nys69-1_cv_nys69-1_cv 10/15/2014 7:32 AM Page 2 Vol. 69 No. 1

New York University Annual Survey of American Law

DEDICATION IN MEMORIAM TO PROFESSOR DERRICK BELL

TRIBUTES of American Law University Annual Survey President John Sexton Gabrielle Prisco Patricia Williams Norman Dorsen Introduction of Janet Dewart Bell Acknowledgment by Janet Dewart Bell

ARTICLES

BETWEEN MUSLIM AND WHITE: THE LEGAL CONSTRUCTION OF ARAB AMERICAN IDENTITY Khaled A. Beydoun

DESICRIT: THEORIZING THE RACIAL AMBIGUITY OF SOUTH ASIAN Vinay Harpalani

NOTES

INTRODUCING THE JURY EXCEPTION: HOW EQUAL PROTECTION TREATS JURIES DIFFERENTLY Jessica Heyman

AN ARGUMENT FOR PUBLIC HEALTH AND DOCTRINAL CLARITY: WHY THE SUPREME COURT SHOULD OVERTURN R.J. REYNOLDS V. FDA Andrew M. Osarchuk

EXPECTING THE UNATTAINABLE: CASEWORKER USE OF THE “IDEAL” MOTHER STEREOTYPE AGAINST THE NONOFFENDING MOTHER FOR FAILURE TO PROTECT FROM CHILD SEXUAL ABUSE CASES Emily Winograd Leonard

2013 Volume 69 Issue 1 2013 35559-nys_69-1 Sheet No. 1 Side A 10/20/2014 11:50:05 ALL H ANDERBILT T. V ISSUE 1 Washington Square RTHUR VOLUME 69 A ANNUAL SURVEY ANNUAL NEW YORK UNIVERSITY SCHOOL OF LAW NEW YORK UNIVERSITY SCHOOL OF AMERICAN LAW OF AMERICAN NEW YORK UNIVERSITY NEW YORK \\jciprod01\productn\n\nys\69-1\FRONT691.txt unknown Seq: 1 20-OCT-14 8:41 35559-nys_69-1 Sheet No. 1 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 1 35559-nys_69-1 35559-nys_69-1 Sheet No. 1 Side B 10/20/2014 11:50:05 A Uniform System of is published quarterly at 110 West New York University Annual Survey of American ISSN 0066-4413 All Rights Reserved (212) 998-6540 (212) 995-4032 Fax invites the submission of unsolicited manuscripts. L.C. Cat. 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New York University Annual Survey of American Law New York University Annual Survey of American 3rd Street, New York, New York 10012. per year (plus Subscription price: $30.00 $4.00 for foreign mailing). per issue (plus Single issues are available at $16.00 $1.00 for foreign mailing). issues, contact the For regular subscriptions or single Annual Survey St., Buffalo, NY 14209-1987), phone (800- Hein & Co., Inc., by mail (1285 Main ([email protected]).828-7571), fax (716-883-8100), or email Back issues are also (http://heinonline.org). available in PDF format through HeinOnline All works copyright \\jciprod01\productn\n\nys\69-1\FRONT691.txt unknown Seq: 2 20-OCT-14 8:41 35559-nys_69-1 Sheet No. 1 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 1 35559-nys_69-1 35559-nys_69-1 Sheet No. 2 Side A 10/20/2014 11:50:05 MERSON E Or land or life, if freedom fail? Or land or life, if freedom For what avail the plough or sail For what avail the plough \\jciprod01\productn\n\nys\69-1\FRONT691.txt unknown Seq: 3 20-OCT-14 8:41 35559-nys_69-1 Sheet No. 2 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 2 35559-nys_69-1 35559-nys_69-1 Sheet No. 2 Side B 10/20/2014 11:50:05 iv \\jciprod01\productn\n\nys\69-1\FRONT691.txt unknown Seq: 4 20-OCT-14 8:41 35559-nys_69-1 Sheet No. 2 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 2 35559-nys_69-1 35559-nys_69-1 Sheet No. 3 Side A 10/20/2014 11:50:05 O IX ON S ARK OON OLFF N MITH NGER IEGEL ARTIN P W AECKL OMAIS AMETS IROUX OSNER ATSON Y EYNERI S ICHOLS OBERTS IERMAN -U W ERLMAN EISSMAN S ICHARDS ITHOLTZ R CHUSTER R AMOWITZ MILY CHOLTEN CHWARTZ ILKERSON ANE UNINE T P J J B. S E R W TEINERMAN S S R. S S. M D. S A. G W AX A. W R. R C. N J. R S ANIEL EAL LAGER E. S IMBERLY C. S M AFAEL D EAH N ICHAEL OSEPHINE ENNIFER ARAH R K AVID AOMI RODERICK ELISSA L J J ANIEL Symposium Editor EFFREY S M D J N LIVER EYHAN D M B ARAH C. P UN LLISON ICHAEL HARON R S O E HEODORE LEXANDRA A S LIZABETH M T OSE ICHOLAS A E R N YUNG K HRISTOPHER C AVIV EJIA IU ITER ALZI H OON U EUCHTEN UVEKE EAVERS -L UPICA ITCHELL C INGH EITH I OTARO ILLER ASS UR ARKEL ANTER YMAN L OSKIES ILCER IM INTZ LEIMAN ORKLE DOKO S OBERT FIR OYNER OGHLAN T. L RUST K K C ZIPORI RUNSWICK PRINGSTED K H K M I J F. G K. L M L A. K C B O P.D. M AUREN M. L V. M W. D S USTON B OTTERMAN T R. T N. L E. M L. R C. P IL L. H L. K L M EAN L. C ARY ICHAEL ETER N G H S LLEN AEL ICOLE ORDAN P Staff Editors AIL M M OUGLAS J Article Editors RANCIS Y Editor-in-Chief HIP A EATHER EN ULIA MANDEEP OSHUA ICHAEL HRISTINA N USAN RYEH ARYL G F J J D ULIENNE OBERT C ABRIEL HARLES Managing Editors B S ATRICK A C LYSSA H J REGORY A ENJAMIN HRISTINE OLIN M D ATTHEW I R P C G B G ATHERINE C C ORDANA M J HRISTOPHER K C OLD B 2013-2014 BOARD OF EDITORS 2013-2014 E NEW YORK UNIVERSITY NEW D UGHES HEN ANENCIA TKINS W. H REELAND HILELLI RAPEKIN IACCI ROEMMING ALKENBURGH AIDLAW UECHNER ASTELLI SCOBAR ERMAN OHN OWLEY ARRETT LIZABETH IOS UITERMAN ERBER Y. C V OLE OUNTAIN B OLLANDER B ALIK ORMAN HISOLM RAHAM H E INOS A. C G C. A IDLER E. F C AN L. F S. L K. C A. C H OHEN A. E C S. C M. D G ANNUAL SURVEY OF AMERICAN LAW OF AMERICAN SURVEY ANNUAL M. C G F E. G J. F A. C V C J. G S. B H. G ANIEL ILLIAM ALTER EGAN AUREEN ICHAEL EAGAN ARRY ALEY AROLD ICOLE AVID RAHAM ANIELLE ALEB HRISTOPHER ATHERINE YAN EBECCA LEX OAZ LIZABETH ATRICK ETER AUL IOBHAN ONNAH OSEPH OSHUA OSHUA ORDAN ULIAN P S K. D D B H C W H R M R J M C M J W J G D J N M E C P J Development EditorsJ A Note Editors H Executive Article EditorsP Senior Articles Editor \\jciprod01\productn\n\nys\69-1\FRONT691.txt unknown Seq: 5 20-OCT-14 8:41 35559-nys_69-1 Sheet No. 3 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 3 35559-nys_69-1 35559-nys_69-1 Sheet No. 3 Side B 10/20/2014 11:50:05 vi \\jciprod01\productn\n\nys\69-1\FRONT691.txt unknown Seq: 6 20-OCT-14 8:41 35559-nys_69-1 Sheet No. 3 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 3 35559-nys_69-1 35559-nys_69-1 Sheet No. 4 Side A 10/20/2014 11:50:05 AW L , CHOOL OF S ROFESSOR P NIVERSITY This Volume of This Volume ISITING DERRICK BELL U V ORK Y EW N is respectfully dedicated in memoriam to dedicated in memoriam is respectfully New York University Annual Survey of American Law Annual Survey of New York University \\jciprod01\productn\n\nys\69-1\FRONT691.txt unknown Seq: 7 20-OCT-14 8:41 35559-nys_69-1 Sheet No. 4 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 4 35559-nys_69-1 35559-nys_69-1 Sheet No. 4 Side B 10/20/2014 11:50:05 ELL B ERRICK D ROFESSOR P \\jciprod01\productn\n\nys\69-1\FRONT691.txt unknown Seq: 8 20-OCT-14 8:41 35559-nys_69-1 Sheet No. 4 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 4 35559-nys_69-1 35559-nys_69-1 Sheet No. 5 Side A 10/20/2014 11:50:05 Race, Ra- , is used widely in law schools across the coun- , is used widely in law schools across Derrick Bell was a full-time visiting professor at N.Y.U. School of at N.Y.U. School visiting professor was a full-time Derrick Bell from Du- his undergraduate degree Professor Bell received Bell championed the cause As a teacher and scholar, Professor the progress of racial re- Professor Bell wrote extensively about Above all, Professor Bell was a beloved member of the N.Y.U. IN MEMORIAM: DERRICK BELL (1930–2011) BELL DERRICK MEMORIAM: IN Law from 1990 until he passed away on October 5, 2011. For more October 5, 2011. passed away on 1990 until he Law from commu- shaped the legal Bell profoundly years, Professor than fifty jus- rights and community passion for civil his unwavering nity with and activist. As his leadership as a scholar, teacher, tice, and through Bell instilled in of constitutional law, Professor a devoted professor responsibility sense of professional and ethical his students a deep about race and them to confront complex issues and encouraged difference. the U.S. Air Force and served as a lieutenant in quesne University the University of law school. After graduating from before entering at the Civil Rights of Law, Professor Bell worked School African Ameri- Department of Justice, as the only Division of the U.S. asked him of . When the government can among thousands NAACP, Professor Bell left the Jus- to resign his membership in the first assistant counsel at the NAACP tice Department and became the under Thurgood Marshall, su- Legal Defense and Education Fund desegregation cases in Mississippi. pervising more than 300 school and the legal academy. He lever- of civil rights inside the classroom African American professor at aged his positions as the first tenured African American dean of the Uni- Harvard Law School and the first challenge law schools around the versity of Oregon School of Law to their hiring practices. He en- country to embrace diversity in engage with their education and couraged his students to actively learning” method, which em- was well-known for his “participatory and asked students to grapple phasized community-based learning in order to prepare them for real- with current, controversial issues world legal practice. many genres, from fiction to legal form in the across key writings that helped analysis to autobiography. He contributed and his casebook, form the critical race theory movement, cism and American Law Bell Lecture on Race in try. Since 1995, the annual Derrick American Society at N.Y.U School of Law has invited many promi- nent scholars to discuss important topics on race and the law, rang- ing from racially tinged economics to post-racial challenges in the Obama era. up community who inspired countless scholars and faculty to stand for their principles. He will be deeply missed. \\jciprod01\productn\n\nys\69-1\FRONT691.txt unknown Seq: 9 20-OCT-14 8:41 35559-nys_69-1 Sheet No. 5 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 5 35559-nys_69-1 35559-nys_69-1 Sheet No. 5 Side B 10/20/2014 11:50:05 OF DEDICATEES NYU ANNUAL SURVEY OF AMERICAN LAW OF AMERICAN SURVEY NYU ANNUAL George B. Galloway Jr.Robert M. LaFollette, 1982 1981 Shirley M. Hufstedler Jr. William J. Brennan, 194219431944 Chase Harry Woodburn 1945 Frank H. Sommer 1977 Manley O. Hudson Carl McFarland Charles D. Breitel 1946 19781947 19791948 A.S. Mike Monroney Henry J. Friendly 1949 Roscoe Pound David L. Bazelon 19801950 Arthur T. Vanderbilt 19831951 Herbert Hoover Weinfeld Edward 1952 Bernard Baruch 1985 Thurgood Marshall 1953 Robert P. Patterson* 19841954 Phanor J. Eder J. Skelly Wright 1955 Edward S. Corwin 1986 1988 Hans A. Linde 1956 Arthur Lehman Goodhart 1987 19911957 John Johnston Parker William Wayne Justice Bernard Schwartz 1958 Henry T. Heald Frank M. Johnson, Jr. 1990 1989 Martin Lipton 1959 Herbert F. Goodrich 1992/931960 Stevens John Paul Harold H. Burton A. Blackmun Harry Barbara Jordan 1961 Charles E. Clark 19951962 Whitney North Seymour 19941963 Austin Wakeman Scott 1998 1996Clinton Hillary Rodham 1964 Fred H. Blume Judith S. Kaye 1965 Laurence P. Simpson 1997 Janet Reno Day O’Connor Sandra 1966 Edmond Cahn*1967 Charles S. Desmond Ruth Bader Ginsburg 20001968/69 Tom C. Clark 1999 L. Boraine Alexander Russell D. Niles1969/70 Francis J. Putnam George Mitchell 2002 Jack L. Kroner*1970/71 2001 Desmond M. Tutu Frank Rowe Kenison1971/72 Robert A. Leflar Laurence H. Tribe 1972/73 Norman Dorsen 2004 Justine Wise Polier1973/74 2003 2005 2007 Walter J. Derenberg1974/75 2006 Richard A. Posner Robert B. McKay1976 John Sexton Antonin Scalia Stephen G. Breyer 2008 2009 Ronald Dworkin 2010* In memoriam Herbert Peterfreund Anthony G. Amsterdam Patricia Wald Arthur R. Miller 2011 Cass R. Sunstein \\jciprod01\productn\n\nys\69-1\FRONT691.txt unknown Seq: 10 20-OCT-14 8:41 35559-nys_69-1 Sheet No. 5 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 5 35559-nys_69-1 35559-nys_69-1 Sheet No. 6 Side A 10/20/2014 11:50:05 7 1 13 21 77 25 27 29 185 265 311 Gabrielle Prisco Jessica Heyman Norman Dorsen SE OF Vinay Harpalani Patricia Williams U Khaled A. Beydoun QUAL ROTECT OCTRINAL President John Sexton Andrew M. Osarchuk E P D Emily Winograd Leonard OW HOULD EGAL MBIGUITY OF DENTITY GAINST THE S L I : H A A ASEWORKER HE OTES Introduction of Janet Dewart Bell Introduction of Janet AILURE TO : C RTICLES RIBUTES OURT N ASES IFFERENTLY : T EALTH AND ACIAL F A T C Acknowledgment by Janet Dewart Bell Acknowledgment by . FDA C D R H MERICAN XCEPTION HITE A TEREOTYPE E BUSE W URIES S UBLIC RAB A UPREME J URY P S A OTHER FOR J NATTAINABLE EYNOLDS V MERICANS U M OTHER REATS EXUAL SUMMARY OF CONTENTS SUMMARY A T S HEORIZING THE USLIM AND HY THE R.J. R ” M SIAN M : T : W HILD A DEAL THE RIT FROM C RGUMENT FOR C “I A VERTURN ONOFFENDING ESI LARITY ONSTRUCTION OF N ETWEEN XPECTING THE ROTECTION OUTH NTRODUCING THE N I P C O B C S \\jciprod01\productn\n\nys\69-1\FRONT691.txt unknown Seq: 11 20-OCT-14 8:41 A D E 35559-nys_69-1 Sheet No. 6 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 6 35559-nys_69-1 35559-nys_69-1 Sheet No. 6 Side B 10/20/2014 11:50:05 xii \\jciprod01\productn\n\nys\69-1\FRONT691.txt unknown Seq: 12 20-OCT-14 8:41 35559-nys_69-1 Sheet No. 6 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 6 35559-nys_69-1 35559-nys_69-1 Sheet No. 7 Side A 10/20/2014 11:50:05 because Derrick 1 JOHN SEXTON Annual Survey of American Law TRIBUTE TO DERRICK BELL DERRICK TO TRIBUTE Ricky brought a great affliction into my life when he gave an life when he gave into my a great affliction Ricky brought the feel- to be in this room and I appreciate But it is wonderful it’s appropriate that we It’s a privilege to talk about Derrick, He loved causes, he loved ideas, but he loved students most, He loved causes, he loved ideas, Now, perhaps uniquely in the room—I mean, there are folks \\jciprod01\productn\N\NYS\69-1\NYS101.txt unknown Seq: 1 8-OCT-14 12:39 interview to a magazine about fifteen years ago and revealed some- ago and revealed about fifteen years to a magazine interview when they would know which was that colleagues thing that I didn’t they entered the with me expected a hug when come to meetings room how well the would judge when they left a room and that they the way out and by whether they got a hug on meeting had gone to mind and I kinds of game theory principles this has called all them hugs or by insulted people by not giving have inadvertently giving them hugs. whatever I did in and I appreciate very much that ing of this place and the wonderful of this place and my colleagues telling the story here while I was here that people that made up the community I have ever dreamt for the school Ricky has surpassed anything that better and better and you can feel and that the place keeps getting see it in the glow of people’s faces. it when you return and you can the Annual Survey, which is given honor him with the dedication of in the profession of law, but of course for extraordinary eminence in the profession of law be- Derrick was extraordinarily eminent eminent person. He was first cause Derrick was an extraordinarily an extraordinary human being. and foremost a human being and privilege of knowing him, under- Anyone that knew him, had the was the deepness of his soul that stood first and foremost that it he did in life. And the spectacular gave him the deepness of all that manifested that deepness and thing about Derrick was that Derrick an extraordinary way that it was fundamental spirituality in such that we honor him through impossible to miss. It is also appropriate the vehicle of the did love students most. and that’s—again—because, through his love for stu- if you push was, most of all, an extraordinary dents, he loved people most. He person who cared about people. And the fewer people that some- one had caring about him or her, the more Derrick cared about that person. And that gave him his purpose. who have known Derrick much longer even than I—but I think that 35559-nys_69-1 Sheet No. 7 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 7 35559-nys_69-1 35559-nys_69-1 Sheet No. 7 Side B 10/20/2014 11:50:05 I was the oldest person in our class by a considerable margin. I was the oldest person in our class call on anybody in class. And you know Derrick would never he and Janet and Lisa and I—years later, “You know this bearded 2 in of Derrick sun magnificent the orbit around in moved I probably as with and, in 1976 Derrick I first met else. anyone ways than more NYU ANNUAL despised of my wife. Lisa met him because in my life, I many things SURVEY OF AMERICAN Law first year at Harvard the end of our Law School. At Harvard LAW that she sexist place, and it was a racist, announced that School, she again. I School campus the Harvard Law ever set foot on would not [Vol. 69:1 taker. And a good note me because I was part she married think in that you take “You just register me for the courses she said to me, her exams taken at And she arranged to have and take good notes.” the Harvard Law Hotel, across the street from the Commander Law School And she never set foot on the Harvard School campus. by getting better frequently embarrassed me campus again. She very rarely did she She graduated cum laude. And grades than me. both for myself of courses that I was taking insist, in this portfolio she said, “The one I take a particular course. But and for her, that course, Racism to take second year is Derrick Bell’s course you have up in the back of And that was how I ended in American Law.” Derrick’s classroom. I used to wear flannel shirts, At that time I was thirty-five. And since I would come down from they’d hang out, and I would carry, had to do our classes and then do our house for the day, because I with a big thick, a big, tall thermos some work on campus, I’d come in the back, Derrick made fun of of coffee. And I would sit there back, because I never spoke—Ithis years later, I’d sit there in the here—butknow this is hard for you to believe I never spoke in law on by Arthur Miller. It’s the only school. Only once, I was called that I spoke. Not at all. And I time in three years of law school class. And the way he told it, would sit there in the back of Derrick’s we would laugh about this—and Janet will remember this because looking like a truck driver, sitting guy with this flannel shirt, kind of of coffee, I didn’t have any idea in the back row, with this mug but the important thing is, he whether he was a street person,” I was obviously taking notes—Ididn’t care. You know, I was there, had to take notes, right?—and claim I took notes and was he would same time. doing Law Review galleys at the And I never volunteered in class. And he was never quite sure I was in the class. And then, of course, the way they did it, the exams were anonymous. And the results came out and I think Lisa got the high- est grade in the class and I wasn’t too far behind. \\jciprod01\productn\N\NYS\69-1\NYS101.txt unknown Seq: 2 8-OCT-14 12:39 35559-nys_69-1 Sheet No. 7 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 7 35559-nys_69-1 35559-nys_69-1 Sheet No. 8 Side A 10/20/2014 11:50:05 But Derrick called her at home and said, “You got the highest got the said, “You and at home called her Derrick But don’t grade too. But I a pretty good “Oh, well, he got He said, of us, in his first time I met him just the two And that was the as a very, very, you know kind Now, look, I start off, you know, thing about Derrick, was that But, you know, the remarkable about it. One of the indeli- I remember when he first told me You know, I was a reach. I was an older person. I had been a 2013] Lisa And being there.” you remember I don’t class and in the grade “Well, I this, she just said, about she wasn’t embarrassed said, and the class.” taking notes in husband was there, but my wasn’t ever What’s his name?” “Really? TRIBUTE SEXTON And then he look like?” either. What’s him being there remember he said, “Well, will and he said, “oh my god.” And she described me, “No. But I’ll send to see me?” And she said, the two of you come on to the Harvard Law School campus.” him. I don’t go And you know, the beginning of a love affair. office. And it was I mean, he wasn’t way he teaches, we all know, Derrick, even the or whatever. He then. There were no charts then teaching that way the capacity that Harvard system, although he had was locked in the 3 think about some- great teachers have to make you the really, really thought about it differently from the way you thing completely before you began to work with him. male, so there’s a lot Derrick had of a straight, white, fifties Catholic students, no matter whence they to teach me. But I think all of his he was capable of getting you to came, had that experience, that think in a completely different way. great loves, and this was something he and Jewel, the first of his two blessed with not one, but with two else about the man, that he was for anybody that’s ever been in great loves, both of them models we were students, took us in as love. But he and Jewel, even though couple friends of his and got to a couple of friends. We became I used to tutor this man, [Der- know the boys. I remember when Jewel’s death with him and then I rick’s son]. And we went through and how she arrived in his life. remember the magnificent Janet great, great wedding, right over ble memories in our family is your Katie, running around on that on Broadway, with that little girl, It’s an image that I’ll never forget balcony, with the wrought iron. to let a little girl come, to let because, again, the accepting quality, was going on. To not be both- her run around, even as the wedding ered by the noise. But it was just so typical of the two of them. And Derrick formed in some ways—I’m not sure I’d be here today if it hadn’t been for his pushing me as a scholar. Ph.D. in religion. I wasn’t an orthodox appointment for a great law \\jciprod01\productn\N\NYS\69-1\NYS101.txt unknown Seq: 3 8-OCT-14 12:39 35559-nys_69-1 Sheet No. 8 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 8 35559-nys_69-1 35559-nys_69-1 Sheet No. 8 Side B 10/20/2014 11:50:05 . And he wasn’t the Review Bakke Harvard Education Harvard , and this story of Derrick Odyssey , the came out and everybody thought the and everybody came out Iliad Bakke . So when . So when as a and former teacher that had worked with high former teacher that had worked as a lawyer and And he guided me to write a piece for the a piece for guided me to write And he But you know Derrick helped me build my portfolio, and then helped me build my portfolio, But you know Derrick my years here. He was one of And he guided me right through And then of course—and close with this because Ja- I will just So then there was the hunger strike, and Derrick is not going So then there was the hunger strike, hopefully it will continue to be a guide even after this Supreme continue to be a guide even after hopefully it will Review 4 committee personnel the chaired school. Burt law like this school I in which of the ways But one me credible. to make struggled and NYU ANNUAL for the on my first piece let me rest Derrick wouldn’t was because SURVEY OF AMERICANLaw Review LAW going to and said, “You’re called me in ending, Derrick world was that’s important.” do something [Vol. 69:1 were on their way up, about how school kids that \\jciprod01\productn\N\NYS\69-1\NYS101.txt unknown Seq: 4 8-OCT-14 12:39 end of the world. Even though he didn’t agree with the Powell Even though he didn’t agree end of the world. how the Powell you can write a piece that will show opinion. He said been a guide— a guide. And sure enough it’s opinion might be forbid it not be. Court term. God the the Supreme Court Editor of I remember I was foreword, do you said, “So they asked me to do the came to me and was Chronicles, nothing ever like think they’ll take this piece?” That they will take the piece because had been . . . and I said well I think to work Chronicle through that that’s my issue. And we managed stodgy old process. take on the responsibility of being the ones that encouraged me to is something you can do.” a Dean. He said, “I think there the Seder: this story has net likes me to tell it. This is like Derrick. And I apologize, about to be told every time I talk about heard this now a dozen times. three-quarters of you have probably But the great stories, the Bell deserve to be repeated. Tree told it a little bit different at to eat is the way I remember it. I remember this right. Tree has the memorial service but I think I called him up and I said, “You never been good on the facts. wrong diagnosis here. Walk out know, you’re right. But you got the you here.” And he came down as a on them. Come to NYU. We love and we had a great year together. visiting faculty member that year where Babbo is now used to be And it was the end of the year. And in a restaurant called the Commanders’. We were having dinner there and over lobster bisque, he said to me, “you know I have never been happier at a law school.” And I said, “That is a pretty low bar.” I said, “You didn’t get along with the Dean at Oregon when I you were at Oregon.” He said, “I was the Dean at Oregon.” And 35559-nys_69-1 Sheet No. 8 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 8 35559-nys_69-1 35559-nys_69-1 Sheet No. 9 Side A 10/20/2014 11:50:05 EXTON S OHN J President, New York University New York University School of Law Dean Emeritus and Benjamin F. Butler Professor of Law Dean Emeritus and Benjamin F. And I said, “Okay, have you ever heard of Walter Alston.” Now Walter Alston.” you ever heard of “Okay, have And I said, us. This great and he is still here in all of And he is still here 2013] So I Dean.” with the along not get still did and you “I know said, are a you Because happy here. you are why it is know “But you said, sins. You for our to take responsibility you don’t have visitor. And don’t have agenda. You side of the stay on the affirmative can just right.” said, “Maybe that’s the sins.” So he culpability for to take the TRIBUTE SEXTON But even a Road to God.” “Baseball Is will teach my course tonight I of you don’t re- is a road to God, probably most though baseball the Dodgers for 20 Alston. Walter Alston managed member Walter would never take contracts. Walter Alston years, on twenty-one-year want you to be the contract. And I said, “Derrick I more than a year appoint you as a legal education.” I said, “We will Walter Alston of it’s just a great, and we have to hit 20 years.” And visitor every year, this was his 20th year. great thing that 5 And just wanted students because he loved people. man, who loved there was a reward a better place. Who knew that to make the world to join him. and who is waiting for all of us for that coming, \\jciprod01\productn\N\NYS\69-1\NYS101.txt unknown Seq: 5 8-OCT-14 12:39 35559-nys_69-1 Sheet No. 9 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 9 35559-nys_69-1 35559-nys_69-1 Sheet No. 9 Side B 10/20/2014 11:50:05 6 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:1 \\jciprod01\productn\N\NYS\69-1\NYS101.txt unknown Seq: 6 8-OCT-14 12:39 35559-nys_69-1 Sheet No. 9 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 9 35559-nys_69-1 35559-nys_69-1 Sheet No. 10 Side A 10/20/2014 11:50:05 7 PATRICIA WILLIAMS PATRICIA TRIBUTE TO DERRICK BELL DERRICK TO TRIBUTE Thank you, it’s a tremendous pleasure to be here. John said to be here. John pleasure it’s a tremendous Thank you, of why I love being in that But let me try to give some sense 1980 was because of Derrick, How I came to that room at all by \\jciprod01\productn\N\NYS\69-1\NYS102.txt unknown Seq: 1 9-OCT-14 7:39 that he thought he would not be here if it hadn’t been for Derrick it hadn’t been for not be here if he would that he thought here if it hadn’t very, very well that I would not be Bell and I know And to the Bell, there is absolutely no question. been for Derrick even though my with critical race theory, degree I’m associated Code, contracts and the Uniform Commercial basics subjects are race theory is me with that because critical nobody ever associates a single philoso- mostly associated with and it’s not what I think I’m it is used very and sometimes I think phy or unique methodology race. But I think anybody who writes about carelessly to describe Bell. And when theory scholar because of Derrick I’m a critical race race theory, then Derrick Bell as the core of critical you understand why to some degree it’s hard in you understand why it is so diverse, terms, in ideological terms to de- legal terms, in methodological as John described, the core of scribe exactly what it is. It’s because, was heart and spirit and the law it is Derrick Bell and Derrick Bell probably has no language for that. of his legacy. At the Association of interdisciplinary, warm embrace just last month there was a me- American Law Schools Convention a room that seated maybe close to morial to him and it was held in and the people there were from five hundred people; it was full professors and they were of all everywhere. All of them were law actually rocketed me back to my races and nationalities. That event 1980 when they were virtually no first double-ALS meeting back in at all and the minority law section people of color in law teaching white men, good hardworking was actually a room of maybe seven the profession. It was a very small men who were trying to diversify they were only men in those group of dedicated men, for again doors. And Derrick was there of days, who wanted to hold open room for all it was worth. course and he was working that in 1975 and I have gotten to of course. I graduated from law school ri- know since Derrick’s passing that there is an enormous sibling valry among those of us who felt close to him as students and then as professionals. I was shocked at his Memorial how many people my stood up and said father Derrick. And I said no no no, that’s of father you’re talking about. And there is some sort of little pinge 35559-nys_69-1 Sheet No. 10 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 10 35559-nys_69-1 35559-nys_69-1 Sheet No. 10 Side B 10/20/2014 11:50:05 came out, which highlighted came out, which The Paper Chase I expected to love law school with all my heart when I came I expected to love law school with In contrast Professor Bell’s door was always open, his mind was the harsh questioning of the Socratic method, which then reigned of the Socratic method, which the harsh questioning with my class- of legal academia. And I cowered supreme in most derision. And in what felt like mockery or mates in fear of in those days, we there were virtually no women addition, as I said, on by Arthur percent of the class. I was not called were only eight day actually in he still was practicing lady’s Miller in class because day a month and they would call on women one those days and so actually had a term the powder puff questions. We sort of give them only beginning to puff questions and sexism were for it, the powder educational pro- just possibly immedicable to the be addressed as that because actually Arthur Miller, cess. And I should apologize for turned out to be a great teacher those were the times, he actually actually. within the first ten minutes and and instead I really wanted to leave leave. And as he had in my very Derrick was the only reason I didn’t come alive, he made the dry first class with him, he made ideas let us forget the human stories pages of treatises vivid, he never He imbued legal education behind every track, every suit, repeal. and we weren’t there for our- with a sense of purpose, responsibility and to be of service. And he selves alone, but to live up to a calling isolation and intimidation I felt as helped me reframe the sense of obligation to stay the course. And precisely the reason there was an me, females, , until Professor Bell, people like aren’t legacies were pretty much students who weren’t wealthy, who the old boys’ network. We left to our own devices to try to penetrate even existed before we could try had to discover that secret societies we had to comprehend how many to break down their doors and before we could understand why deals were made in eating clubs not merely about the potatoes invitations to those high tables were or institutional insularity in au gratin. There was every manner those days calculated to shut out most of the world. always open, he made other doors open too. He supported disabil- ity, elderly, gay rights long before any of that was part of the na- 8 I met John. than him longer known have that I may competition mine of A friend an undergraduate. as was nineteen when I him NYU ANNUAL of like fly and it was sort law class me to his constitutional dragged SURVEY OF AMERICAN became reach suddenly within Derrick’s who came paper, anybody LAW just later they’ve probably and sooner or and a lawyer a law student it or en- they liked professor, whether to become a law destined [Vol. 69:7 it was law school in 1975, I graduated from not. So when joyed it or as about the same time \\jciprod01\productn\N\NYS\69-1\NYS102.txt unknown Seq: 2 9-OCT-14 7:39 35559-nys_69-1 Sheet No. 10 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 10 35559-nys_69-1 35559-nys_69-1 Sheet No. 11 Side A 10/20/2014 11:50:05 ´ e and he created family in the unlikely setting of the law setting of the in the unlikely created family e and he And a few years after I graduated from law school, Professor after I graduated from law school, And a few years visionary like that, but the It would be too easy to say he was of double-ALS was packed And so in January of 2012 the room intimate what was distant, Professor Bell unsettled by making 2013]faculty on the women more to get He worked conversation. tional these time issue. Over was an there that thought few others when and he treated students all law schools the way efforts changed from mere that notion a way that removed to power in spoke truth clich practice of of us to a me and so many connected school. Derrick TRIBUTE WILLIAMS being. this was not the think about teaching. And again, Bell urged me to and this was at ever have considered otherwise career path I would teaching to say were virtually no women in law a time when they six of us in the of color, to be precise there were nothing of women was one of And I believe Paulette Caldwell entire United States. one Asian were four African American women, them and there the historically and one Latina. That includes American woman, 9 teaching and so it said that he just saw me as black colleges. Derrick was. in my case he dragged me kicking truth is he made things happen, a broadly inclusive mandate for and screaming. He believed in prescient and he pushed and he equality that was boundless and students and he made friends with pulled and he checked in on his them for life. for that. And He was a mentor before we had a word us into places we didn’t even in not just mentioning us, but pushing of voices to the profession. see for ourselves, he brought a diversity of many pitches, keys, beliefs, and Unorthodox, interesting voices began with his urging. styles and critical race theory thus that room was integrated, and to the rafters. In January of 2012 whites and men and women but integrated not just with blacks and and , with Haitians, and , , Cuban Amer- Trinadadian Americans, Native Americans, Muslim Americans, and I think icans, gay Americans, Jewish and and just a host of view- probably some Jewish Muslim Americans, identity Americans, and they were point Americans, and multiple sight and still I could hear all law professors. It was a remarkable “And we can do better yet.” Derrick’s voice inside me saying, he made strange what we thought we knew, and therefore invited us to explore it more. He played with figures of speech in his writ- in- ing so that ideas became animated, personified, vivified. He verted the subjectivity of living agents and danced with objects that otherwise would not have had the legal status of a doorstop and \\jciprod01\productn\N\NYS\69-1\NYS102.txt unknown Seq: 3 9-OCT-14 7:39 35559-nys_69-1 Sheet No. 11 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 11 35559-nys_69-1 35559-nys_69-1 Sheet No. 11 Side B 10/20/2014 11:50:05 : . ELL OLUM W one of 2 , , 35 C , its pessi- despite OTTOM OF THE B The Space Traders ACES AT THE The Space Traders , in F 158 (1992). ACISM The Spaces Traders , Transcendental Nonsense and the Functional Approach story being “untestable” and then following it up story being “untestable” and then R ELL B 1 ERRICK . 809, 812 (1935). ERMANENCE OF The great legal realist Felix Cohen once wrote that Cohen once legal realist Felix The great And so when Bell and all of us so-called critical race theorists And so when Bell and all of us 2. D 1. Felix Cohen, EV P [w]hen the vivid fictions and metaphors of traditional jurispru- and metaphors vivid fictions [w]hen the poet- rather than for decisions, thought of as reasons dence are on decisions reached for formulating devices ical or mnemonic reader, of the the author, as well as the other grounds, then forces which is apt to forget the social opinion or argument, law is to be the social ideals by which the mold the law and judged. HE I think Derrick went even further than just observing that poetics went even further than just observing I think Derrick fic- he actually created a counter-poetical, exist in legal discourse when Derrick Bell bring home the point. And so tional world to some years ago entitled wrote his parable 10gospel loved know he I it as largesse. of this I thought appreciating sense require a It did call it. if one may , he made thought but I NYU ANNUAL SURVEYof play. OF AMERICAN LAW [Vol. 69:7 \\jciprod01\productn\N\NYS\69-1\NYS102.txt unknown Seq: 4 9-OCT-14 7:39 my favorites, in which United States trades its entire of which United States trades its entire my favorites, in cache of gold prof- in exchange for an extensive African Americans it was an obvious allegory for fered by some visiting space aliens, of the civil rights movement Bell’s pessimism about the promises just want the problem of ine- and his fear that too many citizens into clouds and disappear. Yet, it quality to be magically whisked the legal academy did not see it as was startling to see how many in in some quarters about the stories that kind of allegory, but raged actually on YouTube, I found re- being “untestable.” And there is I will not name, at a school I cently, an actual law professor, whom Bell of being “untestable” or will not point out, accusing Derrick The Space Traders unanalytical fanaticism and mere with a denouncement of it as an helps to have a sense of deludic in storytelling. Now again I think it all of this. But one reason I loved used the device of science fiction mistic bottom line, was that Bell into the inner workings of to throw a great big monkey wrench interpretation press, what Felix Cohen called the dialectic-hydraulic of meanings out of any text which could press an indefinite number or statute. tinker with fictive devices and who followed in his wayward path so for very specific, nonimaginary poetic figurations, he and we do the dry pages of treatises vivid, to ends. And the purpose is to make T L. R 35559-nys_69-1 Sheet No. 11 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 11 35559-nys_69-1 35559-nys_69-1 Sheet No. 12 Side A 10/20/2014 11:50:05 ILLIAMS W ATRICIA P Columbia Law School James L. Dohr Professor of Law James L. Dohr Professor 2013] To so well. as he did the spotlight into the disenfranchised push to the unseen, flesh to to give minds, and into hearts memory burn any means be of service by history, to bones in the closets’ rattle the more Derrick Bell touched always was. For as Derrick Bell necessary he was a ever dream, mere mortals could most of us people than his en- conditions upon there were no precisely because great man TRIBUTE WILLIAMS ergies. as a and for justice for love, justice, had a huge capacity He influence remains all the greatest teachers, his form of love. Like eternally generative. 11 \\jciprod01\productn\N\NYS\69-1\NYS102.txt unknown Seq: 5 9-OCT-14 7:39 35559-nys_69-1 Sheet No. 12 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 12 35559-nys_69-1 35559-nys_69-1 Sheet No. 12 Side B 10/20/2014 11:50:05 12 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:7 \\jciprod01\productn\N\NYS\69-1\NYS102.txt unknown Seq: 6 9-OCT-14 7:39 35559-nys_69-1 Sheet No. 12 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 12 35559-nys_69-1 35559-nys_69-1 Sheet No. 13 Side A 10/20/2014 11:50:05 13 GABRIELLE PRISCO GABRIELLE TRIBUTE TO DERRICK BELL DERRICK TO TRIBUTE I write to provide feedback on your class in constitutional I write to provide feedback on your your class has been a I must tell you that working with Thanks to President Sexton, to Dean Revesz, and to the An- and to the to Dean Revesz, to President Sexton, Thanks of the Ken Bain, who was then director In October of 2003 he saw as the several key Mr. Bain went on to describe what this: when I arrived here at In my own words, it went like Dear Professor Bell, opportunity to observe your law. As you know I have had an of the available printed mate- class several times, to review all products of student work, and rial for the class, to observe the about learning in the class. to talk with some of your students feedback. On that basis, I offer the following it comes closer to the ideal marvelous experience because in the research literature than learning environment described at this university. Your does any other class I have observed that are well-supported by class contains a number of elements learning and teaching and the research literature on university high level and deep nature of that most likely account for the in the class. the learning that is taking place \\jciprod01\productn\N\NYS\69-1\NYS103.txt unknown Seq: 1 8-OCT-14 12:19 nual Survey. I was really struck by Ben and the other students on really struck by Ben and the nual Survey. I was barely having time being in law school and the journal; I remember for a day like to take care of the intricate details to sleep, let alone honor to be with thanks. And it is also always an today, so many and Williams. on a panel with Professors Dorsen Janet, and to speak letter to Professor Teaching Excellence, wrote a NYU Center for with Profes- observed during his time interacting Bell about what he Bain wrote: sor Bell’s class. Mr. environment Derrick created ingredients to the successful learning Mr. Bain’s words, “you have given in his classroom. The first was, in over their own education, and students a strong sense of control and small elements of the class.” you have done so with both large engagement with critical issues, N.Y.U. Law, I anticipated a deep for legal issues, intellectual issues. Law school was for me as it is many students: many of us come here seeking the desire to be part of the quest for social justice, to use the law as a way to think about how society can be better, how it can be fairer. I had many smart and hardworking professors and classmates, but I was quickly disap- 35559-nys_69-1 Sheet No. 13 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 13 35559-nys_69-1 35559-nys_69-1 Sheet No. 13 Side B 10/20/2014 11:50:05 So I met Derrick Bell because I got found out. I was crying in out. I was crying I got found Derrick Bell because So I met And Dean Sexton—then-Dean Sexton—was gracious and kind and time again and they There are stories that you tell time 14 space little intentional how there was, space little by how pointed social issues of and the law of engagement critical was, for there NYU ANNUAL SURVEY first-year curriculum. in the justice, particularly OF AMERICAN LAW upstairs—and of this building, the bathroom the John spoke about [Vol. 69:13 this is my story—I we all have, sort of stories I was crying because self, my my spirit and my I didn’t feel that to be here. didn’t want and I wasn’t thought, had a place in this school, brain, the way I A teach- to do about it. (And it was very expensive.) really sure what came upon my Civil Procedure class accidentally ing assistant from was the teaching bathroom and the class that she me sobbing in the then Dean of the taught by John Sexton, who was assistant for was and I later got a without telling me, spoke to him, school. And she, requested at his Sexton’s office saying that I was call from Dean what I was So I showed up. I remember office for an appointment. John was kind and being totally terrified. wearing, and I remember gracious—he gave me a hug—and definitely me what’s said, “tell believe that the environment was going on,” and I said that I didn’t writing this I struggled with if I a positive one. Actually, when I was was I said that it was “pathologi- should say what I really said, which to say it, and now that I’m here, cal.” And I decided I was not going said. I said I thought it was patho- I should be honest, that’s what I get my tuition back if I left. It was logical, and I asked him if I could the first semester of my first year. to me about his experiences at and thoughtful, and he spoke the option of taking your classes Harvard. He didn’t tell me about at a hotel—Ifrom home and taking the tests might have signed up for that—but what he ultimately said was, “I he was wonderful and in walked Janet and Derrick Bell. want you to meet someone,” and I’ve signed this form, I’ve asked for And I said, “well, I know, I mean know he’s really busy, I know he’s Derrick Bell to be my mentor, I And John said, “well I want you to really famous, I know his work.” were, as they always are, gracious meet him.” And Janet and Derrick and graceful. maybe a magical proportion, and take on kind of a mythological or stories. It’s like a totem. This is a this story for me is one of those my story of how I came to be here and how I found my home, and do place here, and it’s a story that grounds me in the work that I re- now. And I wonder sometimes: Does the magic come from the telling, or are those stories magical? And do they push you to tell \\jciprod01\productn\N\NYS\69-1\NYS103.txt unknown Seq: 2 8-OCT-14 12:19 35559-nys_69-1 Sheet No. 13 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 13 35559-nys_69-1 35559-nys_69-1 Sheet No. 14 Side A 10/20/2014 11:50:05 What Derrick did was invite me to sit in on one of his con law on one of his con me to sit in did was invite What Derrick way was possible; Derrick’s In that class I saw that a different “can you say ‘soul’ in a I thought about it, and I thought, were like beacons. I saw that I could engage the law in a way that were like beacons. I saw that I could 2013] their tell them you the more and them, keep telling and to them, me. for was magical Derrick for me; a story This is grows? power with the of the dinners me to one and later he invited classes, spreadsheet—I so like the added guest, on it, I was probably wasn’t it would about how much the spreadsheet have been on I TRIBUTE PRISCO Der- even get an appetizer. eat and maybe I was allowed to cost, but That’s how it on students teaching one another. rick’s class relied if anyone wants a series of hypotheticals, and worked. There were Bell Fellows, myself and many of the former the long explanation, even reenact for TAs in the room will, I’m sure, and students, and the materi- went, but students taught one another you how the class engagement, but facilitated a conversation and an als and Derrick students who had Then he would take the he didn’t lecture. would continue work out for dinner and they presented that day’s 15 at dinner at Ennio and the debate and the analysis the conversation & Michael’s—a Derrick took that later, when it closed, restaurant and I got involved in that as up the cause of trying to keep open, because Derrick made you do did my family and many loved ones that. teaching and his spirit that first year—just being in the classroom— another place when I was writing resonated with my soul. This was ‘soul.’ That’s kind of a funny word where I paused and I thought, “ Can I write that?” This was my to write, speaking in a law school. I’ll delete it, I’ll delete it ” and I brain going, “can I write that? I said, “I’m going to write it, that’s deleted it and then I put it back. ” the right word, the word is ‘soul.’ maybe wind up in a law journal?” speech in a law school that will about Derrick Bell, I think you And I said, “well, if you’re writing Derrick was a gentle soul, and have to say the word ‘soul.’ ” Because warrior, a humble warrior, and a fierce soul. He was a fierce, gentle spoke to our souls. And he speaks he was defined by his soul and he our souls as well as our minds, to our souls today, and he guides he sees, he saw, he helps us see and our hearts, and our voices, and That’s what gospel choirs the way those things are interconnected. do, that’s what the concert is about. It’s not about getting be- your brains to do something, it’s about the interconnection tween our souls, and our hearts, and our voices, and our brains, and our spirits, and each other. \\jciprod01\productn\N\NYS\69-1\NYS103.txt unknown Seq: 3 8-OCT-14 12:19 35559-nys_69-1 Sheet No. 14 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 14 35559-nys_69-1 35559-nys_69-1 Sheet No. 14 Side B 10/20/2014 11:50:05 The second thing that Ken Bain said in his letter was, “you, letter in his Bain said Ken thing that second The in my memory. When I Here’s another story that’s persisted I think that this class represents one of of my class represents one of the highlights I think that this in the class- at N.Y.U. The diversity of voices legal education which is often and reality to discussions room brings a clarity immeasurable classes. I have learned an lacking in other marginalized representing otherwise amount from students me to en- think that this class has enabled perspectives. I truly a much more and legal precedent on gage with the material structural inequalities of our critical level, demonstrating the system. 16 the in which environment a collaborative have created Bell, Derrick NYU ANNUAL SURVEY a con law each other.” In to learn from are more likely students OF AMERICAN LAW about students wrote of Professor Bell’s evaluation, one midterm while Der- letter because read Ken Bain’s He hadn’t this himself. [Vol. 69:13 actu- John), he didn’t to Ricky (or then, put it in a memo rick did have been teacher, and “I’m an excellent all his students ally tell did his thing. But you know, ever,” he just called the best teacher, what the student the same exact thing. This is the student wrote evaluations): Fellow at this time, so I had the said (I was a Bell End quote. a panel on “Voice and Si- was a first-year student here I organized Professor Caldwell and others lence in the Law School Classroom.” voices of women, on what gets were there. We focused on the in the law school classroom, and heard, and what doesn’t get heard me to hear Professor Williams it was actually fairly upsetting for beautiful and touching, but be- speak today, not because she wasn’t about I experienced many, cause some of what she was speaking think that more would’ve many years later when you would and others publicized, this changed, but it hadn’t. So I publicized, e-mail in response. Many women event and I got an outpouring of made a decision not to speak in e-mailed me and said that they had the point at which they decided class anymore. Some talked about actually how they spoke about it, to silence themselves, and that’s to stop speaking.” Other stu- “this is the point at which I decided the panel was not needed. One dents e-mailed me to tell me why he and two classmates had been student in my section wrote that they reported on the amount of using a timer in our classes, and minutes that women spoke in each class versus men; they were of happy to report that women had spoken an average of x amount if minutes more than men in our classroom. (I was wondering maybe I was, say, nine of those ten minutes, but I didn’t say that.) They said, “this is not necessary, we did the timed experiment dur- \\jciprod01\productn\N\NYS\69-1\NYS103.txt unknown Seq: 4 8-OCT-14 12:19 35559-nys_69-1 Sheet No. 14 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 14 35559-nys_69-1 35559-nys_69-1 Sheet No. 15 Side A 10/20/2014 11:50:05 And then I got to Derrick’s class as a student—as I got to Derrick’s And then a a student, that Mr. Bain said—don’tThe third thing aren’t worry, there for Derrick, Lisa Marie In one of the most recent memorials said was, “you have created an The fourth thing that Mr. Bain that the work we do in the world matters, that we are the problem that the work we do in the world 2013] the existence that wrote student Another of classes.” sampling ing a federal the including bench, on the women of large number of a that was are obsolete. So, issues of sexism clear that bench, made one experience. as a Bell Fellow—andTA, later of that experience the bitter impact TRIBUTE PRISCO and I of my own voice, and claimed more and I found was lessened, and on fairness in ground my thoughts on justice learned how to thinking. I learned the Constitution and in legal the framework of colleagues in the but I also learned it from my that from Derrick, classroom. that many—was,by getting them have helped students learn “you issues, that they to solve problems, constitutional involved in trying in that 2004 as important.” Another student have come to regard 17 concept by saying, knowing it, illustrated this class, again, without our day forces us to the politically charged issues of “linking con law of our legal reasoning. You show to think about the consequences No longer can we pretend us who will suffer from our decisions. our Ivory Towers.” Derrick re- that we cannot see the world from minds us—and word in the present tense— I’m going to use the are the problem solvers of this solvers of this time and place. We in our hands and in what we do time and place, and that much rests with that. made that interspersed interviews Boykin showed a film that she’d and recollections of people who with Derrick with historical footage one scene in it that has really knew and loved him. There’s this and brutal photo of police haunted me: there’s a very frightening attack dogs (they seem to be Ger- officers and they’re unleashing teeth on civil rights protesters, man Shepherds) that have bared who was recalling his school de- and a voice offscreen asks Derrick, “weren’t you afraid?” And Der- segregation work in the deep south, if you can think of Derrick’s rick, and I want you to take a minute, and just think about him say- voice, his soft, gentle, humble voice, couldn’t think about that.” ing it, he said, “well, you just really environment in which students believe that their work will be con- an sidered fairly and honestly.” The fifth was, “you have provided opportunity for students to try, to come up short, to get feedback on their efforts, and to try again, in advance of summative judg- ments about their efforts.” I would add that Derrick was interested \\jciprod01\productn\N\NYS\69-1\NYS103.txt unknown Seq: 5 8-OCT-14 12:19 35559-nys_69-1 Sheet No. 15 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 15 35559-nys_69-1 35559-nys_69-1 Sheet No. 15 Side B 10/20/2014 11:50:05 His willingness to allow us to try, to come up short, to course- us to try, to come to allow His willingness justice, the reminds us that the fight for social Finally, Derrick Learning: A Detailed Exposi- At the very end of “Participatory shortly before his eighty- As many of you know, Derrick died When asked about retirement I respond that, health permit- When asked about retirement I I get it right. In setting up ting, I intend to keep teaching until in 1992, then-Law School- my permanent visitor scheme back the “Walter Alston of Legal Dean John Sexton dubbed me and Angeles Academe.” Alston managed the years on a string of one-year Dodger baseball team for twenty record would mean not only contracts. Equaling the Alston but that I have done so doing that I survive to age eighty two, some worthwhile purpose. work that I love, and I hope served 18 loves. and our our passions, interests, lives, our in our engaged and part- life suitable finding think about us to encouraged He often NYU ANNUAL SURVEY about his of marriage and about the joys he often talked ners and OF AMERICAN LAWlove, Janet. [Vol. 69:13 into our classroom and beyond the to try again, extended correct, said, as Professor Williams spoke about, up. Derrick often growing and he em- children and grandchildren, his students as adopted aspects of the most amazing and essential bodied one of love and grandparenthood, which is unconditional parenthood and to change, to your children to make mistakes, a willingness to allow us to do that to course-correct. Derrick allowed grow, to mature, us to do that. and he encouraged not only with so engaged in, is a fight best fought fight that he was and song, and and determination, but with love, intellect, reason, of ourselves. I re- joy. He reminds us to take care food, and even sent me. I’d told him I had gotten cently was reading an e-mail he the job I now have, and he was a an interview for a job I wanted, it’s expect a call. He and Janet wrote reference and I said he should parents, we want you to do back, and said, quote: “as your adopted kill your damn self. And that is good when you get the job but not serious.” End quote. expositions of his method that he tion,” which is one of the detailed to explain his course, this is what had written for the law school end here: Derrick wrote, and I’m going to in first birthday. While he may not have equaled the Alston record his years, or made eighty-two, there is no doubt that his work and life served a deeply worthwhile purpose. And there is no doubt that he got it right. And there is also no doubt that all he taught guides \\jciprod01\productn\N\NYS\69-1\NYS103.txt unknown Seq: 6 8-OCT-14 12:19 35559-nys_69-1 Sheet No. 15 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 15 35559-nys_69-1 35559-nys_69-1 Sheet No. 16 Side A 10/20/2014 11:50:05 RISCO P ABRIELLE G Direction of Juvenile Justice Project of Juvenile Justice Direction Correctional Association of New York Association Correctional 2013]us—meus—towards of and each worth. and of meaning lives you. Thank TRIBUTE PRISCO 19 \\jciprod01\productn\N\NYS\69-1\NYS103.txt unknown Seq: 7 8-OCT-14 12:19 35559-nys_69-1 Sheet No. 16 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 16 35559-nys_69-1 35559-nys_69-1 Sheet No. 16 Side B 10/20/2014 11:50:05 20 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:13 \\jciprod01\productn\N\NYS\69-1\NYS103.txt unknown Seq: 8 8-OCT-14 12:19 35559-nys_69-1 Sheet No. 16 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 16 35559-nys_69-1 35559-nys_69-1 Sheet No. 17 Side A 10/20/2014 11:50:05 21 NORMAN DORSEN NORMAN TRIBUTE TO DERRICK BELL DERRICK TO TRIBUTE You have just heard Gabrielle Prisco’s tribute to Derrick Bell. to Derrick Prisco’s tribute just heard Gabrielle You have tended to the emphasis on how Derrick Gabrielle put much point about the sibling rivalry Professor Williams made a good was in the late 1960s when he My first interaction with Derrick had already It was late 1971, and President beyond those days. \\jciprod01\productn\N\NYS\69-1\NYS104.txt unknown Seq: 1 8-OCT-14 12:32 As Dean Revesz said in passing, Gabrielle was a Hays Civil Liberties was a Hays Civil Gabrielle Revesz said in passing, As Dean Fellow in 2002–2003, Law, Professor working with Professor Sylvia what a vital force and me. You can imagine Helen Hershkoff, Fellow who did . and is. I can’t recall another Hays Gabrielle was . . tasks that an active the countless administrative more to assist with her civil liberties while simultaneously fulfilling program requires her achievements distinction. We are proud of responsibilities with from law school. since she graduated Someone who as well as their minds and hearts. souls of students John Sexton. with these words was President was especially pleased that one of his main missions in For many years he has said publicly been grateful for John’s solici- life was to save my soul. I have always won’t succeed because it is un- tude, but regrettably he probably as a soul. likely that there is such a thing Bell’s students and mentees. I that has erupted among Derrick the genre, but I entered Harvard hope this is not an example of that admitted women. I do not Law School in 1950, in the first class but years later I realized how claim special insight or virtue, women in our class were, and marginalized the thirteen or fourteen three or four African Americans how even more marginalized the be done to achieve a just society, at were. While so much remains to least we have progressed—again, Professor Williams has said— as Fund. I had come to NYU to was a staff lawyer at the Legal Defense Liberties Program, and Derrick head the Arthur Garfield Hays Civil two matters. But the incident that and I worked together on one or after he left LDF to become the fixed my sense of Derrick occurred at Harvard Law School. first African American professor made four appointments to the Supreme Court, permanently end- I ing the liberal majority in which so many of us rejoiced and which, suspect, we naively thought would be a permanent condition. But we lived and learned, and the civil rights community had to adjust to the new reality. One pressing need was to develop vigorous and 35559-nys_69-1 Sheet No. 17 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 17 35559-nys_69-1 35559-nys_69-1 Sheet No. 17 Side B 10/20/2014 11:50:05 would do. he Aryeh Neier, then-executive director of the ACLU, proposed to ACLU, proposed director of the then-executive Aryeh Neier, then as vice presidents Anthony Amsterdam, The board chose wanted to know more about Derrick did not accept at once. He later saying that, however Happily, Derrick called a few days a group as the SALT I might add that even as progressive 22 LDF, ACLU, at the the lawyers with to work litigators sophisticated of source A promising organizations. other front-line and NAACP, NYU ANNUAL SURVEYprofessors, activist law number of young, the increasing talent was OF AMERICAN LAW some of Court and milk of the Warren reared on the who were struggle. already in the whom were [Vol. 69:21 that would law professors organization of of creating an me the idea liberal academics of this effort. I invited about ten be at the center We ex- and it was received with enthusiasm. to discuss the idea Gillers, then in and, with the aid of Stephen panded the group by-laws and first executive director, we drafted practice and our joined. Thus professor in the country. Hundreds solicited every law known as SALT. of American Law Teachers, was born the Society it also selected elected me president and The board of governors four vice presidents. Gary Bellow of School and now an NYU colleague, of Stanford Law Ralph Brown of Yale. All were civil Harvard, and Tom Emerson and the only board member who no- liberties stalwarts, and I was not of color in the group even ticed that we did not have a person was interwoven with racial issues. though much of SALT’S agenda or other minority law teachers at There were few African American become an academic, but sev- the time. Derrick had only recently at LDF. We elected him, and I eral of us knew of his excellent work telephoned to extend the invitation. do, and what SALT, what the organization would he was busy learning the craft, as Moreover, as a new law professor, responsibilities, about which more we all had to, and he had special below. We discussed all this. his values, and he would be busy he was, SALT’s goals reflected Moreover, he said, his wife told proud to serve as a vice president. him to accept. recollection, discuss the possibility board did not, to the best of my more remote idea, a gay person as of selecting a woman or, an even a vice president. Once again, there were few women and possibly I no “out” gay law professors, but that also was a sign of the times. am pleased to say that over the decades SALT has become an enor- mously diverse organization that can serve as a model for other groups. \\jciprod01\productn\N\NYS\69-1\NYS104.txt unknown Seq: 2 8-OCT-14 12:32 35559-nys_69-1 Sheet No. 17 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 17 35559-nys_69-1 35559-nys_69-1 Sheet No. 18 Side A 10/20/2014 11:50:05 did not meet its academic or intellectual stan- did not meet its academic or intellectual Y or X Several things struck me about my conversations with Derrick. with my conversations me about struck things Several years, but he wisely advised SALT over the Derrick not only will be the remarka- Derrick’s even more lasting contribution Derrick had begun to speak But all was not quiet at home base. Derrick left Harvard amidst controversy. He continued his stel- 2013] civil rights and civil do to help might what he was sole concern His wasn’t a Harvard. There his duties at while fulfilling liberties with to be associated mean for his career of what it would whisper there the Nor was as vice presidents. already selected the luminaries only af- him latterly, we were approaching suggestion that slightest TRIBUTE DORSEN the he downplayed were chosen; white vice presidents ter the four “of course” he understood—thereissue, saying that were only a few probing questions Further, Derrick asked black law professors. raised issues that its newly created mission. He about SALT and overlooked. All over four or five meetings had twenty law professors eager for Derrick to join us. this made us more Among many scholar and admired teacher. emerged as a superb article on an he wrote the leading law review other publications, 23 How issue for public interest organizations: important and vexing serve “two mas- LDF, the ACLU, and the others, should lawyers at ters”—the policy goals of the organization they worked for and the which sometimes conflicted. best interests of the individual clients, accurately, at least based on my I recall being bowled over by how tensions and offered possible so- experience, Derrick described the and institutionally sound on lutions that were intellectually creative a subject that had hardly been explored. that presented past and current bly creative “dialogues” or “fables” clarified the moral dilemmas of issues facing people of color and of racial discrimination and men and women during centuries these essays without acquiring a struggle. It is impossible to read deeper understanding and empathy. of African Americans publicly on the inadequate representation law faculties, including Harvard. and other racial minorities on in good faith, responded by Many of Derrick’s colleagues, I assume saying that \\jciprod01\productn\N\NYS\69-1\NYS104.txt unknown Seq: 3 8-OCT-14 12:32 dards. While that may have been true in many cases, it was also true dards. While that may have been what counted ultimately were about many white candidates. And of necessity, and the willingness to matters of judgment, the feeling faculty appointments. take risks, as is often done with lar career at Stanford and at Oregon Law School, as dean. In both places he took similar, aggressive stances on the need for law schools to expand their hiring horizons. In both places he created controversy. He couldn’t help it. He knew himself and knew where 35559-nys_69-1 Sheet No. 18 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 18 35559-nys_69-1 35559-nys_69-1 Sheet No. 18 Side B 10/20/2014 11:50:05 ORSEN D ORMAN N New York University School of Law; Frederick I. and Grace A. Stokes Professor of Law Frederick I. and Grace A. Stokes Counselor to the President of New York University; Counselor to the President of New President, American Civil Liberties Union 1976–1991;President, American Civil Liberties President, U.S. Association of Constitutional Law 2000 President, U.S. Association of Constitutional President, Society of American Law Teachers 1972–1973;President, Society of American Law Co-Director, Arthur Garfield Hays Civil Liberties Program Co-Director, Arthur Garfield Hays He returned to Harvard but once again departed, this time to departed, this time but once again to Harvard He returned were the most striking compliments At Derrick’s memorial 24 Riv- at the service memorial Derrick’s said at someone As he stood. a grown-up. born he was Church, erside NYU ANNUAL SURVEY OF AMERICAN LAW two de- Law School over so much to our he added N.Y.U., where mine and office next to Vanderbilt Hall time, he took the cades. In [Vol. 69:21 of the was reminded relationship. I often deepened our we soon commit- substantive, and modest, Bell of 1971. Soft-spoken, Derrick hope I did. listened as well as spoke, as I ted. Moreover, he places where at N.Y.U., Harvard, and other from former students urgency about In his position he felt a special he had taught. who were seeking Americans and other students mentoring African students often maze of legal education. These a way through the a son or daughter that had not previously sent came from families to be a deeply his relations with students to college. He considered was remarkable and opportunity. There important responsibility memorial, which from those who spoke at the love for Derrick the decades to our one bit as I thought back over didn’t surprise me earliest encounters. \\jciprod01\productn\N\NYS\69-1\NYS104.txt unknown Seq: 4 8-OCT-14 12:32 35559-nys_69-1 Sheet No. 18 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 18 35559-nys_69-1 35559-nys_69-1 Sheet No. 19 Side A 10/20/2014 11:50:05 25 . with theories and opinions—we will students students BENJAMIN J. WOLFERT BENJAMIN Thank you very much Dean Revesz. The dedication ceremony Revesz. The very much Dean Thank you Annual Survey know, every year the N.Y.U. As many of you may today—andSo, as the only student speaking if my fellow stu- As law students, we are constantly made aware of the many dif- As law students, we are constantly INTRODUCTION OF JANET DEWART BELL DEWART JANET OF INTRODUCTION \\jciprod01\productn\N\NYS\69-1\NYS105.txt unknown Seq: 1 13-OCT-14 10:55 is such a meaningful part of the N.Y.U. Annual Survey of American Survey of of the N.Y.U. Annual meaningful part is such a you have shown grateful for the support Law so we are extremely in Student the years. Thank you also to everyone this event through help with this event Affairs for your – David Mora, Paul O’Grady, thank you to Lisa and Tracee Nwafor. Finally, Susan Anderson, I am for your Bell. I cannot tell you how thankful Boykin and Janet pulling everything this event and your help in participation in together. to a member dedicates a volume of its publication of American Law to American in honor of their contributions of the legal community Editor-in-Chief is to summarize a law. Traditionally, the role of the inspired our board to nominate few of those contributions which Professor Bell, his contributions to the dedicatee; but in the case of are both too numerous and too American law and legal scholarship justice in my brief time up here. profound for me to do them any people on this stage for that Plus, there are many far more qualified task. for them—Idents here will permit me to speak would like to offer a ways in which Professor Bell has very brief observation of one of the impacted American law ferences between “theory” and “practice”—or to put it differently, and “the real world.” Many of the differences between “law school” to law firms or other institutions us beginning next fall will retreat There, the riveting policy debates engaged in the practice of law. of court decisions that became and the scrutiny of the implications experiences will seem to disap- so fundamental to our law school pear—or Instead, as my conversa- at least become less prominent. revealed, we will seem to become tions with recent graduates have something other than become practitioners, with clients, bosses, and cases. I am fairly cer- tain that for all of us this transition will present numerous chal- it lenges and that we will quickly find ourselves in a situation where will appear difficult if not impossible to reconcile our beliefs with all those of our clients or bosses. In other words, I’m sure we will 35559-nys_69-1 Sheet No. 19 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 19 35559-nys_69-1 35559-nys_69-1 Sheet No. 19 Side B 10/20/2014 11:50:05 OLFERT J. W a practitioner Editor-in-Chief and ENJAMIN B N.Y.U. Annual Survey of American Law N.Y.U. Annual Survey of American ’s Person of the Year Issue, Professor Bell said that he Year Issue, Professor Bell said that ’s Person of the In a 1992 interview referenced in an article on Professor Bell in referenced in an article on Professor In a 1992 interview the anxiety of and I begin to cope with As my fellow students of the N.Y.U. Annual Survey On behalf of the Board of Editors Professor Bell, through both his scholarship and actions, con- and actions, both his scholarship Bell, through Professor and at every step was able to stay true to his own theories and con- was able to stay true to his own and at every step beliefs and coun- he faced a conflict between his victions. Whenever former succumb pressures, he never let the tervailing professional to the latter. Time Magazine a way, practice the opportunity to, in so public was “grateful for for so long.” what I have preached to “the real world,” I think that we transitioning from law school life all—whether regardless of whether we were knowingly or not; and or to take a class with Profes- lucky enough to know him personally sor Bell—are Bell’s career as a shining grateful to have Professor never forget those debates in example, reminding us that we should as students with ideas; and more our classes or lose our identity afraid to practice what we preach. importantly we should never be which Professor Bell has impacted This is one of the many ways in of the reasons why I am so thankful American law students, and one voted overwhelmingly to dedicate that the board of Annual Survey Derrick Bell. our Sixty-Ninth Volume to Professor to welcome you as we dedicate our of American Law, I am honored the scholarship and legacy of Sixty-Ninth Volume to commemorate Professor Derrick Bell. 26 “prac- to be difficult it will where our careers early in moments face easy to so seemed as students that something preach,” what we tice NYU ANNUAL SURVEY we will in these situations, our discomfort perhaps to ease do. And OF AMERICAN LAWand “prac- “theory” differences between ourselves of the remind tice”—“law real world.” school” and “the [Vol. 69:25 the case. not have to be that this does students stantly reminded his career as a legal scholar Professor Bell spent \\jciprod01\productn\N\NYS\69-1\NYS105.txt unknown Seq: 2 13-OCT-14 10:55 35559-nys_69-1 Sheet No. 19 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 19 35559-nys_69-1 35559-nys_69-1 Sheet No. 20 Side A 10/20/2014 11:50:05 27 JANET DEWART BELL JANET DEWART ACKNOWLEDGMENT Love, soul, they are things that we can talk about in this univer- Love, soul, they are things that we his legacy. One thing I want People talked about Derrick and a lot of names here today, but A couple names, you have heard Thank you very very much. Derrick would be so pleased. I have be so pleased. Derrick would very very much. Thank you to say a couple of quick things. One is that he picked all the speak- he picked all things. One is that couple of quick to say a a year ago, and he was planned, we started about ers because this to speak today. with the fact that they were able would be so pleased of universities, students! You can be presidents And so many former in Derrick’s mind, of Fortune 500 companies, but you can be heads And so, I just student, because he loves students. you are always a to Dean Revesz, you to the speakers, thank you want to say thank of the Bell fam- John Sexton. And on behalf thank you to President not only keep in appreciate the fact that people ily, we really do and that’s very but really carry on his legacy, mind his memory, important. for me they are represented and sity, and in this law school, and knows we love John Sexton. embodied by John Sexton. Everyone no other choice but to have John And when Derrick died, there was you again for that. I’m wearing Sexton do the eulogy. And so thank because we bleed N.Y.U. colors in my special edition N.Y.U. scarf is right that Derrick actually pro- the Bell household. And John at this university. claimed that he was happy being work. He was the lawyer for to mention is about his civil rights was there with Medgar Evers just Medgar Evers’ children and he was assassinated. So the work that two weeks before Medgar Evers but he never talked about it and Derrick did was dangerous work, always said that the people who he never complained about it. He heroic and courageous because were there were the ones who were and leave, which he did. So his re- he could always get on a plane people was extended for everybody spect for people and his love for he protested against sometimes. he worked for, even those people not mention two people who were I would be remiss if I really did in the room, right up to the very with Derrick, as were many people end. And this is his longtime and loving secretary, administrative assistant, whatever the title is called, Gail Thomas, and his fellow, Joy Radice. They made the last year, what became the last semester, to so wonderful. Derrick was never more happy until he came back of the school in that wheelchair. We saw you that day, that was one \\jciprod01\productn\N\NYS\69-1\NYS106.txt unknown Seq: 1 15-OCT-14 10:30 35559-nys_69-1 Sheet No. 20 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 20 35559-nys_69-1 35559-nys_69-1 Sheet No. 20 Side B 10/20/2014 11:50:05 ELL B EWART D ANET J Widow of Professor Derrick Bell Communications and Management Consultant Communications and Management 28 to an back was coming he seen because ever days I had the happiest he that to the students back coming with, was happy he institution NYU ANNUAL SURVEY and talking to someone he died we were week before loved. The OF AMERICAN LAW and he looked at her miss most?” Derrick “What will you she said, “When hesitation, he said way, without nice, quiet, sweet said, in his [Vol. 69:27 were students.” Students and I’ll miss my miss my family, I die, I’ll who to thank Ben Wolfert, him so I want very special to always very on the An- of a student, and the students is a wonderful example honor for Derrick. you so much for this great nual Survey, thank joy! So alright with to say, Derrick was a person of And I also want are celebrating a alright, we are celebrating, we the long faces here, that Derrick, I want to leave you with these words wonderful life. So the things you and courageous, and all besides being brilliant sing, and joke, a person who loved to dance, and heard, was really he went. He really carried joy with him wherever and tease and who The struggle to do that in spite of the struggle. wants other people said at the me- we can still do, as Gloria Steinem will continue but are struggling for electric slide protest while we morial service, the scholarship, yes, but the joy, and the rights. So just remember the and worth. Thank you so very the purpose, and the life of meaning much. \\jciprod01\productn\N\NYS\69-1\NYS106.txt unknown Seq: 2 15-OCT-14 10:30 35559-nys_69-1 Sheet No. 20 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 20 35559-nys_69-1 35559-nys_69-1 Sheet No. 21 Side A 10/20/2014 11:50:05 29 ABSTRACT KHALED A. BEYDOUN* KHALED ARAB AMERICAN IDENTITY AMERICAN ARAB BETWEEN MUSLIM AND WHITE: AND MUSLIM BETWEEN THE LEGAL CONSTRUCTION OF CONSTRUCTION THE LEGAL This Article examines the legal origins of Arab American iden- the legal origins of Arab American This Article examines attention to the Arab nat- Legal scholars have paid insufficient * Fellow, Assistant Professor of Law, Barry Law School; Critical Race Studies UCLA School of Law. The author would like to thank Khaled Abou El Fadl, UCLA School of Law. The author would Asli Bali, Fikrieh Beydoun, Luke Boso, Hishaam Aidi, Abed Ayoub, Sahar Aziz, Samuel Bray, Karen Brodkin, Devon Carbado, Maureen Carroll, Kim Crenshaw, Laura Gomez, Nadim Hallal, Timothy Han, Cheryl Harris, Jerry Kang, Randa Kayyali, Jasleen Kohli, Erik Love, Hiroshi Motomura, Jyoti Nanda, Jason Oh, Gabriela Ortiz, Ediberto Roman, Annalise Glauz-Todrank, William Wood, Jordan Blair Woods, William Youmans, and Noah Zatz. \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 1 8-OCT-14 15:03 tity during the racially restrictive Naturalization Era (1790 through restrictive Naturalization tity during the racially American citizen- was a prerequisite for 1952), when “whiteness” during this era fifty-three naturalization hearings ship. Ten of the Judges during the from the “Arab World.” involved a petitioner with “Muslim” viewed “Arab” as synonymous Naturalization Era non-white, and were presumed to be identity. Because were presumptively inel- Arabs were presumed to be Muslims, however, could be rebut- igible for citizenship. This presumption, ted. Arab Christians could—anddid—invoke the fact of their white. These arguments some- to argue that they were petitioners, but did not al- times secured citizenship for Christian every immigrant from the Arab ways rebut the presumption that World was Muslim. not only how judges viewed re- uralization cases. These cases reveal the ways in which they conflated ligion as a proxy for race, but also to do so. This conflation persists Arab identity with Muslim identity to believe that Arab is synony- today in that many people continue that is especially salient following mous with Muslim, a conflation Almost all of the current liter- the September 11th terrorist attacks. on how the government’s re- ature on centers to be Arabs, Muslims, or sponse to 9/11 made people perceived forms of racial surveillance, Middle Eastern vulnerable to legalized subordination, and violence. 35559-nys_69-1 Sheet No. 21 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 21 35559-nys_69-1 35559-nys_69-1 Sheet No. 21 Side B 10/20/2014 11:50:05 R R R R R R R R R R R R R R R R R R R R R ..... 44 ...... 61 ...... 56 ...... 57 ...... 46 ...... 52 ...... 75 ...... 40 ...... 38 ...... 50 ...... 58 Dow v. United States ...... 62 ...... 63 ...... 65 ...... 51 : Naturalization or Natural : Nascent “Arab American Identity” as : Nascent “Arab American Identity” ...... 68 ...... 37 ...... 49 ...... 43 Dow ...... 31 ...... 71 Immigrants Immigrants from the Arab World Citizenship Christian and White American Identity 1. with Muslims 2. Real Christians or Covert Muslims? Ex Parte Mohriez Resources? Americans Identities Whiteness B. to Arab Muslim American Citizenship Barred C. Against Muslim Reversing the Restriction A. Syrian Christians: The First Wave of Immigrants B.Nexus to American Christian Purity and Its C. White By Religion: D. After A. Arabism and Its Impact on Formative Arab A.Are Arab Americans? Who B.Muslim Americans? Who Are A. Orientalism and American Political Ideology B. Courts Orientalism in American While this body of work is important, this Article introduces a introduces this Article is important, of work this body While I. Arab Americans From Muslim Distinguishing V. II.Muslim Conflation of Arab & The Orientalist IV.Interest Convergence Between Arabism and III. Christianity as Passage Into Made in Our Image: Conclusion Table of Cases: Arab Naturalization Cases 30 Americans—the of Arab racialization post-9/11 to the preface ra- NYU ANNUAL SURVEYNaturaliza- during the Muslim identity of Arab and cial conflation OF AMERICAN LAW Muslim rendered Arab during this era The courts tion Era. some- inassimilable, while non-white and presumptively immigrants [Vol. 69:29 white by citizenship and eligible for Arab Christians times finding that earlier identity in of Arab American legal construction law. The and misunder- contemporary understandings period helped shape today. Arab and Muslim American identity standings of both Introduction \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 2 8-OCT-14 15:03 35559-nys_69-1 Sheet No. 21 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 21 35559-nys_69-1 35559-nys_69-1 Sheet No. 22 Side A 10/20/2014 11:50:05 ]. 1 THNIC- E THNICITY He had E 5 Immigration ACE AND ACE AND : R repealed by HITE This evidence clearly 7 W 49 (2006). RAB AND ]. —Edward Said, Orientalism A 4 ., (Syrian Stud. Ass’n, Bos., Mass.), Win- 58 (2009) [hereinafter R MERICANS 307 (Random House LLC 1979). EWSL IASPORA A ETWEEN N D The Naturalization Act of 1790 made The Naturalization , B N Syrian Immigrants and Debates on Racial Belonging RAB 3 ’ IASPORA SS A D INTRODUCTION . A HE RIENTALISM MERICAN UALTIERI , T TUD , O A Syrian Immigrants and Debates on Racial Belonging in Los Ange- Syrian Immigrants and Debates on Racial Belonging S MERICAN AID A AYYALI YRIAN M. A. G YRIAN S W. S A. K YRIAN , S S ARLY ARAH S The Naturalization Act of 1870, which followed the abolition of slavery, The Naturalization Act of 1870, which E ITY IN THE IN THE ANDA DWARD ARLY See Id. An immigrant from , Hutton was elected to preside from Canada, Hutton was elected An immigrant E 2 Shishim’s appearance defied the caricature common of Arabs Shishim’s appearance defied the Shishim had lived in for twenty-five years. Shishim had lived Judge George H. Hutton peered across his bench in the direc- bench in the peered across his H. Hutton Judge George 6 1. E 7. The “Arab World” is a social and political construction. It presently encom- 2. 3. 103, 103, Naturalization Act of 1790, ch. 3, 1 Stat. 6. Sarah Gualtieri, 5. R 4. 1875–1945 “[E]ach time the concept of the Arab national character is national character of the Arab time the concept “[E]ach employed.” the myth is being evoked, , 2013] WHITE BETWEEN MUSLIM AND of California Shishim, a longtime resident tion of George Shishim. the Ottoman Em- Mount Lebanon Province of and native of the American citizen- Hutton’s court to petition for pire, had entered 31 ship. \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 3 8-OCT-14 15:03 over the Superior Court in 1906. Judges like Hutton Superior Court in 1906. Judges over the Los Angeles fit within discretion to decide which immigrants held unfettered 1790 through of “whiteness” from the period the statutory scope Era). 1952 (Naturalization while his testimony that Ven- in early Twentieth Century America, a degree of assimilability un- ice was his longtime home highlighted World.” becoming of a native from the “Arab passes nations in the and North and East Africa where is com- monly spoken. In addition to its use as a fluid linguistic identification, the Arab World is also a designation that refers to the twenty-three states that are members of the . For more information on the Arab League, see Krister Ander- les served as an officer in the Los Angeles Police Department, and had served as an officer in the Los Angeles for his naturalization hear- donned his uniform, cap, and regalia ing. whiteness a prerequisite for American citizenship during the 160- for American citizenship whiteness a prerequisite it was repealed. year period before extended naturalization eligibility to “aliens of African nativity and to persons of extended naturalization eligibility to “aliens 1870, ch. 254, 16 Stat. 254, 256. African descent.” Naturalization Act of and Nationality Act of 1952, Pub. L. No. 82-414, 66. Stat. 163 (“[A]ny alien, being a and Nationality Act of 1952, Pub. L. No. within the limits and under the jurisdic- free white person, who shall have resided two years, may be admitted to become a tion of the United States for the term of law court of record, in any one of citizen thereof, on application to any common for the term of one year at least . . . .”). the states wherein he shall have resided ter 2009–2010, at 5 [hereinafter 35559-nys_69-1 Sheet No. 22 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 22 35559-nys_69-1 35559-nys_69-1 Sheet No. 22 Side B 10/20/2014 11:50:05 , IL- AST E 9 AYYALI RABS IN A IDDLE in VII (2005); R. 7 (2004). M , L ’ note 6 (citing NT ISTORY . I ODERN supra , M ARV : A H , 25 H MERICANS A ISTORY OF THE RAB A , A H HE 1 (Michael W. Suleiman ed., 1999). , T UNTON B UTURE RFALEA F ARTIN O Introduction: The Arab Immigrant Experience EW N & M REGORY G Judge Hutton initially seemed persuaded by the Natu- seemed persuaded by the Judge Hutton initially 8 UILDING A LIAM LEVELAND . (discussing hand-written notations at the bottom of Shishim’s Oath of : B See Syrian Immigrants and Debates on Racial Belonging See Syrian Immigrants and Debates on Racial Id See also Short on persuasive rebuttals, Shishim closed with the lone ar- rebuttals, Shishim closed with Short on persuasive Although an established resident and servant of the State of of the State resident and servant an established Although note 5 (“[T]oday, there are approximately 270 million Arabic-speaking peo- note 5 (“[T]oday, there are approximately Going Major: Reforming the League of Arab States Going Major: Reforming the League of Arab 8. 9. L. C MERICA Oath of Allegiance for George Sulayman Shishim, Nov. 4 1909, Naturalization Oath of Allegiance for George Sulayman 1876–1915,Records of the Superior Court of Los Angeles, NARA M1614) (indicat- denied on the grounds that he “did not ing that Shishim’s petition was initially come under the provisions of Section 2169 of the Revised Stat[ut]es of the United States,” namely the provision that allowed naturalization for “aliens, being free white persons and . . . aliens of African nativity and persons of African descent.”). Allegiance indicating that it had caused judicial conflict). A (4th ed., 2009). For a general history of Arab Americans, see generally K (4th ed., 2009). For a general history gument that could potentially resonate with Hutton and redeem gument that could potentially resonate petitioner rose from his seat, stood the prospect of citizenship. The on his jacket, and declared: firmly with his police badge glistening son, 32 Los Angelino to mainstream had conformed Shishim that revealed immi- of the petitions over presiding judges that a factor society, NYU ANNUAL SURVEY in deter- considered and elsewhere, the Arab World, grants from OF AMERICAN LAW whiteness. definition of within the statutory they fit mining whether petitioner for an Arab required the level of assimilability However, [Vol. 69:29 his religious identity. turned on citizenship generally to access becoming an odds were stacked against Shishim California, the before his appear- on November 4, 1909. Weeks American citizen moved to Hutton, a Naturalization Examiner ance before Judge that his “Arab citizenship petition on the grounds quash Shishim’s the meaning of him from being white within identity” disqualified the statute. \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 4 8-OCT-14 15:03 ralization Examiner’s position, which deemed immigrants from the position, which deemed immigrants ralization Examiner’s American democ- originated from hostile to both region Shishim aliens. and thus, a class of inassimilable racy and Christianity, Furthermore, the region referred to as the Arab World has experienced considera- Furthermore, the region referred to as the of immigrants from the region traveled to ble reform since the first sizeable wave the Levant (which encompasses present- America. Much of the region, particularly was colonized by the Ottoman day Lebanon, Syria, Jordan, and Palestine/Israel) its loss, the “sick old man of Eu- Empire until the end of . Following shared, and divided by the French rope’s” spoils in the Middle East were claimed, Act of 1916. Old Ottoman territo- and the United Kingdom under the Sykes-Picot neatly drawn boundaries that accorded ries were formed into nation-states with Kingdom, and their arbiters. For more with the interests of France, the United subsequent periods, see generally W discussion of the post-World War I era and supra ple.”). Michael W. Suleiman, 35559-nys_69-1 Sheet No. 22 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 22 35559-nys_69-1 35559-nys_69-1 Sheet No. 23 Side A 10/20/2014 11:50:05 OD MERI- G supra , A http:// XPERIENCE RAB ON OF E A S IASPORA in HE note 6. , D : T available at supra , MMIGRANT I HRIST as was Christianity, 13 15 MERICAN C 14 RAB A A The Business of Remaking Arab- and Shishim’s spirited ap- and Shishim’s YRIAN ARLY OLOR OF 11 S E C HE HE ARLY : T , T E Hutton was finally convinced that was finally convinced Hutton 12 ARVEY MERICAN H 9 (2012) (“Whiteness became a crucial symbol of 9 (2012) (“Whiteness became a crucial A AUL (June 15, 2012, 7:05 PM), http://www.aljazeera.com/ Dept. of Justice Affirms Arab Race in 1909 MERICA , & P THNICITY IN THE A ECOMING E note 5; Khaled A. Beydoun, AZEERA AIEK LUM J , B L ACE IN AFF J. B supra Christianity ranked among the primary hallmarks of hallmarks the primary among ranked Christianity , A R. H , R N 10 (News Circle Publ’g House 6th ed. 2010) (1972), (News Circle Publ’g House 6th ed. 2010) ACE AND R LIXA DWARD CAN OSEPH AYYALI See Syrian Immigrants and Debates on Racial Belonging See Syrian Immigrants and Debates on Racial See AGA OF K S LMANAC Significantly, the conflation of Arab and Muslim identity was conflation of Arab and Muslim Significantly, the 10. J 11. E 12. 13. 14.the discussion of Muslim as a racial Considering the scope of this Article, 15. A A at 58, 69. THE whiteness in the United States in 1909, in the United whiteness 2 (Teresa White ed., S. Ill. Univ. Press 1993) (1985)2 (Teresa White ed., S. Ill. Univ. Press 1993) they migrated from (“Because until the end of the in the Ottoman province of Syria which, the 1917, included Mount Lebanon, they all called themselves Syrian. In the 1920s term ‘Lebanese’ as a national label or identity was given political legitimacy and was adopted by most immigrants originating in Mount Lebanon.”). This Article also refers to the first wave of immigrants from the “Levant,” the region encom- passing present-day Syria, Lebanon, Israel and the Palestinian territories, as Syrian. & 2013] the came from we because was Jesus, then so am a Mongolian, “If I land.” same WHITE BETWEEN MUSLIM AND 33 Naturalization Era. within the courts during the deeply entrenched as an ethno-racial identity, was treated \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 5 8-OCT-14 15:03 Shishim’s Christian identity was authentic. As a result, Shishim be- As a result, Shishim was authentic. Christian identity Shishim’s as World to be naturalized from the Arab first immigrant came the judicially ruled white by law. an American and American Identity indepth/opinion/2012/06/2012610114257813921.html. peal insisted that, although from the Arab World, he was not a Mus- World, he was from the Arab that, although peal insisted in fact, a Christian. lim and, which functioned as a hallmark of whiteness and a prospective gate- as a hallmark of whiteness and which functioned World. Judges for immigrants from the Arab way toward citizenship racial associations these religiously determined who performed upon other dis- so within a vacuum. They relied were not doing classified Christian those from eugenicists who courses, including distinct from the Arab World as a racial group immigrants from Christianity. “Arabs” solely on account of their national identity and citizenship.”). note 2, at 69. Hutton ruled that Shishim fit within the statutory definition of white- note 2, at 69. Hutton ruled that Shishim faith that delivered American citizen- ness. It was not merely Shishim’s Christian was grounded in both faith and racial ship, but also his plea that his Christianity although a native from the Arab World, lineage. Shishim persuaded Hutton that Shishim showcased his Christian iden- he was not an inassimilable Muslim. Rather, the American citizenship that followed. tity to carve a portal toward whiteness, and Id. www.arabamericanhistory.org/archives/dept-of-justice-affirms-arab-race-in-1909/; see also identity will focus exclusively on Arab, and specifically on Arab American, identity. identity will focus exclusively on Arab, and 35559-nys_69-1 Sheet No. 23 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 23 35559-nys_69-1 35559-nys_69-1 Sheet No. 23 Side B 10/20/2014 11:50:05 NITED Tables lifted U 17 See infra and the law. That 19 ORMATION IN THE Ex parte Mohriez F ACIAL , R INANT illustrated the conflations and dis- and conflations the illustrated 55 (1994) (describing race as “an unstable S A. W 1990 Shishim OWARD S TO THE & H 18 MI note 7, at 7 (“Before World War II, the primary or most accept- note 7, at 7 (“Before World War II, the 1960 O Mohriez, 54 F. Supp. 941 (D. Mass. 1944). 16 . supra ICHAEL ROM THE Ex parte See id identity; 1944, only citizenship was in place until fore ineligible for Era; the end of the Naturalization eight years before were Mus- (whether Christian or Muslim) the Arab World the confla- as a consequence of lims and thus non-white, tion; and the presiding judge that he grant-petitioner could persuade was a bona fide Christian. : F The Shishim hearing, and the broader set of Arab Naturaliza- The Shishim hearing, and the broader This Article contends that every Arab immigrant, both Muslim This Article contends that every Hutton’s analysis in analysis Hutton’s 16. all of which are examined in this This is the title given to the ten cases, 17. 18. 19. M Suleiman, 1) Muslim conflated Arab identity with Presiding judges 2) Muslims were per se A rule that Arab and there- non-white 3) from presumed that immigrant petitioners Presiding judges 4) be overcome if the immi- This presumption could only TATES that bar in 1944. S tion Cases of which it is a part, figures only marginally in the legal tion Cases of which it is a part, figures “racialization” literature on Arab and Muslim See and Christian, was perceived to be Muslim because of the en- and Christian, was perceived to Muslim identity was one and the trenched belief that Arab and persuaded presiding judges that same. Christian petitioners that could sometimes overcome their religious identity was authentic while Muslim petitioners were the conflation and claim citizenship, until categorically ineligible for citizenship able designation for the group was ‘Syrian.’”). from the Arab World. Article, that involve an immigrant petitioner 34 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 6 8-OCT-14 15:03 of Cases. tinctions that mobilized religion to make some Arab petitioners some Arab make to religion mobilized that tinctions The initial white. others as potentially while designating non-white, as a racial designation Muslim functioned of Arab with conflation with non- its alignment of Muslim and the association through extended with whiteness association while Christianity’s whiteness, and toward (American) Muslim identity away from a racial juncture Cases” of the ten “Arab Naturalization whiteness. An examination reveals that: and ‘decentered’ complex of social meanings constantly being transformed by po- and ‘decentered’ complex of social meanings constantly being transformed by litical struggle” and racialization as use of race as a basis for distinguishing among human groups). 35559-nys_69-1 Sheet No. 23 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 23 35559-nys_69-1 35559-nys_69-1 Sheet No. 24 Side A 10/20/2014 11:50:05 This 21 . United States v. Thind and 20 Ozawa v. United States This Article offers a preface to that body of post-9/11 scholar- to that body offers a preface This Article ways in which Article explains the precise Furthermore, this 20. petitioner from Japan who 260 U.S. 178 (1922) (involving an immigrant 21. 261 U.S. 204 (1923) (involving a Sikh native of India who was denied specifically naturalization for citizenship proceedings—conflatedspecifically naturalization converted to Christianity, earned his college education from the University of Cali- converted to Christianity, earned his college fornia, Berkeley, and was ultimately ruled ineligible for naturalization on account of his inassimilable physical appearance). naturalization because his appearance, religion, and did not comport with the judge’s conception of whiteness). 2013] the examine that by articles entirely almost constituted is literature 11th the September to response the government’s in which ways people of Muslims, and conflated Arabs, attacks (9/11) terrorist WHITE BETWEEN MUSLIM AND to be or anyone perceived rendering them descent, Middle Eastern of racial legalized forms vulnerable to of those groups a member and violence. surveillance in which the law— an earlier historical moment ship. It highlights 35 was presumptively identity. Because Arab identity Arab and Muslim naturalization were presumptively non-white, Muslim, and Muslims the same time, be- that Arabs were non-whites. At judges presumed and whiteness, nexus between Christianity cause of the presumed could some- demonstrate that they were Christians Arabs who could that attached to the presumption of non-whiteness times overcome their Arab identity. these results. In so doing, it also the naturalization cases produced concerned with the Naturaliza- builds upon the existing literature important gaps. First, most of the tion Era at large, and fills four focuses on two Supreme Court literature on the naturalization cases opinions, \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 7 8-OCT-14 15:03 Article transcends these cases to include important lower federal Article transcends these cases to to citizenship were adjudicated. court cases in which Arab claims court opinions broadens the Second, examination of these lower to discuss the Naturalization Era identity categories scholars employ Asian ancestry. Third, the Article beyond people of East and South discuss Arab and Muslims expands the terrain on which scholars scholars explore how the after- and the law. It is crucial that legal of people perceived to be Arab math of 9/11 has impacted the lives it is also important to understand or Muslim or Middle Eastern. But has an earlier legal history that the racialization of these identities this Article helps bring into sharp in the Naturalization Era. Finally, employs religion to racialize social relief the ways in which the law is developed as follows. groups. The remainder of the Article 35559-nys_69-1 Sheet No. 24 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 24 35559-nys_69-1 35559-nys_69-1 Sheet No. 24 Side B 10/20/2014 11:50:05 , Hassan Mohriez Ex Parte , the court denied the citizenship In re Ahmed Hassan , held that a Muslim from Saudi Arabia was eligible for citi- , held that a Muslim from Saudi policy interests in the Arab ruling suggests that U.S. foreign Parts I and II of this Article provide important background in- background important provide Article of this I and II Parts of Ori- the ideological and judicial expression Part II highlights of Arab iden- how the distorted conception Section III analyzes from citizenship persisted as The disqualification of Muslims 36 and Muslim of Arab the conflation understanding for formation NYU ANNUAL SURVEY Part I de- performed. Era judges that the Naturalization identity OF AMERICAN LAW Ameri- of the Arab character modern-day demographic scribes the is Being Arab American communities. Muslim American can and [Vol. 69:29 never has American, and being Muslim synonymous with not in fact are Arabs and Muslims of how a clear understanding been. Having to reveal just how synonymous helps and are not demographically work the conflated racial construct—Arab/Mus-much racialization lim— the naturalization cases. performed in Importantly, the Arab Naturalization Cases. entalism that preceded an ideological Cases did not emerge from the Arab Naturalization American politi- They traded on ideas about and juridical vacuum. in a number identity that found expression cal culture and national Supreme Court opinions. of cases, including claims of the first eight petitioners tity complicated the citizenship were Syrian Christians. Because from the Arab World, all of whom from the region were Mus- of the presumption that all immigrants Christians to prove the authen- lims, the burden shifted onto Syrian order to attain whiteness and ticity of their Christianity in citizenship. late as 1942. In the ground that he was Muslim petition of a native of Yemen on later another court, in and, hence, non-white. Two years Mohriez despite the decision in zenship. Section IV contends that within the statutory definition of which held that Arab Muslims fit of Arab identity that prevailed whiteness, certain misconceptions lingered in the logic of the case. throughout the Naturalization Era context and reasoning of the Moreover, a close reading of the Mohriez facilitated a reversal of World, particularly Saudi Arabia, against Muslims that prevailed for and lifted the naturalization bar Era. Thus, despite the for- the vast duration of the Naturalization as white, the conflation of mal identification of Arab Americans Arabs as inassimilable Muslims continues to limit the “substantive \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 8 8-OCT-14 15:03 35559-nys_69-1 Sheet No. 24 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 24 35559-nys_69-1 35559-nys_69-1 Sheet No. 25 Side A 10/20/2014 11:50:05 . ES , 41 R note EW UILDING A UPPORT FOR 3, 5 (2004) : B see infra S OLITY MERICA A & P LIENATION OR PACE RABS IN A A “[D]espite deep demo- “[D]espite deep , 8 S Citizenship, Identity, and Transna- 23 in , 157, 165 (2004). 25 Y ’ ROWTH IN OC G I. & S N 22 ’ IGNS OF S O OMMC The Arab American population has always The Arab American population C : N ruling. 26 MUSLIM AMERICANS MUSLIM ASS The Construction of Arabs as Enemies: Post-September 11th Dis- The Construction of Arabs as Enemies: Post-September No Exit: Racial Profiling and Canada’s War Against Terrorism No Exit: Racial Profiling and Canada’s War 9/11 intensified this conflation, and converted 9/11 intensified , 7 M 24 Mohriez MERICANS A L.J. 293, 296 (2003). 257, 259–60 W. Suleiman ed., 1999). The entrenchment of (Michael ALL Caroline R. Nagel & Lynn A. Staeheli, DISTINGUISHING ARAB AMERICANS FROM AMERICANS ARAB DISTINGUISHING 14 (Aug. 30, 2011), http://www.people-press.org/files/legacy-pdf/Mus USLIM H Id. See Against the Grain of the Nation—The Arab ,M UTURE This conflation of Arab America and Muslim America obscures This conflation of Arab America There is little doubt today that many Americans still conflate today that many Americans There is little doubt 25. 26. Islam has been inextricably On the ground and within the ivory tower, 22. 24. Reem Bahdi, 23. Debra Merskin, F SGOODE EW ENTER XTREMISM submerged with Arab American identity. At the extreme, both have been entirely submerged with Arab American identity. as interchangeable identities. Suad conflated, reduced to synonyms, and treated Joseph, E N the fact that the two form distinct communities with only a slight the fact that the two form distinct demographic overlap. 2013] nearly seventy today, Muslims Arab American held by citizenship” after the years WHITE BETWEEN MUSLIM AND 37 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 9 8-OCT-14 15:03 the Arab Muslim caricature derives from an obsession with a negligible overlap the Arab Muslim caricature derives from This obsession came to shape the between Arab and Muslim American identity. Americans, despite the fact that Chris- understanding of both Arab and Muslim Arab American community, tians comprise a decided majority of the Muslim American population, P 27, and Arabs a decided minority of the lim%20American%20Report%2010-02-12%20fix.pdf (“In terms of regional ori- lim%20American%20Report%2010-02-12%20fix.pdf (“In terms of regional gins, however, the largest group is from Arab countries in the Middle East and , representing 41% of foreign-born Muslims, or 26% of all Muslim Americans.”). Muslim American identity into a racial classification understood in identity into a racial classification Muslim American of Arab Americans. the narrow image Arab American and Muslim American identity. The stereotype that Muslim American identity. The Arab American and Muslims—[and]“all Arabs [are] Arabs,” is a per- all Muslims [are] United States today. vasive one in the graphic, religious, and other differences between the two groups, and other differences between graphic, religious, of popular suspi- Muslims have become the target both Arabs and and the ‘Muslifica- the ‘Arabification’ of Muslims, cion, resulting in tion’ of Arabs.” tional Migration: Arab Immigrants to the United States tional Migration: Arab Immigrants to the United O C (“It therefore becomes necessary to distinguish between formal citizenship and (“It therefore becomes necessary to distinguish substantive citizenship—that is, between one’s legal status and one’s ability to real- membership.”). ize the rights and privileges of societal course of George Bush 35559-nys_69-1 Sheet No. 25 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 25 35559-nys_69-1 35559-nys_69-1 Sheet No. 25 Side B 10/20/2014 11:50:05 S- 30 97 See I MERI- Pan- AND A TATE IN 33 , S 31 Below, I Below, RABISM AND 28 -A ART OF RABISM 316 (1992). NCYCLOPEDIA AN P Pan-Arabism Immigration , A 32 E 29 : P ATION AND : N EOPLES NTEGRAL P I MERICAN N REATIONS RAB ISTORY A TTOMANISM C A : A : O RAB : A H Even today, only approxi- today, Even A 27 URKS 34 OVEREIGN MERICANS T RABISM note 27, at 13. A , S See also A ISTORY OF THE OUNG AN RAB 43 (1996). The rising Arab nationalist spirit, UFTI supra Y , P , A , M , A H , 1908–1918 (1997). RAQ . at 13. I Id ALIK USEUM USEUM MPIRE M HOUERRI RABS AND OURANI E M M L A. Who Are Arab Americans? L note 15, at 86–87. ’ ’ H , A YRIA AND Movement in Syria and championed by Egypt’s charismatic M. C AT AT S supra See also AYALI . N . N 82–92 (2001) note 7. LBERT , TTOMAN M M A K Ba’ath O OUSSEF AFF 15–16,http://www.arabamericanmuseum.org/umages/pdfs/re A A see RDER IN ORLD N at 88 (“Arab nationalist sentiment had, during the war, developed an at 88 (“Arab nationalist sentiment had, at 82. ASAN LAMISM IN THE RAB RAB CAN O THE W H Id. Id. See supra See OCIETY RAB Arab identity took on a different meaning after the close of on a different meaning after Arab identity took Arab Americans have been defined as citizens who derive their have been defined as citizens who Arab Americans 32. 27. A 34. 33. See Y 29. 30. hailed from the modern states Therefore, although the eight petitioners 31. 28. A S A OLITICAL ideology based on Syrian unity and independence, reinforced by the collapse of ideology based on Syrian unity and independence, by French and British mandatory the Ottoman Empire. It was hardened rule . . . .”); P These early immigrants framed their identities in relation to the framed their identities These early immigrants rule. terms mandated by Ottoman provincial and religious the emergence of “Pan-Arabism.” Ottoman rule and 38 supermajority. Christian a contained NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 10 8-OCT-14 15:03 source_booklets/AANM-ArabAmericansBooklet-web.pdf (last visited Nov. 20, source_booklets/AANM-ArabAmericansBooklet-web.pdf population is significantly larger 2012) (noting that the Christian Arab American because Christian Arabs have been than the Muslim Arab American population, period of time). 63% of Arab Americans coming to the United States for a longer today identify as Christians. was a political ideology formed in Syria during the early 1930s, was a political ideology formed was under French rule. while the former Ottoman province birthed by the from the Arab World commenced in the mid-Nineteenth Century; commenced in the mid-Nineteenth from the Arab World the Naturaliza- for U.S. citizenship during the first eight petitioners what then was of- immigrants, hailing from tion Era were Christian Empire. the Syrian Province of the Ottoman ficially known as Arab identity along linguistic, cul- Arabism framed a new brand of tural, political, and economic lines. mately one-fourth (24%) of Arab Americans are Muslim. Arab Americans of (24%) one-fourth mately as a prel- communities contours of these demographic sketch the a legal judges constructed naturalization how the ude to showing were non-white. that Arabs presumption region known as the Arab World. ancestry from the of Syria, Lebanon, Israel, and the Palestinian Territories, this Article will refer to of Syria, Lebanon, Israel, and the Palestinian as “.” them according to their Ottoman designation generally (Anan Ameri & Dawn Ramey eds., 2000). 35559-nys_69-1 Sheet No. 25 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 25 35559-nys_69-1 35559-nys_69-1 Sheet No. 26 Side A 10/20/2014 11:50:05 While 36 OVEMENT AND M DENTITY I ERBER B HE 92, 140 (2011). While Pan-Arabism , T TATES S EITZMAN -W FRICAN A ADDY note 33, at 82. M ORTH supra Today, many Americans trace their ancestry to the Today, many Americans N RUCE , 37 , B In line with this Article’s central thesis, the emergence of the emergence thesis, central this Article’s with In line HOUERRI 35 THE See, e.g. at 14. Indeed, many indigenous in the Arab World, including at 14. Indeed, many indigenous populations HALLENGE TO Id. Pan-Arabism birthed the contours of modern Arab American Arab modern of the contours birthed Pan-Arabism The places the current population of Census places the current The United States 36. inhabitants, as well as a majority of The vast majority of the Arab World’s 37. 35. C C those in the Diaspora, adopted the readapted form of Arab identity espoused by those in the Diaspora, adopted the readapted the first eight immigrants from the Pan-Arabism after its emergence. However, discussed in Section III, migrated to the region that petitioned for citizenship, as Pan-Arabism, were accordingly identified United States before the emergence of were presumed to be Muslims. Finally, by the courts as Ottoman subjects, and thus immigrants, Muslim immigrants from as explained in Section IV, the final two American citizenship during the expan- Yemen and Saudi Arabia, petitioned for of the region. sion of Pan-Arabism inside and outside Gamel Abdel-Nasser, galvanized a growing sense of unity, and Pan-Arabism, within galvanized a growing sense of unity, and Gamel Abdel-Nasser, of the immigrants bolstered the Arab identity of the bulk the Arab World. This 1930s through 1967, settled in the United States circa the from the region that as a blockade against colonialism pre-World War I, served which unlike European subscribed to Arab- in the United States. Immigrants who assimilation upon arrival identity, which conflicted with prevailing ism made it a core dimension of their of Ottoman rule combined with the notions of American identity. The experience offered newly independent Arab common struggle against European colonialism time, made the prospect of political and states a unifying narrative, and at the economic integration promising. 2013]identity. WHITE BETWEEN MUSLIM AND 39 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 11 8-OCT-14 15:03 Pan-Arabism and its broadening of Arab identity also highlights identity also of Arab and its broadening Pan-Arabism construction. fluid and political itself was a how “Arab” accord with Pan- and frame their identities in modern Arab World terms. reject it and identify in alternative Arabism, while others at 3,665,789—aArab Americans much smaller figure believed to be masses in the region, and the Diaspora, embraced the reformed embraced the the Diaspora, the region, and masses in a range of Pan-Arabism, brought forth by Arab identity brand of as a result persecution in the region faced communities indigenous of rebuffing it. birthed a modern form of Arab identity, built upon the baselines of secularism, birthed a modern form of Arab identity, threatened precedent nationalisms in the common culture and language, it also chose not to accede to it. Despite its trac- Arab World and marginalized those that people of the Arab World, a number of tion with a considerable segment of the rejected Pan-Arabism as another colonial indigenous populations in the region as “Arabization,” an imposed political, movement. Opponents viewed Pan-Arabism how they publicly asserted their iden- cultural, and ethnic identity that threatened tities. in the “Maghreb,” Copts and Nubians in Kurds in the Levant and Gulf, Berbers Egypt and the Sudan, Jews throughout the Middle East and North Africa, and seg- be- ments of the Maronite Catholic community in Lebanon, resisted Pan-Arabism In cause it threatened other modes of ethnic, tribal, or sectarian nationalism. many places, such as Algeria or Egypt, minority communities that rejected Arab nationalism were persecuted. 35559-nys_69-1 Sheet No. 26 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 26 35559-nys_69-1 35559-nys_69-1 Sheet No. 26 Side B 10/20/2014 11:50:05 , OUSE- (2012), H Ummah RAB 55, 57 (2005) , A NSLAVED IN THE Y ’ http://www.cen E OL UREAU EMOGRAPHICS USLIMS D B M . L. & P available at UB ENSUS MERICAN C FRICAN J. P A : A Islam’s origin in the Arabian Islam’s origin in TATES RAB 42 S A LLAH AMLINE note 27, at 13. A 63% of Arab Americans today iden- Arab Americans 63% of NITED , 27 H supra 39 ATIONAL , , U . N ERVANTS OF : 2006–2010, at 1 (2013), Islam was “revealed to the Arabian trader Islam was “revealed USEUM Although stereotypically understood to be a to be understood stereotypically Although , S 41 OUND EAULIEU I Know You Are, But What Am I? Arab-American Experiences M 38 L TATES . F B ’ In fact, since the first immigrant waves from the waves from since the first immigrant In fact, note 5, at 2. IOUF B. Americans? Who Are Muslim S AT 40 NST and the faith’s multiracial following disproves the and the faith’s multiracial following ANIEL 43 . N supra . I note 26 and accompanying text. A. D , M M NITED A A U & D SI RAB AYYALI RAB HOLDS IN THE YLVIANE 4 (1998). See supra A Islam is the third of the three Abrahamic religions. Followers of the three Abrahamic religions. Islam is the third Following its founding, Islam spread beyond the Arabian Pe- Following its founding, Islam spread 38. A 43. Rachel Saloom, 42. S 41. K 39. 40. A ARYAM MERICAS A 40in the living heritage of Arab citizens of number the actual than today. States United NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 12 8-OCT-14 15:03 Through the Critical Race Theory Lens Muslim-majority community, Muslim-majority Century, mid-Nineteenth States in the to the United region came the Arab majority of a considerable have always been Christians to mi- the hand, began Muslims, on population. Arabs American 1965, and perpet- States in large numbers after grate to the United Arab American of a minority within the ually held the position population. of Islam—Muslims—constitute or a pan-racial community, Muhammad between 609 and 632.” Muhammad between tify as Christians. Peninsula is a principal reason it has been closely linked, and con- reason it has been closely Peninsula is a principal flated, with Arab identity. of Europe, Asia, and Africa. Islam’s ninsula and into distant corners new and peoples immedi- expansion and interaction with identity as an Arab religion. Al- ately transformed its formative the vast majority of Muslims today though Islam began in Arabia, are not Arabs, sus.gov/prod/2013pubs/acsbr10-20.pdf (“The number of Arab households has sus.gov/prod/2013pubs/acsbr10-20.pdf 268,000 in 1990 to 427,000 in 2000. Data also grown over time, increasing from from the 2006–2010 [American Community Survey] 5-year estimates reveal that the United States, representing a 91.0 per- there were 511,000 Arab households in cent increase since 1990.”). (reporting that although Arab identity is still stereotyped as being synonymous with Islam, Arabs only comprise 12% of the global Muslim population). of 1.7 billion people. http://b.3cdn.net/aai/44b17815d8b386bf16_v0m6iv4b5.pdf (“The population http://b.3cdn.net/aai/44b17815d8b386bf16_v0m6iv4b5.pdf ancestry in the U.S. Census grew by more who identified as having Arabic-speaking Arab population in the United States, than 72% between 2000 and 2010.”). The its exact figure, is believed to be rising. despite differences and debate regarding M 35559-nys_69-1 Sheet No. 26 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 26 35559-nys_69-1 35559-nys_69-1 Sheet No. 27 Side A 10/20/2014 11:50:05 44 48 EW Islam N HMED ROM THE (Black Classic . 1, 4–5 (2012); : F ACE UST R . J OC MERICA Marie A. Failinger, EGRO A —the source of 46.3% N 47 see also SLAM IN 2:177 (2001). The Prophet Mo- I Dar al-Islam Meets “Islam as Civiliza- . L.J. (forthcoming 2014). See gener- Beginning in the Ninth Cen- Beginning in the E.L. 143, 159 (2005). 46 OW , 32 B.C. J.L. & S EAR SLAM AND THE 50 , I ISTORY OF RANSLATION , 58 H & N 10, 15 (2010); T , A H RDER SLAMIC O ASSIRI HRISTIANITY This forgotten African Muslim diaspora ex- This forgotten B 49 , C ORLD 45 note 42, at 4–5. ONTEMPORARY Antebellum Islam repeatedly reaffirms its abhorrence of racial or ethnic discrim- repeatedly reaffirms its abhorrence of racial W HANEA LYDEN EW supra at 49–106. , 4 UCLA J. I G : A C N , id. Qur’an AN Khaled Ali Beydoun, Comment, ’ W. B at 47. at 48. at 4. For more about African Muslim immigration to North IOUF AMBIZ UR Id. Id. Id. Cf. -Q L Racially restrictive naturalization and immigration legislation Racially restrictive naturalization At no point in American history have Arabs constituted a ma- constituted history have Arabs in American At no point DWARD 44. The 48. 49. 50. 46. K 45. 47. D , A ORLD TO THE LI A W Some estimate that between 15% and 30% of North American that between 15% and 30% of Some estimate slaves were Muslim. from the Arab World until stifled the influx of Muslim immigrants 2013]monoethnic. or monoracial is the religion that narrative simple sects, array of of an to the development led expansion broad Islam’s trans- which gradually schools of thought, and competing offshoots, WHITE BETWEEN MUSLIM AND mirrors its faith that a spiritually pluralistic religion into formed the diverse following. Nor American population. of the Muslim even a plurality, jority, or America. The first Muslims to arrive in North were Arabs the first Africa, who arrived America were natives of West Muslims in North 41 Century as slaves. in the Sixteenth \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 13 8-OCT-14 15:03 in the Mind of American Courts: 1800 to 1960 isted in before the formation of the modern-day before the formation of isted in North America Arab immigrants predated the arrival of the first United States, and by nearly three hundred years. America, see tury, Islam had spread through much of the African continent, and through much of the African tury, Islam had spread foothold in West Africa gained its strongest ally E of the individuals kidnapped and sold as slaves in North America. kidnapped and sold as slaves in of the individuals hammed also disavowed racial and ethnic discrimination among Muslims, declar- hammed also disavowed racial and ethnic ancestors. One is only a pious believer ing: “[L]et people stop boasting about their of Adam, and Adam came from dust.” or a miserable sinner. All men are sons Sunnah, Abu Dawud, Tirmidhi. Fundamentalisms and the Geopolitical Realism tion”: An Alignment of Politico-Theoretical of this Worldview ination. One section illustrates this baseline of Islamic colorblindness, holding ination. One section illustrates this baseline face to East or West: Piety lies in believing that, “Piety does not lie in turning your Scriptures and the prophets, and disburs- in God, the Last Day and the angels, the your kin and the orphans . . . .” A ing your wealth out of love for God among Khaled A. Beydoun, Press, 2d ed., 1994) (1888), for a foundational discussion of the prominence of Press, 2d ed., 1994) (1888), for a foundational into the Antebellum South. Islam in African nations that sourced slaves 35559-nys_69-1 Sheet No. 27 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 27 35559-nys_69-1 35559-nys_69-1 Sheet No. 27 Side B 10/20/2014 11:50:05 53 see See also Estimate of XPERIENCE The re- LACKAMERI- E 58 B MERICAN -A 25, 25 (Yvonne Yazbeck SLAM AND THE , I FRICAN of the total Muslim of the total 56 A MERICA . 119, 124 (2012) (“The Muslim 23 (2005). A ACKSON ROBS A. J . P Thinking Through Internment: 12/7 and 9/ SLAM IN THE USLIMS OF note 26, at 16 (“No single racial or ethnic ESURRECTION , I M ONTEMP HERMAN R note 26, at 16. HE note 26, at 16. The official estimate of the Muslim note 26, at 16. The official estimate of the supra T URNER , HIRD follow at 21%. Asian Americans T T As of a 2011 study, com- As of a 2011 study, supra 57 and those who self-describe as “other/ and those who supra L. & C was the most visible and populous Muslim and populous visible the most was , L , at 20. However, other accounts place the population as at 20. However, other accounts place the 55 ’ 59 52 ENTER RENT note 52, at 169–70. Id. L.J. 195, 197 (2002). Carol L. Stone states, “Estimates of 1.2 L.J. 195, 197 (2002). Carol L. Stone states, . C B ENTER ENTER ES Racializing Islam Before and After 9/11: From Melting Pot to Is- Racializing Islam Before and After 9/11: supra SIAN . C . C RANSNAT R , OWARD THE A 54 ES ES note 5, at 33 (“Between 1965 and 1992, more than 400,000 Arab note 5, at 33 (“Between 1965 and 1992, T ICHARD EW R R P R , 21 T URNER EW EW CAN supra See See Id. Prior to that time, the (NOI), founded by founded (NOI), of Islam the Nation time, to that Prior , ERKELEY OOKING 51 The Muslim American population today is a racially and ethni- population today is a racially The Muslim American 55. 51. 1924, Pub. L. No. 68-139, 43 Stat. 153. Immigration Act of 52. 53. L. No. 89-236, 79 Stat. 911. Immigration and Nationality Act, Pub. 54. T 59. 56. of [Muslims Americans in 2005] One commentator claimed, “42 percent 57. P 58. P : L Hilal Elver, , 9 B AYYALI K Muslims Living in America, in 148 (2d ed., 2003). 421965. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 Europe Asia, Africa, and the Arab World, from Muslim immigration for Islam the “major voice position as usurped the NOI’s gradually in America.” cally diverse mosaic. \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 14 8-OCT-14 15:03 million to 3 million have been reported. To date, no systematic, statistically valid million to 3 million have been reported. conducted. This is largely because of a lack survey of Muslims in America has been of reliable information about Muslims in this country.” Carol L. Stone, immigrants arrived in the United States because of the changes in the immigration immigrants arrived in the United States law and quotas . . . .”). prise 30% and Black Americans 24% prise 30% and W.D. Fard in 1930, Fard in W.D. high as 8 million. Jerry Kang, Comment, high as 8 million. Jerry Kang, Comment, American population is believed to be grossly underestimated. Part of this under- American population is believed to be designation of Arab Americans as white, estimation is a consequence of the formal Americans dis-identifying themselves as in addition to the phenomenon of Arab Center places the Muslim American popu- Arab following 9/11. The Pew Research lation at 2.75 million. 11 community in the United States. Only after the dissolution of the the dissolution States. Only after in the United community Quota of the Nationality and the abolition Act of 1924 Immigration lifted. immigration barriers to Muslim in 1965 were the Regime American population. minority comes from diverse national origins and cultural backgrounds compris- minority comes from diverse national origins speak a wide variety of languages and ing as many as sixty-five countries. ‘They educational, sectarian, and ideological represent a range of cultural, economic, positions.’”). were said to be Blackamericans.” S maining population is rounded out by a rapidly rising community is rounded out by a rapidly maining population of Hispanics (6%) Haddad ed., 1991). group makes up more than 30% of the total [Muslim American population].”); group makes up more than 30% of the also lamophobia 35559-nys_69-1 Sheet No. 27 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 27 35559-nys_69-1 35559-nys_69-1 Sheet No. 28 Side A 10/20/2014 11:50:05 AW EEMU L ? 3, 3 T ATH The two ODERN 63 P 64 According M 62 See generally AND , Introduction: Muslims in TATES MERICANIZATION S Orientalism. A 61 NITED U note 46, at 327. THE John Esposito, II. , supra USLIMS ON THE , HINA M see also : C in ASSIRI , B note 1, at 1–4. distortion of Arab identity is not to The legal note 57; ARAB & MUSLIM IDENTITIES ARAB & MUSLIM HANEA RIENTALISM note 1, at 6. G supra O , supra THE ORIENTALIST CONFLATION OF THE ORIENTALIST supra AID , EGAL S Today Islam ranks as the “fastest growing religion in the in religion growing the “fastest ranks as Islam Today at 2. This discourse is based on a civilizational binary whereby the Occi- AID 60 , L Id; see also Id. See Central to this system of knowledge is the oppositional rela- Central to this system of knowledge The legal conflation of Arab and Muslim identities emanates of Arab and Muslim identities The legal conflation Considering that Muslim American and Arab American are dis- American are American and Arab that Muslim Considering 63. S 60. 61. Stone, 64. 62. Not an airy European fantasy about the Orient, but a created Not an airy European fantasy about which, for many generations, body of theory and practice in investment. Continued there has been a considerable material a system of knowledge about investment made Orientalism, as filtering through the Orient the Orient, an accepted grid for as that same investment multi- into Western consciousness, just plied—indeed, made truly productive—the statements prolif- the general culture. erating out from Orientalism into USKOLA America or American Muslims R (2013). tionship between the Occident (roughly, the white “West”) and the tionship between the Occident (roughly, Under Orientalism, the Oc- Orient (roughly, the non-white “East”). and civilization; the cident is positioned as a site of enlightenment and barbarism. Orient is positioned as a site of despotism from Orientalist baselines. To understand what this might mean, it baselines. To understand what this from Orientalist Edward Said’s theory of is helpful invoke 2013]mixed.” WHITE BETWEEN MUSLIM AND in Ameri- to be conflated how they came one wonders tinct entities, with that question next part answers history. The can political how Ori- It shows theory of Orientalism. to Edward Said’s reference both in Arabs and Muslims found expression entalist ideas about courts. ideology and subsequently, the American political 43 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 15 8-OCT-14 15:03 United States,” and the United States boasts the most racially di- racially the most boasts States the United and States,” United in the world. community verse Muslim dental sees the Oriental as its diametric foil. This Article adopts the theoretical Era framework established in Said’s Orientalism to illuminate how Naturalization be confused with “Legal Orientalism,” an adoption of Said’s theoretical framework be confused with “Legal Orientalism,” an and propaganda-based orientation of to illustrate the United States’ political of law mechanisms. China as its antithesis with regard to rule to Said, Orientalism is, to Said, Orientalism (Yvonne Yazbeck Haddad & John Esposito eds., 1998). (Yvonne Yazbeck Haddad & John Esposito 35559-nys_69-1 Sheet No. 28 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 28 35559-nys_69-1 35559-nys_69-1 Sheet No. 28 Side B 10/20/2014 11:50:05 See TATES AND THE TATES AND THE S S NITED NITED U U HE In 1785, the U.S. In 1785, the at 102–07. HE 66 : T : T See id. BSCURED O RIENTALISM O The 124 American citizens on board 68 RESCENT C Consequently, the conflict sparked politi- Consequently, the conflict sparked HE MERICAN 70 , T , A ITTLE LLISON 1945 (3d ed. 2008). L J. A , 1776–1815, at xiv–xv (1995). The Barbary States encompassed INCE A. American Political Ideology Orientalism and S at 9–10. at 87. In 1793, at the very same time that the United States declared at 7. ORLD . at xv. OUGLAS OBERT The war was incited by the interception of an American by the interception of an The war was incited AST 65 D Id. Id Id. Id. 67 69 W E Only a few years after the United States gained independence Only a few years after the United Significantly for our purposes, Orientalist discourses did not discourses did Orientalist for our purposes, Significantly linked to in America are directly Orientalist discourses 70. 69. 65. 66.to refer to the Unites States’ view of Here, I use “American Orientalism” 68. 67. R IDDLE USLIM war on Algeria for enslaving its white citizens, it was funneling scores of West Afri- cans to work as slaves in the Antebellum South. M M judges framed the identity of immigrant petitioners from the Oriental Arab Mus- judges framed the identity of immigrant lim world. to take shape in the Eighteenth Century. Islam and the “Muslim World” that began term has been deployed more recently by This is not to be mistaken with how the who uses “American Orientalism” as a other scholars, most notably Douglas Little, that began to take shape after 1945. governmental view of the Middle East generally from England, the young nation was well on its way to its first war, from England, the young nation with the Barbary States. 44 of domina- of power, “[r]elationship in a interlocked are spheres the favors which hegemony,” complex of a degrees of varying tion, NYU ANNUAL SURVEYformer. OF AMERICAN LAW crucial the Muslim. The the Arab and between draw a distinction [Vol. 69:29 respect, “West.” In this the “East” and the was between distinction dichot- broader East-West was part of a conflation the Arab/Muslim in American how this ideology manifested omy. This Part discusses and the courts. political discourses with a Muslim en- years as a nation state. War America’s formative shaped a dis- United States gained independence tity soon after the “American Orientalism.” tinct brand of \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 16 8-OCT-14 15:03 present-day Morocco, Algeria, and Tunisia, in North Africa. present-day Morocco, Algeria, and Tunisia, ship off the coast of Algiers. vilified the Barbary States, and cal rhetoric and propaganda that enemy of the United States on the positioned them as the principal here is the fact that tense rela- world stage. Particularly important were subsequently enslaved, which sparked public and political sup- were subsequently enslaved, which declare war against the Barbary port for the United States to States. government found itself on the brink of war with the Barbary itself on the brink of war government found States. 35559-nys_69-1 Sheet No. 28 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 28 35559-nys_69-1 35559-nys_69-1 Sheet No. 29 Side A 10/20/2014 11:50:05 Islam was often Again, the main- Again, 74 72 78 In line with Orientalist In line 71 note 37, at 34–36. supra , note 11, at 260. EITZMAN supra , -W note 67, at 39–46. ADDY ARVEY Propaganda aimed at the government and people of Propaganda aimed at the government supra , ,M 75 & H 76 at 45–46 regarded Muhammad as a dangerous false (“Americans at 46. . at 112. LLISON LUM Id See, e.g. Id. Id. Id. 73 These political images trickled down to the American peo- These political images trickled By vilifying the Prophet, popular discourse constructed Islam By vilifying the Prophet, popular Part of the project of mobilizing popular and political support of mobilizing popular and political Part of the project American political propaganda against the Barbary States fo- the Barbary States against political propaganda American 77 71. 72. B 74. Century ranked as a core Again, Christianity during the late Eighteenth 75. A 73. 76. 77. 78. as the inassimilable foil to American progress, democracy, and lib- as the inassimilable foil to American erty. for war against the Barbary States was achieved through vilifying the Barbary States was achieved for war against adversary of Christianity. Islam as an age-old 2013] five began States the Barbary and States the United between tions Act. Naturalization the 1790 of the passage before years WHITE BETWEEN MUSLIM AND identity. on their Muslim cused largely 45 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 17 8-OCT-14 15:03 ple, forming a national and popular perception of Arabs as not only ple, forming a national and popular or cultural menace that exclusively Muslims, but also a civilizational and citizens. threatened American democracy the Barbary States illustrated the Prophet “Mahomet” as the very the Barbary States illustrated the discourse conveyed Islam’s most personification of tyranny. Popular a demagogue, and a “charismatic important figure as a hedonist, charlatan.” component of American national and individual identity. component of American national and individual religious political system . . . Islam, as the prophet and as the creator of an evil and being against liberty, it stopped progress. Americans saw it, was against liberty, and Thomas Jefferson, who welcomed the Both Republicans like Mathew Lyon and Ad- progressive libertarianism of the French Revolution, and Federalists like John ams, who feared the consequences of unchecked democracy, agreed that liberty and human progress were good things and the unbridled despotism of the Muslim world was a bad thing for preventing it.”). streaming of Orientalist thought in the United States engendered thought in the of Orientalist streaming identity were popular belief that Arab and Muslim the political and seeing the Barbary This prevented people from one and the same. entity acting in its really were: first, a political States for what they not populated ex- and second, a group of nations own self interest; Berber but by a wide range of indigenous clusively by Arabs, tribes. the Prophet the vilification of its seminal figure, maligned through Mohammed. baselines, Congress classified the people from the Barbary States as from the Barbary the people Congress classified baselines, their Muslim identity. on account of “Arabs” 35559-nys_69-1 Sheet No. 29 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 29 35559-nys_69-1 35559-nys_69-1 Sheet No. 29 Side B 10/20/2014 11:50:05 S ’ 81 OM- , C ULTURE Sale’s . 291, 300 C 83 EFFERSON FF ORAN J A K 19–36 (2009). HE HOMAS , T VANGELICAL INORITY , T M : E ERRORISM T Qur’an SLAM USLIM I PELLBERG GE OF A A. S The political indictment of The political indictment (George Sale, trans., 9th ed. 1923) and third, it indicated that and third, it indicated , 18 J. M 80 79 ENISE D George Sale’s translation of the HRISTIANS AND 82 See Islamic Influences on Emerson’s Thought: The Fas- Islamic Influences on Emerson’s Thought: The C OHAMMED ERIOD TO THE note 11, at 149. 26 (2013). P M supra , MERICAN OUNDERS OLONIAL , A F C ARVEY LCORAN OF IDD B. Orientalism in American Courts note 1, at 27. A & H S. K Clay v. United States, 403 U.S. 698, 708 (1971). Thomas Jefferson’s was Sale’s translation. supra LUM , B Suzan Jameel Fakahani, See HOMAS MONLY AID SLAM AND THE AND ALLED THE See Cf. , served as a commonly cited source for Islam’s holy book, Qur’an : I USLIMS FROM THE C Furthermore, the Barbary States’ enslavement of white Ameri- of white enslavement States’ the Barbary Furthermore, circulated during the United The discourses about Arabs that Political propaganda that maligned the Arab Muslim Orient that maligned the Arab Muslim Political propaganda AN 79. 81. T 80. S 82. 83. George Sale’s problematic translation of the ’ M UR Q This entrenched the presumption that anybody and everybody the presumption that anybody This entrenched ideals and so- sphere was hostile to American from this (imagined) Christianity, and ultimately, was ciety, was an age-old adversary of ineligible for American citizenship. presumptively inassimilable and 46State rhetoric slavery. drove Islam belief that the bolstered cans NYU ANNUAL SURVEY be- as a religious struggle Barbary States wars with the framed the OF AMERICAN LAW be- instead of a dispute and Islam, Christendom tween American the racial entrenched this framing further nations. First, tween two [Vol. 69:29 embod- Arab (this time was exclusively belief that Islam antebellum as synon- Christianity second, it deployed Barbary States), ied by the citizenship, ymous with American States also appeared in the courts. States’ conflict with the Barbary to Orientalist secondary sources to In fact, judges regularly referred of the Arab World, and the im- shore up their negative perceptions migrants that hailed from it. \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 18 8-OCT-14 15:03 famous Qur’an Arabs or Muslims. judges presiding over hearings involving “Muslim slavery” was arbitrary, capricious, and prone to subjugate was arbitrary, capricious, and prone “Muslim slavery” that stood in its way—includingany race of people whites. to American ideals from this sphere as hostile branded immigrants thus inassimilable. and society, and (1734), served as one of the courts’ most referenced texts throughout the Naturali- zation Era. the Barbary States affected far more than its population. Rather, affected far more than its population. the Barbary States as an ideological oriented the Barbary States political propaganda Muslim Orient. microcosm of the broader Arab and ethno-racial shallow “[f]amiliarity with Is- problematic translation engendered and its presentation perpetuated a lamic law or the Muslim faith,” (1998). cination of a Nineteenth Century American Writer 35559-nys_69-1 Sheet No. 29 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 29 35559-nys_69-1 35559-nys_69-1 Sheet No. 30 Side A 10/20/2014 11:50:05 84 Ross v. note 1, at 6 , intimated that . Judge Bradley, supra at 454. , Id. AID S McIntyre see also Dainese v. Hale Decided eighteen years before Decided eighteen 85 signaled to immigrants from the re- signaled to immigrants from the 87 Other judges focused more squarely on Other judges focused more squarely 88 note 46, at 13; addressed the applicability of U.S. law to foreign sailors supra represented Muslims, and those perceived to be and those perceived to represented Muslims, text accompanying note 99. This ruling, coming during a period of en masse immigra- during a period of en masse This ruling, coming . at 463–64. Ross v. McIntyre , for example, the Supreme Court highlighted what it per- Supreme Court highlighted what , for example, the 86 Id See infra McIntyre The judicial narrative that natives from the Arab World were that natives from the Arab The judicial narrative U.S. courts not only institutionalized an image and under- U.S. courts not only institutionalized 84. Failinger, 86. 87. 85. hostility of the people of Moslem 140 U.S. 453, 463 (1891) (“The intense 88. 91 U.S. 13, 15 (1875). 2013] Muslims. Islam and both of representations of harmful range but Qur’an, of the translation neutral a not provide work did Sale’s and re- Orientalist binary reinforced the iteration that a politicized WHITE BETWEEN MUSLIM AND these Ori- Reliance on and tyranny. perceived hostility ified Islam’s identity as view of Arab entrenched the texts not only entalist but also for the “West,” that stands in to everything oppositional approval. with judicial these representations stamped well before the inassimilable began to take shape antagonistic and 47 In the region petitioned for citizenship. first immigrant from McIntyre of Moslem faith intense hostility of the people ceived to be “[t]he civilization].” [toward Christian \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 19 8-OCT-14 15:03 speaking for the Supreme Court in speaking for the Supreme Court Islam was a “pagan” faith. gion, and judges presiding over their naturalization hearings, that gion, and judges presiding over with Muslim identity) Arab identity (which was then synonymous of whiteness required to did not fit within the statutory definition obtain American citizenship. foreign and inassimilable relig- standing of Islam as an irreducibly on threatening the Christian ion, but also as one that was bent echoed the maligned view of character of the United States. Judges Court in Islam affirmed by the Supreme tion from the Arab World, they demonized as a “false the Prophet Mohammed, who the first native from the Arab World petitioned for citizenship in the Arab World petitioned the first native from court, Muslims, as a people who could not be integrated into American who could not be integrated Muslims, as a people society. (“[C]ontinued investment made Orientalism, as a system of knowledge about the (“[C]ontinued investment made Orientalism, the Orient into Western conscious- Orient, an accepted grid for filtering through ness, just as that same investment multiplied—indeed, made truly productive—the into the general culture.”). statements proliferating out from Orientalism to Christians, affected all their inter- faith to all other sects, and particularly course.”). on U.S. ships while in the territory of another country. 35559-nys_69-1 Sheet No. 30 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 30 35559-nys_69-1 35559-nys_69-1 Sheet No. 30 Side B 10/20/2014 11:50:05 , 92 see UR- T supra , See a persecu- LLISON A 90 ). In the land of , 354 U.S. at 58 n.8. These Supreme These see also 93 Reid dar al-harb a war-mongering creed, a war-mongering 91 The Origins of Muslim Racialization in U.S. Law The Origins of Muslim Racialization in U.S. E. L. 121, 125 (2008). ) and the land of warfare ( Karamian v. Curran, 16 F.2d 958, 959 (2d. Cir. 1927) Karamian v. Curran, 16 F.2d 958, 959 EAR Caldwell v. State, 118 N.W. 133, 135 (Neb. 1908). Caldwell v. State, 118 N.W. 133, 135 (Neb. note 1, at 59 (“[I]slam is judged to be a fraudulent new version note 1, at 59 (“[I]slam is judged to be a ex rel. & N Halladjian, 174 F. 834, 839 (C.C.D. Mass. 1909) (“The Turks and Halladjian, 174 F. 834, 839 (C.C.D. Mass. Ex parte supra dar al-Islam Still others framed Islam as a heathen foil, a heathen Islam as framed others Still , SLAMIC 89 note 52, at 172 (“The European was the enemy, and this was a primal NER AID See In re The foregoing suggests that the Orientalist views of Arabs as that the Orientalist views The foregoing suggests How would that affect their But what if Arabs were Christians? supra 93. Dainese v. Hale, 91 U.S. 13, 15 (1875); Mahoney v. United States, 77 U.S. 92. the Christian view of the state of President John Quincy Adams contrasted 89. S 91. 90. Nagwa Ibrahim, Comment, , United States 62, 68 (1869); also boys of his race were most cruelly treated (“[H]e [Yerwand Karamian] and other the hip to the knee with a hot steel rod, by the Turks, and he himself ‘burned from Reid v. Covert, 354 U.S. 1, 58 because they wanted [him] to be a Mohammedan.”); n.8 (1957). view that the “Mahometan law of na- nature as “a state of peace” with the as a state of war.” tions . . . considered the state of nature the Saracens did not exterminate the people they conquered. Conversion to Mo- the Saracens did not exterminate the people offered as alternatives to the sword.”); hammedanism and tribute were usually 48prophet.” NYU ANNUAL SURVEY rival. Crusades era longtime and Christianity’s OF AMERICAN LAW [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 20 8-OCT-14 15:03 reaction that came from Islamic tradition which divided the world into the land of reaction that came from Islamic tradition which divided the world into the land Islamic rule ( of some previous experience, in this case Christianity.”); of some previous experience, in this case Court decisions did not involve an immigration or naturalization involve an immigration did not Court decisions and Mus- image of Arab a maligned helped mainstream claim, but Cases that Naturalization into the Arab that carried lim identity followed. and under- who would threaten Christianity inassimilable people before the first civilization were firmly established mine American citizenship. The the Arab World petitioned for immigrant from by of discourse, accompanied logic of this racialized Cases. prominently in the Arab Naturalization race itself, featured cases was a funda- underwriting the naturalization This is because citizenship fit about race: Does the litigant seeking mental question the extent that definition of whiteness? To within the statutory was presumptively to be Muslims, the answer Arabs were perceived petitioners from was placed against Muslim no. A per se restriction the Arab World. answer is that Christianity pro- ability to claim whiteness? The short and citizenship. But as illus- vided a potential route to whiteness Christianity did not always trated in the following section, tor and forcible convertor of Christians, of convertor forcible tor and warfare (European dominance), Islamic resistance was manifested in jihad, which could mean either a struggle of arms or a struggle of words and the soul.”). note 67, at 38. 7 UCLA J. I 35559-nys_69-1 Sheet No. 30 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 30 35559-nys_69-1 35559-nys_69-1 Sheet No. 31 Side A 10/20/2014 11:50:05 MER- ROSS- C MERICA REATER , A A in G Others , 98 OOTS However, R 94 IVES IN and a major- RAB L 100 The Background and : A OPULATION OF ASTERN The vast majority of P E 99 MREEKA 192, 193 (Michael W. Sulei- A YRIAN S IDDLE UTURE , M ALLED F Samir Khalaf, C EW note 15, at 86. INNEY N note 15. K III. see also C TUDY OF THE supra as Syrians in the homeland called as Syrians in the OUNTRY , 96 supra , A S , AFF D. M , A C note 15. UILDING A AFF note 7; : B N ILLER ARYN ALEK 97 supra M The Deteriorating Ethnic Safety Net Among Arab Immigrants in The Deteriorating Ethnic Safety Net Among Arab M , note 7, at 2 (“Many Lebanese Christians, who constituted note 7, at 2 (“Many Lebanese Christians, supra & K PASSAGE INTO WHITENESS PASSAGE INTO LIA MERICA AFF see also A note 15, at 118. N A OPKINS supra 18 (Eric J. Hooglund ed., 1987) (“[O]nly two Syrian immigrants 18 (Eric J. Hooglund ed., 1987) (“[O]nly H ARVASTI or “Nay Yark,” supra M MADE IN OUR IMAGE: CHRISTIANITY AS MADE IN OUR , 95 , at ix (2009). RABS IN see also Suleiman, UCIUS A ATERS AFF 5 (1904); MIR ICAN ING THE See See generally in W , ORK TORIES Emigration from the Arab World commenced before the for- the Arab World commenced before Emigration from Between 1870 and the early 1930’s, roughly 130,000 Arab im- the early 1930’s, roughly 130,000 Between 1870 and 94. Louise Cainkar, 96. N 97. 