the notions of liberalism underlying Asian American civil rights work and the critical perspectives contained within critical race theory.

I sketch the outlines of this scholarship with several goals in mind. An Asian American Legal Scholarship will recognize that Asian Americans are differently situated historically with respect to other disempowered groups. But it will also acknowledge that, in spite of these historical differences, the commonality found in shared oppression can bring different disempowered groups together to participate in each others' struggles. An Asian American Legal Scholarship will argue that the exclusion of Asian Americans from the political and legal processes has led to an impoverished notion of politics and law that furthers the oppression of Asian Americans. It will offer the inclusion of Asian American voices in the form of narrative, personal and otherwise, in the practice of legal scholarship as a powerful method to combat the effects of exclusion. Finally, by including narratives in law review articles, briefs, and law teaching, this legal scholarship will more effectively persuade decision-makers, practitioners, law professors, and students.

My primary objective in outlining these goals is to correct what I perceive as a problem in the current discourse on race and the law. This discourse is circumscribed insofar as certain perspectives have been excluded from the conversation. A natural solution to this problem is to include the narratives of the excluded. Therefore, I address two corollary questions: why narrative should count and how narrative counts. I also lay out a theoretical framework to support further work in Asian American Legal Scholarship.

Before examining the role of narrative in legal scholarship, I explore in Part I the need for an Asian American Legal Scholarship. I discuss some of the ways in which Asian American history and the Asian American experience are unique and different from the history and experiences of other disempowered groups. I also briefly discuss how traditional civil rights work and critical race scholarship have not adequately addressed these differences. In Part II, I give a brief, semi-historical account of the use of personal narrative in academic discourse, and I discuss epistemology, because our epistemological stance or theory of knowledge will determine what role narrative can and should play. Part III provides a narrative account of the exclusion and marginalization of Asian Americans from the legal and political spheres. I also show how narrative has been used effectively to address some of the problems facing Asian Americans. Finally, in Part IV, I sketch a framework for Asian American Legal Scholarship and its goal of redressing oppression.

COMMENT: Accent Discrimination and the Test of Spoken English: A Call for an Objective Assessment of the Comprehensibility of Nonnative Speakers

Beatrice Bich-Dao Nguyen +

+ B.S.F.S. 1991, School of Foreign Service, Georgetown University; J.D. candidate 1994, Boalt Hall School of Law, University of California, Berkeley. Copyright (c) 1993 by California Law Review, Inc. and Asian Law Journal.

I would like to thank Professor Jan Vetter for his assistance and encouragement. This Comment benefited greatly from his insight, guidance, and patient listening. I am indebted to my editors, Frank Cialone, Eric Lai, and Brian Torres, and friends and colleagues on Asian Law Journal and California Law Review for their hours of work. Special thanks to Professor Bill Ong Hing, Larry Adams, Danny Cloherty, Brian Lee, and Jasmin Patel for their contributions to earlier drafts of this Comment.

This Comment is dedicated to my mother and father, Simone Bui Nguyen and Phuoc Nguyen.

SUMMARY:

... Every individual has an accent that "carries the story" of who she is and that may identify her race, national origin, profession, and socio-economic status. ... As immigrants move into the work force to pursue "promises of freedom, equality, and economic opportunity," they may encounter the barrier of accent discrimination --"a closed economic door based on national origin discrimination." ... Accent discrimination cases are distinct from race and gender discrimination cases, as well as from other national origin discrimination cases, because courts must expressly examine the trait in question and evaluate it in relation to a plaintiff's job qualifications. ... This Comment takes as the starting point for its proposal the recommendations of Professor Matsuda, who suggests that courts should consider four questions when adjudicating accent discrimination cases:

1. ... The third, "content" validity, assesses whether the test closely approximates tasks to be performed on the job. ... In this example, the plaintiff establishes her prima facie case simply by showing that the defendant's policy will necessarily screen out those whose national origin is outside the United States. ...

Immigrants to the United States have been a source of national pride, but also the object of national prejudice. At times, employers have used claims of "unintelligible English" to deny jobs to accented, but otherwise qualified, applicants. However, these claims may be mere pretense to discrimination based on national origin, a violation of title VII of the Civil Rights Act of 1964. In such cases, courts must make a judgment about an individual's comprehensibility, and thus, his or her qualifications. These determinations are subjective and highly vulnerable to the sways of prejudice. In this Comment, the author calls for the use of an objective test to determine the comprehensibility of an individual's speech. She offers the Test of Spoken English, a standardized test administered nationwide by the Educational Testing Service, as a tool available to both parties and the courts in accent discrimination litigation.

