Civil Rights Issues Facing Asian Americans in the 1990S. IYSTITUTION Commission on Civil Rights, Washington, D.C

Home , Asian quota, Ching chong, Joan Chen, Killing of Vincent Chin, Pat Morita

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AUTHOR Chun, Ki-Taek; Zalokar, Nadja TITLE Civil Rights Issues Facing Asian Americans in the 1990s. IYSTITUTION Commission on Civil Rights, Washington, D.C. PUB DATE Feb 92 NOTE 245p. PUB TYPE Reports - Evaluative/Feasibility (142)

EDRS PRICE MF01/PC10 Plus Postage. DESCRIPTORS *Access to Education; *Asian Americans; *Civil Rights; Educational Discrimination; Elementary Secondary Education; Equal Educetion; *Equal Opportunities (Jobs); Ethnic Discrimination; Higher Education; Immigrants; Minority Groups; *Policy Formation; Public Policy; Racial Bias; *Racial Discrimination; Violence IDENTIFIERS *Commission on Civil Rights

ABSTRACT In 1989, the U.S. Commission on Civil Rights held a series of roundtable conferences to learn about the civil rights concerns of Asian Americans within their communities. Using information gathered at these conferences as a point of departure, the Commission undertook this study of the wide-ranging civil rights issues facing Asian Americans in the 1990s. Asian American groups considered in the report are persons having origins in the Far East, Southeast Asia, and the Indian subcontinent. This report presents the results of that investigation. Evidence is presented that Asian Americans face widespread prejudice, discrimination, and barriers to equal opportunity. The following chapters highlight specificareas: (1) "Introduction," an overview of the problems;(2) "Bigotry and Violence Against Asian Americans"; (3) "Police Community Relations"; (4) "Access to Educational Opportunity: Asian American Immigrant Children in Primary and Secondary Schools";(5) "Access to Educational Opportunity: Higher Education"; (6) "Employment Discrimination";(7) "Other Civil Rights Issues Confronting Asian AmericansH; and (8) "Conclusions and Recommendations." More than 40 recommendations for legislative, programmatic, and administrative efforts are made. Many of these suggestions would benefit all minority groups in the United States. Four tables present statistical findings, and an appendix contains supplemental correspondence and fact sheets. (SLD)

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A Report of the Civil Rights Issues Facing Ss. 1 United States Commission on Civil Rights

Asian ericans in the 1990s I k February 1992

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U.S. COMMISSION ON CIVIL RIGHTS The U.S. Commission on Civil Rights isan independent, bipartisan agency first established by Congress in 1957 and reestablished in 1983. It is directedto: Investigate complaints alleging that citizensare being deprived of their right to vote by reason of their race, color, religion, sex, age, handicap, or national origin,or by reason of fraudulent practices; Study and collect information concerning legal developmentsconstitu 'ng discrimination or a denial of equal protection of the laws under the Constitution becauseo 'race, color, mligion, sex, age, handicap, or national origin, or in the administration of justice; Appraise Federal laws and policies with respectto discrimination or denial of equal protection of the laws becanse ofrace, color, religion, sex, age, handicap, or national oriel, or in the administration of justice; Serve as a national ekaringhouse for information in respectto discrimination or denial of equal protection of the laws because ofrace, color, religion, sex, age, handicap, Cet national origin; Submit reports, findings, and recommendationsto the President and Congress.

MEMBERS OF THE COMMISSION Arthur A. Fletcher, Chairperson Charles Pei Wang, Vice Chairperson William B. Allen Carl A. Anderson Mary Frances Berry Esther GonzalezArroyo Buckley Blandina Cardenas Ramirez Russell G. Redenbaugh

Wilfredo J. Gonzalez, Staff Director Civil Rights Issues Facing Asian Americans in the 1990s

A Report of the United States Commission on Civil Rights February 1992 Letter of Transmittal

THE PRESIDENT THE PRESIDENT OF THESENNTE ME SPEAKER OF THE HOUSE OF REPRESENTATIVES

Sirs: The United States Commission on Civil Rights transmits this report,Civil Rights Issues Facing Asian Americans in the 1990s, to you pursuant to Public Law 98-183, asamended.

This report was prompted by a series of three roundtableconferences held by the Commission in 1989. At these conferences local representatives of theAsian American communities were asked to inform the Commission about civil rights concerns within theircommunities. The clear and unambiguous message we received was that AsianAmericans face serious civil rights problems that touch both U.S.- and foreign-born Asian Americans,and exist at all social and economic levels and in virtually all walks of life. The record of theseroundtable conferences was published as Voices AcrossAmerica: Rothatable Discussions of Asian Civil Rights Issues.

The research and field investigations conducted for this reportestablish these concerns as national problems. Asian Americans suffer widely the pain andhumiliation of bigotry and acts of violence. They also confront institutional discrimination in numerousdomains, such as places of work and schools, in accessing public services, and in theadministration of justice. Although Asian Americans face prejudice and discrimination as a racialminority in this country, their experiences are also shaped by the unique history of persons of Asiandescent in America and by the fact that many Asian Americans are immigrants andlanguage minorities. The more than 40 recommendations contained in this report, although not atotal solution to the civil rights problems facing Asian Americans, prescribe actionsthat must be taken if progress is to be made. Central to the Commission's recommendations arespecific legislative, programmatic and administrative efforts that the Federal, State and local governments, mustundertake. The Commission looks to Congress and the President, in theircrucial leadership roles in advancing civil rights, to move aggressively to adopt the Commission'srecommendations and to encourage action by State and local governments andthe private sector.

Respectfully,

For the Commissioners, Arthur A. Fletcher Chairperson Preface

In the summer of 1989 the U.S. Commission on Civil Rights held a series of three Roundtable Conferences across the country to hear about the civil rights concerns of the Asian American community. Roundtable conferences were held in Houston, Texas, on May 27; in New York, New York, nn June 23; and in San Francisco, California, on July 29. Participants at the Roundtable Conferences addressed a wide variety of civil rights issues facing today's Asian American community. An accompanying volumel contains transcripts of the Asian Roundtable Conferences. Using the information gathered at these conferences as a point of departure, Commission staff undertook a study of the wide-ranging civil rights issues facing Asian Ameri- cans in the 1990s. This report presents the results of thatinvestigation.2 The purrose of this report is to investigate and heighten public awareness of the broad range of serious civil rights issues facing Asian Americans today and to make recommendations for enhancing civil rights protections for Asian Americans. It should be recognized at the outset that many of the civil rights problems confronting Asian Americans also confront other minority groups, and many of the recommendations made in this report for enhancing Asian Americans' civil rights protections could equally well be made for other minority groups. The report reflects the continuing concern of the Commission for the civo rights advancement of Asian and Pacific Americans. It adds to the list of Commission reports on Asian and Pacific Americans, that includes:

U.S. Commission on Civil Rights, The Economic Status of Americans of Asian Descent: An Exploratory Investigation, Clearinghouse Publication 95, October 1988;

U.S. Commission on Civil Rights, Recent Activities Against Citizens and Residents of Asian Descent, Clearinghouse Publication 88, 1986;

U.S. Commission on Civil Rights, Success of Asian Americans: Fact or Fiction?, 1980;

U.S. Commission on Civil Rights, The Tarnished Golden Door: Civil Rights Issues in Immigra- tion, September 1980;

U.S. Commission on Civil Rights, Civil Rights Issues of Asian and Pacific Americans: Myths and Realities, A Consultation, May 8-9, 1979, Washington, DC;

U.S. Commission on Civil Rights, Civil Rights Digest, [issue on Asian Americans] vol.9, no. 1 (Fall 1976);

1 U.S. Commission on Civil Rights, Voices Across America: Rounchabk Mcussions of Asian Civil Rights Issues (1991). 2 Asian American groups considered in this report are persons having origins in the Far East, Southeast Asia, and the Indian subcontinent. At times, the report also includes information abou± Pacific Islanders, but limited resources precluded a systematic investigation of the civil rights issues facing Pacific Islanders. New York State Advisory Committee to the U.S. Commission on Civi! Rights,Asian Americans: An Agenda for Action, February 1980;

Hawaii State Advisory Committee to the U.S. Commission on Civil Rights, Breach of Trust? Native Hawaiian Homelands, 1980;

New York State Advisory Committee to the U.S. Commission on Civil Rights, The Forgotten Minority: Asian Americans in New York City, 1978;

California State Advisory Committee to the U.S. Commission on Civil Rights, Asian American and Pacific Peoples: A Case of Mistaken Identity, February 1975;

California State Advisory Committee to the U.S. Commission on Civil Rights, A Dream Unfulfilled: Korean and Pilipino Health Professionals in California, 1975. Acknowledgments

This report was researched andwritten by Ki-Taek Chun and NadjaZalokar. Additional contributions were made by BrennaMahoney, Victoria Ni, Mark Regets,and Eileen Rudert. completion. Jennifer Cutler provided competentresearch assistance as the report neared Audrey Wright and ClarenceGray provided secretarial supportfor this project. Carol Booker, Barbara Brooks, and Tino Calabia provided comments on thedraft report. Editorial assistance and preparation of the reportfor publication were provided byGloria Hong Izumi. The report Assistant Staff Director was preparedunder the general supervisionof James S. Cunningham, for Programs, Policy, andResearch. of this report. They were: Several outside experts madevaluable comments on a draft version Hurh, Western Illinois Univer- Sonya Chung, JapaneseAmerican Citizens League; Won-Moo Kathryn Imahara, Asian Pacific sity; Kenji Ima, CaliforniaState University at San Diego; Examiner, Peter Kiang, Universityof American Legal Center; K.Connie Kang, San Francisco Legal Center; Daphne Kwok, Massachusetts at Boston; StewartKwoh, Asian Pacific American TimesLos Angeles; Bill Wong, Organization of Chinese Americans,Inc.; K.W. Lee, Korea Oakland Tribune; and MelindaYee, formerly of Organizationof Chinese Americans, Inc. assistance in gatheringinformation In addition, the followingindividuals provided valuable Hong, Business Week; EugeneC. Kin, California StateUniversity of for this report: Peter News; Lee Sacramento; Kapson Lee,Korea TimesLos Angeles;Kay Lee, New York Asian Legislative staff; Nguyen T.Ngyuen, Maglaya, Asian HumanServices; Dung Nignyen, California Resettlement; Chong W. Pyen, AnnArbor California Senate JointCommittee on Refugee Center for Southeast Asians;Mayley News, S.K. "Chhem" Sip,Socioeconomic Development Pacific Islander Affairs; PaulBock, L. Tom, California StateLegislature, Office of Asian and University of Connecticut;and Robin Wu, Chinesefor Affirmative Action. Commission's Asian American The Commission wishes tothank the participants at the San Francisco in the summerof 1989 Ru,ndtable Conferences heldin Houston, New York, and of Asian Americans. The for the information theyprovided on the civil rights concerns Roundtal.,ie Conference were:Harry Gee, Theresa Chang,Steven participants at the Houston Martha Mang, Michael Yuan,Glenda Kay Joe, Michael Chou,Ning Chiu, James T. Loh, Dr. Lay-Su, William W. Chang, Gordon Wong, Manuel Pacheco,Wei-Chang Wayne Liauh, Robert George R. Willy, and MarkChang. The Quan, Albert T. Wang,Rong-Tai Ho, Harb S. Hayre, Roundtable Conference were:Walter 01, Setsuko Nishi, May participants at the New York J. Ying Chen, Mini Liu, ShirleyLung, Stanley Mark, Tsiwen M.Law, Charles Wang, Rockwell Theresa Ying Hsu, Romesh Chin, Pat Eng, Carlton Sagara,Margaret May Chin, Amy Chu, Diwan, Betty Sung, andJackson Chin. The participants atthe San Francisco Roundtable Matsushita, Leland Yee, Tom conference were: Patrick Andersen,Henry Der, Raj Prasad, Karl Kue, Kim, Stewart Kwoh, Bok LimKim, Francis C. Assisi, TomSurh, Andy Anh, Tou Doua Vinod Patwardhan, David Prasert Duangmala, Vu-DucVuong, Kevin Accbo, Paul Wong, C. Chen, Virginia Barrientos,George Kita, Roger Chin, and HaroldYee. Contents

Chapter 1. Introduction 1 Asians in the United States: A Brief History 2 Asian Americans in the 1990s: A Demographic and Socioeconomic Portrait 13 Discrimination and Barriers to Equal Opportunity for Asian Americans: Some Contributory Factors 18

Chapter 2. Bigotry and Violence Against Asian Americans - Recent Incidents of Bigotry and Violence Against Asian Americans 25 Statistics on Hate Crimes Against Asian Americans 45

Chapter 3. Police Community Relations 49 Asian Americans' Access to Police Protection 49 Police Department Asian American Outreach Approaches 59

Lowell, Massachusetts: A Case Study of Police-Community Relations ... 61

Chapter 4. Access to Educational Opportunity: Asian American Immigrant Children in Primary and Secondary Schools 68 Asian American Immigrant Students in American Schools 68 The Provision of Educational Programs for Asian American LEP Students 76 Equal Educational Opportunity for LEP Students: Legal Protections and Federal Enforcement 81 Racial Tensions ,n Public Schools 88 In proving the Education of Asian American Immigrant Children: barriers and Promising Avenues 99

Chapter 5. Access to Educational Opportunity: Higher Education 104 The Controversy 104 Three Case Studies 109

Chapter 6. Employment Discrimination 130 Glass Ceiling 131 Language Rights in the Workplace 136 The Certification of Foreign-Educated Professionals 145 Discrimination Caused by the Immigration Reform and Control Act 148 Discrimination in Construction Unions 152 Employment Discrimination Against Asian American Women 153

Chapter 7. Other Civil Rights Issues Confronting Asian Americans 157 Political Representation 157 Access to Health Care 163 Access to the Judicial System 168

9 The Plight of Battered Asian American Women 174 Asian Americans and the Media 180 Religious Accommodation 185

ChatA,er 8. Conclusions and Recommendations 190

Appenc,.< 207 Chapter 1 Introduction

In the spring of 1991 the Wall Street Journal equal opportunity. Asian Amerk:ans are fre- and NBC News conducted a national poll of quently victims of racially motivated bigotry and voters' opinions about a variety of social and violence; they face significant barriers to equal economic issues. The poll revealed that the ma- opportunity in education and employment; and jority of American voters believe that Asian they do not have equal access to a number of Americans1are not discriminated against in the publicservices,including policeprotection, United States. Some even believe that Asian health care, and the court system. Americans receive "too many special advan- This chapter is intended as a general intro- tages."2 The poll shows plainly that the general duction to facilitate understanding of the civil public is largely unaware of the problems Asian rights issues Asian Americans face in the 1990s. Americans confront. Considering the widely It begins with a review of the history of Asian held image of Asian Americans as the "model Americans in the United States that both minority," this is hardly surprising. Yet partici- demonstrates the long-standing anti-Asian bias pants at the Civil Rights Commission's Round- inthis country and shows how that history table Conferences in Houston, San Francisco, shaped today's Asian American population. It and New York3 recounted numerous incidents then paints a demographic and socioeconomic of anti-Asian prejudice and discrimination. Their portrait of today's Asian Americans that shows statements made evident that, contrary to the the heterogeneity of the Asian American popu- widespTead belief captured in the Wall Street lation. The diversity among Asian Americans Journal/NBC News poll, Asian Americans en- means that Asian Americans as a group will con- counier many discriminatory barriers to equal front an entire spectrum of civil rights issues, opportunity and full participation in our society. ranging from those that affect new immigrants This report seeks to focus attention on the with low skills to those that affect highly edu- civil rignts issues that confront Asian Americans cated professionals and their offspring. Finally, in the 1990s.4 The report compiles evidence the chapter discusses se- factors that under- confirming that Asian Americans do face wide- lie discrimination agai. ist Asian Americans. spread prejudice, discrimination, and barriers to

1 Thc tcrm Asian Americans is used in this report to refer to persons of Asian descent who are either citizens or intending citizens of the United States, or who plan to spend the rest of their lives in the United States. 2 Mick '44cQueem "Voters Responses to Poll Disclose Hug- Chasm Between Sala! Attitudes of Blacks and Whites," Walbu Jowna4 May 17, 1991, p. A16. 3 The Commission's Roundtable Conferences on Asian American Civil Rights Issues for thc 1990s were held in Houston, TX, on May 27, 1989; in New York, NY, on June 23, 1989; and in San Francisco, CA, on July 29, 1989. 4 Asian American groups considered in this report are persons having origins in the Far East, Southeast Asia, and the In- dian subcontivent. At times, the report also includes information a'aout Pacific Islanders, but limited resources precluded a systematic investigation of the civil rights issues facing Pacific Islanders.