100. L 98. Suleiman, 99. A 95. Y S EW mation of the modern Arab World. The first immigrant waves from Arab World. The first immigrant mation of the modern 1820s. to the United States in the the region traveled 4–6 (2004); N migrants came to the United States, many because they were to the United States, many because migrants came under Ottoman rule. pushed there by marginalization 2013] Arab the from immigrants for Christian citizenship guarantee World—in of all Cases, Naturalization Arab of the first eight the judges em- presiding Christian petitioner, a Syrian which involved WHITE BETWEEN MUSLIM AND of Chris- the authenticity to assess methodologies ployed different rulings. a number of conflicting resulting in tian identity, 49 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 21 8-OCT-14 15:03 entered the United States in 1869. In the following decade, between 1871 and entered the United States in 1869. In recorded.”). 1880, another sixty-seven persons . . . were America, emphasized religious persecution most of the early Arab arrivals in North as the main causes of their emigration and the lack of political and civil freedom regime.”). Alixa Naff offers a coun- from lands ruled by an oppressive Ottoman Ottoman rule: “That persecution in tering view on Christian persecution under before World War I was a myth found Syria drove Christians from their homeland on Arabs in America—amainly in the post-World War II studies myth that tended well as the social and political realities of to distort the immigration motivations as late nineteenth-century Syria.” N them, until the 1870s. them, until the flocked to the United States for opportunities made available by flocked to the United States for growth. rapid industrialization and economic these early immigrant waves identified as Christians, these early immigrant waves identified United States Before World War I Causes of Lebanese/Syrian Immigration to the ity of them practiced “Eastern-rite sects” indigenous to the Le- ity of them practiced “Eastern-rite man ed., 1999). the first major waves from the Levant did not set course for waves from the Levant did not the first major “Amreeka” 35559-nys_69-1 Sheet No. 31 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 31 35559-nys_69-1 35559-nys_69-1 Sheet No. 31 Side B 10/20/2014 11:50:05 ITY , C Dur- note 2, 107 Settlers supra 104 , at 19. They com- Id. IASPORA 227, 227 (Michael W. D and remote and cen- and remote and UTURE 105 F MERICAN EW A N YRIAN S ARLY UILDING A Little Syria was a living and lurid bal- Little Syria was could be seen walking through nearby could be seen walking E : B 103 106 Debating Palestine: Arab-American Challenges to Zionism Debating Palestine: Arab-American Challenges from the Arab World from the Little Syria (Now Tiny Syria) Finds New Advocates MERICA note 7, at 2. note 15, at 112. A note 5, at 18. Maronites were Catholic natives of present- note 5, at 18. Maronites were Catholic note 15 (“[T]he immigrants were overwhelmingly Christians note 15 (“[T]he immigrants were overwhelmingly supra —the home country—on American soil. supra THNICITY IN THE supra , , (Jan. 1, 2010, 12:00 PM), http://cityroom.blogs.nytimes.com/ at 88. , E RABS IN supra note 32, at 242. A AFF Id. , IMES N bilaad in RFALEA AFF AYYALI A. Wave of Immigrants Christians: The First Syrian , supra See , Arab Muslims traveled to the United States in far smaller in far States United to the traveled Muslims Arab ACE AND The Church was “Little Syria’s” spiritual, social, and cultural “Little Syria’s” spiritual, social, The Church was R , N.Y. T 101 103 Washington Street, New York, NY 10006: the once-proud Street, New York, NY 10006: the 103 Washington Social science research indicates that fewer than 3% of these Social science research indicates 102 101. N 103. Lawrence Davidson, 105. David W. Dunlap, 102. K 106. The Levant was the region that encompasses present-day Syria, Lebanon, 107. 104. O OURANI OOM R 50vant. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 22 8-OCT-14 15:03 prised a considerable percentage of early migration from the Arab World to the prised a considerable percentage of early United States. 1917–1932 day Lebanon, named after “a fifth-century saint called Maron.” day Lebanon, named after “a fifth-century of the Eastern-rite sects—mainly Maronite, Melkite, and Eastern Orthodox . . . .”); see also address of St. Joseph’s Maronite in Lower Manhat- Maronite Catholic Church address of St. Joseph’s tan. 1880s. nucleus during the numbers, as a consequence of comparatively better living condi- living better of comparatively a consequence as numbers, fear that rule, and under Ottoman to Arab Christians, tions, relative was slim. of naturalization the possibility parcel of America early settlers claimed a small Battery Park. These for what would biggest city, setting the foundation in the heart of its Arab American community. evolve into the first identified as Muslims. first wave immigrants from the region 2012/01/01/little-syria-now-tiny-syria-finds-new-advocates (“In 1891, Yusuf Sadal- 2012/01/01/little-syria-now-tiny-syria-finds-new-advocates town of Baskinta, in the part of the Otto- lah arrived in from the by the name of Joseph Sadallah, he set man Empire that is now Lebanon. Going up a trading shop on Washington Street . . . .”). as Jordan, Israel, and the Palestinian Occupied Territories; it was also referred to “Greater Syria.” lad of the from , Mount Lebanon, Baskinta, from Damascus, tral corners of the Levant, tral corners of the the Levant (1899–1921),ing the height of migration from approxi- Arabs migrated to the United mately “3,000 to 8,000 Levantine Suleiman ed., 1999). at 6–7.bred a “distinctive Christian culture expressed in Arabic.” These sects H 35559-nys_69-1 Sheet No. 31 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 31 35559-nys_69-1 35559-nys_69-1 Sheet No. 32 Side A 10/20/2014 11:50:05 These demographical figures demographical These 109 A.H. Keane, Joseph Deniker, and 111 , note 7, at 4–6. many of the judges presiding over their natu- many of the judges note1910 U.S. Census recorded 55,102 94, at 193 (“The supra 110 In 1924, the Syrian Christian population in the in population Christian Syrian the In 1924, note 97 at 21. 108 supra , Syrian Christian petitioners came to understand , Syrian Christian supra Suleiman, See Shishim B. Citizenship Christian Purity and Its Nexus to American The view that Syrian Christian identity was distinct from Arab Christian identity was distinct The view that Syrian Since Arab identity, having been conflated with Islam, was with Islam, been conflated identity, having Since Arab Eugenic research popularized the idea among judges that Syr- Eugenic research popularized the 108. Cainkar, 109. Khalaf, 110. 111. Dow v. United States, 226 F. 145, 146 (4th Cir. 1915). foreign-born Syrians (including Lebanese) and Palestinians in the United foreign-born Syrians (including Lebanese) States . . . Arab American scholar Philip Hitti estimated that there were about 200,000 ‘Syrians’ in the United States in 1924.”). 2013] annually.” States WHITE BETWEEN MUSLIM AND 51 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 23 8-OCT-14 15:03 ralization proceedings viewed Arab identity as Muslim, and Syrian viewed Arab identity as Muslim, ralization proceedings classification. Fol- as a wholly distinct ethno-racial Christian identity lowing only escape from Christian identity provided the that invoking their was vital to ac- Arab with Muslim identity, which the conflation of cessing whiteness. Johan Friedrich on the eugenic research of identity was based Syrian Christians as white in Blumenbach, who initially classified the late Eighteenth Century. clashed with the judicial and broader distortion of Arab identity as of Arab and broader distortion with the judicial clashed identity. with Muslim synonymous toward the lone pathway offered inassimilable, Christianity branded the Naturaliza- Christian immigrants during citizenship for Syrian identified the majority of these Syrian Christians tion Era. While themselves as Arab, United States was 95.5% Christian, and only 4% of the settlers from settlers 4% of the only and Christian, was 95.5% States United Muslim. identified as the Levant Daniel Brinton echoed Blumenbach’s contention that Syrian Chris- Daniel Brinton echoed Blumenbach’s significantly influenced judicial tians were white. These theories cases. Although Syrian Christian reasoning in the naturalization research as an ethno-racial clas- identity was established by eugenics (Muslim) identity, the rulings of sification separate from Arab proceedings often hinged on judges presiding over naturalization the “Syrian Christian” identity of the determination of the purity of them. Christianity as religion was the petitioners that came before than Christianity as racial less relevant to the judges’ determination marker. racially distinct from Arabs. ian Christians were a group of people of this ethno-racial distinction. The Again, religion formed the basis was a route toward whiteness Christian identity of Syrian Christians 35559-nys_69-1 Sheet No. 32 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 32 35559-nys_69-1 35559-nys_69-1 Sheet No. 32 Side B 10/20/2014 11:50:05 In ONSTRUCTION OF C EGAL L HE While presiding over : T 113 AW L Consistent with the court’s ruling Najour immigrated to the United States in 112 HITE BY Id. , W OPEZ L 1. Miscegenation with Muslims ANEY Najour, 174 F. 735 (C.C.N.D. Ga. 1909). Costa Najour was a F. H AN I , many judges positioned Syrian Christian purity as the , many judges positioned Syrian See In re See Id. Syrian Christian petitioners emigrated from a region judges Syrian Christian petitioners emigrated that the Syrian Christian Eugenic science drove early rulings However, Naturalization Era judges did not simply grant these Era judges did not simply However, Naturalization 67–68 (1996). 113. 112. Shishim Najour, Judge Newman relied on Dr. A.H. Keane’s “The World’s Najour, Judge Newman relied on Refers to race, rather than to color, and fair or dark complex- Refers to race, rather than to color, control, provided the person ion should not be allowed to the classification of the seeking naturalization comes within the Syrians as belong- white or Caucasian race, and I consider ACE Maronite Syrian from Mt. Lebanon. 1902, and subsequently traveled south to , where he opened up a dry goods shop. R perceived to be populated exclusively by Muslims. This view shifted perceived to be populated exclusively petitioners to prove that they the burden onto the Syrian Christian their Syrian Christian purity was were, in fact, Christians, and that miscegenation with the Muslim not jeopardized by conquest and majority population in the region. petitioners were “white by law.” 52 World Arab from the Muslims or to Muslims to Syrian available not that of immigrants majority the vast above, discussed As at large. NYU ANNUAL SURVEY Twentieth and early in the Nineteenth the United States came to OF AMERICAN LAW In accor- Christians. World were Syrian from the Arab Centuries waves, the immigrant of these initial the demographics dance with [Vol. 69:29 for citi- that petitioned the Arab World immigrants from first eight Christians. in court were Syrian zenship identification as based on their subjective petitioners citizenship from the Arab Since these immigrants hailed Syrian Christians. prism that them through an Orientalist World, judges examined judges approached Muslim identity. Therefore, conflated Arab with great skepticism, of Syrian Christians with the citizenship petitions purity of the the “Syrian Christian” (racial) often debating whether with Muslims, or diluted by ancestral intermixing petitioners was who performed petitioners were covert Muslims even whether the to get citizenship. Christian identity \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 24 8-OCT-14 15:03 re definition of whiteness, People” to find that the statutory in determinant metric for racial belonging. 35559-nys_69-1 Sheet No. 32 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 32 35559-nys_69-1 35559-nys_69-1 Sheet No. 33 Side A 10/20/2014 11:50:05 , In re In re In re , 179 F. at Ellis Id. , Keane’s findings were , Keane’s United States v. Cartozian In This distinction persuaded This distinction Najour 120 118 117 , 6 F.2d at 920. Armenia remained a homogenously Christian na- Armenia remained a homogenously , United States v. Cartozian, 6 F.2d 919, 920 (1925) (explaining , United States v. Cartozian, 6 F.2d 919, 114 at 920 (“[T]he [Armenian] people . . . have always held them- Less than one year after one year after Less than Ellis, 179 F. 1002, 1002–04 (D. Or. 1910). , 6 F.2d at 919. 121 122 at 735. at 735–36. at 736. at 921 (internal quotation marks omitted). Judge Wolverton scrolls at 921 (internal quotation marks omitted). 116 Judge Newman concluded that Costa George Najour—a that Costa George concluded Judge Newman Id. Id. Id. In re See, e.g. Cartozian Id. See id. to echo that Christianity isolated Armenians from the Mus- isolated Armenians from to echo that Christianity 115 Syrian Christian identity as white was more tenuous mainly be- Syrian Christian identity as white Armenians also procured whiteness by means of their Christi- procured whiteness by means of Armenians also In line with the eugenic classification of Syrian Christians as Syrian Christians classification of the eugenic In line with that a Syrian Catholic (Maronite) was white by law, and could (Maronite) was white by that a Syrian Catholic 119 ; Cartozian 114. 115. 116. 117. 118. 119. District Court. Both cases were decided by the Oregon 120. 121. 122. ing to what we recognize, and what the world recognizes, as the recognizes, world what the and recognize, what we ing to race. white Ellis a citizen. be naturalized as again cited as the basis for a federal court in Oregon to rule in in Oregon to rule a federal court as the basis for again cited lim ocean that encircled their nation. lim ocean that encircled cause of the risk that they had intermingled with Muslims. In cause of the risk that they had intermingled anity. The courts identified how Christianity set Armenians apart identified how Christianity set anity. The courts Arab neighbors. from their regional, 2013] WHITE BETWEEN MUSLIM AND white, 53 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 25 8-OCT-14 15:03 tion, while Syria, even long before Ottoman rule, was the most relig- tion, while Syria, even long before Christian homogeneity in Armenia iously diverse part of the region. themselves aloof from the Turks, evidenced that its people “held Muslims, which delivered them the Kurds,” and, in other words, that encumbered Syrian whiteness free of the skepticism Christians. Christian from Mount Lebanon—fitChristian of the statutory bounds within whiteness. the same court that singled out the petitioner’s Catholicism in singled out the petitioner’s Catholicism the same court that Ellis Judge Wolverton quoted a eugenic finding that “it would be utterly quoted a eugenic finding that “it Judge Wolverton belonging to the them [Armenians] as not impossible to classify white race.” that because Armenians were almost all Christians, and their neighbor states Mus- that because Armenians were almost all lim or heterogeneous, they were distinct). 1002 through contemporary ethnological research and accords with the conclusion of through contemporary ethnological research professor of anthropology, whose expert Dr. Frans Boas, a Columbia University undeniably white. testimony concludes that Armenians are ac- selves aloof from the Turks, the Kurds, and allied peoples, principally . . . on count of their religion . . . . The Armenians . . . very early, about the fourth century, espoused the Christian religion, and have ever since consistently adhered to their belief, and practiced it.”). 35559-nys_69-1 Sheet No. 33 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 33 35559-nys_69-1 35559-nys_69-1 Sheet No. 33 Side B 10/20/2014 11:50:05 , 6 A 127 Shahid did Shahid. 128 see also Cartozian 126 and the Christian population of Christian population and the 124 , his ruling was driven by an in-court Here, Judge Lowell marked the per- Judge Lowell marked Here, 130 Shahid 123 note 97, at 24–25to the period between 1861 (referring supra Thus, according to Smith, Shahid’s dark skin sig- Thus, according to Smith, Shahid’s Shahid, 205 F. 812, 813 (E.D.S.C. 1913). , 176 F. at 467 (C.C.D. Mass. 1910). 129 Mudarri, 176 F. 465, 466 (C.C.D. Mass. 1910). Mudarri, 176 F. 465, 466 (C.C.D. Mass. Halladjian 174 F. 834, 835 (C.C.D. Mass. 1909); Halladjian 174 F. 834, 835 (C.C.D. Mass. Lowell noted that unlike Armenian Christians, who Armenian Christians, noted that unlike Lowell reveals that suspected miscegenation with Muslims reveals that suspected miscegenation Khalaf, at 812. . at 813. . In addition, it is possible that Smith disagreed with the eugenicist 125 In re See In re Mudarri Ex parte Id. Id Id , the court stated that “[t]hose who call themselves Syrians call themselves who “[t]hose that court stated , the Shahid To resolve the uncertainty surrounding whether Syrian Chris- surrounding whether To resolve the uncertainty 123. 124. 125. 126. 127. 128. 129. 130. naled a degree of racial miscegenation with Muslims that diluted naled a degree of racial miscegenation undermined his petition his Syrian Christian purity and ultimately for American citizenship. for citizenship. Christianity, could foil a Syrian Christian’s petition tian identity was “white,” some Naturalization Era judges reached “white,” some Naturalization Era tian identity was Syrian Christian marker of phenotype to ascertain for the familiar is in particularly salient example racial purity. One 54Mudarri call those who than mixed more of a blood probably are by race NYU ANNUAL SURVEY Armenians.” themselves OF AMERICAN LAW [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 26 8-OCT-14 15:03 ceived difference between the religious heterogeneity of Syria (still of the religious heterogeneity between ceived difference 1910) province in an Ottoman Armenia. not only Syrian Christians neighbors, from their Muslim lived apart had intermixed to Muslims, but also likely lived in close proximity judge refused to As a consequence, the with them for centuries. as white and classification of Syrian Christians defer to the eugenic petition for citizenship. denied Mudarri’s examination of the petitioner’s physical characteristics. Engaging in examination of the petitioner’s physical Judge Smith described Shahid his own brand of in-court eugenics, or somewhat darker than is the to be “about [the color] of walnut, blood between the white and the usual of one-half mixed negro races.” not expressly identify himself as an Arab. Although Judge Smith not expressly identify himself as cited eugenic science in and 1915 as the “last four decades of Ottoman Rule”). and 1915 as the “last four decades of Ottoman Christian from Zahle, in modern-day Lebanon, Shahid petitioned in modern-day Lebanon, Christian from Zahle, he was a Christian South Carolina, asserting that for citizenship in province of the Ottoman Empire. native of the Syrian F.2d at 920–22 would be utterly impossible to classify them [Armenians] as (“[I]t [T]hey amalgamate readily with the white not belonging to the white race . . . . United States.”). races, including the white people of the consensus that Syrian Christians were white, and devised a rationale that side- stepped it. However, what is significant is that he relied on a decidedly racialized logic to resist the conclusion that the petitioner was white. 35559-nys_69-1 Sheet No. 33 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 33 35559-nys_69-1 35559-nys_69-1 Sheet No. 34 Side A 10/20/2014 11:50:05 Thus, the “Ma- 135 133 Judge Smith compared the petitioner’s Other rational explanations, such as Other rational explanations, 132 134 131 ruling illustrated how deeply maligned Arab Mus- ruling illustrated , the court’s determination of Muslim miscegenation made the , 205 F. at 813. at 817. at 813–14.be noted that there are different variations to It should Shahid at 816. Shahid Id. See id. Shahid See id. The Judge Smith adopted the racial logic of the one-drop rule and the racial logic of the one-drop Judge Smith adopted 131. 132. 133. 134. 135. In What is the race or color of the modern inhabitant of Syria it is inhabitant of Syria of the modern race or color What is the been of the world has area to say. No geographical impossible non- of Hittite or began. Originally since history more mixed Egyptian domination, at least under races, for a time Semitic al- and possibly of largely, taken possession then apparently with im- by the Semitic peoples, then overlaid most exclusively, followed by European races, then again migration from Mahom- conquest in the shape of the Arabian another Semitic . . etan eruption. . the one-drop rule: “[I]t is true that the question of the proportion of colored the one-drop rule: “[I]t is true that the person, as distinguished from a white per- blood necessary to constitute a colored of opinion in the different states; some son, is one upon which there is a difference blood stamps the person as belonging holding that any visible admixture of black [N.C.] 1, p. 11); others that it depends to the colored race (State v. Chaver, 5 Jones v. State, 4 354; Monroe v. Collins, upon the preponderance of blood (Gray predominance of white blood must only 17 Ohio St. 665); and still others, that the (People v. Dean, 4 406; Jones v. be in the proportion of three-fourths. Plessy v. Ferguson, 163 U.S. 537, 552 Commonwealth, 80 538 (1885).” (1896). 2013] citizenship toward pathway a clear provide invariably did not again, argued, Smith Judge immigrant-petitioners. for Syrian WHITE BETWEEN MUSLIM AND 55 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 27 8-OCT-14 15:03 exposure to the sun or the arbitrary decisionmaking of the judge, exposure to the sun or the arbitrary the proceeding. were not even considered during complexion to the phenotype of African Americans in South Caro- complexion to the phenotype of and observed that Shahid was lina, the seat of his courthouse, usual mulatto of one-half mixed “somewhat darker than is the negro races.” blood between the white and the lim (racial) identity was during the Naturalization Era. It also high- was during the Naturalization lim (racial) identity identity with Arab conflation of Muslim lighted the inextricable identity. purity was that the petitioner’s Christian its variations to determine sullied by Muslim blood. hometan” stain evident in the petitioner’s phenotype foiled his peti- hometan” stain evident in the petitioner’s tion for naturalization. presumption of non-whiteness irrefutable, and extinguished the relevance and resonance of Shahid’s Christianity in court. 35559-nys_69-1 Sheet No. 34 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 34 35559-nys_69-1 35559-nys_69-1 Sheet No. 34 Side B 10/20/2014 11:50:05 139 MMI- I TORY OF S OST L HE : T 8–9 than a (2006) (“For more AITING W TATES S Other Muslim immigrants who re- Other Muslim immigrants Muslims in the Arab World were in the Arab World Muslims 138 136 NITED Muslim immigrants from the Arab Muslim immigrants from the Not a single Muslim immigrant from Not a single Muslim U MERICANS IN 140 137 , A note 46, at 141. supra , note 97, at 21. (“[Muslim immigrants] faced psychological, note 97, at 21. (“[Muslim immigrants] note 15, at 2, 112. OTOMURA 2. Muslims? or Covert Christians Real ASSIRI M supra supra B ITIZENSHIP IN THE , C . IROSHI AFF GRATION AND Id HANEA The judicial interpretation of whiteness barred Muslims from barred Muslims of whiteness interpretation The judicial Muslim immigrants from the Arab World sometimes converted from the Arab World sometimes Muslim immigrants 136. Khalaf, 137. N 139. H 138. emigrated from Syria to New One Mohammed Asa Abu-Howah, who 140. religious, and cultural obstacles, and hence initially displayed considerable reluc- religious, and cultural obstacles, and hence tance to immigrate to the West.”). This was in contrast to the preferred status of immigrants who in- This was in contrast to the preferred Motomura has characterized as tended to naturalize, those Hiroshi “Americans in Waiting.” 56 NYU ANNUAL SURVEY OF AMERICAN LAW as citizens. being naturalized [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 28 8-OCT-14 15:03 World, like immigrant communities from China or Japan, occupied World, like immigrant communities during the Naturali- a position of legal purgatory as non-desirables would not be judicially rec- zation Era, realizing that their religion York in 1903, changed his name to A. Joseph Howar, because “people [he] met on York in 1903, changed his name to A. Joseph [his] name. They said it labeled [him] as a the boat told [him he’d] better change allow a Muslim to enter the United Muslim, and no immigration officer would States.” G the Arab World petitioned for American citizenship before 1942. petitioned for American citizenship the Arab World that their the Arab World clearly appreciated Muslim settlers from American citizenship. religion precluded the judicial and changed their names to counter to Christianity and toward Islam. societal hostility fused to convert to Christianity as a prospective means toward citi- fused to convert to Christianity as “non-intending citizens.” zenship accepted a subjugated status aware of the negative attitudes toward their faith in the United their faith in the toward the negative attitudes aware of during the emigrating many of them from preempted States, which not to many chose those who did migrate, Era. For Naturalization 95% of the first Indeed, the very fact that pursue naturalization. indicates how ani- from the region were Christian immigrant waves from migrat- preempted and suppressed Muslims mus toward Islam States. ing to the United century and a half—from 1795 to 1952—everyto applicant for naturalization had in advance. This declaration gave any file a declaration of intent several years noncitizen who was eligible to naturalize a precitizenship status that elevated him, even from his first day in America, well above those who had not filed declarations and therefore were not seen as on the citizenship track. Many statutes throughout this period expressly preferred intending citizens.”). 35559-nys_69-1 Sheet No. 34 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 34 35559-nys_69-1 35559-nys_69-1 Sheet No. 35 Side A 10/20/2014 11:50:05 . Shahid decision. 143 bona fides In Persuaded Shahid, 205 F. 142 146 and evidence of Ex parte Dow Ex parte 144 Woods deferred to note 1, at 58–59, 61, 71, 147 , supra , Ellis AID S , and Dow v. United States Dow v. United see also While Judge Smith did not take issue While Judge Smith did not take for a reformation of the naturalization of the for a reformation Najour Therefore, the vast majority of Arab majority the vast Therefore, 145 , were ruled white by law and granted citi- were ruled white 141 waited court was stumped and rendered no ruling, court was stumped Ellis , Judge Smith wanted to know whether George , Judge Smith wanted Shishim note 46, at 154. , Judge Smith found that the Christian identities of that the Christian identities , Judge Smith found Dow, 211 F. 486, 488 (E.D.S.C. 1914); , and Dow, 211 F. at 488; supra Mudarri , he remained skeptical of Dow’s Christian , he remained skeptical of Dow’s , Mudarri, 176 F. 465, 465, 467 (C.C.D. Mass. 1910). Mudarri, 176 F. 465, 465, 467 (C.C.D. Mass. C. Religion: White by . (“And it seems that in accordance with this construction of the statute Najour ASSIRI In re Ex parte Id Ex parte Ex parte Dow , Shahid B In George Dow appealed the decision. Judge Woods reversed, rul- George Dow appealed the decision. Up until 1915, the first seven cases involving a Syrian Christian cases involving 1915, the first seven Up until Ex parte Dow 141. naturalization, fearing the risk of a Many Muslim settlers opted to avoid 142. 143. the “[A]n enraged Syrian community” appealed 144. 146. Dow v. United States, 226 F. 145, 148 (4th. Cir. 1915). 147. 145. HANEA Dow, a Syrian Christian, was a “real” Christian. Smith’s answer was was a “real” Christian. Smith’s Dow, a Syrian Christian, an emphatic no—theArabic fluency was prima facie petitioner’s Arabic was spoken across re- evidence of Muslim identity. Although Judge Smith interpreted the peti- ligious lines in the Arab World, identity, tioner’s fluency as a marker of Muslim flying under the radar as non-in- negative judicial determination. Therefore, believed. tending citizens was a better option, they 2013] whiteness. with onciled WHITE BETWEEN MUSLIM AND 57 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 29 8-OCT-14 15:03 with Dow’s phenotype reflecting Christian (racial) impurity, as he with Dow’s phenotype reflecting did in Muslim immigrants did not exercise the option of petitioning for petitioning of the option exercise did not immigrants Muslim but simply citizenship, regime. Ultimately, Smith was unconvinced that Dow was authentically Ultimately, Smith was unconvinced Christian, and denied his petition. Christian population he repre- ing that George Dow and the Syrian of whiteness. sented fit within the statutory definition G by the decisions in the “Islamic conquest” that overtook the Levant, the region from the “Islamic conquest” that overtook which the petitioner came. petitioner had failed to establish judicial consensus as to whether to establish judicial consensus petitioner had failed of whiteness. In fit within the statutory definition Syrian Christians The petitioners in split on this very question. fact, the courts were Shishim and 74–75, 91, 205, 268, 303–04. a large number of Syrians have been naturalized without question. It is significant zenship. The which had the effect of denying the petitioner’s claim. of denying the petitioner’s which had the effect impure and illegitimate, respectively. the petitioners were 812, 813. 35559-nys_69-1 Sheet No. 35 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 35 35559-nys_69-1 35559-nys_69-1 Sheet No. 35 Side B 10/20/2014 11:50:05 see 151 and Shahid can be understood as , that Syrian Christians ruling marked a highpoint for Chris- ruling marked a highpoint for Dow v. United States : Nascent “Arab American” Identity signaled a moment when Naturalization Era courts signaled a moment when Naturalization capped the Syrian Naturalization Cases, es- capped the Syrian Dow v. United States as Christian and White Dow Thus, 149 152 Rather, Judge Woods’ ruling restored the primacy restored the Judge Woods’ ruling Rather, Halladjian, 174 F. 834, 839 (C.C.D. Mass. 1909) (“The Turks and Halladjian, 174 F. 834, 839 (C.C.D. Mass. 150 . He acknowledged that “modern Syrians are of mixed are Syrians that “modern acknowledged He D. After at 146. . of the Caucasian race, thus . (“They belong to the Semitic branch Dow v. United States 148 Id. Id Id Dow v. United States See In re Dow v. United States However, Woods did not engage in the phenotypic or ancestral engage in the phenotypic Woods did not However, The Karamian v. Curran, 16 F.2d 958, 959 (2d. Cir. 1927) (“[H]e [Yerwand 148. 149. 150. 151. 152. tablishing the narrow rule that Syrian Christians were white by law rule that Syrian Christians tablishing the narrow Furthermore, the for American citizenship. and collectively eligible the Arab World) Christians as a white minority (in status of Syrians Era judges, signaled to many Naturalization surrounded by Muslims in particularly Woods of the courts, the Congress has not that, in view of these decisions and this practice seen fit to change the law.”). who are in origin Mongolian.”). widely differing from their rulers, the Turks, needed safe harbor from Muslim conquest, compelled conversion, from Muslim conquest, compelled needed safe harbor and persecution. Christian, and therefore, could be finally accepted that Syrians were authentically The court finally came to this conclu- assimilated into whiteness and citizenship. proceedings. sion after six years, and eight naturalization they conquered. Conversion to Mo- the Saracens did not exterminate the people hammedanism and tribute were usually offered as alternatives to the sword.”); 58 white as to be classed “were Syrians that conclusion eugenic the people.” NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 Judge Smith in purity as did of Dow’s Christian scrutiny also Karamian] and other boys of his race were most cruelly treated by the Turks, and he himself ‘burned from the hip to the knee with a hot steel rod, because they wanted [him] to be a ‘Mohammeddan’.”); Reid v. Covert, 354 U.S. 1, 58 (1957). \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 30 8-OCT-14 15:03 Syrian, Arabian, and even Jewish blood,” with “Arabian” used as a with “Arabian” Jewish blood,” and even Syrian, Arabian, Muslim. proxy for for the rescue of Christian minori- a judicial declaration that called when the Ottoman Empire—theties in the Arab World at a time of Islam in 1915—wasprimary political manifestation at war with War I. the European allied powers in World of eugenics science in naturalization proceedings involving immi- in naturalization proceedings of eugenics science of Christian Arab World. With the categorization grants from the as Chris- the petitioner’s self-identification Syrians thus established, of whites. to place him within the category tian seemed enough Ex parte Dow Ex parte tian immigrants from the Arab World. The decision preceded xeno- tian immigrants from the Arab World. 35559-nys_69-1 Sheet No. 35 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 35 35559-nys_69-1 35559-nys_69-1 Sheet No. 36 Side A 10/20/2014 11:50:05 IB- L 158 This in- 155 27–58 (2002). The Act aimed 154 IGRATION IN THE 157 MERICA M 35–36 (2001). A THNIC : E , projecting the mastery of nature Entry into the United States United into the Entry RIGIN 153 The Act was in large part made The Act was in large ELONGING IN EASSESSMENT O B 156 : A R more geometrico note 112, at 11 (“From 1924 [to] 1952, persons note 112, at 11 (“From 1924 [to] 1952, LACE AND UGENICS ELECTING BY , P had an immense impact on the identities of had an immense supra , E , S , YNN OPEZ L OPPKE ACOBSON J L J ANEY AVID ICHARD H D R at 109. HRISTIAN 40 (2005) (“The prominent role of eugenics experts in the crafting of 40 (2005) (“The prominent role of eugenics ERAL See Id. See Cf. TATE Dow v. United States The , heralded as the “greatest tri- as the “greatest 1924, heralded Act of The Immigration note 97, at 20–21. 1910, the U.S. Census “recorded 55,102 foreign-born By migration from the Levant, and note 94, at 193. In order to further suppress 153. 157. 158. C 154.its quotas on the U.S. Census of The Immigration Act of 1924 based 155. 156. S Syrian immigrants in the United States. First, the decision was ren- in the United States. First, the Syrian immigrants Empire in 1918. before the fall of the Ottoman dered three years Arabism that and existential shift toward Therefore, the political Empire came two decades took place after the fall of the Ottoman Christians fit within the statu- after Judge Woods ruled that Syrian 2013] the into immigration restricted categorically that legislation phobic years. only nine by Eden” “American WHITE BETWEEN MUSLIM AND immigration. stifled the eugenics movement,” umph of 59 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 31 8-OCT-14 15:03 ineligible for citizenship could not enter the United States.”). ineligible for citizenship could not enter the 1924 National Origin Quota Act brought to a peak the prominent role that the 1924 National Origin Quota Act brought at the time) had played all along the post- ‘science’ (or rather what passed as that prankish antics of race theory should not 1880s restriction movement . . . . The a distract from the fact that turn-of-the-century immigration restriction was part of larger project of designing society that had been achieved through modern physics and biology into the realm of that had been achieved through modern physics and biology into the realm human affairs, and thus perversely realizing the ‘absolute perfection of the human race’ . . . .”). possible by “judges in the prerequisite cases [who] were unable to in the prerequisite cases [who] possible by “judges definition of Whiteness.” develop a freestanding for immigrants from the Arab World proved increasingly difficult increasingly Arab World proved from the for immigrants of 1924. Immigration Act passage of the after the to accomplish what Naturalization Era judges could not, which was Naturalization Era judges could to accomplish what the composition definition of whiteness and to restore the statutory form. to its more narrow European of the nation’s citizenry cluded immigration from the Levant, home of the vast majority of of the vast the Levant, home from cluded immigration the Arab World. immigrants from 1890. The Syrian population skyrocketed between 1890 and 1919, with the former 1890. The Syrian population skyrocketed of considerable migration from the Le- year being the chronological beginning in the Arab World residing in the United vant. The population of individuals born Syrian and Christian. Khalaf, States in 1890 was 1,126, and was overwhelmingly supra in the United States.” Cainkar, Syrians (including Lebanese) and Palestinians supra selected the paltry, pre-immigration other undesirable origin points, Congress the 1910 Census figures that boasted a boom 1890 Census numbers instead of the United States. considerably larger Syrian presence in 35559-nys_69-1 Sheet No. 36 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 36 35559-nys_69-1 35559-nys_69-1 Sheet No. 36 Side B 10/20/2014 11:50:05 162 33 Dow 209, were and , Helen SLAM 164 Conse- I UTURE imams 163 F 161 See, e.g. EW ECT IN N S ADICAL UILDING A : B : A R “Arab,” as a modern iden- “Arab,” note 32, at 185. “A group of the 160 MERICA supra A SSASSINS , narrowly established that Syrian established that narrowly was, indeed, a victory of Syrian American A This meant that George Dow and Dow that George meant This HE RABS IN 159 OURANI A , T in , EWIS note 32, at 220, 235. to be a victory for Arab Americans at large. However, to be a victory for Arab Americans at large. L was swayed by the eugenic conclusion that Syr- was swayed by the supra , decision did not impact Muslim, , decision did not Dow v. United States ERNARD Dow note 36. Dow v. United States Dow v. United Dow Not Quite White decision assimilated into mainstream whiteness and adopted new into mainstream whiteness and adopted decision assimilated OURANI , 226 F. at 147. H See supra See Dow Dow v. United States Second, 161. 162. (4th. Cir. 1915). One commentator Dow v. United States, 226 F. 145, 147 159. Arab Natu- Christian petitioners in the first eight Therefore, the Syrian 160. 164. with followers in Lebanon, Syria, The Druze faith is an offshoot of Islam 163. claimed rhetoric of the court and the decisions this perspective neglects the anti-Muslim that came before it. settlers among them or the subsequent Christians, but not for the few Muslim a broader host of nations. Muslim immigrants that followed from Hatab Samhan, ralization Cases did not identify themselves as “Arab,” in its modern sense, when not identify themselves as “Arab,” in its ralization Cases did and after the Many of the Syrian settlers before they petitioned for citizenship. 60 of whiteness. definition tory NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 Judge Smith in Muslims. racially distinct from Arab ian Christians were v. United States Other Syrian Chris- include remnants of the old country. identities that did not was framed along the old modality of Arab identity, which tians identified with a considerable number of natural- common cultural and linguistic lines. However, of Arab identity that sprouted in the re- ized citizens adopted the modern mode the identities of the naturalized gion in the 1930s. Pan-Arabism “re-signified” of Arab Americanism soon after they Syrians, which ushered in a formative brand claimed citizenship. \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 32 8-OCT-14 15:03 eligible for citizenship. law, and thus were white by Christians every Syrian immigrant who petitioned for citizenship before him before citizenship for petitioned who immigrant Syrian every pa- religious and regional to the themselves according identified rule. mandated by Ottoman rameters be established. had yet to out of Pan-Arabism, tity born faithful believed that al-Hakim was divine, and had not died but gone into occulta- faithful believed that al-Hakim was divine, on the Fatimid throne, they seceded tion. Refusing to recognize his successors some success in winning support among from the main body of the sect. They had of the Ismailis of Syria, where groups of them still survive, in the present-day states Syria, Lebanon, and Israel. One of the founders of the sect was a da’i of Central Asian origin called Muhammad ibn Isma’il al-Darazi. They are still known, after him, as .” B quently, the Jewish settlers from the Arab World, who continued to live in the the Arab World, who continued Jewish settlers from embodiments of the Intelligences which emanated from the One God, and main- embodiments of the Intelligences which to human beings, and had been finally tained that the One Himself was present (996–1021),embodied in the Fatimid Caliph al-Hakim who had disappeared from human sight but would return.” H Israel, and the Palestinian Territories. “The faith of the Druzes sprang from the Israel, and the Palestinian Territories. the Isma’ili idea that the teaching of Hamza ibn ‘Ali; he carried further 217 (Michael W. Suleiman ed., 1999). (1968). 35559-nys_69-1 Sheet No. 36 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 36 35559-nys_69-1 35559-nys_69-1 Sheet No. 37 Side A 10/20/2014 11:50:05 165 167 did not undo the conflation of 48–49 (Knopf, 1952). IV. ROPHET CONVERGENCE P —Gibran Khalil Gibran, The Prophet HE , T However, competing modalities of identity, which However, competing IBRAN 166 BETWEEN ARABISM AND INTEREST G Dow v. United States AHLIL Third, the fall of the Ottoman Empire and the shifting political Empire and fall of the Ottoman Third, the Fourth, 165. state of Lebanon moved Leba- For instance, the creation of the modern 166. Many naturalized identified with Arabism as a political 167. K “How long are the Cross and the Crescent to remain apart “How long are the Cross and the before the eyes of God?” nese citizens and settlers in the United States to re-identity as , nese citizens and settlers in the United States and Syrians and Palestinians to follow suit. and secular movement, and accordingly adopted it to reframe their identities. However, the courts were still gripped by a disoriented view of Arab identity and held Syrian Christians to be a distinct race of people that fit within the statutory definition of whiteness, while Arab Muslims did not. Pan-Arabism subsequently galvanized many settlers and naturalized galvanized many settlers Pan-Arabism subsequently national lines, States across religious and citizens in the United identity in the embrace of modern brand of Arab which led to their United States. 2013] citi- naturalized of becoming the prospect without States United be naturalized to first Arabs that the to note It is important zens. eu- judges, who leveraged by presiding considered “Arabs” were not WHITE BETWEEN MUSLIM AND by law, were white that Syrians Christians to resolve genic science from Arab region distinct minority in the result, an insular and as a Muslims. court’s formation Arab World, in part, undid the landscape in the of independent identity. The birth of a distinct Syrian-American 61 to realign and Syria moved many immigrants states in Lebanon they came from. line with the nation-states that their identities in \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 33 8-OCT-14 15:03 encompassed full-fledged assimilation into whiteness, nation-state assimilation into whiteness, encompassed full-fledged Americans identi- Arabism, splintered how Arab identification, and Century. fied during the early Twentieth Arab with Muslim identity, which judges continually redeployed to Arab with Muslim identity, which from accessing citizenship. The restrict Arab Muslim immigrants judges saw Muslim immigrants following section illustrates how formed the core of the ani- from the Arab World, whose religion the Naturalization Era, as un- mus toward such immigrants during desirable, antagonistic, and inassimilable. 35559-nys_69-1 Sheet No. 37 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 37 35559-nys_69-1 35559-nys_69-1 Sheet No. 37 Side B 10/20/2014 11:50:05 note al-Hoda supra , The spreading IASPORA D 169 MERICAN “As the manifesto of the First A Id. YRIAN S 170 ARLY E , twenty-seven years passed before an- passed before years , twenty-seven note 33. THNICITY IN THE supra , E note 36. Dow v. United States v. United Dow HOUERRI ACE AND 168 See supra Despite these shifts in the ways immigrants from the Levant in the ways immigrants from Despite these shifts alternative to the re- Pan-Arabism introduced a postcolonial After 169. 170. R 168. C A. Arab American Identity Arabism and Its Impact on Formative other petitioner from the Arab World brought a petition for citizen- a petition brought World the Arab from petitioner other and political volatility by considerable span was marked ship. This the fall World War I and which included: the Arab World, reform in of Euro- period lands; the subsequent rule over Arab of Ottoman of inde- the emergence War II and and World pean colonialism; the Most critically, in the region. nation states pendent existential move- Pan-Arabism as a political and development of reconfigured how between 1915 and 1942, which ment took shape identities moving the region framed their Arab immigrants from forward. latter end of the Arab identity, courts during the perceived their under- remained wedded to the entrenched Naturalization Era the same. This and Muslim identity as one and standing of Arab involving Muslim two naturalization hearings section will examine judges continued the Arab World to illustrate how immigrants from although the with Muslim identity. In addition, to conflate Arab much of the naturalized Syrian emergence of Pan-Arabism led their identities as Arab American, Christian community to reframe a view of Arab identity that per- the courts continued to project Syrian Christians from the Arab ceived Muslim immigrants and World as racially distinct. in the Arab World. The philoso- gional and religious factionalism during the 1940s, inspired a new phy, which reached its highpoint throughout the region and mode of Arab identity that resonated United States. among the growing Diaspora in the 62 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 34 8-OCT-14 15:03 “motif of transformation” toward Arabism was most ripe among Syr- “motif of transformation” toward who generally infused this revital- ian settlers in the United States, their newfound status as not simply ized brand of Arab identity with Americans, but Arab Americans. 2, at 95. “The motif of transformation was a recurring one in the writings of Syrian 2, at 95. “The motif of transformation was immigrants. It was captured visually in a full-page advertisement placed in [a Syrian American newspaper] by the Moshy Brothers in New York . . . [The author of the article] argued . . . that emigrants were responsible for the reformist awakening . . . in Syria and cited their efforts at the Arab Congress in Paris as proof of their commitment to the struggle for change.” 35559-nys_69-1 Sheet No. 37 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 37 35559-nys_69-1 35559-nys_69-1 Sheet No. 38 Side A 10/20/2014 11:50:05 , Id. as a 174 awlad 25, 26–27 (Michael W. Suleiman ed., Michigan, particularly the 175 UTURE F sowed the seeds for a fledgling Arab a fledgling for the seeds sowed EW N However, Muslim immigrants were also Muslim immigrants However, note 33, at 82. note 139, at 8. 171 supra , Attachment and Identity: The Palestinian Community of UILDING A supra note 15, at 15. , : B supra at 79–80. 173 Ahmed Hassan, 48 F. Supp. 843, 845 (E.D. Mich. 1942). HOUERRI Despite the reformed brand of secular Arab identity Despite the reformed brand of , Again, the rise of Pan-Arabism in the Arab World in the in the Arab rise of Pan-Arabism Again, the C MERICA Dow v. United States v. United Dow OTOMURA AFF 176 A 172 In re See id. See B. Muslim Immigrants American Citizenship Barred to Arab However, the expansion of modern Pan-Arab identity However, the expansion The American citizenship afforded to Syrian Christians by the Christians Syrian to afforded citizenship American The The judicial construction of Arab identity that prevailed in the The judicial construction of Arab 175. 176. May Seikaly, 171. 172. M 174. 173. N RABS IN Even if they were unaccustomed to identifying themselves as unaccustomed to identifying Even if they were to their in fact, clung tenaciously “Arabs” those immigrants, proudly ac- Muslims, and Druze alike Arabness. Christians, are all Arab cultural roots . . . “We knowledged common Arab (children or sons of Arabs),” they characteristically re- or sons of Arabs),” they characteristically Arab (children in an Arab who encountered them sponded to anyone gathering. A in Arab Congress claimed, the entire Arab nation was ‘spread across the world.’”Arab Congress claimed, the entire Arab at 99. 2013] in ruling WHITE BETWEEN MUSLIM AND 63 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 35 8-OCT-14 15:03 metropolitan Detroit area, was rapidly becoming a hub for the Arab metropolitan Detroit area, was rapidly Diaspora. 1930s united Arab immigrants from across religions and national religions and from across Arab immigrants 1930s united identity: common banner of modern Arab lines under the American community. American commu- Arab American the burgeoning participants in important in status of “citizens the liminal though they occupied nity even waiting.” foreign and domestic phenomenon did not erode the judicial con- phenomenon did not erode foreign and domestic the courts, which conflated Arabs struction of Arab identity within Christians. The last of the two and Muslims while excluding Syrian that despite modern Arab- Arab Naturalization hearings illustrates diaspora in the United States, ism’s resonance with the growing as Muslims and dis-identified judges still identified Arabs exclusively citizenship as whites by law, as Syrian Christians, who could access Arabs. was still firmly in place in 1942, first eight Arab Naturalization Cases region petitioned for U.S. citizen- when the first Muslim from the Yemen, filed his citizenship appli- ship. Ahmed Hassan, a native of cation in a Michigan court. 1999) (“Detroit was the destination of many because it offered the largest concen- tration of ethnic Arabs, providing family and friends and a familiar way of life.”). 35559-nys_69-1 Sheet No. 38 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 38 35559-nys_69-1 35559-nys_69-1 Sheet No. 38 Side B 10/20/2014 11:50:05 proves that Dow v. United Hassan Furthermore, Judge 178 180 Tuttle’s geographic orientation of “Arabia” ex- Tuttle’s geographic 177 179 , and he echoed the baseline that Syrian Christians , and he echoed , 48 F. Supp. at 845. . also vividly illustrates the gulf between Judge Tuttle and also vividly illustrates the gulf between illustrates that the Orientalist construction of Arab illustrates that the Orientalist . Hassan See id Id Id. Hassan holding that Syrian Christians fit within the statutory defini- Christians fit within the statutory holding that Syrian Hassan Tuttle’s understanding of Arab identity conformed to the views of Arab identity conformed Tuttle’s understanding Hassan 177. 178. 179. 180. It cannot be expected that as a class [Arabs] would readily in- would readily as a class [Arabs] be expected that It cannot civili- into our and be assimilated with our population termarry to of these peoples of immigration small amount zation. The more- fact. Arabia, evidence of that States is in itself the United to the or even contiguous to Europe immediately over, is not Mediterranean. Arab Muslim identity still clashed with the prevailing judicial con- Arab Muslim identity still clashed ception of whiteness in 1942. the proliferating community of Arabs in the metropolitan Detroit the proliferating community of and concentrated popu- area, which became the most conspicuous importantly, lation of Arabs in the 1930s. Most 64 Arab the from citizens naturalized and immigrants on by taken that, reasoned Tuttle Judge World, NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 cases that pre- over the eight naturalization of the judges presiding ceded from Arab Muslims. were a people distinct \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 36 8-OCT-14 15:03 cluded the Levant, a sad irony given that the Levant was not only cluded the Levant, a sad irony given of Arab Muslims, but also the home to a considerable population founded. very place where Pan-Arabism was in 1942, only ten years before identity was still deeply entrenched Act. The ruling exemplifies the dissolution of the Naturalization blinded judges from taking how the disorientation of Arab identity political events in the Arab World into consideration transformative the fact that Pan-Arabism that reshaped Arab identity. Despite and naturalized Arab Americans shifted how both Arab immigrants continued to perceive Arab were identified, naturalization judges identity in fixed and arcane terms. States they were part of (due to eugenic conclusions that tion of whiteness the white race). Tuttle removed the Levant from what he felt to be the geographic the Levant from what he felt to Tuttle removed the World, seemingly because of makeup of the Arab 35559-nys_69-1 Sheet No. 38 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 38 35559-nys_69-1 35559-nys_69-1 Sheet No. 39 Side A 10/20/2014 11:50:05 , Wyzanski Hassan This praise, however, 182 , although marking a critical , although marking Ex parte Mohriez Unlike Judge Tuttle in demonstrates how the failure to recognize mod- to recognize how the failure demonstrates 181 note 1, at 7 (“[O]rientalism depends for its strategy on this Mohriez, 54 F. Supp. 941, 942 (D. Mass. 1944). supra is a watershed case that not only granted citizenship to that not only granted citizenship is a watershed case , Hassan AID Ex parte C. Immigrants Muslim Against the Restriction Reversing , Mohammed Mohriez, a native of Saudi Arabia, came a native of Saudi Arabia, , Mohammed Mohriez, While Mohriez 181. 182. S As every schoolboy knows, the Arabs have at various times in- As every schoolboy knows, the Arabs the Mediterranean, been habited parts of Europe, lived along and been assimilated cultur- contiguous to European nations . The names of Avicenna and ally and otherwise, by them . . . and medicine, the population Averroes, the sciences of algebra Sicily, the very words of the and the architecture of Spain and would have reminded the English language, remind us as they and interaction of Arabic and Founding Fathers of the action . . . . [T]he Arab people non-Arabic elements of our culture by which the traditions of stand as one of the chief channels demonstrated fluency of the political changes taking place in the demonstrated fluency of the political ern Arab identity extended the Naturalization Era cases’ rationale Era cases’ the Naturalization identity extended ern Arab of even the recognition immigration, Century into mid-Twentieth a Muslim of citizenship to the extension Arab identity and modern of Arab conflation reorient the judicial did not quite petitioner with Muslim identity. crossroads with regard to extending naturalization eligibility to regard to extending naturalization crossroads with not disrupt the from the Arab World, did Arab Muslim immigrants Muslim identity. quo of conflation of Arab and ideological status an Arab Muslim, but also reflects a moment when the judicial orien- but also reflects a moment when an Arab Muslim, Two years after identity was turned on its head. tation toward Arab Hassan 13, 1944 seeking to District Court on April before the that Mohriez was an American citizen. By ruling be naturalized as Wyzanksi lifted the for citizenship, Judge Charles white and eligible from the Arab World from acces- bar restricting Muslim immigrants sing citizenship. flexible positional superiority, which puts the Westerner in a whole series of possi- ble relationships with the Orient without ever losing him the relative upper hand.”). 2013] WHITE BETWEEN MUSLIM AND 65 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 37 8-OCT-14 15:03 Arab World. Moreover, Wyzanski praised Arab Muslims in a fashion Arab World. Moreover, Wyzanski Era. unprecedented in the Naturalization did not challenge, much less undo, Orientalist baselines, but did not challenge, much less and the judges presiding over rather, redeployed them. Like Tuttle involving Christian petitioners, the set of Arab Naturalization Cases by a view of Arab identity that Wyzanski’s opinion is still informed conflated it with Muslim identity: 35559-nys_69-1 Sheet No. 39 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 39 35559-nys_69-1 35559-nys_69-1 Sheet No. 39 Side B 10/20/2014 11:50:05 reaf- Hassan set the prece- established that is cited by schol- While he shifted to While Mohriez Mohriez , and the Arab Naturali- 184 Mohriez , Hassan Hassan 183 Therefore, although Therefore, although 185 . , 54 F. Supp. at 942. Mohriez See id. See id. Mohriez departs from the analysis in Despite Wyzanski’s holding that Mohamed Mohriez fit the stat- Mohriez fit the that Mohamed Wyzanski’s holding Despite Decided only two years after Wyzanksi was the first Naturalization Era judge to rule that an Wyzanksi was the first Naturalization The domestic impact of the ruling in The domestic impact 183. 184. 185. white Europe, especially the ancient Greek traditions, have traditions, Greek ancient the especially Europe, white present. into the carried been Hassan and Mohriez are both Muslim (at least by name). What Hassan and Mohriez are both Muslim not just their faith community makes their cases noteworthy is when an Arab Muslim is but the short span of time between and when an Arab Muslim is considered nonwhite (Hassan) officially considered white (Mohriez). It is this abrupt 66 NYU ANNUAL SURVEY OF AMERICAN LAW his for citizenship, and was eligible of whiteness utory definition that was of Arab identity on a construction rested entirely rationale [Vol. 69:29 monolithic. and religiously fixed, arcane, \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 38 8-OCT-14 15:03 firmed that Muslim identity was inassimilable within American firmed that Muslim identity was citizenship? dent that a Muslim immigrant from the Arab World fit within the immigrant from the Arab World dent that a Muslim not retroactively of whiteness, the decision did statutory decision as Arabs, or formally ac- recognize naturalized Syrian Christians The courts still viewed both as knowledge them as Arab Americans. about a segregated view of Arab separate racial groups, bringing the gradually galvanizing mode American identity that clashed with Pan-Arabism. of Arab identity brought forth by definition of whiteness. Yet, Arab Muslim fit within the statutory long-standing conflation that Wyzanksi did not repudiate the terms. This raises a ques- framed Arab and Muslim as co-extensive only two years after tion: What brought about this shift highlight Arab identity in positive terms, Wyzanski did not desert Wyzanski did in positive terms, Arab identity highlight the nine decisions of Arab identity that steered the disoriented view before Arab immigrants, Christians, and Muslims alike, met the statutory Christians, and Muslims alike, Arab immigrants, as American citi- and could be naturalized definition of whiteness the prevailing eu- the decision did not challenge zens. However, group distinct Syrian Christians were a racial genic baseline that from Arab Muslims. ars as evidence of the arbitrary nature of procedural rulings during ars as evidence of the arbitrary nature only partially explains why the Naturalization Era. This position Mohriez zation Cases decided before it. Moustafa Bayoumi notes that, zation Cases decided before it. Moustafa 35559-nys_69-1 Sheet No. 39 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 39 35559-nys_69-1 35559-nys_69-1 Sheet No. 40 Side A 10/20/2014 11:50:05 might . 267, 283 EV Haney Lo- R Mohriez 187 ENTENNIAL C EW were the product of “in- were the L.J. 817, 839 (2000). , 6 CR: N Mohriez ALE 188 and , 109 Y note 112, at 13. Racing Religion from a purely domestic lens, absent knowl- from a purely domestic lens, absent supra Hassan Performing Whiteness: Naturalization Litigation and the Con- Performing Whiteness: Naturalization Litigation , note 153, at 179 (“In so far as the Nationality Act of , respectively. OPEZ supra L Mohriez , ANEY Mohriez H and 186 , and formal whiteness to Arab Muslim immigrants. Read- , and formal whiteness to Arab Muslim ACOBSON Cf. and 189 Bayoumi, Tehranian and Haney Lopez effectively expose how and Haney Lopez effectively Bayoumi, Tehranian John Tehranian echoes Bayoumi, arguing that the conflicting Bayoumi, arguing echoes John Tehranian Hassan 186. Moustafa Bayoumi, 189. J 188. 187. John Tehranian, Mohriez shift . . . [that] illustrates not just the capricious nature of racial nature capricious just the not illustrates . . . [that] shift American contemporary to which depth also the but formation always creating rather than race creates race, politics politics. ing formulated with the primary aim of be seen as a judicial declaration Arabia and the Arab World at advancing U.S. interests in Saudi large. these clashing rulings are, in large part, the result of a hodgepodge are, in large part, the result these clashing rulings However, fac- employed by naturalization judges. of methodologies most specifically, judicial determinations, tors outside of arbitrary to the petitioner helped deliver citizenship “self-interest leverage” in geopolitical developments in a edge of the broader regional and an incomplete examination of postcolonial Arab World, renders the ruling in these two cases. Assessed more broadly, 2013] WHITE BETWEEN MUSLIM AND rendered in decisions 67 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 39 8-OCT-14 15:03 1940 is still open to interpretation, it is highly desirable that it should be inter- preted so as to promote friendlier relations between the United States and other nations and so as to fulfill the promise that we shall treat all men as created equal.”). struction of Racial Identity in America ternal contradictions and dadaistic logic that find Arabs to qualify that find Arabs dadaistic logic and ternal contradictions situations and nonwhite in others.” as white in some pez also identifies a theory of racial ideology that could describe the a theory of racial ideology that pez also identifies out of the distinct in the two cases as borne conflicting decisions and Wyzanski in adopted by the Judges Tuttle racial methodologies Hassan (2006). 35559-nys_69-1 Sheet No. 40 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 40 35559-nys_69-1 35559-nys_69-1 Sheet No. 40 Side B 10/20/2014 11:50:05 Has- IDDLE 190 M MERICA IN THE , the United States’ : A sounded a superficial alarm ANTASY F Mohriez AND Brown v. Board of Education Brown v. Board of , V. : NATURALIZATION OR : NATURALIZATION AITH , F OWER , at 409–10 (2007) (“By the early 1920’s, accelerated , P did not genuinely advance the lives of Arab Muslim did not genuinely advance the lives of Brown v. Board of Education Brown v. Board of NATURAL RESOURCES? NATURAL REN 192 did not materially alter the reality of segregated schools in did not materially alter the reality of segregated RESENT Mohriez P B. O Indeed, Wyzanski may well have affirmed the ruling Indeed, Wyzanski may well have Brown Ahmed Hassan, 48 F. Supp. 843 (E.D. Mich. 1942). This decision Ahmed Hassan, 48 F. Supp. 843 (E.D. —Amicus the U.S. Department of Justice, Brief from EX PARTE MOHRIEZ EX PARTE ICHAEL TO THE if not for the development of American interests in Saudi if not for the development of American In re Mohriez. Geopolitical factors as well as industrialization set a new tem- as well as industrialization set Geopolitical factors Europe’s stranglehold on Middle Eastern oil spurred Herbert Europe’s stranglehold on Middle Ten years before Ten years before American foreign policy interests in Saudi Arabia, and the American foreign policy interests 191 , 1776 190. Curiae at 6, Brown v. Board of Brief for the United States as Amicus 191. 192. M . Hassan “The United States is trying to prove to the people of the to the people to prove States is trying “The United most civilized and is the most . that a free democracy world . . by man.” yet devised secure government AST industrialization, the mass production of automobiles, and electrification of house- holds had propelled the demands for petroleum in the United States well beyond its production capacity.”). san postwar foreign policy designs in the Arab World reflected a range policy designs in the Arab World postwar foreign the ruling in were potentially out of step with of interests that E Hoover—then Secretary of Commerce—to convene a consortium Education, 347 U.S. 483 (1954). 68 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 40 8-OCT-14 15:03 plate for engaging the Arab World in a manner that eroded the the Arab World in a manner plate for engaging Together, these as threats to American interests. notion of Arabs that contrib- both material and ideological factors interests formed had shaped the of the presumptions that uted to a reassessment earlier approach to Arab naturalization. backdrop for Wyzanski’s rul- Arab World at large, set an important ing in to Muslim natives of the Arab World that whiteness and citizenship were attaina- to Muslim natives of the Arab World that ble. However, as in political and economic in- Arabia, and the United States’ broader in the United States’ sociopoliti- terests in the region. A key factor was the increased demand for oil. cal engagement with the region search for the natural resource, Industrialization fueled the global and oil companies into the which ultimately led U.S. speculators Arabian Peninsula. not only in flux, but could be manipu- exposed how the courts’ “racial logic” was elite. lated to serve the interests of the ruling the United States, immigrants during, or after, the Naturalization Era. immigrants during, or after, the Naturalization 35559-nys_69-1 Sheet No. 40 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 40 35559-nys_69-1 35559-nys_69-1 Sheet No. 41 Side A 10/20/2014 11:50:05 . EV This This and the . L. R 197 193 TAN , 41 S offered a strategic Mohriez Four years later, in 1935, Four years 199 194 , http://www.saudiaramco.com/en/ COM . , http://www.sharia101.org/resources/Proph This was miles away from the miles away from This was RAMCO Extending citizenship to Muslim immi- Extending citizenship to Muslim 198 195 HARIA A 200 , S Desegregation as a Cold War Imperative , 93 Harv. L. Rev. 518, 524 (“In many countries, where AUDI S , , Dainese v. Hale, 91 U.S. 13, 15 (1875); Ross v. McIntyre, 140 During the same year that Hoover’s consortium of that Hoover’s the same year During Prophet Muhammad Honored by U.S. Supreme Court as One of the Greatest Prophet Muhammad Honored by U.S. Supreme Derrick A. Bell, Jr., Comment, Brown v. Board of Education at 415. at 410. at 413–14. strategy proved effective and formed the first Hoover’s Ibn Saud, the King of Saudi Arabia, was skeptical of European coun- Ibn Saud, the King of Saudi Arabia, was 196 Contact Us Id. Id. Id. See, e.g. See Id. Id. The shifting backdrop of American interests was also ideologi- of American interests was The shifting backdrop In line with renewed post-World War II foreign policy interests In line with renewed post-World 195. 196. 193. 194. 198. 199. Mary L. Dudziak, 197. See 200. tries and Britain in particular, which, in combination with the United States’ offer tries and Britain in particular, which, in the competing bidder’s consultant a thou- to pay the Saudis in gold and to provide bilateral agreement with the U.S. consor- sand-pound annuity, led to a binding tium. step toward accessing the Arab oil for which a rapidly industrializing United States step toward accessing the Arab oil for which thirsted. cal. In 1944, the year Mohriez came to court seeking naturalization, year Mohriez came to court seeking cal. In 1944, the than an abstract to many Americans, much more “democracy was, . . . . [P]art of the Americans were dying for idea. It was a principle its incompatibility democracy they fought for was meaning of the and anti-Semitism.” with Nazi racism 2013] companies. petroleum leading seven States’ United of the WHITE BETWEEN MUSLIM AND 69 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 41 8-OCT-14 15:03 American oil companies and the Saudi government formed and the Saudi government American oil companies by the U.S. Su- Mohammed was honored Aramco, the Prophet the world.” “one of the greatest lawgivers in preme Court as headquarters of the Arabian American Oil Company (Aramco) in Oil Company (Aramco) American of the Arabian headquarters Dhahran. phenomenal reserves of oil were found in Dammam, in the Eastern Dammam, in the oil were found in reserves of phenomenal of Saudi Arabia. Province et%20honored%20by%20Supreme%20Court.pdf (last visited Apr. 4, 2014) for in- et%20honored%20by%20Supreme%20Court.pdf honoring the Prophet Mohammed. formation about the Supreme Court plaque U.S. 453 (1891). consortium broke the European monopoly and secured a pathway and secured monopoly European broke the consortium Arabian oil. Saudi toward accessing the beginning U.S. courts maligned up through was the very figure Century. of the Twentieth springboard toward advancing American interests in the Arab springboard toward advancing declaration that would res- World, which benefitted from a juridical and people. onate among the region’s leaders of Arab Muslim immigrants in the Arab World, the naturalization enhancing the United States’ pro- promoted the broader project of file in the Arab World. home/top-footer/contact-us.html (last visited Apr. 4, 2013). home/top-footer/contact-us.html (last 61, 68 (1989). Lawgivers of the World in 1935 Interest-Convergence Dilemma 35559-nys_69-1 Sheet No. 41 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 41 35559-nys_69-1 35559-nys_69-1 Sheet No. 41 Side B 10/20/2014 11:50:05 Judge decision 205 was vital to Mohriez note 200. the supra Hassan 204 was an exception, not the rule. Bell, Sarah Gualtieri contends . 5, 12 n.31 (1976)). EV 207 with Racial Remediation: An Historical Perspec- call for integration was framed call for integration Mohriez in light of increasing American L. R 203 ’s AME D Hassan Thus, Wyzanski’s ruling was part of a Thus, Wyzanski’s Brown Wyzanksi’s plea for better relations be- plea for better Wyzanksi’s OTRE 202 206 201 , 54 F. Supp. at 943 note 199, at 62–63(“U.S. government officials realized , 52 N note 200. In short, supra supra Mohriez, 54 F. Supp. 941, 943 (D. Mass. 1944). Mohriez, 54 F. Supp. 941, 943 (D. Mass. , 54 F. Supp. at 943. Bell, at 493. . Echoing Derrick A. Bell, Jr.’s observations that policy . Echoing Derrick A. Bell, Jr.’s , to in- of whiteness expansion and an unprecedented Ex parte Id. Compare Mohriez Mohriez See decision must be viewed in light of the value to whites fol- decision must be viewed in light In the same way that In the same way The sudden shift from 201. Dudziak, 202. 203. Brown v. Board of Education, 347 U.S. 483 (1954). 204. 205. 206. 207. Hassan Mohriez U.S. prestige and leadership have been damaged by the fact of U.S. segregation, it U.S. prestige and leadership have been basic American principle that ‘all men are will come as a timely reassertion of the created equal.’”) (citing Derrick A. Bell, Jr., tive on Current Conditions 70 from nations hailing those particularly World, the Arab from grants attractive a more States the United made value, considerable with NYU ANNUAL SURVEY align these countries could of with whom governments superpower OF AMERICAN LAW Cold War. during the [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 42 8-OCT-14 15:03 investments in the region suggests that greater interests were at play investments in the region suggests in broader governmental project of “promoting friendlier relations” project of “promoting friendlier broader governmental had significant value to the with states that, like Saudi Arabia, United States during the war. be understood without some shifts benefitting non-whites “cannot . . value to whites in policymaking consideration of the decision’s . and political advances at home positions able to see the economic of segregation,” the and abroad that would follow abandonment Mohriez against the naturalization of Mus- lowing abandonment of the bar lim immigrants from the Arab World. tween the United States and other nations suggests that a reversal suggests that and other nations United States tween the of inde- ties with newly facilitate stronger Muslims, would clude Arab pendent Arab countries. as an endorsement of American democracy, as an endorsement can be understood as a judicial means to “provide immediate credi- as a judicial means to “provide can be understood to win the struggle with Communist countries bility to America’s peoples.” of emerging third world hearts and minds Wyzanski rationalized that overruling Wyzanski rationalized “promot[ing] friendlier relations between the United States and relations between the “promot[ing] friendlier we shall treat all so as to fulfill the promise that other nations and equal.” men as created that their ability to sell democracy in the Third World was seriously hampered by that their ability to sell democracy in the continuing racial injustice at home.”). The decision must be contextualized with the shifting geopolitical events at the The decision must be contextualized with the shifting geopolitical events at 35559-nys_69-1 Sheet No. 41 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 41 35559-nys_69-1 35559-nys_69-1 Sheet No. 42 Side A 10/20/2014 11:50:05 See note ATINO MERICA L A ONTEMPO- supra , C HICANO USLIMS OF 208 IASPORA , 25 C M D ILEMMAS OF HE T : D in , MERICAN LIEN A on account of both their on account of A , and still today, Arab Ameri- , and still today, 211 209 YRIAN S symbolically extended formal citizenship ARLY Mohriez E American Foreign Policy in the Middle East and Its ITIZEN AND THE Mohriez CONCLUSION C HE Off-White in an Age of White Supremacy: Mexican Elites and Off-White in an Age of White Supremacy: Mexican decision promised to extend. Nearly seventy decision promised to extend. Nearly , T has yet to deliver the privileges associated with has yet to deliver the privileges ruling is best understood as a judicial compro- ruling is best understood THNICITY IN THE E OSNIAK 30–31 is often a gap between possession of (2006) (“[T]here Mohriez B extended Arab Muslims a conditional or “honorary” conditional a Muslims Arab extended Mohriez Mohriez ACE AND INDA Arab Muslims did not enjoy the substantive benefits of did not enjoy the substantive Arab Muslims RARY Yvonne Yazbeck Haddad, EMBERSHIP 210 Mohriez The “honorary whiteness” Muslim immigrants gained as a re- Muslim immigrants gained The “honorary whiteness” 208. R 210. L 211. Sixty-seven years after 209. Laura B. Gomez, M “[O], my greatest enemy and benefactor in the whole world is “[O], my greatest enemy and benefactor America, in whose iron loins I this dumb-hearted mother, this 217 (Yvonne Yazbeck Haddad ed., 1991). Arab American identity, more than any 217 (Yvonne Yazbeck Haddad ed., 1991). Arab American identity, more than other segment of the populace, is acutely sensitive to political events that take place outside of the U.S.’s borders and foreign policy responses to them. time, and the United States’ claim as global power with broadened interests in the time, and the United States’ claim as global Arab World. L.R. 9, 11 (2005). sult of the 2013]that have may ruling Wyzanski’s that reflects in part, that, whiteness immi- belief that Muslim over a genuine interests placed policy WHITE BETWEEN MUSLIM AND of the statutory definition fit within the Arab World grants from of Chris- in the march were cast as players so long as “they whiteness were Muslim Arabs In other words, civilization. tian, Western In this way was effaced. religious identity white when their deemed the nation but whites,’ those accepted into they became ‘honorary it.” that they did not quite deserve under suspicion 71 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 43 8-OCT-14 15:03 whiteness the years later, whiteness to Arab American Muslims. ethnic and religious identity and the compounded animus both at- identity and the compounded ethnic and religious tract. [formal] citizenship status and the enjoyment or performance of citizenship in [formal] citizenship status and the enjoyment substantive terms.”). mise that traded the formal assimilation of Arab Muslims for the the formal assimilation of Arab mise that traded in the broader U.S. interests in Saudi Arabia, and advancement of after Arab World. Immediately or, in the the status of “second class citizens,” can Muslims occupy Gomez, “off whites,” words of Laura generally across the Oriental divide, Arab American Muslims have yet to enjoy the real fruits across the Oriental divide, Arab American incidents and turbulent events in the Arab of that promise. However, international the imposed identity of Arab citizens. World still have an immense impact on Impact on the Identity of Arab Muslims in the United States 2, at 160–61. Century New Mexico the Rights of Indians and Blacks in Nineteenth 35559-nys_69-1 Sheet No. 42 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 42 35559-nys_69-1 35559-nys_69-1 Sheet No. 42 Side B 10/20/2014 11:50:05 ’ 212 ended that debate, 124–25 (Melville House Publ’g HALID K Dow v. United States OOK OF B —Ameen of Khalid Rihani, The Book HE , T IHANI R MEEN In addition to providing a legal history of the origins of Arab In addition to providing a legal Arab identity was inextricably linked to Muslim identity during linked to Muslim was inextricably Arab identity Cases over the ten Arab Naturalization The judges presiding whiteness and naturali- Christianity was the lone portal toward 212. A have been spiritually conceived . . . . But alas, our spiritual alas, our . . But . . conceived been spiritually have children.” own a cat, her like devours, mother 72 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 44 8-OCT-14 15:03 narrowly holding that Syrian Christians—a group distinct from Arabs—could Era judges continued be naturalized. Naturalization of Arab as synonymous with to apply a distorted understanding when American interests in Saudi Muslim identity even after 1944, World occasioned the naturaliza- Arabia and the transitioning Arab tion of the first Arab Muslim immigrant. highlights the entrenched legal American identity, this Article also the Naturalization Era. Although a religious identity, the main- identity, Although a religious Era. the Naturalization political propa- baselines combined with streaming of Orientalist Islam into an Eighteenth Century converted ganda in the late the Barbary in the image of Arabs. Following ethno-racial identity menace hostile to States positioned Arabs as a Wars, the United the Orientalist dis- and values, which aligned with American society Naturalization this position. The Arab course that established was framed as in 1909, illustrate how Arab identity Cases, beginning and invariably hostile. exclusively Muslim Early judicial deci- toward Arab identity. adopted this orientation and Muslims Islam as hostile to the United States sions positioned an orientation that established inassimilable with American society, of Muslim immigrants from a de facto bar against the naturalization the Arab World and elsewhere. the Naturalization Era. The first zation for Arab immigrants during were overwhelmingly Chris- waves of immigrants from the region toward Arab identity created a tian, and the judicial orientation who were forced to prove in court burden for Christian petitioners, by the first eight of the that they were not Muslim. As demonstrated the possibility of whiteness Arab Naturalization Cases, however, did not guarantee citizen- through its association with Christianity ship to Christian Syrians. 2012) (1911). The Book of Khalid is considered the first Arab American novel. Rihani was a contemporary of the iconic Lebanese poet, Khalil Gibran and collabo- rated with him as part of the “Pen League.” The collective was comprised of Arab writers who migrated to America. 35559-nys_69-1 Sheet No. 42 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 42 35559-nys_69-1 35559-nys_69-1 Sheet No. 43 Side A 10/20/2014 11:50:05 . NN ROM 215 9/11: F broke the , 58 N.Y.U. A FTER A Mohriez EFORE AND Race, Civil Rights, and Immigra- B L.J. 1, 12 (2001). SIAN and communities perceived to perceived and communities Civil Liberties and the Otherization of Arab MERICANS 1259, 1264 (2004). narrowly extended citizenship to narrowly extended 8 A 114, 117–18 Jamal & Nadine (Amaney A 214 EV ” , RAB A . L. R A Rage Shared by Law: Post-September 11 Racial Vio- UBJECTS S ALIF Symbolism Under Siege: Japanese American Redress and the Muslims, ACE AND R 213 ISIBLE , 92 C in V , Dow v. United States Susan M. Akram & Kevin R. Johnson, Muneer I. Ahmad, ITIZENS TO See See . L. 295 (2002); Amaney Jamal, C M Saito’s disentanglement of Arab from Muslim identity is the Saito’s disentanglement of Arab analysis,” which The second step is adopting an “intersectional Much of the legal scholarship focusing on Arab and Muslim scholarship focusing on Arab Much of the legal . A 213. 215. Natsu Taylor Saito, 214. Arab Americans and Muslims have been “raced” as “terrorists”: Arab Americans and Muslims have threatening. Although Arabs foreign, disloyal, and imminently and claim many different trace their roots to the Middle East come from all over the religious backgrounds, and Muslims blurred and negative images world . . . these distinctions are often attributed to both. about either Arabs or Muslims are URV NVISIBLE I first step toward undoing the conflation of both. first step toward undoing the conflation of Arab American identity closely considers the distinct markers 2013] close today. A Arabs against applied tropes most salient of the roots dis- how reveals Cases vividly Naturalization Arab of the reading stifle the executed to that were judicially and ideas torted images WHITE BETWEEN MUSLIM AND ago are redeployed nearly a century of immigrants naturalization Arabs, today against 73 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 45 8-OCT-14 15:03 and Muslim Americans be Arab or Muslim. Furthermore, this Article contends that religion contends that this Article or Muslim. Furthermore, be Arab deem an immigrant- a judge would determined whether generally to extend natu- the Arab World to be “white” and petitioner from traces the earliest citizen. This Article also ralization as an American Arab Americans as the present-day classification of legal catalysts of white by law. view that they based on the judicial (and eugenic) Syrian Christians on account of their religion, and were non-Arabs Jointly, these de- citizenship to Arab Muslims. barrier that restricted formal designa- legal foundation for the prevailing cisions form the as white. tion of Arab Americans distortion of Arab identity rooted Americans has fallen victim to the attempt to articulate post-9/11 vic- in the Naturalization Era. In an many legal commentators have re- timization and marginalization, of Arab and Muslim Americans inforced the Orientalist conflation situated victims and villains. Natsu and caricatured them as similarly Saito aptly observes that, “Racing” of Arab Americans as “Terrorists tion Law After September 11, 2001: The Targeting of Arabs and Muslims tion Law After September 11, 2001: The Targeting Naber eds., 2008). lence as Crimes of Passion S 35559-nys_69-1 Sheet No. 43 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 43 35559-nys_69-1 35559-nys_69-1 Sheet No. 43 Side B 10/20/2014 11:50:05 F- UB- il- A S . 1575 217 ACE AND LACK EV R ISIBLE : B in V , TREAMS http://www.migra S ITIZENS TO EW , 49 UCLA L. R C , N . 1241, 1282–83 (1991). IX EV available at F NVISIBLE . L. R I Discrimination and Identity Formation note 24, at 295. ICHAEL TAN ROM note 213, at 341. supra nearly one-hundred years before & M 4–5 (2011), , 43 S supra ABE While this brand of intersectional While this brand note 38, at 4–5. C 9/11: F C TATES Mapping the Margins: Intersectionality, Identity Polit- Mapping the Margins: Intersectionality, Identity 218 S 220 M FTER The Citizen and the Terrorist supra Arab Americans today are more heteroge- are more today Americans Arab , A naturalized NITED 216 this Article offers a much needed preface to this Article offers RISTEN and unveil that the legal construction of Arab and unveil that the legal construction U 219 , K 221 EAULIEU EFORE AND APPS , Leti Volpp, Akram & Johnson, & B B C SI A Kimberle Crenshaw, ANDY RICAN JECTS See, e.g. See See also See IGRATION TO THE MERICANS 222 The Arab Naturalization Cases are the very legal grounds from Cases are the very legal The Arab Naturalization M 305 (Amaney Jamal & Nadine Naber eds., 2008), for a discussion of the dis- 305 (Amaney Jamal & Nadine Naber eds., A 220. 216. 222. Reem Bahdi provides a particularly effective definition of profiling, 217. R 219. See generally Jen’nan Ghazal Read, 218. 221. RAB tinct experiences of Arab American Christian and Muslim citizens following 9/11. tinct experiences of Arab American Christian A which today’s misrepresentations and misunderstandings of Arab and misunderstandings which today’s misrepresentations preface, these emanate. Without a historical and Muslim identity older dynamics may appear to be new, and contemporary issues understood as a the Naturalization Era may be that characterized Arab Naturaliza- of a distant past. Yet, reading the distinct chapter the post-9/11 profiling of Arab tion Cases in conjunction with and “suspected terrorists” should Americans as “foreign,” “disloyal,” reorient that view 74 differences situated and variations historical at neatly looks and its boundaries. within NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 46 8-OCT-14 15:03 9/11. American identity was scholarship is rare, scholarship that developing body of post-9/11 the robust and still between, and rearticulate the relationship has failed to disentangle, identity. Arab and Muslim neous than ever before. Recent immigrant waves from Iraq, Yemen, waves from Iraq, Recent immigrant ever before. neous than by some accounts) Arabs and Somalia (considered Morocco, ics, and Violence Against Women of Color which “involves separating a subsection of the population from the larger whole on which “involves separating a subsection of the population from the larger whole the the basis of specific criteria that purportedly correlates to risk and subjecting or subgroup to special scrutiny for the purposes of preventing violence, crime, some other undesirable activity.” Bahdi, tionpolicy.org/pubs/africanmigrationus.pdf. (2002). lustrate how phenotype, socioeconomic status, religion, and state status, religion, socioeconomic how phenotype, lustrate of the marginalization state, intensify with their home relations resources—includ- access to important facilitate greater some, and ing whiteness—for others. in a Post-9/11 Era: A Comparison of Muslim and Christian Arab Americans in a Post-9/11 Era: A Comparison of Muslim 35559-nys_69-1 Sheet No. 43 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 43 35559-nys_69-1 35559-nys_69-1 Sheet No. 44 Side A 10/20/2014 11:50:05 ruled white. and thus a Mudarri to be white citizen. resided in Oregon. Court found Ellis to be white and a citizen. non-white. citizenship and ruled non- white. statutory definition of whiteness. 223 CaseHolding Petitioner’s Identity & Shahid, 205 F. 812 Zahle, Lebanon. Maronite from Dow, 211 F. 486 A Maronite (Christian) from TABLE OF CASES: ARAB NATURALIZATION CASES ARAB NATURALIZATION OF CASES: TABLE Najour, 174 F. 735 (1909),Najour, 174 F. 735 Lebanese Maronite that resided 465Mudarri, 176 F. in Syrian Christian born (1910),Ellis, 179 F. 1002 A Christian (Maronite) from Dow, 213 F. 355 (1914), Dow denied citizenship for 223. No court transcripts available. 2013] WHITE BETWEEN MUSLIM AND In re the NorthernCircuit Court for District Georgia. in Georgia, Costa George 75 In re D.(1910), Circuit Court, Massachusetts. Najour granted citizenship and Damascus who settled in In re District Court, D. Oregon. near Beirut (Lebanon) who Court found Massachusetts. Ex Parte (1913), District Court, E.D.South Carolina. Court denied South Carolina Ex Parte (1914), District Court, E.D.South Carolina. (Lebanon) who settled Batroun and found him Shahid petition, In re District Court, E.D. SouthCarolina.Dow v. United States, 226 F. in South Carolina. Dow denied second time by South Carolina 145 (1915), Circuit Court ofAppeals, Fourth Circuit. Dow wins appeal in 4th District rule that Court, establishing Syrian Christians fit within the Court. \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 47 8-OCT-14 15:03 George Shishim v. UnitedGeorge Los AngelesStates, (1909) Court. Superior Los Christian resident of Syrian white by law. Angeles ruled 35559-nys_69-1 Sheet No. 44 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 44 35559-nys_69-1 35559-nys_69-1 Sheet No. 44 Side B 10/20/2014 11:50:05 whiteness. Decision was driven whiteness. Decision by interest to promote, between “[f]riendlier relations other nations.” the U.S . . . and Mohriez, 54 F. Supp.Mohriez, Muslim from Saudi Arabia A Ahmed Hassan, 48 F. Hassan, Ahmed Yemen denied Native from 76 In re District 843 (1942), Supp. NYU ANNUAL SURVEY Michigan, SouthernCourt, E.D. OF AMERICAN LAWof his Muslim white on account Division. [Vol. 69:29 be non- citizenship, found to Ex Parte D. District Court, 941 (1944), Massachusetts. within the court found to be identity. definition of the statutory \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 48 8-OCT-14 15:03 35559-nys_69-1 Sheet No. 44 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 44 35559-nys_69-1 35559-nys_69-1 Sheet No. 45 Side A 10/20/2014 11:50:05 issue dedicated to Professor were also very helpful. Alex Gorman 77 ABSTRACT AMERICANS VINAY HARPALANI* N.Y.U. Annual Survey of American Law CRIT: THEORIZING THE RACIAL THE THEORIZING CRIT: AMBIGUITY OF SOUTH ASIAN OF AMBIGUITY N.Y.U. Annual Survey of American Law DESI This Article analyzes the racial ambiguity of South Asian Amer- the racial ambiguity of South This Article analyzes * J.D. 2009, N.Y.U. School Professor of Law, Savannah Law School. Associate icans—peoples derives from the Indian subconti- whose ancestry nent—and First, it provides a comprehensive has two major aims. (Desi) a racialization of account of the any length in the scholars have not considered at group that legal Bell. and Patrick Totaro provided insightful feedback as the development and article and Patrick Totaro provided insightful other staff editors also assisted with its editor of this Article, respectively. Several Bell and his wife, Ms. Janet Dewart completion. Finally, the late Professor Derrick ways, particularly while I was the Derrick Bell, supported my work in immeasurable Bell Fellow at N.Y.U. School of Law from September 2009 to June 2010. Well before I met him, Professor Bell’s pioneering scholarship in Critical Race Theory is inspired me to go into the legal academy. It is rewarding for me that this Article published in the of Law; Ph.D. 2005, University of . In 2013, I presented this Article at University of Pennsylvania. In 2013, I presented of Law; Ph.D. 2005, Conference, the Advanced Critical Race the Yale Law School Critical Race Theory Law, and the Conference of Asian Pacific Theory Workshop at UCLA School of were presented at the Latina and American Law Faculty. Much earlier versions XIII conference, the annual meetings Latino Critical Legal Theory, Inc. (LatCrit) the American Sociological Association, the of the Law and Society Association and Coalition” Symposium at N.Y.U. School “Can ‘People of Color’ Become a United of Asian America: An International of Law, “Global and Local Dimensions University of California, Berkeley, and the Conference on Asian Diasporas” at the the Interdisciplinary Studies in Human Asian American Studies Colloquium and of Pennsylvania. Earlier versions of this Development Proseminar at the University and from the National Association of Article also won writing prizes from LatCrit of Law provided financial and logistical Ethnic Studies. IIT Chicago-Kent College June 2014. The Fred T. Korematsu Center support for this work from July 2012 to support from August 2010 to May 2012, for Law and Equality provided similar at University School of Law. I while I was the Korematsu Teaching Fellow (and his students), Robert Chang, would like to thank Professors Devon Carbado Raymond Gunn, Peter Richard Delgado, Neil Gotanda, Eduardo-Bonilla-Silva, Rocher, Christopher Schmidt, and Karen Huang, Thomas Joo, Brant Lee, Rosane drafts of this Article. Tom Gaylord Shimakawa for helpful comments on various research assistance, and Brittany Jones and Kathryn Kuhlenberg provided valuable completing the Article. Student members and Adrienne Lucas also assisted me in of the \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 1 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 45 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 45 35559-nys_69-1 35559-nys_69-1 Sheet No. 45 Side B 10/20/2014 11:50:05 R R R R R R R ..... 90 ...... 92 ...... 90 ...... 90 ...... 92 , the “” stereotype, , the “model ...... 92 ...... 80 United States v. Thind United States 1. “South Asian American” 2. “Desi” and “DesiCrit” 1. Regional Distribution Population and Visibility A. and Use of Terminology Definitions B. Changing Demographics and Increasing By analyzing South Asian American racialization, this Article Asian American racialization, By analyzing South I.An Overview South Asians in the United States: 78South of experiences The dynamics. racial of American rubric classifications of racial variety in the unique are Americans Asian NYU ANNUAL SURVEY Supreme in the U.S. present, including they and characterizations OF AMERICAN LAW Court case Vir- profiling, and former of racial brown” instances “flying while [Vol. 69:77 Analysis of in 2006. “macaca” remark George Allen’s ginia Senator insights to many general adds American racialization South Asian “DesiCrit,” (CRT), and this Article introduces Critical Race Theory beings, to Asian Americans as racially ambiguous focusing on South The analysis here AsianCrit, and TribalCrit. go alongside LatCrit, as white classification of South Asian Americans covers the formal characterizations also examines informal racial and non-white, and foreigners, as model minorities, mystical of South Asian Americans more generally. and malleable scapegoats of a general major aim: beginning the synthesis aspires to its second of individuals and to analyze racial ambiguity theoretical framework draws not only from CRT, but groups. In the process, this Article racialization, ethnic studies, his- also from sociological theories of on race and racial identity, and torical and philosophical work and informal modes of racial- whiteness studies. It delineates formal past the creation of legal cat- ization, extending racialization theory notions of race. This egories to racial symbols and performative racial status hierarchies by exam- Article expands the discourse on analyzing not only ascriptions ining the agency of racialized actors, proactive claims to racial status by of racial status by others, but also the importance of “racial such actors. Also, this Article highlights political climates that impact microclimes”: local historical and groups and individuals. Fi- racialization, particularly for ambiguous account of South Asian American nally, while this Article is a full implications of this analysis racial ambiguity, it also posits broader hierarchy and dynamics more for examining American racial broadly. Introduction \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 2 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 45 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 45 35559-nys_69-1 35559-nys_69-1 Sheet No. 46 Side A 10/20/2014 11:50:05 R R R R R R R R R R R R R R R R R R R R R R R R R R R , .... 143 ...... 127 ...... 110 ...... 129 ...... 115 ...... 115 ...... 98 ...... 137 ...... 144 In re Mohan Singh , ...... 141 ...... 117 ...... 133 Ozawa v. United States, ...... 124 ...... 126 ...... 109 ...... 128 ...... 109 CRIT 79 United States v. Balsara ...... 147 , and the Aftermath ...... 119 ...... 129 ...... 122 ...... 128 ...... 121 DESI and ...... 95 ...... 138 In re Thind ...... 104 and the Model Minority People of Color Coalitions In re Balsara United States v. Dolla In re Mozumdar In re Sadar Bhagwab Singh and Ascriptions and Diversity Jindal M.I.A. to Bobby Gupta to 1. U.S. Immigration Policy II: State Selection 2. and the Glass Ceiling Underemployment 3. South Asian Politics, and Model Minorities, 1. 2. 3. 4. 2. Formal and Informal Modes of Racialization . 111 1. Whiteness and Racial Capitalism 2. Claims and Ascriptions 3. via Claims Preliminary Synthesis: Racialization 2. Occupational and Educational, Economic, 3. Apu to Sanjay Media Images: From Varying 1. Sociological Theories of Racialization Honorary Whiteness of South Asian Americans Minority Asian Americans and the Model Stereotype the Pacific Barred Zone Americans Prior to 1922 Primer United States v. Thind B. Coloring Conservativism: Claims and Negations of C. Caucasian but Not White: D. by Law” Revisited?: Census Classification “White A. Does it Feel to Be a Solution?”: South “How B. and Agency Racial Status, Contestation, C. Racial Microclimes A. Policy I: The Yellow Peril and U.S. Immigration B.Asian Racial Prerequisite Cases Involving South C. Americans: A of South Asian Racial Ambiguity A. Racialization Processes Racialization of South Asian Americans South Asian Americans II. Ambiguity Theorizing Racial IV. Informal From Model Minority to “Macaca”: III. of Be White: Formal Racialization To Be or Not to 2013] \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 3 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 46 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 46 35559-nys_69-1 35559-nys_69-1 Sheet No. 46 Side B 10/20/2014 11:50:05 R R R R R R R R R R R R R R R R R R R ...... 183 ...... 155 ...... 174 ...... 157 ...... 179 ...... 159 ...... 178 ...... 163 ...... 161 ...... 178 ...... 178 ...... 165 ...... 169 ...... 157 ...... 181 ...... 149 ...... 153 ...... 182 INTRODUCTION ...... 181 Racialization Paradigm Turbaned Terrorists at South Asians Epithets Directed and the Model Minority Stereotype Model Minority and the Hindu Racism Foreigners Mystical, Exotic 1. Contextual and Relational Character of 2. Continuing Salience of the Black/White 3. Emphasis on Social Meaning of Race 3.as Arab and South Asian Americans 1. Bengali Harlem 2. Desis 3. The N-Word and the M-Word: Anti-Black 1. Defining “DesiCrit” 2. Theorizing Racial Ambiguity 1. Jindal Bobby 2. 3. Racial Ambiguity, of Foreignness, Intersection 1. Anti- The Hated Hindoo and the Dotbusters: 2. as New Age Orientalism: South Asians Hierarchy Swamis, and Turbaned Terrorists Swamis, D. Masks Brown Skin, Black A. of This Article Major Aims B. Broader Implications for American Racial C. Spiritual Of Hated Hindoos, Racing Religion: V. Synthesis and Conclusion “Japanese Beetle!” “Japanese Beetle!” It is the fall of 1979, and “Japanese Beetle!” “Japanese Beetle!” class are not so pleasant. my earliest memories of kindergarten around me in circles, re- Several young children are darting At a mere five years of age, peatedly yelling, “Japanese Beetle!” I was the object of relentless I understood all too acutely that how inaccurate this teasing teasing, but I did not think about Asian Indian, or South was. While I was aware of my ethnicity, it somehow did not register Asian American as I now prefer, that my classmates had identified me incorrectly. Looking back, I suspect that the teasing was related to the ris- ing economic competition between the United States and Ja- pan in the late 1970s, particularly in the automotive industry. I 80 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 4 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 46 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 46 35559-nys_69-1 35559-nys_69-1 Sheet No. 47 Side A 10/20/2014 11:50:05 , 71, 1 ACE Y ’ R OL . L. & P M .-A Part I.A. FR NCYCLOPEDIA OF E infra J. A 3 in , ERKELEY B , 11 CRIT 81 Racial Identity DESI . Id . (noting that “within U.S. society, African Americans . (noting that “within U.S. society, African Id Delaware’s racial climate was defined largely Delaware’s racial climate was defined . . . corresponds to characterization based on cultural . . . corresponds to characterization based 4 Ambiguity, Ambivalence, and Awakening: A South Asian Be- Ambiguity, Ambivalence, and Awakening: , note 1 at 74. 1105, 1105 (Richard T. Schaefer ed., 2008) (noting that 1105, 1105 (Richard T. Schaefer ed., . at 1105–06. focuses on race and emphasizes This Article Id Vinay Harpalani, thnicity supra ] e OCIETY See S AND around me. , 3 Growing up in New Castle County, Delaware, from the New Castle County, Delaware, Growing up in 2 These two memorable incidents from my childhood illustrate incidents from my childhood These two memorable 2. than “ethnic group” but uses This Article refers primarily to “race” rather 3. Generally speaking, “South Asian descent” refers to ancestry from the In- 4. Harpalani, 1. Vinay Harpalani, derives from meanings and perceptions related to observable physical charac- derives from meanings and perceptions wonder now if any of those kids had parents who worked at the who worked parents had those kids if any of now wonder that school; elementary from my the street down plant Chrysler epithet. learned the racial where they might explain high junior year of of 1991, my to the winter Fast-forward basketball practice. locker room, after scene is the school. The Gulf the first Persian immersed in States is heavily The United most hated Saddam Hussein is one of the War, and Iraqi leader and the So this time the insult is “Saddam!” men in America. High School my teammates on the Glasgow perpetrators are others to stop team. One of them warns the boys’ basketball he cracks. dad actually might be Saddam!” heckling me. “His THNICITY race 71–72 I was labeled as Chinese, Native American, and bira- (2009). Additionally, sometimes confused me with the one cial, and my tenth-grade English teacher Laotian student in the class. distinction between the two is not particu- the terms interchangeably because the recognize the difference between “race” larly salient for the analysis herein. I do and “ethnicity.” E background and characteristics.”) (emphasis in original). I also recognize that this background and characteristics.”) (emphasis difference is often salient. and Afro-Caribbean immigrants may be classified within the same racial group but and Afro-Caribbean immigrants may be backgrounds.”). Nevertheless, I also have different understandings of their ethnic define and understand their racial and recognize that “[o]ften . . . individuals it is also useful to combine the two,” and ethnic identities in concert; thus, at times be treated together or separately de- “[w]hether racial and ethnic identity should and on the particular social and pends on the groups and issues being considered historical context.” “ teristics” while “[ South Asian American racial (physical) ambiguity rather than ethnic (cultural) South Asian American racial (physical) or “ethnic group” are used here only when ambiguity per se. The terms “ethnicity” quoting other sources or for occasional word variety, rather than to convey a differ- ent meaning than “race.” dian subcontinent. For a more detailed definition, see 1970s to the early 1990s, there were very few people of South Asian 1990s, there were very few people 1970s to the early descent that I received my fair share of racial/ethnic teasing, but what is fair share of racial/ethnic teasing, that I received my my own ethnic is how little of it actually involved more interesting group. coming “Critically” Aware of Race in America 2013] \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 5 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 47 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 47 35559-nys_69-1 35559-nys_69-1 Sheet No. 47 Side B 10/20/2014 11:50:05 : 9 Part IV.C. ESEGREGATION infra D note 5. CHOOL S supra Keith Aoki’s Theory of Racial , In this local climate, I was In this local (2012) (“Race has multiple con- AFFEL 6 notes 195–97 and When I visited , and When I visited Arizona, R just as I started kindergarten, just as I OLITICS OF 10 5 P (1980) (describing implementation of HE See infra See also , T . Robert S. Chang, ELAWARE Id . 1913, 1923–24 AFFEL See D EV A. R L. R note 1, at 72. note 1, at 72. My last name may also contribute to the note 1, at 72. My last name may also note 1, at 73. note 1, at 74. particularly themselves. Of particularly Mexican EMEDY IN AVIS 11 EFFREY supra R J supra supra supra U.C. D . Also, I am more likely to be labeled as “Puerto Rican” when I grow a see also 7 Id , 45 ; . at 73–74. of local racial climates is an undertheorized The significance Id Id. ETROPOLITAN on the predominantly white campus of the University of Dela- white campus of the University on the predominantly My ambiguous racial identity is still apparent, even when the identity is still apparent, even My ambiguous racial 8 7. Harpalani, 8. 9. Harpalani, 10. This was particularly the case when I was in the company of black friends 6. Harpalani, 11. Harpalani, 5. M HE a racial chameleon—aa racial serving as a of derision, malleable target particular at the group was unpopular for whichever scapegoat moment. when I lived in Seattle for two years, people on the street told me I for two years, people on the when I lived in Seattle looked Mexican, brought racial conflict to the forefront. racial conflict to brought T area in Critical Race Theory. Microclimes tingent meanings. Racial orderings are multiple and contextual, temporal as well tingent meanings. Racial orderings are is crucial for understanding how as temporary. Attention to the local microclime of interventions would disrupt or remedy discrimination operates and what kinds more attention to the local. I think that this discrimination. . . . [W]e have to pay the federal courts and not enough atten- law professors pay too much attention to not, there is a whole lot of race jurispru- tion to state courts. Whether we like it or and the result of state courts’ racial dence taking place in state courts, impact in the daily lives of people of color jurisprudence, I suggest, has more of an than federal race jurisprudence.”). perception of me as Italian; at least one of my professors at the University of Dela- perception of me as Italian; at least one it. However, I have also been mistaken for ware asked if I was Italian after hearing Greek and Spanish on occasion. and peers. goatee, whereas with a full beard, “Arab” or “Middle Eastern” are more common characterizations. This underscores the importance of racialized symbols, particu- larly for racially ambiguous individuals. school desegregation in New Castle County, Delaware). school desegregation in New Castle County, intent is not derogatory, and it is often dependent on the local con- and it is often dependent intent is not derogatory, text: ware, professors and students sometimes referred to me as Italian; and students sometimes referred ware, professors conversely, in the more diverse, urban environments of Philadel- more diverse, urban environments conversely, in the law school, I school and New York City during phia during graduate for Puerto Rican. was often mistaken 82South- border as a its history and demographics black/white by its school comprehensive of the implementation state. Moreover, ern NYU ANNUAL SURVEY County, in New Castle desegregation OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 6 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 47 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 47 35559-nys_69-1 35559-nys_69-1 Sheet No. 48 Side A 10/20/2014 11:50:05 J. 18 , 6 . L. Asian IDDLE Flying TAN OMMEN- S ] (citing M ] (“After C MERASIA A 44 ” AND , , 13 , 22 76 (1981). Un- . NVISIBLE EV I S R ’ ESEARCH Not Asian, Black or White? , R , Manoranjan Dutta, MERICA Flying While Brown : A OPULATION note 8. RITING P 285 (1998); Kamala Visweswaran, See, e.g. : W 8 (2012) (noting that South Asians 8 (2012) (noting that . supra , 25 other groups, such as Latinos other groups, such ; Charu A. Chandrasekhar, Note, ; Charu A. Chandrasekhar, ] TUD Racial ambiguity itself is not Racial ambiguity 17 WAMI CRIT 83 S TUDIES 16 L HITEWASHED S ’ S Race and Racism: South Asians in the United WAMI W S DESI , NCLE NCLE , U A Critique of “Our Constitution Is Color-Blind” 5 (1997). RANSNAT MERICAN . U note 1; Chang, A A Critique of “Our Constitution Is Color-Blind TUD EHRANIAN : J. T Category Crisis: South Asian Americans and Questions of Race Category Crisis: South Asian Americans and S SIAN RASHAD supra L T ’ A P 215, 215 (2003) [hereinafter and (2) it illustrates how these social meanings and (2) it illustrates More generally, racial ambiguity is significant be- is significant racial ambiguity More generally, OHN IJAY J IASPORA 15 14 V L.J. , Sucheta Mazumdar, D , RANSNAT See SIAN , 7 Harpalani, Neil Gotanda, as have many other South Asian Americans. South Asian other many as have A . Specifically, references to me have included “Arab,” “Palestinian,” . Specifically, references RONTIERS OF 12 TARY : J. T F See See, e.g. Id See See, e.g. in , 10 Such racial ambiguity—theSuch racial of racial characterization changing , 15. 14. 12. 16. 17.the largest sub-group of South Asian Asian , by far 13. 25 (Gail M. Nomura et al., eds., 1989); Nazli Kibria, 25 (Gail M. Nomura et al., eds., 1989); 1, 43 (1991) [hereinafter . IASPORA EV is an important part of the experience of South Asians in the of South Asians the experience part of is an important unique to South Asian Americans; unique to South like Latinos, Asian Indians Americans are—by definition—identified with a single are country of national origin. Unlike Arab and , who not racially classified as “white,” Asian Indian Americans have, for the most part, be been classified as “white,” even though they have always been considered to “Caucasian.” R Diaspora by Design: Flexible Citizenship and South Asians in U.S. Racial Formations Diaspora by Design: Flexible Citizenship and and Arabs are perceived as sharing the same national background and racial pro- as sharing the same national background and Arabs are perceived file as terrorists) [hereinafter change across time and space. change across time cause: (1) it reveals the social meanings and stereotypes associated and stereotypes social meanings it reveals the cause: (1) formalist race have been lost in recent American with race, which jurisprudence; While Brown: Federal Civil Rights Remedies to Post-9/11 Airline Racial Profiling of South While Brown: Federal Civil Rights Remedies Asians a person or group, depending on the local and historical context— and historical on the local or group, depending a person United States. nineteen Arab Muslim men hijacked and crashed commercial aircraft into the nineteen Arab Muslim men hijacked and people of South Asian, Arab, and World Trade Center towers and the Pentagon, of hundreds of hate crimes and inci- Middle Eastern descent have become targets Racial profilers and perpetrators of dents of racial profiling across the country. against South Asians, presumably fo- hate crimes have particularly discriminated religious similarities to the hijackers.”) (in- cusing on perceived racial, ethnic, and ternal citations omitted). States “examples of ‘race’ unconnected from its social meaning in legal discourse”). “examples of ‘race’ unconnected from Americans, are somewhat unique with respect to racial ambiguity. Unlike biracial Americans, are somewhat unique with respect described as a single, ethnic group and multiracial individuals, they are typically with demographic and cultural commonalities. Reflections on South Asian Americans and Questions of Race and Ethnicity Reflections on South Asian Americans and Questions 77 (1996); Susan Koshy, and Ethnicity D 2013] or Middle as Arab mislabeled been I have places, in various course, Eastern, Profile Indian Americans: Search for an Economic \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 7 15-OCT-14 10:41 “Persian,” and “Al Qaeda member.” These probably reflect terms that Americans member.” These probably reflect “Persian,” and “Al Qaeda Middle East. in the media and associate with the most commonly hear 35559-nys_69-1 Sheet No. 48 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 48 35559-nys_69-1 35559-nys_69-1 Sheet No. 48 Side B 10/20/2014 11:50:05 , . Id QUARE ACIALLY S R in , UBLIC P Fisher v. Univer- Fisher v. ´ OCALO Z , 1259, 1304 (1997) (discussing . EV including President Barack President including Generation E.A.: Ethnically Ambiguous http://s3.documentcloud.org/docu- 20 note 155 and accompanying text. In http://www.nytimes.com/2003/12/28/ . L. R note 14, at 286. In the United States, Asian 37 (2000) (discussing Arab American racial ALIF . C “Melting Pot” or “Ring Of Fire”?: Assimilation and “Melting Pot” or “Ring Of Fire”?: Assimilation See infra supra available at TUD , 85 S available at Beauty and the Beast: On Racial Ambiguity Ambiguous Insiders: An Investigation of Arab American In- Ambiguous Insiders: An Investigation of Arab can be racially ambiguous. Biracial and mul- and Biracial ambiguous. be racially can 77 (Maria P. Root, ed.,1992) (discussing racial ambigu- 77 (Maria P. Root, ed.,1992) (discussing 19 ACIAL & R MERICA (2009); Koshy, notes 1, 14, and 18. A Is Obama Black, Bi-Racial, or Post-Racial? Focusing on racialization of a single group can be val- of a single group can be Focusing on racialization , , Kevin R. Johnson, 22 . 23 THNIC Dec. 28, 2003, E Transcript of Oral Argument at 32–35, Fisher v. Univ. of Tex., 133 S. Nadine Nader, also may be racially ambiguous, as reflected by their self- as reflected be racially ambiguous, also may , INORITY 21 See See, e.g. See, e.g. See supra See EOPLE IN M , 23 IMES P Nevertheless, the dynamics of racial ambiguity are under-theo- dynamics of racial ambiguity are Nevertheless, the 19. 20. Carla K. Bradshaw, 21. 18. 23. 22. IXED ASTERN Obama, racial ambiguity of Latinos and specifically Mexican Americans). racial ambiguity of Latinos and specifically tiracial individuals in our society, in our individuals tiracial visibility ambiguity). uable, particularly for a group that has not been studied exten- for a group that has not been uable, particularly racial ambiguity is Asian Americans. However, sively, such as South the positioning only be understood by considering relational: it can groups, and situa- groups with respect to other of individuals and been a broader such positioning. There has not tional changes in and groups how racially ambiguous individuals attempt to analyze varying historical in various situations and are racially characterized ity of multiracial individuals); Ruth La Ferla, ity of multiracial individuals); Ruth La identification and their racial characterization by others. Moreover, by others. characterization and their racial identification of the dis- becoming part is also in racial identification ambiguity such as Court cases, major U.S. Supreme course of sity of style/generation-ea-ethnically-ambiguous.html?pagewanted=all&src=pm (noting style/generation-ea-ethnically-ambiguous.html?pagewanted=all&src=pm and others are racially ambiguous). how Latinos, biracial and multiracial peoples, Indians are confused with Native Americans because the latter have historically Indians are confused with Native Americans been called “American Indians.” rized in the scholarly literature. Articles dealing with racial ambigu- literature. Articles dealing rized in the scholarly and multiracial on a single group or on biracial ity have focused individuals. other countries, Asian Indian racial categorization has been very different; for ex- other countries, Asian Indian racial categorization Indians were thought of as “black.” ample, in England until the 1970s, Asian of Asian Indian Americans, and by exten- For these reasons, racial characterization interesting. sion South Asian Americans, is particularly the Mexican-American Experience ments/463375/fisher-vs-university-of-texas-oral-arguments.pdf (Chief Justice John Roberts and Justice Antonin Scalia questioning University of Texas counsel Greg- ory Garre on how University of Texas classifies students by race, particularly those of multiethnic and multiracial backgrounds). Ct. 2411 (2013) (No. 11-345), (Sep. 07, 2011), http://www.zocalopublicsquare.org/2011/09/07/is-obama-black- bi-racial-or-post-racial/ideas/up-for-discussion/. M N.Y. T E 84Arab Americans, and NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 8 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 48 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 48 35559-nys_69-1 35559-nys_69-1 Sheet No. 49 Side A 10/20/2014 11:50:05 : HE ]. 26 HITE HITE but T W N 25 I ESTINIES , W ; Devon ETHINKING ?] D ILVA ?: R -S HITE HITE ANIFEST W ORMATION Rethinking Racism F W ONILLA , M 1259 (2000); Camille . CTING B EV A ACIAL CTING OMEZ R (2001) [hereinafter A rather than on how in- rather than on , , L. R RA 24 E. G DUARDO E (2007). E Rethinking Racism: Toward a Struc- but has not been explored but has not been ULATI INANT 4 28 ORNELL AURA G IGHTS W L C ACE , R ITU CRIT 85 R , 85 IVIL OWARD 465 (1996) [hereinafter & M -C . DESI See, e.g. see generally (2013) [hereinafter EV OST Part II.A.1. There have been works that have ex- Part II.A.1. There have been works that MERICAN & H an idea that has been introduced previ- an idea that has P . R A MI ARBADO 27 1134 (2004). . OC infra C note 1, is the only law review article that deals directly O EV MERICA Eduardo Bonilla-Silva, . S Working Identity M ]; EXICAN A EVON A supra D M ICHAEL M note 1 and accompanying text. This Article serves as an ex- ACISM ACISM IN THE , 62 note 24; note 3. ACIAL note 14. All of these works on South Asian American racial ambi- note 14. All of these works on South Asian , (2d ed. 1994); R R -R N.Y.U. L. R OST Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future Performing Racial and Ethnic Identity: Discrimination , 79 TATES See supra See supra See supra See generally See supra See, e.g. P S AKING OF THE In light of these considerations, this Article has two major aims. considerations, this Article has two In light of these 27. 25. 28. 26. 24. M NITED ACE IN HE UPREMACY AND UPREMACY AND they have not devised a general racialization framework to analyze a general racialization framework they have not devised situational racial ambiguity, or incorporated individual and group of racialization. race into sociological theories performances of dividuals may be racialized differently in different contexts. Critical racialized differently in different dividuals may be of race, explored the performative aspects race theorists have fully or theorized. In particular, this Article expands the limited dis- fully or theorized. In particular, this racialization in legal scholarship, course on South Asian American Carbado & Mitu Gulati, Gear Rich, of Title VII ously in sociology and ethnic studies, ously in sociology T guity have been in the ethnic studies literature. They are quite valuable and in- guity have been in the ethnic studies literature. They were published prior to September sightful, but these works are now dated. such as the rise of Governors 11, 2001 and do not cover recent developments do not attempt to theorize racial ambigu- Bobby Jindal and Nikki Haley. They also My critical race autobiographical ity more broadly, beyond South Asian Americans. narrative, Harpalani, with South Asian American racial ambiguity (mainly through my personal exper- iences). amined the intersection of these various factors for particular groups, through the amined the intersection of these various lens of history, sociology, and law. panded theoretical and sociohistorical analysis of the ideas introduced and the panded theoretical and sociohistorical analysis of the ideas introduced and works cited there. It also incorporates racialization theory more broadly. tural Interpretation First, it is a comprehensive analysis of the racial ambiguity of South analysis of the racial First, it is a comprehensive (Desi) Asian Americans S S R U 2013] re- ambiguity racial Understanding circumstances. political and physi- between relationship of the consideration a nuanced quires in media depictions stereotypes, and racial cal appearance, also ex- an inquiry must of race. Such understandings promoting the im- categories and of formal racial dynamic nature amine the issues. Socio-historical in shaping these local contexts pact of and on the creation have focused largely of racialization theories categories over time, malleability of racial \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 9 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 49 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 49 35559-nys_69-1 35559-nys_69-1 Sheet No. 49 Side B 10/20/2014 11:50:05 A- & Y ACE ’ N R OL UTTING ENDALL United immi- IBERTIES , Center See supra OVEMENT . P C 29 . L M OC HE (focusing AND THE IV RITICAL S , , & K 35 , https://sites. : T Alienated: A Re- . C , C AW M A ENDER , L ELLER & L. , HEORY (Richard Delgado & SIA T ORMED THE P F TEFANCIC ARY ACE EADER . U.J. G S S. A M R MERICANS R Biography of Chandra Bhatna- See Anurima Bhargava A , G ON EAN A ELL HE LEGAL CONSTRUCTION OF RACE J. , 18 Vanita Gupta B S SIAN : T & J RITICAL Toward a Tribal Critical Race Theory in RITINGS THAT OTANDA AW : A , C L W note 13; Ming H. Chen, note 13; Ming H. Chen, ERRICK G C. L.’ EY In addition to the classic CRT writ- to the classic In addition ELGADO D EIL note 1. See also prior works in ethnic stud- note 1. See also prior works in ethnic K 32 ENT and the well-known case of case of the well-known and HE D supra TEFANCIC , HITE BY HE 30 , N , T .- K S ISORIENTED supra W , https://www.aclu.org/human-rights/biography- note 25. Also, Chicago-Kent College of Law has a note 25. Also, Chicago-Kent College of note 14. Susan Koshy, Sucheta Mazumdar and note 14. Susan Koshy, Sucheta Mazumdar Globalization and the Transnational Asian “Knowledge Globalization and the : T HI , ELL 425 (2005). , D . EAN ICHARD , (last visited Oct. 29, http://www.latcrit.org/index/ : C B R (focusing on Latinos), AsianCrit (focusing EV NION , that is devoted generally to South Asians and the law. , that is devoted generally to South Asians (1st ed. 2001). OPEZ supra RIT & J HEORY 34 RENSHAW R 137 (2005). L HANG C U T See supra ATYAM C AT (focusing on South Asian Americans as racially (focusing on South ERRICK S Harpalani, L Satyam ´ RBAN D E ANEY ACE By doing so, this Article adds another dimension adds another so, this Article By doing , 37 S. C (focusing on Native Americans), this Article intro- this Article on Native Americans), (focusing U ELGADO note 3. “DesiCrit” is the title of this Article and that term is note 3. “DesiCrit” is the title of this Article See 31 R 36 . Flying While Brown IBERTIES D AM. L.J. , , David C. Yang, F. H HE IMBERL (1999). T OBERT NTRODUCTION . L K AN Bryan McKinley Jones Brayboy, R I I SIAN IV 48 RITICAL N TION A ICHARD , 37 See See See supra See See See generally See, e.g. See, e.g. See generally , C . C R and to LatCrit : A M TATE xiii (2000). , 12 33 A -S 31. 33. 37. 35. 36. 34. 29. 30. 32. , 411 (2010). HEORY HOMAS DGE note 14. Additionally, while my prior article and this one are the only law review note 14. Additionally, while my prior article gration law and H-1B visas, and H-1B law gration on Asian Americans, and particularly East Asian Americans), particularly Americans, and on Asian and TribalCrit ings, States v. Thind States v. google.com/site/chicagokentsatyam/mission-statement (last visited June 22, google.com/site/chicagokentsatyam/mission-statement South Asian American lawyers are play- 2014). Outside of the legal academy, many initiatives, including Anurima Bhargava, ing key roles in various racial justice Chandra Bhatnagar, Vanita Gupta, and Deepa Iyer. for Institutional & Soc. Change, http://changecenter.org/about-us/advisory- board/anurima-bhargava (last visited June 22, 2014); gar Jean Stefancic eds., 2005); Jean Stefancic eds., L. duces “DesiCrit” to Critical Race Theory (CRT). to Critical Kamala Visweswaran also reflect the DesiCrit tradition espoused here. Kamala Visweswaran also reflect the DesiCrit chandra-bhatnagar (last visited June 22, 2014); ies, such as Nazli Kibria, racial ambiguity, there have been South articles to focus on South Asian American to CRT more generally—mostAsian legal scholars who have contributed notably Professor Mitu Gulati. student-run journal, See Mission Statement 2013). LatCrit has existed longer than the other group-specific movements in 2013). LatCrit has existed longer than served as an umbrella for all Critical Race CRT, and the LatCrit Conference has Theorists. coined here; however, my previously published critical race autobiography also re- coined here; however, my previously published flects this notion. Class” Education working of the Racialization Thesis After September 11 working of the Racialization (1996). T T (1995); E 86terror, war on 11, 2001 the post-September beyond moving NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 10 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 49 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 49 35559-nys_69-1 35559-nys_69-1 Sheet No. 50 Side A 10/20/2014 11:50:05 41 By ACIAL and 43 , http:/ R 47 See Rinku ENTER and racial In addition 39 OGETHER : C 45 T ORWARD EADING F L ACE but also proactive claims but also proactive R 44 , and whiteness studies. 42 MERICANS A CRIT 87 SIAN , http://colorlines.com/archives/author/ Rinku Sen S. A DESI , CTION text accompanying notes 198–99. A infra 38 EWS FOR Parts II.A.2, II.B.1. Part II.A.1. Part II.B. Part II.B.1. Part II.B.2. Part II.A.2. : N note 24. note 25; Part V.A.1. but also from sociological theories of racialization, but also from sociological 40 . See infra See supra See infra See infra See infra See infra See infra Id See supra See infra It defines formal and informal modes of racialization, It defines formal and informal modes https://www.aclu.org/blog/author/vanita-gupta (last visited June 22, https://www.aclu.org/blog/author/vanita-gupta OLORLINES Deepa Ayer, Executive Director , 46 To accomplish this second aim, this Article draws not only this second aim, this Article draws To accomplish By analyzing South Asian American racialization, the Article as- the racialization, American South Asian By analyzing C , http://www.raceforward.org/about/board/rinku-sen (last visited June 22, , http://www.raceforward.org/about/board/rinku-sen 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. . , NION UST examining the agency of racialized actors, this Article analyzes not of racialized actors, this Article examining the agency of racial status by others, only ascriptions applies both in its analysis of South Asian American racial ambigu- applies both in its analysis of South racialization. Finally, this Arti- ity, focusing particularly on informal to the creation of formal categories, this Article also analyzes racial- to the creation of formal categories, through performative notions of ization through symbols and race. ambiguity by definition problematizes those categories, this is an categories, problematizes those by definition ambiguity Asian Ameri- undertaking. But analysis of South almost paradoxical and this Article necessitates such an undertaking, can racialization racial ambiguity. theories of racialization with merges sociological from CRT, to racial status—particularly “whiteness,” although also discussed to minority status—byherein are claims such actors. /saalt.org/deepa-iyer-executive-director/ (last visited June 22, 2014). While at /saalt.org/deepa-iyer-executive-director/ Bell himself mentored several South Asian N.Y.U. School of Law, Professor Derrick lawyers, including Anjana Samant (an- American civil rights and public interest Arora, and Maneka Sinha. Besides law- other former Derrick Bell Fellow), Reena lead racial justice-focused organizations yers, South Asian American activists who Director of Race Forward: The Center include Rinku Sen, President and Executive of website Colorlines.com. for Racial Justice Innovation and Publisher Sen rinku-sen/ (last visited June 22, 2014); pires toward its second and more ambitious aim: beginning the syn- aim: beginning more ambitious its second and pires toward ambiguity to analyze racial framework a general theoretical thesis of deals with theory Given that racialization and groups. of individuals categories, of racial and transformation the creation 2014). 2014); U J philosophy of race and racial identity, philosophy of race 2013] beings). ambiguous \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 11 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 50 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 50 35559-nys_69-1 35559-nys_69-1 Sheet No. 50 Side B 10/20/2014 11:50:05 http:// —local , 48 49 OGETHER T EADING L MERICANS A SIAN S. A , note 8. note 8. supra supra 50 Chang, Chang, See See Demographic Information Subsequent Parts apply these concepts to the racialization of Subsequent Parts apply these concepts Part I of this Article serves as an overview. It reviews basic defi- It reviews basic as an overview. this Article serves Part I of 50. 48. 49. historical and political climates that impact racialization. It theoreti- racialization. that impact climates political and historical ambiguity the racial areas to examine these various cally integrates immi- wave of Asian Indian from the first Asian Americans, of South approxi- population of to the current the early 1900s, grants in States. Asians in the United million South mately 3.4 saalt.org/south-asians-in-the-us/demographic-information/ (last visited Oct 28, saalt.org/south-asians-in-the-us/demographic-information/ (last visited Oct 2013). South Asian Americans. Part III focuses mainly on whiteness in the South Asian Americans. Part III Asian Americans, examining the formal racialization of South Asian Americans are legally changing views on whether South U.S. immigration history of Asian “white.” This Part gives the early nitions and terminology as used in this Article. Part I also gives a as used in this Article. nitions and terminology in the United profile of South Asians social and demographic as applied to the idea of racial ambiguity States, and it introduces the analysis in All of this serves to situate South Asian Americans. framework for Part II lays out the theoretical subsequent sections. from CRT, soci- and synthesizing insights this analysis, by reviewing and whiteness of racialization, philosophy of race, ological theories first defines “for- upon these various areas, Part II studies. Drawing racialization modes of racialization. “Formal” mal” and “informal” of legally application, and transformation occurs through creation, occurs categories, while “informal” racialization cognizable racial of particular behaviors, and via physical identification, performance have acquired social meanings through transferrable symbols that the racial ambiguity of South associated with race and status. While both modes, informal racial- Asian Americans is apparent through ambiguous groups and indi- ization is particularly salient for racially processes by which both formal viduals. Next, Part II delineates the It posits that racialization occurs and informal racialization operate. to racial statuses, in addition when ambiguous actors make claims of racial statuses. Racializa- to when they are labeled by ascriptions that involves agency and ascrip- tion is thus a bidirectional process Finally, Part II highlights the tion, in intertwined fashion. importance of racial microclimes—local and political cir- historical and are particularly impor- cumstances that affect racial dynamics manifestation of racial tant for understanding the situational ambiguity. 88microclimes” “racial of importance the highlights cle NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 12 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 50 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 50 35559-nys_69-1 35559-nys_69-1 Sheet No. 51 Side A 10/20/2014 11:50:05 52 53 , Part IV 56 and illustrates 57 It examines how U.S. It examines how 55 United States v. Thind United States where in order to gain citi- to gain in order where 51 59 CRIT 89 to “macaca.” 54 DESI note 31. supra , OPEZ L Part IV.A. Part IV.A.1. Part IV.A.2. Part IV.A.3. Part IV.D. Part IV.D.3. ANEY H See infra See infra See infra See See infra See infra See infra Next, Part IV examines claims to status and racial ascriptions Next, Part IV examines claims to 58 The Conclusion then synthesizes the major aims above and The Conclusion then synthesizes Part IV focuses on informal racialization of South Asian Ameri- informal racialization of South Part IV focuses on 52. 103 (1790). Naturalization Act of 1790, ch. 3, 1 Stat. 53. 261 U.S. 204, 214–15 (1923). 54. 55. 56. 51. 57. 58. 59. also discusses “glass ceiling” effects in employment, also discusses “glass how the model minority stereotype contributes to the racialization how the model minority stereotype through the affirmative action de- of black Americans and Latinos bate. immigration policy helped create the model minority stereotype by helped create the model minority immigration policy Asian countries to educated immigrants from granting preference 1970s—preferencein the 1960s and that was later curbed. zenship, immigrants from South Asia and other countries had to other countries South Asia and immigrants from zenship, of 1790. Law under the Naturalization were “white” prove they involving the two most well-known South Asian American politi- involving the two most well-known Bobby Jindal of cians: conservative Republican governors Part IV also analyzes the role of and Nikki Haley of South Carolina. Asian Americans, covering as- religion in the racialization of South and Islam. Finally, this Part exam- pects of Christianity, , Americans as “black,” focusing ines the racialization of South Asian historical context and the inter- on the role of social, political, and play between agency and ascription. also lays out the broader implications of this analysis, not only for also lays out the broader implications American racial hierarchy more South Asian Americans, but for generally. 2013] It characterization. racial on their particularly focusing Indians, cases, prerequisite” the “racial covers of is the case important here Particularly were “Cau- Asian Indians Court ruled that U.S. Supreme where the eligible for naturalization. and thus not but not “white,” casian” of South the changing Census classification Part III also examines among and patterns of racial self-identification Asian Americans theme of racial all of which reflect the South Asian Americans, ambiguity. minority,” cans, from “model \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 13 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 51 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 51 35559-nys_69-1 35559-nys_69-1 Sheet No. 51 Side B 10/20/2014 11:50:05 , 60 Af- 62 , http://en , http://en.wi IKIPEDIA W IKIPEDIA , and the Middle Cf. South Asia Overview W , 67 Charter of the South Asian See Canada, See Central Asia 66 , http://en.wikipedia.org/w/index.php? I. http://en.wikipedia.org/w/index.php?title , . The South Asian Association for Regional Id http://saarc-sdmc.nic.in/pdf/charter.pdf. The http://saarc-sdmc.nic.in/pdf/charter.pdf. IKIPEDIA W Europe, AN OVERVIEW , IKIPEDIA 65 South Asian Americans are Americans who South Asian Americans are Americans W , 61 1. “South Asian American” Asia, available at . 64 A. Definitions and Use of Terminology Id , http://www.worldbank.org/en/region/sar/overview#3 (last vis- , http://www.worldbank.org/en/region/sar/overview#3 note 3. ANK SOUTH ASIANS IN THE UNITED STATES: THE UNITED IN ASIANS SOUTH B See Indo-Caribbean See Non-Resident Indian and Person of Indian Origin See supra See generally South Asia Oceania, ORLD To provide the background and context for analyzing South for analyzing and context the background To provide Asian Amer- has operationally defined South While this Article The term “South Asia” usually refers to the countries of India, The term “South Asia” usually refers 63 62. 63. 60. 61. W HE rica, Asian American racial ambiguity, this Part reviews definitions and reviews definitions this Part racial ambiguity, Asian American a social terms, presents “Desi,” and related “South Asian,” usage of popula- Asian American of the South overview and demographic positioning in primer on their ambiguous racial tion, and gives a the United States. subcontinent, terms of ancestry from the Indian icans, or Desis, in .wikipedia.org/w/index.php?title=Central_Asia&oldid=578977255 (last visited .wikipedia.org/w/index.php?title=Central_Asia&oldid=578977255 Oct. 29, 2013). kipedia.org/w/index.php?title=Non-resident_Indian_and_person_of_Indian_ori originally trace their ancestry back to these regions; this includes originally trace their ancestry back immigrated to the United States people of South Asian descent who nations in the Caribbean, from other regions, such as various Ass’n for Regional Cooperation, Bangl.-Bhutan-India-Maldives-Nepal-Pak.-Sri Lanka, Dec. 8, 1985, World Bank includes these same nations in its definition. World Bank includes these same nations title=South_Asia&oldid=579166163 (last visited Oct. 29, 2013). The United Na- title=South_Asia&oldid=579166163 (last also includes Iran as part of South tions Population Information Network (POPIN) does not include Bhutan or the Maldives Asia (which this Article does not) and Islands (which this Article does). , Afghanistan, Bangladesh, Sri Cooperation (SAARC) includes India, Islands. Lanka, Nepal, Bhutan, and the Maldives =Indo-Caribbean&oldid=574540367 (last visited Oct. 29, 2013). Most notably, peo- ple of South Asian descent comprise the largest ethnic group in Guyana and Trini- dad and Tobago. ited June 22, 2014). Nevertheless, Afghanistan and certain regions of Pakistan are ited June 22, 2014). Nevertheless, Afghanistan sometimes considered part of Central Asia. Pakistan, Afghanistan, Bangladesh, Sri Lanka, Nepal, Bhutan, and Pakistan, Afghanistan, Bangladesh, the Maldives Islands. T further elaboration on terminology is useful. further elaboration 90 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 14 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 51 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 51 35559-nys_69-1 35559-nys_69-1 Sheet No. 52 Side A 10/20/2014 11:50:05 . ] See id. 69 Those who , and Mauritius 70 id. , http://en.wikiped Non-Resident Indian Part IV.D.1, this Article Part IV.A.3 discusses IKIPEDIA 72 W infra , CRIT 91 See Mauritius note 63. Australia has the largest South See id. DESI supra 261, 264–65 (2003). but many other Asian Indian Americans but many other . , 71 TUD To Be or Not to Be South Asian: Contemporary Indian Ameri- . S See id. M See id. A SIAN Saudi Arabia and the United Arab Emirates have the largest South Saudi Arabia and the United Arab Emirates . South Asians are a particularly large and visible minority group in . South Asians are a particularly large and . Besides the nations that are usually considered part of South Asia, . Besides the nations that are usually considered . Outside of Asia and the Middle East, Canada ranks third in overall . Outside of Asia and the Middle East, Canada J. A Prema Kurien, . at 262. . at 265. , 6 See Non-Resident Indian See id See id See id. See See id Id Id This Article uses the term “South Asian American” broadly, American” Asian term “South uses the Article This 68 It is also worth noting that there is a narrower sense of the noting that there is a narrower It is also worth 64. 65. 66. 68. 69. With the exception of “Bengali Harlem,” 70. 67. 71. 72. identify proactively as “South Asian” tend to be overwhelmingly as “South Asian” tend to be identify proactively Asian Indian Americans, such differences in self-identification in more detail. such differences in self-identification In particular, South Africa has a large South Asian population, In particular, South Africa has a large South has a large proportion of South Asians. ia.org/wiki/Mauritius (last visited June 22, 2014). ia.org/wiki/Mauritius (last visited June Asian population in Oceania, and Fiji has the largest proportion of South Asians. Asian population in Oceania, and Fiji has See id. tend to disavow identification with South Asian nations other than identification with South Asian tend to disavow Indo-Caribbean Americans. India, and with Burma and Malaysia have large South Asian populations, and Singapore has a sig- Burma and Malaysia have large South Asian nificant proportion of South Asians. generally does not make reference to Asian regional ethnic groups within South generally does not make reference to Asian Sindhis, , or Tamils, as these Asian countries, such as Punjabis, Gujaratis, the United States. Even when they are groups are often racialized together in ethnic group itself is usually not of par- racialized differently, the specific regional ticular salience in the racialization process. Asian populations in the Middle East, and Oman, Qatar, and Bahrain also have Asian populations in the Middle East, significant populations. the United Kingdom, which has the largest South Asian population outside of Asia the United Kingdom, which has the largest and the United States. South Asian population, behind the United States and the United Kingdom. South Asian population, behind the United can Politics to refer to all Americans of South Asian descent. When relevant, When Asian descent. South of Americans to all to refer Ameri- to Asian Indian references also makes specific this Article Sri Americans, Bengali or , cans, Pakistani also makes Americans. It Indo-Caribbean Americans, and Lankan groups—Hindus, to specific religious reference Muslims, and Sikhs—when examples most of the specific Nevertheless, relevant. who are by far the Asian Indian Americans, in this Article involve subgroup of South Asian Americans. largest demographic term “South Asian American” that denotes individuals who choose American” that denotes individuals term “South Asian their own com- collective, emphasizing to identify as a progressive the political con- in the United States rather than mon experiences within their countries of origin. flicts between and gin&oldid=612546427 (last visited June 22, 2014) [hereinafter gin&oldid=612546427 (last visited June 2013] East. \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 15 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 52 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 52 35559-nys_69-1 35559-nys_69-1 Sheet No. 52 Side B 10/20/2014 11:50:05 HE T ASAN , , Sept. at 14 J. note 73 & H IM : 2010, TREET supra K S UK Is It Time to Kill off ALL W O note 73 (“‘[D]esi’ has , OPULATION Zimmer, P See supra YOUNG The title of this Article, The title SIAN 74 , M Rohin Guha, Desi derives from the San- Desi derives A 73 , http://en.wikipedia.org/w/index HE Zimmer, ASTOGI see also , T R IKIPEDIA But see W ONYA UREAU , B (Oct. 23, 2013), http://theaerogram.com/is-it- , S constituting a significant increase from constituting a significant increase Desi 76 ENSUS In Defense of the Word ‘Desi’: Why I Love Being Desi In Defense of the Word ‘Desi’: Why I Love 2. “DesiCrit” “Desi” and Here She Comes, ‘Desi’ Miss America OEFFEL 75 C EROGRAM A http://online.wsj.com/news/articles/SB10001424052702304 TATES M. H HE 1. and Regional Distribution Population note 73. “Desha” also has the same meaning in Hindi (pro- note 73. “Desha” also has the same T S , Ben Zimmer, B. Visibility Changing Demographics and Increasing NITED (Oct. 24, 2013), http://theaerogram.com/defense-desi/ (“Desi, like (Oct. 24, 2013), http://theaerogram.com/defense-desi/ LIZABETH available at See supra E See , U The composition and distribution of the South Asian Ameri- and distribution of the South The composition In the 2010 U.S. Census, there were approximately 2.8 million In the 2010 U.S. Census, there were The term “Desi” (pronounced DAY-see) refers to people of refers to people DAY-see) “Desi” (pronounced The term 74. 75. also be considered pejorative, in the Depending on the context, Desi can 76. 73. REOGRAM HAHID “DesiCrit,” is a portmanteau of “Desi” and “Crit” (short for Critical “Crit” (short of “Desi” and is a portmanteau “DesiCrit,” the term Article employs Nevertheless, this Race Theory/Theorist). is used because the latter rather than Desi, American” “South Asian is less familiar to Asians to refer to each other and mainly by South a broader audience. skrit word “desha,” which means country. “desha,” which skrit word 27, 2013, 713704579095112813176666; (“Like the English word ‘country,’ ‘desi’ can also suggest a rustic or unsophistica- (“Like the English word ‘country,’ ‘desi’ studies professor Sunaina Maira ted background. In India, writes Asian-American is ‘sometimes used more pejoratively to of the University of California, Davis, ‘desi’ index a ‘country-bumpkin’ sensibility.’”); .php?title=Desi&oldid=609566497 (last visited Oct. 22, 2013). .php?title=Desi&oldid=609566497 (last commonly in Hindi, Urdu and many nounced “desh”). The term “Desi” is used other South Asian languages. sense of denoting someone who is unsophisticated. traveled with [South Asians], used not as a put-down but as an expression of ethnic traveled with [South Asians], used not as pride.”); Radhika Raman, the Word ‘Desi’? time-to-kill-off-the-word-desi/ (“To summarize the vast Indian subcontinent as a time-to-kill-off-the-word-desi/ (“To summarize single ‘motherland’ is problematic.”). can population, along with its visibility and portrayal in the media, along with its visibility and portrayal can population, and position- the group’s ambiguous racial identity set the tone for racial landscape. ing in America’s South Asian descent around the world. descent around South Asian Asian Indian Americans, the word black, is a marker of unity and respect, and in many cases it is an out- the word black, is a marker of unity and it is about unapologetic, radical self-love stretched hand in a new place. Above all, , imperialism, and patri- and everyday resistance to white supremacy, archy. It is reclamation of the heritage denied to millions through imperialism, forced migration, or economic struggles. It is a marker of who we are in lands that may or may not be foreign to us.”). A S 92 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 16 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 52 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 52 35559-nys_69-1 35559-nys_69-1 Sheet No. 53 Side A 10/20/2014 11:50:05 . U- Id EN- B NITED http:// E. B U , , http:// ENSUS 1 C and reports Asian American OGETHER MERICA TATES LAUDETTE 81 http://www.census T S A SIANS IN THE IN See also Pakistani Ameri- & C See also . : A NITED 70 (1997). EADING ]. MTYS EEVES , U L A Demographic Snapshot of South C EOPLE available at note 76. P note 76. J. R SIAN MERICANS ENNETT A supra MERICANS supra E THE , S. A , A E. B CRIT 93 ERRANCE SIAN 129,000 Bangladeshi Americans, 129,000 , W T note 63. A SIAN 79 at 9 (2002), HAHID HAHID note 80, at 1, 2. SAALT reports that between DESI http://en.wikipedia.org/w/index.php?title=In 84 Demographic Snapshot , http://www.census.gov/prod/2004pubs/censr- S. A UREAU supra OUTH & S , & S LAUDETTE , supra 1990 (815,447) and 1980 (387,223) Cen- 1980 (387,223) and (815,447) 1990 B S : 2000, IM IM South Asian Americans Leading Together Americans South Asian , 77 TRENGTHENING HE 80 , K , K S IKIPEDIA & C T , , W ENSUS available at , —the any nation outside of largest population of C 82 ARNES ASTOGI ASTOGI OPULATION http://www.census.gov/prod/cen2010/briefs/c2010br-11.pdf. note 80. , R , R EONARD P South Asian Americans are now the third largest South Asian Americans TATES S. B L , http://en.wikipedia.org/w/index.php?title=Pakistani_American& 83 S SIAN While non-South Asian Americans tend to lump immi- Asian Americans tend to lump While non-South at 5. OEFFEL OEFFEL A REAU NETT AREN 85 ESSICA Additionally, the 2010 Census reported approximately reported 2010 Census the Additionally, Demographic Snapshot Id. See Non-Resident Indian See supra Demographic Information J K H H NITED available at HE IKIPEDIA 78 1 tbl.1 (2004), U Immigration accounts for most of this growth: approximately for most of this growth: Immigration accounts W , T , 83. 