Asian Law Journal - Vol. 6 Articles

ARTICLE: STILL KEEPING THE FAITH?: ASIAN PACIFIC AMERICANS, BALLOT INITIATIVES, AND THE LESSONS OF NEGOTIATED RULEMAKING

Troy M. Yoshino+

+ Associate, O'Melveny & Myers LLP. B.A., Pomona College; J.D. University of Michigan Law School. Deepest thanks to Luis Fuentes-Rohwer, Lani Guinier, Whitmore Gray, Neelav Hajra, Myriam Ja<um i>di, Richard Pildes, Eric Yamamoto, and my colleagues at O'Melveny & Myers for their helpful comments and support of this research.

SUMMARY:

... While no one would deny that attempts to silence the political voice of African Americans have been pervasive, the problem Professor Guinier identified nearly a decade ago with respect to African Americans is worse for today's Asian Pacific Americans (APAs) in a number of ways. ... Consequently, a small but growing number of commentators believe that Asian Americans still need affirmative action to ensure equal access to jobs, education, and contracts. ... Hence their chief concern is with a relatively small proportion of votes at the margin.... Because of the legislator's concentration on these...marginal groups, the content of a substantial amount of legislation is directed at satisfying the interests of minorities of voters who currently stand between the parties. ... " Although the Supreme Court has never gone so far as to hold all initiatives unconstitutional, we should think about whether there are more "American" and less discriminatory ways to restructure the ballot initiative system because constitutional framers like James Madison expressed concerns about governance by raw majoritarianism and because the ballot initiative process leaves disadvantaged groups without a method to influence the political process. ... The modifications necessary to adapt negotiated rulemaking to the ballot initiative process are the subject of this Article's next subsection. ... Recognizing these things, this Article puts forth a modest proposal that attempts to learn from the experiences of the negotiated rulemaking process and reintroduce honest and thoughtful discussion into the ballot initiative process. ...

Asian Pacific Americans (APA's) face a number of obstacles to obtaining proportionate electoral power in the United States. The author examines several factors that have contributed to the diminution of the APA political voice including the occupation of a smaller percentage of the political constituency, the absence of a strong national leader, language barriers, and the perpetuation of APA stereotypes. The author argues that the development of the ballot initiative as a significant law-making process has undercut APA political power even more. The author critiques the initiative process as shutting out minority interests while enhancing the discriminatory tendencies of the majority. The author proposes alternative law-making processes that focus on deliberative discussion and voting systems designed to increase minority representation.

Sometimes the most realistic position is an idealistic one.

TEXT:

INTRODUCTION

In a 1989 article entitled Keeping the Faith: Black Voters in the Post-Reagan Era, Professor Lani Guinier rhetorically asked how Black voters could be expected to "keep the faith" in light of their significant inability to impact the political process. Guinier notes:

One party has taken blacks for granted; the other, at best, ignored them. Mainstream Democrats do not accept black Democrats, such as Jesse Jackson, as legitimate party spokespersons, and too often only whites are allowed to run for office on the Democratic ticket. On the other hand, Republicans have refused to court the black vote at all. Blacks may vote, but it is the whites who will govern.

While no one would deny that attempts to silence the political voice of African Americans have been pervasive, the problem Professor Guinier identified nearly a decade ago with respect to African Americans is worse for today's Asian Pacific Americans (APAs) in a number of ways. Their electoral woes are due, not only to the subconscious racism, purposeful hatred, institutional discrimination, and invidious stereotypes that African Americans are similarly subjected to, but are also caused by their dramatically smaller political constituency - APAs comprised approximately 2.9% of the total U.S. population in 1990, while African Americans made up 12.1% of the whole.

In fact, APAs may be even more politically disadvantaged than African Americans, who have leaders such as Jesse Jackson who carry their message to the American public. The APA community lacks such a political leader. Some hoped that the election of Gary Locke as the first APA governor within the forty-eight contiguous states marked the emergence of an identifiable leader for the APA community. But while Governor Locke has done an admirable job running the State of Washington, he has been less than a Jesse Jackson-type leader on national issues confronting the APA community like the recent Democratic National Committee (DNC) campaign fundraising scandals. Overall, APA candidates running for public offices across the country say they often have difficulty getting most voters and major political parties to take their candidacies seriously. Many APAs complain that they have no say in setting the country's social or political agenda.

Moreover, unlike most African American voters, many APAs are ignored by both politicians and political parties simply because they are non-English speakers. The 1992 amendments to the Voting Rights Act require language assistance in areas where a single language minority group that is "limited-English proficient" constitutes more than five percent or 10,000 (whichever is lower) of the voting-age citizens in a political subdivision. Because the APA population is generally very small, speaks a variety of languages, and is not very residentially concentrated, many APA communities still have trouble meeting these lowered requirements. APAs who cannot meet these requirements are simply not eligible to receive federally mandated bilingual election materials, and because the "politics of re-election" dictate that candidates put less stock in non-voting opinions, these APAs are left without any effective political voice.

There is also some evidence to prove that the plurality voting systems used in federal elections and most American jurisdictions have the ironic effect of creating increasingly disproportionate underrepresentation as the relative size of a minority group decreases. The theory known as "cube law" suggests that if a certain political group receives fifty-five percent of the vote, that group will actually garner approximately sixty-five percent of the seats in any given representative body. The theory has been shown to work in practice: during the 1972 Alabama Democratic presidential preference primary, for example, Governor George Wallace's organization won ninety-one percent of all contested delegate positions with only sixty-eight percent of the votes.