1 1 Asians in the United States: Naturalization and Immigration A Brief History Laws The first Asians to arrive in the United States Throughout most of their history in thiscoun- in large numbers were the Chinese, whocame to try Asians have beenictimized by discrimina- work on Hawaiian plantations by the 1840s and tory naturalization and immigration laws. These to the West Coast of the mainland starting in the laws have had the legacy of making Asian Amer- early 1850s to work in gold mines and laterto icannewcomersfeelunwelcomeintheir help build the cross-country railroads. The Chi- adopted country and have also been important nese were followed in the late 19th and early in shaping the Asian American communityas it 20th centuries by Japanese and Filipinos and, in exists today. smaller numbers, by Koreans and Asian Indians. As this country became a nation, its founders Restrictive immigration laws produceda 40-year sought to restrict eligibility for citizenship. In hiatusin Asian immigration startinginthe 1790 Congress passed a lawlimiting naturaliza- 1920s, but in 1965, when anti-Asian immigration tion to "free white persons." The law was modi- restrictions were liberalized a new wave of im- fied in 1870, after the adoption of the 14th migration began bringing people from Southeast amendment, to include "aliens of African nativ- Asia, China, Korea, the Philippines, and other ity and persons of African descent." At that time Asian countries to the United States. Congress considered and rejected extending nat- The history of Asian Americans in thiscoun- uralization rights to Asians,6 thus making Asian try is replete with incidents of discrimination immigrants tin.; only racial group barred from against them. Asian Americans experienced, at naturalization.Because the 14th amendment one time or another, discriminatory immigration granted citizenship to all persons born in the and naturalization policies; discriminatory Fed- United States, however, the American-born chil- eral, State, and local laws; discriminatory gov- dren of Asian immigrants were citizens. Filipinos ernmental treatment; considerable prejudiceon and Asian Indians were granted eligibility for the part of the general public; and outright vio- naturalization in 1946,8 but it was not until 1952, lence.Not only was today's Asian American with the McCarran-Walter Act,9 that naturk,a- community shaped byhistoricalforces, but don eligibility was extended to all races.1° Thus, today's civil rights issues need to be viewed in through most of this country's history, immigrant the context of past discrimination against Asian Asians were ineligible to become citizens. Americans. Despite these anti-Asian naturalization laws, immigrants came to the United States from sev-

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5 U.S. Cimmission on Civil Rights, The Tarn: Shed Golden Door: Civil Rights Ismes in hnmigation(September 1980), p. 10 (hereafter cited as The Mmished Golden Door). 6 Roger Daniels, Asian America: Chinese and Japanese in the United States Since WO (Seattle, WA:University of Wash- ington Press, 1988), p. 43 (hereafter cited as Asian America). 7 These lam were widely held to bar the naturalization of the Chinese. In 1922 the SupremeCourt held that thc naturalization bar applied to Japanese (Wawa v. United States, 260 U.S. 178 (1922)). The followingyear, the Supreme Cm: t held that East Indians were also barred from naturalization, because theteim "white" did not include all Caucasians (United States V. Thind. 261 U.S. 204 (1923)). 8 The Tarnished Golden Door, p 10. 9 Pub. L. No. 82-414, 66 Stat. 163 (1952). 10 Don Thruo Ilata, Jr., and Nadine Ishitani I lata, "Run Out and Ripped Olt A Legacyof Discrimination," Cwil Rights Digest, vol. 9, no. 1 (Fall 1976),P. 10 (hereafter cited as "Run Out and Ripped Oft").

2 2 eral Asian countries starting in the mid-19th Shortly after Chinese immigration was halted century. As each successive Asian group arrived by the Chinese Exclusion Act, a newwave of in this country, increasingly harsh immigration Asian immigration began, this time from Japan. laws restricting the group's immigration were im- Although a few Japanese had immigrated to Ha- posed. The first immigration ban was against the waii in the 1870s and 1880s, Japanese did not Chinese. In the 1850s Chinese immigrants began come to the mainland in noticeable numbers coming to the United States mainland to work in until the 1890s.17 At first largely urban, the Jap- California's gold mines and quickly spread to anese soon became engaged predominantly in mining in other Western States as well. Later, agricultural pursuits and related trade.18 they played an essential role in building this Although the number of Japanese in this country's transcontinental railroads. After the country was not large (fewer than 25,000 in the railroads were completed in 1869, jobs became 1900 census),19 pressure soon developed on the scarcer on the West Coast, and worker resent- West Coast to restrict Japanese immigration. In ment of the low wage rates accepted by Chinese response to this pressure, the Japanese Govern- workers intensified. Pressure built to limit the ment, fearing a loss of international prestige if immigration of Chinese, culminating with the U.S. immigration lows banned Japanese im- passage of the Chinese Exclusion Act in 1882,11 migration, negotiated the Gentleman's Agree- which suspended the immigration of Chinese la- mentzowith President Theodore Roosevelt in borers for 10 years.12 In 1892 the Geary Act13 1907.21 According to thisagreement, the Japan- extended the immigration ban for another 10 ese Government would voluntarily restrict the years and required Chinese living in the United emigration of unskilled Japanese to the United States to obtain "certificates of residence" to States. In return, the parents, wives, and chil- prove that they were legalresidents." In 1904 dren of Japanese already in the United States the Chinese immigration ban was extended in- would be allowed entrance. Unlike the Chinese definitely.15 Since the Chinese living in this Exclusion Act, the Gentleman's Agreement per- country were predominately male, the result of mitted the entrance of large numbers of Japan- these immigration restrictions was that the Chi- ese "picturebrides."22 Asa result, the Japanese nese population in the United States declined population in the United States, initially much from 105,465 in 1880 to 61,639 by 1920.16 smaller than the Chinese population, grew from

11 Ch. 126, 22 Stat. 58 (1882). 12 The Tarnished Golden Door,p. 8. In 1888 the Scott Act widened the immigration ban to all Chinese except for officials, merchants, teachers, students, and tourists. The Scott Act also denied reentry to any Chinese who had kft the United States, even though the Chinese Exclusion Act had allowed reentry of all Chinese who had been in this country in 1880. Ibid. andAsian America,p. 57. 13 Ch. 60, 27 Stat. 25 (1892). 14 Asian America,p. 58. 13 Ch. 1630, 33 Stat. 428 (1904); TheTarnished Golden Door,p. 8. As noted below, the ban was eventually lifted in 1943. 16 Ronald Takaki,Strangers from a Differeni Shore: A History of Asian Americans(Boston: Little Brown, 1989), pp. 111-12 (hereafter cited asStrangers from a Different Shore). 17 Asian America,pp. 101-02. 18 Ibid., p. 107. 19 Ibid., p. 115. 20 Exec. Order No. 589. 21 Asian America,p. 125. 22 Ibid.. pp. 125-27.

1 3 roughly 25,000 in 1900 to almost 127,0(X) in Philippines, a U.S. territory, continued apace 1940, far exceedisthe 1940 Chinese population untilfew y3(ciars before the Tydings-McDuffie of roughly 78,000. Act of 1934,which gave the Philippines Com- Asian immigration was further limited by thc monwealth status and defined Filipinos not born Immigration Act of 1917,24 which banned im- in the United States as aliens. The Tydings- migration from all countries in the Asia-Pacific McDuffie Act placed a quota of 50 immigrants Triangle except f75 the Philippines, a U.S. terri- per year oil immigration from thePhilippinesn tory, and Japan.Japanese immigration was and did not allow the families of resident Filipi- subserently limited by the Immigration Act of nos toimmigrate.32 Oneyear later, the Repatri- 1924. This act restricted annual immigration ation Act33 authorized funds to pay for one-way from all countries to 2 percent of the countries' tickets back to the Philippines for resident Fili- national origin populations living in the United pinos, provided that they agreed not to return to States in 18°0, with an overall cap of 150,000, the United Statcs. Only 2,000 Filipinos took ad- and also specifically banned immigration of per- vantage of this offer,however.34 sons who were ineligible for citizenship, i.e., As- The discriminatory immigration laws were re- ians.27 Since immigration from all other Asian laxed slowly starting in 1943, when the Chinese countries had already been halted, this provision Exclusion Act was repealed35 and an annual appeared to be targeted at the Japanese. quota of 105 Chincsc immigrants wasset.36 The The immigration to the U.S. mainland by Fili- Filipino and Indian quotas were cnicreased by pinos, largely laborers, which had begun just presidential proclamation in 1946.The 1945 after 1900, increased substantially in the 1920s War Brides Aces permitted the immigration of as demand for their labor increased, at least in Asian (and othcr national origin)39spouses and part as a result of the exclusion of the Japan- children of American servicemen.It was only ese.28Filipinosspreadacrossthccountry in 1952 that thc McCarran-Walter Act ended quickly, most of them working in agriculture and the ban on Asian immigration and for the first in domestic service.29 Immigration from the time in American history granted Asian im-

23 Ibid., p. 90 and p. 115. 24 Pub. L. No. 301, 39 Stat. 874 (1917). 25 Aswn America, p.150. 26 Pro. L. No. 139, 43 Stat. 153 (1924). 27 Except for Filipinos, who, as residents of a U.S. territory, were UnitedStates nationals. 28 Strangers From a Different Shore,pp. 57-58. 29 Ibid., pp.316-19. 30 Ch. 84, 48 Stat. 459 (1934). 31 State of California, Attorney General's Asian/Pacific AdvisoryCommittee, Final Report(December 1988), p. 38 (hereafter cited as Attorney General's Report). 32 Strangers From a Different Shore,p. 337. 33 Pub. L. No. 202, 49 Stat. 478 (1935). The time in which Filipinos could "benefit" from the statute was extended in Congress' next session. Pub. L. No. 645, 49 Stat. 1462 (1936). 34 Strangers From a Different Shore, pp. 332-33. 35 Pub. I- No. 199, 57 Stat. 600 (1943). 36 Me Tarnished Golden Door, p.10. 37 Proc. 2696, 3 C.F.R. 86 (1946). 38 Pub, L. No. 271, 59 Stat. 659 (1945). 39 The Tarnished Golden Door, p. 10.

4 1 4 migrants naturalization rights. The act,however, heavily Filipino, Korean, and Southeast Asian, retained the national origins systemestablished and to a lesser extent Chinese and Indian.Jap- in the Immigration Act of1924.40 Since very few anese immigrantscontinued to come, but in Asians (apart from Chinese) residedin the much smaller numbers than the other groups. United States in 1890, this provisioneffectively The net effect of the changingimmigration continued discrimination against Asianimmigra- and naturalization policies towardsAsians is that tion.41 It was not until 1965 that amendments to some AsianAmericans, predominantly Japanese Chinese the McCarran-WalterAct42 replaced the na- Americans and to a lesser extent, tional origins system with a fixed annual quotaof Americans," have been here for generations, Americans are 20,000 per country, permitting asizable Asian while a great number of Asian immigration.43 Thc 1965 amendments retained a immigrants (many of whom enteredthe United preference for highly skilled workersfirst intro- States after 1965) or their children. duced in the 1952act.44 Beginning in the late 1960s; theopening of Anti-Asian Bigotry andViolence the doors to Asian immigrantsproduced a sec- Bigotry and violence against Asiansbegan al- ond major wave of Asianimmigration. Many of most as soon as Asiansarrived in this country, these new immigrants werehighly educated pro- making Asian Americans feelthat they were un- fessionals as a result of the preferencesystem welcome outsiders in the UnitedStates. As early for skilled workers. In the1970s and early 1980s as the late1840s, the Know-NothingParty, immigration from Asia intensified, asSoutheast which was largely anti-Catholicin the Eastern Asian refugees came to this country as aresult United States, promoted anti-Asiansentiments of upheavals in SoutheastAsia brought on by in the Western UnitedStates.° In the 1860s and the Vietnam War. Over 400,000Asians came to 1870s, before the Chinese ExclusionAct, many the United States during the1960s, and Asians unions and political parties in theWest adopted constituted roughly 13 percent ofall immigrants anti-Chinese platforms. In 1862anti-Coolie during the dccadc. During the1970s Asian im- clubs formed in San Franciscoand spread to migration increased to roughly 1.6millir, con- other cities inCalifornia:18 In 1870 a large-scale stituting 36 percent of allimmigration.5Asian "anti-Oriental" mass meeting tookplace in San immigration continued apace intothe 1980s. Francisco," and several California unions, in- The second wave of Asianimmigration was cluding the Knights of St. Crispin,"organized on

40 Ibid., p. 11. McCarran-Walter Act counted persons of half-Asiandescent against the quotas for 41 Ibid., p. 11. Another provision of the their Asian country of origin. 42 Pub. L. No. 89-236, 79 Stat. 911 (1965). Immigration Policy: 1798-1965 (Philadelphia:University of Pennsylva- 43 E. P. 1 lutchinson, Legislative !Unary of American nia Press, 1981) pp. 369-78. 44 Ibid., pp. 308-09, 377-78. Economic Status of Americans of Asian Desccu:An Exploratory Investigation 45 U.S. Commission on Civil Rights, Ihe Americans of Asian De- (Clearinghouse Publication 95, October 1988), p. 19(hereafter cited as The Economic Status of

scent). Chinese immigrants were heavily male, theChinese American population fell 46 As noted above, because the 19Ih century Chinese Americans are de- precipitously after the Chinese Exclusion Act of1882, and only a small proportion of today's scendants of the early Chinese immigrants. 47 The Tarnished Golden Door, p. 7. 48 jtsjqnilpr rica, p. 36.