84. 81. 85. 82. 79. 77. 80. 78. , TATES that overall, there are currently 3.4 million South Asians living in are currently 3.4 million South that overall, there the United States at 1. saalt.org/south-asians-in-the-us/demographic-information/ (last visited Oct 28, saalt.org/south-asians-in-the-us/demographic-information/ 2013). 2000 and 2010, the South Asian population in the United States grew by 81%. 52,000 Nepali Americans, 39,000 , and 15,000 Americans, 39,000 Sri Lankan Americans, 52,000 Nepali Americans. Bhutanese saalt.org/wp-content/uploads/2012/09/Demographic-Snapshot-Asian-American- Foundation-2012.pdf [hereinafter suses. that also estimates organization, a national, nonpartisan (SAALT), Americans Indo-Caribbean about 66,000 there are Asians in the United States can Together, Fed’n & South Asian Americans Leading South Asia. .gov/prod/2002pubs/c2kbr01-16.pdf; dian_American&oldid=578910218 (last visited Oct. 29, 2013). dian_American&oldid=578910218 (last Asian American group, behind Chinese and , group, behind Chinese and Filipino Asian American all major ethnic fastest growing population of and they are the States. groups in the United grant and American-born populations together, South Asians in the populations together, South grant and American-born aware of the differences between United States are often keenly as “Fresh Off the Boat” (FOB) these two groups, referred to jovially 364,000 , 364,000 oldid=579292850 (last visited Oct. 29, 2013). seventy-five percent of the South Asian American population was of the South Asian American seventy-five percent percent are U.S. United States, and about thirty born outside the citizens. 17.pdf. S (2012), 2013] million), 2000 (1.7 the See also Indian American \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 17 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 53 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 53 35559-nys_69-1 35559-nys_69-1 Sheet No. 53 Side B 10/20/2014 11:50:05 , 87 EC- UD- MMI- 3–4 : S H I ILICON S ORLD ANGASWAMY W The American THNICITY TUDY OF R E UCCESS IN S : A S ADMA ANGES TO THE (2000) [hereinafter ITY G , http://www.abcdlady AND OLK Nevertheless, many Nevertheless, , C all of which contrib- all of which RANSNATIONAL F 86 EGOTIATING although prominent 88 T LASS ORK N 90 , Y Even in those particular (1995); P , C ROM THE ROWN 91 EW , F B , xiii N Pramit Pal Chaudhuri, RAVERSE A ULTURE ITY See T C Most Asian Indian and Pakistani Most Asian Indian C URKAYASTHA ESSINGER ARMA OF 89 P EEN L (Sept.17, 2007), http://www.hindustantimes K ORK NDIANS OF note 80, at 2. : T HE Y I 55, 56 (1996) (noting that “Indians are no IMES MERICANS The Murder of Navroze Mody: Race, Violence, and the , T EW HE AND ANDANA J. T supra A B OHANNA L , note 1. N , T ; The Big Divide: ABCD vs. FOB ] focusing on the Indian immigrant community in Chi- focusing on the Indian immigrant community ESI SIAN RASHAD A supra OLK , D MERASIA ISHER P F A INDUSTAN H (1980); J IJAY OUTH , (2000) ( P. F V S ROWN HANKAR focusing on South Asian American youth in the Silicon Valley re- , 22 , NDIA MMIGRANTS IN S B I Vidya Kurella, Harpalani, AXINE Deborah N. Misir, I MERICA . In the past thirty-five years, there have also been several books pub- . In the past thirty-five years, there have M OND SON GRANTS FROM See ´ A See, e.g. See See Demographic Snapshot Id HALINI (2008) ( See NDIAN ENERATION ARMA OF ; S The regional distribution of the South Asian American popula- of the South Asian distribution The regional 87. particularly if they have come to Additionally, FOBs may become ABCDs, 88. 91. 86. 89. 90. -G K : I AMASTE HE ALLEY South Asian Americans traverse the FOB and ABCD communities. and the FOB traverse Americans Asian South racial ambiguity. utes to their states with the larg- to its racial ambiguity. The tion also contributes New York, South Asian Americans are California, est populations of and Illinois. , Texas, Asian Indian communities also exist in other areas, such as Edison, also exist in other areas, Asian Indian communities Jersey City, New Jersey. New Jersey, and metropolitan areas, South Asian American residence patterns are South Asian American residence metropolitan areas, York City, sixty-two to the 2000 Census, in New skewed. According neighborhoods in Asians resided within particular percent of South East Elmhurst, : Flushing, Richmond Hill, the Borough of Americans reside in major cities such as New York, Chicago, Hous- in major cities such as New York, Americans reside and Washington, D.C., ton, Los Angeles, N .com/News-Feed/IndiansAbroad/The-American-Born-Confident-Desi/Article1- youth have taken so many strides in defin- 248249.aspx (“Today Indian-American means ‘confident.’”).ing an identity that the letter C more accurately As part of ABCDs may grow from being “con- their own identity development any so-called a transition reflects my own personal fused” to being “confident”: indeed, such journey. the United States at a younger age—before adulthood. longer . . . anonymous or invisible” in northern New Jersey). cago) gion of California). Search for Order .com/2005-10/art3.php (last visited Oct. 29, 2013). A different view of ABCD is .com/2005-10/art3.php (last visited Oct. that of “American Born Confident Desi.” Born Confident Desi V T (2005). 94(ABCD). Desis Confused Born American and NYU ANNUAL SURVEY multiple caught between transient state, in a liminal and They are OF AMERICAN LAW and identity as Americans to their own with respect worlds, both by other Americans, are perceived how they [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 18 15-OCT-14 10:41 lished specifically on Indian American immigrant communities in some of these lished specifically on Indian American areas. 35559-nys_69-1 Sheet No. 53 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 53 35559-nys_69-1 35559-nys_69-1 Sheet No. 54 Side A 10/20/2014 11:50:05 : ESIS D 99, 105 OP H IP , H ONSCIOUSNESS HARMA C S ACE R AMAR T LOBAL 92 G ITASHA CRIT 95 N AND , See DESI note 77, at 12 & 12 fig.9, 15 & 15 fig.12. Moreover, Asian Indian families had a Moreover, Asian 94 96 supra LACKNESS , In 2000, 63.9% of Asian Indians and 54.8% In 2000, 63.9% 95 , B 93 ENNETT Part II.C. (highlighting importance of “racial microclimes”). Part II.C. (highlighting importance of MERICANS & B A at 16 & 16 fig.13. . at 12 & 12 fig.9. EEVES 2. and Occupational Diversity Economic, Educational, SIAN Id Id. R See infra A However, these aggregate data tend to mask economic barriers However, these aggregate data tend an economic divide exists Together, these data suggest that Another important factor that contributes to this ambiguity is factor that contributes to this Another important 94. 95. 96. Professor Nitasha Tamar Sharma discusses this residential divide with re- 92. 93. OUTH (Ronald Radano, et. al. eds., 2010) (comparing influence of hip hop on South Asian youth from predominantly minority urban neighborhoods and those from median income of over $70,000 per year; only Japanese Americans of over $70,000 per year; only Japanese median income surpassed this mark. of Pakistani Americans age twenty-five and older held bachelor’s age twenty-five and older of Pakistani Americans degrees—more sur- Asian/Pacific Islander group than any other Census. veyed by the U.S. S spect to the cultural influences of hip hop on South Asian American youth—par- ticularly on their racial identities. the economic, educational, and occupational diversity within the and occupational diversity the economic, educational, American commu- population. South Asian South Asian American income and edu- high median levels of nities possess exceptionally cational attainment. the South Asian American pop- faced by particular segments within Corporation reported, ulation. Chhaya Community Development Asian American home ownership in a 1996 study, that the South percent) was lower than that of rate in New York City (twenty-two (thirty-five percent), and black white (forty-two percent), Asian (twenty-nine percent) Americans. population. If New York City is within the South Asian American falls at least partly along urban/ any indication, perhaps this divide also suggests how economic differ- suburban residential lines. This racial ambiguity of South Asian ences might contribute to the relatively educated and affluent Americans: on one hand, there are in predominantly white areas, suburban South Asians who reside less educated and affluent South and on the other hand, there are and among predominantly black Asian Americans residing near and Latino communities. 2013] Hills, Forest Heights, Jackson Astoria, Briarwood, Village, Queens South that means distribution regional This skewed Corona. and than in some regions visible and familiar much more Asians are iden- for varying racial the prospect in others, augmenting they are settings. in different local tification \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 19 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 54 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 54 35559-nys_69-1 35559-nys_69-1 Sheet No. 54 Side B 10/20/2014 11:50:05 , 99 See ALL Thin Part W and (Feb- LOBAL see also , G 102 ALE ORBES Y See infra F , , The representa- http://www.newyork , July 4, 1999, http:// 98 . Part IV.D.2 for a more AG Lizzie Widdicombe, M infra Part II.B.1. available at IMES 100 see also South Asian Americans also South Asian Americans 101 N.Y. T Asian Indian Americans also ac- Americans Asian Indian , see also infra 97 Less Successful than the Next: South Asian Taxi Drivers Less Successful than the Next: South Asian Taxi note 98, for an uncritical account of the model mi- note 98, for an uncritical account of the Indian Americans: The New Model Minority Indian Doctors Help Fill US Health Care Needs , Apr. 18, 2011, at 72, 75, supra June 11, 2012, 10:53 AM), http://blogs.wsj.com/indiareal Why Indian Americans Dominate the U.S. Motel Industry ( A Patel Motel Cartel? IME ORKER Part.I.B.1. T Y (March 2002), http://www.modelminority.com/joomla/index.php EW Richwine, EAL Elizabeth Kolsky, Steve Raymer, Jason Richwine, N R , See See NLINE See supra See See Parts IV.A–B. (Feb. 16 2004), http://yaleglobal.yale.edu/content/indian-doctors-help- NDIA On the other hand, South Asian Americans are also well South Asian Americans On the other hand, Related to this economic divide are the varying occupational the varying are divide economic to this Related note 208 and accompanying text; 99. 101. 100. 102. Aarti Virani, 97. 98. The residential divide within the South Asian American population also high- The residential divide within the South infra , J. I NLINE T Tunku Varadarajan, tion of South Asians in these occupations is far greater than their in these occupations is far tion of South Asians one percent). population overall (around proportion in the constitute nearly half of motel owners in the United States, half of motel owners in the United constitute nearly ruary 24, 2009, 2:45 PM), http://www.forbes.com/2009/02/24/bobby-jindal-indi an-americans-opinions-contributors_immigrants_minority.html. count for seven percent of information technology workers and technology workers of information seven percent count for engineers in the United States. three percent of nority stereotype as applied to South Asian Americans. For a more critical analysis, nority stereotype as applied to South Asian see time/2012/06/11/why-indian-americans-dominate-the-u-s-motel-industry/; Yellow Line er.com/reporting/2011/04/18/110418fa_fact_widdicombe (“More than ninety er.com/reporting/2011/04/18/110418fa_fact_widdicombe City] are immigrants, and the most com- per cent of today’s cabbies [in New York mon place of origin is South Asia—Bangladesh, . . . .”). Pakistan, India II.C. Additionally, the economic divide among South Asian Americans also brings II.C. Additionally, the economic divide whites and the collective black. to mind the racial divide between honorary infra ?option=com_content&view=article&id=328:less-successful-than-the-next-south- asian-taxi-drivers-&catid=47:society&Itemid=56; niches of South Asian Americans. On the one hand, there are edu- there are hand, the one On Americans. Asian of South niches program- and computer engineers, physicians, cated professionals: of the non-white segment the largest Indians comprise mers. Asian of every for one out they account medical community; American (five percent). twenty physicians that are not particular working class niches known for occupying example, in 2002, with academic success. For typically associated licensed taxicab of New York City’s 40,000 approximately 16,000 Asian descent. drivers were of South fill-us-health-care-needs. detailed discussion of Professor Sharma’s book. detailed discussion of Professor Sharma’s in shaping racial identity. lights the importance of racial microclimes S O WNYC O South Asian American educated professionals also form part of the educated professionals also South Asian American minority stereotype. basis for the model See predominantly white suburban neighborhoods). 96 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 20 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 54 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 54 35559-nys_69-1 35559-nys_69-1 Sheet No. 55 Side A 10/20/2014 11:50:05 106 only 105 In con- , Donatella 104 , Jan. 12, 1992, See Biden Explains See, e.g. IMES 271, 271–74 (1978). Creating Ethnic Identity: N.Y. T , Part IV.A.1. ANTHROPOLOGY . RB U CRIT 97 Maxine P. Fisher, July 7, 2006, http://www.nbcnews.com/id/ see also infra , 7 , DESI Bad News About Those Model South Asian Immi- Bad News About Those Model South Asian EWS note 104. See generally NBC N , supra These two roles are associated with entrepreneur- with associated are two roles These (June 22, 2004, 1:00 AM), http://www.vdare.com/articles/na note 104. Part IV.A.1. Family immigration preferences allow im- (Margaret Aitken, a Biden spokeswoman noted that Senator (Margaret Aitken, a Biden spokeswoman 103 COM . Id. ARE See supra VD An Ethnic Road to Riches: The Immigrant Job Specialty An Ethnic Road to Riches: The Immigrant Job , These divergent educational, economic, and occupational economic, educational, These divergent The interplay between these different socioeconomic groups these different socioeconomic The interplay between 106. Rubenstein, 104. Edward S. Rubenstein, 105. 103.over twenty years. This phenomenon has occurred for twenty percent “had more than a high school education and 9 per- more than a high school education twenty percent “had South Asian immi- and these later waves of cent were unemployed,” earlier waves.” “far fewer professionals than in grants included trast, for Indian immigrants from the late 1980s and afterwards, immigrants from the late 1980s trast, for Indian immigration United States largely through family who came to the than occupational skills preferences, preferences rather Indian-American Remarks http://www.nytimes.com/1992/01/12/nyregion/an-ethnic-road-to-riches-the-im- (estimating that “about 40 per- migrant-job-specialty.html?src=pm&pagewanted=1 run or owned by South Asians”). Also, cent of [New York City’s gas] stations are Vice President Joe Biden (then Senator during his 2008 Presidential campaign, remark that “you cannot go to a 7-Eleven from Delaware) received criticism for his a slight Indian accent.” or a Dunkin’ Donuts unless you have Biden’s comment reflected the fact that the “Indian-American community in Dela- Biden’s comment reflected the fact that engineers, scientists and physicians, but ware . . . has primarily been made up of moving into Delaware.”). more recently, middle-class families are grants 13757367/ns/politics/t/biden-explains-indian-american-remarks/#.UceXTZyDn economic diversity among Asian Indian 2Y. Senator Biden also alluded to the Americans. ship and upward mobility, though typically not with educational at- not with educational though typically upward mobility, ship and and social status. tainment South Asian immigration different waves of partly reflect trends also 1960s and from the Asian immigrants States. South to the United preferences United States through immigration 1970s came to the skills, along with their children. based on occupational Asian Indians in the New York City Area mediate family members and close relatives from countries abroad to reunite with naturalized U.S. citizens. tional-data-by-edwin-s-rubenstein-305; of South Asian Americans is complex. While the data indicate edu- is complex. While the of South Asian Americans lines between va- and occupational divides, the cational, economic, American population may be rious segments of the South Asian exist within the same families. blurred. These divides may even www.nytimes.com/1999/07/04/magazine/a-patel-motel-cartel.html?pagewanted= from the Asian American Hotel Own- all&src=pm (“According to the latest figures than 50 percent of all motels in the ers Association (A.A.H.O.A.), slightly more of Indian origin.”). United States are now owned by people 2013] convenience and gas station as numbers in large are found they owners. store \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 21 15-OCT-14 10:41 Lorch, 35559-nys_69-1 Sheet No. 55 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 55 35559-nys_69-1 35559-nys_69-1 Sheet No. 55 Side B 10/20/2014 11:50:05 The The . Id ] has broadcast 552 Moreover, Dr. Gupta’s note 108. South Asian Ameri- 112 The Simpsons . 110 , http://en.wikipedia.org/w/index Id supra also has a stereotypical Indian also has a stereotypical , 109 IKIPEDIA this socioeconomic ambiguity also ambiguity this socioeconomic http://en.wikipedia.org/w/index.php?title W IKIPEDIA , , 107 W , for portraying these stereotypes. In contrast to Apu, Dr. Gupta—who is (Nov. 5, 2012), http://kolorblindmag.com/2012/ 111 IKIPEDIA AG to M.I.A. to Bobby Jindal to M.I.A. to Bobby W M , LIND The Simpsons , http://en.wikipedia.org/w/index.php?title=The_Simpsons& B Apu, who is probably the most widely-viewed South Apu, who is probably notes 1, 8–14, text. and accompanying 108 OLOR K IKIPEDIA has a Ph.D. in computer science but works at a conve- computer science but works at has a Ph.D. in , 3. From Apu to Sanjay Gupta Varying Media Images: W Sanjay Gupta See KolorBlind Couple of the Month (November ‘12): Sanjay Gupta and Re- Apu Nahasapeemapetilon See supra See Apu Nahasapeemapetilon , The prominence of Asian Indian American physicians, part of of Asian Indian American physicians, The prominence Media images of South Asian Americans also influence their South Asian Americans also influence Media images of 111. 109. “[ I base this assertion on the following: 112. 110. 107. 108. suave and sophisticated public image is the antithesis of Apu’s awk- suave and sophisticated public image accent, and his marriage was arranged. accent, and his marriage contributes to the varying racial characterizations of South Asian of South racial characterizations to the varying contributes Americans. probably the most widely-viewed real person of South Asian descent probably the most widely-viewed in the United States—was States, has an Ameri- born in the United American woman via personal can accent, and is married to a white choice rather than familial arrangement. cans have criticized .php?title=Apu_Nahasapeemapetilon&oldid=574869748 (last visited Oct. 30, .php?title=Apu_Nahasapeemapetilon&oldid=574869748 2013). episodes and the 25th season began on September 30, 2012. [It] is the longest- episodes and the 25th season began on American animated program, running American sitcom, the longest-running scripted primetime television series.” and . . . the longest-running American Simpsons becca Olson =Sanjay_Gupta&oldid=597002127 (last visited Mar. 4, 2014). In 2009, Dr. Gupta =Sanjay_Gupta&oldid=597002127 (last of the United States by President was offered the position of Surgeon General , but he declined this position. Asian image in the United States, Asian image in the 11/05/kolorblind-couple-of-the-month-november-12-sanjay-gupta-and-rebecca- olson/. oldid=613106810 (last visited June 22, 2014). ambiguous racial characterization. Some of these images reinforce characterization. Some of these ambiguous racial For example, of South Asian Americans. one or more stereotypes (Apu) on Apu Nahasapeemapetilon the cartoon character Simpsons nience store. reinforced by the high profile of the model minority stereotype, is widely-respected chief Dr. Sanjay Gupta, CNN’s award-winning, medical correspondent. 98 socioeco- in a simple placed be cannot Americans Asian South Together subgroups. series of as a or even as a group, niche nomic NYU ANNUAL SURVEY physical ambiguity, with their OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 22 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 55 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 55 35559-nys_69-1 35559-nys_69-1 Sheet No. 56 Side A 10/20/2014 11:50:05 & . ORBES EWS F , (July 10, See Fareed Confident UBE U.S. N , Dec. 1, 2003, T , sexiest men sexiest Slumdog Mil- OU Y , AGAZINE Slumdog Millionaire People’s M EOPLE P , last visited Oct. 30, 2013). I also (Apr. 15, 2013), http://nplusonemag ( CRIT 99 Why Dr. Gupta Is a Boss , http://en.wikipedia.org/w/index.php?ti DESI AGAZINE editor-at-large Fareed Zakaria, a foreign affairs editor-at-large Fareed Zakaria, a foreign IKIPEDIA Slide Show: The 10 Most Influential Celebrities , http://en.wikipedia.org/w/index.php?title=Bolly W Time +1 M The contrast in media images between Apu in media images The contrast , N , 114 . CNN Buzzfeed, IKIPEDIA But South Asian Americans themselves have also But South Asian —India’s film industry—has percep- influenced W http://en.wikipedia.org/w/index.php?title=Fareed_Zakaria& 10 Things You Didn’t Know About Sanjay Gupta 10 Things You Didn’t Know About Sanjay 118 , , note 86. Forbes Jan. 9, 2009), http://www.usnews.com/news/obama/articles/ 117 see also ( .; IKIPEDIA http://www.people.com/people/archive/article/0,,20148754,00.html; EPORT Dr. Gupta is the consummate American Born American is the consummate Dr. Gupta Bollywood Slumdog Millionaire Simply the Best: A Portfolio of Men We Love Simply the Best: A Portfolio See supra See id and in 2011, he was named one of the “10 Most Influential “10 Most one of the named he was in 2011, and The White Indians also generally raised the profile of South Asians in the raised the profile of South Asians also generally Debra Bell, W , , R 115 113 116 Bollywood 117. 118. 114. Dorothy Pomerantz, Nevertheless, others have also noted the contrast between South Asian Ameri- Nevertheless, others have also noted the 113. 115. 116. ORLD Zakaria expert, was born in India and has a noticeable (if slight) accent, but has the same expert, was born in India and has a noticeable that Gupta has of medicine. well-respected command of foreign affairs 2013), http://www.youtube.com/watch?v=teyA5MLKMOQ&hpt=hp_bn8. It 2013), http://www.youtube.com/watch?v=teyA5MLKMOQ&hpt=hp_bn8. South Asians in American media combine should be noted that other prominent “confident” sense) images. For example, aspects of the FOB and ABCD (in the CNN commentator/host and available at see also W and Gupta also plays upon the common stereotypes and caricatures stereotypes and the common also plays upon and Gupta FOB exhibits stereotypical while Apu Asian Americans: of South traits, .com/white-indians (contrasting Dr. Sanjay Gupta as a “soft-spoken but intense .com/white-indians (contrasting Dr. Sanjay professional . . . of South Asians alert-eyed and firm-jawed” with television images fawning coolie of yore: palms clasped to- that depict “gestures of the standard mumbling . . . through an apologetic smile gether, head shaking from side to side, or “a cartoon auntie flinging her sari crowned with an anachronistic mustache” pot”). over her shoulder as she hovers over a thank Alex Gorman for his insights about Bollywood and become more prominent in American television and entertain- in American television become more prominent their South not always in roles that emphasize ment, although tions of South Asians in the United States, although Bollywood has in the United States, although tions of South Asians identity. In addition to Bollywood, a distinctly Indian lionaire a distinctly Indian it was a British film and United States, although cultural project. tle=Slumdog_Millionaire&oldid=579202628 wood&oldid=579268226 (last visited Oct. 30, 2013). 2009/01/09/10-things-you-didnt-know-about-sanjay-gupta. oldid=578732387 (last visited Oct. 30, 2013). Perhaps Zakaria’s accent actually oldid=578732387 (last visited Oct. 30, as foreign affairs. gives him more credibility in an area such intellectuals versus awkward foreigners. cans in the media who represent dignified See, e.g. Celebrities” by Celebrities” Desi. alive, (Jan 12, 2011, 3:20 PM), http://www.forbes.com/2011/01/12/most-influential-ce lebrities-business-media_slide_9.html. 2013] of one was named Gupta 2003, Dr. in wardness; \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 23 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 56 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 56 35559-nys_69-1 35559-nys_69-1 Sheet No. 56 Side B 10/20/2014 11:50:05 , (July See infra are in OST P 125 Mindy Kal- Mindy 119 UFFINGTON (Sept. 28, 2013, 5:05 and Naveen An- Naveen and H , In 2008 and 2009, 121 ARADE 126 P , ’s Joel Stein and Janina Gavankar and Janina Time 124 http://en.wikipedia.org/w/index.php?title , http://en.wikipedia.org/w/index.php?title , http://en.wikipedia.org/w/index.php?title https://en.wikipedia.org/w/index.php?title http://en.wikipedia.org/w/index.php?title , http://en.wikipedia.org/w/index.php?title , , , http://en.wikipedia.org/w/index.php?title last visited Oct. 30, 2013). , ( Thus her cultural and political influence Thus her cultural note 1, at 78 (discussing experience of being “ra- note 1, at 78 (discussing experience of IKIPEDIA IKIPEDIA IKIPEDIA note 208 and Parts II.B & IV.B. Of course, neither note 208 and Parts II.B & IV.B. Of course, IKIPEDIA IKIPEDIA W IKIPEDIA W 127 W IKIPEDIA . W W , , W , supra W , , Aasif Mandvi , Time , See infra 123 Thoroughly Modern Mindy Kaling and The “Hilarious” Xenophobia of Harpalani, . all have prominent television roles and are well known in are well known roles and prominent television all have Kal Penn Aziz Ansari See Aasif Mandvi Mindy Kaling Naveen Andrews M.I.A. (rapper) See Id Janina Gavankar Kalpen Suresh Modi (“Kal Penn”) (“Kal Modi Suresh Kalpen 122 Esquire The contrast between Ansari, Kaling, Penn, and Andrews on Ansari, Kaling, Penn, and The contrast between 120 124. 120. 122. 121. 126. 123. 127. 125. 119. Kal Penn, Part IV.B. Kal Penn has written about his experiences with racial discrimination. Part IV.B. Kal Penn has written about similar positions, although they take on South Asian and other South Asian they take on although similar positions, contrast, the others. In invisible” than are less “racially roles and Arulpragasam, artist Mathangi “Maya” British-born recording bring attention emphasizes political themes that known as “M.I.A.,” (Tamil) background. to her South Asian ing, drews M.I.A. was named one of the world’s 100 most influential people by one of the world’s 100 most influential M.I.A. was named both 2, 2010, 4:22 PM), http://www.huffingtonpost.com/kal-penn/the-hilarious-xeno- Kaling recently discussed how she phobia_b_634264.html. Additionally, Mindy girls out there who look up to [her].” serves as a role model to “little Indian Shawna Malcom, appear to be widespread, perhaps more than the South Asian perhaps more than appear to be widespread, is also widely noted earlier. Moreover, M.I.A. American entertainers style, which com- for her innovative musical known and recognized drawing upon and other genres, thereby bines hip hop, alternative, traditions. from various ethnic and cultural a mix of influences reflects another aspect of South one hand, and M.I.A. on the other, the varying degrees of emphasis Asian American racial ambiguity: AM), http://www.parade.com/167806/shawnamalcom/thoroughly-modern- mindy-kalings-house-rules/. =Aasif_Mandvi&oldid=579313105 =Aziz_Ansari&oldid=578350457 (last visited Oct. 30, 2013). =Aziz_Ansari&oldid=578350457 (last visited =Kal_Penn&oldid=579055309 (last visited Oct. 28, 2013). =Kal_Penn&oldid=579055309 (last visited =Mindy_Kaling&oldid=597016660 (last visited Mar. 4, 2013). =Mindy_Kaling&oldid=597016660 (last =Janina_Gavankar&oldid=579923491 (last visited Nov. 11, 2013). =Naveen_Andrews&oldid=577670906 (last visited Oct. 30, 2013). =Naveen_Andrews&oldid=577670906 (last =M.I.A._(rapper)&oldic=579346545 (last visited Oct. 29. 2013). cially invisible” as a South Asian American). Racially invisibility is also related to cially invisible” as a South Asian American). honorary whiteness. racial invisibility nor honorary whiteness preclude experiences of racism. racial invisibility nor honorary whiteness See acting and comedy, but their characters are assimilated and largely are assimilated and their characters comedy, but acting and racially invisible. 100 Ansari, Aziz example, For identity. American Asian NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 24 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 56 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 56 35559-nys_69-1 35559-nys_69-1 Sheet No. 57 Side A 10/20/2014 11:50:05 , 131 Miss Part Sept. ( Sept. 18, , Sept. 22, OST ( , (Sept. 17, A Lot of Peo- P See infra OST Stephen Hum- EAST IRST . P ATION F B See , ., Lakshmi Chaud- N Maura Judkis, ASH HE AILY W , T D , , See, e.g see also Ryan Broderick, Of course, physical ap- physical Of course, ( July 28, 2004), http://www 128 See and M. Night Shyamalan ONITOR 130 M Deepak Chopra is a famous me- Deepak Chopra CRIT 101 , http://en.wikipedia.org/w/index.php?ti 132 CIENCE DESI S IKIPEDIA , http://en.wikipedia.org/w/index.php?title=Mira_ W , HRISTIAN note 160 and accompanying text. C IKIPEDIA , 129 Miss America, Meet India’s ‘Dark’ Side W infra , Part II.B.2 for a discussion of the distinction between racializa- Part II.B.2 for a discussion infra Mira Nair M. Night Shyamalan (Sept. 16, 2013, 12:33 AM), http://www.buzzfeed.com/ryanhatesthis/a- A Different Take Other South Asian Americans have gained prominence and at- Americans have gained prominence Other South Asian 130. 132. Shyamalan contends that Hinduism, Christian theology, Zen , 131. 128. See 129. play in two ways. First, there were Davuluri’s racial appearance came into Miss America Nina Davuluri: Too ‘Indian’ to Ever Be Miss India Miss America Nina Davuluri: Too ‘Indian’ Miss America Nina Davuluri Is Not a Symbol of Progress Miss America Nina Davuluri Is Not a Symbol UZZFEED pearance also plays a prominent role in the racialization of South the racialization role in also plays a prominent pearance play in this came into Most recently, celebrities. Asian American a relatively dark-skinned Nina Davuluri, 2013, when September 2014 Miss winner of the was named American woman, South Asian pageant. America hry, dia personality for his promotion of alternative medicine and New his promotion of alternative dia personality for 16 2013, 12:27 IST), http://www.firstpost.com/living/miss-america-nina-davuluri- (noting that “in India, we prefer our too-indian-to-ever-be-miss-india-1111477.html beauty queens strictly vanilla—preferably accessorized with blue contact lenses”); Tunku Varadarajan, 2013), http://www.thenation.com/article/176258/miss-america-nina-davuluri-not- South Asian commentators noted that symbol-progress#axzz2fhQ3fMiG. Second, Miss India. Davuluri was too dark-skinned to be named 2013, http://www.washingtonpost.com/lifestyle/style/miss-america-fights-post- pageant-racism-with-a-beauty-queens-poise/2013/09/22/a90590ac-22f8-11e3-966c- discussion of light-skinned bias in South 9c4293c47ebe_story.html. For a brief Asian societies, see 2013, 1:50 PM), http://www.thedailybeast.com/articles/2013/09/17/miss- “that Davuluri is too dark, too dusky, america-meet-india-s-dark-side.html (noting beauty.”); for the conventional standards of Indian Beauty Queen’s Poise America Fights Post-Pageant Racism with a .csmonitor.com/2004/0728/p15s01-almo.html. tle=M._Night_Shyamalan&oldid=579472756 (last visited Oct. 30, 2013). and Native American spirituality have all influenced his work. phries, Nair&oldid=576486796 (last visited Oct. 30. 2013). Nair&oldid=576486796 (last visited Oct. tention in various arenas. Mira Nair tention in various lot-of-people-are-very-upset-that-an-indian-american-woman; Samhita Mukhopadh lot-of-people-are-very-upset-that-an-indian-american-woman; yay, IV.C. to her as an “Arab,” a “foreigner,” a “ter- many overtly racist comments referring 7-11.” rorist,” a “member of Al-Qaeda,” and “Miss Woman Won the Miss America Pageant ple Are Very Upset That an Indian-American are known as American film directors, with the former emphasizing film directors, with the former are known as American latter being more themes in her work and the more Indian ethnic or ambiguous. “racially invisible” B 2013] can of which all identities, political and cultural, ethnic, on one’s or others. by oneself be racialized readily \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 25 15-OCT-14 10:41 tion by self and others. Also, religious identity can also be racialized. Also, religious identity can also be racialized. tion by self and others. 35559-nys_69-1 Sheet No. 57 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 57 35559-nys_69-1 35559-nys_69-1 Sheet No. 57 Side B 10/20/2014 11:50:05 , , 135 COM , July Vijay IMES 133 MLB. , Pete Thamel, N.Y. T (Mar. 30, 2009, , http://espn.go Brandon Chillar’s , See 2 AGE PORTS note 88 and Part IV.C.2. , May 6, 2013, http://sport- CBC S not long after pitchers ESPN P , , upra Id. 139 , s Desis in the NFL, Superbowl Edition OLK F LLUSTRATED in the National Football League Football in the National I 136 ROWN , http://en.wikipedia.org/w/index.php?title , http://en.wikipedia.org/w/index.php?title PORTS B S , Additionally, Mohini Bhardwaj, who is Additionally, Mohini , http://en.wikipedia.org/w/index.php?title=Vijay , http://en.wikipedia.org/w/index.php?title=Man in the National Hockey League, both of in the National IKIPEDIA Don’t be a PGA Tour Pig 140 IKIPEDIA Sim Bhullar Is Now NBA’s Biggest, First Indian-Descent Sim Bhullar Is Now NBA’s Biggest, First (July 16, 2010), http://packerplayers.blogspot.com/ W ARMA OF W 137 , ACK K , Malhotra Making NHL History IKIPEDIA IKIPEDIA P Tale of Pitchers from India Gets Hollywood Treatment HE W W T , , , http://www.nbcnews.com/news/asian-america/sim-bhullar- notes 136–37. EWS (Feb. 5, 2006), http://sepiamutiny.com/blog/2006/02/05/desis_in Jason Whitlock, Sim Bhullar recently became the first basketball player of became the first basketball Sim Bhullar recently OT FOR THE Brandon Chillar Vijay Singh See supra See Deepak Chopra H So Much Potential, So Far to Go for Young Basketball Prospect So Much Potential, So Far to Go for Young 138 NBC N Beyond his name and accent, Singh’s ethnic identity itself is identity itself Singh’s ethnic his name and accent, Beyond UTINY , , M 134 140. Jon Cooper, 136. 134. 138. 139. Lakshmi Gandhi, 135. 137. Trevor Pardy, 133. Manny Malhotra EPIA Singh is known to golf fans and American sports fans more gener- more fans sports and American fans to golf is known Singh ally. Rinku Singh and Dinesh Patel became the first Indian-born players Dinesh Patel became the first Indian-born Rinku Singh and to sign MLB contracts. June 18, 2013, http://mlb.mlb.com/news/article.jsp?ymd=20130617&content_id= to 50906342&c_id=pit. Neither Singh nor Patel has pitched in the major leagues date. 16, 2011. and Manny Malhotra 2:35 PM), http://www.cbc.ca/sports/hockey/malhotra-making-nhl-history-1.8289 55; .com/page2/s/whitlock/030514.html (last visited Oct. 30, 2013) (referring to .com/page2/s/whitlock/030514.html (last golfer” and a “redneck in blackface”). Vijay Singh as a “dark-skinned professional that Annika Sorenstam, a female golfer, Whitlock was criticizing Singh for stating Tour. should not be allowed to play on the PGA whom are of mixed-race heritage (half white and half South heritage (half white whom are of mixed-race Asian). sillustrated..com/vault/article/magazine/MAG1207525/1/index.htm; Pete sillustrated.cnn.com/vault/article/magazine/MAG1207525/1/index.htm; Thamel, Heritage =Brandon_Chillar&oldid=600202606 (last visited June 22, 2014); =Brandon_Chillar&oldid=600202606 (last =Deepak_Chopra&oldid=579339231 (last visited Oct. 30, 2013). For a more critical (last visited Oct. 30, 2013). =Deepak_Chopra&oldid=579339231 view of Chopra, see 2010/07/brandon-chillars-heritage.html. Former NFL players Bobby Singh and 2010/07/brandon-chillars-heritage.html. Sanjay Beach are also of South Asian heritage. ny_Malhotra&oldid=613151806 (last visited June 22, 2014). ny_Malhotra&oldid=613151806 (last visited Player _Singh&oldid=578737219 (last visited Oct. 30, 2013). _Singh&oldid=578737219 (last visited Oct. Indian descent to sign an NBA contract, Indian descent to now-nbas-biggest-first-indian-descent-player-n145431. As of yet, no South Asian now-nbas-biggest-first-indian-descent-player-n145431. NBA, although the NBA is aggressively American is known to have played in the market itself in India. looking for Indian basketball stars to help not prominent in the media, although sports commentators have sports commentators although in the media, not prominent relevant circumstances. skin color in relatively dark noted his _the_nf/. Wanted: 1.2 Billion Basketball Fans S 102 imagery. religious East Indian reflect which spirituality, Age NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 sports North American in major Asians competing Other South Chillar Brandon leagues include \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 26 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 57 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 57 35559-nys_69-1 35559-nys_69-1 Sheet No. 58 Side A 10/20/2014 11:50:05 , Alexi Grewal and Rajat Best Indian Ameri- 144 Harsh Kalan, Negative Stereotyping of Asian Amer- 142 list of richest Americans. Satya list of richest Americans. CRIT 103 See generally , http://en.wikipedia.org/w/index.php?title , http://en.wikipedia.org/w/index.php?title Forbes DESI , http://en.wikipedia.org/w/index.php?title= , http://en.wikipedia.org/w/index.php?title=Raj_ and Raj Bhavsar won a bronze medal as medal a bronze won Raj Bhavsar and 146 IKIPEDIA IKIPEDIA 141 , Feb. 4, 2014, http://www.theguardian.com/technol W W (July 4, 2001), http://modelminority.com/joomla/in IKIPEDIA Satya Nadella Named Microsoft CEO as Bill Gates Steps Down Satya Nadella Named Microsoft CEO as Bill , , W IKIPEDIA COM , . W , , http://www.mensxp.com/special-features/today/10052-best- UARDIAN and Nikki Haley as Governor of South Carolina in as Governor of South Carolina and Nikki Haley Part IV.B.1. Part IV.B.2. G XP 147 INORITY HE ENS T Farah Mahdzan & Norlinda Ziegler, M , M both of whom were convicted of securities fraud and con- convicted of securities fraud both of whom were , Other South Asian Americans in business are known for Americans in business are known Other South Asian Rajat Gupta Raj Bhavsar See See infra See infra Raj Rajaratnam Mohini Bhardwaj , http://en.wikipedia.org/w/index.php?title=Alexi_Grewal&oldid=5962 both raised the political profile of South Asian Americans. both raised the political profile 145 ODEL 143 M 148 Additionally, the election of Bobby Jindal as Governor of Loui- election of Bobby Jindal as Governor Additionally, the South Asian Americans have also made a mark in business, al- a mark in business, have also made Americans South Asian , 142. 145. 146. 147. 148. 144. 143. Dominic Rushe, 141. IKIPEDIA Gupta, part of the 2008 U.S. gymnastics team. 2008 U.S. gymnastics part of the 2010 =Mohini_Bhardwaj&oldid=606508982 (last visited June 22, 2014). =Mohini_Bhardwaj&oldid=606508982 (last visited Oct. 30, 2013). =Raj_Rajaratnam&oldid=578327302 (last Rajat_Gupta&oldid=578915763 (last visited Oct. 30, 2013). Rajat_Gupta&oldid=578915763 (last visited icans dex.php?option=com_content&view=article&id=58:negative-stereotyping-of-asian- americans&catid=44:media&Itemid=56 (noting stereotypes of Asian American men as “evil and greedy”). Bhavsar&oldid=576620064 (last visited June 22, 2014). Before Bhardwaj and Bhav- Bhavsar&oldid=576620064 (last visited June American to win a U.S. Olympic medal; sar, Alexi Grewal was the first South Asian the 1984 Summer Olympics. he won the gold medal in cycling at ogy/2014/feb/04/microsoft-satya-nadella-new-ceo. spiracy, stemming from an insider trading scheme. Media images of from an insider trading scheme. spiracy, stemming of Asian Amer- Gupta perpetuate racial stereotypes Rajaratnam and greedy. icans as evil and as Chairman indian-american-athletes-p2.html (last visited June 22, 2014). indian-american-athletes-p2.html (last visited more dubious reasons, such as Raj Rajaratnam more dubious prominent South Asian American Ironically, while these two most Republicans, the majority of South politicians are both conservative though generally not in a manner that emphasizes their racial or emphasizes their a manner that generally not in though Americans—Bharat five Indian In 2012, ethnic background. Desai, and Manoj Bhargava, Ram Shriram, Wadhwani, Kavitark Romesh Vinod Khosla—all made the replacing Bill named as CEO of Microsoft, Nadella was recently Gates. siana in 2007 03694 (last visited June 22, 2014). Several other South Asian Americans have also 03694 (last visited June 22, 2014). Several become accomplished in other sports. can Athletes W 2013] silver Olympic U.S. was a 2004 Asian, South and half half white also in gymnastics, medalist \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 27 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 58 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 58 35559-nys_69-1 35559-nys_69-1 Sheet No. 58 Side B 10/20/2014 11:50:05 , N.Y. , See Neal OLUTIONS S 150 USTICE J OCIAL S Did India Overreact to Diplo- , May 23, 2013, http://www.washing , Sri Srinivasan Confirmed to Judicial Seat a contrast which further illus- further which a contrast OST 149 P . Juliet Eilperin, ASHINGTON Id W See , , Jan. 20, 2014, http://www.cnn.com/2013/12/20/opin- Obama Selects Health Policy Advocate as Surgeon General Obama Selects Health Policy Advocate as COM http://en.wikipedia.org/w/index.php?title=Neal_Katyal&oldid Part II.B. Gun Violence Is A Public Health Issue , CNN. , See infra IKIPEDIA C. A Primer Racial Ambiguity of South Asian Americans: W , , Nov. 14, 2013, http://www.nytimes.com/2013/11/15/health/obama- For several reasons, South Asians in the United States present South Asians in the United For several reasons, South Asians also received more dubious attention in December 2013, when South Asians also received more dubious 149. 150. Obama’s highest ranking presi- Besides elected officials, two of President IMES trates the ambiguous position of South Asians in America. Both America. in Asians of South position the ambiguous trates character- identity and are their ethnic Haley draw upon Jindal and In their racial ambiguity. ways based on others in various ized by detail, Haley in more Jindal and this Article discusses Part VI.B, elected officials. Asian American other South along with June 20, 2014, http://www.socialjusticesolutions.org/2014/06/20/gun-violence- public-health-issue/. was arrested and charged with fraud, for Indian diplomat Devyani Khobragade allegedly underpaying her housekeeper. Jeremy Carl, mat’s Arrest? T tonpost.com/blogs/post-politics/wp/2013/05/23/sri-srinivasan-to-get-confirma- on November 14, 2013, President tion-vote-thursday-afternoon/. Additionally, to serve as Surgeon General of the United Obama nominated Dr. Vivek H. Murthy States. Steve Kenny, an ideal group to examine the dynamics of racial ambiguity. Part examine the dynamics of racial an ideal group to in this nation’s of niches they have occupied I.B profiled the variety increasing visibility landscape, along with their social and political this increasing visi- in American society. In spite of and prominence American media dominant theme to South Asian bility, there is no stereotypes that fact, there are a variety of racial representation; in often contrasting) ambiguity in various (and contribute to their physical features South Asian Americans’ diverse ways. Additionally, religious practices contribute to and their variety of cultural and in Unanimous Senate Vote =579114355 (last visited Oct. 30, 2013). Also, on May 23, 2013, Obama appointee =579114355 (last visited Oct. 30, 2013). to sit on the U.S. Court of Appeals for Sri Srinivasan was confirmed by the Senate the first federal appellate judge of the District of Columbia Circuit, becoming South Asian descent ever. ion/carl-india-dispute-privilege/index.html?hptHP_t4. Khobragade’s arrest and subsequent treatment by U.S. authorities led to public outcry in India and protest by the Indian government. dential appointees have been South Asian Americans. From May 2010 until June dential appointees have been South Asian General of the United States. 2011, Neal Katyal served as Acting Solicitor Katyal selects-health-policy-advocate-as-surgeon-general.html?smid=fb-share&_r=0. How- selects-health-policy-advocate-as-surgeon-general.html?smid=fb-share&_r=0. by opposition from the National Rifle Asso- ever, this nomination has been held up violence as being a public health issue.” ciation, due to “Dr. Murthy’s view of gun Matt Haarington, 104 Democrats, are Americans Asian NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 28 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 58 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 58 35559-nys_69-1 35559-nys_69-1 Sheet No. 59 Side A 10/20/2014 11:50:05 Apr. , see also 151 ONTHLY Even South Yet, in the M 153 152 UBCONTINENT IN THE S VERLAND ]. Elkhanialy and Nicholas O , NDIAN Racial and Ethnic Self-Designa- I 155 , the Supreme Court ruled that , the Supreme Court ROM THE CRIT 105 F DESI 41–50 & Ralph W. Nicholas, (Hekmat Elkhanialy The Hindu in America MMIGRANTS I in Racial and Ethnic Self-Designation , ROSPECTS P Part II.A.2 for precise definitions of “formal” and “informal” Part II.A.2 for precise definitions of “formal” Part III.C. Part III.D. United States v. Thind note 1, at 72 (“There were the ululations and references to rain Girindra Mukerji, infra Moreover, the labeling of indigenous Americans as “In- of indigenous Americans Moreover, the labeling supra See See infra See infra 154 ROBLEMS AND Perhaps as much as any group, South Asians in the United group, South as much as any Perhaps 155. 152. 153. 154. Hekmat Elkhanialy & Ralph W. Nicholas, 151. See at 45. In a preliminary test of our questionnaire, we tried to inquire into racial iden- In a preliminary test of our questionnaire, racial designations of “White” and tity using the contemporary American to answering such a question “Black.” . . . [T]here was so much resistance the question to “what would you about race with skin color, that we changed 3. other (specify)”. Only 11 per- consider your color to be? 1. White 2. Black 70 percent wrote in “Brown.” A cent chose White and only 3 percent Black, such as “Blue” or “Olive,” and 8 per- further 8 percent named another color commented on the undesirability cent would not name a color, but frequently of using skin color as a criterion of race. Harpalani, 1970 Census, Asian Indians were classified as “white.” 1970 Census, Asian Asian self-identification with American racial categories has been in with American racial categories Asian self-identification and other desig- “white,” “black,” “brown,” constant flux, between nations. 1908, at 303, 303 (“Columbus, mistaking [America] . . . for India, named the ab- 1908, at 303, 303 (“Columbus, mistaking origines [of America] Indians. . . . The people of India . . . had been classed with the aborgines [sic] of some other race . . . [and] were made known to European people as dressed up in blankets, feathers and tattooed all over the body.”); dances—stereotypically associated with Native American groups—that I sometimes eds., 1976) [hereinafter Indian immigrants to the United States: report the following from a survey of 159 Id. dian” had also long led to confusion about the racial classification led to confusion about the dian” had also long of South Asians in the United States. States illustrate the subtle racial dynamics of American society, due of American society, racial dynamics the subtle States illustrate that South position and ambivalent ambiguous to the peculiarly yields a This position racial hierarchy. in America’s Asians occupy from a identities. Even and political of conflicting social plethora within Ameri- South Asians’ placement purely formal perspective, ambiguous. In schemes has always been can racial categorization the 1923 case the Naturalization not “white persons” under Asian Indians were thus not eligible for citizenship. Law of 1790, and racialization. Also, see Part III for an account of the formal racialization of South racialization. Also, see Part III for an account of their informal racialization. Asian Americans, and Part IV for an account tion, Experiences of Discrimination, and Desire for Legal Minority Status Among Indian tion, Experiences of Discrimination, and Desire Immigrants in the U.S.A. U.S.A.: P 2013] racial formal changing both in as reflected racial ambiguity, their racialization. modes of informal and through classification \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 29 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 59 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 59 35559-nys_69-1 35559-nys_69-1 Sheet No. 59 Side B 10/20/2014 11:50:05 This 93, 104 157 Part IV.D. African Americans and the New Jaicy M. John, South Asian Amer- RINCIPLES FOR A MULTIRACIAL SOCI- see also infra : P SIANS AND POSTCOLONIALITY A NYPD Commissioner Kelly Issues Memo to see also , Sept. 13, 2013, http://www.nydailynews OUTH EWS N : S note 88; AILY HE END OF RACISM All immigrant and autonomous groups en- groups and autonomous All immigrant supra T note 14; Amritjit Singh, , , N.Y. D 156 , supra OUZA note 14. D’S ETWEEN THE LINES B URKAYASTHA cite this success to argue that racism is no longer a bar- to argue that racism is no longer cite this success P in INESH 159 , See supra See D which are reinforced through juxtaposition with images of through juxtaposition with which are reinforced ETY 158 America’s social and racial hierarchies also intersect with this and racial hierarchies also intersect America’s social Many authors note that a variety of contrasting influences char- influences of contrasting a variety note that authors Many 159. 156. 157. 158. Mazumdar, More recently, the New York Police Department Quality Assurance Division More recently, the New York Police Department (1995). bicultural navigation, in conjunction with the noted variety of in conjunction with the bicultural navigation, South Asian racial also lays the backdrop for racialized experiences, ambiguity. Asian immigrants On the one hand, South immigrant experience. of African Ameri- by negative stereotypes are heavily influenced cans, (Deepika Bahri & Mary Vasudeva eds., 1996); counter tensions between traditional cultural practices and those of practices and traditional cultural tensions between counter Bandana Professor American) society. (white the dominant negotiate Americans how South Asian has examined Purkayastha socialization and identity development. this tension in their .com/new-york/nypd-issues-memo-clarify-indians-asian-article-1.1454467. ican Youth Negotiate Ethnic Identities, Discrimination, and Social Class (2009) ican Youth Negotiate Ethnic Identities, of New York Graduate Center) (unpublished Ph.D. dissertation, City University (on file with author). Immigrants rier and that African Americans are responsible for their own lots in rier and that African Americans are also have a long history of American society. South Asian societies light skin privilege into endemic caste and color bias, incorporating successful South Asian Americans as “model minorities.” Conserva- Asian Americans as “model minorities.” successful South such as Dinesh American commentators, tive South Asian D’Souza, acterize the racial experiences of South Asian Americans, resulting Americans, Asian of South racial experiences the acterize to and relationships in racial identity ambivalence in a distinctive groups. other racial Clarify Indians Are Asian heard in the park or at school. These came from kids who seemed to confuse heard in the park or at school. These American and Asian Indians.”). Asian Indian Americans as “Ameri- found that crime reports sometimes misclassify Raymond Kelly issued a memo to help cor- can Indians” and Police Commissioner rect this problem. Rocco Parascandola, 106 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 30 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 59 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 59 35559-nys_69-1 35559-nys_69-1 Sheet No. 60 Side A 10/20/2014 11:50:05 UL- 164 SIAN C A OUTH OUTH Y (Peter Robb, S and Ajay Nair 2–3 161 However, more SIA MERICAN 166 OP AND A A 165 H IP OUTH NDIAN S : H : I AP R OUSE and these factors reinforce ra- reinforce these factors and ESI H and “glass ceilings” in hiring. and “glass 160 CRIT 107 , D 163 Moreover, Professor Nitasha Tamar Moreover, Professor note 14, at 294–301. However, the introduc- note 13. DESI 167 ALAJI supra supra B ESIS IN THE , note 14. , D racial profiling, particularly in the wake of in the wake particularly racial profiling, HE CONCEPT OF RACE IN T URALI Koshy, , 162 note 91. supra AIRA (2002). See OBB ITY & M supra R Part IV.A.2. Part IV.A.1. C M. M AIR ORK ETER N Mazumdar, Misir, P Y JAY UNAINA TURE IN EW See infra See infra See See See Flying While Brown S A See (Ajay Nair & Murali Balaji eds., 2008). . N Id At the same time, South Asian Americans experience overt dis- experience overt Asian Americans time, South At the same 164. 165. 166. Nevertheless, the racial characterization of these early immigrants, mainly Nevertheless, the racial characterization 161. 162. 163. 167. 160. MERICA recently, there has been an influx of working class South Asian im- been an influx of working class recently, there has migrants—taxi owners, and shop keepers—that drivers, motel has and class identi- tensions and complicated racial created intragroup the adoption and Maira has written about ties. Professor Sunaina hybrid cultural Asian American youth of new, creation by South hip hop and other genres, styles that incorporate Asian Ameri- Balaji have also described South and Professor Murali in hip hop. can participation cist attitudes and distancing from black Americans. from black and distancing attitudes cist Sharma has explicitly linked South Asian American hip hop to Sharma has explicitly linked South ed., 1995). While color and caste bias existed and still exist in South Asian socie- ed., 1995). While color and caste bias existed States and caste in South Asia occurred ties, the delineation of race in the United In the United States, skin color and through different sociohistorical processes. a system of slavery for purposes of eco- other physical features were used to create Race, as a means of physical identifi- nomic exploitation and racial subordination. was central and fundamental to the cation based on skin color and other features, Asia, occupational classification and creation of this system. Conversely, in South create the caste hierarchy. Both ethnicity related sociocultural factors were used to but were not the fundamental or and skin complexion were related to hierarchy essential components. influence and reformulate the tion of Western notions of race did significantly on the South Asian subcontinent existing caste hierarchy, and various factions caste and religion for oppressive, political have contributed to the racialization of ends. the beginning and at times even bor- lower caste laborers, was amorphous from rowed from the notions of the caste system. the September 11, 2001 attacks, 11, 2001 the September crimination and more subtle forms of racism. These experiences forms of and more subtle crimination hate crimes, include A 2013] mores, and cultural religious their techni- wave of educated, 1965 brought a Act of The Immigration engineers, scien- from India, including cally-trained professionals and computer programmers. tists, physicians, \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 31 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 60 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 60 35559-nys_69-1 35559-nys_69-1 Sheet No. 60 Side B 10/20/2014 11:50:05 , as 168 OLK F 170 ONNEC- ASS THE P C , . ] ROWN SIAN B -A PART (Lavina Dhingra A FRO ET : A ARMA OF , Y K MERICA ART HE A , Special Issue (1999/2000) T and Vijay Prashad has and Vijay IGHTING A P SIAN F 169 U A Satyagraha in America: The Political F OURNAL J UNG xii (2001); Part IV.D.2. for a more detailed discus- , eds., There is also the question of how also the question There is K SIANS IN AS MERASIA A 171 URITY infra A W P ATHEW Happy Birthday, Youth Solidarity Summer! Also, Professor Susan Koshy examines OUTH , 25 M 174 : S (Feb. 14, 2007), http://www.passtheroti.com/posts/ In the realm of ethnic studies, Professor In the realm of ethnic studies, IJU note 208 and accompanying text and Parts IV.A and ULTURAL VERYBODY note 1. IDE Vivek, 173 note 159. PART C S & B note 96. See , E F See note 14, at 78. This Article largely agrees with Professor A supra O AND ET supra See infra supra , H Moreover, all of this complexity stands along the this complexity stands along Moreover, all of YTH , supra , Y RASHAD RASHAD M EFT P P 172 ART OUZA L HE IJAY IJAY HARMA T D’S A P S V V TIONS ND Various scholars have discussed the racial ambiguity of South have discussed the racial ambiguity Various scholars Additionally, the emergence of South Asian progressive politi- progressive of South Asian the emergence Additionally, A note 88. 173. Harpalani, 174. Kibria, 170. 172. 169. 168. 171. OTI ON THE a rejoinder to Dinesh D’Souza. a rejoinder called for solidarity between South Asian and black Americans, South Asian solidarity between called for South Asians fit into the larger Asian American identity which has into the larger Asian American South Asians fit and Korean) on East Asian (Japanese, Chinese, historically focused immigrants. Kibria’s characterization, but it argues that South Asian Americans can be honor- ary whites as well. Shankar & Rajini Srikanth eds., 1998) [hereinafter Shankar & Rajini Srikanth eds., 1998) IV.B. Nazli Kibria argues that South Asian Americans do not fit well into Nazli Kibria argues that South Asian hierarchy or the Asian American the American black/white racial Asians in the United States as category; she characterizes South “ambiguous nonwhites.” (discussing South Asian American youth involvement in progressive activism and (discussing South Asian American youth various cities, there has also been a week- politics). For the past fifteen years, in camp for radical and progressive South long “Youth Solidarity Summer” (YSS) Asian American youth. Culture of South Asians in the U.S. 373 (last visited Oct. 30, 2013). in the summer of I attended YSS in New York City and Biju Mathew, and other South 2000, where I met Professors Vijay Prashad Asian American activists. growing prominence of figures such as Bobby Jindal, who was a po- of figures such as Bobby Jindal, growing prominence in 2008 and 2012 Vice Presidential candidate tential Republican South Carolina contender in 2016, and and could be a Presidential visibility of South Haley, both of whom increase the Governor Nikki Asian Americans. comes from in this context. My opening anecdote Asian Americans narrative which Race Theory autobiographical a personal Critical deals with the topic. sion of Professor Sharma’s book. supra R 108 blackness. with and engagement consciousness” race “global NYU La- black, between the nexus illustrate phenomena cultural These ANNUAL SURVEY OF in urban communities. South Asian youth tino, and AMERICAN LAW [Vol. 69:77 attention, has captured cal movements \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 32 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 60 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 60 35559-nys_69-1 35559-nys_69-1 Sheet No. 61 Side A 10/20/2014 11:50:05 These contributions lay contributions These 175 note 24, at 53–76. note 24. CRIT 109 II. DESI supra supra , , rather than on malleable racialization of rather than on INANT INANT note 8. 176 A. Racialization Processes & W & W note 14, at 307–11. British South Asians comprise the While . supra MI MI Id The rest of the Article then applies these concepts The rest of the Article then applies O O THEORIZING RACIAL AMBIGUITY RACIAL THEORIZING , , supra 177 Chang, See See, e.g. See, e.g. Building on this work, this Article also examines racializa- Building on this work, this Article era when formal racial categories have a diminished role in era when formal racial categories 178 As noted earlier, racial ambiguity has been undertheorized in racial ambiguity has been undertheorized As noted earlier, Racialization theory has focused on the historical and political Racialization theory has focused 177. 178. 175. Koshy, 176. scholarship on racialization. Sociological theories of racialization racialization. Sociological theories scholarship on of racial on the creation and transformation have focused mainly time, categories over the groundwork for theorizing the racial ambiguity of South Asian ambiguity of South the racial for theorizing the groundwork Americans. ambiguous individuals and groups in different situations. Neverthe- and groups in different situations. ambiguous individuals a good founda- theories of racialization provide less, sociological individuals and characterization of ambiguous tion to analyze racial historical and CRT, whiteness studies, and groups. Additionally, of insights on on race add a number philosophical perspectives theoretical frame- Part begins the creation of a racialization. This by (1) explicating “formal” and work to analyze racial ambiguity, (2) defining both “claims to” and “informal” modes of racialization, (3) highlighting the role of “racial “ascriptions of” racial status, and microclimes.” processes—including laws—that classifica- create official racial tions. to analyze the racial ambiguity of South Asian Americans. to analyze the racial ambiguity of tion that occurs informally—not classification by the only through but also by individual ac- government or other source of authority, particular situations. Such infor- tors applying racial stereotypes in particularly germane for racially mal modes of racialization are and more generally for the post- ambiguous groups and individuals, Brown law and policy. largest minority group in Britain (2.9%) and have transitioned from a “black” largest minority group in Britain (2.9%) Asian” identity in the 1980s, South identity in the 1960s and 1970s to a “British Asian Americans are a smaller, more diffuse group that still occupies an ambigu- ous racial position. 2013] con- Asian Americans, South of classification racial changing the Asians. South with British them trasting \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 33 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 61 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 61 35559-nys_69-1 35559-nys_69-1 Sheet No. 61 Side B 10/20/2014 11:50:05 180 They define 179 . Bonilla-Silva notes that most 184 note 24. outlines a theory of racism that is both outlines a theory 183 supra , 182 Racial Formation in the United States in the United Racial Formation 1. of Racialization Theories Sociological which are interpretations and explanations of the ra- and explanations of which are interpretations Racial contestation reveals political interests of various Racial contestation reveals political . at 55. Omi and Winant also define race as “a concept which signifies . at 55. Omi and Winant also define race . . at 194. Racial essentialism is the presumption that racial categories . at 194. Racial essentialism is the presumption . 181 . Racialization, as posited in this Article, is similar to Omi and Winant’s . Racialization, as posited in this Article, See generally id. Id Id Id Id. Id Rethinking Racism 185 Id Building on Omi and Winant’s ideological conception of racial and Winant’s ideological conception Building on Omi Sociological theories of racialization focus on the creation and on the creation focus theories of racialization Sociological 179. 180. 181. 182. 184. 185. 183. “racial formation” as, “the sociohistorical process by which racial as, “the sociohistorical process “racial formation” and destroyed.” inhabited, transformed, categories are created, competition within a racialized social system contains a racial com- competition within a racialized social which represents “racial contes- ponent, often of distinct character, tation.” structural and process-oriented: the “racialized social systems” process-oriented: the “racialized structural and racialized social systems are so- framework. Within this framework, social rewards differentially by cieties that allocate material and “racial structure”: The set race. Such societies develop a particular and tacit and explicit assump- of social relations, cultural practices, which govern the social con- tions, based on physical distinctions, the society. “Racial ideology” refers struction of racial groups within in the norms and values of to the expression of this racial structure organizational map that guides ac- the society, and it serves as “the tions of racial actors in society.” cial dynamics in a society that serve to reallocate resources to vari- a society that serve to reallocate cial dynamics in racial projects that Racism is constituted by those ous racial groups. on essentialist structures of domination based “create or reproduce categories of race.” transformation of racial categories, which are central to under- are central categories, which of racial transformation widely Perhaps the most of individuals. the racialization standing Omi and of racism is formation on the sociohistorical cited work treatise, Winant’s formation, Bonilla-Silva 110 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 situated racial is described in terms of “historically Racial formation projects,” \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 34 15-OCT-14 10:41 and symbolizes social conflicts and interests by referring to various types of human and symbolizes social conflicts and interests bodies.” concept of racial formation, but includes not only the creation, inhabitation, trans- concept of racial formation, but includes categories, but also social meanings formation, and destruction of formal racial associated with race. are fixed and have unique identifying attributes, rather than being socially con- structed and dependent on social and historical context. 35559-nys_69-1 Sheet No. 61 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 61 35559-nys_69-1 35559-nys_69-1 Sheet No. 62 Side A 10/20/2014 11:50:05 190 Formal racialization pro- Formal racialization for example, the determi- for example, the 188 187 CRIT 111 note 24. DESI supra , Formal racialization refers to the creation and 186 Part III.B. 189 2. Racialization Modes of Formal and Informal See infra See Rethinking Racism “Informal” racialization refers to racial characterizations that “Informal” racialization refers to This Article extends Omi and Winant’s racial formation theory formation and Winant’s racial extends Omi This Article 186. implicit in racial formation theory Formal and informal racialization are 187. by the government. But other This Article deals with racial classification 188. 189. In fact, classification as non-white can confer certain benefits, such as 190. meanings which are rooted in the racial ideology of a society. meanings which are rooted in vided many exclusive privileges before the Civil Rights movement privileges before the Civil vided many exclusive in a cate- as “white.” Conversely, membership through designation Actors made “white” led to denial of those rights. gory other than to acquire citizenship, and they claims to formal whiteness in order racial identity in denying those were also ascribed with non-white formal racialization no longer claims. In the post-Civil Rights era, of racial hierarchy, although it is serves as the primary demarcator still relevant. nation of who was “white” under the Naturalization Law of 1790, as “white” under the Naturalization nation of who was Ian Haney Lopez. analyzed by Professor application of official racial classification schemes by the govern- racial classification schemes application of official source of authority; ment or another do not involve official classification schemes, but rather situational do not involve official classification meanings associated with race—characterizations based on social and Bonilla-Silva’s racialized social systems framework to show how framework to social systems racialized and Bonilla-Silva’s for racially ideology are expressed situationally racial structure and Asian Ameri- and individuals (specifically South ambiguous groups “formal” and “in- that racialization occurs via cans). First, it posits formal” modes. and the racialized social systems framework. This Article merely makes those con- and the racialized social systems framework. phenomenon of racial ambiguity. cepts explicit, in order to highlight the classification schemes, such as private authorities may also create formal racial to identify their race on applica- companies or universities which ask applicants as requiring the racialized individual tions. One can think of formal racialization or as having a government or private to check a box identifying his or her race, race (including a judicial official identify and record the individual’s determination). ne- inclusion in affirmative action programs, although these may dissipate if the oconservative racial project of colorblindness prevails. These characterizations can be based on physical features such as These characterizations can be skin or other physical attributes, skin color. For those with darker leading to racial stere- ascription is often the basis for racialization, 2013] the differen- to perpetuate can serve and in a society, groups racial race. by of resources tial allocation \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 35 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 62 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 62 35559-nys_69-1 35559-nys_69-1 Sheet No. 62 Side B 10/20/2014 11:50:05 , ACE R is at- ONSCIOUS- 191 C ONFRONTING While there is Comparative Racializa- : C 193 194 and darker skin can and darker White Privilege: Unpacking the MBODIMENT AND 192 HITENESS E W ¨ uller & Judith L. Newman eds., EART OF H , July–Aug. 1989, at 10. HE ERSPECTIVES ON ; Peggy McIntosh, T P , 1689, 1694 (2000) [hereinafter REEDOM Colorism Embodied: Skin Tone and Psychosocial Well-Being Colorism Embodied: Skin Tone and Psychosocial (Lawrence Ferlinghetti & Nancy J. Peters, eds., 2005); (Lawrence Ferlinghetti & Nancy J. Peters, . Comparative Racialization: Racial Profiling and the Case of Comparative Racialization: Racial Profiling ENSEN EV J 3 (2005) E & F M RIVILEGE OBERT EACE EVELOPMENTAL IKE P R P Part IV.A. Another example distinguishing formal and informal Part IV.A. Another example distinguishing D , , L , Suzanne G. Fegley, Margaret B. Spencer, Tyhesha N. Goss, Vinay , Suzanne G. Fegley, Margaret B. Spencer, UCLA L. R in HITE Neil Gotanda, , HITE W , 47 See infra See e.g. See See, e.g. NESS , W ISE Formal and informal racialization are related and may overlap. racialization are related and Formal and informal 194. 192. 191. 193. 281, 285–87 F. Overton, Ulrich M (Willis W ] (noting that “foreignness is a crucial dimension of the American ] (noting that “foreignness is a crucial ACISM AND IM tributed to Asian Americans based on racial physiognomy. Lighter physiognomy. based on racial to Asian Americans tributed a marker of status, serves as skin generally overlap between formal and informal racialization, this Article em- overlap between formal and informal former and racialized symbols for phasizes official categories for the is particularly important for under- the latter. Informal racialization inherently problematizes the ap- standing racial ambiguity, which serve to negate status. For individuals with lighter skin—especially individuals with negate status. For serve to perceived as “white”—statusthose who are may be manifested experiences of white privilege. through everyday R Invisible Knapsack racialization comes from college applications. Here, formal racialization could oc- racialization comes from college applications. directly identifies her/his race, whereas cur when an applicant checks a box that applicant offers direct or indirect informa- informal racialization could occur if the in a personal statement. The self- tion about her/his racial/ethnic background identification box on the application represents a formal racial classification scheme, whereas information in the personal statement may only informally refer to race or offer indirect information that is correlated with race (e.g., from which part of the world or country the applicant hails, experiences or activities in which the applicant has been involved). racialization”). Harpalani & Nicole Charles, in Adolescence tion Formal racialization is also rooted in ideology and racial stereo- is also rooted in ideology Formal racialization and classify used to create official racial categories types, which are modes is that for- key difference between the two individuals. The authority applying involves government or other mal racialization whereas infor- racial classification scheme, an officially sanctioned that do involves situational racial characterizations mal racialization direct applica- authority and do not involve not necessarily invoke for example, the racial classification schemes; tion of existing Americans. model minority stereotype of Asian 2008). T 112 racial of other manifestations and crimes, hate profiling, otyping, NYU group recognized most widely are the Black Americans oppression. ANNUAL SURVEY OF but other bodily criteria, on skin color and based that is stigmatized AMERICAN LAW “foreignness” For example, are also affected. other groups [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 36 15-OCT-14 10:41 Wen Ho Lee 35559-nys_69-1 Sheet No. 62 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 62 35559-nys_69-1 35559-nys_69-1 Sheet No. 63 Side A 10/20/2014 11:50:05 ORNELL C , 85 for example, Profes- Working Identity 198 and explores how these and explores how 197 CRIT 113 Beyond material artifacts, informal material artifacts, Beyond DESI 195 note 13. supra , WAMI Devon Carbado & Mitu Gulati, note 25, at 1139–40. S Part IV.C. Parts IV.A, IV.B.1. supra NCLE U 199 and educational achievement, and educational See infra See infra See generally See 1259 (2000). 196 . Moreover, as conceived in this Article, informal racialization Moreover, as conceived in this By viewing race as “performance,” one can begin to create a By viewing race as “performance,” In that vein, informal racialization can occur via material sym- via material can occur informal racialization In that vein, 196. 197. 198. 199. Rich, 195. EV Race/ethnicity performance is defined as any behavior or vol- Race/ethnicity performance is defined by accident or design, com- untarily displayed attribute which, or status. It covers racially municates racial or ethnic identity as hairstyles and other aes- and ethnically coded indicia such language choice, and thetic choices, as well as dialect, accent.” sor Camille Rich provides such a performative definition of race: provides such a performative definition sor Camille Rich racialized symbols interact with formal racialization. Informal interact with formal racialization. racialized symbols race that may draw occurs via the performance of racialization also in such analyses by CRT scholars have engaged upon such symbols. aspects of race; examining the performative racialization can involve other statuses that may be linked to race, may be linked other statuses that can involve racialization symbols that re- religion, and achievement, via including class, or undesirable statuses—allpresent either desirable of ra- reflective racialization, its analysis of South Asian American cial ideology. In including re- particular racialized symbols, this Article emphasizes ligion conceptual framework to examine racialization that moves beyond conceptual framework to examine of formal racial categories. Analyz- the creation and transformation illuminates racial stereotypes and ing “race as performance” also associated with racial classification the underlying social meanings of legal doctrine. The rela- in the real world, outside the context and racialization is key to under- tionship between performance is essentially manifested through standing racial ambiguity, which and through interpretations of situational racialized performance such performance. entity. Racial status in this vein posits that race can be a transferable L. R 2013] on to focus one requires and categories formal of plication symbols. racialized Professor for example, or bodily features; are not physical bols that associ- is a material symbol the turban discusses how Vijay Prashad Muslim terrorists. ated with \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 37 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 63 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 63 35559-nys_69-1 35559-nys_69-1 Sheet No. 63 Side B 10/20/2014 11:50:05 In 202 UDGMENT J HEORY AND T Racial identity Racial 201 ANDBOOK OF RITIQUE OF THE H C in , OCIAL , 241, 248 (John G. Richardson ed., , 241, 248 (John G. : A S ] (“Social capital is the aggregate of actual ] (“Social capital is DUCATION or symbolic capital. or symbolic E ISTINCTION 200 D The Forms of Capital , OURDIEU OCIOLOGY OF B The Forms of Capital S IERRE Pierre Bourdieu, P ] (defining “symbolic capital” as “reputation for competence and an ] (defining “symbolic capital” as “reputation See See OF 291 (Richard Nice trans., Harvard Univ. Press 1984) (1979) [hereinafter 291 (Richard Nice trans., Harvard Univ. ASTE 201. 202. and foreignness, rather than on the By focusing on blackness, whiteness, and multiplicity of racial identi- This concept of race captures the malleability 200. T ISTINCTION ESEARCH FOR THE this way, racial actors who are not formally classified as “white” can who are not formally classified this way, racial actors whiteness, regard- of the privileges associated with still access some racial actors racial identification. Similarly, less of their categorical can have black- classified as black or “foreign” who are not formally and status then become a privileged resource that can be allocated that can resource a privileged become status then and actors contested by racial be claimed and that can and withdrawn, or that can is “whiteness”), that resource situations (when in various categorical of all stigmatization. Individuals as a mark of be ascribed racial groups—e.g., American—haveblack, white, Asian the ability with them by others. to be ascribed racial statuses or to claim or potential resources which are linked to possession of a durable network of more which are linked to possession of a durable or potential resources or recognition—or relationships of mutual acquaintance or less institutionalized in a group . . . .”). in other words, to membership 1986) [hereinafter image of respectability and honourability [sic] that are easily converted into politi- image of respectability and honourability are related to one another and to eco- cal positions”). Social and symbolic capital or respect (symbolic capital) can lead to nomic capital. Acquisition of competence networks (social capital), and vice versa. broader institutional relationships and lead to, greater economic capital. Both of these can also emanate from, or the emphasis is again on the social categorical classification of the racial actor, whiteness or blackness can vary in meaning of race: the attributes that constitute however, that this inquiry should not different situations. It is important to note, their prevalence and importance reify racial stereotypes, but rather acknowledge should not assume that the attributes that in existing racial status hierarchies. One patterns or other cultural behaviors, constitute blackness, whether they are speech or even many, black Americans. Rather, are those which are possessed by most, blackness in particular situations. they are just the symbols that represent ambiguous individuals and groups. For ties that is particularly salient for racially Obama has been racialized as “black,” example, ambiguous racial actor Barack President Obama’s case, we can postulate “white,” “mixed,” “Arab,” or “foreign.” In heritage, self-identification, and that his blackness derives from his appearance, however, may derive from his educational ascription by the media. His whiteness, cultural ways of presenting himself to background, manner of speaking, and other like blackness, also derives from his mass audiences. Obama’s mixed-race identity, own claim to mixed-race identity is heritage and appearance, although Obama’s identity has been subsumed by particularly important. Until recently, mixed-race as a blackness, and often still is in public discourse. Therefore, Obama is discussed mixed-race individual primarily when he employs this identity in particular situa- tions. Finally, the misidentification of Obama as “Arab” or “Muslim” derives largely from his Arabic name, although his appearance and international upbringing also play a role. R D 114 social capital form of is a NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 38 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 63 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 63 35559-nys_69-1 35559-nys_69-1 Sheet No. 64 Side A 10/20/2014 11:50:05 HE 209 , T ERRY 203 B . at 933. Id note 15, at 2–3. RANCES F ARY 931, 931 (2004) [herein- ” supra Part IV.D.2. . , M 1 (1997). , TUD The racial structure and The racial structure S See infra 204 See, e.g. ONTRACT ACIAL Part III.D. Another example is that of C CRIT 115 & R ACIAL note 24. R See infra DESI THNIC HE E From Bi-Racial to Tri-Racial: Towards a New System of From Bi-Racial to Tri-Racial: Towards a New ]. Within this scheme, Bonilla-Silva characterizes supra , T , , 27 determines how such claims and ascriptions determines how ILLS 205 M , by declaring that “white supremacy is the un- , by declaring that “white supremacy Professor Bonilla-Silva’s distinction between Professor Bonilla-Silva’s distinction ADE 1. and Racial Capitalism Whiteness 208 W racial status hierarchies are still important in under- racial status hierarchies B.and Agency Contestation, Racial Status, 206 . Racial hierarchy is key to understanding racialization and Racial hierarchy is key to understanding HARLES C See Rethinking Racism Id See A Critique of “Our Constitution Is Color-Blind 207 After considering socio-historical processes of racialization, processes socio-historical After considering Philosopher Charles Wade Mills begins his prize-winning book, Philosopher Charles Wade Mills From Bi-Racial to Tri-Racial 209. Historians have also examined whiteness in this light, finding that white 208. Eduardo Bonilla-Silva, 203. actors may claim non-white There are also situations where ambiguous 204. 205. 207. 206. ideology of a society, Racial Stratification in the USA after South Asian Americans (Asian Indians) as “Honorary Whites.” privilege can be manifested in complex ways. operate. As such, although no longer central to the legal construc- although no longer central to operate. As such, tion of race, “Whites” and “Honorary Whites” underscores the distinction be- “Whites” and “Honorary Whites” informal aspects of racialization. tween formal racial categories and whiteness can elucidate racial hier- Formal and informal aspects of reproduced in everyday life. archy and illustrate how it is subtly standing racialization processes and racial ambiguity. standing racialization theorizing racial ambiguity involves: (1) elucidating specific racial elucidating specific involves: (1) racial ambiguity theorizing the agency of am- in a society; and (2) examining status hierarchies status. This Article in determining their racial biguous racial actors occur through formal and informal racialization posits that both claims and as- of” racial statuses. These “claims to” and “ascriptions racial contestation. criptions represent racial dynamics more generally. Sociologist Eduardo Bonilla-Silva racial dynamics more generally. the emerging American ra- designates three categories to describe “Honorary Whites”; and (3) “Col- cial hierarchy: (1) “Whites”; (2) lective Black.” The Racial Contract made the modern world what it is named political system that has today.” racial identities to confer benefits; for example, to gain access to civil rights protec- racial identities to confer benefits; for example, tions or affirmative action programs. South Asian American males claiming blackness (indirectly, through symbols asso- South Asian American males claiming blackness ciated with hip hop) as stereotypic masculinity. 2013] of op- a means as them, either onto ascribed and foreignness ness whiteness. with associated privileges to negate or pression \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 39 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 64 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 64 35559-nys_69-1 35559-nys_69-1 Sheet No. 64 Side B 10/20/2014 11:50:05 . A- R 213 R EORGE illus- see also . J. C G , TAN S 1707, 1709 214 . PISODES OF , 1 EV See, e.g. : E (1999) (describing . L. R . 2151 (2013); White by Law USTICE EV ARV J RESENT H P . L. R 2–3 some (2006). Additionally, ARV MERICAN , 106 but also in terms of social but also Professor Harris discusses Professor H A TO THE 211 210 HITENESS , 126 , examined attributes of whiteness attributes of , examined 1865 ALES OF W note 31. There have also been many socio- T supra , THER O Whiteness as Property OPEZ OURTS FROM which she defines as “the process of deriving which she defines and as a privileged status—such and as as Homer NVESTMENT IN L Racial Capitalism C I 215 note 215, at 2152. 212 ANEY Blackness as Property: Sex, Race, Status, and Wealth H supra , Whiteness as Property Whiteness AUGHTER AND Nevertheless, the idea of racial capitalism applies to Nevertheless, the idea of racial note 193 and accompanying text. D at 1716–18. at 1737. at 1747. S 217 . ’ EXISM IN THE CISM AND Id. Id. Id. See, e.g. Id HE POSSESSIVE Professor Leong focuses primarily on how white individuals focuses primarily on how white Professor Leong S T 51 (2005). , 216 Building on this work, Professor Nancy Leong has described work, Professor Nancy Leong Building on this To analyze the status hierarchies and social meanings associ- meanings social and hierarchies status the To analyze See supra ARMER 211. 212. 213. 214. 210. Cheryl I. Harris, 215. Nancy Leong, 216. Leong, 217. F IPSITZ IG relations, identity, relations, whiteness not only as a legal status, not only as a whiteness (1993). criminal cases in 19th century America where black defendants were acquitted for criminal cases in 19th century America they had gained the favor of more crimes, even against white individuals, because Professor Berry’s analysis here also under- powerful and influential white citizens). (specifically whiteness) as social capital, scores the historical importance of race coupled with other forms of status. Mitchell F. Crusto, & C.L. Plessy’s reputation as a white man—constitutingPlessy’s reputation a property right. of another per- value from the racial identity social and economic son.” commentators have also focused on current, everyday manifestations of white privi- commentators have also focused on current, lege. both white and non-white individuals capitalizing from both white both white and non-white individuals one can posit that non-white peo- and non-white identities; indeed, logical studies of whiteness. The explication of whiteness and its consequences has logical studies of whiteness. The explication scholars have delineated the concept of provided a dynamic venue for debate, and hierarchy in various ways. whiteness and its relationship to racial and predominantly white institutions derive value from non-white white institutions derive value and predominantly identities. ated with race, critical race theorists have focused on the definition on have focused race theorists critical with race, ated fa- Cheryl I. Harris’s category. Professor as a formal of whiteness mous article, “racial capitalism,” from the lens of property theory. lens of property from the L P 116 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 Ian Haney Lopez’s work, Additionally, Professor \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 40 15-OCT-14 10:41 trates how the racial standard for naturalization, which essentially standard for naturalization, trates how the racial person,” played a classification as a “free, white consisted of legal social construction of racial categories. large role in the 35559-nys_69-1 Sheet No. 64 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 64 35559-nys_69-1 35559-nys_69-1 Sheet No. 65 Side A 10/20/2014 11:50:05 , 219 218 OLIT- ERSIS- P , P DUARDO of the E 221 note 215 and see also supra ACISM AND THE R LIND -B Moreover, for non-white in- for non-white Moreover, note 200 and accompanying text; note 24, at 137–91; OLOR 220 C : supra (3d ed. 2010). CRIT 117 supra , , The role of agency in racialization ACISTS DESI Race, Culture, Identity: Misunderstood Connections at 2153 (“A person of any race might engage in at 2153 (“A person of any race might engage 223 ACISM MERICA R “O’Bama” Campaign Touts His Irish Heritage R A Scholarship on whiteness and racial capi- Scholarship on whiteness and racial 222 2. Claims and Ascriptions ITHOUT see also id. ; note 214. W 30, 81 (Kwame Anthony Appiah & Amy Gutmann eds., 30, 81 (Kwame Anthony Appiah & Byron Tau, note 201 and accompanying text; Leong, note 201 and accompanying text; Leong, NEQUALITY IN supra UPREMACY AND See ACISM See The Forms of Capital , I S , R supra ONSCIOUS , HITE ACIAL IPSITZ ILVA ICO C TENCE OF L W See generally id. R -S Philosopher Kwame Anthony Appiah has distinguished be- Anthony Appiah has distinguished Philosopher Kwame OLOR 222. Kwame Anthony Appiah, 223. has, at various times, character- For example, President Barack Obama 220. identity can be viewed as a This also highlights the notion that racial 221. 218. 219. (Feb. 17, 2012, 2:39 PM), http://www.politico.com/politico44/2012/02/ C ISTINCTION ONILLA post-Civil Rights era. A reflexive view of racial status—onepost-Civil Rights high- that with negations of such as whiteness, along lights claims to statuses those claims—can its on “colorblind racism” and shed light consequences. dividuals and groups, claims to whiteness are also opposed and are also opposed to whiteness and groups, claims dividuals or national polit- ways, often contingent on local negated in various occur in less ra- These phenomena increasingly ical circumstances. racism” as part of the “colorblind cially explicit terms, adds another dimension to analysis of the performance of race. adds another dimension to analysis talism raises the question of how much agency individuals—particu-talism raises the question of how larly those who are racially ambiguous—have in determining their own racial characterization. in 1996). referred to his “white grandmother” to ized himself as black or of mixed heritage, emphasize his connection to white Americans, and highlighted his international upbringing; his campaign has even referred to the President as “O’Bama” to tout his Irish heritage. form of capital. accompanying text. tween “ascriptions” of racial status, which involve labeling of the tween “ascriptions” of racial status, and “identifications”racialized actor by other people, of status, the label in the intentional acts” which involve “a shaping role for of the racialized actor. obama-campaign-touts-his-irish-heritage-114862.html. D B racial capitalism . . . .”). 2013] as well. capital to accrue in order whiteness to claims ple make investment” the “possessive of notion Lipsitz’s George Professor presently groups who are to racial can be extended in whiteness social and strive for the groups also as non-white. These classified simulta- even when they by whiteness, advantages afforded material identities. claim other racial neously \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 41 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 65 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 65 35559-nys_69-1 35559-nys_69-1 Sheet No. 65 Side B 10/20/2014 11:50:05 See to supra note notes 226 See infra supra , See supra OMEZ of racial sta- note 2. G 225 See See supra Groups such as South Asian 227 note 215, at 2154 (“[T]he commodity of nonwhiteness note 215, at 2154 (“[T]he commodity supra note 88, at 26 (noting “external ascriptions that South Asian note 88, at 26 (noting “external ascriptions supra Leong, , The key difference between claims and ascriptions is claims and difference between The key 224 See Racialization also occurs through ascriptions Racialization also Building on Professor Appiah’s distinction and on Professor and on distinction Appiah’s Professor on Building 225. sense as Professor Appiah, I use the term “ascription” in the same 226. 227. This occurs when particular non-white individuals or groups are explic- 224. distinction between race and Professor Laura Gomez makes a similar URKAYASTHA P persons by other individual and state actors. This Article contends persons by other individual and can serve to negate claims to hon- that ascriptions of non-whiteness orary whiteness by people of color. tuses (usually “non-whiteness” as noted by Professor Leong) tuses (usually “non-whiteness” as Americans are usually racially invisible when treated as honorary Americans are usually racially invisible educated and privileged mem- whites (which, at least for the more 26, at 2 (using “race” to denote “group membership . . . assigned by others” and 26, at 2 (using “race” to denote “group . . . chosen by members of the ethnic “ethnicity” to denote “group membership this framework because it deals with race group”). This Article does not employ as transferrable capital. not only as group membership, but also 215–20. in this Article also does not focus on the race/ethnicity dis- The analysis this distinction. tinction, although it does acknowledge note 222. Professor Bandana Purkayastha also uses the term in a similar sense. note 222. Professor Bandana Purkayastha agency: the former involve choice of the racialized actor, while the involve choice of the racialized agency: the former to racial status such, individuals can make claims latter do not. As be subject to such although non-whiteness may (usually whiteness, American claims are often racially invisible: status claims). These material and social often assimilate by acquiring immigrant groups practices of the adopting the social and cultural capital and tacitly race. Racially am- any direct attribution to white majority without such claims, owing have greater ability to make biguous individuals “blend in.” to their ability to Americans mentioned most often” in their discussion of racial and ethnic Americans mentioned most often” in experiences). is exploited for its market value.”). lan- itly contrasted with particular white Americans, based on skin color, religion, guage, or other features. Parts III and IV give examples of such ascriptions that involve South Asian Americans. There are also situations where ascription of non- whiteness can confer benefits; for example in affirmative action programs. Part III.D. Harris’s notion of whiteness as property and Professor Leong’s idea Leong’s Professor and as property of whiteness notion Harris’s ra- the role of ambiguous Article examines capitalism, this of racial that racialization, processes. It contends in racialization cial actors and “as- through “claims” can operate formal or informal, whether racial actors that involve individual by racially ambiguous criptions” statuses. ethnicity in her analysis of Mexican American experiences. ethnicity in her analysis of Mexican American 118 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 42 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 65 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 65 35559-nys_69-1 35559-nys_69-1 Sheet No. 66 Side A 10/20/2014 11:50:05 EW 230 231 N 237 AND THE , SIANS It is only when they only when It is , A Such claims and as- Such claims and 228 claims and ascriptions 233 235 ATINOS ? L note 24, at 37–44. Applying Professor Bonilla- Applying Professor and along with blackness and and along with blackness 234 232 supra CRIT 119 note 191. , S WHITE I DESI supra note 1, at 78 ([In] the . . . environment of a note 1, at 78 ([In] the . . . environment ACISM , HO R note 24, at 194. W supra , supra , (2003). ANCEY Y IVIDE Part II.A.1. INANT Part IV.D.3. Part IV.C. UPREMACY AND D , Harpalani, S ). Claims and ascriptions also represent “racial contes- ). Claims and ascriptions also represent EORGE & W G 236 at 44. HITE MI BLACK Id. Id. See supra See infra See infra Comparative Racialization O W See See, e.g. and groups such as South Asian Americans have at times Asian Americans such as South and groups ONBLACK 229 /N Both claims of and ascriptions to racial status are racial projects ascriptions to racial status are Both claims of and As noted, claims and ascriptions to racial statuses can occur As noted, claims and ascriptions 236. 237. 233. 234. 235. 230. 231. 232. 229. 228. 3. Synthesis: Racialization via Claims and Ascriptions Preliminary are marked as the “other” that their race becomes explicit. In explicit. becomes race that their “other” as the marked are cate- the primary “other” historically been “blackness” has America, gory, are also rooted in a society’s “racial structure” (the set of social rela- are also rooted in a society’s “racial and explicit assumptions, based tions, cultural practices, and tacit the social construction of racial on physical distinctions, that govern “racial ideology” (the expression groups within the society), and its and values of the society, which of this racial structure in the norms that guides actions of racial actors serves as “the organizational map in society” criptions can “create or reproduce structures of domination based or reproduce structures of criptions can “create of race.” on essentialist categories Silva’s racialized social systems framework, Silva’s racialized whiteness, it is an entity that can be applied across groups. This entity that can be applied across whiteness, it is an with respect to all of these various racial statuses Article explores South Asian Americans. Omi and Winant. as described by Professors tation”—competition social system. for status in a racialized been labeled as “black” to negate their honorary whiteness.” to negate their as “black” been labeled through either formal or informal racialization. Historically, the through either formal or informal were formal claims (to most salient grounds for racial contestation college campus . . . I had . . . the ability to be racially invisible. I could just fit in college campus . . . I had . . . the ability . .”). with the predominantly white crowd . . 2013] time). of the is much of the community, bers depending forms, can take different as noted “otherness” However, Asian Arab and South for example, being racialized: on the group and “terrorists.” portrayed as “foreigners” Americans are often is a crucial dimen- contends that “[f]oreignness Professor Gotanda racialization,” sion of the American \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 43 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 66 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 66 35559-nys_69-1 35559-nys_69-1 Sheet No. 66 Side B 10/20/2014 11:50:05 A- : B LACK Claims is trans- B As such, 242 241 240 HILE W note 215. This Article note 200 and accompany- RTICULATE supra A , (2012). More recently, however, More Leong, 238 see also supra U.S. 52 See MITHERMAN and symbolic capital. and symbolic These claims can confer privileges These claims can S 239 from black Americans and even from from black Americans 244 note 25, at 27 (noting that in order to appear note 25, at 27 (noting that in order to note 25, at 29 (“With respect to racial distanc- 245 note 201 (defining “social capital”). note 201; ENEVA ACE IN THE supra supra R ?, ?, supra & G supra , , AND The acquisition of symbolic capital associated The acquisition , LIM HITE HITE Part IV.C.2. Professor Leong also does not focus on assimila- Part IV.C.2. Professor Leong also does not 246 A W W Part III. AMY (defining “symbolic capital”). ANGUAGE ISTINCTION ISTINCTION membership in particular social groups, and participa- membership in CTING CTING D D H. S A A See infra , L . 243 RACK See See See See id. Id See See infra See BAMA O 244. 243. 246. 240. 241. 245. 242. and nuanced analysis of ra- Professor Nancy Leong presents a complex 238. 239. to honorary whiteness by non-white immigrants may involve adopt- by non-white immigrants to honorary whiteness practices and values of white Americans—throughing the cultural language, Pierre Bourdieu’s notion of class tastes and distinctions of class tastes notion Pierre Bourdieu’s posed on the racial hierarchy and assimilation processes. posed on the racial informal racialization has become the primary ground for racial primary ground become the racialization has informal re- access to material whiteness reflects Honorary contestation. and to social capital sources and serve as a “distinction” their own groups. with race is perhaps the most salient ground currently for racial the most salient ground currently with race is perhaps and dynamic ex- it is the most malleable, reflexive, contestation, as Non-white actors—particularlypression of racialization. who those are racially ambiguous—have to make claims to sym- greater agency implicitly adopts Professor Leong’s analysis, but differs in focus in three ways: (1) it implicitly adopts Professor Leong’s analysis, racial identity more generally; (2) it fo- emphasizes racial ambiguity rather than it posits broader implications); and (3) cuses on South Asian Americans (although the economic value of race, as the focus it emphasizes the symbolic rather than their association with status hierarchies here is more on racialized symbols and this Article does cover commodification than on commodification. Nevertheless, to an extent. (legal whiteness), IV.A & IV.B (Honorary tion, which this Article does in Parts III.B to blackness). Whiteness), and IV.D.1 & IV.D.2 (claims ing text. tion in activities that are associated with high status, or just with that are associated with high tion in activities “American.” appearing more more “American,” might “change their names to more Ameri- more “American,” Chinese Americans might display American flags on their cars and can-sounding ones . . . [and/or] . . . lockers”). ing, a Latina who is bilingual might refuse to speak Spanish. A black person might her avoid associating with other black people. A Korean American might change name from Mi-Young to Julie . . . .”). cial identity as a form of capital, emphasizing the commodification and exchange cial identity as a form of capital, emphasizing value of racial identity and association. 120 in- which (of non-whiteness), ascriptions formal and whiteness) NYU ex- by courts, classification racial government over conflicts volved ANNUAL SURVEY OFlegislatures. agencies, and ecutive AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 44 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 66 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 66 35559-nys_69-1 35559-nys_69-1 Sheet No. 67 Side A 10/20/2014 11:50:05 , LACK USLIM J. B ACOBSON J. M LCHEMY OF J , 28 and Islam A 250 RYE , 22 248 29 (2001) (not- F . White Americans, the IST Professor Chang H ATTHEW 251 M THNIC See . E N MMIGRANTS AND THE Arab/Muslim ‘Otherness’: The Role of I J. A , 20 CRIT 121 notes 181–82 (describing Omi and Wi- note 19. 252 UROPEAN DESI : E supra supra OLOR Becoming “White”: Race, Religion and the Foundations of Becoming “White”: Race, Religion and the Foundations , Sina A. Muscati, C. Racial Microclimes C note 8. IFFERENT although religion, language, and other characteris- although religion, see also, e.g. supra D 247 ; 249 131 (2002); Nader, Sarah Gualtieri, at 1914. . See id. Id. See MINORITY AFF 200, 202 (1997). The final step in theorizing racial ambiguity is consideration theorizing racial ambiguity is The final step in However, such assimilation is often challenged through ascrip- through is often challenged such assimilation However, (1998); Jonathan W. Warren & France Winndance Twine, (1998); Jonathan W. Warren & France Winndance . 249. 252. 250. See text accompanying 251. Chang, 248. 247. a particular ethnic group, such sym- As they become widespread among HITENESS OF A ACE TUD as otherness, notes, “Race has multiple contingent meanings. Racial orderings notes, “Race has multiple contingent as well as temporary. Atten- are multiple and contextual, temporal for understanding how dis- tion to the local microclime is crucial of interventions would disrupt crimination operates and what kinds or remedy this discrimination.” ing that Arab immigrants have argued for “inclusion in the ‘white race’”ing that Arab immigrants have argued for based on their Christianity). Racial Construction in the Gulf War and the Continuing Crisis with Iraq Racial Construction in the Gulf War and the not only of how racialization operates on a national level, in society racialization operates on a national not only of how within how it is expressed in local environments at large, but also the society—each Citing the late with its own history and politics. Chang discusses the idea of Professor Keith Aoki, Professor Robert “racial microclimes”—local social and politi- settings with particular processes. cal dynamics that affect racialization tics do not always constitute racialized symbols. This Article employs constitute racialized symbols. This tics do not always achievement, and criteria: religion, language, Omi and Winant’s when they are part honorary whiteness only other factors constitute creates or reproduces racial hierarchy. of a project that nant’s notion of “racial projects”). tions of “otherness” which is the ascription of religion, culture, lan- of religion, culture, is the ascription “otherness” which tions of For claims to whiteness. to negate and other statuses guage, whiteness serve as honorary Christianity may example, New Minority? Non-Blacks and the Ever-Expanding Boundaries of Whiteness New Minority? Non-Blacks and the Ever-Expanding bolic claims to honorary whiteness” might also have led to formal classification as bolic claims to honorary whiteness” might “white”—particularly for European ethnic groups. Syrian/Lebanese Ethnicity in the United States W R S 2013] or cultural of material on acquisition depends which capital, bolic formal or physiognomy racial than on rather resources classification. \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 45 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 67 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 67 35559-nys_69-1 35559-nys_69-1 Sheet No. 67 Side B 10/20/2014 11:50:05 ]. 11, 12 ISTORY OF H RIEF SSIMILATION : A B & A MERICA settling largely on the A 255 DMISSION note 24). A History of United States Legislation , A NDIA TO supra I , A History of United States Legislation with Re- III. ROM 253 hereinafter F INANT in ISCRIMINATION , & W ASIAN AMERICANS 1982) [ D MI O TO BE OR NOT TO BE WHITE: Part IV.D.3 (describing the influence of local racial climates on Part IV.D.3 (describing the influence of ROBLEMS OF FORMAL RACIALIZATION OF SOUTH FORMAL RACIALIZATION OF , P . (discussing Thus, when analyzing informal racialization, it is Thus, when analyzing informal See infra Id 254 The first significant wave of immigrants from South Asia to the The first significant wave of immigrants In sum, this Article integrates all of these ideas to examine the In sum, this Article integrates all While racial microclimes are important in understanding are important microclimes racial While claims and as- examines racial projects (i.e., Thus, this Article 254. 255. that the “earliest record of the Professor Sripati Chandrasekhar notes 253. Sripati Chandrasekhar ed., MMIGRATION and this significance is augmented further for the most malleable and this significance is augmented ( ascriptions of the anti-black epithet “macaca” to South Asian American college ascriptions of the anti-black epithet “macaca” student S.R. Sidarth). America” comes from a “colonial diary” presence of an Asian Indian in North Indian from Madras visited Salem, Massa- which documented that “[i]n 1790 an chusetts . . . .” Sripati Chandrasekhar, spect to Immigration from India Professor Vinay Lal notes that dating back to the 1600s, there were some slaves United States came in the early 1900s, United States came in the early racial ambiguity of South Asian Americans, beginning in the next racial ambiguity of South Asian Part. particularly important to pay attention to local racial dynamics—particularly important to pay attention individuals and groups. racial actors: racially ambiguous racialization more generally, they are particularly important in de- important particularly they are more generally, racialization phenom- the and in understanding informal racialization lineating By and groups. among individuals racial ambiguity enon of based racialization entails differential racial ambiguity definition, how “race the focus on moves beyond context, and thus on local on a national level.” operates but also in status) not only in whole societies, criptions to racial of racial structure microclimes. The expression particular racial becomes particu- vary by local context, and this and ideology can While racial for racialization of ambiguous actors. larly important racialization, important when examining formal microclimes are racialization. to understanding informal they are also indispensable malleable and dy- informal racialization is more By its very nature, the local climate, racialization. Depending on namic than formal symbols can be- different racial statuses and history, and politics, society’s racial ide- various aspects of the come salient, emphasizing ology. I 122 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 46 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 67 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 67 35559-nys_69-1 35559-nys_69-1 Sheet No. 68 Side A 10/20/2014 11:50:05 , . at , 30 Id they ULTURAL 258 ISTORY OF C note 255, at : A H , https://en.wiki . at 17. supra , Id Additionally, al- Additionally, HORE . at. 15. The 1900 U.S. AL OLITICAL AND Id S L 257 IKIPEDIA W http://www.saadigitalarch See , : A P 260 Sikh IFFERENT Professor Lal also gives examples The West and the Hindu Invasion NDIANS D note 155, at 306. I available at http://www.saadigitalarchive.org/item/ supra CRIT 123 THER Also, some of the early Asian Indian immi- O 13 (2008). HE DESI , T Mukerji, The misidentification of this first wave of of The misidentification MERICA AL available at The Picturesque Immigrant from India’s Coral Strand TRANGERS FROM A L A See 259 note 155, at 304 (noting that “[t]he year 1901–1902 note 155, at 304 (noting that “[t]he year S 08 (1989). – , INAY V supra Agnes Foster Buchanan, SIANS IN AKAKI , Apr. 1908, at 308, 309, A T 294, 302 Mukerji, OUTH ONTHLY See also . ONALD S 43, 44–45 (1909), but most were laborers and farmers. and laborers most were but M Id See R MERICANS EST 256 A 257. 259. 256. 258.see For a basic description of Sikhism, 260. Saint Nihal Singh, W All the Hindoos who come to America have varying in hue who come to America have hair All the Hindoos raven- to purplish or an intense from brownish-black the dull, pale, of the Hindoo varies from black. . . . The hide of an African. a Mexican to the extreme black sallow-brown of Hindu- from the highlands of northwestern The man who hails coming from shade darker than olive. A few stan [India] is a Those who skins, light hair and blue eyes. Kashmir have fair and an ex- plains have darker complexions come from the low is appearance. . . . This type of countenance tremely sun-burnt to the land of as all the Hindoos who come distinctly Aryan, from the same branch of the Stars and Stripes are descended the human family as the Anglo-Saxons. VERLAND UT ISTORY OF SIAN were called “Hindoos.” were called though the majority of these early immigrants were Sikh, these early immigrants the majority of though 23–30. (last visited Oct. 31, 2013). pedia.org/w/index.php?title=Sikh&oldid=579216268 South Asian immigrants would portend their racial ambiguity and their racial ambiguity would portend immigrants South Asian of early racial ambiguity States. The in the United scapegoating in an essay is captured to the United States immigrants South Asian in 1909: by Saint Nihal Singh of the “handful of Indians” who came to the United States during the 1800s. of the “handful of Indians” who came to brought the first pioneer Hindu students to the schools of the Pacific Coast”). brought the first pioneer Hindu students activism of this early wave of students, Also, Professor Lal chronicles the radical or “mutiny”) Movement which advo- particularly in the Ghadr (“revolutionary” British rule. cated the independence of India from 14–15.he acknowledges that the “first significant presence of Indians Nevertheless, 1899–1900in the United States can be dated back to . . . .” Census reported 2050 Indians residing in the United States. Census reported 2050 Indians residing grants were street peddlers in and Oakland, while others worked in grants were street peddlers in San Francisco the silver mines of . ive.org/item/20111101-444 (“The Hindus and the Hindu Invasion is the latest ra- ive.org/item/20111101-444 (“The Hindus and the Hindu Invasion is the latest cial problem with which we of the West have to deal.”). 20110714-239. O O H A from India who were brought to the American colonies and intermarried and as- from India who were brought to the American changing their names and con- similated into the black American population, verting to Christianity. 2013] stu- were immigrants Indian Asian these early of coast. Some West dents, \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 47 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 68 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 68 35559-nys_69-1 35559-nys_69-1 Sheet No. 68 Side B 10/20/2014 11:50:05 , EXI- supra -M UNJABI MMIGRATION P I S . Professor Leo- ’ This set the This set ] 262 35, 36 (Sripati Chan- HOICES ISTORY OF ALIFORNIA C H : C THNIC RIEF SSIMILATION E HOICES A Accordingly, these immigrants Accordingly, C : A B AKING Part II.A2. 261 Punjabi Sikh-Mexican American Community M note 11. THNIC MERICA E , August 13, 2012, http://www.washingtonpost A supra DMISSION AND See supra U.S. Strategies of Asian Indian Immigration Restriction U.S. Strategies of Asian Indian Immigration AKING OST , A M 264 . P , NDIA TO A. U.S. Immigration Policy I: ASH I W note 265 and accompanying text. Thus, the Asiatic Exclusion Benjamin Gottlieb, , EONARD note 261. These examples also blur the distinction between for- note 261. These examples also blur the The Asiatic Exclusion League opposed all East and The Asiatic Exclusion League opposed ROM F L See The Yellow Peril and the Pacific Barred Zone The Yellow Peril and ISCRIMINATION 263 68 (2010) [hereinafter Harold S. Jacoby, D in See infra . The Chinese Exclusion Act of 1882 had already ended immigration AREN , CAN Id See See supra K MERICANS While they were ambiguous in appearance and racial charac- ambiguous in appearance and While they were The number of different characterizations in this one state- in this characterizations of different number The 264. 263. 262. 261. -A . The physical resemblance between Asian Indian and Mexican Americans—an-. The physical resemblance between Asian ROBLEMS OF terization, early Asian Indian immigrants were also racialized jointly Indian immigrants were also terization, early Asian 1907, the Japanese immigrants as “foreigners.” In with other Asian organization League, a San Francisco and Korean Exclusion the Asiatic Exclu- earlier, changed its name to founded two years “anticipated flood of immigration sion League in response to the from India.” stage for the legal racialization of South Asian Americans, another racialization of South Asian Americans, stage for the legal racial ambiguity. realm fraught with were categorized as ‘brown,’ ‘black,’ and ‘white.’ ‘black,’ and as ‘brown,’ were categorized nard also documents and describes marriages between Asian Indian immigrant nard also documents and describes marriages California during the early 20th century. men and Mexican American women in Id drasekhar ed., 1982). other facet of South Asian American racial ambiguity—mayother facet of South Asian American racial well have facilitated these linkages. League focused on Japanese, Korean, and Indian immigrants. On the surface, the League focused on Japanese, Korean, and Indian immigrants. On the surface, P Fading into History from China. South Asian immigration to the United States, and it was successful South Asian immigration to the in its lobbying efforts. .com/national/on-faith/punjabi-sikh-mexican-american-community-fading-into- (quoting history/2012/08/13/cc6b7b98-e26b-11e1-98e7-89d659f9c106_story.html chose Mexican women for a host of Professor Karen Leonard) (“Punjabi men at the time were thought to resemble other reasons: Physically, Mexican women also shared a rural way of life, cooked Punjabis . . . [and] [b]oth communities material culture.”). For other examples of similar types of food and had a similar and South Asian Americans, see the physical resemblance between Mexican note 18 and text accompanying mal and informal racialization. 1882–1917 ment illustrates how South Asian racial identification can be can identification racial Asian South how illustrates ment that racial Leonard notes Professor Karen by description. molded ascer- from Punjab, Asian immigrants of early South classification often in- licenses, when issuing marriage court clerks tained by color. such as skin volved criteria 124 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 48 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 68 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 68 35559-nys_69-1 35559-nys_69-1 Sheet No. 69 Side A 10/20/2014 11:50:05 ET , Y ART while 265 A P in , —a phenomenon J. 75 (1984). 271 note 255, at 18. defined by geographic note 255, at 17–18;Jacoby, The Pakhar Singh Murders: A Part IV.A. However, the origi- MERASIA The Immigration Act of The Immigration 269 note 275. Professor Song dis- A supra supra 267 , , supra , 11 See infra Indian exclusion was attained Indian 82 (Lavina Dhingra Shankar & Rajini 266 CRIT 125 note 155, at 305–06 (noting that “[t]he Karen Leonard, DESI supra MERICA A see also SIAN note 263, at 37. note 257, at 179–354 (describing experiences of Japa- A Pakhar Singh’s Argument with Asian America This Act ended South Asian immigration to the This Act ended supra supra 270 , . at 79–86; SIANS IN Id A AKAKI Jacoby, Min Song, T . Id See A History of United States Legislation See See A History of United States Legislation See created the “Pacific Barred Zone,” created the “Pacific OUTH : S 268 Immigration law thus constructed a notion of race based on thus constructed a notion of Immigration law The U.S. government employed various means to exclude dif- to exclude means various employed U.S. government The note 263, at 35, 36. 265. 58 (1882). Chinese Exclusion Act, ch. 126, 22 Stat. 266. 267. 270. 271. 268.Stat. 874 (1917). Immigration Act of 1917, ch. 29, 39 269. PART President Theodore Roosevelt utilized his executive influence to his executive influence utilized Theodore Roosevelt President immigration—the into curbing Japanese government coax the so- Agreement.” called “Gentlemen’s criteria to exclude immigrants from India, the East Indies, much of immigrants from India, the East criteria to exclude already excluded), Chinese immigrants were China (even though and Afghanistan. 1917 through the actions of an executive agency, the Bureau of Immigra- the Bureau of executive agency, the actions of an through for admission which considered petitions tion and Naturalization, were based Initial rejections of Asian Indians to the United States. also faced ex- health reasons; Muslim immigrants on physical and charges of polygamy. clusion based on Punjabi Response to California’s Alien Land Law United States for several decades. United States for Americans were South Asian and East Asian geographic criteria. “Yellow Peril” jointly racialized as part of the Srikanth eds., 1998) (“At the start of the twentieth century, there were many com- Srikanth eds., 1998) (“At the start of the and East Asians might think of them- pelling legal and linguistic reasons why South selves as a single race.”); Mukerji, Western coast, sees the spectre [sic] of American, especially the inhabitant of the another ‘yellow peril’” 20th cen- due to influx of Asian Indian immigrants in early 1924, the California Alien Land Law was tury). Professor Song also notes that in from “Hindus,” after first being passed in expanded to take away property rights 1920 to target Japanese farmers. Min Song, cusses this law in the context of the 1925 Pakhar Singh murder case in , where a Punjabi Sikh farmer shot and killed two white men who had exploited him. nese, Chinese, Korean, Indian, and Filipino immigrants to the United States in the nese, Chinese, Korean, Indian, and Filipino late 1800s and early 1900s.). ferent Asian groups. Congress had already enacted the Chinese Ex- Chinese the enacted had already Congress groups. Asian ferent immigrants, exclude Chinese Act of 1882 to clusion supra A grouping of early Asian Indian immigrants with Japanese and Koreans in the 1900s grouping of early Asian Indian immigrants resembles the current model minority myth. 2013] \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 49 15-OCT-14 10:41 nal “Yellow Peril” did not involve stereotypic high achievers, but rather low wage nal “Yellow Peril” did not involve stereotypic competition for working class whites. immigrant workers who presented economic See generally 35559-nys_69-1 Sheet No. 69 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 69 35559-nys_69-1 35559-nys_69-1 Sheet No. 69 Side B 10/20/2014 11:50:05 276 NDIAN OWARD I H SIAN San Francisco , 10 : A NDIA The difference I 274 Race, Nation, and Citizen- ASSAGE FROM , P Hemant Shah, ENSEN See M. J . note 31, at 87. OAN J 213 (1988) (noting how scholars in the second half 213 (1988) (noting how scholars in the supra , see also MERICA Part IV.A.1. OPEZ A 275 South Asian Americans Prior to 1922 South Asian Americans L B. Racial Prerequisite Cases Involving Part IV.A. and East Asians as “Mongolian.” and East This joint formal racialization of Asian and South and of Asian racialization joint formal This ORTH ANEY See infra 273 N 272 H at 84. 249 (1999); . Id. See infra See . This characterization played on negative sentiments promoted by the . This characterization played on negative OMM While the Immigration Acts of 1917 and 1924 ended South Acts of 1917 and 1924 While the Immigration 274. 275. the “Hindu Conspiracy”: an al- Also, Professor Hemant Shah describes 276. In 1946, the Luce-Celler Act created a small immigration quota of Asian 272. 273. C OF MMIGRANTS IN between South Asians and East Asians in terms of pseudoscientific East Asians in South Asians and between for formal racialization, significant also became racial classification Those South with definitions of “white.” as courts dealt precariously States before im- who were already in the United Asian immigrants racial ambigu- would soon encounter further migration restrictions ity under the law. Asian immigration to the United States for the next thirty years, to the United States for the next Asian immigration of the twentieth century reinterpreted “Hindu Conspiracy” in a more positive of the twentieth century reinterpreted light). Act Indians and permitted their naturalization; in 1965 the 1952 McCarran-Walter completely supplanted the 1790 Naturalization Law, removing all race restrictions to citizenship. leged insurrectionist plot to overthrow British rule in India. The plot supposedly leged insurrectionist plot to overthrow with Indian nationalists and some white involved German conspirators along were indicted for conspiracy and vio- Americans. In the United States, 105 people Conspiracy” trial that took place in lation of neutrality laws as part of the “Hindu case are beyond the scope of this article, 1917 and 1918. While the details of this Shah notes the racialization of the al- two points are of relevance: (1) Professor operatives were the central agents in leged crime in the media. Although German “Hindu Conspiracy” by the the scheme, the trial was dubbed the Chronicle anti-immigrant fervor of the time; and Asiatic Exclusion League and the general place just as the United States became di- (2) it is noteworthy that the trial took was not an explicit racial linkage be- rectly involved in World War I. While there sentiments towards the former likely tween Germans and Asian Indians, negative promoted marginalization of the latter. Asian Americans contradicted the pseudoscientific racial classifica- racial the pseudoscientific contradicted Asian Americans Indians as classified Asian which typically of the time, tion schemes “Caucasian” ship: Asian Indians and the Idea of Whiteness in the U.S. Press, 1906–1923ship: Asian Indians and the Idea of Whiteness J. I those South Asians who were already in the United States sought who were already in the United those South Asians this citizenship status are another citizenship. The legal battles over American racial ambiguity, as important chapter on South Asian 126 de- several stereotype minority the model portend would which NYU later. cades ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 50 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 69 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 69 35559-nys_69-1 35559-nys_69-1 Sheet No. 70 Side A 10/20/2014 11:50:05 In 278 The 280 As noted, South 281 However, it also noted 285 United States v. Balsara CRIT 127 DESI and While amendments to this restriction to While amendments note 31, at 1. Several court cases dealt with this Several court cases dealt with 277 282 supra Thus, the court used a standard of congres- Thus, the court used a standard , 284 OPEZ In re Balsara L 1. The Circuit Court for the Southern District of New The Circuit Court for the Southern ANEY H at 295. 283 . . . at 63. . at 89. . essentially making a claim to formal whiteness. essentially making Id Id Id Id Id. Id. See 279 In a series of “racial prerequisite” cases starting in 1878, U.S. prerequisite” cases starting In a series of “racial The first racial prerequisite case involving a South Asian was The first racial prerequisite case 279. 280. 281. 282. 283. 171 F. 294 (C.C.S.D.N.Y. 1909). 284. 285. 277. 103 (1790). Naturalization Act of 1790, ch. 3, 1 Stat. 278. courts employed four primary standards to determine who was and four primary standards to determine courts employed knowledge; (1) congressional intent; (2) common was not “white”: and (4) legal precedent. (3) scientific evidence; Asians presented a particular dilemma here, for unlike other Asian a particular dilemma here, for Asians presented to be “Caucasian,” authorities considered them immigrants, most group as European immigrants thus belonging to the same racial and white Americans. the need for a more authoritative pronouncement on the issue, and the need for a more authoritative dilemma. later granted citizenship rights to blacks and Native Americans, the and Native Americans, rights to blacks citizenship later granted to be 1952 and continued in law until remained racial restriction immigrants. for most non-European for citizenship the standard sional intent, admitting that its “interpretation is unscientific, and, sional intent, admitting that its “interpretation it may be, not always of easy application.” York deemed that Bhicaji Balsara, a Parsi rather than a Hindu, Sikh, York deemed that Bhicaji Balsara, they suggested that the Con- or Muslim, was probably not white; act intended the term to include gress which passed the original had contributed to the building only “those races whose emigrants of people which declared up on this continent of the community itself a new nation.” courts decided which groups did and did not fit under this defini- groups did and did not fit courts decided which who was eligible for citizenship. tion, thus determining re Balsara 2013] were “white.” Asians South whether upon centered essentially they the Naturali- was citizenship act addressing first Congressional The and naturalization restricted citizenship of 1790, which zation Law white persons.” to “free, Asian Americans citizenship, Asian and South To be eligible for were “white per- if challenged, that they had to demonstrate, sons,” \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 51 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 70 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 70 35559-nys_69-1 35559-nys_69-1 Sheet No. 70 Side B 10/20/2014 11:50:05 288 In re note 192, at Thus, both 289 supra 292 Fegley et al., See The District Court for the Eastern 294 The Second Circuit ruled that Balsara Circuit ruled The Second In re Mozumdar United States v. Dolla 287 3. 2. but not by any of the four prevailing standards. but not by any 290 286 Mozumdar stated in his petition, “I am a high-caste Mozumdar stated in his petition, at 116–17. The Fifth Circuit also noted that Dolla was the owner of The Fifth Circuit also noted that 293 This example also illustrates how value judgments entered into This example also illustrates how value at 695. . at 696. . The court’s reasoning here brings to mind the “blue vein” test that . The court’s reasoning here brings to Id. Id Id. Id Id. 291 The notion of caste, morphed by Western racial theories, also The notion of caste, morphed by In another 1910 case, the Fifth Circuit also ruled that Abba case, the Fifth Circuit also ruled In another 1910 The following year, in 1910, the Second Circuit Court of Ap- Circuit Court the Second year, in 1910, The following 286. 287.(2d Cir. 1910). United States v. Balsara, 180 F. 694 288. 289. 290. 177 F. 101, 102 (5th Cir. 1910). 291. 292. 177 F. at 102. 293. 207 F. 115 (E.D. Wash. 1913). 294. physical and social criteria played a role in the formal construction physical and social criteria played of whiteness. was indeed white, stating, “We think that the words [“free, white the words [“free, “We think that white, stating, was indeed race, as of the white include all persons refer to race and persons”] races . . . .” the black, red, yellow, or brown distinguished from Instead, the court cited Dolla’s light skin color, noting that the cited Dolla’s light skin color, Instead, the court sun exposure, “was which had been covered from “skin of his arm,” color of the veins to show very sufficiently transparent for the blue clearly.” Hindu of pure blood belonging to . . . the warrior or ruling Hindu of pure blood belonging always consider themselves to be caste . . . . The high caste Hindus members of the Aryan race.” a plot in a “white cemetery” in Savannah, Georgia. a plot in a “white cemetery” in played into the racial prerequisite cases, as illustrated with played into the racial prerequisite Mozumdar peals heard Balsara’s case. peals heard Dolla was white, 128 he because citizenship, attain could tentatively Balsara that it ruled NYU exceptional and character of high be a gentleman to “appears ANNUAL SURVEY OFintelligence.” AMERICAN LAW [Vol. 69:77 of congres- rendered a different interpretation Here, the court that Congress the 1790 naturalization law, stating sional intent in Africans and Native Americans. intended to exclude \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 52 15-OCT-14 10:41 courts’ reasoning. 286 (noting that for that for black social groups such as “the Blue Vein Society of 286 (noting that for that for black social groups such as “the Blue Vein Society Nashville . . . the lightness of one’s skin mainly determined membership.”). restricted membership in many elite black social clubs to light-skinned black Amer- restricted membership in many elite black icans during the 19th and early 20th centuries. 35559-nys_69-1 Sheet No. 70 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 70 35559-nys_69-1 35559-nys_69-1 Sheet No. 71 Side A 10/20/2014 11:50:05 and that , In re Sadar relied on 301 297 In re Thind , and Thus, caste could also Thus, caste In re Thind 295 and the Supreme Court ruled that 299 United States v. Thind 296 CRIT 129 300 , , In re Mohan Singh , DESI and the Aftermath C. Caucasian but Not White the District Court for the Eastern District of the District Court In re Mohan Singh 298 , . at 198 (noting that “the words ‘white person’ are synonymous with 260 U.S. 178 (1922). at 117. Ozawa v. United States at 500. Ozawa v. United States Id. Id. See See id In re Sadar Bhagwab Singh In re Sadar Bhagwab As these cases show, the lower federal courts used a variety of As these cases show, the lower federal reached the U.S. Supreme In 1922, a racial prerequisite case The next three rulings yielded contradictory positions. District yielded contradictory positions. The next three rulings 4. 295. 296. 257 F. 209 (S.D. Cal. 1919). 297. 268 F. 683 (D. Or. 1920). 298. 246 F. 496 (E.D. Pa. 1917). 299. 300. 301. [U]se of the substitute may lead us away from the right mean- [U]se of the substitute may lead immigrants reach this part ing. When long looked for Martian “a man from Mars” applies to of the earth, and in due course as white within the be naturalized, he may be recognized and admitted to citizenship; meaning of the act of Congress, but he may not be a Caucasian. legal precedent, and, in the case of the former, scientific evidence, and, in the case of the former, legal precedent, with Indians were white. However, to declare that Asian Bhagwab Singh play a role in formal racialization of early South Asian immigrants of early in formal racialization play a role States. to the United Takao Ozawa, a Japanese immigrant, was not white. The Court Takao Ozawa, a Japanese immigrant, with “Caucasian,” deemed that “white” was synonymous Pennsylvania cited congressional intent and common knowledge to congressional intent and common Pennsylvania cited that substituting was not white. Its position was rule that Singh “white” is problematic, noting: “Caucasian” for standards and modes of reasoning—sometimes bordering on the absurd—to Asian Americans resolve the racial ambiguity of South under the law. Court. In courts in both 2013] of racialization Mozumdar’s with agreed of Washington District her- his regarding testimony and his precedent on legal based caste, different between the of demarcation also noted a “line itage. It immi- caste Asian Indian that lower classes,” implying castes and for citizenship. not be eligible grants may \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 53 15-OCT-14 10:41 the words ‘a person of the Caucasian race’”). 35559-nys_69-1 Sheet No. 71 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 71 35559-nys_69-1 35559-nys_69-1 Sheet No. 71 Side B 10/20/2014 11:50:05 , 304 In The 306 303 Ozawa 305 would suggest that would Ozawa 302 Here, the Court contrasted “blond” 307 would be the determining case for South would be the determining case for . . . at 209. Id Id Id United States v. Thind The very next year, in 1923, the Supreme Court heard the case in 1923, the Supreme Court The very next year, The Supreme Court’s ruling in Court’s The Supreme 302. 303. 304. United States v. Thind, 261 U.S. 204 (1923). 305. Naturalization Act of 1790, ch. 3, 1 Stat. 103 (1790). 306. 261 U.S. at 206. 307. The determination that the words “white person” are synony- the words “white that The determination race” simpli- “a person of the Caucasian mous with the words dispose of it. although it does not entirely fies the problem, again in re- arisen and will no doubt arise Controversies have cases. The ef- classification of border line spect of the proper means a that the words “white person” fect of the conclusion . . . to establish a sharp line of demarcation Caucasian is not . . . . of more or less debatable ground but rather a zone spite of the Ozawa ruling just a few months earlier, the Court ruled spite of the Ozawa ruling just a few Although the Justices acknowl- that Asian Indians were not “white.” they applied a common edged that Asian Indians were “Caucasian,” Thind did not fit the common knowledge standard, arguing that stated: “It may be true that the usage of the term “white.” The Court Hindu have a common ancestor blond Scandinavian and the brown but the average man knows per- in the dim reaches of antiquity, and profound differences fectly well that there are unmistakable between them to-day . . . .” question posed in this case was: “Is a high caste Hindu of full Indian question posed in this case was: “Is India, a white person . . . ?” blood, born at Amritsar, Punjab, and “brown” to justify its pronouncements about common knowl- and “brown” to justify its pronouncements was synonymous with edge. It ruled that the term “Caucasian” and common understanding, “white” only as accorded by popular this standard—thusand that South Asians did not fit denying citi- zenship to Bhagat Singh Thind. the Justices did leave room for change, stating: for change, did leave room the Justices South Asians, who were classified as “Caucasian,” would thus be would classified as “Caucasian,” who were South Asians, in However, for citizenship. “white” and eligible considered Singh Thind. seeking U.S. citizenship: Bhagat of an Asian Indian Thind’s case was heard on appeal from the Oregon District court, heard on appeal from the Oregon Thind’s case was and thus eligible for naturaliza- which had ruled that he was “white” tion. 130 he Caucasian,” is not which of a race “clearly was Ozawa because NYUcitizenship. for not eligible was ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 1790 Naturalization Act. Asian racial classification under the \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 54 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 71 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 71 35559-nys_69-1 35559-nys_69-1 Sheet No. 72 Side A 10/20/2014 11:50:05 & HASE Thind After HITENESS ITIZENSHIP 311 W E. C C OURT OF THE AY R C 313 See ’s impact. Between INDUS FOR BOLITION OF UPREME A S H decision. Thind In constructing this com- In constructing , the Supreme Court cor- Court Supreme , the 309 Thind held that Afghanis were not white. Nevertheless, the Court af- the Court Nevertheless, OWARDS THE These included Akhay Kumar These included 308 , 278 U.S. 662 (1928); Wadia v. United LIGIBILITY OF Thind , T PINION OF THE represented a transition in the a transition represented 310 CRIT 131 E O vacated DESI Thind OEDIGER In re Feroz Din note 31, at 90. note 31, at 207–08. R GAINST THE supra supra AVID at 246 n.41. He gives the example of United States v. at 246 n.41. He gives the example of , , definitively ruled that South Asians were not definitively ruled that South Asians A D Id. OPEZ OPEZ each holding that Asian Indians were not “white,” each holding that Asian Indians L L XAMINATION OF THE ECIDING Thind 312 E D ANEY ANEY N United States v. Ali, 7 F.2d 728 (E.D. Mich. 1925); United States v. United States v. Ali, 7 F.2d 728 (E.D. Mich. H H , A . at 91 (citing . at 210. Id Id See See See TATES S , there were also four other racial prerequisite cases involving four other racial prerequisite cases , there were also ANDIT Asian Indians in the United States felt Asian Indians in Although Ironically, in its decision in in its decision in Ironically, 310. 308. 313. 311. (S.D. Cal. 1923). United States v. Mozumdar, 296 F. 173 312. 309. NITED Thind Asian Indians, mon understanding, the Court appealed not only to physical crite- the Court appealed not only mon understanding, series of symbolic with racial status, but also to a ria, linking color race, caste, and religion—alllinkages between played of which now of whiteness. into its legal definition Americans were at least sixty-five Asian Indian 1923 and 1927, U.S. citizenship. stripped of their firmed common racist sentiments disfavoring the naturalization of the naturalization disfavoring racist sentiments firmed common Additionally, South Asians. standard whiteness: the for defining primary standard Court’s understanding—based a “scientific” shifted from classification on and physical features—to on the understanding based a “common” supposed perceptions. average person’s Mozumdar, who had earlier been granted citizenship. Mozumdar, who S.G. P citing either legal precedent or common knowledge. citing either legal precedent or rectly noted that “the term ‘Aryan’ has to do with linguistic and not and with linguistic to do has term ‘Aryan’ that “the noted rectly physical characteristics.” at all with “white,” there was continued debate on the issue. In 1926, Ray E. “white,” there was continued debate a booklet examining the Chase and S.G. Pandit published decision, concluding that “[w]ith [a]ll [d]ue [d]eference to the Su- decision, concluding that “[w]ith [w]e [s]uggest [t]hat [i]ts preme Court of the United States, States v. Thind . . . [w]as [d]ecision in the [c]ase of United States, 101 F.2d 7 (2d Cir. 1939); Kharaiti Ram Samras v. United States, 125 F.2d 879 (9th Cir. 1942). Additionally, 27 F.2d 568 (N.D. Cal. 1928). U (1926). 182 (1994)). Professor Haney Lopez does note that “[t]o their credit, some courts 182 (1994)). Professor Haney Lopez does Americans of citizenship], usually on resisted these efforts [to strip Asian Indian jurisdictional grounds.” Gokhale, 26 F.2d 360 (2d Cir. 1928), 2013] \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 55 15-OCT-14 10:41 Sakharam Ganesh Pandit, 15 F.2d 285 (9th Cir. 1926) (dismissing challenge to Sakharam Ganesh Pandit, 15 F.2d 285 on claim preclusion grounds). Pan- citizenship that had been previously granted, the dit later co-authored a pamphlet criticizing 35559-nys_69-1 Sheet No. 72 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 72 35559-nys_69-1 35559-nys_69-1 Sheet No. 72 Side B 10/20/2014 11:50:05 2 in 508 QUAL- , those of E (1923) 316 RITANNICA B It is also quite TRUGGLE FOR 319 USA: S NCYCLOPAEDIA E 1. . at 14. 363, 363 (Huping Ling & Allan Id MMIGRANTS IN I note 310, at NCYCLOPEDIA —perhaps less local because there was NDIAN E N . . . .” (quoting 10 , I to illustrate that the framers of the Natu- framers that the to illustrate supra 318 , : A notes 255–64 and accompanying text. Thus, on the . ARMA Id V ANDIT ULTURE See supra Chase and Pandit quoted from the 1797 edition of edition the 1797 from quoted and Pandit Chase & P 314 . & C HASE , stating that “everybody who has gone to high school in who has gone to high school , stating that “everybody REMDATTA Vinay Harpalani, United States v. Bhagat Singh Thind Vinay Harpalani, United States v. Bhagat C P IST 317 at 13. Chase and Pandit also contended that “Hindus’ racial and phys- at 13. Chase and Pandit also contended . at 3 (“white . . . includes almost all the inhabitants of Europe; . at 3 (“white . . . includes almost all the Id. See See See Id ITY . H M They also stated that “[a]ny expert in biology and sociology expert in biology stated that “[a]ny They also (1995). Thind A In addition to their centrality in formal racialization, the racial In addition to their centrality in Ironically, Bhagat Singh Thind himself was granted citizenship Singh Thind himself was granted Ironically, Bhagat Additionally, in a congressional committee hearing in 1939, hearing in committee in a congressional Additionally, Encyclopedia Britannica Encyclopedia 315 316. 317. 319. The Asian Indian population was much larger on the west coast in the 318. 314. 315. 121 SIAN likely that material criteria played a role in decisions by local natu- criteria played a role in decisions likely that material South Asians may and that some light-skinned ralization examiners, test—thushave “passed” in the citizenship the impor- highlighting even when applying formal crite- tance of local racial microclimes, ria for racialization. the symbolic status values associ- prerequisite cases also illustrate Mazumdar contends that by mak- ated with race. Professor Sucheta Indian immigrants in the racial ing legal claims to whiteness, Asian common cause with other prerequisite cases failed to “mak[e] on grounds of race—suchAsians who were barred from citizenship (3d ed. 1797))). iological assimilability with other whites is an established fact of anthropology and iological assimilability with other whites the court . . . seems to be discussing not ethnology,” and that “[t]he opinion of cultural, but biological assimiliation[assumes that a high ] [sic] . . . [and] . . . degree of physical homogeneity is desirable.” animus against South Asians on the east coast. animus against east coast there was less economic competition between Asian Indian immigrant workers and other groups. Austin eds., 2010). Thind would go on to become a Sikh spiritual leader and au- Austin eds., 2010). Thind would go on thor of numerous books. early 20th century. the ralization Law intended the term “white” to include Asian Indi- to include Asian the term “white” Law intended ralization ans. the United States knows that Indian people are Caucasian peo- knows that Indian people are the United States of the white were at least technically known ple . . . and race . . . .” could have saved the court from falling into . . . error.” from falling saved the court could have Rep. William R. Poage (D-Tex.) criticized the Supreme Court’s rul- the Supreme Court’s criticized R. Poage (D-Tex.) Rep. William ing in chose not to where naturalization examiners in New York in 1936, challenge his application Asia on this side of . . . the Ganges A 132[e]rroneous.” NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 56 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 72 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 72 35559-nys_69-1 35559-nys_69-1 Sheet No. 73 Side A 10/20/2014 11:50:05 note 31, supra The Immi- , 326 OPEZ Professor Susan Professor L 322 note 255, at 22–23. ANEY H decision. This would not supra , note 88, at 69–82. Thind supra , CRIT 133 OLK F DESI note 31, at 51. Thus, Professor Koshy views the decision Thus, Professor ROWN supra B 324 323 note 14, at 30. note 14, at 30. , note 14, at 291–92 (citing which gradually reopened South Asian which gradually reopened D. “White by Law” Revisited?: OPEZ supra supra Designation as “black” would have also allowed have would as “black” Designation supra 325 L ARMA OF 320 decision became obsolete with the Immigration Act decision became obsolete with the K but no Asian Indian immigrants pursued this route this pursued immigrants Indian no Asian but at 291–92. ANEY HE Census Classification of South Asian Americans Census Classification of South Asian 321 H T Koshy, Thind See id. See See See see also A History of United States Legislation The After World War II, several political factors, including the Cold After World War II, several political It is quite possible that both racist sentiments and legal strategy that both racist sentiments and It is quite possible 324. 325. 326. Act of July 2, 1946, ch. 534, Pub. L. No. 79-483, 60 Stat. 416 (repealed 323. 322. Mazumdar, 321. 320. Mazumdar, gration Act of 1952 (McCarran-Walter Act) completely supplanted gration Act of 1952 (McCarran-Walter Koshy critiques Professor Mazumdar’s view, noting that the appel- noting that Mazumdar’s view, Professor Koshy critiques that the she contends open to them; the legal options lants used established by the of blackness was more tightly legal definition more legal formal claims to whiteness provided 1900s, and that ground for argument. at 51–52). to pursue legal whiteness as a strategic decision rather than a reflec- as a strategic decision rather to pursue legal whiteness tion of racist attitudes. citizenship, of 1946 (Luce-Celler Act), which created a small immigration quota of 1946 (Luce-Celler Act), which their naturalization. of Asian Indians and permitted immigration. 