Asian Law Journal - Vol. 8 Articles

ARTICLE: Symbolism Under Siege: Japanese American Redress and the "Racing" of Arab Americans as "Terrorists"

Natsu Taylor Saito +

+ Professor, Georgia State University College of Law. I am grateful to Eric Yamamoto and the editors of the Asian Law Journal for envisioning and organizing this symposium, Reconstructing Legal Paradigms: Synthesizing the New Racial Theories and Legal Strategies for Social Justice; to Chris Iijima and Mari Matsuda for their insights into the meaning of the internment; to Andi Curcio for her thoughtful comments; to my research assistant Kate Santelli; and to the Georgia State University College of Law for its support of this work. Special thanks go to my father, Morse Saito, for conveying to me both his reality of internment and his passion for civil rights and social justice.

SUMMARY:

... How it is cast will affect reparations for other groups, and will influence whether Asian Americans reinforce or challenge racial hierarchy in this country. ... The D.C. Circuit rejected the INS' use of secret evidence and refused to hear it in camera. On remand, the District Court held for Rafeedie using the Mathews v. Eldridge test to weigh his due process rights against the government's national security concerns. ... In addressing the INS' use of secret evidence in these cases, the 9th Circuit concluded, because of the danger of injustice when decisions lack the procedural safeguards that form the core of constitutional due process, the Mathews balancing suggests that use of undisclosed information in adjudications should be presumptively unconstitutional. ... Some of the parallels between the treatment of Arab Americans and Asian Americans can be seen if we look more closely at one of these secret evidence cases, Kiareldeen v. Reno. ... It held the use of secret evidence impermissible in Kiareldeen's case and, refusing to presume that the BIA's decision would have been the same without the secret evidence, ordered Kiareldeen released. ... The district court in Kiareldeen and other courts have acted to curb some of these problems, but the INS continues to use secret evidence. ...

Warren, Roosevelt, DeWitt, and others were the architects of the internment, but we are its authors. We write of it and hope to find meaning in it, honoring those who lived it. . . . We honor the quiet dignity of those who left on the trains for the desert. We honor the maverick rebellion of those who refused to go. We honor the Issei . . . whose survival was their response to those who would deny their humanity. Here we are, writing as their heirs, writing the meaning of the internment. Mari J. Matsuda

I. INTRODUCTION

Reparations to Japanese Americans interned by the United States government during World War II seem nearly completed. The Civil Liberties Act of 1988 provided for an official apology, payments of $ 20,000 to each surviving internee, and the establishment of a public education fund. Distribution of the funds was, for the most part, completed in 1998. To be sure, there are a few loose ends--redress for the railroad workers, for those born in the camps after the "cut-off" date, and for the Japanese Latin American internees, but by and large we seem ready to relegate the internment to history. The internment was a wrong, it was acknowledged, and a remedy was provided.

However, the most important question remains unanswered: the question of the long-term significance that will be attributed to this redress. Japanese Americans are one of the few groups to have received an official apology and reparations for a race-based wrong perpetrated by the United States government. As such, the redress received has implications that reach beyond the internees and their families.

Clearly, the redress is symbolic--a statement of regret and a token payment 50 years after the fact hardly constitute compensation--but what does it symbolize? Does it symbolize genuine recognition of the harm that was done to both Japanese Americans and the nation as a whole? Has the wrong at issue really been corrected, thereby diminishing the likelihood that others will be harmed in similar ways? Or does this "redress" actually reinforce acquiescence to, and accommodation of, race-based wrongs? Will it be used to further divide Japanese Americans from other people of color in this country? As we decide the meaning of redress, we must contest the generally accepted internment narrative or we will have struggled long and hard to expose a wrong, only to have its "remedy" reinforce the very tendencies that created the wrong.

I write here as a third generation Japanese American; the daughter and granddaughter of internees; and as a beneficiary of the reparations provided by the Civil Liberties Act of 1988. I also write as a legal scholar committed to a vision of law as an instrument of justice rather than a means for reinforcing structures of exploitation.

We have at this time a unique opportunity and, I would argue, Japanese American legal scholars and activists have a responsibility to ensure that the redress provided furthers the struggle for equality and justice in this country. How it is cast will affect reparations for other groups, and will influence whether Asian Americans reinforce or challenge racial hierarchy in this country. This is the period in which we can contest the symbolism of the internship; if we are to be its authors, let us be sure it tells the story we want it to tell.

Part II of this essay describes the widely-accepted narrative of the Japanese American internment. Part III identifies what I consider to be the major flaws in this interpretation--its portrayal of the internment as an aberration and the accompanying implication that the problem has been corrected. Part IV draws a parallel between the treatment of Japanese Americans during World War II and Arab Americans in the United States today, focusing on the "racing" of Arab Americans as "terrorists" and the use of secret evidence and indefinite detention to deport non-citizens with political views or associations the government dislikes. Part V concludes that the real meaning of Japanese American redress is being shaped by our responses to such violations of rights guaranteed by the Constitution.

ARTICLE: Power, Merit, and the Imitations of the Black and White Binary in the Affirmative Action Debate: The Case of Asian Americans at Whitney High School

Deana K. Chuang +

+ J.D., University of Pennsylvania; B.A., Pomona College. I thank Jolynn Asato, Tammi Chun, Anne Manalili, Mira Pak, Anita Revilla, Praveena de Silva, and the editors of the Asian Law Journal for their substantive and editorial contributions to this article. Special thanks to the Whitney High School community and the residents of Cerritos for openly sharing their experiences with me so that I may tell our story. I am indebted to the University of Pennsylvania's Fall 1996 Critical Perspectives on the Law class for inspiring this topic and especially to Professor Susan Sturm whose guidance, wisdom, and commitment to social justice gave me the motivation and courage to undertake this project. This paper is dedicated to my family, Mom, Dad, and Rita, for their love and encouragement.

