APS Undergraduate Law Journal - Volume II

UCLA AAPI Undergraduate Law Journal

Volume II

Spring 2023

Compiled by the Asian American Pre-Law Society (APS)

UCLA AAPI UNDERGRADUATE LAW JOURNAL VOLUME II

Spring 2023

Karina Ngo Editor-in-Chief Mai Vu Editor-in-Chief

Iris Shi Managing Editor

Caroline Hsu Managing Editor | Writer Morgan Lee Managing Editor

Ellena Kim Writer Iris Kim Writer

Ananya Devanath Writer Meghna Nair Writer

UCLA AAPI Undergraduate Law Journal

About the Editorial Board

Mai Vu is a rising third-year double majoring in Economics and Public Affairs and minoring in Geospatial Information Systems and Technology. She is from Orange County, California (home to the best Vietnamese food in Southern California!). To this day, the legal profession remains one of the least diverse of all industries; in particular, AAPI lawyers have the highest attrition rates and experience limited progress in entering the top ranks of legal fields. Mai joined APS to become part of a community of like-minded AAPI peers and mentors with similar professional endeavors and cultural backgrounds. She hopes to shed light on disparities and emphasize the need for diversity in the legal system through the APS law journal.

Karina Ngo is a fourth-year Political Science and Public Affairs major at UCLA. While at UCLA, Karina has explored her interests in international relations and legislative affairs through on-campus involvement in the Journal on World Affairs, the AAPI Undergraduate Law Journal, the Office of the External Vice President’s Office, and the California Policy Lab. During her summers, she has pursued her passion for public service by helping develop local policies at the San Francisco Board of Supervisors and promoting diversity and inclusion at the U.S. Department of Agriculture. This fall, Karina will be learning more about the inner workings of the federal government in Washington D.C. through her participation in the University of California’s Quarter in Washington Program. This is her second year as Editor-in-Chief of the AAPI Undergraduate Law Journal.

Caroline Hsu is a rising senior from Las Vegas, Nevada, double majoring in Political Science and Asian American Studies and minoring in Film, Television, and Digital Media. Outside of UCLA APS, Caroline is a part of Bruin Political Review, USAC Elections Board, and UCLA Dear Asian Youth. Upon graduation from UCLA, Caroline plans to attend law school and pursue a career in intellectual property law or international law She is especially passionate about advocating for Asian American Studies in mainstream education, protecting creators rights, and hopes to utilize her abilities to help amplify the voices of her community

Iris Shi is a rising junior from New Jersey, double-majoring in Economics and Linguistics + Computer Science. She is dedicated to researching the policies and technologies that impact workers, education, and economic welfare. Upon graduating from UCLA, Iris plans to attend grad school, where she hopes to educate policymakers on emerging technologies that lack regulations. She is also passionate about traveling, learning new languages and cultures, and expanding her global perspective.

Morgan Lee is a rising senior from Orange County, majoring in Public Affairs with a minor in Global Studies. Her passion lies in legislative compliance, with particular interests in national security and maritime trade. Upon graduation, she plans to attend law school and pursue a career in governmental relations.

Editor ’s Note

Dear Readers,

We are pleased to share the second volume of the AAPI Pre-Law Society’s Undergraduate Law Journal. Throughout the 2022-2023 school year, our organization has undergone a period of growth and flourished with a new set of writers, managing editors, and executive board. Since our founding, the AAPI Pre-Law Society has aimed to create a voice for Asian Americans within the legal field, which has for far too long been ignored and forgotten. We continue to see attacks against our community, whether by questioning our existence in higher academia or through injustice and violence, but our community continues to stand strong together amidst adversity. Since 2020, our community has been victim to systemic issues, hate crimes, and continue to struggle back against the model minority myth that stains our identities and being. However, we see the community mobilizing now more than ever, with grassroots movements spreading across the country, and the youth who refuse to be silenced once more. In this issue, we cover a plethora of topics pertaining to the Asian American community. With this edition of the law journal, we aim to not speak for the AAPI community, but to amplify their voices.

We hope that you can join us in never looking back, and always forward as we move towards an equitable future for all.

In solidarity,

Mai Vu and Karina Ngo, Editors-in-Chief

Caroline Hsu, Iris Shi, and Morgan Lee, Managing Editors

Volume II - Spring 2023

Disingenuous Data: How the Failure to Disaggregate AAPI Populations Misleads

Resource Allocation

Ananya Devanath

ABSTRACT

The term “Asian American” is often synonymous with an income status above the national average. However, this term encompasses a group consisting of many different ethnic minorities, all undergoing their own social and economic issues. Due to a lack of disaggregated financial data, many federal aid and assistance programs fail to more accurately distribute available resources, and the impacts of this are prominently seen within the Asian American and Pacific Islander community. An effort to improve data collection processes and standards will be beneficial for helping qualifying AAPI populations to be recognized in consideration for these services and programs.

ABOUT THE AUTHOR

Ananya Devanath is a second-year Business Economics and Public Affairs student at the University of California, Los Angeles. She is a writer for the UCLA AAPI Undergraduate Law Journal. She additionally serves as President of Indian Classical Music at UCLA, Communications Director for Activism Through Policy at UCLA, and a writer and editor for The Bruin Review. Her interests include privacy law, environmental activism, and creative writing. After graduating from UCLA, Ananya plans to pursue a career in corporate law.

TABLE OF CONTENTS

I.BACKGROUND………………………………………………………………………….2

II.OVERVIEW OF AGGREGATED DATA IMPACTS ON INCOME INEQUALITY………………...2

III.EXAMINATION OF LEGAL FRAMEWORKS REGULATING CENSUS………………………..3

IV.ANALYSIS OF LEGAL PRECEDENT AND POTENTIAL POLICY SOLUTION…………………4

V.CONCLUSION…………………………………………………………………………...5

I. BACKGROUND

After disaggregating Asian Americans and Pacific Islanders by ethnicity, we find that AAPIs have the highest level of income disparity among any racial group in the United States, with certain AAPI populations falling well below the national income average and poverty levels. However, the standards imposed through U.S. Census and other Federal data collection services fail to account for the nuanced differences among AAPI ethnic groups. This leads to AAPI members lacking access to crucial opportunities, the creation of misinformed policies and programs, and the underutilization of critical financial aid resources in low-income AAPI communities. As examined in this paper, an alarmingly small proportion of eligible AAPI are enrolled in Federal Assistance programs. A better representation of Asian-American incomes is necessary to create more well-informed aid programs because it provides a better representation of the resources needed by specific communities.

This Article is structured in three parts. Part I will cover background information regarding measurements of income inequality, the importance of disaggregation, and the present-day underutilization of resources by AAPI immigrants. Part II will examine policy history and legal precedent of statistical measures and implemented policy, while Part III will outline impacts and potential solutions aiming for more comprehensive aid and assistance programs.

II. OVERVIEW OF AGGREGATED DATA IMPACTS ON INCOME INEQUALITY

Income inequality measures prevalent economic gaps and highlights stark differences between the rich and poor, often as a result of social dividers such as race and gender. Income inequality is measured through the U.S. Census, most commonly through either examining shares of aggregate household income received by each quintile or through the Gini index,1 a measure of statistical dispersion intended to represent the income inequality or the wealth inequality within a nation or a social group.

However, while the AAPI community consists of over 26 different nations of origin, the Census groups them into one. There is a drastic difference seen in the incomes of those who came to the United States as “skilled laborers” (applicable to many Indian, Chinese, and Japanese immigrants), and those who arrived as refugees (applicable to many Vietnamese and Cambodian immigrants). However, the Census does not account for any of these nuances. In failing to accurately reflect true differences between groups within the AAPI community, current data collection only preserves both nation-based and ethnic-based inequalities, using aggregated indicators such as median income, employment rate, and educational attainment.2 When creating

1 Income Inequality Metrics, U.S. CENSUS BUREAU (Nov. 22, 2021), https://www.census.gov/topics/incomepoverty/income-inequality/about/metrics.html.

2 Christian Edlagan & Kavya Vaghul, How Data Disaggregation Matters for Asian-Americans and Pacific Islanders, WASHINGTON CENTER FOR EQUITABLE GROWTH (Dec. 14, 2016), https://equitablegrowth.org/how-datadisaggregation-matters-for-asian-americans-and-pacific-islanders/

valuable Federal and State assistance programs, taking into account the income disparity within the AAPI community and its contributing factors is crucial. Currently, as a result of data with aggregated indicators, low-income and low-wealth communities are prevented from receiving the resources that they need.

For example, the United States Supplemental Nutrition Assistance Program, also known as SNAP, is one of the largest food assistance programs in the nation. However, a study by the UCLA Asian American Studies Center found that underutilization of SNAP services among AAPIs remains an issue. In 2019, only 16% of eligible AAPI households enrolled in the program, compared to the nationwide average of 27%,3 The study also discovered that some of the program enrollment barriers include transportation limitations, lack of in-language information, and burdensome application and renewal processes. Asian Americans have also been found to receive fewer retirement benefits, have lower homeownership, and owe more debt than White-Americans,4 none of which is reflected in the aggregated median income of the AAPI community as a whole.

III. EXAMINATION OF LEGAL FRAMEWORKS REGULATING CENSUS

The Census is a required part of the United States Constitution, outlined in Article I, Section 2 as a “decennial census of population for the purpose of the apportionment of the House of Representatives and federal tax burden.”5 Initially, the legal framework surrounding the census focused solely on the frequency of data collection, distribution of total persons in the United States, and income of individuals. However, the Act of May 1st, 1810 promoted the collection of demographic and economic information within the Census, asking for "an account of the several manufacturing establishments and manufactures within their several districts…”6 Today, demographic reports from the Census split results into the following categories7: Household Type, Race & Hispanic Origin of Householder, Age of Householder, Nativity of Holder (native vs. foreign-born), Region (of the United States), Metropolitan Statistical Area Status, and Educational Attainment of Householder. Regarding race and ethnicity data collection, Federal standards and the Census both allow a two-part question. The first asks the user to select their race from the options American Indian or Alaska Native, Asian, Black or African American, Native Hawaiian or Other Pacific Islander, and White. The second consists of a binary noting of “Hispanic or nonHispanic”.

3 Paul Ong, et al., California’s Low-Income Asian Americans and Calfresh, UCLA ASIAN AM. STUDIES CTR. (Nov. 2022), https://www.aasc.ucla.edu/aapipolicy/briefs_feb10/AAPI-Brief_SNAPGAP.pdf.

4 Asha Banerjee, Understanding Economic Disparities Within the AAPI Community, ECON. POLICY INST. (June 7, 2022), https://www.epi.org/blog/understanding-economic-disparities-within-the-aapi-community/

5 U.S. CONST art. 1, § 2.

6 Legislation 1789 - 1820, U.S. CENSUS BUREAU, https://www.census.gov/history/www/reference/legislation/legislation_1789_-_1820.html (last visited Mar. 2023).

7 Understanding Equity Through Census Bureau Data, U.S. CENSUS BUREAU, https://www.census.gov/library/stories/2021/09/understanding-equity-through-census-bureau-data.html (last visited Feb. 2023).