1952); to naturalization. Professor Mazumdar attributes this to racist atti- this to Mazumdar attributes Professor to naturalization. of on the amalgamation based Asian Indian immigrants, tudes of of Aryan supremacy. racial theories caste and War and the need to create better relations with Asian countries War and the need to create better in U.S. immigration and naturali- coalesced to bring about changes zation policies, change until after World War II, when ironically, South Asian change until after World War involving claims to formal Americans would face another dilemma racial status. played into South Asian immigrants’ claims to formal whiteness Asian immigrants’ claims to played into South reflect racial blackness. These choices further rather than formal of South also the ambivalent racial positioning ambiguity and time being, South racial landscape. For the Asians in the American rights under the States were denied citizenship Asians in the United racial construction rendered in the 2013] . . Ozawa.” as . \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 57 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 73 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 73 35559-nys_69-1 35559-nys_69-1 Sheet No. 73 Side B 10/20/2014 11:50:05 who 329 In the 1910 Racial Classifica- 331 It also created 75, 78 (1993) (dis- . 328 TUD S The category of “Hindu” see also A History of United States see also A History of United States ACIAL Sharon M. Lee, 332 & R note 88, at 69–82 how the (discussing See also THNIC supra E , , 16 OLK F ROWN note 105. B note 14 at 293–94. note 14, at 293–94. supra 330 supra supra note 255, at 24–26. note 255, at 23–24. ARMA OF K Fisher, The Immigration and Nationality Act of 1965 (Hart-Cel- of 1965 Act Nationality and Immigration The HE supra supra 327 , , See T With the breakdown of Jim Crow laws and immigration barri- of Jim Crow laws and immigration With the breakdown the Census classification of Professor Susan Koshy examines 332. Koshy, 331. Koshy, 329. 330. 328. Pub. L. No. 89-236, 79 Stat. 911 (1965); 327. Pub. L. No. 82-414, 66 Stat. 163 (1952); helped build America’s technological infrastructure in the wake of technological infrastructure helped build America’s the Cold War. and 1920 Censuses, the category of “other” on the Census form was and 1920 Censuses, the category the sub-categories of “Non-White designated for South Asians, with in 1920 intended for enumer- Asiatic/Hindu” in 1910 and “Hindu” ators and listed in Census publications. a preference system for immigration which favored highly-skilled, immigration which system for a preference and scientists, as engineers workers, such professional itself appeared on the 1930 and 1940 Census forms, reflecting the itself appeared on the 1930 and In 1950 and 1960, the Census Bu- formal racialization of religion. on the form, with sub- reau returned to the “other” designation Census publications only) of categories (for enumerators and cussing racial categories in each U.S. Census from 1890 to 1990). fact that Americans feared that the Soviet Union had become more technologi- fact that Americans feared that the Soviet of Sputnik I in 1957, led to immigra- cally advanced, particularly after the launch tion policies favoring scientists and engineers from Asian countries). tion in the U.S. Census: 1890–1990 ler Act) raised annual immigration visas to 29,000 per country (with 29,000 per country visas to raised annual immigration ler Act) and family nations), Eastern hemisphere of 170,000 for a ceiling quotas. independent of was allowed reunification ers, the changing racial structure of the United States prompted racial structure of the United ers, the changing material and sym- and contestation. While shifts in racial ideology stratification, of race, along with existing racial bolic dimensions legal white- racial hierarchy in America, continued to perpetuate for South became less prominent. Nevertheless, ness and otherness legal racialization—viaAsian Americans rather Census classification than court decisions—continued to be a salient issue, intersecting of racialization, but also with not only with other expressive modes of race. the structural and ideological dimensions from 1910 to 1990. South Asians in the United States Legislation Legislation 134to citi- restrictions all race removing Law, 1790 Naturalization the NYUzenship. ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 58 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 73 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 73 35559-nys_69-1 35559-nys_69-1 Sheet No. 74 Side A 10/20/2014 11:50:05 the deci- 336 ROBLEMS AND Thind U.S.A.: P , which just interpreted Overview and Recommenda- Thind but was unsure whether to seek CRIT 135 UBCONTINENT IN THE 338 S Here, formal whiteness was actually Here, formal whiteness DESI 335 NDIAN I note 105, at 279–81. The two separate issues—separate and the other racial prerequisite cases, and the other racial note 14, at 294. ROM THE . supra F Id Parts III.B–C. Thind supra Hekmat Elkhanialy & Ralph W. Nicholas, Hekmat Elkhanialy & Ralph W. Nicholas, Fisher, . Whereas the racial prerequisite cases involved formal Whereas the racial prerequisite 7 (Hekmat Elkhanialy & Ralph W. Nicholas, eds., 1976) (recom- Id See supra See See MMIGRANTS Why did this change occur? Professor Koshy contends that Professor Koshy this change occur? Why did I 337 333 334 in Following the 1970 Census, South Asian Americans again exer- Census, South Asian Americans Following the 1970 Representatives of the Chicago-based India League of America Representatives of the Chicago-based Then, after the post-1965 wave of immigration began, South began, wave of immigration the post-1965 Then, after 333. 335. Koshy, 336. 337. 334.Census Bureau and Office of Man- 261 U.S. 204 (1923). Of course, the 338. , ROSPECTS decisions were now whether to: (1) challenge their formal classifica- whether to: (1) challenge their decisions were now in the Census as and seek separate enumeration tion as “White” status, which Indian”; and (2) seek legal minority “Asian” or “Asian for the protections of civil would qualify South Asian Americans federal affirmative action pro- rights legislation and aspects of grams. used to deny certain rights to South Asian Americans. used to deny certain In a twist of irony over their own racialization. cised some agency with respect to claims to whiteness, South Asian Americans now had to consider claims to whiteness, South Asian the opposite—making formal claims to non-whiteness. Association of Indians in America (ILA) and the New York-based on the issue. ILA recom- (AIA), took slightly different positions mended separate enumeration, the designation of South Asian Americans as “White” prevented of South Asian Americans as the designation conferred by re- the protected minority status them from receiving legislation. cent civil rights Asians were suddenly designated as “White” on the 1970 Census on the 1970 as “White” suddenly designated Asians were as non- counted that they were specifically spite of the fact form, in of the 1923 and in spite the previous Census, white in sion. mending “that ‘Indic’ be added as an answer to the question on race in the 1980 in Census”). The authors also recommended “that the term ‘Asian’ not be used Census questions” because it would lead to confusion and undercounting of Asian Indian Americans. P the Naturalization Law of 1790. Nevertheless, the disparity in South Asian Ameri- the Naturalization Law of 1790. Nevertheless, of historical and political context can racial classification illustrates the importance of South Asian Americans plays out in in determining how the racial ambiguity particular situations. 2013] in and “Non-White/Hindu” in 1950 Indian” “Non-White/Asiatic 1960. \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 59 15-OCT-14 10:41 tions agement and Budget were not necessarily bound by agement and Budget were not necessarily enumeration and legal minority status—also illustrate different dimensions of for- mal racialization. 35559-nys_69-1 Sheet No. 74 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 74 35559-nys_69-1 35559-nys_69-1 Sheet No. 74 Side B 10/20/2014 11:50:05 AIA . and Id ROBLEMS 341 344 The 2010 340 345 U.S.A.: P note 331 (discussing ra- supra Lee, UBCONTINENT IN THE 342 S Part of the reason for this reluc- for this reason of the Part See also , http://www.census.gov/population/www/ 339 NDIAN I UREAU note 14, at 18. B ROM THE note 105, at 79–81. F supra ENSUS note 14, at 294. supra supra U.S. C 50 (Hekmat Elkhanialy & Ralph W. Nicholas, eds., 1976) (noting 50 (Hekmat Elkhanialy & Ralph W. Nicholas, MMIGRANTS , Fisher, I . . at 281. . (noting that “the question of whether [Asian Indian Americans] . (noting that “the question of whether See Id Major Differences in Subject-Matter Content Between the 1990 and 2000 Census Major Differences in Subject-Matter Content Id Cf AND The category changed slightly by including “Asian or Pacific The category changed slightly by ROSPECTS Eventually, South Asian Americans succeeded in their lobbying Asian Americans succeeded in Eventually, South Conversely, AIA supported both separate enumeration and enumeration both separate AIA supported Conversely, 341. 342. 345. 343. Visweswaran, 344. Koshy, 339. 340. 343 P to “Asian/Asian Indian” again in the 2000 Census. to “Asian/Asian Indian” again took this position for several reasons: (1) South Asian Americans South Asian reasons: (1) position for several took this this dis- Americans; (2) relative to white discrimination experience of economic become more prevalent in times crimination would admitted largely future South Asian immigrants, hardship; and (3) would have less ed- than occupational preferences, on family rather the immediate more economic hardship than ucation and endure immigrants. post-1965 professional Census form also listed “Asian Indian” along with other Asian Census form also listed “Asian tance was a sense of pride and the desire to promote feelings of self- feelings to promote the desire and of pride was a sense tance status. backlash to minority and avoid any sufficiency cen2000/90vs00/index.html (last visited June 30, 2014). The main difference be- cen2000/90vs00/index.html (last visited June 30, 2014). The main difference Is- tween the 1990 and 2000 Census questionnaires was that in the latter, “Pacific lander” was designated as a separate category from “Asian.” The “Asian” category had sub-groups including “Asian Indian” and also had an “Other Asian” write-in option. cial categories in each U.S. Census from 1890 to 1990). cial categories in each U.S. Census from Questionnaires that “additional legal protection against discrimination [to be gained from legal that “additional legal protection against a now incalculable backlash in em- minority status] . . . must be weighed against of informal social life”). Elkhanialy and ployers’ attitudes and the wider areas whether Asian Indian Americans could Nicholas also note that “[i]t is uncertain” minority” because as a group, they “obtain legal recognition . . . as a disadvantaged occupation, and income . . . .” are “so patently advantaged in education, Islander” in addition to “Asian Indian” in the 1990 Census, Islander” in addition to “Asian Indian” recognition of the minority status of South Asian Americans. status of South of the minority recognition separate enumera- were successful with respect to efforts. First, they Directive 15 of the In 1977, through Statistical tion in the Census. racial classifica- and Budget (OMB), their Office of Management for the 1980 Cen- from “White” to “Asian Indian” tion was changed sus. 136 group. for the status minority NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 60 15-OCT-14 10:41 would benefit from . . . classification as a minority . . . is far from settled”). would benefit from . . . classification as 35559-nys_69-1 Sheet No. 74 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 74 35559-nys_69-1 35559-nys_69-1 Sheet No. 75 Side A 10/20/2014 11:50:05 350 MERI- A (Nov. 1, OPULATION SIAN P , , A UTINY note 347. See M supra SPIRITU , , Professor Vijay EPIA S 349 E , E L SPIRITU EN E Y see also see also note 191 (noting that “[f]oreignness is These included set-aside pro- included set-aside These CRIT 137 348 IV. supra , DESI ), http://www.prb.org/Articles/2009/question- 346 —due only to perceptions of Asian not note 14, at 18; note 14, at 18–19. note 14, at 18; The Karma of Brown Folk ASIAN AMERICANS . 2009 351 PR supra supra supra Sepia Mutiny for Good Mental Health (A 125 (1992). INFORMAL RACIALIZATION OF SOUTH INFORMAL RACIALIZATION OF UREAU FROM MODEL MINORITY TO “MACACA”: FROM MODEL MINORITY TO They were able to establish historical discrimination in historical able to establish They were B CAN See Comparative Racialization See The 2010 Census Questionnaire: Seven Questions for Everyone See The 2010 Census Questionnaire: Seven Questions 347 ANETHNICITY Beginning in 1982, South Asian Americans gained legal minor- Asian Americans in 1982, South Beginning Americans racial ambiguity of South Asian Nevertheless, the While the specific informal manifestations have varied widely, While the specific informal manifestations notes 268–71 of the Immigration Act of 1917 and its impact. for a discussion 351. 349. Visweswaran, 350. Taz Ahmed, 347. Visweswaran, 348. Visweswaran, 346. P EFERENCE grams and discounted bids for public contracts. grams and discounted a crucial dimension of the American racialization”). 2006), http://sepiamutiny.com/blog/2006/11/01/sepia_mutiny_go/. supra Americans as “foreigners” but also because of their own ambiva- Americans as “foreigners” but also lence in identity. In among first generation Prashad discusses a “girmit consciousness” United States: the idea that their South Asian immigrants to the and that they live “in America” but “home” is their country of origin naire.aspx. The 2010 Census questionnaire disaggregated all Asian and Pacific Is- naire.aspx. The 2010 Census questionnaire with an “Other Asian” option to lander groups and listed each one separately, write in any group not listed. part because the 1917 Exclusion Act had prohibited immigration Act had the 1917 Exclusion part because Indian subcontinent. from the ity status and were included in federal affirmative action pro- affirmative action in federal and were included ity status grams. the 1990 Census, formal categorization. In continues to transcend Islander/Asian category of “Asian or Pacific in spite of the separate indicated percent of South Asian Americans Indian,” twenty-five as “Black.” as “White,” and five percent their racial identification informal racialization of South Asian Americans has commonly in- informal racialization of South Asian volved “foreignness” R Such diversity in formal racial identification sets the stage for an formal racial identification sets Such diversity in by which South plethora of racial identities even more complex are informally racialized. Asian Americans 2013] “Pakistani” listed which category Asian” had an “Other but groups, examples. of the as one \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 61 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 75 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 75 35559-nys_69-1 35559-nys_69-1 Sheet No. 75 Side B 10/20/2014 11:50:05 356 . 439, become EV Other . R 354 ASS M HE T , 1 However, South Asians 357 note 88, at 102. Prashad paraphrases note 14, at 18. supra note 14, at 6 (noting importance of consid- , supra note 172, at xii. OLK supra note 347, at 175 (arguing that “[p]an-Asian unity note 347, at 175 (arguing that “[p]an-Asian F Some Asian and South Asian American Some Asian and supra This attitude is due in part to socialization in part is due attitude This 353 , supra Model Minority Stereotype ROWN , 352 B PART A ET SPIRITU Part III.D. E A. Does It Feel to Be a Solution?”: “How , Y , ARMA OF Racialization of South Asian Americans and the Racialization of South K ART . . at 4. HE Id Id See supra See, e.g. A P T “South Asian Americans . . . [have] too many differences “South Asian Americans . . . [have] 355 1960). Professor Kamala Visweswaran discusses a similar notion—that1960). Professor Kamala Visweswaran of Current formal racial classification schemes often place South racial classification schemes often Current formal A Negro Student at Harvard at the End of the 19th Century A Negro Student at Harvard at the End of the as defined against, and in relation to, each other”). 356. 355. 357. 353. 354. 352. scholars have questioned South Asian Americans’ place in the scholars have questioned South Rajiv Shankar argues that while larger context of Asian America. has been “ratified by formal us- “Asian American” as a category age,” Asian Americans under the broader rubric of Asian Americans or under the broader rubric of Asian Asian Americans Asian/Pacific Islanders. in native countries, but it is also reinforced through various exper- various through also reinforced it is but countries, in native Asian of South The racial ambiguity immigration. iences after differ- emphasizing characterizations, allows for various Americans of informal racialization Additionally, of “foreignness.” ent aspects and its about blackness also tells a story Americans South Asian hierarchy. racial Americans, in American beyond black role, even to empha- or partly embraced this classification scholars have fully and attempt experiences of various Asian groups size the common between Asian American communities. to build coalitions 443 ( W.E.B. Du Bois here, who stated that he was “in Harvard but not of it.” W.E.B. Du W.E.B. Du Bois here, who stated that he Bois, is necessary if Asian Americans are to contest systems of racism and inequality in is necessary if Asian Americans are to contest American society”); Visweswaran, ering “the process of ‘Asianization[ ]’ . . . the ways in which Asian groups Asian and divergences [which] keep them ‘apart’ from the established and divergences [which] keep Asian American) identity.” Asian American (i.e., East/Southeast “flexible citizenship.” Visweswaran, Lavina Dhingra Shankar and Rajini Srikanth contend that Asian Lavina Dhingra Shankar and Rajini in the 1960s, as a response to American consciousness developed as “Oriental.” “Oriental” racial characterization of Asian immigrants eyes’ . . . [and] . . . ‘yellow skin,’”was typically “associated with ‘slant was a “defiant response” and “be- and the term “Asian American” came a term of political empowerment.” 138 “of America.” are not NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 62 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 75 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 75 35559-nys_69-1 35559-nys_69-1 Sheet No. 76 Side A 10/20/2014 11:50:05 , , . . M 361 AG LACK A SIANS 358 AKAKI M B A INORITY T SIAN IMES ERSPECTIVE -A , M OUTH EYOND P AN P B : S GBU , N.Y. T , PART ULTURAL MERICA A U. O -C A ET , Y OHN J ROSS Introduction: Closing the Gap? Introduction: Closing ACE IN ART C See : R A P in note 88, at 1–9. See History of PAACH , ELLOW Japanese American Style YSTEM IN CRIT 139 , Y S supra U , DESI OLK H. W F MERICAN A RANK ROWN HE B : T 360 ]. Shankar and Srikanth note that this exclusion was not an ]. Shankar and Srikanth note that this ASTE . at 23–24. 474–84; F 4 (Lavina Dhingra Shankar & Rajini Srikanth eds., 1998) [here- 4 (Lavina Dhingra Shankar & Rajini Srikanth Id C at 4–5. the perception that South Asians were not a Nevertheless, ARMA OF K Id. , http://www.vpul.upenn.edu/paach/about_history (last visited Nov. , http://www.vpul.upenn.edu/paach/about_history 39–77 on its application to South Asian Ameri- (2002). For background HE MERICA AND IN T OUSE A —augments all Asian racialization of informal the collective, Closing the Gap HITE The term “model minority” was first used by sociologist William minority” was first used by sociologist The term “model Nevertheless, the model minority stereotype—the the model Nevertheless, of Asian idea . H note 257, at 359 360. the structural and historical dif- The model minority stereotype ignores 359. stereotype generally, see For a description of the model minority 358. & Rajini Srikanth, Lavindra D. Shankar 361. William Petersen, Success Story, SIAN W [D]eveloped the phrase “model minority,” using the term phrase “model minority,” using [D]eveloped the the superior senses: first, as a way of praising “model” in two A MTY DUCATION AND Jan. 6, 1966, at 20. C ferences between different immigrant groups and between African Americans, Na- ferences between different immigrant groups America. tive Americans, and immigrants to inafter relatively few South Asians in America” “obvious or relevant issue . . . as there were in the 1960s. Americans, in spite of physical and cultural differences. South differences. physical and cultural in spite of Americans, as suc- are stereotyped Asian Americans, with other Asians, along cessful minorities—in and to African Americans, Latinos, contrast Native Americans. immigrants as successful and upwardly mobile due to cultural fac- due to cultural and upwardly mobile as successful immigrants tors Americans. to describe the success of Japanese Petersen in 1966, 5, 2013). PAACH was created through campus activism by Asian American stu- 5, 2013). PAACH was created through requested that the name include the dents, and South Asian students in particular would feel included. term “Pan-Asian” so that South Asians cans, see part of the larger Asian American rubric continued. In 2000, the Pan-Asian Ameri- part of the larger Asian American rubric center for Asian American students, can Community House, a cultural resource opened at the University of Pennsylvania. South Asians Challenge Asian American Studies South Asians Challenge supra E of minority groups: (1) autonomous (1978) (distinguishing between three types subordinated or overcame subordination minorities (groups who have not been ethnic groups); (2) immigrant (or “vol- through assimilation, such as many white to host country voluntarily, for social, untary”) minorities (groups who emigrated most Asian Americans); and (3) caste-like economic, or political reasons, such as came to host country as captives (Afri- (or “involuntary”) minorities (groups who Americans, Puerto Ricans, and some can Americans) or through conquest (Native or Mexican Americans)). Professor Ogbu argued that the latter groups (caste-like involuntary minorities) tend to be relegated to the most menial jobs and the lowest social positions. Professor Roger Daniels comments that Petersen: Professor Roger 2013] term in the implicit racial dimension “the because excluded were non-Mongoloids.” all excluded automatically American’ ‘Asian \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 63 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 76 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 76 35559-nys_69-1 35559-nys_69-1 Sheet No. 76 Side B 10/20/2014 11:50:05 365 . 121 NITED ISTORY CONOM- U DUC H includ- E Asian Ameri- 363 . J. E note 359. For M MERICAN ACE AND supra A , , R (Thomas Sowell ed., 103 A U . , Id APANESE IN THE J OWELL SIANS IN ROUPS S : A G 474–84; W note 88. HOMAS THNIC T HINESE AND E supra : C , AINSTREAMS Part III.A. However, the model minority 362 367 Part IV.A.1. In a sense, the model minority Professor Daniels also notes how Professor Daniels M OLK note 257, at F 364 MERICAN MERICA infra A A See supra supra , ROWN SIAN B note 362 (citing ARGINS AND (1988). ATA ON AKAKI . at 151. Professor Kao also notes that “South Asians seem . at 151. Professor Kao also notes that “South , A T , M Id D supra 318 , ARMA OF Part III.A and ANIELS , at K KIHIRO D see also ; ANIELS HE O 141–47 (1994). T SSAYS AND D 1850 ARY OGER ; E See See id. See supra G R See Professor Okihiro’s connection here is important, as both Professor Okihiro’s connection AND ICS INCE . Professor Kao concludes that “it is conceivable that parents [of Asian . Professor Kao concludes that “it is S 366 ULTURE The model minority stereotype is also linked to the idea of stereotype is also linked to The model minority The model minority stereotype soon became a popular notion stereotype soon became a popular The model minority 366. 365. 363. 367. 362. 364. C (1978) performance of Japanese Americans; and second, as a way of a way as and second, Americans; of Japanese performance the Japa- emulate should groups ethnic other that suggesting Peter- premise of The unstated major example. nese American was Horatio-Alger-bootstrap-raising was that sen’s argument as minorities such “non-achieving” for success by needed Lyn- programs of than the social Chicanos, rather blacks and “Great Society.” don Johnson’s TATES ing South Asian Americans. ing South Asian conservative theorists, most notably Thomas Sowell, adopted the most notably Thomas Sowell, conservative theorists, solely on their own minorities should rely idea that “non-achieving” intervention. rather than on government efforts to attain success, an empirical analysis of the model minority stereotype, see Grace Kao, an empirical analysis of the model minority Academic Performance cans as Model Minorities? A Look at Their 1978)). (1995) the “Yellow Peril” and the model minority are linked to U.S. immi- the “Yellow Peril” and the model gration policy in important ways. did not create any formal legal designation that classified these groups together. While the occupational skills preferences of the Immigration Act of 1965 mainly impacted Asian immigration, they applied to all groups, and educated immigrants the from all countries could benefit from them. Thus, this Article conceives of to explain the success of various Asian immigrant groups, of various Asian immigrant to explain the success Asian presence Gary Okihiro discusses how “foreignness.” Professor peril” (emphasiz- has been viewed as a “yellow in the United States competition) and racialization and economic ing material/physical threats to white privilege and a “peril of the mind” (emphasizing and occupational suc- supremacy by Asian American educational cess). is a creation of the state, similar to the Pacific Barred Zone, which jointly racialized is a creation of the state, similar to the Pacific various Asian American groups. Americans] encourage their children to overachieve to offset the effects of per- Americans] encourage their children to ceived discrimination.” S however, she also contends her results to be especially well equipped to succeed”; by demonstrating that Asians are not uni- “challenge the model minority image . . . .” formly advantaged educationally and economically 140 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 64 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 76 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 76 35559-nys_69-1 35559-nys_69-1 Sheet No. 77 Side A 10/20/2014 11:50:05 374 Part II.B. Tayyab Mahmud, This question will see also see also supra 370 7 (Brent Hayes Edwards ed., OLK note 208; note 88, at viii. F note 88, at 4; The 1965 Immigration Act in- supra CRIT 141 LACK supra , supra 373 , B , DESI OLK OLK F F OULS OF note 159. S 657, 679 (2001). . 371 ROWN ROWN EV B notes 359–64. B supra notes 329–30 and accompanying text. . L. R Professor Vijay Prashad asks about South Asian Professor Vijay supra , ARMA OF ARMA OF ENV 369 the analysis here will focus on its role in the racializa- in the on its role focus here will analysis the D K K D’Souza, Conversely, Professor Vijay Prashad discusses how the Conversely, Professor Vijay Prashad HE HE 368 See See From Bi-Racial to Tri-Racial See supra T T See, e.g. , 78 372 Conservative South Asian analysts such as Dinesh D’Souza em- Asian analysts such as Dinesh Conservative South While there is an extensive scholarly literature on the model on the literature scholarly is an extensive there While 372. 370. 373. 371. 374. 369. W.E.B. Du Bois, 368. 1. II: State Selection and the Model Minority U.S. Immigration Policy be the focus of Parts IV.A and IV.B, which highlight the interplay Parts IV.A and IV.B, which highlight be the focus of policy, minority stereotype, U.S. immigration between the model by Professor of “Honorary White” status discussed and the notion Eduardo Bonilla-Silva. cluded occupational skills preferences for scientists, engineers, and cluded occupational skills preferences all in an effort to boost U.S. other technically-trained professionals, in the wake of the Cold War. scientific and technological capacity 2007). Genealogy of a State-Engineered “Model Minority”: “Not Quite/Not White” South Asian Americans Americans, “How does it feel to be a solution?” Americans, “How tion of South Asian Americans. The model minority stereotype is minority stereotype The model Asian Americans. tion of South Ameri- of South Asian the racial ambiguity in elucidating important to other relationship illustrating their particularly in cans, and W.E.B. Du Drawing upon hierarchy. in America’s racial groups to be a “How does it feel Americans, about African Bois’s question problem[?]” model minority myth was created as “the result of state selection model minority myth was created the special-skills provisions in the whereby the U.S. state, through reconfigured the demogra- 1965 Immigration Act, fundamentally phy of South Asian America.” minority, and also the model minority stereotype braced and perpetuated with African Americans employed it to contrast Asian Americans are responsible for their lack of and Latinos, arguing that the latter success. Thus, many immediate post-1965 South Asian immigrants came to Thus, many immediate post-1965 that African Americans and this country with educational capital of these educated South Asian Latinos generally lacked. Also, most fluent English, which is an offi- immigrants had the ability to speak immediate post-1965 South Asian cial language in India. Thus, the it was created in part through govern- model minority as informal racialization; government racial classification. ment action, but it does not directly reflect 2013] \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 65 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 77 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 77 35559-nys_69-1 35559-nys_69-1 Sheet No. 77 Side B 10/20/2014 11:50:05 While PARTHEID 375 A and the Health MERICAN 377 both required im- , A 378 placed more stringent ENTON 380 D note 88, at 77–78. note 88, at 78. ANCY supra supra , , & N OLK OLK F F ASSEY and through the 1980s and 1990s, the and through the 1980s and 1990s, M ROWN ROWN 381 B B Most skilled professionals from South Asia, Most skilled professionals from OUGLAS notes 93–95educational and economic success of a (noting D 382 ARMA OF ARMA OF K K 383 HE HE T T The Immigration Act of 1990 . . at 80–81. See Id Id See generally See also supra See 379 376 However, the status of South Asian Americans as honorary of South Asian Americans However, the status 380. Pub. L. No. 101-649, 104 Stat 4978 (1990). 381. 382. 383. 375. 376. 377. of 1976, Pub. L. No. 94- Immigration and Nationality Act Amendments 378. Pub. L. No. 94-484, 90 Stat 2243 (1976). 379. they experienced various forms of discrimination, the immediate the forms of discrimination, various they experienced and mo- for success structurally situated immigrants were post-1965 was aug- whiteness, which to honorary had quick access bility. They of minority” stereotype growing “model because of the mented Asian immigrants Immediate post-1965 South Asian Americans. assimilate rela- able to socially and economically have thus been even while predominantly white communities, tively quickly into The benefits that distinct cultural identities. many of them maintain as “Whites” been gained by formal classification once would have as honorary largely through symbolic status were now accrued whites. Professions Educational Assistance Act of 1976 Professions Educational Assistance migrants to secure employment in the United States before immi- migrants to secure employment grating. demands on employers, number of South Asian immigrants entering via the occupational number of South Asian immigrants and became “almost negligible” skills preference steadily decreased by the mid-1990s. such as computer programmers, now come to the United States on such as computer programmers, wages, lacking benefits, and temporary H1-B visas, earning modest their employers no longer desire leaving after a few years when their services. whites is in flux—contingent upon both the material and symbolic and historical they possess, and the local political racial attributes occupational skills gradually tightened the circumstances. Congress Act; for example, the Immi- preferences of the 1965 Immigration of 1976 gration and Nationality Act Amendments (1993). 142 enclave transient the more through not go often did immigrants NYU residen- the long-term less much groups, immigrant of many status ANNUAL SURVEY OF communities. black and Latino of many tial segregation AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 66 15-OCT-14 10:41 large percentage of South Asian Americans) and notes 97–98large percentage of South Asian Americans) (noting occupational Asian Americans) and accompanying text. success of a large percentage of South 571, 90 Stat. 2703 (1976). 35559-nys_69-1 Sheet No. 77 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 77 35559-nys_69-1 35559-nys_69-1 Sheet No. 78 Side A 10/20/2014 11:50:05 note 88, at supra , OLK F ROWN B Her study found that even To an extent, these newer To an extent, 388 386 ARMA OF CRIT 143 K HE T DESI See Asian Indian Americans in the Bay Area and the Glass Because the Asian Indians in the sample Because the Asian Indians in the 389 note 105, at 273, for a listing of all of the family and note 105, at 273, for a listing of all of note 17. 1, 119 (1998) (using 1990 U.S. census data for employment supra . supra Part I.B.2 (noting educational, economic, occupational, and Part I.B.2 (noting educational, economic, notes 101–03 text (noting working class oc- and accompanying ERSP 2. the Glass Ceiling Underemployment and and lack the economic and educational advantages of and educational the economic and lack . P Dutta, OC . at 142. 385 S Many recent South Asian immigrants fill working class oc- immigrants fill South Asian Many recent This “glass ceiling” effect—an barrier to invisible See supra See supra See Id 384 387 , 41 South Asian immigrants face discrimination in employment, face discrimination in South Asian immigrants Nevertheless, immigration from South Asian countries contin- countries Asian South from immigration Nevertheless, 385. 386. 387. 388. Marilyn Fernandez, 389. 384. See Fisher, when controlling for several factors, U.S.-born Asian Indians were when controlling for several factors, positions (and receive corre- less likely to advance to management white Americans of similar edu- sponding increases in salary) than cational backgrounds. immigrants have been able to capitalize instead on the larger com- instead on the larger to capitalize have been able immigrants economic net- and draw on ethnic, social, and munity’s success for example, in form of social capital; works as an alternative Asian Ameri- businesses. However, South forming and maintaining are hidden by the face challenges that cans of all class backgrounds myth. “model minority” 78–79 numbers from India and Pakistan by preference provi- (listing immigration sion for 1994, 1995, and 1996). cupational niches for South Asian Americans). Americans). language challenges faced by South Asian Ceiling were born in the United States, this glass ceiling effect more likely were born in the United States, language or national origin, al- reflects racial discrimination than the immediate post-1965 immigrants. post-1965 the immediate cupations and earnings in the San Francisco Bay Area to examine the glass ceiling effect on and earnings in the San Francisco Bay Area to examine the glass ceiling effect Asian Indian employment). professional upward mobility—has documented quantita- also been tively by Professor Marilyn Fernandez. ues to expand overall mainly due to the family preferences of the preferences the family due to mainly overall to expand ues prefer- occupational skills than the Act rather 1965 Immigration ences. issue has been unemployment, the more prevalent but rather than underemployment—accepting over- positions for which they are little opportunity for advance- qualified and underpaid, with ment. occupational preferences of the 1965 Immigration Act. Professor Prashad illus- occupational preferences of the 1965 immigrants entering the United States trates that the percentage of South Asian was much greater than those enter- based on family preferences in the mid-1990s ing on employment preferences. 2013] \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 67 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 78 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 78 35559-nys_69-1 35559-nys_69-1 Sheet No. 78 Side B 10/20/2014 11:50:05 SIAN A (June , EEK W Many others SIAN 109–39 (1998). A 391 , The Retreat from ACE R ROM F note 154, at 48. ETREAT Part I: The End of Asian Quotas R supra , HE 395 390 , T AKAGI Arthur Hu, Y. T Takagi observes that “[t]o many whites, Asian Takagi observes that “[t]o many People of Color Coalitions All of which can form the basis for ascription All of which can see also ANA 393 392 D Part II: Affirmative Action after Asian Quotas 3. Minorities, South Asian Politics, and Model . at 59. . at 115–16; . at 142–43. . at 119. Professor Takagi further discusses how conservatives co- Professor Takagi further discusses Id Id Id Id See generally Racial and Ethnic Self-Designation 394 The role of race is also salient in perceptions of discrimination. The role of race Over the past several decades, the “model minority” stereotype Over the past several decades, the Professor Fernandez interviewed professional Asian Indians in Asian Indians professional Fernandez interviewed Professor (June 2, 1989); , Professor Dana Takagi notes how the idea of “model minor- , Professor Dana Takagi notes how 394. 395. 390. 391. 393. 392. EEK who were interviewed expressed similar sentiments. who were interviewed as the factor that Asians reported skin color In one survey, South Other the most frequent basis for discrimination. they perceived as birth, accent, and factors included foreign commonly reported choice of clothing. 23, 1989). American achievement sounded an encouraging note . . . American achievement sounded the ‘white establishment,’ some [a]ngered by black criticism of achievement as evidence that ra- whites pointed to Asian American in America, if only they would cial minorities could get ahead ‘try.’” and informal racialization. opted the “model minority” stereotype, along with claims of dis- opted the “model minority” stereotype, in college admissions, to at- crimination against Asian Americans tack affirmative action policies. the Bay Area to gain a sense of their perception and understanding of their perception Area to gain a sense the Bay one of her interviewees, As stated by advancement. of professional hard you work extremely into a company, are brought “When you a com- years of entering But, within five it in the company. to make the other hand, move up a notch or two. On pany, an Asian may would move up five notches.” your white colleagues one of the most contentious issues has also shaped the discourse on debate over race-conscious admis- in American racial politics: the In her book, sions policies in higher education. Race of race-conscious affirma- ity” provided a rejoinder to proponents tive action policies. W 144 could factors other that acknowledged Fernandez Professor though NYUthe phenomenon. explain also ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 68 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 78 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 78 35559-nys_69-1 35559-nys_69-1 Sheet No. 79 Side A 10/20/2014 11:50:05 403 402 see also and that 399 1–3 (1995). the ambiguity 396 HITE , W The groups argued One could argue that One could argue 397 because race is used as because race is these Indian American ECAME 400 398 B 401 RISH Supreme Court Watch: Fisher v. UT Aus- I , CRIT 145 OW THE OGETHER DESI , H T (June 27, 2013), http://saalt.org/supreme-court- Fisher v. University of Texas Fisher v. which supported race-conscious policies. which supported race-conscious EADING Indian-Americans Help Make a Case Against Affirmative Ac- Indian-Americans Help Make a Case Against GNATIEV L I note 397, at 3. Fisher OEL note 402, at 16–17. supra (June 20, 2013, 3:28 PM), http://webcache.googleusercontent N , MERICANS NY Brief of Amici Curiae Members of Asian American Center for Ad- Brief of Amici Curiae Members of Asian supra A at 4. See Id. Id. See, e.g. SIAN A OICES OF Conversely, several South Asian organizations signed on to an Conversely, several South Asian The role of Asian Americans in affirmative action continues to continues action in affirmative Asian Americans role of The V 402. 403. Brief of Amici Curiae Members of Asian American Center for Advancing 399. 400. 401. 398.Brandeis Center for Human Rights Brief Amicus Curiae of the Louis D. 396. 133 S. Ct. 2411 (2013). 397. Brandeis Center for Human Rights Brief Amicus Curiae of the Louis D. , OUTH S modern initiatives to promote diversity through race-conscious ad- to promote diversity through modern initiatives policies are no different than past discriminatory missions policies from many universities. that excluded Jews inherent in South Asian American racial identity politics became a identity politics American racial in South Asian inherent American Three Indian action debate. the affirmative part of groups—the Education for Political American Forum Indian (NFIA), Federation of Indian Associations (IAFPE), the National Origin (GO- Organization of People of Indian and the Global POI)—joined opposing race-conscious admissions an amicus brief of Texas at Austin. policies at the University that “Asian Americans are the new Jews,” that “Asian Americans similar to Jews and other white ethnics, similar to Jews and organizations seek to gain honorary white status for South Asian to gain honorary white status organizations seek Americans. amicus brief in a “minus factor” against them in college admissions, a “minus factor” vancing Justice, et al. at 1–24, Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (listing South Asian organizations); (2013) (No. 11-345), 2012 WL 3418826 tin and the South Asian Community watch-fisher-v-ut-austin-and-the-south-asian-community/. Justice, et al., be a charged issue—one charged be a Asian South implicated recently that has Supreme when the U.S. In 2012, identity and ambiguity. American the case of Court heard .com/search?q=cache:si4NrmIUpCYJ:www.voicesofny.org/2012/06/indian-ameri cans-help-make-a-case-against-affirmative-action/. under Law, et al., under Law, et al., Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (2013) (No. 11- under Law, et al., Fisher v. Univ. of Tex. 345), 2012 WL 1961252; tion This brief argued that Asian Americans continue to face racial dis- This brief argued that Asian Americans These included South Asian Americans Leading Together These included South Asian (SAN), and the South Asian (SAALT), the South Asian Network and southern California. Bar Association chapters from northern 2013] \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 69 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 79 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 79 35559-nys_69-1 35559-nys_69-1 Sheet No. 79 Side B 10/20/2014 11:50:05 409 supra , OLK F According to ROWN 405 B 463, 483 n.71 (2012) . L. ARMA OF K ONST HE Professor Kurien further as- Professor Kurien T 406 . J. C See A U. P Diversity Within Racial Groups and the Constitution- 404 , 15 at 267–69. Id. 408 note 70, at 262–63. Kurien classifies SAN and SAALT as note 70, at 265. Additionally, Professor Vijay Prashad dis- supra supra Vinay Harpalani, at 4–5. may extend Professor Kurien’s analysis by another step; may extend Professor Kurien’s . at 264. . at 277. 407 Id. Id Id See also The positions of various Indian and South Asian organizations The positions of various Indian and notes that “[m]embers of Additionally, Professor Kurien With respect to South Asian American identity, it is interesting American identity, to South Asian With respect 409. Kurien, 404. 405. Kurien, 406. 407. 408. Fisher Groups that are lumped together, such as “blacks,” “Asians,” lumped together, such as “blacks,” Groups that are have developed ethnic soli- “Native Americans,” and “Latinos,” ascribed category and by re- darity by voluntarily adopting the groups to create a interpreting the history of individual . [t]his is the same logic that common heritage . . . [and] . . Asian groups in the United explains the formation of South States. Professor Kurien, “[m]embers of South Asian organizations charac- “[m]embers of South Asian organizations Professor Kurien, use the term, ‘left- as . . . progressive (some also terize themselves with a primary oriented towards social change, ist.’), inclusive, and American issues.” focus on domestic serts that note 88, at 133–56. Parishad, an organ- This movement includes the Vishwa Hindu ization which promotes Hindu solidarity around the world, and the Bharatiya (describing people of color coalitions on college campuses). (describing people of color coalitions on cusses the presence of Hindutva, an ideological movement that promotes Hindu cultural nationalism, in the United States. the same forces which serve to unify all South Asian groups and the same forces which serve to in building coalitions with may also signify a progressive outlook other people of color. on that it is disadvantageous for Hindu, or Indic, groups . . . maintain other countries in South Asia.” India to be lumped together with to note that the three organizations which signed on to the anti- signed on to which that the three organizations to note while “Indian” identity, all emphasized action brief affirmative the policies preferred race-conscious supported those which Prema Kurien dis- Asian” designation. Professor broader “South American political between two types of Indian cusses the divide Asian identity, and which focus on a pan-South organizations: those on a Hindu (or “Indic”) identity. those which focus South Asian organizations. 146 to which help policies, race-conscious from and benefit crimination NYU between interactions by facilitating racial stereotypes down break ANNUAL SURVEY OF of diverse groups. students AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 70 15-OCT-14 10:41 ality of Race-Conscious Admissions 35559-nys_69-1 Sheet No. 79 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 79 35559-nys_69-1 35559-nys_69-1 Sheet No. 80 Side A 10/20/2014 11:50:05 , fifty ARMA OF 410 Bharatiya K HE T Rashtriya Swayamsevak Vishva Hindu Parishad , http://en.wikipedia.org/w/index Public Opinion of a Growing Electorate: , Nat’l Asian Am. Survey 30 (Oct. 8, CRIT 147 IKIPEDIA 2012 W , DESI of Honorary Whiteness , http://en.wikipedia.org/w/index.php?title=Bharatiya_Ja note 88, at 144. see also Bajrang Dal , http://en.wikipedia.org/w/index.php?title=Rashtriya_Swayamse IKIPEDIA supra B. Coloring Conservatism: Claims and Negations , W , . at 134; , http://en.wikipedia.org/w/index.php?title=Vishva_Hindu_Parishad& OLK IKIPEDIA Id F W , Beyond the affirmative action debate, conservative South Asian Beyond the affirmative action debate, The choices that South Asian American organizations make on make American organizations that South Asian The choices 410. Karthik Ramakrishnan & Taeku Lee, IKIPEDIA ROWN percent of Asian Indians identified as “Democrat,” while only three percent of Asian Indians identified and forty-seven percent identi- percent identified as “Republican,” W .php?title=Bajrang_Dal&oldid=576392288 (last visited Nov. 6, 2013); .php?title=Bajrang_Dal&oldid=576392288 Janata Party 2012), http://www.naasurvey.com/resources/Home/NAAS12-sep25-election.pdf. nata_Party&oldid=580076773 (last visited Nov. 6, 2013); nata_Party&oldid=580076773 (last visited Sangh vak_Sangh&oldid=579740939 (last visited Nov. 6, 2013); vak_Sangh&oldid=579740939 (last visited Asian Americans and Pacific Islanders in oldid=577949870 (last visited Nov. 6, 2013). Additionally, Professor Prashad con- oldid=577949870 (last visited Nov. 6, 2013). chapters at many universities promote a tends that Hindu Students Council (HSC) functioning as “‘cultural’more gentle version of the same ideology, organizations” in “multicultural space[s] opened up in the liberal academy.” American political inclinations have become much more visible, in American political inclinations have Americans identify primarily with spite of the fact that South Asian national representative survey of the Democratic Party. In a 2012 386 Asian Indians), 3042 Asian Americans (which included B Janata Party (BJP), which held control of the Indian parliament from 1996 to 2004, Janata Party (BJP), which held control of ideological Hindu nationalist organization the Rashtritya Swayamsevak Sangh, an Prashad describes as a “violent ‘street in India, and Bajrang Dal, which Professor gang.’” 2013] Indic identity or on a Hindu focused organizations perhaps Again, Ameri- African with coalitions forming in the value do not see also to oppose race-conscious and thus are apt Latino groups can and policies. groups coalitions these action, and the affirmative issues like informal for their broader implications build will all have choose to and coalitions types of racial identifications racialization. These American racial manifestation of South Asian constitute yet another and organiza- South Asian American individuals ambiguity. Some “people of color” their agency to create broad tions may exercise status. The chal- others may claim honorary white coalitions, while cultural, and his- are to overcome vast social, lenges for the former also will face among various groups. The latter torical differences white status next Section illustrates that honorary challenges, as the claimed, but it can also be negated. can not only be \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 71 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 80 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 80 35559-nys_69-1 35559-nys_69-1 Sheet No. 80 Side B 10/20/2014 11:50:05 , , . at Id Swati IKIPEDIA IKIPEDIA , Nov. 15, W W 420 , including , , http://msa OST . Additionally, Manuel Valdes, 415 P Id Saqib Ali (all , http://msa.mary See 418 ELEGATES , http://msa.maryland D UFFINGTON , http://en.wikipedia.org/ ELEGATES H Nimi McConigley , D Additionally, most South Additionally, most ELEGATES Over ninety percent of percent ninety Over (Oct. 25, 2013, 3:37 PM), http:/ OUSE OF D 414 IKIPEDIA 411 H W EDIA Sam Arora, , OUSE OF M 417 H OUSE OF and two of the three Asian Indian of the three Asian and two ARYLAND H UBLIC 413 P M , ARYLAND ARYLAND , M YOMING Asian Indians had similar views of Democrats had similar Asian Indians M W , http://www.arunamiller.com/ (last visited Nov. 6, 2013). http://www.arunamiller.com/ (last visited , , Upendra J. Chivukula (New Jersey), Upendra J. Chivukula Aruna Miller, 412 see also Kshama Sawant 419 416 ILLER M List of Asian Pacific Americans in the List of Asian Pacific Americans in the United at 8. . at 11–12. RUNA “Cowboys and East Indians” Author Nina McConigley Shares About Her Own “Cowboys and East Indians” Author Nina Delegate Saqib Ali Delegate Kumar P. Barve Delegate Sam Arora A Id. Id 415. the first Indian-born person to Nimi McConigley, for example, became 417. 419. 416. 418. 411. 412. 413. Democrats in of Asian Indians had a favorable view of Sixty-six percent 414. See . Kumar P. Barve, from ), Asian American state legislators have been Democrats, Asian American Asian Indians reported voting for President Barack Obama in 2008, in Obama Barack for President voting reported Indians Asian in 2012 rating of Obama had a favorable percent and eighty-eight candi- for Republican percent favorability to thirty (as compared Romney). date Mitt http://en.wikipedia.org/w/index.php?title=Nemi_McConigley&oldid=517698183 Kshama Sawant, a socialist, surprised many (last visited July 1, 2014). Also, in 2013, Seattle City Council. observers when she was elected to the City Council Socialist Kshama Sawant Elected to Seattle http://en.wikipedia.org/w/index.php?title=List_of_Asian_Pacific_Americans_in_ (last visited Nov. 6, 2013). Rep. the_United_States_Congress&oldid=564402821 from 2004 to 2007, is the only mem- Bobby Jindal (R-La.), who served in Congress served as a Republican. ber of Congress of Indian descent who Americans elected to Congress have been Democrats: Rep. Dilip Democrats: have been elected to Congress Americans and Rep. Ami who served from 1957 to 1963, Singh Saund (D-Cal.), was elected in 2012. Bera (D-Cal.), who 2013, http://www.huffingtonpost.com/2013/11/16/socialist-kshama-sawant-seat- tle_n_4287516.html; Rep. Tulsi Gabbard (D-Haw.), a Democrat, is the first Hindu member of Congress. Rep. Tulsi Gabbard (D-Haw.), a Democrat, Id in 1994. Rebecca Martinez & Nina Mc- serve in the Wyoming state legislature Conigley, Life as an Indian American .maryland.gov/msa/mdmanual/06hse/html/msa12183.html (last visited Nov. 6, .maryland.gov/msa/mdmanual/06hse/html/msa12183.html of the Maryland House of Delegates, 2013). Barve is currently the Majority Leader a position he has held since 2003. land.gov/msa/mdmanual/06hse/html/msa15451.html (last visited Nov. 6, 2013). .gov/msa/mdmanual/06hse/former/html/msa14612.html (last visited Nov. 6, .gov/msa/mdmanual/06hse/former/html/msa14612.html (last visited Nov. 2013). w/index.php?title=Kshama_Sawant&oldid=615167846 (last visited July 1, 2014). w/index.php?title=Kshama_Sawant&oldid=615167846 and Republicans in Congress, and Republicans /wyomingpublicmedia.org/post/cowboys-and-east-indians-author-nina-mc- conigley-shares-about-her-own-life-indian-american; 148as “Independent/Non-Partisan.” fied NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 72 15-OCT-14 10:41 Congress, while only twenty-five percent had a favorable view of Republicans. twenty-five percent had a favorable view Congress, while only 12. 35559-nys_69-1 Sheet No. 80 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 80 35559-nys_69-1 35559-nys_69-1 Sheet No. 81 Side A 10/20/2014 11:50:05 , http:// Raj Goyle Raj and South 422 SSEMBLY 425 A Nevertheless, a 428 , https://www.legis.iowa as a strategy to deal as a strategy to ENERAL 427 G ERSEY J EGISLATURE note 208 and accompanying text. EW L 424 Both Jindal and Haley have been and Haley have Both Jindal , N supra CRIT 149 , OWA 426 http://www.bobbyjindal.com/ (last visited 985 (2007). , http://en.wikipedia.org/w/index.php?title . I , , DESI EV “A Nation of Minorities”: Race, Ethnicity, and Reac- , http://www.nikkihaley.com/home/ (last visited 1. Bobby Jindal , http://en.wikipedia.org/w/index.php?title=Jay_ , http://en.wikipedia.org/w/index.php?title=Raj_ IKIPEDIA . L. R OVERNOR W , TAN Satveer Chaudhary (Minnesota), Chaudhary Satveer S IKIPEDIA : G IKIPEDIA OVERNOR 421 G , 59 W W , , INDAL J and Jay Goyal (Ohio). Jay Goyal and Ian F. Haney Lopez, ALEY FOR 423 OBBY Senator Swati A. Dendekar Savteer Chaudhary See From Bi-Racial to Tri-Racial Raj Goyle Jay Goyal See B H Assemblyman Upendra Chivukula The budding political career of Louisiana Republican Gover- career of Louisiana Republican The budding political Governor on an ultra-con- In 2003, Jindal ran for Louisiana Ironically however, the two most prominent South Asian Amer- South Asian most prominent however, the two Ironically 421. 422. 426. 428. 423. 424. 425. 427. 420. (Kansas), Carolina Governor Nikki Haley. Governor Nikki Carolina close look at Jindal and Haley’s political campaigns reveals the pre- and Haley’s political campaigns close look at Jindal honorary whiteness. carious status of with race issues, and both have employed the “model minority” ster- and both have employed the “model with race issues, with Professor political rhetoric. Both fit well eotype in their of “Honorary Whiteness.” Bonilla-Silva’s notion noted as potential Republican presidential or vice presidential can- or vice presidential presidential potential Republican noted as embraced colorblindness didates. Both have www.njleg.state.nj.us/members/bio.asp?Leg=202 (last visited Nov. 6, 2013). www.njleg.state.nj.us/members/bio.asp?Leg=202 .gov/Legislators/legislator.aspx?GA=84&PID=200 (last visited Nov. 6, 2013). .gov/Legislators/legislator.aspx?GA=84&PID=200 Nov. 6, 2013). =Satveer_Chaudhary&oldid=571681820 (last visited Nov. 6, 2013). =Satveer_Chaudhary&oldid=571681820 Goyle&oldid=554605934 (last visited Nov. 2013). Goyle&oldid=554605934 (last visited Nov. Goyal&oldid=572947676 (last visited Nov. 6 2013). Goyal&oldid=572947676 (last visited Nov. tionary Colorblindness July 3, 2014). ican politicians on the national scene are both conservative Repub- both conservative scene are on the national ican politicians Jindal Piyush “Bobby” Governor licans: Louisiana racialization Jindal illustrates well how informal nor Piyush “Bobby” not only national politics but also processes are contingent upon former Rhodes Scholar with a rep- local racial microclimes. Jindal, a dark-skinned son of Indian utation as a “whiz kid,” is the relatively immigrants. In 2007, Jindal—a Republican—was conservative and he was mentioned as a poten- elected as governor of Louisiana candidate. However, it was his tial future Republican presidential campaign, in 2003, that first unsuccessful Louisiana gubernatorial of racialized symbols, represent- most visibly incorporated a variety identities in various forms. ing both whiteness and non-white to the religious right. A con- servative platform laden with appeals 2013] (), Dandekar \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 73 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 81 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 81 35559-nys_69-1 35559-nys_69-1 Sheet No. 81 Side B 10/20/2014 11:50:05 Jindal: Racism Persists (Nov. 2003), http:// (Aug. 25, 2013), http:// HABAR K TORY 429 , S AW R HE 431 T , note 362. supra The Bobby Jindal Irony note 70, at 262–63. supra He thus used the rhetoric of patriotism to present the rhetoric of patriotism to present He thus used the text accompanying Kurien, 430 Many of these organizations did not agree with his poli- Many of these organizations did He received substantial financial and political support He received substantial financial See See 433 432 Jindal’s campaign touched upon some interesting dynamics Jindal’s campaign touched upon Jindal’s rhetoric also emphasized the , also emphasized the American Jindal’s rhetoric 431. 432. 433. Parthiv N. Parekh, 429.Bobby Jindal or Nikki Haley for this This Article does not criticize 430. racism continues because mem- More recently, Jindal has suggested that www.khabar.com/magazine/editorial/the_bobby_jindal_irony.aspx (noting that for Jindal’s 2003 gubernatorial campaign, “over a third of the contributions, amounting to about $400,000 came from Indian-Americans”). www.rawstory.com/rs/2013/08/25/jindal-racism-persists-because-minorities-cling- to-their-heritage/. vision of a colorblind America and employed his own achievement vision of a colorblind America and capital. Mirroring his politics, and social mobility as a form of racial neoconservative racial project: Jindal’s message reflected a classic for their own lot in society and African Americans are responsible should work hard to overcome it. from numerous Asian Indian groups around the country and from numerous Asian Indian abroad. along with Jindal’s status as a ris- cies, but ethnic and national ties, within the South Asian American community, including the divide within the South Asian American South Asian organizations noted between Indian and pan-ethnic earlier. presenting the United States as a land of equal opportunity and States as a land of equal presenting the United his own rise to only key to success. Jindal attributed hard work is the drawing upon to his immigrant work ethic, prominence primarily the role of race stereotype. When asked about the “model minority” stating, “[i]t is Jindal downplayed its significance, in his campaign, being red, white black, white or brown. It is about not about being and blue.” Because Minorities Cling to Their Heritage choice; it merely points out that their names affects how they are perceived. choice; it merely points out that their names much emphasis on our ‘separateness,’ our bers of minority groups “plac[e] far too etc.” David Edwards, heritage, ethnic background, skin color, 150 Ten used the Jindal Hindu upbringing, his from to Catholicism vert NYU Chris- his emphasized ads, repeatedly radio in his Commandments ANNUAL SURVEY OFduring the rights stance his anti-abortion and highlighted tian faith, AMERICAN LAW as a form used religion In this way, Jindal campaign. gubernatorial [Vol. 69:77 whiteness—toof honorary with the his commonality emphasize twelve a group that, only electorate, white Louisiana conservative David Klux Klan leader former Ku had nearly elected years ago, own choice office Jindal sought. Indeed, Jindal’s Duke to the very allows him to serves as a form of capital which of the name “Bobby” “American” more readily. be identified as \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 74 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 81 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 81 35559-nys_69-1 35559-nys_69-1 Sheet No. 82 Side A 10/20/2014 11:50:05 434 435 IMES APITOL T C , AILY ACRAMENTO D S , 438 HE ], http://capitol T ], http://archives , Jindal was endorsed by Ray A variety of factors, ranging note 435. 439 440 In Run for Governorship CRIT 151 supra Jindal’s Heritage Touches Nerve note 435. , Jindal’s Heritage Touches Nerve DESI supra , East Indian Loses LA Governor’s Race 436 . (noting that Jindal’s policies are “anti Indian-American”). . (noting that Jindal’s policies are “anti They raised $50,000 for Blanco’s campaign. They raised $50,000 Nov. 11, 2003) [hereinafter . . Id In Run for Governorship Id Jindal’s Heritage Touches Nerve See id Up to Defeat Indian In Run for Governorship: Pakistanis Line , Nov. 25, 2003, http://www.sacobserver.com/government/commen ) ( 437 (Nov. 10, 2003) [hereinafter It is also interesting that despite his ultra-conservative politics, It is also interesting that despite These comments suggest that Muslim and Pakistani American suggest that Muslim and Pakistani These comments 437. 436. 438. 440. 439. Ronald Walters, 434. 435. ATCH BSERVER Pakistan Nagen, the black mayor of , and the Black Organiza- Nagen, the black mayor of New (BOLD), which cited his creativ- tion for Leadership Development ity and capacity for new leadership. from local politics to Jindal’s record, may account for this support, from local politics to Jindal’s record, Jindal’s racial background may but despite his colorblind rhetoric, voters were at all motivated by the have also played a role. If black Jindal may have knowingly or desire to elect a non-white candidate, status—inunknowingly capitalized on his minority a manner simi- .dailytimes.com.pk/national/11-Nov-2003/in-run-for-governorship-pakistanis-line- up-to-defeat-indian; Associated Press, groups perceived Jindal’s statement as an attempt to contrast his Jindal’s statement as an attempt groups perceived perhaps all in an (Christianity) with Islam, own honorary whiteness appear to be white. for the fact that he did not effort to compensate also likely played between India and Pakistan International tensions of Commerce, The Pakistan Chamber a role in these sentiments. Louisiana and Pa- Community Association of Pakistani-American Jindal’s oppo- reacted by actively supporting triot Muslim American Kathleen and Lieutenant Governor nent, white Democrat Blanco. black vote in Louisiana in 2003; Jindal obtained nine percent of the double the percentage that Lou- hardly a substantial figure, but still isiana Republicans typically receive. watch.reallouisiana.com/html/42BA3191-8835-43FC-AF69-6A5308FCF2C1.shtml. tary/112503/bobby_jindal.shtml (last visited Dec. 31, 2003). W O ( 2013] candidacy. his to support them star, prompted political ing Ameri- and Pakistani Muslim wrath of the incurred Jindal However, he was “not a Muslim.” he stated that when can organizations Congress, American of the Pakistani the President Ashraf Abassi, for that he is qualified “He was saying by saying of Jindal, reacted brown guy looked like the a Muslim. He because he’s not the job white club to tell his so he wanted Indian subcontinent, from the he’s not a Muslim.” \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 75 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 82 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 82 35559-nys_69-1 35559-nys_69-1 Sheet No. 82 Side B 10/20/2014 11:50:05 , 443 IMES (Nov. COM . N.Y. T , NN C , (Dec. 5, 2003), http:/ Jindal himself has EEK 445 W SIAN Any honorary whiteness Any honorary A , 442 NBC’s Lisa Myers Reports on Governor Blanco’s Katrina NBC’s Lisa Myers Reports on Governor Blanco’s McCain to Meet 3 Possible Running Mates Did Racism Beat Jindal? In fact, one of Blanco’s campaign ads exploited In fact, one of Blanco’s (Oct. 9, 2005), http://newsbusters.org/blogs/brad-wil 441 USTERS B ’Can I Quit Now?’ FEMA Chief Wrote as Katrina Raged Brad Wilmouth, . EWS N as did four years later. as did Mitt Romney four years Id See , 444 However, Jindal ultimately benefited from his 2003 gubernato- ultimately benefited from his 2003 However, Jindal Governor Blanco did not seek re-election in 2007, and Bobby Governor Blanco did not seek re-election In the end, Jindal could not overcome his racial appearance not overcome Jindal could In the end, 444. Adam Nagourney, 442. 443. 441. Adam Nossiter, Jindal gained from his identification with Christianity and with the his identification with Christianity Jindal gained from by simple ra- stereotype could easily be negated “model minority” cial imagery. national expo- statewide recognition and rial campaign, gaining As a socially and on his own minority status. sure, even capitalizing same vein as black candidate of color, in the politically conservative Jindal was exalted by the Re- conservatives like Condoleeza Rice, a seat in the U.S. House of Repre- publican party. In 2004, he won First Congressional District sentatives from the heavily conservative was also able to capitalize on the of Louisiana. In this position, he its racial overtones. State and fed- Hurricane Katrina disaster and Governor Blanco and former Fed- eral executive officials, such as Director Michael Brown, bore eral Emergency Management Agency the poor response to Katrina. the brunt of media criticism for 4, 2005), http://www.cnn.com/2005/US/11/03/brown.fema.emails/. /www.asianweek.com/2003/12/05/did-racism-beat-jindal/. Mistakes Jindal’s foreignness: it depicted his photograph and stated “Wake it depicted his photograph Jindal’s foreignness: it’s too Late!” Up Louisiana! Before mouth/2005/10/09/nbcs-lisa-myers-reports-governor-blancos-katrina-mistakes#ixz z37xbZXHI9; May 21, 2008, http://www.nytimes.com/2008/05/21/us/politics/21cnd-mccain Congressman Jindal, in his legislative position, avoided such criti- Congressman Jindal, in his legislative political capital by taking an active cism, and he expanded his own his home state. role in federal relief efforts to rebuild race. Governor Jindal Jindal easily won the Louisiana gubernatorial 2008 Republican presidential soon reached national prominence: him as a potential running nominee John McCain considered mate, 152 American and Asian Latino, of black, number the growing lar to NYUconservatives. ANNUAL SURVEY OF AMERICAN LAW the polls rise and lead in his meteoric Despite and background. [Vol. 69:77 in a close lost to Blanco election, Jindal prior to the immediately as ten led by as many that Jindal polls indicated race. Although suggested analysts up to the election, the weeks leading points in unwilling to vote in Louisiana in particular were that rural whites for a “foreigner.” \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 76 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 82 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 82 35559-nys_69-1 35559-nys_69-1 Sheet No. 83 Side A 10/20/2014 11:50:05 ODAY T ASHING- July 28, , W , She “fre- 448 ODAY 447 HRISTIAN C , USA T , CRIT 153 Haley identifies with the Tea Party Haley identifies with the Tea DESI 446 2. Nikki Haley note 13, at 95–96. The Case for Bobby Jindal to Be Vice President supra , S.C. Gov. Race Heats Up over Haley’s Religion WAMI S Chris Cillizza, NCLE U Indian-American Gov. Slammed for Saying She’s White See TON , July 18, 2012, http://www.washingtonpost.com/blogs/the-fix/post/the- OST Nevertheless, in June 2010, Haley’s racial identity became an Nevertheless, in June 2010, Haley’s In 2010, similar to Bobby Jindal three years earlier, Nikki Haley In 2010, similar to Bobby Jindal three All of these changes, within a short time span, illustrate how span, illustrate a short time changes, within All of these 447. since converting to Christian- Haley does maintain some ties to Sikhism; 446. 448. 445. P quently credits her different heritage with helping her get beyond quently credits her different heritage many have in common.” race and finding problems that 2011, http://usatoday30.usatoday.com/news/politics/2011-07-28-south-carolina- governor-racial-ID_n.htm. Movement and converted to Christianity from Sikhism. Movement and converted to Christianity ity in 1997, she has “occasionally attended Sikh services at her parents’ request.” ity in 1997, she has “occasionally attended Sarah Pulliam Bailey, issue in her gubernatorial campaign. One of her opponents in the issue in her gubernatorial campaign. , referred to both primary, South Carolina State Senator was elected as a conservative, Republican governor of a southern was elected as a conservative, Republican state—South to South Asian Carolina. Born Nimrata Randhawa (Sikh) immigrant parents, case-for-bobby-jindal-to-be-vice-president/2012/07/18/gJQAtAlctW_blog.html list” of Mitt Romney’s potential vice (noting that Bobby Jindal was on the “short presidential candidates). (June 16, 2010), http://blog.christianitytoday.com/ctpolitics/2010/06/sc_gov_ race_hea.html. .html?hp&_r=0 (noting that Jindal met with eventual Republican presidential .html?hp&_r=0 (noting that Jindal met presidential candidate). nominee John McCain as a possible vice 2013] presidential the Republican for a contender as mentioned been in 2016. nomination the par- microclimes; depends on racial of racialization the process can be in any situation circumstances and political ticular historical Louisiana changed in These circumstances determinative. outcome was the just as important but perhaps 2003 and 2007, between is much easier visibility. Racial scapegoating change in Jindal’s By 2007, Jindal is unfamiliar, as Jindal was in 2003. when the target in his home state more well-known, particularly had become much characterizations racial stereotypes and of Louisiana. Superficial who are but they are less so for individuals can be quite powerful, wide-ranging fa- the public at large. By achieving more familiar to white status. was able to cement his honorary miliarity, Jindal \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 77 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 83 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 83 35559-nys_69-1 35559-nys_69-1 Sheet No. 83 Side B 10/20/2014 11:50:05 , 455 ONES J Republi- OTHER 454 The South The M , 449 . Haley also signed Id 453 S.C. Lawmaker Refers to Obama and Nikki Haley as S.C. Lawmaker Refers to Obama and Nikki Indian Nikki Haley Says She Is White Indian-American Gov. Slammed for Saying She’s White (June 4, 2010), http://www.cbsnews.com/8301-503544_162- , the party chair, noted that the party chair, noted Dick Harpootlian, EWS 451 452 Brian Montopoli, . . . . CBS N Id Id See Id Id ” , and apologizing to both Haley and Obama for the “unin- Haley and Obama to both and apologizing note 448. Also, “[State Election Commission spokesperson Chris Whitmire] Similar to Jindal, Haley’s racial characterization illustrates the Similar to Jindal, Haley’s racial Haley’s racial self-identification itself became a political issue a political itself became racial self-identification Haley’s 450 450. 451. 449. 453. 452. Siddhartha Mahanta, 454. 455. Haley spokesman Trey Walker said the governor’s office did not plan to can Party Executive Director Matt Moore said that Harpootlian’s can Party Executive Director Matt and that’s all there is to it.” comments were “just more theatrics Carolina Republican party called upon Knotts to apologize, and he to apologize, Knotts upon party called Republican Carolina in “were intended that his comments statement claiming issued a jest” South Carolina’s restrictive voter identification bill into law, and the restrictive voter identification bill South Carolina’s in her ra- Party questioned whether inconsistency state Democratic vote. might make Haley ineligible to cial identification Haley’s racial self-identification did not matter, but noted that did not matter, Haley’s racial self-identification where she calls appearing on television interviews “Haley has been herself a minority—when to suits her . . . . When she registers it pattern of saying is white. She has developed a vote she says she to her at the moment.” whatever is beneficial 20006815-503544.html. tended slur.” in July 2011, when she was criticized by the South Carolina Demo- the South Carolina criticized by when she was in July 2011, on her 2001 voter her race was listed as “White” cratic Party because registration. Americans as honorary whites. transient position of South Asian the basis for the comments by Haley’s racial background formed for her self-identification as Knott, and she was also criticized of South Asian Americans here “White.” The ambiguous position of race in American society: ra- also illustrates the contrary nature malleable and context-dependent, cial identity has become more can be exploited for political gains but it can still be very salient and or attacks. (July 29, 2011, 11:30 AM), http://www.motherjones.com/mojo/2011/07/indian- nikki-haley-says-she-is-white%20. “Raghead 154 as “ragheads.” Obama Barack and President Haley NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 78 15-OCT-14 10:41 supra and Dean Crepes, the Lexington voter registration and election director, said peo- ple can list anything they want for race on voter forms.” respond to the Democrats. 35559-nys_69-1 Sheet No. 83 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 83 35559-nys_69-1 35559-nys_69-1 Sheet No. 84 Side A 10/20/2014 11:50:05 - IMES EPUB- T R EW Stephanie N , See LORIDA F (Apr. 10, 2013) , CRIT 155 DESI Ben Carson Would ‘Listen’ to Calls for White House Bid in Ben Carson Would ‘Listen’ to Calls for White Marco Rubio’s 2016 Chances Are Alive and Well Marco Rubio’s 2016 Chances Are Alive and http://jacksonville.com/news/georgia/2011-10-17/story/ and the Model Minority Stereotype Minority the Model and No East Asian American conservative politician has conservative politician Asian American No East and African Americans such as Herman Cain and such as Herman Cain and African Americans (Oct. 11, 2013, 4:33 PM), http://thehill.com/blogs/ballot-box/ 456 457 Nate Cohn, ILL 3. Racial Ambiguity, of Foreignness, Intersection . 18, 2011), 458 H CT LIC See HE (O T In the Democratic Party, there has not been a major East Asian Party, there has not been a major In the Democratic More broadly, the ascent of Jindal and Haley in conservative of Jindal and the ascent More broadly, , 457. 456. Devon Carbado’s Advanced I thank Stephanie Yu, a student in Professor 458. Alexandra Jaffe, DesiCrit: Theorizing the Racial Ambiguity of South Asian Americans DesiCrit: Theorizing the Racial Ambiguity of (Aug. 1, 2013), http://www.newrepublic.com/article/114122/marco-rubio- NION U attained the prominence of Jindal or Haley, and none has been and none of Jindal or Haley, the prominence attained Conversely, Republican presidential candidate. noted as a potential is considered Senator Marco Rubio of , at least one Latino, presidential contender for the 2016 Republican to be a serious nomination, presidential have been touted as Republican Dr. Benjamin Carson Rice in Gen. Colin Powell and Dr. Condoleeza contenders, as have the past. herman-cain-leads-morris-news-presidential-poll-among-republicans#ixzz2iyT3ep Gw (“Many urged Colin Powell and Condoleezza Rice to be [the Republican Presi- dential nominee] . . . [and] . . . [n]ow, Cain could give them their chance.”). presidential-races/328047-ben-carson-obamacare-slavery-both-evil; Walter C. Jones, presidential-races/328047-ben-carson-obamacare-slavery-both-evil; Herman Cain Leads Morris News Presidential Poll Among Republicans Republican ranks raises another question: why have there not been why have there another question: ranks raises Republican Amer- from other Asian politicians profile conservative similar high ican groups? Of course, Presi- American presidential candidate. or South Asian there have been is a Democrat, and in the past, dent Barack Obama presidential candidates, such as other prominent black Democratic Additionally, former New Rev. Jesse Jackson and Rev. Al Sharpton. Bill Richardson, a Latino, Mexico Governor and Energy Secretary in the 2008 presidential elec- ran for the Democratic nomination have a longer history in tion. African Americans and Latinos are more well-established politi- America than Asian Americans and groups may generally be able to cally. Thus, candidates from these But together, these observations draw upon a wider base of support. relevance for this Article: (1) still lead to two questions of particular (unpublished reaction paper) (on file with author) (“[I]t does not seem to me (unpublished reaction paper) (on file same symbols of whit[e]ness as Jindal and that [East] Asian politicians adopt the are elected in constituencies that have Haley. Rather, these [East] Asian politicians majority [East] Asian populations.”). Critical Race Theory Workshop at UCLA School of Law in Spring 2013, for indi- Critical Race Theory Workshop at UCLA paper to my article draft. rectly raising this question in her response Yu, 2016-his-presidential-hopes-are-still-alive. 2016 2013] \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 79 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 84 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 84 35559-nys_69-1 35559-nys_69-1 Sheet No. 84 Side B 10/20/2014 11:50:05 http://en.wikipedia , See Chinese American Hero: SB IKIPEDIA and (2) Why have there and (2) W , 459 See Gary Locke note 358 (discussing the physical caricature of note 358 (discussing the physical caricature Second, the racial ambiguity of South Asian Second, the racial supra 461 , note 456 (“[East] Asian politic[i]ans are elected in constitu- note 456 (“[East] Asian politic[i]ans are June 23, 2009), http://www.asianweek.com/2009/06/23/chi- notes 410–13. ( supra EEK Yu, W See supra Closing the Gap See Thus, it may be more difficult for them to be accepted as more difficult for them to be accepted Thus, it may be SIAN 460 One can debate the reasons, but this Article posits that “for- posits that but this Article debate the reasons, One can A 459. 460. 461. , eignness,” racial ambiguity, and the model minority stereotype all minority stereotype and the model racial ambiguity, eignness,” can often unam- a role. First, East Asian Americans intersect to play physical appear- as “foreign” due to their biguously be ascribed ance. been no prominent East Asian American Presidential candidates in Presidential candidates Asian American prominent East been no either party? .org/w/index.php?title=Gary_Locke&oldid=578563721 (last visited Nov. 6, 2013). Also, Shien Biau “S.B.” Woo, another Chinese American, was elected as lieutenant governor of Delaware and served from 1985 to 1989. Woo Americans may actually be of benefit here; they do not unambigu- be of benefit here; they Americans may actually features may and stereotypically Caucasian ously appear “foreign,” candidates. palatable as more prominent political make them more Asian Ameri- the experiences of East and South When comparing the honorary racial ambiguity itself may augment cans, the latter’s Presidential contender. Third, whiteness” necessary to be a viable in conjunction with this honorary the model minority stereotype, such as Bobby Jindal and whiteness, makes South Asian Americans to the Republican Party—whichNikki Haley particularly appealing in its conservative ideology. emphasizes self-help and individualism As stereotypical “model minorities”—the children of In- successful dian immigrants—Jindal stories, along with and Haley’s personal Republican ideology. Their sta- their political positions, fit well with prominent symbols of racial diver- tus also allows them to serve as sity—similar to Rubio, Cain, and Carson—in that is a party otherwise predominantly white. nese-american-hero-sb-woo/. national Presidential candidates, or even politicians representing candidates, or even politicians national Presidential wider constituencies. Asian Americans as “‘Oriental’or ‘yellow . . . associated with ‘slant eyes’ . . . skin’”—features lacked). that South Asian Americans usually 156 pol- American Asian South and visible most prominent are the Why NYU South most fact that of the in spite party, Republican in the iticians ANNUAL SURVEY OF as Democrats?; identify Asian Americans AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 80 15-OCT-14 10:41 encies that have majority [East] Asian populations.”). There are some exceptions: encies that have majority [East] Asian populations.”). as governor of the state of Washing- Gary Locke, a Chinese American, was elected ton and served from 1997 to 2005. 35559-nys_69-1 Sheet No. 84 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 84 35559-nys_69-1 35559-nys_69-1 Sheet No. 85 Side A 10/20/2014 11:50:05 ELIGION These R , 462 CRIT 157 DESI Racialization of early South Asian im- Racialization of early South Asian Yes, the Navy Yard Shooter Was a Buddhist 463 C. Religion: Racing and Turbaned Terrorists and Turbaned note 257, at 298. Of Hated Hindoos, Spiritual Swamis, Spiritual Hindoos, Of Hated notes 255–59 and accompanying text. supra . (Sept. 18, 2013), http://www.religiondispatches.org/archive/ , Joshua Eaton, , AG . AKAKI M It claimed that while South Asians were of the same race as It claimed that while South Asians of America “pressed to the Accordingly, while the founders See supra Id T See, e.g. 464 465 Informal racialization of South Asian Americans has also oc- has also South Asian Americans racialization of Informal As noted earlier, the first wave of immigrants from South Asia As noted earlier, the first wave of 1. the Dotbusters: Anti-Hindu Racism The Hated Hindoo and 463. 464. 465. 462. ISPATCHES different religious images all play into the racial ambiguity of South images all play into the racial different religious in various ways. Asian Americans migrants generally appealed to religion, employing Christianity to migrants generally appealed to and Europeans. When justify- draw a contrast between South Asians immigration, the Asiatic Exclu- ing its position against South Asian creation and the Protestant sion League (AEL) appealed to Biblical ethic. curred through various religious referents, involving particular involving religious referents, through various curred civiliza- of Western an advanced feature Christianity (as views of mystic religions), and Buddhism (as exotic and tion), Hinduism the basis of terror- dangerous ideology that forms and Islam (as a racial and relig- has involved linkages between ism). This process religious symbols. along with misidentification of ious stereotypes, associated to note the contrasting stereotypes It is also interesting on the South Asian subcontinent. with various religions atheologies/7306/yes_the_navy_yard_shooter_was_a_buddhist_a_theologies/ (“In atheologies/7306/yes_the_navy_yard_shooter_was_a_buddhist_a_theologies/ of the popular imagination, Buddhism is a religion of peace and Islam is one war.”). Europeans, significant differences had emerged between the two Europeans, significant differences such that Western Aryans, who groups: the Aryan race was divided, were “Lords of Creation,” and the represented modern Europeans, South Asians (or at least Eastern Aryans, representing modern Pakistan), were “slaves of Crea- those from northern India and tion.” conquest, progress, and civiliza- west, in the everlasting march of “became enslaved, effeminate, tion,” those who went to South Asia to the United States came in the early 1900s and settled on the West to the United States came in the them were Sikh faith, they were Coast. Although the majority of referred to as “Hindoos.” D 2013] \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 81 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 85 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 85 35559-nys_69-1 35559-nys_69-1 Sheet No. 85 Side B 10/20/2014 11:50:05 , IF- HE 470 T D 140 The The in , 472 473 ACIAL ISTORY R H Sept. 6, 1907, at 1. ., RODUCING reported this inci- filthy laborers who ORTHWEST : P HRON 468 N NDIANS S.F. C , I In Jersey City Indians Face Violence ACIFIC S ’ P http://www.nytimes.com/1987/10/ Washington’s Anti-Hindu Riot , UROPE Hence, while AEL conceded that conceded AEL while Hence, , E 466 ETH ONFLICTS IN available at S San Francisco Chronicle San Francisco Chronicle Bellingham C Michael Marriott, note 259, at 311 (“The Hindus live together in colo- note 259, at 311 (“The Hindus live together 467 ANITA V The supra INORITY note 255, at 20–22. see also note 257, at 298. 469 note 91. (2010). : M supra supra , , supra OSAIC AL 471 L at 59–60; Buchanan, . For a broader historical account of how South Asians were racialized . For a broader historical account of how M AKAKI , Oct. 12, 1987, at B1, FERENCE Workingmen Driving Out the Hated Hindoo See Id. See T Id , 1500–1900 IMES These riots foreshadowed later acts of violence against South later acts of violence These riots foreshadowed Negative sentiment towards these early immigrants soon began soon these early immigrants sentiment towards Negative 470. 471. 469. Gerald N. Hallberg, 467. 472. Misir, 473. 468. 466. ORTHWEST “Dotbusters” specifically targeted Asian Indian Americans for vio- “Dotbusters” specifically targeted economic success and by the lence, motivated by jealousy of Indian a “separate, alien group.” perception of Asian Indians as took jobs away from working class whites. In September 1907, there working class whites. In September took jobs away from workers in Belling- against South Asian immigrant was a major riot ham, Washington. (James A. Halseth & Bruce A. Glasrud eds.,1977). (James A. Halseth & Bruce A. Glasrud Europeans and ‘Hindoos’ were members of the same racial group, racial the same of members were ‘Hindoos’ and Europeans races, not of the European degraded form the latter as a it depicted this America. In creating equal status in citizenship and worthy of of “pro- to notions linked Christianity AEL racial characterization, “civilization.” gress” and dent as “Workingmen Driving Out the Hated Hindoo.” Driving Out the Hated dent as “Workingmen nies . . . and their living expenses are nominal . . . not exceed[ing] $3 a month per nies . . . and their living expenses are nominal an allowance.”). Buchanan’s essay was capita . . . a white man must starve on such of these early South Asian American immi- actually more sympathetic to the plight grants than many others. 12/nyregion/in-jersey-city-indians-protestviolence.html?pagewanted=print&src the =pm (quoting teenage boys from New Jersey as saying “it’s white people against Hindus”). to build, spurred by economic competition with other groups. by economic competition with to build, spurred widely described as cheap, Asian Indians were rise in the which occurred after the post-1965 Asian Americans, The most infamous set of inci- South Asian American population. an anti-South Asian gang in the dents involved the “Dotbusters,” 1987 and 1988, the Dotbusters Jersey City, New Jersey area. During crimes against South Asian Ameri- were responsible for several hate murder of Navroze Mody. cans, including the well-known N N.Y. T Subsequently, there were similar uprisings in several cities along the were similar uprisings in several Subsequently, there West coast. 158 and degraded.” caste-ridden, NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 82 15-OCT-14 10:41 in European thought, see 35559-nys_69-1 Sheet No. 85 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 85 35559-nys_69-1 35559-nys_69-1 Sheet No. 86 Side A 10/20/2014 11:50:05 More 478 Of course, more Of course, However, having 476 475 477 In more recent years, various note 88, at 88–89. note 88, at 47–68. This began in the late 19th and as a sign of fidelity, for their fidelity, a sign of as 480 CRIT 159 479 New Age Orientalists do not seek supra supra 474 , , 481 DESI OLK OLK note 13, at 3–8. 11, 2001 racial- Post-September F F note 91 (noting that “Indians are no longer discur- supra note 155, at 306–07. , ROWN ROWN note 91, at 73 n.2. B B supra supra WAMI S supra note 409 and accompanying text. note 1 and accompanying text. Misir, ARMA OF ARMA OF NCLE K K Mukerji, Misir, U HE HE See See See supra See supra See also T T See South Asians in America have also been racialized informally as South Asians in America have also What is noteworthy about these incidents here is that many of about these incidents here is What is noteworthy 476. 480. 481. 477. 478. 479. 474. 475. 2. Age Orientalism: South Asians as Mystical, Exotic Foreigners New broadly, these incidents illustrate the importance of racial incidents illustrate the importance broadly, these microclimes. such attacks occurred after September 11, 2001. such attacks occurred risk of specific identity comes at a price: increased a defined racial crimes. racial targeting and hate (as opposed to general) “New Age Orientalists,” such as Bhagwan Shree Rajneesh, Mahar- “New Age Orientalists,” such as famous student, Deepak Chopra, ishi Mahesh Yogi, and his most marketing faith as a means to ob- have capitalized on this practice, organizations tain profit. In contrast to the Hindu/Indic-centered and the Hindutva movement, early 20th centuries, when Indian spiritual leaders such as Swami early 20th centuries, when Indian introduced India’s spiritual Vevekananda and Swami Abhedananda traditions to American audiences. name. Professor Vijay Prashad discusses other well-known hate other well-known Prashad discusses Vijay name. Professor to Septem- even prior Asian Americans targeted South crimes that Maharaj, a 1998, Rishi in September 2001; for example, ber 11, by a racist was beaten Caribbean descent, American of South Asian York. Queens, New South Ozone Park, gang in ization of South Asian Americans is discussed in IV.C.3. ization of South Asian Americans is discussed sively anonymous or invisible” in northern New Jersey). them have occurred in areas where South Asian American popula- in areas where South Asian them have occurred Jersey City, New large and visible, such as tions are particularly Asians in these New York. The visibility of South Jersey and Queens, to an ex- probably offsets their racial ambiguity racial microclimes as “Japanese Bee- I would have been referred to tent; I doubt that as I was in Newark, Delaware. tle” in Jersey City, on Hindu and Buddhist relig- mystical, exotic foreigners, also based describes how notions of South ious symbolism. Professor Prashad been used to reinforce the im- Asian spirituality and exoticism have age of South Asians as foreigners. 2013] by dot worn red “traditional bindi, a the upon drew Dotbusters women” married Hindu, some \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 83 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 86 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 86 35559-nys_69-1 35559-nys_69-1 Sheet No. 86 Side B 10/20/2014 11:50:05 HE T 487 , As these (DP) (inde- ], http://www 486 483 Moreover, Pro- Moreover, see also Mocking Relig- 482 Media images such as to market their faith as to market their Mocking Religion 485 484 The Daily Pennsylvanian note 88, at 58–62. supra , , http://en.wikipedia.org/w/index.php?title OLK F IKIPEDIA W Mocking Religion at the Altar of the Almighty Dollar Mocking Religion at the Altar of the Almighty ROWN note 215. , B Sept. 22, 2000 [hereinafter , supra ARMA OF . K Leong, Id . Professor Prashad contrasts the tame, socially ambivalent message of . Professor Prashad contrasts the tame, HE Id See See Chris Berman T note 485. In this column, I protested ENNSYLVANIAN Moreover, such commodification is not limited to South Asian commodification is not limited to Moreover, such Nevertheless, the New Age Orientalism that Professor Prashad New Age Orientalism that Professor Nevertheless, the P 483. 487. Other South Asian traditions and artifacts have also been objects of cul- 484. 485. Vinay Harpalani, 486. 482. supra , AILY examples illustrate, racialization of South Asians as mystical foreign- examples illustrate, racialization both agency and ascription. ers, via religious symbols, involves fessor Prashad contends that New Age orientalism can actually rein- can actually that New Age orientalism contends fessor Prashad this poverty, by systems that perpetuate force the social than the social and individual change rather emphasizing to bring about systemic changes. upheaval necessary that of the “Swami” as a sports prognosticator—popularizedthat of the “Swami” as a sports by ESPN’s Chris Berman—also exoticism. perpetuate this an exotic commodity to a largely white liberal audience. an exotic commodity Urban Outfitters Mass consumer outlets such as spiritual leaders. . . . with Hindu past, sold “clothing and artifacts have, in the recent and even mere random religious symbols, gods and goddesses, Hindi letters that amount to [g]ibberish.” =Chris_Berman&oldid=579059880 (last visited Oct. 28, 2013); =Chris_Berman&oldid=579059880 (last ion of Pennsylvania) Online Swami pendent student newspaper at the University staff, and other participants dress up as a Challenge, which had students, faculty, games. Other students and student or- “swami” and predict the results of football of ganizations joined my protest and called for the DP to discontinue its use “swami” imagery, and the DP soon complied with this request. tural appropriation by Westerners. Most notably, the “Take Back Yoga” campaign ori- has addressed the divide between Western practice of yoga and yoga’s ancient New Age orientalism with the social activism inherent in the philosophy of Ma- New Age orientalism with the social activism Orientalism contributes to the exoticiza- hatma Gandhi, contending that New Age that can lead to political involvement tion of South Asia and discourages action and change. .thedp.com/article/2000/09/mocking_religion_at_the_altar_of_the_almighty_ dollar. describes also illustrates South Asians’ agency in their own informal South Asians’ agency in describes also illustrates drawn upon their various spiritual leaders have racialization. The a form of “racial capital” “foreignness” as D 160 spiri- Eastern market rather to but or Hindus, Indians Asian to unify NYU to Professor According audience. Western to a traditions tual ANNUAL SURVEY OFspirituality as a land of of South Asia their presentation Prashad, AMERICAN LAW suffering poverty and immense material neglects the and wonder [Vol. 69:77 material the adverse not to mention on the subcontinent, present America. minorities in faced by ethnic conditions \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 84 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 86 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 86 35559-nys_69-1 35559-nys_69-1 Sheet No. 87 Side A 10/20/2014 11:50:05 , 10 N.Y. , ; (2) 495 Performative , http://abcdf it posits that 494 and racial pro- and racial IZARD Part II.A.1. In con- L 488 note 29. Homeland Insecurities: Racial supra ITERAL See supra L note 19, at 50. As this Article focuses on As this Article On Making Fun of White People supra 72 (2002); Sunita Patel, 493 EXT CRIT 161 . T This Article will summarize the will summarize This Article see also note 13; Chen, Muneer Ahmad, OC 490 Hindu Group Stirs a Debate over Yoga’s Soul S DESI Nevertheless, Professor Chen focuses Nevertheless, Professor note 13, at 3–8. supra she acknowledges that a racialization she acknowledges , 20 , 491 see also 492 supra note 249; Nader, Part II.A.2. , Paul Vitello, supra WAMI note 29, at 421–22. S See 61 (2005). note 489; See supra supra NCLE . L.J. U Muscati, M at 436. . at 414. . A See See supra See Flying While Brown Id. Id See have involved the joint classification of Arab and South classification of the joint have involved AC 3. Terrorists Turbaned as Americans Asian Arab and South 489 , Nov. 27, 2010, http://www.nytimes.com/2010/11/28/nyregion/28yoga P The racial project linking Arab and South Asian Americans has The racial project linking Arab and Professor Ming Hsu Chen argues that rather than “racializa- Hsu Chen argues that rather than Professor Ming Since September 11, 2001, both hate crimes 11, 2001, Since September 488. 490. 489. 491. Chen, 492. 493. 494. Professor Chen draws upon Professor Omi and Winant’s notion of racial- 495. SIAN IMES equating “Arab” with “Muslim” through conflation of language and equating “Arab” with “Muslim” through together Arabs and South ethnicity with religion; and (3) grouping a focus on the joint racialization of Arab and South Asian Ameri- a focus on the joint racialization South Asian American ra- cans is a useful lens to further elucidate cial ambiguity. racialization: (1) equating proceeded through a threefold informal ideological misarticulation Islam with terrorism through filing racialization, and particularly informal racialization, racialization, and racialization processes involved. racialization “alienation”—whichtion,” the term by she defines as “a process a target group in states construct an identity for which citizens and a putatively legal who share membership within opposition to those community”—more and the joint profiling of Arab aptly captures South Asian Americans. 3m.tumblr.com/post/78041751740/on-making-fun-of-white-people-who-love-chai- and thus “chai tea” is redundant). tea-lattes (noting that “chai means tea” her proposal on formal legal remedies such as immigration and formal legal remedies such as her proposal on law; anti-discrimination framework is “not wholly inaccurate” even if it is “insufficient” for a wholly inaccurate” even if it is framework is “not of profiling. complete explanation Aspects of Race: “Arab, Muslim, and South Asian” Racial Formation After September 11 Aspects of Race: “Arab, Muslim, and South Asian” T Violence the Day After September 11 Asian Americans as terrorists. Several legal scholars have discussed scholars have Several legal as terrorists. Asian Americans in depth. these phenomena ization, focusing on the creation of racial categories. Who Love Chai Tea Lattes (Feb. 27, 2014, 4:56 PM), Who Love Chai Tea Lattes (Feb. 27, 2014, .html?src=me&ref=homepage&_r=1&; trast, this Section focuses on informal racialization, focusing on the role of trast, this Section focuses on informal racialization, focusing on the role religious symbols. A gins and traditions. 2013] \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 85 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 87 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 87 35559-nys_69-1 35559-nys_69-1 Sheet No. 87 Side B 10/20/2014 11:50:05 , 57 EWS EWS supra note J. , N ! N AILY AHOO See infra MERASIA Y A , EHRANIAN N.Y. D T , , 22 (Dec. 12, 2009), http:/ see also TUDIES S In particular, Sikh Ameri- In particular, Half of Asian American Students in 496 This occurs not only because This occurs 497 ANGUAGE 498 L (Aug. 7, 2012), http://www.filipinosabroad Sikh Kirpans in California Schools: The Social Con- Sikh Kirpans in California Schools: The Social UNJABI note 13 (noting that material criteria which des- note 13 (noting that Erica Pearson, BROAD & P supra A , IKH see also S note 497 (“As testament of their faith, Sikh men often note 497 (“As testament of their faith, , Sikhs, Often Mistaken for Muslims, Call for Better Understanding Sikhs, Often Mistaken for Muslims, Call for , Vinay Lal, WAMI Year After Massacre, Threat Persists for US Sikhs Year After Massacre, Threat Persists for US S ILIPINOS supra F , NCLE See, e.g. Kuo, This disparate categorization again reflects the de- categorization again reflects This disparate U Lily Kuo, 499 See See See It is also noteworthy here that in spite of the fact that Arab and the fact that Arab that in spite of noteworthy here It is also (Aug. 2, 2013), https://sg.news.yahoo.com/massacre-threat-persists-us-sikhs- 499. Revisions to the Standards for the Classification of Federal Data on Race 497. 496. 498. . ING cans have been the victim of discrimination and hate crimes after and hate crimes of discrimination been the victim cans have or Muslim. for Arab being mistaken of their turbans, but also because of their long beards, both of long beards, because of their turbans, but also of their symbols. Sikh religious which are Sept. 5, 2013, http://www.nydailynews.com/new-york/education/asian-american- students-city-middle-high-schools-bullied-new-survey-reveals-article-1.1446530 (not- ing frequency of bullying against Sikh American youth). and Ethnicity, 62 Fed. Reg. 58, 781–90 (Oct. 30,1997); note 17. (1996) (discussing how kirpans, small knives which Sikhs carry as religious sym- (1996) (discussing how kirpans, small Additionally, for an eloquent per- bols, caused controversy in California schools). by Sikh Americans, see Jaideep Singh, sonal account of the discrimination faced My Journey to Sikh Studies City Middle and High Schools Have Been Bullied, New Survey Reveals City Middle and High Schools Have Been Bullied, /www.sikhfoundation.org/sikh-punjabi-language-studies/my-journey-to-sikh-stud- ies-by-dr.-jaideep-singh/; .com/sikhs-often-mistaken-for-muslims-call-for-better-understanding-of-their-relig- ion; Shaun Tandon, 522. In these contexts, the turban was associated merely with being Indian or from 522. In these contexts, the turban was associated This illustrates the historical and situa- the Orient, not with Islam or terrorism. as the turban. tional malleability of racial symbols such ignate a Muslim terrorist include “olive skin, turbans, head scarves, facial hair”). ignate a Muslim terrorist include “olive allowed some African Americans to Ironically, in a previous generation, turbans Jim Crow laws to an extent. identify themselves as “Indian” and avoid creased significance of formal racialization and increased impor- of formal racialization and creased significance race. criteria used to socially construct tance of informal of Their Religion South Asian Americans are frequently racialized together, the fed- are frequently racialized South Asian Americans different racial places the two groups in entirely eral government in the “Asian/Pa- Asian Americans are included categories. South are classified as while Arab Americans cific Islander” category, “White.” keep their beards long and wear turbans to cover their uncut hair.”). Professor keep their beards long and wear turbans Sikhism has been misunderstood in the Vinay Lal gives another examples of how United States. 142547547.html. struction of Symbols, Legal Pluralism, and the Politics of Diversity struction of Symbols, Legal Pluralism, and S 162 and appearance in physical similarities on superficial based Asians NYU turban). as the (such symbols cultural ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 86 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 87 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 87 35559-nys_69-1 35559-nys_69-1 Sheet No. 88 Side A 10/20/2014 11:50:05 See refer- 504 Mississippi , http://www . at 25. For a note 505. Also, Id COM . , http://www.darkis supra note 14, at 288–290. Black Skin, White Masks 500 supra NDOLINK I , ACEBOOK F , note 88 (analogizing “Karma of note 88. supra leading to marginalization of , Color biases have long existed (Oct. 26, 2013), http://en.wikipedia supra , 506 these two groups have often had these two groups CRIT 163 OLK 505 F OLK 503 F DESI IKIPEDIA W ROWN , B See Dark Is Beautiful Brown Skin, Black Mask ROWN Although academic discourse draws paral- Although academic B 502 note 14. —a to refer also often used color designation ARMA OF D. Black Masks Skin, Brown 501 supra K ARMA OF notes 160–61 text, and and accompanying HE K T HE T Francis C. Assisi, United States v. Thind, 261 U.S. 204, 209 (1923) (referring to “the United States v. Thind, 261 U.S. 204, . at 25–26.Mazumdar also contends that “in any white major- Professor See See Mississippi Masala Id See See supra See , which featured an Indian American woman in a relation- an Indian American woman in , which featured The tension between South Asian and African American com- South Asian and African American The tension between Both formal and “Honorary” whiteness have played a large role played a large whiteness have and “Honorary” Both formal note 129. There is also a grassroots movement to combat light-skinned bias 501. 502. 504. Mazumdar, 505. 503. 506. 500. the book, The title of this section derives from ring to “disjuncture between . . . South Asians’ own perceptions of ring to “disjuncture between . . race and those of the majority.” within South Asian communities, dark-skinned South Asian Americans, and these negative senti- dark-skinned South Asian Americans, black communities more gener- ments may also be transferred to a tense relationship on the ground. Professor Sucheta Mazumdar on the ground. Professor Sucheta a tense relationship black, but have Asians in the United States “are contends that South that they are white,” sought to prove over and over again .indolink.com/Living/America/a84.php. beautiful.in/ (last visited July 7, 2014). brown Hindu”); lels between their experiences, lels between their to Arab and Middle Eastern Americans, Latinos, and African Ameri- and African Americans, Latinos, Middle Eastern to Arab and impacted the ra- notions of blackness itself have cans. Additionally, ways, in spite of Asian Americans in various cial identity of South and South Asian relationship between black the ambivalent Americans. film, famously captured in Mira Nair’s munities was most Masala man. ship with a black Brown Folk” to W.E.B. Du Bois’s “Souls of Black Folk”). Brown Folk” to W.E.B. Du Bois’s “Souls .org/w/index.php?title=Mississippi_Masala&oldid=578782923. ity context, the dark-skinned South Asian is identified as black.” ity context, the dark-skinned South Asian critique of Professor Mazumdar’s argument, see Koshy, critique of Professor Mazumdar’s argument, after Nina Davuluri was named Miss America in September 2013, several commen- tators noted that she was too dark-skinned to ever win the Miss India pageant. supra in Indian media and society. in the racialization of South Asian Americans. Throughout their Throughout Asian Americans. of South in the racialization South have labeled commentators in America, various history “Brown” Asians as (1952), by post-colonial critical scholar Frantz Fanon. Francis Assisi has also used (1952), by post-colonial critical scholar article about South Asian Americans and the title “Brown Skin, Black Mask” for an hip hop. 2013] \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 87 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 88 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 88 35559-nys_69-1 35559-nys_69-1 Sheet No. 88 Side B 10/20/2014 11:50:05 note supra , 510 supra ISTORIES OF . , MAGE IN THE HOICES Id H I OLK C F OST LACK L B THNIC ROWN HE E B , T AKING 512 M OJECKI ARMA OF . at 69. Nevertheless, several of the K See R ARLEM AND THE Id These immigrants exercised HE H T (2000). 513 NDREW A ENGALI see also MERICA , B A note 14. ALD note 96 (discussing South Asian American hip hop, note 96 (discussing South Asian American B ACE IN NTMAN AND , which describes marriages and relationships , which describes marriages and Nevertheless, Professor Singh also notes that Singh also notes Professor Nevertheless, supra R IVEK supra V 509 note 158, at 98. (2012). Most of the marriages and relationships discussed by (2012). Most of the marriages and relationships , M. E Parts III.D, IV.A.2. My mother tells the story of how she could Parts III.D, IV.A.2. My mother tells the Moreover, many South Asian Americans can identify Moreover, many supra EDIA AND OBERT MERICA HARMA 511 S R A Mazumdar, : M . See supra See generally Id See See See IND SIAN South Asian Americans are also influenced by negative by influenced also are Americans Asian South Bengali Harlem Professor Amritjit Singh contends that “Asian Indian and “Asian Indian contends that Amritjit Singh Professor A M South Asian American youth identification with blackness, on youth identification with South Asian American South Asian two accounts of proactive This Section discusses 507 512. 513. 510. 509. Singh, 511. 507. 508. 508 HITE OUTH note 261, at 62–78. pamphlet of the Professor Leonard notes that “[t]he printed Imperial Valley Hindustanee Welfare and Reform Association contained a clause de- warning [Punjabi] men not to marry ‘colored’ women,” possibly motivated by sire to avoid “white prejudice against blacks.” 88, at 8 (showing picture of Bangladeshi youth in New York City who call them- 88, at 8 (showing picture of Bangladeshi selves the “Bangla niggers”). United States in the early 1970s because not find a job when she first came to the a sari, even though she was much of her accent and her insistence on wearing hired. She contended that many white more qualified than candidates who were candidates, and that it was a black Americans passed her over for less qualified man who hired her for her first job. Punjabi male immigrants she writes about did marry black women. “at some of these same gatherings . . . one or two younger people or two younger gatherings . . . one of these same “at some parents, they have . . . [because] . . . [u]nlike their protest this view better understand- friends and have developed a African American society.” and poverty operate in American ing of how racism with experiences of racial discrimination. with experiences blackness, and race consciousness); stereotypes of African Americans, which are prevalent in the me- in the prevalent are which Americans, African of stereotypes dia. . . . very [often hold the] gatherings . . . adults at social Pakistani for violent a synonym . . . ‘black’ is almost view . . . [that] American drugs.” crime and Professor Bald were in New York or other cities in the Eastern half of the United Professor Bald were in New York or other describes marriages between early States. Similarly, Professor Karen Leonard West coast, who were almost exclusively South Asian (Punjabi) immigrants on the male, and white, black, and Mexican women. cultural and political terms, has been a popular topic in recent terms, has been a popular cultural and political scholarship. one from the past with African Americans: American identification Vivek Bald’s new First, it reviews Professor and one more recent. book, between South Asian male immigrants and African American wo- between South Asian male immigrants men in the early 20th century. S W 164ally. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 88 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 88 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 88 35559-nys_69-1 35559-nys_69-1 Sheet No. 89 Side A 10/20/2014 11:50:05 , IMES includ- N.Y. T 517 , although they may they although 514 which examines South Asian examines South which CRIT 165 515 , http://www.nytimes.com/2012/12/02/nyre DESI Through examining Census and dem- Through examining Census and 516 note 513, at 31. 1. Harlem Bengali Columbia’s Gang Scholar Lives on the Edge available at supra note 96. , Hip Hop Desis Hip Hop ALD supra B , , e.g. Ariel Kaminer, , . at 35. HARMA See Id See S As noted earlier, the first major wave of South Asian immigra- As noted earlier, the first major 515. 517. 516. 514. on their racial ambiguity South Asian Americans’ ability to capitalize have done so because they were denied access to white communi- to white access denied they were because done so have Tamar Professor Nitasha discusses this Section ties. Second, book, Sharma’s American youth participation in hip hop culture—particularly in hip hop youth participation American as signifies a “blackness” and a claim to represents this phenomenon in tension is Such race consciousness consciousness. larger race are also reflected about black masculinity that with stereotypes engage both of and South Asian hip hop artists through hip hop, of blackness Section also covers direct ascriptions these. Finally, this (“macaca”). from the “n-word” to the “m-word” to South Asians, hierarchy; they re- directly depict American racial Such ascriptions as that of the racial position of black Americans veal as much about South Asian Americans—for whom they are usually just temporary realms, political white status. In the public negations of honorary blackness, which motivates these ascriptions of expediency often politi- white animus to achieve independent play on long-standing of racial ascriptions highlight the importance cal goals. These due to local historical and political microclimes, as they are usually of blackness also under- circumstances. Moreover, such ascriptions of the black-white paradigm in score the continuing significance in terms of racial categories and American racial hierarchy; not to the social meaning of race. groups per se, but with respect Nov. 30, 2012, at MB1, gion/sudhir-venkatesh-columbias-gang-scholar-lives-on-the-edge.html. ographic data and conducting interviews and historical investiga- ographic data and conducting peddlers and merchants who tion, Professor Bald describes Bengali various Southern cities, settled in black communities in tion to the United States was in the early 1900s, but traveling ped- tion to the United States was in United States before then, selling dlers from India had come to the various goods from India. does not necessarily involve making a conscious claim to any racial status. For ex- does not necessarily involve making a conscious at Columbia University, may well ample, Professor Sudhir Venkatesh, a sociologist racial ambiguity in his research. Profes- have capitalized on South Asian American on urban gangs, and in his ethno- sor Venkatesh is well known for his scholarship access to those gangs as a participant- graphic research, he was able to gain observer. 2013] communities, with black in identifying agency \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 89 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 89 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 89 35559-nys_69-1 35559-nys_69-1 Sheet No. 89 Side B 10/20/2014 11:50:05 ., AG , L.A. M Professor 524 He identifies 523 These immigrants These 518 Similarly, Professor Bald 525 Professor Bald identifies almost Bald identifies Professor 519 The Many Faces of Korla Pandit He also notes that in the midst of notes that in the He also 520 R.J. Smith, (July 19, 2014, 5:32 AM), http://www.npr.org/blogs/code See note 513, at 53. How Turbans Helped Some Blacks Go Incognito in The Jim Crow How Turbans Helped Some Blacks Go Incognito LOG B supra , Thus, South Asians’ racial ambiguity was also employed Thus, South Asians’ . at 76. . at 88. . at 35–36. . at 35. . at 34–35. . at 50–52. WITCH ALD S Id B Id Id Id Id Id 521 522 ODE Eventually, Professor Bald notes that in New Orleans, “a core Eventually, Professor Bald notes 524. 523. 525. 518. 519. 520. 521. 522.is musician Korla Pandit (born John A notable example of such passing C , Bald contends further that “[t]he lives of Bengali Muslim peddlers Bald contends further that “[t]he embedded within black communi- and their descendants became ties and entwined with their histories.” twenty-five Indian men who married African American, Creole, Cu- twenty-five Indian men who married 1891 and 1928. ban, or mixed-race women between both sold goods and provided an infrastructure for others to pass for others an infrastructure goods and provided both sold these cities on business. through documents a “network of Indian ex-sailors in the Detroit neighbor- documents a “network of Indian early decades of the twentieth hood of the black Bottom” in the June 2001, at 73. a turban allowed Additionally, Tanvi Misra notes how wearing and thus avoid Jim Crow laws to an some African Americans to pass as “Indian” extent. Tanvi Misra, Era fifty South Asian peddlers and merchants who settled in New Orle- who settled in and merchants Asian peddlers fifty South 1885 and 1908. ans between these peddlers from India, black Americans learned that they could learned that black Americans from India, these peddlers pass for Indian—“that be- possible to move across the line it was ‘Hindoo’”—andtween ‘Negro’ and that doing so provided for safer though Indians in the Jim Crow South (even passage while traveling Southerners did, to all of the areas that white did not have access segregated black they ultimately lived in and even though spaces). by black Americans (at least those who were themselves racially am- (at least those who were themselves by black Americans agency in their who could exercise some biguous in appearance), barriers of Jim in order to partially avoid the racial identities Crow. switch/2014/07/19/332380449/how-turbans-helped-some-blacks-go-incognito-in- the-jim-crow-era?utm_source=facebook.com&utm_medium=social&utm_campaign =npr&utm_term=nprnews&utm_content=20140719. group of Bengali Muslim peddlers married local women of color” group of Bengali Muslim peddlers black community. and became a part of the local 166 Galveston, Chattanooga, Memphis, Charleston, New Orleans, ing NYU and Jacksonville. Atlanta, Birmingham, , ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 90 15-OCT-14 10:41 Roland Redd), who claimed to be an Indian born in New Delhi, but who was actu- Roland Redd), who claimed to be an Indian ally African American. 35559-nys_69-1 Sheet No. 89 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 89 35559-nys_69-1 35559-nys_69-1 Sheet No. 90 Side A 10/20/2014 11:50:05 Ali’s , and 531 529 Bengali Harlem . Thus, black nationalism Id explained why she believed explained why she 530 CRIT 167 note 513, at 278. Jones’s e-mail was a re- 528 DESI supra , ALD B . While some of these Indian Muslim men stayed Muslim men of these Indian While some 527 at 154. Most of these Indian men were Muslim, and Professor and were Muslim, men Indian of these Most . Professor Bald also notes that the 1920s were the peak of Marcus . Professor Bald also notes that the 1920s . at 155. . at 121. . at 278. Bengali Harlem 526 Id. Id Id Id Id Of course, Professor Bald’s book is entitled Of course, Professor Bald’s book Jones’s analysis here focuses on the ascription of her grandfa- Jones’s analysis here focuses on Professor Bald also tells the story of Mustafa “John” Ali, a Ben- tells the story of Mustafa “John” Professor Bald also 526. 527. 528. 529. 530. 531. E-mail from Brittany D. Jones to author (Mar 6, 2013, 11:30 PM CST) From the way my grandfather [Mustafa “John” Ali’s son] ex- grandfather [Mustafa “John” From the way my the U.S., you my great-grandfather came to plains it, when two things—blackcould be one of or white. He obviously Professor so he was categorized as black. couldn’t be white, provided support net- Bald’s theory is that African-Americans I think that was definitely works for Bengali immigrants and He didn’t “look black”, but I true for my great grandfather. also didn’t “look white.” think the bigger point is that he great granddaughter, Brittany Jones, great granddaughter, Ali came to identify with African Americans: Ali came to identify within their own ethnic social circles, others married African Ameri- married African circles, others own ethnic social within their within enmeshed socially and politically and became can women black communities. the local sponse to my inquiry about whether her great-grandfather’s appearance played any role in his connection to black Americans communities. Bald notes that they influenced the development of African Ameri- African of the development influenced they notes that Bald and the Science Temple as the Moorish groups such can Muslim Islam. Nation of ther as non-white, in the context of the black-white binary in Ameri- ther as non-white, in the context ascriptions limited the choices of can race relations. While such immigrants also exercised agency these Bengali immigrants, these communities. in becoming a part of black American gali sailor who jumped ship in Baltimore, went back to India, then ship in Baltimore, went back gali sailor who jumped American woman and married an African again went to Baltimore the United in the 1930s, then moved around and raised a family in India. went back to his home village States and eventually he documents the same phenomenon in New York City. He notes he documents the same phenomenon number of Indian Muslim ex-sea- that by the 1930s, “an increasing communities of color . . . one-third man were marrying within local uptown Manhattan] had married [of the Indian male population in 2013] century. \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 91 15-OCT-14 10:41 Garvey’s influence in black American communities. Garvey’s influence in black American influenced the development of these organizations. (on file with author). Professor Bald interviewed Brittany’s grandfather in his re- (on file with author). Professor Bald interviewed Brittany’s grandfather in his search for 35559-nys_69-1 Sheet No. 90 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 90 35559-nys_69-1 35559-nys_69-1 Sheet No. 90 Side B 10/20/2014 11:50:05 U.S. N.C. AKING M play a , 86 533 Bengali Har- See About Attorney General Ka- John Calmore’s America note 1 (describing experiences supra All of this tells a larger story All of this tells Kiran Ahuja, Executive Director of the 534 1, 27 (1994) (“[C]ritical race scholarship See 1213, 1219 (1997) (“Many scholars of race . L.J. EV were Muslim. This may be due to the religious were Muslim. This may be due to the Harpalani, SIAN . R A L (last visited Nov. 6, 2013), http://www.kamalaharris . , 1 but with respect to social dynamics and how but with respect see also ARRIS ALIF 535 C Like the Indian immigrants in New Orleans, De- in New Orleans, immigrants the Indian Like note 261, at 69. H note 513, at 166. 532 , 85 Bengali Harlem supra note 14, at 295–99,for a critical discussion of the latter. In her AMALA , supra , http://www2.ed.gov/news/staff/bios/ahuja.html (last visited Nov. , http://www2.ed.gov/news/staff/bios/ahuja.html K , . The Black/White Binary Paradigm of Race: The “Normal Science” of Ameri- , supra ALD DUC B HOICES E Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Struc- Toward an Asian American Legal Scholarship: C 739, 760 (2008) (noting the black-white paradigm as “the ‘bipolar concep- . The remarkable stories that Professor Bald tells in Professor Bald stories that The remarkable 534. all of the Indian men Professor It may be noteworthy that practically 535. construction of race, see Robert S. For critiques of the black-white binary 533. up in the Americans, particularly those who grew Other South Asian 532. TOF EV illustrate further how South Asian Americans’ racial ambiguity Asian Americans’ further how South illustrate ’ EP THNIC role in this racialization process. role in this racialization about the history of American racial hierarchy. Race in America has of American racial hierarchy. Race about the history in terms a black-white paradigm, not necessarily often centered on of groups involved, D L. R troit, and other cities, these men became an integral part of their an integral part men became other cities, these troit, and communities. local black lem how both situations, and in various and manifested is molded along with local racial microclimes, agency and ascription, tends to focus on the black-white racial paradigm, excluding Asian Americans and tends to focus on the black-white racial the black-white racial paradigm . . . [and other racial minorities . . . [to] focus on that has more than just a top and to] ignore[] the complexity of a racial hierarchy a bottom.”); Robert S. Chang & Catherine E. Smith, growing up with black friends and involvement in black organizations in graduate growing up with black friends and involvement school and law school). Bald discusses in demographics of Indian peddlers, merchants, and sailors, or it could be telling of demographics of Indian peddlers, merchants, identification with black communities. how Hindu caste and color biases affected See Koshy, in the early twentieth century, Pro- book on Punjabi male immigrants to California of the nine northern black wives fessor Karen Leonard also notes that “[s]even to a Hindu, and one to a Sikh.” were married to Punjabi Muslims, one .org/inner.asp?z=565E58; Chang, turalism, and Narrative Space South or border South, have stories of identification with African Americans. Kiran have stories of identification with African South or border South, Asian Americans and of the white House Initiative on Ahuja, Executive Director Spelman College, a up in Savannah, Georgia and attended Pacific Islanders, grew historically black institution for women. white House Initiative on Asian Americans and Pacific Islanders—Biography,white House Initiative on Asian Americans 6, 2013). Also, in 2011, Kamala D. Harris, who is of mixed-race heritage, became 6, 2013). Also, in 2011, Kamala D. Harris, General of California. Ms. Harris the first black and first South Asian Attorney black institution, and is a mem- graduated from Howard University, a historically sorority. ber of Alpha Kappa Alpha, the oldest black mala D. Harris tion of race’ that frames the discussion in terms of black and white relationships.”); Juan F. Perea, can Racial Thought E 168 West or American, African Rican, their Puerto with were living and NYU spouses.” Indian ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 92 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 90 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 90 35559-nys_69-1 35559-nys_69-1 Sheet No. 91 Side A 10/20/2014 11:50:05 : South Asians and 79, 97 (Ajay Nair & MERICA 3 (Alan Light ed., 1999). A OP Brown Like Dat H SIAN IP A These accusations also under- H 539 CRIT 169 Making OUTH S DESI ISTORY OF Professor Sharma contends that such Professor Sharma contends that H This connection has lead some observers This connection 538 2. Hip Hop Desis OP AND IBE 537 H V IP note 96. note 96, at 98. HE —even individuals who are not classified or for T : H 540 AP supra supra , , R . at 98 (noting that “white normativity” is rooted in “a belief in the ESI Raesham Chopra Nijhon, id D . HARMA HARMA In the past twenty years, and culture have years, hip hop music and culture In the past twenty in See See generally Cf S S , 536 In a very different historical context, Professor Nitasha Tamar historical context, Professor Nitasha In a very different 539. 538. 537. 540. 536. score the continuing significance of the black-white paradigm of score the continuing significance race in America accusations are rooted in a notion of white normativity, which accusations are rooted in a notion equates “American” with “White.” are asking [South Asian American Murali Balaji eds., 2008) (noting that “people hip hop artists] ‘[w]hy aren’t you being Indian?’” and thus are implicitly asking “[w]hy are you trying to be black?”). to charge that South Asian and other youth who engage hip hop to charge that South Asian and are “trying to be black.” Hip Hop identified as black or white. been mass-marketed across the United States and the world, becom- across the United States and been mass-marketed Hip hop is genre of popular . ing a predominant of urban real and the fictionalized experiences rooted in both the youth. black American Sharma also gives an account of South Asian Americans relating to an account of South Asian Americans Sharma also gives aspects of “Black- communities and claiming black American ness.” black and white binary”). reproduce this paradigm when they write and act as though only the black and the reproduce this paradigm when they write race and social policy with regard to white races matter for purposes of discussing as primarily of concern only to blacks race. . . . If one conceives of race and racism of color’ only through some unclear and whites, and understands ‘other people the binary paradigm with a slight con- analogy to the ‘real’ races, this just restates make valid points about how black- cession to demographics.”). These authors on American racism, and how this white relationships have framed the discourse experienced by Asian Americans and can marginalize particular forms of racism categories and groups, rather than Latinos. Nevertheless, they focus on racial with race, which this Article posits are key transferrable social meanings associated to informal racialization. 2013] in. Moreover, can fit Asian Americans, South such as groups, other this process, in ascription and of agency the role it complicates are not fully separable—as how the two showing racial actors’ context occurs in a wider racial identities defining their agency in such as ambiguous actors While racially ascriptions. full of racial others, more choices than may have Asian Americans many South racial microclimes. time periods and vary across these choices \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 93 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 91 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 91 35559-nys_69-1 35559-nys_69-1 Sheet No. 91 Side B 10/20/2014 11:50:05 545 and 543 Soul of Hip —were ex- A Battle for the 546 According to Professor Vinay Harpalani, 542 See Additionally, hip hop itself 547 (Nov. 17, 2000) [hereinafter text accompanying notes 509–10. ENNSYLVANIAN note 96, at 99–100. P see also supra both from Richmond, California, grew up in both from Richmond, California, 541 AILY supra 544 D , Black peers from childhood and college were also an Black peers from childhood and , . at 97; 548 . at 195. . . at 102. . at 91. . . at 106–07, 203–12. can also attest to this, as I My own experience HARMA Id Id Id S Id Id See id Id Professor Sharma notes that the race consciousness of some notes that the race consciousness Professor Sharma Nevertheless, Professor Sharma contends that South Asian that South contends Sharma Professor Nevertheless, 544. 545. 546. 541. 547. 543. 542. 548. ], http://www.thedp.com/article/2000/11/a_battle_for_the_soul_of_hip_ The cross racial identifications of hip hop desis are not rooted of hip hop racial identifications The cross notions of connec- or romantic theoretical, in ephemeral, and of the historical their knowledge they are based on tion . . . blacks Asians and shaped how South that have global forces awareness of Through their critical came to the Americas. these desis interactions, and hip hop music, power, cross-racial . . . By making race—takingengage difference. an active part racialization—individualsin the process of stake out new racial meanings . . . . Karmacy’s KB, posed to “an explicit black consciousness . . . about history and op- posed to “an explicit black consciousness desi family conversations focused pression, which contrasted with on studies, marriage, and careers.” Sharma, many South Asian hip hop artists were particularly influ- Asian hip hop artists were Sharma, many South and racial microclimes were im- enced by black friends and peers, artists, such as MC Rawj portant in this process. Some directly exposed these youth to messages about racial identity and directly exposed these youth to oppression. Hop hop. predominantly black neighborhoods, where they socialized with predominantly black neighborhoods, hop, while simultaneously learning black friends and listened to hip as South Asian Americans. and negotiating their own identities American identification with hip hop and blackness is more is blackness hop and hip with identification American and complex: nuanced part as a rebellion hip hop artists began in South Asian American when they anti-black prejudices, particularly against their parents’ to their homes. brought black friends Professor Sharma also notes that some South Asian American youth Professor Sharma also notes that in the Bay Area—thePanthers” “home of the black 170 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 94 15-OCT-14 10:41 Soul of Hip Hop listened to the race-conscious lyrics of KRS_ONE and Boogie Down Productions, Stetsasonic, and Public Enemy in the late 1980s. 35559-nys_69-1 Sheet No. 91 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 91 35559-nys_69-1 35559-nys_69-1 Sheet No. 92 Side A 10/20/2014 11:50:05 A- 553 , N , http:// ACISM and mul- 550 : R 551 Finding Nimo: A OP H IP http://en.wikipedia South Asian hip RODUCTIONS , H P 554 (May 6, 2012, 3:28 PM), ID OST K IKIPEDIA P Nipun Mehta, OWER TO W P OCO See , D’L LACK , B UFFINGTON CRIT 171 H ROM , , F in their best known song, “Passage to in their best known DESI See Das Racist note 548 (“Hip hop is essentially about a partic- note 548 (“Hip hop is essentially about (2006). 556 OLLINS supra , C have rapped about progressive social issues about progressive have rapped see also Bio: D’Lo 98–101 note 96, at 9. Karmacy consists of four members: KB, note 96, at 9. Karmacy consists of four ILL note 96, at 78. note 96, at 108. 552 H supra supra supra influence for South Asian American hip hop artists hip hop Asian American South for influence , , , EMINISM playfully asserts that they will “go classically to India that they will “go classically to playfully asserts F ATRICIA 549 P 555 . at 80. . . at 146–55; Later in the song, Karmacy’s lyrics take this anti-assimila- Later in the song, AND HARMA HARMA HARMA TIONALISM , See Soul of Hip Hop See Id Id Id S S S 557 note 553, I also interviewed Nimo, who would work on dance-drama per- note 553, I also interviewed Nimo, who Hip hop artists such as Sri Lankan American D’Lo, Lankan American artists such as Sri Hip hop 552. Americans and one member of Das Racist included two South Asian 553. 554. 556. 555. 557. 550. 551. 549. We’ll make a ballerina stop mid-pirouette We’ll make a ballerina supra tiethnic Das Racist tiethnic hop artists draw upon this anti-assimilationist theme, sometimes in upon this anti-assimilationist theme, hop artists draw which may be ways. For example, Karmacy, deliberately overstated to American South Asian American hip hop group the best known audiences, India.” dlocokid.com/bio/ (last visited Nov. 7, 2013). dlocokid.com/bio/ (last visited Nov. 7, Afro-Cuban and Italian descent. .org/w/index.php?title=Das_Racist&oldid=580339904 (last visited Nov. 7, 2013). .org/w/index.php?title=Das_Racist&oldid=580339904 ular mentality—oneof resistance to oppression and assimilation, of carving out you are and letting the world know about your own space, of showing pride in who time.”). For helping me develop this in- it. And it’s about having fun the whole fall of 1999, I interviewed Brijesh, who was sight, I also thank Brijesh Dave. In the Pennsylvania, for a class project on South then a law student at the University of hop—theAsian Americans, racial identity, and hip project that began this Article. that he thought hip hop was inherently During our conversation, Brijesh told me your peeps” (i.e., giving credit and “anti-assimilationist”; it was about “big upping heritage). recognition to one’s own community and http://www.huffingtonpost.com/2012/05/06/finding-nimo-a-rap-stars-_n_14906 43.html. related to race, gender, and sexuality. Moreover, progressive hip Moreover, progressive and sexuality. race, gender, related to theme, generalized anti-assimilationist have a more hop can and bring it to your room” and bring it to your growing up in predominantly white, suburban areas, helping these helping areas, suburban white, in predominantly up growing as racial beings.” themselves better understand artists “to Sammy, Swap, and Nimo. Swap and Nimo were undergraduate students at the Uni- Sammy, Swap, and Nimo. Swap and Nimo student there, so I became familiar versity of Pennsylvania when I was a graduate of 1999. As part of the class project noted with the group early on, around the fall in formances with children from the slums of India. formances with children from the slums tionist theme even further, purporting that they will assimilate vari- further, purporting that they tionist theme even into Indian culture: ous American icons Rap Star’s Journey With 16 Slum Children 2013] “important” in the black Power movement. which is rooted \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 95 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 92 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 92 35559-nys_69-1 35559-nys_69-1 Sheet No. 92 Side B 10/20/2014 11:50:05 S- IVE L IKIPEDIA W , Moreover, 561 558 note 537, at 84–85. But even this assertion of Nusrat Fateh Ali Khan http://en.wikipedia.org/w/index 560 , supra (May 5, 2007), http://www.youtube , UBE OP T H IKIPEDIA OU IP W Y , , H note 96, at 11. Natalie Wolchover, Top 5 Nobel Prize Goof-Ups, Natalie Wolchover, Top 5 Nobel Prize ISTORY OF See H supra , Passage to India IBE V See Bharata Natyam HE HARMA T S . at 197. See Id See 559 (Oct. 5, 2011, 11:08 AM), http://www.livescience.com/16391-top-5-nobel- Such playful exaggeration and bravado is another feature of and bravado is another Such playful exaggeration artists draw South Asian American hip hop More significantly, 560. 561. 559. 558. Karmacy, And break into a twenty minute Bharata Natyam set Natyam Bharata minute a twenty break into And Elton John like famous a troubadour, we’ll make Then Ali Khan Nusrat Fateh song for Sing a memorial they ignored committee recognize make the Nobel And we’ll him to Gandhi post-mortem the peace prize And give Sammy Sosa player out of an avid cricket We’ll make Stewart a recipe for samosas And give Martha I . . . We’re on a passage to India ‘Cause I, I, I, I, Professor Sharma argues that hip hop gives these South Asian Professor Sharma argues that South Asian cultural heritage has its roots in “wider urbanish black South Asian cultural heritage has turning to black musical forms consciousness,” with “South Asians senses of self.” to express their racial and American .php?title=Bharata_Natyam&oldid=608905859 (last visited May 30, 2014); Nusrat .php?title=Bharata_Natyam&oldid=608905859 musician. Fateh Ali Khan is a deceased Pakistani .com/watch?v=UnqYjKm4y0E. can be verified by These lyrics, performed by K.B., lyrics occur from 2:30 to 2:55. Various listening to the song on YouTube; the cited because those transcribing the lyrics did websites have erroneous lyrics, possibly referents: Bharata Natyam is a classical not understand the South Asian cultural Indian dance). hip hop, evident in many verbal jousts between artists over the in many verbal jousts between hip hop, evident years. in black pride themes of hip hop, rooted from the anti-assimilation to their own social and they apply these themes and consciousness, hip hop artists As Professor Sharma notes, and cultural contexts. translate between “operate as culture brokers who such as Karmacy Asians,” as they incorporate South generations of American South songs. Asian cultural themes into their prize-goof-ups.html (“In 2006, Geir Lundestad, Secretary of the Norwegian Nobel prize-goof-ups.html (“In 2006, Geir Lundestad, in our 106-year history is undoubtedly Committee, said, ‘The greatest omission the Nobel Peace prize. Gandhi could do that Mahatma Gandhi never received without the Nobel Peace prize. Whether Nobel committee can do without Gandhi is the question.’”). CIENCE https://en.wikipedia.org/w/index.php?title=Nusrat_Fateh_Ali_Khan&oldid=5798 to India” also makes references to In- 04463 (last visited Nov. 7, 2013). “Passage which may be the most well-known dia’s obsession with cricket and to samosas, Mahatma Gandhi’s omission among Indian food. Additionally, the song notes Nobel Peace laureates. 172 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 96 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 92 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 92 35559-nys_69-1 35559-nys_69-1 Sheet No. 93 Side A 10/20/2014 11:50:05 Moreover, 564 Professor Sharma acknowl- Professor Sharma 563 CRIT 173 In this sense, South Asian American In this sense, South DESI note 548 (noting that “hip hop has never been note 548 (noting that “hip hop has never 566 Professor Sharma notes that this is due Professor Sharma notes that this . (“Chicanos and desis are linked as Brown . (“Chicanos and desis are linked Id 568 supra , note 96, at 196. These examples illustrate that claims to racial sta- These examples illustrate that claims supra 567 , . at 161. . at 162. . at 162, 179. . Professor Sharma also notes the connection between South Asian and . Professor Sharma also notes the connection . at 114. HARMA 562 Id Id Id S Id Id See Soul of Hip Hop manifested through “racialized aesthetics” and “ethnic and “racialized aesthetics” and manifested through Professor Sharma’s analysis of these phenomena is more com- Professor Sharma’s analysis of these Of course, the above accounts highlight artists who themselves highlight the above accounts Of course, 565 565. 566. 567. 562. 568. 564. 563. Professor Sharma also notes how race and gender stereotypes play also notes how race and gender Professor Sharma For South Asian Americans’ affinity for hip hop. into South Asian black masculin- this occurs through “a desire for American males, ity,” edges that many South Asian American college students listen to South Asian American college edges that many “they ‘liked the beats’”hip hop music because dancing or enjoyed not really ‘understand the words.’”to it, “but they did males’ claim to blackness may be motivated by racial stereotypes blackness may be motivated by males’ claim to South Asian American women involving masculinity and “coolness.” stereotypic notions of black involved in hip hop can also accept their preference for dat- masculinity, articulated when explaining ing black men. to his skin color, hairstyle (closely-cropped), clothing, mannerisms, to his skin color, hairstyle (closely-cropped), tuses can be motivated not just by conventional desires for higher tuses can be motivated not just by racially stereotyped statuses general social positioning, but also group status related to “coolness.” related to masculinity and peer be fully elaborated in this Article. plex and nuanced and cannot theme of this Article, Professor Nevertheless, in line with the main Asian American racial ambiguity Sharma also discusses how South desis. One South Asian American plays into the lives of hip hop noted how he “is sometimes artist, Vivek from Connecticut, his black peers often treat him (mis)identified as a black man and like ‘one of their own.’” gendered performances” such as wearing particular styles (e.g., sag- such as wearing particular gendered performances” using slang. ging jeans) and have a deep engagement with hip hop music and culture. Many music and culture. with hip hop engagement have a deep generally, youth more like American Asian Americans, other South with its engagement hop without a deeper commercial hip listen to miso- hip hop’s lens on commercial without a critical roots, and content. gynistic and homophobic 2013] race American comprehend to analytics “an artists American politics.” \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 97 15-OCT-14 10:41 Latinos through hip hop. free from the misogyny and homophobia that pervade American society”). free from the misogyny and homophobia youth . . . .”). 35559-nys_69-1 Sheet No. 93 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 93 35559-nys_69-1 35559-nys_69-1 Sheet No. 93 Side B 10/20/2014 11:50:05 text 574 see also supra This example also example This 569 Professor Ronald Takaki These racial performances These racial 572 570 For example, one Sikh immigrant 571 note 88, at 29 (discussing the experience of a supra , note 257, at 295. 3. The N-Word and the M-Word: supra , Anti-Black Epithets Directed at South Asians Anti-Black Epithets and Professor Bandana Purkayastha notes that this ra- and Professor Bandana Purkayastha URKAYASTHA P . . at 296. . . at 113. 573 AKAKI Id Id T See Id Id More generally, Professor Sharma argues that because of their that because of Sharma argues Professor More generally, In a more public realm, such racial ascriptions can also serve In a more public realm, such racial Ascriptions of blackness to South Asian Americans have oc- to South Asian Americans Ascriptions of blackness 572. 573. 574. 569. 570. 571. problematizes the distinction between agency and ascription. agency between the distinction problematizes to ‘do youth have “learned American South Asian racial ambiguity, molds out of the racial stepping in and twists and turns, race’ with society.” . . . by the larger prescribed also notes that at times, early Indian immigrants were referred to as also notes that at times, early Indian “niggers,” take several forms, including superficial engagement with hip hop engagement with superficial forms, including take several a deeper en- of race and gender stereotypes; and its incorporation of hip consciousness; and also transposition gagement of black Asian cultural themes onto South hop’s anti-assimilationist contexts. noted how a white man said to him, “Come here, slave,” and stated noted how a white man said to him, India. that whites ruled and enslaved accompanying notes 568–69 artist who is “some- (describing a South Asian hip hop times (mis)identified as a black man”). cial epithet is still directed at South Asian American youth. cial epithet is still directed at South South Asian medical student who was called “nigger” as a child); particular political ends. For example, in 1965, Indian Prime Minis- particular political ends. For example, President Mohammed Ayub ter Lal Bahadur Shastri and Pakistani United States. However, after both Khan were scheduled to visit the the Vietnam War, President Lyn- leaders expressed opposition to remarking, “After all, what don Johnson cancelled their visits, Senator from Mississippi] say would Jim Eastland [the conservative curred since the initial wave of South Asian immigration to the initial wave of South Asian immigration curred since the century. Professor Ronald United States in the early twentieth with other Asian groups was Takaki notes that while association Asian Indian immigrants were as- more common, at times the early sociated with black Americans. 174people. black with social relationships and NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 98 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 93 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 93 35559-nys_69-1 35559-nys_69-1 Sheet No. 94 Side A 10/20/2014 11:50:05 , 576 577 IMES supra T , N.Y. Mazumdar, see also President Johnson’s President , Aug. 21, 2006, at B10. , Nov. 12, 2006, at C12. 575 IMES IMES L.A. T Allen Quip Provokes Outrage, Apology , N.Y. T ’ , CRIT 175 Although Senator Allen denied 578 DESI President Lyndon Johnson: The War Within The incident prompted attention to Al- The incident prompted attention 579 The Year of ‘Macaca The Un-American Senator . , Aug. 15, 2006, at A01. Id OST . P The most recent such public episode that gained nationwide episode that recent such public The most However, Allen did not anticipate the power of internet me- However, Allen did not anticipate , Aug. 21, 1988, at 34, 36 (alteration in original); , Aug. 21, 1988, at 34, 36 (alteration in 579. 