One might interpret the cube law to be good news for the APA community, at least when the Democratic Party is the benefiting organization. Nevertheless, even though the Democratic Party is generally perceived as being friendlier to APA interests, it too has been guilty of pronouncing anti-Asian rhetoric in many instances. Such hate speech, along with insults from other public officials who mimic Asian accents and make generalized and stereotyped comments about APAs or Asian culture, have dampened APA political voices and electoral participation. In a telling example, Representative Thomas J. Manton, the Queens Democratic Party leader, publicly stated that anti-Asian remarks attributed to Democratic New York City Councilwoman Julia Harrison would not hurt her chances for re-election because APAs made up only twelve percent of the registered voters. Manton went on to state that the APA vote could be disregarded because in a primary, you mainly attract prime voters, which make up 20 to 25 percent of the Democrats in the district.... This favors Julia because the voters tend to be middle-aged to older people who are longtime residents. And she is appealing to these voters, rather than the new arrivals, many of whom are Asian.

This problem has also manifested itself on the national level where the DNC recently began to scapegoat APAs for their party's own acceptance of improper political contributions. In reviewing their fundraising records, the DNC identified characteristics that disparately focused on APAs (e.g., Asian-sounding names) when deciding if a given contribution required further inquiry. Controversies questioning the propriety of these political donations came despite the fact that most APA contributions were completely innocent (approximately eighty percent, according to the DNC's own figures), and that many of the illegal contributions came, not from APAs, but from Asian foreign nationals. More disturbing, however, is the fact that the DNC's inquiries were not just harassing; they have had real political consequences for the APA community. One reporter surmises that the failed bid of University of California at Berkeley Chancellor Chang-Lin Tien to become President Clinton's Secretary of Energy may be linked to the political fundraising controversies. Others recognize that the scandal has led to inquiries in Orange County, California, where APAs have had their rights to the franchise questioned simply because of their ethnicity.

Stereotypes and beliefs concerning APAs have also hurt their interests and their ability to achieve an effective political voice. Much of the American public perceives the APA community as untouched by racial discrimination - a recent poll of American voters found that most respondents "thought that Asian Americans did not suffer from discrimination" and that they "received too many special advantages." This misperception makes it easier for many to view the lack of APA political participation as something that APAs want for themselves. Stereotypes that cast APAs as "model minorities" and "unfair competitors" also serve to rationalize the prevailing treatment of APA social and political interests. Professor Robert Chang notes that "when [APAs] try to make our problems known, our complaints of discrimination or calls for remedial action are seen as unwarranted and inappropriate."

It would be bad enough if APAs were merely ignored, but recent history shows that the APA community experiences more than just passive injury because of these stereotypes. Perceptions of APAs as the model minority have led to "negative action" (i.e., caps on the level of APA admissions) at elite universities such as Harvard, Princeton, Brown, and the University of California at Berkeley and incited hate-motivated graffiti on the walls of America's finest institutions of higher education. Professor Ronald Takaki has described graffiti reading "Stop the Yellow Hordes" and "Stop the Chinese before they flunk you out" as a common sight on college campuses. In fact, my own alma mater, Pomona College, experienced a similar incident where a banner was changed from "Asian American Studies Now!" to read "Asian Americans Die Now!"

The failure to distinguish APAs from foreign Asians and the misperceptions that APAs are stealing "American" jobs have also lead to political disempowerment and even violent hate crime. Take Proposition 187 as an example; that anti-immigrant initiative was approved by California's electorate largely based on the false assumption that the APA community takes valuable employment opportunities from deserving Whites. Even more dramatic and telling are the instances involving the harassment and physical intimidation of Vietnamese fishermen in the Galveston Bay area of the Texas Gulf Coast, and the murder of Vincent Chin, a twenty-seven-year-old naturalized Chinese American who was beaten to death by two unemployed Detroit automobile industry employees simply because they thought he was Japanese and therefore, responsible for their unemployment.

A number of legal scholars, commentators, and observers have focused their attentions on the inability of the APA community to elect candidates of their choice and the correspondingly detrimental effect that this inability has on APA social and political interests. Although this is an undeniably important problem, the "new" breed of subtle (i.e., non-facial and/or subconscious) racism makes another electoral mechanism even more dangerous to APA interests - the ballot initiative. It is the problems posed by these types of popularly enacted measures that this Article seeks to resolve.

By observing the historical and current electoral problems of APAs, the first Part of this Article contends that optimists who forecast an imminent alleviation to these problems because of increases in APA population and political participation may be overstating their case. Although immigration and enhanced voter education have made APA populations across the nation into a powerful swing vote that cannot be ignored by political candidates any longer, several scholars and politicians have noticed a growing trend in which majority populations are able to disregard the political interests of APAs and other disempowered groups. This is because majority interests have begun to circumvent the representative bodies that have become more responsive to the interests of political minorities. They now enact legislation by themselves through the use of ballot initiatives.