SUMMARY:

... In an era of backlash against increasing racial diversity on school campuses, the number of Asian Americans admitted to highly selective schools is on the rise. ... As the number of Asian Americans surpasses that of Whites, White students threaten to become underrepresented minorities, leaving communities to grapple with the meaning and purpose of affirmative action. ... FUNGIBLE PAWNS IN THE AFFIRMATIVE ACTION DEBATE: ASIAN AMERICANS AS THE MODEL MINORITY, PROXIES FOR WHITE RESENTMENT, AND A THREAT OF ENCROACHMENT ... Asian Americans, however, may also be aligned with or choose to align themselves with Whites as "victims" of affirmative action, particularly in higher education. ... The language of the members of the WECCAB appeared to mirror the general debate about affirmative action, and the presence of White students as beneficiaries did not appear to change the language or content of the arguments. ... White students openly spoke about their status as beneficiaries of affirmative action without fear and championed the importance of a strict meritocracy as if they held the positions of power that Whites hold in the U.S. When Asian American students held the dominant position at Whitney, they adopted many of the same strong beliefs in meritocracy that traditional holders of power tend to assume, even though many appeared to be sympathetic to the importance of a diverse campus. ...

"The real risk [of affirmative action] to Asian Americans is that they will be squeezed out to provide proportionate representation to whites, not due to the marginal impact of setting aside a few spaces for African Americans." - Professor Frank Wu

TEXT:

In an era of backlash against increasing racial diversity on school campuses, the number of Asian Americans admitted to highly selective schools is on the rise. As selective universities report decreasing numbers of Blacks and Latinos, the presence of Asian Americans remains strongly felt. Asian Americans comprise approximately 15 percent of the students at many Ivy League universities, topping at approximately 20 percent at the University of Pennsylvania and Harvard. At some of the University of California campuses, Asian Americans already constitute the majority. As the number of Asian Americans surpasses that of Whites, White students threaten to become underrepresented minorities, leaving communities to grapple with the meaning and purpose of affirmative action.

At Whitney and Lowell High Schools, two nationally-recognized magnet schools in California, Asian Americans have constituted the racial plurality for over a decade. Due to the disproportionately large numbers of Asian American students at these high schools, Whites do not occupy the traditional positions of power. Rather, the numerical standards for admission of White students are lower than those of Asian American students. Whitney High School, for example, classifies White students as underrepresented and accordingly, Whites benefit from the school's diversity policy. Similarly, at Lowell High School, Chinese Americans must have a higher minimum test score than Whites and students of other Asian ethnicities in order to gain admittance. In a situation specific to these two prestigious schools, Whites are the beneficiaries of affirmative action.

This paper will examine the ways in which students, a school, and a community replay the affirmative action debate when White students are the beneficiaries of diversity programs. Since the implementation of affirmative action policies, the public has viewed Blacks and, to a lesser extent, Latinos as their primary beneficiaries. When opponents of affirmative action speak against attempts to increase diversity, they imagine a black or brown face. As a result, the affirmative action debate focuses on the historical and cultural context of Blacks and Latinos. The relative success of certain groups of Asian Americans at Whitney and Lowell and the resulting diversity policies that benefit Whites upset this notion. By examining the case of Asian Americans and their specific context in the affirmative action debate, the inadequacies of the current Black and White dichotomy emerge. Specifically, the inclusion of Asian Americans provides a rare opportunity to strip the debate of racial stereotyping and reveal the centrality of power in the argument for merit-based criteria.

The sentiments that emerge when policies benefit Whites demonstrate the centrality of racial privilege in affirmative action discussions. More specifically, the role reversal reveals that the often-articulated concerns about merit and stigma often serve as a pretext for maintaining a traditional power hierarchy. Understanding the stories of the two prestigious high schools - a rare occasion whereby Whites occupy the position of the beneficiary - exposes the real issues of the affirmative action debate in a way that abstract discussion or theories cannot. The situation at Whitney strips the customary actors of their traditional roles in the affirmative action debate - Whites as victims and Blacks as recipients of handouts. The role reversal whereby a racial group other than White is identified as the victim of affirmative action and Whites are identified as the beneficiaries requires the community to question the value of diversity when its own positions are at stake. The resulting conversation brings to the surface the importance of contextual and historically rooted notions of race and ethnicity in interpreting the meaning of racial and ethnic diversity.

Part I will examine the history of school desegregation and affirmative action. Examining the historical context of these two movements situate Blacks as the leaders and consequently, the holders of the privileged victim status in anti-racist policies. The leadership role of African Americans in the desegregation process placed them at the forefront of the debate and positioned them as both the spokespeople and the primary beneficiaries of the policies, a pattern of hierarchy with a long history in the civil rights struggle. As a result, the Black and White binary emerged and the identities of other racial groups became subsumed under one of the two groups: Black or White. This section will situate the binary in its historical context and show how such a narrow approach can inadvertently reinforce a zero sum notion of power.

Part II will focus on Asian Americans' experience with affirmative action in higher education. Specifically, it will describe deliberate attempts in the 1980s to limit growing Asian American enrollment at elite universities. This section will highlight the invisibility of Asian Americans in the discussion and the problems of their model minority status. Specifically, it will stress the importance of contextual and historically rooted notions of race and ethnicity in interpreting the legitimacy of affirmative action.

Part III will describe the well-publicized diversity policy at Lowell High School, where students of certain Asian ethnicities must score higher on the admissions test than White students. At Lowell, Chinese American students sued the school for discrimination as a result of the school's race-conscious admissions policy, thereby positioning themselves as the victims in the Black and White binary. When the case settled in July 1999, it effectively ended the school's 16-year-old diversity plan, most severely affecting Black and Latino students due to the elimination of racial caps on Chinese American enrollment. By increasing their numbers at the school at the expense of Blacks and Latinos, Chinese Americans bypassed the opportunity to challenge the Black and White binary. The controversy highlighted the centrality of issues of merit, fairness, and racial privilege in the affirmative action discussion and set the stage for the similar, albeit less contentious, environment at Whitney High School.

Finally, Part IV will specifically focus on the diversity policy and its effects at Whitney High School. To research this issue, I spoke with principals, teachers, students, and community members in order to gauge their perceptions of the policy and their interpretation of the meaning of affirmative action. By adopting the Black and White binary, many in the community responded similarly to their counterparts at Lowell. The community's attempts to situate Asian Americans within the confines of the Black and White binary, however, brought to light the limitations of such duality and its inapplicability to Asian Americans. As a graduate of Whitney, I have long believed that my story - the story of the school - best illuminates the role of power and privilege in discussing the value of diversity. During my six years at the school, the role reversal forced me to experience affirmative action from the position of power and, more importantly, to see the White community and its reactions from the position of the beneficiary. It is my hope that the understanding I gained as a result of this role reversal would be shared with others to move the current conversation on affirmative action away from the false notion of merit.