577. Tim Craig & Michael D. Shear, 578. Editorial, 575. Richard N. Goodwin, 576. Frank Rich, . ASH AG attention was the “macaca” incident during the 2006 campaign of “macaca” incident during the attention was the Allen was touted Senator George Allen. Senator former Virginia but also as a winner in the Senatorial election, not only as an easy nomination. the 2008 Republican Presidential frontrunner for remark was not widely reported in 1965, as it would be today. His be today. it would as in 1965, reported not widely was remark appease- drew upon South Asian leaders of the two racialization a which was apparently sentiment, Southern segregationist ment of Vietnam to the the leaders’ opposition reason than more viable War. knowing about this usage, reporters soon learned that his mother knowing about this usage, reporters and that Allen himself spoke was from francophone Tunisia, French relatively well. len’s dubious racial past, which included opposition to a state Mar- len’s dubious racial past, which included a display of a Confederate flag on tin Luther King, Jr. holiday and M W dia—annot have to deal with. issue that President Johnson did quickly and widely on YouTube, Videotape of this incident spread referred to macaques—aand media soon reported that “macaca” species of monkey—and racial epithet was considered an anti-black in French-speaking countries. This changed dramatically when S.R. Sidarth, a twenty-year-old when S.R. Sidarth, This changed dramatically Jim Webb, for Allen’s Democratic opponent, campaign volunteer across the state of and videotape Allen’s rallies was assigned to track town of Breaks, 11, 2006 rally in the rural Virginia. At an August dark-skinned to Sidarth, who is a relatively Virginia, Allen referred to Macaca, by stating, “Let’s give a welcome Asian Indian American, of Virginia.” to America and the real world here. Welcome person at the rally and caught the Sidarth was the only non-white to a rural Virginia electorate, Al- incident on videotape. Appealing of material racialization to label len had employed the device in an attempt to associate Sidarth as both “black” and ‘“foreign,” campaign and imply a sep- these characteristics with his opponent’s and “real” America. aration between South Asian Americans 2013] here.” over niggers those two brought if I \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 99 15-OCT-14 10:41 note 14. 35559-nys_69-1 Sheet No. 94 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 94 35559-nys_69-1 35559-nys_69-1 Sheet No. 94 Side B 10/20/2014 11:50:05 . , Al- MER A , 581 , Feb. 6, OST 582 . P ASH W , Additionally, the 584 (Nov. 10, 2006), http://articles note 208, at 933 (noting the emer- RESS P supra —thus minor- invoking the model AILY , D 583 , Senator Allen Trapped the Brown Skin Monkey 2 Ex-Acquaintances of Senator Allen Say He Used Slurs 2 Ex-Acquaintances of Senator Allen Say He Senator Allen repeatedly apologized for the apologized repeatedly Allen Senator 580 The ‘What If’ of Allen Haunts the GOP Race , Sept. 26, 2006, at A20. Where The Newspaper Stands See From Bi-Racial to Tri-Racial (Aug. 26, 2006), http://www.americanchronicle.com/articles/viewArticle . IMES Thus, while the “macaca” incident shows the racial ambiguity Thus, while the “macaca” incident The “macaca” incident illustrates how informal racialization illustrates how incident The “macaca” 583. Randy L. Harrington, 582. Tim Craig, 581. 580. David D. Kirkpatrick, 584. HRON len’s loss also gave the Democrats a one seat majority in the Senate, seat majority in the a one also gave the Democrats len’s loss of this Moreover, because of power. the entire balance thus shifting in 2008. not to run for President Allen decided collapse, “macaca” incident once again underscores the importance of racial “macaca” incident once again underscores this remark to a conservative, ru- microclimes. Senator Allen made ity stereotype. Again, one can ask whether these accomplishments ity stereotype. Again, one can ask racial epithet, or if he would be made Sidarth less deserving of the a high achiever. More importantly any more deserving if he was not blackness is ideologically situated though, this point illustrates that and to particular forms of hon- in opposition to the model minority orary whiteness—those achievement. These depicting success and blackness and reclaim whiteness. qualities can be used to negate of South Asian Americans, it also and malleable racial positioning position of black Ameri- underscores the assumed and stereotypic hierarchy. cans at the bottom of the racial status 2008, http://www.washingtonpost.com/wp-dyn/content/article/2008/02/05/AR 2008020503237.html?sid=ST2009081303022. C comment, but his campaign crumbled, and he lost a very close elec- very close lost a and he crumbled, his campaign but comment, of over 2.3 million. 7,000 votes out by a mere tion, decided .dailypress.com/2006-11-10/news/0611100140_1_recount-macaca-attorney-gener al-election. can simultaneously employ a multiplicity of racial symbols. The me- employ a multiplicity of racial can simultaneously as “macaca,” illus- Sidarth, the young man labeled dia’s portrayal of whiteness and contestation between honorary trated the ongoing pointed out this process. For example, journalists non-whiteness in him less deserving born in Virginia, as if this made that Sidarth was Sidarth’s sta- someone who was not. Essentially, of the epithet than whiteness American became a form of honorary tus as a native born same time, media negate his “foreignness.” At the which was used to noted Sidarth’s Tim Russert of “Meet The Press” pundits such as educational achievements—hescored was a straight-A student and on the SAT a 1550 out of 1600 .asp?articleID=12896 (last visited May 14, 2007). gence of a “Collective Black” at the bottom of America’s racial hierarchy). N.Y. T 176 wall. room his living NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 100 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 94 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 94 35559-nys_69-1 35559-nys_69-1 Sheet No. 95 Side A 10/20/2014 11:50:05 See See, note 14, (Mar. 23, supra UEER Q Koshy, RETTY P See , CRIT 177 DESI 585 note 14, at 311–15. supra , Aug. 20, 2013, http://www.huffingtonpost.com/henna- How We Lose When Hate Crimes Win OST Race Relations on the Playground: White Nanny to South Asian Fam- Koshy, P note 1, at 78 (“[During my undergraduate years,] my racial ambi- note 1, at 78 (“[During my undergraduate See supra UFFINGTON 585. Susan as well. Professor vary between nations racial dynamics Of course, Racial invisibility seems to parallel honorary whiteness, occurring in more Racial invisibility seems to parallel honorary Nevertheless, as noted throughout this Article, honorary whiteness can be ne- Nevertheless, as noted throughout this H , Beth Leonard, , Harpalani, 2012), http://www.prettyqueer.com/2012/03/23/how-we-lose-when-hate-crimes- see win/#more-3004. For another example of the negation of honorary whiteness, Henna Budhwani, ily budhwani-phd-mph/race-relations-on-the-playground_b_3759039.html (describ- Koshy notes that the ambiguity of South Asian Americans can, in some contexts, can, in some of South Asian Americans that the ambiguity Koshy notes States, as demon- by relative racial invisibility in the United also be compounded an au pair from an Woodward case. Louise Woodward was strated by the Louise Matthew Eappen, the with the care of eight-month old England who was charged a South Asian a white American, and Sunil Eappen, son of Deborah Eappen, murder when was accused and convicted of second-degree American. Woodward fracture. Subsequently, of head injuries caused by a skull Matthew Eappen died judge in the case. Pro- was reduced to manslaughter by the Woodward’s conviction race on public senti- that, while the effect of Sunil Eappen’s fessor Koshy illustrates the result was quite and unspoken in the United States, ment was invisible as “black,” and South Asians in England have been classified different in England. circumstances as the class backgrounds under similar most come from working contrast to the differ- in England. This, of course, is in Afro-Caribbean population Public sentiment in and South Asians in the United States. ent histories of blacks the English media depicted Deborah England strongly favored Woodward, and her race. In contrast, the issue of race was Eappen as a bad mother and a traitor to media, and public sentiment in America principally absent from the case in U.S. asks whether this would have been the also favored Woodward. Professor Koshy had been white. case if both of Matthew Eappen’s parents 2013] more diverse, so in a done not have he may audience; ral Virginia Ameri- Asian to South of blackness ascriptions Racial setting. urban in hierarchy operates of how racial particularly illustrative cans are microclimes. various racial at 311–15. assimilation is relatively easy. privileged environments, at times when \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 101 15-OCT-14 10:41 guity now played a new role. With the so-called prosperity of the Clinton years and guity now played a new role. With the so-called college campus, there was no reason for the politically correct environment of a that my black peers from high school anyone to scapegoat me. I had an advantage could not have received—the ability to be racially invisible. I could just fit in with I was expected by students, professors, the predominantly white crowd, and tacitly, More broadly, the different por- and everyone else to assimilate in this manner.”). reflect not only the racial ambiguity trayals of Woodward case in the two countries the marginality of South Asians in of South Asians, but also, more importantly, both societies. e.g. gated—sometimes subtle ways. One illustration is the recent case of Dharun in who set up a webcam to spy on the Ravi, an Indian teenager from New Jersey Tyler Clementi, at . Cle- sexual encounters of his gay roommate, and Ravi was convicted of a bias crime. menti committed suicide soon thereafter, of LGBT communities, argued that like Progressive bloggers, including members because he is a person of color. many black youth, Ravi was especially targeted 35559-nys_69-1 Sheet No. 95 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 95 35559-nys_69-1 35559-nys_69-1 Sheet No. 95 Side B 10/20/2014 11:50:05 notes 576–85. these ascriptions probably occur these ascriptions V. supra 587 1. “DesiCrit” Defining A. Major Aims of this Article SYNTHESIS AND CONCLUSION SYNTHESIS AND notes 9–13 and accompanying text. note 575 and accompanying text. It is unclear whether Senator text accompanying Conversely, when I am labeled as, “Italian,” “Arab,” Conversely, when 586 See See supra See supra The two major aims of this Article have been to: (1) provide a The two major aims of this Article This Article has analyzed the racial ambiguity of South Asian analyzed the racial ambiguity of This Article has This Article has focused on the racial ambiguity of South Asian This Article has focused on the racial Ascriptions of blackness denoted in this Section can be differ- can this Section in denoted blackness of Ascriptions 586. 587. comprehensive account of the racialization of South Asian Ameri- comprehensive account of the racialization their racial ambiguity, and intro- cans (or Desis) with a focus on and (2) begin the synthesis of a duce DesiCrit in the process; analyze racial ambiguity of indi- general theoretical framework to viduals and groups. Americans, examining their various formal racial classifications and Americans, examining their various from the early 1900s to the pre- informal racial characterizations aims of the analysis above, and sent. This Part synthesizes the major the implications of this anal- then concludes this Article by positing hierarchies more broadly. ysis for understanding of racial because the individuals who refer to me by these ascriptions often who refer to me by these because the individuals a member of the given group. actually think I am “Mexican,” or “Puerto Rican,” “Mexican,” or “Puerto Americans to situate their racialization in legal scholarship and race Americans to situate their racialization analysis is self evident in the sec- scholarship more generally. This synthesis summarized in Part tions above, along with the theoretical ent from the previously discussed racial ascriptions in that they do that they in ascriptions racial discussed previously from the ent in (South Asian American racialized actor posit the not necessarily race of the ascribed a member to be categorically these cases) did Johnson probably President Lyndon here). (black Americans were India and Pakistan Ministers of that the Prime not think them be- to disparage an anti-black epithet he merely used “black;” the time, and be- viable and convenient at cause it was politically and salient in of blackness was understood cause the social meaning the context. ing how an onlooker at Wald Park in Vestavia Hills, Alabama described Budhwani’s ing how an onlooker at Wald Park in Vestavia “poor . . . biracial . . . [with an] . . . unwed children, both South Asian American, as mother [who] is so lazy” when the children were with their white nanny). 178 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 102 15-OCT-14 10:41 George Allen’s knew S.R. Sidarth’s South Asian heritage when he made the “ma- caca” remark. 35559-nys_69-1 Sheet No. 95 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 95 35559-nys_69-1 35559-nys_69-1 Sheet No. 96 Side A 10/20/2014 11:50:05 CRIT 179 DESI 2. Racial Ambiguity Theorizing note 1. supra This type of interplay and exchange will serve Critical Race This type of interplay and exchange Additionally, this Article has begun the process of creating a Additionally, this Article has begun In one sense, I view DesiCrit as an opportunity for South Asian DesiCrit as an opportunity for In one sense, I view would not only impel South In fact, my hope is that DesiCrit 588. At various times, I personally have been involved in black, Asian Ameri- 588 Harpalani, Theory—and particularly its activist roots—morean isolated than South Asians. DesiCrit movement focused on theoretical framework to examine racial ambiguity by laying out theoretical framework to examine When applying this framework to and applying its basic features. ambiguity stands out with respect South Asian Americans, our racial to both formal and informal racialization—because of our physical racial hierarchy, and our appearance, our positioning in American can, South Asian American, and Latino organizations, along with broad people of can, South Asian American, and Latino organizations, along with broad people color coalitions and predominantly white organizations interested in racial justice. See 2013] discus- further merits of “DesiCrit” the notion Nevertheless, V.A.2. Article the above, the analysis through it is introduced While sion. exactly is question: what answer to the posit a more direct can still in group-based movements relate to other and how does it DesiCrit, answers to potential may be various Race Theory? There Critical of this view as the author give my own and I will these questions, Article. more race conscious—toAmericans to become of become aware identity, and to racial characterization and their own ambiguous That is why my no- and engage this phenomenon. critically observe racial ambiguity of has focused specifically on the tion of DesiCrit positions we oc- and the various racialized South Asian Americans view DesiCrit as a society. Nevertheless, I also cupy in American broader race consciousness—one racial that may be created by the Americans, but experiences of South Asian ambiguity and related hierarchy more us about racial identity and one that teaches South Asian Amer- do not see DesiCrit as limited to broadly. Thus, I racial ambiguity. Part V.A.2 high- icans, even as it focuses on our racial ambiguity more generally, lights the lessons of DesiCrit for for understanding racializa- and Part V.B discusses its implications racial ambiguity. tion and racial hierarchy even beyond their own racial ambiguity and Asian Americans to think about also to build coalitions with other their own racial positioning, but Americans can become directly racial/ethnic groups. South Asian groups, and in broad people of involved in organizations of those groups that include white peo- color coalitions and race-conscious ple. \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 103 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 96 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 96 35559-nys_69-1 35559-nys_69-1 Sheet No. 96 Side B 10/20/2014 11:50:05 note 25. supra , ? HITE W CTING A ., e.g , and it focuses on informal racialization. In the same vein and it focuses on informal racialization. See 589 Second, this Article builds on theories of whiteness, racial capi- Second, this Article builds on theories First, the Article builds on sociohistorical theories of racializa- sociohistorical Article builds on First, the 589. as the analysis of racial ambiguity here, this literature problematizes as the analysis of racial ambiguity the significance of race. racial categorization while underscoring of race under the law, informal With the diminishing formal role significant role in explaining ra- racialization has taken on a more Article contributes to the explica- cial identity and inequality. This South Asian Americans, but such tion of informal racialization of for a variety of individuals groups, explication is useful and salient racial identities. particularly those with more ambiguous and illustrate that formal and talism, and racial hierarchy to argue claims by minority group informal racialization occur through racial hierarchy, and via members to various statuses in America’s minority group members. It high- ascriptions of these statuses onto Americans in making claims to va- lights the agency of South Asian motivations for doing so. Through rious racial statuses, with varying contexts and different racial its analysis of different historical microclimes, this Article has illustrated that South Asian Americans make claims to racial status in a variety of social hierarchies, includ- ing conventional hierarchies of social positioning in America (e.g., 180 a vari- allows This ambiguity groups. to other relationships various NYU also and Americans, Asian by South statuses to racial claims ety of ANNUAL SURVEY OFHow these us by others. status on to of racial various ascriptions AMERICAN LAW particular on the out is often dependent ascriptions play claims and [Vol. 69:77 versus the role of agency they occur, and where racial microclime not always clear. racial status is in determining ascription racialization. For- formal and informal modes of tion to delineate authority applying involves government or other mal racialization while informal racial classification scheme, an officially sanctioned that do not situational racial characterizations racialization involves application of authority and do not involve direct necessarily invoke that formal schemes. It acknowledges existing racial classification to an extent, are related and may overlap and informal racialization for the former emphasizes government categories but this Article racial ambiguity of for the latter. While the and racialized symbols both formal has been manifested through South Asian Americans is particularly important, as it and informal racialization, the latter of formal categories and inherently problematizes the application symbols. The growing scholarly requires one to focus on racialized of race includes various literature on performative aspects groups, \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 104 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 96 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 96 35559-nys_69-1 35559-nys_69-1 Sheet No. 97 Side A 10/20/2014 11:50:05 . J. ICH M , 5 ). The Arti- ), or by the desire to ), or by the desire Hip Hop Desis CRIT 181 Bengali Harlem The dominant position of whites is The Content of Our Characterizations 590 DESI Paulette M. Caldwell, 53, 63–64 black-white (1999) (“[M]uch of what passes for critique of the See B. Broader Implications for American Racial Hierarchy 1. and Relational Character of Racialization Contextual First, this Article highlights the contextual and relational char- First, this Article highlights the contextual By theorizing and analyzing South Asian American racial ambi- By theorizing and analyzing South Finally, this Article has highlighted the notion of racial has highlighted the notion Finally, this Article & L. 590. ACE R acter of racialization. It illustrates that one cannot fully understand acter of racialization. It illustrates of South Asian Americans with- the racial portrayal and positioning of African Americans and other out considering the experiences understand the position of minorities. Similarly, one also cannot relationships between white any group just by examining binary Americans and other groups. construction of race does little more than substitute alternative binary or other guity, this Article also contributes general insights to Critical Race guity, this Article also contributes which have broader implications Theory and racialization theory, hierarchy. for understanding American racial create cross-racial communities with common political goals (e.g., communities with common political create cross-racial artists discussed in South Asian American 2013] honorary and seeking stereotype minority” “model the embracing mascu- of hierarchies stereotyped and racially a status); as whiteness association through pursuing blackness peer status (e.g., linity and also be Such claims might and fashion). hop music, slang, with hip South and notoriety (e.g., economic gain by a desire for motivated to and exoticism, employ “foreignness” leaders who Asian spiritual to belong by a desire Western audiences), faiths to market Eastern so are available when limited options for doing to a community Americans in (e.g., South Asian Asian Ameri- ascriptions of racial statuses to South cle also discusses The variety of between agency and ascription. cans, and linkages from South covered here emanate directly claims and ascriptions the interplay racial ambiguity, and they illustrate Asian American racial ambiguity and ascription in understanding between agency and individuals. among other groups microclimes—localsocial and political dy- settings with particular processes. It has shown how such namics that affect racialization how the racial ambi- microclimes are important in understanding out in particular contexts. The guity of South Asian Americans plays racially ambiguous groups and same is of course true for other individuals. \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 105 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 97 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 97 35559-nys_69-1 35559-nys_69-1 Sheet No. 97 Side B 10/20/2014 11:50:05 , ROSSROADS C in Mari Matsuda, , 1585, 1596 (1997), . EV see also . L. R Afterword: Embracing the Tar- ALIF Nevertheless, one reason C 395 (Francisco Valdes et al. eds., 591 , 85 HEORY T ACE R note 14, at 6. RITICAL C supra and these meanings are readily transferred on and these meanings are readily EW 592 N 499, 510 (1998) (“The claim [of my argument for ‘black exception- 499, 510 (1998) (“The claim [of my argument AND A Leslie Espinoza & Angela P. Harris, Leslie Espinoza & Angela P. Harris, , L.J. 2. the Black/White Paradigm Continuing Salience of See AZA Second, and related, the analysis in this Article illustrates that Second, and related, the analysis Additionally, the relational aspects of racialization are often de- are often aspects of racialization the relational Additionally, R 591. Visweswaran, 592. A L IRECTIONS for continued salience of the black-white paradigm is that black and for continued salience of the black-white with the most salient social mean- white are the two racial statuses ings in America, 10 2002) (“When we say we need to move beyond black and white, this is what a whole lot of people say or feel or think: ‘Thank goodness we can get off that paradigm, because those black people make me feel so uncomfortable.’”). D Beyond and Not Beyond Black and White: Deconstruction Has a Politics alism’] is, quite simply, that African Americans play a unique and central role in alism’] is, quite simply, that African Americans economic life, and have done so since the American social, political, cultural, and the ‘black-white paradigm’ . . . is no acci- nation’s founding. From this perspective, important truth.”); dent or mistake; rather it reflects an while the demographics and dynamics of racialization in America while the demographics and dynamics the black-white paradigm of have become increasingly complex, salience, even for groups who do American race relations still has categories. Professor Kamala not fit into “black” or “white” formal is a tendency “to cast the racial Visweswaran contends that there as symbolically ‘whitened’ or identities of immigrant Asian groups groups too quickly in a mediating ‘blackened’ . . . or to place Asian position between blacks and whites.” constructions . . . [;] challenging the prevailing paradigm does so only by articulat- constructions . . . [;] challenging the prevailing with African Americans . . . and ing the claims of other subordinates in comparison dominant whites.”). 182 with of whites juxtaposition that the the extent to for granted taken NYU of the process but not questioned, generally is other group any ANNUAL SURVEY OF all differ- between to analyze relationships requires us racialization AMERICAN LAW with white relationships analysis of not just through ent groups, [Vol. 69:77 each group. historical and on the racial microclime on the particular pendent 2003 guberna- as illustrated by Bobby Jindal’s and political context, This is important and by the “macaca” incident. torial campaign racializa- racial ambiguity and understanding not only in theorizing increasingly com- but also in negotiating the tion more generally, racial microclimes of race. Delineating how plex political dynamics important step in theorizing “microracialization” operate is also an and distinguishing it from “macroracialization” (at the local level) level). (at the societal/national \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 106 15-OCT-14 10:41 Baby—LatCrit the Sticky Mess of Race Theory and 35559-nys_69-1 Sheet No. 97 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 97 35559-nys_69-1 35559-nys_69-1 Sheet No. 98 Side A 10/20/2014 11:50:05 , 94 http:// available at is de-emphasiz- ., Charles M. Blow, 595 See, e.g and the Colorblind Constitution CRIT 183 , July 20, 2013, at A19, DESI IMES N.Y. T , note 535. 3. of Race Emphasis on Social Meaning And at a time when the U.S. Supreme Court, And at a time when the U.S. 203, 206 (2008). . 594 EV Christopher W. Schmidt, Brown and by focusing on South Asian American racialization, Asian American focusing on South and by See See supra 593 L. R Barack and Trayvon Finally, by considering informal racialization in depth, this Ar- informal racialization in Finally, by considering 595. 593. 594. President Barack Obama’s comments on the death of Trayvon Martin, in ORNELL ing race, it is important as ever to emphasize these powerful social ing race, it is important as ever effects. meanings and their continuing www.nytimes.com/2013/07/20/opinion/blow-barack-and-trayvon.html. through its formalist, “colorblind” jurisprudence, through its formalist, “colorblind” this Article acknowledges and responds to these calls. But ironically, and responds to these calls. this Article acknowledges ambiguity, in on South Asian American racial this Article’s focus symbols and social its emphasis on transferrable conjunction with of the black- the continuing significance meanings, still illustrates white paradigm. ticle posits racial identity as a transferrable entity and focuses on identity as a transferrable entity ticle posits racial to already, rather and racial symbols, as alluded social meaning racialization is still classification. Although formal than categorical such as South Asian Ameri- important, racially ambiguous groups attributes of whiteness, “foreign- cans, can simultaneously possess attempt to claim or rebuke these ness,” and “blackness,” and may of these various racial statuses attributes. Additionally, attributes actors. This Article con- can be ascribed onto racially ambiguous Race Theory and racialization the- tends that the future of Critical groups and creating notions ory lies not only in examining other how race is salient as a form such as DesiCrit, but rather in showing negation of such capital) rather of transferrable capital (or as a America, if anything, reflects than just as a category. “Post-racial” of racial categorization itself: the only the declining significance meanings associated with race are symbols, stereotypes, and social still salient. Op-Ed., the wake of his killer’s acquittal, illustrate this salience. C 2013] rather entity as a transferrable race viewing When groups. to other classi- than rather meaning social emphasizing and a category, than rel- the continuing in this Article highlight many examples fication, important have been paradigm. There the black-white evance of scholars to critical race Asian American other Latino and calls by other and examine paradigm the black-white move beyond groups, \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 107 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 98 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 98 35559-nys_69-1 35559-nys_69-1 Sheet No. 98 Side B 10/20/2014 11:50:05 184 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 108 15-OCT-14 10:41 35559-nys_69-1 Sheet No. 98 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 98 35559-nys_69-1 35559-nys_69-1 Sheet No. 99 Side A 10/20/2014 11:50:05 R R R R R R R R R R R R R R R Strauder v. West ...... 228 Farrakhan v. Gregoire ...... 258 ...... 188 ...... 257 ...... 210 ...... 241 ...... 246 ...... 214 185 ...... 207 ...... 197 INTRODUCTION ...... 207 JESSICA HEYMAN* JESSICA ...... 197 and Its Progeny JURIES DIFFERENTLY JURIES ...... 185 ...... 227 ...... 263 1. Title VII 2. The Voting Rights Act Batson Doctrine Intent Doctrine Selective Prosecution C. A. Protection Intent The Evolution of Equal B. the Equal Protection Statutory Departures from C. The Equal Protection Intent Test at Work: A. Cases: The History Jury Discrimination B. Jury Pool Jurisprudence Court’s Remarkable Jury Jurisprudence HOW EQUAL PROTECTION TREATS EQUAL PROTECTION HOW For nearly a century after the Fourteenth Amendment was For nearly a century after the I. of State Action The Unstated Function * Editor 2011–12, Managing of American Law; J.D. N.Y.U. Annual Survey INTRODUCING THE JURY EXCEPTION: JURY THE INTRODUCING V. for the Is the Jury Different?: Three Explanations II. Theories of Intent IV. The Jury Jurisprudence Is Different III. Juries passed, Equal Protection did little to protect people of color. With passed, Equal Protection did little the last hundred and one exception: the jury box. Throughout 1879 case of thirty years, beginning with the seminal Introduction 2012, N.Y.U. School of Law; B.A. 2007, Yale University. I would like to thank 2012, N.Y.U. School of Law; B.A. 2007, and guidance throughout the writing Professor Peter Schuck for his insight and Anna Roberts for their incisive and process, and Professors Seth Kreimer grateful to Bryan Stevenson, whose work invaluable comments. I am also deeply on fighting against racial unjustice is a perpetual inspiration, and whose feedback my argument was indispensible. Finally, thank you to Ryan Haygood, whose warm support and extraordinary work on political participation in sparked the initial development of this Note. The staff members of the Annual Survey are to be thanked for their skillful editing; all errors are my own. Conclusion \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 1 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 99 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 99 35559-nys_69-1 35559-nys_69-1 Sheet No. 99 Side B 10/20/2014 11:50:05 . LL N. I , 16 The only This Note 3 5 Batson v. Ken- Hernandez v. New York, jurisprudence is “unconven- ee also 1359 (2012). . Id. Batson EV Disparately Seeking Jurors: Disparate Impact L. R AVIS U.C. D This course has not been an unblemished has not been This course 2 Anna Roberts, , 45 , text accompanying notes 430–33; s see generally and continuing to the present, the Supreme Court has Court Supreme the the present, to continuing and 295 (1996). Swift discusses how the . The Unconventional Equal Protection Jurisprudence of Jury Selection 1 relevant in the legal discourse; but no one has drawn these relevant in the legal discourse; but See infra EV 4 The Supreme Court’s jury jurisprudence is simply different jury jurisprudence is simply The Supreme Court’s shut or narrowed in other Even as the courthouse doors have Part I examines the state This Note proceeds in several parts. But that’s not all. Jury jurisprudence is the only area of Equal only area of is the not all. Jury jurisprudence But that’s 4. 476 U.S. 79 (1986). 5. The only article I came across that comes close to making this claim is Joel 1. 100 U.S. 303 (1879). 2. pool, is the overall group selected The jury venire, also known as the jury 3. other areas of civil rights law that use a similar test are those in rights law that use a similar other areas of civil 2 of the Voting intervened: Title VII and Section which Congress Rights Act. Court has pro- of Equal Protection law. The from all other areas it did not find discrimination during eras where tected juries from enjoys any other area. Further, jury jurisprudence discrimination in jurisprudence re- area of Equal Protection a privilege no other ceives—a and the ability to prove discrimina- burden-shifting test tion with statistics. to be protected. Scholars have areas of law, the jury has continued noted the high number of jury discussed the special role of the jury, and kept cases where courts found discrimination, tucky explains why this is so. action doctrine—much a hurdle for most critiqued, but no longer that there are two unexplored Equal Protection plaintiffs. I contend light on why the jury cases receive aspects of the doctrine that shed one, but overall it is emphatically the most protected area of Equal protected area the most overall it is emphatically one, but jurisprudence. Protection to a dispa- akin that employs something jurisprudence Protection test. and uses a burden-shifting rate impact standard U. L. R H. Swift, consistently affirmed its protection of blacks on jury venires, grand venires, on jury blacks of its protection affirmed consistently petit juries. juries, and together. Together the effect is startling. Juries receive an unparal- together. Together the effect is procedural solicitude. leled amount of substantive and tional”, but makes no attempt to explain why. 500 U.S. 352, 362 (1991) (stating that disparate impact should be given “appropri- 500 U.S. 352, 362 (1991) (stating that disparate ate weight”); and the (Mis)use of Batson by jury commissioners. Both the grand jury and petit juries are drawn from this by jury commissioners. Both the grand the petit jury, or the trial jury, pool. The grand jury’s role is to issue indictments; verdicts. hears the individual cases and determines 186Virginia NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 2 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 99 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 99 35559-nys_69-1 35559-nys_69-1 Sheet No. 100 Side A 10/20/2014 11:50:05 Part II dis- 6 and its progeny re- Shrinking Domain of Invidious Batson K.G. Jan Pillai, 525, 531–32 (2001). They will be used in this See . J. TS R ILL B ARY . & M M W In the last three parts of the Note, I turn to jury jurisprudence parts of the Note, I turn to jury In the last three , 9 6. The terms “discriminatory intent,” “invidious intent,” “invidious discrimina- voked the prosecutor’s traditional unfettered discretion with per- voked the prosecutor’s traditional a burden-shifting test to make emptory strikes and implemented prove. Part IV briefly recaps and such claims relatively simple to areas of Equal Protection law. compares jury jurisprudence to other of why this jurisprudence is Finally, Part V provides explanations stated that juries should be different. The Court has never explicitly why the jury receives special treat- treated differently or explained hint—manyment. However, the dicta offers a of the jury cases glow- a functional democracy. It is also a ingly cite the jury as essential to so more protection for juries may narrow area of law to defend, and unlikely to open the floodgates. strike cautious Justices as safe, Court is intolerant of discrimina- More cynically, I argue that the right before their eyes and tion in jury selection because it happens Because the jury is at the violates the sanctity of the courtroom. heart of the judicial branch—the to whom it cedes deci- fact finder cusses the different standards the courts use: discriminatory intent standards the courts use: discriminatory cusses the different Title VII, and the cases, disparate impact for for Equal Protection I then illustrate 2 of the Voting Rights Act. results test for Section prosecution intent doctrine in the selective the failure of the context. of jury jurisprudence, which shows itself. Part III surveys the history battle against jury discrimina- the force and duration of the Court’s discrimination in the jury venire tion. The first two subparts address discusses discrimination in the and grand jury. The third subpart how trial jury. Specifically, it describes Note interchangeably as well. Intent tion,” and “purposely discrimination” are used interchangeably by the Supreme Court and the courts of appeal. 2013] identity—whether actor’s that the First, treatment. unique such in- shop a coffee commissioner, jury a single individual, or stitutional THE JURY EXCEPTION INTRODUCING in the state of Georgia—has all prosecutors owner, or an impact on and are more numerous Where the actors action analysis. the state likely to generally are less diffuse, courts making more the decision have I posit that courts violation. Second, Protection find an Equal 187 and state action analysis, of scrutiny for adopted two tiers informally more easily. claims pass that threshold that racial discrimination intent, the Court turns to the search for invidious Thus, when the but as an im- acts not merely as a threshold, state action doctrine Court’s Equal Protection analysis. plicit factor in the \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 3 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 100 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 100 35559-nys_69-1 35559-nys_69-1 Sheet No. 100 Side B 10/20/2014 11:50:05 , 779 , 123 . 1289, . L.J. EV There is State ac- EO 8 9 G . L. R A , 92 U. P The Most-Cited Law Re- , 130 I. The Most-Cited Law Review Articles of All Time The Act prohibited individuals from de- The Act prohibited individuals from . 69, 95 (1967). Black’s statement, and his article, . 69, 95 (1967). Black’s statement, and 10 EV State Action and a New Birth of Freedom Foreword: “State Action,” Equal Protection, and California’s Foreword: “State Action,” Equal Protection, and , a consolidated set of five cases in which the , a consolidated set of five cases in . 1540, 1550 (1985), and as of 2012 it was still ranked at . 1540, 1550 (1985), and as of 2012 it was EV . L. R ARV . L. R It certainly operates erratically and often defies its erratically and often defies It certainly operates H 7 AL . 1483, 1489 (2012). For recent scholarly exploration of Black, see . 1483, 1489 (2012). For recent scholarly C EV , 81 . 1248, 1255 (2010). , 73 EV L. R The Public-Private Penumbra—Fourteen Years Later . THE UNSTATED FUNCTION OF STATE ACTION OF STATE FUNCTION THE UNSTATED Developments in the Law – State Action and the Public/Private Distinction Civil Rights Cases ICH The origin of the state action doctrine is commonly attributed The origin of the state action doctrine The state action doctrine has been designated “a conceptual has been designated action doctrine The state . L. R 10. The Civil Rights Cases, 109 U.S. 3 (1883). 8. I more fully flesh out this argument in Part II.C. 9. Judge Friendly advanced this theory in his opinions, as well as in Henry J. 7. Charles L. Black, Jr., M ARV those involving discrete and identifiable actors and those involving those involving discrete and identifiable an additional factor at play, albeit not one explicitly acknowledged at play, albeit not one explicitly an additional factor where racial discrimination is in- by the Supreme Court: in cases is found sufficient. volved, a lower degree of state action tion doctrine is thus both two-tiered—those involving racial do not—anddiscrimination and those that actor-dependent— does not act as a threshold; a diffuse group of actors. The doctrine from which the Court determines it acts as an intuitive holding cell be set free. whether the claim at issue should to the found the Civil Rights Act Court, through an eight justice majority, of 1875 unconstitutional. (2004); 1291 (1982). stated terms, and this has led to an abundance of scholarship offer- this has led to an abundance of stated terms, and I argue that the and explanation. In this Part ing reconciliation different from in fact does something quite state action analysis sifting claims that It claims to be a threshold test, what it purports. from those as Fourteenth Amendment violations are cognizable the state action in- private discrimination. Instead, that are merely Protection analy- as an implicit factor in the Equal quiry often acts actors are more with discrete and identifiable sis, whereby claims of actors. than those with a diffuse group likely to succeed view Articles are still heavily discussed and cited. Into the 1980s, Black’s article ranked twelfth are still heavily discussed and cited. Into among the most-cited law review articles, Fred R. Shapiro, 94, Fred R. Shapiro & Michelle Pearse, 100 Gary Peller & Mark Tushnet, Friendly, disaster area.” H Proposition 14 188 authority—thesion-making have Court the Supreme of Justices NYU turf. their to defend voted ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 4 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 100 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 100 35559-nys_69-1 35559-nys_69-1 Sheet No. 101 Side A 10/20/2014 11:50:05 . 387, 400 from the EV 503, 515–16 . 15 EV It noted that It noted L. R 12 , however, that . U. L. R UTGERS W R N , 21 , 80 where the action is supported by where the action is , 203 U.S. 1 (1906)). It is also worth While the Court never over- According to Justice Bradley, According to Justice 18 16 Civil Rights Cases . 149, 185 (1935) (“[T]he court’s assump- EV . L. R Force and the State: A Comparison of “Political” and Force and the State: A Comparison of “Political” 17 Rethinking State Action . OLUM C Erwin Chemerinsky argues that the Court was Erwin Chemerinsky Hodges v. United States 13 , 35 note 7, at 84–85 that as of 1967, the last time the (noting supra 14 Robert L. Hale, The Constitutional Right of Negro Freedom Id. Id. Id. see also First considering the Fourteenth Amendment, the Court Amendment, the Fourteenth First considering 11 The Court sought to distinguish individual acts of discrimina- to distinguish individual acts The Court sought counts as state action is a Justice Bradley’s standard for what 15. The Civil Rights Cases, 109 U.S. at 17. 16. 17. 18. Black, 11. 335 (1875). Civil Rights Act of 1875, ch. 114, 18 Stat. 12. The Civil Rights Cases, 109 U.S. at 11. 13. 14. Erwin Chemerinsky, “abrogation and denial of rights.” “abrogation and “[p]ositive rights and privileges are undoubtedly secured by the secured are undoubtedly rights and privileges “[p]ositive way of prohibition but they are secured by fourteenth amendment; against state laws.” the Constitution is only intended to remedy that wholesale abroga- is only intended to remedy that the Constitution denial is only possible tion, and such a state authority or sanction (1967). Chemerinsky’s view is supported by Justice Bradley’s assertion that legisla- (1967). Chemerinsky’s view is supported “must necessarily be predicated upon such tion under the Fourteenth Amendment and be directed to the correction of their supposed state laws or state proceedings, Cases, 109 U.S. at 11–12.operation and effect.” The Civil Rights Supreme Court had explicitly rejected an Equal Protection claim under the state action doctrine was in (1985); “Economic” Compulsion noting that when Congress sought to act in the same field again—that is, to ban of discrimination in public accommodations in Title II of the Civil Rights Act 1964—the by holding that Court briskly shunted aside the state action problem assuming that the states would provide common law remedies for states would provide common assuming that the and violations of rights—anprivate discrimination that assumption proved false. tion [was] that arbitrary exclusion of the negroes was contrary to state law.”); Ar- tion [was] that arbitrary exclusion of the thur Kinoy, standard has largely lacked teeth. found that the enforcement power was limited to providing “modes to providing power was limited the enforcement found that not permit action; it did or state against state legislation of relief” rights. regulating private of a code the promulgation tion, which it conceptualized as “private wrongs” and interferences as “private wrongs” tion, which it conceptualized case,” of the right in a particular with “the enjoyment severely constrict the scope of rigorous one. Its application would the most overt state-sanctioned judicial oversight, permitting only the threshold for Fourteenth discrimination to pass through Amendment scrutiny. Since the 2013]transportation, facilities, accommodations, to public access nying of the basis on amusement of public places other and theaters, THE JURY EXCEPTION INTRODUCING race. 189 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 5 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 101 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 101 35559-nys_69-1 35559-nys_69-1 Sheet No. 101 Side B 10/20/2014 11:50:05 , and were 25 21 22 . 1248, 1258 EV state Demo- 20 Like the White . L. R 26 . ARV see also Developments in the H 19 , 123 , 286 U.S. at 88. Nixon Shelley v. Kraemer , 379 U.S. at 250; But that same state inaction permitted But that same state , it expanded the scope of state action, of state the scope , it expanded 23 had little state action on its face. It concerned had little state action on its face. The state action in these cases was tenuous at The state action , 321 U.S. at 664; 24 Shelley . 1248, 1258 (2010). Smith EV ; Civil Rights Cases Civil . L. R See Developments in the Law – Distinction State Action and the Public/Private See id. See Heart of Atlanta Motel, Inc. ARV This pattern continued in The White Primary Cases provide a good example of this ex- example of this provide a good Primary Cases The White 24. This idea had its roots in a lecture given by Samuel Issacharoff, in his 25. 20. Nixon v. Herndon, 273 U.S. 536, 540–41 (1927). 21. Smith v. Allwright, 321 U.S. 649, Nixon v. Condon, 286 U.S. 73, 89 (1932); 22. Terry v. Adams, 345 U.S. 461, 484 (1953). 23. 26. 334 U.S. 1 (1948). 19. H private political party’s rules prohibiting blacks from joining party’s rules prohibiting blacks from private political all state action. In the latter cases where the actors were private po- the latter cases where the actors all state action. In there was state most that can be said was that litical officials, the inaction—the insti- to stop the private actors from state had failed rules. tuting discriminatory cratic parties’ rules prohibiting blacks from joining the party, blacks from rules prohibiting cratic parties’ restrictive covenants, specifically provisions that prohibited blacks restrictive covenants, specifically properties. These covenants were from buying or occupying certain and were widely used to keep executed between private individuals Primary Cases, course titled “The Law of Democracy” at New York University School of Law (Feb. 15, 2011). (2010). 664 (1944). 123 monopolization of the electoral process, since these parties’ prima- of the electoral process, since these monopolization cases the Court ones that mattered. In these ries were the only of political power to the growing centralization seemed sensitive into the concerns presented by party integration and to the unique state apparatus. best, but the Court balanced the absence of formal state action best, but the Court balanced the presence of racial discrimination against the troubling, continued the doctrine was manipu- in the political process. Consequently, review in order to eradicate lated to eliminate the barrier to judicial to political participation. the barriers blocking the threshold pansion. In a set of cases straddling 1927–53, In a set of cases pansion. Court the Supreme from voting, blacks a statute prohibiting found that such regulation was permitted under the Interstate Commerce power. Heart of such regulation was permitted under the U.S. 241, 250 (1964). Atlanta Motel, Inc. v. United States, 379 190 the ruled NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 6 15-OCT-14 10:56 Law – the Public/Private Distinction State Action and finding more and more types of activity to be state action without state to be of activity types and more more finding behind the doctrine. the principles clarifying 35559-nys_69-1 Sheet No. 101 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 101 35559-nys_69-1 35559-nys_69-1 Sheet No. 102 Side A 10/20/2014 11:50:05 28 , 44 The were Or as 29 , Donald 34 Shelley See, e.g. Considered in It rejected argu- 35 32 Racism Shadows Property Coercion and Distribution in a Those factors were not Those factors were on the State Action Concept 33 . 989, 997 (1978). L.J . 470, 471 (1923). At the time, it was The petitioners in petitioners The Greg Latshaw, ALE 27 Y . Q The Origins and Diffusion of Racial Restrictive See CI Robert L. Hale, , 87 . S Shelley v. Kraemer OL P ee also It began by noting that the state action It began by noting 36 31 Law and , 38 . 541 (Winter 2000-01). made all private conduct state action. . Q (Aug. 3, 2010), http://www.usatoday.com/news/nation/ CI The Impact of Shelley . S ODAY OLI , Michael Jones-Correa, P , 334 U.S. at 20.; s , 334 U.S. at 6. , 334 U.S. at 14. at 13. Restrictive covenants were not banned per se until the passage of at 13. Restrictive covenants were not banned at 20. at 19. USA T . at 6–7. . at 15. , , 115 such that the only state action at issue was the court order. state action at issue was the court such that the only Shelley Shelley Id Id. Shelley Id Id. See, e.g. Id. 30 The Court found it indisputable that the lower court’s order it indisputable that the lower The Court found 36. 28. 29. 30. 31. 33. 32. 27. 34. 35. Arthur Allen Leff, administrative, executive, legislative, and judicial. administrative, executive, Arthur Leff put it, “behind every [American] Judge stands ulti- Arthur Leff put it, “behind every 101st Airborne.” mately the naked power of the Court found that the covenants in and of themselves were volun- of themselves were in and that the covenants Court found Amend- the Fourteenth the scope of and outside tary, private, ment, such a light—where by the equally private choices are constrained of others—theprivate, but fully enforceable, rights Court held that bore the “clear and unmistakable the judicial orders in question imprimatur of the State.” ments that the action was immunized either because it was only a was immunized either because ments that the action of discrimination policy or because the pattern state common law by private agreements. initially was defined determinative; by permitting the judiciary to enforce these con- permitting the judiciary to enforce determinative; by the full have made available to such individuals tracts, “the States on the of government to deny to petitioners, coercive power of property rights.” grounds of race or color, the enjoyment African American renters and homeowners litigating against prop- against litigating homeowners and renters American African to enforce the covenant. to local courts who had gone erty owners doctrine applied to actions taken by all branches of government— to actions taken by all branches doctrine applied Supposedly Non-Coercive State widely thought that M. Cahen, Comment, 2010-08-03-racistcovenants03_ST_N.htm. qualified as state action. qualified as state the Fair Housing Act in 1968. Civil Rights Act of 1968, Pub. L. No. 90-284 (codified the Fair Housing Act in 1968. Civil Rights at 42 U.S.C. § a recent study by the 3601 (1968)). Although no longer enforceable, University of Washington–Seattle’s Civil Rights and Labor History Project identi- the deeds of 400 properties in Seattle and fied racially discriminatory language in its suburbs alone. The legacy persists. Covenants Covenants 2013] lily-white. neighborhoods certain THE JURY EXCEPTION INTRODUCING further en- to vacate and the petitioners courts ordered The lower in the future. the property from occupying joined them 191 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 7 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 102 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 102 35559-nys_69-1 35559-nys_69-1 Sheet No. 102 Side B 10/20/2014 11:50:05 . . EV A 38 Shelley The Shelley neutral 37 . L. R not Alstyne & TAN S See has been inter- , 14 Shelley , decided during the during , decided State Action The State Action Principle and Its Discriminatory Intent and the Taming of , several lines of jurisprudence have , several lines of Burton . 935, 967 (1989). But where there is a more widespread, . 935, 967 (1989). But where there is a EV . 1767, 1798, 1801 (2010). Certainly there are questions of . 1767, 1798, 1801 (2010). Certainly there note 14, at 526. EV . L. R , 365 U.S. at 725 (alteration in original). HI supra will kick in and find unconstitutional state action. will kick in and find unconstitutional C . L. R A has become the first of three major strands. This first first of three major strands. has become the . 718, 733 (1956). After all, it seemed to hold that any private infringe- . 718, 733 (1956). After all, it seemed to V Burton v. Wilmington Parking Authority Parking v. Wilmington Burton EV Burton Kraemer , 56 U. is doctrinally unsound, and notes that time has shown those fears to be is doctrinally unsound, and notes that , 96 In the decades since In the decades since In 37. Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961) (quoting 38. . L. R Burton (quoting Terry v. Adams, 345 U.S. 461, 484 (1953) (Clark, J., concurring)). It (quoting Terry v. Adams, 345 U.S. 461, AL strand—commonly to as a “symbiotic relationship”—gov- referred itself into the government has “so far insinuated erns cases in which that it must be with [a private entity] a position of interdependence activity.” joint participant in the challenged recognized as a evolved, but no clear rule has emerged. The interdependence cited rule has emerged. The interdependence evolved, but no clear in Court found that a coffee shop that leased space from the munici- a coffee shop that leased space Court found that tenant, the coffee was a state actor because as pal Parking Authority on the Parking Authority landlord. shop was dependent 3, 44 (1961), it also would seem to be “a repudiation of the state action principle 3, 44 (1961), it also would seem to be “a altogether”—although BeVier and Harrison point out that Harrison, preted narrowly, Lillian BeVier & John Critics and legally enforceable, rule that forbids people of a certain race to live in certain and legally enforceable, rule that forbids areas, Brown scale. There is little doubt that a homeowner has control over whom per- scale. There is little doubt that a homeowner this very example as an illustration of why mit to visit her house. David Strauss uses Shelley unfounded in practice. David A. Strauss, Karst, at 45–46. and Karst further discuss the built-in assumptions that call Alstyne guest of color: “The state is the homeowner’s ejection of the unwanted ment on individual rights, as long as it was permitted by state law and then brought ment on individual rights, as long as it was decision has been called “irresistibly cor- into court, was state action. While the L. Karst, rect,” see William W. Van Alstyne & Kenneth Chemerinsky, Kotch v. Bd. of River Port Pilot Commr’s, 330 U.S. 552, 556 (1947)). in preferring control over private property ahead of full racial equality in this cir- in preferring control over private property legal system by making a choice of values.” cumstance; rather, it has ‘structured’ its Id. Court was unwilling to expand became clear over time that the Supreme argues has led to irreconcilable past its facts, which Chemerinsky compellingly action to create state action, then any precedents. After all, if it only takes court discrimination enforced by a court should be considered state action under C 192 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 8 “to that admitted squarely the Court Era, Civil Rights of the height respon- of state formula for recognition apply a precise fashion and task is an impossible Protection Clause the Equal sibility under 15-OCT-14 facts and Only by sifting attempted. Court has never which this 10:56 of the involvement can the nonobvious circumstances weighing true significance.” be attributed its private conduct State in 35559-nys_69-1 Sheet No. 102 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 102 35559-nys_69-1 35559-nys_69-1 Sheet No. 103 Side A 10/20/2014 11:50:05 but 39 Several exclusively at 351. The 47 Id. the provision clarified an issue 44 43 40 was essentially a takings case. or instead “traditionally at 353. The Court did not probe into the at 353. The Court did not probe into 45 Id. Flagg Brothers 46 Flagg Brothers, Inc. v. Brooks Flagg Brothers, Inc. Jackson v. Metropolitan Edison Co. Jackson v. Metropolitan , v. Druker, 438 F.2d 781 (1st Cir. 1971) (finding a McQueen , 419 U.S. at 353. , 436 U.S. at 152. , 365 U.S. at 725. The appellant demanded notice and a hearing before notice and a hearing The appellant demanded What the Court considers a public function is surpris- considers a public function is What the Court 42 at 352–53. at 352 (emphasis added). 41 See, e.g. Burton Id. Jackson Id. Jackson left ambiguous: whether the activity need only be “tradition- whether the activity need only be left ambiguous: A few years later, A few years later, The second strand covers a group of cases commonly known as commonly known a group of cases strand covers The second 39. 40. 41. 345, 352 (1974). Jackson v. Metro. Edison Co., 419 U.S. 42. 43. such as the extensive state regulation The Court did look to other factors, 44. 436 U.S. 149 (1978). 45. 46. 47. the chief concern is whether the state places “its power, property “its power, places the state whether is chief concern the a thus becoming private discrimination, behind the and prestige” in the discrimination. joint participant ally associated with sovereignty” Jackson reserved to the State.” The Brooks family had been evicted and their furniture moved by The Brooks family had been evicted brothers’ warehouse. the city marshal into the Flagg ing. For example, in ing. For example, her services were terminated, but the Court held that a private com- terminated, but the Court held her services were with Due Process. pany need not comply of utilities was found to be outside the scope of the “public func- to be outside the scope of of utilities was found tion” test. the “public function” cases. These cases encompass a fairly broad encompass a fairly These cases function” cases. the “public a when the state delegates state action activities and find range of State” to a private exclusively reserved to the power “traditionally the imprimatur of the private conduct with party, thereby endowing the state. 2013]property, of state the use have involved cases of these number THE JURY EXCEPTION INTRODUCING 193 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 9 15-OCT-14 10:56 symbiotic relationship regarding an apartment building built under supervision of symbiotic relationship regarding an apartment v. Univ. of Tampa, 344 F.2d 951 (5th the Federal Housing Authority); Hammond of a private university evinced a Cir. 1965) (finding that admissions practices used city buildings and city land). symbiotic relationship where the university decision hinged on several contentions—the most critical of which was a blind, state decisions from the late 1800s, unexamined reliance on two Pennsylvania an essential public service was neither a where the courts had ruled that providing state function nor municipal duty. of utilities and the partial monopoly on the provision of electricity, but found that of utilities and the partial monopoly on there be a “sufficiently close nexus be- they did not satisfy the requirement that of the regulated entity.” tween the State and the challenged action logic of these antique Pennsylvania decisions or inquire whether the underlying logic of these antique Pennsylvania decisions From this faulty foundation, rooted in premises had changed. It simply cited them. Court proceeded to reject any expansion a very different era of public utilities, the life, but which were not themselves a of state action to activities vital to public traditional government service. 35559-nys_69-1 Sheet No. 103 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 103 35559-nys_69-1 35559-nys_69-1 Sheet No. 103 Side B 10/20/2014 11:50:05 deter- Paul 54 In the end, Flagg Brothers v. 58 owned all the it did not carry out Marsh 57 , the alleged violators , the alleged as two examples. 53 Shelley the election, but rather the election, but After all, the “function” in the After all, the “function” 50 Unlike 55 49 conducting , 1327–29 (1982). The Court stated that the areas of true The Court stated 52 . 1296 EV State Action and Liberal Theory: A Casenote on State Action and Liberal Theory: A Casenote note 55, at 1328. of the election—blacks could vote in the general , 436 U.S. at 159. , 436 U.S. at 164–65. , 436 U.S. at 153. , 436 U.S. at 158. . L. R A 59 Writing for the majority, Justice Rehnquist pointed Writing for the majority, Justice supra 60 , 326 U.S. 501, 502 (1946). U. P at 1327, 1329. at 155. at 153. at 159. at 154–55, 157–58, 163. And while the company at issue in And while the company at issue 56 Flagg Bros. Marsh Id. Flagg Bros. Flagg Bros. Id. Id. Id. Id. Flagg Bros. The warehouseman’s power to proceed directly to executing to proceed power The warehouseman’s Traditional association of an activity with government is insuf- of an activity with government Traditional association 48 The Court also rejected the proposition that the State’s mere The Court also rejected the proposition The Supreme Court held that exclusivity was the essential fac- held that exclusivity was the The Supreme Court 57. 58. Brest, 59. 56. 60. 48. 49. 50. 51. 52. 53. Marsh v. Alabama, 326 U.S. 501 (1946). 54. 55. Paul Brest, 51 Brest questions whether even these seemingly clear-cut examples whether even these seemingly Brest questions they appear. are as obvious as Brest argues, this account is inherently indeterminate and invites Brest argues, this account is inherently manipulation. many of the other functions municipalities generally do. It did not many of the other functions municipalities libraries or schools. tax, hold elections, or operate mining the results party’s primaries. But the Dem- election, just not in the Democratic only meaningful elections in ocratic party’s primaries were “the Texas.” White Primary cases was not White Primary cases never sought to enforce their claim in court—they to enforce never sought not need to, did the this step. So instead, them to bypass statute allowed since the under 42 U.S.C. §Brooks filed a claim 1983 in district court, seek- an injunction. ing damages and exclusivity were few, and listed elections (the White Primary Cases) few, and listed elections (the White exclusivity were (the company town) and running a town property in the town, from sidewalks to sewers, property in the town, from sidewalks the lien, without first holding a hearing or involving the sheriff, was involving the a hearing or without first holding the lien, by a New York statute. granted authorization, encouragement, or acquiescence makes something authorization, encouragement, state action. tor. ficient for a delegation of authority to a private actor to be of authority to a private ficient for a delegation action. considered state 194Brooks Mrs. notified the warehouse unpaid, the bill later, months NYU be would the furniture days, in ten not paid were if the account that ANNUAL SURVEY OFsold. AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 10 15-OCT-14 10:56 Brooks, 130 35559-nys_69-1 Sheet No. 103 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 103 35559-nys_69-1 35559-nys_69-1 Sheet No. 104 Side A 10/20/2014 11:50:05 as a Flagg at 160. Justice Id. 61 Flagg Brothers became state actors as soon The statutes are very similar, but The statutes are The decision distinguished other distinguished The decision Shelley 63 62 65 , that action is now private and so con- , that action is now removed But when the statute remains and the official But when the statute 64 at 157. (distinguishing North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 (distinguishing North Georgia Finishing, at 174–75. at 175 (Stevens, J., dissenting). The Court also looked to the availabil- at 175 (Stevens, J., dissenting). The Court , and put more power into the hands of private actors—less, and put more power into the hands Id. Id. Id. Id. Id. It seems achingly contrived to say that the Flagg brothers—whoIt seems achingly contrived to say 61. 62. 63. 64. 65. Rehnquist seemed to link the presence of state action to the overt- state action to the presence of seemed to link Rehnquist official involvement. ness of the the Flagg brothers did not enlist any officials to aid them, and Mrs. did not enlist any officials to the Flagg brothers The state involve- state officials as defendants. Brooks named no statute. In dis- came solely from the authorizing ment in this case it was the state’s pointed out the irony: sent, Justice Stevens in the that made the action unconstitutional nominal supervision because they statutes were ruled unconstitutional prior cases; the had abdicated ef- the hands of private actors and put the power in fective state control. Supreme Court cases that involved self-help and garnishment stat- and garnishment involved self-help Court cases that Supreme had or- court clerks who assistance of the ministerial utes by citing in those cases. dered summonses supervision is entirely supervision is entirely is precluded. stitutional review as they walked through the courthouse doors. Hinging judicial re- as they walked through the courthouse attributes massive consequences view on such a nominal distinction decision making, and cer- to what is likely unintended legislative legislative judgment. It also tainly was no part of a comprehensive more statutes like that in incentivizes the legislature to pass Brothers lead to more constitutional governmental supervision may violations. were able to bypass court involvement in enforcing the lien because were able to bypass court involvement a statute so authorized them—were actors, while the hold- not state ers of the restrictive covenants in 2013] and convert the rule swallow would a view such that to permit out deny- either is always the state since action, to state action all private THE JURY EXCEPTION INTRODUCING or failing to act. by acting relief, whether ing or granting 195 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 11 15-OCT-14 10:56 U.S. 601 (1975), Fuentes v. Shevin, 407 U.S. 67 (1972), and Sniadach v. Family U.S. 601 (1975), Fuentes v. Shevin, 407 Finance Corp., 395 U.S. 337 (1969)). ity of other remedies in making its determination. Characterizing ity of other remedies in making its determination. that other options, such as replevin, were dispute-resolution case, the Court noted possible, thus the threatened sale was not the sole potential remedy. The availability of other remedies—not but an alternative simply a judicial appeal, mechanism to resolve the dispute—permittedcomfortably reject the the Court to notion that this action should be characterized as sovereign. After all, the sover- eign is that which coerces, from whom there is no external recourse. 35559-nys_69-1 Sheet No. 104 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 104 35559-nys_69-1 35559-nys_69-1 Sheet No. 104 Side B 10/20/2014 11:50:05 , , on , 68 S. ), the Burton Jackson The result in 68 Flagg Brothers 71 and Friendly’s comment sug- Friendly’s comment 69 Jackson Some Thoughts on the Puzzle of State Action Because racial discrimination is particularly racial discrimination Because 66 note 9, at 1291. note 9, at 1291. , 478 F.2d 1137; Adams v. S. Cal. First Nat’l Bank, 492 F.2d 324, supra supra , A. Esper, Dilan , Weise v. Syracuse Univ., 522 F.2d 397, 406 (2d Cir. 1975). , Weise v. Syracuse Univ., 522 F.2d 397, . 663, 683, 714 (1995). Ripon Soc’y, Inc. v. Nat’l Republican Party, 525 F.2d 567, 619–20 Ripon Soc’y, Inc. v. Nat’l Republican Party, (D.C. Grafton EV It has also been recognized by scholars. It has also been recognized by See, e.g. See See, e.g. , he posits, would have been different if the power company have been different if the power , he posits, would Therefore, “while a grant or other index of state grant or other “while a Therefore, 70 67 Judge Friendly’s position has been taken up by a number of position has been taken up by Judge Friendly’s However, another pattern emerges from the case law. A find- However, another pattern emerges of this puzzle. In the last That attenuation is the other piece Taken as a whole at face value, the case law is confounding. case law the face value, whole at as a Taken 67. 70. 66. Friendly, 68. 1137, 1142 (2d Cir. 1973) Grafton v. Brooklyn Law Sch., 478 F.2d 69. Friendly, 71. . L. R AL Jackson service to blacks. had refused to provide on the one hand, and cases such as on the one hand, gests that even though tiers of scrutiny are not formally present in tiers of scrutiny are not formally gests that even though below the surface. analysis, that calculation lurks the state action between far to explain the disparities This argument goes the other. his own Second Circuit to the Dis- circuit and district courts, from and the Northern District of trict of Columbia, the Ninth Circuit, Ohio. pernicious, he argues, courts ought to be especially vigilant in de- especially vigilant ought to be he argues, courts pernicious, con- private supporting discriminatory that states avoid manding duct. involvement may be impermissible when it ‘fosters or encourages’ when may be impermissible involvement involvement the basis of race, the same limited discrimination on the action in ques- the level of ‘state action’ when may not rise to affront other constitutional rights.” tion is alleged to Judge Friendly suggests that some of the confusion can be cleared the confusion some of that suggests Friendly Judge to race. up by looking for engaging in an Equal Protec- ing of state action is a prerequisite test, a negative finding permits tion analysis; as with any threshold than let the case progress. In the courts to bow out early rather where the discrimination affects borderline cases, and especially the utility holders in less protected groups (such as for judicial minimalism. It per- state action doctrine creates leeway that the connection to government mits a court to rule at the outset the protracted and fact-intensive is too attenuated and to avoid analysis. scrutiny of an Equal Protection shifted from seeking an actor to fifty years, the test for state action C 196 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 v. Syracuse Univ., 522 F.2d 397, 405 (2d Cir. 1975) (Bazelon, J., dissenting); Weise Cir. 1975); 341 (9th Cir. 1973); Anderson v. Randall Park Mall Corp., 571 F. Supp. 1173, 1175 (N.D. Ohio 1983). \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 12 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 104 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 104 35559-nys_69-1 35559-nys_69-1 Sheet No. 105 Side A 10/20/2014 11:50:05 looked When it 73 In 1962, a . 74 Shelley and .). text accompanying notes The Fifth Circuit, sitting 76 See infra Palmer v. Thompson II. Civil Rights Cases Rights Cases Civil decisions were dictated more by socio- decisions were dictated more by The The 72 Feeney In response, the city closed all the pools, an- In response, the city closed all the THEORIES OF INTENT THEORIES OF 75 and Edmonson v. Leesville Concrete Co., Inc Davis the remnants of this approach lingered, as the Court lingered, of this approach the remnants , 403 U.S. at 218–19. A. The Evolution of Equal Protection Intent Doctrine Palmer The Supreme Court did not directly address the question of The Supreme Court did not directly The Equal Protection intent standard is now firmly ensconced The Equal Protection intent standard 73. 403 U.S. 217 (1971). 74. 72.actor opened the door for unex- This scrutiny of function rather than 75. Clark v. Thompson, 206 F. Supp. 539, 542 (S.D. Miss. 1962). 76. Palmer v. Thompson, 419 F.2d 1222, 1225 (5th Cir. 1969). did—despite divided circuit being confronted with a vehemently court opinion—the it head-on. The case Court refused to address Jackson, Mississippi. involved the swimming pools of district court provided declaratory relief to three plaintiffs that the district court provided declaratory pools be integrated. en banc, affirmed 7-6 that closing the pools was not an Equal Pro- en banc, affirmed 7-6 that closing in the jurisprudence. But neither the basic premise nor its contours in the jurisprudence. But neither had a number of options avail- were inevitable. The Supreme Court able and the than judicial precedent. This political context and expedience development of the purposeful Section recounts and critiques the discrimination test. motive in Equal Protection until for an action by an actual employee of the state—aactual employee by an action for an stat- legislative as late as order. Even approval, a judge’s stamp of ute, an official’s Flagg Brothers Where an or notary. state actor, clerk, least a nominal sought at be found—anactor can owner of the or the evil jury commissioner to serve blacks—a Shop who refuses Eagle Coffee finding of judicial and the actors But where the power state action is straightforward. the actor require- blame is harder to mete out. So are more diffuse, to flimsy, until it over time, from robust ment became stretched set up a roosting In those ruins, the Court crumbled altogether. discrimination. worries about policing diffuse spot for its inchoate permits courts to is a threshold requirement, it Since state action very incoherence off at the pass. The doctrine’s cut certain cases malleable. makes it suitably nouncing that integrated pools would be a threat to public safety nouncing that integrated pools and could not be economically operated. 531–39 (discussing pected innovations in the jury jurisprudence. pected innovations in the jury jurisprudence. 2013] function. the examining THE JURY EXCEPTION INTRODUCING 197 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 13 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 105 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 105 35559-nys_69-1 35559-nys_69-1 Sheet No. 105 Side B 10/20/2014 11:50:05 , 77 The The from 83 78 While public 80 Cooper v. Aaron obviously stemmed The concurrence ex- The concurrence 79 84 They also noted that the pools had They also noted 82 at 1229 (Bell, J., concurring). that the closing of the pools authorized or en- that the closing of the pools authorized 85 , see also id. 86 , 403 U.S. at 1230 (Wisdom, J., dissenting) (citing Cooper v. Aaron, , 403 U.S. at 1230 (Wisdom, J., dissenting) at 1226. at 1227–28. at 1228 (emphasis added). at 1229. at 1228; . at 1231. . at 1229. The six dissenting judges noted that the public safety ex- judges noted that the public The six dissenting Id. Id. Id. Id. Id. Palmer Id Id 81 The Supreme Court largely echoed the majority’s analysis. The Supreme Court largely echoed Turning to the plaintiff’s claims of racial motive, the majority claims of racial to the plaintiff’s Turning 77. 78. 79. 80. 81. 82. 83. 84. 85. Reitman v. Mulkey, 387 U.S. 369, 381 (1967) (holding a California state 86. Palmer v. Thompson, 403 U.S. 217, 223–24 (1971). dissenters found it astonishing that the court could accept the dissenters found it astonishing after such a long exposure to so flimsy excuses the city professed many forms of discrimination. court noted that “even though such motive court noted that racial considerations, we know of no prohibition to bar the City we know of no prohibition racial considerations, guided by conclu- factors into account and being from taking such their consideration.” sions resulting from officials may consider race, they just may not do so with invidious race, they just may not do officials may consider intent. plored this somewhat further, distinguishing “mere racial further, distinguishing plored this somewhat “racially discriminatory purpose.” motivation” from never been operated economically; they had consistently operated never been operated economically; were intentionally kept low. at a loss, with entrance fees that couraged discrimination, saying that the record failed to support couraged discrimination, saying such a claim. the Little Rock school case. the Little Rock cuse had been rejected by the Supreme Court in by the Supreme Court cuse had been rejected That this was state action was certain, but that the Fourteenth That this was state action was access to swimming pools was Amendment does not guarantee to consider a theory based on equally so. The Court also refused Reitman v. Mulkey found the city’s assertion of economic viability sufficient. of economic city’s assertion found the 198public scale of sliding to a looked majority The violation. tection NYU it state action, a indisputably pools was the closing while functions; ANNUAL SURVEY OF function. public pools is a discretionary providing public noted that AMERICAN LAW swimming right to is no constitutional decided that there The court [Vol. 69:185 made. to them can be Protection claim thus no Equal pools and \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 14 15-OCT-14 10:56 358 U.S. 1, 16 (1958)). constitutional amendment which authorized racial discrimination in the private housing market to be unconstitutional because it would “encourage and involve the State in private discriminations”). 35559-nys_69-1 Sheet No. 105 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 105 35559-nys_69-1 35559-nys_69-1 Sheet No. 106 Side A 10/20/2014 11:50:05 . 93 U. EV 94 In- 329, OURTS 92 , 50 C Courts Beyond Brown v. 95 88 was a Title UCLA L. R EDERAL HILOSOPHY P , 53 : F Griggs EGAL 89 Statutes’ Domains . L SSAYS IN NTERPRETATION Legislators’ Intentions and Uninten- I : E ATTER OF A M NTERPRETATION Griggs v. Duke Power Co Griggs v. Duke Power I It described briefly the “pitfalls” and “futil- briefly the “pitfalls” It described 87 Was the Disparate Impact Theory a Mistake? AW AND and Title VII that in order to work in some de- and Title VII that in order to work L IN Duke Power Company, which had previously been Duke Power Company, , 91 , 401 U.S. at 432. , 401 U.S. at 428. 16–18 Waldron, (1997); Jeremy 533, 547–48 (discussing problems of agenda setting). (1983) . at 427. at 224. at 224–25. exploration of the problem of discerning legis- For further AW . at 427–28. AND THE EV Griggs Griggs Id Id. Id. Id. L However, the Court’s approach to intent between these two approach to intent between However, the Court’s This perspective on intent is tidily in line with a case decided on intent is tidily in line with a This perspective The Supreme Court held that intent was not the critical ques- The Supreme Court held that intent Turning to the racial motivation claim, the Court stated suc- Court stated the claim, motivation the racial to Turning 95. 92. 89. 401 U.S. 424 (1971). 90. be addressed in length in Part II.B. The importance of this distinction will 91. 87. 93. 88. 94. Michael Selmi, . L. R 90 HI cumbent white employees were exempted from this requirement. cumbent white employees were exempted must look to the consequences of employment practices, and deter- must look to the consequences of this, the Court declined to consider intent. this, the Court declined prior, just three months VII employment discrimination case, and accordingly, the Court discrimination case, and accordingly, VII employment statutory—notwas applying a a Fourteenth Amendment—analy- sis. 701, 719 (2006). 336 (Andrei Marmor ed., 1995); Frank H. Easterbrook, 336 (Andrei Marmor ed., 1995); Frank ity” of taking such an approach, since it would be “difficult or im- would be “difficult since it such an approach, ity” of taking the ‘sole’ or ‘dominant’ to determine for any court possible of legislators.” of a group behind the choices motivation C intentionally segregated, instituted a requirement after instituted a requirement intentionally segregated, Board of Education a number of examinations. partments, employees must pass tional Legislation tion and reversed. “[G]ood intent or absence of discriminatory in- tion and reversed. “[G]ood intent procedures or testing tent does not redeem employment headwinds’ for minority mechanisms that operate as ‘built-in job capability.” groups and are unrelated to measuring cinctly that “no case in this Court has held that a legislative act may act a legislative held that has in this Court case that “no cinctly of the of the motivations solely because protection violate equal voted for it.” men who cases was consistent. The district court and the court of appeals had The district court and the court cases was consistent. intent behind the there was discriminatory both examined whether requirement and of a high school diploma employer’s adoption found none. While there was no documentation indicating that this requirement While there was no documentation of segregating the depart- was adopted with the express purpose that this would be the effect. ments, there was also little doubt 2013] THE JURY EXCEPTION INTRODUCING 199 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 15 15-OCT-14 10:56 lative intent, see Antonin Scalia, 35559-nys_69-1 Sheet No. 106 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 106 35559-nys_69-1 35559-nys_69-1 Sheet No. 106 Side B 10/20/2014 11:50:05 , To An 98 100 Palmer Palmer He ex- Immedi- 103 105 references dozens of . 953, 961–62 (1993). note 94, at 722–23. EV or whether the employer has the employer or whether 97 supra . L. R But between 1971 and 1976 96 , John Hart Ely published the first 101 ICH M , the lower courts’ intent requirement , the lower courts’ , 91 Palmer Washington v. Davis was viewed as establishing that disparate im- that disparate as establishing was viewed Griggs Legislative and Administrative Motivation in Constitutional “Was Blind, but Now I See”: White Race Consciousness and the “Was Blind, but Now I See”: White Race Consciousness Instead, he proposed that where there is room Instead, he proposed that where note 94, at 722–23 Griggs was handed down, Paul Brest published an article was handed down, Paul Brest published 104 . 1205 (1970) , 420 F.2d at at 1232; Selmi, supra L.J Palmer at 1267. The year before 42 U.S.C. § 2000e-2(h). at 430. Most of the analysis below had concerned the tests them- below had concerned the Most of the analysis Griggs Id. Id. ALE Id. See Y 102 99 . Michael Selmi observes that the question of intent had not that the question of intent Michael Selmi observes At the time, At the time, 102. n.12 (1976) (citing 17 district Washington v. Davis, 426 U.S. 229, 244 103. John Hart Ely, 99. Selmi, 100. 1231–35 Griggs v. Duke Power Co., 420 F.2d 1225, (4th Cir. 1970); 101. 104. 105. 96. 97. 98. Barbara J. Flagg, , 79 with intentional discrimination. but to opposite effect. Refusal to see discriminatory intent in Refusal to see discriminatory but to opposite effect. closed, both for all the pools in Jackson stayed had meant that In blacks and whites. the workplace and the roadblock to integrating was struck down with it. in the briefs for in the lower court opinions or been the focus Griggs intent requirement was roundly rejected, as it had been in as it had been roundly rejected, was intent requirement the extent that intent had been discussed, it was to equate “unvali- had been discussed, it was the extent that intent dated” tests—that a valid business justification— is, tests without amined impact and motive theories and rejected the “dominant amined impact and motive theories motive” inquiry. ately after cataloging the case’s failures and criticizing Ely for giving insuffi- cataloging the case’s failures and successfully carried its burden and proven that the mechanism burden and proven carried its successfully purpose. legitimate business serves a there was considerable discussion in the courtroom and the acad- there was considerable discussion emy regarding intent. cases decided during that period that employed a disparate impact cases decided during that period theory. court and court of appeals cases applying disparate impact to areas including pub- court and court of appeals cases applying lic employment, zoning, and public housing). Griggs v. Duke Power Co., 292 F. Supp. 243, 249–250Griggs v. Duke Power Co., 292 F. Supp. (M.D.N.C. 1968). Law for discretion, the inquiry should be whether the decision maker for discretion, the inquiry should in making a choice. employed unconstitutional criteria major analysis of the role of intent in constitutional law. major analysis of the role of intent selves and which practices would be found to violate Title VII. practices would be found to violate selves and which pact alone was sufficient to establish a violation of Title VII. of Title to establish a violation was sufficient pact alone 200 “‘freeze’ acts to procedure if the mine dis- of prior status quo the NYU practices” employment criminatory ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 16 15-OCT-14 10:56 Requirement of Discriminatory Intent 35559-nys_69-1 Sheet No. 106 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 106 35559-nys_69-1 35559-nys_69-1 Sheet No. 107 Side A 10/20/2014 11:50:05 116 107 to 113 factors). was filed in The plain- For instance, Davis 110 Arlington 112 , a literacy test re- Justice White held Griggs. Brown v. Board of Edu- Brown v. 114 The court of appeals , which distinguished de Davis 111 : lack of impartiality, subordina- : lack of . 95. : An Approach to the Problem of Unconstitu- EV . R T to the jury discrimination cases . C He elected to follow a course that had He elected to follow a course that , the Court conclusively stated that dispa- , the Court conclusively , note 113. UP S 115 Palmer supra was in many ways similar to was in many ways note 36, at 940–46. , 1971 Keyes v. School District No. 1 supra Davis , Hill v. Texas, 316 U.S. 400 (1942); Avery v. Georgia, 345 U.S. 559 Each model has its advocates and critics, but the first its advocates and critics, but the Each model has 106 Strauder v. West Virginia Strauder 109 notes 424–38. laundry list, at 235. at 237. 108 See Id. Id. See, e.g. Washington v. Davis infra and In The Supreme Court reversed. Inscrutably rejecting precedents The Supreme Court reversed. Inscrutably It was Brest’s blueprint that the Court eventually adopted, that the Court blueprint It was Brest’s 114. 107. Dev. Corp., 429 U.S. 252, 266 Vill. of Arlington Heights v. Metro. Hous. 108. Strauss, 109. Washington v. Davis, 426 U.S. 229, 246–48 (1976). 110. Title VII. But Today, this case would be litigated under 111. 112. 113. 115. Washington v. Davis, 426 U.S. 229, 239–42 (1976). 116. Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 205 (1973). 106. Paul Brest, Palmer v. Thompson Davis, 426 U.S. at 236 n.6. The tests were thus challenged on constitutional Davis, 426 U.S. at 236 n.6. The tests dozens of district and appellate court cases, dozens of district and appellate tiffs did not claim discriminatory intent, only that the test bore no discriminatory intent, only that tiffs did not claim discriminatory and that it had a highly relation to job performance impact in screening out black applicants. that a plaintiff must prove discriminatory intent to prevail on an that a plaintiff must prove discriminatory Equal Protection claim. ruled that the impact alone was sufficient to establish a constitu- ruled that the impact alone was look for intent. tional violation; the court did not been laid out in jure from de facto segregation by looking to intent to segregate. jure from de facto segregation by n.12 (1977) (citing Brest during the Court’s discussion of the n.12 (1977) (citing Brest during the Court’s to public employees until 1972. 1970 and Title VII was not held to be applicable See grounds. (1953); both cases involved tests—inboth cases involved the case of has clearly won the day. has clearly won quired by the Washington, D.C. police department. quired by the Washington, rate impact analysis may be used in Title VII cases, but not in Equal may be used in Title VII cases, rate impact analysis Protection. to the contrary, from tional Legislative Motive tion, stigma, second-class citizenship, and encouragement of citizenship, and encouragement tion, stigma, second-class prejudice. 2013] of review judicial to implement how on guidance cient motivation. THE JURY EXCEPTION INTRODUCING chosen. Court could have only path the certainly not the but it was that were possible models the five concisely outlines David Strauss of primarily out to the Court arising available 201 cation \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 17 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 107 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 107 35559-nys_69-1 35559-nys_69-1 Sheet No. 107 Side B 10/20/2014 11:50:05 119 The re- Milliken v. 122 418 U.S. 717 concerned That list was 118 124 . at 746–47. Id. Griggs After the hearings, the 123 Milliken v. Bradley, on June 14, 426 U.S. 940 (1976), came down other disparate Arlington Heights 121 Davis , the Court had already granted , the Court had Davis Tyler v. Vickery , and when was decided. note 94, at 727–28. In The Court cited a laundry list of cases that had The Court cited Davis Davis supra 117 In fact it had granted that petition six months prior In fact it had granted Village of Arlington Heights v. Metropolitan Housing Devel- Heights v. Metropolitan Housing Village of Arlington , 426 U.S. at 248. 120 Selmi, at 244 n.12. at 256–59. at 258. Davis Id. See Id. Id. , in which the Court had essentially admitted impotence. , in which the Court The Supreme Court reaffirmed that racially discriminatory in- The Supreme Court reaffirmed By the time it decided By the time it decided Various considerations may have influenced the Court’s deci- the Court’s have influenced may considerations Various 117. 118. 119. 120. Dec. 15, 1975). 423 U.S. 1030 (1975) (cert. granted 121. Certiorari was denied in 122. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 255 123. 124. zoning meetings drew large crowds, some of which were demonstra- zoning meetings drew large crowds, bly and vocally opposed to the proposal. daunting, and that was after only four years of litigation. Some of was after only four years of daunting, and that so the justices had made it up to the Court, and those cases had Selmi additionally of what the future might hold. gotten a glimpse including the shifts in the civil rights movement, points to other in over school busing culminating judicial headache Bradley board denied the rezoning proposal by a 6-1 vote. board denied the rezoning proposal rezoning. The suburb had traditionally been zoned for single-family rezoning. The suburb had traditionally proposals to build low- and moder- housing and in 1971 there were The construction was to be ate-income, multiple-family buildings. funds, which required affirmative subsidized in part with federal Approximately 40% of Chicago re- marketing for racial integration. housing were black. In 1970, only sidents eligible to move into this residents were black. twenty-seven of the suburb’s 64,000 been decided on an impact standard since been decided on impact petitions were still pending. to handing down tent must be proven for Equal Protection claims and gave more tent must be proven for Equal sion. Perhaps foremost is the floodgates argument. The majority argument. floodgates is the foremost Perhaps sion. rule applicable impact that a generally itself bluntly states opinion about, serious questions and would raise be far-reaching “would public ser- of tax, welfare, a whole range invalidate, and perhaps burden- may be more statutes that and licensing vice, regulatory, the more black than to to the average the poor and some to affluent white.” certiorari in opment Corp. (1974), the Court was backed away from policing school integration, stating that it state action. now a matter of private choice rather than 202 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 18 15-OCT-14 10:56 exactly a week after (1977). 35559-nys_69-1 Sheet No. 107 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 107 35559-nys_69-1 35559-nys_69-1 Sheet No. 108 Side A 10/20/2014 11:50:05 U. U. 126 The IEGO . 317 1053 D Arling- ORNELL EV , 125 C , 1977 AN The Id, the to L.J. S (How) Does . 1065, 1077 . L. R , 73 , 15 . 1163 (1978); MORY EV E EV TAN S , 58 . L. R Washington L. R , 39 UL T IEGO From . 36, 114–16Kenneth (1977); D EV , 72 AN Seeing Through Colorblindness: Im- S , 15 Disproportionate Impact and Illicit Motive: Racially Prejudiced Governmental Actions: A Racially Prejudiced Governmental Actions: N.Y.U. L. R . 465 (2010); Linda Hamilton Krieger, That’s quite an assumption. It pre- That’s quite an assumption. It EV , 52 Anthony Page, later quoted by Justice Anthony Page, later quoted by 127 . 1161 (1995); Charles R. Lawrence III, 129 EV Unconscious Racism and the Criminal Law Intent and Incoherence The Id, the Ego, and Equal Protection in the 21st Century: UCLA L. R . L. R , 58 TAN S The Disproportionate Impact Theory of Racial Discrimination The Disproportionate Impact Theory of Racial , Theodore Eisenberg, , Ralph Richard Banks & Richard Thompson Ford, , Ralph Richard Banks & Richard Thompson , 47 e.g. Sheila Foster, , at 264–65. at 267–68. and a whole field of scholarship has developed around and a whole field of scholarship and Beyond: Discriminatory Purpose in Equal Protection Litigation and Beyond: Discriminatory Purpose in Equal . 961, 1001; Larry G. Simon, . 540, 548–49 Robert G. Schwemm, (1977); See See, e.g. Id. Id. See The Costs of Motive-Centered Inquiry 128 EV EV It laid out what have come to be known as the “Arlington to be known what have come It laid out . 1016 (1988); Jerry Kang & Kristin Lane, . 1016 (1988); Jerry Kang & Kristin Lane, . 1041 (1978). This evidentiary scheme assumes that the relevant mental state scheme assumes that the relevant This evidentiary 125 128. 129. 125. 126. 127. EV EV . L. R . L. R A LL (2009); Sheri Lynn Johnson, (1987); Eva Paterson et al., supposes that relevant information has been recorded, can be ex- supposes that relevant information sufficient bulk to meet the burden tracted, and will be available in difficulty of this standard are nu- of proof. Scholars exposing the merous (1998). Michael J. Perry, Theories of Constitutional Adjudication P L. Karst, I Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employ- ment Opportunity Ego, and Equal Protection: Reckoning with Unconscious Racism unconscious stereotyping. Factors:” (1) the historical background of the decision, particularly background of (1) the historical Factors:” for invidi- decision maker taken by the a series of actions if it reveals up to the of events leading sequence (2) the specific ous purposes; decision maker’s which may shed light on the challenged decision, sequence from the normal procedural purposes; (3) departures a role in the deci- that improper motives played that demonstrate particularly departures by the decision makers, sion; (4) substantive decision makers considered important by the if the factors usually and (5) legis- contrary to the one reached; strongly favor a decision decision, history behind the challenged lative and administrative or reports. statements by decision makers such as contemporary is connected to tangible objective factors and that scrutinizing the tangible objective factors and that is connected to court to decipher background could enable a historical and social the decision maker’s intent. plicit Bias and the Law Motivation Theory of the Constitutional Ban Against Racial Discrimination Motivation Theory of the Constitutional Ban Unconscious Bias Matter?: Law, Politics, and Racial Inequality Unconscious Bias Matter?: Law, Politics, ton Heights L. R L. R 2013] what evidence regarding and courts plaintiffs to guidance concrete dis- stated that Court The purpose. discriminatory establish would THE JURY EXCEPTION INTRODUCING determina- would not be considered, but could be parate impact tive. 203 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 19 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 108 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 108 35559-nys_69-1 35559-nys_69-1 Sheet No. 108 Side B 10/20/2014 11:50:05 As , 545 134 Miller-El v. Dretke , Justice Stevens tried to , Justice Davis Personnel Administrator of Massachusetts v. Personnel Administrator of Massachusetts 135 in . 1175 (2008). . 155, 160–61 (internal citations omitted). Justice (2005) Over 98% of veterans were male, which the Over 98% of veterans were male, Batson’s Blind-Spot: Unconscious Stereotyping and the Peremptory Batson’s Blind-Spot: Unconscious Stereotyping EV EV Davis 133 131 . L. R 130 ONN B.U. L. R at 269–70. at 260, 269–70. at 264. C Helen Feeney had received top scores in several Massa- Helen Feeney had received top Id. Id. Id. , 85 132 , 40 . But that was not enough, the Court explained. Perhaps if there But that was not enough, the Court The Court, however, vetoed the foreseeability approach only The Court, however, vetoed the In his concurring opinion in opinion In his concurring 131. Washington v. Davis, 426 U.S. 229, 253 (1976) (Stevens, J., concurring). 132. 442 U.S. 256, 279 (1979). 133. 130. Antony Page, 134. 135. Frequently the most probative evidence of intent will be objec- probative evidence of intent Frequently the most than evidence what actually happened rather tive evidence of For nor- state of mind of the actor. describing the subjective natural con- presumed to have intended the mally the actor is in the case of deeds. This is particularly true sequences of his of com- which is frequently the product governmental action mixed motiva- decisionmaking, and of promise, of collective of alleged . . . to require the victim tion. It is unrealistic intent of the uncover the actual subjective discrimination to decisionmaker. a result of these policies, both the Supreme Court and the lower a result of these policies, both that this rule overwhelmingly courts forthrightly acknowledged impact” on women’s em- benefited males and had a “devastating ployment opportunities. Court attributed to the federal statutes and policies that had re- Court attributed to the federal the armed forces, as well as to the stricted women’s enrollment in subjected to a military draft. fact that women have never been U.S. 231, 268 (2005). Challenge opinion in Breyer quoted this language with his concurring chusetts civil service exams, but because Massachusetts law had a chusetts civil service exams, but veterans, she had repeatedly been lifetime, absolute preference for denied positions. Feeney were no neutral way to explain the law, this impact could be were no neutral way to explain three years after soften the blow. He submitted that: soften the blow. Building upon Charles Lawrence’s Vision to Mount a Contemporary Challenge to the Intent Building upon Charles Lawrence’s Vision to Doctrine 204 they and discriminate, often people “[G]ood simply: put it Breyer, NYUof bias forms . . . subtle of it aware being without discriminate often ANNUAL SURVEY OF of The implication and unintentional. unconscious, are automatic, AMERICAN LAW is that people—observers forms of bias these subtle and actors [Vol. 69:185 alike—cannotthem. They es- and control detect, name, so easily cape notice.” \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 20 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 108 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 108 35559-nys_69-1 35559-nys_69-1 Sheet No. 109 Side A 10/20/2014 11:50:05 , 277, . is to NEQ note 143, at unintended Feeney & I AW supra L , 1 . Sheila Foster argues The new intent require- Proof of external factors is Davis 143 144 In other words, inevitable does 141 Discriminatory Impact and Intent Under the Equal Pro- Such preferences were intended as a were Such preferences Inevitability may generate an inference of Inevitability may 137 Rather, as noted in a footnote, their intent their a footnote, in as noted Rather, 142 140 136 note 127, at 1083–84 (citing Weinzweig, objective factors may be ‘signs’ or ‘symptoms,’ but objective factors may be ‘signs’ supra , 442 U.S. at 279 n.25 (calling the impact on women an “unavoida- , 442 U.S. at 279 n.25 (calling the impact at 275. at 265 n.12. at 265. at 278. at 278–79 added). (emphasis The Court stated that it was inevitable that the Massachu- The Court stated Feeney Id. Id. Id. Id. Feeney Id. Id. 139 And so, though it would be “disingenuous to say that the to say that be “disingenuous though it would And so, As Marjorie Weinzweig points out, the effect of As Marjorie Weinzweig points 138 144. Foster, 136. 137. 138. 139. 140. 141. 142. 143. Marjorie J. Weinzweig, ment goes far beyond that described in ment goes far beyond that described Proving intent here requires an not alone constitutive of intent. from the social and histori- ‘isolated “inner” mental event’ separate cal context in which the action arises.” that “in not enough. Proof that disparate consequences were plainly fore- not enough. Proof that disparate 293–94 and 302–03). not mean intentional. 293–94 (1983). reward for military service and to ease the transition back to civilian transition back and to ease the military service reward for life. intent, but that inference is only “a working tool, not a synonym for is only “a working tool, intent, but that inference invidiousness, “the inference proof;” where other evidence support simply fails to ripen into proof.” was beyond question: “[v]eterans’ preference laws have been chal- laws have preference question: “[v]eterans’ was beyond es- support has become rationale in their often that the lenged so standardized.” sentially setts rule would heavily disadvantage women, albeit hiding this con- heavily disadvantage women, albeit setts rule would cession in a footnote. adverse consequences of this legislation for women were of this legislation for women adverse consequences the sense that they they were not volitional or in in the sense that more than discriminatory purpose “implies were not foreseeable,” It implies or intent as awareness of consequences. intent as volition selected or in this case a state legislature, that the decisionmaker, part ‘because of,’ course of action at least in reaffirmed a particular an identifiable spite of,’ its adverse effects upon not merely ‘in group.” sever the objective from the subjective. 2013] be ex- not plausibly law could the behind the reasons but enough, as invidious. plained THE JURY EXCEPTION INTRODUCING 205 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 21 15-OCT-14 10:56 ble consequence” of the policy). tection Clause: The Supreme Court and the Mind-Body Problem 35559-nys_69-1 Sheet No. 109 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 109 35559-nys_69-1 35559-nys_69-1 Sheet No. 109 Side B 10/20/2014 11:50:05 rep- itself. Daniel Applying Feeney see also , intent is , intent be discrimi- 148 151 prohibits such not . 1105, 1113 (1989). Feeney EV The Model Penal The Model , as discussed above, will Feeney 147 rule can be viewed as rule can be viewed . L. R 149 TAN mens rea S Davis . 111, 121–22 (1983); , 41 L.J Discriminatory Purpose and Mens Rea: The 145 ALE Y As laid out in As laid , 93 146 While the § 2.02(2) (1962). note 6, at 530. 150 ODE C note 143, at 294. supra note 146, at 112. note 146, at 128. note 127, at 1082. ENAL supra P standard has been compared to the “specific intent” to the “specific has been compared standard supra supra supra , United States v. Bailey, 444 U.S. 394, 417 (1980) (“The key ele- , United States v. Bailey, 444 U.S. 394, 417 at 1085; Pamela S. Karlan, ODEL M . at §2.02(2)(a). Second, a liability analysis in which the court would ex- Second, a liability analysis in which Feeney See Id See, e.g. Instead of limiting scrutiny to purpose-or-nothing, she pro- Instead of limiting scrutiny to purpose-or-nothing, See id. The Myth of Intent in Equal Protection 153 means delving into the minds of the decision makers and into the minds of the decision means delving 152 Pam Karlan argues that we should expand the scope of culpa- Pam Karlan argues that we should The 147. 148. 150. Weinzweig, 151. K.G. Jan Pillai, 152. Karlan, 153. Karlan, 149. 146. 145. Foster, No connection necessarily exists between the symptoms and the necessarily exists between the symptoms No connection resents an evisceration of all the lower mental states, commonly resents an evisceration of all the as factors in the Equal Protection used in torts and criminal law, that someone can be pun- context. It is the equivalent of deciding aforethought, but there is no ished only for murder with malice liability—civil or criminal—for manslaughter. bility. Feeney malice toward a they were acting with deliberate demonstrating that state can be Unlike in criminal law, where mental protected group. attendant circumstances, inferred from the Code defines “purposely” as having the “conscious object to engage object as having the “conscious “purposely” Code defines nature or to cause such a result.” in conduct of that inferences. As Weinzweig explains, a “separate, additional inference explains, a “separate, additional inferences. As Weinzweig of the intent the existence and nature is required to establish true subjective event—the the intent might intent: pro- how strong the evidence of discrimination natory no matter vided by the symptoms.” equivalent to the highest mens rea of “purposely,” and above “purposely,” mens rea of to the highest equivalent and “negligently.” “recklessly,” “knowingly,” of not subjecting a party to reflecting the common law tradition and culpability, liability without establishing causation R. Ortiz, usually depend upon reasonable inferences from those objective facts.”). ments are capable of objective demonstration; the ments are capable of objective demonstration; poses a two-part test. First, a foreseeability analysis to determine poses a two-part test. First, a foreseeability or a constructive awareness that whether the actors had an actual risk of harm to a protected their actions posed a substantial group. Tortured Argument of Invidious Intent 206discrimination Instead, is not enough. inevitable, or even seeable, NYU goal. a considered have been must ANNUAL SURVEY OF AMERICAN LAWlaw. by criminal required [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 22 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 109 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 109 35559-nys_69-1 35559-nys_69-1 Sheet No. 110 Side A 10/20/2014 11:50:05 . 1779, EV . 493, 506 EV 155 . L. R N.Y.U. L. R Richard A. Primus, ARV see , 87 H , 117 was adopted by several 156 http://www.law.nyu.edu/news/LO standard has proven insurmount- standard ]. explicitly stated that the statutory explicitly stated Intentional Blindness available at Feeney 1. Title VII - Davis When Congress amended Title VII in When Congress amended Title 157 . Round Three Davis would not be extended from Title VII to the would not be extended Griggs Ian F. Haney Lopez, Griggs Griggs v. Duke Power Co., 401 U.S. at 424, 432 (1971) (“. . . good Griggs v. Duke Power Co., 401 U.S. at at 129–30. see also See Id. This is essentially an evaluation of how compelling the stated of how compelling an evaluation This is essentially In operation, the In operation, The original language of Title VII did not contain a disparate The original language of Title VII As mentioned above, As mentioned above, 154 156. 29 C.F.R. §1607.3 (1970). 157. 154. 155. Derrick Bell Lecture on Race in Ian Haney Lopez, The Sixteenth Annual B. Intent Doctrine Statutory Departures from the Equal Protection lower courts, and then received a stamp of approval from the Su- lower courts, and then received preme Court in 1783 (2012) (providing a more in-depth elaboration of this fact). 1783 (2012) (providing a more in-depth (2003) [hereinafter Primus, intent or absence of discriminatory intent does not redeem employment proce- dures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.”); Equal Protection and Disparate Impact: Round Three government interest is, although even a truly compelling interest truly compelling although even a interest is, government were to a protected group if the harm survive scrutiny would not grave. sufficiently operate. realities of how bias and discrimination able, blind to the means the only illustrates, this path was by no As this discussion test, the Court since handing down the intent possible result. But discrimination against non-whites. has not once found impact standard. Disparate impact arose from Equal Employment impact standard. Disparate impact Opportunity Commission guidelines, PEZ_IAN_HANEY_DERRICK_BELL_LECTURE) [hereinafter Haney Lopez, Jus- PEZ_IAN_HANEY_DERRICK_BELL_LECTURE) this test in 1979 and 1980, the Supreme tice Undone] (“Since the court articulated time, found discrimination against non- Court has never, not once, not one single whites.”); American Society: Justice Undone: Color Blindness after Civil Rights (November 2, American Society: Justice Undone: Color 2011) (at 33:07) (video recording Fourteenth Amendment. The statutory standard persists in two ar- The statutory standard Fourteenth Amendment. VII and the Voting Rights Act. eas of statutory civil rights law: Title overview of those two lines of This Section will give a brief jurisprudence. standard in 2013] risk that for taking culpability actor’s the and assess its focus pand par- of third interests and the concerns of countervailing in light THE JURY EXCEPTION INTRODUCING ties. 207 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 23 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 110 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 110 35559-nys_69-1 35559-nys_69-1 Sheet No. 110 Side B 10/20/2014 11:50:05 A final shift Watson v. Fort 166 In 163 But it nevertheless de- International Brotherhood of International Brotherhood 165 158 Once the prima facie case is Once the prima , which approved mixed-motive 160 168 The Court explicitly approved of The Court explicitly 162 When tests and subjective criteria are When tests and subjective criteria laid out a fairly complete model: The a fairly complete laid out 164 influence in the employer’s decision as influence in the employer’s decision , which enunciated a framework for litigat- , which enunciated sole , the Court attempted to restrict the scope of , the Court attempted to restrict at 338–40. at 241–42. 161 McDonnell Douglas McDonnell Price Waterhouse v. Hopkins Thereafter, plaintiffs would not have to prove that the dis- Thereafter, plaintiffs would not Id. Id. Id. Id. Id. Id. 167 159 Over the next two decades, the doctrine expanded, contracted, decades, the doctrine expanded, Over the next two In 1973, the Court adopted a burden-shifting test for Title VII test for Title a burden-shifting the Court adopted In 1973, 158. 102-166, § Civil Rights Act of 1991, Pub. L. No. Stat. 1071, 105, 105 159. 411 U.S. 792, 802 (1973). McDonnell Douglas Corp. v. Green, 160. 161. 162. 431 U.S. 324, 339–40 (1977). 163. 164. 487 U.S. 977, 994 (1988). 165. 166. 167. 490 U.S. 228, 258 (1989). 168. came in cases. Worth Bank & Trust be able to identify the specific claims by holding that plaintiffs must practice that is challenged. cided that “the plaintiff is in our view responsible for isolating and cided that “the plaintiff is in our practices that are allegedly re- identifying the specific employment disparities.” sponsible for any observed statistical made out, the burden then shifts to the employer to articulate some then shifts to the employer made out, the burden the employee’s reason for legitimate, nondiscriminatory rejection. the use of statistics to establish a prima facie case, although it did to establish a prima facie case, the use of statistics and that testimony about indi- caution that statistics are rebuttable stronger case. vidual experiences makes for a used, it is difficult to isolate a single discrete practice; the Court used, it is difficult to isolate a the requirement would only openly acknowledged this, recognizing tests. be straightforward for standardized long as it was a motivating factor. plaintiff must first establish a prima facie case by showing that he is case by showing a prima facie must first establish plaintiff qualified to and was that he applied of a racial minority, a member re- rejection the position that after his was rejected, and for a job, applicants from the employer continued to seek mained open and qualifications. people with similar crimination was the cases. first expansion came in and shifted. The cases. ing pattern or practice Teamsters v. United States Teamsters v. United 1074–75 as amended at 42 U.S.C. § (1991) (codified 2000e–2 (2012)). 208 the statute, into impact” “disparate the words it incorporated 1991, NYU footing. on firmer doctrine the placing ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 24 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 110 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 110 35559-nys_69-1 35559-nys_69-1 Sheet No. 111 Side A 10/20/2014 11:50:05 at it 169 177 re- Id. 174 and , Law, 32 170 ]. Watson Richard A. Primus, The See The Future , approximately 1.5 mil- 171 Ricci v. DeStefano Wal-Mart Stores, Inc. v. Wal-Mart Stores, Inc. Congress did not spe- Congress burden-shifting at 2553–54. 172 Wal-Mart Id. And . 1341 (2010) (discussing in detail Disparate impact—a model 175 EV 178 , stated that “the war between disparate note 157, at 517. . L. R Ricci ICH ) [hereinafter Primus, supra M , The Future of Systemic Disparate Treatment McDonnell Douglas McDonnell , 108 395 (2011). . L. mixed-motive framework. mixed-motive AB Round Three Ricci v. DeStefano at 2547. The Court denied certification on the basis that the at 2547. The Court denied certification , a group of white New Haven firefighters sued the city of New , a group of white New Haven firefighters . & L Id. at § 105. at § 107(a). . at § 104. MPL Ricci Tristin K. Green, Primus, 173 created obstacles for plaintiffs seeking class certification. created obstacles See See See id. See id. See id J. E 176 Recent cases have put Title VII in jeopardy, suggesting that we put Title VII in jeopardy, suggesting Recent cases have In 1991, Congress amended Title VII and revised the Court- revised the and Title VII amended Congress In 1991, Price Waterhouse 176. 131 S. Ct. 2541, 2547–2554 (2011). In 177. 178. Justice Scalia, concurring in 173. 169. 102-166, 105 Stat. 1071 (1991) Civil Rights Act of 1991, Pub. L. No. 170. 171. 172. 174. 557 U.S. 557 (2009). 175. In ERKELEY will be more difficult for employers to resolve disparate impact for employers to resolve will be more difficult violations without creating disparate treatment problems internally employees. against their nonminority the quirement that plaintiffs must isolate a single practice was removed, practice was must isolate a single that plaintiffs quirement the deci- the elements of demonstrate that a plaintiff can as long as be separated. process cannot sion-making cifically address the use of statistics in proving disparate impact, but the use of statistics in proving disparate cifically address that other areas it can be presumed given congressional approval were addressed—afound problematic by form of endorsement omission. Dukes 2552. It decided that in order to pursue a Title VII class action there must be a 2552. It decided that in order to pursue specific, company-wide policy of discrimination. company had not acted on grounds that apply generally to the whole class. company had not acted on grounds that lion women sought class certification in order to sue Wal-Mart for discrimination lion women sought class certification in against women. the background of impact and equal protection will be waged sooner or later, and it behooves us to impact and equal protection will be waged sooner or later, and it behooves us begin thinking about how—and on what terms—to make peace between them.” Ricci v. DeStefano, 557 U.S. 557, 595–96 prognosis of the (2009). For a candid created model, approving some rules and eliminating others. eliminating and rules some approving model, created period of contraction. After may be in a new (codified as amended at 42 U.S.C. § 2000e (2012)). B Haven regarding its promotion practice. The city had suspended the promotion Haven regarding its promotion practice. test had a severe adverse impact on the process after realizing that the written found that New Haven had violated Title black applicants. The resulting decision which puts employers between a rock VII’s prohibition on disparate treatment, and a hard spot—it now more difficult to avoid creating a disparate impact while is disparately. also avoiding treating one group of employees But the basic structure of the doctrine remains and for the mo- of the doctrine remains But the basic structure ment, at least, is not in jeopardy. 2013] THE JURY EXCEPTION INTRODUCING codified both Congress 209 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 25 15-OCT-14 10:56 The Future of Disparate Impact 35559-nys_69-1 Sheet No. 111 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 111 35559-nys_69-1 35559-nys_69-1 Sheet No. 111 Side B 10/20/2014 11:50:05 , The Id. Thorn- 179 183 —and reiter- , the Court de- A pure dispar- 181 superseded by statute 185 as recognized in It found that rights 180 note 175, at 1341. Primus argues supra In response to the lower courts’ , 182 that could prove fatal to disparate impact City of Mobile v. Bolden Ricci , the Court turned to the question of in- turned to the , the Court The Future 2. Act The Voting Rights Davis standard for Fourteenth Amendment claims. Spe- Amendment claims. standard for Fourteenth provoked immediate congressional response. In 1982, provoked immediate congressional at 60–61, 74. at 62. at 66 (internal quotation marks omitted). at 74. Davis The amendments clarified two issues in particular. First, The amendments clarified two Id. Id. Id. Id. Id. 184 Bolden Four years after Four years 179. 58 (1980), City of Mobile v. Bolden, 446 U.S. 55, 180. 181. 182. 183. 184. Voting Rights Act of 1965, Pub. L. No. 97-205, § 1973, 96 Stat. 131 185. both are violated only by purposeful discrimination both are violated Court held that plaintiffs bringing a claim under any of those provi- bringing a claim under Court held that plaintiffs show discriminatory intent. sions needed to ated the that “a plaintiff must prove that cific to voting rights, it elaborated or operated as a purposeful device the disputed plan was conceived to further racial discrimination.” under Section 2 were coextensive with the Fifteenth Amendment—were coextensive with the Fifteenth under Section 2 examinations of the history of discrimination, it pithily replied that examinations of the history of discrimination, the manner of original sin, con- “past discrimination cannot, in is not itself unlawful.” demn governmental action that the Dole Amendment provided that the VRA does not guarantee a the Dole Amendment provided class elected in numbers right to have members of a protected the population. equal to the class’s proportion in Congress amended the VRA, clarifying that Section 2 prohibits any Congress amended the VRA, clarifying denial or abridgement of the right voting practice that “results in a to vote on account of race or of any citizen of the United States color.” cided that the Voting Rights Act (“VRA”) of 1965 required a Voting Rights Act (“VRA”) of cided that the challenged the intent. The plaintiffs had showing of discriminatory 2 of the VRA in Mobile, Alabama under Section at-large elections claiming that they and Fifteenth Amendments, and the Fourteenth voters. the voting strength of black impermissibly diluted tent in voting rights cases. In tent in voting rights future of Title VII, see Primus, 210 and without statistics, with established can be discrimination where NYU actors—has of the the part on intent invidious specific proving ANNUAL SURVEY OFsurvived. AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 26 15-OCT-14 10:56 that while there is one reading of readings that allow for its survival. claims, there are two equally plausible 97-205, 96 Stat. 131, Voting Rights Act of 1965, Pub. L. No. burg v. Gingles, 478 U.S. 30 (1986). (1982) (codified as amended at 42 U.S.C. § 1973 (2012)). 35559-nys_69-1 Sheet No. 111 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 111 35559-nys_69-1 35559-nys_69-1 Sheet No. 112 Side A 10/20/2014 11:50:05 186 The 194 . decision. , the First, Randolph M. Instead, the 189 Bolden Gingles see also 180 F.3d 476, 483 (2d , The test “asks the The test 187 . http://www.senate.gov/art Since 195 Thornburg v. Gingles ENATE S —spokethe in support of The report discusses in great The report discusses TATES 192 190 S . 943, 959 (2000). EV NITED U L. R , Senator Strom Thurmond—who Senator Strom spoke for OURO 191 T and was “unnecessarily divisive,” “threatening to “threatening “unnecessarily divisive,” and was 97–417, at 88 (1982). 97–417, at 2 (1982). . . 188 O O The Voting Rights Act and the “New and Improved” Intent Test: Old , 16 , 193 . N . N at 100 (O’Connor, J., concurring in part); at 100 (O’Connor, J., concurring in part); 196 EP EP at 16. at 36. at 28–29. at 16–18, 26–27. See id. Id. Id. Id. Id. Id. Filibuster and Cloture S. R S. R Despite this strikingly clear language, the implementation of Despite this strikingly clear language, 193. 196. Goosby v. Town Bd. of Town of Hempstead, N.Y. 194. 478 U.S. 30 (1986). 195. 187. 188. 189. 190. 191. 192. 186. plurality opinion by Justice Brennan echoed the Senate Report; the plurality opinion by Justice Brennan seemed to keep in question concurrence, by Justice O’Connor, to vote dilution, might per- whether the results test, when applied all. haps warrant an intent inquiry after report laid out various factors courts ought to consider, commonly factors courts ought to consider, report laid out various factors.” known as the “Senate wrong question” Second, Fifth, and Eleventh Circuits have required vote-dilution Second, Fifth, and Eleventh Circuits resulted from race-based deci- plaintiffs to prove that their injuries sion making. It proclaims that requiring discriminatory purpose was in violation requiring discriminatory purpose It proclaims that and in defiance of the Court’s own precedents, of legislative intent, of common sense. amendments. depth how profoundly Congress disagreed with the Congress disagreed with the depth how profoundly andhistory/history/common/briefing/Filibuster_Cloture.htm (last visited Mar. andhistory/history/common/briefing/Filibuster_Cloture.htm 12, 2014). twenty-four hours and eighteen minutes in vehement opposition to and eighteen minutes in vehement twenty-four hours filibuster ever con- Act of 1957, to date the longest the Civil Rights single senator ducted by a destroy any existing racial progress in a community.” destroy any existing Cir. 1999); Teague v. Attala Cnty., Miss., 92 F.3d 283, 295 (5th Cir. 1996); Uno v. Cir. 1999); Teague v. Attala Cnty., Miss., 92 F.3d 283, 295 (5th Cir. 1996); Uno City of Holyoke, 72 F.3d 973, 983 (1st Cir. 1995); S. Christian Leadership Confer- Scott-McLaughlin Wine in New Bottles the new test faced some difficulties. The first post–Dolethe new test faced some difficulties. Amend- was ment case to come before the Court 2013] was approach intent the Second, ruled out. thus was ity theory a 250-page was amendment the Accompanying rejected. roundly THE JURY EXCEPTION INTRODUCING discrimina- “that proof of scathingly clear that made Senate Report 2.” violation of Section to establish a is not required tory intent places an the “intent test concluded that the Senate Furthermore, on plaintiffs.” difficult burden unacceptably 211 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 27 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 112 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 112 35559-nys_69-1 35559-nys_69-1 Sheet No. 112 Side B 10/20/2014 11:50:05 , see also Making Gingles 201 Nw. Austin The Court 199 see also . that Congress intended And when the constitutionality of the constitutionality And when Farrakhan v. Gregoire , the Court established that established that , the Court based their claim on one of the Sen- based their claim on one of the , a group of prisoners in Washington , a group of prisoners 197 Farrakhan Farrakhan In 97–417, at 28–29 (1982). . O 377, 407 (2012). 200 . . N EV note 195, at 960–78; see also Christopher S. Elmendorf, Allen v. State Board of Elections Allen v. State Board Johnson v. De Grandy Johnson v. They produced extensive documentation in support of They produced extensive documentation EP Shelby Cnty. v. Holder, 133 S. Ct. 2612, 2619 (2013) (“Section 2 is Shelby Cnty. v. Holder, 133 S. Ct. 2612, 202 supra . L. R See S. R 198 A The plaintiffs in However, apart from the struggles with vote dilution, the tran- dilution, vote with the struggles from apart However, commitment have begun to backslide on the Recently, courts 199. 623 F.3d 990 (9th Cir. 2010). 200. Allen v. State Bd. of Elections, 393 U.S. 544, 566–68 (1969); 201. Farrakhan v. Washington, 338 F.3d 1009, 1012–13 2003). (9th Cir. 202. 197. (1994). Johnson v. Grandy, 512 U.S. 997, 1024 198. U. P had held in the “procedure” language to have a broad scope, so that the VRA language to have a broad scope, the “procedure” of practices and to apply to a wide range should be interpreted combating racial the “broadest possible scope” in should provide discrimination. the VRA has been challenged, Section 2 has been consistently Section has been challenged, the VRA upheld. state rallied to this call and challenged the state’s felon disen- this call and challenged the state’s state rallied to that since Section under Section 2. They argued franchisement law or prerequisite to voting or 2 provides that “no voting qualification shall be imposed or applied by any standard, practice, or procedure in a denial or abridgement of State . . . in a manner which results States to vote on account of the right of any citizen of the United law, if proven to have a race or color,” a felon disenfranchisement qualify as impermissible. racially disparate impact, should acted as a prima facie case of impermissible discrimination; after a discrimination; of impermissible a prima facie case acted as to to the defendants the burden shifts been made out, case had race-neutral rationale. prove a Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009); Lopez v. Monterey Cnty., Mun. Util. Dist. No. One v. Holder, 557 525 U.S. 266 (1999). Chisom v. Roemer, 501 U.S. 380, 403–04 (1991). permanent, applies nationwide, and is not at issue in this case”); permanent, applies nationwide, and is not sition to a results test in other areas of voting rights largely has been has rights largely voting areas of in other test to a results sition In smooth. Ninth Circuit This trend is notable in a 2010 to the results test. case, felon disenfranchisement ate Report factors: “the extent to which members of the minority ate Report factors: “the extent to bear the effects of dis- group in the state or political subdivision employment and health, crimination in such areas as education, effectively in the political which hinder their ability to participate process.” ence of Ala. v. Sessions, 56 F.3d 1281, 1293–94 (11th Cir. 1995); Nipper v. Smith, an analysis of these cases, see Scott-Mc- 39 F.3d 1494, 1524 (11th Cir. 1994). For Laughlin, 212 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 28 15-OCT-14 10:56 Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes Sense of Section 2: Of Biased Votes, Unconstitutional 160 35559-nys_69-1 Sheet No. 112 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 112 35559-nys_69-1 35559-nys_69-1 Sheet No. 113 Side A 10/20/2014 11:50:05 EN- S ENTENC- and to . S ELONY 97–417, at . 211 F O ASH They also , 623 F.3d 990 . N W The Impact of Race 204 DULT EP OF A . T S. R S see reh’g en banc ; and ISPARITY IN The defendants did not The defendants D 208 209 A Study on Racial and Ethnic Disparities in Superior A Study on Racial and Ethnic Disparities The reports demonstrated that African demonstrated reports The in a denial or abridgement” of the right to in a denial or abridgement” of the 203 ISPROPORTIONALITY AND , D result 206 N ’ It found the experts’ conclusions and statistical It found the experts’ And they contended that these disparities were And they contended , 590 F.3d at 1010. at *6. , No. CV-96-076-RHW, 2006 WL 1889273, 207 205 OMM ; the Final Report of Dr. George Bridges, Ph.D., also commis- C , at *9. TENCING Farrakhan Farrakhan Id. Id. ING The purpose of this change was “to make clear that a viola- The purpose of this change was (2003). 210 UIDELINES The district court found the reports to be “compelling evi- found the reports to be “compelling The district court have been whether such dis- The only further inquiry should 206. 207. 208. 209. 210. 42 U.S.C.A. § 1973(a) (emphasis added). 211. Thornburg v. Gingles, 478 U.S. 30, 35 (1986); 204. 2006 WL 1889273, at *4–6 Farrakhan v. Gregoire, No. CV-96-076-RHW, 205. 1009, Farrakhan v. Gregoire, 590 F.3d 989, 203.1999 study entitled These reports included the WSMJC G relieve plaintiffs of the heavy burden of proving intentional discrim- relieve plaintiffs of the heavy burden demonstrated that African Americans in Washington state were in Washington Americans that African demonstrated even prison than whites, likely to be in times more over nine was for violent offenses to white arrests the ratio of black though only 3.72 to 1. contest the evidence. After considering the plaintiffs’ evidence, the After considering the plaintiffs’ contest the evidence. that members of that it “ha[d] no doubt district court concluded in Wash- have experienced racial discrimination racial minorities justice system.” ington’s criminal 205 (1982). Americans in Washington state were subject to disparate bail prac- to disparate state were subject in Washington Americans searches. of charging and higher rates tices and analysis to be relevant and persuasive. analysis to be relevant caused by organizational practices that could not be explained in practices that could not caused by organizational race-neutral terms. tion could be proved by showing discriminatory effect alone and to tion could be proved by showing the ‘results test,’ ” establish as the relevant legal standard dence of racial discrimination and bias in Washington’s criminal discrimination and bias in Washington’s dence of racial justice system.” to “result in a denial or abridge- crimination can rightly be said the “deny and abridge” ment” of the right to vote. Striking voting qualifications and language, Congress instead prohibited prerequisites that “ vote. (9th Cir. 2010). (E.D. Wash. Jul. 7 2006). and Ethnicity on Charging and Sentencing Processes for Drug Offenders in Three Counties of and Ethnicity on Charging and Sentencing Processes Washington State sioned by the WSMJC, entitled in Washington Court Bail and Pre-trial Detention Practices 2013] Washington in the discrimination was racial there claim that their system. justice criminal THE JURY EXCEPTION INTRODUCING 213 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 29 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 113 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 113 35559-nys_69-1 35559-nys_69-1 Sheet No. 113 Side B 10/20/2014 11:50:05 demonstrates Farrakhan They may in fact have They may 213 But the Ninth Circuit instead Circuit the Ninth But 97–417, at 16 (“proof of discrimina- . O 212 . , since they reserved judgment on reserved judgment , since they . N EP ruling would vitiate the VRA and ruling would vitiate S. R 214 Bolden Farrakhan Mobile v. Bolden Mobile at 993–94. Id. The selective prosecution cases powerfully illustrate what hap- The selective prosecution cases The Title VII and VRA jurisprudence showcases the battle be- The Title VII and VRA jurisprudence If followed, the 213. Farrakhan v. Gregoire, 623 F.3d 990, 993 (9th Cir. 2010). 214. 212. Chisom v. Roemer, 501 U.S. 380, 394 (1991); Ruiz v. City of Santa Maria, C. The Equal Protection Intent Test at Work: Selective Prosecution whether such intent, if established, would then be sufficient to then be sufficient established, would such intent, if whether Section 2 violation. prove a raised the bar above that of bar above that raised the read back into the VRA the precise requirement explicitly rejected explicitly requirement precise the the VRA back into read “at a VRA challenge that plaintiffs raising It required by Congress. discrimination. intentional least” show tory purpose should not be a prerequisite to establishing a violation of Section 2 of tory purpose should not be a prerequisite to establishing a violation of Section 2 the Voting Rights Act”). what can happen in discrimination suits even when there is a statu- what can happen in discrimination tory safety net. prosecution claims present chal- pens without one. Discriminatory accountability, and discretion. lenging questions of power, are state actors is beyond ques- Generally speaking, that prosecutors power. However, the diffu- tion: they are executive officials wielding Prosecutors constitute a class of sion of power here is enormous. Attorneys (“ADAs”) and Assistant thousands, both Assistant District the United States, who have over- U.S. Attorneys (“AUSAs”), across tween Congress and the Court regarding discrimination and intent. tween Congress and the Court regarding was reached and the results codi- But in the end, an equilibrium some scrutiny of the numbers, fied. Today, both areas of law permit test, and do not demand employ some kind of burden-shifting But proof of intentional discrimination. render it duplicative of the remedies provided by the Fourteenth of the remedies provided render it duplicative particular case was is too soon to tell whether this Amendment. It an anomaly—a on the murky ground at the intersec- case that tread reflects little more justice and politics and which tion of criminal delicate balance But it aptly demonstrates the than that turbulence. Perhaps evi- and Congress on these matters. between the courts seem safe, a mat- discrimination makes a case dence of intentional Whatever the meriting judicial intervention. ter incontestably dic- is clear: Even where Congress unambiguously reason, the trend and discrimina- gravitate back toward intent tates otherwise, judges tory purpose. 160 F.3d 543, 557 (9th Cir. 1998); 214 by imposed ination NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 30 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 113 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 113 35559-nys_69-1 35559-nys_69-1 Sheet No. 114 Side A 10/20/2014 11:50:05 . , EV 215 18 218 Y ’ OC . L. R S ARV H He testified , 94 219 UDICATURE Justice Jackson, deposed Lewis R. . J 216 M 24 J. A , While Slaton did occasionally 221 McCleskey v. Kemp No other official can “invoke society’s Prosecutorial Intent in Constitutional Criminal Proce- Prosecutorial Intent in Constitutional Criminal 217 The Federal Prosecutor Decent Restraint of Prosecutorial Power . 1365, 1433 (1987). EV In sum and substance, there were no efforts made to In sum and substance, there were . L. R A 222 at 358. ADAs informed him “when they saw fit” and were never ADAs informed him “when they Steven Alan Reiss, at 1430. 220 Id. Id. Id. Id. See U. P To provide a specific example of what that power and discre- To provide a specific example of However, even when the prosecutorial power is shared be- when the prosecutorial power However, even 218. James Vorenberg, 219. McCleskey v. Kemp, 481 U.S. 279, 357 (1987) (Blackmun, J., dissenting). 220. 221. 222. 216. 217. Robert H. Jackson, 215. , 135 that during his entire term there were no guidelines at all; nothing that during his entire term there for murder rather than a lesser advising when to seek an indictment plea, or when to reduce or dismiss charge, when to accept a guilty charges. who served as a prosecutor for many years, stated that “[t]he prose- prosecutor for many years, stated who served as a liberty, and reputation than any cutor has more control over life, other person in America.” pull files to check on the progress of cases, he never told his ADAs pull files to check on the progress he did this. 18 (1940). 1521, 1555 (1981). harshest sanctions on the basis of ad hoc personal judgments.” harshest sanctions on the basis of required to explain any decision, including when they decided to required to explain any decision, seek or not seek the death penalty. tion look like, the petitioners in Slaton, who had been the District Attorney for eighteen years in the Slaton, who had been the District and sentenced. county where McCleskey was tried 2013] come may prosecute to decision The initial jurisdictions. lapping to one office from transferred may be cases office and either from THE JURY EXCEPTION INTRODUCING a single decisions. Even and policy based on resources the other individu- and those a series of prosecutors, be handled by case may of, for decisions the prior or subsequent not participate in als may exculpatory evidence. or disclosing reducing charges example, “who’s act- obfuscate the question can also The chain-of-command 215 policy guiding offices may have only a vague ing?” analysis. Some all decisions to while others may require that charging decisions, the office. Exam- be cleared with the head of seek the death penalty time may then of a subordinate prosecutor over ining the decisions individual would not accurately reflect how that yield data that does of institutional hierarchy. act independent unparalleled that power is tremendous, “virtually tween individuals, breadth and consequences.” in terms of both \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 31 15-OCT-14 10:56 dure 35559-nys_69-1 Sheet No. 114 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 114 35559-nys_69-1 35559-nys_69-1 Sheet No. 114 Side B 10/20/2014 11:50:05 228 Vitek v. 223 As executive United States v. . 175, 180 (2009). 226 EV see generally see also 225 L. R , in addressing the ju- IAMI M 5 (1973) (“[T]he almost wholly un- , 64 U. ENTENCES S . 1388, 1419–20 (1988). McClesky v. Kemp: Race, Capital Punishment, and the McClesky v. Kemp: Race, Capital Punishment, Wayte v. United States EV RIMINAL note 218, at 1554–57. Proportionality and Prosecutorial Discretion: Challenges to the Proportionality and Prosecutorial Discretion: In C , . L. R James Vorenberg details the scope of that dis- James Vorenberg details the scope 227 supra ARV 229 RANKEL note 218, at 1521–22 (citing 18 U.S.C. §§ 3141-3150 (1984) (Bail , 470 U.S. at 607–08. . F 101 H , M supra It creates space for politics in lieu of justice. In counties in lieu of justice. space for politics It creates Wayte See 224 Despite this outrageous lack of accountability from within the lack of accountability from Despite this outrageous Unreviewable action generates systemic costs. It promotes ad costs. It promotes systemic action generates Unreviewable 224. Vorenberg, 225. Randall L. Kennedy, 226. Imbler v. Pachtman, 424 U.S. 409, 427–28 (1976). 227. 607 (1985); Wayte v. United States, 470 U.S. 598, 228. 229. 223. Kristen Nugent, officials, prosecutors’ actions are accorded deference under the actions are accorded deference officials, prosecutors’ repeatedly stated of powers. The Court has doctrine of separation to judicial to prosecute is particularly ill-suited that “the decision entirely within the prosecutor’s review” and that the decision rests “broad discretion.” Supreme Court diciary’s influence over prosecutorial discretion, the Court cited the diciary’s influence over prosecutorial efforts, and undermin- concerns of delay, chilling law enforcement enforcement policy. ing effectiveness by exposing governmental checked and sweeping powers we give to judges in the fashioning of sentences are checked and sweeping powers we give to judges in the fashioning of sentences terrifying and intolerable for a society that professes devotion to the rule of law.”); Vorenberg, Reform Act; pre-trial detention only permitted if defendant is a danger to their community; flight risk is no longer a permissible factor)); Goodwin, 457 U.S. 368, 380 n.11 (1982); Bordenkircher v. Hayes, 434 U.S. 357, Goodwin, 457 U.S. 368, 380 n.11 (1982); 364 (1978). where district attorneys are elected, it permits prosecutors to focus prosecutors are elected, it permits attorneys where district mem- politically powerful will please the in ways that their efforts points out, to the As Randall Kennedy bers of their constituencies. to participate in are less likely to be vocal or extent that minorities attorneys are not it means that the district politics and elections, to that part of the electorate. held accountable hoc decision making and inconsistent and unpredictable out- and unpredictable inconsistent making and hoc decision comes. by courts. Prose- discretion remains unchecked office, prosecutorial immunity from 42 U.S. §cutors receive absolute 1983 suits as long within the scope of their duties. as they were acting Constitutionality of Georgia’s Death Penalty Laws and Procedures Amidst the Deficiencies of Constitutionality of Georgia’s Death Penalty the State’s Mandatory Appellate Review Structure The Court hamstrung itself by deliberately bypassing opportunities The Court hamstrung itself by deliberately even in an era where other actors for prosecutorial accountability, in the criminal justice system—the sentencing police, magistrates, officials—havejudges, parole boards, and correctional had their power curtailed. 216 or to identify or decisions prosecutorial between consistency create NYUdiscretion. of abuses discriminatory potentially remedy ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 32 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 114 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 114 35559-nys_69-1 35559-nys_69-1 Sheet No. 115 Side A 10/20/2014 11:50:05 , Af- 233 . 550, 551–63 (arguing that (1978) EV While the district court rejected While the district 234 . L. R A Parole Release Decisionmaking and the Sentencing Process Parole Release Decisionmaking and the Sentencing U. P note 218, at 1523. note 225, at 1399–1400 (“Professor Richard Berk, a involved one of the most thorough and most thorough one of the involved 235 , 126 231 supra supra , 481 U.S. at 287. 230 at 291 n.7. at 1397 n.30. Professor David Baldus studied the full records of nearly studied the full David Baldus Professor . 810, 822–26 (1975);. Id. McCleskey Id. 232 L.J McCleskey challenged the constitutionality of such a system McCleskey challenged the constitutionality In the late 1980s, a coalition of veteran Legal Defense Fund Legal Defense of veteran 1980s, a coalition In the late 231. 481 U.S. 279 (1987). 232. Kennedy, 233. 230. Vorenberg, 234. 235. ALE Y ter controlling for the nonracial variables believed most likely to the nonracial variables believed ter controlling for Professor Baldus punishment in Georgia, play a role in capital were 4.3 times of being condemned to death found that the odds than for defend- who killed a white person greater for defendants a black person. ants who killed the study as flawed, the court of appeals accepted it as valid, as did the court of appeals accepted the study as flawed, the Supreme Court. sentecing reform efforts will fail without simultaneous efforts to curtail sentecing reform efforts will fail without prosecutorial power); Project, 84 respected statistical studies ever completed of the criminal justice of the criminal ever completed statistical studies respected system. 2,000 murder cases in Georgia, from police reports to prison in Georgia, from police 2,000 murder cases 42 to 120 pages that ranged from records, using questionnaires containing 595 variables for consideration. long, the former member of the National Academy of Sciences’ Committee on Sentencing Re- member of the National Academy of ‘very high credibility’ and ‘is far and away search, testified that the Baldus study has of sentencing that [has] ever been the most complete and thorough analysis in the field have collectively affirmed that done.’ Similarly, several leading scholars best empirical studies on criminal sen- the Baldus investigations ‘are among the tencing ever conducted.’ Second, the Baldus study is consistent with conclusions reached by a solid body of prior research.”) (alteration in original). attorneys brought a case that exposed these problems to the Court. problems to that exposed these brought a case attorneys v. Kemp McCleskey Amendments. His Equal Protec- under the Eighth and Fourteenth study presented robust evidence tion claim was simple: the Baldus penalty in Georgia was tainted that the administration of the death Jones, 445 U.S. 480, 487–88 (1980) (an inmate must be provided a hearing with to transfer from state prison to mental procedural due process safeguards prior 539, 558 (1974) (establishing minimum hospital); Wolff v. McDonnell, 418 U.S. hearings); Cruz v. Beto, 405 U.S. due process safeguards for prison disciplinary that prison authorities lack discretion to 319, 322 (1972) (per curiam) (stating opportunity to practice his religion in a deny an inmate’s right to a reasonable religions); Albert W. Alschuler, manner similar to those who follow conventional A Critique of Recent Proposals for “Fixed” and Sentencing Reform and Prosecutorial Power: “Presumptive” Sentencing 2013] essentially remained has that power that confirms and cretion unreviewable. THE JURY EXCEPTION INTRODUCING 217 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 33 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 115 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 115 35559-nys_69-1 35559-nys_69-1 Sheet No. 115 Side B 10/20/2014 11:50:05 . : , T See 240 Dis- . C ENALTY UP S P ’s author, Washing- Having . 1016, 1016 237 EATH ISCRIMINATION , 1998 EV D D Puzzle: Remedying McCleskey This is a funda- L. R 241 EATH AND ORNELL McCleskey , D C USTICE AND THE , and apparently failed to , and apparently J The AURO 395, 403 (2007). The Effects of Intent: Do We Know How M QUAL Feeney L.J. 159–211 B. Bright, (1989); Stephen Law, 73 1151, 1159–60 Sheri Lynn John- (1991); . ., E EV OBERT . 433, 480 (1995) (“The Supreme Court deci- . 433, 480 (1995) (“The Supreme Court , June 10, 1994, at A1. note 146, at 1142; Bryan A. Stevenson & Ruth note 146, at 1142; Bryan A. Stevenson & , and OVERTY EV L. R A multiple regression analysis deter- A multiple regression & R OST Even if individual decisions could be ex- could be decisions if individual Even ENTENCING & P 242 supra . P L. R S 236 ALDUS ET AL ROSS ACE Proving Race Discrimination in Criminal Cases Using Statis- ORNELL ASH R C note 225, at 1406. LARA the Supreme Court rejected this claim. Court rejected the Supreme is a badge of shame upon America’s system of justice.”); is a badge of shame upon America’s system . 509, 510 (1994) (arguing that the Supreme Court ac- . 509, 510 (1994) (arguing that the Supreme W C. B R. G APITAL C , EV 239 C , 76 Retired Justice Changes Stand on Death Penalty; Powell Is Said to Retired Justice Changes Stand on Death Penalty; supra AVID , 481 U.S. at 292. D ANTA ASTINGS AMUEL L. R S ., Arlington Heights H EE , Deliberate Indifference: Judicial Tolerance of Racial Bias in Criminal Justice Deliberate Indifference: Judicial Tolerance of Brief for Petitioner, McCleskey v. Kemp, 481 U.S. 279 (1987) (No. 84- Brief for Petitioner, McCleskey v. Kemp, , 35 , 4 at 291–92. . at 312. McCleskey Id Id. See See, e.g ISPARITIES IN . & L McCleskey v. Kemp D 238 In one of the most criticized and controversial decisions of the decisions and controversial the most criticized In one of ASH Unconscious Racism and the Criminal 240. 241. 242. Marc Price Wolf, 236. 237. Kennedy, 238. 239. . 