1 5 an anti-Chinese basis."5° By 1871 both thc Dem- and Rock Springs, Wyoming, andthe cities of ocratic and Republican parties in California had Seattle and Tacoma chased theirChinese resi- adopted platforms opposing Chinese immigra- dents out of town. In 1887, 31 Chineseminers tion,51 andboth national parties had anti-Chi- were "robbed, murdered, and mutilated" in the nese resolutions in their platforms in theyears Snake River (Oregon) Massacre.56 1876, 1880, 1888, and 1904.52 Aftet the Chinese Exclusirn Act of1882, Anti-Chinese sentimentswere propagated by anti-Asian sentimentswere dire, against the the Westen media, joined occasionally by the Japanese, and later, at the Filipinos. In theearly eastern press. For example, the New York Times 1900s, many white workers beganto resent com- warned: petition from Japanese workers, and in1905 del- egates from more than 67 labor organizations We have four millions of &gradednegroes in the formed the Asiatic Exclusion Leaguein San South. We have political passion and religiouspreju- Francisco.57 TheAsiaticExclusion League dice everywhere. The strainupon the constitution is spoke of the "yellow peril" and the"Asiatic about as great as it can bear. And if, in addition,to all horde" the adverse elements we threateningtoinvadetheUnited now have, there were to be a States.58 Like the flood-tide of Chinese populationa population be- Chinese before them, the Jap- fouled with all the social vices, withno knowledge or anese and the Filipinos were shunned. Anti-Fili- appreciation of free institutionsor mnstitutional lib- pino race riots broke out in 1928and 1930 in erty, with heathenish souls and heathenish propensi- Washington and California. In California, theri- ties, whose character, and habits, and modesof otingthattook placeinWatsonville was thought are firmly fixed by the consolidatinginfluence prompted by press coverage of thearrest of a of ages upon ageswe should be premed to bid Filipino man for walking witha white girl to farewell to republicanism and democracy. whom he was engaged.59 The anti-Chinesesentimentsof western workers erupted into violence in the1870s. In State and. Local Anti-Asian Laws October 1871 roughly 20 Chinesewere massa- Although United States immigrants ofmany cred in Lo,.. Angeles bya white mob who also ethnic groups (for instance, Irish, Jews,and Ital- ians) have experienced bigotry and burned and looted their homes and stores.54In violence akin to that experienced by Asian Americans, Asian 1877asimilarincidentoccurredinSan Americans share with American blacks Francisco's Chinatown, and in Chico,California, the dis- five Chinese farmerswere murdered.55 The vio- tinction of having been thetargets of wide- lence spread to other WesternStates in the spread legal discrimination that hinderedtheir 1880s. There were anti-Chinese riots inDenver

49 "Run Out and Ripped Off," p. 5. 50 Asian America,p. 38. 51 Ibid.. p. 37. 52 Ibid., p. 45. 53 "Growth of the United States Through EmigrationThe Chinese,"New York Times,Sept. 3, 1865, p. 4. 54 "Run Out and Ripped Off," p. 5. 55 Attorney General's Report, p. 34. 56 Asian America,pp. 60-64. 57 "Run Out and Ripped Off," p. 7. 58 Attorney General's Report, pp. 34-35. 59 Strangers Rom a Different Shore,pp. 326-30.

1 6 6 ability to participate fullyinthe American Asians and whites were widespread in other dream. States as well." The strong anti-Asian sentiments in thc West- Whereas the earlier Californiaanti-Asian ern States led to the adoption of manydiscrimi- laws were targeted at '.he Chinese, the 1913 natory laws at the State and local levels, similar Alien Land Law was targeted at Japanese farm- to those aimed at blacks in the. South. Many of ers. This law prohibited persons ineligible to be- these laws took advantage of the discriminatory come citizens from purchasing land in the State aspect of naturalization laws by restricting the of California and limited lease terms to 3 years rights of persons "ineligible to become citizens," or less. Many Japanese got aroundthis law by i.e., Asians." In addition, segregation in public leasing or purchasing land in the name of their facilities, including schools, was quite common American-born children.° To close the loop- until after the Second World War. holes in the 1913 law, a stricter law was passed in As early as the 1850s laws discriminatory 1920 preventing Japanese immigrants from actagainst the Chinese were enacted by the State of ing as guardians for minors in matters pertaining California. In 1852 California imposed a "for- to land ownership. and also prohibiting them eign miner's tax" of $3 for any miner who was from leasing land."' Other States also had sim- not an intendingcitizen.61 In 1855 California im- ilar laws preventing Asian immigrants from own- posed a tax on ships landing at California ports ing land.9 amounting to $50 per disembarking passenger Local laws wcrc also discriminatory. For ex- ineligible to become a citizen, and in 1858 Cali- ample, the city and county of San Francisco forniatemporarilyprohibited Chinese from passed ordinancas that we-e apparently race landing in Californiaaltogether.62 In 1862 Cali- neutral but that had adverse impacts on Chinese fornia passed a head tax of $2.50 per month on residents. As a case in point, in 1873 the city of most Chinese living in thcState.63 San Francisco passed the Laundry Ordinance, In 1880 California enacted a miscegenation which imposed a tax on laundries of $1.25 on a law prohibiting whites f6rom marrying "negro, laundry employing one horse-drawn vehicle, $4 mulatto, or Mongolian."After a Filipino suc- on a launiry employing twohorse-drawn vehi- cessfully argued his right to marry a white cles, zryl $15 on laundries employing more than woman in court on the basis thatFilipinos are two horse-drawn vehicles. The ordinancealso Malay and not Mongolian, the legislature ex- imposed a $15 tax on a laundry that hp, tended the marriage prohibitions to Filipinos in horse-drawn vehiclesatall." This law 1933.65 Laws prohibiting intermarriage between clearly targeted at the Ch lese, since virtuahy no Chinese laundries opt,rah.horse-drawn vehi-

60 See above discussion of naturalization laws that made Asians ineligible to becomecitivens. tax of $3 in 61 "Run Out and Ripped Off," p. 4. Price levels have increased by a factor of 10 since the mid-19th century, so a 1850 would he equivalent to a tax today of $30. 62 Ibid. pp. 4-5. 63 Strangers froma Different Slwre, p. 82. 64 Ibid., pp. 101-02. 65 p. 330. Ibid. 67 Asian America, pp. 139-44. Ibid., pp. 145-47. 69 For example, the State of Washington also had such a law. Ibid., pp. 146-47. 70 A $15 tax is the equivalent of roughly $150 in today's dollars.

7 1 7 cies!' Ina similar vein, San Francisco passed the of San Francisco's Laundry Ordinance, passed in Cubic Air Ordinance,requiringthatliving 1880, which governed ihe sites and manner of spaces have at least 500 cubic feet of space per laundry operations. Their fight led to the United person and this law was only enforced in China- States Supreme Court landmark decision, Yick town.71 Wo v. Hopkins.76 In the early 1880s there were Asians often fought both State and local laws about 320 laundries in San Francisco. Of these, in the courts. Sometimes they were successful, about 240 were owned and operated by Chinese but the courts were also discriminatory. For ex- residents, and about 310 were constructed of ample, in 1854 the California Supreme Court wood, as wer e. about nine-tenths of the houses decided in the case of People v. Ha ll73 that Chi- in the city of San Francisco at that time. The nese could not testify against whites in court. Laundry Ordinance prohibited wood construc- Hall, a white man, had been convicted of mur- tion for laundries, since wood construction pur- dering a Chinese man on the basis of testimony portedly constituted a fire and public safety by one white and three Chinese witnesses. The hazard. In 1885, upon expiration of his business supreme court overthrew his conviction, ruling license, Mr. Yick Wo, who had operated a laun- that the Chinese witnesses should not have testi- dry at the same site for 20 years, applied for a re- fied based on a State law that did not allow newal of his business license but was turned blacks, mulattos, or Indians to testify in favor of down because his building was of wood con- or against whites incourt.74 The wording of the struction. Subsequently, he was found guilty of decision illustrates the degree of racial bigotry violatingtheLaundry Ordinance andim- against Asians even among those in the judi- prisoned. Two hundred other Chinese laundries ciary: were also denied license renewals, although all had operated at the same sites for over 20 years. Indian as commonly uscd refers only to the North In contrast, all license renewal applications by Amerkan Indian, yet in the days of Columbus all non-Chinese laundries (even those with wooden shores washed by Chinese waters were called the In- buildings) were approved. In 1886 the United dies. In the second place the word "white" necessarily States Supreme Court ruled in favor of plaintiff excludes all other races than Caucasian; and in the Yick Wo in Yick Wo v. Hopkins, reasoning that: third place, even if this were not so, I would decide againstAhe testimony of Chinese on grounds of public The effect of [such selective enforcement]...would policy. seem to be necessarily to close up the many Chinese Despite the discriminatory tendencies of the laundries now existing, or compel their owners to pull down their present buildings and reconstruct of brick courts, Chinese residents of San Francisco suc- or stone. ..IN would be little short of absolute con- cessfully fought the discriminatory enforcement fiscation of the large amount of property....If this

71 "Run Out and Ripped Off," p. 5. 72 Asian America, p. 39. 73 4 Cal. 309 (1854). 74 "Run Out and Ripped Off," p. 4. 75 Asian America, p. 54. 76 118 U.S. 35(, (1886). The case was a landmark decision for several reasons: 1) it brought heightened scrutiny to cases involving improperly motivated classifications; 2) it is a clear example of how discriminatory impact alone can be used to unmask Mvidious classifications; and 3) it extended Federal equal protection guarantees under the 14th amendment beyond United States citizens to temporary or permanent residents. (Philip T. Nash, "Asian Americans and the Supreme Court: Employment and Education Issues," 1991, pp. 6-7.)

8 of their property sion vigorously, and as a result,President Theo- would not be depriving such parties back without due process of law, it would bedifficuit to say dorc Roosevelt persuaded San Francisco to students. It was what would effect that prohibitedresult. The neces- down with respect to Japanese sary tendency, if notthe specific purpose, of [such se- this incident that heightenedJapanese aware- lective enforcement] is to drive out ofbusiness all the ness of anti-Japanesesentiments in the U.S. and numerous small laundries,especially those owned by prompted the negotiations thatultimately led to Chinese, and givf7 monopoly of thebusiness to the the Gentleman's Agreement of1907.80 large institutions.

The Court concluded that: Internment of Japanese Americans During WorldWar II incident in this No reason. . xxists except hostility tothe race and na- Perhaps the most disgraceful against Asian tionality to which the petitionersbelong, and which in country's history of discrimination the eye of the law is not justified.Thc discrimination Americans is the wartime evacuationand intern- is, therefore, illegal, and thepublic administration ment of JapaneseAmericans during the 1940s. which enforces it is a denial of theequal protection of On February 19, 1942, 212months aftcr Japan the laws and violation of theFourteenth Amendment attacked Pearl Harbor,President Roosevelt of the Constitution. Theimprisonment of the petition- signed Executive Order 9066authorizing the ersis, refore, illegal, andthey must be dis- Army to evacuate any personsfrom sensitive charged. areas for reasonsof nationaldefense,81 and on March 2, 1942, GeneralDeWitt announced the The public school systemsof California and des.ent from generally segregated. evacuation of persons of Japanese other Western States were Occan.8 Initially, Asians, blacks, and an areabordering the Pacific In 1860 California barred merely relocated to attendingitspublic evacuated persons were Native Americans from other areas of the country, butthe decision was schools. In 1884 the CaliforniaSupreme Court unconstitutional. As a made quickly to internthem in relocation held that the 1860 law was 83 the Army State set up a system camps.In evacuating the Japanese, result of this decision, the notice, thus forc- Chinese) schools starting generally gave less than 7 days of "oriental" (usually, ing families to sell theirproperties and posses- in 1885. In a 1902 decision,the U.S. Supreme sions at a fraction of their truevalue.84 Persons Court upheld the constitutionalityof separate were allowed tobring to the camps only what but equal schools for Asianstudents." they could carry. Eventually over100,000 Japan- In 1906 the city of SanFrancisco decided that could not attend ese Americans weremoved to internment camps Japanese and Korean students remained there for white schools and instead had toattend Chinese in the Midwest, and many the duration of the war. Tisiey wereofficially re- schools, setting off aninternational incident. leased on January 2,1945.8' The Japanese Governmentprotested the deci-

77 118 U.S. at 362. 78 Id., at 374. Americans and Education," Civil RightsDigest, vol. 9, no. 1 (Fall 1976), p. 45. 79 Connie Young Yu, "The Others: Asian 80 Strangers From a Distant Shore, pp. 201-03. 81 "Run Out and Ripped Off." p. 8. 82 Asian America, p. 214. Internment of Civilians, Personal JusticeDenied (Washington, DC: Govern- 83 Commission on Wartime Relocation and ment Printing Office, 1982), pp.101-07 (hereafter cited as Personal JusticeDenied). 84 Ibid., p. 217, and Attorney General's Report, p.38.

. 1 9 Executive Order 9066 andGeneral DeWitt's It is this inscrutability evacuation orderwere made despite the fact not general to othergroups, that makes thc apgicationof the order immediate that government intelligencereports did not upon the Japanese. support the notion that resident Japaneseposed a threat to national security.86 No similarevacu- "Once a Jap alwaysa Jap!" hc [Congressman Rankin] ation was ordered forpersons of German or Ital- shouted. "You can'tany more regenerate a Jap than iandescent. The Commissionon Wartime you can reverse the laws of nature. I'mfor taking RelocationandInternmentofCivilians every Jiwanese and putting him ina concentration (CWRIC), established byCongress in 1980 to camp." investigate the wartimeinternment, concluded that: Executive Order 9066was upheld by the Su- preme Court in two famous wartimecases, Korem v. United States" and Hirabayashi Thc promulgation of ExecutiveOrder 9066 was not v. United States,91 which upheld justified by military necessity, andthc decisions which the criminalcon- victions of Korematsu and followed from itdetention, ending detentionand Hirabayashi for chal- ending exclusionwere not driven by analysis of mili- lenging the evacuation andinternment orders. It tary conditions. The bro4d historicalcauses which was not until thc mid-1980s that theirconvic- shaped these decisionswere race prejudice, war hys- tions were overturned whenit was discovered teria and a failure of politicalleadership. Widespread that the U.S. Governmenthad "deliberately ignorancc of Japanese Amcricanscontributed to a omitted relevant informationand provided mis- policy conceived in haste andexecuted in an atmo- leading information' to theSuprem9s Court on Gplicre of fear and angerat Japan. A grave injustice the crucial 'military necessity' issue." was done to American citizens and resident aliens of Redress for the JapaneseAmericans interned Japanese ancestry who, without individualreview or during the war was slow in coming. any probative evidence against thcm, In 1948 Con- were excluded, gress passed thc Japanese American Evacuation removed and getained by theUnited States during World War II.8 Claims Act, which appropriated$38 million to reimburse Japanese Americanswho had been Contemporaneousnewspaper coverage of the interned for thcir losses. Thisamounted to only internment process reflected its racistcharacter. 10 cents on the dollar of actual losses.93In 1976 For example, consider the followingquotes: President Ford issued PresidentialProclamation 4417, which rescinded ExecutiveOrder 9066 and apologized to those who hadbeen interned."