Present-day federal data collection and their standards are described in the Office of Management and Budget (OMB) Statistical Policy as well as the Federal Office of Diversity, Inclusion, and Civil Rights. These standards emphasize requirements for Federal principal statistical agencies engaging in data collection, including classifications of race and ethnicity.8 Most recently, Directive 159 of the OMB required a distinction between Asian and Native Hawaiian/Pacific Islander but has yet to require further specification of ethnicity.

According to the Federal Office of Diversity, Inclusion, and Civil Rights, data that is collected following these standards can be and is used for statistical reporting, general program administrative and grant reporting, and civil rights and other compliance reporting. They are used to inform aid programs and policies, and any deviation from these established standards requires special clearance from the OMB.10

IV. ANALYSIS OF LEGAL PRECEDENT AND POTENTIAL POLICY SOLUTIONS

There have been some efforts to improve racial equity by promoting better data collection, research, access, and disaggregation by the Biden-Harris Administration. A pursuant of the 2020 Executive Order 13985 (Advancing Racial Equity and Support for Underserved Communities

Through the Federal Government) outlines recommendations for more equitable data collection.11 These recommendations include building off of existing data collection systems, with many federal statistics agencies having the resources and ability to collect more detailed demographic information. The use of interagency connections described in this report can help minimize roadblocks to policy and allow for a smoother transition to more representative data.

Executive Order 13985 will provide a strong foundation to work towards a more equitable distribution of financial aid resources. These measures outlined above will include the implementation of existing federal data collection systems, which already have the ability to obtain detailed demographic information on items such as ethnicity. The use of existing organizations provides a practical and easily adaptable solution. Additionally, a key component to this measure of increased collection of data is ensuring that consumer privacy is being protected at all times. Members of underserved communities are more vulnerable to the abuse of the collected demographic information, so this pursuant encourages very limited sharing of this data.

8 Statistical Programs & Standards, THE WHITE HOUSE, https://www.whitehouse.gov/omb/information-regulatoryaffairs/statistical-programsstandards/#:~:text=OMB%20Statistical%20Policy%20Directives%20identify,coordination%20of%20Federal%20of ficial%20statistics (last visited Mar. 2023).

9 Standards for Federal Statistics and Administrative Reporting, CDC WONDER OFF OF MGMT AND BUDGET (May 12, 1977), https://wonder.cdc.gov/wonder/help/populations/bridged-race/directive15.html.

10 Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity, OFF OF DIVERSITY, INCLUSION AND CIVIL RTS., https://www.doi.gov/pmb/eeo/directives/race-data (last visited Feb. 2023).

11 A Vision for Equitable Data Recommendations from the Equitable Data Working Group, EXEC ORD ON ADVANCING RACIAL EQUITY AND SUPPORT FOR UNDERSERVED CMTYS. THROUGH THE FED. GOV’T (Jan. 20, 2021), https://www.whitehouse.gov/wp-content/uploads/2022/04/eo13985-vision-for-equitable-data.pdf

However, in addition to simply using existing systems to store increased demographic information, it would be beneficial to improve upon legislation surrounding the U.S. Census as well. As shown in the previous section, current Census legislation has not been updated to reflect discrepancies between different ethnic groups. Similar to Directive 15 of the OMB discussed above, a potential improvement that might be made towards fixing existing Census legislation would be to require methods of distinguishing different ethnic groups within the United States, including but not limited to those within the AAPI community.

Disaggregated data is key in ensuring that programs such as SNAP and other federally funded aid organizations are able to provide resources to those that need them. As examined previously, programs like SNAP are generally underutilized by qualifying AAPI residents. Therefore, ensuring that the Census measures which programs accurately reflect what resources are needed and by whom will lead to reduced barriers within the AAPI community.

V. CONCLUSION

After a thorough examination of Federally collected data and its impact on financial aid and assistance programs, it is clear that the U.S. Census’s failure to disaggregate AAPI populations has led to a decreased usage of crucial resources for low-income households, especially within the AAPI community. The best response to this issue would be to fix the root problem in data collection.

This solution is two-pronged. The first component is to adjust existing Federal statistical agencies, focusing on those with the capability for increased data collection. It is recommended that these organizations ethically broaden their scope to examine the ethnic backgrounds of individuals, especially in relation to their financial status and social class. Challenges that accompany this goal center around ensuring the protection of residents’ privacy, which might potentially be addressed by severely limiting data sharing.

The second component is to propose a directive aimed at adjusting the legislation regarding the U.S. Census. This directive would allow the user’s ethnicity to be recorded more specifically than the current “Hispanic or not Hispanic Standard.” Data obtained from that can be used to inform Federal and State assistance programs (such as SNAP).

Both of these strategies will help ensure better data collection, and by extension, betterinformed distributions of key resources.

“Anti-China” Rhetoric in U.S. Politics and the Butterfly Effect

Caroline Hsu

ABSTRACT

During and after the COVID-19 pandemic, Asian Americans became the scapegoat for the virus’s spread in the United States. U.S politicians have engaged in such rhetoric by directly blaming China as the root cause for the U.S’ public health, security, and economic crises, stirring the masses. Consequently, studies have shown that political rhetoric has heavily contributed towards anti-Asian sentiments and violence taken upon the AAPI community. Through the landmark Civil Rights Act of 1964, discrimination against one’s race, gender, and ethnicity is prohibited. However, notable U.S Supreme Court decisions such as Snyder v. Phelps (2011) and Wisconsin v. Mitchell (1993) have dangerously affirmed legal support of xenophobia and other hate crimes as protected expressions of freedom of speech or religious values. Though defendants of the First Amendment argue that such limitations infringe upon the First Amendment’s protection of the freedom of speech and goes against the Supreme Court’s ruling over Snyder v. Phelps, sinophobic rhetoric fails to satisfy the rules outlined in the ratified United Nations International Convention on the Elimination of Racial Discrimination (ICERD), which prohibits racial discrimination by all appropriate means. This article argues that U.S politicians and their political rhetoric have heavily contributed to the spike of anti-Asian hate over the past few years, and that federal legislation must put an end to such rhetoric for the protection of the AAPI community. Though the Supreme Court has affirmed protection of homophobic and xenophobic expressions and sentiments, their legal precedents still contradict a United Nations decision and prior legislation. Therefore, the U.S Congress must enforce stricter regulations on politicians’ public messages, both on and off of the campaign trail. The passage of congressional legislation that directly targets anti-Asian sentiments, both on and off the record, of politicians will discourage sinophobic political rhetoric and protect the Asian community from racially-motivated hate crimes.

ABOUT THE AUTHOR

Caroline Hsu is a rising senior from Las Vegas, Nevada, double majoring in Political Science and Asian American Studies and minoring in Film, Television, and Digital Media. She thanks her editor Morgan Lee for her continuous guidance throughout the writing and editing process. She also thanks the rest of the APS Law Journal editorial team and Professor Kelly Fong: the APS Law Journal editorial team, for their unwavering support and late night meetings; and Professor Fong, for her encouragement to get involved with the AAPI community and the Asian American Studies department. Upon graduation from UCLA, Caroline plans to attend law school and pursue a career in intellectual property law or international law.

TABLE OF CONTENTS

I. INTRODUCTION

In the height of the COVID-19 pandemic in 2020, the world that was once bustling with life came to a standstill. However, the foreclosures of businesses and public quarantine measures created a wave of Anti-Asian hate sentiments, as Asians, Asian Americans, and China as a whole were blamed by Americans for causing the outbreak. In 2021, an analysis done by the Center for the Study of Hate and Extremism at California State University, San Bernardino, revealed that hate crimes targeting Asians and Asian Americans rose nearly 150 percent in a mere year. However, this spike in anti-Asian hate crimes is not a coincidence. Our country’s political leaders have played a significant role in fueling the rise of Anti-Asian hate sentiments. For example, in 2020, Senator Ted Cruz (R-TX) proposed The Stopping Censorship, Restoring Integrity and Protecting Talkings (SCRIPT) Act on the Congress floor to force American film studios to choose between federal funding and marketing their films towards Chinese viewers and the Chinese box office. During his presidency, former President Donald Trump profusely labeled coronavirus as the “China” virus, and was notorious for using Anti-China or Anti-Asian rhetoric in his everyday language and speeches. Anti-China rhetoric that is produced at the federal level — - through public statements, electoral campaigns, and legislation — creates the butterfly effect of spiking and spreading sinophobia throughout the U.S. Examining instances of sinophobic actions and rhetoric promoted allows scholars to address the root causes of the spike of Anti-Asian hate in the past three years. This article is structured into three parts: the background, the legal precedents, and analysis and commentary.

As defined by the University of Surrey, sinophobia is the official terminology for the fear, intense dislike, or hatred of China and anything or anybody from China.1 In 2020, sinophobia surged and affected not only people of Chinese descent but also other East Asian communities, with a dramatic increase in verbal, physical, and online altercations targeting Asians and Asian Americans as the COVID-19 pandemic began to unfold. This spike is largely attributed to politicians who blamed China as the root cause for COVID-19, and the sinophobic rhetoric of associating China with COVID-19 has caused a rise of incidents against Asian Americans as the scapegoats of the pandemic.

Through sinophobia and anti-Asian rhetoric in U.S politics, Asians are perceived in three different ways: as public health risks, national security threats, and as economic competition. Since 2020, political rhetoric has continuously painted Asian Americans as public health risks.

The language used in hate incidents against Asian Americans mirrors and is parallel to the political rhetoric that blames Asian Americans for the virus. This is reflected with the ways U.S politicians have partaken in sinophobic rhetoric both on and off the record. In April 2020, the National Republican Senatorial Committee issued the “Corona Big Book,” which accused China of causing the pandemic, with statements such as “China did this” and “The Chinese Communist Party caused the pandemic.”2 Senator Tom Cotton (R-AR) went on to name China as an existing threat, not to just the U.S but the entire world, and compared the nation to Soviet Russia.

Beyond blaming Asian Americans and China for the pandemic, U.S politicians have actively called it China’s creation. In 2022, House of Representatives candidate Shelly Luther tweeted that “China created a virus that killed hundreds of thousands of Americans.”3 Similarly, Senate candidate Dr. Mehmet Oz tweeted that “CHINA GAVE US COVID.”4

U.S politicians have partaken in sinophobic rhetoric not just in office, but also on the campaign trail. During his 2022 midterm election campaign, Congressman Tim Ryan (D-OH) blamed China and the Chinese industry for the lack of opportunities on the job market for Ohioans with a television ad titled “One Word: China.” When criticized by fellow party members for his campaign that accused China for the economic crises, Ryan refused, stating that “it is us versus China,” and that he “has spent his entire career sounding the alarm on China.”5 Ryan is not the

1 Sinophobia (English Language Version), UNIV OF SURREY - REPORT + SUPPORT, https://reportandsupport.surrey.ac.uk/support/sinophobia-english-languageversion#:~:text=Sinophobia%20is%20the%20fear%2C%20intense,also%20other%20East%20Asian%20communiti es (last visited Mar. 28, 2023).