Some argue that these ballot initiatives are more "democratic" because the voters themselves decide issues and are able to oust the special interests that the proponents of ballot initiatives contend have taken over the legislative process. Part II of this Article attempts to demonstrate that the voters who participate in ballot initiative elections are not only more susceptible to flashy advertising and appeal by special interests - they also have discriminatory tendencies that are harmful to the interests of APAs and other politically disadvantaged groups. By comparing ballot initiatives with the American system of government that was originally conceived and constituted, Part II of this Article concludes that such measures contravene the vision of a republican government that the framers of the United States Constitution attempted to establish.

In discussing these concerns about discriminatory tendencies and threats to the structure of representative government, this Article also identifies two general flaws inherent in the initiative process. First, it finds that initiatives are often harmful to minority interests because those interests are shut out of processes in which initiatives are conceptualized and constructed. Second, it observes the subject matter of ballot initiatives involves issues that are too complex to be adequately dealt with by "up or down" voting on one particular proposal.

In spite of these imperfections, however, recent polls indicate that the American public does not want to give up its power to enact legislation via plebiscite. A recent survey of California voters found that almost seventy percent of them were opposed to the idea of allowing legislators to amend initiatives after voters approve them, and that two-thirds of them supported the idea of using plebiscites to enact federal law.

Because of this, Part III of this Article searches for an alternative to the current initiative process. It dissects and modifies negotiated rulemaking, a relatively new tool of administrative agencies, and concludes that the lessons of negotiated rulemaking are too important to ignore in designing workable decision-making systems that help to facilitate tough policy choices. Part III therefore analyzes various administrative mechanisms and alternative voting systems to propose a process in which minority interests are guaranteed participation and construct a system in which the electorate is eventually allowed to discuss and choose between a number of alternatives.

COMMENT: Equity Denied: Historical and Legal Analyses In Support of the Extension of U.S. Veterans' Benefits to Filipino World War II Veterans

Michael A. Cabotaje+

+ J.D. University of California, Berkeley School of Law (Boalt Hall), 1998. Special thanks to Professor Stephen Sugarman for his advice and suggestions throughout this project.

SUMMARY:

... The U.S. Court of Appeals in Quiban v. Veterans Administration, the leading court case on this issue, applied the rational basis test and upheld the statute. ... To the Filipinos, the colonial period brought an understanding of civil liberty, of fair play, free speech, and political controversy - democratic ideals unknown to many Asian nations at that time. ... The U.S. courts, as I will explain below, have found a rational basis for this disparate and unequal treatment. ... " The Court concluded that Congress "may treat [Territories] differently from States so long as there is a rational basis. ... Thus, in Rosario, all the Court needed to find to uphold the constitutionality of the challenged statute was a rational basis. ... The Court in Rosario used the same rationale in forming a rational basis for limiting AFDC payments to Puerto Rican residents. ... The Courts did, in fact, find a rational basis using the factors that were dispositive in Torres. ... As I suggested before, Judge Ruth Bader Ginsberg failed to consider some important background history when she applied the rational basis test to the Filipino veterans' benefits issue. ...

Filipino Army veterans played an essential role in the United States' victory in the Pacific during World War II. Although their contributions to this effort were recognized by the President and Congress, these individuals have been denied the promised right to veterans' benefits. The author presents the historical context behind the promulgation of 38 U.S.C. 107, the key legislation that denied Filipino World War II veterans their benefits. The author explains the judicial reasoning which held 107 constitutional and argues that given the body of discriminatory case law which has been developed, the denial of benefits to the Filipino veterans is unjust and warrants reconsideration.

TEXT:

Introduction

Philippine Army veterans are nationals of the United States and will continue in that status until July 4, 1946. They fought, as American Nationals, under the American flag, and under the direction of our military leaders. They fought with gallantry and courage under most difficult conditions during the recent conflict. Their officers were commissioned by us. Their official organization, the Army of the Philippine Commonwealth, was taken into the Armed Forces of the United States by executive order of the president of the United States on July 26, 1941. That order has never been revoked or amended.

I consider it a moral obligation of the United States to look after the welfare of the Philippine Army veterans.

- President Harry S. Truman, February 20, 1946

The courage, sacrifice, and loyalty of World War II Filipino soldiers were certainly crucial to the United States' victory in the war against the Japanese. Called into service of the United States Armed Forces in the Far East (USAFFE) by Military Order by President Franklin D. Roosevelt on July 26, 1941, military forces of the Philippines fought courageously both to defend the United States' flag and to procure the independence of their mother country, the Philippines. These soldiers from the then-U.S. Territory undoubtedly deserve appreciation and recognition from the U.S. for defending the ideals of democracy and liberty.

In the summer of 1996, both the House and the Senate sought to acknowledge the importance of the Philippine soldiers and civilians who helped in the effort by unanimously approving a Concurrent resolution. The Resolution urged the President to make a Proclamation that would recognize and honor the Filipino veterans for their wartime service. Subsequently, on October 17, 1996, President Clinton signed a Proclamation honoring the Filipino veterans and thanking them for their contributions to the fight for freedom during World War II.

Despite this recognition and honor bestowed upon these Filipino World War II veterans, the United States government has denied them one important right given to everyone else who has served the United States in the active military - namely, the right to veterans' benefits.