ARTICLE: "Obnoxious To Their Very Nature": Asian Americans and Constitutional Citizenship *

* This essay was originally published in the journal Citizenship Studies. See L. Volpp, 'Obnoxious To Their Very Nature': Asian Americans and Constitutional Citizenship, 5 CITIZENSHIP STUDIES 57 (2001). Thus, footnote and endnote references do not conform to the Bluebook uniform citation rules but rather are reprinted as they appear in the original text. [Reprinted by permission of Taylor & Francis Ltd., see <http://www.tandf.co.uk>.]

Leti Volpp +

+ Assistant Professor, Washington College of Law, American University. I would like to thank Alex Aleinikoff and David Eng for their extremely helpful comments, and Anita Mitra, Catherine Ng, and Rahul Shah for their excellent research assistance.

SUMMARY:

... The terms Asian American and American citizenship stand in curious juxtaposition. ... Race cuts against the promise of each of these citizenship discourses, and the racialization of Asian Americans seems at odds, especially with the latter two discourses of political activity and identity. ... In discussing whether the racial bar on naturalization should be completely lifted, prior to the 1870 legislation, Senator Cowan warned:Whether this door [of citizenship] shall now be thrown open to the Asiatic population . . . [for the Pacific Coast this would mean] an end to republican government there, because it is very well ascertained that those people have no appreciation of that form of government; it seems to be obnoxious to their very nature; they seem to be incapable either of understanding or carrying it out. ... With the repeal of race-based limits on immigration and the removal of racial bars to citizenship, Asian Americans could begin building citizenship through political activity. ... The idea of the "model minority" is that a strong work ethic and family cohesion has led to Asian American economic success, without the need to rely on government welfare. ...

The American of Asian descent remains the symbolic "alien," the metonym for Asia who by definition cannot be imagined as sharing in America (Lowe, 1996, p. 6).

TEXT:

INTRODUCTION

The terms Asian American and American citizenship stand in curious juxtaposition. It might be thought that the latter easily embraces the former, but historically this has not been the case. For more than a century and a half, Asian Americans were barred from naturalization; and they continue to be viewed as a group whose loyalty to America remains in doubt. Recent controversies involving Asian Americans, namely the "Asian connection" in the campaign finance scandal of 1996 and the prosecution of nuclear scientist Wen Ho Lee, raise important questions as to whether Asian Americans are considered unsuited to participate in democratic engagement, and how such a perception might shape different discourses of citizenship. This is an understudied area, and this essay constitutes an initial attempt to think through the contradictory relationship of Asian American racialization and theories of citizenship.

As described by Lisa Lowe (1996), the Asian immigrant functions as a phantasmic site on which the United States nation projects a series of anxieties regarding internal and external threats to the coherence of the national body. American Orientalism is the term some have devised to describe how the national identity of the United States has been constructed in opposition to Asians and Asian Americans--who are categorized as "foreigners," in contrast to "citizens" (Aoki, 1996; Gotanda, 1985, 1992). Defined antithetically against those who enjoy citizenship, the fitness of Asian Americans for integration into our national body becomes suspect. But what is meant by the term "citizenship" bears elaboration.

In a recent writing, Linda Bosniak (2000a) untangles the ways in which notions of citizenship implicate several distinct discourses, namely citizenship as legal status, citizenship as rights, citizenship as political activity, and citizenship as identity/solidarity. Citizenship as legal status means who can possess the legal status of a citizen--in the United States, as granted by the Constitution or by statute. Citizenship as rights signifies the rights necessary to achieve full and equal membership in society. As described by T. H. Marshall (1964), this approach tracks efforts to gain the enjoyment of civil, political and social rights in Western capitalist societies. In the context of the United States, citizenship as rights is premised on a liberal notion of rights, and the failure to be fully enfranchised through the enjoyment of rights guaranteed under the Constitution is often described as exclusion or as "second-class citizenship" (Black, 1970; Karst, 1989). Citizenship as political activity posits political engagement in the community as the basis for citizenship, as exemplified both by republican theories that played a key role in the founding of American democracy, as well as by a recent renaissance of civic republicanism (Michelman, 1977-78; Sunstein, 1985). Lastly, citizenship as identity, or citizenship as solidarity, refers to people's collective experience of themselves, their affective ties of identification and solidarity (Bosniak, 2000a).

Race cuts against the promise of each of these citizenship discourses, and the racialization of Asian Americans seems at odds, especially with the latter two discourses of political activity and identity. By focusing on the experience of Asian Americans vis-a-vis each of these citizenship discourses, we can begin to theorize why. In examining the relationship of these discourses to each other, we can differentiate them through understanding the first two--citizenship as legal status and citizenship as rights--as sites where the citizen functions as an object, the passive recipient of rights. The third discourse, citizenship as political activity, requires the citizen to function as an active subject, and the fourth discourse, citizenship as identity, refers to the citizen's sense of subjectivity.

Citizenship for Asian Americans in the form of legal status or rights has not guaranteed that Asian Americans will be understood as citizen-subjects or will be considered to subjectively stand in for the American citizenry. We could understand these different discourses as temporally ordered. While in the contemporary moment Asian Americans may be perceived as legitimate recipients of formal rights, there is discomfort associated with their being conceptualized as political subjects whose activity constitutes the American nation. There is, perhaps, even more discomfort associated with the idea that Asian Americans can represent the United States citizenry as a matter of identity. What follows sketches in more detail the relationship of each of these different citizenship discourses to the racial identity of Asian Americans.

COMMENT: "Yellow" Skin, "White" Masks: Asian American "Impersonations" of Whiteness and the Feminist Critique of Liberal Equality *

* The title of this paper comes from Frantz Fanon's Black Skin, White Masks, in which the French-Caribbean psychiatrist wrote about the psycho-social effects of racism on blacks as a result of European colonialism. The damage to black identity as a result of being defined by the dominant group as "Other," and therefore subordinate, particularly resonates with the issues this paper addresses. See FRANTZ FANON, BLACK SKIN, WHITE MASKS (1967).