2 Corona Big Book, O'DONNELL & ASSOCS – STRATEGIC COMMC’NS (Apr. 17, 2020), https://static.politico.com/80/54/2f3219384e01833b0a0ddf95181c/corona-virus-big-book-4.17.20.pdf.

3 Shelly Luther. Twitter Post, (Jan. 9, 2022, 10:28 A.M.), https://twitter.com/ShelleyLuther/status/1480245083110793219/.

4 Mehmet Oz, Twitter Post, (Mar. 1, 2022, 6:46 P.M.), https://twitter.com/droz/status/1498852259974819841

5 Stephanie Akin, Facing Criticism, Tim Ryan Defends Anti-China AD in Ohio Senate Race, ROLL CALL (Apr. 7, 2022), https://rollcall.com/2022/04/04/facing-criticism-tim-ryan-defends-anti-china-ad-in-ohio-senate-race/

only politician to express such sentiments. For example, during his reelection campaign, former President Donald Trump started to term the COVID-19 virus as the “Kung flu.”6

Sinophobic actions have also been taken in the form of legislation proposed in Congress and opposition to legislation meant to protect Asian Americans. Beyond the previously mentioned SCRIPT Act proposed by Senator Cruz in 2020, other politicians have added fuel to the fire by opposing legislation that would protect Asian Americans. In 2021, U.S Representative Grace Meng (D-NY) and Senator Mazie Hirono (D-HI) introduced the COVID-19 Hate Crimes Act, which addressed hate crimes throughout the COVID-19 pandemic, with a particular emphasis on the increase in violence against Asian Americans.7 Though the act served as a protection measure for Asian Americans by streamlining hate crimes directed towards the AAPI community, 63 Representatives and one Senator voted against the COVID-19 Hate Crimes Act in protest that the act would prohibit and limit free speech.8

Though their proclamations may seem minimal at first glance, our politicians’ words carry weight and have grave consequences. The week after Trump started to call the COVID-19 virus as the “Chinese virus,” Twitter hashtags that expressed anti-Asian sentiment increased by 174 times, and every time Trump mentioned “China” and “COVID” in the same tweet, anti-Asian hate incidents and tweets increased by 8 percent.9 Furthermore, by being fed this anti-Asian narrative, 21 percent of Americans of all backgrounds believed that Asian Americans were at least partly responsible for the pandemic, and 2,161 incidents of anti-Asian hate crimes involved language that blamed the AAPI community for COVID-19 within in the span of two years, encompassing the beginning of the pandemic until the present day.10

Political rhetoric has not only fueled hate, but also acts of violence against the general AAPI community. Though sinophobia intends to only target those of Chinese descent, the entire AAPI community is also negatively impacted by those who are unable to differentiate between Asian communities. Through racialization, people associate members of an ethnicity as representations of their country. Furthermore, a study done by Stop AAPI Hate showed that those committing anti-Asian violent acts funneled their anti-Chinese rhetoric into simply an entire antiAsian label. In the 502 of 1,843 incident reports of racism against Asian Americans, it was uncovered that assailants mentioned the terms “China” or “Chinese” during the incidents of

6 Aggie J. Yellow, et al., The Blame Game: How Political Rhetoric Inflames Anti-Asian Scapegoating, STOP AAPI HATE (Aug. 2021), https://stopaapihate.org/wp-content/uploads/2021/08/Stop-AAPI-Hate-National-ReportFinal.pdf.

7 Sabrina Davis, An Overview of the Covid-19 Hate Crimes Act, HARRIS CNTY. ROBERT W. HAINSWORTH LAW

LIBRARY (May 27, 2021), https://www.harriscountylawlibrary.org/ex-libris-juris/2021/5/25/an-overview-of-thecovid-19-hate-crimes-act.

8 Devan Cole, Here Are the 63 Republicans Who Voted against the Anti-Asian Hate Crimes Bill | CNN Politics, CABLE NEWS NETWORK (May 21, 2021), https://www.cnn.com/2021/05/20/politics/republicans-voted-no-asianhate-crime-bill/index.html.

9 Yellow, et al., supra note 6.

10 Id

discrimination.11 Historically, the greater AAPI community has also suffered from sinophobia and anti-Asian sentiments. Anti-Japanese rhetoric was heavily prevalent throughout the 1980s. For example, in 1987, three members of Congress used a sledgehammer to smash a Toshiba stereo on the steps of the U.S Capitol in an attempt to protest the U.S’ trade deficit with Japan.12 In 1982, Vincent Chin, a Chinese-American man, was mistaken to be of Japanese descent and assaulted by individuals who were strongly influenced by the anti-Japanese rhetoric in regard to the failing American job market.

Asian Americans have been pinned as the scapegoat for the U.S’ many woes throughout the decades, but it has only since been exacerbated and radically increased due to current U.SChina relations and the COVID-19 pandemic. Though the pandemic is slowly coming to a close, Asian Americans still suffer from the narrative that is placed upon them by politicians. A national survey conducted by (NAME) estimated that at least three million Asian Americans have experienced hate incidents or hate crimes between March 2020 and March 2022, which was a year after the pandemic’s original start date.13

III. LEGAL PRECEDENTS

The current legislation prohibits violent acts committed against an individual based on their race, sexuality, gender, and / or ethnicity. More broadly, the Civil Rights Act of 1964 bars any form of discrimination against one’s race, color, religion, sex, or national origin. In regard to discrimination in the workforce or in the greater American society, the Civil Rights Act of 1964 is often cited as the overarching decision to protect individuals from discrimination of all kinds. Additionally, the U.S Supreme Court has frequently referred to the Civil Rights Act of 1964 as the deciding factor in their decision-making in discrimination cases, such as in Loving v. Virginia (1967) and Obergefell v. Hodges (2015). Though there has yet to be a Supreme Court case that revolves around anti-Asian sentiments and political rhetoric, the disparagement clause of the 1946 Lanham Act allows the U.S Patent & Trademark Office to refuse to register marks that “mya disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs or national symbols, or bring them into contempt or disrepute.”14 However, this ruling was reversed in the court case of Matal v. Tam (2017), in which an Asian American band attempted to “reclaim”

11 Id.

12 David Brock, The Theory and Practice of Japan-Bashing, 17 THE NAT’L INT., 29-40 (1989), https://www.jstor.org/stable/42896755

13 Ryan Vinh, Press Release: New Survey from Momentive and AAPI Data Offers Important Correctives on Hate in America, DATA BITS (Apr. 11, 2022), http://aapidata.com/blog/discrimination-survey-2022/.

14 Charles R. Macedo, et al., US Supreme Court Holds that the Disparagement Clause of the Lanham Act Is Unconstitutional, 12 JOURNAL OF INTELLECTUAL PROP LAW AND PRACTICE, 826-829 (Aug. 18, 2017), https://www.arelaw.com/publications/view/081817/print/#:~:text=The%20disparagement%20clause%20of%20the% 20Lanham%20Act%20provides%20that%20the,USC%20%C2%A7%201052(a)).

the racial slur through the trademark of their band name. The Court ruled that disparaging speech is not generally prohibited by the government.15

The U.S Supreme Court also differentiates and draws a line between discrimination and freedom of speech and expression. Though there has yet to be a Supreme Court case that determines precedence on anti-Asian sentiments and political rhetoric, several previous cases protect hate crime speech and rhetoric as freedom of speech and expression under the First Amendment. In Village of Skokie v. National Socialist Party of America (I11) (1978), the Supreme Court decided that a display of swastikas did not constitute “fighting words, and thus the enjoining of that speech was an unconstitutional prior restraint. This case was used as a precedent for future hate speech cases, wherein the feelings of the recipient of such hate speech are not valid reasons to prohibit speech.16 Specifically, the Court defined fighting words as words that do nothing more than inflict injury or incite immediate violence, and include the lewd and obscene, the profame, the libelous, and insulting. In the case of Chaplinsky v. New Hampshire (1942), the Court upheld that fighting words were unprotected speech, and that the First Amendment does not protect all types of speech. The Court refers to Chaplinsky v. New Hampshire as a precedent when examining hate crime cases that have to do with speech.17 The Court has also previously clarified their stance on hate crime rhetoric and speech with the case of Brandenburg v. Ohio (1969), where the U.S Supreme Court decided that speech advocating for illegal conduct is protected under the First Amendment unless the speech is likely to incite imminent and lawless action.18

It is clear to see how the Court had upheld and followed their decision in Village of Skokie v. National Socialist Party of America when examining later hate crime court cases. In R.A.V v. St. Paul (1992), Robert A. Viktora and friends burned a cross inside the yard of the Jones family, his black neighbors. Viktora was later arrested and charged under a bias-motivated crime ordinance by the city of St. Paul, Minnesota. However, the Supreme Court ruled that Viktora’s actions were protected under the First Amendment not because of its viewpoint discrimination, but because it was overly broad. Furthermore, the Court found that bias-motivated crime ordinances were unconstitutional under the First Amendment.19 The Court then took on the case of Wisconsin v. Mitchell (1993), wherein a group of young black men were influenced by the movie Mississippi Burning in their assault on a young white man. The Court upheld their decision from R.A.V v. St.

15 Niki Edmonds & Daniel Moubayed, Matal v. Tam: SCOTUS Rules Disparagement Clause in Lanham Act

Unconstitutional, JOLT DIGEST (Oct. 5, 2017), https://jolt.law.harvard.edu/digest/matal-v-tam.

16 Chris Demaske, Village of Skokie v. National Socialist Party of America (Ill) (1978), THE FIRST AMENDMENT

ENCYCLOPEDIA (2009), https://www.mtsu.edu/first-amendment/article/728/village-of-skokie-v-national-socialistparty-of-america-ill.

17 David Hudson, 80 Years Ago the Supreme Court Introduced ‘Fighting Words’, https://www.thefire.org/news/80years-ago-supreme-court-introduced-fightingwords#:~:text=These%20include%20the%20lewd%20and,immediate%20breach%20of%20the%20peace.

18 James L. Walker, Brandenburg v. Ohio (1969), THE FIRST AMENDMENT ENCYCLOPEDIA (2009), https://www.mtsu.edu/first-amendment/article/189/brandenburg-v-ohio.

19 David A. May, R.A.V. v. St. Paul (1992), THE FIRST AMENDMENT ENCYCLOPEDIA (2009), https://mtsu.edu/firstamendment/article/270/r-a-v-v-st-paul.