145, 151; Daniel R. Ortiz, W ACIAL EV made this showing, he asked the Court to shift the burden to the to shift the burden the Court showing, he asked made this state. mental misstatement of what a multiple regression analysis does. of what a multiple regression mental misstatement studies in presented with correlation The Court had been ton v. Davis regression analysis between a multiple recognize the distinction study. and a correlation (1988); Evan Tsen Lee & Ashutosh Bhagwat, (1988); Evan Tsen Lee & Ashutosh Bhagwat, Prosecutorial Discrimination Against Black Victims in Capital Sentencing Prosecutorial Discrimination Against Black mines the causal influence of a variety of factors and measures the influence of a variety of factors mines the causal by noting how the on the final result. It does this impact of each variable is affected when only one independent dependent variable 230 relevant, nonracial vari- is changed. The Baldus study compiled for why the defendant received the ables that might have accounted plained away, the study showed that the overall pattern was clearly was pattern the overall that showed the study away, plained en masse. when considered with racial bias infected R R Theodore Eisenberg & Sheri Lynn Johnson, Theodore Eisenberg & Sheri Lynn Johnson, Legal Standards Work? crimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the crimination, Death and Denial: The Tolerance Death Penalty son, sion in tical Evidence Justice Powell, came to wish that he could change his deciding vote in that case. Justice Powell, came to wish that he could David Von Drehle, Favor Ending Executions cepted racial bias as inevitable in capital punishment). Even cepted racial bias as inevitable in capital last few decades, last few E. Friedman, 370–93 (1990); S 218 discrimination. by racial NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 to date, the most rigorous study of sentencing Presented with the study indicates a that “at most, the Baldus Court decreed flippantly appears to correlate with race.” discrepancy that 51 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 34 15-OCT-14 10:56 6811), 1986 WL 727359, at *26–27 [hereinafter McCleskey’s Brief]. 35559-nys_69-1 Sheet No. 115 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 115 35559-nys_69-1 35559-nys_69-1 Sheet No. 116 Side A 10/20/2014 11:50:05 , Af- 244 . Burton state action particular actor decision maker— Burton In Title VII cases, his specific case 247 first Only when it comes to regu- 248 Kristen Nugent contends that this Kristen Nugent 245 The Baldus study thus did prove, to a study thus The Baldus That initial decision severely narrows the That initial decision 243 246 note 223, at 224. , 481 U.S. at 292–93. , 481 U.S. at 295 n.15. supra at 404. at 294–95 consis- and 295 n.15 (“It is also questionable whether any Id. McCleskey Id. Id. McCleskey In other areas of constitutional analysis, the Court has replaced In other areas of constitutional analysis, The Court began the Equal Protection analysis by stating that by stating Protection analysis began the Equal The Court In other categories of cases, where decisions are made by simi- In other categories of cases, where 243. 244. 245. 247. 248. 246. Nugent, the district attorney—whoto pur- the original determination makes ter considering the diffusion of authority in criminal cases—the diffusion of authority in criminal ter considering the dis- offices and the between various prosecutors’ tribution of power petit juries—the to found it would be impossible Court essentially accountable. hold prosecutors employers have dozens of people making hiring decisions as well as employers have dozens of people up with the policies and the per- separation between those coming Similarly, in the jury discrimi- sonnel implementing those criteria. many years, have a hand in nation cases, many people, over the jury venire. The Court developing the criteria for selecting in attributing those discrete noted these cases, but had no problem decisions to the supervising entity. the requirement of a specific state actor with the the requirement of a specific state Here, decades after doctrine that looked to the function. sue the death penalty. decide that the diffusion of re- lating prosecutors did the Court decision makers. sponsibility should protect discriminatory argument is specious because there is a clear argument is specious the intent requirement applies, and cited a lack of particularity on a lack of particularity and cited requirement applies, the intent a McCleskey had not pointed to two grounds: that fairly high degree of certainty, that race had an actual causal effect had an actual causal that race degree of certainty, fairly high sentences. out of capital on the meting that he had not discriminatory purpose, and who had acted with there was discrimination in demonstrated that larly stable and identifiable decision makers, the Court has acknowl- larly stable and identifiable decision evidence. edged that statistics are compelling number of defendants who eventually are sentenced to death. In who eventually are sentenced number of defendants power, the Court accorded dis- citing the dynamics of prosecutorial had never explicitly articulated positive weight to a factor it before—the diffusion of power. 2013] mea- and then factors, those of the effects isolated penalty, death re- defendant a on whether race the victim’s of the effect sured THE JURY EXCEPTION INTRODUCING death sentence. ceived a 219 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 35 15-OCT-14 10:56 tent policy can be derived by studying the decisions of prosecutors.”). 35559-nys_69-1 Sheet No. 116 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 116 35559-nys_69-1 35559-nys_69-1 Sheet No. 116 Side B 10/20/2014 11:50:05 that The combi- The 249 McCleskey But the Court replied But the Court 251 note 238, at *26–27. 252 supra : Beyond the general rejoinder that it is egregious Beyond the general rejoinder that , 481 U.S. at 296–97. 254 McCleskey’s Brief, at 296. at 314–15 (internal citations omitted). at 339 (Brennan, J., dissenting). 253 . at 292–98. does not explicitly go through the state action The Court Of course, this is question-begging. McCleskey explicitly is question-begging. McCleskey Of course, this Id Id. See McCleskey Id. Id. 250 The other main issue the Court identified was that in this case, was that in this Court identified main issue the The other The four dissenting justices characterize this as “a fear of too The four dissenting justices characterize Finally, Justice Powell, writing for the majority, candidly admit- writing for the majority, candidly Finally, Justice Powell, 249. 250. 251. 252. 253. 254. an acceptable solution could be found, the Court obviated the an acceptable solution could be The Justices have made the violations they are willing to recog- The Justices have made the violations they are willing to provide. nize dependant on the remedies of rights to fit their percep- They have tailored declarations in tions of acceptable remedies. Unpersuaded McCleskey’s claim, taken to its logical conclusion, throws into taken to its logical conclusion, McCleskey’s claim, underlie our entire crimi- serious question the principles that Amendment is not limited in nal justice system. The Eighth but applies to all penalties. application to capital punishment, claim that racial bias has im- Thus, if we accepted McCleskey’s decision, we could permissibly tainted the capital sentencing as to other types of soon be faced with similar claims penalty. nation of diffuse actors and a need to smoke out specific intent smoke out specific and a need to diffuse actors nation of claim. to McCleskey’s proved lethal as proof accepted statistics the Court has times where unlike other VII cases), and Title (e.g., venire-selection intent of discriminatory the statistical dis- had an opportunity to explain the state had not parity. that rebuttal was out of the question. Because prosecutors are out of the question. Because that rebuttal was they cannot be public policy dictates that vested with discretion, themselves. asked to explain to close the courtroom doors based on such a fear, Randall Ken- to close the courtroom doors based pattern that the Court began in nedy argues that this fits into a Washington v. Davis stated that he was presenting a prima facie case and requested that presenting a prima facie case stated that he was to the state to rebut it. the burden shift much justice.” ted that he was worried: ted that he was 220 action state of the version outmoded used an essentially the Court NYU discrimination. finding of the possibility to block test ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 36 15-OCT-14 10:56 analysis, but those concerns underlie the entire Equal Protection discussion. analysis, but those concerns underlie the 35559-nys_69-1 Sheet No. 116 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 116 35559-nys_69-1 35559-nys_69-1 Sheet No. 117 Side A 10/20/2014 11:50:05 . it 258 261 McCleskey . 509, 524 McCleskey before we UST To prove 257 & J proof the Court ACE R what ENDER Officials rarely express G 259 , 12 J. exceptionally clear proof exceptionally clear note 239, at 159. note 239, at 155. Everyone Else Is Doing It, Why Can’t We? A New Look at Everyone Else Is Doing It, Why Can’t We? A note 129, at 328–44. supra supra note 225, at 1414–15. Kennedy’s argument on rights and note 225, at 1405. “Clear and convincing” is used for other claims is used for other convincing” “Clear and supra 256 supra Second, discrimination is often unconscious; Second, discrimination is often supra , 481 U.S. at 297 (emphasis added). 260 255 Lawrence, at 292–93. See McCleskey Id. What the race-of-victim disparities clearly demonstrate is What the race-of-victim disparities 262 The second, more crippling blow regards The second, more The Court established a few impossible standards in few impossible standards established a The Court 260. Kennedy, 261. 262. Lee & Bhagwat, 257. 258. 259. Sandra L. Simpson, 255. Kennedy, 256. Lee & Bhagwat, remedial question simply by declining to find a constitutional to find declining by simply question remedial problem. is the product of ingrained social biases, which give rise to the unin- is the product of ingrained social treatment or selective indiffer- tended consequences of differential ence. prosecutorial misconduct, the Court requires something more than the Court requires something prosecutorial misconduct, beyond a reasona- though perhaps less than clear and convincing, ble doubt. demands. To win an Equal Protection case, a criminal defendant an Equal Protection case, a criminal demands. To win were consciously the prosecutors acting in his case must prove that against him on the basis of race. and purposefully discriminating prejudice openly and do not often have an occasion to write down prejudice openly and do not often their motives. (2009). would infer that the discretion has been abused.” would infer that and “beyond a reasonable doubt” for criminal cases. But deference cases. But doubt” for criminal a reasonable and “beyond the burden of discretion led the Court to raise to prosecutorial to the criminal “Because discretion is essential proof for these cases: would demand justice process, we that “decision-makers, whether consciously or not, do not value the that “decision-makers, whether consciously level as they value the lives of white lives of black victims at the same The first regards the burden of proof required to establish an Equal to establish of proof required regards the burden The first most con- for are set at “preponderance” claim. Burdens Protection claims. stitutional the Use of Statistical Data in Death Penalty Cases remedies parallels my contention in Part I on the utility of state action; remedies parallels my contention in Part the state action doctrine to sift out these keenly illustrates the benefit of employing the state action was obvious and the demanding, far-reaching cases. Here, where to gracefully bow out, it was forced to do Court could not rely on a threshold issue way. so in a much more conspicuous and embarrassing This is an insurmountable requirement for a number of reasons. This is an insurmountable requirement intent is extremely hard to find, First, direct proof of invidious the use of statistical evidence to which is why courts began allowing place. prove discrimination in the first 2013] THE JURY EXCEPTION INTRODUCING 221 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 37 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 117 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 117 35559-nys_69-1 35559-nys_69-1 Sheet No. 117 Side B 10/20/2014 11:50:05 Fur- 269 Yet as Reiss 266 Thus, requiring 264 This discourages trust and This discourages Devenpeck v. Alford, 543 U.S. 146 268 The police, of course, are also 270 see also Likewise “[w]hen the prosecutor’s mental Likewise “[w]hen 267 note 215, at 1429–35. note 215, at 1440; supra supra Lee and Bhagwat further note that the multivariate re- the multivariate that note further and Bhagwat Lee at 1430. at 1431. at 1433–34. 263 Id. Id. Id. Id. Id. Id. Prosecutors are required to act as both ministers of justice required to act as both ministers Prosecutors are Finally, as Steven Reiss methodically explicates, using an intent Reiss methodically explicates, using Finally, as Steven Reiss also points out that this test presents structural and uni- Reiss also points out that this test 265 263. 264. 265. Reiss, 266. 267. 268. 269. 270. Reiss, ther, the requirement of subjective intent is hard to square with the ther, the requirement of subjective tests in evaluating alleged Fourth Court’s preference for objective and Fifth Amendment violations. points out, “[p]rohibitions couched in terms of the prosecutor’s couched in terms of points out, “[p]rohibitions the prosecu- to exacerbate this tension by forcing mental state tend are prompted by neutral terms, actions that often tor to justify, in adversarial instincts.” the plaintiff to present proof of purposeful discrimination essen- discrimination proof of purposeful to present the plaintiff most discrimination. tially insulates prosecutorial sys- inimical and injurious to the standard is both tem. fair play between the parties and motivates gamesmanship rather fair play between the parties and than the impartial pursuit of justice. problems presented in em- formity challenges. The mixed-motive here. Multiple actors might be ployment cases are also at play of the same case, and each ac- making decisions at different points for deciding to file charges, call tor may have multiple reasons or seek the death penalty. someone before the grand jury, state is the fulcrum of the constitutional restrictions on her ac- of the constitutional restrictions state is the fulcrum and the system will of justice is undermined tions,” the appearance and unfair. inevitably seem irrational gression shows that “[r]ace is thus a causal factor with respect to respect factor with a causal is thus “[r]ace that shows gression that it is a in the sense in this context, decision making government or even in for the decision not the motive even if it is but-for cause, actors.” of the various awareness the conscious and as the state’s advocate against the defendant. and as the state’s (2004) measured objectively); Atwater v. City of Lago Vista, 532 (probable cause is determined objectively); Florida v. U.S. 318 (2001) (rationale for an arrest measured objectively); Berkemer v. Mc- Jimeno, 500 U.S. 248 (1991) (consent In- Carty, 468 U.S. 420 (1984) (custody objectively determined); Rhode Island v. nis, 446 U.S. 291 (1980) (interrogation objectively determined); Katz v. United of States, 389 U.S. 347 (1967) (search is where there are subjective expectations privacy that are objectively reasonable); Miranda v. Arizona, 384 U.S. 436 (1966) (both custody and interrogation are objectively determined). 222victims.” NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 38 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 117 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 117 35559-nys_69-1 35559-nys_69-1 Sheet No. 118 Side A 10/20/2014 11:50:05 Establishing a 273 who presented an Therefore, “absent 276 is about as authorita- 272 Practically speaking, Practically 271 factors, or get depositions McCleskey Court severely limited—or Court severely per- Post-McCleskey Racial Discrimination Claims in Capital McCleskey Arlington Heights Once established, the burden shifts to the Once established, 1771 (1998). . 274 EV note 215, at 1441. , for example, the Court determined that the three conditions , for example, the Court determined that L. R supra Gingles ORNELL Id. C They profile the case of Earl Matthews, The elusive, probably nonexistent, proof of specific intent is of specific intent proof probably nonexistent, The elusive, John Blume, Theodore Eisenberg, and Sheri Lynn Johnson John Blume, Theodore Eisenberg, As discussed above, the proof in , 83 275 276. Matthews v. Evatt, 105 F.3d 907 (4th Cir. 1997). 275. John H. Blume et al., 271. Reiss, 272. McCleskey v. Kemp, 481 U.S. 279, 296–97 (1987). 273. 274. In prima facie case generally only requires that the plaintiff establish generally only requires that the prima facie case and qualifi- plaintiff’s race, a particular pattern, certain factors: the job. cations for the haps barred—the all, of a burden-shifting test. After possibility explanation for be “a legitimate and unchallenged there will always commit- is apparent from the record: McCleskey the decision [that] and Georgia the United States Constitution ted an act for which of the death penalty.” laws permit imposition far stronger proof,” there is no need for rebuttal. far stronger proof,” prosecutorial practice is, in fact, less dynamic and subject to con- and subject in fact, less dynamic practice is, prosecutorial gauge. thus easier to to judges, and are more familiar cerns that The required up front. surveyed cases where the defendants attempted to do the first surveyed cases where the defendants two. and discovery from the prosecutors’ offices in the hopes of uncover- and discovery from the prosecutors’ that might reveal discriminatory ing an internal memo or notes purpose. defendant to demonstrate a race-neutral reason. The burden the a race-neutral reason. defendant to demonstrate however, is both heavy and Court places on criminal defendants, out of sync with other areas of law. tive as can be demonstrated by statistical analysis of readily available tive as can be demonstrated by statistical a few ways to get stronger proof: information. There could only be a particular prosecutor, gather evi- narrow the scope of the study to dence that meets the are: (1) The minority group is sufficiently large and geographically compact; (2) are: (1) The minority group is sufficiently and (3) The white majority votes suffi- The minority group is politically cohesive; minority-preferred candidate. These are ciently in a bloc to enable it to defeat the possibly even discernable from a close look fairly objective, straightforward factors, v. at the Census without needing to do sophisticated statistical analysis. Thornburg Gingles, 478 U.S. 30, 50–51 (1986). Cases 2013] dis- and of deference share their fair are due and officers executive institutionally more are no courts that “the argues Reiss cretion. THE JURY EXCEPTION INTRODUCING police’ “ to ‘police the empowered or constitutionally competent prosecutors. are to police than they 223 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 39 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 118 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 118 35559-nys_69-1 35559-nys_69-1 Sheet No. 118 Side B 10/20/2014 11:50:05 “To They 284 283 The court 281 United States v. Arm- They testified that con- They testified that 278 Matthews also presented 279 factors, such as departures factors, such as 280 282 This statistical discrepancy would occur by would occur discrepancy This statistical Arlington Heights note 275, at 1782. note 275, at 1807. 277 supra supra at 1783–84. at 1784–85. at 1788. at 1801. . . the defendants alleged that the U.S. Attorneys’ office se- the defendants alleged that the Id Id. Id Id. Id. Id. Id. 285 286 , The final option for getting proof of selective prosecution—The final option for getting proof Blume, Eisenburg, and Johnson also reviewed additional cases and Johnson also reviewed additional Blume, Eisenburg, Matthews also presented testimony from police officers and testimony from police Matthews also presented 277. Blume et al., 278. 279. 280. 281. 282. 283. Blume et al., 284. 285. 286. 517 U.S. 456 (1996). discovery—has In been foreclosed by the Court. insist that prosecutorial discrimination studies control for many fac- insist that prosecutorial discrimination that they be conducted at the tors about a case, while requiring significant results, asks the impos- county level and yield statistically all defendants outside large urban sible of most defendants, and of areas.” point out that the Baldus study was so thorough because it was a point out that the Baldus study set of over 2,000 cases. statewide study and thus had a data found that the prima facie case was not made and denied Mat- prima facie case was not made found that the discovery. thews’s motion for temporaneous to Matthews’s prosecution they had personally ob- Matthews’s prosecution they temporaneous to on race and treatment of cases based served discriminatory racist comments. overheard numerous evidence that met other evidence that met and historical background. from normal practice chance less than one time in a thousand. chance less than lectively prosecuted blacks for crack cocaine offenses. They filed a lectively prosecuted blacks for crack several affidavits and re- motion requesting discovery, presenting strong several former prosecutors in that office. several former prosecutors Nevada, California, and Illi- from South Carolina, Florida, Missouri, statistical evidence, in addition nois that presented county-specific, a single instance where the crim- to other testimony, and found not basis of statistical evidence. inal defendant prevailed on the 224 prosecu- his individual of both analysis regression multiple in-depth NYU Caro- South County, of Charleston office prosecutor’s the tor and ANNUAL SURVEY OF the death sought that the chief prosecutor study revealed lina. The AMERICAN LAWdefendant in which the murder cases in ten of twenty-five penalty [Vol. 69:185 the death he only sought was white, but and the victim was black defendant which both the murder cases in two of seventy penalty in were black. and victim \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 40 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 118 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 118 35559-nys_69-1 35559-nys_69-1 Sheet No. 119 Side A 10/20/2014 11:50:05 Based on 290 Ultimately, the How, exactly, to 291 293 294 289 The motion for discovery was granted, the gov- was granted, the for discovery The motion note 215, at 1373–74. 288 292 supra at 459–61. at 461. at 468. One was from the Federal Defender office, stating that stating office, Defender Federal the was from One Id. Id. Id. Id. Id. Id. 287 With all these forces marshaled in opposition, it is unsurprising With all these forces marshaled in As the Court went on to note, this requires defendants to inves- As the Court went on to note, this Ignoring that while discovery only requires gathering docu- discovery only requires gathering Ignoring that while 287. 288. 289. 290. 291. 292. Armstrong, 517 U.S. at 470. 293. 294. Reiss, this skewed premise, it decided that rigorous scrutiny, which applies it decided that rigorous scrutiny, this skewed premise, demands corre- of a selective prosecution claim, to the elements evaluating discovery motions. sponding rigor for prove that someone was “known” to federal officials without even prove that someone was “known” the Court made no attempt to cursory discovery is mysterious, and Reiss points out that this explain how this can be accomplished. cannot obtain discovery without creates a Catch-22: a defendant showing of discrimination, but making the requisite threshold showing of discriminatory intent “making a sufficient preliminary discovery.” may be impossible without some Court decided that in order to meet the threshold for discovery, in order to meet the threshold Court decided that treatment produce “some evidence of differential defendant must classes. In members of other races or protected of similarly situated was well if the claim of selective prosecution the present case, an insuperable task to prove that founded, it should not have been being treated differently than persons of other races were respondents.” ernment refused to comply, and the case was dismissed. Since the was dismissed. and the case refused to comply, ernment was a live discovery battle dismissal, the affirmed the Ninth Circuit Supreme Court. issue before the every crack case it had defended in 1991 was against a black defen- a black against was in 1991 defended it had crack case every center at a drug treatment a counselor another was from dant, and users of white and minority equal numbers that there were attesting cocaine. of crack that courts have universally rejected claims of racially discrimina- that courts have universally rejected With insurmountably high barri- tory prosecution and sentencing. and purposeful discriminatory ers for discovery, proving specific ments, rebutting a prima facie case requires legal work, the Court a prima facie case requires legal ments, rebutting costs of each were roughly equivalent. decided that the persons of other races “were tigate whether similarly situated prosecuted. known” to federal officials, but not 2013]ports. THE JURY EXCEPTION INTRODUCING 225 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 41 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 119 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 119 35559-nys_69-1 35559-nys_69-1 Sheet No. 119 Side B 10/20/2014 11:50:05 . OLUM C 300 , May 12, 1994, IMES and would have McCleskey, 39 note 275, at 1771; Simp- N.Y. T , supra McCleskey In 2009, a racial justice act was In 2009, a racial 298 and, based on that act, a judge over- and, based on 299 North Carolina Judge Vacates Death Penalty Under Racial 103-458, at n.1 (1994). The House passed The Racial 103-458, at n.1 (1994). The House passed . § 15A-2011 (2009). . , Apr. 20, 2012, http://www.latimes.com/news/nation O 103-458, at 10 (1994). . 103-458, at 1 (1994). In the Senate, CCCA was passed on 103-458, at 1 (1994). In the Senate, CCCA O TAT . . N IMES O EP . S . N . 34 (2007); John H. Blume et. al., . N EN EP EV EP L.A. T That would have created a prima facie case without hav- created a prima facie case without That would have David Zucchino, H.R. R . , 295 note 259. See Id H.R. R N.C. G . L. R 297 H.R. R The RJA was intended to correct The RJA was intended TS The only hope for such cases might be the passage of a statute cases might be the hope for such The only supra . R 296 297. 300. 298. 299. 296. in Congress in 1990, 1991, and The Racial Justice Act was introduced 295.affairs, see Anthony G. Amsterdam, For a review of the current state of Senate, in 58-41 Vote, Bars Race-Based Death Row Pleas Senate, in 58-41 Vote, Bars Race-Based Death UM passed in North Carolina passed in North turned Marcus Robinson’s death sentence in April 2012. death sentence in April turned Marcus Robinson’s at A22. H Justice Law Justice Act as part of the Omnibus Crime Control Act by a vote of 285 to 141 on Justice Act as part of the Omnibus Crime ed. Apr. 21, 1994). The Racial Justice April 21, 1994. 140 Cong. Rec. H2608 (daily by the Senate by a vote of 58 to 41 on Act never became law as it was struck down 103d Cong. (1994); Katharine Q. See- May 11, 1994. Racial Justice Act, H.R. 4017, lye, world/nation/la-na-racial-justice-20120421,0,1984594.story. ing to prove discriminatory intent. The state would then be permit- intent. The state would ing to prove discriminatory the death if the rebuttal were unpersuasive, ted to rebut, but be overturned. sentence would October 22, 1990, but The Racial Justice Act was removed from it before it passed. October 22, 1990, but The Racial Justice 20, 1991, the Senate struck the Racial 136 Cong. Rec. S16479 (1990). On June Control Act, by a vote of 55 to 41. 137 Justice Act of 1991 from the Violent Crime Cong. Rec. S8296–01 (1991). In the House, The Racial Justice Act of 1991 was Bill on October 22, 1991, by a vote of rejected during deliberation of the Crime 223 to 191. allowed capital defendants’ Equal Protection claims upon a statisti- Equal Protection claims allowed capital defendants’ punishment disparity in their states’ capital cal showing of racial systems. son, of Representatives in 1990 as part of The 1994. The Act first passed the House (“CCCA”), H.R. 5269, by a vote of 218 Comprehensive Crime Control Act of 1990 to 186. to change the state of affairs. Such a statute, the Racial Justice Act the Racial Such a statute, the state of affairs. to change 1990 and in House of Representatives was passed in the (“RJA”), became and never in the Senate was twice defeated 1994, but law. Opening Remarks: Race and the Death Penalty Before and After Opening Remarks: Race and the Death Penalty 226 impossibil- apparent and the case, prima facie a establishing intent, NYUappear cases these facie case, a prima to rebut the state asking ity of ANNUAL SURVEY OFdoomed. AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 42 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 119 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 119 35559-nys_69-1 35559-nys_69-1 Sheet No. 120 Side A 10/20/2014 11:50:05 Da- 306 Bat- Since to 305 And while it Strauder 302 . set the initial bur- . While never formally ruled McCleskey McCleskey note 155 (“Since the court articu- 304 . supra III. JURIES Strauder v. West Virginia Batson v. Kentucky It produced the foundational discrimination de- It produced the Part II.C for a discussion of Part II.B. 301 It has, however, consistently expanded its protections of It has, however, consistently expanded , the phrases “prima facie” and “burden-shifting” have sim- , the phrases “prima facie” and “burden-shifting” purposeful discrimination test in the late 1970s, the Su- test in the late 1970s, purposeful discrimination See supra See supra 303 In Part II, I surveyed the landscape of Equal Protection juris- the landscape of Equal Protection In Part II, I surveyed Jury cases are the sole area of Equal Protection jurisprudence of Equal Protection are the sole area Jury cases Jury jurisprudence is graced by an additional honor: it is the Jury jurisprudence is graced by In this Part, I delineate both branches of the “juries are spe- In this Part, I delineate both branches 304. 476 U.S. 79 (1986). 305. 301.the Chinese and Japanese citizen- The area claiming second place are 302. 100 U.S. 303 (1880). 303. Haney Lopez, Justice Undone, 306. Feeney , to illustrate the duration of the dedication the Court has shown , to illustrate the duration of the - McCleskey Court’s Equal Protection jurispru- ply dropped out of the Supreme survived in the VRA voting and dence. Such a scheme has only employment discrimination. redistricting cases and in Title VII reached a nadir during the height of Jim Crow, from 1896 to 1935, during the height of Jim Crow, reached a nadir reliably the jury from racial discrimination the Court has protected 1896 and from 1935 to the present. between 1879 to the Court has per- as the two main statutory areas prudence, as well last forty years to protect more vigorously. The mitted Congress as the Court era for Equal Protection claims have been a bleak down the courthouse doors. Since handing steadily closed the vis discrimination against non- preme Court has not once found whites. den so high that essentially any plaintiff who established a prima den so high that essentially any was at the finish line. facie case already ran the race and out for other Equal Protection claims, out for other Equal Protection claims, to escape the morass detailed above. From the earliest days of the the earliest days above. From the morass detailed to escape by the has been protected jury selection Amendment, Fourteenth of Equal by any other area unmatched Court to a degree Supreme Protection law. cision in American history, cision in American jurors during these last decades in both jury venires and petit juries. jurors during these last decades in law that enjoys a burden–shiftingonly area of Equal Protection case test, first set out in cial” jurisprudence. I first survey the jury cases from cial” jurisprudence. I first survey son cases. I then briefly digress to this line of Fourteenth Amendment lated this test in 1979 and 1980, the Supreme Court has never, not once, not one single time, found discrimination against non-whites.”). ship cases. However, there were only a handful of these. ship cases. However, there were only a 2013] THE JURY EXCEPTION INTRODUCING 227 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 43 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 120 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 120 35559-nys_69-1 35559-nys_69-1 Sheet No. 120 Side B 10/20/2014 11:50:05 : O- FRI- L.J. T OLO- A OLOR . 1, 18, C ALE C Y EV burden- TTITUDES L. R , 113 EGRO IN ISTORY OF A ATTER OF N Batson 8–9, 250, 253–56, M HE : A H ORNELL T C , MERICAN ERIOD N THE P : A , 76 REEDOM ., I REENE R F , J LACK A Brief History of the Criminal Jury J. G B OLONIAL Guaranteeing the rights of C VER Slaves were tried in specially Slaves were tried and its progeny, and the ever- progeny, and the and its HE LAVERY TO 311 O 307 ORENZO white masters were immunized white masters S : T L 308 IGGINBOTHAM But at the same time, the Supreme HITE . 867, 884 (1994). ROM Batson H F EV 313 , W , Challenging the Challenge: Thirteenth Amendment as Challenging the Challenge: Thirteenth Amendment ROCESS claims. I explain how the I explain how the claims. , the Court reversed the verdicts of the , the Court reversed the verdicts EON P . L. R Juries and Race in the Nineteenth Century ORDAN A. L HI EGAL RANKLIN C note 307, at 49–50. Batson L F D. J OPE (1974); supra H 1550–1812, at 101–34 (1968). , 61 U. A. Discrimination Cases: The History Jury MERICAN 124–25 (7th ed. 1994); at 17 n.70, 22 n.94–96. INTHROP OHN A J The Civil Rights Act of 1866 was believed to guarantee The Civil Rights Act of 1866 was W Douglas L. Colbert, The first time an African American served on a jury was The first time an African American at 924–26. EGRO NGLAND This debate heightened during the Ku Klux Klan prose- This debate heightened during WARD THE CAN NIAL 310 See id. See See Id. N 309 E 312 EW MERICANS African Americans were rarely able to access the criminal jus- were rarely able to access the African Americans 308. 309. 312. James Forman, Jr., 311. Colbert, 310. Albert W. Alschuler & Andrew G. Deiss, 307. 313. (1978); N A ACE AND THE constituted all-white tribunals, constituted all-white the surest way to protect black blacks to sit on juries was considered a desire which was a persistent victims from unjust prosecutions, and Fourteenth Amend- theme during debates on the Thirteenth ments. from prosecution, and the law barred black victims from seeking and the law barred black victims from prosecution, redress. 20 (1990). Court pushed back on expanding federal prosecutorial power. In Court pushed back on expanding United States v. Cruikshank R 263 tice system before the Civil War. tice system before throughout Reconstruction juries jury service as a civil right, thus became integrated in the South. cutions, since integrated juries were believed to be critical to the cutions, since integrated juries success of those convictions. in 1860. shifting test works and how its requirements have softened. I then have softened. its requirements test works and how shifting the jurispru- Court’s stance on juries and evaluate problematize the action and pur- the requirements of the state dence in light of the rationales doctrines. Finally, I explore poseful discrimination been accorded this special treatment. for why juries have in the United States expanding scope of expanding 895, 916–17 (2004). a Prohibition Against the Racial Use of Peremptory Challenges a Prohibition Against the Racial Use of Peremptory 228 Four- on were decided cases those Initially, pool cases. the jury into NYU into migrated recently more but have grounds, Amendment teenth ANNUAL SURVEY OF the Four- fit snugly into they still Amendment. However, the Sixth AMERICAN LAWmore com- to provide a and help jurisprudence teenth Amendment [Vol. 69:185 Next, I discuss plete picture. \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 44 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 120 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 120 35559-nys_69-1 35559-nys_69-1 Sheet No. 121 Side A 10/20/2014 11:50:05 316 The Court The 314 321 But the Court did qualify the 322 West Virginia had a statute on the books had a statute West Virginia 317 . In one of the Court’s most forceful formula- In one of the Court’s most forceful note 307, at 62–63. 320 supra , 100 U.S. at 307–08. In response, Congress passed the Civil Rights Act of passed the Civil Congress In response, 315 at 550. at 305. at 308. at 308–09 and 312. The Court turned first to the Fourteenth Amendment, The Court turned Strauder Id. Id. Id. Id. The Court then found that the state statute is without a found that the state statute is The Court then 318 319 Under these principles, the Court approved the jury guaran- Under these principles, the Court The Court addressed the constitutionality of the 1875 Act in of the 1875 constitutionality addressed the The Court 317. 100 U.S. 303 (1880). 318. State v. Strauder, 11 W. Va. 745 (1877). 319. 314. 92 U.S. 542, 559 (1875). 315. 316. Colbert, 320. 321. 322. The very fact that colored people are singled out and expressly The very fact that colored people in the administration denied by a statute all right to participate their color, though they are of the law, as jurors, because of fully qualified, is practi- citizens, and may be in other respects by the law, an assertion of cally a brand upon them, affixed to that race prejudice which is their inferiority, and a stimulant of the race that equal an impediment to securing to individuals to all others. justice which the law aims to secure held that private terror was beyond the federal government’s power government’s beyond the federal private terror was held that to punish. reach of their holding, noting that states may still impose other re- reach of their holding, noting that jury service and that it would not strictions and qualifications for that restricted jury service to white men. Taylor Strauder, a black service to white men. Taylor that restricted jury all-white jury and convicted of murder by an man who had been of the state challenged the constitutionality sentenced to death, statute. tions of antidiscrimination principles, the Court found: tions of antidiscrimination principles, 1875 to ensure that blacks had the right to serve on state juries. to serve on state had the right ensure that blacks 1875 to holding that while it is worded as a negative, the Fourteenth it is worded as a negative, holding that while legisla- an affirmative right against discriminatory Amendment vests tion. doubt the kind of discrimination that the Fourteenth Amendment discrimination that the Fourteenth doubt the kind of importance The Court discussed the essential intended to prohibit. the issue as the of justice, but framed of juries to the administration man- has been selected in a nondiscriminatory right to a jury that to a jury composed of people ner, distinguishing this from a right of the same race. tees of the 1875 Civil Rights Act as fully within the reach of Section tees of the 1875 Civil Rights Act 5 of the Fourteenth Amendment. Strauder v. West Virginia Strauder 2013]of the one Massacre, Colfax in the participated who Klansmen history. in U.S. violence mob of instances bloodiest THE JURY EXCEPTION INTRODUCING 229 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 45 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 121 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 121 35559-nys_69-1 35559-nys_69-1 Sheet No. 121 Side B 10/20/2014 11:50:05 327 But the This cer- 330 333 But to qualify for and countless other and countless 332 . 1401, 1435 (1983). before trial. EV Strauder Those qualifications simply qualifications Those . L. R 323 certain 331 EX T , Burwell and Lee Reynolds, had also , Burwell and Lee Benno Schmidt argues that “this con- that argues Schmidt Benno The Court held that a defendant could held that a defendant The Court Juries, Jurisdiction, and Race Discrimination: The Lost Juries, Jurisdiction, and Race Discrimination: 328 324 . 326 Rives 325 did not do was clarify the standard for removal standard for do was clarify the did not They petitioned federal judge Alexander Rives for They petitioned federal judge , 100 U.S. at 312. 329 Strauder at 309–12 Rev. Stat. § (interpreting (1875). 641 at 314–15. at 316. at 319–20. at 319, 321. at 321. at 310. Virginia v. Rives Strauder v. West Virginia, 61 Strauder Id. Id. Id. Id. Id. Id. Id. Id. Justice Strong acknowledged that state action could come from Justice Strong acknowledged that The defendants in The defendants What 326. 327. 328. 100 U.S. 313 (1879). 329. 330. 331. 332. 333. 323. 324. 325. Benno C. Schmidt, Jr., lack of a statute proved dispositive. tainty Justice Strong assumed that this would not come to pass: “In tainty Justice Strong assumed that the court will redress the such a case it ought to be presumed removal the violation needs to be removal the violation needs to cannot be based on race. on be based cannot remove a case to federal court if his civil rights would be denied in federal court if his civil rights would remove a case to before trial. removal could only be effected state court, but such cession was an open invitation to racist officials for the systematic officials for the to racist an open invitation cession was of blacks.” exclusion removal to federal court and he accepted jurisdiction. removal to federal court and he any branch of government and that if an official had disregarded any branch of government and only whites for the venire, that the neutral statute and selected state action. would qualify as unconstitutional Promise of Removal was approved in this case because the West Virginia statute in this case because the West Removal was approved composed Strauder would be denied a properly made it clear that when it could be Stone failed to articulate jury. However, Justice civil rights. This that a person would be denied assumed pretrial that came down the fore in the second opinion question came to that day, turn from an all- all-white jury, which was drawn in been tried by an no statute in Virginia that man- white jury venire. But there was the way things were. The Reyn- dated that this be so; it was simply discriminatory misconduct on the olds brothers had not alleged asked that some blacks be put part of any state officials; they simply on the jury. 230 generally. discretion states’ restrict NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 sought. black defendants \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 46 15-OCT-14 10:56 court—theto federal specific remedy 35559-nys_69-1 Sheet No. 121 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 121 35559-nys_69-1 35559-nys_69-1 Sheet No. 122 Side A 10/20/2014 11:50:05 , 1, . L. 337 deci- must RIM And so Schmidt 338 Rives Rives . J. C 340 , M A 339 , 38 Strauder The proper remedy would then remedy would The proper 336 Criminal Prosecutions Affecting Federally Guaranteed Criminal Procedure, Jury Discrimination & the Pre- . 793, 858 (1965). EV , 100 U.S. at 322. Brando S. Starkey, The Court saw pretrial removal as preemptive and as preemptive removal saw pretrial Court The at 321–22. at 322. . L. R Id. See Rives Id. Id. Id. 334 A Thus, the Court held that a violation becomes ripe for fed- ripe for a violation becomes Court held that Thus, the 335 But it is certain that the Court opted to read the removal stat- But it is certain that the Court opted There are both critiques and justifications for the and justifications both critiques There are Intent Doctrine: The Seeds of a Weak Equal Protection Clause 339. 340. 334. 335. 336. 337. 338. Anthony G. Amsterdam, U. P [M]ay lack the self-evident tangibility and controlling force of [M]ay lack the self-evident tangibility viewed as an iso- positive law, but neither is it appropriately that crops up in a particular lated, unexpected judicial error discrimination is permit- case. Where systemic administrative state courts and is the basis ted to continue undisturbed by the Davis an unwillingness to engage in this kind of “inconvenient and judi- an unwillingness to engage in this as a desire to avoid disrupting cially embarrassing” inquiry, as well initiating preliminary factual liti- and delaying state proceedings by the Court to adopt a more ad- gation in federal courts, likely led to removal. ministrable and impersonal approach regards this Catch-22 as eliminating the systemic administrative and regards this Catch-22 as eliminating from federal removal jurisdiction. judicial violations of civil rights Discrimination that is “winked at”: 9 (2010). be for the Supreme Court to swoop in and correct the error. correct the to swoop in and Supreme Court be for the wanted to give state courts the opportunity to address discrimina- to address the opportunity courts state to give wanted tion. eral review only once the trial judge ignores it and the state ignores it and the trial judge only once eral review it. courts fail to correct appellate ute narrowly and to construe it as mandating ripeness. ute narrowly and to construe it 113 Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial Civil Rights: Federal Removal and Habeas 2013]wrong.” THE JURY EXCEPTION INTRODUCING 231 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 47 15-OCT-14 10:56 sion. The evidence in the case was anecdotal. Especially in contrast in the case was anecdotal. Especially sion. The evidence sanctioned discrimination in to the statutorily have looked like a weakly supported claim. The Reynolds brothers a weakly supported claim. The have looked like notice of racism, asking the Court to take judicial were essentially role of the re- was not willing to do. The central which the Court and considera- triggered federalism concerns moval claim surely decision to restrict have motivated the Court’s tions of comity must of black de- federal courts for state prosecutions the availability of argues that the visceral level, Tony Amsterdam fendants. On a more of trying the loy- ensue would have “smack[ed] inquiries that would to their constitutional obligations.” alty of the state judges 35559-nys_69-1 Sheet No. 122 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 122 35559-nys_69-1 35559-nys_69-1 Sheet No. 122 Side B 10/20/2014 11:50:05 345 that . Fed- been ever Rives , found that Strauder Because the 349 Rives . As there was no 341 . the Court nimbly followed But no blacks had 347 The judges did not try to ex- The judges did , Rives 348 344 Ex parte Virginia 346 and the Court may have been trying to light may have been the Court 342 , note 325, at 1435. Rives Neal v. Delaware supra correct the denial. It flies in the face of reality to in the face of the denial. It flies correct —they guilty of same offense as the Virginia were The case came to the Court as a habeas petition from the Court as a habeas petition The case came to 350 not Instead, the state court asked Neal to prove that there Instead, the state court asked Neal , 103 U.S. at 395. 343 at 340. at 348. at 349. at 387–93. at 381. at 393–94. at 394. 352 The indictment should have been quashed or the panels The indictment should have been He submitted an affidavit stating the facts of exclusion as He submitted an affidavit stating Id. Id. Id. Id. Id. Id. Id. Id. Id. Neal Ex parte Virginia Ex parte 351 353 The next year, in In 341. Schmidt, Jr., 342. 100 U.S. 339 (1879). 343. 344. 345. 346. 347. 103 U.S. 370 (1880). 348. 349. 350. 351. 352. 353. upon which a claim of expected denial rests for purposes of a of for purposes rests denial of expected a claim which upon the state fair” that is presumption “the surely petition, removal courts will at the made manifest as “a denial first discrimination view such words of case,” in the trial of the judges had supervised and sanctioned this—had,judges had supervised and sanctioned in fact, stated that in this State are utterly un- “the great body of black men residing experience, or moral integrity to qualified by want of intelligence, sit on juries” called as jurors, either for the grand or petit jury. called as jurors, either for the grand the course laid out in plain away their actions, but only challenged the constitutionality of actions, but only challenged the plain away their in Act. Since the Court had decided the Civil Rights discriminatory law on the books, the Court, under discriminatory law on the books, removal had properly been denied. the Act was constitutional, it remained only to confirm that select- it remained only to confirm the Act was constitutional, that it was, and action. The Court stated bluntly ing jurors was state private person, that duty were delegated to a would be even if the way for future claims. This case was the aftermath of This case was the for future claims. the way to include black indicted Virginia judges for failing eral prosecutors of the 1875 Civil lists in violation of Section 4 jurors on the jury Rights Act. judges. had been discrimination. Neal responded by asking the court to had been discrimination. Neal court clerks to testify; the court re- call the jury commissioners and fused. the state judges in federal custody. the state judges dismissed. and thus denied the petitions. and thus denied 232 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 48 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 122 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 122 35559-nys_69-1 35559-nys_69-1 Sheet No. 123 Side A 10/20/2014 11:50:05 Bat- Justice 354 Justice Harlan, 357 . 355 Of course, it is easier to 356 Incredibly, the Supreme Court 358 Bush v. Kentucky case of denial . . . of that equality of denial . . . of that case of prima facie After the enactment of the Fourteenth Amendment, the After the enactment of the Fourteenth at 396–97. at 397. at 388. at 110–11. at 110–14, 122–23. 359 Id. Id. Id. Id. Id. This was an ideal case to bring to the Court. First, blacks were This was an ideal case to bring to The next jury victory was in Justice Harlan seemed to be pushing back on Justice Stone’s to be pushing back on Justice Justice Harlan seemed 354. 355. 356. 357. 107 U.S. 110 (1883). 358. 359. , held that the defendant’s affidavit: the defendant’s , held that protection which has been secured by the Constitution and the Constitution secured by which has been protection under all the circum- It was, we think, United States. laws of the State court indulged, which the a violent presumption stances, during a exclusion of that race from juries, that such uniform judgment of years, was solely because, in the period of many Delaware were exercised, the black race in those officers, fairly or by want of intelligence, experience, utterly disqualified, officers in to sit on juries. The action of those moral integrity, and the re- be deemed the act of the State; the premises is to them commit- court to redress the wrong by fusal of the State by the of a right secured to the prisoner ted was a denial laws of the United States. Constitution and [P]resented a [P]resented Harlan, in the first formulation of the test later established in established test later of the first formulation in the Harlan, son writing for the majority, began by expressing his regret and embar- writing for the majority, began by rassment about the sparse record. veto exclusion when it is backed by a point-blank statement that “no veto exclusion when it is backed blacks could ever qualify.” Second, officials made absurd completely excluded from the jury. the defendant tried to follow the statements on the record. Third, fair opportunity to do so. In hind- rules and was refused a full and likely made it more difficult for sight, the ideal facts of this case circumstances to succeed in the defendants facing less egregious future. decided to engage in its own scrupulous examination of the evi- decided to engage in its own scrupulous upon that highly fact-dependent dence, and the decision turned scrutiny. state legislature of Kentucky passed two separate statutes restricting state legislature of Kentucky passed a prohibition that had previously jury service to whites, reenacting carte blanche regarding qualifications. The officials had purport- carte blanche regarding qualifications. “sober and judicious persons” re- edly based their decisions on the quirement in the Delaware Constitution. 2013] respond. did not the state which to them, he knew THE JURY EXCEPTION INTRODUCING 233 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 49 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 123 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 123 35559-nys_69-1 35559-nys_69-1 Sheet No. 123 Side B 10/20/2014 11:50:05 361 368 , The 363 Second, 366 were all removal 370 Gibson v. Mississippi , no black jurors were selected. , no black Murray v. Louisiana 364 But to dismiss it as such ignores several But to dismiss it The Kentucky Supreme Court struck the struck Court Supreme Kentucky The Rives 365 note 340, at 15. and 360 369 and , supra Neal , United States v. Armstrong, 517 U.S. 456, 470 (1996); McCleskey , United States v. Armstrong, 517 U.S. 456, , 107 U.S. at 122 (“[I]n the absence of any evidence that the selec- , 107 U.S. at 122 (“[I]n the absence of In the absence of proof to the contrary, the petitioners In the absence of proof to the contrary, Starkey, at 119–20 discussing two Kentucky statutes, one from (citing and at 121–22. at 113. at 113–14. at 122. 367 As in Id. Id. Id. Id. Id. See See, e.g. Bush 362 The next spate of cases, which hit the Court between 1896 and The next spate of cases, which hit Some scholars dismiss this case as decided on a technicality, this case as decided on Some scholars dismiss 360. 361. 362. 363. 364. 365. 366. 367. 368. 162 U.S. 565 (1896). 369. 162 U.S. 592 (1896). 370. 163 U.S. 101 (1896). court presumed that the jury commissioners had been intently fol- that the jury commissioners had court presumed any evidence that battle, and “in the absence of lowing the court without discrimi- grand jurors . . . was in fact made the selection of that “it should citizens,” the Court decided nation against colored the statutes of the jury commissioners . . . followed be assumed that of grand jurors to as they restricted the selections Kentucky so far race.” citizens of the white although this was not explicitly stated, the burden had shifted to although this was not explicitly the state. legislation down both times, but the second decision came down came decision second but the times, both down legislation al- had been impaneled, indicted Bush grand jury that after the trial was selected. petit jury for Bush’s before the actual though important points. First, the justices were willing to sift through the First, the justices were willing important points. great depth, in or- record themselves, in confusing and incomplete conviction. This is not the kind of der to find a way to overturn the discrimination cases. In those scrutiny the Court gave to other or rejected summarily. cases, facts were simply accepted won. petitions for removal were de- 1904, demonstrate a clear pattern: granted. nied and motions to quash were which of course it was. which of course Smith v. Mississippi 234 the law. part of been NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 jurors ordered to select been explicitly had actually The sheriff of servi- conditions color, or previous regard to race, “without tude.” \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 50 15-OCT-14 10:56 1852 and one from 1873, with the latter superseding the former, that denied jury 1852 and one from 1873, with the latter service to people of color). v. Kemp, 481 U.S. 279, 308 (1987); Palmer v. Thompson, 403 U.S. 217, 223–24v. Kemp, 481 U.S. 279, 308 (1987); Palmer (1971). tion of grand jurors in May, 1880, was in fact made without discrimination against colored citizens, because of their race . . . .”) 35559-nys_69-1 Sheet No. 123 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 123 35559-nys_69-1 35559-nys_69-1 Sheet No. 124 Side A 10/20/2014 11:50:05 375 , But Leave 372 377 Before being , 163 U.S. at 106. 376 Murray Rogers v. Alabama The motion was two note 325, at 1467. 380 brought a case challeng- Since the laws were not Since the laws supra and in 373 Smith 374 A unanimous Court reversed A unanimous Court 378 , 162 U.S. at 600; and Schmidt, Jr., Smith , the motion to quash had been denied , the motion to quash had been In 1890, Mississippi had implemented See Gibson 383 Carter v. Texas Smith’s motion to quash was considered in- was considered motion to quash Smith’s note 340, at 20. , 162 U.S. at 584. Rogers Because voter-registration books were then Because voter-registration books 371 involved motions to quash that had been im- been that had quash to motions involved 384 supra In Gibson 379 Another unanimous Court found this to be an im- Another unanimous Court found assembled the most comprehensive record in any jury case in the assembled the most comprehensive record , 162 U.S. at 584; , 192 U.S. at 229–30. Gibson , 177 U.S. at 444. 381 Starkey, at 444–45. at 449. at 230. at 231. at 108; . 382 Carter Id Id. Id. Rogers Id. Id. See Id. Murray Gibson and and . To varying degrees, all three cases presented demographic three cases presented degrees, all . To varying The judgments in The judgments in But the tide turned. In 1898 the same lawyer who had repre- But the tide turned. In 1898 the 374. 177 U.S. 442 (1900). 375. 192 U.S. 226 (1904). 376. 377. 378. 379. 380. 381. 382. 383. Williams v. Mississippi, 170 U.S. 213 (1898). 384. 371. 372. 373. Neal because the Court held strictly to procedure, it refused to consider held strictly to procedure, it refused because the Court and testimony. that form of evidence was denied and Carter appealed. was denied and arraigned, he read the motion aloud in open court and then asked the motion aloud in open court arraigned, he read the facts. witnesses who could confirm for leave to present pages long. facially discriminatory, removal was held to be improper and all removal was held to be facially discriminatory, affirmed. three cases were and remanded. the infamous literacy tests and poll taxes designed to preclude the infamous literacy tests and contravening the Reconstruc- blacks from voting without explicitly tion Amendments. sufficient, even though it largely resembled the motion presented the motion it largely resembled even though sufficient, in in the many blacks lived regarding how and testimony evidence to serve as jurors. been called how many had county and and stricken from the record as too prolix. and stricken from the record as used as a guide in making jury lists, this had the effect of excluding used as a guide in making jury lists, proper denial of the defendant’s constitutional rights and proper denial of the defendant’s reversed. ing the Mississippi Plan. sented the defendants in properly presented. properly fifty years after Reconstruction. both writs of error on motions to quash, were reversed and re- on motions to quash, were both writs of error facts of exclu- motion detailed the demographic manded. Carter’s of discriminatory purpose. sion without allegations 2013] 1896. in one another of a month within decided that were cases Murray THE JURY EXCEPTION INTRODUCING 235 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 51 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 124 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 124 35559-nys_69-1 35559-nys_69-1 Sheet No. 124 Side B 10/20/2014 11:50:05 The UPREME S despite 387 Martin v. HE 386 , : T Both of those IGHTS 391 R United States v. Cruik- IVIL , C 47, 55 (2004) (“The only civil ROW TO , 212 U.S. at 281–83. C Williams v. Mississippi Williams IM QUALITY the Court employed far greater the Court employed J E The U.S. Supreme Court found the found Court U.S. Supreme The Thomas 390 , ROM 385 , the Supreme Court regularly found , the Supreme Court regularly Civil Rights Cases ACIAL , F R 388 § 2358 (1892) (“How List of Jurors Procured. The . LARMAN NN J. K A TRUGGLE FOR , 170 U.S. at 225. , 170 U.S. at 225. ODE Thomas v. Texas , 200 U.S. at 338–39; S ICHAEL Plessy v. Ferguson . C 392 M ISS See Williams Williams Martin M and , and 389 These cases certainly have mixed outcomes and it is difficult to have mixed outcomes and it These cases certainly The Court seemed to demand proof of intent. In to demand proof of intent. The Court seemed 392. 386. 387. 1896). Ratliff v. Beale, 20 So. 865, 868 (Miss. 388. 389. 200 U.S. 316 (1906). 390. 212 U.S. 278 (1909). 391. 385. OURT AND THE Court concluded that the laws “do not on their face discriminate laws “do not that the Court concluded their actual ad- and it has not been shown that between the races, under them,” and evil; only that evil was possible ministration was affirmed the conviction. the Mississippi Supreme Court’s statement: “Restrained by the fed- “Restrained Court’s statement: Supreme the Mississippi race, the the negro against from discriminating eral constitution and its characteristics against legislature] discriminated [Mississippi were prone.” weaker members to which its the offenses discern a unified theory that explains them all. But despite some theory that explains them all. discern a unified track record in this area is re- negative cases, the Court’s overall markable: in the era of the cases were affirmed. other category of cases where the jury discrimination. There is no forcefully in favor of the Court ruled so frequently and petitioners. shank deference to the state courts and began requiring that the defen- state courts and began requiring deference to the acts of official discrimination. dant prove specific jury selection laws constitutional in laws constitutional selection jury rights victories of the Plessy era were a few Court reversals of convictions of black defendants who had been denied opportunity to prove race discrimination in jury selection.”). board of supervisors at the first meeting in each year, or a subsequent meeting if board of supervisors at the first meeting a list of persons to serve as jurors in the not done at the first, shall select and make be held more than thirty days afterwards, circuit court for the next two terms to shall use the registration–booksand as a guide in making the list, they of voters; of qualified persons of good intelligence, and it shall select and list the names shall take them as nearly as it conveniently sound judgment and fair character, and proportion to the number of the qualified can from the several election districts in served on the regular panel within two persons in each, excluding all who have years, if there be not a deficiency of jurors.”). Texas C 236 juries. serving on from blacks NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 52 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 124 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 124 35559-nys_69-1 35559-nys_69-1 Sheet No. 125 Side A 10/20/2014 11:50:05 The , the Impor- The Loui- 407 394 398 400 dicta—that and then twice Neal 404 In a pair of Texas Kentucky, Bush v. Kentucky 405 399 . 147, 158 (2002). . The response of the com- The response of Norris EV As in One justice was heard to One justice was 396 It was the second Scottsboro the It was 397 395 . L. R 406 393 . TS North Carolina, . R 403 UM . H note 325, at 1480. UFF note 325, at 1478 (describing how the Justices, one by note 325, at 1478 (describing how the Justices, B , 8 supra supra Mississippi, Norris v. Alabama Norris 402 , 294 U.S. at 599. United States v. Shipp, 203 U.S. 563, 571 (1906) (describing the basis at 1479. Texas, Id. Norris See 401 In the years following, the Supreme Court found jury discrimi- the Supreme Court found In the years following, demonstrate the limited Two cases that bookend this period The stage was dark between 1909 and 1935. But that changed But that 1935. 1909 and dark between stage was The 393. 294 U.S. 587 (1935). 394. Neal v. Delaware, 103 U.S. 370, 397 (1880). 395. Schmidt, Jr., 396. 397. 398. Schmidt, Jr., 399.(1935). Hollins v. Oklahoma, 295 U.S. 394 400. Hale v. Kentucky, 303 U.S. 613 (1938). 401. Pierre v. Louisiana, 306 U.S. 354 (1939). 402. Hill v. Texas, 316 U.S. 400 (1942). 403. Patton v. Mississippi, 332 U.S. 463 (1947). 404. 851 (1948). Brunson v. North Carolina, 333 U.S. 405. Anderson v. Alabama, 366 U.S. Coleman v. Alabama, 389 U.S. 22 (1967); 406. Hill v. Texas, 316 U.S. 400 (1942); Smith v. Texas, 311 U.S. 128 (1940). 407. Court literally took out magnifying glasses to examine the forged to examine magnifying glasses took out Court literally after the been tagged on of blacks had where the names jury rolls, been selected. venire had already siana, more in Alabama, thirty-two years after more in Alabama, thirty-two years cases, the Court expanded the principle from total exclusion to cases, the Court expanded the highly disproportionate exclusion. whisper, “Why it’s as plain as punch!” whisper, “Why it’s missioners—that as found any blacks qualified to serve they had not jurors—was the “sweeping characterization” that considered a to accept.” Court found “impossible Court eschewed the usual practice of appellate deference to fact the usual practice of appellate Court eschewed Having done so, over the evidence themselves. finding and pored a factual finding of discrimination. they simply announced Boys case to reach the Court and a brilliant performance by Nor- performance and a brilliant to reach the Court Boys case the the Court to activate convinced ris’s attorney total exclusion creates a prima facie case of discrimination. prima facie case creates a total exclusion dramatically in dramatically total exclusion in Oklahoma, nation based on everyday reality of racial discrimi- impact of these decisions on the certiorari on a Tennessee case nation. In 1906, the Court granted of blacks from the jury. challenging the systematic exclusion one, examined the rolls under a magnifying glass as a handwriting expert ex- one, examined the rolls under a magnifying plained the forgery). 208 (1961). 2013] THE JURY EXCEPTION INTRODUCING 237 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 53 15-OCT-14 10:56 for granting the habeas petition and the subsequent actions that led to the con- tempt charge). For more of the history of this case, see Wendy Brown-Scott, tant Lessons from History 35559-nys_69-1 Sheet No. 125 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 125 35559-nys_69-1 35559-nys_69-1 Sheet No. 125 Side B 10/20/2014 11:50:05 , 294 note 5, at in order to supra based on jury Norris v. Alabama Swift, In 1951 the Court 412 The next evening a next evening The 410 408 see also Hill v. Texas On the way to a change- On the way to a 411 Shepherd v. Florida Shepherd v. Florida The sheriff was brought before the was brought The sheriff 409 show the Court trying to hone its analytic show the Court , decided that the relevant period to examine , decided that the relevant period But the Court retreated from this approach But the Court retreated from this note 392, at 56. note 392, at 277. Norris 413 414 , in which it considered evidence of eighteen years , in which it considered evidence supra supra at 56–57. Akins v. Texas Id. Id. The cases after 408. Klarman, 409. 410. 411. Shepherd v. Florida, 341 U.S. 50 (1951). 412. Klarman, 413. Atkins v. Texas, 325 U.S. 398, 405 (1945); 414. Reece v. Georgia, 350 U.S. 85, 87–88 Court had (1955). However, the Reece v. Georgia discrimination and the case was retried. discrimination and unanimously reversed the verdict of unanimously reversed mob broke into the jail and lynched the defendant, Ed Johnson, defendant, Ed and lynched the into the jail mob broke Harlan. “To Justice body reading, a note on his mutilated and left your nigger now.” Come get of-venue hearing before the second trial, the arresting sheriff ap- before the second trial, the arresting of-venue hearing was inexplicably a flat tire on the back road he parently suffered self-defense when to shoot the defendants in taking and was forced him—whilethey allegedly attacked was handcuffed. Shepherd again sentenced codefendant survived and was killed. Shepherd’s was denied certiorari. to death. That sentence Supreme Court on an unprecedented contempt charge, but when charge, contempt Court on an unprecedented Supreme by a was welcomed home sentence he from his he was released that greeted him as a hero. crowd of 10,000 in of discrimination. determine whether the recently appointed jury commissioners had determine whether the recently mended their ways. U.S. 587 (1935), had been decided, so the Court might have found that notice sufficient. process, though not without some hiccups. The Court briefly process, though not without some clock each time it ruled discrimi- adopted a policy of restarting the state, in order to see nation unconstitutional in a particular learning from their mistakes. This whether the state officials were discrimination that had occurred meant that it would only consider Justice Reed, writing for the after its most recent decision. Thus, Court in decided was the three years since it had 320. not at that point ruled on a Georgia jury discrimination case, so perhaps some very specific sense of notice—that a time—guided it applies only to one state at the Court’s decision. It had, however, been twenty years since 238 exe- the days before two local sheriff, to the telegram sent a Court NYU news. with this scheduled, had been cution ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 54 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 125 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 125 35559-nys_69-1 35559-nys_69-1 Sheet No. 126 Side A 10/20/2014 11:50:05 419 , the 423 , Texas had , Texas Smith , the prima facie case Avery v. Georgia Hill but the Court affirmed at 404. It also held that once a Id. 417 The search for intent was Tokenism was overturned, seemed to mark where the where to mark seemed 422 421 420 415 reasoning in Hill The commissioner who testified in The commissioner 416 Cassell v. Texas Cassell , the Court found that discriminatory impact , the Court found that discriminatory the Court had ruled that calling only five black calling only five had ruled that the Court and , the particular list in question had no blacks on it in question had no blacks on , the particular list Smith , 339 U.S. at 290. Hill v. Texas at 296 (speculating that there might have been a “misconception by at 296 (speculating that there might have Cassell at 403–04, 407. at 562. Id. Cassell Id. Id. In , which was decided only five years later, was not particularly only five years later, was not , which was decided But in 418 Akins v. Texas v. Texas Akins 415. 339 U.S. 282 (1950). 416. Smith v. Texas, 311 U.S. 128 (1940). 417. Akins v. Texas, 325 U.S. 398, 406 (1945). 418. 419. 420. 421. Hill v. Texas, 316 U.S. 400, 404–05 (1942). In 422. Avery v. Georgia, 345 U.S. 559, 561 (1953) (citation and internal quota- 423. Court put an affirmative obligation on jury commissioners to follow Court put an affirmative obligation “operate to discriminate in the a “course of conduct” that did not selection of jurors on racial grounds.” the state court’s findings of fact that found no discriminatory in- findings of fact that found no the state court’s tent. prima facie case of discriminatory impact has been established, it is prima facie case of discriminatory with sufficient evidence. the state’s obligation to rebut it alone can be enough to cause an Equal Protection violation, even if alone can be enough to cause an to cause that discriminatory out- the state actor did not actively seek it. come, but merely failed to prevent but without unequivocal language condemning it. but without unequivocal language winding down. Advancing the Court was willing to draw the line. In an attempt to stay just barely stay just to an attempt line. In draw the to was willing Court in of the line drawn side on the constitutional implemented a policy that placed one token black person on each black person placed one token a policy that implemented In grand jury. sixteen them at slot and usually placing seven years, jurors over was fla- on the jury, first twelve served only the when generally grantly unconstitutional. Akins of placing admitted, “I did not have any intention wily; he candidly on the grand jury,” more than one negro at all. The commissioners testified that this was because “they chose testified that this was because at all. The commissioners Negroes.” knew, and that they knew no eligible only whom they the grand-jury commissioners of the requirements of this Court’s decisions”). the grand-jury commissioners of the requirements failed to rebut it with their argu- was made out by the statistics; the commissioners ment that they did not personally know any blacks qualified for jury service and had not sought to learn whether there were any. tion marks omitted). Four justices found that such a system was intentionally discrimina- that such a system was intentionally Four justices found arisen because the thought that it might have tory, another three to have more not realize they were required commissioners did than one black person on each panel. 2013] THE JURY EXCEPTION INTRODUCING 239 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 55 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 126 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 126 35559-nys_69-1 35559-nys_69-1 Sheet No. 126 Side B 10/20/2014 11:50:05 Id. 425 Cas- , in Hernandez The proof , where the 428 Arnold , the Court was , the Court The Court has 427 and , the Court reversed a Brown v. Allen Brown v. Hernandez The Court held that the sub- 430 Arnold v. North Carolina and showed that based on surnames, 429 Thiel v. Southern Pacific Co. the Court formally established a burden-shifting the Court formally established 426 Blacks were 33% of the total population, but only 18% total population, 33% of the Blacks were Norris v. Alabama at 480–81. at 471. 424 Id. Id. , the Court for the first time found that Mexican Americans , the Court for the first time found was more extreme and was compounded by the fact that the poll tax was more extreme and was compounded Building off of the precedent in Building off of the precedent in One of the most remarkable developments was the Court’s will- remarkable developments was the One of the most Increasingly, the Court also was willing to evaluate that impact that to evaluate was willing also the Court Increasingly, 427. Thiel v. S. Pac. Co., 328 U.S. 217, 225 (1946). 428. Hernandez v. Texas, 347 U.S. 475, 479 (1954). 429. 430. Castaneda v. Partida, 430 U.S. 482, 494–95 (1977). 424. Brown v. Allen, 344 U.S. 443, 473–74 (1953). 425. 426. 774 (1964). The discrimination Arnold v. North Carolina, 376 U.S. 773, Arnold 14% of the population of Jackson County was Mexican American, 14% of the population of Jackson been called for jury service for the but no Mexican Americans had last twenty-five years. paralleled never found that the poor are protected by the Fourteenth Amend- never found that the poor are protected for jury service. And in ment, but an exception was made v. Texas Amendment. were also protected by the Fourteenth of the jury-eligible population. The Court stated that “variations in stated that “variations The Court population. of the jury-eligible racial propor- and whites on jury lists from proportions of Negroes violative of the have not been considered tions in the population continued.” they are explained and not long Constitution where taneda v. Partida test for jury discrimination cases. numbers accurately reflected the overall population. But the Court based its ruling numbers accurately reflected the overall on the disparity between jury composition and population, not the poll tax list. content to defer to whatever selection procedures the state chose to the state selection procedures to defer to whatever content adopt—here,juror lists were from which the and tax lists the poll sourced. in depth and examine statistical disparities between blacks eligible between disparities statistical examine and in depth called. In and those actually to serve of individuals it considered pro- ingness to expand the categories when it came to their right to tected by the Fourteenth Amendment serve on a jury. In judgment in a civil case because the jury commissioner had refused judgment in a civil case because the jury lists. to include working class men on in Court found that the statistical disparity between the population the statistical disparity between Court found that purposeful racial jurors was enough to establish and the eligible discrimination. Finding that there was an explanation for how few blacks were serv- was an explanation for how few Finding that there ing on juries—blacks of a much smaller percentage constituted tax lists—thethose poll and That Court looked no further. years later in changed eleven 240 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 56 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 126 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 126 35559-nys_69-1 35559-nys_69-1 Sheet No. 127 Side A 10/20/2014 11:50:05 437 Ar- and was 433 438 . Justice Blackmun Washington v. Davis While the Court termed the While the Court It affirmed that when it comes 434 435 This proof of substantial under- This proof of Arlington Heights 432 The Court laid out that a prima facie that a prima out Court laid The 436 431 , 429 U.S. at 266. B. Jury Pool Jurisprudence Court decided that a disparity of 40% estab- Court decided that a disparity and seized upon the language that “[s]ometimes a and seized upon the language came only one year after came only one year , the Court explained that “[i]t is part of the estab- , the Court explained that “[i]t , 426 U.S. at 241 (internal citations omitted). at 494. at 494–95. U.S. 229, 241 (1976); Vill. of at 493 (citing Washington v. Davis, 426 at 495–96, 500–01. Castaneda test a proof of “discriminatory purpose,” the test requires purpose,” the test test a proof of “discriminatory Id. Id. Id. Id. Arlington Heights Davis Id. Smith In The Castaneda 431. 432. 433. 434. 435. 436. 437. Castaneda v. Partida, 430 U.S. 482, 499 (1977). 438. Castaneda Court threaded the needle of no actual showing of intent. The lington Heights grounds other than race, emerges clear pattern, unexplainable on even when the governing legisla- from the effect of the state action tion appears neutral on its face.” to racially discriminatory jury selection, “the systematic exclusion of to racially discriminatory jury selection, application of the law as to show Negroes is itself such an unequal intentional discrimination.” representation creates “a prima facie case of discriminatory pur- “a prima facie case of discriminatory representation creates rebut.” then shifts to the State to pose, and the burden case can be established as follows: (1) the group must be a recogniz- group must be follows: (1) the be established as case can (2) there treatment; out for different class, singled able, distinct proven by which may be substantial underrepresentation, must be to in the total population of the group the proportion comparing pe- over a significant serve as grand jurors called to the proportion be susceptible to (3) the selection procedure must riod of time; and neutral. abuse or not racially lished tradition in the use of juries as instruments of public justice lished tradition in the use of juries lished a prima facie case and that the state had failed to rebut it. lished a prima facie case and that recognized that those cases ruled that disproportionate impact is those cases ruled that disproportionate recognized that but then prove an Equal Protection violation, not enough to jury discrimina- from both cases that indicated quoted the language to that rule. tion is an exception The Court found that the Texas jury-selection system violated Equal The Court found that the Texas impact evidence. Protection based purely on disparate 2013] a constituted group of an identifiable underrepresentation stantial Protection. of Equal denial THE JURY EXCEPTION INTRODUCING 241 months after decided only two \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 57 15-OCT-14 10:56 Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 n.13 (1977)). 35559-nys_69-1 Sheet No. 127 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 127 35559-nys_69-1 35559-nys_69-1 Sheet No. 127 Side B 10/20/2014 11:50:05 439 The indi- 442 defend- , the only 440 , Ballard v. United Peters v. Kiff Peters v. Notably, the Court 447 trials. It took a few years for Duncan Glasser v. United States Glasser v. United Duncan v. Louisiana Duncan to make its way to the Supreme Court. Four years later, in Individual harm need not be shown. Individual harm need not be 445 Duncan 448 not under Fourteenth Amendment Equal not under Fourteenth The plurality opinion in opinion in The plurality 443 441 Deciding the case not on constitutional principles, Deciding the case not on constitutional , text accompanying notes 461–74. was not retroactive, however, and so for a few years the cases that was not retroactive, however, and so for 446 at 86. at 195–96. at 195. The Court denied this claim based on lack of proof, but The Court denied this claim based Duncan See infra Id. Id. Id. 444 , the defendants claimed that their convictions were invalid , the defendants claimed that their The foundational cases addressed the exclusion of women cases addressed the exclusion The foundational 439. Smith v. Texas, 311 U.S. 128, 130 (1940). 440. (1968). Duncan v. Louisiana, 391 U.S. 145, 158 441. 442. Peters v. Kiff, 407 U.S. 493, 500 (1972). 443. 444. Glasser v. United States, 315 U.S. 60, 83–84 (1942). 445. 446. Ballard v. United States, 329 U.S. 187, 193 (1946). 447. 448. “fair cross-section” jurisprudence developed rapidly thereafter. To- jurisprudence developed rapidly “fair cross-section” Amendment’s fair are litigated under the Sixth day these cases cross-section doctrine, ants began to challenge discrimination on Sixth and Fourteenth discrimination to challenge ants began grounds. Amendment focused not on the possible harm to the individual defendant, but focused not on the possible harm of women from juries causes on the systemic harm: the exclusion law as an institution, to the com- “injury to the jury system, to the ideal reflected in the munity at large, and to the democratic processes of our courts.” States of women and the Supreme because of the complete exclusion Court agreed. cated that the Court would be amenable to finding that an individ- to finding that be amenable the Court would cated that violations where a to challenge Sixth Amendment ual has standing jury pool. systematically excluded from the group had been in the Northern been included on the jury lists women who had a political group were women who belonged to District of Illinois on how be a allegedly pro-prosecution classes that had organized juror. Protection. In the first case, from the jury pool. but, instead, based on its supervisory powers, the Court found that but, instead, based on its supervisory prejudicial. the exclusion of women could be articulated “the desire for competent jurors to lead them into selec- articulated “the desire for competent the concept of the jury as a cross- tions which do not comport with section of the community.” came before the Court were appeals from pre- came before the Court were appeals from a trial that had taken place post- 242of the community.” representative truly be a body the jury that NYUits way making began of case type another language, on this Based ANNUAL SURVEY OF trial was right to a jury Amendment’s After the Sixth to the Court. AMERICAN LAW states in against the incorporated [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 58 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 127 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 127 35559-nys_69-1 35559-nys_69-1 Sheet No. 128 Side A 10/20/2014 11:50:05 The 458 Whitus v. 450 , the Court In Hill v. Texas, 316 the Court in- 327, 360 (1994); . 451 454 EV , Norris 1568, 1574 (2007). see also L.J. .Y.U. L. R ALE Y , 69 N , 116 Sims v. Georgia As the Court put it, “[t]he truth is put it, “[t]he As the Court Further, citing 449 and 455 457 453 , Lady Justice May Be Blind, But Is She a Soul Sister? Race- Lady Justice May Be Blind, But Is She a Soul , 329 U.S. at 193–94. , 385 U.S. at 552. Re-Justifying the Fair Cross Section Requirement: Equal Representation and Re-Justifying the Fair Cross Section Requirement: —when disparities reached a certain threshold the the Jones v. Georgia Arnold v. North Carolina, 376 U.S. 773, 774 (1964); Jones v. Georgia, Arnold v. North Carolina, 376 U.S. 773, Tanya E. Coke, at 549. at 551. 456 Ballard See Whitus Id. Id. Id. See 452 , Even in the absence of proof that anyone had purposefully dis- Even in the absence of proof that Increasingly, racial exclusion cases used demographic statistics cases used racial exclusion Increasingly, 450. 451. 452. 385 U.S. 545, 552 (1967). 453. 389 U.S. 24, 25 (1967). 454. 389 U.S. 404, 407–08 (1967). 455. 456. 457. 458. 449. the opportunity for discrimination was present and [the for discrimination was present the opportunity resorted to by on this record that it was not Court] cannot say the percent- Indeed, the disparity between the commissioners. of the grand the tax digest (27.1%) and that age of Negroes on strongly and the petit jury venire (7.8%) jury venire (9.1%) points to this conclusion. Georgia spected the percentage of blacks in the population, compared it to of blacks in the population, spected the percentage found that these that were on the jury lists, and the percentage were systems where: that the two sexes are not fungible; a community made up exclu- made fungible; a community two sexes are not that the both . . . a composed of from a community one is different sively of is excluded.” is lost if either sex distinct quality flavor, a found that “[w]hile the commissioners testified that no one was in- found that “[w]hile the commissioners because of race or color this has cluded or rejected on the jury list the prima facie case.” been held insufficient to overcome Enfranchisement in the American Criminal Jury Enfranchisement in the American Criminal Richard M. Re, 389 U.S. 24 (1967); Whitus v. Georgia, 385 U.S. 545, 550–552389 U.S. 24 (1967); Whitus v. Georgia, (1967); Eubanks v. Louisiana, 356 U.S. 584, 586–87 (1958); Reece v. Georgia, 350 U.S. 85, 87–88 480–82(1955); Hernandez v. Texas, 347 U.S. 475, (1954); U.S. 400, 403–404 Smith v. Texas, 311 U.S. 128, 128–29 (1942); v. (1940); Pierre Louisiana, 306 U.S. 354, 359 (1939). Court was now willing to find that they stated a prima facie case of Court was now willing to find that purposeful discrimination. to demonstrate discrimination based on disparity. to demonstrate criminated—indeed, testified, without con- the jury commissioners considered race in making their tradiction, that they had not selections Neutrality and the Ideal of Representative Juries Neutrality and the Ideal of Representative 2013] of leap surprising another toward the Court moved case also This may diversity such and that diversity of viewpoint the value faith: THE JURY EXCEPTION INTRODUCING the quality of justice. improve 243 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 59 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 128 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 128 35559-nys_69-1 35559-nys_69-1 Sheet No. 128 Side B 10/20/2014 11:50:05 Mis- allowed 467 . The Sixth 464 Justice White challenged an challenged system was also 463 Alexander v. Louisi- v. Alexander Taylor Both convictions were Both convictions Taylor and and Duren v. Missouri 461 459 . , 396 U.S. at 364. Men were not subject to this rule. Men were not subject Turner 462 Turner v. Fouche Turner 466 Taylor v. Louisiana Taylor v. , 405 U.S. at 634; As Andrew Leipold put it, “[t]hat the under- As Andrew Leipold put it, Further, the Court seemed to find this automatic ex- seemed to find this automatic Further, the Court 468 465 460 at 531. at 530. at 523. at 524. at 531. at 361. Id. Id. Id. Id. Id. Id. Alexander A few years later, the converse of the A few years later, the converse The Court transferred the fair cross-section requirement to the requirement fair cross-section transferred the The Court 461. Taylor v. Louisiana, 419 U.S. 522, 528–31 (1975). 462. 463. 464. 465. 466. 467. Duren v. Missouri, 439 U.S. 357, 369–70 (1979) 468. 459. 630–31 Alexander v. Louisiana, 405 U.S. 625, (1972); Turner v. Fouche, 460. , finding that opportunity to discriminate, paired with a dispa- with paired discriminate, to opportunity that , finding souri had adopted an opt-out system, where the questionnaires that souri had adopted an opt-out system, prominently addressed “TO were mailed out included a paragraph who did not wish to serve would WOMEN” stating that any woman be excused. Amendment required a jury be impartial; if the state depended on a jury be impartial; if the Amendment required groups of a that systematically excluded certain a selection process of the system is by definition unrepresentative community, that community. found that this system violated the Sixth Amendment. found that this system overturned. “opt-in” system in Louisiana, where women were automatically ex- were automatically where women system in Louisiana, “opt-in” a form indicating service unless they had filled out cluded from jury to serve. an affirmative desire Due to this system, the jury list was only 10% female in a district the jury list was only 10% female Due to this system, 53% of the population. where women comprised representation was caused by the women themselves (they asked to representation was caused by the the selection process be excused) was irrelevant, because clusion antithetical to the fundamental promise of the Sixth to the fundamental promise clusion antithetical of the jury is that it “guards Amendment. The structural safeguard power” by “mak[ing] available the against the exercise of arbitrary community . . . . This prophylactic commonsense judgment of the pool is made up of only special vehicle is not provided if the jury large, distinctive groups are ex- segments of the populace or if cluded from the pool.” Sixth Amendment in Sixth Amendment found to violate the Sixth Amendment in found to violate the Sixth Amendment ana rate impact, established a prima facie case. established a rate impact, 396 U.S. 346, 360 (1970). 244view in this affirmed Court NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 60 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 128 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 128 35559-nys_69-1 35559-nys_69-1 Sheet No. 129 Side A 10/20/2014 11:50:05 The 471 demonstrates itself The Court’s expla- 473 ). The only difference 470 The court established a court established The 469 the Sixth Amendment does not Castaneda creates an inference of discrimi- The rebuttal in a Sixth Amend- 472 Duren 474 Court notes, the third step in an Equal Court notes, the third step in an 945, 971 (1998). Constitutionalizing Jury Selection in Criminal Cases: A Constitutionalizing Jury Selection in Criminal Castaneda . The first step requires that the excluded . The first step Duren . L.J. EO G hinted strongly that Sixth Amendment challenges hinted strongly that Sixth Amendment , 86 , Berghuis v. Smith, 559 U.S. 314 (2010); United States v. Orange, , Berghuis v. Smith, 559 U.S. 314 (2010); , 439 U.S. at 364. , 439 U.S. at 368 n.26 (emphasis added). Castaneda at 368–69. Duren Duren Duren Id. See, e.g. ) or is susceptible to abuse ( ) or is susceptible This test is functionally identical to the Equal Protection test identical to the Equal Protection This test is functionally 470. 471.494 (1977). Castaneda v. Partida, 430 U.S. 482, 472. 473. 474. 469. Andrew D. Leipold, In order to establish a prima facie violation of the fair-cross- prima facie violation to establish a In order the show (1) that defendant must requirement, the section in the group is a ‘distinctive’ to be excluded group alleged this group in venires representation of (2) that the community; in re- and reasonable is not fair juries are selected from which and of such persons in the community; lation to the number exclusion is due to systematic (3) that this underrepresentation the jury-selection process. of the group in Duren require intent. As the Protection challenge “is subject to rebuttal evidence either that dis- Protection challenge “is subject to or that such purpose did not criminatory purpose was not involved . In contrast, in Sixth Amendment have a determinative effect . . . disproportion fair-cross-section cases, systematic third step of both requires some demonstration of how the proce- requires some demonstration third step of both systemic factors that the exclusion is due to dure works, and ( is that the third step in natory purpose, while under an infringement of the defendant’s interest in a jury chosen from a an infringement of the defendant’s fair community cross section.” nation in Equal Protection claims, and peti- would be easier to pursue than tioners have taken the hint. clear test for future claims: future test for clear ment case is harder to meet: the state must justify the constitutional ment case is harder to meet: the that attaining a fair cross-section is infringement by demonstrating interest. incompatible with a significant state 447 F.3d 792, 797–800 267 F.3d 231, 234 (10th Cir. 2006); United States v. Weaver, (3d Cir. 2001); Johnson v. McCaughtry, 92 F.3d 585, 590–95 (7th Cir. 1996); United States v. Rogers, 73 F.3d 774, 775–77 United States v. Jack- (8th Cir. 1996); man, 46 F.3d 1240, 1248 (2d Cir. 1995); Ramseur v. Beyer, 983 F.2d 1215, 1235–39 (3d Cir. 1992); United States v. Maskeny, 609 F.2d 183, 189–90 (5th Cir. 1980); laid out in group be identifiable and the second demands comparative under- and the second demands comparative group be identifiable alone. provable by demographic statistics representation, Critical Evaluation 2013] to occur.” pool of the jury skewing the THE JURY EXCEPTION INTRODUCING 245 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 61 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 129 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 129 35559-nys_69-1 35559-nys_69-1 Sheet No. 129 Side B 10/20/2014 11:50:05 ASTINGS H , 64 The Court , Washington v. 481 For the first time, See, e.g. 476 Nor is it overcome by Nor is it overcome 145 (James Appleton Mor- 480 URY J their race—after all, the pros- RIAL BY Wrong About the Right: How Courts Under- However, the Court provided an However, the Court T and Its Progeny and 478 In such a case, the Court stated, In such a case, because of 477 ISTORY OF Batson H , C. Nina W. Chernoff, , the prosecutor had struck the six blacks remain- , the prosecutor ORSYTH F But cf. That presumption is not overcome simply by showing That presumption at 223–24. at 222. at 222–23. 479 ILLIAM They have likewise been a refuge for discrimination. In discrimination. a refuge for likewise been They have Id. Id. Id. Id. Id. W 475 In 1965 the Supreme Court first addressed the issue of the per- the issue of the first addressed the Supreme Court In 1965 476. Swain v. Alabama, 380 U.S. 202, 210, 231–33 (1965). 477. 478. 479. 480. 481. 475. 141 (2012) (noting a disturbing recent pattern of courts confounding Sixth 141 (2012) (noting a disturbing recent [T]he prosecutor in a county, in case after case, whatever the [T]he prosecutor in a county, in and whoever the defendant circumstances, whatever the crime for the removal of Negroes or the victim may be, is responsible jurors by the jury commis- who have been selected as qualified challenges for cause, with the sioners and who have survived held that the presumption can only be overcome by proving that: held that the presumption can only the Court acknowledged that peremptory strikes could be infected that peremptory strikes the Court acknowledged with racial discrimination. showing they were removed showing they were ecutor might believe the case turns on a racial issue. ecutor might believe the case turns evidentiary standard that was fatal to any such claim. First, the base- that was fatal to any such claim. evidentiary standard acted without is that the prosecutor has line presumption prejudice. strikes would be impermissible. strikes would be emptory strike. Peremptory strikes have been used as far back as been used as far strikes have strike. Peremptory emptory for as “almost essential traditionally seen Rome and were ancient in a and impartiality perfect fairness of securing the purpose trial.” gan ed., Frederick D. Linn & Co., 2d ed. 1875) (1852). gan ed., Frederick D. Linn & Co., 2d ed. that all blacks were removed from the jury. that all blacks were Swain v. Alabama sentencing Rob- resulting in an all-white jury ing in the jury venire, for raping a white woman. ert Swain to death mine the Fair Cross-Section Guarantee by Confusing It with Equal Protection mine the Fair Cross-Section Guarantee by Confusing People, 186 P.3d 594, 600–06 (Col. 2008); Diggs v. United States, 906 A.2d 290, P.3d 627, 631 (Nev. 2005); People v. 293 (D.C. 2006); Williams v. State, 125 Burgener, 62 P.3d 1, 26–27 (Cal. 2003); Azania v. State, 778 N.E.2d 1253, 1259–60 334 (Conn. 2000); Lovell v. State, 702 (Ind. 2002); State v. Gibbs, 758 A.2d 327, 525 N.W.2d 538 (Minn. 1995); State v. A.2d 261, 279 (Md. 1997); State v. Williams, v. Lopez, 692 P.2d 370, 373–74Dixon, 593 A.2d 266, 271 (N.J. 1991); State (Idaho Ct. App. 1984). and erroneously denying valid Sixth Amendment and Equal Protection challenges systematic discrimination). Amendment claims for want of proof of United States v. Butler, 615 F.2d 685, 686 (5th Cir. 1980). Challenges in state United States v. Butler, 615 F.2d 685, Sixth Amendment. courts also usually proceed under the L.J. 246 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 62 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 129 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 129 35559-nys_69-1 35559-nys_69-1 Sheet No. 130 Side A 10/20/2014 11:50:05 The , only Batson Severe statisti- State supreme 487 and from within the , 371 So. 2d at 752. 489 198 (1997). 484 After a defense attor- After a defense Brown Swain Swain AW 485 , this burden was “crip- , this burden L The prosecutor declined and Batson 486 490 RIME AND THE C ACE R , with evidence on the composition of other East Baton with evidence on the composition of and dissatisfaction with ENNEDY While the reinstatement was reversed by the Sec- While the reinstatement was reversed K Brown 491 488 , 380 U.S. at 223–24. 482 Commonwealth v. Soares, 387 N.E.2d 499, 514–16 Peo- (Mass. 1979); Batson v. Kentucky, 476 U.S. 79, 90 n.14 (1986) (citing scholarly criti- United States v. Robinson, 421 F. Supp. 467, 469 (D. Conn. 1976). United States v. Robinson, 421 F. Supp. at 199. ANDALL In the twenty-one years between In the twenty-one Id. Id. Id. See See See R Swain 483 Prompted by these lower court decisions, critical commentary Prompted by these lower court A few other courts tried challenging the status quo. The first tried challenging the status A few other courts As the Court later stated in Court later stated As the 487. 488. 489. 490. 491. 485. 486. 482. 483. Batson v. Kentucky, 476 U.S. 79, 92 (1986). 484. (La. 1979); State v. Brown, 371 So. State v. Washington, 375 So. 2d 1162 result that no Negroes ever serve on petit juries . . . In these . . petit juries serve on ever Negroes that no result of the purposes that the appear would . . . it circumstances not If the State has being perverted. challenge are peremptory case, in a criminal Negro on any jury to leave a single seen fit be may well the prosecutor protecting the presumption overcome. courts in Massachusetts and California soon followed the District of courts in Massachusetts and California a more achievable standard Connecticut’s lead, electing to provide under their state constitutions. cal discrepancies were found and Judge Newnan reinstated the cal discrepancies were found and struck jurors. ney protested that the prosecution had used all its peremptory the prosecution had used ney protested that asked the prose- black jurors, Judge Jon Newnan strikes to eliminate for challenging wanted to state a nonracial reason cutor whether he the four black prospective jurors. Judge Newnan gave the defense permission to evaluate the jury Judge Newnan gave the defense in the district. records from the previous two years ple v. Wheeler, 583 P.2d 748, 764 (Cal. 1978). cism). For further criticism from the interregnum see John Andrew Martin, ond Circuit, the battle cry had been sounded. ond Circuit, the battle cry had two cases succeeded. Both were in Louisiana, decided one month Both were in Louisiana, decided two cases succeeded. receptive success was likely due to a particularly apart in 1979; their on two espe- Court and compelling testimony Louisiana Supreme prosecutors in Baton Rouge. cially egregious from scholars, was in the District of Connecticut in 1976. was in the District Rouge juries; this evidence was read into the record. Rouge juries; this evidence was read into pling.” 2d 751 (La. 1979). In both cases, extensive testimony was presented on how each 2d 751 (La. 1979). In both cases, extensive strikes to strike blacks. Interestingly, prosecutor systematically used peremptory the same judge, who provided the de- Washinton and Brown’s trials were before fense counsel in 2013] THE JURY EXCEPTION INTRODUCING 247 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 63 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 130 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 130 35559-nys_69-1 35559-nys_69-1 Sheet No. 130 Side B 10/20/2014 11:50:05 . . L. Fee- OUS . 157 LB The H A Back- 495 . L.J , 4 . 322, 334 493 , 57 ISS M L.J Peremptory Chal- Second, the —but not ALE , 39 Y 496 , the Court now , the Court , 75 Swain : A Constitutional Blueprint for the The Application of Equal Protection to . 1157, 1175 (1966) (arguing that EV Arlington Heights Arlington . 153, 164 (1989) [hereinafter Alschuler, . L. R , but wanted more time for it to percolate in , but wanted more time for it to percolate EV A and has three parts: First, the defendant has three parts: V changed its position on this venerated on this position its changed at 961. Swain . L. R , 52 Davis Fair Jury Selection Procedures HI Id. ]; Mary A. Lynch, Batson Batson should have gone further and required fair procedures should have gone further and required U. C standard. To establish a prima facie case of dis- standard. To establish Swain Third and finally, the defendant must show that Third and finally, the defendant , 56 , 461 U.S. 961, 963–70 (1983). In a separate opinion regarding 497 Swain The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the The Supreme Court and the Jury: Voir Dire, at 87 (internal quotations and citations omitted). at 95. at 96. the Court in Court in the Id. Id. Id. Id. 494 492 . 448 (1966); Comment, Swain v. Alabama gave the states a “blank check for discrimination”); Note, gave the states a “blank check for discrimination”); To achieve this new tier of protection, the Court dramatically new tier of protection, the Court To achieve this 492. from the denial of certiorari in Justices Marshall and Brennan dissented 493. Batson v. Kentucky, 476 U.S. 79, 89 (1986). 494. 495. 496. 497. EV —the from forbids prosecutors Equal Protection Court held that . 289, 306–09 (describing Swain as “powerful in principle, pathetic in (1993) EV must show that he is a member of a cognizable racial group and he is a member of a cognizable must show that to remove exercised peremptory challenges that the prosecutor members of the defendant’s race. from the panel requirement of showing a consistent pattern was eliminated. A showing a consistent pattern requirement of under prima facie case tracking directly from its language from its language from directly from tracking found that “[a] person’s race simply is unrelated to his fitness as a to his race simply is unrelated “[a] person’s found that juror.” defendant “is entitled to rely on the fact, as to which there can be to rely on the fact, as to which defendant “is entitled constitute a jury selection no dispute, that peremptory challenges who are of a mind to practice that permits ‘those to discriminate discriminate.’” (1967); Note and Comment, Review of Jury Verdicts for selecting jurors). Other excellent articles discussing that period include Albert for selecting jurors). Other excellent articles W. Alschuler, (1965) (arguing that L. R Prospective Jurors with Disabilities: Will Batson Cover Disability Based Strikes? Prospective Jurors with Disabilities: Will Batson R Swain lenge—Systematic of Prospective Jurors on the Basis of Race Exclusion The Supreme Court and the Jury the above facts, and any other relevant circumstances, raise the in- the above facts, and any other relevant criminatory jury selection, the defendant need only present evi- selection, the defendant need criminatory jury own trial. the prosecutor’s actions at his dence concerning ney exception. of their race, without jurors on account striking bastion of prosecutorial discretion. Citing a bizarre combination of bizarre combination a Citing discretion. of prosecutorial bastion cases as well as the jury altered the Perpetuation of the All-White Jury practice”). McCray v. New York Fifth Circuit and Jury Selection Cases: The Negro Defendant and His Peerless Jury Fifth Circuit and Jury Selection Cases: The Negro Blackmun, and Powell indicated that they the denial of certiorari, Justices Stevens, were interested in reconsidering the laboratories of the states. 248Court, NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 64 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 130 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 130 35559-nys_69-1 35559-nys_69-1 Sheet No. 131 Side A 10/20/2014 11:50:05 , . M . J. 500 . L. , 74 A A IS W Just Say , 31 U. P is an in- , 3 The Supreme further dei- , 1994 The Use of Per- Batson note 491, at 199 When a Peremptory Batson supra , has therefore become im- 502 ’s burden-shifting framework . 625, 638–41 (proposing (1994) Batson EV Scholars argue that it leaves Scholars argue Batson 503 L. R ’s Unfortunate Failure to Eradicate Invidious decision); Jeffrey S. Brand, AUL P E 755, 797 (1988) (arguing that D is part of a “flawed methodology for eliminating Batson Batson The trial court then evaluates whether a The trial court L.J. , 43 809, 863 (1997) (arguing that . The Supreme Court and the Jury The Court gives as examples of relevant examples gives as Court The is plentiful. 501 Peremptory Challenges Should be Abolished: A Trial Judge’s Peremptory Challenges Should be Abolished: Batson EV MORY 498 E . L. R Batson 499 , 37 HI for acting only symbolically against racism, without doing for acting only symbolically against ., Alschuler, . C , 476 U.S. at 97. . 209, 214 (2003) (arguing that 1099, 1105 (1994) (asserting that “ . at 98, n.20. at 98. Batson 811, 811–41 v. Ken- (1988); Robert W. Rodriguez, Comment, Batson . EV 3, 44–46 identifying and answering a number of (2001) (methodically ITIG Id. Batson Id. Id. Id. See, e.g , 64 U EV . L . L. Criticism of Once the prima facie case is established, the burden shifts to the burden shifts is established, prima facie case Once the : Equal Protection, the Fair Cross-Section Requirement, and the Discriminatory Use of . L. R EV 498. 499. 500. 501. 502. 503. . 511, 524 (arguing that R . L. R RIM ONST EV A far too much room for pretext, that it fails to clarify the proper for pretext, that it fails to far too much room circumstances a pattern of strikes against black jurors or comments black jurors or of strikes against a pattern circumstances dire. during voir has been established. case of discrimination C No!: A Proposal to Eliminate Racially Discriminatory Uses of Peremptory Challenges No!: A Proposal to Eliminate Racially Discriminatory the elimination of the peremptory challenge system); Charles J. Ogletree, the elimination of the peremptory challenge C R complete solution to the problem of exclusion on the basis of race during jury selection). ndividualized the jury selection process); Jere W. Morehead, ndividualized the jury selection process); Discrimination from Jury Selection Challenge Is No Longer Peremptory: Court, Equal Protection and Jury Selection: Denying That Race Still Matters Court, Equal Protection and Jury Selection: actually makes trial judges “more willing to accept proffered race-neutral explana- actually makes trial judges “more willing challenges, no matter how sus- tions for alleged discriminatory use of peremptory pect”); Morris B. Hoffman, Perspective potent in preventing discrimination”); David D. Hopper, Note, Batson v. Kentucky potent in preventing discrimination”); David Arbitrary and Capricious Equal Protection? and the Prosecutorial Peremptory Challenge: the state to rebut it with a race-neutral explanation for its actions. for its a race-neutral explanation to rebut it with the state Peremptory Challenges tucky empirically testable assumptions about the mechanics of the peremptory strike empirically testable assumptions about that authors claim underlie the enough to alter the preemptory challenge); David C. Baldus et al., enough to alter the preemptory challenge); A Legal and Empirical Analysis emptory Challenges in Capital Murder Trials: (criticizing and supported by naive assumptions racist influence in the jury selection process judicial process”); Lonnie T. Brown, Jr., regarding the influence of race on the Misconduct, Not Legitimate Advocacy Racial Discrimination in Jury Selection: Professional 22 V 2013] on ac- venire from the struck members the prosecutor that ference race. of their count THE JURY EXCEPTION INTRODUCING denial, a than a mere something more must be The explanation 249 faith; the prosecu- or an affirmation of good statement of intuition, for the and reasonably specific” explanations tor must give “clear challenges in question. \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 65 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 131 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 131 35559-nys_69-1 35559-nys_69-1 Sheet No. 131 Side B 10/20/2014 11:50:05 . . E- EV EV L. S R Bat- , and that see also URY Batson L. R J 505 ORNELL Batson AME And while D 96 C 509 in Practice: What , , 85 B.U. L. OTRE and Peremptory Chal- ’s Net to Ensnare More N 1613 (2012); Eric L. . EV ISCRIMINATION IN violations take place , 71 Batson http://www.eji.org/node/ Batson D was handed down in 1986. is disparate impact writ L. R ACIAL Batson OWA R I Batson Widening Batson Blind-Spot: Unconscious Stereotyping and available at , 97 149, 151–58 Anthony Page, Bat- (2010); Whether the test laid out in the test laid out Whether . LLEGAL note 505, at 245. EV . 155, 227–29 (2005). , I 507 1835, 1839 (1994). R EV Y ’ Unraveling the Gordian Knot of Implicit Bias in Jury Unraveling the Gordian Knot of Implicit Bias ruled that disparate impact is insuffi- ruled that disparate Remedies Rather, the goal here is to note that the goal here Rather, supra L.J. OL 43 (2010), and Peremptory Challenges 508 . 447, 468 Table F-4 (1995–1996). ALE NITIATIVE Y EV Davis I B.U. L. R EGACY Paradox: Harmless Error, Jury Representation, and the Sixth Paradox: Harmless Error, Jury Representation, 93, 94–96 (1996). . L. & P L Counsel for the Poor: The Death Sentence Not for the Worst Crime Counsel for the Poor: The Death Sentence Not Batson L. R , 103 , 85 809, 864 (1997); Kenneth J. Melilli, Batson . ARV USTICE . L.J. Peremptory Challenges Should Be Abolished: A Trial Judge’s Perspec- Peremptory Challenges Should Be Abolished: J H EV AME Batson ALE , 4 D Y QUAL in Practice: What We Have Learned About . L. R E ONTINUING that it does not account for unconscious racism, unconscious for not account it does that HI OTRE , 106 LECTION and that it puts the burden entirely on the defense lawyer entirely on it puts the burden and that N See 504 Solving the : A C step three does ask the challenger to present any other evi- ask the challenger to present any step three does U. C 506 71 This shift cannot be imputed to changes in Court membership: be imputed to changes in Court This shift cannot 507. 506. Miller-El v. Dretke, 545 U.S. 231, 266–69 (2005) (Breyer, J., concurring); 508. Jeffrey Bellin & Junichi P. Semitsu, 509. Justice Stewart retired in 1981, and was replaced by Justice O’Connor. 505. Judge Mark W. Bennett, 504. Jason Mazzone, Batson 1075, 1092 (2011) (surveying 269 federal decisions between 2000 and 2009 1075, 1092 (2011) (surveying 269 federal is an effective vehicle for combating racism is beyond the scope is beyond the combating racism vehicle for is an effective . ’s Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge ’s Blind-Spot: Unconscious Stereotyping and , 64 EV it preserves peremptory strikes when they should be abolished en- abolished be they should when strikes peremptory it preserves tirely, small. at individual trials, so the “disparate impact” is scaled down to a so the “disparate impact” is at individual trials, single courtroom. But functionally, Batson that intent can be a discriminatory intent, dence that implicates to the pattern alone. shown by pointing 447, 502–03 (1995–1996); Page, son of the success rates it is clear that Empirically, of this Note. are very low. challenges Amendment barely ten years after barely ten years Court intentionally Equal Protection violation, the cient to prove an for jury dis- very much like that standard implemented something crimination cases. of the Court had left in the interim. only one member Muller, R son Than the Unapologetically Bigoted or Painfully Unimaginative Attorney Than the Unapologetically Bigoted or Painfully Morris B. Hoffman, tive Batson v. Kentucky, 476 U.S. 79, 107–08 (1986) (Marshall, J., concurring); 397; Stephen B. Bright, but for the Worst Lawyer Chief Justice Burger retired five months after Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Selection: The Problems of Judge-Dominated Proposed Solutions We Have Learned About to note and raise the problem. to note and finding that a new trial was only granted in 6.69% of those cases); Kenneth J. and finding that a new trial was only granted in 6.69% of those cases); Kenneth Melilli, Batson lenges, 155, 227–29Anthony Page, Batson’s (2005). the Peremptory Challenge 250remedy, NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 66 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 131 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 131 35559-nys_69-1 35559-nys_69-1 Sheet No. 132 Side A 10/20/2014 11:50:05 514 519 In was 510 Batson Batson 511 that was standing: Powers Ford v. Georgia gave birth to a group birth to gave Powers v. Ohio Batson A defendant has standing to chal- 517 513 The question in cases came down. cases came held that at least in some cases—the at least in some held that case 516 claims. The first requirement of third-party standing, The first requirement of third-party Batson 518 Batson The record before the Court did not indicate whether The record before the Court did at 412–13. at 411. ’s impact did not end there. not end did ’s impact at 417–18. at 424–25. at 403. at 411–13. Turner v. Murray Turner v. The Court granted certiorari and unanimously found certiorari and unanimously The Court granted , 515 Id. Id. Id. Id. Id. Id. Id. 512 Six weeks later the Court ruled in Six weeks later Batson 510. Turner v. Murray, 476 U.S. 28, 36–37 (1986). 511. 498 U.S. 411 (1991). 512. 513. 514. Powers v. Ohio, 499 U.S. 400, 409 (1991). 515. 516. 517. 518. 519. Batson 1991, four separate 1991, four especially surprising considering it was a habeas case, a procedural habeas case, a it was a surprising considering especially grant substantive Court is generally less willing to stage in which the rule that had set up an elaborate procedural review. But Georgia reviewing prevent appellate courts from was designed to claims. lenge this violation because “racial discrimination in the selection lenge this violation because “racial of the judicial process[,] . . . of jurors casts doubt on the integrity proceeding in doubt[,] . . . [and] places the fairness of a criminal neutrality and its obligation to invites cynicism respecting the jury’s adhere to the law.” Could a white man have suffered constitutional injury by the re- Could a white man have suffered in a poetic account of the impor- moval of black jurors? The Court, found that when jurors are tance of jury service to democracy, it is the jurors’ Equal Protection excluded on the basis of race, rights that have been violated. injury-in-fact, is met by this blow to the integrity of the system. injury-in-fact, is met by this blow at hand being an interracial capital trial—trialbeing an interracial at hand have an af- judges bias. possible racial into a juror’s duty to inquire firmative any blacks actually sat on the trial jury or whether the defendant any blacks actually sat on the trial had stricken any blacks. that this rule did not constitute independent and adequate state not constitute independent and that this rule did Georgia was re- bar habeas review and that grounds that could quired to hear of cases that consistently expanded its scope. Decided the same day the same Decided scope. its expanded consistently that of cases as claims could be raised regardless of the race of the defendant. raised regardless of the race of claims could be The second criterion, a close relation between the defendant and The second criterion, a close relation have an interest in keep- the juror, is met because both individuals Larry Joe Powers, a white man, objected when the prosecution used a white man, objected when the Larry Joe Powers, black people from strikes to remove the seven of its ten peremptory the jury. 2013] THE JURY EXCEPTION INTRODUCING 251 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 67 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 132 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 132 35559-nys_69-1 35559-nys_69-1 Sheet No. 132 Side B 10/20/2014 11:50:05 532 step The The was a 526 528 . Batson Instead, be- Batson 525 Edmonson The prosecutor manipulated the The race-neutral 531 . 523 529 . The third criterion, third The The defendant argued The defendant 520 524 , the prosecutor’s explana- , the prosecutor’s Edmonson 522 . could reach all litigation. As in Purkett Powers soared past the standing soared past the Powers Batson For fourteen years, these two cases In 521 530 , the Court weakened the weakened the , the Court Batson , the court had to first find that private , the court had to first find that 527 . Powers Hernandez v. New York Hernandez v. New Batson Edmonson v. Leesville Concrete Co manipulated the normal standing requirements so manipulated the normal standing Purkett v. Elem , 499 U.S. at 413–14. could reach all defendants, at 414–15. at 766. at 768. at 619. at 416. at 356–57. at 360. at 361. Powers Id. Id. Id. Id. Id. Id. Id. Id. Id. Powers , the Court acknowledged the dilemma directly. The Court , the Court acknowledged the dilemma Batson The final case, decided in 1991 and perhaps the most surpris- The final case, decided in 1991 Two months after Two months 520. 521. 522. 523. 361–62 Hernandez v. New York, 500 U.S. 352, (1991). 524. 525. 526. 527. 514 U.S. 765 (1995). 528. 529. 530. 531. 500 U.S. 614 (1991). 532. Court found that the Eighth Circuit had erred in requiring that the Court found that the Eighth Circuit persuasive.” explanation be at least “minimally Court opted to stay blind to pretextual explanations, a trend that stay blind to pretextual explanations, Court opted to continued in cause this explanation was literally race-neutral, the Court found was literally race-neutral, cause this explanation of race-neutral for the purposes that it was legally litigants were state actors so that Equal Protection could apply. litigants were state actors so that claimed that he was striking Latino jurors because several witnesses was striking Latino jurors because claimed that he they would de- in Spanish and he doubted that would be testifying interpreter’s translation. fer to the court civil case, so, to apply explanation did not need to be “persuasive, or even plausible,” it explanation did not need to be just had to be facially neutral. that there is a barrier preventing the injured party from asserting party injured the preventing a barrier there is that of juror problems of the structural rights, is met because his own bur- injury to the financial of the and of the proportion exclusion litigation. den of undertaking that the prosecutor used language as a proxy for race, but the Court used language as a proxy for that the prosecutor it would not address that claim. specifically said that ing of all, was took much of the power out of barrier and his judgment was reversed. his judgment barrier and tion for striking black jurors was that they had goatees. black jurors was that they had tion for striking two requirements in two requirements Powers Just as that state action doctrine so that 252 courtroom. of the out discrimination ing NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 68 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 132 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 132 35559-nys_69-1 35559-nys_69-1 Sheet No. 133 Side A 10/20/2014 11:50:05 The 538 J.E.B. v. Having 535 seems the But the Court Shelley 541 Justice Scalia com- 536 . 540 It then found that It then . but the Court likely but the Court test as “whether the in- test as “whether 533 537 to gender-based discrimina- Shelley Batson Shelley v. Kraemer Georgia v. McCollum The jury, it stated, “is a quintessential gov- quintessential it stated, “is a The jury, 534 to fit comfortably into the more conventional to fit comfortably That rationale will be explored in Part V. That rationale will be explored , 500 U.S. at 622. 539 symmetrically prohibits defense counsel from striking symmetrically prohibits defense at 622–24. at 624–25. at 624. at 622. at 628. at 69–70 (Scalia, J., dissenting). ], we witness its reduction to the terminally absurd: A ], we witness its reduction to Edmonson , the Court extended Id. Id. Id. Id. Edmonson Id. Id. A male defendant in a paternity suit objected to opposing A male defendant in a paternity Batson 542 The next few years saw even more expansion. The Court found The next few years saw even more 533. 534. 535. 536. 537. Shelley v. Kraemer, 334 U.S. 1 (1948). 538. 539. 540. Georgia v. McCollum, 505 U.S. 42, 59 (1992). 541. 542. J.E.B. v. Alabama, 511 U.S. 127, 129 (1994). Court, having completed the doctrinal analysis, turned to the other the doctrinal analysis, turned Court, having completed protection to extending Fourteenth Amendment justifications for safeguarded from that the courtroom must be civil cases and found discrimination. found state action under both of the two primary tests, the Court primary tests, both of the two action under found state also quali- on and found that civil jury selection merrily continued under fied for state action tion. seemed to find that the juror’s right to serve trumps the defen- seemed to find that the juror’s or she sees as hostile. In dant’s right to challenge jurors he Alabama most applicable, considering it also found state action in a civil case considering it also found state action most applicable, private choices, where courts enforced mented on the “sheer inanity” of this result: “Barely a year [after mented on the “sheer inanity” Edmonson of defending himself against the criminal defendant, in the process of the state.” state, is held to be acting on behalf jury caused is aggravated in a unique way by the incidents of gov- in a unique way by the jury caused is aggravated satisfied. and held that this too was ernmental authority” wanted selection of a jury involves the performance of a traditional func- of a traditional the performance of a jury involves selection tion of government. state action rules. It reimagined the state action rules. ernmental body, having no attributes of a private actor.” no attributes of body, having ernmental that jurors based on race in counsel’s removal of all male jurors, rendering the jury entirely fe- counsel’s removal of all male jurors, 2013] fash- orderly in an action tests state the various through proceeded signifi- “overt, fulfills the courtroom use of first that It found ion. THE JURY EXCEPTION INTRODUCING government.” of the cant participation 253 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 69 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 133 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 133 35559-nys_69-1 35559-nys_69-1 Sheet No. 133 Side B 10/20/2014 11:50:05 . 546 545 Purkett The de- 547 and step one. More gener- 544 revitalized the 553 551 Batson Hernandez , the Court engaged in , the Court rejected the , the Court Johnson first step by producing evi- 549 After examining the justifica- step one should be a relatively 552 Batson’s Snyder v. Louisiana Batson and Johnson v. California Johnson v. 550 . In , 545 U.S. at 240–52. Batson reinforced that , decided the same day as at 164. at 165. at 170. at 266. Id. Id. Id. Id. Id. Id. Miller-El Id. The Court held that “gender, like race, is an unconstitu- race, is like “gender, held that Court The The Supreme Court reversed. It found this standard was reversed. It found this standard The Supreme Court step two case law previously gutted by step two case law previously gutted 543 548 Johnson Finally, in the last ten years the Court has reinvigorated all has reinvigorated years the Court in the last ten Finally, Miller-El v. Dretke 543. 544. 545.168 (2005). Johnson v. California, 545 U.S. 162, 546. 547. 548. 549. 550. 545 U.S. 231 (2005). 551. 552 U.S. 472 (2008). 552. 553. Miller-El We did not intend the first step to be so onerous that a defen- the first step to be so onerous We did not intend to persuade the judge—ondant would have the basis of all the for the defendant to know facts, some of which are impossible with certainty—thatlikely than not the the challenge was more Instead, a defendant sat- product of purposeful discrimination. isfies the requirements of dence sufficient to permit the trial judge to draw an inference dence sufficient to permit the trial that discrimination has occurred. fense’s challenge, the California Supreme Court found, was insuffi- the California Supreme Court fense’s challenge, facie case; the had not established the prima cient because he likelihood” that to show that there was “a strong defense needed to the pat- occurred, but had only pointed discrimination had tern. In a fact-intensive analysis of the prosecutor’s asserted reasons for a fact-intensive analysis of the striking a black venire member. Batson tions, the Court found that “it blinks reality to deny that the State tions, the Court found that “it blinks they were black.” struck [the black jurors] because more demanding than it had intended: more demanding tional proxy for juror competence and impartiality.” and competence for juror proxy tional three steps of three steps of interpretation Supreme Court’s California low hurdle. 254male. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 likely whether it was “more test that asked had adopted a California bias. by racial had been motivated that the strikes than not” a prosecutor to test, a trial court did not require Working off of this venire. after striking three blacks on the explain himself \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 70 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 133 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 133 35559-nys_69-1 35559-nys_69-1 Sheet No. 134 Side A 10/20/2014 11:50:05 558 Sny- , Mar. IMES The crime The separa- .A. T , O.J., and 559 , L 555 1687, 1704 (2008). . EV challenge does not call challenge The defense made a pre- L. R 560 The prosecutor promised not OWA Batson I 561 The man died, Mary survived. , 93 557 Citing Bias, Justices Reject Death Sentence One night, Mary was on a date with another man One night, Mary was on a date 556 , 552 U.S. at 475. , 552 U.S. at 474. made the prosecutor’s burden even heavier. The re- burden even heavier. made the prosecutor’s 554 . at 252. . . at 474–75. Snyder Id Snyder Id Id Snyder 561. Brief for Petitioner, Snyder v. Louisiana, 552 U.S. 472 (2008), 2007 WL 559. 560. David G. Savage, 554. 555. 556. 557. 558. A. Nelson, Batson For an excellent account, see Camille : Lessons from an Intersecting Trilogy for a mere exercise in thinking up any rational basis. If the in thinking up any rational for a mere exercise does not hold up, its pretextual significance stated reason does can imagine a trial judge, or an appeals court, not fade because as false. The not have been shown up a reason that might of a reason for and the dissent’s substitution Court of Appeals’s prosecutors’ does nothing to satisfy the eliminating Warren for their own a racially neutral explanation burden of stating actions. [P]eremptories are often the subjects of instinct, and it can instinct, and the subjects of are often [P]eremptories is. But when illegiti- what the reason be hard to say sometimes got simply has in issue, a prosecutor like race are mate grounds plau- or fall on the he can and stand reasons as best to state his gives. A the reasons he sibility of tion was rocky and Mary had been ignoring Allen’s attempts to tion was rocky and Mary had been meet and talk. was happening and the prosecu- took place as the O.J. Simpson trial several public statements referring tor who took on the case made case.” to this case as “his O.J. Simpson trial motion to preclude reference to O.J. Simpson, citing a phone trial motion to preclude reference trial in which the TV reporter call he had received the day before O. J. Simpson trial’ scheduled to had asked for comment on “ ‘the Parish, and ‘confirm[ed] that it begin the following day in Jefferson which had billed this trial with the was the District Attorney’s Office intimated that it was the reference by-now infamous moniker, and ” that made the story newsworthy.’ 20, 2008, at A11. 2605447, at *8. and as they returned home, Allen came up to their car and stabbed and as they returned home, Allen both of them multiple times. markable facts of the trial may have played a role. Allen Snyder had the trial may have played a role. markable facts of summer of 1995. separated from his wife Mary in the Allen Snyder was charged with first-degree murder. Allen Snyder was charged with 2013] prosecutor’s of the caliber required the addressed the Court ally, explanation: race-neutral THE JURY EXCEPTION INTRODUCING 255 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 71 15-OCT-14 10:56 der 35559-nys_69-1 Sheet No. 134 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 134 35559-nys_69-1 35559-nys_69-1 Sheet No. 134 Side B 10/20/2014 11:50:05 . EV de- 568 The . 1283, In so 564 L. R EV 563 Miller-El 567 Snyder AYLOR . L. R B ICH M Few cases would : Continuing the Histori- 566 Blinking Reality: Race and , 108 Johnson, 58 305, 305 (2009) (“ also provided guidance , and IDEBAR Snyder S Y ’ Miller-El OL , P and . in terms of an atmosphere of racism. in terms of an atmosphere UB dictated—regardless other of whatever also advanced a new factor that courts also advanced a new factor that Ovalle . L. P Snyder Miller-El : Demand for Judicial Scrutiny of the Use of Peremptory Miller-El ONST Miller-El Court indicated that deference is not applicable Court indicated that deference at 1301; Heather Davenport, Note, J. C id. 569 , , 552 U.S. at 476. , 552 U.S. at 479–84. UKE But after striking all the black jurors on the venire, he venire, on the jurors the black all after striking But Snyder D John P. Bringewatt, Note, Snyder v. Louisiana at *7–8. at *2. at 479. step three. Both cases involved fact-intensive analyses by step three. Both cases involved 562 See, e.g. Id. Id. Snyder Snyder Id. See , 4 and this would have been an easy case in which to do so. But been an easy case in which to and this would have Viewed together, Despite the substantial briefing on these facts, the Court’s briefing on these the substantial Despite 565 569. 562. 563. 564. 565. Miller-El v. Dretke, 545 U.S. 231, 253–66 (2005) (describing a number of 566. 567. 568. Batson doing, the carefully review these rulings. and that appellate courts should all-white jury convicted Snyder and sentenced him to death. and sentenced jury convicted Snyder all-white By relying on juror-specific scrutiny, the Court set a precedent that scrutiny, the Court set By relying on juror-specific be subjected to rig- challenges must always prosecutors’ peremptory orous scrutiny—as be able to compare to be able to compare to credit the trial The Court here also refused circumstances exist. legitimate in the the peremptory challenge was court’s ruling that decision by the trial judge. absence of an explanation of the Challenges 949, 979 (2006) (“[T]he Court advanced—by way of example—the extremely de- tailed factual analysis that lower courts should undertake.”); Jennifer Ross, Com- ment, Snyder v. Louisiana 1299 (2010). Criminal Jury Selection in Light of mands a higher level of scrutiny from trial courts when they determine the pres- reneged on that promise, telling the jurors that this case was “very, case was this jurors that the telling that promise, on reneged “got away case where O.J. O.J. Simpson similar” to the very, very rebuttal argument. up again in his and bringing it with it” instead, the Court focused on the reasons the prosecutor professed focused on the reasons the prosecutor instead, the Court compari- jurors and engaged in a side-by-side for striking the black who had not been struck. son with white jurors opinion did not address the O.J. Simpson issue directly. issue directly. the O.J. Simpson did not address opinion of the could look to the broader circumstances provided that courts trial the Supreme Court, and scholars have argued that this is the para- the Supreme Court, and scholars to follow. Courts should not digm that lower courts are expected reasons and instead quickly accept the proposed nondiscriminatory those reasons are legitimate and must probe the facts to ensure that nonpretextual. on patterns and practices that indicated discrimination). cal Trend Towards Increased Scrutiny of Peremptory Challenges cal Trend Towards Increased Scrutiny of Peremptory 256 so. to do NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 72 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 134 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 134 35559-nys_69-1 35559-nys_69-1 Sheet No. 135 Side A 10/20/2014 11:50:05 Yet per- 572 has not Arlington opinion 573 570 Castaneda Castaneda , which invalidated Cruikshank IV. Civil Rights Cases , it even refused to accept an exception- and continued steadily throughout the and continued steadily throughout has mystified generations of constitu- has mystified generations note 325, at 1414. supra Strauder McCleskey , has proved insurmountable: plaintiffs effectively , has proved insurmountable: plaintiffs , in conjunction with the fair cross-section jurispru- , in conjunction with the fair cross-section Part III.A. 571 , 545 U.S. at 253. Feeney THE JURY JURISPRUDENCE IS DIFFERENT JURISPRUDENCE THE JURY at 1417–18. Plessy v. Ferguson Id. See supra Miller-El contains some of the most forceful indictments of discrimi- the most forceful indictments contains some of Castaneda and As shown above, the jury jurisprudence operates in a different jurisprudence above, the jury As shown The standard employed in these cases is unique. The standard employed in these In every other area of Equal Protection law, if an action is In every other area of Equal Protection 572. 573. 570. 571. Schmidt, Jr., 1930s up until, and during, the Civil Rights movement. 1930s up until, and during, the cases protecting the rights of blacks to serve on juries came before the rights of blacks to serve on cases protecting and after universe from the rest of Equal Protection law. The Court has pro- rest of Equal Protection law. The universe from the when every other discrimination even in eras tected the jury against to discrimination. took a hands-off approach civil rights decision Strauder Reports until the be found in the United States nation that can Warren Court. only four years earlier and the only four years earlier years later. Rights Act of 1975, only three much of the Civil tional scholars: it is framed by the egregious tional scholars: mitted a defendant to show through disparate impact alone that an mitted a defendant to show through While jury pool cases have Equal Protection violation occurred. Amendment, since been shifted over to the Sixth area of Equal Protection law, the been overruled. In every other disparities as proof of intentional Court refuses to accept statistical discrimination; in analysis proving that race of the ally exhaustive multiple regression someone was sentenced to victim was a causal factor in whether death. in the jury pool—large-scaledence, ensures that systemic exclusion jury discrimination—can be readily challenged. a racial group, the Court re- facially neutral but disparately impacts That standard, after quires a separate showing of intent. Heights They are required to prove some- need to present a smoking gun. Conversely, intent need not thing beyond actions and inferences. ence of racially discriminatory intent and urges a more critical analysis of the race- ence of racially discriminatory intent and neutral explanations proffered by lawyers using peremptory challenges.”). 2013] analy- juror-specific to a fact-intensive, in addition consider: should to include comparisons these look “beyond courts should sis, THE JURY EXCEPTION INTRODUCING jury selection.” during the patterns of practice broader 257 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 73 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 135 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 135 35559-nys_69-1 35559-nys_69-1 Sheet No. 135 Side B 10/20/2014 11:50:05 it seems McCleskey v. but bears no Johnson 574 to support their Castaneda But the Court rejected this , which addresses trial-level addresses , which challenges. Historically, and 575 and Batson V. Batson note 238, at *26–27. Batson supra challenges. challenges. Part II.B.1–2. Batson McCleskey’s Brief, The Court lifted the jury jurisprudence out of the rest of The Court lifted the jury jurisprudence See supra See 576 IS THE JURY DIFFERENT?: THREE EXPLANATIONS IS THE JURY DIFFERENT?: THREE . The petitioners cited Other Equal Protection litigants did seek to rely on the jury Other Equal Protection litigants The impossible barriers erected against other Equal Protection erected against other Equal The impossible barriers There are various possible explanations for why juries have re- There are various possible explanations 574. 575. 576. McCleskey v. Kemp, 481 U.S. 279, 293–96 (1987). FOR THE COURT’S REMARKABLE JURY JURISPRUDENCE FOR THE COURT’S REMARKABLE with regard to both large-scale and small-scale discrimination, the with regard to both large-scale and jurisprudence for juries. Court has established an alternate jurisprudence to bolster their claims—most notably in Kemp facie case and so the burden claim that they had met the prima should now shift to the state to rebut. similarity to other areas of Fourteenth Amendment law. areas of Fourteenth Amendment similarity to other cases. Statistics can alone be proof plaintiffs do not apply to the jury not be smoked out. Principles of discrimination; elusive intent need manipulated so that all defend- of standing and state action were ants and all litigants can raise possibility flat-out. It affirmed that the jury cases operated under a possibility flat-out. It affirmed that standard was to be restricted to different standard, but that that juries. ceived such solicitous treatment from the Supreme Court. There is ceived such solicitous treatment from the Supreme Court. There Equal Protection and confirmed, implicitly, that juries are different. Equal Protection and confirmed, jury discrimination, established a burden-shifting test that puts test that burden-shifting a established discrimination, jury in courts. While imperfect prosecutors and the burden on much of that a cog- only point out now need in theory a defendant practice, of the second two steps excluded. The group has been nizable strikes sys- the peremptory inference that case are the prima facie as that the circumstances and a space for discrimination tem creates While a claim’s to the inference of discrimination. a whole give rise is able to tell a ride on whether the defense lawyer success will likely of discriminatory inferences, after compelling story 258 for be proven NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 74 15-OCT-14 10:56 that judges ought always to infer discrimination when a pattern of always to infer discrimination that judges ought the prosecutor to The burden then shifts to racial strikes occurs. scrutinize in depth reason, and courts are to proffer a race-neutral there are other holds water and whether whether the explanation framework is simi- point to discrimination. This circumstances that in voting rights and Title VII cases, lar to that used 35559-nys_69-1 Sheet No. 135 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 135 35559-nys_69-1 35559-nys_69-1 Sheet No. 136 Side A 10/20/2014 11:50:05 1131, L.J. ALE Y , 100 A Brief History of Criminal Jury in Alexander Hamilton wrote in Alexander Hamilton 577 . 867, 871 (1994). (Alexander Hamilton). EV 579 . 83 The Bill of Rights as a Constitution O . L. R N HI 578 C spoke eloquently of the importance of juries: spoke eloquently of the importance 580 , Miller-El v. Dretke, 545 U.S. 231, 272–73 con- (2005) (Breyer, J., EDERALIST , 61 U. F HE See, e.g. T Akhil Amar argues that “juries were at the heart of the Bill of Akhil Amar argues that “juries were heavily cited by the Court Alexis de Tocqueville, who has been At the Constitutional Convention, protecting the right to a jury Convention, protecting the At the Constitutional 580. 578. 579. Akhil Reed Amar, 577. Albert W. Alschuler & Andrew G. Deiss, The friends and adversaries of the plan of the convention, if adversaries of the plan of the The friends and at least in the value they set they agree in nothing else, concur is any difference between upon the trial by jury; or if there regard it as a valuable safe- them it consists in this: the former it as the very palladium of guard to liberty; the latter represent free government. The jury . . . invests each citizen with a kind of magistracy; it The jury . . . invests each citizen which they are bound to dis- makes them all feel the duties part which they take in the charge towards society; and the turn their attention to affairs Government. By obliging men to The Federalist 83, 1183, 1190 (1991). Juries are featured in the Fifth, Sixth, and Seventh Amend- ments, and Amar argues that their absence affected the First, Fourth, and Eighth. Id. curring); Powers v. Ohio, 499 U.S. 400, 406–07 (1991). Rights” and points out that juries were guaranteed in three amend- Rights” and points out that juries influenced the judge-restricting ments and their absence strongly provisions in three more. in its jury cases, the United States 2013] Juries not new. juries is for respect This special theory: the historical of de- be a mainstay to Fathers the Founding by considered were THE JURY EXCEPTION INTRODUCING use- and executive power, on judicial essential as a check mocracy, to a and indispensible citizens, means of educating ful as a explana- more cynical There are also government. participative egregious with some truly confronted Court has been tions. The impli- many of them have the years, but claims over discrimination 259 exceedingly dif- of people and would have been cated large groups thus far easier to claims are more discrete, and ficult to police. Jury cases all takes the discrimination alleged in jury decide. Finally, the Court just of the judge’s eyes. In this view, place right in front own house clean. wants to keep its between the most consistent point of agreement was perhaps the Anti-Federalists. Federalists and \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 75 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 136 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 136 35559-nys_69-1 35559-nys_69-1 Sheet No. 136 Side B 10/20/2014 11:50:05 . UP 583 587 S 584 Court , 1967 Strauder 266 (New York, G. Dear- . 2409 (2003). Tokaji argues EV MERICA , *342, *349. A 581 . L. R First Amendment Equal Protection: On language the ICH M 586 , 101 EMOCRACY IN OMMENTARIES 585 , D , C at 2500. The Supreme Court as Republican Schoolmaster , the Court went so far as to say that racial , the Court went so far as to say Id. LACKSTONE OCQUEVILLE B T ILLIAM Ralph Lerner, W LEXIS DE See A Smith v. Texas The jury was seen as a bastion of democratic governance— of democratic was seen as a bastion The jury . 127, 132, 178 (discussing the early role of judges as educators and the . 127, 132, 178 (discussing the early role EV The jury was seen as a way to protect ordinary individuals from The jury was seen as a way to protect In Juries were seen as “free schools,” and judges often would stray often would schools,” and judges seen as “free Juries were 582 582. 584. Taylor v. Louisiana, 419 U.S. 522, 530–31 Thiel v. S. Pac. (1975) (citing 585. Smith v. Texas, 311 U.S. 128, 130 (1940). 586. 2 587. Strauder v. West Virginia, 100 U.S. 303, 308–09 (1880). 583. of First Amendment principles For an excellent and original application 581. which are not exclusively their own, it rubs off that individual off that it rubs own, their exclusively are not which society. rust of is the which egotism Community participation in the administration of the criminal in the administration of Community participation heri- not only consistent with our democratic law, moreover, is the fairness of to public confidence in tage but is also critical to only spe- system. Restricting jury service the criminal justice playing major identifiable segments cial groups or excluding the constitu- cannot be squared with roles in the community a jury jury trial. Trial by jury presupposes tional concept of community as broadly representative of the drawn from a pool . . . [T]he broad representa- well as impartial in a specific case be maintained, partly as assur- tive character of the jury should partly because sharing in ance of a diffused impartiality and phase of civic responsibility. the administration of justice is a . R T an experience of democracy in action matched only by voting. only by in action matched of democracy an experience quoted in harnessing its arguments against jury discrimination. quoted in harnessing its arguments C born & Co. 1838). that the Supreme Court sees jury service as “a forum for political participation on that the Supreme Court sees jury service par with the ballot box.” Co., 328 U.S. 217, 227 (Frankfurter, J., dissenting)) (alteration in original). the arbitrary power of government. Blackstone called the jury “the the arbitrary power of government. grand bulwark of his liberties,” from the case at hand and educate the jurors about civic princi- jurors about civic and educate the case at hand from the ples. Discretion, Inequality, and Participation tendency of early Supreme Court justices to inculcate civic virtues). tendency of early Supreme Court justices to jury discrimination, see Daniel P. Tokaji, discrimination in jury service not only violates the Constitution, discrimination in jury service not of a democratic society and a “but is at war with our basic concepts representative government.” 260 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 discrimina- the jury precepts in deciding drew on these The Court essential part of in the jury was such an tion cases. If participation no discrimination could be tolerated. citizenship, then \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 76 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 136 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 136 35559-nys_69-1 35559-nys_69-1 Sheet No. 137 Side A 10/20/2014 11:50:05 591 In 588 592 : Representation-Reinforce- Batson . 1807, 1815 (1993). EV , 130 S. Ct. 1382 (2010).” . L. R UL T omitted) (on file with author). Kreimer further , 67 Why the Court Loves note 312, 927–28 statements by Vermont Re- (quoting Berghuis v. Smith 589 supra , 481 U.S. at 314. For a simple reason: the courtroom is far easier to police. the courtroom is far easier For a simple reason: the Court held that “it is the jury that is a criminal defen- the jury that is held that “it is the Court presented the Court with a vision of reality so appalling with a vision of reality so presented the Court McCleskey 590 Plus, there are strong precedents and rhapsodic language to Plus, there are strong precedents A more cynical view would propose other factors that explain view would propose other factors A more cynical 591. 592.W. Gemmill Professor of Law, U. E-mail from Seth Kreimer, Kenneth 588. Forman, Jr., 589. (1987) (citing Strauder v. West McCleskey v. Kemp, 481 U.S. 279, 310 590. Susan N. Herman, McCleskey race or liberty against of life and ‘protection dant’s fundamental ” color prejudice.’ clarified that this was in part because “[j]ury jurisprudence is heir to the ‘fair cross section’ requirement, which (under some circumstances) imposes an outcome- based rule rooted in the notion of a ‘jury of peers’ directly from the Sixth Amend- ment. See most recently Penn. Law School, to author (Apr. 15, 2012, 01:45PM EST) (internal citation to Penn. Law School, to author (Apr. 15, Edmonson v. Leesville Concrete Co. McCleskey Court saw that Mc- ran in the other direction. The that five justices taken as true, “throw[Cleskey’s claims, ] in serious question the justice system.” underlie our entire criminal principles that draw upon. the jury jurisprudence. As Susan Herman points out, the Court re- As Susan Herman points the jury jurisprudence. jury cases in re- “virtually exclusive[ly]” on the lied heavily and criminal justice to racial discrimination in the sponse to challenges system. publican Senator George Edmunds). Virginia, 100 U.S. 303, 309 (1880)). ment, Colorblindness, and the Jury There was no bright line to draw; everyone was implicated, from the line to draw; everyone was implicated, There was no bright of power was safe to the jurors. No realm police, to the prosecutors, to be enormous in both scope and any reform effort would have by the thirty years spent trying and depth. In 1987, perhaps shaken the Court had no interest in assum- to eliminate school segregation, comparison, are straightforward. ing a new burden. Jury claims, in monitored. And so “[j]ustices They are also narrow and more easily slope problems are more com- who are concerned about slippery tests in a narrowly delim- fortable about deploying burden-shifting the control and expertise of ited area that is peculiarly within baseline of representa- courts, and the availability of a presumptive argument stronger.” tiveness makes the burden-shifting 2013] role a key also played jury an unbiased by provided protection The One of 1875. Act Civil Rights of the passage over the debates in the THE JURY EXCEPTION INTRODUCING defend- for black protections that constitutional senator concluded to sit on juries. without the right mean nothing ants would 261 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 77 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 137 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 137 35559-nys_69-1 35559-nys_69-1 Sheet No. 137 Side B 10/20/2014 11:50:05 , the Court points di- line of cases acts as a lightning acts as of cases line Edmonson In Batson 595 In her view: 593 note 325, at 1420. note 590, at 1813. supra supra 594 at 1813–14. is Justice Powell’s attempt to provide the Court with a to provide the Powell’s attempt is Justice Id. A challenge to jury discrimination is already, conveniently, part discrimination is already, conveniently, A challenge to jury set of actors involved is dis- With regard to state action, the all is that the justices reject Perhaps the most cynical view of Herman argues that “the that argues Herman 593. Herman, 594. 595. Schmidt, Jr., Batson The to racism. based response modest, procedurally judicially pro- with the Court’s consistent Justice Powell offers, solution is to combat Scottsboro convictions, responses to the cedural might be the an opportunity for those who racism by providing the decision- to be represented in subjects of discrimination Because the jury is the seat of representation making process. on re- justice system, the Court concentrates in the criminal Ideally, once based obstacles to jury service. moving any racially defer to the courts may comfortably juries are representative no longer suf- the criminal justice system will jury verdicts, and fer taint.” rectly to this in two distinct ways. First, it notes what it terms a rectly to this in two distinct ways. could also be termed the embar- principle of judicial integrity, but rassment factor: of a judicial process. The lawyers have been hired, the claims have The lawyers have been hired, of a judicial process. have been ruled on. There are been pleaded, and pretrial motions stake in the outcome, to whom in- parties in the courtroom with a a jury discrimination claim is just jury can accrue. In this context, appellate issue to raise. The mar- one more objection to make and the scene is already being played ginal systemic costs are lower and on the right stage. prosecutor; the defense attorney; crete: the jury commissioner; the and a specific person to one, or perhaps a handful, of individuals; traced, and perhaps quietly fired whom illegitimate actions can be enough. The jury commissioner or ousted if the situation gets bad not usually the most recognizable and the assistant prosecutor are be sacrificed if need be. faces in politics; their fates can because it takes place right in discrimination in the courtroom that more than discrimination on their laps. Schmidt points out this is the kind of discrimina- railroad cars or in the voting booths; tion judges can appreciate. rod for all of the Court’s unexpressed concerns about racism in the racism about concerns unexpressed the Court’s for all of rod justice system.” criminal 262 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:185 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 78 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 137 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 137 35559-nys_69-1 35559-nys_69-1 Sheet No. 138 Side A 10/20/2014 11:50:05 but for the moment Sec- With their esteemed col- With their esteemed 599 597 intent doctrine has proven an insuper- CONCLUSION Davis at 630–31. And so the jury is returned to its origins, as a “free school” is returned to its origins, as a “free And so the jury Id. Id. 596 598 Throughout all of this, the jury jurisprudence has remained Throughout all of this, the jury The Supreme Court’s Equal Protection jurisprudence has had The Supreme Court’s Equal Protection And second, the Court argues that the elimination of discrimi- Court argues that the elimination And second, the 596. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628 (1991). 597. 598. 599. Shelby County v. Holder, 133 S. Ct. 2612, 2631 (2013). [T]he injury caused by the discrimination is made more severe made more is by the discrimination caused injury [T]he the court- within to occur it permits government the because con- expression of the a more real Few places are house itself. than a courtroom, the government authority of stitutional the govern- Within the courtroom, law itself unfolds. where the who rights of those determine the its laws to ment invokes their litigants press of the public, it. In full view stand before verdicts, and give testimony, juries render cases, witnesses justice is the utmost care to ensure that judges act with done. tion 2 remains intact. received protection even when strong and unique. Blacks on juries or public transit. they received none in public accommodations to the virtues of jury service, and The Court wrote forceful paeans leagues at the helm of such civil tutelage, “the issue can be ex- of such civil tutelage, “the leagues at the helm for the dignity of way that consists with respect plored in a rational on ancestry or skin the use of classifications based persons, without color.” able barrier for Equal Protection claims; it has successfully pre- able barrier for Equal Protection receiving judicial protection since vented all minority litigants from if it comes at all, comes its creation in the late 1970s. Protection, VII and the VRA. Section 4(b) of largely from statutes, such as Title the VRA may now be unconstitutional, a rocky history. The early barriers to protection came from the state a rocky history. The early barriers seems to have been subconstitu- action doctrine, but that doctrine tiers of scrutiny: a more generous tionally retrofitted to reflect the and a sterner eye for everyone interpretation for racial minorities else. More recently the where the end of racial discrimination can be taught and where the end of racial discrimination propagated. nation is essential in order to progress as a society and that “the in order to progress as a society nation is essential place to of the courtroom makes it an appropriate quiet rationality fears or hostility.” confront race-based 2013] THE JURY EXCEPTION INTRODUCING 263 \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 79 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 138 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 138 35559-nys_69-1 35559-nys_69-1 Sheet No. 138 Side B 10/20/2014 11:50:05 The jury jurisprudence was immune from the blows of state the blows of was immune from jurisprudence The jury and political juries are core to democracy Whether because 264 the through all government, of democratic the heart it lies at how NYU the 20th—albeit most of through and Century of the 19th end with ANNUAL SURVEY OFCrow and height of Jim to 1935, the pause from 1908 a sober AMERICAN LAWlynchings. [Vol. 69:185 judicial the heart of the position at to its sheltered action thanks the Court to the barriers immune And it then proved branch. litigation: claim- of other areas of discrimination tossed in the way and did disparities to prove discrimination, ants could use statistical Court provided an invidious intent. Instead, the not need to prove has made eas- test, which it progressively alternative burden-shifting the last twenty-five years. ier to satisfy over watching discrimi- because courts cannot stomach participation or Protection ju- on their own turf, this area of Equal nation play out area has done Whether action in this risprudence is different. courtroom, how- racial equality outside the anything to advance for another day. ever, is a question \\jciprod01\productn\N\NYS\69-1\NYS109.txt unknown Seq: 80 15-OCT-14 10:56 35559-nys_69-1 Sheet No. 138 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 138 35559-nys_69-1 35559-nys_69-1 Sheet No. 139 Side A 10/20/2014 11:50:05 R R R R R R R R R R R R R R R R R R R R R ... 299 .... 267 ...... 285 ...... 267 Zauderer ...... 301 ...... 291 to the Graphic ...... 301 Test Discount Tobacco ...... 295 ...... 285 ...... 275 ...... 281 and 265 ...... 278 ...... 288 Central Hudson ...... 300 ...... 274 Central Hudson and Apply to the Graphic Warning ...... 300 Central Hudson ...... 270 ...... 290 ANDREW M. OSARCHUK* R.J. REYNOLDS V. FDA V. R.J. REYNOLDS SHOULD OVERTURN SHOULD ...... 291 Zauderer Zauderer a. The b. Identifying the Government’s Interest . . . 302 Scrutiny ...... 266 AND DOCTRINAL CLARITY: AND DOCTRINAL WHY THE SUPREME COURT THE SUPREME WHY 1. Analysis Under Rational Basis Review or Strict 2. Analysis Under 1. The “Deception” Requirement 2. Fact Versus Opinion Rule? Commonwealth Brands R.J. Reynolds v. FDA Various Standards Control Act Commercial Speech A. B. A. Does B. The Appropriate Standard Outside of C. Under Analysis of the Graphic Warning Rule A. Tobacco Labels Historical Efforts to Regulate B. and Tobacco The Family Smoking Prevention A. Speech Commercial B. Compelled Speech C. and Cases Distinguishing Between Compelled Warning Rule the Graphic Warning Rule Graphic Warning Rule Graphic Warning AN ARGUMENT FOR PUBLIC HEALTH PUBLIC FOR ARGUMENT AN I. Label Legislation The Evolution of Tobacco * Editor 2012–13, Managing N.Y.U. Annual Survey of American Law. J.D. II. the Applicable to Review of Certain Legal Standards IV. Applying III. the FSPTCA and Divergent Results in Litigation of Introduction 2013, N.Y.U. School of Law. The author thanks Professor Robert Rabin, Meghan Conaton, and the editors of the N.Y.U. Annual Survey of American Law. \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 1 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 139 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 139 35559-nys_69-1 35559-nys_69-1 Sheet No. 139 Side B 10/20/2014 11:50:05 R R R R 2 , the Supreme Court R.J. Reynolds Tobacco Co. , has disrupted the D.C. Circuit R.J. Reynolds ...... 304 Those who support this regulation 1 INTRODUCTION R.J. Reynolds By reviewing Requirements 3 c. Advancement” “Direct “Fit” and The Part II...... 307 ...... 306 ...... 310 at 1221–22. R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d. 1205, 1216 (D.C. Cir. 2012) R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d. , for the District of Columbia Circuit the Court of Appeals See Id. See infra In 2011, the U.S. Food and Drug Administration (FDA) en- Food and Drug Administration In 2011, the U.S. With its decision in 1. 2. 3. contend that it represents an admirable stand, perhaps overdue, contend that it represents an admirable the public health crisis created against tobacco manufacturers and including some tobacco manufac- by tobacco products. But others, offend the First Amendment by turers, argue that the regulations to communicate a government- compelling tobacco manufacturers 2012, in mandated message. On August 24, v. FDA set aside the FDA’s Rule on the agreed with the latter position and rights of free speech. basis that it violated tobacco manufacturers’ acted regulations (Graphic Warning Rule or Rule) that would re- (Graphic Warning Rule or Rule) acted regulations packages one to include on cigarette quire tobacco manufacturers FDA had been of graphic warning labels. The of a rotating set granted authority—and was required—to indeed prescribe graphic and Tobacco the Family Smoking Prevention warning labels by Obama signed or the Act), which President Control Act (FSPTCA which would 22, 2009. The graphic warning labels, into law on June use, an image re- warning regarding cigarette incorporate a textual a smoking cessa- warning, and the number for lated to the textual a minimum to prevent underage tion help line, were intended at the labels were an inappropriate smoking, but some claimed that and dissuade them from attempt to shock potential consumers purchasing a legal product. would have an opportunity not only to reinstate an important regu- would have an opportunity not only crucial public health legislation without paying due deference to crucial public health legislation theCongress. In reaching its decision, court applied First Amend- interpreted among the ment doctrines that are inconsistently Courts of Appeals. (noting that the FDA “tacitly admits” that the warning labels are “intended to (noting that the FDA “tacitly admits” that the warning labels are “intended evoke an emotional response, or, at most, shock the viewer . . . .”). The FDA warn- ing labels are reproduced in Appendix A. 266 NYU ANNUAL SURVEY OFConclusion AMERICAN LAW A Appendix [Vol. 69:265 B Appendix \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 2 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 139 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 139 35559-nys_69-1 35559-nys_69-1 Sheet No. 140 Side A 10/20/2014 11:50:05 , ER- R.J. R.J. S EPORT OF EALTH : R H Central Hudson EALTH UBLIC H P Zauderer v. Office of Zauderer v. Office or Prior to the Great De- 5 instead of applying strict instead of applying MOKING AND Who’s Afraid of Commercial Speech? S , ENERAL OF THE implicates important and controver- G I. ELFARE URGEON S R.J. Reynolds ., & W , Alex Kozinski, DUC Part I surveys historical and recent efforts to and recent efforts historical Part I surveys 4 , E . See, e.g. EALTH H T OMMITTEE TO THE ’ 627, 652 (1990) (“The commercial speech doctrine is the stepchild 627, 652 (1990) (“The commercial speech A. Historical Efforts to Regulate Tobacco Labels C EP . R.J. Reynolds EV decision should be overturned on the basis that the be overturned on the basis that decision should court should have analyzed the Rule under court should have VICE THE U.S D DVISORY . L. R The FSPTCA is the boldest legislation addressing tobacco la- The FSPTCA is the boldest legislation one’s health is not new. Con- The idea that smoking is bad for This Note argues that the Supreme Court should review and should review Supreme Court argues that the This Note THE EVOLUTION OF TOBACCO LABEL LEGISLATION THE EVOLUTION OF TOBACCO 5. 4. of this Note, it is worth noting Although the topic is beyond the ambit A 5 (1964). A V pression, “many people considered cigarette smoking to be an un- pression, “many people considered bels to date. While the textual component of the graphic warning bels to date. While the textual component efforts that gave rise to the labels is consistent with the legislative inclusion of full-color graphics on Surgeon General’s warnings, the previous efforts to warn consumers the labels strongly diverges from of the effects of tobacco. back at least to the early six- troversy over this topic can be traced correlation between smoking and teenth century, and a possible as 1900. lung cancer was identified as early scrutiny. Disciplinary Counsel of Supreme Court of Ohio Disciplinary Counsel Gas & Electric Corp. v. Public Service Commission Gas & Electric Corp. Reynolds Reynolds regulate tobacco labels and summarizes the First Amendment doc- the First Amendment summarizes tobacco labels and regulate Part II Warning Rule. of the Graphic to review trines applicable III ana- and the Rule. Part the FSPTCA challenging details litigation the FSPTCA and of relevant legal standards to lyzes the application and the Graphic Rule, argues that the Act the Graphic Warning that the constitutionally sound, and contends Warning Rule are 76 of first amendment [sic] jurisprudence: Liberals don’t much like commercial speech because it’s commercial; conservatives mistrust it because it’s speech.”). briefly that a Supreme Court ruling on the Graphic Warning Rule would present briefly that a Supreme Court ruling on interesting ideological questions. sial concepts, such as freedom of speech, corporate personhood, and deference to sial concepts, such as freedom of speech, stance toward commercial speech is administrative agencies. The Supreme Court’s particularly interesting. 2013] First Amend- of the the application to clarify but also effort, latory CLARITY DOCTRINAL AND HEALTH PUBLIC speech. and commercial speech of compelled doctrines ment overturn 267 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 3 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 140 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 140 35559-nys_69-1 35559-nys_69-1 Sheet No. 140 Side B 10/20/2014 11:50:05 R R MONG A SE ISTORY OF U H Four years Early in the Early in 13 8 OBACCO ULTURAL T note 5, at 26. : A C 163 (1994). supra , some of these advertise- some of REVENTING 7 Stanford Research into the Impact of P , . ENERAL IGARETTES ELFARE 10 G But before the FTC’s rule took But before the ERVS C 11 S AND ., & W This Act modestly required tobacco , URGEON 12 UMAN EX DUC S , E , S & H This warning was in place until the mid- This warning was in place until , http://tobacco.stanford.edu/tobacco_main/slogans OAP 14 note 6, at 148. S EALTH Stanford Sch. of Med., , EALTH 148 (2d ed. 2012). H by 1955, 68% of adult American men and 32.4% men and 68% of adult American by 1955, Beginning in the 1910s, advertisers sought to sought 1910s, advertisers in the Beginning H T 9 6 ’ supra EPORT OF THE , EP IVULKA TOF ’ see also S , A R EP at 150 (depicting an advertisement linking cigarette smoking to a at 150 (depicting an advertisement linking IVULKA U.S D DVERTISING S A EOPLE U.S D See Id. Id. Id. ULIANN See See id. Id. J P The prevalence of smoking increased, but so did evidence of of smoking increased, but so did The prevalence 9. 8. 7. 13. 14. 10. 11. 12. 6. MERICAN OUNG later, Congress strengthened the wording to “Warning: The Sur- later, Congress strengthened the Cigarette Smoking Is Danger- geon General Has Determined That ous To Your Health.” twentieth century, the market’s understanding of cigarettes as un- of cigarettes understanding century, the market’s twentieth healthy changed; ments even extolled the health benefits of smoking. health benefits extolled the ments even effect, Congress preempted it with the Federal Cigarette Labeling preempted it with the Federal effect, Congress and Advertising Act of 1965. manufacturers to include warning labels reading, “Caution: Ciga- manufacturers to include warning To Your Health.” rette Smoking May Be Hazardous eighties; the next approach, codified in the Comprehensive Smok- eighties; the next approach, codified one of a rotating series of Sur- ing Education Act of 1984, required displayed: geon General’s Warnings to be change that impression and aggressively sought to market cigarettes to market sought aggressively and impression that change women; markets, including to broader smoked. American women of adult slender figure); Tobacco Advertising, Slogans various tobacco advertising slogans, in- .php (last visited Nov. 1, 2012) (collecting than any other cigarette,” “For digestions cluding, “More doctors smoke Camels approaches such a degree of health [sic] sake, smoke Camels,” “No other cigarette a cold? Switch to Kools,” “Just what the protection and taste satisfaction,” “Got health protection”). doctor ordered,” and “Gives double-barreled the myriad health risks associated with tobacco use. The first fed- risks associated with tobacco the myriad health Trade Commis- remedial action was the Federal eral entity to take were FTC found that cigarette advertisements sion (FTC). The known health because they failed to disclose “false and deceptive tobacco manufac- a rule that required each hazards” and published is dangerous prominently that cigarette smoking turer to “disclose on all contain- from cancer and other disease” and may cause death were sold. ers in which cigarettes Y A 268 habit.” desirable NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:265 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 4 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 140 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 140 35559-nys_69-1 35559-nys_69-1 Sheet No. 141 Side A 10/20/2014 11:50:05 R . L. In note 22 ENERAL ENN OBACCO T G T supra ., , 59 ERVS URGEON S S REVENTING UMAN ., P The FDA argued that The FDA argued ERVS & H 18 S EALTH EPORT OF THE UMAN H , A R TOF & H ’ Adequacy of Cigarette Package Warnings: An Adequacy of Cigarette Package Warnings: In 2000, the Supreme Court ruled EP 19 DULTS EALTH It is worth noting that the 1965, 1969, It is worth noting A 15 U.S D 16 H By 1996, nineteen state Attorneys General By 1996, nineteen state Attorneys 21 OUNG TOF ’ see also Y EP D , U.S. at 126. OUTH AND 20 17 Y FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125–26 FDA v. Brown & Williamson Tobacco Bethany K. Dumas, Essay, See See, e.g. See See id. Id. Id. MONG At approximately the same time that the FDA attempted to reg- At approximately the same time This warning requirement remains in effect, although its effi- remains in effect, although This warning requirement failed to controversially tried and, ultimately, In 1996, the FDA 18. 15. Act of 1984, Pub. L. No. 98-474, 99 Comprehensive Smoking Education 16. 17. 19. 21. Star Scientific, Inc. v. Beales, 278 F.3d 339, 344 (4th Cir. 2002). 22. 20. 261, 272–74 (1992); A . SURGEON GENERAL’S WARNING: Smoking Causes Lung Causes Smoking WARNING: GENERAL’S SURGEON May Complicate And Emphysema, Disease, Heart Cancer, Pregnancy. Now Smoking WARNING: Quitting GENERAL’S SURGEON Risks to Your Health. Serious Greatly Reduces By Pregnant WARNING: Smoking GENERAL’S SURGEON Low Birth, and Injury, Premature May Result in Fetal Women Birth Weight. Smoke Con- WARNING: Cigarette SURGEON GENERAL’S tains Carbon Monoxide. SE EV cigarettes were a “device” that delivered nicotine to the body, and cigarettes were a “device” that delivered to FDA jurisdiction under the that cigarettes therefore were subject Food, Drug, and Cosmetic Act. that Congress had precluded the FDA from asserting this that Congress had precluded jurisdiction. and 1984 warnings required by Congress were all weaker than warn- required by Congress were all and 1984 warnings agencies had contemporaneously ings that administrative proposed. 11, at 163. had sued tobacco manufacturers for “reimbursement for health- had sued tobacco manufacturers states on behalf of citizens suffer- care expenditures made by those several more sued by 1997. ing from tobacco-related diseases”; R ulate tobacco, the Attorneys General of various states sued the ma- ulate tobacco, the Attorneys General jor tobacco companies. cacy has been questioned. over the tobacco industry. assert jurisdiction Stat. 2200. Analysis of the Adequacy of Federally Mandated Cigarette Package Warnings Analysis of the Adequacy of Federally Mandated U 715–16 (2012). 2013] CLARITY DOCTRINAL AND HEALTH PUBLIC 269 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 5 15-OCT-14 11:04 (2000) (“In 1996, the Food and Drug Administration (FDA), after having expressly (2000) (“In 1996, the Food and Drug Administration inception, asserted jurisdiction to regulate disavowed any such authority since its tobacco products.”). 35559-nys_69-1 Sheet No. 141 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 141 35559-nys_69-1 35559-nys_69-1 Sheet No. 141 Side B 10/20/2014 11:50:05 27 28 In H.R. 24 See 26 . It should be Is the Tobacco Settle- The conduct re- 25 29 748, 748 (2006). THICS . & E ED The MSA set forth the agreement between the agreement forth MSA set The , 278 F.3d at 345. FDA v. Brown & Williamson Tobacco 23 J.L. M , 34 at § 15 U.S.C. § 201 (codified at 1333 (2012)). 111-58(I), at 3 (2009). Id. See Star Scientific Id. Id. . O B. Tobacco Control Act Family Smoking Prevention and The Congressional findings supporting the FSPTCA included that Congressional findings supporting As this brief history shows, various stakeholders have attempted shows, various stakeholders have As this brief history Congressional tobacco regu- Against this backdrop of periodic 26. 27. Pub. L. No. 111-31, 123 Stat. 1776 (2009). 28. 25. 29. Congress gave the FDA the ability to regulate tobacco products “as appro- 23. 24. P. Forman, Rahul Rajkumar, Cary P. Gross & Howard . N EP addition to significant ongoing payments, the MSA provided for re- the MSA provided payments, to significant ongoing addition of in- on certain types to children, a ban on “marketing strictions Legacy Foundation, for the American and funding dustry lobbying, programs national by the MSA to develop created an organization and assistance, through technical training that address smoking and community outreach.” counter-marketing strictions include significant restrictions on advertising. strictions include R forty-six states and America’s four largest tobacco companies. four largest states and America’s forty-six priate for the protection of the public health,” as opposed to applying the default FDA standard of regulating products to be “safe” or “safe and effective.” “tobacco advertising and marketing contributed significantly to the “tobacco advertising and marketing products by adolescents . . . use of nicotine-containing tobacco advertising and marketing of [and,] because past efforts to restrict to curb tobacco use by ado- tobacco products had failed adequately on the sale, promotion, and lescents, comprehensive restrictions to influence the marketing and labeling of cigarettes, with varied marketing and labeling of cigarettes, to influence the requirements Prior to 2009, the warning degrees of success. decades without Congress had been in effect for promulgated by change. Smoking Prevention and To- lation, Congress passed the Family into law on June 22, 2009. bacco Control Act, which was signed ment Constitutional? Essentially, the FSPTCA removed the barriers to regulation encoun- Essentially, the FSPTCA removed tered by the FDA in granted to the FDA with regard noted, however, that the authority the authority generally granted in to tobacco products differs from the Food, Drug, and Cosmetic Act. The Act granted the FDA authority to regulate the tobacco industry The Act granted the FDA authority warning label requirement. in certain ways, including a graphic 270 Settlement the Master was reached: settlement a successful 1998, NYU(MSA). Agreement ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:265 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 6 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 141 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 141 35559-nys_69-1 35559-nys_69-1 Sheet No. 142 Side A 10/20/2014 11:50:05 , IMES ANCER . C M In addi- N.Y. T A and Pres- 36 , , 32 http://www.whitehouse Authority to imple- to Authority . 2d 465 (2011). 30 ED available at A.L.R. F , 53 Validity, Construction, and Application of Family Unsurprisingly, many tobacco compa- many tobacco Unsurprisingly, Tobacco Regulation Bill Becomes Law 33 http://www.nytimes.com/2009/06/12/business/ 34 Senate Approves Tight Regulation Over Cigarettes available at 35 Rebecca V. Snowden, 31 Id. See Id. (June 22, 2009), http://www.cancer.org/cancer/news/tobacco-regulation- The FSPTCA requires the warnings to cover the top half of The FSPTCA requires the warnings The American Cancer Society praised the FSPTCA, praised the Cancer Society The American Note are dis- that are the subject of this The graphic warnings 31. 32. 34. Duff Wilson, 33. of the Family Smoking Preven- Remarks by the President at the Signing 30. Daniel A. Klein, Annotation, 35. Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 36. Y ’ WARNING: Cigarettes are addictive. WARNING: Cigarettes smoke can harm your children. WARNING: Tobacco cause fatal lung disease. WARNING: Cigarettes cause cancer. WARNING: Cigarettes cause strokes and heart disease. WARNING: Cigarettes your baby. during pregnancy can harm WARNING: Smoking WARNING: Smoking can kill you. fatal lung disease in WARNING: Tobacco smoke causes nonsmokers. greatly reduces serious risks WARNING: Quitting smoking now to your health. OC tion, the Act provides that, within twenty-four months of its enact- tion, the Act provides that, within regulations that require color ment date, the FDA “shall issue ident Obama called it “an extraordinary accomplishment” and a accomplishment” extraordinary called it “an ident Obama for bipartisanship.” “victory ment the Act was granted to the FDA because of its scientific of FDA because to the granted was the Act ment expertise. nies opposed the Act, although Altria, the owner of Philip Morris owner of Philip Altria, the the Act, although nies opposed not. and Marlboro, did every cigarette package on both the front and the back. every cigarette package on both cussed in § warning incorporates one 201 of the Act. Each graphic textual warnings: of the following .gov/the-press-office/remarks-president-signing-family-smoking-prevention-and-to bacco-control-act. bill-becomes-law. 2009), tion and Tobacco Control Act (June 22, Smoking Prevention and Tobacco Control Act 12tobacco.html (noting that Altria, which owns Philip Morris and Marlboro, was 12tobacco.html (noting that Altria, which owns Philip Morris and Marlboro, willing to accede to the regulation, but that Altria’s competitors opposed it). 123 Stat. 1776 § 201(a). June 11, 2009, at A1, S 2013]needed.” were products of such distribution CLARITY DOCTRINAL AND HEALTH PUBLIC 271 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 7 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 142 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 142 35559-nys_69-1 35559-nys_69-1 Sheet No. 142 Side B 10/20/2014 11:50:05 R R last ( , http:// court dis- ORG Alison Langley, FCTC. Parties to the WHO , see also See 42 May 19, 2003), http://www http://www.nytimes.com/ R.J. Reynolds , ( IMES 37 available at N.Y. T Tougher Health Warnings Are Free with Every , One hundred and sixty eight nations note 39. 43 supra Sample warning labels incorporating the incorporating warning labels Sample F.D.A. Unveils Proposed Graphic Warning Labels for Cigarette F.D.A. Unveils Proposed Graphic Warning Labels 38 as of November 1, 2012, the parties to the FCTC as of November 1, 2012, the parties note 40. 44 On the other hand, tobacco manufacturers were On the other hand, Nov. 10, 2010, at A1, 40 , , Nov. 11, 2011, http://online.wsj.com/article/SB2000142405274 supra and concerned that the images would “serve[ and concerned ] only to and the president of the Campaign for Tobacco-Free and the president . J. IMES T 41 39 Although the United States signed the treaty, the Bush Administration Although the United States signed the S Id. What is the Framework Convention on Tobacco Control? What is the Framework Convention on Tobacco Id. ALL N.Y. T W The FCTC, the “world’s first global public health treaty,” came The FCTC, the “world’s first global While the graphic warnings may seem dramatic to consumers warnings may seem dramatic While the graphic In 2011, the FDA issued a Final Rule that implemented this implemented a Final Rule that the FDA issued In 2011, , 44. 41. McKay & Kesmodel, 40. Gardiner Harris, 42. Harris, 43. 37. 38. and Advertisements, 76 Fed. Required Warnings for Cigarette Packages 39. Betsy McKay & David Kesmodel, , visited Nov. 1, 2012). www.fctc.org/index.php?option=com_content&view=article&id=8&Itemid=5 signed the treaty; did not send it to the Senate, so the treaty was not ratified. Framework Convention on Tobacco Control, WHO, http://www.who.int/fctc/sig natories_parties/en/index.html (last visited Sep. 30, 2013); U.S. to Support World Tobacco-Control Treaty .nytimes.com/2003/05/19/world/us-to-support-world-tobacco-control-treaty.html. images the FDA selected are included in Appendix A of this Note. Appendix A of are included in FDA selected images the warn- that the graphic debate agreed of the label-reform Both sides Mar- FDA Commissioner dramatic effect. would have a ing labels every pack stated that, with the required warnings, garet Hamburg the truth about be “a mini-billboard that tells of cigarettes would smoking,” “appalled” Kids referred to the graphic label requirement as “the most impor- the graphic label requirement as Kids referred to history of the cigarette health warnings in the tant change in United States.” and denormalize smoking.” stigmatize smokers 2010/11/11/health/policy/11tobacco.html. 8703805004575606323456727304.html. Packs rupted an important effort to modernize U.S. tobacco regulations. rupted an important effort to modernize into effect in February 2005. label requirement. in other parts similar labels are well accepted in the United States, by the Framework Convention on of the world and are endorsed United States already lags behind Tobacco Control (FCTC). The the regulation of cigarette package the international community in the warnings; by overturning the FSPTCA, Reg. 36,628 (June 22, 2011) (codified at 21 C.F.R. pt. 1141). Reg. 36,628 (June 22, 2011) (codified at Pack 272 to of smoking consequences health negative the depicting graphics NYU .” . . . statements label the accompany ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:265 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 8 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 142 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 142 35559-nys_69-1 35559-nys_69-1 Sheet No. 143 Side A 10/20/2014 11:50:05 R , May As the 93, 102 48 L. adopted L ’ NT http://www.who . J. I TAN S On the topic of label- the topic On available at 45 , 48 ¶ 14, 46 49 Guidelines for Implementation of Article 11 of the http://www.fctc.org/index.php?option=com_ The World Health Organization’s Framework Conven- The World Health Organization’s Framework 121, 124–25 (2010). Global Health Governance at a Crossroads: Trademark Protec- Global Health Governance at a Crossroads: Trademark note 43. available at . L. supra OMP , ORG & C Sam Foster Halabi, notes that warnings that contain both pictures and text that contain both pictures and notes that warnings L ’ , Warnings for Cigarette Packages and Advertisements, 76 Required 47 NT E.g. FCTC. see also . J. I When compared to international efforts at tobacco reform, the When compared to international Subsection (v), dealing with pictures or pictograms, is permis- with pictures or pictograms, Subsection (v), dealing A 49. 48. Conference of the Parties, 45. 46. Control, art. XI, WHO Framework Convention on Tobacco 47. Valentina S. Vadi, G to ensure that . . . each unit packet and package of tobacco unit packet and that . . . each to ensure such labelling of packaging and and any outside products ef- the harmful warnings describing . . . carry health products other appropriate and may include tobacco use, fects of be approved warnings and messages: (i) shall messages. These rotating, (iii) national authority, (ii) shall be by the competent be 50% or visible and legible, (iv) should shall be large, clear, no less than display areas but shall be more of the principal the form of or display areas, (v) may be in 30% of the principal or pictograms. include pictures FDA has repeatedly noted, the Graphic Warning Rule largely com- FDA has repeatedly noted, the Graphic ports with FCTC requirements. ing of tobacco products, the treaty provides that each party to the party that each treaty provides the products, tobacco ing of shall adopt measures: convention tion on Tobacco Control: An Analysis of Guidelines Adopted by the Conference of the Parties tion on Tobacco Control: An Analysis of Guidelines 39 (2012); .int/fctc/guidelines/article_11.pdf. are “far more effective” and concludes that parties to the FCTC are “far more effective” and concludes pictures or pictograms, in “should mandate culturally appropriate labelling requirements.” full colour, in their packaging and Fed. Reg. at 36,676, 36,677, 36,678 (noting consistency with the FCTC). WHO Framework Convention on Tobacco Control graphic warning labels are not unique, nor are they notably ex- graphic warning labels are not for the Australian “plain-pack” treme. That description is best saved to be almost entirely covered law, which requires cigarette packages any remaining space to be free with graphic health warnings, with sive. But the Conference of the Parties, which adopts guidelines of the Parties, which sive. But the Conference obligations” under in implementing their legal that “aid countries the treaty, 2013] population. the world’s 88% of represented CLARITY DOCTRINAL AND HEALTH PUBLIC 273 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 9 15-OCT-14 11:04 21, 2003, 42 I.L.M.518, Law tion v. Tobacco Control in International Investment content&view=article&id=25&Itemid=31 (entered into force Feb. 27, 2005). content&view=article&id=25&Itemid=31 35559-nys_69-1 Sheet No. 143 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 143 35559-nys_69-1 35559-nys_69-1 Sheet No. 143 Side B 10/20/2014 11:50:05 . , , RK R.J. . U. L. EALTH U. A H ELB M , 23 The com- TOF ’ 53 , 28 EP The Internet Down D T ’ OV . G What Is ‘Political Communica- USTL Australia Rejects Tobacco Challenge A , http://www.marketwatch.com/story/ Australia’s Top Court Backs Plain-Pack To- governs attempts by the govern- accompanying notes 74–78. II. infra Enda Curran, , Robert Trager & Sue Turner, available at , further behind would lag even the U.S. Zauderer 52 see also See, e.g. Aug. 15, 2012, 10:06 AM), http://www.bloomberg.com/ discussion The law itself survived a challenge by tobacco a challenge survived law itself The , ( 50 See 123, 132 (2000); Dan Meagher, . 51 EV and its progeny govern regulation of nonmisleading and its progeny govern regulation ruling. LOOMBERG L. R Aug. 15, 2012, at B5, Joe Schneider & Jason Scott, REVIEW OF THE GRAPHIC WARNING RULE REVIEW OF THE B , CERTAIN LEGAL STANDARDS APPLICABLE TO CERTAIN LEGAL OCK See Plain Packaging of Tobacco Products See . J., T R If the Supreme Court is to rule on the validity of the FDA’s Court is to rule on the validity If the Supreme The FSPTCA is an overdue effort to bring the United States in the United States effort to bring is an overdue The FSPTCA S 51. It is worth noting that the Australian Constitution does not contain an explicit It is worth noting that the Australian Constitution 52. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 53. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 50. . 438, 453 (2004). ALL EV ITTLE mercial speech and compelled speech doctrines have evolved side- mercial speech and compelled speech Supreme Court has not explicitly by-side since the 1970s, but the http://www.health.gov.au/internet/main/publishing.nsf/Content/tobacco-plain (last updated July 31, 2013); ment to compel commercial enterprises to express the govern- ment to compel commercial enterprises scrutiny or rational basis review ment’s message, with either strict of that message. applying, depending on the content L manufacturers. news/2012-08-15/australia-top-court-upholds-tobacco-plain-packaging-legislation .html. tion’? The Rationale and Scope of the Freedom of Political Communication tion’? The Rationale and Scope of the Freedom australia-high-court-rejects-tobacco-challenge-2012-08-14-23485185/. guarantee of free speech. in this regard. The next section of this Note discusses the legal stan- discusses the section of this Note The next in this regard. review of the apply to a potential Supreme Court dards that may R.J. Reynolds line with the international community in the regulation of cigarette the regulation of community in the international line with Court fail to overturn the Supreme warnings. Should package Tobacco Co. v. FDA Reynolds of determining Rule, it will face the difficult task Graphic Warning in tension here. its review. Two doctrines are what standard governs Central Hudson for intermediate scrutiny of the commercial speech and would call Graphic Warning Rule. Under: Can Free Speech Be Protected in a Democracy Without a Bill of Rights? Under: Can Free Speech Be Protected in a Democracy bacco Laws U.S. 557, 558 (1980). U.S. 626, 651, 654 (1985). R W 274logos. of company NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:265 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 10 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 143 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 143 35559-nys_69-1 35559-nys_69-1 Sheet No. 144 Side A 10/20/2014 11:50:05 & See 58 ORE V By re- E 54 D OMMERCIAL C see also The Supreme 55 DVERTISING AND ,A The Court held that the 59 ACK D. S Chrestensen unsuccessfully at- Chrestensen 57 § 12:1 (2013). , OBERT UIDE In that case, Chrestensen ran afoul of a In that case, Chrestensen & R G 56 A. Speech Commercial . ORE The Court was unimpressed by Chrestensen’s The Court was unimpressed by V , the Supreme Court has an opportunity to clar- has an opportunity Court Supreme , the 60 E D MENDMENT A AMERON at 54. IRST at 53. at 54–55. note 54, at §1:2. R.J. Reynolds R.J. P. C Id. Id. Id. Id. : A F supra Speech having to do purely with matters of commerce did not of commerce did with matters to do purely Speech having Chrestensen succeeded with a First Amendment claim in the with a First Amendment Chrestensen succeeded , 55. speech was embraced by the Bill of Indeed, the concept that commercial 56. 316 U.S. 52 (1942). 57. 54. 58. 59. 60. ACK PEECH traditionally enjoy First Amendment protection. enjoy First traditionally viewing doctrines. these important between ify the relationship Court considered the interaction between the First Amendment the interaction between the Court considered in 1942, in speech and commercial expression guarantee of free Valentine v. Chrestensen Constitution did not restrain the government from regulating com- Constitution did not restrain the mercial advertising. tempted to circumvent the ban, which was specific to commercial the ban, which was specific tempted to circumvent “devoted to infor- rather than advertising and business advertising information and protest,” by removing pricing mation or a public his handbills. against the city on the back of printing a protest New York City sanitation regulation that prohibited the distribution regulation that prohibited New York City sanitation advertising. of handbills for S attempt to procure First Amendment protection by including on attempt to procure First Amendment the city: the stipulated facts before his advertising a protest against Rights seems to have been preposterous to former Chief Justice Rehnquist. Rights seems to have been preposterous 678, 717 (1977) (Rehnquist, J., dissent- Carey v. Population Servs., Int’l, 431 U.S. the heights of Bunker Hill in 1775 ing) (“Those who valiantly but vainly defended Madison might later sit in the first Con- made it possible that men such as James Constitution. The post-Civil War Con- gress and draft the Bill of Rights to the to the Constitution could not gresses which drafted the Civil War Amendments blood of brave men on both sides which have accomplished their task without the Harbor. If those responsible for these was shed at Shiloh, Gettysburg, and Cold of draftsmanship, could have lived to Amendments, by feats of valor or efforts the Constitution the right of commercial know that their efforts had enshrined in to unmarried minors through such vendors of contraceptives to peddle them machines located in the men’s room of means as window displays and vending judgment of the New York Legislature truck stops, notwithstanding the considered their reaction.”); to the contrary, it is not difficult to imagine Southern District of New York and in the Second Circuit, but he Southern District of New York and Court. ultimately lost in the Supreme S 2013]relate. cases lines of these two which way in the addressed CLARITY DOCTRINAL AND HEALTH PUBLIC 275 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 11 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 144 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 144 35559-nys_69-1 35559-nys_69-1 Sheet No. 144 Side B 10/20/2014 11:50:05 70 Bige- 68 Virginia 62 Bigelow v. Commonwealth of Commonwealth Bigelow v. as being focused more on the as being focused , was charged with violation of a Virginia , was charged with Chrestensen , 425 U.S. at 770. In the first, Bigelow, director and managing In the first, Bigelow, 64 . Virginia State Board of Pharmacy v. Virginia Citizens Con- of Pharmacy v. Virginia Citizens Virginia State Board In that case, the plaintiff challenged a state statute In that case, the plaintiff challenged , 421 U.S. at 811–13. that commercial speech was subject to First Amendment that commercial speech was subject 69 The Court noted that the commercial nature of an ex- that the commercial nature of The Court noted He challenged the statute on First Amendment grounds He challenged the at 818. at 819–20. at 773. and at 55. at 829. at 749–50. 66 The Court rejected the idea that merchants could the idea that rejected The Court The Virginia Weekly 65 63 61 Id. Bigelow Id. Id. Id. Virginia State Board Id. Id. The Court noted that a choice: and distinguished and distinguished 71 67 The Supreme Court reversed its approach on commercial its approach Court reversed The Supreme 61. 62. 55 (1942). Valentine v. Christensen, 316 U.S. 52, 63. 421 U.S. 809 (1975). 64. Citizens Consumer Council, Virginia State Bd. of Pharmacy v. Virginia 65. 66. 67. 68. 69. 70. 71. set the stage for the Supreme Court to explicitly hold in the Supreme Court to explicitly set the stage for [B]etween the dangers of suppressing information, and the [B]etween the dangers of suppressing available, [is one] that the dangers of its misuse if it is freely Virginia is free to require First Amendment makes for us. it wishes of its pharmacists; it whatever professional standards from competition in other may subsidize them or protect them the public in ignorance ways. But it may not do so by keeping low State Board protection. editor of statute prohibiting the encouragement of the procurement of an the encouragement of the procurement statute prohibiting abortion. providing that pharmacists who published, advertised, or promoted providing that pharmacists who published, discount, rebate or credit terms” “any amount, price, fee, premium, of “unprofessional conduct.” for prescription drugs were guilty pression did not necessarily render it without constitutional protec- necessarily render it without constitutional pression did not tion, “achieve immunity from the law’s command” simply by including simply by the law’s command” immunity from “achieve advertising. speech with commercial protected and won. sumer Council, Inc Virginia speech in a pair of cases out of Virginia: out of Virginia: a pair of cases speech in means of expression, not on a regulation of expression itself. not on a regulation of expression means of expression, The Supreme Court invalidated the statute in a decision grounded The Supreme Court invalidated a right to receive accurate informa- on the fact that consumers have tion. 276 the . . was with . of the protest affixing “the that included the Court NYU ordi- of the the prohibition of evading the purpose, and for intent, ANNUAL SURVEY OFnance.” AMERICAN LAW [Vol. 69:265 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 12 15-OCT-14 11:04 Inc., 425 U.S. 748 (1976). 35559-nys_69-1 Sheet No. 144 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 144 35559-nys_69-1 35559-nys_69-1 Sheet No. 145 Side A 10/20/2014 11:50:05 ’s Central Chrestensen , which arose which left open which left The ban was ini- 73 Sorrell v. IMS Health 74 see also The Court then looked to 76 Court identified a four-part test for Court identified , the Supreme Court eschewed Only then would the Court “determine whether Only then would the Court “determine 79 77 Central Hudson 72 at 770. at 559. at 566. 78 Central Hudson The Id. Id. Id. Id. Id. Id. 75 In 1980, the Supreme Court answered that question in answered that the Supreme Court In 1980, In subsequent decisions, the Court has clarified that it is not In subsequent decisions, the Court In The Supreme Court explicitly held that “[s]ome forms of com- forms of held that “[s]ome Court explicitly The Supreme 72. 74. Serv. Comm’n of New York, 447 Cent. Hudson Gas & Elec. Corp. v. Pub. 75. 73. 76. 78. 79. Bd. of Trus. of State Univ. of New York v. Fox, 492 U.S. 469, 480 (1989) 77. of the entirely lawful terms that competing pharmacists are pharmacists that competing terms lawful entirely of the offering. the question of how future commercial speech regulation would be regulation commercial speech of how future the question analyzed. Corp. v. Public Service Commission Hudson Gas & Electric ordered a halt of Service Commission of New York after the Public the use of electricity. all advertising promoting tially intended to conserve fuel stocks during the winter of 1973–74; conserve fuel stocks during the tially intended to all promo- after “[t]he Commission declared it was then extended of conserving en- contrary to the national policy tional advertising ergy.” the strength of the government interest, requiring an interest that the strength of the government was “substantial.” the regulation directly advances the governmental interest asserted, the regulation directly advances than is necessary to serve that and whether it is not more extensive interest.” analyzing a First Amendment challenge to regulation of commer- Amendment challenge to regulation analyzing a First speech the Court established that, for commercial cial speech. First, least must concern by the First Amendment, “it at to be protected lawful activity and not be misleading.” necessary for the government to utilize the least restrictive means necessary for the government to but that there must be a “fit be- possible to promote its interest, the means chosen to accomplish tween the legislature’s ends and is not necessarily perfect, but those ends . . . a fit that reasonable . . . .” mercial speech regulation are surely permissible,” speech regulation mercial stark refusal of First Amendment protection for commercial stark refusal of First Amendment lesser protection to commercial speech, but decided to afford 2013] CLARITY DOCTRINAL AND HEALTH PUBLIC 277 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 13 15-OCT-14 11:04 U.S. 557, 558 (1980). Inc., 131 S. Ct. 2653, 2667–68 (2011). (citations and internal quotation marks omitted); 35559-nys_69-1 Sheet No. 145 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 145 35559-nys_69-1 35559-nys_69-1 Sheet No. 145 Side B 10/20/2014 11:50:05 R 82 , as , Je- amici The 85 informa- Although 80 Central Hudson standard and implementa- it remains good law. good it remains noncommercial 81 84 Central Hudson Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of note 4 at 652. note 54, at § 12:1 (emphasis added). See B. Speech Compelled Accordingly, a compelled disclosure must Accordingly, a supra 83 supra , test has been criticized, has been test , 447 U.S. at 562–63 Constitution therefore accords a (“The ACK West Virginia State Board of Education v. Barnette West Virginia State In addition, she could be considered delinquent In addition, she could be considered 87 & S , Kozinski, , Wooley v. Maynard, 430 U.S. 705, 714 (1977) (“We begin with the , Wooley v. Maynard, 430 U.S. 705, 714 (1977) , Ass’n, Inc. v. United States, 527 U.S. New Orleans Broad. Greater The regulation was severe. A student who failed to sa- The regulation was severe. A student 86 ORE e.g. V , at 629. E D Id. See Central Hudson See, e.g. See, e.g. Id. In contrast to regulations of commercial speech, “the Supreme of commercial to regulations In contrast The Supreme Court has confirmed that the protections af- has confirmed that the protections The Supreme Court have advocated repudiation of the Central Hudson Hudson Central 85. 84. 80. 83. 81. 82. 86. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 628–29 (1943). 87. compelled speech doctrine flows directly from this proposition. doctrine flows directly from compelled speech do with ideologi- with compelled speech had to Early cases dealing cal messages. In hovah’s Witnesses challenged a regulation that required children in challenged a regulation that required hovah’s Witnesses flag and say the Pledge of public schools to salute the American Allegiance. the Court has treated compelled disclosure of disclosure treated compelled Court has demanding content-based restriction on speech, tion as akin to a the strictest scrutiny.” “serve a compelling state interest, avoid undue burdens on free state interest, avoid undue “serve a compelling narrowly tailored.” speech, and [be] lute the flag could be expelled from school, unable to return until lute the flag could be expelled from she complied. forded by the First Amendment generally protect not only the free- Amendment generally protect forded by the First speaking. also the freedom to refrain from dom to speak, but applied in our more recent commercial speech cases, provides an adequate basis applied in our more recent commercial for decision.”). lesser protection to commercial speech than to other constitutionally guaranteed lesser protection to commercial speech expression.”). 278 receive. would speech private analogous than speech NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:265 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 14 15-OCT-14 11:04 proposition that the right of freedom of thought protected by the First Amend- proposition that the right of freedom the right to speak freely and the right to ment against state action includes both noting also that compelled speech doc- refrain from speaking at all.”). It is worth trine applies to corporations. California, 475 U.S. 1, 16 (1986) (“For corporations as for individuals, the choice to speak includes within it the choice of what not to say.”). curiae test for assessing the validity of gov- tion of a more straightforward and stringent . . . . [W]e do not ordinarily reach ernmental restrictions on commercial speech pronouncements on constitutional issues out to make novel or unnecessarily broad narrower ground. . . . when a case can be fully resolved on a 173, 183–84(“[P]etitioners as well as certain judges, scholars, and (1999) 35559-nys_69-1 Sheet No. 145 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 145 35559-nys_69-1 35559-nys_69-1 Sheet No. 146 Side A 10/20/2014 11:50:05 97 91 The irony 93 and held that and held 88 90 The Supreme Court 94 98 The Supreme Court rejected The Supreme , the compelled expression was expression , the compelled 89 95 New Hampshire also expressed an inter- New Hampshire also expressed 96 , citizens of New Hampshire obscured the , citizens of New at 713. Id. Wooley v. Maynard Wooley v. Wooley In , 730 U.S. at 717. at 708. 92 at 641 (“Those who begin coercive elimination of dissent soon find at 642. at 642. at 715–17. at 717. at 707. Maynard stated his objection as follows: “‘I at 707. Maynard stated his objection as refuse to be coerced at 713–14. . Id Id. Id. Id. Id. See id. Id. Id. Id. Wooley The Court’s inquiry did not end with its identification of a pro- The Court’s inquiry did not end The challenge was successful. The challenge in Similarly, 88. 89. 90. 91. 92. Wooley v. Maynard, 430 U.S. 705 (1977). 93. 95. 94. 96. 97. 98. of the situation was apparently lost on the state trial court, and the apparently lost on the state trial of the situation was guilty of a misdemeanor. citizens were found compelled speech of this sort was constitutionally impermissible. sort was constitutionally speech of this compelled held that a state may not “require an individual to participate in the may not “require an individual to held that a state it on his pri- an ideological message by displaying dissemination of purpose that it be a manner and for the express vate property in by the public.” observed and read arguments for national unity, expressing concern over considering expressing for national unity, arguments challenges, Amendment sentiment in First popular est in “seeking to communicate to others an official view as to est in “seeking to communicate state pride, and individualism.” proper appreciation of history, state’s motto, “Live Free or Die,” on the license plate of their family Free or Die,” on the license plate state’s motto, “Live motto to be re- the New Hampshire State vehicle, “consider[ing] moral, religious, and political beliefs.” pugnant to their tected interest, however; it was also necessary to balance the inter- tected interest, however; it was also interests of the government. The ests of the individual against the interest in determining whether Court determined that the state’s the right plates did not outweigh passenger vehicles were carrying the individual’s interest. ideological. The Court determined that, “where the State’s interest is to dissemi- The Court determined that, “where acceptable to some, such interest nate an ideology, no matter how First Amendment right to avoid be- cannot outweigh an individual’s coming the courier for such message.” 2013] that to prosecution parents her subjecting school, out of while CLARITY DOCTRINAL AND HEALTH PUBLIC term. jail a thirty-day fine and in a $50 result could 279 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 15 15-OCT-14 11:04 themselves exterminating dissenters. Compulsory unification of opinion achieves themselves exterminating dissenters. Compulsory only the unanimity of the graveyard.”). by the State into advertising a slogan which I find morally, ethically, religiously and by the State into advertising a slogan which politically abhorrent.’” 35559-nys_69-1 Sheet No. 146 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 146 35559-nys_69-1 35559-nys_69-1 Sheet No. 146 Side B 10/20/2014 11:50:05 Cen- L. & Partic- ARE C 105 . The Court , Strauss, Marcy EALTH 103 This breached J. H 100 , 136–37 (2011) (“Al- Compelled Speech Under see, e.g. , 12 . 135 EV Adarand Constructors, Inc. v. Central Hudson see 104 Zauderer, an Ohio attorney, Zauderer, , the compelled speech doc- U. L. R ,” the Supreme Court allowed Court Supreme ,” the 99 EATTLE S Jennifer L. Pomeranz, Zauderer 106 Barnette Zauderer. , 35 The Court rejected application of the The Court rejected see also 102 . . . and . . . Part IV.B.; Wooley test based on “material differences between disclosure test based on “material at 631 n.3. at 634. at 650. at 651. at 629–30. Zauderer brought a challenge to the rule on First a challenge to the rule Zauderer brought Id. Id. Id. Id. Id. See infra 101 Broadly speaking, after Considering interests that were “not of the same order of those order of the same “not that were interests Considering 159, 174 (2009). 106. to dispel the notion that Although the Supreme Court has attempted Y 99. of Supreme Court of Ohio, 471 Zauderer v. Office of Disciplinary Counsel 100. 101. 102. 103. 104. 105. ’ OL ularly in cases where strict scrutiny would be applied, the compelled ularly in cases where strict scrutiny divergent results based on the speech doctrine can lead to starkly character of the compulsion. noted a crucial distinction between matters of opinion and uncon- between matters of opinion noted a crucial distinction to expression of determined that, with regard troversial facts, and as long as dis- rights are adequately protected facts, “an advertiser’s the State’s interest are reasonably related to closure requirements in preventing deception of consumers.” an Ohio rule of professional conduct that stated that “[a] lawyer stated that “[a] conduct that rule of professional an Ohio any other associate or his partner, on behalf of himself, shall not, in the use with him or his firm, use, or participate lawyer affiliated a false, fraudu- public communication containing of, any form of statement or deceptive, self-laudatory or unfair lent, misleading, claim.” advertised contingency-fee services without disclosing that a losing disclosing that services without contingency-fee advertised costs. for litigation still be responsible client could though not all of these [discriminatory] laws survive rational basis review, most do. . . [as for laws] subject to ‘strict scrutiny’ . . . [w]hile some laws survive such rigorous scrutiny, most do not.”). tral Hudson outright prohibitions on speech.” requirements and P Amendment grounds. discussed in in discussed rational basis standard if the com- trine can trigger analysis under a facts; otherwise, a restriction will pulsion involves uncontroversial or be analyzed under either strict scrutiny speech to be compelled in be compelled speech to strict scrutiny is “strict in theory, but fatal in fact,” strict scrutiny is “strict in theory, but fatal U.S. 626, 651, 655 (1985). the Commercial Speech Doctrine: The Case of Menu Label Laws the Commercial Speech Doctrine: The Case of 280 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:265 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 16 15-OCT-14 11:04 Pena, 515 U.S. 200, 237 (1995), it nonetheless is obvious that many laws will fail Pena, 515 U.S. 200, 237 (1995), it nonetheless strict scrutiny and many laws will pass rational basis analysis, Reevaluating Suspect Classifications 35559-nys_69-1 Sheet No. 146 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 146 35559-nys_69-1 35559-nys_69-1 Sheet No. 147 Side A 10/20/2014 11:50:05 , the 111 The Court also con- 110 and, when “the compo- 109 Court emphasized that, when de- . . . .”). Riley It held that the State’s interest in informing do- It held that the State’s interest decision does not help to distinguish between the decision does not help to distinguish 112 , 487 U.S. at 798. The majority did not explicitly state what constitutes The majority did at 798. at 796. at 797 (“The constitutional equivalence of compelled speech and North Carolina had argued that the regulation affected had argued that the regulation North Carolina Riley 113 108 Id. Id. Id. Id. Id. Riley Riley v. National Federation of the Blind of North Carolina of the Blind of Federation Riley v. National 107 Ultimately, the Court analyzed the North Carolina Act under Ultimately, the Court analyzed the The In several significant cases, courts have applied strict scrutiny courts have significant cases, In several In 107. 487 U.S. 781, 784–85 (1988). 108. 109. 110. 111. 112. 113. C. Speech Commercial and Compelled Between Distinguishing Cases firmed that there is no constitutionally significant difference be- firmed that there is no constitutionally silence. tween compelled speech and compelled nent parts of a single speech are inextricably intertwined, [the nent parts of a single speech speech, applying one test to one Court] cannot parcel out the phrase.” phrase and another test to another nors as to the way that money they donate is spent was “not as nors as to the way that money and that the State’s methods of weighty as the State assert[ed],” burdensome and not narrowly achieving that interest were “unduly tailored.” only commercial speech, but the Supreme Court noted that, even if speech, but the Supreme Court only commercial was implicated, it that only commercial speech it were to assume character that the speech retains its commercial did not “believe fully protected intertwined with otherwise when it is inextricably speech.” statement’s other- speech” sufficient to overcome a “fully protected was referring to character, but the Court likely wise commercial charitable solicitations. The termining the level of scrutiny that it would apply to speech, it fo- termining the level of scrutiny that taken as a whole and the effect cused on “the nature of the speech of the compelled statement thereon,” strict scrutiny. commercial speech and compelled speech doctrines. By indicating commercial speech and compelled or the compelled speech doctrine over objections that challenged objections that doctrine over speech or the compelled speech. regulation of commercial was merely a legislation 2013] CLARITY DOCTRINAL AND HEALTH PUBLIC 281 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 17 15-OCT-14 11:04 Supreme Court held an Act that, inter alia, “required professional Act that, inter alia, Court held an Supreme percentage of to potential donors the gross fundraisers to disclose was a content- in prior charitable solicitations,” revenues retained on free and an unconstitutional restriction based regulation speech. compelled silence in the context of fully protected expression was established in compelled silence in the context of fully protected expression was established Herald Publishing Co. v. Tornillo 35559-nys_69-1 Sheet No. 147 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 147 35559-nys_69-1 35559-nys_69-1 Sheet No. 147 Side B 10/20/2014 11:50:05 117 118 and restrict governs requires be- , the Associa- The court noted Central Hudson 116 governs compelled . Zauderer Central Hudson Zauderer Zauderer that , describes the relationship between between “disclosure require- between 114 That line was established by the governs restrictions on disclo- 119 test should be applied to statutes that Zauderer Central Hudson . . . , not Central Hudson Central Hudson Zauderer at 114–15. at 113–15. (“ on commercial speech, but if compelled silence is the but if compelled speech, on commercial at 115. The Second Circuit applied National Electrical Manufacturers Assn. v. Sorrell National Electrical Id. Id. Id. Id. 115 Some circuit courts have also found that, when commercial have also found that, when Some circuit courts 114. of Supreme Court of Ohio, Zauderer v. Office of Disciplinary Counsel 115. F.3d 104, 107 (2d Cir. 2001). Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 116. 117. 118. 119. that “mandated disclosure of accurate, factual, commercial infor- that “mandated disclosure of accurate, First Amendment values of pro- mation does not offend the core or protecting individual moting efficient exchange of information stated, “[p]rotection of the ro- liberty interests.” In fact, the court information is the principal First bust and free flow of accurate commercial speech, and re- Amendment justification for protecting promotes that goal.” quiring disclosure of truthful information prohibitions of distin- longer a means speech, that is no of compelled equivalent when commercial By applying strict scrutiny guishing the doctrines. intertwined,” how- speech were “inextricably and “fully protected” when the two doc- Court may have indicated that ever, the Supreme applies. the higher level of scrutiny trines are implicated, doctrine gov- interact, the compelled speech and compelled speech erns. In that required enforcement of a Vermont statute tion sued to enjoin products that label certain packages as containing manufacturers to such products and to inform consumers that contained mercury of as hazardous be recycled or disposed “on disposal, should waste.” plain language of the two doctrines— disclosures while commercial speech.” (emphasis in original)). purported to draw a bright line between the commercial speech purported to draw a bright line and compelled speech doctrines. 471 U.S. 626, 650 (1985). means and ends demanded by the First Amendment in compelled commercial disclosure cases. The tween “the purpose of a commercial disclosure requirement and tween “the purpose of a commercial that purpose” was present here. the means employed to realize The court held that the “rational connection” The court held that the “rational application of The court specifically eschewed 282 are constitutionally silence compelled and speech compelled that NYU be- of differentiating means one eliminated Court the equivalent, ANNUAL SURVEY OF in light thought, especially one might have two doctrines: tween the AMERICAN LAW in distinction of the Court’s [Vol. 69:265 “outright prohibitions,” ments” and \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 18 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 147 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 147 35559-nys_69-1 35559-nys_69-1 Sheet No. 148 Side A 10/20/2014 11:50:05 Sor- Id. Notably, once the Based on this analy- 126 125 after determining that Entertainment Software Ass’n v. Software Ass’n Entertainment , that distinction does not nec- does distinction , that Riley in a pair of First Amendment chal- of First Amendment in a pair Central Hudson Riley 5/12B-25 (2006). , 469 F.3d at 652. is not available as a “fallback” doctrine. exception, the court analyzed the law as exception, the court analyzed the . TAT court determined that the challenged law fell court determined that the challenged . S OMP Zauderer The manufacturers successfully argued that the law successfully argued that the The manufacturers . C plaintiffs, associations of video game companies, chal- video game companies, associations of plaintiffs, 122 LL Accordingly, the sticker communicated “non-factual Accordingly, the sticker communicated I 121 One argument advanced by the state was that the “18” sticker require- Central Hudson , 124 did not apply. This suggests that, for the Seventh Circuit, did not apply. This suggests that, Id. Id. Entertainment Software Id. Id. —but, in as established The State contended that the “18” sticker requirement was that the “18” sticker requirement The State contended 120 123 The Seventh and Ninth Circuits made a similar determination Circuits made a and Ninth The Seventh 125. 126. 123. 124. 120. 121. 469 F.3d 641 (7th Cir. 2006). 122. 720 —an the called “plainly unsound” on argument that the court that the game’s content is sexually explicit.” that the game’s content is sexually Zauderer to be compelled speech, either ra- once a regulation is determined applies; the intermediate ap- tional basis review or strict scrutiny proach of compelled speech rather than a commercial regulation; the court compelled speech rather than a did not discuss applying Entertainment Software outside of the sis, the court applied strict scrutiny and found that the requirement sis, the court applied strict scrutiny the state had “not demonstrated was not narrowly tailored, since goal with a broader educational that it could not accomplish this and because the sticker campaign about the ESRB system,” of the box.” “cover[ed] a substantial portion ment was analogous to the surgeon general’s warning on cigarettes. should be analyzed under the compelled speech doctrine, despite under the compelled speech should be analyzed speech regula- defendants that it was a commercial arguments from tion. information” and a “subjective and highly controversial message—information” and a “subjective and lenged Illinois’ Sexually Explicit Video Games law. That law, among law. That law, Explicit Video Games Sexually lenged Illinois’ “label all sexually retailers of video games to other things, required a solid white ‘18’ as defined in this Act, with explicit video games less than 2 inches . . . [having] dimensions of no outlined in black by 2 inches.” lenges by video game makers. First, in video game makers. lenges by Blagojevich essarily hold for the Supreme Court. Supreme for the hold essarily Court in to the Supreme addressed in disclosure requirements similar to the mercury rell definition of the requirement hinged on a basis that the sticker than which was “far more opinion-based term “sexually explicit,” chemical is within any given the question of whether a particular product.” 2013]sures CLARITY DOCTRINAL AND HEALTH PUBLIC 283 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 19 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 148 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 148 35559-nys_69-1 35559-nys_69-1 Sheet No. 148 Side B 10/20/2014 11:50:05 En- Sor- From Riley. Video Software The court did But the court , the Ninth Cir- Ninth , the The court deter- 127 128 129 ” 132 Zauderer. 131 If the labeling requirement could If the labeling 130 . , but the opinion focused on restrictions Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729 Brown v. Entm’t Merchants Ass’n, 131 Zauderer court, and not determining the appropriate standard of aff’d sub nom. at 967 n.20 (noting, but not adopting, the approach of the at 966. at 967. Id. Id. Id. See id. Video Software Dealers Ass’n v. Schwarzenegger Ass’n v. Dealers Software Video Video Software Dealers court would have applied. There does not appear to be a clear, principled basis on which There does not appear to be a clear, In an opinion written by Justice Scalia, the Supreme Court af- In an opinion written by Justice In 128. 129. 130. 131. 132. Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011). 127. 556 F.3d 950, 953–54 Video Software Dealers Ass’n v. Schwarzenegger, but seems to be foreclosed by the Supreme Court in but seems to be foreclosed by the linking forced expression to compelled speech and forced silence linking forced expression to compelled not determine what standard of review should be applied to the standard of review should not determine what “would initially It indicated that it normally labeling requirement. separable com- video game packaging constitutes decide whether ‘inextricably inter- or commercial speech that is mercial speech fully-protected speech.” twined’ with otherwise found that it “need not decide that question because the labeling not decide that question because found that it “need and decep- even under the factual information requirement fails standards set forth in tion prevention mined that the labeling requirement would fail even the rational labeling requirement would fail mined that the of relationship test have passed this test, it is unclear what standard the have passed this test, it is unclear Dealers a court should apply one of these doctrines over the other. A dis- a court should apply one of these description of the doctrines—tinction based on the plain language to commercial speech—was Second Circuit in endorsed by the rell firmed to minors, and did not discuss on the sale or rental of violent games speech. the label requirement or compelled cuit held that the labeling requirements of the California Assembly California of the requirements the labeling held that cuit game to label any video manufacturers which required Bill 1179, . . . no outlined in black a solid white ‘18’ as violent “with defined com- “unconstitutionally in size,” were 2 inches by 2 inches less than . . . not re- [they did] because the First Amendment pelled under but compel[led] factual information; disclosure of purely quire the State’s controversial opinion.” the carrying of the that the commercial character of the video game cases, it is clear not a dispositive determinant of the aggrieved party’s speech is which doctrine will apply. (2011). tertainment Software review). (9th Cir. 2009), 284 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:265 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 20 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 148 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 148 35559-nys_69-1 35559-nys_69-1 Sheet No. 149 Side A 10/20/2014 11:50:05 ra- 133 . Zauderer Zauderer Zauderer Central Hud- , manufacturers takes a different balancing test. As , which will sometimes , which Discount Tobacco The district court applied aff’d in part, rev’d in part sub nom. , not strict scrutiny, after de- will trigger rational basis re- will trigger rational R.J. Reynolds 134 and Central Hudson’s III. RULE would also have to pass would also Zauderer Central Hudson Central Hudson not only to opine on a crucial public health not only to opine Zauderer Part III.B. FSPTCA AND THE GRAPHIC WARNING Commonwealth Brands R.J. Reynolds See infra DIVERGENT RESULTS IN LITIGATION OF THE DIVERGENT RESULTS IN LITIGATION Commonwealth Brands, Inc. v. United States Commonwealth Brands, Inc. v. United A. One logical approach would be to require expressions that expressions require be to would approach logical One In Tobacco manufacturers have challenged both the FSPTCA and Tobacco manufacturers have challenged 133. 134. Commonwealth Brands, Inc. v. United States, 678 F. Supp. 2d 512, 521 . The courts surveyed above seem instead to apply the compelled seem instead surveyed above . The courts as exceptions to the rule that content-based restrictions require the rule that content-based restrictions as exceptions to could fairly be considered commercial speech or compelled speech or compelled speech commercial considered fairly be could mean that the But this would both doctrines. to satisfy compelled all commercial meaningless: test would be tional basis satisfied speech that son of instead speech doctrine (W.D. Ky. 2010), as amended (Jan. 14, 2010), Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509 (6th Cir. 2012). the FDA’s Graphic Warning Rule and circuit courts have reached the FDA’s Graphic Warning Rule implications of this at- divergent results as to the First Amendment the Sixth Circuit upheld the tempted reform: in March 2012, requirements against a facial First FSPTCA’s graphic warning label 2012, the D.C. Circuit invalidated Amendment challenge; in August the FDA’s Graphic Warning Rule. alleged that certain provisions and distributors of tobacco products other things, their right to free of the FSPTCA violated, among speech under the First Amendment. discussed below, the D.C. Circuit in discussed below, for hybrid com- clarify the standard of review issue, but also to pelled-commercial speech. Given the disagreement among the circuits as to the interaction be- among the circuits as to Given the disagreement an opportunity if doctrines, the Supreme Court has tween these two it reviews 2013] CLARITY DOCTRINAL AND HEALTH PUBLIC 285 result: lead to the opposite of view, allowing circumvention \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 21 15-OCT-14 11:04 approach, and conceives of both commercial speech and of both commercial speech approach, and conceives strict scrutiny, applying strict scrutiny, applying of Graphic Image Rule fell outside termining that the 35559-nys_69-1 Sheet No. 149 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 149 35559-nys_69-1 35559-nys_69-1 Sheet No. 149 Side B 10/20/2014 11:50:05 141 Cen- , the and , Con- 144 accompa- infra In an analy- exception ap- 137 at 541. The court noted Id. The plaintiffs’ case The plaintiffs’ 140 But the court found But the court Zauderer 138 139 Entertainment Software exception applied, Entertainment Software 136 but it also implicated compelled Zauderer 142 ,” , 678 F. Supp. 2d at 531. and upheld most provisions of the of provisions most upheld and 135 accompanying notes 99–104, 115–20; It is worth noting that this court applied It is worth noting that this court test supra 143 Central Hudson after implicitly finding that the after implicitly finding that the at 532. at 530. at 532. at 531 (quotations omitted). discussion at 528. by consumers in the first instance.” by consumers Id. Id. Id. Id. Commonwealth Brands, Inc. Id. Id. Id. See Central Hudson Central The district court did not expressly separate out the compelled The district court did not expressly The plaintiffs advanced arguments that implicated both the implicated both arguments that advanced The plaintiffs seen 135. 136. ban on color and graphics in The district court held that the FSPTCA’s 137. 138. 139. 140. 141. 142. 143. 144. sis that did not meaningfully distinguish between the two doctrines, between the two distinguish not meaningfully sis that did the defendants. court sided with the district gress provided reasons for the “particular features” of the FSPTCA; for the “particular features” gress provided reasons of the FCTC. relied on recommendations in large part, Congress “rest[ed] on the idea that, since the public already appreciates the idea that, since the public already “rest[ed] on the the govern- with using tobacco products, health risks associated tobacco con- [have been] to browbeat potential ment’s goal must its anti-tobacco youths, over the head with sumers, including manufacturers’ expense.” message at the that, unlike the State of California in that, unlike the that the government’s goal, rather than stigmatizing the use of to- goal, rather than stigmatizing that the government’s message is actu- was to “ensure that the health risk bacco products, ally speech by stating that, unlike the “subjective and controversial” speech by stating that, unlike in message advanced by the government and has not been controversial warning requirement “is objective for many decades.” plied. In contrast, other courts discussed herein applied a rational plied. In contrast, other courts discussed basis test after finding that the FSPTCA, including the graphic labeling requirements, against this against requirements, labeling graphic the including FSPTCA, challenge. Amendment facial First tral Hudson compelled speech and commercial speech doctrines. speech speech and commercial compelled It purported to apply the speech and commercial speech doctrines. that “the warning requirement commercial speech test, finding the government’s substantial [was] sufficiently tailored to advance interest under labels and advertising and the prohibition on a manufacturer’s claiming that FDA labels and advertising and the prohibition unconstitutional. regulation makes its product safer were nying notes 150–58. 286the NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:265 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 22 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 149 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 149 35559-nys_69-1 35559-nys_69-1 Sheet No. 150 Side A 10/20/2014 11:50:05 R In ex- infra 147 at 527. Zauderer Id. Zauderer discussion in the Sixth the Central Hudson 150 of See also Riley v. Nat’l Fed’n of the The court opined that, The court exception did not apply, exception did not 146 exception applied and the applied and exception misleading, but also where . . . 151 compare with Zauderer after finding that the that the finding after exception. In contrast, Judge Clay, exception. In contrast, Zauderer inherently Zauderer accompanying notes 159–78. misleading.” after it determined that the disclosures in after it determined 145 , 674 F.3d at 556. infra Central Hudson Central hinges on consumer deception; is applicable “not only when the required disclo- is applicable “not only when the exception applied, the appropriate standard of re- the appropriate standard of exception applied, apply. Judge Stranch’s opinion also emphasized that appli- Judge Stranch’s opinion also emphasized potentially The majority opinion chastised Judge Clay for this ap- chastised Judge Clay for this The majority opinion 149 at 527–30dissenting). On other topics, Judge Clay’s lead (Clay, J., at 558 (citations and internal quotation marks omitted). at 551–52 (majority opinion); 148 discussion (“The factual content of the textual warnings is undisputed.”). at 554. Zauderer When evaluating the graphic images, the court noted the When evaluating the graphic images, Central Hudson did not Zauderer Discount Tobacco Id. Id. See Id. Id. Id. 152 Zauderer The Circuit Court determined that the textual warnings were The Circuit Court determined that This portion of the district court’s ruling was affirmed on ap- was affirmed court’s ruling of the district This portion 150. 151. 152. 145. 146. United States, 674 F.3d 509, 551, Disc. Tobacco City & Lottery, Inc. v. 147. 148. 149. exception. question fell within the question fell within this regard, Judge Stranch departed from the district court, which Stranch departed from the district this regard, Judge applied this issue, would only have applied who dissented on that the disclosures fell outside after determining Circuit, sure ‘targets speech that is the speech is view would be rational basis; if the view would be rational the compelled speech doctrine would demand strict scrutiny. doctrine would demand strict the compelled speech if the cation of proach, noting its disagreement with Judge Clay’s opinion to the its disagreement with Judge Clay’s proach, noting speech with re- restricting commercial extent that it “conflate[d] in commercial speech. quiring disclosure of factual information different than laws that Laws that restrict speech are fundamentally legal standards governing each require disclosures, and so are the type of law.” plaintiffs’ heavy burden in this facial review; they would “have to plaintiffs’ heavy burden in this cannot convey the negative health establish that a graphic warning Blind of N.C., Inc., 487 U.S. 781, 797 (1988) (affirming that compelled speech and compelled silence are constitutionally equivalent). factual. plaintiffs’ constitutional challenge failed. constitutional plaintiffs’ peal. Writing for the majority on this issue, Judge Stranch con- issue, Judge Stranch on this for the majority peal. Writing factual issue dealt with disclosure at that, because the cluded the not opinions, information, 558 (6th Cir. 2012). Judge Clay dissents in a section entitled opinion states the majority opinion. Here, of Color Graphic Images.” “Dissenting Opinion on the Requirement 2013] court applied one CLARITY DOCTRINAL AND HEALTH PUBLIC 287 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 23 15-OCT-14 11:04 accompanying note 148. ception 35559-nys_69-1 Sheet No. 150 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 150 35559-nys_69-1 35559-nys_69-1 Sheet No. 150 Side B 10/20/2014 11:50:05 He 157 at 552–53 ”]. Id. As shown in 154 R.J. Reynolds R.J. Reynolds Tobacco 155 ’s rational basis test was met. ’s rational basis test 156 vacated sub nom. 158 ”], Zauderer That judge rejected the FDA’s argu- That judge rejected the FDA’s should apply and instead analyzed the should apply and instead analyzed 159 R.J. Reynolds v. FDA The court disposed of this possibility, and this possibility, disposed of The court B. 153 Central Hudson R.J. Reynolds-District Court at 559. at 528. at 558–59. at 564. at 527–30 (Clay, J., dissenting). Id. Id. Id. Id. Id. In August of 2011, tobacco manufacturers challenged the In August of 2011, tobacco manufacturers The court also found that The court also found but was in wrote the lead opinion for the court Judge Clay, who 153. 154. 155. of this decision, the FDA had It is worth noting here that, by the time 156. 157. 158. 159. R.J. Reynolds Tobacco Co. v. FDA., 823 F. Supp. 2d 36, 53 (D.D.C. 2011) noted that the graphics seemed to be “intended to create a visceral noted that the graphics seemed not think it was clear that this reaction in the consumer”; he did sort of regulation was permissible. Appendix A, the FDA’s Graphic Warning Rule includes images of FDA’s Graphic Warning Rule Appendix A, the by the Sixth Circuit. the sort described ments that FDA’s Graphic Warning Rule on First Amendment grounds; by No- FDA’s Graphic Warning Rule on court had granted plaintiffs vember, a District of Columbia district a preliminary injunction. even suggested “[a] nonexhaustive list” of graphics that could ex- of graphics that list” “[a] nonexhaustive even suggested drawing of a nonsmoker’s “[A] picture or information: press factual or drawing . . . a picture side by side lungs displayed and smoker’s from a smoking-re- of a person suffering anatomy of the internal a person suffering a picture or drawing of lated medical condition; .” medical condition . . . from a smoking-related The court focused on the fact that the existing warnings did not on the fact that the existing The court focused that is not the risks of tobacco use: “A warning effectively convey not serve its func- understood by consumers does noticed, read, or these problems by warnings rationally address tion . . . . The new including graphics.” being larger and dissent on this issue, opined that the government had failed to dissent on this issue, opined that graphic warning labels was a “rea- demonstrate that including color any information deficit. sonably tailored response” to address already selected some of the final images depicted in Appendix A. already selected some of the final images of the thirty-six for use in the cigarette (“The FDA settled on nine images out in June 2011.”). warnings when it published its Final Rule [hereinafter “ Co. v. FDA, 696 F.3d 1205 (D.C. Cir. 2012) [hereinafter “ 288to con- tantamount a position accurately, of smoking consequences NYUwritten only accurate, be factually can never pictures that cluding ANNUAL SURVEY OF can be.” statements AMERICAN LAW [Vol. 69:265 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 24 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 150 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 150 35559-nys_69-1 35559-nys_69-1 Sheet No. 151 Side A 10/20/2014 11:50:05 In On The 169 161 163 162 In both de- 164 The judge es- judge The 160 standard may be Zauderer The opinion, written by Judge this regulation, in the court’s 166 , noting that “the evidence here evidence “the that , noting 168 and excep- commercial speech as two Zauderer ,” the D.C. Circuit Court vacated the district ,” the D.C. Circuit 167 Zauderer , 696 F.3d 1205 (D.C. Cir. 2012). to apply only when, “absent a warning, there is a to apply only when, “absent a warning, the type of purely factual and uncontroversial disclo- and uncontroversial of purely factual the type did not apply for two reasons. First, the court inter- did not apply for two reasons. at 46. not at 45. at 48. at 1214 (internal quotation marks omitted). at 1216. (citations and internal quotation marks omitted). The court noted that the case raised “novel questions” The court noted . at 1212. R.J. Reynolds 170 R.J. Reynolds Id Id. Id. Id. Id. Id. Id. Id. Id. Zauderer 165 aff’d in R.J. Reynolds. In August of 2012, in a decision referred to throughout this in a decision referred to throughout In August of 2012, Zauderer The judge determined that strict scrutiny should apply. strict scrutiny determined that The judge 165. 166. 160. 161. 162. 163. 164. F. Supp. 2d 266, 277 (D.D.C. R.J. Reynolds Tobacco Co. v. FDA, 845 167. 168. 169. 170. addition, the court found that “the graphic warnings do not consti- addition, the court found that “the uncontroversial information or tute the type of purely factual and the accurate statement[s] to which applied.” judge avoided discussion of the government’s “precise” interest, “precise” of the government’s discussion judge avoided appears to be “under any scenario the Rule hardly noting that that purpose.” to achieve the Government’s narrowly tailored judgment in the same court granted summary February 29, 2012, on largely the same reasoning. favor of the plaintiffs cisions, the District Court treated the compelled and commercial Court treated the compelled cisions, the District as analytically distinct. speech doctrines Note as “ different rea- and set aside the regulations under court’s opinion soning. sures that are reviewable under this less stringent standard.” under this less are reviewable sures that chewed application of application chewed require- graphic-image that the Rule’s suggests overwhelmingly ments are tions to the rule that content-based regulations of speech are sub- tions to the rule that content-based ject to strict scrutiny. Brown, conceived of view, was not intended to “combat specific deceptive claims.” view, was not intended to “combat about the government’s ability to force a manufacturer to “under- about the government’s ability to mine its own economic interest.” preted self-evident—or at least potentially real—danger advertise- that an ment will mislead consumers”; 2012), 2013] speech. compelled as Rule Warning Graphic CLARITY DOCTRINAL AND HEALTH PUBLIC 289 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 25 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 151 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 151 35559-nys_69-1 35559-nys_69-1 Sheet No. 151 Side B 10/20/2014 11:50:05 , it Cen- , not Central 174 . Central Hudson R.J. Reynolds does not apply, In lieu of strict at 1212. or It noted that in It noted 173 Id. Central Hudson Central 171 court labeled the Zauderer Zauderer Central Hudson CENTRAL HUDSON 177 R.J. Reynolds IV. applies. If did not apply, the court held that, held the court not apply, did AND , it had found that “[b]ecause commer- found that “[b]ecause , it had Zauderer After acknowledging that “the standard for “the standard that After acknowledging Zauderer 172 ZAUDERER , 696 F.3d 1205, 1223 (D.C. Cir. 2012) (Rogers, J., , 696 F.3d at 1217. Contrary to the usual classification of , 696 F.3d at 1217. Contrary to the usual TO THE GRAPHIC WARNING RULE TO THE GRAPHIC WARNING but, regardless of whether The court then vacated the graphic warning require- vacated the graphic warning The court then at 1217 (citation omitted). (internal quotation marks omitted). at 1219. at 1222. as intermediate scrutiny, the In dissent, Judge Rogers indicated that he would have ap- In dissent, Judge Rogers indicated APPLYING 175 Id. Id. Id. Id. Id. R.J. Reynolds R.J. Reynolds applies to all but one graphic label and the text “1-800- applies to all but one graphic 176 test as “not quite as demanding as strict scrutiny.” test as “not quite as demanding as strict Zauderer If the Supreme Court is to hear an appeal of If the Supreme Court is to hear The court assumed for its decision that the government’s inter- for its decision that the government’s The court assumed Having found that found Having 172. 173. 174. 175. 176. 177. 171. scrutiny, and “[b]ecause this case also involves a compelled com- this case also involves scrutiny, and “[b]ecause the court applied mercial disclosure,” United States v. Philip Morris United States the First under level of protection receives a lower cial speech of scru- a lower level on it receive burdens imposed Amendment, the courts.” tiny from the Court must then determine the appropriate “fallback” review the Court must then determine the Court should determine that standard. As discussed below, Zauderer will have to determine the appropriate standard of review, which will have to determine the appropriate hinges first on whether assessing burdens on commercial speech has varied,” the Court on commercial speech has assessing burdens is clear: the gov- Supreme Court’s bottom line concluded that “the are narrowly tai- demonstrate its means ernment must affirmatively a substantial government goal.” lored to achieve ments. plied applied, he would have found the Graphic Warning Rule to be con- applied, he would have found the the inclusion of the “1-800-QUIT- stitutional, with the exception of NOW” smoking-cessation help line. est was substantial but found that the FDA had not provided “a but found that the FDA had est was substantial advance that that the graphic warnings would shred of evidence” interest. strict scrutiny, was the appropriate standard. was the strict scrutiny, “despite the contrary views of other circuits,” circuits,” of other views contrary the “despite tral Hudson Hudson dissenting). 290 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:265 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 26 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 151 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 151 35559-nys_69-1 35559-nys_69-1 Sheet No. 152 Side A 10/20/2014 11:50:05 180 R.J. Central Central Zauderer that Central Hudson exception is Central Hudson Zauderer withheld protection from a R.J. Reynolds R.J. Reynolds ’s consumer deception lan- is not applied in a uniform fash- is not applied in , 696 F.3d at 1217 n.11 (“ 182 , 823 F. Supp. 2d at 44 n.15. Central Hudson Zauderer applicable when consumer deception dealt with a government interest in preventing . Specifically, the Court should consider . Specifically, the Zauderer apply to the Graphic Warning Rule? the Graphic Warning apply to only is 179 ’s requirement of consumer deception, since ’s requirement Zauderer ’s withholding of First Amendment protection ’s withholding of First Amendment ’s rational basis test. But as is evident from the ’s rational basis Zauderer see also R.J. Reynolds court clarified that government entities “are free court clarified that government 1. Requirement The “Deception” the clearest route to the Rule being upheld is if it Rule being upheld route to the the clearest Zauderer 178 Zauderer Zauderer Zauderer at 626, 665. Zauderer See R.J. Reynolds-District Court Id. represents an opportunity for the Supreme Court to clarify for the Supreme Court represents an opportunity was the appropriate standard of review for the Graphic of review appropriate standard was the . A. Does Some courts have concluded from the consumer protection Some courts have concluded from Central Hudson 181 Although the government argued in the government Although The 178. 179. It is true that 180. of Supreme Court of Ohio, Zauderer v. Office of Disciplinary Counsel 181. 182. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 falls under above, decisions discussed that the courts. While courts agree ion among the circuit not opinion, is when the expression of facts, exception can apply do not agree on whether the compelled, they limited to compelled speech that is targeted at consumer decep- speech that is targeted at limited to compelled on granting certiorari to the government tion. Accordingly, Reynolds the application of eliminating is slight and in conflict the requirement as currently implemented with for deceptive speech. language that is implicated; others ignore guage in light of the Supreme Court’s statement in guage in light of the Supreme Court’s that “false, deceptive, and misleading” commercial speech is with- that “false, deceptive, and misleading” out First Amendment protection. also provides that commercial speech only receives First Amendment protection if also provides that commercial speech only receives First Amendment protection it is a lawful activity and is not misleading or fraudulent.”) (citation omitted). Hudson Rule, Warning to prevent the dissemination of commercial speech that is false, de- to prevent the dissemination of commercial an illegal transaction.” ceptive, or misleading, or that proposes consumers from being misled while statement that was itself misleading, but these concepts seem so inextricably linked statement that was itself misleading, but as to be practically redundant. 471 U.S. 626, 638 (1985) (citations omitted). U.S. 557, 576 (1980); But it also invoked in its holding the concept of consumer protec- But it also invoked in its holding tion. 2013] under analyzed be should two elements Those QUIT-NOW.” CLARITY DOCTRINAL AND HEALTH PUBLIC Hudson 291 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 27 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 152 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 152 35559-nys_69-1 35559-nys_69-1 Sheet No. 152 Side B 10/20/2014 11:50:05 185 that: Entertainment an advertiser’s the Supreme Court Instead, it applied ). Zauderer But it is debatable But it 183 Zauderer Zauderer ’s scrutiny is limited to laws to situations in which the governmen- to situations in which as long as disclosure requirements as long as disclosure Zauderer 184 court followed the former approach and lim- approach the former followed court , 696 F.3d 1205, 1227 n.6 (D.C. Cir. 2012) (Rogers, J., , 696 F.3d 1205, 1227 n.6 (D.C. Cir. 2012) Court considered its holding to be limited to to be limited its holding Court considered Zauderer framed its test in terms of the government framed its test in terms of the , 696 F.3d at 1227 (quoting , 471 U.S. at 651 (emphasis added). to situations in which the government regulation is regulation the government in which to situations Zauderer Zauderer Similarly, deception was not at issue in Similarly, deception was not at Court’s repeated emphasis on the importance of fac- Court’s repeated emphasis on the R.J. Reynolds R.J. in a situation when “the compelled disclosure at issue . . . in a situation when “the compelled 186 Zauderer See R.J. Reynolds R.J. Reynolds . More generally, commentators have questioned this de- . More generally, commentators Zauderer The italicized language is open to interpretation: it can be read is open to interpretation: The italicized language a “deception” requirement The Second Circuit did not apply The 184. 185. 186. Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 115 (2d Cir. 2001). 183. National Electrical Manufacturers Assn. v. Sorrell. National Electrical Manufacturers Assn. rights are adequately protected rights are adequately We do not suggest that disclosure requirements do not impli- do not disclosure requirements suggest that We do not recog- at all. We Amendment rights advertiser’s First cate the disclosure or unduly burdensome nize that unjustified by chilling offend the First Amendment requirements might speech. But we hold that protected commercial de- to the State’s interest in preventing are reasonably related ception of consumers. Because interest at stake in that case, preventing consumer deception, interest at stake in that case, preventing some have maintained as opposed to laws targeting targeting consumer deception, this interpretation ignores the other government interests. But Zauderer the public with informa- tual disclosures, in general, to provide whether the whether in Court noted The Supreme such situations. Software ception requirement: to limit the scope of to limit the scope in confusion or deception’ per was not intended to prevent ‘consumer se. . . .” Zauderer ited deception. to correct consumer intended or it can be prevention of consumer deception, tal interest is the sufficient, but not that having such an interest is read to indicate constitutional imprimatur. necessary, to receive the Court’s dissenting) (“As other circuits have recognized, in appears simply to have held that a government interest in protecting consumers from possible deception is sufficient to support a disclosure requirement—not that this particular interest is necessary to support such a requirement.”). 292 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:265 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 28 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 152 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 152 35559-nys_69-1 35559-nys_69-1 Sheet No. 153 Side A 10/20/2014 11:50:05 to —a 855, . 189 EV already Zauderer Central mislead- Zauderer- , the Su- Zauderer . U. L. R 140, 156 (2011); . inherently EV ENV In re R.M.J. D , we held that, ‘ . L. R , the Sixth Circuit 190 , 87 [,]” when it prescribed MEND A The Supreme Court con- The Supreme IRST F 188 Zauderer , 10 the Supreme Court “explained that the Supreme Court “explained Discount Tobacco whichsubject to a were not Similarly, the D.C. Circuit has admit- International Dairy Foods 187 191 , 471 U.S. at 652–53). of deception’ in that case was ‘self-evi- of deception’ in that case was 193 What the Abortion Disclosure Cases Say About the Constitu- What the Abortion Disclosure Cases Say About , 131 S.Ct. at 1340) (insertions in original). Milavetz The Skinny on the Federal Menu-Labeling Law & Why It The Skinny on the Federal Menu-Labeling applies when speech is inherently misleading applies when speech is inherently itself, the Supreme Court “demanded no evi- itself, the Supreme Court “demanded Zauderer— Zauderer Milavetz possibility , 130 S. Ct. at 1340. R.M.J., 455 U.S. 191, 203 (1982). Zauderer suggests that the challenged government action must suggests that the challenged government misleading. Zauderer (quoting Milavetz, Gallop & Milavetz, P.A. v. United States P.A. v. United Gallop & Milavetz, Milavetz, Furthermore, in In re Milavetz Id. ’s proclamation that deceptive commercial speech is commercial that deceptive ’s proclamation 192 Leslie Gielow Jacobs, Milavetz While there is logic to this position, especially in light of position, especially is logic to this While there 188. 130 S. Ct. 1324, 1340 (2010). 189. 190. 191. Spirit Airlines, Inc. v. U.S. Dept. of Transp., 687 F.3d 403, 412–13 (D.C. 192. 193. Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 524 187. Dayna B. Royal, potentially tion, and the minimal interest commercial speakers have to have speakers commercial interest minimal and the tion, information. this withhold type analysis, in part because the disclosures dealt with statements part because the disclosures dealt type analysis, in case that predated case that predated that “were not inherently misleading” and a situation in which “the misleading” and a situation that “were not inherently were to show that the appellant’s advertisements State had failed to mislead consumers . . . .” themselves likely trasted those disclosures with those at issue in with those at issue in trasted those disclosures 862–67 (2010). Cir. 2012) (quoting tionality of Persuasive Government Speech on Product Labels tionality of Persuasive Government Speech on ted that, in see also dence that the advertisements would be misleading because, as it dence that the advertisements would explained, ‘the dent.’” (6th Cir. 2012) (“In our decision in applies where a disclosure requirement targets speech that is agreed that or Hudson be directed at some form of deception, but it is unclear exactly what be directed at some form of deception, type of deception. In Should Survive a First Amendment Challenge without protection, the Supreme Court has suggested that some el- suggested that Court has protection, the Supreme without is required for if speculative, deception, even ement of the government had no need to produce ‘evidence that [the] ad- the government had no need to because, based on experience and vertisements [were] misleading’ of deception’ in that case was common sense, the ‘likelihood ‘hardly a speculative one.’” 2013] CLARITY DOCTRINAL AND HEALTH PUBLIC 293 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 29 15-OCT-14 11:04 apply. In apply. In the essen- that a challenged provision “share[d] preme Court noted rule at issue in tial features of the inherently mislead- to combat the problem of disclosures “intended advertisements[.]” ing commercial 35559-nys_69-1 Sheet No. 153 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 153 35559-nys_69-1 35559-nys_69-1 Sheet No. 153 Side B 10/20/2014 11:50:05 R 197 , which potentially is to be exception, it exception, Zauderer note 16. Zauderer supra Central Hudson ., In addition, a recent Sur- ERVS S to apply. 195 UMAN —self-evident. , the Supreme Court has an opportu- has an Court Supreme , the & H Zauderer EALTH to the Graphic Warning Rule. In this con- to the Graphic Warning Milavetz H If the textual warnings are ineffective, then sell- If the textual warnings are ineffective, and TOF ’ R.J. Reynolds R.J. 196 EP Zauderer D , Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 527–28, Cipollone v. Liggett Grp., Inc., 505 (1992) if tobacco manufacturers were to sell a product with were to sell a product if tobacco manufacturers 194 Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, Required Warnings for Cigarette Packages and Advertisements, 76 Required Warnings for Cigarette Packages U.S. Zauderer See See, e.g. See See If the expression in question is considered instead to be “sell- If the expression in question is By reviewing By reviewing This requirement, however minimal, slightly complicates the however minimal, slightly complicates This requirement, 197. 194. 195. 196. geon General’s report calls into question the effectiveness of the geon General’s report calls into existing warning. ing a cigarette package with textual warnings, but without a large ing a cigarette package with textual deceptive just as selling a ciga- graphic image, may be self-evidently would be. In addition, tobacco rette package without a warning of plainly deceptive marketing manufacturers engaged in years severe health consequences without any warning, deception would without any warning, severe health consequences be—as in ing a cigarette package with textual warnings, but without a large ing a cigarette package with textual deception becomes more ques- graphic image,” the existence of A crucial motivation for tionable, but likely can still be established. Graphic Warning Rule was that, enactment of the FSPTCA and the are too easy to ignore. In the without graphics, textual warnings expressed serious concerns about Graphic Warning Rule, the FDA the visibility of the current warnings. nity to do away with this vague requirement of consumer deception. consumer of requirement vague with this to do away nity the provide clarity to would not only Doing so would also bring the doctrine in line with in line with bring the doctrine would also misleading commercial protection to Amendment denies First this issue, Court on from the Supreme Absent clarification speech. of where the border to say exactly it is difficult application of expression in consider the potentially deceptive text, one might a warning.” That a cigarette package without question to be “selling be inherently government intervention, would expression, without misleading; drawn, but it seems that some quantum of actual or potential de- that some quantum of actual drawn, but it seems present for ception must be 562–63 (6th Cir. 2012). and they continue to do so; indeed, part of the point of the and they continue to do so; indeed, where . . . the speech at issue is ing . . . [it also] also controls our analysis misleading.’”). 294 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:265 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 30 15-OCT-14 11:04 (“[T]he cigarette manufacturer who represents the alleged pleasures or satisfac- (“[T]he cigarette manufacturer who represents must also disclose the serious risks to tions of cigarette smoking in his advertising Fed. Reg. 8324, 8356 (July 2, 1964)). life that smoking involves.”) (quoting 29 Fed. Reg. at 36,629 (citing an Institute of Medicine report that found the current warnings to be “invisible”). 35559-nys_69-1 Sheet No. 153 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 153 35559-nys_69-1 35559-nys_69-1 Sheet No. 154 Side A 10/20/2014 11:50:05 Zauderer The FDA 198 but that court’s portrays the use of portrays 199 , 696 F.3d. 1205 (D.C. Cir. court classified the images misleadingly R.J. Reynolds 202 ’s “deception” requirement by point- requirement ’s “deception” R.J. Reynolds court determined that the images the FDA court determined that the images 2. Fact Versus Opinion to apply, they universally agree that to apply, they universally Zauderer to apply, it seems likely that sufficient decep- to apply, it seems This, again, seems to be irrelevant, unless the This, again, seems to be irrelevant, which seems irrelevant to the question of whether which seems irrelevant to the question 201 , Brief of Amicus Curiae Defending Animal Rights Today & To- Zauderer to be applied to the FDA’s Graphic Warning Rule. to be applied to 200 Zauderer R.J. Reynolds Id. Id. See, e.g. Although it is unclear exactly what degree of deception is re- of deception what degree it is unclear exactly Although While courts have disagreed on whether deception is required disagreed on whether deception While courts have The 198. Control Act, Pub. L. No. 111- Family Smoking Prevention and Tobacco 199. F.3d 1205, 1216 (D.C. Cir. 2012). R.J. Reynolds Tobacco Co. v. FDA, 696 200. 201. 202. Zauderer may be able to meet may be misleading advertising. ing at such quired for deception, exists including inherent or historical tion, potentially for analysis is open to criticism. For example, the court noted that analysis is open to criticism. For FDA could be misinterpreted by “many of the images chosen by consumers,” court contends that factual information cannot be disseminated to court contends that factual information evoke an emotional response. the images were factual; factual information can certainly be misin- the images were factual; factual information terpreted. Furthermore, the “because—asas, at a minimum, not “purely” factual FDA tacitly ad- mits—they emotional response, are primarily intended to evoke an retaining the information in the or, at most, shock the viewer into text warning.” in order for not opin- the expression of factual information, applies only when by the Graphic Most of the warnings required ion, is compelled. because the tex- be considered factual, in part Warning Rule should manufacturers did not object) and tual warnings (to which tobacco be viewed together. But the smok- the graphic images are meant to removed from the warnings or ing cessation line should be to 1-800-784-8669. changed from 1-800-QUIT-NOW 31, 123 Stat. 1776, § 2(17) (emphasis added). morrow in Support of Neither Party at 6, 2012) (No. 11-5332), 2011 WL 6370458, *6 (“[T]he fact that the government se- lected graphic images which evoke strong emotions does not transform the regula- selected did not constitute factual information, selected did not constitute factual 2013] marketing. deceptive at attempts out recent stamp is to FSPTCA CLARITY DOCTRINAL AND HEALTH PUBLIC that included the FSPTCA supporting findings Congressional often product advertising “[t]obacco to minors.” and healthful as socially acceptable tobacco 295 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 31 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 154 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 154 35559-nys_69-1 35559-nys_69-1 Sheet No. 154 Side B 10/20/2014 11:50:05 203 ,to analyze the ef- it is proper Zauderer court also erred in considering images pre- images considering in also erred court and that is important to this analysis: images and that is important , 696 F.3d at 1211 (“The Companies do not dispute Con- 204 Zauderer R.J. Reynolds Reynolds R.J. Court invoked concepts of consumer confusion when ex- of consumer confusion concepts Court invoked See R.J. Reynolds —it to reason that an image that merely illustrates stands 205 The Warning 1 is an image of a man using an oxygen mask, which Warning 1 is an image of a man As noted above, the Sixth Circuit gave examples of images that the Sixth Circuit gave examples As noted above, 203.United States, 674 F.3d 509, 559 Disc. Tobacco City & Lottery, Inc. v. 204. of Supreme Court of Ohio, Zauderer v. Office of Disciplinary Counsel 205. need not communicate distinct information; instead, they can sim- need not communicate distinct message. When a textual warn- ply illustrate or highlight a textual ing is factual—and have conceded that tobacco manufacturers may factual by failing to challenge the warnings discussed herein are them the text cannot convert the warning into an opinion. the text cannot convert the warning suffering from a stroke or heart could be a treatment for someone related to smoking. This is most disease, conditions commonly of the textual statement. readily classifiable as a simple illustration additional information, it is that a If the image communicates any that require medical atten- stroke and heart disease are ailments Warnings 2 and 5 can be con- tion, information that is itself factual. describe a risk of smoking sidered together. The textual warnings tion from one which serves to inform into one which serves to advocate. Some facts tion from one which serves to inform into reality they convey is disturbing.”). and images are disturbing because the (6th Cir. 2012). illustrations or pictures in advertisements 471 U.S. 626, 647 (1985) (“The use of it attracts the attention of the audience serves important communicative functions: to the advertiser’s message, and it may also serve to impart information directly.”). gress’s authority to require health warnings on cigarette packages, nor do they the challenge the substance of any of the nine textual statements mandated by Act.”). These examples clearly support the FDA’s selection of the images clearly support the FDA’s selection These examples that was dis- They also demonstrate a distinction discussed below. cussed in 296 NYU the discussed, As in isolation. Rule Warning Graphic in the scribed ANNUAL SURVEY OFZauderer AMERICAN LAW doctrine. speech from the compelled factual statements cepting [Vol. 69:265 of the reasoning Following \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 32 15-OCT-14 11:04 fect of the images and textual warnings together, as they are in- together, as they textual warnings images and fect of the combined through their confusion to dispel consumer tended and labeled in the FDA selected are reproduced effect. The images in that Appendix. discussion uses the labels found Appendix A; this or drawing of a factual, including “a picture could be considered side . . . a picture smoker’s lungs displayed side by nonsmoker’s and suffering from a internal anatomy of a person or drawing of the drawing of a per- medical condition; a picture or smoking-related . . . .” a smoking-related medical condition son suffering from 35559-nys_69-1 Sheet No. 154 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 154 35559-nys_69-1 35559-nys_69-1 Sheet No. 155 Side A 10/20/2014 11:50:05 R R.J. court But the FDA 207 requires only that R.J. Reynolds Zauderer that, again, is not the requisite stan- that, again, is not the requisite 209 , 696 F.3d at 1216. note 155. inquiry by analyzing the relationship between the com- inquiry by analyzing the relationship The FDA has the stronger of the two arguments. The dis- stronger of the two arguments. The FDA has the See supra R.J. Reynolds ’s “factual” requirement even if it might not be rationally ’s “factual” requirement even if worried that this image “suggests that smoking leads to au- image “suggests that smoking leads worried that this 208 Warnings 1, 2, 3, 5, and 9 are easily classifiable as illustra- 9 are easily classifiable 1, 2, 3, 5, and Warnings Warning 7 warns of the effects of second-hand smoke on Warning 7 warns of the effects Warning 6 depicts a dead body, complete with autopsy sutures, a dead body, complete with autopsy Warning 6 depicts 206 Zauderer 206. 207. R.J. Reynolds Tobacco Co. v. FDA, 845 F. Supp. 2d 266, 273 (D.D.C. 208. Required Warnings for Cigarette Packages and Advertisements, 76 Fed. 209. addressed this concern in the Graphic Warning Rule. It contended in the Graphic Warning addressed this concern negative health shows a realistic outcome of the that “the image understand that by smoking . . . Viewers will consequences caused a smoking-related someone who has died from the image shows cause.” dard. At the most, this image adds to the textual statement the gloss dard. At the most, this image adds fatal lung disease,” which hardly that “individuals will cry if they get pelled statement and the government’s objective under apelled statement and the government’s rational the warning and consumer basis test. But the relationship between the image is factual. A gov- confusion has no bearing on whether “one person has had an autopsy ernment-compelled statement that illness” would surely satisfy as a result of a smoking-related Zauderer consumers. related to the goal of educating Although the others and depicts a woman crying. the compelled statement be factual. If, as the district court seemed the compelled statement be factual. but of little effect in dispelling to argue, the statement is factual be dealt with at the next stage of consumer confusion, that would the trict court imported a requirement that the government depict a trict court imported a requirement but “common consequence of smoking,” “offer any information about the contended that this image did not health effects of smoking,” tions that support the textual warning but add no independent textual warning support the tions that content. court in “Smoking can kill you.” The district and the statement, Reynolds to show that au- Government provides no support topsies; but the consequence of smoking.” topsies are a common 2012). Reg. at 36,655. 2013] child. and a a baby depict the images and children, and to babies CLARITY DOCTRINAL AND HEALTH PUBLIC factual a convert possibly cannot illustration simple sort of This similarly 3 and 9 are of opinion. Warnings into a statement message the images diseases and simply describes the text unobjectionable: 297 Sixth Cir- to by the a manner referred diseases in depict those cuit. \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 33 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 155 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 155 35559-nys_69-1 35559-nys_69-1 Sheet No. 155 Side B 10/20/2014 11:50:05 . at 36,695 But see id . Warning 4 states that ciga- . at 36,649, 36,657–59. Zauderer to apply to Warning 4. See id Zauderer Warning 4 seems to indicate that smoking is so ad- Warning 4 seems to indicate that But unlike Warning 6, which, when read literally, But unlike Warning 6, which, 211 210 The potential problem with Warning 4 becomes clearer when The potential problem with Warning In Warning 8, a man is depicted opening his shirt in a style his shirt in depicted opening 8, a man is In Warning to find that however, for the Court It would be reasonable, 210. and Advertisements, 76 Fed. Required Warnings for Cigarette Packages 211. The FDA’s discussion of this “hole in throat” warning largely focused on it is compared with other images the FDA considered to accompany it is compared with other images Appendix B contains the al- the textual statement about addiction. that was chosen, none of these ternative images. Unlike the image that is not factually supported, images make on their face a claim interpreted as doing so. The first although two of them could be that cigarettes are addictive, image is clearly intended to indicate dictive that people smoke despite having stomas from cancer; the dictive that people smoke despite to establish the truth of this pro- FDA should perhaps be required position in order for depicts something that has certainly happened, the FDA did not depicts something that has certainly while having a stoma in his establish that anyone has ever smoked or her neck. (characterizing, without discussion, all of the images as “convey[ing] information of that is factual and uncontroversial regarding the negative health consequences smoking”). Reg. at 36,649. its efficacy, rather than its accuracy. 298 would manufacturers tobacco the that a proposition to be seems NYU to argue. care ANNUAL SURVEY OF AMERICAN LAW“I QUIT.” reading with his undershirt of Superman, reminiscent [Vol. 69:265 The text—“Quittingserious risks to reduces smoking now greatly your health”—is illustrate does not merely but the image factual, of a man by the image accompanied only If the text were the text. clearly be unob- his undershirt, that image would without showing the man’s under- the question is whether jectionable; accordingly, warning from one to Superman converts this shirt and the allusion or opinion. one that carries an ideological message that is factual to than expres- reads only “I QUIT” rather Given that the undershirt message, and tak- opinion or an ideological sing the government’s man as someone that it was necessary to label the ing into account Warning 8 should on balance it seems that who had quit smoking, qualify as factual. Warning 4 does not fall under \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 34 15-OCT-14 11:04 rettes are addictive and is accompanied by an image of a man smok- rettes are addictive and is accompanied indicated that this “image clearly ing through a stoma. The FDA cigarettes, depicting a man who is portrays the addictive nature of (a stoma in his neck) of surgery still smoking despite prior evidence for cancer.” 35559-nys_69-1 Sheet No. 155 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 155 35559-nys_69-1 35559-nys_69-1 Sheet No. 156 Side A 10/20/2014 11:50:05 , , as it Zauderer R.J. Reynolds perspective. Zauderer , see should apply to Zauderer Zauderer Zauderer Central Hudson when a compelled statement falls The Sixth and Seventh Circuits apply strict The Sixth and Seventh Circuits Apart from the fact that this line is a smoking Apart from the which crosses the line of advocating for certain which crosses the 214 . and its progeny, then we apply a rational-basis standard. If it 212 213 Central Hudson Part III.B. Zauderer Zauderer The Ninth Circuit declined to follow the Seventh Cir- The Ninth Circuit declined to B. The Appropriate Standard Outside of 215 See supra The discussion above establishes that The discussion above establishes In addition to the potential exclusion of Warning 4, potential exclusion of Warning In addition to the 212. For an analysis of the quit line under 213. Required Warnings for Cigarette Packages and Advertisements, 76 Fed. 214. 215. Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 554 696 F.3d 1205, 1236–37 (D.C. Cir. 2012) (Rogers, J., dissenting). scrutiny. all but one graphic label and the text reading “1-800-QUIT-NOW.” all but one graphic label and the would be ideal to establish the ap- For these remaining elements, it that is not an easy task. The D.C. propriate standard of review, but Circuit applies outside of cessation hotline, the number itself reads behavior rather than informing consumers, government likely could not re- like an imperative statement. The include the phrase “quit smoking” quire tobacco manufacturers to effect of the inclusion of “1-800- on its packaging, but that is the instead read “1-800-784-8669,” QUIT-NOW.” If, however, the text on the basis that it would then it would arguably be permissible available resource, rather than ac- merely inform consumers of an tively advocate a course of action. Reg. at 36,684. the (6th Cir. 2012) (“If a commercial-speech disclosure requirement fits within framework of 2013] is true While it arm. his or her into inject one might drugs that like CLARITY DOCTRINAL AND HEALTH PUBLIC indi- that to mean literally this image interpret could someone that that goes using a cigarette, inject tobacco attempted to viduals have a plausible interpretation. sense to be against common too strongly 299 rain: this smoking in the depicts a woman image simply The second a of the images from objectionable is the least users are manipulated that cigarette third image implies Finally, the by their puppe- like marionettes are manipulated by their addiction would possibly not qualify under teers. This image adds a fanciful of depiction or illustration and leaves the realm it is nonetheless to the textual warning. But layer of metaphor for Warning 4, than the image actually chosen closer to the line might be demon- that appears realistic but which depicts a scenario strably false. \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 35 15-OCT-14 11:04 should not apply to the inclusion of “1-800-QUIT-NOW” in the to the inclusion of “1-800-QUIT-NOW” should not apply graphic warnings. 35559-nys_69-1 Sheet No. 156 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 156 35559-nys_69-1 35559-nys_69-1 Sheet No. 156 Side B 10/20/2014 11:50:05 R.J. but This 217 should applies , 219 sets forth 218 Wooley v. May- Riley Zauderer (No. 11-5332), 2011 WL Nat’l Elec. Mfrs. Ass’n v. Sor- Central Hudson Hudson Central Central Hudson R.J. Reynolds court’s approach here because it is not This Note contends that the Graphic 220 Blagojevich Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729 (U.S. Brown v. Entm’t Merchants Ass’n, 131 , of Amicus Curiae Defending Animal Rights Today & To- Brief at 557 (describing the approach taken in Court specifically noted that the commercial speech at is- that the commercial noted Court specifically aff’d sub nom. The Supreme Court applied strict scrutiny in strict scrutiny applied Court Supreme The See, e.g. Id. . But this is not universally adopted; the fact that the Su- universally adopted; the fact that . But this is not . 1. Under Rational Basis Review or Strict Scrutiny Analysis 216 If the Supreme Court were to determine that If the Supreme Court were to determine Courts have emphasized that commercial speech categorically that commercial emphasized Courts have Riley 217. Inc., 487 U.S. 781, 796 (1988). Riley v. Nat’l Fed’n of the Blind of N.C., 218. 216. 556 F.3d 950, 967 (9th Video Software Dealers Ass’n v. Schwarzenegger, 219. Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 561 220. and its ilk and apply strict scrutiny.”) (citations omitted); Entm’t Software and its ilk and apply strict scrutiny.”) , 272 F.3d 104 (2d Cir. 2001)). C. Under Various Standards Analysis of the Graphic Warning Rule the analysis can rely on “common sense” and the means can advance analysis can rely on “common sense” the purpose “only slightly.” sue was intertwined with other “fully protected” speech. other “fully protected” intertwined with sue was the correct standard for compelled commercial speech outside of for compelled commercial the correct standard Zauderer approach is an- be able to clarify the correct preme Court would certiorari weighs in favor of its granting other factor that over Reynolds receives less First Amendment protection than other “fully pro- than other protection less First Amendment receives applied by has only been and strict scrutiny of speech, tected” forms con- to compelled speech in noncommercial the Supreme Court it stands to reason that texts. Accordingly, and, accordingly, rational basis to the graphic warning requirement would almost certainly be review was appropriate, the regulation muster under this stan- upheld in its entirety. To pass constitutional connection between the warn- dard, there must only be a “rational to achieve that purpose.” ings’ purpose and the means used apply. clear what authority supported its application of strict scrutiny, and we conclude clear what authority supported its application under a less-strict review standard.”). that the labeling requirement here is invalid rell does not, then we treat the disclosure as compelled speech under does not, then we treat the disclosure nard (7th Cir. 2006) (“The sticker ultimately Ass’n v. Blagojevich, 469 F.3d 641, 652 controversial message . . . . For these rea- communicates a subjective and highly SEVGL’s requirement that the “18” sticker sons, we must apply strict scrutiny to the be placed on all covered video games.”). Cir. 2009) 2011) (“We do not adopt the *3, morrow in Support of Neither Party at 300 that hold not expressly it did although cuit, NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:265 Court case has ever found strict scrutiny 6370458 (arguing that “[n]o Supreme applicable to compelled commercial speech.”). (6th Cir. 2012). \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 36 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 156 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 156 35559-nys_69-1 35559-nys_69-1 Sheet No. 157 Side A 10/20/2014 11:50:05 R For 223 Central Central Hud- simply apply simply It is clear that the sale 224 Central Hudson Central Hudson test. When applying ). test as follows: Central Hudson Test note 106, at 136 (“While some laws survive such rigorous note 106, at 136 (“While some laws survive Central Hudson Strict scrutiny requires that a statute or regula- Strict scrutiny requires 2. Under Analysis Central Hudson Part IV.C.2. Part IV.A.1. 222 Given the lax nature of the rational basis test, all basis rational of the nature the lax Given supra 221 The Supreme Court has most recently restated the re- The Supreme Court has most recently infra 225 does not apply to all or part of the Graphic Warning Rule, does not apply to all or part of the test. See supra Central Hudson On the other hand, if the Supreme Court were to follow the were to follow Supreme Court other hand, if the On the As discussed above, should the Supreme Court determine that As discussed above, should the Supreme 221. See 222. Strauss, 223. United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000). 224. Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 522 225. , will first “determine whether the expression is pro- a court reasons discussed in greater detail below, it is likely that the govern- in greater detail below, it is likely reasons discussed arguable that the is truly compelling, and it is ment’s interest here interest. But a less tailored to promote that FDA’s Rule is narrowly could simply clearly exists: the government restrictive alternative compel tobacco warnings itself, rather than advertise the graphic doubtlessly be do so. While this alternative would manufacturers to requiring warning labels, it still less efficient and less effective than Rule to fail to meet strict would likely cause the Graphic Warning scrutiny’s severe final requirement. of tobacco products is a lawful activity. This analysis assumes that of tobacco products is a lawful commercial expression in ques- the Supreme Court would find the discussed above, this is not a tion to not be misleading; for reasons certainty. tion be “narrowly tailored to promote a compelling Government tailored to promote a compelling tion be “narrowly serve the Gov- a less restrictive alternative would interest,” and “[i]f alternative.” the legislature must use that ernment’s purpose, arguments that the Rule would pass that the Rule arguments force. with greater that and determine and Seventh Circuits of the Sixth approach Rule the Graphic Warning is unlikely that applies, it strict scrutiny survive strict a preliminary matter, few enactments would survive. As scrutiny review. mainder of the Zauderer it could apply the son which, in the context of tected by the First Amendment,” the expression in question “con- commercial speech, requires that cern lawful activity and not be misleading.” scrutiny, most do not.”). (6th Cir. 2012) (quoting a. The 2013] more rigorous the under be upheld would Rule Warning CLARITY DOCTRINAL AND HEALTH PUBLIC Hudson 301 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 37 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 157 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 157 35559-nys_69-1 35559-nys_69-1 Sheet No. 157 Side B 10/20/2014 11:50:05 229 230 . test are not entirely dis- test are not entirely Despite being “skeptical” of This section examines first This section examines FDA v. Brown & Williamson To- 228 227 Central Hudson Central Hudson requires that the challenged government action requires that the challenged government 226 at 1218 n.13. , in which Justice O’Connor called smoking “perhaps the , in which Justice O’Connor called Id. Id. “The four parts of the “The four parts Central Hudson The D.C. Circuit identified the FDA’s interest as “en- The D.C. Circuit identified 226. 2653, 2667–68 Sorrell v. IMS Health Inc., 131 S. Ct. (2011) (citations and 227. Greater New Orleans Broad. Ass’n, Inc. v. United States, 527 U.S. 173, 228. R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205, 1218 (D.C. Cir. 2012). 229. 230. [The proponent of the restriction] must show at least that the at least show must restriction] of the proponent [The interest governmental substantial a advances directly statute There that interest. drawn to achieve the measure is and that cho- and the means legislature’s ends a fit between the must be stan- contexts, these ends. As in other those sen to accomplish are State’s interests that the not only dards ensure but placed on speech burdens to the resulting proportional a disfavored does not seek to suppress also that the law message. the fact that the government could properly “assert a substantial the fact that the government could from purchasing a lawful prod- interest in discouraging consumers asserted interest was substantial. uct,” that court assumed that the the nature of the government’s interest and then the “direct im- government’s interest and then the nature of the of pact” and “fit” requirements crete. All are important and, to a certain extent, interrelated: Each and, to a certain extent, crete. All are important to the First question that may not be dispositive raises a relevant inform a judg- but the answer to which may Amendment inquiry, the other three.” ment concerning advance a “substantial governmental interest.” The graphic warning advance a “substantial governmental one interest that is undeniably sub- label requirement is directed to use. The extent to which stantial: decreasing underage tobacco directed are both substantial and other interests toward which it is permissible is debatable. quit and dissuad[ing] other con- courag[ing] current smokers to sumers from ever buying cigarettes.” internal quotation marks omitted). 183–84 (1999). The court conceded that the Supreme Court has “at least implied” The court conceded that the Supreme governmental interest based that smoking cessation is a legitimate in on the Supreme Court’s decision bacco Corp. health in the United States.” most significant threat to public b. Identifying the Government’s Interest 302 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:265 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 38 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 157 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 157 35559-nys_69-1 35559-nys_69-1 Sheet No. 158 Side A 10/20/2014 11:50:05 Ac- 233 235 But this does not 234 , it was not permitted to , 696 F.3d 1205 (D.C. Cir. 2012) (No. 12- Central Hudson decision gives the government’s asserted decision gives the government’s R.J. Reynolds The FDA’s Graphic Warning Rule, itself over The FDA’s Graphic 111-58(I), at 14 (2009). . 231 Required Warnings for Cigarette Packages and Advertise- Required Warnings for Cigarette Packages Congress and the FDA establish a prospect that Congress and the O 232 . N R.J. Reynolds EP This could be a more nuanced interest than simply stop- This could be a more nuanced interest (citing Edenfield v. Fane, 507 U.S. 761, 768 (1993)). (citing Edenfield v. Fane, 507 U.S. 761, H.R. R See generally Id. 236 The D.C. Circuit focused solely on the FDA’s stated purpose focused solely on the FDA’s stated The D.C. Circuit Both Congress and the FDA listed the myriad health conse- health the myriad listed the FDA and Congress Both 231. Control Act, Pub. L. No. 111- Family Smoking Prevention and Tobacco 232. 233. United States, 674 F.3d 509, 558 Disc. Tobacco City & Lottery, Inc. v. 234. 235. intent. See Supplemental The district court also ignored congressional 236. cordingly, the tobacco use is undeniably purpose short shrift. Stopping underage But legislative history shows that a legitimate governmental interest. were also “to protect the public the objectives of the FSPTCA health.” give the court license to ignore the purposes of Congress, which give the court license to ignore the Graphic Warning Rule. mandated that the FDA enact 131,000 words, cites to its own studies as well as public and private to its own studies as well as 131,000 words, cites including those domestically and internationally, studies performed of Health Disease Control, the U.S. Department of the Center for of the National the Institute of Medicine and Human Services, Health Services the Substance Abuse and Mental Academies, and Administration. the Sixth Circuit considered “beyond cavil”: “[T]hat smoking considered “beyond cavil”: the Sixth Circuit warnings.” health risks described in the presents the serious quences of smoking, especially on children and adolescents. The and adolescents. on children especially smoking, of quences with the of which dealt findings, many forty-nine Act included that “[a] Congress found For example, of smoking. health effects that medical communities scientific and exists within the consensus heart and cause cancer, dangerous products are inherently tobacco and that effects,” adverse health and other serious disease, of premature is the foremost preventable cause “[t]obacco use death in America.” and indicated that, under asserted. make assumptions as to the interests 31, 123 Stat. 1776, §§ 2(2), (13). ments, 76 Fed. Reg. at 36,748–53. (6th Cir. 2012). Brief for Appellants at 4–5 5063), 2012 WL 930356, at *4–5 (“Turning principles of judicial review on their for deference to Congress’s judg- head, the [district] court dismissed the argument . . The district court failed to heed . . . the ment as an oh-too-convenient dodge . . must be accorded to Congress’s find- Supreme Court’s explanation that deference ings as to the harm to be avoided and to the remedial measures adopted for that end, lest a court infringe on traditional legislative authority to make predictive judgments when enacting nationwide regulatory policy.”) (citations and alterations omitted). 2013] CLARITY DOCTRINAL AND HEALTH PUBLIC 303 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 39 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 158 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 158 35559-nys_69-1 35559-nys_69-1 Sheet No. 158 Side B 10/20/2014 11:50:05 this The 242 238 while this 240 which admits 241 test are not entirely test overlap, court surmised, the surmised, court Central Hudson R.J. Reynolds R.J. Central Hudson applying the default standard might applying the default 239 If, as the If, as 111-58(I), at 3. . O 237 . N EP at 4 (“For too long, the tobacco industry in the United States has at 4 (“For too long, the tobacco industry H.R. R at 4. Id. See id. See It is possible, therefore, to define broadly the governmental in- to define broadly the governmental It is possible, therefore, Since the elements of the 240. 241. Required Warnings for Cigarette Packages and Advertisements, 76 Fed. 242. Greater New Orleans Broad. Ass’n, Inc. v. United States, 527 U.S. 173, 237. 238. Congress wanted to ban smoking It is probable that some members of 239. fact that Congress was willing to allow smoking to continue is re- to continue to allow smoking Congress was willing fact that to regulate FDA the ability gave the the fact that Congress flected in as opposed public health,” for the products “as appropriate tobacco products to be default FDA standard of regulating to applying the effective”; “safe” or “safe and section discusses the remaining requirements together. “The chal- section discusses the remaining lenged regulation [must] advance[ interest in a ] the Government’s could indicate an intent to stop individuals from smoking, it also intent to stop individuals from could indicate an intent to better inform the public. could indicate an is intended the Graphic Warning Rule. It certainly terest that drives is possibly also in- underage smoking. It to decrease or eliminate on the analysis smoking entirely, though based tended to eradicate it is intended to educate potential above it seems more likely that Perhaps most importantly, the smokers as to the risks of smoking. of public health,” Rule was enacted “in the interest to varied interpretations. have required the FDA to ban cigarettes. Finally, legislative history FDA to ban cigarettes. Finally, have required the current Surgeon was concerned that “[t]he indicates that Congress on tobacco products are ineffective;” General warnings intent of the FSPTCA was absolute smoking cessation, then it stands cessation, then absolute smoking the FSPTCA was intent of smoking illegal. would have made that Congress to reason discrete.”). Reg. at 36,629. 183–84 (1999) (“The four parts of the escaped the type of ordinary product regulation that applies to most other con- escaped the type of ordinary product regulation the playing field with respect to tobacco sumer products. This legislation levels protected and improved.”). products so that public health may be at all. To the extent that inquiring into entirely, and some wanted no regulations approach is to look at intent as expressed legislative intent is reasonable, the best which likely represent a compromise by congressional enactments and findings, among various stakeholders. c. The “Fit” and “Direct Advancement” Requirements 304 of informed a notion it incorporates from smoking; people ping NYU to smoking. consent ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:265 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 40 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 158 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 158 35559-nys_69-1 35559-nys_69-1 Sheet No. 159 Side A 10/20/2014 11:50:05 R.J. also requires a also requires Finally, the FDA cited in Central Hudson Central Hudson 249 244 The FDA relied on international seeming to require proof positive seeming to require 248 246 The Government must demonstrate must Government The 243 245 111-58(I), at 4 (2009) (“The current Surgeon General 111-58(I), at 4 (2009) (“The current Surgeon . majority found evidence of the relationship majority found O Required Warnings for Cigarette Packages and Advertise- . N , 696 F.3d 1205, 1219 (D.C. Cir. 2012). to address this, the FDA meticulously planned the to address this, the FDA meticulously EP Part I.B. 247 H.R. R R.J. Reynolds See generally See supra Id. R.J. Reynolds See numerous studies that support the proposition that the numerous studies that support It seems clear that the FDA did provide substantial evidence It seems clear that the FDA did The 248. 249. 243. United States, 674 F.3d 509, 523 Disc. Tobacco City & Lottery, Inc. v. 244. 245.Fox, 492 U.S. 469, 480 (1989). Bd. of Trus. of State Univ. of N.Y. v. 246. 247. Reynolds support its goal of having a - memorable graphic warnings will reasonable fit between the challenged action and the government challenged action fit between the reasonable restrictive to use “the least is not required the government interest; that is not means-ends fit to show a available, but instead means” perfect, but reasonable. consensus as to the efficacy of graphic warnings and promulgated a consensus as to the efficacy of graphic rule that comports with the FCTC. that graphic warnings will reduce smoking among adolescents. But will reduce smoking among that graphic warnings assuming arguendo did not show that the graphic that the FDA court reads the decrease underage smoking, the warnings would the FDA has nu- too narrowly. As discussed above, FDA’s objective By requir- that were broadly defined by Congress. merous purposes youth smoking, prove that the warnings will affect ing the FDA to Congress’s conception of the pur- the D.C. Circuit simply replaces pose of the FSPTCA with its own. better education of the public that Congress’s goals, which include be furthered by the Rule. The in support of public health, would that current warnings are too FDA and Congress both concluded easily ignored; this not “by mere speculation or conjecture,” but by showing “that showing but by or conjecture,” mere speculation not “by this fact allevi- will in and that its restrictions it recites are real the harms degree.” to a material ate them warning requirement to communicate health information in an ef- warning requirement to communicate fective and memorable way. warnings on tobacco products are ineffective in providing adequate warnings warnings on tobacco products are ineffective Required Warnings for Cigarette Pack- about the dangers of tobacco products.”); ages and Advertisements, 76 Fed. Reg. at 36,629 (citing an Institute of Medicine report that found the current warnings to be “invisible”). ments, 76 Fed. Reg. at 36,629–36. between the government’s means and ends to be “underwhelming” means and ends to be between the government’s misleading,” and “somewhat (6th Cir. 2012) (citation omitted). 