85 "Run Out and Ripped Off," p. 8. 86 Personal Justice Denied,pp. 51-60. 87 Ibid., p. 18. 88 San Francisco Chronicle,editorial, Feb, 23. 1942, as quoted in Gina Petonito, "Racial Discourse, ClaimsMaking and Japanese Internment During World War 11" (paper presented at the 86th Annual Meetingof the American Sociological Association, Cincinnati, OH, Aug. 23-27, 1991),p. 11. 89 SanFrancisco Chronick, Feb. 19, 1942, p. 9, as cited in Petonito,"Racial Discourse," p. 11. 90 323 U.S. 214 (1944). 91 320 U.S. 81 (1943). 92 Peter Irons. "Justice Long Overdue,"New Perspectives, vol. 18, no. 1 (Winter/Spring 1986),p. 6, quoting Judge Patd's decision vacating Koremalsu's conviction. 93 "Run Out and Ripped Off," p. 8, 94 Asian America,p. 331.

10 20 Finally, in 1988, prompted by the conclusions of foregoing pages needs to be understood in the the CWRIC report, Congress passed the Civil larger context of America's nativist tradition. Liberties Act of 1988,95 authorizing compensa- Throughout U.S. history, Americans have fre- tion of $20,000 for living survivors of the intern- quently exhibited a general hostility towards ment camps. This9omoney has only just begun to groups whose cultures or traditions werediffer- be paid, however. ent from those of the mainstream.According to Nearly 50 years later, the issues surrounding historians, those from foreign lands and those Japanese internment remain emotional. In 1989 subscribing to nonmainstream religions have the State of California legislature passed a reso- been targets of suspicion, distrust, repulsion, and lution "requiring schools to teach that the in- sometimes even hatred throughout American ternment stemmed from racism,hysteria over history.99 This nativism predated the arrival of the war and No- decisions by the country's po- Asians in America and was directed towards litical leaders."In response to the passage, As- Catholics and immigrants from European coun- semblyman Gil Ferguson introduced a new tries as well. One historian noted that "during resolution in 1990 that would have required the colonial times, suspicion of those who were schools to teach that tIrre was some justifica- 'foreigners' either through religion or national tion for the internment.8 Although the measure background, or both, was notuncommon."100 was overwhelminglydefeated, its introduction During the early years of our nation, nativistic demonstrates that the issue is not yet resolved in sentiments were prevalent among the public, the minds of all Americans. and national leaders often shared theseviews. Such historical figures as George Washington,i°1 Benjamin Franklin, Thomas Jefferson, and John Anti-Asian Sentiments and Quincy Adams102 all had reservations about and America's Nativist Tradition were at best ambivalent towardimmigrants and The brief summary of America's historyof anti-Asian policies and incidents offered in the

95 28 C.F.R. 74. 96 In October 1990 the first Japanese internment camp survivorsthosewho were the oldestreceived their reparation checks. (Michael Isikolt "Delayed Reparations and an Apology:Japanese Americans Held During War (iet Hrst Checks," Washington Post, Oct. 10, 1990.) The second round of checksbegan in October, 1991. (Japanese American Na- tional Library, Balkan. vol. 2, no. 4 (Summer 1991), p. 1.) 97 Steven A. Capps, "Assembly Kills 'Justification' for Internment," SanFrancisco Examiner, Aug. 29, 1990. 98 Ibid. 99 For panoramic coverage. see Ray Allen Billington, Me ProtestantCrusade, 1800-1860.. A Study of the Origins of Ameri- can Nativism (New York; Macmillan. 1938);and John I ligham, Strangers in the Land: Patterns of AmericanNativism, 1860-1925 (New lirunswick, NJ: Rutgers University Press, 1955). 100 Milton M. Gordon, Assimilation in Ar..:erican Life: The Role of Race,Religion, and National Origins (New York: Oxford University Press, 1964), p. 89. 101 In 1794 George Washington wrote: "My opinion, with respect to immigration, is that except for usefulmechanics and some particular descriptions of men or professions. there is no need of encouragement, while the poky ur advantage ofits taking place in a body (I mean the settling of them in a body) may be much questioned; for, by so doing,they retain the language, habits and principles (good or bad) which they bring with them." Cited in Gordon, Assimilationin American Life, p. 90; see n. 7, p. 90, for the original source of the quotation. 102 John Quincy Adams. then Secretary of State, wrote in 1818: "If they [immigrants to America] cannot accommodate themselves tothe character.. . of this country... , the Atlantic is

11 the effects of a free immigration policy. Forex- Hatred of Catholics and foreigners had been steadily ample, in 1753 Benjamin Franklin wrote: growing in the United States formore than two centuries before it took political form with the Native [He] had misgivings about the Germans because of American outburst of tila 1840's and the Know- their clannishness, their little knowledge of English, Nothingism of the 1850's. the German press, and the increasing need of interpreters....1 suppose in a few years they will also be Incidents of an anti-Catholic, anti-European- necessary in the Assembly, to tieoli one-half of our leg- radical, anti-Semitic, and anti-foreignernature islators what the Ciller half say. continued into the current eentuty andare well documented.107 In the 1780s Thomas Jefferson commented Viewed from this perspective, it should beap- that: parent that Asians were not the only victims of American nativism.108 America's history has They [the immigrants] will bring with them the princi- been one of unceasing struggles and eventual ples of the governments they leave, imbibed in their victories in ridding itself of various exclusionary, early youth; or, if able to throw them off, it will be in nativistic barriers. The Asian American civil exchange for an unbounded licentiousness, passing,as rights struggle is only one part ofa larger strug- is usual, from one extreme to another. It would bea miracle were they to stop precisely at the point of gle over the past 50 years toovercome all forms temperate liberty. These principles, with their lan- of prejudice (e.g., anti-Catholic, anti-Semitic, guage, they will transmit to their children. In propor- anti-Euroethnic, anti-black, and anti-Hispanic, tion to their numbers, they will share withus the as well as anti-Asian) and barriers to equal op- legislation. They will infuse into it their spirit,warp portunity. and bias its directions, and riecader ita heterogeneous, This section has offered a sketch of what im- incoherent, distracted mass. migrants from Asia and their descendants hadto endure in becoming part of contemporary In reviewing the early- and mid-19th century America. The restrictive immigration policy and sentiments about immigrants, one historian ob- discriminatory laws and regulations of the past served: effectively barred most Asian Americans from enjoying the full benefits of American citizen- Many Americans believed that the influx of aliens ship, isolated them from mainstream American threatened their established social structure, endan- society, and prevented many from receiving the gered the nation's economic welfare, spelled doom of the existing governmental system. love and support that comes from family life. Their complete isolation from their families and from American society and their realization that /1111 always open to them to return to the land of their nativity and their fathers....They must cast off the European skin.. .They must be sure that whatever thcir own feelingsmay be, those of their children will :ling to the prejudices of this country." Cited in ibid., p. 94. 103 Cited in ibid., p. 89; see n. 6, p. 89, for the originalsource of this quotation. 104 Cited in ibid., pp. 90-91; see footnote 8, p. 91, for the originalsource of this quotation. 105 Billington,Protestant Crusade,p. 322. 106 Ibid., p. 1. 107 See John Iligham,Strangers in the Land,and also his more recent work,Send These To Me: Jews and Other Immigranu in Urban America(New York: Atheneum, 1975). 108 One historian argues, however, that "no variety of anti-Europeansentiment has ever approached the violent extremes to which anti-Chinese agitation went in the 1870s and1880s." Higham,Strangers in the Lan4p. 25.

12 22 they had only limited opportunities in America ing from issues facing those who are notprofi- may have led many earlyAsian immigrants to cient in English, such as inadequatebilingual turn to socially impermissibleforms of behavior, and English as a Second Language programsin such as drug use and frequentingprostitutes, our public schools, toissues affecting highly edu- and persons with anti-Asiansentiments may cated professionals, such as theexistence of an have in turn seized upon such behavior as a invisible "glass ceiling" that limitsopportunities weapon against AsianAmericans in their at- for Asian Americans at the topof their profes- tempts to gain the right tofull participation in sions. American society. Itis a testament to Asian Americans and their culture that, inface of the Demography of Asian Americans extreme hostility and restrictions onopportunity With a population of roughly 7.3million, confronting them, Asian Americanspersisted in Asian Americans today make upslightly less this country, eventually gaining theright of citi- than 3 percent of the UnitedStates population. zenship, and that they made incalculablyimport- Table 1.1 shows that overthe past decade, their ant contributionstothe American society, population share has risen dramatically,from 1.5 culture, economy, and democratictradition. percent to 2.9 percentof the tall population. Although the United States hasmade much The Asian American population morethan dou- progress indemolishing many of the barriers bled, growing by 108 percent,twice as fast as the confronting Asian Americans in the past,Asian Hispanic population, which grewby 53 percent, Americans continue to confrontdiscriminatory 8 times as fast as the blackpopulation, which treatment and barriers toequal opportunity grew by 13 percent,and 15 times as fast as the today. The remainder of the reporthighlights white population, which grewby 6 percent. The the need for continuedvigilance and commit- Asian American populationis expected to con- ment to tearing downthe remaining barriers to tinue to grow rapidly. equal opportunity for AsianAmericans and to The principal reason forthe growth in the rooting out all anti-Asian discrimination. Asian American population isthe post-1965 influx of immigrants and refugeesfrom Asia and Asian Americans in the the PacificIslands.m9 After 40 years of being vir- 1990s: A Demographicand tually banned from the UnitedStates by im- Socioeconomic Portrait migration laws, people from Asiabegan to come here in greater numbers startingin 1965, when The demographic and socioeconomicportrait the United States abandonedthe "national ori- of Asian Americans containedin this section re- gins" system of immigration.The Vietnam War veals that today's Asian Americancommunity is and its aftermath caused.Asian immigration to extremely heterogeneouscomprisedof many accelerate starting in themid-1970s. In every whose ethnicities, new immigrants and persons year since 1974(except for 1977), imm;grants families have been here for generations,and from Asia made up over 40 percentof all im- persons of allsocioeconomic statuses. This di- migrants to this country.110 Not only do Asian versity means that the civil rights issuesfacing immigrants make up a large percentageof all diverse, rang- Asian Americans are themselves new immigrants,but new Asian immigrants

been responsible for roughly two-thirds of thepopulation growth of 109 During the decade of the 1980s immigration has Race, andlAspanic Ori- Asian Americans. See U.S. Bureau of the Census,United States Population Estimates, by Age, Sex, gin: 1980 to 1988 Current Population Reports, SeriesP-25, No. 1045 (January 1990), p. 82, table 7. 110 Ibid., p. 27, table X.

13 make up a large percentage of the total Asian Filipinos, both had percentars offoreign born American population. Asian immigrants arriving of around 64 percent in 1980.13 in 1980, for instance, constituted 6.4 percent of The large number ofrecent immigrants the total Asian American population that year. among Asian Americans translates intoa large The percentage of the Asian Americanpopula- percentage of Asian Americans with limited En- tion who were new immigrantsdeclined grad- glish proficiency. As of 1980, 15percent of ually over the 1980s, but was still as high as 2.8 Asian Americans did not speak English well,or percent in 1988.111 dick not speak it at all. Consistent withthe im- Because of these high recentrates of im- mtration patterns discussed above, theextent migration, a large proportion of Asian Ameri- of limited English proficiencywas least preva- cans are foreign born. Table 1.2 shows thatas of lent among Japanese Americans (9 percent)and 1980, 62.1 percent of Asian Americanswere for- among Asians whosc countries of origin use En- eign born, compared with 6.2 percent ofme glish (indians and Filipinos) andmost common general U.S. population. Because of thehigh among Southeast Asian groups (60 percentor rates of immigration since 1980, the currentpro- more).114 portion of Asian Americans whoare foreign Asian Americans arc heavily concentrated in born is likely to be substantially higher.112On certain geographic areas. Coming to the United the other hand, because of the restrictiveim- States across the Pacific Ocean, most Asian migration laws of the past, Asian American groups initially settled in the Western United adults who are native hornare likely to belong States. Although only 19 percent of the general to families that have been here for severalgen- U.S. population lived in the West in 1980,56 erations. percent of the Asian American population did. Although the overall proportion of foreign Three non-Western Statcs also have sizable born among Asian Americans is high, thispro- Asian American populations: New York, portion differs substantiallyacross subgroups. Illinois, and Texas."5 The percentage living in Table 1.2 shows that in 1980over 90 percent of the West variesconsiderablyacross Asian Southeast Asians (Vietnamese, Laotians, Cam- groups, however. Japanese Americans, 80 per- bodians, and Hmong) but only 28percent of cent of whom lived in the West in 1980,are the Japanese Americans were born abroad. Recent most concentratedinthe Western United Japanese immigration has been slight and largely States. Around half of Chinese Americansand temporary, and most Japanese Americansare less than half of Americans from Southeast Asia descendants of Japanese immigrants whocame lived in Western States in 1980. Asian Indians here before 1924. The two othergroups that and Pakistanis were the least concentratedin came to this country in large numbers before the West, with 19 and 24 rrcent, respectively, Asian immigration was restricted, Chineseand living in the West in 1980.16

111 Ibid., p. 83, table 7. 112 As of November 1991, the 1990census detail had not been released. 113 The percentage toreign born is higher for both oftnesc groups than for the Japanese for two reasons. First, there has been a substantial post-1965 immigration from both thc Philippines and China. Second, when Asian immigrationwas cut off by restrictive immigration laws in the 1920s, thc majo,ity of Chinese and Filipinos in thiscountry were men, and thus carly Chinese and Fihpino immigrants had fewer children than the Japanese, among whomwomen numbered almost as many as men. 114 See table 1.2. 115 U.S. Bureau or the Census. We,the Asian and Pacific Islander Americans,p. 3, table 1.

P 4 TABLE 1.1 U.S. Population by Race and Ethnicity:1990 and 1980

1990 1980 Population Percentage Prpulation eercentage Population growth (thousands) of total (thousands) of total rate: 1980-1990 White 199,686 80.3 188,372 83.1 6.0 Black 29,986 12.1 26,495 11.7 13.2 Hispanic 22,354 9.0 14,609 6.4 53.0 Asian & Pacific Islander 7,274 2.9 3,500 1.5 107.8 Native American 1,959 0.8 1,420 0.6 37,9

Source: U.S. Bureau of the Census, Racial Statistics Division.

.111111W

TABLE 1.2 Characteristics of Asian Americans by Country of Origin

Percentage of Percentage who Asian American Percentage do not speak Percentage who population ' foreign born b English well b live in the West b

Chinese 22.6 63.3 23 52.7 Filipino 19.3 6 68.8 Japanese 11.6 28.4 9 80.3 Asian Indian 11.2 70.4 5 19.2 Korean 11.0 81.9 24 42.9 Vietnamese 8.4 90.5 38 46.2 Laotian 2.0 93.7 69 45.7 Thai 1.3 82.1 12 43.0 Cambodian 2.0 93.9 59 55.6 Hmong 1.2 90.5 63 37.4 Pakistani 85.1 10 23.5 Indonesian 83.4 6 56.2

AllAsian Arnaricans 100.0 62.1 15 56.4

Source: Barbara Vobejda, "Asians, Hispanics Giving Nation More Diversity," Washington Post, June 12, 1991. b Source: U.S. Bureau of thc Census, We, the Asian and Pacific Islander Americans,p. 11, table 7, and U.S. Genoral Accounting Office, Asian Americans: A Status Report, p. 44, table 6.1.