Today, the Filipino veterans claim that the United States government promised them pay and benefits for their voluntary military service under the U.S. Armed Forces and for their oath of allegiance to the Constitution of the United States. Soon after the war ended, the 79th Congress, through the Rescission Acts of 1946, which are now codified in 38 U.S.C. 107, took away the benefits and recognition earned by the Filipino World War II veterans. The Rescission Acts mandated that service performed by the Philippine military forces, while such forces were in the service of the Armed Forces of the United States, shall not be deemed active service for purposes of diverse veterans' benefits programs. As a result, several United States veterans' benefits - namely pension, medical, and burial benefits - are statutorily unavailable to most Filipino World War II veterans, even though all other veterans who similarly served under the U.S. flag enjoy the full range of benefits provided by the Veterans Administration.

Today, about 28,000 Filipino veterans have been naturalized and currently live in the United States. Many of them came to this country over the last seven years as a result of the Immigration Reform Act of 1990, which specifically made the Filipino veterans eligible for American citizenship. Looking for a better life and better opportunities in the United States, the veterans may possibly have believed that after getting their citizenship, they would naturally get their deserved veterans' benefits. They were naively mistaken. Without these benefits, many of the Filipino veterans living in America are destitute and live in poor conditions.

These veterans and their supporters believe that they have suffered a great wrong at the hands of the United States government. In an effort to restore the benefits that were taken away from them more than 50 years ago by the Rescission Acts of 1946, many of the veterans have formed political organizations, such as the American Coalition of Filipino Veterans in Washington, D.C., to educate Congress on the issues they face and to lobby in support of the Filipino Veterans Equity Act.

The Filipino Veterans Equity Act seeks to amend 38 U.S.C. 107 by making certain Filipino World War II veterans - namely, the veterans who fought with the Philippine Commonwealth Army, the New Philippine Scouts, and the recognized guerilla forces - and their dependents are eligible for benefits administered by the Department of Veterans Affairs (VA) under the same conditions as U.S. veterans. Two bills are before the 105th Congress: H.R. 836 (Filipino Veterans Equity Act of 1995), co-authored by Representatives Benjamin Gilman (R-NY) and Bob Filner (D-CA), and S. 623 (Filipino Veterans Equity Act of 1997), co-authored by Senators Daniel Inouye (D-HI) and Daniel Akaka (D-HI).

At the time of this writing, the prospect for these bills looks bleak. Chairman Bob Stump (R-AZ) of Veterans' Affairs thinks, among other reasons, that the House bill costs too much. The new congressional pay-as-you-go rule would require his committee to make up the nearly half-billion-dollar annual cost of pensions matching those given American servicemen. Because the Chairman of Veterans Affairs opposes H.R. 836, the bill is stuck in committee and will likely fail. The fate of the Senate version of the Filipino Veterans Equity Act S. 623 is similar. S. 623 has been reduced to a bill that gives the Filipino veterans only funeral and burial expenses. It says that the old Filipino soldiers must die first before the U.S. government can repay them for their military services. It is unlikely that the Filipino veterans who have fought so hard for their benefits - both on and off the battlefield - will accept this watered-down version of the Filipino Veterans Equity Bill.

Several veterans have also filed cases in various courts, claiming that 38 U.S.C. 107 is an unconstitutional violation of Equal Protection. The U.S. Court of Appeals in Quiban v. Veterans Administration, the leading court case on this issue, applied the rational basis test and upheld the statute.

Although their efforts in the U.S. Courts have failed and although the Filipino Veterans Equity Bill is unlikely to pass in Congress, the old Filipino World War II veterans and their supporters continue to fight. Their efforts are currently aimed at Congress and the President. The purpose of this paper is to provide a legal and historical argument for the Filipino World War II veterans to help them get their deserved veterans' benefits. I will: (1) examine the history behind the legislation that denied the Filipino World War II veterans their promised benefits; (2) explain the judicial reasoning that held 107 constitutional; (3) analyze the history of discriminatory judicial precedents that led to the Quiban decision; and (4) argue that the denial of benefits to the Filipino World War II veterans is unjust, given the little-known controversy behind the judicial precedents.

COMMENT: Representations of Disadvantage: Evolving Definitions of Disadvantage in India's Reservation Policy and United States' Affirmative Action Policy

Priya Sridharan+

+ J.D. University of California, Berkeley School of Law (Boalt Hall), 1999; B.A. University of Maryland at College Park, 1996. I would like to thank Professor Linda Hamilton Krieger for her invaluable encouragement and assistance in the research and writing of this paper. I would especially like to thank my brother, Prashant Sridharan, and most of all, my mother, Indumathi Sridharanfor their encouragement and assistance always.

SUMMARY:

... Seven months after the Supreme Court of the United States scaled back racial affirmative action by requiring direct evidence of past discrimination to justify its implementation, the then Prime Minister of India, V.P. Singh, announced the implementation of long-shelved recommendations to expand reservations in government employment. ... As racial affirmative action decays, critics and supporters alike call for a redefinition of disadvantage, specifically one that is based on socioeconomic status and/or experience. ... Moreover, the Court refused to require that an employer admit to prior discrimination in employment decisions as prerequisite to the implementation of a valid affirmative action program. ... Then, the employer's success with the affirmative action program would be measured by attaining balanced racial representation. ... Opposition to racial affirmative action policies "was a priority item on the Reagan administration's ideological agenda. ... Moreover, the Court presumed that racial affirmative action was valuable only as a means to this end, and only when race enjoyed a fairly tight correlation to socioeconomic status. Adarand both reflected and encouraged critiques of racial affirmative action involving assault on the presumption that not being White is a source of disadvantage. ... In fact, the beneficiaries of socioeconomic affirmative action are often positioned in direct opposition to the beneficiaries of racial affirmative action. ... Because the policy is posed to supplant, not supplement, racial affirmative action, its effect is to not treat class as a racialized systemic phenomenon. ...