Suzanne A. Kim +

+ J.D., expected May 2001, Georgetown University Law Center; B.A. 1996, Yale University. Thanks to Professors Charles Lawrence, Mari Matsuda, and Naomi Mezey, and to my family, Joshua Civin, and Doug Yatter for their invaluable guidance and support.

SUMMARY:

... In two historical Supreme Court cases from the early part of the twentieth century, when only whites and blacks could be United States citizens, two Asian American immigrants made the startling move of claiming that they were "white" and, therefore, deserved to be naturalized. ... Echoes of Ozawa's and Thind's claims to whiteness sound throughout the rhetorical positions that some Asian Americans have assumed in current debates, including affirmative action. ... While Ozawa and Thind literally show what happens when a racial minority is required to show similarity to a white norm to gain equality (as critiqued by MacKinnon), contemporary examples of Asian American claims in the area of affirmative action show self-defeating, assimilationist claims to whiteness in more nuanced ways. ... The "model minority myth" serves as a primary example of the racialization of Asian Americans as more "white" than other groups of color, facilitating the perception of Asian Americans as occupying a higher tier than other people of color in the racial hierarchy. ... By obscuring Asian American subordination and creating a narrative of Asian American success, the "model minority myth" masks how white supremacy has created socio-economic disparities (for which non-Asian American people of color are blamed for not being able to "overcome") and obscures how white supremacy has subordinated Asian Americans. ... By accepting the "model minority myth," Asian Americans who oppose affirmative action also deny the racial oppression other people of color experience. ...

TEXT:

INTRODUCTION

In two historical Supreme Court cases from the early part of the twentieth century, when only whites and blacks could be United States citizens, two Asian American immigrants made the startling move of claiming that they were "white" and, therefore, deserved to be naturalized. The two petitioners--Takao Ozawa and Baghat Singh Thind--claimed they were white by dint of skin color, anthropological evidence, culture, and various other qualities suggesting they "belonged" to America. The petitioners' claims resonated with one central message: "I am just like you." Thind's and Ozawa's claims ultimately failed. The petitioners were denied citizenship because the Supreme Court, not surprisingly, held that they did not qualify as "white," and that despite their claims to the contrary, Ozawa and Thind were just "different."

These cases are instructive not only for what they tell us about racial hierarchy and barriers faced by Asian Americans at the time, but also for what they say about current issues surrounding Asian American identity and the ineffectiveness of claiming sameness when one will invariably be labeled as different. Ozawa's and Thind's claims to whiteness and its attendant privilege serve as stark historical examples of a current phenomenon exhibited by some Asian Americans today: making assimilationist claims to the privilege of dominant, white culture in contemporary debates implicating the concerns of Asian Americans. Echoes of Ozawa's and Thind's claims to whiteness sound throughout the rhetorical positions that some Asian Americans have assumed in current debates, including affirmative action. In this debate, the controversial "model minority myth" has served as the foundation for Asian Americans' claims resembling Ozawa's and Thind's, claims assuring racial insiders, "I am just like you."

This paper situates these historical and current claims to whiteness by Asian Americans in the context of Catharine MacKinnon's feminist critique of the liberal model of equality, which forces those seeking "equality" to claim similarity to dominant norms. By virtue of traditional equal protection doctrine's "similarly situated" requirement, those who are the same must be treated equally, and conversely, those who are different may be treated as such. MacKinnon's critique demonstrates how women seeking gender equality and racial minorities seeking racial equality, at the very least, face a patent unfairness insofar as they are required to equate themselves with their oppressors to remedy the conditions of their subordination. Furthermore, at worst, women and racial minorities face a doctrinal trap in which they are never meant to gain equality, since women and racial minorities are socially defined as "different." Equality claims ultimately collapse inward, as they are founded on a disingenuous structure that treats sameness and difference as exact opposites, when, in actuality, they bear a hierarchical relationship to one another, with "difference" masking the subordination of women and racial minorities. Therefore, the "difference" that these rights seekers must overcome is actually the subordinated positions they hold in gender and racial hierarchies, respectively.

MacKinnon's critique of the liberal equality model's foundation in sameness and difference underscores the impossibility of historical and contemporary claims to whiteness by Asian Americans. Despite their valiant efforts to show that they did indeed belong, Ozawa and Thind failed to overcome the social understanding of their ineluctable difference. Ozawa's and Thind's assertions that they were the same as whites (in fact, that they were white) act as a metaphor for the claims of some of today's Asian Americans, whose claims to white privilege belie the particularities and "difference" of today's Asian Americans. This paper explores examples, both old and new, that reveal the falsity of claiming similarity to a white norm in the face of the real, race-based structural inequities facing many Asian Americans that constitute their "difference." In addition, this paper aims to highlight how Ozawa's, Thind's and contemporary Asian Americans' claims to white privilege by "claiming sameness" ultimately reinforce the white privilege to which these claimants aspire.

This paper is divided into four sections. Part One briefly lays out the historical context of Ozawa v. United States and United States v. Thind and discusses Ozawa's and Thind's claims to white identity and the social meanings inherent in these claims to whiteness. Part Two explicates MacKinnon's feminist critique of the liberal equality model, as it applies to sex discrimination law, to race discrimination law, and to Ozawa's and Thind's claims. Part Three discusses a contemporary instance of Asian Americans' "claiming whiteness" by embracing the "model minority myth" in the debate surrounding affirmative action. Lastly, Part Four reviews some theoretical suggestions to address and confront the problems of Asian American identity that this paper presents.

COMMENT: An Analysis and Critique of KIWA's Reform Efforts in the Los Angeles Korean American Restaurant Industry

Daisy Ha +

+ Law clerk to the Honorable J. Spencer letts, United States District Court of the Central District of California; J.D., University of California, Berkeley School of Law (Boalt Hall), 2000; B.A., Williams College, 1996. I would like to thank Professor Linda Krieger, Professor Eric Yamamoto, Sam Kim, and the staff of the Asian Law Journal for their invaluable comments and assistance in the research and writing of this paper. Special thanks to the KIWA and KROA members and the restaurant employers and employees who shared their time and insights with me and to Kee Whan Ha and Francis Hur for facilitating the interviews. And to my family for their support and encouragement always.