TEXT:

INTRODUCTION

Immigrants from all parts of the world come to the United States in the hope of building a better life for themselves and their children. For them, America embodies a land of opportunity, extending to each and every immigrant the hope of attaining the American Dream. In return, these immigrants bring with them their cultures and languages, enriching this nation's diversity. As they settle into their new lives and learn the customs of their adopted country, these new Americans reveal their status as immigrants through their accents.

Every individual has an accent that "carries the story" of who she is and that may identify her race, national origin, profession, and socio-economic status. Yet we generally refer to an accent to indicate a "difference from some unstated norm of nonaccent, as though only some foreign few have accents." As immigrants move into the work force to pursue "promises of freedom, equality, and economic opportunity," they may encounter the barrier of accent discrimination --"a closed economic door based on national origin discrimination."

Fearing the stigma that accompanies a foreign accent, some immigrants have turned to speech tutors, private companies, and colleges to eliminate or reduce their accents, even when their accents do not impair comprehensibility. Immigrants' perceived need to eliminate all traces of their accents in order to obtain employment or advance their careers is unfortunate. Their accents indicate their national origin as outside of the United States--a fact that immigrants should not have to feel compelled to conceal in order to gain acceptance or employment in a country that purportedly values diversity and differences among individuals. "To tell the minority group member that he must discard the characteristic manifestations of his national identity in order to have a truly equal and fair opportunity to compete for a job is to tell him that his identity has no place in American society."

Courts recognize that discrimination against accent may function as the equivalent of discrimination against national origin, which is prohibited under title VII of the Civil Rights Act of 1964 ("title VII" or "the Act"). Specifically, the Ninth Circuit has stated:

Accent and national origin are obviously inextricably intertwined in many cases. It would therefore be an easy refuge in this context for an employer unlawfully discriminating against someone based on national origin to state falsely that it was not the person's national origin that caused the employment or promotion problem, but the candidate's inability to measure up to the communications skills demanded by the job. We encourage a very searching look by the district courts at such a claim.

In addition, the Equal Employment Opportunity Commission (EEOC) has declared that discrimination based on a person's manner of speech or accent may constitute national origin discrimination under title VII.

Employers, however, have a countervailing right to require sufficient communication skills from employees. Indeed, title VII was not intended to "diminish traditional management prerogatives," and it allows an employer the "discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria." Nevertheless, the consistency with which employers raise the "unintelligible English" defense in accent cases and the readiness of courts to uphold it threaten to nullify title VII's protection against national origin discrimination by leaving the determination of intelligibility to the subjective assessment of employers and courts.

Title VII should protect employees and potential employees from accent discrimination while preserving the interests of employers in hiring and promoting qualified individuals. To further these goals, courts need an objective and accurate method of assessing whether a plaintiff's accent is sufficiently comprehensible for a specific job. This Comment will suggest such a method.

Part I of this Comment discusses title VII of the Civil Rights Act of 1964 and the difficulties of applying it to accent discrimination cases. It concludes by reviewing two recent accent discrimination cases. Part II discusses the dangers of relying on subjective assessments and the need for an objective tool in the adjudication of accent discrimination cases. It then presents the Educational Testing Service's Test of Spoken English (TSE) and argues for its use in evaluating a plaintiff's accent. Part III explores the application of the TSE as an aid to parties and courts in accent discrimination cases.

REVIEW ESSAY: Community Lawyering: Rebellious Lawyering: One Chicano's Vision of Progressive Law Practice. By Gerald P. Lopez +

Boulder, Colorado: Westview Press, Inc., 1992. Pp. ix, 433. Paper.

+ Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School.

Reviewed by Angelo N. Ancheta ++

++ Executive Director, Coalition for Humane Immigrant Rights of Los Angeles; Cooperating Attorney, National Asian Pacific American Legal Consortium. A.B. 1983, J.D. 1986, University of California, Los Angeles. Copyright (c) 1993 by California Law Review, Inc. and Asian Law Journal.

Most of the work on this Review Essay was completed while I was on staff at the Asian Pacific American Legal Center of Southern California; I gratefully acknowledge that office's support in helping develop many of the ideas here. Special thanks to Mari Matsuda, Jill Medina, and Mona Tawatao for commenting on earlier versions of this Essay, and to the editors of the Asian Law Journal and the California Law Review for their thoughtful revisions.