Paul, stating that restricting speech that targeted people based on race was unconstitutionally underinclusive under the First Amendment, and that there is a meaningful distinction between punishing the content of speech and using speech as evidence of motive in a crime. However, the Court also clarified that hate crime statues were not protected by the First Amendment, and made it illegal to use language or symbols targeting a group of people on the basis of race, color, or creed.20 The Supreme Court took this decision even further in Snyder v. Phelps (2011), wherein the family of a deceased LGBTQ+ Marine sued members of a church for picketing the funeral with homophobic signs with words such as “Thank God for dead soldiers” and “Fag troops.” The Court held that the First Amendment protects protests for intentionally inflicting emotional distress on the family of the deceased, and thus their speech was protected. Furthermore, the Court ruled that discriminatory speech made in a public place or a matter of public concern cannot be the basis of liability for a tort of emotional distress even if the speech has caused emotional distress or was perceived as offensive to a group or body.21

Though the Supreme Court generally upholds that hate speech is protected as part of the Freedom of Speech clause and the First Amendment, their rulings contradict currently enacted national and international law. Not only does hate speech contradict the Civil Rights Act of 1964 by inflicting discrimination based on one’s race or gender, but it defies the United Nations’ decision to adopt the International Convention on the Elimination of Racial Discrimination (ICERD) in 1965, which prohibits racial discrimination by all appropriate means. The Convention defined racial discrimination “as any distinction, exclusion, restriction, or preference based on race, color, descent, national origin, or ethnic origin, with the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing of human rights and fundamental freedoms in the political, economic, social, cultural, or any other field of public life.”22 Furthermore, any persons who identify with the following traits in the previously stated list are protected by the United Nations, and are protected from discrimination under ICERD. Upon joining the Convention in 1969, the U.S pledged to abide by the terms set by the ICERD, and affirmed its commitment to eliminate racial discrimination through all means, whether through legislation, policies, educational initiatives, and / or prosecutions. As the proclaimed leader of the free world, the U.S joining the ICERD essentially set the international tone for what its allies should follow, and took a definitive stance on what the country’s (or its leaders) stance was on equality. Thus, ICERD adopted a definite stance, declaring that prohibition against racial discrimination is absolute, and there is no circumstance under which derogation is allowed, and delays are not tolerated.23

20 Chris Demaske, Wisconsin v. Mitchell (1993), THE FIRST AMENDMENT ENCYCLOPEDIA (2009), https://www.mtsu.edu/first-amendment/article/426/wisconsin-v-mitchell.

21 Snyder v. Phelps, 131 S. Ct. 1207 (2011)

22 Gay McDougall, International Convention on the Elimination of All Forms of Racial Discrimination, AUDIOVISUAL LIBRARY OF INT’L LAW (Dec. 21, 1965), https://legal.un.org/avl/ha/cerd/cerd.html.

23 Id.

IV. ANALYSIS

When analyzing current legislation and the Court’s decisions, it is clear that both bodies contradict one another. On one hand, the U.S has pledged to prohibit and ban discrimination of all kinds both on the national and international level, whereas the Court has upheld that some forms of discrimination (such as hate speech) are protected under the Freedom of Speech clause and the First Amendment. However, I argue that the U.S must have a unified front against combatting discrimination and thus the racism that follows, and that the Supreme Court must reconsider their rulings of protecting hate speech under the First Amendment.

Hate crimes do not occur and appear out of thin air. Rather, they are fueled by ongoing narratives, portraying ethnic communities as the “perpetual other.” The average American views U.S politicians as role models, representatives, and leaders to listen and follow. With politicians blaming an ethnic community — in this case, the Chinese community — for the U.S’s problems, the average American citizen will see and continue to see Chinese Americans as the root cause of the country’s issues and will discriminate against them, consciously or not.

Furthermore, it is without a doubt that hate speech is a form of discrimination. By portraying a certain group of people as the scapegoat, they are subject to discrimination due to the perception that they actively contribute to societal challenges. As previously stated, due to racialization, people perceive members of an ethnic community as direct representatives of their “home” country. Furthermore, sinophobic rhetoric harms not just Chinese Americans, but inflicts harm upon the greater AAPI community. As seen with the example of Vincent Chin, the average American fails to recognize the difference between different Asian communities, and will conflate the different ethnicities. Thus, the AAPI community is harmed by sinophobic rhetoric and is plagued by such labeling.

As the proclaimed “leader of the free world,” the U.S must uphold its promise to the United Nations and ICERD to prohibit and ban discrimination without any excuses or delay that hate speech can and does lead to hate crimes, as shown by the parallels between politicians’ statements and the motivation behind AAPI hate crimes. Though U.S politicians are not explicitly using classic slurs or slang that target the AAPI community, their words still target and subject the AAPI community to increased risks of violence. U.S politicians need to first understand their positions as leaders of our country and evaluate the lasting impacts of their statements, and the Supreme Court needs to reconsider their decision of protecting hate speech by citing the First Amendment and the Freedom of Speech clause. The AAPI community has historically been labeled as a scapegoat for the nation’s problems, and it is evident that politicians’ sentiments and statements contribute to a butterfly effect that continues to haunt this community.

I also argue that the Supreme Court also must look beyond previous rulings when evaluating cases involving current and future hate crimes. Though the Court protects hate speech as it does not directly cause violent acts, it is evident that hate speech causes discrimination especially in the context of ethnic communities, and can lead to inciting imminent lawless action. Though a majority of the examples provided involve speech rather than actions wielded against

the AAPI community, it is clear that speech generates discrimination as seen in the public’s reactions that follow U.S politicians’ sinophobic accusations of China as the “enemy.” Furthermore, the Court’s decision to protect hate speech directly contradicts the Civil Rights Act of 1964, which prohibits discrimination in all shapes and forms, whether through race, gender, ethnicity, origin, et cetera. By going against the Civil Rights Act of 1964, the Court erases the work of activists that sacrificed their lives to ensure equality for all Americans, and furthermore goes against the U.S’ pledge to the United Nations to protect all from discrimination. For the past three years, the AAPI community has been blamed for many U.S. crises. In order to protect the community, we must address where the accusations come from. Thus, U.S. politicians must be held accountable for sinophobic rhetoric, and a significant step in doing so would include the Supreme Court abolishing their protection of such discrimination. Until then, and only then, the AAPI community will continue to struggle to receive fair and equal treatment in the U.S, and the greater American society will remain in standstill rather than progressing forward.

The Bamboo Ceiling: How the Model Minority Myth Affects Asian Americans in Workplace Leadership

Ellena Kim

ABSTRACT

Since the enactment of the Civil Rights Act in 1964, Asian Americans have been able to achieve higher rates of employment, especially in white collar, highly educated sectors. However, though Asian Americans have demonstrated considerable success in obtaining employment, their professional progression stalls soon afterwards, as Asian Americans comprise a disproportionately small portion of leadership roles in the workforce. This issue is perpetuated by employers who refuse to acknowledge such struggles based on stereotypes of Asian Americans as 'submissive' and unfit to assume leadership positions. This has led to Asian Americans having some of the lowest inclusion in leadership in sectors which they are otherwise prominent in. Though Article VII of the Civil Rights Act has greatly increased opportunities for Asian American workers, Huang v. Pai, 2019 demonstrates the difficulty they face in achieving upward mobility after initially being hired. Workplaces should reconsider their methods for evaluating the prospective choices for promotion, and reduce reliance on personality traits to predict future success in higher positions. This is done best by incorporating anonymity into employee evaluations, so that candidates are known solely by their skills and accomplishments.

ABOUT THE AUTHOR

Ellena Kim is a first year Political Science student with a concentration on International Relations. In addition to being a member of the Asian American Pacific Islander Prelaw Society, Ellena is a UCLA Alumni Scholar and competes with the Debate Union at UCLA. After finishing undergrad, she plans to attend law school and work in criminal justice as a public defender.

UCLA ASIAN AMERICAN PACIFIC ISLANDER UNDERGRADUATE LAW JOURNAL

I. HISTORICAL OVERVIEW

Asian Americans are the fastest growing racial group in the U.S., jumping 81 percent from 10.5 million to 18.9 million in population during the last two decades.1 In addition to significant population increase, 49 percent of Asian Americans aged 25 and older have attained a bachelor’s degree2. This makes Asian Americans one of the most highly educated demographics in the country, though this data does not capture the educational disparities within different groups in the AAPI community- a generalization commonly seen in the model minority myth. However, despite high rates of employment, Asian Americans fall behind other racial groups in regard to promotion to higher leadership positions.

Since the 1960s, the percentage of Asian Americans participating in the U.S. workforce has increased to 6 percent, marking a 1200 percent increase.3 This is an impressive number, considering that Asian Americans comprise just 7 percent of the nation’s population.4 The types of jobs or employment typically assumed by Asian Americans have also drastically changed during the course of their history in the U.S. From the first Chinese immigrants in the mid-1800s5 to the workers of the 1960s, Asian Americans primarily took on low-education, low-wage jobs such as agricultural laborers, railroad construction workers, and strike-breakers.6 However, following the passage of the Civil Rights Act of 1964, an upward trend began for the average wages for Asian Americans, as well as the number of Asian Americans employed in the workforce.7

1 Abby Budiman & Neil Ruiz, Key Facts About Asian Americans, a Diverse and Growing Population, PEW RSCH. CTR (Apr. 9, 2021), www.pewresearch.org/short-reads/2021/04/09/asian-americans-are-the-fastest-growing-racialor-ethnic-group-in-the-u-s/.

2 The Rise of Asian Americans, PEW RSCH. CTR. (June 19, 2012), www.pewresearch.org/socialtrends/2012/06/19/the-rise-of-asian-americans/.

3 Asian-Americans in the American Workforce, U.S. EQUAL EMP’T OPPORTUNITY COMM’N (July 2015), https://www.eeoc.gov/special-report/asian-americans-american-workforce.

4 Budiman & Ruiz, supra note 1.

5 Asian Americans Then and Now, ASIA SOCIETY, https://asiasociety.org/education/asian-americans-then-and-now (last visited Aug. 15, 2023).

6 Harriet Orcutt Duleep & Seth G. Sanders, The Economic Status of Asian Americans Before and After the Civil Rights Act, 6639 INST FOR THE STUDY OF LAB. 1, (June 23, 2012), http://dx.doi.org/10.2139/ssrn.2089668

7 Legal Highlight: The Civil Rights Act of 1964, U.S. DEP’T OF LAB , http://www.dol.gov/agencies/oasam/civilrights-center/statutes/civil-rights-act-of-1964 (last visited Aug. 15, 2023).

Today, Asian Americans are prominent members of many white collar professions, including the technology and healthcare industries. For example, 17 percent8 of practicing physicians and 23 percent of workers in computer and mathematics-related jobs are Asian American.9 However, they are not proportionally represented in leadership positions for these fields. While Asian Americans comprise 57 percent of the Silicon Valley workforce, only 11 percent of senior executive teams and 8.3 percent of board members are Asian American, with Asian American women making up less than one percent of either.10 According to a 2022 report published by Ascend, a non-profit that seeks to advance Pan-Asian professionals in the workplace, Asian Americans are the least likely racial group to be promoted to senior positions within Silicon Valley.11 Similarly, the National Institute of Health reported that while 20 percent of their employees identified as Asian American, only 6 percent were represented in the institute’s senior leadership.12 The American Bar Association has also published that Asian Americans were the least represented racial group in government, public interest, and clerkships, and had “the lowest ratio of partners to associates.”13

Asian Americans comprised 6.49 percent of civil service workers in Fiscal Year 2021. However, white men were found to be twice as likely to hold supervisor positions than Asian American men.14 Among Asian Americans, women and those without a college education were found to be even worse off for upward mobility in the civil service sector.