SUMMARY:

... Although many people are aware, through the efforts of organizations and media attention, of the miserable working conditions facing Asian Americans in garment industry sweatshops, less visible are other arenas in which Asian American workers also face similar plights. One such example is the restaurant industry in Los Angeles' Koreatown. ... KIWA launched a campaign against Koreatown's restaurant industry in 1997. ... Part III will examine Koreatown's restaurant industry and the obstacles facing restaurant employees. ... In 1990, Korean Americans only constituted a tenth of the Koreatown population, with Latinos comprising 68 percent of the population, and Asian Americans, 26 percent. ... As many as 30 percent of Korean American establishments catered specifically to Korean American consumers, and the Los Angeles Times estimated that "seventy percent of customers in Koreatown's Korean stores [were] Korean, ten percent were other Asians, and twenty percent were non-Asian." ... As with most of the businesses in the Koreatown area, cutthroat competition is the norm in the Koreatown restaurant industry. ... LABOR DISPUTES IN THE KOREATOWN RESTAURANT INDUSTRY ... One restaurant owner claimed that KROA made very little effort to represent the owners. ... In late April of 2000, the Los Angeles Times reported another contentious labor dispute within the Koreatown restaurant industry. ... Nevertheless, it remains clear that KIWA has transformed the restaurant industry in Koreatown. ...

TEXT:

INTRODUCTION

Although many people are aware, through the efforts of organizations and media attention, of the miserable working conditions facing Asian Americans in garment industry sweatshops, less visible are other arenas in which Asian American workers also face similar plights. One such example is the restaurant industry in Los Angeles' Koreatown. Since 1997, the number of complaints made by Korean American restaurant employees against their Korean American employers for wage and hour violations has increased exponentially.

Labor violations have been common at Korean-owned restaurants from the initial establishment of Korean restaurants in Koreatown, but it was only recently that these violations were brought to light. Restaurant employers allegedly paid their employees wages that were as little as half of the hourly minimum wage. Furthermore, overtime work was often uncompensated, and many employers did not carry workers' compensation insurance or other legally required health benefits. The primary reason for the recent media coverage and community exposure was the effort of a non-profit organization called Korean Immigrant Workers Advocates (KIWA), whose work caught the attention of the U.S. Department of Labor (DOL) and prompted the Department to conduct random investigations of restaurants in Koreatown. These investigations confirmed the rampant wage and hour violations.

KIWA launched a campaign against Koreatown's restaurant industry in 1997. It sought to provide information and assistance to restaurant employees and ultimately make the Korean-owned restaurants humane and fair places to work. KIWA's methods of operation included negotiations with the employers on the employees' behalf, demonstrations and protests in front of restaurants, and legal action. Inevitably, its efforts were met with resistance from restaurant employers, the Korean Restaurant Owners Association (KROA), some customers, and some members of the general public. Despite this resistance, KIWA played a large role in ending many of the unacceptable practices of the restaurant industry in Los Angeles' Koreatown.

KIWA's mission statement and many of its strategies resonate with a concept advanced by legal academics called empowerment. This concept focuses on the process of enabling a community to take control and help itself. This article will argue that while KIWA successfully incorporated many elements of the empowerment theory into its operations, KIWA's efforts fell short of achieving the final level of empowerment - that of community self-confidence and self-sustenance. Furthermore, due to the particular circumstances of these labor disputes and the distinctive characteristics of the Korean American community, the concept was applicable only to a certain extent.

This article will explore the labor disputes within the restaurant industry in Los Angeles' Koreatown, present an overview of the players' stances based on individual interviews, offer insights into KIWA's role, and provide suggestions for KIWA to use in the future. Since mainstream legal scholarship provides insufficient tools with which to analyze disputes within an ethnic community, this article will utilize materials that are often overlooked or minimized in legal scholarship, namely primary materials. The use of primary materials is important in part because it provides a voice for individuals, in this case, the Korean American community in Los Angeles. Through personal interviews of restaurant owners and employees, KIWA staff members, and KROA members, this article will explore the perspectives and motivations of the players in the Koreanowned restaurant labor disputes.

This article is divided into five parts. Part I will describe the concept of empowerment, providing the theoretical framework with which to analyze the labor disputes. Part II will provide an overview of the Korean American community in Los Angeles. It will delineate the general characteristics of the community and specifically discuss employment opportunities open to Korean immigrants. Part III will examine Koreatown's restaurant industry and the obstacles facing restaurant employees. Part IV will explore the wage and hour violations committed by the Korean-owned restaurants in Los Angeles and responses by KIWA and the Labor Department. Finally, Part V will critique KIWA's efforts using the concept of empowerment and offer suggestions for the future.

SPEECH: The Color Fault Lines: Asian American Justice from 2000 *

* This essay was the keynote address at the symposium on "Reconstructing Legal Paradigms: Synthesizing New Racial Theories and Legal Strategies for Social Justice," sponsored by the Asian Law Journal, Boalt Hall School of Law, January 29, 2000.

Eric K. Yamamoto +

+ Professor of Law, William S. Richardson School of Law, University of Hawaii; Visiting Professor of Law, Boalt Hall School of Law, Spring 1999.

SUMMARY:

... It also aims to link "us" with our Asian American communities, and then beyond, with African Americans, Native Americans and Hawaiians, Latinas/os and white Americans of good will, and then beyond that, with all people struggling against forms of social discrimination. ... The first justice fault line facing Asian Americans is color on color - or, more particularly, the gulf of misunderstandings about complex color on color tensions. While we often talk of expanding "black/white," we generally mean to recast the color line as white versus color - and certainly the Denny's discrimination suits and recent white shootings of Asian Americans and African Americans underscore the relevance of both white/black and white/Asian American. ... As we expand white on black, a second fault line is Asian American ethnic group on ethnic group - that is, intra-Asian American color on color. ... The variegated racial votes on Prop. 187 (the anti-immigrant initiative) and the splits over welfare "reform" reveal that not only conservative whites, but Asian American and other groups, are ambivalent about who belongs and what the law should do about it. ...