TEXT:

Introduction

Seven months after the Supreme Court of the United States scaled back racial affirmative action by requiring direct evidence of past discrimination to justify its implementation, the then Prime Minister of India, V.P. Singh, announced the implementation of long-shelved recommendations to expand reservations in government employment. This expansion entailed reservation of 27% of government positions for Other Backward Classes, in addition to the existing quota reserving 22.5% of government positions for Scheduled Castes and Scheduled Tribes. In the years following, the U.S. Supreme Court has continued its severe curtailment of affirmative action. Meanwhile, the India Supreme Court, amidst frequent riots and several self-immolation protests, affirmed the additional 27% of reservations for those groups considered more advanced than the Scheduled Castes and Tribes, yet still gravely disadvantaged in their ability to access equal opportunity.

India's policy of reservation, or "compensatory discrimination," is a "daring attempt to remedy the past injustices suffered by those who are at the lower levels of India's four-tier caste-hierarchy." Before India declared independence in 1947, the British maintained separate electorates and reserved seats for these groups in Indian Parliament. Soon after Independence, by recommendation of the Kaka Kalelkar First Backward Classes Commission, the Indian government implemented the model of reservation schemes for the Scheduled Castes and Tribes in government employment, as one means of addressing the disadvantage suffered by these groups most subordinated in the traditional caste hierarchy. The government implemented no such policy for Other Backward Classes at that time. Over time, the Indian courts imposed various limitations on the reservation policy, attempting to refine its definition of a disadvantage sufficient to merit reservations, occasionally adapting the schedule of groups deemed to have suffered this disadvantage.

In 1978, the government appointed another commission, the Mandal Commission, to reevaluate the reservation policy. Most notably, the Mandal Report of 1980 suggested reserving an additional 27% of government positions for Other Backward Classes. Amidst violent protest, the Supreme Court validated this plan, a decade after its proposal, but added to the scheme a family/individual means test for all individuals claiming backward status by their caste membership.

The United States experienced a vastly different evolution of affirmative action policy. Introduced to manage the crisis of violent urban discord, the government encouraged employers to protect their businesses and stave off nascent riots by addressing one key cause of these riots - the devastating level of unemployment in African American communities. However, over time, the U.S. philosophical orientation to individualism eroded this policy, which was temporarily legitimated by a mode of crisis management, and it was reduced to a card played for political gain. Moreover, the U.S. judiciary limited the use of affirmative action, acknowledging only a very limited definition of disadvantage and effacing the presumption of a disadvantage which metastasizes from race discrimination.

As racial affirmative action decays, critics and supporters alike call for a redefinition of disadvantage, specifically one that is based on socioeconomic status and/or experience. However, limited again by the U.S.'s philosophical predilection for the philosophy of individualism, these proposed policies are unlikely to result in systemic socioeconomic affirmative action, nor will they approximate disadvantage created by racial discrimination. Unfortunately, the call for socioeconomic affirmative action functions to redefine disadvantage to exclude racialized disadvantage.

This paper contemplates this drastic difference in policy trajectories, asking how India and the United States, both seeking to repeal inequality in multicultural societies, and confronted by similar challenges to their resultant policies, have evolved to such different definitions of disadvantage, as rendered by their current policies. Perhaps there are as many answers to this question as there are constitutive variables, or "moving parts" that define a society. This paper tinkers with a few possible moving parts, specifically three factors to which the differences in India's and the United States' evolutions in affirmative action policy may be attributed: electoral politics and political leaders' motivation to capture or retain voting blocs; the philosophical role of individualism in each society, and the origins and goals established for the policies; and the willingness of each country to engage the complexity of defining disadvantage in the course of significant policy shifts.

Part One describes the seeds of the Indian policy of reservation in government employment, explains the salient policy changes up to the present, and confronts some of the contemporary challenges to the policy's current paradigm of disadvantage. Part Two provides a similar explication of U.S. policy, its origins and evolution in executive policy and judicial definition, and the nature of opposition to the model of disadvantage that inculcates racial disadvantage. Finally, Part Three explores three variables of the policies - electoral politics, the influence of individualism, and engagement of complexity - and how they have in part catalyzed policy shifts and propagated the current models of disadvantage in each country.

COMMENT: STRANDED IN JAPAN AND THE CIVIL LIBERTIES ACT OF 1988 RECOGNITION FOR AN EXCLUDED GROUP OF JAPANESE AMERICANS

Mark K. Hanasono+

+ A.B. 1996, University of California, Berkeley; J.D. candidate 1999, Georgetown University Law Center. I would like to thank Professor Mari J. Matsuda for her guidance in developing this paper. Special thanks to Michelle Aronowitz and Seth Galanter for their dedication to redress and for providing the opportunity to work on the appeals from which this paper originated. Finally, I would like to thank Christina Nagao for her support and encouragement. This paper is dedicated to the Japanese American strandees whose courage and perseverance represent the strength of the Redress Movement.