II. EFFECTS OF THE MODEL MINORITY MYTH ON LEADERSHIP INCLUSION

First, the model minority myth once again hurts Asian Americans by trivializing the challenges which are unique to them. The model minority myth is the social narrative which groups Asian Americans into a homogenous group of intelligent, moderately successful blank faces.15

8 Figure 18. Percentage of All Active Physicians by Race/Ethnicity, 2018, ASS’N OF

MED COLL (July 1, 2019), www.aamc.org/data-reports/workforce/interactive-data/figure-18-percentage-all-active-physicians-race/ethnicity2018.

9 Which Jobs Have the Highest Representation of Asian Americans?, USAFACTS (May 1, 2023), usafacts.org/articles/which-jobs-have-the-highest-representation-of-asian-americans/.

10 Buck Gee, et al., Glass Ceiling: Asian Americans Still Under-Represented in Silicon Valley Leadership, THE MERCURY NEWS (Aug. 13 2016), www.mercurynews.com/2013/04/24/glass-ceiling-asian-americans-still-underrepresented-in-silicon-valley-leadership/

11 Buck Gee & Denise Peck, The Illusion of Asian Success: Scant Progress for Minorities in Cracking the Glass Ceiling From 2007 - 2015, ASCEND (Nov. 1, 2022) static1.squarespace.com/static/5e8bce29f730fc7358d4bc35/t/5fdd1f1ae4a5c90ed63228c4/1608326939357/TheIllusion-of-Asian-Success.pdf?ref=charterworks.com.

12 Caroline Goon, et al., Examining the Asian American Leadership Gap and Inclusion Issues with Federal Employee Data: Recommendations for Inclusive Workforce Analytic Practices, 7 FRONTIERS IN RSCH. METRICS AND ANALYTICS 958750 (Sep. 29, 2022), www.ncbi.nlm.nih.gov/pmc/articles/PMC9563377/.

13 Annual Report, AM BAR FOUND (Mar. 2021), https://www.americanbarfoundation.org/wpcontent/uploads/2023/03/abf2021_final.pdf.

14 Pan Suk Kim & Gregory B. Lewis. Asian Americans in the Public Service: Success, Diversity, and Discrimination, 54 PUB ADMIN REVIEW, 285-90 (1994), https://doi.org/10.2307/976733

15 Sarah Blackburn, What Is the Model Minority Myth?, LEARNING FOR JUSTICE (Mar. 21, 2019), www.learningforjustice.org/magazine/what-is-the-model-minority-myth.

This narrative is used negatively to pit Asian Americans against other minority groups, and overlooks the issues which Asian Americans face as minorities. Due to strong employment rates of Asian Americansin the workforce, especially in the technology sector, there is little attention brought to the ways in which Asian Americans are falling behind in representation in leadership positions. This is well illustrated in a Silicon Valley company report cited by Harvard Business Review16 which considered Asian American men to be in the same “non-underrepresented” category as white men, although white workers in tech are several times more likely to achieve executive positions.11

Furthermore, Asian Americans have been historically labeled/stereotyped as followers rather than leaders. In a paper co-published by researchers from MIT, Columbia University, and the University of Michigan Ann-Arbor, it was concluded that a lack of assertiveness, which is a trait more often problematized in the West than in East Asian culture, was closely related to the underrepresentation of East Asians in leadership positions at S&P 500 companies.17 This study also noted a discrepancy between different Asian demographics, as South Asians were found to show more acceptance of assertiveness in their cultures. Due to this, South Asians achieved higher rates of leadership at these companies, with there being almost five times more South Asian American CEOs than East Asian Americans.

III. CIVIL RIGHTS ACT OF 1964

The Civil Rights Act of 1964 has served as the cornerstone in preventing racial discrimination in the workplace, among other protections. In particular, Title VII of the act provides protections for all aspects of employment, including the selection of individuals for promotions in a workplace.18 However, the Civil Rights Act falls short because East Asian culture, rather than Asians as a whole, greatly limits the selection of East Asians for leadership.

When examining East Asian businesses, it can be seen that cultural differences create a workplace culture19 much different from that of the West.20 For one thing, the U.S. is a highly individualistic nation, while Asian countries more commonly have a collectivistic mindset. Due to this, those of Asian backgrounds would be less inclined to emphasize their individual accomplishments or make attempts to challenge authority. Furthermore, differences between East

16 Buck Gee & Denise Peck, Asian Americans Are the Least Likely Group in the U.S. To Be Promoted to Management, HARVARD BUS. REVIEW (May 31, 2018), https://hbr.org/2018/05/asian-americans-are-the-least-likelygroup-in-the-u-s-to-be-promoted-to-management.

17 Jackson G. Lu, et al., Why East Asians but not South Asians Are Underrepresented in Leadership Positions in the United States, 117 PROCEEDINGS OF THE NAT’L ACAD OF SCI OF THE U.S. OF AM., 4590-4600 (Feb. 18, 2020), https://www.pnas.org/doi/full/10.1073/pnas.1918896117.

18 Title VII of the Civil Rights Act of 1964, U.S. EQUAL EMP’T OPPORTUNITY COMM’N, www.eeoc.gov/statutes/titlevii-civil-rights-act-1964 (last visited Aug. 15, 2023).

19 Differences in American & Chinese Business Customs. INT’L BUS. SEMINARS (May 8, 2018), https://ibstours.com/blog/differences-chinese-business-customs/.

20 Yasmin Sara Merchant, 5 Major Differences Between Japanese and American Workplaces, BUS INSIDER (Apr. 5, 2018), www.businessinsider.com/differences-between-japanese-and-american-work-culture-2018-3#americanworkplaces-focus-on-the-individual-japanese-workplaces-focus-on-the-group-3.

and South Asia concerning the prominence of collectivism could help explain the varying levels of assertiveness between different groups of Asian Americans.

Another limitation of Title VII can be seen in the case of Huang v. Pai, 2019.21 A primary reason for the dismissal of the Plaintiff’s case was the requirement that the Plaintiff seek Equal Employment Opportunity (EEO) counseling within 45 days of the initial occurrence of the grievance. Having less than three months to seek legal action is an incredibly narrow timeline, especially in cases where the discrimination has to do with subtle inequality in opportunity rather than overt harassment. This is why promotion discrimination is hardly represented by the US Equal Opportunity Commission, which has primarily taken on cases of explicit verbal abuse and use of racial slurs.

Though not about employment, the case Students for Fair Admissions v. President and Fellows of Harvard College is another case which concerns how stereotypes and even subconscious biases against Asian Americans could lead to other denials of opportunities. In fact, the Supreme Court ruled in June 2023 that affirmative action in college admissions was a violation of the Equal Protection Clause of the Fourteenth Amendment, which has been a key piece of legislation for opening up workplace opportunities to minorities such as Asian Americans. Furthermore, this case also concerns how subjective measures of personality traits affect opportunities for Asian Americans, as it was found that Asian Americans scored the lowest on personality among all applicant racial groups.22

IV. WIDER SOCIAL COMMENTARY

The underrepresentation of Asian Americans in professional leadership has further implications beyond the workplace. The perception of Asian Americans as unfit for leadership due to Asian cultural emphasis on harmony over individual assertiveness has disadvantaged Asian Americans seeking promotions, similar to how Asian American students have consistently scored lower on Harvard University’s personality ratings during the admissions process.23 These instances demonstrate the harm that the model minority myth inflicts upon Asian Americans in multiple aspects of their lives, in which their struggles as minorities are glossed over.

The findings that a personality trait, such as assertiveness, can have significant influence over an individual’s chances of professional advancement also suggests that evaluations of employee competence should be less reliant on subjective judgements made by superiors,who tend to be largely white, Instead, performance evaluations should be based solely on the work that the employee performs. One way in which this could be accomplished is with anonymous "employee evaluations", which could look something like listing an employee's contributions and

21 Huang v. Pai, 18 F. Supp. 2d 2969 (D.D.C. 2019).

22 Peter S. Arcidiacono, Students for Fair Admissions, Inc. v. Harvard, STUDENTS FOR FAIR ADMISSIONS (June 15, 2018), https://studentsfor.wpenginepowered.com/wp-content/uploads/2018/06/Doc-415-1-Arcidiacono-ExpertReport.pdf

23 Id.

accomplishments without any reference to their identity. Another possibility is to have frequent performance reviews from multiple members of an independent promotion committee. With these changes, promotions would be based on concrete achievements rather than individual perceptions of an employee’s traits.

V. CONCLUSION

The underrepresentation of Asian Americans in managerial positions is not a negligible issue, as it denies Asian American workers the full recognition of their contributions and skills. It is also just one additional consequence of the model minority myth, in which Asian Americans’ unique issues and diversity are overlooked. For a more equitable workplace that supports Asian American professionals, processes for evaluating and promoting employees should be made more objective, relying on measurable accomplishments rather than on perceived traits such as “assertiveness.”

Invisible Citizens: Legal Barriers Against Korean Amerasians

Iris (Doyeon) Kim

ABSTRACT

In this era of global connectivity, the intricacies of migration have raised vital discussions about identity, belonging, and rights. Among the many diverse groups caught in the crosshairs of these discussions are Korean Amerasians — a population born of Korean mothers and American military fathers during and following the Korean War. For decades, this group has experienced a dual dilemma of sociopolitical invisibility and marginalization in South Korea and the United States. This journal analyzes the historic marginalization of Korean Amerasians and discusses the strengths and limitations of the series of legislation passed by the U.S. Congress to ensure Amerasian immigration in the U.S. The article advocates for a holistic review system of U.S. immigration policies, borrowing from the narrative of Korean Amerasians.

ABOUT THE AUTHOR

Iris Kim is a fourth-year Political Science major at the University of California, Los Angeles. She serves as Public Relations Chair of AAPI Pre-Law Society. Iris’s research passions lie in the humanitarian aftermath of U.S. military intervention, especially in the Asia Pacific. Iris will be graduating from UCLA in June 2023, and she plans to pursue a career in the legal field.

TABLE OF CONTENTS

I. INTRODUCTION…………………………………………………………………….…22

II. BACKGROUND OF AMERASIANS IN KOREA…………………………………………...22

a. Camptowns or “Gijichon” in Korea and the Birth of Amerasians……………...22

b. U.S. Military’s Condoning of Camptowns 23

III. KOREAN AMERASIANS: STATELESS CITIZENS OF SOUTH KOREA AND THE U.S.……...25

a. Korean National Law Against Korean Amerasians…………..............................25

b. 1982 Amerasian Immigration Act .....26

IV.THE EVERLASTING IMPACT OF WAR: THE IMPORTANCE OF HOLISTIC REVIEW IN U.S.