TEXT:

INTRODUCTION

This symposium aims to connect those of us here - scholars, lawyers, community workers and law students. It also aims to link "us" with our Asian American communities, and then beyond, with African Americans, Native Americans and Hawaiians, Latinas/os and white Americans of good will, and then beyond that, with all people struggling against forms of social discrimination. In doing so, the symposium specifically aims to further a joint project of envisioning Asian American participation in justice struggles from the Year 2000 on.

Let's turn to history - to my spring semester, second year at Boalt Hall, when I took a two-credit externship at Dale Minami's new law office in Oakland (Dale had just left the Asian Law Caucus). Late every Thursday, Dale would sit and talk about political lawyering - about the importance of not only knowing the mechanics of in-the-trenches lawyering practice, but also of having a sophisticated theoretical grasp of how law and the courts really operate in a largely white-dominated (but demographically changing), capitalist society. He was skeptical and hopeful, harsh and uplifting - and always critically strategic. He would tell me, "start now, do; but also always read and think."

So I did - small legal things in the Asian American community and with APALSA. I studied Marxist Theory of the State and Law and Ancient Law, and I read Legal Realism, Legal Process, Asian American History, John Rawls and "Law Against the People." (I would have taken critical race theory and social justice courses with Professors Harris and Wildman if they had existed.) When I started a complex litigation practice and did community law work, I found the critical take on law and legal process immensely useful. Seeing the system from the outside helped me function on the inside.

Several years later, this all came even more vividly to life when Dale and others asked me to join the Fred Korematsu coram nobis legal team to reopen the infamous WWII Japanese American internment case Korematsu v. U.S. Former Supreme Court Justice Goldberg advised the legal team to "forget it, you haven't a chance." The legal team understood, through its rigorous critique of race, politics and law, that the chances of overturning the Supreme Court's finding that military necessity justified the internment were slim-to-none (despite the recently discovered mountain of suppressed evidence showing government prosecutorial misconduct). Its chances were indeed slim-to-none if the lawyers relied narrowly on established legal doctrine and procedure.

The legal team also understood, however, that the original Korematsu case, despite its lofty doctrinal niche in constitutional law books, was a political case. Reopening it meant simultaneously jumping through all the formal technical legal hoops and conceiving the litigation politically - merging our use of the system with our criticism of the system's normally tilted operation.

This meant grasping the dialectic of race and rights and defining our goals in larger political terms. Reopening the case, however futile at first, enabled lawyers, organizers and students to educate others about the issues. Mainstream newscasters and journalists took interest; we spoke on radio and television, in classrooms, churches, homes, businesses. Education built litigation support and helped regalvanize a stalled Redress movement. Win or lose, expansive public litigation of the case served this larger strategic political aim. It also reciprocally infused the litigation with energy, money, and technical and spiritual support. Dozens of people, including many former internees, still suffering and previously silent about their incarceration, gave time and effort, making phone calls, stuffing envelopes, chasing down documents, spreading the word to other internees and the public. These efforts in turn reshaped the context of the case: from historical artifact to living injustice; from a focus on Japanese American loyalty to a focus on government responsibility for the imprisonment of 120,000 innocent Americans; from alleged Asian American guilt to a manifest failure of the legal process itself. The formal legal claims were due process and equal protection. But insights into the dialectic of race and civil rights were key to the ultimate political value of bringing the case.

So what does this all mean today, particularly for you students working to graduate, get a job, pay off loans, gain some experience and do justice? What does that mean for the roles of young (and older) lawyers, for scholar-teachers, for activists-organizers? Can we blur the lines between these sometimes seemingly separate either-or roles? Must we blur the lines to do justice at 2000? If so, how do we do this?

I'll respond first with some comments about the "how to," or process, and then about the "what," or substance.

SPEECH: Rethinking the Language of Race and Racism *

* This speech was given at the symposium on "Reconstructing Legal Paradigms: Synthesizing New Racial Theories and Legal Strategies for Social Justice," sponsored by the Asian Law Journal, Boalt Hall School of Law, January 29, 2000.

Michael Omi +

+ Associate Professor of Ethnic Studies and Acting Director of the Institute for the Study of Social Change at the University of California at Berkeley.

SUMMARY:

... Both legal scholars and activists have bemoaned the widening gap between theory and practice, called for a rethinking of the traditional civil rights paradigm, and wondered how to seize the "moral high ground" with respect to contemporary political debates about racial inequality. ... A new "common sense" understanding about the meaning of race in social and political life has been ascending - one that has dire implications for contesting persistent forms of racial inequality. ... The first theme of the new racial "common sense" posits that since there is no biological reality to the concept of race, it is therefore bereft of any social meaning. ... The second theme of the emergent racial "common sense" is the incessant call to "get beyond race" to "get over it." ... The dramatic influx of Asian and Latino immigrants has inspired a fundamental reconsideration of the dominant black/white paradigm of race in the United States. ... Neoconservatives, as attorney Victor Hwang of the Asian Law Caucus notes, have "taken our words" and have reframed the debate about race in support of "colorblind" remedies, policies, and practices. ... Such a language needs to emphasize the continuing importance of social concepts of race, an expansive definition of what is racist, and the necessity of confronting conflicts between communities of color. ...

I am convinced that the category "race" is so laden with contradictions that it no longer works in the way it used to, at least within the context of radical theories and practices. . . . That "race" no longer works as a focus of resistance organizing does not mean that racism has become obsolete and that we should discard it as a concept.

-Angela Y. Davis

TEXT:

The members of the Asian Law Journal are to be commended for organizing a symposium to interrogate the connections between emergent critical theories of race and the strategies and practices of social justice lawyering. Both legal scholars and activists have bemoaned the widening gap between theory and practice, called for a rethinking of the traditional civil rights paradigm, and wondered how to seize the "moral high ground" with respect to contemporary political debates about racial inequality. To contribute to this broader dialogue, I want to offer some brief observations about the conceptual language of race, racism, and anti-racism, and discern its meaning for the task at hand.

In January of 2000, Oakland Mayor Jerry Brown was asked by San Francisco Chronicle political columnists Phillip Matier and Andrew Ross about his downtown revitalization plans. The following dialogue ensued:

Matier & Ross: Some people say you're just trying to bring 10,000 white people into the downtown with all these high-priced live-work lofts.

Brown: How do you know what color they are going to be?

Matier & Ross: Come on, who do you think lives in these lofts?