SUMMARY:

... (B)(i) was confined, held in custody, relocated, or otherwise deprived of liberty or property as a result of - ... According to that section, eligibility requires that the person must have been evacuated, relocated, interned, held in custody, or otherwise deprived of liberty or property on the basis of Japanese ancestry as a result of U.S. government action. ... Upon review, the U.S. Court of Appeals for the Federal Circuit dismissed the government's narrow construction of the "otherwise deprived of liberty" provision. ... The Court reached its interpretation of the "otherwise deprived of liberty" provision based on three considerations. First, the Court reasoned that limiting eligibility to those directly deprived of liberty as a result of government action, those "'confined, held in custody, [or] relocated'" would "render superfluous the phrase 'or otherwise deprived of liberty. ... By 1941, fifty years of hatred toward Japanese Americans had resulted in a stereotyped attitude of distrust toward Asians and Asian Americans among the West Coast population. ... Finally, under Civil Liberties Act jurisprudence, the strandees qualify for reparations under the Act as "eligible individuals deprived of liberty" by the U.S. government. ...

The United States government provided redress and reparations for many Japanese Americans injured by its constitutional violations during World War II. The United States has failed, however, to address the legitimate claims of Japanese Americans who traveled to Japan for temporary visits before the outbreak of World War II. These Japanese Americans were excluded from repatriation to America while their White American counterparts were welcomed home. The author examines the policies behind the Civil Liberties Act of 1988 and its mechanisms for providing relief to injured Japanese Americans. The author argues that the strandees qualify for redress and reparations under the Civil Liberties Act because they are eligible as individuals "deprived of liberty" and because this result is consistent with the underlying purpose of the Civil Liberties Act.

TEXT:

I. Introduction

The final chapters of the Japanese American Redress Movement have closed with the victories of those who were wrongly terminated from their jobs as railroad and mine workers. These victims, as well as others, waited nearly fifty years for the U.S. government to provide redress and reparations for its unconstitutional actions against them during World War II. Redress and reparations finally came under the Civil Liberties Act of 1988, which reached over 81,000 eligible claimants. Those Americans of Japanese ancestry illegally imprisoned by the U.S. government, pursuant to Franklin D. Roosevelt's Executive Order 9066, brought the bulk of these claims.

With the Civil Liberties Act's sunset date in August of 1998, the U.S. government rushed to wash its hands of its wrongdoing during World War II. However, it has failed sufficiently to fulfill all worthy claims. Most recently, the government settled the class action suit brought by over 2,000 former Japanese Latin American internees who were not allowed to gain U.S. citizenship or permanent residency after the U.S. government kidnapped them from their home countries. The government provided these victims with a formal apology and a mere $ 5,000 each. Beyond these redress measures, the U.S. government deemed other deserving individuals ineligible for any reparations. Among such excluded individuals are the American citizens of Japanese ancestry that the U.S. government left stranded in Japan during World War II.

Along with a large number of white Americans, these Japanese Americans traveled to Japan shortly before the outbreak of World War II for various reasons. Some were sent back to Japan to care for aging relatives. Others went to learn the Japanese language. These Japanese Americans were to reside temporarily in Japan, as were the white Americans who went for business or diplomatic assignments. The bombing of Pearl Harbor and the U.S. government's declaration of war on Japan altered the travel plans of all Americans staying in Japan at the time. As citizens back home in the United States voiced concerns to bring back their family members and friends from Japan, the U.S. Department of State initiated operations to bring American citizens back from Japan. The State Department underwent negotiations with the government of Imperial Japan to exchange Japanese nationals who lived in the United States and wished to return to Japan for American citizens who were temporarily residing in Japan and wished to return to the United States. But these operations did not bring back all American citizens from Japan.

Unlike their white American counterparts, none of the Japanese Americans stranded in Japan during the war were selected for participation in the exchanges of civilians made between the United States and Japan. At the exchange point in Mormug<tild a>o, India, one participant in the repatriation to Japan from America observed, "it dawned on the Nisei kids that [the ship from Japan]...was not [an] ordinary ship. The passengers from that Japanese ship were White Americans for whom the Nikkei were being exchanged." Reiko Rikimaru Nimura states, "It was racist. It got to me later. It would have been different if they let the Nisei come back. But only White Americans were allowed to come back." Not only did the U.S. government fail to bring Japanese Americans back, but as unpublished archival research indicates, it discriminated against them in the policy created for the exchanges.

This paper argues for redress and reparations for these Japanese American strandees based on the U.S. government's deprivation of their liberty by excluding them from repatriation to America. Section II of this paper explicates the Civil Liberties Act of 1988 and the government's finding the strandees ineligible under the Act. Section III provides the background of the exchange program during World War II, and characterizes its effects with the voices of the Japanese American strandees who were rejected in their attempts to repatriate through it. Section IV analyzes the legal argument recommending eligibility for the strandees based on the interpretation of the "eligible individual" provision under the Civil Liberties Act, as presented in Ishida v. United States. Section V presents further support for the claimants' eligibility based on archival evidence of the government's discrimination against the strandees and on the public's anti-Japanese influence on the government. Finally, Section VI examines the theoretical basis for including the strandees as eligible claimants for reparations.