I.INTRODUCTION

The legacy of the Korean War (1950-1953) left many indelible imprints on the sociopolitical landscapes of South Korea and the United States. However, one of the least examined consequences has been the impact on the offspring of the mixed unions between Korean women and American servicemen — the Korean Amerasians. For years, these individuals have grappled with complex issues of identity, nationality, and racial discrimination, yet their stories have remained largely untold and unaddressed by legal frameworks. It is estimated that there are 20,00040,000 Amerasian children born in Korea, although exact numbers cannot be determined, many of who struggled with issues of citizenship and legal recognition.1

Despite being the direct outcomes of military policies and the Cold War dynamics, Korean Amerasians have been subjected to a troubling legal ambiguity. In Korea, they were stigmatized and deprived of basic rights such as education and job opportunities. As they are considered the outcomes of the U.S. military presence in Korea and stigmatized as the symbol of tragedy following the Korean War, Amerasians were pushed away to live in communities near camptowns without the opportunity to merge into mainstream society. In the United States, their Amerasian identity did not automatically confer upon them the rights and privileges that come with American citizenship.

This article seeks to shed light on the lived experiences of Korean Amerasians and their navigation of the immigration system to the U.S. It highlights the gaps in U.S. legislation, the flaws in enforcement, and the systemic racial prejudices that have perpetuated their marginalized status. In order to contextualize the stigma imposed on U.S. immigration legislation, the article then provides a historical analysis of the social background that Amerasian children and their mothers faced in South Korea. In conclusion, the article stresses the importance of holistic immigration review to ensure equitable immigration policy in the U.S.

II.BACKGROUND OF AMERASIANS IN KOREA

A.Camptowns or “Gijichon” in Korea and the birth of Amerasians

The birth of Korean Amerasians can be understood against the backdrop of a significant socio-historical phenomenon in post-war Korea: the formation of camptowns, or "gijichon".

Gijichon were settlements that sprang up around U.S. military bases, characterized by a unique

1 Richard Halloran, Now -Grown Children of G. I.’s in Korea Are Bitter, N.Y. TIMES (June 2, 1976)

https://www.nytimes.com/1976/06/02/archives/nowgrown-children-of-gis-in-korea-are-bitter.html.

culture formed from the convergence of American military lifestyle and the local Korean community. The women in these communities, often referred to as "gijichon women," found themselves in precarious economic situations, leading many to engage in work as barmaids, domestic helpers, or sex workers to survive.2

The Korean government, while not explicitly endorsing the exploitation of gijichon women, turned a blind eye to the conditions within these communities. Rather than providing substantial support to these women or seeking alternative economic strategies, the government largely overlooked the exploitation and human rights abuses prevalent in camptowns. The government praised the women for earning ‘U.S. dollars,’ during times when Korea was desperately poor while prostitution was illegal under Korean law.3 Gijichon women testify that the South Korean government legitimized prostitution near U.S. military bases as something great because they were those who “protected South Korea from North Korean communist attacks” and encouraged it by providing regular STD checkups for the women who served in prostitution in camptowns.”4 In sum, gijichon and the women who worked in those areas were used as buffer zones to deter U.S. soldiers entering Korean society and protecting “respectable” Korean women and their ways of living.5

Consequently, this tacit condonation served to legitimize and perpetuate the struggles faced by gijichon women. Their marginalization was institutionalized, and they were left vulnerable to socioeconomic exploitation and stigmatization. Additionally, their children, the Korean Amerasians, were born into a society that was ambivalent, if not hostile, towards their existence. This lack of state intervention and support effectively compounded the hardships faced by gijichon women and their Amerasian children.

B. U.S. Military’s Condoning of Camptowns

Officially, the U.S. military restricts prostitution in their military bases, per the May Act enacted by Congress in 1941.6 Yet, the presence of gijichon women was largely tolerated, if not indirectly encouraged, by the U.S. military as a way of providing a “comfort system” for the stationed servicemen. The military often turned a blind eye to the relationships between servicemen and local women, despite the apparent violation of official conduct. The Bureau of

2 Choe Sang-hun, A Brutal Sex Trade Built for American Soldiers, N.Y. TIMES (May 2, 2023), https://www.nytimes.com/2023/05/02/world/asia/korea-us-comfort-women-sexual-slavery.html

3 Yoo Kyong Chang Ashley Rowland, Attorney: Korean Government Encouraged Prostitutes to Service US Troops, STARS AND STRIPES (Dec. 19, 2014), https://www.stripes.com/news/attorney-korean-government-encouragedprostitutes-to-service-us-troops-1.320106.

4 Katherine H.S. Moon, Military prostitution and the U.S. Military in Asia, THE ASIA-PAC JOURNAL: JAPAN FOCUS (Jan. 12, 2009), https://apjjf.org/-Katharine-H.S.-Moon/3019/article.html.

5 Na Young Lee. The Construction of Military Prostitution in South Korea During the U.S. Military Rule, 19451948, 33 FEMINIST STUDIES, 453-481 (2007), https://doi.org/10.2307/20459155.

6 Classification 18: May Act NAT’L ARCHIVES AND RECS ADMIN (Aug. 15, 2016), https://www.archives.gov/research/investigations/fbi/classifications/018-may-act.html

Public Health and Welfare of the US Army Military Government in Korea (USAMGIK) conducted exams on “entertaining girls” to ensure no disease while illicit massage businesses in camptowns prevailed.7 Korea’s elites later encouraged the U.S. military to take on STD examinations and treatment against Gijichon women to ensure there was no spread of disease in camptowns. In caution of disease, USAMGIK issued Ordinance No.72 that criminalized Korean women for “engaging in or eliciting sexual intercourse with any member of the occupying forces” while “suffering from a venereal disease in an infectious stage.”8 While the U.S. military covertly condoned prostitution in campsites, officially, the U.S. military has maintained policies that discourage fraternization with local women in host countries, reflecting a concern for both professional conduct and international relations. Further, Korean women were not considered legitimate “partners.”9 In January 1947, a circular from the headquarters of the U.S. Army Forces in Korea instructed all male servicemen to “refrain from association with Korean women,” forbidding relations with local girls other than through the lowest form of prostitution.

When it came to the offspring resulting from these relationships, the U.S. military's stance was largely one of denial and avoidance. Amerasian children were not recognized officially, and paternity claims were often dismissed or ignored, leaving these children in a state of legal and societal limbo.10 This negligence extended even to situations where the children's fathers were known and could be held accountable.11 The consequences of this inaction, coupled with the lack of systematic policies addressing such issues, have greatly contributed to the marginalization of Korean Amerasians and the continued struggle for their rights and recognition.

As interactions between American servicemen and Korean women increased, the number of Korean Amerasians grew. These children were born into a complex socio-cultural milieu that viewed them through the lenses of racial, societal, and legal biases. In Korean society, which places great emphasis on pure ethnic lineage, these children often faced severe discrimination and marginalization.12 Their mothers, the gijichon women, often bore the brunt of societal disdain due to their association with the U.S. military and perceived moral transgressions, further

7 Yuri W Doolan, Transpacific Camptowns: Korean Women, US Army Bases, and Military Prostitution in America, 38 JOURNAL OF AM ETHNIC HISTORY 33 (2019), https://static1.squarespace.com/static/5fc5465ba13a450bab1141b5/t/63233cd33a034b22b703475a/1663253715256/ Transpacific_Camptowns.pdf

8 An Jong-Chol, Modifying the Hague Convention? US Military Occupation of Korea and Japanese Religious Property in Korea, 1945–1948 21(1) ACTA KOREANA, 205-229, https://www.muse.jhu.edu/article/756456

9 Doolan, supra note 7.

10 Ted Engelmann, Who Are Our Fathers?, 94 (1) JOURNAL OF AM. HISTORY, 163–171 (June 1, 2007), https://doi.org/10.2307/25094785

11 Yeongja Kim, 아빠는

(Aug. 14, 2000), https://www.hani.co.kr/arti/legacy/legacy_general/L243991.html.

12 Sang-Hun Choe, Prejudice, Poverty Batter Korea’s Amerasians. LOS ANGELES TIMES (May 4, 1997), https://www.latimes.com/archives/la-xpm-1997-05-04-mn-55313-story.html.

complicating the lives and identities of their Amerasian offspring. The mixed-race child of gijichon women unintentionally “outed” their mother’s affiliation with camptowns, further challenging the lives of the mixed-race family.

III. KOREAN AMERASIANS: STATELESS CITIZENS OF SOUTH KOREA AND THE U.S.

A.Korean National Law Against Korean Amerasians

From a legal perspective, Korean Amerasians found themselves in a state of limbo. The Korean Nationality Law follows the principle of jus sanguinis, or right of blood, granting citizenship based on the nationality of the parents rather than the place of birth.13 Moreover, Korean law has traditionally maintained a patriarchal family registry system known as “hoju,” which traditionally allows only fathers to register their children officially.14 This patriarchal system posed a significant obstacle for Korean Amerasians, particularly those born from informal or transient relationships with U.S. servicemen. If their American fathers did not acknowledge them, and their mothers did not register them, many of these children were left without any legal recognition of their existence.

Though exact numbers are hard to come by, it is estimated that thousands of Amerasians were left stateless or without proper legal status in the decades following the Korean War. The Korean National Human Rights Commission in 2006 suggested that many Amerasian children were either not registered at birth or were registered late, leading to substantial difficulties in acquiring legal status later on.15 Moreover, Pearl S. Buck Foundation in 1998 found that 70% of surveyed Amerasian children in Korea were not registered by their mothers, leading to issues of statelessness and social marginalization.

In 1998, the Korean government began taking steps to address this, amending the Nationality Act to allow Korean mothers to pass their citizenship to their children.16 While the Korean Nationality Act was amended in 1998 to allow Korean mothers to pass their citizenship to their children, the amendment did not automatically confer citizenship to those who were not previously registered or those born before the amendment. This left a significant number of Korean Amerasians stateless, caught between their mother’s homeland and a country they have never known, further complicating their identity struggles and limiting their access to social services and rights.

Further efforts have been made in recent years to address these historical injustices. For

13 Introduction to Korean Nationality Laws, CONSULATE GEN. OF THE REPUBLIC OF KOREA IN HOUSTON, https://overseas.mofa.go.kr/us-houston-en/index.do (last visited Aug. 16, 2023).

14 C. H. Cho, [Law Talk] Abolishing the Hoju System, THE KOREA HERALD, (Apr. 6, 2010), https://www.koreaherald.com/view.php?ud=20050323000033.

15 Kim, supra note 11.

16 일부개정, 법률 제18978호, (Sep. 15, 2022), https://www.law.go.kr/%EB%B2%95%EB%A0%B9/%EA%B5%AD%EC%A0%81%EB%B2%95

instance, in 2021, the Korean Ministry of Justice proposed additional amendments to the Nationality Act, aimed at easing citizenship acquisition for those born in Korea to a foreign parent.17 While these changes are certainly positive strides forward, they also underscore the longstanding and ongoing struggles faced by Korean Amerasians regarding their legal status in their mother’s homeland.