15 Socioeconomic Status of Asian particular, the newer immigrant groups from Americans Southeast Asia have sharply lower socioeco- Summary statistics show that Asian Ameri- nomic status than other Asian Americans. Table 1.3 shows that, whereas 34 percent of all Asian cans as a group are more educated, more likely Americans were college graduates in 1980, the to be in high-paying mcupations, less likely to bc proportion of college graduates among South- unemployed, and have higher family incomes east Asians ranged from 13 percent for the than the general population. It may be tempting #r) conclude from these statistics that Asian Vietnamese, to 3 percent for the Hmong. Simi- Americans do not face discrimination or en- larly, whereas Asian Americans as a group had a median family income almost 20 percent higher counter barriers to equal opportunity, that thcy than that of thc general population,116 South- have fully overcome them, or that they have not east Asian family incomes ranged from 35 per- suffered the adverse consequences of racial prej- cent lower than the national average for the udice. However, such a conclusion would be to- Vietnamese to 74 percent lower for the Hmong. tally unwarranted and misleading. For one thing, Southeast Asian unemployment rates and pov- focusing on the average experience of Asian erty ratcs were also substantially higher than Americans masks large socioeconomic differ- those of Asian Americans as a group. ences among Asian American subgroups, as well There is also considerable variation in socio- as differenceswithingroups.Many Asian economic status even among thc more estab- Americans have not achieved the high socioeco- lished Asian American groups. Even though nomic status enjoyed by the fictional "average" Chinese, Asian Indians, and Korcans all had Asian American. More important, socioeco- higher median family incomes than the general nomic status is at best a poor indicator of the population, these groups also had poverty rates discrimination experienced by Asian Americam as high or higher than that of the general popu- or any other group. Even those Asians who ap- lation, indicating that noltuall members of these pear to be doing well by "Outcome" measures of groups are doing as well. socioeconomic status may experience barriers to Asian Americans' high average levels of fam- equal opportunity that keep them from achiev- ily income, educational attainment, and occupa- ing thc full measure of their potential. Further- tional prestige do not necessarily mean that more, they may have to bear significant costs along the road to socioeconomic success, and Asian Americans do not face significant barriers io equal economic opportunity or othet forms of their experiences with discrimination may leave scars that are not discernible in statistics that discrimination and prejudice. Barricrs to equal opportunity may force Asian Amer'cans to ex- measure socioeconomic status, pend extra efforts as they strive to reach socio- The Asian American population is extremely economic success, and they :nay retard or heterogeneous in terms of socioeconomic status. ultimately prevent Asian Americans from reach- Many Asian Americans do not share in the rela- ing thc full measure of their potential. Discrimi- tively favorable socioeconomic outcomes attributed tothe "average" Asian American. In nation and prejudice may also exact a toll of pain

1 lo It should be notcd that the census does not distinguish between Asian Americansi.e.. Asians who are either citizens or intending citizens or who plan to remain in the United States for their entire livesand Asian nationals temporanly living in the United States. To the extent that the income of Asian nationals (often highly paid Japanese mecum/es) are reflected in the summary statistics of Asian Americans incomes, the average income of Asian Americans may bc overstated. 117 See table 1.3.

16 26 TABLE 1.3 Characteristics of Asian Americansby Country of Origin: 1980

Relative Percent Percent median college managers or Unemp loy- fan* Poverty graduates professionalsb ment rate kicome d rate 1.13 10.5 Chinese 36.6 32.6 3.6 1.19 6.2 Filipino 37.0 25.1 4.8 3.0 1.37 4.2 Japanese 26.4 28.5 1.25 10.6 Asian Indian, 51.9 48.5 5.8 1.03 12.5 Korean 33.7 24.9 5.7 8.2 .65 33.5 Vietnamese 12.9 13.4 .26 67.2 Laotian 5.6 7.6 15.3 .97 13.4 Thai 32.3 23.4 5.5 .45 46.9 Cambodian 7.7 10.8 10.6 .26 65.5 Hmong 2.9 9.4 20.0 1.08 10.5 Pakistani 58.4 45.2 5.7 1.06 15.2 Indonesian 33.3 24.2 6.1 1.19 10.3 All Asian Americans 34.3 29.7 4.6 .96 14.3 Hawaiian 9.6 15.9 7.0 16.1 All Pacific Islander Americans 9.3 15.6 7.3 .90 9.6 All Americans 16.2 22.7 6.5 1.00

Source: U.S. Bureau of the Census, We, the Asianand Pacific Islancler Americans, pp. 12-13, Table7. ' Percentage of all persons age 25 and over who havecompleted 4 or more years of college. specialty. Percentage of employed persons age 16 and overwhose occupation is in a managerial or professional Unemployment rate for parsons age 16 and over. Median family income as a fraction of the medianfamily Income for the entire U.S. population. Percentage of families with income below the povertylevel.

97 17 and suffering that cannot be c ompensated for by American groups,per capita income is less than mere socioeconomic success. that of U.S.-born non-Hispanic whites.120 There are indications that high levels offam- 4) When differences in educationand other ily income may bc an artifact created by Asian skills are taken into account along withregion of Americans' concentration in highcost of living residence, Asian Americanmen earn about the areas, the larger average number of workers in same as or less than white men.121 many Asian American families, or the high edu- Furthermore, as will be discussed ingreater cation levels of many Asian Americans.Further- detailinsubsequent chapters,even Asian more, if Asian Americans have larger than Americans with comparatively high levelsof average families, high levels of total family in- family income and occupational prestigemay come may not necessarily translate into high lev- stillsuffer from discrimination that impedes els of per capita income. The Commission's their success.122 For instance, the Commission recent study on the economic status of Asian study found that highly educated Asian Ameri- Americans showed that it is importantto look cans earned less relative to their white counter- beyond total family income when examiningthe parts than Asian Americans with less education, socioeconomic status of populationgroups. For,suggesting that Asian Americansmay have diffi- example, the study found that: culty translating their greater educational attain- 1) Taking the different regional distributions ment into increased income.123 Moreover, Asian of Asian Americans and non-Hispanic whites Americans were much less likely to be inmana- into account lowers the average family incomes gerialjobsthancomparablenon-Hispanic of most Asian Americangroups relative to thc whites, suggesting the existence ofa "glass ceil- average family income of non-Hispanic whites; ing" that blocks Asian /kmericans from achieving this effectis greater for foreign-born Asian managerial positions.'4Finally, racial prejudice Americans than for those born in the United and resulting bigotry and violcnce knowno so- States.118 cioeconomic barriers:Asian Americans with

2) The percentage of family income coming high socioeconomic status are justas likelyEs from the earnings of family members other than those with low socioeconomic status to be tar- the husband is larger tor Asian American fami- gets of hatred. lies than for non-Hispanic white families.119 3) Although most foreign-born A1,ian Ameri- Discrimination and Barriers can groups have total family incomes that are as to Equal Opportunity for high or higher than those of U.S.-bornnon- Hispanic whites, the reverse is true forper ca- Asian Americans: Some pita income: for most foreign-born Asian Contributory Factors Knowledge of the history of Asian Americans in the United States and of the nature and diver-

118 The EconomicStatus of Americam of Asian Descent,p, 31. 119 Ibid., pp. 35-36. 120 Ibid., p. 42. 121 Ibid., pp. 68-o9 and 78-79,

122 For instance, chap. 5 looks at the possibility that admissionsquotas in highly selective colleges and universities might limit Asian Americans educational opportunities, and chap.6 discusses the "glass ceiling" that appears to place limitson the career advancement of Asian Americans. 123 MeEconomic Status of Americans of Asian Descent,pp. 70-71. 124 Ibid., pp, 72-76,

P8 sity of today's Asian American population are Asian Americans, AsianAmericansare essential to a full understanding of the civil hardworking, intelligent, and successful.125 As rights problems confronting Asian Americans in complimentary as it might sound, this stereotype the 1990s. It is equally important to have an ap- has damaging consequences. First, it leads peo- predation of some basic underlying factors that ple to ignore the very real social and economic contributetodiscriminationagainstAsian problems faced by many segments of the Asian Americans and create barriers to equal oppot tu- American population and may result in the nity for Asian Americans. needs of poorer, less successful Asian Americans Some of these factors arise out of the ten- being overlooked. Second, emphasis on the dency of the general public and the media to ste- model minority stereotype may also divert public reotype Asian Americans. Most Americans have attention from the existence of discrimination very little knowledge of the history and cultures even against more successful Asian Americans of Asian Americans and very little awareness of (e.g., "glass ceiling" in employment and discrimi- the diversity among them. This ignorance leads natory admissions policiesininstitutions of many to lump together Asian Americans in a higher learning). Third, the model minority ste- single group and to perceive them through stereotype may result in undue pressure being put reotypes. Other factors that underlie discrimina- on young Asian Americans to succeed in school, tionagainstAsianAmericansincludethe particularly M mathematics and science classes, linguistic, cultural, and religious differences that and in theii careers. Too much pressure to suc- exist between many Asian Americans, particu- ceed on young Asian Americans has been linked larly recent immigrants, and the general public. to mental health problems and even teen sui- These differences foster misunderstandings be- cide.126 Finally, the origin of thisstereotype was tween Asian and non-Asian Americans and an effort to discredit other minorities by arguing among different Asian ethnic groups themselves, that if Asian Americans can succeed, so can impede Asian Americans' access to public ser- blacks and Hispanics, and many Asian Ameri- vices, and serve as serious barriers to the equal cans resent being used in thisfashion.127 opportunity of Asians in the United States. This model minority stereotype is not a recent Seven contributory factors are discussed below. phenomenon. More than a decade ago, the mis- 1) Viewing Asian Americans as a Model Mi- leading nature and damaging consequences of norityWhereas, in the past, Asians were often the stereotype had already been clearly pointed stereotyped as sneaky, obsequious, or inscruta- out. For instance, in 1978 the President's Com- ble, perhaps foremost among today's stereotypes mission on Mental Health noted: of Asian Americans is the "model minority" stereotype. According to this stereotype, which is There is widespread belief that Asian and Pacific based partly on uncritical reliance on statistics Americans do not suffer the discrimination and disad- revealing the high average family incomes, edu- vantages associated with other miwrity groups. The cational attainment, and occupational status of fact is that in spite of recent efforts to promote civil rights and equal opportunities for ethnic minorities in

125 For general discussions of the model minority stereotype, its validity, and its implications, see Ki-Taek Chun, "The Myth of Asian American Success and Its Educational Ramifications," IRCD Bulletin, vol. 15, no. 1-2 (Winter/Spring 1980),pp. 1-12, and Won Moo Hurh and Kwang Chung Kim, "The 'Succcss' Image of Asian Americans: 'its Validity, and Its Practi- cal and 'Theoretical Implications," Ethnic and Racial Studies, vol. 12, no. 4 (October 1989), pp. 512-38. 126 Joan E. Rigdon, "Exploding MythAsian-American Youth Suffer a Rising Toll from 1kavy Pressures: Suicides and Distress Increase As They Face Stereotypes and Parents' Evectations," Wall Street Jouma4 July 10, 1991. 127 SeeAsian America, pp. 317-19, for a discussion of the origin of the term, "model minority."

19 P9 the United States, Asian and Pacific AN/deans have More seriously, Asian Americans of all groups been largely neglected and ignored.... tend to suffer adverse consequences when international events cause tensions between the In 1980, based on the analysis of all available United States and Asian countries. For instance, evidence, the U.S. Commission on Civil Rights as shall be seen in chapter 2, many Americans concluded: take out their frustrations about Japan's economic success on Asian Americans of all na- The belief is widely held that Asian Americans are a tional origins. The 1982 killing of Vincent Chin successful minority who no longer suffer from disad- was prompted by his killers' resentment of the vantage. This belief, however, is not supported by the Japanese for their automobile exports to the facts. Many Asian Americans tille issue with the United States.131 The perception of Asian "model minority" perspective.... Americans as foreigners may also impede their and acceptance in all areas of their lives and contribute to subtle as well as overt forms of discrimina- Asian Americans as a group arc not the successful mi- tion against them in education, employment, and nority that the prevailing stereotype suggects. Individ- other arenas.132 ual cases of success should not imply that the diverse 3) Stereotypg Asian Americans as Unag- peoples who make up the Asian American communi- gressive and LackinginCommunications ties are uniformly successful. ...Despite the problems SkillsAsian Americans, while viewed as intel- Asian Americans encounter, the success stereotype ligent and talented at mathematics and science, appears to h&c led policy makers to ignore those are considered unaggressive and lacking in good truly in .-eed. communication skills. This stereotype may blind employers to thz qualifications of individual 2)Perceiving Asian Americans as Foreign- Asian Americans and hence contribute to the ersA sccond contributing factor is the percep- glass ceiling that impedes Asian Americans' suc- tion that all Asians in this country are foreigners. cess in managerial careers. It may alsolead It is perhaps this perception that led to Ameri- teachers and counselors to discourage Asian can acceptance of the internment of Japanese American students from even pursuing nontech- Americans during World War II. The perception nical careers. that all Asians are foreigners may also explain 4) Limited English ProficiencyMany Asian why Asian Americans whose families have been Americans, recent immigrants in particular, have in the United States for generations or many limited English proficiency, and some do not Asian American youths who were born her are speak or understand English at all. Persons with frequently thc objects of such queries am com- limited English proficiency face a serious barrier ments as: "Where did you learn English?" and to full participation in American society and our "You speak such good English."

128 President's Commission on Mental Health, Report of the Special Populations Subpanel on the Mental Health of Asian/Pacific Amcricans,Task Force Panel Reports,vol. 3 (1978), p. 785. 129 U.S. Commission on Civil Rights,Success of Asian Americans: Fact or Fiction?(Washington, DC: Government Printing Office, 1980), p. 19. 130 Ibid., p. 24. 131 Sec chap. 2 for an account of Vinccnt Chin's killing. 132 For a discussion of how the perception that Asian Americans are foreigners affects Japanese Americans, see Bill Hosokawa, "Accentuating the American in Japanese American,"Perspectives (The Civil Rights Quarterly),vol. 14, no. 3 (Fall 1982), pp. 40-44.