2013]way.” and material direct CLARITY DOCTRINAL AND HEALTH PUBLIC 305 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 41 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 159 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 159 35559-nys_69-1 35559-nys_69-1 Sheet No. 159 Side B 10/20/2014 11:50:05 test, , with the In addition, by Zauderer Central Hudson , 696 F.3d 1205 (No. 11-5332), by removing the inconsis- Central Hudson. Zauderer R.J. Reynolds CONCLUSION When the governmental interest is defined is interest the governmental When , the Supreme Court could not only clarify , the Supreme Court could not 250 . As demonstrated above, there are interpreta- . As demonstrated R.J. Reynolds R.J. Reynolds The Graphic Warning Rule is directed at a public health crisis, a public health is directed at Warning Rule The Graphic The Supreme Court should overturn the D.C. Circuit’s deci- should overturn the D.C. The Supreme Court 250. Brief for Appellants at 32–33, broadly, the Rule both directly and materially advances that advances materially and both directly Rule the broadly, interest. In de- interest. is a compelling government of which the abatement health “fit” with its public the Rule did not the means of ciding that tried to Congress, which no deference to court accorded ends, the warnings by of the current Surgeon General’s remedy the inefficacy Congress’s to suggest graphic labels. In effecting requiring the FDA on labeling re- relied on international consensus intent, the FDA all or part of the numerous scientific studies. If quirements and Rule is considered under the Graphic Warning sion in it should pass constitutional muster. it should pass constitutional and commercial speech doctrines tions of the compelled speech Warning Rule to be upheld, that would allow the FDA’s Graphic to govern the response to un- thereby allowing congressional intent this Note proposes that most ele- derage tobacco use. In particular, under ments of the Rule can be upheld remaining elements upheld under reviewing interact, but also resolve dis- how these two important doctrines crepancies in the application of deception. tently applied requirement of consumer 2011 WL 6179451, at *32–33 (citations and edits omitted) (“A recent review that concluded that significant proportions of summarized the results of 15 studies text and pictorial health warnings have adult and youth smokers report that large their likelihood of quitting, increased reduced their consumption levels, increased the likelihood of remaining abstinent fol- their motivation to quit and increased lowing a quit attempt. Similarly, a study comparing the European Union’s large, text-only warnings to its new pictorial warnings concluded that the results clearly demonstrate that visual messages, as opposed to text warnings, are more effective. Research also suggests that larger pictorial warnings sustain their effects longer than their text-only counterparts.”). 306 public. ter-informed NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:265 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 42 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 159 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 159 35559-nys_69-1 35559-nys_69-1 Sheet No. 160 Side A 10/20/2014 11:50:05 251 APPENDIX A APPENDIX 251. These images appeared in their original form in full color. Warning 3 Warning 2 2013] CLARITY DOCTRINAL AND HEALTH PUBLIC 307 1 Warning \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 43 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 160 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 160 35559-nys_69-1 35559-nys_69-1 Sheet No. 160 Side B 10/20/2014 11:50:05 Warning 6 Warning 5 308 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:265 4 Warning \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 44 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 160 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 160 35559-nys_69-1 35559-nys_69-1 Sheet No. 161 Side A 10/20/2014 11:50:05 Warning 9 Warning 8 2013] CLARITY DOCTRINAL AND HEALTH PUBLIC 309 7 Warning \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 45 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 161 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 161 35559-nys_69-1 35559-nys_69-1 Sheet No. 161 Side B 10/20/2014 11:50:05 252 APPENDIX B APPENDIX 252. These images appeared in their original form in full color. 310 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:265 \\jciprod01\productn\N\NYS\69-1\NYS110.txt unknown Seq: 46 15-OCT-14 11:04 35559-nys_69-1 Sheet No. 161 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 161 35559-nys_69-1 35559-nys_69-1 Sheet No. 162 Side A 10/20/2014 11:50:05 R R R R R R R R R R R R R R R R ...... 327 ...... 316 ...... 326 ...... 326 ...... 319 ...... 321 ...... 317 ...... 318 311 ...... 324 ...... 329 ...... 320 ...... 315 Statuses EMILY WINOGRAD LEONARD* EMILY WINOGRAD ...... 315 SEXUAL ABUSE CASES SEXUAL ABUSE a. Child Custody Proceedings b. Child Protection Proceedings c. of Failure to Protect Application Discrimination Doctrine Today: Stereotypes Discrimination Doctrine Today: About Motherhood Implicate Anti- Stereotyping Theory AbuseFailure to Protect from Child Sexual . . 323 Principles ...... 312 TO PROTECT FROM CHILD FROM TO PROTECT 2. Anti-Stereotyping Principles in Sex 3. to Anti-Stereotyping Theory as Applied 1. The Ideal Mother in Family Law 1. Establishing Neglect 2. Failure to Protect 1. Early Articulations of Anti-Stereotyping EXPECTING THE UNATTAINABLE: THE EXPECTING to Finish B. The Ideal Mother A. The Process B. for Failure to Protect Legal Standard A. Anti-Stereotyping Theory CASEWORKER USE OF THE “IDEAL” OF THE USE CASEWORKER MOTHER STEREOTYPE AGAINST THE AGAINST STEREOTYPE MOTHER I. from Start Child Protection Proceeding A New York * Executive Article Editor 2012–13, Survey of American Law. N.Y.U. Annual II. Anti-Stereotyping Principles. Gender Stereotypes and 319 NONOFFENDING MOTHER FOR FAILURE MOTHER NONOFFENDING J.D. 2013, N.Y.U. School of Law; B.A. 2010, Cornell University. To the many J.D. 2013, N.Y.U. School of Law; B.A. Family Defense Practice (formerly attorneys at Brooklyn Defender Services, you for your thoughts, insights, and Brooklyn Family Defense Project), thank immense help throughout this process. I would especially like to thank Tara Urs, for former staff attorney at Brooklyn Family Defense Project, who inspired the idea this Note. Special thanks to Professor Yolanda Wu, Stephen Elkind and the N.Y.U. I Annual Survey of American Law for all of their helpful comments and assistance. would also like to thank my husband and family for all of their support. \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 1 20-OCT-14 8:42 Introduction 35559-nys_69-1 Sheet No. 162 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 162 35559-nys_69-1 35559-nys_69-1 Sheet No. 162 Side B 10/20/2014 11:50:05 R R R R R R R R R R R R R R R R R R R R ...... 351 ...... 352 ...... 350 ...... 334 ...... 336 ...... 352 ...... 329 ...... 341 ...... 346 ...... 337 ...... 338 ...... 343 ...... 329 ...... 338 In re KA In re ...... 336 ...... 348 INTRODUCTION ...... 353 a. The Facts b. The Discussion a. The Facts b. The Discussion a. The Facts b. Use of Stereotype Discussion c. at Its Inception. the Stereotype Attacking 335 Standard for Neglect Child Mother’s Ability to Protect Her Need Time to Process a Disclosure That Her Need Time to Process Sexually Abused. She Will Daughter Has Been A Mother Who Be Proactive, Immediately. in This Way Will Be Blamed Does Not React for the Abuse of Sexual Question Her Child’s Allegation Abuse. She Believes Her Child Immediately. Believe A Mother Who Does Not Immediately MotherHer Daughter’s Allegation Is a Bad . . 343 ...... 356 the Motivating Factor in Deciding to File a the Motivating Factor in Deciding Mother Petition Against the Nonoffending Parent Neglect for Child Sexual Abuse When Compared Neglect for Child of Offense with Their Rates 1. with the FCA Relying on Belief Is Inconsistent 2. for a Belief Is Not an Adequate Proxy 1. Ideal Mother Does Not Case Study #1: The 2. Does Not Case Study #2: The Ideal Mother 2. Example: An Sexual Abuse Cases Sexual Abuse A. More Time Before a Peitition Is Filed B. Should Not Be Belief at the Time of Disclosure C. on the Nonoffending Trainings for Caseworkers B. Studies The Case A. with Are Disproportionately Charged Mothers IV. Recommendations III. Child in Nonoffender to File a Petition The Decision Imagine for a minute that you are a mother. You have three children: two boys, ages two and four, and a little girl, six years old. On a Mon- day morning you are walking your daughter to school. She tells you, “Sometimes Daddy puts his thing in my butt.” Your heart skips a beat. Conclusion 312 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:311 \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 2 20-OCT-14 8:42 35559-nys_69-1 Sheet No. 162 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 162 35559-nys_69-1 35559-nys_69-1 Sheet No. 163 Side A 10/20/2014 11:50:05 The Social Psychology , Joan C. Williams, See, e.g. this Note argues that the use of gender stereotypes during this Note argues that the use of 1 While this may seem like an exceptional case, variants of this While this may seem like an exceptional 1. Some legal scholars propose using social science research as an appropri- But you can’t cry. She can’t see you cry. You ask her for more details, her for more You ask you cry. can’t see cry. She you can’t But process this need to that you decide else. You say much does not but she is a loving, affectionate lie about this? He Why would she information. No, he isn’t he? a finger on your children, would never lay father who home on your way baby girl. You decide do that to your would never you and your daughter an appointment for going to make that you are this how to deal with someone who knows therapist together, to go see a and set up an it will all be figured out. You call kind of thing, and appointment. school and you get a call from your daughter’s Tuesday rolls around late recently. it has something to do with her being principal. You think counselor daughter confided in the school guidance She tells you your calls in a report sexually abusing her. The principal that her father was husband is for Children’s Services (ACS). Your to the Administration asks you how comes to your home that day and arrested. A caseworker not you believe tell her you are not sure whether or you are feeling. You will be im- You are scared that your husband that this could happen. so traumatic and new. prisoned for a long time. This is all You are put on the witness Two days later you are called into court. you didn’t initially think that stand to testify. You admit that, while your family, you have had some something like this could happen in now you believe your daughter. time to process this information, and is released from prison you will You tell the judge that if your husband “exercised poor judgment,” the not allow him to enter your home. You go to something that seems like a judge says. A year later, you finally failure to protect your daughter trial. You are charged with neglect for children are taken away from you from sexual abuse. All three of your the judge decides they are in that day to live with their aunt, because says that you should have known danger living with you. The judge about the abuse. of Stereotyping: Using Social Science to Litigate Gender Discrimination Cases and Defang the of Stereotyping: Using Social Science to Litigate Gender Discrimination Cases and Defang ate lens through which to analyze legal issues surrounding the intersection of gen- der discrimination and motherhood. 2013] UNATTAINABLE THE EXPECTING 313 abuse investigations and in pro- storyline abound in neglect and analyzes caseworker treatment ceedings in family court. This Note family court child sexual abuse of the nonoffending mother in supported by social science litera- cases. Using anecdotal evidence ture, \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 3 20-OCT-14 8:42 35559-nys_69-1 Sheet No. 163 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 163 35559-nys_69-1 35559-nys_69-1 Sheet No. 163 Side B 10/20/2014 11:50:05 . 401, 403 (2003) (documenting J Y ’ Part II.B describes the specific Part II.B describes 2 OL . P MP . & E TS . R MP E , 7 Part I.A briefly describes the workings of a child protection the workings briefly describes Part I.A 2. Note does not attempt to argue that caseworker treatment of mothers This the social psychology behind two forms of sex discrimination to “help employment the social psychology behind two forms story in meritorious cases of sex lawyers use social science to tell a convincing discrimination”). in failure to protect cases rises to a constitutional violation. Rather, an understand- ing of the constitutional issues relating to stereotypes about motherhood is neces- sary to appreciate the importance of combating these stereotypes. This Note the articulates a non-constitutional remedy intended to influence caseworkers on ground. “Cluelessness” Defense 314 ste- on such reliance and that abounds, investigations caseworker NYUagainst cases brought of large number to the contributes reotypes ANNUAL SURVEY OF mothers. nonoffending AMERICAN LAW [Vol. 69:311 “failure to for the the legal standard Part I.B outlines proceeding. brings under which ACS Family Court Act provision of the protect” mother. of the “ideal” the stereotype Part II explores these cases. this Note pro- anti-stereotyping theory, which Part II.A addresses its arguments. vides to contextualize \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 4 20-OCT-14 8:42 gender stereotype of the “ideal” mother, and assesses how this stere- of the “ideal” mother, and assesses gender stereotype even though to influence family court proceedings, otype continues provides a partic- denounces its use. Part II.B.2 the Supreme Court the out- example of how this stereotype influenced ularly egregious failure to protect removal proceeding in a come of an emergency ACS caseworkers, case. Part III shifts the focus to from sexual abuse court system. family’s first contact with the family who often are a mother stereo- two scenarios where the “ideal” This Part illustrates cases against decisions to substantiate type influences caseworkers’ is whether the mother takes action nonoffending mothers. The first abuse. The second is whether immediately upon discovering the science literature is used to the mother believes her child. Social caseworkers’ reliance on these two demonstrate the problems with three recommendations for factors. Finally, Part IV presents to protect the child while caseworkers so that they can continue process is complex and traumatic understanding that the discovery for mothers. 35559-nys_69-1 Sheet No. 163 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 163 35559-nys_69-1 35559-nys_69-1 Sheet No. 164 Side A 10/20/2014 11:50:05 ; 4 id. It is 9 EFENDING THE , D § 424.9; (5) offer- After this initial id. 5 HILD C The Other “Neglected” Parties in ; (2) a determination of the risk to If, however, the report is If, however, the 6 id. ROTECTING THE I. : P The proceedings usually commence usually The proceedings 3 , at 59, 103 (PLI Litig. & Admin. Practice, Course , at 59, 103 (PLI Litig. & Admin. Practice, EGLECT A. The Process A fact-finding hearing is held in family A fact-finding N 8 § 424.6 (McKinney 2013). This initial investigation TATE 2285, 2298–2302 (1998). art. 10 (McKinney 2010). For a succinct description of art. 10 (McKinney 2010). For a succinct S . Representing the Government in Child Abuse and Neglect Pro- Representing the Government in Child Abuse then the child protective agency will file a pe- then the child protective AW 7 FROM START TO FINISH FROM START EV CT . L § 1031. BUSE AND . A T ERV L. R CT A . S § 424.11. . C . A T id. OC AM HILD F C . C § 424(7). § 1044. ORDHAM EPRESENTING THE F in AM R A NEW YORK CHILD PROTECTION PROCEEDING PROTECTION CHILD YORK A NEW Id. Id. Id. F N.Y. S , , Article 10 of the New York Family Court Act (FCA) governs Family Court of the New York Article 10 , 66 5. 4. Susan R. Larabee, 8. 6. 7. 9. 3. N.Y. §services is refused, and 424.10; and (6) in cases where an appropriate offer of ; (4) seeing to the immediate safety of the children including taking the chil- ; (4) seeing to the immediate safety of ARENT Handbook Ser. No. 148, 1988). must include: (1) an evaluation of the environment of the child named in the must include: (1) an evaluation of the report and any other children in the home, ing services to the family as appears appropriate (the agency must advise the par- ing services to the family as appears appropriate to compel the acceptance of services, ents that the agency has no legal authority obligations and authority to petition the but may inform them of the agency’s child is in need of care and protection), family court for a determination that the id. for this or any other appropriate reason the child protective service determines court action, initiating an appropri- that the child requires family court or criminal a referral to the appropriate district attor- ate family court proceeding or making ney, or both, ceedings such children if they continue to remain in the existing home environment, such children if they continue to remain and cause of the conditions enumerated (3) a determination of the nature, extent, of the other children in the home, in the report and the name, age, and condition id. them from further abuse or maltreatment dren into protective custody to protect Family Court Act, when appropriate in accordance with the the child protection process, see Kathleen A. Bailie, the child protection process, see Kathleen and the Role of the Lawyers Who Represent Child Protective Proceedings: Parents in Poverty Them P The report is then referred to the appropriate child protection referred to the appropriate The report is then an initial investigation. agency, which undertakes 2013] UNATTAINABLE THE EXPECTING 315 \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 5 20-OCT-14 8:42 deemed “indicated,” the al- court reporting the facts surrounding tition with the family neglect. leged abuse or court to determine if the child has been abused or neglected. if the child has been abused court to determine when a teacher or doctor, for example, calls in a report of sus- or doctor, for example, calls in when a teacher central register. or maltreatment to the state pected child abuse child protection proceedings. child protection investigation, the agency may determine that the report of alleged agency may determine that the investigation, the is “unfounded.” child maltreatment 35559-nys_69-1 Sheet No. 164 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 164 35559-nys_69-1 35559-nys_69-1 Sheet No. 164 Side B 10/20/2014 11:50:05 17 At ORD- F 16 , 70 Fordham Inter- In this case This places 12 14 ACS has extensive 15 The fact-finding concerns fact-finding The 10 Ann Moynihan et. al., See the filing of the petition—anythingfiling of the 13 § 1012(a). before CT . A T . C § 624. AM note 3, at 2302. “Respondent” includes “any parent or other note 3, at 2302. “Respondent” includes note 3, at 2302. note 3, at 2300. F before the fact-finding. CT 11 B. Legal Standard for Failure to Protect . A supra supra supra T long . C § 1024. §§ 1027–28. . 287, 300 (2001) (“Contrasting New York with many other states in . 287, 300 (2001) (“Contrasting New York HAM AM EV Id. Id. Id. F At every stage of these proceedings, ACS maintains a great deal these proceedings, ACS maintains At every stage of There is a possibility that the child may be removed from his or removed from the child may be a possibility that There is female, can be charged in Any parent or guardian, male or 15. Often 12. 13. 16. Bailie, 17. 14. Bailie, 10. Bailie, 11. L. R disciplinary Conference: Achieving Justice: Parents and the Child Welfare System disciplinary Conference: Achieving Justice: Parents which it [was] routine for fact finding and disposition to be completed within sixty which it [was] routine for fact finding and noted that [i]t [was] not uncommon for to ninety days after placement, the Panel children to be in care for a full year, at which point an [Adoption and Safe Fami- of lies Act] permanency hearing [was] required, without having had a disposition the original protective proceeding.”) (internal quotation marks omitted). person legally responsible for a child’s care who is alleged to have abused or ne- person legally responsible for a child’s glected such child.” of power and control over the respondent parent. of power and control it is vital that a of ACS is two-sided in this way, Because the role on the front end with due respect caseworker investigate the case process of discovery as she sorts for the complexities of a mother’s out what has happened to her child. 316of a trial. equivalent family court the NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:311 If proven at fact-finding. are even before the allegations her family dan- is in imminent child’s life or health that the ACS determines be removed without a court order. ger the child may A parent’s failure to protect his family court with abuse or neglect. of neglect, and the court may enter or her child can rise to the level court rules that ACS has estab- a finding against the parent if the \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 6 20-OCT-14 8:42 only things that happened happened things that only of irrelevant for purposes is filed is after the petition that happens the fact-finding. for creating parent, as the agency is responsible contact with the the family. the service plan imposed upon and implementing the same time, ACS is the parent’s adversary in court, trying to con- is the parent’s adversary in court, the same time, ACS the child. that the parent or parents mistreated vince the judge an emergency hearing is held to determine whether or not there is is held to determine whether an emergency hearing danger. actually an imminent ACS in a delicate position. Before fact-finding, ACS in a delicate 35559-nys_69-1 Sheet No. 164 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 164 35559-nys_69-1 35559-nys_69-1 Sheet No. 165 Side A 10/20/2014 11:50:05 degree of minimum Second, the court held that a in which it interpreted the New in which it interpreted 21 19 , 18 This stringent standard for neglect means This stringent standard for neglect 23 1. Neglect Establishing The statutory test is “‘ 22 § 1012(f). 24 CT . A Part III. Nicholson v. Scoppetta T . C at 845–46. at 845. at 846 (internal citation omitted). AM The term “imminent,” as used in the FCA, means “near or The term “imminent,” as used in Id. Id. F Id. Id. See infra 20 The New York Court of Appeals expanded upon this statutory of Appeals expanded upon The New York Court A “neglected child” is: A “neglected 19. 820 N.E.2d 840 (N.Y. 2004). 20. 21. 18. 22. 23. 24. [A] child . . . whose physical, mental or emotional condition physical, mental or emotional [A] child . . . whose becoming im- or is in imminent danger of has been impaired other person of the failure of his parent or paired as a result degree for his care to exercise a minimum legally responsible supervision or the child with proper of care . . . in providing or a sub- . . . allowing to be inflicted harm, guardianship, by . . . . stantial risk thereof care’—not ideal—and maximum, not best, not the failure must be actual, not threatened.” definition in 2013] by sections, next two in the I discuss which elements, certain lished the evidence. of a preponderance UNATTAINABLE THE EXPECTING 317 \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 7 20-OCT-14 8:42 that the analysis of whether a parent has neglected his or her child that the analysis of whether a parent be distorted by subjective beliefs is an objective one, and should not act. This is especially relevant about how the “ideal” mother should sexual abuse cases, where stereo- in failure to protect from child permeate judicial and caseworker types about the ideal mother decisionmaking. impending, not merely possible.” York law. First, the court held that the statute contains a causation court held that the statute contains York law. First, the The actual must be satisfied to establish neglect. requirement that be “clearly attributable” to the par- or threatened impairment must degree of care toward the ent’s failure to exercise a minimum child. minimum degree of care is a “baseline of proper care for children minimum degree of care is a “baseline or social or economic posi- that all parents, regardless of lifestyle tion, must meet.” 35559-nys_69-1 Sheet No. 165 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 165 35559-nys_69-1 35559-nys_69-1 Sheet No. 165 Side B 10/20/2014 11:50:05 25 In other 26 § 2:30 (Merril Sobie ed., 2d ed. . RAC . P someone to abuse or neglect her to abuse or neglect someone T 27 . C AM F Part III. ORK 2. to Protect Failure § 1012(e), (f)(B) (McKinney 2010). Y Scott G., 124 A.D.2d 928, 929 (N.Y. App. Div. 1986) Scott G., 124 A.D.2d 928, 929 (N.Y. App. Child Abuse and Neglect Proceedings: Allowing Abuse or Neg- Child Abuse and Neglect Proceedings: Allowing CT EW note 25. See infra . A However, as discussed in Part III.B.2, sometimes a in Part III.B.2, sometimes However, as discussed In re T ., N , 471 N.Y.S.2d at 219. , supra 30 . C RAC AM Sara X, 505 N.Y.S.2d 681, 682 (App. Div. 1986) (holding that peti- F Katherine C., 471 N.Y.S.2d 216, 218 (Fam. Ct. Richmond Cnty. Katherine C., 471 N.Y.S.2d 216, 218 They have further expanded upon the FCA’s definition They have further expanded upon § is listed in 1012(e)(iii). While failure to protect from sexual abuse 31 N.Y. P Courts applying this standard to sexual abuse find that a Courts applying this standard to On one end of the spectrum is a parent who witnesses or the spectrum is a parent who witnesses On one end of Id. Id. Id. In re Katherine C. In re 33 see also, e.g. 10 28 On the other end is a parent who notices a suspicious injury is a parent who notices a suspicious On the other end A parent’s actions or failure to act must be evaluated in light A parent’s actions or failure to While the criminal law does not usually punish omissions, does not usually criminal law While the Courts have held that the test for failure to protect from child that the test for failure to protect Courts have held 26. N.Y. 27. 28. 29. Solomon, 30. 31. 33. 32. 25. Gary S. Solomon, in 29 32 , 2013). the statute under abuse, these cases are often brought as neglect cases against the the statute under abuse, these cases are nonoffending parent. tioner “failed to prove that there was objective evidence available to the Respon- dents . . . which should have prompted more adequate protective measures”). 1984); allowed the child to be abused, the trier of (“When the issue is whether the parent reasonable and prudent parent would have fact is required to determine whether a acted, or failed to act, under the circumstances as presented.”). lect 318 NYU ANNUAL SURVEY OF AMERICAN LAWFCA estab- forgiving. The laws are not so child protective New York [Vol. 69:311 her failing to protect be charged with a mother may lishes that offender. neglect of the primary the abuse or child from \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 8 20-OCT-14 8:42 of objective evidence available to the parent at the time of the of objective evidence available abuse. she “reasonably should have parent neglected her child when child, a finding may be entered against the nonoffender. This is may be entered against the nonoffender. child, a finding sexual abuse as protect.” The FCA specifically lists called “failure to fail to protect her from which a parent may one of the offenses child. sees incontrovertible evidence of the abuse or neglect and does not evidence of the abuse or neglect sees incontrovertible act. those unsubstanti- behavior but fails to act on or observes unusual ated suspicions. she had no idea with failure to protect when parent will be charged on. anything was going and prudent parent would sexual abuse is “whether a reasonable circumstances then and there have so acted (or failed to act) under existing.” pertain to “a parent who should and have held that the law must did nothing to prevent or stop have known about the abuse and it.” words, when one parent “allows” one parent words, when 35559-nys_69-1 Sheet No. 165 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 165 35559-nys_69-1 35559-nys_69-1 Sheet No. 166 Side A 10/20/2014 11:50:05 E- 36 R In EGAL Anna 35 L see also In re RANSNATIONAL : T 583, 583 (2010) (reviewing . EV TEREOTYPING S . L. R TS II. 34 83 (2010) (discussing the anti-stereotyping ENDER . . R as well as prohibitions against more The Anti-Stereotyping Principle in Constitutional Sex EV 37 UM , G PRINCIPLES H USACK C A. Anti-Stereotyping Theory , 771 N.Y.S.2d 540, 540 (App. Div. 2004); , 771 N.Y.S.2d 540, 540 (App. Div. 2004); . N.Y.U. L. R Cary Franklin, IMONE , 85 & S Jasmine B ). at 583–84. OOK BECCA Id. In re See generally GENDER STEREOTYPES AND ANTI-STEREOTYPING STEREOTYPES GENDER J. C Anti-stereotyping theory embraces limitations on laws that per- Anti-stereotyping theory embraces This Part briefly discusses anti-stereotyping principles before discusses anti-stereotyping principles This Part briefly recently provided a worka- Rebecca Cook and Simone Cusack 35. Alexandra Timmer, 10 36. 34. 37. ERSPECTIVES principle and its new frontiers). Marie A., 599 N.Y.S.2d 66, 67 (App. Div. 1993) (“A reasonably prudent parent Marie A., 599 N.Y.S.2d 66, 67 (App. Div. . . . and taken action to protect her would have observed signs of sexual abuse children from further abuse.”). P This Note focuses on a gender stereotype of the “ideal” mother and This Note focuses on a gender stereotype treatment of women in failure to how this stereotype affects the cases. protect from child sexual abuse petuate sex-role stereotypes, 2013]being sexually of danger imminent was in the child that known in the omission a willful constituted her “behavior and abused,” child.” of the subject protection UNATTAINABLE THE EXPECTING 319 \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 9 20-OCT-14 8:42 analyzing gender stereotypes both more generally, as used in family stereotypes both more generally, analyzing gender from child sex- as applied to failure to protect court, and narrowly, Part, a “top-down” be clear by the end of this ual abuse. As will caseworker Supreme Court decisions influencing approach (i.e., in fam- ground) to ending gender discrimination treatment on the for re- worked. The constitutional underpinnings ily court has not however, for mother stereotype are essential, jection of the “ideal” use of the stereo- Note’s normative claim that understanding this type is wrong. generalized view or preconcep- ble definition of stereotype: “[A] possessed by, or the roles that tion of attributes or characteristics of a particular group.” should be performed by, members Discrimination Law other words, an individual, simply by belonging to a specific group other words, an individual, simply is believed to conform to a genera- (e.g., gender, race, or religion), her abilities or specific situation. lized model, without regard to 35559-nys_69-1 Sheet No. 166 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 166 35559-nys_69-1 35559-nys_69-1 Sheet No. 166 Side B 10/20/2014 11:50:05 41 38 which Even 39 42 Under rational 44 involved a challenge The Court also articu- 47 the Court officially an- 46 , Anti-stereotyping theory is theory Anti-stereotyping 40 Reed v. Reed . 1697, 1725–28 (discussing em- (2002) 43 EV . L. R A When is Sex Because of Sex? The Causation Problem in When is Sex Because of Sex? The Causation Craig v. Boren U. P 45 note 37, at 88. note 37, at 88 (explaining anti-stereotyping theory as not note 37, at 88 (explaining anti-stereotyping , 150 supra supra David S. Schwartz, at 71–73. at 74. at 191–92. 1. of Anti-Stereotyping Principles Early Articulations Id. Id. Id. Id. See Constitutional recognition of the role of gender stereotypes of the role of gender Constitutional recognition Five years later, in 40. 517 (1996). United States v. Virginia, 518 U.S. 515, 41. Franklin, 42. 43. Reed v. Reed, 404 U.S. 71 (1971). 44. 39. Franklin, 45. 46. 429 U.S. 190 (1976). 47. 38. strictly anti-classificationist because it “permit[s] the state to classify on the basis of strictly anti-classificationist because it “permit[s] to dissipate sex-role stereotypes,” and as sex in instances where doing so serve[s] since “discrimination against women had not strictly anti-subordinationist because, to them, [there was a concern] that anti- traditionally been viewed as a benefit courts with too little guidance about subordination principle would provide forms of regulation warrant constitutional concern.”). forms of regulation warrant constitutional ployment sexual harassment case that relied on “sex-stereotyping theory”). ployment sexual harassment case that relied Sexual Harassment Law and anti-stereotyping principles came about rather recently. The principles came about rather and anti-stereotyping between men and struck down a law discriminating Supreme Court time in 1971. women for the first 320 decisions. as in employment such on stereotypes, reliance subtle NYU rein- reflect or that in ways acting from people to prevent It seeks ANNUAL SURVEY OF women’s roles. of men’s and conceptions force traditional AMERICAN LAW [Vol. 69:311 and social is aimed at the particular institutions Rather the theory of sex. inequality in the context practices that perpetuate \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 10 20-OCT-14 8:42 to an Idaho law mandating a preference for men over women in mandating a preference for men to an Idaho law entitled to ad- two people who are both equally choosing between dies intestate. minister the estate of someone who basis review, the lowest level of constitutional scrutiny, the Court basis review, the lowest level of over women was arbitrary, and held that the preference for men thus unconstitutional. neither strictly anti-classificationist nor anti-subordinationist. nor strictly anti-classificationist neither nounced that a stricter level of scrutiny, “intermediate scrutiny,” ap- nounced that a stricter level of scrutiny, Court struck down an Oklahoma plies to gender classifications. The low alcohol content beer to men statute that prohibited the sale of while women were allowed to under the age of twenty-one, eighteen. purchase the beer at the age of where laws classify based on differences that are supposedly inher- that are supposedly on differences classify based where laws “general- prohibits Court explicitly the U.S. Supreme ent, or “real,” women are.’”about ‘the way izations 35559-nys_69-1 Sheet No. 166 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 166 35559-nys_69-1 35559-nys_69-1 Sheet No. 167 Side A 10/20/2014 11:50:05 49 The Court clari- The Court 48 : Reed Anti-Stereotyping Theory Stereotypes About Motherhood Implicate at 197. at 198–99 (internal citations omitted). Id. Id. Stereotypes about motherhood are a specific instance of the Stereotypes about motherhood This passage makes clear that from its earliest inception, the This passage makes clear that from in Supreme Court juris- These instances of anti-stereotyping 48. 49. “[A]rchaic and overbroad” generalizations concerning the fi- concerning generalizations and overbroad” “[A]rchaic could women and working position of servicewomen nancial eligibility for a gender line in determining not justify use of out- entitlements. Similarly, increasingly certain governmental in the concerning the role of females dated misconceptions of ideas” were in the “marketplace and world home rather than of support- characterizations incapable rejected as loose-fitting upon their ac- schemes that were premised ing state statutory gender and of the weak congruence between curacy. In light represent, it or trait that gender purported to the characteristic to realign the legislatures choose either was necessary that or to adopt laws in a gender-neutral fashion, their substantive the sex-cen- those instances where procedures for identifying with fact. tered generalization actually comported 2. Anti-Stereotyping Principles in Sex Discrimination Doctrine Today: more general phenomenon of sex discrimination. The Supreme more general phenomenon of has evolved to encom- Court’s understanding of sex discrimination pass stereotypes about motherhood. The Court’s treatment of such stereotypes provides a germane vantage point for thinking about Court’s sex discrimination jurisprudence hinged on anti-stereotyp- Court’s sex discrimination jurisprudence by gender to be substan- ing principles. By requiring classifications a given law, the Court announced tially related to the objectives of overbroad or outdated generaliza- that it would not permit either tions to drive lawmakers. how the Court deals with such is- prudence are early indicators of classifications to intermediate sues today. By subjecting gender the harm caused by such scrutiny, the Court effectively recognized for future treatment of both stereotyping and laid the foundation between the sexes. “real” and “perceived” differences 2013] by gender “[C]lassifications of review: standard its heightened lated be substan- and must objectives governmental serve important must of those objectives.” to achievement tially related UNATTAINABLE THE EXPECTING 321 \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 11 20-OCT-14 8:42 fied how this level of scrutiny fell in line with what the Court had with what the fell in line this level of scrutiny fied how for years, since been doing 35559-nys_69-1 Sheet No. 167 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 167 35559-nys_69-1 35559-nys_69-1 Sheet No. 167 Side B 10/20/2014 11:50:05 Virginia’s 57 was particularly 54 , Civil Rights Act of 1991, that gender played a that gender played Virginia evidence Univ. of Tex. Sw. Med. Ctr. V. Nassar, Nevada Department of Human Re- Nevada Department involved a challenge to Virginia superseded by statute stands for the proposition that sex the proposition stands for and 55 Virginia as recognized in , 490 U.S. at 251–52. note 37, at 143–44 (quoting Brief for the Cross-Petitioners illustrate the evolution of the Court’s sex-based illustrate the evolution of the made integration impossible without having to made integration impossible 56 supra , 518 U.S. 515 (Nos. 94-1941, 94-2107)). 58 , 518 U.S. at 516. , 518 U.S. at 515. While evidence of sex stereotyping does not inevitably While evidence 52 at 251. by a plaintiff who claimed she was passed over for a pro- she was passed who claimed by a plaintiff Virginia 51 Lower courts have followed suit: the Second Circuit Court followed suit: the Second Circuit Lower courts have Price Waterhouse Id. Virginia Virginia In holding for the United States, the majority opinion In holding for the United States, 53 The case involved a suit under Title VII of the Civil Rights Act of the Civil Rights under Title VII involved a suit The case 59 United States v. Virginia Price Waterhouse v. Hopkins Price Waterhouse 51. Civil Rights Act of 1964, 42 U.S.C. § 2000e (2011). 52. 53. 50. 490 U.S. 228, 243 n.9 (1989), 54. Sch. Dist., 365 F.3d 107, 119–20 Back v. Hastings on Hudson Union Free 55. 518 U.S. 515 (1996). 56. 538 U.S. 721 (2003). 57. 58. Franklin, 59. 50 133 S. Ct. 2517 (2013). Pub. L. 102-166, 105 Stat. 107, 322 of application the including women, laws regulating validity of the NYU statutes. to protect failure ANNUAL SURVEY OF AMERICAN LAW Title under of gender discrimination can be a form stereotyping [Vol. 69:311 VII. \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 12 20-OCT-14 8:42 part.” prove that gender has played a role in an employment decision, has played a role in an employment prove that gender can certainly be “stereotyped remarks women in the context of the framed the discrimination against Court in “separate spheres” tradition. The of sex-role stereotypes bothered by “how the state’s enforcement of Appeals recently held that stereotyping about the qualities of held that stereotyping about of Appeals recently a form of gender discrimination. mothers is itself of 1964 to the did not conform firm because she in an accounting motion held that in the of her gender. The Court traditional stereotype who acted on the of sex stereotyping, an employer specific context for Title VII had acted on the basis of gender basis of a stereotype purposes. equal protection doctrine. admissions policy. Military Institute’s (VMI) male-only (2d Cir. 2004) (holding that stereotyped remarks can be evidence that gender (2d Cir. 2004) (holding that stereotyped played a part in adverse employment decision). abandon the school’s “adversative method” and alter its core mis- abandon the school’s “adversative sion. sources v. Hibbs main argument in support of the policy was that “the actual physio- main argument in support of the differences between males logical, psychological, and sociological and females” at 17 n.9, 35559-nys_69-1 Sheet No. 167 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 167 35559-nys_69-1 35559-nys_69-1 Sheet No. 168 Side A 10/20/2014 11:50:05 , It was 63 HEORY : T Hibbs AW L ENDER AND , G The Court concluded The issue in The issue as it is clear that abuse 62 61 65 HODE L. R note 37, at 146. note 37, at 151–52. supra EBORAH 64 supra & D 5th ed. 2010) (“Formal equality means equal treat- Child Sexual Abuse Nevada Department of Human Resources v. Resources Department of Human Nevada § 2010). 1012(f)(i) (McKinney Franklin, CT ARTLETT 1, 1 ( . A T see also T. B . C AM F OMMENTARY at 728–30. at 516; at 736. at 736–37; Franklin, ATHARINE their actual application is not. , C K Id. Id. Id. Id. 60 66 , the Court analyzed the Family and Medical Leave Act Medical Leave the Family and analyzed , the Court Anti-stereotyping theory is a lens through which to assess the Anti-stereotyping theory is a lens These cases make clear that anti-stereotyping theory applies to clear that anti-stereotyping theory These cases make More recently, in More recently, 66. N.Y. 61. 538 U.S. 721 (2003). 62. 60. 63. 64. 65. 3. Anti-Stereotyping Theory as Applied to Failure to Protect from OCTRINE D ment: Individuals should be treated alike, according to their actual characteristics or rather than on the basis of assumptions (or ‘stereotypes’) about their sex, race, other irrelevant characteristic.”). treatment of women in failure to protect from child sexual abuse treatment of women in failure to does not look to whether or not cases. This is because the theory equal, laws are gender neutral or formally gender stereotypes relating to motherhood. The Court’s reasoning gender stereotypes relating to motherhood. analyzing caseworkers’ applica- is important to keep in mind when to nonoffending mothers in child tion of failure to protect statutes sexual abuse cases. 2013] social in the place traditional women’s to cement served has order.” UNATTAINABLE THE EXPECTING 323 \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 13 20-OCT-14 8:42 Hibbs lens. through an anti-stereotyping (FMLA) and neglect statutes are. Anti-stereotyping theory is appropriate in and neglect statutes are. Anti-stereotyping the laws are gender neutral on this context because even though paper, that mutually reinforcing stereotypes about men’s and women’s stereotypes about men’s that mutually reinforcing that rise to “a self-fulfilling cycle of discrimination roles had given of primary family continue to assume the role forced women to views about wo- employers’ stereotypical caregiver, and fostered employees.” to work and their value as men’s commitment of discrimination” that the “self-fulfilling cycle held, in other words, problem of stereotyping was a constitutional wrought by sex-role to affirmatively that Congress had the authority such magnitude twelve weeks. grant a leave of whether providing male and female employees with an entitlement and female employees providing male whether the means of enforcing leave was a valid weeks of family to twelve protection guarantee. Constitution’s equal 35559-nys_69-1 Sheet No. 168 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 168 35559-nys_69-1 35559-nys_69-1 Sheet No. 168 Side B 10/20/2014 11:50:05 72 — 67 Nguyen v. Ins The concept . 1149, 1157–1160 The stereotype 70 EV 69 UCLA L. R . 1127, 1138 (2000) (“Through EV , 57 L. R Fetal Abuse Law: Punitive Approach and the Caseworkers, in a unique position Caseworkers, in Conflating Women’s Biological and Sociological 68 YRACUSE S The Sex Discount 803, 804–815 (identifying the influence of (2003) note 67, at 803 (“[T]he traditional ideas of women’s note 67, at 803 (“[T]he traditional ideas , 50 B. The Ideal Mother . L. supra ONST note 69, at 1139. , Part II.B.2. . J. C supra , Rogus, , Caroline Rogus, Note, A U. P For a time, the Supreme Court embraced this ideology. For a time, the Supreme Court 71 See supra See, e.g. See, e.g. , 5 Scholars consistently identify various ways in which gender ste- which gender ways in various identify consistently Scholars The stereotype of the “ideal” mother and its repercussions in The stereotype of the “ideal” mother 70. Richer, 71. Kim Shayo Buchanan, 68. 69. 67. a subject addressed more thoroughly in Part II. More narrowly, Part II. More thoroughly in addressed more a subject (2010). strictly defined sex roles and power distributions, a concept of the ‘ideal mother’ strictly defined sex roles and power distributions, has emerged and been adopted in many arenas, including but not limited to: edu- cation, politics, and even the legal system.”). Honorable Status of Motherhood gender stereotypes in the Supreme Court on citizenship and abortion, among gender stereotypes in the Supreme Court other things). and not so subtly influence our legal sys- proper roles have continued to subtly tem’s highest court.”); Christa J. Richer, 324 NYU system entire legal and our Congress, courts, influence reotypes ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:311 and the Implications of the Roles: The Ideal of Motherhood, Equal Protection, Opinion \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 14 20-OCT-14 8:42 as the parent’s first contact with the family court process, rely on contact with the family court as the parent’s first decision to file a at the most important stage: the these stereotypes proceed- commences the child protection petition, which formally often hinge their in Part III, caseworkers ing. As will be discussed mother on a stere- petition against a nonoffending decision to file a a given situation. ideal mother should respond in otype of how the way, a caseworker does not respond in the ideal When a mother against her. often files a petition the legal realm is well-recognized among scholars. the legal realm is well-recognized is premised on the idea that mothers possess superior child-rearing is premised on the idea that mothers that they stay in the home and take and nurturing skills that require domestic sphere. care of their children and the separate spheres: women were the originated from an ideology of and in the home—thenatural leaders of the family private sphere—while of the home in the public men worked outside sphere. however, institutional actors—includinghowever, but and attorneys judges caseworkers—applyespecially specif- family court, and these laws in to an- cases, according from sexual abuse failure to protect ically in an ideal about the way and assumptions gender stereotypes tiquated example, rely on act. Judges and attorneys, for mother “should” during a fact- in the way they question a parent gender stereotypes hearing. finding or emergency 35559-nys_69-1 Sheet No. 168 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 168 35559-nys_69-1 35559-nys_69-1 Sheet No. 169 Side A 10/20/2014 11:50:05 83, the 73 to be- & L. The Content of want OMEN . J. W EX T Conflating the bio- 78 , 10 79 76 The ideology puts pressure on 77 495, 501–08 (1995)). Professor April Cherry cites one sociologi- April Cherry Professor 74 OLES Nurturing in the Service of White Culture: Racial Subordina- Nurturing in the Service of White Culture: R EX note 67, at 804. S , 32 supra , Stanton v. Stanton, 421 U.S. 7, 14–15 (1975) (“No longer is the She concludes that “the stereotypes defining both that “the stereotypes defining She concludes , Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1872) (“The nat- , Bradwell v. Illinois, 83 U.S. (16 Wall.) 75 at 103 (citing Lawrence H. Ganong & Marilyn Coleman, at 103 (citing Lawrence H. Ganong & Marilyn at 104. at 819. Id. Id. Id. Id. See, e.g. See, e.g. Caseworkers’ treatment of mothers in failure to protect from Caseworkers’ treatment of mothers Professor Caroline Rogus analyzes how the ideal mother stere- Rogus analyzes how the ideal Professor Caroline While the Court has since unequivocally denounced it, denounced since unequivocally has the Court While 75. 76. 77. Rogus, 78. 79. 72. 73. 74. April L. Cherry, 103–04 (2001). Mother Stereotypes ural and proper timidity and delicacy which belongs to the female sex evidently ural and proper timidity and delicacy life.”) (Bradley, J., concurring); Muller unfits it for many of the occupations of civil maximum-hours legislation for v. Oregon, 208 U.S. 412, 422 (1908) (upholding greed as well as the passion of man.”). women “to protect [women] from the female destined solely for the home and the rearing of the family, and only the female destined solely for the home and of ideas.”). male for the marketplace and the world married motherhood and never-married motherhood reinforce the and never-married motherhood married motherhood mother, or proper role is that of married notion that women’s patriarchal norms.” motherhood within child sexual abuse cases is an example of how separate spheres ide- child sexual abuse cases is an example courtroom today and turns moth- ology influences outcomes in the of Motherhood tion, Gestational Surrogacy, and the Ideology otype conflates a woman’s biological and sociological roles, shed- a woman’s biological and sociological otype conflates women in the the stereotype acutely affects ding light on how “[b]ecause wo- Professor Rogus explains that family law context. to be sociological mothers are presumed men who are biological ideological expected to strive to meet society’s mothers, they are standards of motherhood . . . .” 2013] UNATTAINABLE THE EXPECTING 325 \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 15 20-OCT-14 8:42 women to have and care for children not because they women to have and care for children their destiny. come mothers, but because it is logical and sociological roles essentially turns motherhood into a logical and sociological roles essentially woman’s interaction with experts “public experience through a and psychologists during preg- such as doctors, social workers, nancy, labor, childbirth, and childrearing.” cal study finding that survey subjects assigned married mothers the married mothers subjects assigned finding that survey cal study to di- traits as compared personality number of positive greatest women mothers, and never-married step-mothers, vorced mothers, in general. separate spheres ideology has carried over into present day dis- day into present over carried has ideology spheres separate women’s of our understanding continuing to influence course, in society. proper role 35559-nys_69-1 Sheet No. 169 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 169 35559-nys_69-1 35559-nys_69-1 Sheet No. 169 Side B 10/20/2014 11:50:05 81 http:// . 855, 857 . L.J RB . 665, 667 (1999) available at U & L 80 Y 688, 690 (1998). . ’ Inherently Female Cases of EV OL note 69, at 1129 (using the ORDHAM . P F L. R 69 (2012), UB supra . P , 28 The following sections are 83 ORNELL BSTRACT C SYCHOL A P , Suzanne D’Amico, , 83 These statistics mean that there are These statistics mean , 5 82 See, e.g. TATISTICAL S , Legal Images of Motherhood: Conflating Definitions from Wel- Legal Images of Motherhood: Conflating Definitions UREAU B Who Women Are, Who Women Should Be: Descriptive and Prescriptive Who Women Are, Who Women Should Be: Descriptive 1. in Family Law Ideal Mother The ENSUS C The stereotype of the ideal mother is pervasive in child custody The stereotype of the ideal mother This ideal is far from reality. Unwed mothers gave birth to from reality. Unwed mothers This ideal is far The stereotype of the ideal mother continues to permeate vari- to permeate mother continues of the ideal The stereotype 81. Jane C. Murphy, 82. U.S. 83. stereotypes, see Diana Burgess For an extensive discussion of prescriptive 80. not also impact other areas of This is not to say that the stereotype does Much of family law is premised on the ideal construction of the construction on the ideal family law is premised Much of nonexis- an arrangement that is almost family that presumes tent today—a and a fa- at home with minor children mother standards for the home. The law sets ther working outside a view of a decisions, however, based on child placement the 1950s. role that has changed little since mother’s proper (2001) (“The treatment women receive in the criminal justice system is often (2001) (“The treatment women receive they represent in society, than on their based more on who they are and what traditional role of woman and mother is conduct. The woman who does not fit the and society; the woman who fits the role of treated harshly by the court, the media, Richer, ideal mother is treated more leniently.”); example of fetal abuse law, arguing that “traditional gender-based stereotypes example of fetal abuse law, arguing that often shape the criminal justice system.”). fare “Reform,” Family, and Criminal Law (“[T]he prescriptive component is expected to lead to discrimination against wo- (“[T]he prescriptive component is expected to lead to discrimination against men who violate shared beliefs about how women should behave. Such discrimina- tion generally takes the form of disparate treatment, in which women who violate prescriptive stereotypes of femininity are punished . . . .”). www.census.gov/prod/2011pubs/12statab/vitstat.pdf. & Eugene Borgida, Gender Stereotyping in Sex Discrimination Child Abuse and Neglect: A Gender-Neutral Analysis Child Abuse and Neglect: A Gender-Neutral the law, including criminal law. proceedings. By the middle of the twentieth century a maternal pre- proceedings. By the middle of the 40.6% of babies born in 2008. 40.6% of babies a. Child Custody Proceedings 326 Court the Supreme though even spectacle, a public into erhood NYUago. years such logic denounced ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:311 of family law: ous aspects \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 16 20-OCT-14 8:42 fewer “ideal” mothers out there than the ideological construction out there than the ideological fewer “ideal” mothers law must accept social workers and the would suggest. Therefore shucking the non-ideal paradigm of motherhood, and incorporate treatment of mothers and em- the rigid adherence to 1950s-style bracing a more modern conception. intended to illustrate how this stereotype infects courts. intended to illustrate how this stereotype 35559-nys_69-1 Sheet No. 169 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 169 35559-nys_69-1 35559-nys_69-1 Sheet No. 170 Side A 10/20/2014 11:50:05 89 However, 86 85 . 185 (2000) (describing how EV thus turning gender neutral- thus turning gender 87 . W. L. R Gender Bias in a Florida Court: “Mr. Mom” v. Gender Bias in a Florida Court: “Mr. Mom” AL C 37 ” , It was premised on the stereotype of the stereotype of premised on the It was 84 Trial judges hassle mothers in custody disputes Trial judges hassle note 81, at 696–97. note 81, at 694. Through the nineteenth century, there was note 81, at 694. Through the nineteenth 88 supra . at 693. supra Id While the “best-interests-of-the-child” standard has in- standard While the “best-interests-of-the-child” at 697. at 698. at 694. at 695. at 696–97. interesting case study pertaining to this For a particularly 90 Id. Id. Id. Id. Id. Another area of family law where the ideal mother stereotype Another area of family law where The women’s movement in the 1960s and 1970s was successful in the 1960s and movement The women’s 89. 88. Murphy, 90. 84. Murphy, 85. 86. 87. gender bias in Florida’s courts adversely affected one family, and focusing particu- larly on gender bias against fathers in custody court). a paternal presumption in custody cases, whereby the fathers almost always re- a paternal presumption in custody cases, ceived custody. b. Child Protection Proceedings of civil neglect and abuse pro- drives court actors is the adjudication These proceedings are particu- ceedings, the subject of this Note. influence of stereotyping because larly susceptible to the perverse all the actors involved go fairly un- the decisionmaking processes of of “neglect” and “abuse” are checked. First, because the concepts not impossible, for appellate courts somewhat vague, it is difficult, if Often courts give the mother the difficult choice of relocation or the mother the difficult choice Often courts give custody. 2013] of custody have should that mothers provided which sumption, con- in prevailed five years, under those especially children, their cases. tested custody UNATTAINABLE THE EXPECTING stan- presumption of the maternal for a replacement in pushing a “best-interests-of-the-child” standard. dard in favor of 327 \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 17 20-OCT-14 8:42 who want to relocate because of their professional aspirations. because of their professional who want to relocate for the ideal mother, the ideal deed replaced an explicit preference play a role in favoring the “home- mother stereotype continues to to either adhere to the ster- sphere” mother, which forces a woman eotype or risk losing her child. ideal mother, granting mothers custody of their children because of their children custody granting mothers ideal mother, superior[ “biological[ly] they were ]” as parents. ity on its head. Mothers who work outside the home are at risk of who work outside the home ity on its head. Mothers often lose cus- their children. Working mothers losing custody of father has mar- work long hours, or because the tody because they over the working wife who is favored ried a new stay-at-home biological mother. judges are still permitted to decide these cases “based on their own to decide these cases “based judges are still permitted ‘good mother,’”conceptions of the subject, see Craig Nickerson, Comment, subject, see Craig Nickerson, Comment, “The Poster Girl for Working Mothers 35559-nys_69-1 Sheet No. 170 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 170 35559-nys_69-1 35559-nys_69-1 Sheet No. 170 Side B 10/20/2014 11:50:05 . 92 EV L. R ACE P (Merril Sobie ed., 131, 152–53 (2003). J. Because the mothers RACTICE 95 THICS P & E OURT Y ’ 1023 (2003). Bullock describes the C OL The ideal mother standard is The ideal mother 94 Moreover, caseworkers make dis- make caseworkers Moreover, & L. AMILY Y . L. P ’ 91 F Low-Income Parents Victimized by Child Protective UB OL ORK P . P Y OC Children as Chattel: Invoking the Thirteenth Amendment Children as Chattel: Invoking the Thirteenth EW S N ARDOZO Norman B. Lichtenstein, Book Review, 17 Norman B. Lichtenstein, Book Review, C ENDER , 1 note 67, at 818. Candra Bullock, see also supra at 706–07. . U. J. G M A at 707; See generally See id. Id. , 11 The result is a child protective system in which caseworkers child protective system in which The result is a The effects of class and race further influence caseworkers and and race further influence caseworkers The effects of class 93. Kurt Mundorff, Note, 94. 95. Rogus, 91. 92. 93 , 392 (1997) (reviewing at 1023–24. In the United States, approximately three million cases of child abuse and In the United States, approximately three protective service agencies. Children neglect are reported annually to child likely than children from middle and from low-income households are more to child protective service agencies. high-income households to be reported Bureau’s poverty data for the year According to the United States Census were classified as poor—this2000, approximately 31.1 million people figure of Hispanics and 10.8% of Asians includes 22.1% of African Americans, 21.2% 7.5% of Caucasian Americans. Thus, and Pacific Islanders in comparison to specifically African Americans children from some ethnic minority families, to be poor than Caucasians. Low- and Hispanics, are three times more likely income children, as compared to middle and high-income children, are dis- proportionately reported to child protective service agencies, which results in a disparate impact on racial or ethnic minorities being reported. 2d ed. 2012)) (“Whenever a caseworker decides to remove a child or allow the 2d ed. 2012)) (“Whenever a caseworker that decision, personal views con- child to remain at home, or a judge endorses or biased impressions of the parent, can cerning child rearing, as well as subjective (internal quotation marks and cita- contaminate the decision making process.”) tions omitted). to Reform Child Welfare Services 391 overrepresentation of low-income, minority parents in the child protection overrepresentation of low-income, minority context: Id. 328 courts trial when stereotyping of influence potential the to examine NYUto the facts. the standards apply ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:311 that York City explains worked in New caseworker who One ACS vague, incoherent and intervention are standards for since the a ‘gut’ discretion to make are given and supervisors “caseworkers decision from to divorce an intervention call,” making it impossible the decision may no matter how capricious personal prejudices be. \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 18 20-OCT-14 8:42 make decisions based on their own value judgments, which go un- on their own value judgments, make decisions based courts. checked by the protection con- mother stereotype in the child their use of the ideal over- minority parents are substantially text. Low-income, proceedings. represented in these cretionary judgments based on their personal ideas of what consti- ideas of what on their personal judgments based cretionary as well. go unchecked these decisions mother, and tutes a bad impossible to meet for these mothers, because the stereotypically for these mothers, because impossible to meet secure and white. ideal mother is financially 35559-nys_69-1 Sheet No. 170 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 170 35559-nys_69-1 35559-nys_69-1 Sheet No. 171 Side A 10/20/2014 11:50:05 99 An- See a case where, 98 , KY, No. NA-05512-10 KY, No. NA-05512-10 (N.Y. In re In re KA In re In re KA Who’s Failing Whom? A Critical Look at . 272, 274 (2001) (“Defendants [criminally] 577, 584–85(“[T]he vast majority of (1997) . EV The following example demonstrates The following example EV 97 Women who are brought to family court who are brought Women 96 The issue was whether her newborn son, KY, The issue was whether her newborn 2. An Example: S.C. L. R N.Y.U. L. R 100 , 48 , 76 Protecting Children or Punishing Mothers: Gender, Race, and Class in the Protecting Children or Punishing Mothers: Gender, , Jeanne A. Fugate, Note, Order Granting ACS’s 1027 Application, Order Granting ACS’s 1027 Application, See Id. See, e.g. The mother in the case was charged with failure to protect her The mother in the case was charged The ideal mother stereotype applies to mothers before family stereotype applies to mothers The ideal mother While failure to protect statutes are gender-neutral, their appli- their are gender-neutral, to protect statutes While failure 98. 99. Conversation with Julia Hiatt, Attorney for the Mother, Brooklyn Family 100. Transcript of Emergency Hearing at *7, 96. 97. the parents involved in the child protective system are mothers.”). the parents involved in the child protective charged and convicted with failure to protect are almost exclusively female.”). In charged and convicted with failure to protect intervention in all child protective cases fact, women are the focus of the state’s primary—orbecause they are overwhelmingly a child’s only—caretaker. nette R. Appell, Child Protection System Fam. Ct. Feb. 9, 2010) [hereinafter KY Transcript] (on file with author). (N.Y. Fam. Ct. Feb. 9, 2010) (on file with author). Defense Project, July 2011. a. The Facts abuse by her biological father. daughter, KA, from alleged sexual consented to the removal of At the emergency hearing all parties KA from the home. court proceedings, as illustrated in Part III, but it is also prevalent as illustrated in Part III, but court proceedings, egregious example is during them. One 2013] wo- poor of color, women are predominantly ACS with interacting as be viewed to allowed are “never they women, and single men, material.” ideal mother UNATTAINABLE THE EXPECTING c. Statutes of Failure to Protect Application than fathers to are substantially more likely cation is not. Mothers 329 be charged—bothcivilly and criminally—with to protect failure abuse. their children from Failure-to-Protect Laws \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 19 20-OCT-14 8:42 fight an uphill battle against the stereotype of the ideal mother. of the ideal the stereotype uphill battle against fight an how stereotypes of ideal motherhood can lead to child removal pro- of ideal motherhood can lead to how stereotypes unfairly biased against the woman. ceedings that are after an emergency hearing, the judge granted ACS’s removal of a after an emergency hearing, the The mother temporarily lost nonoffending mother’s two children. judge found that she was to blame custody of her children after the The judge concluded that the for the sexual abuse of her daughter. in the home because his wife, the father had to find sex elsewhere sexual acts for her husband. child’s mother, did not perform 35559-nys_69-1 Sheet No. 171 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 171 35559-nys_69-1 35559-nys_69-1 Sheet No. 171 Side B 10/20/2014 11:50:05 so The 112 107 When ap- at 54–55, 75. 110 Id. 108 KA also told HA KA also 104 The mother denied 109 102 KA told HA that she had told her mom, HA that she had KA told at 20. 103 Id. KA told HA that the sexual abuse had been going KA told HA that 105 The father was imprisoned. father The . 101 The caseworker did not understand the question, The caseworker did not understand at 10–11. at 9. at 17. fact that KA reported the This information is corroborated by the at 18. at 22. at 23–24. mother did not initially believe her daughter’s While the at 30. Because this was an emergency removal hearing—in Because this was 111 infra Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. 106 ACS asked the caseworker about a conversation she had with ACS asked the caseworker about The facts underlying the alleged sexual abuse, as described by abuse, as described alleged sexual underlying the The facts 101. 102. 103. 104. 105. 106. KY Transcript at 19. 107. 108. 109. 110. KY Transcript at 25. 111. 112. Q: Did you speak to Detective S about the respondent father’s Q: Did you speak to Detective S respondent mother? rel-, sexual relationship with the A: Yes. S tell you about that? Q: What, if anything, did the Detective the detective. ACS asked the caseworker if she had asked the detec- the detective. ACS asked the caseworker father’s relationship with the tive about “the respondent mother.” 330 with the home in to remain if he were of harm risk imminent was at NYUhis mother. ANNUAL SURVEY OF AMERICAN LAW coun- to her guidance KA disclosed are as follows: the caseworker, [Vol. 69:311 “put[ that her father selor, HA, and in her mouth, ] his . . . mambo to pee in it.” was trying \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 20 20-OCT-14 8:42 which the inquiry is about imminent risk—ratherwhich the inquiry than a fact-find- if anything, the the questioning to what, ing, the judge redirected KA gave. learning of the information mother did upon and that her mom and dad would fight about it. would fight about her mom and dad and that her brother was brother was born, and that on since her baby “zero.” same story to the teacher. that she told her grandmother, who would tell the father to stay grandmother, who would tell that she told her away from KA. to the corre- caseworker and the detective assigned proached by the that she knows is case, the mother said, “the man sponding criminal something like this.” not capable of doing the attorney rephrased it: that KA ever told her about the alleged sexual abuse. that KA ever told her about the mother never took KA to the doctor or the hospital. mother never took allegations, by the time of the hearing, she did in fact believe her daughter and allegations, by the time of the hearing, back into her home. had promised she would not let her husband The issue of belief and trauma on the part of nonoffending mothers is discussed in The issue of belief and trauma on the part of nonoffending mothers is discussed Part III.B, 35559-nys_69-1 Sheet No. 171 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 171 35559-nys_69-1 35559-nys_69-1 Sheet No. 172 Side A 10/20/2014 11:50:05 113 Id. However, the line of questioning re- However, the line of questioning 115 at 30–31. at 38–39. whether there was any indica- at 42. The judge asked the caseworker 114 Id. Id. Id. on redirect of the caseworker by ACS: on redirect of the caseworker by The judge’s subsequent line of questioning suggests that this The judge’s subsequent line of The judge then took the opportunity to cross-examine the took the opportunity to cross-examine The judge then 113. 114. 115. Q: Okay. And, um, you at some point learned that the father you at some point learned that Q: Okay. And, um, of KA do the Detective that he and the mother had reported to not in, uh, uh, the—the him any mother of KA does not give is that correct? type of oral sex, A: Yes. that’s true? Q: Did you ask the mother whether sexual relationship with the A: No. No. We asked her about her until, you know, she had the father and she said it was great the baby two months ago, baby ‘cause, you know, she just had so she’s—they’ve been have—not sex. having mother essentially said that Q: So are you telling me that the father of these children, uh, she has not had any sex with the since KY was born? A: Yes. was unusual? Q: Did you ask her whether that A: No. [Objection] overruled] [Objection give his wife doesn’t on the sofa and that he sleeps A: He said sex. him oral to father made that the respondent is that a statement Q: And the Detective? A: Yes. stated to else that the respondent father Q: Was there anything the Detective told you? the Detective that basically it. the allegations, uh, that’s A: Just that he denied During her cross-examination of the caseworker, the judge asked whether was an investigation into whether KA would have had any other way was an investigation into whether of oral sex without having exper- of understanding the mechanics ienced it with her father. caseworker: 2013] UNATTAINABLE THE EXPECTING 331 \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 21 20-OCT-14 8:42 garding the sexual habits of the mother and father continued garding the sexual habits of the further “[t]he only explanation that she gave, in terms of the anatomy of the father, as well as the pee, was that he walks around the house naked, and she may have seen him peeing [in] the toilet,” to which the caseworker answered, “[y]es.” tion that KA watched pornographic movies at home or whether the mother indi- tion that KA watched pornographic movies cated that KA could have observed her and the father engaging in sexual activities. Id. 35559-nys_69-1 Sheet No. 172 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 172 35559-nys_69-1 35559-nys_69-1 Sheet No. 172 Side B 10/20/2014 11:50:05 116 The judge then cross-examined the mother, and asked again, The judge then cross-examined This subject was explored further, over objection, during ACS’s during further, over objection, was explored This subject 116. KY Transcript at 72. did your husband ever have any conversations with you, um, ever have any conversations did your husband Q: Now, with respect to your relationship with your husband, Q: Now, with respect to your relationship questions, but I think I’m sorry for asking you these personal Can you tell me what the na- they’re very relevant to this case. ture of your sexual relation—well,withdrawn. Are you in fact legally married to this gentleman? A: Yes, I am. been legally married to him? Q: You are. How long have you A: 12—19—about 12 years, coming up. . . . becoming—priorQ: And can you tell me, prior to to becoming KY, can you tell me, um, aware that you were pregnant with of your sexual relationship essentially, uh, describe the nature with your husband? A: We had—we had sex. It’s- a general, um, amount of fre- Q: [Interposing] And was there you were having? quency to the sexual interaction sex. A: Once or twice a week we had Q: I’m sorry, how often? A: Wo-, once or twice a, a week we had sex. Q: And so [KA]—sheQ: And before abuse occurred the sex that said child? the . was in mommy’s when the baby A: She said Q: Ms.—Ms. your sex life—your um, how was IN, how was your, was since the baby um, your husband with, sexual relationship born? A: We are—we the—I sex a couple of time since I had had had I had my son, when I had a C-section, when the baby, because anything six weeks for my postpartum before and I had to wait else could be done. speak to you husband ever express to you or Q: And did your you ever— any conver-, withdrawn. And did about, um, have frustration he was having? about any sexual A: No. [Objection] [Overruled] A: No. this time extensively, about her sexual history with her husband: this time extensively, about her 332 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:311 mother: of the cross-examination \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 22 20-OCT-14 8:42 35559-nys_69-1 Sheet No. 172 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 172 35559-nys_69-1 35559-nys_69-1 Sheet No. 173 Side A 10/20/2014 11:50:05 118 117 at 88–90. at 146. Id. Id. At the end of the hearing the judge decided that KY, the baby At the end of the hearing the judge 117. 118. and stuff, because it—it was not—at time I couldn’t have that Also in terms of the sexual activity, [the mother] concedes that Also in terms of the sexual activity, she engages within—withthis was not sexual activity that her been any activity that this husband, so this would not have home. And, um, it’s reasona- child would have seen in her own would have sought it from ble to conclude that her husband is—whichsomebody else in the home, which is the daughter, So I—Iaccording to what KA’s reported. find it serves the best interests of KY to come into foster care, to remain in the so-, same home with KA, with Ms. B. Q: Per week, is that— week, Q: Per Yes. A: [Interposing] Q: —whatyou’re saying? A: Uh huh. you were pregnant became aware that And once you Q: Okay. with um, interaction of your sexual, did the nature with KY, change, or—your husband No. A: [Interposing] Q: —did about the same? it remain the same. A: It remained about Q: It did? A: Yeah. until the time you gave birth—Q: All the way up Uh huh. A: [Interposing] Q: —to your son? A: Yeah. KY? Did the about after you gave birth to Q: Okay. And what interaction with your hus- nature of your sexual relations and band change? A: We—we—instead would hug more and— of having sex we sex. your husband reported to the Q: And, um, you’ve heard that in any, um, oral sex—Detective that you don’t engage of our—itA: [Interposing] It was never part was never part of our relationship. boy, was at imminent risk of harm in his mother’s home. Her deci- boy, was at imminent risk of harm that the father had to find sexual sion relied in part on the fact wife was not satisfying him: pleasure elsewhere, because his 2013] UNATTAINABLE THE EXPECTING 333 \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 23 20-OCT-14 8:42 35559-nys_69-1 Sheet No. 173 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 173 35559-nys_69-1 35559-nys_69-1 Sheet No. 173 Side B 10/20/2014 11:50:05 119 By the 1980s, Id. Child Abuse: A Problem for at 1345–46. 1336, 1342 (2003). at 1345. These views “recog- Id. Id. OMEN W GAINST Due to the influence of these new views, A 75, 99 (1993) (“Mothering is taken out of its Id. & L. IOLENCE Nonoffending Mothers of Sexually Abused Children: A Case Nonoffending Mothers of Sexually Abused Children: V OMEN , 9 The use of these theories, this Note argues, im- The use of these , Marie Ashe & Naomi R. Cahn, . J. W 120 When courts rely on stereotypes in taking away When courts rely on stereotypes EX T 121 , 2 See also, e.g. By focusing the questioning on the mother’s sexual relation- on the mother’s the questioning By focusing that sex- judge relied on the antiquated belief In so doing, the The mother in this case was punished by having her newborn case was punished by having The mother in this 120. sexual withdrawal, collusion, In the 1960s, the themes of “role reversal, 121. 119. Rebecca M. Bolen, at 1341–42. that mothers were blamed for setting up the abuse by Bolen notes and psychological problems” were promulgated with authority by social scientists. and psychological problems” were promulgated Id. their husbands sexually. initiating role reversal and by deserting feminists developed competing views of the nonoffending mothers that recognized feminists developed competing views of dynamics. the often misogynistic nature of family context in abuse prosecution and is judged by a judiciary that assumes middle- class, sexist, and racist norms. Mothers—across classes and cultures—are expected to perform in ways that satisfy those norms.”). nized factors such as the power imbalances in these families, financial dependence nized factors such as the power imbalances on the perpetrator, and battering.” studies were conducted to assess the validity of “role reversal” theory, concluding studies were conducted to assess the validity support.” that the “literature had limited empirical Feminist Theory of Institutionalized Sexism? This theoretical formulation dominated the early child sexual formulation dominated the This theoretical abuse literature. 334b. Use of Stereotype Discussion NYU ANNUAL SURVEY OF AMERICANruling, the in making her mentioning it the father and ship with LAW not hav- the mother was testimony that relied on the judge clearly [Vol. 69:311 question- judge’s line of Furthermore, the the father. ing sex with that [the to conclude “it’s reasonable her statement that ing and else in the from somebody have sought it husband would mother’s] for the sex- that the judge blamed the mother home” demonstrates the father to frus- daughter, attributing the acts of ual abuse of her the lack of sex with the mother. tration caused by to role reversal. by sexual frustration, leading ual abuse is caused \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 24 20-OCT-14 8:42 someone’s child, it sends a message that in order to get their chil- someone’s child, it sends a message plicates assumptions about the ideal mother. plicates assumptions she did not per- her custody because in part baby removed from not awarded the privilege of per- form her duties as a wife. She was because she proved to be a “bad forming her duties as a mother, mother” in the judge’s eyes—a in the sexual abuse “co-conspirator” ideal mother is a caretaker, a nur- of her daughter. In contrast, the the sexual abuse of her daughter, turer. By blaming this mother for not perform as the ideal mother the court concluded that she did illustrates that the use of stereo- would have. The court’s conclusion alive and well as a vehicle through types in these proceedings is still control over motherhood and which to ascribe blame and maintain over families. 35559-nys_69-1 Sheet No. 173 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 173 35559-nys_69-1 35559-nys_69-1 Sheet No. 174 Side A 10/20/2014 11:50:05 Price Given the out- IN won the stay, 124 http://www.naccchild 123 highlights court actors’ highlights court available at KY, No. NA-05512/10 (N.Y. Fam. Ct. did not even challenge the trial In re KA In re . In re KA Hibbs wrought by sex-role stereotyping, which the which by sex-role stereotyping, wrought , and 122 is exceptional in the sense that the use of the ideal is exceptional in the sense that Virginia 126 Mimi Laver, Dir. Legal Educ., ABA Ctr. on Children & the Law, et al., Mimi Laver, Dir. Legal Educ., ABA Ctr. , The attorneys in See In re KA 125 The procedural outcome of The procedural However, the fact that the case “worked out” procedurally does However, the fact that the case “worked 122.538 U.S. 721, 736 (2003). Nev. Dep’t of Human Res. v. Hibbs, 123. Order to Show Cause at 2, 124. Brooklyn Family Defense Pro- Email from Julia Hiatt, Ms. B’s Attorney, 125. 126. This information comes from my own conversations with the attorneys 2013] stereotype. to that to subscribe be expected parent can back, a dren that one the family, over state control form of is a dangerous This one right a mother, and right way to be that there is one assumes UNATTAINABLE THE EXPECTING cycle the “self-fulfilling It perpetuates one’s husband. way to satisfy of discrimination” c. 335 at Its Inception Attacking the Stereotype \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 25 20-OCT-14 8:42 court’s decision by appealing on the basis of sex discrimination; court’s decision by appealing on but believed an appeal would they found the violation abhorrent, be fruitless. and was subsequently granted custody of her baby. and was subsequently Mar. 2010) (on file with author). EST) (on file with author). ject, to the author (Nov. 7, 2011, 13:00 reliance on stereotypes in removing IN’s son from her custody. IN’s in removing IN’s son from reliance on stereotypes for why KY was filed an order to show cause attorneys immediately of harm in his mother’s care. at imminent risk Supreme Court has vowed to remove from society in cases like society in cases to remove from Court has vowed Supreme Waterhouse come of the case—that conclude that there was no legal basis to care—theimminent risk of harm in his mother’s IN’s son was at both ACS and the conclusion is that that most likely and reasonable in adjudicating and deciding trial court judge relied on stereotypes the case. harm occurring in other cases not assuage the fears of irreparable at the trial court level. as a result of the use of these stereotypes principles is futile. Appealing these decisions on anti-stereotyping While law.org/resource/resmgr/2010_conference_presentations/d3.pptx. involved. Parent’s Attorney Role in Improving Reunification Outcomes, Presentation at the Parent’s Attorney Role in Improving Reunification for National Child Welfare, Juvenile & Family Law Conference: Achieving Equity Children & Families (Oct. 2010), slides 29–31, mother stereotype was so apparent on the face of the hearing tran- mother stereotype was so apparent are not as blatant. Further- script, the vast majority of violations attorneys for parents do more, already overworked and underpaid fight a crusade against stereo- not have the time or money to types. 35559-nys_69-1 Sheet No. 174 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 174 35559-nys_69-1 35559-nys_69-1 Sheet No. 174 Side B 10/20/2014 11:50:05 abuse, and 53% of all identified Bolen’s analysis reveals that 128 After a discussion of the facts of After a discussion of the facts III. 127 Id. note 119, at 1337. In a random prevalence study, only note 119, at 1337. In a random prevalence supra THE DECISION TO FILE A PETITION IN THE DECISION . However, mothers commit 44% of all Id NONOFFENDER CHILD SEXUAL ABUSE CASES NONOFFENDER Sexual Abuse When Compared with Their Rates of Offense Sexual Abuse When Compared with parental abuse. This Part uses two case studies to illustrate the pervasive use of case studies to illustrate the pervasive This Part uses two Given these impediments, a better stage at which to attack the to at which better stage a impediments, these Given Professor Rebecca Bolen, an expert on nonoffending mothers Professor Rebecca Bolen, an expert 127. caseworker, Ga. Child Protective E-mail from Rachel Gordon, former 128. Bolen, A. with Neglect for Child Mothers Are Disproportionately Charged Servs., to the author (Nov. 6, 2011, 20:52 EST) [hereinafter Gordon E-mail] (on Servs., to the author (Nov. 6, 2011, 20:52 file with author). ac- 0.01% of the respondents was sexually abused by a mother, and mothers counted for 0.6% of all retrospectively reported parental sexual abuse and 0.05% of of all retrospectively reported sexual abuse, whereas fathers accounted for 8% all abuse. identified motherhood stereotypes by ACS caseworkers. The first case demon- by ACS caseworkers. The motherhood stereotypes decision to sub- to which caseworkers hinge their strates the extent actions, or sexual abuse case on the mother’s stantiate a child second case illumi- following disclosure. The reactions, immediately believes her reliance on whether the mother nates caseworkers’ abuse. These two cases are particu- child’s disclosure of child sexual initial actions and whether she larly illustrative because a mother’s described by one caseworker as believes her child’s disclosure are by caseworkers] in deciding “two of the top factors [considered what happens with the case.” 336 NYU its inception—the is stereotype mother the ideal use of the filing of ANNUAL SURVEY OF a peti- discretion in filing have immense Caseworkers, who petition. AMERICAN LAW once it is their decision few checks on a parent, and tion against [Vol. 69:311 rest of this effort. Thus, the little cost and be regulated at made, can to protect of failure application on caseworkers’ Note focuses statutes. \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 26 20-OCT-14 8:42 each case, this Part critiques the caseworkers’ assumptions of how each case, this Part critiques the from a body of social science liter- mothers “should” act by drawing of the nonoffending mother in ature on the empirical realities child sexual abuse cases. of children subject to sexual abuse, has studied the disproportion- of children subject to sexual abuse, with child sexual abuse when com- ate number of mothers charged pared with their rate of offense. 35559-nys_69-1 Sheet No. 174 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 174 35559-nys_69-1 35559-nys_69-1 Sheet No. 175 Side A 10/20/2014 11:50:05 Id. 131 132 This “may Id. . This means that Id. mothers note 119, at 1350. Because note 119, at 1348. Even though supra at 1349. However, because atten- the historical legacy of the legacy of the historical Id. Though many caseworkers no Though many caseworkers supra 129 130 at 1350. 133 Id. act. should B. The Case Studies at 1351. One of the methods by which they have addressed at 1351. One of the methods by which This resulted in prioritizing cases, which “contributed to the This resulted in prioritizing cases, which Id. Id. Id. Id. at 1355. Id. Id. Id. At the same time, child protection services agencies had to contend with At the same time, child protection services In addition to a number of pragmatic reasons for caseworker of pragmatic reasons to a number In addition interventions closely analyzes two recent ACS The next Section file a petition investigating whether or not to Caseworkers, in note 119, at 1349. In the 1970s and 1980s, an increasing number of sexually note 119, at 1349. In the 1970s and 1980s, 129. 130.agencies’ prioritization of intrafamilial First, child protective services A second factor is the scarce resources of child protection agencies. Bolen, A second factor is the scarce resources The third major factor for the focus on nonoffending mothers is that alleged The third major factor for the focus on 131. 132. 133. One caseworker, for example, describes her own struggle in trying to Id. when sexual abuse is identified, caseworkers work with the nonoffending guardian when sexual abuse is identified, caseworkers child. in developing strategies to protect the abuse may account for this disparity. Bolen, abuse may account for this disparity. Bolen, most states have laws authorizing CPS agencies to investigate all types of abuse, in most states have laws authorizing CPS agencies sexual abuse to law enforcement. practice a lot of agencies refer extrafamilial . . . and treatment.” Intrafamilial abuse has “preferential access tion is concentrated narrowly on intrafamilial abuse, the focus on nonoffending tion is concentrated narrowly on intrafamilial nonoffending guardians has typically been directed toward budgetary crises. 2013] at services protective by child as offenders identified are mothers abuse. of actual rate times their 880 UNATTAINABLE THE EXPECTING mother, the nonoffending focus on policies with statutes and have merged trends may These historical in place today. child protective services system to influence the 337 that there is still a mother, concluding involving the nonoffending these stereotypes. strong reliance on her child from mother for failure to protect against a nonoffending of how a rely on their individual perceptions sexual abuse, often mother in this situation mother not only more visible, but also have made the actions of the nonoffending more salient.” supra adults came to the attention of profession- abused children and previously abused als. thus, the salience of the support of non- overrepresentation of parental incest and offending mothers in reported cases.” \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 27 20-OCT-14 8:42 Bolen, offenders are not removed from the home. most alleged offenders are not or cannot be legally removed from the child’s envi- most alleged offenders are not or cannot to protect abused children becomes ronment, child protective services’ mandate especially onerous. “ideal” mother stereotype discussed in Part II.B.1 also contributes discussed in Part stereotype “ideal” mother by caseworkers. of these mothers treatment to the uncharitable this task has been to place the responsibility for protecting the child on the nonof- this task has been to place the responsibility fending mother. leave behind her own perceptions of how a mother should act: 35559-nys_69-1 Sheet No. 175 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 175 35559-nys_69-1 35559-nys_69-1 Sheet No. 175 Side B 10/20/2014 11:50:05 note 93, at 152–53 (“Since supra Mundorff, see also Will Be Blamed for the Abuse. Will Be Blamed for note 127; supra case, where the abusive father was present to bear responsi- abusive father was present to bear case, where the The allegations in the petition against Ms. L were that she “did The allegations in the petition against The example in Part II.B.2 showed a nonoffending mother be- Part II.B.2 showed a nonoffending The example in KA Proactive, Immediately. Mothers Who Do Not React in This Way Mothers Who Do Not React Proactive, Immediately. I know that I, as a caseworker, tried really hard not to let my own upbringing I know that I, as a caseworker, tried really I was evaluating a situation, but I and my own values come into play when If I were to compare each family I don’t know that all caseworkers do that. always fall very, very short, because worked with to my own, they would almost the resources that my family had. the families I worked with just didn’t have probably does come into play, be- So, the “ideal mother” stereotype I think values behind in evaluating situa- cause it is really difficult to leave your own to be neutral. tions like this, though I tried really hard Disclosure That Her Daughter Has Been Sexually Abused. She Will be Daughter Has Been Sexually Abused. Disclosure That Her 1. Time to Process a #1: The Ideal Mother Does Not Need Case Study statutes and guidelines are vague, caseworkers and supervisors are given discretion to make a ‘gut’ call. In making a gut call, it is nearly impossible for the caseworker to divorce himself from his cultural and class prejudices. This leads to differential treatment of the poor and non-whites. With no coherent guidelines, child welfare officials can justify nearly any interference, no matter how capricious.”). bility, in the case that follows, the agency pursued a charge alleging that follows, the agency pursued bility, in the case because ACS could not locate the neglect against only the mother below, demonstrates that the father. The case, described in detail on the mother, disregarded the caseworker placed the blame information that her child had trauma involved in processing the things the mother did do cor- been abused, and ignored the myriad on the mother’s natural ac- rectly. Instead, the caseworker focused following her daughter’s disclosure tions and reactions immediately of the sexual abuse. a. The Facts Z, reported that her bio- not take any action” when her daughter, Gordon E-mail, ing blamed by both ACS attorneys (speaking on behalf of the both ACS attorneys (speaking ing blamed by abuse of her and the judge for the sexual caseworkers in court) Unlike in did not have oral sex with her husband. child because she the 338nonof- of the realities grave the into account to take intend doubt NYU per- on their instead relying fall short, often they mother, fending ANNUAL SURVEY OF intended This Note is of motherhood. notions sonal, preconceived AMERICAN LAW The fol- about their roles. more broadly caseworkers think to help [Vol. 69:311 realign they should ways in which studies elucidate lowing case of false accusation. lower the incidence so as to their approaches \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 28 20-OCT-14 8:42 35559-nys_69-1 Sheet No. 175 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 175 35559-nys_69-1 35559-nys_69-1 Sheet No. 176 Side A 10/20/2014 11:50:05 141 ZLF 145 In re , That same OTES 139 N On Friday, two On Friday, 136 ROGRESS Ms. L said that when P 143 note 137. Ms. L’s daughter told her on told L’s daughter Ms. supra 134 , NVESTIGATION ., I ZLF, No. NA-978/08 (N.Y. Fam. Ct. Feb. 29, ZLF, No. NA-978/08 (N.Y. Fam. Ct. Feb. OTES N ERVS S In re Together Ms. L and the principal called Together Ms. L 138 Ms. L told the ACS specialist “she [wa]s will- Ms. L told the ACS specialist “she ROGRESS 144 P HILDRENS The very next day Ms. L researched sexual abuse researched sexual next day Ms. L The very C 135 FOR . The counselor called Ms. L to inform her and asked L to inform her called Ms. The counselor In fact Z had not had any contact with her father since In fact Z had not had any contact 137 (note entered Feb. 16, 2008, 7:05 PM). (note entered Feb. 20, 2008, 9:30 AM). (note entered Feb. 16, 2008, 7:05 PM). 140 DMIN 142 NVESTIGATION Id. Id. Id. Id. Id. Id. Id. A I Id. In deciding to file a petition against Ms. L, a supervisor at ACS In deciding to file a petition against In her interviews with ACS, Ms. L described her actions and with ACS, Ms. L described her In her interviews 138. 139. 140. 141. 142. 143. 144. 145. 135. 136. Attorney 1 (May 1, 2008) (on file Letter from Ms. L’s Attorney to ACS 137. 134. Petition, add. 1, ¶ 3, (note entered Feb. 15, 2008, 5:16 PM) (on file with author). (note entered Feb. 15, 2008, 5:16 PM) 2008) (on file with author). the case against her client). with author) (requesting that ACS withdraw noted that “[t]he mother may not have known about the abuse un- noted that “[t]he mother may not she exercised extremely poor til 2/13/08 as indicated; however, and she did not take any ac- judgment in not notifying the police reactions upon learning of her daughter’s abuse. She said when the of her daughter’s abuse. reactions upon learning to the school.” cried in the street and rushed school told her “she Wednesday, “and that she had spoken with Z that Ms. L admitted has to see her fa- she don’t [sic] want she never she told Z that if she would not allow the father ther. She said she had decided that has not had any contact since he to have any contact with Z since he left her.” 2013] her. abused sexually father logical UNATTAINABLE THE EXPECTING her to come to school. 339 \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 29 20-OCT-14 8:42 January, one month prior to the disclosure. January, one month prior to the father] away from her or Z.” ing to do whatever to keep [the Wednesday, February 13, 2008 that her father had touched her touched had her father that 13, 2008 February Wednesday, inappropriately. report to the State Central Register. ACS to make the counselors who could assess the level of abuse Z was reporting and abuse Z was reporting the level of who could assess counselors action. best course of L determine the help Ms. day Ms. L took her daughter to the District Attorney’s office where daughter to the District Attorney’s day Ms. L took her with a detective participated in interviews she and Z cooperatively child protective Victims Unit and with ACS’s from the Special specialist. abuse, “[Ms. L] was in shock and her daughter told her about the she was very angry.” days after she told her mother, Z told her school counselor about school counselor Z told her she told her mother, days after the abuse. 35559-nys_69-1 Sheet No. 176 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 176 35559-nys_69-1 35559-nys_69-1 Sheet No. 176 Side B 10/20/2014 11:50:05 151 152 ZLF at 3 (March 3, NRE I , EPORT note 137 (note entered Feb. 28, R supra , NTAKE ., I OTES 149 The supervisor failed to note that Ms. to note failed supervisor The N ERVS ). S 146 147 ROGRESS 150 A caseworker noted that on that date, “[Ms. L] on that date, “[Ms. noted that A caseworker P ROTECTIVE 148 P HILD C (note entered Apr. 14, 2008, 4:00 PM). (note entered Apr. 3, 2008). (note entered Apr. 15, 2008, 9:00 AM). (note entered Feb. 22, 2008). NVESTIGATION Id. Id. Id. Id. I Id. See Again, on April 8, Ms. L “expressed more frustration regarding Again, on April 8, Ms. L “expressed the caseworker and her super- In pursuing a case against Ms. L, The next day, ACS filed an Article 10 Petition, concluding that filed an Article 10 Petition, concluding The next day, ACS occasions that to her caseworker on multiple Ms. L expressed On February 28, Ms. L brought her daughter to ACS for a med- to ACS for a her daughter 28, Ms. L brought On February 148. 149. 150. 151. 152. 146. 147. [I]n response to the mother’s expression of distress and frus- [I]n response to the mother’s expression being handled. [Ms. L] said tration with the way her case was punished for something [the that she feels that she is being not molest [the] child, she is father] did and though she did ringer. [Ms. L] expressed ex- the one being put through the difficulties she is experiencing treme frustration regarding the referral for herself and with getting an appropriate counseling and supervisor] counseled [the] child . . . . [The caseworker the process to work so that [her] and encouraged her to allow herself and [the child]. she can get the help needed for 2008) (on file with author). 2008, 2:30 PM). ical examination. the fact that [the father] has not been apprehended and she feels the fact that [the father] has not looking for him.” that the authorities are not even with processing this kind of visors disregarded the trauma involved the “[m]other did not address the issue or take appropriate actions not address the issue or take appropriate the “[m]other did to protect the child.” of Z’s father. The being punished for the actions she felt she was 11, she met with the mother along caseworker noted that on March with a supervisor, 340 the child.” to protect tion NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:311 \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 30 20-OCT-14 8:42 expressed frustration . . . that she was being given the runaround . . . that she was being given expressed frustration that she con- referral for [Z]. [Ms. L] stated with the counseling and she was being so far that were given to her tacted two places with the providers because of various technicalities shuffled around insurance.” not accepting her L had spent an entire day researching counselors that specialized in specialized that counselors day researching an entire spent L had phone call to make the ran to the school or that she sexual abuse, that Ms. L concluded (who, incidentally, the principal to ACS with cooperative” was “highly 35559-nys_69-1 Sheet No. 176 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 176 35559-nys_69-1 35559-nys_69-1 Sheet No. 177 Side A 10/20/2014 11:50:05 314, 1227, 153 EGLECT & N ALTREATMENT M BUSE A Hierarchies, Jobs, Bodies: A HILD C HILD C , 6 139 (1990) (describing the im- Motherhood as a Status Characteris- Y ’ , 30 OC Reactions of Nonoffending Parents to the Joan Acker, & S see also ENDER G , 4 The Discovery Process: What Mothers See and Do in Gain- The Discovery Process: What Mothers See and 683, 690 (2004); SSUES . I The process is “generally [ The process is and confus- ] unexpected OC Upon initially receiving the information that her daughter the information that her Upon initially receiving 154 J. S 155 However, discovery of child sexual abuse is a process, not an of child sexual abuse is a process, However, discovery By concentrating on this two-day period in ACS’s decision to in ACS’s decision two-day period on this By concentrating It is simpler for investigative and decisionmaking purposes to It is simpler for investigative and 155. Ann N. Elliott & Connie N. Carnes, 154. Carol A. Plummer, 153. Cecilia L. Ridgeway & Shelley J. Correll, First, because alleged perpetrators generally deny the abuse First, because alleged perpetrators evidence or eyewitness and there is rarely physical or medical , 60 1228 (2006). Sexual Abuse of Their Child: A Review of the Literature 314 (2001). possible expectations that society imposes upon mothers to have “nearly super- possible expectations that society imposes ahead of everything else). human capacities” and put their families ing Awareness of the Sexual Abuse of Their Children Theory of Gendered Organizations tic event. 2013] forty- less than in the actions mother’s on the focusing information, disclosure. her daughter’s following hours eight UNATTAINABLE THE EXPECTING b. The Discussion correctly Ms. L did discounted everything the agency file a petition, her daughter—consistent and supporting in protecting an ex- with Cecilia L. Ridge- perfection. As explained by pectation of maternal 341 beliefs about J. Correll, “[c]ontemporary cultural way and Shelley that mothers will include a normative expectation the mother role prioritizes meeting in ‘intensive’ mothering that and should engage activities.” children above all other the needs of dependent \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 31 20-OCT-14 8:42 ing.” had been sexually abused, and in the time following, Ms. L did eve- abused, and in the time following, had been sexually be expected to do. traumatized mother could rything a protective, for purposes of an ACS investi- It was normal, yet perhaps not ideal for her to cry, and for her to take gation, for Ms. L to be shocked, to either the police or to some time before reporting the disclosure expecting too much (to say the child protective services. It was L should have actually had the least) for ACS to believe that Ms. upon receiving this wherewithal to take action immediately information. is one correct reaction to a dis- rely on the assumption that there in that way (which they very covery. When mothers do not behave a petition alleging that they did likely will not), ACS can swiftly file is in fact no “ideal” reaction not act in the ideal manner. There child may have been sexually when a mother first discovers her abused: 35559-nys_69-1 Sheet No. 177 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 177 35559-nys_69-1 35559-nys_69-1 Sheet No. 177 Side B 10/20/2014 11:50:05 . 157 160 infra needed, ACS both Rather than spend copious 159 11, 34 (2009). This article was sparked by the 11, 34 (2009). This article was sparked Y ’ OL Reforming Family Court: Getting It Right Between Rhetoric Reforming Family Court: Getting It Right Between at 11. Spinak implicitly questions whether the proce- Id. note 154, at 1228. at 35–36. 156 supra . U. J.L. & P Id. ASH W Jane M. Spinak, at 315 (internal citations omitted). , 31 Id. See 158 Furthermore, a nonoffending mother who takes time to pro- nonoffending mother who takes Furthermore, a instead of allowing her By dragging Ms. L through this process 160. This recommendation will be discussed in more detail in Part IV, 156. 157. Plummer, 158. any action without facing reper- This is not to say that Ms. L could take 159. testimony, a parent’s belief that the abuse occurred often rests abuse occurred the belief that parent’s a testimony, the perpetrator. word of the child versus of the word on the by someone abuse is perpetrated because most sexual Second, for the nonoffending be difficult the child, it may known to per- they know, and that someone to comprehend caregiver is first when abuse such an act. Thus, could commit haps trust, considerable variabil- that there is it is not surprising disclosed, and protect to which parents believe, support, ity in the extent their children. New York Law Journal’s request that Spinak comment on the success of the New New York Law Journal’s request that Spinak York family court reforms. dures of family court do more harm than good for families, and suggests that the dures of family court do more harm than good for families, and suggests that goal should be diversion from court, which is more effective in engaging the family in needed services. cussion. If, for instance, she actively sought to cover up the abuse, or if she waited cussion. If, for instance, she actively sought would obviously warrant a finding of weeks or months to take any action, these failure to report child sexual abuse. The caseworker should have waited longer than just shy of two The caseworker should have waited Ms. L. Perhaps other measures weeks before filing a petition against cost-effective. For example, time would have been more time- and and Reality cess the situation before taking action is not outside the range of before taking action is not outside cess the situation on per- similarly situated mothers. Depending behavior of other to believe abuse is some mothers find it hard sonal coping patterns, there is clear evi- happened, some deny it when happening or has informa- mothers may actually seek additional dence, and “other decisive action.” before they elect to take tion or confirmation mothers for their to punish nonoffending Thus it is unwarranted following the disclosure of sexual reasonable reactions immediately abuse—especially is not imminent harm to the when, as here, there child. treatment they to focus on her daughter and the 342 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:311 was doing more harm than good. \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 32 20-OCT-14 8:42 amounts of time trying to obtain a finding of neglect against Ms. L amounts of time trying to obtain conform to unattainable expecta- as punishment for her failure to expended more energy on ensur- tions, the caseworker should have these events in a safe way. ing that Ms. L and Z were processing 35559-nys_69-1 Sheet No. 177 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 177 35559-nys_69-1 35559-nys_69-1 Sheet No. 178 Side A 10/20/2014 11:50:05 JA NRE I , OTES N Ms. M “got upset The detective dis- 166 ROGRESS 165 P NVESTIGATION I JA disclosed to a child abuse pre- ., JA, No. NA-15870-09 (N.Y. Fam. Ct. May 28, JA, No. NA-15870-09 (N.Y. Fam. Ct. May 163 ERVS S In re Allegation Is a Bad Mother. Allegation HILDRENS C She immediately started to tell the caseworker that She immediately started to tell the FOR 167 . at ¶ 2. DMIN JA said that she recanted previously because her mother JA said that she recanted previously A Id. Id. Id. Id. Id. JA made similar allegations the year before, but recanted JA made similar allegations the On the same day an ACS caseworker and a detective both On the same day an ACS caseworker Mother Who Does Not Immediately Believe Her Daughter’s Believe Does Not Immediately Mother Who 162 The petition filed by ACS on May 28, 2009, alleges that Ms. M The petition filed by ACS on May This next case focuses on the issue of belief. Like the first case on the issue of belief. Like This next case focuses be a reason of a child’s allegation should not Belief in the truth 161 164 161. Petition, add. 1, ¶ 5, 162. 163. 164. 165. 166. 167. Allegation of Sexual Abuse. She Believes Her Child Immediately. A Child Immediately. She Believes Her of Sexual Abuse. Allegation 2.Her Child’s Not Question Ideal Mother Does Study #2: The Case 2009) (on file with author). (note entered May 25, 2009) (on file with author). knew or should have known that her boyfriend sexually abused her knew or should have known that she failed to adequately protect ten-year-old daughter, JA, and yet her. a. The Facts 2013] in spent productively more have been may in court spent the family therapy. UNATTAINABLE THE EXPECTING nonoffending assumptions about the way ideal study, it concerns 343 In this case, an initial disclosure of sexual abuse. mothers react to ACS and com- mother (Ms. M) cooperated with even though the her daughter, requested of her, she did not believe pleted the tasks ACS victimized a similar allegation in the past. who had recanted she was go- to acknowledge signs that perhaps the mother, refusing in family court period, and filed a petition ing through a traumatic one week after the initial meeting. against her just First, belief is against a nonoffending mother. for filing a petition that is part of the traumatic process an acutely complicated element Second, a mother’s lack of belief of discovery touched upon above. of neglect. is not legally sufficient for a finding \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 33 20-OCT-14 8:42 vention program worker on May 22, 2009, that her mother’s boy- vention program worker on May her since she was seven years friend had been sexually abusing old. them. center. spoke with Ms. M at the child advocacy “became sad and distraught.” immediately.” closed to Ms. M what her daughter had alleged. closed to Ms. M what her daughter 35559-nys_69-1 Sheet No. 178 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 178 35559-nys_69-1 35559-nys_69-1 Sheet No. 178 Side B 10/20/2014 11:50:05 the The 174 JA (note before In re , OTES The caseworker N 169 ROGRESS . P and an order of protection and an order of 171 Ms. M fully complied with the Ms. M fully complied ERVS S 172 AMILY F 177 (McKinney 2010). , . At the child safety conference on May safety conference child At the and that the perpetrator “is alleged to and that the perpetrator 168 175 ERVS She concluded that “[t]he children are safe She concluded that The cross-examination of the caseworker by The cross-examination of the caseworker S § 624 Her children were never removed from her Her children were CT 176 178 note 170 (note entered June 26, 2009). 173 JA, No. NA-15870-09 (N.Y. Fam. Ct. May 28, 2009) (on file JA, No. NA-15870-09 (N.Y. Fam. Ct. May . A T supra In re . C ROTECTIVE AM P A petition against both Ms. M and her boyfriend (the both Ms. M and her boyfriend A petition against F (note entered May 27, 2009). at 5. (note entered May 27, 2009). 170 HILD Id. Id. Id. Id. Id. C Id. Id. The fact-finding was not held until over a year after the peti- The fact-finding was not held until 171. Petition, 172. FSPN JA, 173. 174. 175. 176. 177. 178. N.Y. 168. 169. 170. Q: And when you told her about [JA’s allegation of sexual Q: And when you told her about or a little bit surprised? abuse], did she appear to be shocked . . . she said she doesn’t A: Yeah. Ms. M stated that, immediately, that she has to go through this believe this. She doesn’t believe she is tired of it. again. Her daughter is a liar, and entered May 27, 2009) [hereinafter FSPN JA] (on file with author). entered May 27, 2009) [hereinafter FSPN with author). filing of the petition. tion was filed, in November 2010. As noted above, a finding of neg- tion was filed, in November 2010. basis of acts or omissions lect can only be entered on the 344 be- recanted that she and before allegations these made JA had NYUtrue. not they were cause ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:311 \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 34 20-OCT-14 8:42 custody, and during a court appearance on June 11, 2009, she a court appearance on June custody, and during was.” did not know where [the perpetrator] “stated that she order of protection. be out of the home.” mother.” in the care of their 26, 2009, Ms. M said that her daughter was lying, that her daughter lying, that her her daughter was Ms. M said that 26, 2009, even in this situation Ms. M was the victim and that had a problem, who was molested. it was her daughter though filed in family court, perpetrator) was the perpetrator. was issued against the attorney for JA’s siblings brings to light the fact that the only the attorney for JA’s siblings brings to the filing of the petition was thing Ms. M did wrong that led disbelieving her daughter’s allegation: noted that “[Ms. M] seemed to be in denial of the incident, felt that of the incident, to be in denial “[Ms. M] seemed noted that with the time dealing and had a difficult being victimized she was situation.” caseworker commented on this date that “there [were] no safety on this date that “there caseworker commented issues with the children,” 35559-nys_69-1 Sheet No. 178 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 178 35559-nys_69-1 35559-nys_69-1 Sheet No. 179 Side A 10/20/2014 11:50:05 Q: Okay. And did she say why she thought her daughter was a was daughter her she thought say why did she And Q: Okay. liar? A: Yes. Q: And? because her daughter is a liar, that her daughter A: She stated is put- her daughter Miami, and now through this in put her none of it is true. New York, and through this in ting her . . . be done with that you told the mother had to Q: So, what is it she have to children at that point? What did reference to her that you’re you? Well, first of all, did you say do, according to certain the kids in her home if she followed willing to leave procedures? A: Yes. Q: And what procedures—even and despite her being shocked daughter—whatnot believing her you wanted procedures did her to do to keep the kids? put in place for boyfriend] from the home. A: To temporarily exclude [her . . . are you aware that she vio- Q: To your personal knowledge, by allowing him back in the lated what you asked her to do Court and orders being issued home prior to the case going to by the Court? I don’t think she violated it. A: . . . In my personal knowledge, you ask her to do? What, Q: Okay. And then, what else did take immediately? what actions did you ask her to A: No. That was it, immediately. Q: And after that, what actions—eventually, you talked to her requests for her with refer- again, and did you have any other other children, about what ence to her daughter, JA, or the you wanted her to do? . . . Conference and discuss the A: Just come to the Child Safety case. was that? Q: And when was that? What day A: That was on May 26th of 2009. . . . Safety Conference. She was Q: Okay. So, the 26th, you have the there? Did she show up? . . . A: Yes. . . . Q: [W]hat else did you ask her to do that day? 2013] UNATTAINABLE THE EXPECTING 345 \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 35 20-OCT-14 8:42 35559-nys_69-1 Sheet No. 179 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 179 35559-nys_69-1 35559-nys_69-1 Sheet No. 179 Side B 10/20/2014 11:50:05 61, 77 BUSE A EXUAL S HILD J. C JA, No. NN-15868-71/09 (N.Y. , 15 In re 180 179 How Child Protective Services Investigators Decide to Substanti- Belief is perhaps the most complicated element associated with Belief is perhaps the most complicated on this basis illuminates an- Choosing to file a neglect petition It is clear from both the investigation progress notes and the both the investigation progress It is clear from 179. Transcript of Fact-Finding at 51-59, 180. Carol Coohey, A: . . . [W]e tried to just work with her at that point, to see if to see point, her at that with just work tried to . . [W]e A: . Ms. M was accept services. to she’s willing know, if you she can, that at that point. At work with her and we couldn’t very upset case. have to file the me that we would manager told point, my 22nd is, between the trying to find out Now, what I’m Q: Okay. all of to bring [JA] or you ask her also you filed, did and when exam? for a physical the children exam was done—IA: . . . [A] physical to [filing]. think prior . . . to get something that you needed a warrant, Q: And was that for a physi- Ms. M bring the kids in voluntarily the kids? Or did cal exam? them in voluntarily when we asked. A: She brought [No further questions.] (2006). Fam. Ct. Nov. 23, 2010) (on file with author). discovery of sexual abuse. To hinge a decision to file a neglect peti- discovery of sexual abuse. To hinge and may send the family into tion solely on disbelief is irresponsible this is exactly what is done. even greater trauma. Often, however, her child’s allegations, or wavers Whether or not a mother believes or not cases are substantiated in her belief, directly affects whether petition is filed against the nonof- by caseworkers (i.e., whether a “[the mother] wavered in her be- fending mother). In one study, if was 23 times more likely to be lief that abuse occurred, she substantiated [by the caseworker].” mother stereotype in child sex- other aspect of the use of the ideal believes her child’s allegations ual abuse cases. The ideal mother has recanted in the past. How- immediately, even when the child response to discovery of ever, belief is not normally an automatic above, discovery is a process, not evidence of sexual abuse. As stated ate Mothers for Failure-to-Protect in Sexual Abuse Cases caseworker’s testimony at the fact-finding that the primary motivat- at the fact-finding that the caseworker’s testimony her disbelief of the petition against Ms. M was ing factor for filing everything else that was asked of her daughter, even though she did of her children. her relating to the safety and well-being b. The Discussion 346 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:311 \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 36 20-OCT-14 8:42 35559-nys_69-1 Sheet No. 179 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 179 35559-nys_69-1 35559-nys_69-1 Sheet No. 180 Side A 10/20/2014 11:50:05 J. , 3 note 155, 181 supra 185, 203 (2004). IOLENCE V Elliott & Carnes, Ambivalence of Nonoffending Guardians see also NTERPERSONAL A New Look at Mothers of Incest Victims J. I , 19 47 (1985)); note 154, at 1228 (emphasis added) (citations omitted). note 154, at 1228 (emphasis added) (citations Needless to say, these factors can be very confusing to Needless to say, these EXUALITY supra . S text accompanying note 94. One scholar postulates that “a progression of mater- One scholar postulates that “a progression ) “may be at greatest risk for experiencing the spiral- ) “may be at greatest risk for experiencing UM 183 182 185 (citing Margaret H. Myer, . . . . Because mothers sometimes have to piece together . . . . Because mothers & H Clinicians and caseworkers might assess this as Clinicians and caseworkers See supra Id. Id. 184 ORK To make matters worse, caseworkers and clinicians may mis- To make matters worse, caseworkers At the same time as the mother is attempting to gain more At the same time as the mother 185. 184. Rebecca M. Bolen & J. Leah Lamb, 181. Plummer, 182. 183. . W By the time the child is experiencing severe abuse, several is experiencing the child By the time may feel responsible, he/she may have occurred: things may inappropriately sooner, may become for not telling feel guilty even event, or may as a normal life to the abuse acclimated with the perpetrator the relationship aspects of enjoy certain child may with protecting him/her. The and thus cooperate with a dis- or causing the family trouble fear being disbelieved not to tell . . . . are also frequently threatened closure. Children abused child mother may even approach the In some cases, the any abuse, and have the child blatantly deny with her concerns 20–50% retract the disclosure. Further, or disclose and then of even initially asymptomatic, making detection children may be more difficult. mothers they have hunches, and fragments of what a puzzle of facts, time. the discovery process may take seen and heard, OC S at 314 (explaining that when parents discover that their child has been sexually at 314 (explaining that when parents discover or abused, many experience a process similar to that of a parent who learns of his her child’s tragic death). After Child Sexual Abuse Disclosure take less effective coping mechanisms for ambivalence or disbelief. take less effective coping mechanisms the disclosure as an “ex- The nonoffending mother may experience use less effective coping mecha- treme stressor,” leading her to nisms. information about the allegation, she is experiencing the internal information about the allegation, thing may have happened or process of accepting that this horrible did happen. 2013] after report a clear-cut with forward comes child rarely A an event. abuse: of first incident the UNATTAINABLE THE EXPECTING 347 observed with someone grappling nal responses may mirror those depression, anger, and finally with grieving a death: denial, guilt, acceptance.” \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 37 20-OCT-14 8:42 ambivalence, which was exactly the circumstance in which Ms. M ambivalence, which was exactly guardians with the greatest found herself. Those nonoffending (i.e., the mothers who end up in stressors and the fewest resources family court 35559-nys_69-1 Sheet No. 180 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 180 35559-nys_69-1 35559-nys_69-1 Sheet No. 180 Side B 10/20/2014 11:50:05 The literature, and 189 IV. AL, No. NA-3385/10 (N.Y. Fam. Ct. Sept. 13, AL, No. NA-3385/10 (N.Y. Fam. Ct. Sept. note 154, at 1228 and accompanying text; Elli- note 154, at 1228 and accompanying text; Furthermore, mothers “who have the have “who mothers Furthermore, note 184, at 196. In re While the case studies analyzed in Parts II While the case studies analyzed 186 supra 188 187 RECOMMENDATIONS supra note 180, at 77. note 155, at 314 and accompanying text. supra also supports the proposition that caseworkers focus also supports the proposition that , at 7. , Plummer, supra 190 See id. AL, No. NA-3385/10 (N.Y. Fam. Ct. Apr. 28, 2011) (on file with au- Id. See, e.g. at 165–66, the judge granted ACS’s motion for sum- 168. Nonetheless, In re Id. For these reasons, Part IV.B suggests that caseworkers should IV.B suggests that reasons, Part For these To reduce the use of the ideal mother stereotype in caseworker of the ideal mother stereotype To reduce the use 190. a nonoffending mother’s child to her For example, in deciding to return 186. Bolen & Lamb, 187. 188. 189. Coohey, 2010) (on file with author). However, the judge decided to return the child to the 2010) (on file with author). However, the with services and “learned her les- mother because she had since then complied son.” mary judgment, and entered a finding of neglect based entirely on the transcript from the emergency hearing. Decision and Order on Motion for Summary Judg- ment, thor). Thus, the decision hinged on the mother’s actions immediately following disclosure. after an emergency hearing, the judge concluded that “she did not have good after an emergency hearing, the judge take actions to repo[r]t this incident, judgment . . . when she did not immediately her. That was bad judgment.” Transcript to call the police, or to take the child to of Emergency Hearing at 165, ott & Carnes, 348 am- and mechanisms coping depleted more lead to that ing losses NYU response.” in bivalence ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:311 as the time of disclosure of belief at the on the element not rely a case of neglect their decision to substantiate primary factor in mother. against a nonoffending \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 38 20-OCT-14 8:42 and III are just three examples, many scholars support the idea that and III are just three examples, many As illustrated in Part III.B.ii, these practices are prevalent. more likely to substantiate cases caseworkers are twenty-three times the child. where the mother does not believe greatest costs associated with disclosure can least afford to lose the can least afford with disclosure costs associated greatest with the thus may react perpetrator and provided by the support ambivalence.” greatest decisions, reformers must reconcile caseworker investigations with must reconcile caseworker decisions, reformers of child sexual and the social-scientific realities the legal framework that they do not Caseworkers should be careful abuse disclosure. in the way she han- mother,” who may be imperfect punish the “bad deciding whether to substantiate a dles the initial disclosure, when the nonoffending mother of a case and in litigating a case against the extensive social science child subject to sexual abuse. However, the idea of an ideal mother in literature on the subject shows that this situation is a myth. other cases, 35559-nys_69-1 Sheet No. 180 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 180 35559-nys_69-1 35559-nys_69-1 Sheet No. 181 Side A 10/20/2014 11:50:05 . 194 OLL EXUAL C S (2010), TATE 479, 483–84 HILD S /C & L. Y ’ ECANTATION UFFALO OL B R The Institute also , . P ISCLOSURE 199 UB D . P OST DDRESSING ., P that the parent may not un- that the parent One of the two-day required A SYCHOL P 192 198 ERVS , 1 S S ’ , http://www.bsc-cdhs.org/WhatWeDo/Train/NYS HILDREN . C Training in Child Protective Services: A Commentary on the However, the guidelines are focused on However, the NDERSTANDING AND ERVS FOR S 195 U . The Institute’s “Common Core” training is The Institute’s “Common Core” and that the nonoffending parent may express a parent may express and that the nonoffending These guidelines include a rudimentary summary These guidelines 197 UMAN DMIN 193 H 196 191 OF . at 27. at 29. at 33. http://www.nyc.gov/html/acs/downloads/pdf/pub_child_sexual_ab EV Id. Id. Id. Id. See id. Institute See New York State Child Welfare Training Id. N.Y.C. A UIDELINES FOR D : G The Child Welfare Training Institute (Institute) provides train- The Child Welfare Training Institute ACS tangentially acknowledges the needs of the nonoffending the needs acknowledges ACS tangentially FOR 192. 193. 194. 195. 196. 197. 198. 199. John Doris et al., 191. . TR BUSE available at use.pdf. (1995). C ChildWelfareTrainingInstitute.aspx (last updated Oct. 25, 2011 8:02 AM). Amicus Brief of Bruck and Ceci (1993/1995) A The guidelines also require caseworkers to make referrals for coun- require caseworkers to make The guidelines also parent, the workshops for the nonoffending seling and educational child, and siblings. teams that intervene ing for caseworkers and the multidisciplinary in these cases. 2013]lack of to be a seems There mother. of the response initial on the is experienc- mother that the caseworkers individual by awareness ing a trauma—a a case by the filing of is exacerbated trauma that UNATTAINABLE THE EXPECTING in court. against her guide- supplementary agency published For example, the mother. in No- child sexual abuse investigation of post-disclosure lines for vember 2010. 349 \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 39 20-OCT-14 8:42 mandatory for all new caseworkers. derstand why the child did not come to her or him when the abuse child did not come to her or him derstand why the first occurred, close relationship including confusion over a range of emotions, the child. perpetrator and the desire to protect with the alleged an abuse allegation, rather than on avoiding a child’s recantation of nonoffending mother may be an appreciation of what the experiencing. of disclosure effects on the nonoffending parent. The guidelines on the nonoffending parent. of disclosure effects difficulty believing nonoffending parent may have explain that the have happened, the incident could sexual abuse. trainings for caseworkers is on offers an advanced two-day course in sexual abuse interviewing, and offers an advanced two-day course team approach to sexual advanced courses in the multidisciplinary enhance a coordinated investiga- abuse, which includes strategies to 35559-nys_69-1 Sheet No. 181 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 181 35559-nys_69-1 35559-nys_69-1 Sheet No. 181 Side B 10/20/2014 11:50:05 , 202 The curriculum The 201 such as the District Attorney’s Of- Attorney’s District as the such 200 ACS, Cops Form Team Strategy to Handle Sexual Abuse note 199, at 488. Feb. 13, 1998), http://www.nydailynews.com/archives/news/ A. More Time Before a Petition Is Filed , ( supra David L. Lewis, EWS at 487–88. N Id. See AILY , it is clear that these guidelines do little to combat the stereo- guidelines do little to combat , it is clear that these While ACS has established guidelines and trainings for and trainings guidelines has established While ACS caseworkers often file a peti- As the cases in Part III illustrate, abuse in a variety of ways, The fact is that mothers process 202. Doris, 200. 201. acs-cops-form-team-strategy-handle-child-sexual-abuse-article-1.795678 (reporting on cooperative agreement among caseworkers, police officers, and prosecutors). N.Y. D 350 agencies, various between tion NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:311 acknowl- sexual abuse that cases of child investigating caseworkers aforemen- given the nonoffending parent, needs of the edge some discussed two case studies cases and the on these tioned statistics supra about nonof- individual caseworkers may harbor types that many proposes certain Therefore this Part fending mothers. stereotype does to ensure that the ideal mother recommendations a case against caseworker’s decision to substantiate not influence a is procedural: mother. The first recommendation the nonoffending is statutory: A de- a petition is filed. The second More time before in whether to on belief as the motivating factor creased reliance would limit case. These recommendations substantiate a stereotype of the and reduce the risk that the caseworker discretion against the nonof- the decision to file a petition ideal mother affects is a specific training fending mother. The third recommendation to the trainings about sex- on the nonoffending parent in addition ual abuse in general. week of disclosure. This does not tion against the mother within a time to delve into deeper issues provide caseworkers with enough and the child are experiencing. and problems that both the mother stereotypes of the ideal mother Instead it forces them to rely on time to base the decision on because, frankly, there is not enough fact that mothers process disclo- anything else. However, given the of ways, it is important—bothsure of child sexual abuse in a variety that they are being treated with for making family members feel cases brought against nonoffend- dignity, and for ensuring that the where the child is at risk—thating mothers actually are cases the investigation phase. caseworkers take more time during of belief, supportiveness, protec- “vary[ing] widely in terms of levels \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 40 20-OCT-14 8:42 fice and the New York Police Department. York Police New and the fice includes guidelines for “assessing the nonoffending caretaker.” the nonoffending guidelines for “assessing includes 35559-nys_69-1 Sheet No. 181 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 181 35559-nys_69-1 35559-nys_69-1 Sheet No. 182 Side A 10/20/2014 11:50:05 EXUAL S HILD J. C , 14 In other words, 205 At that point, an emer- For example, even social even example, For 206 Against the Odds: The Impact of Wo- 203 note 155, at 327. However, relying on belief at the time of However, relying on belief at the 208 supra . supra 207 204 Part I, Id. See Id. 95, 110 (2005) (finding that the authors’ study runs contrary to another 95, 110 (2005) (finding that the authors’ in Deciding to File a Petition Against the Nonoffending Mother in Deciding to File a Petition Against Belief at the time of disclosure should not be the motivating Belief at the time of disclosure In fact, what mothers do with their intuitive concerns, includ- with their intuitive mothers do In fact, what Taking more time before filing a petition against the nonof- before filing a petition against Taking more time 205. 206. 207. 208. One caseworker explains: 203. Elliott & Carnes, 204. Ramona Allagia & Jennifer V. Turton, In terms of the mother believing her child, I think that it is a pretty important factor in protecting the child. Yes, technically, a mother can protect her child and keep the child safe from abuse without believing her, but that’s tough and, I think, rare. Also, with cases like these, the child’s future psychological BUSE B. Not Be the Motivating Factor Belief at the Time of Disclosure Should scholar’s results). man Abuse on Maternal Response to Disclosure of Child Sexual Abuse man Abuse on Maternal Response to Disclosure factor in deciding whether to substantiate a case against the nonof- factor in deciding whether to substantiate disagree with this recommenda- fending mother. Caseworkers may child’s future psychological and tion, citing a concern for the as a proxy for a mother’s abil- emotional well-being and using belief ity to protect her child. A 2013] ‘typi- is no that there suggesting they exhibit, distress and tiveness, cal response’” abuse. sexual to child UNATTAINABLE THE EXPECTING it informs clinical they take, is of interest because ing what actions 351 intervention and support. approaches to early \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 41 20-OCT-14 8:42 gency hearing will be held to determine whether this perceived risk gency hearing will be held to determine is substantiated. the legal standard for neglect disclosure is both inconsistent with science studies sometimes run counter to other findings in the to other findings run counter studies sometimes science as a heter- to view mothers ought that caseworkers field, suggesting them and situation impacts their unique group in the way ogeneous their families. more time during the initial investigation could mean a more posi- the initial investigation could more time during the child. In turn, life of both the mother and tive impact in the which is crucial to more individualized probing, more time means mother stereotype. resisting the “ideal” Typically, as in the will not put the child in danger. fending mother jail, so there is no the perpetrator is locked away in above examples, If the caseworker being harmed by him again. chance of the child ACS has proce- child is at imminent risk of harm, still believes the dures to remove the child immediately. 35559-nys_69-1 Sheet No. 182 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 182 35559-nys_69-1 35559-nys_69-1 Sheet No. 182 Side B 10/20/2014 11:50:05 211 . Given the 214 This requires an 210 Nicholson v. Scoppetta a standard objectively judged a standard Given the complicated reality 209 213 Thus, the “focus must be on whether Thus, the “focus note 155, at 315. 212 § 1012 (McKinney 2010). supra CT . A T note 127. Mother’s Ability to Protect Her Child . C 2. Belief Is Not an Adequate Proxy for a supra AM Nicholson v. Scoppetta, 820 N.E.2d 840, 846 (N.Y. 2004). See Id. Id. Id. Belief at the time of disclosure is not an adequate proxy for a Belief at the time of disclosure is Furthermore, even if belief did factor into the calculus of mini- if belief did factor into the calculus Furthermore, even To establish a finding of neglect, the law requires a failure to requires a failure neglect, the law a finding of To establish 210. 211. 212. 213. 214. Elliott & Carnes, 209. N.Y. F and emotional well-being is always a factor, and knowing that your mother, and emotional well-being is always a factor, have a serious damaging effect on your protector, does not believe you can the child’s well-being. 1. for Neglect the FCA Standard Is Inconsistent With on Belief Relying mother’s ability to protect her child. For starters, belief is a prob- mother’s ability to protect her child. a static construct. lematic indicator because it is not Gordon E-mail, mum degree of care, the inquiry is an objective one, and courts are care, the inquiry is an objective one, mum degree of prudent parent whether “a reasonable and directed to evaluate the circumstances acted, or failed to act, under [would] have so existing.” then and there 352 her to protect ability for a mother’s proxy reliable is not a and NYUchild. ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:311 of care, a minimum degree provide \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 42 20-OCT-14 8:42 [the mother] has met the standard of the reasonable and prudent met the standard of the reasonable [the mother] has person in similar circumstances.” by how a similarly situated parent would act. by how a similarly of the child sexual abuse discovery process for nonoffending of the child sexual abuse discovery “reasonable” mothers in these situ- mothers, and the fact that many the heavy reliance on belief ations struggle with the belief element, not supported by the law. When by caseworkers is unfounded and on the ideal mother stereotype caseworkers rely on belief they rely the reasonable mother in the ap- rather than objectively looking at plicable situation. complex nature of the discovery process, mothers “may simultane- complex nature of the discovery inquiry into the conduct of the parent, rather than into emotions conduct of the parent, rather than inquiry into the does not and Belief, a psychological process, or personal feelings. degree of care into the legal calculus of minimum should not factor FCA and refined by as defined by the 35559-nys_69-1 Sheet No. 182 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 182 35559-nys_69-1 35559-nys_69-1 Sheet No. 183 Side A 10/20/2014 11:50:05 215 220 As 217 However, 219 http://www.docstoc available at 218 notes 154–58 social science research concluding that (citing Draft Agenda for Am. Bar Ass’n, Ctr. on Children and the Law, Im- For example, “although a mother may believe her child’s allegation, For example, “although a mother may at 327. Id. Id. See id. Id. See supra See C. on the Nonoffending Parent Trainings for Caseworkers In addition, many mothers who exhibit ambivalent re- ambivalent who exhibit many mothers In addition, Id. Because belief is not a static element and it does not ensure not a static element and it does Because belief is training specifically on the An additional two-day advanced Furthermore, belief alone does not necessarily ensure support does not necessarily belief alone Furthermore, The American Bar Association recently held a two-day training The American Bar Association recently 216 215. 216. 217. 218. 219. 220. The training consisted of hashing out much of the social science The training consisted of hashing protection of the child, an approach whereby caseworkers take ac- child, an approach whereby caseworkers protection of the may be more through a mother’s belief process count of and work nonbelief as a proxy for neglect. effective than using included in course offerings at the nonoffending parent should be is particularly traumatic, and Institute. Because child sexual abuse it is crucial for caseworkers to re- parental responses are diverse, so they can investigate accord- ceive special training on the subject a better idea of which cases are ingly. This will ensure that they have the nonoffending mother. There is necessary to substantiate against mothers react when they discover a great deal of research on how sexually abused. their children may have been 2013] reactions.” variety of a wide experience sequentially and/or ously ac- take into does not of disclosure the time belief at on Focusing itself. process of belief inherent in the complications count the UNATTAINABLE THE EXPECTING part- is the mother’s if the perpetrator especially or protection, ner. 353 \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 43 20-OCT-14 8:42 sponses are still able to take actions to protect their children. actions to protect are still able to take sponses she may also have difficulty believing that her husband could sexually abuse their she may also have difficulty believing that child.” caseworkers seem to ignore the reality and instead focus on what caseworkers seem to ignore the they think is the correct response. in child sexual abuse cases. for lawyers of nonoffending mothers one scholar suggests, “[a]doption of an empathic and nonjudg- “[a]doption of an empathic one scholar suggests, may be more toward a parent’s initial uncertainty mental approach presumptive and confrontational approach that is effective than a parent.” could alienate the mothers’ reactions vary greatly when they discover their child has been sexually mothers’ reactions vary greatly when they abused). proving Representation in the Child Welfare System: The Second National Par- ents’ Attorneys Conference, July 13–14, 2011, .com/docs/109069188/DRAFT-AGENDA-for-Discussion. 35559-nys_69-1 Sheet No. 183 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 183 35559-nys_69-1 35559-nys_69-1 Sheet No. 183 Side B 10/20/2014 11:50:05 225 These is- 221 Some mothers 224 Also discussed were Also discussed 222 at 320. Id. note 155, at 324. 223 supra Rebecca Bolen, Professor, Univ. of Tenn. Coll. of Soc. Work & An- Rebecca Bolen, Professor, Univ. of Tenn. at 328. It is thus important for caseworkers to take a step back and It is thus important for caseworkers See Id. Id. Id. 226 Given the high number of cases brought against nonoffending of cases brought against Given the high number that they did not receive Nonoffending mothers “often report 221. 222. 223. 224. Elliott & Carnes, 225. 226. “Given that sexual abuse of one’s child is often a highly stressful and Part of dispelling the myth of the ideal mother is recognizing that Part of dispelling the myth of the experience along with their mothers are going through a traumatic child. mothers, it would be beneficial for caseworkers to be trained on be beneficial for caseworkers mothers, it would respond the way of such mothers and why they typical reactions what is important could aid in assessing they do. This knowledge understand on a investigation. If caseworkers during the initial in child sexual nonoffending mothers experience deeper level what assist the mothers will be in a better position to abuse cases, they support they need—andand get them the caseworkers the support give them. are required to needed from traditional interven- the type or level of support they or counselors.” tions such as police, caseworkers, 354 were discussed topics the Among Note relies. this upon which data NYU they barriers the are under; mothers nonoffending stressors the ANNUAL SURVEY OF abuse; the reporting sexual and about, recognizing, face to learning AMERICAN LAW and ways disclosures; to children’s of their response importance [Vol. 69:311 forward. needs going address the children’s they can \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 44 20-OCT-14 8:42 respond to the needs of the nonoffending mother as part of the respond to the needs of the nonoffending only help the mother cope, but it initial investigation. This will not to be more supportive of her child will also equip her with the skills throughout the process. drew Cohen, Dir. of Appeals, Comm. for Pub. Counsel Servs., Children & Family drew Cohen, Dir. of Appeals, Comm. for Am. Bar Ass’n, Ctr. on Children and the Law Div., Outline of Presentation at the Welfare System: The Second National Law, Improving Representation in the Child the Non-Offending Parent in Sexual Parent’s Attorneys Conference: Representing Abuse Cases (on file with author). disruptive experience, it is not surprising that parents frequently experience signif- to icant distress following disclosure. . . . In past years, parental distress in response re- the abuse of one’s child was frequently overlooked. However, considerable in search on this topic has emerged during the past decade, as have many books the popular and professional literature.” sues were addressed primarily through a mock direct examination through a addressed primarily sues were abuse expert. Bolen, a sexual of Rebecca complain directly to their caseworkers about this lack of support. complain directly to their caseworkers strategic points for counsel to address when representing the non- counsel to address when representing strategic points for at trial. offending mother 35559-nys_69-1 Sheet No. 183 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 183 35559-nys_69-1 35559-nys_69-1 Sheet No. 184 Side A 10/20/2014 11:50:05 227 Be- 232 and parents However, looking beyond the actual However, looking 231 note 155, at 324. 229 § 2013). 411 (McKinney supra AW 228 . L ERV § 2010). 1011 (McKinney . S OC CT . A at 322. T 230 Id. N.Y. S Id. Id. . C AM In turn, greater parental support is associated with better emo- In turn, greater parental support Protection of the child is in fact furthered by caseworker ap- child is in fact furthered by caseworker Protection of the Parents of sexually abused children often experience a great often experience children abused of sexually Parents goal of the may argue that the Critics of this recommendation 231. Elliott & Carnes, 232. 230. 227. 228. 229. protective proceedings as, The FCA articulates the purpose of child Parents who are experiencing high levels of distress may have Parents who are experiencing high children and difficulty fol- difficulty providing support to their designed to help the child. lowing through with interventions are provided with ser- Theoretically, if nonoffending parents own coping abilities, they vices designed to increase their children cope effectively should be better able to help their with abuse-related issues. designed to establish procedures to help protect children from injury or mis- designed to establish procedures to help physical, mental, and emotional well- treatment and to help safeguard their of law for determining when the being. It is designed to provide a due process against the wishes of a parent on state, through its family court, may intervene behalf of a child so that his needs are properly met. N.Y. F tional and behavioral adjustment in sexually abused children. tional and behavioral adjustment preciation of the mother’s unique situation. An increased focus on mother’s unique situation. An preciation of the only help her mother’s mental state will not the nonoffending cope, but will benefit the child: 2013] Clinically treatment. need personalized and anguish, of mental deal been ob- Disorder have Stress symptoms of Post-Traumatic elevated UNATTAINABLE THE EXPECTING abuse. their children’s disclosure of parents following served in that the studies, suggest by empirical reports, confirmed Anecdotal levels of with increased is also associated of one’s child sexual abuse mater- and maternal hospitalizations, distress, depression, general nal suicide attempts. 355 not to understand system is to protect the child, child protection mother. the needs of the \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 45 20-OCT-14 8:42 child protective proceeding, it is clear that the goal of child protec- proceeding, it is clear that the goal child protective protection for the broadly is to provide both tive services more services for the child child and rehabilitative involved. cause providing support to mothers ultimately helps the child, it cause providing support to mothers to provide caseworkers with the thus serves the interests of ACS mothers in a meaning- training they need to support nonoffending ful way. 35559-nys_69-1 Sheet No. 184 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 184 35559-nys_69-1 35559-nys_69-1 Sheet No. 184 Side B 10/20/2014 11:50:05 CONCLUSION This Note has analyzed, through the lens of anti-stereotyping through the lens has analyzed, This Note 356 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:311 \\jciprod01\productn\N\NYS\69-1\NYS111.txt unknown Seq: 46 20-OCT-14 8:42 theory, judicial and caseworker decisions to substantiate neglect to substantiate decisions judicial and caseworker theory, their chil- to protect mothers for failing nonoffending cases against often use a caseworkers It found that child sexual abuse. dren from As Part their decisions. mother in making of the “ideal” stereotype decisions Supreme Court approach (i.e., a “top-down” III showed, to ending gen- treatment on the ground) influencing caseworker Therefore the in family court has not worked. der discrimination caseworkers rely Note focused on ways in which remainder of this ways to reduce stereotype and on “bottom-up” on the ideal mother focus on a stereotype. In particular, caseworkers their use of the of the abuse. immediately following discovery mother’s reactions to take action, or petitions when the mother waits Caseworkers file at first. However, believe her child’s allegations when she does not elements are nat- reveals that both of these social science literature the unattainable discovering abuse. It is expecting ural responses to higher standards. There are ways from mothers to hold them to any stereotype while still protect- to limit reliance on the ideal mother in this Note would ing the child, and the three recommendations be a good start. 35559-nys_69-1 Sheet No. 184 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 184 35559-nys_69-1