As such, despite being born on Korean soil, many Korean Amerasians were not recognized as citizens if they could not prove their fathers were Korean. On the other hand, Amerasian children were not automatically recognized as U.S. citizens without legitimate claims to their American fathers, leaving them in a state of citizenship ambiguity. The intersectionality of racial and social prejudice, coupled with legal uncertainties, significantly impacted the lives and identities of Korean Amerasians.

B.1982 Amerasian Immigration Act

The discrimination and ostracism faced by Korean Amerasians in South Korea have been significant factors driving their desire to immigrate to the United States. The search for acceptance, identity, and better opportunities has led many to seek a new life in the country of their fathers.18 In response to the advocacy and growing awareness by the Amerasian communities in the 1980s, the U.S. Congress passed the 1982 Amerasian Immigration Act that allowed entry of Amerasians to the U.S. with conditions that had applied for their applications.

Enacted by Congress on October 22, 1982, the Amerasian Immigration Act allowed persons born in Korea, Vietnam, Laos, Kampuchea (Cambodia), or Thailand after December 31, 1950, and before October 22, 1982, and fathered by a U.S. citizen, to seek admission to the United States and adjustment of status to lawful permanent resident (LPR).19 Although the legislation was paramount in paving the way for Amerasian immigration, there were a number of limitations. The Act’s timing restrictions challenged Amerasians seeking immigration. With the cutoff date set at October 22, 1982, individuals born after this date were deemed ineligible for the immigration benefits provided by the Act. This cutoff arbitrarily excluded a significant number of Amerasians who continued to face difficulties in their home countries.

Next, the Act’s implementation was hampered by documentation challenges. Proving paternity and establishing eligibility was arduous, particularly given the circumstances surrounding the children's births and the passage of time. Many Amerasians had little to no

17 S. Cha, Proposed changes to s.korea citizenship law face anti-china headwinds ㄴ REUTERS (June 16, 2021), https://www.reuters.com/world/asia-pacific/proposed-changes-skorea-citizenship-law-face-anti-china-headwinds2021-06-16/.

18

우리곁을떠난‘그들’ - 혼혈인의미국이주 세계한민족문화대전

, http://www.okpedia.kr/Contents/ContentsView?contentsId=GC95100010&localCode=naw&menuGbn=special (last visited Aug 16., 2023).

19 Chapter 9 - Amerasian Immigrants, USCIS (May 19, 2021), https://www.uscis.gov/policy-manual/volume-7-partp-chapter9#:~:text=Congress%20enacted%20the%20Amerasian%20Act,to%20lawful%20permanent%20resident%20(LPR).

knowledge of their birth fathers who had returned to the United States after their military duty was completed in the Asia Pacific. This resulted in many eligible individuals facing obstacles in accessing the benefits they were entitled to.

Furthermore, the Act did not adequately address the issue of family separation. While it allowed for the immigration of Amerasian children and their accompanying family members, it failed to consider situations in which the mothers of Amerasian children were not U.S. citizens. The act did not ensure a pathway for the families to move to the U.S. Consequently, this limitation often led to the unfortunate separation of families, causing emotional distress and hindering the Act's intended purpose of family reunification.

The Act provided limited support beyond initial assistance for resettlement. While the U.S. government covered the costs of transportation and offered initial support for integration, it did not guarantee ongoing support or address the unique challenges that Amerasian individuals and families might face upon arrival in the United States. This lack of sustained assistance hindered the successful integration and long-term well-being of Amerasians. Many Amerasians faced differences in cultures and economic barriers, which left them vulnerable to joining gangs for their survival.20

Finally, the Act’s limited scope presented a significant constraint. Focused primarily on Amerasian children from Korea, Vietnam, Laos, Cambodia, and Thailand, it failed to address the needs of individuals from other countries affected by the Vietnam War or other conflicts involving the United States. This exclusion left many Amerasians without avenues for immigration or assistance. Although Congress passed the Amerasian Homecoming Act of 1987 was passed, the Act was effectively limited to Vietnamese Amerasians.21

IV. THE EVERLASTING IMPACT OF WAR: THE IMPORTANCE OF HOLISTIC REVIEW IN U.S. IMMIGRATION

The experiences of Korean Amerasians provides valuable insight into how immigration and nationality laws should factor humanitarian aspects in their application process. The 1982 Amerasian Immigration Act neglected the societal background of Amerasians that had limited access to documents that related to their ties to the U.S. It disregarded the impact of the legislation after the Amerasians were granted immigration to the U.S. By taking a comprehensive and empathetic approach, holistic review ensures that the immigration process accounts for individual backgrounds, addresses possible challenges, and provides a fair opportunity for immigrants to pursue their dreams in the U.S. post immigration. Observing the limitations of the Korean Nationality Act, a holistic, humanitarian approach can overcome the limitations of a discriminatory

20 David Lamb, Children of the Vietnam War, SMITHSONIAN MAGAZINE (June 1, 2009), https://www.smithsonianmag.com/travel/children-of-the-vietnam-war-131207347/.

21 Chapter 9 - Amerasian Immigrants, supra note 19.

history of a nation’s legislation and provide protection against the most marginalized community in a state.

The significance of holistic review lies in its ability to address the nuanced experiences and complexities of those seeking immigration. It recognizes the struggles they face in terms of identity and social background. By considering individual stories and challenges, holistic review acknowledges the resilience, determination, and barriers certain communities, such as Korean Amerasians, have overcome. It promotes a more equitable and just immigration system that ensures equal opportunities for immigrants post-immigration. Ultimately, holistic review enables a more compassionate and inclusive approach that upholds the principles of fairness and justice. By retelling the stories and narrative of Korean Amerasians, this article argues for a more holistic approach to the nationality and immigration review.

V. CONCLUSION

This article analyzed the lived experiences of Korean Amerasians in Korea and their navigation of immigration to the U.S. It highlights the gaps in the Korean Nationality Law and the 1982 Amerasian Immigration Act and the flaws in its enforcement, and the systemic racial prejudices that have perpetuated Amerasian’s marginalized status. Through sharing the experiences of Korean Amerasians, the article stresses the importance of a holistic immigration review.

The Perpetual Other: “Birth Tourism” and the Implications of Amending Birthright Citizenship for Asian Americans

Meghna Nair

ABSTRACT

In recent years, the practice of “birth tourism” has risen to the forefront of debates regarding birthright citizenship in the United States. Birth tourism, also known as “maternity tourism,” occurs when a pregnant individual travels to a foreign country with the intention of giving birth in that country and acquiring that country’s citizenship for their child. Though birth tourism is technically legal, community backlash to “maternity hotel” scandals in majority-Asian enclaves of Southern California has both characterized birth tourism as a flagrant violation of American immigration laws and heavily associated the practice with the AAPI community. Nativist, or antiimmigrant, politicians and activists have weaponized this association to endorse xenophobic rhetoric and delegitimize the legal foundations of the jus soli citizenship principle. To curtail birth tourism, they promote the complete abolishment of jus soli, insisting that it should be replaced by the jus sanguinis citizenship principle. This article argues that the abolishment of jus soli should not be considered a viable legal solution to birth tourism because it reinforces the perceived incompatibility of Asians and American citizenship, a racist stereotype known as the “perpetual foreigner” trope, which is deeply-rooted in US history.

ABOUT THE AUTHOR

Meghna Nair is a rising sophomore pursuing a double major in Public Affairs and Economics. Aside from UCLA APS, Meghna is a member of UCLA’s nationally-ranked Mock Trial program, an avid writer for UCLA’s Dear Asian Youth chapter, and a Co-Host for Dear Asian Girl, a podcast for Asian girls by Asian girls. Post-graduation, Meghna aspires to attend law school and plans to specialize in public interest law. She is especially passionate about children’s

experiences with the law, particularly with regard to juvenile justice, and hopes to utilize her abilities to advocate on their behalf in the future.

I. INTRODUCTION

Birth tourism is the practice where an individual travels to a different country with the sole purpose of giving birth, so that their child is able to acquire that country’s citizenship.1 It typically occurs in countries such as the United States, which adhere to the jus soli citizenship principle. Jus soli is the constitutional principle underlying birth tourism because it allows individuals born within the US’s borders to be immediately eligible for citizenship. However, those against birth tourism often argue that the country should practice jus sanguinis, which only grants birthright citizenship to those whose parents already possess citizenship. In the US, opponents of birth tourism argue that replacing jus soli with jus sanguinis would effectively counter the “illegitimate” claims of citizenship made by the American-born children of birth tourists. Though those against birth tourism argue for such a change, the abolishment of jus soli would heavily impact minority communities in the US, who have endured exclusion from citizenship for nearly a century, further exacerbating contemporary discrimination. A prime example of this is how replacing jus soli with jus sanguinis bolsters the “perpetual other” trope, a xenophobic stereotype which designates a group or community as foreigners based on race and ethnicity. Asian Americans are particularly susceptible to this mischaracterization due to the legacies of discriminatory legislation like the Chinese Exclusion Act, which prohibited Chinese immigrants from gaining citizenship. If the US chose to replace jus soli with jus sanguinis, it would deprive the future children of immigrants of a legitimate pathway to citizenship and reinforce the idea that the descendants of immigrants are

1 Sean H. Wang, Fetal Citizens? Birthright Citizenship, Reproductive Futurism, and the “Panic” Over Chinese Birth Tourism in Southern California, 35 ENV’T AND PLANNING D: SOC’Y AND SPACE (Nov. 21, 2016), https://journals.sagepub.com/doi/full/10.1177/0263775816679832.

perpetual foreigners, even if their families have lived in the US for generations. Asian Americans would therefore continue to be socially isolated and viewed as invaders rather than citizens.2

II.BACKGROUND

Asian immigration to the United States began in the mid-1800s when laborers and merchants, primarily from China and Japan, arrived by the thousands to support the construction of the Transcontinental Railroad and to open up small businesses throughout California. This dramatic influx of Asian immigrants fostered anxiety among white Americans, who feared they were losing job opportunities to foreigners. In an effort to assuage “native-born Americans’” concerns, the U.S. Congress passed the Chinese Exclusion Act of 1882, which prohibited the immigration of all Chinese individuals to the United States, and prevented the Chinese immigrants already in the United States from gaining American citizenship.3 However, discrimination against Asian Americans did not stop there. The restrictions detailed in the Chinese Exclusion Act carried over into the Immigration Act of 1917, which established an “Asiatic Barred Zone” wherein over 500 million people from different regions of Asia were all forbidden from entering the United States solely because of their race and national origin.4 Later on, the Johnson-Reed Act of 1924 cemented this prejudiced approach to immigration by creating a strict quota system that placed few limitations on immigrants from the West, while essentially eliminating Asian immigration to the US.5 Thus, while white European immigrants could access naturalization and citizenship, Asian immigrants were excluded for the first half of the twentieth century. Opposition to Asian immigration to the US grew in the early 2010s due to several “maternity hotel” scandals in Arcadia and Chino Hills, California in 2012. Maternity hotels are temporary residences where birth tourists can receive food, shelter, and healthcare during their pregnancies.6 Although birth tourism is not illegal, the discovery of the maternity hotels in Arcadia and Chino Hills led to local police departments experiencing surges in inaccurate birth tourism reports.7 People began to racially profile pregnant Asian women they saw just walking down the street as birth tourists, even though many of them had spent their entire lives in Southern California.8

The residents of Chino Hills, in particular, contributed to the anti-birth tourism movement by establishing Not in Chino Hills! (NICH), a lobbying group dedicated to protesting against what they interpret as an insidious “immigration loophole,” in early 2013.9 NICH members believed

2 Alex Altman, Jeb Bush Bungles 'Anchor Baby' Explanation, TIME (Aug. 24, 2015, 5:02 PM), https://time.com/4008888/jeb-bush-anchor-baby-asians/.