Brown: Well, that's kind of a stigmatization of nonwhite people. There are African Americans, Chinese, Filipinos and there are white people - and by the way, race is just kind of silly anyway because 99 percent of our DNA is the same.

Matier & Ross: Maybe, but race is still a part of politics - especially local politics.

Brown: It's a fact that is often manipulated and used. Yes, there is a tradition and a history of racism and disadvantage and oppression. But having said all that, when do you move on? And when do you try and pull it all together?

When, indeed. I think that Mayor Brown's comments illustrate an emerging hegemonic understanding of race and racism in the post-civil rights era. A new "common sense" understanding about the meaning of race in social and political life has been ascending - one that has dire implications for contesting persistent forms of racial inequality.

The first theme of the new racial "common sense" posits that since there is no biological reality to the concept of race, it is therefore bereft of any social meaning. While biology-based arguments regarding race continue to surface, such notions have been roundly discredited in the sciences. This has led to the popular argument that race should not matter since "races" do not really exist. For over a year, the American Anthropological Association, in response to the President's Initiative on Race, engaged in a vigorous debate regarding whether the concept of race retains any meaning at all as an analytic category when biological definitions have been so thoroughly discredited. Having been challenged as a "scientific" category, race is now regarded as a questionable social category, a myth that perpetuates forms of false (racial) consciousness.

The second theme of the emergent racial "common sense" is the incessant call to "get beyond race" to "get over it." The use of the "race card" in politics, as well as in the courtroom, has been widely criticized from positions across the political spectrum. Some on the political right, like Dinesh D'Souza, have proclaimed the "end of racism," while condoning forms of "rational discrimination." Progressives such as Todd Gitlin, bemoaning the weakness of the American left, have accused identity based-social movements of "essentializing" race, and subverting the advancement of a universal political subject and unified political movement. Race is seen as a smokescreen, an apparition that detracts our collective attention from focusing on the "real" issues of class-based economic inequality or political disempowerment.

We now exist in a period where everybody (with the exception of self-proclaimed white supremacists) claims to be "anti-racist." That said, contemporary discourse is littered with confused and contradictory meanings regarding race and racism. Many whites, and some people of color, believe that the goals of the civil rights movement have been achieved, that racial discrimination is a thing of the past, and that we are now a truly "color-blind" society. Given this transformed political landscape, race-conscious remedies, policies, and practices - such as affirmative action, minority set-asides, redistricting strategies - are increasingly critiqued, contested, and dismantled. Recently, U.S. District Court Judge William Orrick rejected the San Francisco Unified School District's "diversity index" for assigning children to schools because it included race as one of four factors. Any hints of race consciousness are now suspiciously viewed as racist and impermissible in a good, just, and supposedly color-blind society.

The new racial "common sense" did not emerge full-blown, but has developed since the late-1970s with the rise of neoconservative thought. Well-supported through a network of foundations and think tanks, neoconservatives have profoundly re-articulated the language of race and racism of the civil rights period, widely disseminated their views through varied media outlets, and dramatically influenced both state and private-sector policies and practices. Neoconservative discourse has emphasized de jure discrimination, individual rights, and "colorblind" remedies. Racial inequalities are not seen as a structured social reality. The more radical elements of the civil rights vision are contained. Neoconservatives have captured the moral high ground with respect to race, and no sustained credible challenge has yet to emerge.

Indeed, I believe that in the present political moment we are witnessing the relative exhaustion of the traditional civil rights paradigm. In many institutional arenas, formal legal equality has been significantly achieved. Substantive racial inequality, however, remains, and in many cases, has deepened. There is a pressing need to both challenge the current appropriation of civil rights discourse in the guise of "colorblindness," and - at the same time - to rethink the capacity of state and other institutions to deal with persistent forms of racial inequality. In developing a truly effective anti-racist strategy and practice, we need to be attentive to how we deploy specific concepts of race and racism.

Let me briefly survey three topics in this regard: the issue of racial classification, the notion of racism as hate, and the question of addressing conflicts between communities of color.

SPEECH: Planet Asian America *

* This essay was the keynote address at the annual Asian Law Caucus dinner in March 2000.

Mari Matsuda +

+ Mari Matsuda is the co-author, with Charles Lawrence, of WE WON'T GO BACK, MAKING THE CASE FOR AFFIRMATIVE ACTION. She is a Professor of Law at Georgetown University School of Law. She thanks the founders and current staff of the Asian Law Caucus for inspiring these words. Special thanks to Hayley Macon, David Meyer, Dawn Veltman-Smith, Anna Selden for their excellent research and editorial assistance.

SUMMARY:

... Have you noticed that rooms full of Asians make some people nervous? What is Asian American anyway? What do a sansei lawyer and a Filipino yardman have in common? What do a South Asian dot-commer and an undocumented Thai garment worker have in common? How can an organization like the Asian Law Caucus purport to speak for all of them? And why should we treat this vast swath of humanity as one community, for any purpose, including racial remediation? And while we're asking that question, don't you think all this focus on racial identity is racist? I mean, aren't we all just human beings? ... Every law student reads the case of Yick Wo v. Hopkins, in which local governments attempted to keep Chinese from operating successful laundry businesses. ...

RECENT DEVELOPMENT: Beyond Black and White: Crime and Foreignness in the News

Anna Wang +

+ J.D. 2001, University of California, Berkeley, Boalt Hall School of Law; B.A.1998, University of California, Los Angeles. I would like to thank Professor Peter Kwan for suggesting this topic and providing comments on an earlier draft of this piece. I would also like to express my appreciation to the staff of the Asian Law Journal, especially Ritu Ahuja, Milton Chou, Min Lee, Luke Walker and Malcolm Yeung, for their insightful editing and earnest diligence. My deepest gratitude goes to Scott Chong for his loving encouragement, boundless patience, and astute advice. I am also very thankful for the unconditional love and support I receive from my parents, Bu-Chin and Rhoda Wang, and my brother, Dave. This piece is dedicated to the memory of Chanti Jyotsna Devi Prattipati.