20 30 economy. A person'sability to learn about and religious differences between Asian Americans gain access to public services (such aseducation, and the general public contribute toanti-Asian police services, and health care),employment, bigotry and violence, but they can at times cause and the larger American society areoften se- other conflicts when the practices andrequire- verely hampered by limited Englishproficiency. ments of non-Western reiigions areincompati- Thus, providing Asian Americanswith truly ble with long-established mainstreamtraditions. equal opportunity requires substantialefforts to 7) Preimmigration TraumaAnotherfactor bridge the gap in communication (e.g.,providing hampering some Asian Americans' access to interpretive services) and to facilitate thelearn- equal opportunity arises out of thewartime or- ing of English. However, partly as aresult of the deals they have endured, as well as negative ex- practical difficulty of servicing the diverselan- periences they have had with governmental problems guage needs of AsianAmericans (i.e., several di- officials in their home countries. The a!ects of Chinese, Japanese, Tagalog, faced by many Asian Americans in acculturating Vietnamese, Lao, Khmer, Thai, andothers), lim- to this country are exacerbatedby their pre- ited-English-proficient Asian Americans are immigration experiences:many recent Asian drastically underserved in the areas ofinterpre- immigrants, particularly the Vietnamese,Cam- refugees, tation and English instruction. bodians, Hmong, and Laotians, are F) Cultural DifferencesAsianimmigrants who come from war-torn countries andhave sur- their come from societiesthat have very different cul- vived ordeals in their own countries and on tures from the mainstreamcultures in the journeys to the United States. Manylost loved United States. Cultural differences oftenlead to ones during the warand live in incomplete fami- misunderstandings, which in turn can lead todis- lies in this country. Refugees often carry scars criminatory treatment or to intergrouptensions, from psychological trauma and many sufferfrom dif- as in the case ofKorean American store owners post-traumatic stress disorder, which make it and their customers who are membersof minor- ficult for theito cope with day-to-day life,let ity groups. These tensions can eruptinto full alone face the challenge of adjusting to a new scale racial conflict. Bridging cultural gaps re- society. In addition, they may bring tothis coun- quires not only that new immigrantsbe given a try an ingrained distrust ofauthority arising out real opportunity to acculturate, but alsothat all of negative experiences they hadwith govern- Americans acquire a greater awareness of other mental officials in their countries of origin.This with cultures. distrust may deter many from interactions 6) Religious DiversityMany AsianAmeri- governmental agencies in the United States, cans adhere to religionsthat arc not widely prac- such as the police, welfare offices, and so on.As ticed in the United States, such asBuddhism, a result, a gulf mayarise between the police and Hinduism, Islam, and Sikhism, to name afew. the Asian American community,adversely af- These religions are unfamiliar to mostAmeri- fecting police-community relations. Because of cans educated in theJudeo-Chri Aian tradition, their unwillingness to convey their needsforce- and, despite the long tradition of religioustoler- fully, many Asian Americans may notreceive ance, these religiousdifferences generate hostil- many basic publicservices. ity against Asian Americans. Not only dothe

21 Chapter 2 Bigotry and ViolenceAgainst Asian Americans

Many Asian Americans are forced to endure multiracial, pluralistic society builton the principles anti-Asian bigotry, ranging from ignorant and in- of freedom, justice, and opportunityfor all. We can- sensitive remarks, to stereotypical portrayals of not allow these principles to be violated in thecase of Asians in the media, to name-calling,on a regu- Asian Americans byanyone. Rather, we must ensure lar basis. Asian Americansare also the frequent that persons of Asian descentare guaranteed the victims of hate crimes, includingvandalism, as- rightg promised to residents and citizensof this Na- sault, and sometimeseven murder. Although in- tion. cidents of bigovy and violence againstAsian Americans are reflections ofa broader national More recently, the Civil Rights Commission issued a general statement climate of ethnic, racial, and religiousintoler- on intimidation and ance, they are also reprehensible outgrowths of violence in America.4 The Commissionstate- ingrained anti-Asian feelings that resideto a ment identified several factors that contributeto greater or lesser extent among many members of racial intimidation and violence, including: American society.' 1)racial integration of neighborhoods lead- In 1986 the U.S. Commissionon Civil Rights ing to "move-in violence"; published a report on acts of bigotry and vio- 2) deep-seated racial hatred played lence against Asian Americans.2 The Commis- upon by sion report documented organized hate groups; many examples of 3)economic competition bias-related incidents against Asian Americans among racial and ethnic groups; and noted some of the factors contributing to 4) anti-Asian activities. That report concluded: insensitive media coverage of minority groups; and 5) poor police response to hate crimes.5 [A]nti-Asian activity in the form of violence,vat,. ism, harassment, and intimidation continues to oc. ti All of these ingredients play across the Nation. Incidents were reported in every a role in anti- jurisdiction visited by Commission staff and in other Asian bigotry and violence. For instance,eco- parts of the country as well....The United States is a nomic competition among racial andethnic groups is undoubtedly one of the underlying

1 Bigotry and violence against Asian Americans was one of the major concerns voiced by participants of the Commission'sRoundt- able Conferences. (Michael Chou, Ning Chiu, Statements at the U.S. Commission on Civil Rights RoundtableConference on Civil Rights, Houston, TX, May 27, 1989; Mini Liu, Tsiwen Law, and Carlton Sagara, Statements at the U.S. Commissionon Civil Rights Roundtable Conference on Civil Rights, New York, NY, June 23, 1989; Francis Assisi and Karl Matushita, Statementat the U.S. Commission on Civil Rights Roundtable Conferenceon Civil Rights, San Francisco, CA, July 29, 1989.) 2 U.S. Commission on Civil Rights, Recent Activities Against Citizens and Residents of Asian Descent (Clearinghouse Publication88, 1986) (hereafter cited as Recent Activities Against Citizens andResidents of Asian Descent). 3 Ibid., pp. 57, 58, 4 U.S. Commission on Civil Rights, Intimidation and Violence: Racial and Religious Bigotry in America (ClearinghousePublication 96, September 1990). 5 Ibid., pp. 11-19.

22 causes of the tensions between Asian American their communities. As more and more new im- businessmen and many of their customers across migrants have arrived from Asia, the percentage the country. Unbalanced media coverage, such of the Asian American population that is native as coverage that fosters the model minority ste- born with native-born parentswho conse- reotype, has also contributed to anti-Asian senti- quently are native speakers of English and are mew. Asim Americans, like other minorities, more easily assimilated into the broader Ameri- are increasingly becoming the targets of organ- can culturehas declined. Not only do most ized hate groups, as evidenced by the activities new immigrants have limited English profi- of anti-Indian Dotbusters in New Jersey and the ciency, reducing the potential for communica- recentkillingby skinheadassociates of a tionbetweenthemandtheirnon-Asian Vietnamese youth in Houston.6 counterparts, but they bring with them cultures Anti-Asian bigotry and violence also has its and religions that are unfamiliar to the Ameri- own unique causes and manifestations, how- can public. These differences often generate ever.7As noted in chapter 1, the United States misunderstandings that contribute to anti-Asian has a long history of prejudice and discrimina- sentiments. tion against Asians. In lecent years, underlying Because of their limited English proficiency anti-Asian sentiments have been aggravated by and/or because of difficulties in acquiring the the increased visibility of Asian Americans due credentials required to pursue their chosen pro- to a large influx of immigrants and refugees from fessions in the United States,1° many Asian im- Asia. The Asian population grew from 1.5 per- migrantsareunabletofindjobsinthe cent to 2.9 percent of the United States popula- professions for which they were trained in their tion just in the decade between 1980 and1990.8 countries of origin and turn instead to self-em- Since Asian Americans are heavily concentrated ployment as a means of earning a living. For in- geographically, the increase in the Asian popula- stance, 17 percent of foreign-born Korean men tion in some communities has been much more working in the United States in 1980 were self- dramatic. For example, in Lowell, Massachu- employed.n Many Asian immigrants operate setts, the Cambodian population increased from smali retail stores or restaurants in economically a negligible percentage toroughly 25 percent of depressed, predominantly minority neighbor- the population after1980.9 Many California hoods. The entry of small businesses owned by communities have been similarly affected by Asian Americans into these neighborhoods and Asian immigration. their apparent financial success often provokes High rates of immigration have also magnified resentment on the part of tI.Jighborhood resi- the linguistic, cultural, and religious differences dents, who wonder why the business does not between Asian Americans and others residing in hire locally and often suspect that the Asian

,===1MINIMI={ 6 See below for details on these incidents. 7 For another discussion of the factors undetiying bigotry and violence against Asian Americans, seeMorrison G. Wong, "Rise in Hate Crimes Against Asians in the United States" (paper presented at the 86th Annual Meeting of theAmerican Sociological Asso- ciation, Cincinnati, OH, Aug. 23-27,1991), 8 See chap. 1. 9 Lowell's Southeast Asian population ar, to derlin: somewhat in the late 1980s and Southeast Asians now consituteless than 11 percent of Lowell's total population "1A sians in America: 1990 Census, Classification byStates," Asian Weel; August 1991, p. 30. 10 See chap. 6 for a discussion of the certification of foreign-educated professionals. 11 U.S. Bureau of the Census, 1980 Census of Population, vol. 2, Subject Reports, Asian andPacific Islander Population in the United States: 1980, table 45A. This compares with roughly 10 percent of white men. U.S. Bureau of theCensus, 1980 Census of Popula- tion, vol. 1, Characteristio of the Population, General Social and Economic Characteristics: United StatesSwnmary, table 90.

23 33 businesses are receiving special government sub- ments. Many in the American public associate sidies. Contrary to these misperceptions, how- all Asians, regardless of their national origin, ever,most small Asian businessesare residence, or citizenship, with Japan's economic family-owned and operated and cannot afford to success and resent them accordingly. The killing hire nonfvnily members:all the workers are of Vincent Chin, discussed below, isfinexample family members, who work long hours for low of how this resentment can erupt into violence. pay. Furthermore, beyond short-term welfare Finally,the common stereotype of Asian and training programs offered only to those who Americans as a "model minority" also leads to are refugees, Asian immigrants are given very increased racial tensions. Although most Ameri- little government aid that is not generally avail- cans are familiar with the widely discussed aca- able to all Americans, and, with limitedexcep- demic and economic success of some Asian tions, the government does not give Asian Americans, they are largely unaware of theso- immigrants or refugees special help in opening cial problems, poverty, and high school dropout their businesses. Furthermore, they do not typi- rates affecting many other Asian Americans.12 cally receive much bank financing: they usually As in the case of Asian-owned businesses,ap- raise the capital for their businesses by pooling parent success, whether real or illusory, leads to the resources of family and friends. Aggravating resentment and aggravates any previously exist- the resentment of Asian business ownersare ing anti-Asian sentiments. cultural and linguistic differences between im- Thus, to a large extent, existing anti-Asian migrant business owners and residents of the sentiments inthis country have been com- neighborhoods they serve that lead the residents pounded by a lack of knowledge about Asian to perceive Asian Americans as rude and un- Americans on the part of the general public. friendly. The boycott of several Korean busi-The inaccurate "model minority" and "for- nesses in New York City discussed below as well eigner" stereotypes,the misperceptionthat as a recent boycott in Los Angeles are examples Asian immigrants receive unfair subsidies from of how racial tensions surrounding immigrant the government, and the public's unfamiliarity businesses can affect entire communities. with the diverse histories, cultures, and socio- The general tendency to view all Asiansas economic circumstances of Asian Americans all alike and the stereotype of Asians as foreigners contribute to anti-Asian feelings. make Asian Americans particularly vulnerable This chapter updates the 1986 Commission to the vicissitudes of the United States relations report by providing recent examples of anti- with Asian countries. Over the past half-century, Asianincidents,including violentincidents the United States has frequently been atwar against individuals, housing-related incidents, in- with Asian countries (e.g., Japan, North Korea, cidents targeted at places of worship, incidents Vietnam, and the Cold War with China), foster- targeted at Asian-owned businesses, racial ha- ing in many Americans resentment and aatred of rassment on college campuses, and anti-Asian Asian nationals that, for some, carriedover to slurs made by public figures. The chapter then their attitudes towards Asian Americans. Inre- reviews existing statistics on hate crimes against cent years the public's resentment of Japan's Asian Americans and discusses the recentlyen- economic success, seemingly at theexpense of acted Hate Crimes Statistics Act.13 our own, has added to historic anti-Asian senti-

12 See chap. 4 for a discussion of high school dropout ratesamong Asian Americans. 13 28 U.S.C. 534.

24 Recent Incidents of Bigotry On the evening of June 19, 1982, Vincent and Violence Against Asian Chin, a 27-year-old Chinese American, met with Americans some friends in a Detroit bar to celebrate his upcoming wedding. He was accosted by Ronald This section documents recent cases in which Ebens and Michael Nitz, two white automobile anti-Asian bigotry led to violence, harassment, factoly workers, who reportedly called him a vandalism, intimidation, and racial slurs. "Jap" and blamed him for the loss of jobs in the automobile industry. Ebens and Nitz chased Violent incidents Chin out of the bar, and, when they caught up Two racially motivated murders of Asian with him Nitz held Chin while Ebens beat him Americans in the 1980s have been etched into "numerous times in the knee, the chest, and the the national consciousn4 ss as examples of racism head"14 witha baseball bat. Chin died of his in- against Asian Americans:the murder of Vin- juries 4 days later.15 cent Chin in 1982 and the murder of Jim (Ming Ebens and Nitz were initially charged with Hai) Loo in 1989. These killings are prominent second-degree murder but subsequently allowed examples of racially motivated violence against to plead guilty to manslaughter.16 In March 1983 Asian Americans, but they are not isolated inci- the defendants were each sentenced to 3 years' dents. Racially motivated violence leading to in- probation and fined $3,780 by Wayne Circuit jury and sometimestodeath occurswith County Judge Charles Kaufman, who reasoned disturbing frequency across the country and af- that the defendants had no previous history ot fects many different Asian groups. This section violence and were unlikely to violate proba- discusses five examples of anti-Asian violence: tion.17 the murders of Vincent Chin, Jim Loo, Navroze The U.S. Department of Justice brought Fed- Mody, and Hung Truong, and the mass killing of eral civil rights charges against Ebens and Nitz Indochinese school children in Stockton, Cali- to a Fedet al grand jury, which indicted them on fornia. November 2, 1982. On June 18, 1984, Ebens was Vincent ChinThe racially motivated murder found guilty of interfering with Chin's civil of Vincent Chin and the inability of the Ameri- rights, and on September 18, 1984, he was sen- can judicial system to bring his murderers to jus- tenced to 25 years in prison. However, Nitz was tice became a vivid symbol and soutce of outrage acquitted of the Federal civil rights charges.18 during the mid-1980s. The facts of the case arc Ebens' conviction was overturned by the Sixth as follows. Circuit Court of Appeals in September 1986 for technical reasons, including issues pertaining to the admissibility of audio tapes and prosecutor-

14 Recent Activities Against Citizens and Residents of Asian Descent, p. 43, quoting Indictment at 2, U.S. V. Ebens, No. 83-60629 (E.D. Midi. 1983). 15 Ibid., pp. 43-44, and Ronald Takaki, "Who Killed Vincent Chin?" pp. 23-29, in Grace Yun, ed., A Look Beyond the Model Minority linage: Critical lsmes in Asian America (New York: Minority Rights (iroup, 1989). 16 Owns actually pled nolo contendere, meaning that the defendant does not admit or deny the charges, thougha fine or sentence may be imposed pursuant to the charges. Blacks Law Dictionary 945 (5th ed. 1979). 17 Recent Activities Against Citizens and Residents of Asian Descent, pp. 43-44. Under mandatory sentencing guidelines subsequently promulgated by Michigan's Supreme Court, Ebens and Nitz wodd have received much stiffer sentences. Jim Shimoura, Esq., telephone interview, Sept. 18, 1990. 18 Ibid.