RECENT DEVELOPMENT: Environmental Hazards and the Richmond Laotian American Community: A Case Study in Environmental Justice

Stephanie Tai+

+ J.D., Georgetown University Law Center, 2000; Ph.D., Chemistry, Tufts University, 1997; S.B., Chemistry, Massachusetts Institute of Technology, 1992. The author would like to thank Professor Mari Matsuda and Anna Diamanti for their comments on earlier drafts of this paper, as well as Peggy Saika, Sharon Bailey, Torm Nompraseurt, and Andrew Leong for their valuable insights.

SUMMARY:

... Dry cleaning, subsistence fishing, textile manufacturing, and microelectronics assembling all share a common thread: large numbers of Asian Pacific Americans work in these occupations. ... Next, the paper will explore the environmental justice efforts of the Asian Pacific Environmental Network's Laotian Organizing Project and the Laotian Community Council. From this examination, the paper will then characterize tactics particularly successful for Asian Pacific American communities, describe ideological tensions with such tactics, and evaluate the role that Asian Pacific American environmental justice activists can play in the environmental justice movement as a whole. Finally, this paper will suggest legal and grassroots directions for achieving environmental justice in Asian Pacific American communities. ... The far-reaching effects of community education and empowerment are reflected by the observations of Asian Pacific American environmental justice lawyers and activists. ... Asian Pacific environmental justice activists in other areas have also recognized the importance of community empowerment. ... In this respect, Asian Pacific American environmental justice activists are similar to those from Native Hawaiian communities, Native American communities, and Latino communities. ... The public participation discourse of the environmental movement and the community empowerment discourse of the environmental justice movement may address these concerns of Asian American difference and the creation of "separate rules". ... The challenge to Asian Pacific American environmental justice activists is to make sure these voices are heard. ...

TEXT:

Dry cleaning, subsistence fishing, textile manufacturing, and microelectronics assembling all share a common thread: large numbers of Asian Pacific Americans work in these occupations. Furthermore, many Asian Pacific Americans, especially newly arrived refugees, live in neighborhoods with a disproportionately high number of industrial facilities. "Facially-neutral" environmental and public health laws which do not recognize the disproportionate representation of Asian Pacific Americans in such occupations and living spaces may not adequately protect these communities from these hazards.

This paper will examine the impact of occupational and environmental hazards on the Laotian American community in the Richmond area of western Contra Costa County, California. This refugee community, with around 40% living in poverty, is located in an area with over 350 industrial facilities: from toxic waste incinerators to oil refineries to chemical plants. Such disproportionate siting of industrial facilities in minority and low-income communities has been the major focus of the grassroots movement known as environmental justice. However, the movement has devoted little attention to how different cultural norms affect exposure to environmental hazards. This paper will discuss the importance of keeping a community's cultural norms central in the analysis of the environmental injustice to adequately identify exposures to environmental hazards and to devise successful strategies of empowerment in addressing those concerns. This paper will first examine environmental hazards faced by the Richmond Laotian community. Next, the paper will explore the environmental justice efforts of the Asian Pacific Environmental Network's Laotian Organizing Project and the Laotian Community Council. From this examination, the paper will then characterize tactics particularly successful for Asian Pacific American communities, describe ideological tensions with such tactics, and evaluate the role that Asian Pacific American environmental justice activists can play in the environmental justice movement as a whole. Finally, this paper will suggest legal and grassroots directions for achieving environmental justice in Asian Pacific American communities.

I. Introduction:

The Role of the Environment in Laotian American Communities

Environmental justice activists recognize the environment as encompassing more than the traditional conservationist environment, more often associated with wildlife and parklands than cities and schoolyards. Early American naturalists such as John Muir fought to preserve parks from humans. In contrast, environmental justice activists view the environment as human-centered, and incorporate the concerns of traditional labor and health activists into their efforts. The environment of the environmental justice movement is immediate rather than detached - the place where we "live, work, and play."

In this context, the meaning of environment will vary with each community. Physical surroundings play a smaller role in the environments of those who buy bottled water and drive to their workplaces than of those who either cannot or choose not to do so. For both cultural and economic reasons, a significant portion of Laotian food consists of homegrown vegetables and subsistence-fished seafood. The amount of fish eaten by the average community member is well over the advisory limit for Bay Area-caught fish - fish with high concentrations of mercury, dioxin, and polychlorinated biphenyls (PCBs). Because Laotian Americans depend on their immediate surroundings for food and work, the state of their physical environments play a critical role in their health and well-being.

Furthermore, Laotian subsistence farmers and fishers, many of whom read only Laotian, are dangerously unaware of the toxicity of their food because pollution advisories are not always presented in this language. In one situation, two Laotian families grew vegetables in an abandoned battery factory for years without realizing the hazards. Warning signs in only English and Spanish were posted in the factory. The families discovered those dangers only after a public nurse noticed abnormally high levels of lead in their children's blood.