SUMMARY:

... Lakireddy Bali Reddy, the Berkeley landlord who owned the building, was arrested and alleged to have smuggled Chanti Jyotsna Devi Prattipati (who was using the false name, Seetha Vemireddy), her 15-year-old younger sister, and a third, unrelated 20-year-old woman from India for sexual purposes as well as for cheap labor in his multimillion dollar "real estate empire." ... This may be at least partially due to Reddy's identity as a South Asian, which tends more towards being categorized as a foreigner than as a racial minority. ... I will conclude this recent development piece with a quick discussion of the legal resolution Reddy and his attorneys were able to plea bargain. ... Thus, it is critical to consider the reactions of the South Asian community to the intense focus on Reddy as a South Asian man charged with committing morally repugnant crimes. ... In this case, Reddy is alleged to have manipulated the H-1B visa program to staff his own restaurants and businesses with "indentured servants" from his home village. ... Perhaps, like many other Asian Americans, Reddy faced old-boys' networks and the glass ceiling in the corporate world. ... In agreeing to the plea bargain, Reddy avoided what could have been as much as 38 years in prison. ... The fate of the girls and other Indian immigrants Reddy brought to the United States is not known as the media has not reported on their status since the plea bargain. ...

TEXT:

PROLOGUE

Two months after a 17-year-old girl died from carbon monoxide poisoning in a Berkeley apartment building, the headlines of Bay Area newspapers exploded with one of the biggest news stories of the year in Northern California. Lakireddy Bali Reddy, the Berkeley landlord who owned the building, was arrested and alleged to have smuggled Chanti Jyotsna Devi Prattipati (who was using the false name, Seetha Vemireddy), her 15-year-old younger sister, and a third, unrelated 20-year-old woman from India for sexual purposes as well as for cheap labor in his multimillion dollar "real estate empire."

The minor news story of Prattipati's death two months earlier had sparked an inquiry by the local Berkeley High School newspaper staff, whose journalists questioned why the two teenage sisters were not enrolled in school. Following various leads, the two journalists discovered that the two young girls were probably indentured servants Reddy arranged to bring from India to bus tables at his restaurants and clean his apartment buildings.

The high school newspaper published its findings December 10, 1999, over a month before Reddy was arrested in late January and the rest of the Bay Area's media published front-page stories and aired broadcasts. The police and federal investigators had been following up on anonymous tips regarding the false identity of the girls and Reddy's connection to them before the high school newspaper was even published. Yet the high school newspaper had scooped every major news outlet in the Bay Area.

Once arrested, Reddy became the center of attention. The media revealed that the 62-year-old man first immigrated to the United States from India nearly 41 years ago to pursue his master's degree in Engineering from the University of California, Berkeley. Reddy's rise from engineer, to restaurant owner, to real estate magnate, whose personal wealth is now estimated at between $ 40-70 million, was also chronicled. He is one of the largest property owners in Berkeley and collects over $ 1 million per month in rent.

The focus of subsequent stories centered on more sensational aspects--particularly on allegations that Reddy had sexual relationships with the young girls from the time one was 12 and the other 14 years old. Startling developments like the discovery of the dead girl's pregnancy, a bottle of Viagra with Reddy's name on it in the girls' apartment, and Reddy's son's request for permission to have sex with one girl were revealed. Reddy became the subject of intense scrutiny by the media, federal prosecutors, and countless others who tuned in to every news update of the now notorious Berkeley landlord.

Reddy and four family members allegedly used their family's software company, Active Tech Solutions, to apply for H-1B visas that were used to bring in cheap manual labor rather than the "high-tech" labor the H-1B system was established to do. The H-1B visa system is a temporary visa designed for skilled immigrants and is primarily used by those with computer science and other technological backgrounds. However, using "false identities, fictitious jobs, and fictitious family relationships," the Reddys arranged for the entry of teenage girls and other individuals who painted, hauled trash, bused tables at the family's restaurants, and did other maintenance work at the family's real estate holdings. These workers labored for little or no pay, often just for room and board, much like indentured servants.

The Prattipati sisters are Dalits ("broken people"), otherwise known as Untouchables, a caste once ranked too low to even be included in the Hindu caste system. Their mother earns $ 1 a day carrying cement and water to construction workers. Thus, some claim that few of the "indentured servants" complain, because "even if he paid them $ 500 a month, that's still 20,000 rupees, it is more than what a clerk would get as a state secretary," said Amarnath Menon, editor at India Today magazine in Hyderabad, the state capital.

INTRODUCTION

In this recent development piece, I will briefly identify several issues raised by this story. Due to the constraints of this forum, I do not attempt to fully analyze the consequences of these phenomena, nor do I offer critical theoretical insight. Instead, I hope this piece serves to pique the interest of others who will follow up with more in-depth analyses on specific elements of this case.

Initially, this case caught my attention because the key figure is a man of color, specifically a South Asian immigrant. His race was indirectly implicated by the focus on his foreignness and immigrant background. The fact that this case involved violations of immigration law and allegations of sexual and labor exploitation both intrigued and shocked me. When one considers the overwhelmingly unbalanced power dynamic demonstrated by the extreme class/caste differences and the victims' complete dependence on Reddy, it makes for a particularly sensitive and complex case.

Reddy's identity as a South Asian immigrant and his economic status as a multi-millionaire landlord collided with the scandalous charges to present a sensational case that the media covered for over a year. This case is similar to the O.J. Simpson case--albeit on a much smaller, local scale--in terms of a prominent non-white "native son" charged with an abhorrent crime and sensationalistic media coverage.

Despite the parallels between the two cases, there is a significant difference in the treatment of a black man suspected of crime and a South Asian man. Race was explicitly addressed in the O.J. Simpson case whereas it was downplayed in the Reddy case in favor of national origin. This may be at least partially due to Reddy's identity as a South Asian, which tends more towards being categorized as a foreigner than as a racial minority. South Asians have generally been considered part of the "model minority" while at the same time retaining their status as "perpetual foreigners."

Much like the O.J. case, the Reddy case has also unearthed numerous pre-existent, yet infrequently (or unwillingly) addressed social issues. In Part III, I will explore some of the concerns that this case has raised within the South Asian community and the community response. In Part IV, I will examine the xenophobic immigration accusations raised by the Reddy case. And in Part V, I will explore the problematic role of the media in exploring not only this case but in its exploration of race-related cases in general. I will conclude this recent development piece with a quick discussion of the legal resolution Reddy and his attorneys were able to plea bargain.