3 First Arrivals, First Reactions, ASIAN AND PAC. ISLANDER AMS. IN CONG., https://history.house.gov/ Exhibitions-and-Publications/APA/Historical-Essays/Exclusion-and-Empire/First-Arrivals/ (last visited Aug. 16, 2023)

4 Id.

5 Id.

6 Wang, supra note 1.

7 Id.

8 Id.

9 Id.

that because birth tourism granted jus soli birthright citizenship to the children of birth tourists, it essentially amounted to illegal immigration. They argued that these pregnant women were exploiting the U.S.’s generous jus soli citizenship laws by trying to derive their own citizenship through their children’s natural-born citizenship. However, this argument fuels the same toxic nativist sentiment which inspired historical, xenophobic legislation such as the Chinese Exclusion Act.10

To eliminate the practice of birth tourism, the NICH seeks to abolish the principle of jus soli citizenship. To achieve this goal, the organization’s major lobbying strategy has been to shed doubt on the legality of jus soli by characterizing birth tourism as a criminal act that exploits the U.S. immigration and welfare systems.11 However, the NICH’s exact stance on the matter has been noticeably inconsistent; the organization has only promoted the abolishment of jus soli when it relates to pregnant women they “already deemed unfit” to be mothers of U.S. citizens “based on racialized criteria,” specifically Asian immigrant women.12 By cherry-picking the situations in which jus soli should and should not apply, the NICH threatens to reintroduce discriminatory policies reminiscent of the Chinese Exclusion Act which could potentially delegitimize Asian American citizenship.

III.LEGAL PRECEDENTS

Over the course of US history, several legal precedents and laws have greatly influenced naturalization criteria and what it means to be an American citizen.

A.Ozawa v. United States (1922)

In Ozawa v. United States, a Japanese American man, Takao Ozawa, challenged the prevailing citizenship law, which permitted only “free white persons” and people of “African descent” to naturalize.13 He argued that he qualified as a “free white person” due to his pale skin color and was therefore entitled to naturalization rights. However, the Supreme Court rejected this claim, explaining that the description “free white persons” specifically referred to members of the Caucasian race, which did not include the Japanese. Thus, Ozawa was denied the right to naturalize solely based on his race.

B.United States v. Bhagat Singh Thind (1923)

In United States v. Bhagat Singh Thind, Singh Thind, an Indian American man, tried to use the Court’s opinion in Ozawa v. United States to procure citizenship rights for himself. Since the Court established in Ozawa that being white meant being a part of the Caucasian race, Singh Thind asserted that his origins in Northwest India, a part of the country close to the Caucasus mountains from which the term Caucasian derives its meaning, classified him as Caucasian.14 The Supreme

10 Id.

11 Id.

12 Id.

13 Takao Ozawa v. United States, 260 U.S. 178 (U.S. 1922)

14 United States v. Bhagat Singh Thind, 261 U.S. 204 (U.S. 1923)

Court denied this claim as well, declaring that the term “Caucasian” referred only to white individuals. This circular reasoning, that white means Caucasian but Caucasian means white, hindered Asians of all ethnicities from successfully suing for their citizenship rights.

C.US v. Wong Kim Ark (1898)

In US v. Wong Kim Ark, Wong Kim Ark, a man born in San Francisco to Chinese immigrants, was denied reentry into the United States after traveling to China on the grounds that he was not a U.S. citizen and was thus subject to the immigration restrictions imposed by the Chinese Exclusion Act. However, the Supreme Court disagreed with this assertion. Citing the jus soli birthright citizenship principle enshrined in the Fourteenth Amendment, Associate Justice Horace Gray delivered the majority opinion of the Court, explaining that Kim Ark was indeed a U.S. citizen by virtue of the fact that he was born on U.S. soil.15 The opposition argued that this rule did not apply to Kim Ark because his immigrant parents were still subjects of the Chinese emperor, thereby violating the “subject to the jurisdiction of” clause of the jus soli principle. The Court, however, reasoned that anyone who made the United States their permanent home was “within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States,” meaning that the American-born children of foreign residents of the U.S. were as entitled to U.S. citizenship as the children of native-born residents.16 US v. Wong Kim Ark thus delineated the true extent of jus soli, representing the first time the Supreme Court of the United States evaluated the citizenship clause as it related to the child of Asian immigrants. Their ruling in this case officially established a national standard that extended citizenship rights to all American-born children of foreigners in the U.S. Asians would no longer be entirely excluded from American citizenship.

D.The Birthright Citizenship Act (2009)

The first iteration of the Birthright Citizenship Act was introduced to the congressional floor in 2009 by representative Nathan Deal of Georgia. If implemented, the legislation would shift US citizenship law from jus soli to jus sanguinis, in which children born in the US would automatically gain American citizenship only if at least one of their parents is a US citizen, a legal permanent resident, or an active member of the US military. Though it failed to pass in 2009, the Birthright Citizenship Act has consistently reappeared in subsequent congressional cycles, the most recent one being the 2021-2022 cycle with the 117th Congress (H.R.140). If passed, the Birthright Citizenship Act has the potential to create a “self-perpetuating class of unauthorized immigrants” because if the children of unauthorized immigrants already in the US are unable to claim American citizenship, then their children’s children and their grandchildren’s children would similarly be unable to claim American citizenship.17 A critical problem thus arises as this pattern

15 United States v. Wong Kim Ark, 169 U.S. 649 (U.S. 1898)

16 Id.

17 Mehera Nori, Asian/American/Alien: Birth Tourism, the Racialization of Asians, and the Identity of the American Citizen, 27 HASTINGS WOMEN’S LAW JOURNAL 87 (Jan. 1, 2016), https://repository.uclawsf.edu/cgi/viewcontent.cgi?article=1367&context=hwlj.

continues into subsequent generations who are prohibited from gaining American citizenship but who are also too far removed from their ancestral nation to claim citizenship there. Abolishing jus soli would therefore create a “permanent underclass” of stateless people who cannot claim citizenship in their ancestors’ home country nor their country of residence.18

IV. ANALYSIS

The controversy surrounding birthright citizenship in the United States is further complicated by the “perpetual other” trope, the prevalent stereotype that excludes ethnic minorities from the American identity. Under the “perpetual other” trope, Asians, both foreign-born and native-born, are considered quintessentially un-American because of differences in culture, language, religion, and physical appearance. Nativists weaponize this exclusionary sentiment to validate their arguments in the birth tourism debate, seizing upon the idea that “whiteness” is “what it means to be an American citizen” in order to determine that “those of Asian descent [are] decidedly not citizens”.19 Characterizing Asians as fundamentally alien or un-American allows nativists to frame birth tourism as the mechanism that introduces more Asian “pollutants” into a “pure” American society. Immigrant women of color, specifically Latinas and Asian women, are especially villainized by this type of narrative, their bodies hypersexualized and interpreted as threats to the “core values of American society” since they are capable of birthing American citizens who would defy the standards of white America.20

In order to prevent birth tourism from degrading the “value of [American] citizenship” by facilitating the “accretion” of immigrant populations, opponents of birth tourism on the federal level, such as former Republican presidential candidate Jeb Bush, have proposed abandoning the jus soli citizenship principle, just as NICH suggested in the aftermath of the Chino Hills maternity hotel scandal.21 Instead, they desire the implementation of the jus sanguinis citizenship principle, similar to the policies employed by nations like Germany, Italy, Japan, and South Korea. The major caveat in any piece of legislation regarding this transition, however, is that the United States, unlike the aforementioned nations, is a country constructed on a foundation of enslavement and exclusion, while also being much more heavily influenced by immigrant culture and contributions. The implications of abolishing jus soli and applying jus sanguinis would be more problematic in the United States than they would be in a different nation because anti-jus soli campaigns are “logical extension[s] of racial exclusion laws” like the Chinese Exclusion Act.22 Since a deep history of racial exclusion already exists in the United States’ recent past, switching from jus soli to jus sanguinis would be a risky maneuver that could cause the nation to backslide into that era

18 Wang, supra note 1.

19 Nori, supra note 17.

20 Joon K. Kim, et al., Genderacing Immigrant Subjects: ‘Anchor Babies’ and the Politics of Birthright Citizenship, 24 SOC IDENTITIES (Sep. 18, 2017),

https://www.tandfonline.com/doi/full/10.1080/13504630.2017.1376281?scroll=top&needAccess=true&role=tab.

21 Id.; Wang, supra note 1; Altman, supra note 2.

22 Wang, supra note 1.

once more. Without jus soli, immigrant communities would have to solely depend on naturalization to gain citizenship, a process notorious for its lengthy, time-consuming, and complicated process. Naturalization requests also have the potential to be denied, so they do not possess the same guarantee of citizenship that jus soli birthright citizenship does. This could deprive immigrant communities of the protections of citizenship for indefinite periods of time.

V. CONCLUSION

Nativist politicians and activists have long controlled the narrative surrounding birth tourism to the United States, appealing to Americans’ own sense of fairness, employment insecurity, national pride, and racial prejudice to villainize the idea of Asian immigrants giving birth on US soil. The weight of this influence is most clearly demonstrated through the continuous reappearance of the Birthright Citizenship Act in congressional cycles, national-level politician’s promotion of jus sanguinis, and the surges in false birth tourism reports experienced by the Chino Hills and Arcadia police departments, where people were racially profiling innocent Asian American women as birth tourists. Through their efforts, birth tourism has been consistently mistaken as a criminal act that exploits the US’s generous jus soli-based citizenship laws even though the act of birth tourism is not illegal. By characterizing jus soli as an obvious, exploitable weakness in American immigration policy, anti-birth tourism advocates have turned most of the American public against one of the core values of the US Constitution in order to advance their own anti-immigrant agenda. However, proponents of replacing jus soli with jus sanguinis rarely discuss the effect such a policy change would have on some of the most vulnerable members of American society, those who have historically been excluded from the concept of American citizenship and those who would most likely be excluded once more should jus soli be abolished: Asian Americans. Due to the stubbornly persistent stereotype of Asians being perpetual foreigners in American society despite living in the United States for generations, Asian Americans are especially susceptible to being relegated once more to the status of alien residents. To prevent such a reality, the birthright citizenship debate must turn away from the abolishment of jus soli as a valid solution of the birth tourism controversy.

UCLA AAPI UNDERGRADUATE LAW JOURNAL VOLUME II

Spring 2023

UCLA AAPI UNDERGRADUATE LAW JOURNAL VOLUME II

Spring 2023