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Reprinted from the

New York University Annual Survey of American Law

DESICRIT: THEORIZING THE RACIAL AMBIGUITY OF SOUTH ASIAN

Vinay Harpalani

Volume 69 Issue 1 2013 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 South 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 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 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 , Berkeley, and the Conference on Asian ” 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 -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 Seattle 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 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. “” 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 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 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, . (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. 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. 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 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 Middle Eastern Americans, 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 by Design: Flexible Citizenship and South Asians in U.S. Racial Formations Diaspora by Design: Flexible Citizenship and and 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 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 . 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 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 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- 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 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 Louisiana 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 . Finally, this Part exam- pects of , , 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 , 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 , 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.--India---Pak.-, 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). , , , 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 . such differences in self-identification In particular, 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 , Bengalis, 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 , 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—, to specific religious reference Muslims, and —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’ 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 (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, 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 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 , radical self-love stretched hand in a new place. Above all, , imperialism, and patri- and everyday resistance to , 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 . , 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, Queens: 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 , D.C., ton, 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 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/ 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 (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 (then Senator during his 2008 Presidential , 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 . 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- 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 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 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 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 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 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 “ 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 - , 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 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 , 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 “ 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 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 , 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 . 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 & 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 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 , 260. Saint Nihal Singh, W All the Hindoos who come to America have hair 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 -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 San Francisco and Oakland, while others worked in grants were street peddlers in San Francisco the silver mines of Nevada. 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 southern California, 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- 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, . 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 . 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 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 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 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 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 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 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. , 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 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 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 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 United States Congress 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 (). 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] (Iowa), 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 American dream, 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 New Orleans, 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 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 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 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 harmony 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 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 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 ‘’ 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 ”). 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=.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. , Birmingham, Dallas, 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, 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 , 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 entertainment. 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 . 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 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 “” 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 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 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 , 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 Rutgers University. 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 . 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