SUMMARY:

... In Rebellious Lawyering, Professor Lopez presents a lucid analysis of progressive law practice. ... In Part III, I develop the idea of "community lawyering," expanding the rebellious lawyering model to embrace the empowerment of the Asian Pacific American community through problem solving, in which lawyers act as translators between client communities and the legal system. ... REBELLIOUS LAWYERING AND THE ASIAN PACIFIC AMERICAN COMMUNITY ... Although domestic violence is a problem that cuts across racial, ethnic and economic class lines, many battered women in the Asian Pacific American community suffer particularly severe hardships because they are new to this country and lack the English-language and work skills necessary to become independent of their husbands or partners. ... As part of a local coalition called Asian Pacific Women Advocating for Rights and Empowerment (AWARE), the office works with service providers and concerned individuals--including previously battered women--on educating the community about domestic violence, reproductive rights, and worker health and safety. ... By combining educational and organizing work with the direct representation of battered women, the Asian Law Alliance's Women's Empowerment Project seeks to help women help themselves in ending domestic violence. ... Lawyers working with Asians, Pacific Islanders, and other people of color know that racial minorities are still subordinated in American society. ...  

TEXT:

"Give us something we can use." For those of us engaged in the practice of law for social change, this is a familiar admonition directed at scholars who have developed theories on the transformation of law and the legal system. Critical legal studies, feminist legal theory, and critical race theory --schools of thought that challenge the assumptions that traditional jurisprudence is neutral, determinate, apolitical, and fair--hold the promise of changing the law to accomplish economic and social justice. Narrative theory and the recent "theoretics of practice" literature test the presuppositions of both legal doctrine and the lawyering process, reexamining commonly held views of language, knowledge, and power within the legal system. Yet the new legal theories, while injecting fresh perspectives into legal scholarship, have not found a large audience outside the academic setting. To their credit, these legal theorists have focused on transforming law and lawyering to address the problems of the poor, people of color, immigrants, women, gays and lesbians, the disabled, the elderly, and other subordinated groups. But they have paid little attention to ways of actually implementing doctrinal changes through the courts and other legal decision-makers, which are inherently conservative and often hostile to change. And only recently have scholars discussed how transformative theories can influence the practice of law itself: the day-to-day activities of lawyers who interact with clients, their communities, and the legal and political systems that affect everyone's lives. This area of thought has benefited significantly from Professor Gerald P. Lopez's book, Rebellious Lawyering: One Chicano's Vision of Progressive Law Practice [hereinafter Rebellious Lawyering].

In Rebellious Lawyering, Professor Lopez presents a lucid analysis of progressive law practice. Interweaving fictional accounts of lawyers and their clients with theories of legal practice and community organizing, Lopez presents a richly textured portrayal of lawyering based upon the collaboration of lawyers, clients, and the communities in which they live. Lopez argues that progressive practice must be a partnership in which individuals minimize their traditional roles as lawyers and clients; lawyers and clients must share power and combine their overlapping practical knowledge of the world in order to solve problems of subordination. As Lopez suggests throughout Rebellious Lawyering, all of us are lawyers: whether we are helping ourselves, helping others informally by being "lay lawyers," or helping others formally as professional lawyers, we constantly draw upon our personal experiences to interpret and transform the world through problem solving.

In this Review Essay, I evaluate Lopez's theory of rebellious lawyering in the context of the developing body of scholarship that uses narrative and "outsider" perspectives to analyze laws and the legal system. Focusing upon the stories of one outsider community--Asian Pacific Americans --I draw upon the concept of the rebellious lawyer in discussing the process of empowering client communities through advocacy and education. In addition to the stories of clients, both real and fictional, I will draw upon my personal experiences as a practitioner and as a member of a subordinated racial group to test the limits of rebellious lawyering as a means of effecting social change.

Part I of this Review Essay analyzes Lopez's theory of rebellious lawyering as an alternative to conventional theories of progressive law practice, what Lopez calls "regnant lawyering." I examine Lopez's model alongside traditional legal advocacy models, and I discuss how Lopez's theories fit within the recent scholarship that uses narrative and alternative theories of jurisprudence to transform legal institutions. In Part II, I discuss some of the legal problems facing Asian Pacific Americans, the community that has been the focus of my own work as a lawyer. I discuss how community-based nonprofit legal organizations have applied a collaborative problem-solving strategy through direct legal services, community education, and community organizing. In Part III, I develop the idea of "community lawyering," expanding the rebellious lawyering model to embrace the empowerment of the Asian Pacific American community through problem solving, in which lawyers act as translators between client communities and the legal system. Finally, in Part IV, I address the limitations of rebellious lawyering in realizing the goals of individual client empowerment and social justice for subordinated groups. Ultimately, I conclude that the progressive practice of law must measure its achievements not in terms of its transformative effect on society but with reference to specific victories, however small.