25 3 5 ial misconect (overzealousness) in preparing confused about what had to be shown for there witnesses.' When Ebenscame up for retrial in to be a civilrights violation under section the Eastern District of Michigan, the defense 245(b): even though the jury may have felt that moved for a change of venue on the grounds the attack was indeed racially motivated, it might that Ebens could not get a fair trial in Detroit.20 not have thought that Ebens specifically in- The defense motion was granted, and the trial tended to interfere with Chin's use of a public was moved to Cincinnati. The case was retried facility (the bar).25 during the month of April 1987, and this time Jim (Ming Hai) LooSeven years after Vin- Ebens was acquitted.21 cent Chin's killing, another Chinese American The acquittal of Ebens in the second Federal was killed in Raleigh, North Carolina under sim- trial means that neither Ebens nor Nitz ever ilar circumstances. went to prison for Vincent Chin's killing. Some Jim (Ming Hai) Loo, 24, had immigrated to have speculated that the main reason that the the United States from China 13 years before, Cincinnati jury acqvitted Ebens is that the july was working in a Chinese restaurant, and was could not comprehend the reality of anti-Asian saving money so that he could attend college. bias as it existed in Detroit in the early 1980s. On tile evening of Saturday, July 29, 1989, dur- Whereas Detroit in the early 1980s was the ing an altercation that began in a nearby pool scene of a massive media campaign against for- hall, Loo was hit on the back of the head by a eign imports, especially those from Japan, a handgun held by Robert Piche. He fell onto a campaign that inflamed anti-Asian sentiments in broken beer bottle, which pierced his eye and that city, there had not been the same type ofcaused a bone fragment to enter his brain, re- campaign in Cincinnati. Viso, there were very sulting in his death on July 31. few Asians in Cincinna alid anti-Asian senti- Loo and several Vietnamese friends had been ments were not widespread. playing pool in the pool hall, when Robert Others contend that the Cincinnati jury's ac- Piche, 35, and his brother, Lloyd Fiche, 29, quittal of 7.bens reflects a fundamental problem began calling them "gooks" and "chinks" and with current Federal civil rights laws. Ebens was blaming them for American deaths in Vietnam. charged under Federal criminal civil rights law Lloyd Fiche said, "I don't like you because section 245(b),23 which prohibits (among other you're Vietnamese. Our brothers went over to things) the racially motivated interference by Vietnam, and they never came back,"26 and "I'm force or threat of force with a person's use of gonna finish youtonight."27 Although theman- public facilities, such as restaurants and bars.24 ager forced the Piche brothers to leave the pool Some experts argue that the jury may have been hall, they waited outside for Loo and his friends,

19 United States v. Ebens, 800 F.2d 1422 (6th Cir. 1986). 20 United States v. Ebens, 654 F. Supp. 144 (E.D. Mich. 1987). 21 James Shimoura, Esq., teephone interview, Sept. 18, 1990. 22 Ibid. 23 18 U.S.C. §245(b)(2)(1988). 24 Hogan and Hanson, Washington, DC, Lawyer's Committee for Civil Rights Under Law, Striking Back at Bigoay: Remedies Under Federal and State Law for Violence Motivated by Racia4 Religious, and Ethnic Prejudice (Baltimore: National Institute Against Prej- udice and Violence, 1986), p. 18. 25 Jack Keeney, Statement before the U.S. Commission on Civil Rights, Nov. 17, 1989, 26 Seth Effron, "Racial Slaying Prompts Fear, Anger in Raleigh," Greensboro News and Recorc4 Sept. 24, 1989. 27 "Asians in America: Old Stereotypes, Renewed Violence Confront The Country's Fastest-Growing Ethnic Population,"laanwatch Intelligence Report no. 50, June 1990.

26 36 and attacked them as they left thepool hall. tice to bring Federal civil rights chargesagainst Robert Piche and his brother firstattacked one Robert and LloydPiche.31 They were particu- of Loo's friends, Lahn Tang, with ashotgun, but larly anxious to see a prosecutionof Lloyd when Tang escaped, Robert swung apistol at Piche, who received a minimal sentencedespite another of Loo's friends, Jim Ta. Hemissed his being the chief instigator of theincident.32 After intended victim and hit Loo on thehead in- a lengthyinvestigation, the Justice Department 1991,33 that it had instead.28 announced on March 29, Although Lloyd Piche made most of theracial dicted Lloyd Piche on Federalcivilrights In remarks, he did not strike the fatalblow. He was charges, but It did not indict RobertPiche. sentenced to 6 months in prison fordisorderly making the announcement,Attorney General conduct and simple assault (onTang), both of Thornburgh said: which aremisdemeanors.29 In March 1990, Rob- against innoceit ert Piche was foundguilty of second-degree This is a heinous crime committed deadly weapon and patrons of a public facility.Such egregious behavior, murder and assault with a unpunished. sentenced to a total of 37 years inprison. He will especially with death resulting, cannot go be eligible for parole afterserving 412 years. Al- freedom to enjoy life, Manning Jr. gave This country was built on the though Judge Howard E. liberty and the pursuit of happiness.When innocent Piche a stiff lecture, the sentence wasless than patroris of a public facility areharassed and ultimately he could have meted out:under North Carolina killed simply because of their race,religion or na- law, Piche could have beengiven life inprison.30 tional origin, the governmenthas A moral and legal Many Asian American communityleaders, obligation to step in and prosecute. struck by the similaritiesbetween Loo's murder and Chin's, pressed the U.S.Department of Jus-

Trial," The Independent Weekly, Mar. 29,1990. 28 Melinda Ruley, "A Letter From the Loo Violence Confront The Country's Fastzst-GrowingEthnic Population," Klanwatch 29 "Asians in America: Old Stereotypes, Renewed Intelligence Report, no. 50, June 1990. Ruley, "A Letter From the Loo Trial." See N.C.Gen. Stat. §§14-1.1, 14-17 (Supp. 1987). 30 Violence Justice Dept. On Loo Case Civil RightsCharges," National Network on Anti-Asian 31 Dennis Haya.shi, "Network Pressures Bias," Wall Street Jouma4 Sept. 3, 1991. Bulletin, July 1990, p. 1, and Arthur S. Ilayes,"Asian Americans Go to Court to Fight Americans, Inc., liaison to the NationalNetwork Against Anti-Asian Violence, telephone 32 William C. Hou, Organization of Chinese 30, 1991. interview, Jan. 29, 1991; and Dennis Hayashi,Asian Law Caucus, telephone interview, Jan. Man Indicted for Federal Civil RightsViolations," Press Release, Mar. 29, 1991 (here- 33 U.S. Department of Justice, "Raleigh, N.C., after cited as Justice Department Press Release). Sept. 12, 1990, and Jan. 30, 1991), the According to a Department official (SuzanneDrouet, U.S. Attorney, telephone interviews, 34 deciding about whether or not to bring Justice Department follows guidelines spelled outin the United States Attorneys' Manual in have already undergone a State prosecution. Federal charges in "dual prosecution cases," likethe Loo case, in which the offenders guidelines is sec. 9-2.142, "Dual Pros- (The specific section of the United States Attorneys'Manual containing the dual prosecution prosecutions except in cases where a ecution and Successive Federal ProsecutionPolicies," pp. 19-25.) The manual precludes duai offers civil rights cases as an example of compelling Federal interest has not been vindicated inthe °tate prosecution. The manual prosecution...normally would aot where a compelling Federal interest is likely to be served.It also states that "a dual or successive anticipated." (U.S. Attorney's Manual, Oct. 1, be authorized unless an enhanced sentence inthe subsequent Federal prosecution is According to an example pro- 1988, p. 23.) This is probably the case for RobertPiche, who has already received a lengthy jail term. for a misdemeanor and the anticipated vided in the manual, dual prosecution is likely tobe warranted when the State conviction was Federal conviction would be for a Federal felony, asis the case for Lloyd Piche. 35 Justice Department Press Release.

27 Lloyd Piche was indicted on eight counts of very little value being placedon an Asian Ameri- violating Federal civil rightslaws." On July 15, can life. The ultimate failure of the 1991, in a Federal district American court in Wilmington, justice system to convictEbens of civil rights North Carolina, Lloyd Pichewas found guilty on charges, perhaps partly all eight counts.37 On because of the Cincin- October 15, 1991, Lloyd nati jury's difficulty in believingin the existence Piche was sentencedto 4 years in prison andor- of anti-Asian hatred, dered to pay over $28,000 in also implies thatmany restitution to the Americans view racial hatredpurely as a black- Loo family. Although theJustice Department white problem and had sought the maximum are unaware that Asian sentence under Fed- Americans are also frequentlytargets of hate eral sentencing guidelines, Piche'ssentence was crimes. Finally, neither murder less than the minimum was given much sentence (6 to 712 years) national prominence. Chin's under the Federal guidelines.38 killing did receive some national attention, but Loo's killing(in There arc many similaritiesbetween the Loo stark contrast to the murder and the Chin murders. In of a young black each case, the victim man in Bensonhurst that occurred at roughly was a young man spending the an evening relaxing same time) was hardly covered by the with friends in nationAl a public facility (a bar in Chin's media and raisedno national sense of outrage. case, a pool hall in Loo's). In eachcase, an alter- Unlike the Vincent Chin cation began inside the public case, Loo's murder facility, and vio- resulted in a successfulFederal prosecution lence leading to murdererupted outside of the the first ever successful Federal facility. In each civil rightspros- case, the victim was killed after ecution where the victim being mistaken for was Asian American. If or associated with Asians of given sufficient attention, the other nationalities. In Chin's Federal civil rights case, his killers trial of Lloyd Piche coulddo much to highlight were venting hostility against foreignJapanese, the racial aspect of Loo's killing and in Loo's case, his murderers and will send a apparently mis- message that anti-Asian racism willnot be toler- took him fora Vietnamese.39 Thus, both Chin ated by the United States and Loo became victims Government. simply because they Navroze ModyThe 1987 killing were of Asian descent. of Navroze Mody shows that Asians,like othcr minorities, Together, the Chin and Loomurders under- are potential targets of organized hatecam- score the harsh reality of racially motivatedvio- paigns and that anti-Asian lenceagainst violence can be the Asians. They alsosignalin outcome of such campaigns. differing ways the generalpublic's lack ofaware- In early September 1987 ness of and to some extent indifference the Jersey Journal towards published a letter froma group, called the anti-Asian discrimination.Thc 3-year probation Dotbusters, whose avowedpurpose was to rid and almost nominalfines imposed by Judge Jersey City of Asian Indians.There followednu- Kaufman on Chin's murderersare suggestive of merous racial incidents against AsianIndians

36 Ibid. 37 Johnny Ng, "Conviction in Loo Slaying Trial," Asian Week, July 19, 1991,p. 19. 38 Organization of Chinese Americans,Inc., News Release, "Lloyd Pick Sentenced to 4 Years For Civil RightsViolation of Jim Loo and 6 Others," Oct. 15, 1991. Thejudge apparently gave Pichc a lesser sentence out of pique at the JusticeDepartment for not also bringing civil rights charges againsthis brother, Robert Piche. Ibid. 39 The friends Loo was with thatevening were Vietnamese. 40 One observer commented: "Unlikemost civil rights prosecutions, (Lloyd Pick's trial] passed virtuallyunnoticed, despite its being only the second Federal civilrights prosecution involving an Asian victim. Compare this lack ofcoverage to the steady flow of reports about Asian gangs, drugs andgambling." I lelen Zia, "Another American Racism," New York Tinies,Sept. 12, 1991.

28 ranging from vandalism to assault. On Septem- Hung Truong moved to the Houstonarea bor 27, 1987, Navroze Mody, an Indian,was from Vietnam with his father in1980. His "bludgeoned with bricks, punched, and kicked mother and three brothers remained in Viet- into a coma" by a gang of 11 youths, while his nam.46 On August 9, 1990at 2 a.m., Truong was white friend remained unharmed.41 In April walking down the street with three friends, when 1989 three of his assailants were convicted of as- they were accosted by persons in twocars that sault, and one was convicted of aggravated as- stopped alongside them. Several minutes later, sault. Murder charges were not brought against one of the cars followed them, stopped, and two any of the assailants.42 18-year-old men, Derek Hi lla and Kevin Mi- Although many in the New Jersey Indian chael Allison, came out of the car, one of them community felt that the crime was racially moti- carrying a club. One of Truong's friends later vated, no bias charges were brought, and prose- testified that the two men had shouted "White cutorsdeniedthatMody'skillerswere Power."47 They chased Truong, who became Dotbusters. There were reports, however, that separated from his friends, and kicked and beat two of the youths involved in the Mody killing him with ir feet and hands. Allison later testi- had attacked some Indian students at Stevens fied that Truong had begged them to stop, say- Institute of Technology 2 weeks previously, but ing, "God foriive me for coming to this country. that the police had not filed a report in that inci- I'm so sorry." 8 After Hi lla and Allison had left dent.4" Whetheror not Mody's killing was ra- the scene, Truong's friends caught up with cially motivated, coming as it did in the wake of Truong, finding him lying on the ground bleed- an organized outbreak of bigotry and violence ing.'" Truong's friends went for help, but when against Asian Indians in Jersey City, it added sig- the paramedics arrived, Tru( ng seemed okay, 'cantly to the fears of Asian Indians through- and they let him go home with a friend. The fol- out the country. Anti-Indian incidents continued lowing morning at 7:15 a.m, paramedics were to occur frequently in the JerseLCity area for at called to Truong's friend's apartment. Truong least a year after Mody's killing. died shortly after arrival at the hospital.5° Hilla Hung TruongA more recent killing of a 15- and Allison were arrested and charged with year-old Vietnamese boy in Houston, Texas, Truong's murder the following day.51 illustrates the threat posed to Asian Americans Hilla was well known to have racist views and along with other minorities by skinheads.45 to have skinhead ties.52During the January 1991

41 "Jersey City Indians Protest Racist Attacks," The CAAAV Voice (Newsletter of the Committee Against Anti-Asian Violence), vol. 1., no. 1 (Fall 1988), pp. 1-2. 42 "Mody Killers Let Off With Aggravated Assault," The CAAAV Voice (Newsletter of the Committee Against Anti-Asian Violence), vol. 1, no. 2 (Spring 1989), pp. 1, 5. 43 Ibid. 44 Summary of news articles in the Jersey Journal provided by Stanley Mark. 45 The Asian Pacific American Coalition reports several other anti-Asian iikAdents perpetrated by skinheads during 1990, including attacks in Santa Rosa, CA, and in southern Maryland and anti-Asian graffiti in Quincy, MA. Asian Pacific American Coalition, U.S.A., APACAlen, vol. 10, no. 10 (October 1990) (hereafter cited as APAC Alert). 46 Kelly Rucker, "We Just Came Here to Be Happy: Father Mourns Slain Asian Teen," Houston chronicle, Aug. 13, 1990. 47 Robert Stanton, "Victim's Friend Says Before Attack, 2 Men Yelled 'White Power," Me Houston Post, Jan. 17, 1991. 48 Rad Sallee, "Teen Shows How He Kicked Vietnamese," Houston Chronicle, Jan. 19, 1991. 49 Stanton, "Victim's Friend Says Before Attack," 50 Erie Hanson and Tara Parker Pope, "'Skinheads' Charged in Teen's Death," Houston Chronicle, Aug. 11, 1990. 51 Ibid.