Finally, this community has historically been politically disempowered. Not only are over half of Laotian Americans linguistically isolated, but a quarter of these residents live in severe poverty. This combination of economic impoverishment, low citizenship rates, and linguistic isolation have left the community politically disempowered. As of 1992, no Laotian American had ever run for political office in this country.

This conjunction of linguistic and cultural isolation, impoverishment, and political disempowerment sets the stage for where the Richmond Laotian Americans "live, work, and play." This is their environment.

SYMPOSIUM: "LABOR & IMMIGRATION: EXAMINING THE INTERSECTION" SPEECH: EFFECTIVE REPRESENTATION Asian Law Journal Symposium on Law and Labor

WILLIAM TAMAYO+

+ William Tamayo is the Regional Attorney of the U.S. Equal Employment Opportunity Commission, San Francisco District Office where he oversees the EEOC's litigation and legal program in California, Hawaii and U.S. territories and possessions in the Pacific. Prior to joining the EEOC, he served as a staff attorney and Managing attorney with the Asian Law Caucus. Mr. Tamayo has testified before the U.S. House of Representatives, California Legislature, and local bodies on immigration policy, voting rights, and public policy issues affecting Asian-Americans and other minorities. He has published numerous articles on immigration and issues affecting immigrants.

SUMMARY:

... Fortunately, many of the U.S. labor and employment laws provide protections for all workers within the United States, within its borders or territories, and generally they make no distinctions based on immigration status. ... The Supreme Court reaffirmed the concept: workers, regardless of their immigration status were protected under the National Labor Relations Act, and it was an unfair labor practice for the employer to call the INS. That is the key case from which all the other cases stem. ... Several cases in the NLRB context have reaffirmed the idea that undocumented people are protected by Title VII. ... There is a key case - EEOC v. Tortilleria "La Mejor" - in 1991 that I was able to work on as plaintiff-intervenor, and I actually wrote a brief in support of the position that undocumented workers are protected under Title VII. ... Fortunately, the Eastern District of California issued a decision that said immigration status was not relevant for Title VII proceedings and that these undocumented workers were clearly protected. ... In the geographic area covered by the San Francisco district of the EEOC, one of the interesting issues that we're looking at is sexual harassment in the agricultural industry, where there is a large number of immigrant workers, including some with unclear immigration status. They have alerted the EEOC that if there is anything we should address in agriculture, it should be sexual harassment. ...

SYMPOSIUM: "LABOR & IMMIGRATION: EXAMINING THE INTERSECTION" SPEECH: ATTORNEYS AS ORGANIZERS Asian Law Journal Symposium on Law and Labor

Hina Shah +

+ Hina Shah is an employment/labor attorney at the Asian Law Caucus, where she does individual and impact litigation involving low wage workers. Prior to joining the Asian Law Caucus, she was an attorney at Van Bourg, Weinberg, Roger & Rosenfeld, a union-side labor law firm. She also helped to start a non-profit organization for housing eviction defense.

SUMMARY:

... Where I work, at the Asian Law Caucus, the two worlds really do meet: we try to fuse our litigation with being active outside the litigation to empower and organize immigrant workers. ... All of the workers had minimum wage and overtime claims. ... Only two of the workers who came to us were still working at the restaurant. ... Consumer education is an incredibly powerful tool. ... If you are an immigrant worker, regardless of what your documentation is, you are automatically an "other." ... The Caucus in its twenty-five year history has had a great deal of success in coalition building, working with groups like Asian Immigrant Women Advocates and other organizing groups out there. ... Through the help of APEN, we were able to do some community education activities in the Laotian community and we ended up having three Laotian members join our lawsuit, along with the Chinese workers. ... Through that community organizing and through that community pressure, Toys R Us finally contacted us and said they'd take a look at it and talk to the subcontractor. ... I just want to end on that note, saying that when you take a broader approach, combining education, community organizing, litigation, and coalition building to empower and organize immigrant workers, there are some good success stories. ...

SYMPOSIUM: "LABOR & IMMIGRATION: EXAMINING THE INTERSECTION" SPEECH: LABOR LAW & LANGUAGE DISCRIMINATION Asian Law Journal Symposium on Law and Labor

Edward M. Chen+

+ Ed Chen is an attorney with the ACLU Foundation of Northern California where he has worked on a wide range of issues from free speech to affirmative action. Most recently, he has focused on race and language discrimination. He has litigated numerous cases involving English-only workplace rules, accent discrimination, rights of non-English speaking consumers, access of non-English speakers to government services, government restrictions on foreign language business signs, and the constitutionality of laws making English the official language.

SUMMARY:

... At the outset, it is important to recognize the breadth of the impact language-based discrimination has upon the immigrant community and upon Asian Pacific Americans in particular. ... There are aspects of language discrimination and other forms of national origin discrimination which are different from traditional race discrimination. ... Accent discrimination is commonly directed against persons with a Spanish or Asian language accent. ... In the area of accent discrimination, the Ninth Circuit has held in Fragante v. City and County of Honolulu, that the primary question is whether the employee's accent materially interferes with job performance. ... Although he has a fairly noticeable Chinese accent, a lot of his communication is through E-mail. ... The courts must realize and account for the fact that employers tend to impose excessive language requirements; unless there is a labor shortage, employers have little incentive to establish a standard that both satisfies (but not exceeds) actual job requirements and minimizes discriminatory impact upon language minorities. ...