29 :1 9 trial, witnesses described him as a violent man.53 pass legislation that would provide stronger sen- Although denying that he was a racist, Allison tencing provisions for hate crimes.56 admitted during the trial that he had partici- Stockton Schoolyard MassacreA chilling pated in a couple of fights with skinhead friends massa.:re of school children in Stockton, Califor- and that his parents had kicked him out of the nia, illustrates the tragic consequences of racial house when they discovered a swastika in his hatred. room. He also admitted that the only reason he On January 17, 1989, a gunman dressed in and Huila had atlacked Truong was because he military garb entered the schoolyard at Cleve- was Vietnamese.4 land Elementary School in Stockton and repeat- On January 23, 1991, a Houston jury con- edly fired an AK47 assault rifle,killing five victed Hi lla of murder and Allison of involuntary Indochinese children and wounding 30 others. manslaughter in Truong's killing. The jury sen- The gunman,Patrick Edward Purdy, then tenced Hi lla to 45 years in prison and gave him a turned the rifle on himself. The children who $10,000 fine. The jury also found that Huila had died were identified as Raphanar Or, 9; Ram used his feet as a deadly weapon, which means Chun, 8; Thuy Tran, 6; Sokhim An, 6; and Ocun that he will be required to serve at least one- Lim, 8. Four of the dead children were Cbmbo- fourth of his sentence before becoming eligible dian, and one was Vietnamese. Almost 60 perfor parole. Allison was sentenced to 10 years in cent of the pupils at Cleveland Elementary were prison (the maximum allowable prison sentence from Southeast Asian families.57 for involuntary manslaughter) and also was as- In the days following the massacre, news cov- sessed a $10,000 fine.55 erage focused in large part on the rifle used by Although the prosecutor presented the case Purdy, and the incident was a powerful force as a racial killing, neither Hi lla nor Allison was hind gun control initiatives across the country. tried on a civil rights charge, because Texas law Purdy was described as a "deranged young man. does not provide for additional penalties for ra- ..who nursed an obsession with guns and the cially motivated crimes against persons. Truong's military."59 The possibility that the killings were killing has added momentum to a movement to racially motivated was hardly addressed in the national press." Almost 10 months later, how-

52 Tara Parker Pope, "Gentle Giant or Bully Boy?, Youth Revealed Darker Side Espousing Racial Violence, Acquaintances Say," Houston Chronicle,Aug. 19, 1990. 53 Robert Stanton, "Jurors Convict 2 'Skinheads' in Teen's Death,"The Houston Post,Jan. 24, 1991. 54 Rad Sallee, "Teen Shows How He Kicked Vietnamese,"Houston Chronicle,Jan. 19, 1991. 55 Rad Sallee and Ruth Piller, "Two Alleged 'Skinheads' Convicted in Death of Vietnamese Tccn,"Houston Chronicle,Jan. 24, 1991 and Rad Sallee, "Skinhcads Get Prison, Fines in Killing,"Houston Chronicle,Jan. 25, 1991. 56 Robert W. Gee, Asian American Coalition, Houston, TX, telephone interview, Jan. 30, 1991, and "A Hatred for Hate: Skinhead's 45-Year Term Shows Community Revulsion,"Houston Posteditorial, Jan, 29, 1991. Although legislation was introduced and voted on favorably by the responsible committees in both houses of the Texas State Legislature in 1991, the lesislature went into recess before the legislation could be considered by either house. Robert W. Gee, "Texas Hate Crime Update,"NationalNetwork Against Anti-Asian Violence Bulletin,July 1991, p. 1. 57 This account is based on Jay Mathews and Matt Lait, "Rifleman Slays Five At School: 29 Pupils, Teacher Shot in California; As- sailant Kills Self,"Washington Post,Jan. 18, 1989, p. Al. 58 Jay Mathews, "Schoolyard Massacre Refuels Drive for Stricter Gun Control. Killer Purchased Assault Rifle, 5 Handguns Legally," Washington Post, Jan. 20,1989,p. A3. 59 Robert Reinhold, "After Shooting, Horror But FewAnswers," New York Times,Jan. 19, 1989. 60 See, e.g., Robert Reinhold, "Killer Depicted as Loner Full of Hate,"New York Times,Jan. 20, 1991, and Tamara Jones and Bob

30 4 0 police ever, CaliforniaAttorney General John Van de Commission on Human Rights and the inci- Kamp issued areport° on the incident conclud- department's antibias unit imestigated the ing that the killings were driven by ahatred of dents." A survey by the New York City Com- racial and ethnic minorities. The reportob- mission on Human Rights found that 90 percent neighborhood ex- served, "Purdy was filled with hateand anger to- of Asian-owned stores in the the fly- ward many groups of people,including v;rtually perienced serious losses in business after and two Bensonhurst real all identifiable ethnicminorities."' It then con- ers were distributed, estate offices mentionedin the flyers were sub- cluded: sequently vandalized."' The person or persons found. In a It appears highly probable thatPurdy deliberately responsible for the flyers were never chose Cleveland Elementary School asthe location more recentincident, anti-Asian flyers were dis- for his murderous assault insubstantial part because tributed this year in CastroValley/Hayward, Cal- it was heavily populated by SoutheastAsian children. ifornia, by members of theWhite Aryan His frequent resentful commentsabout SoutheasbAs- Resistance.66 ians indicate a particular animosityagainst them. As many Cambodian refugeesmoved into New England in the early1980s, housing-related Housing-Related Incidents incidents against themmultiplied. In 1981, It is not only in publicplaces, such as bars, shortly after he had movedinto his new house in pool halls, and city streets,that Asian Americans Portmouth, Maine, a Cambodian man washit on encounter acts ofbigotry and violence.. They the head by a rock hiddenin a snowball thrown often face harassment andvandalism in their by neighbors as he wasplaying in the snow with own homes andalso experience other formsof his children. When he approachedhis neighbors, intimidation aimed at keepingthem from living one of themsaid, "Go back where you came or working in aneighborhood. from, gook."67 Between1983 and 1987 there There have been numerousincidents of racist were recurrentincidents of violence against flyers being distributed inneighborhoods where Cambodians living in Revere,Massachusetts, Asian Americans live or work,calling for Asians and vandalism against theirhomes, including to go home or beexpelled. As an example, anti- rocks thrown at windows andseveral fires that Asian flyers were distributed tomailboxes in the destroyed entire buildings. Similarincidents oc- Bensonhurst and Gravesendneighborhoods of curred elsewhere in Massachusetts,such as a fire Brooklyn during the fall of1987. The flyers set by arsonists whichleft 31 Cambodians home- urged boycotting Koreanand Chinese busi- lessinLynn, Massachusetts,in December nesses and real estateagents involved in selling 1988.68 property to Asians.Both the New York City

Baker, "Drifter Had A Fondness For Firearms,"Los Angeles Times, Jan. 18, 1989. General, State of California, A Report toAttorney General John K Van de Kamp on Pat- 61 Nelson Kempsky, Chief Deputy Attorney rick Edward Purdy and the Cleveland SchoolKillings (October 1989). 62 Ibid., p. 10. 63 Ibid., p. 12. Mystery," Newsday, Nov. 4, 1987. 64 Rita Giordano, "Anti-Asian Fliers' Origin a Bias Linked to Incidents," Newsday, Dec.15, 1987. 65 Rita Giordano, "Bensonhurst: Anti-Asian 66 APAC Alert. Commission on Civil Rights, Civil Rights Issuesin Maine (May 1989), p. 39. 67 Maine Advisory Committee to the U.S. Cambodian Families Homeless," Asian Week, Dec.2, 1988, as summarized in materials 68 Earl C. Yen, "Flames Leave Massachusetts provided by Stanley Mark.

4 4 1 Such incidentsare not unique to New En- second time the church gland. In Richmond, California, had been attacked for instance, fol- within 2 months. The first lowing numerous incidents attack, which also in- of egg throwing and volved spray-paintedhate messages and shots, BB gun shots, eightcars parked outside an had occurredon August 7. The incidentwas very apartment complex where severalLaotian refu- upsetting to the Phoenix'sAsian Americancom- gees lived were badly damaged inSeptember of munity, which has 1990.69 Nor grown in recent years, and do they only affectSoutheast As- now is 3 to 4 percent of the Phoenix area.72 ians. In 1987, in Queens,New York, a Chinese family was the repeatedtarget of a group of young people who threw eggs, drovea ear into Incidents Targetedat their front gate, and saidthings like "Why don't Asian-Owned Businesses you move away?"" As was documented in the1986 Commission report on racially motivated violenceagainst As- ians, anti-Asian activities Incidents Targetedat Places of are often targeted at Asian-owned businesses.73 ManyAsian Ameri- Worship cans, especially Koreans, own and Hate activities have also been operate small directed against retail businesses, suchas grocery stores, laun- Asian Americans' places ofworship. One partic- dries, and restaurants, often ininner-city neigh- ipant in the RoundtableConferences reported borhoods. The apparent that out of 60 Hindu temples successof these he had surveyed, businesses occasionally provokes 55 had experienced resentment some form of harassment or among persons residiog in the neighborhood, vandalism in the previous 6 months.71In a re- and resentment leads cent example, vandals to harassment, vandalism, spray painted hateful mes- and sometimes violence. Tworecent examples, sages, including "No Chinks, GoHome to one in California and the other in New China," on a Chinese American York, re- church in Chan- flect continuing anti-Asianactivities directed dler, Arizona, and fired fiverounds of ammuni- against businesses owned by AsianAmericans. tion through the church'sdoors. The incident, Castro Valley, California On which occurred November 25, on September 11, 1990,was the 1989, at about 10:30p.m., a group of white teen-

69 APAC Alen, 70 "Summary of Incidents of Racist Violence, New York City Area," provided by MiniLiu. 71 Francis Assisi, Statement at thc U.S. Commission on Civil Rights RoundtableConference on Civil Rights, San Francisco, 29, 1989. CA, July 72 Keiko Ohnuma, "Racist Vandals Attack Arizona Chinese Church," Asian WeekSept 21, 1990. Another recentincident, in which nine people, including six monks, were shot to death in a Thai temple outside ofPhoenix, provoked fear and anxiety Americans. Although robbery among Asian was seen by the police as the most likely motivefor the killings, many were afraid that was bias related. (Seth Mydans, "Phoenix Asking Lie incident If Bias Played Role in 9 Killings," NewYork Times, Aug. 13, 1991.) The investigation of the massacre led to thearrest of two different sets of suspects and much confusion within Phoenix'sThai and Asian Ameri- can communities. Although the firstset of suspectsfour meninitially confessed to the killings, they later recantedtheir confessions, and eventually all chargesagainst them were dropped. As of November 21, 1991, prosecutorswere intending to prosecute two teenagers, who have also confessedto the killings. (Jane Fritsch, "Sudden Surplus of SuspectsMarks Case of Slain Monks: Arizona Officials Seek LinksBetween 2 Apparently Unconnected Sets of Possible Killers; TempleSecurity Has Been In- creased," Los Angeles Times, Nov. 19, 1991, p. AS; and "Four Held in Deathsat Buddhist Temple Will Be Released," Los Times, Nov. 21, 1991, p. A33.) U.S. Angeles Commission on Civil Rights staff,along with concerned Thai and Asian California, traveled to Phoenix American citizens from on Nov. 6, 1991, to offer support and helpfacilitate communication between and Arizona officials. the Thai community 73 Recent Activities Against Citizens and Residents of Asian Descent,pp. 53-56.

32 agers both physically and verbally assaulted men severely while hurling racial insults and Asian American employees and an Asian Ameri- slurs and claiming that Mr. Toy had shot their can store owner at a shopping center in Castro friend. The attackers fled moments later when Valley, California. In the midst of the scuffle, the sirens of approaching sheriff's cars were gun shots were fired, and one of the attackers heard. was hit in the leg. According to sheriff's investi- The attackers had inflicted enough physical gators, the incident was racially motivated and harm to both Mr. Toy and his son to require the youths had assaulted the workers "because prolongedmedicaltreatment.Thedistrict they did not like Asians."74 The details of the in- attorney's office decided not to press charges cident as obtained from newspaper accounts and against Mr. Toy on the grounds that the elder staff interviews with the victims are as follows.75 Toy Ind acted in self-defense. One attacker was A Korean American employee at the Laurel arrested and placed on probation by a juvenile Liquors store had gone into an outdoor garbage court referee. In March 1991 the assailant was disposal area to deposit garbage when several taken off probation.76 youths slammed the disposal site's door shut and When the local newspaper reported that a locked it. They taunted him, using ethnic slurs, lawsuit had been filed against the attackers in and then let him out and beat him before he ran March 1990, the Toy family received a tele- back to the liquor store. phone death threat, and for several night-.he During this commotion, a Chinese American son was followed home by a pickup truck. a man, a U.S.-born college graduate, who was result of the suit and mounting community..er- helping clean up the Choice Meat and Deli store est in the case, considerable publicity was gener- owned by his father two doors down from the li- ated in the local news media during early quor store, came out to see what the problem summer. In August 1990, some 9 months after was. He was attacked by the youths, whothe incident, another attacker was arrested. knocked him down and kicked him rereatedly. However, charges against this second attacker His father, Frank Toy, came out of the meat were later dismissed for insufficient evidence. store carrying a broom handle and tried to help The Toys continued to be harassed after the his son. The assailants wrested the broom handle incident. Soon after the Novemtnr incident, a from Mr. Toy, who then went back inside his white man came into the store asking for store and returned with a rifle. Mr. Toy fired two change. When he was told that there was not warning shots in the hope that the assailants enough change, the man went to the Safeway would disperse. Someone grabbed Mr. Toy and grocery store next door, then came back to Mr. the rifle, knocking him down. The rifle went off Toy's store, shouting, "See this change? We a couple of times, and a bullet hit one of the Americans help each other!" On more than sev- youths in the leg. Mr. Toy managed to drag his eral occasions, ice cream and soda were thrown son into the meat store and lock the doors, but against the store windows during the night.78 the assailants kicked the doors in and beat both

74 Dennis J. Oliver, "Teen Rampage Blamed On Racism:Authorities Charge 17-Year-Old With Violating Chinese Butchers' Rights,"The Korean Times San Francisco Edition,Nov. (date unknown), 1989, p. 1. 75 This account is based on several sources: Andy Jokelson, "Asians Targets of Taunts, Assault,"The Oakland Tribune,Nov. 28, 1989, p. A-11; Oliver, "Teen Rampage," p. 1; Frank Toy and Melvin Toy, personal interviews, Castro Valley, CA, Feb. 22, 1990. 76 John Poppas and John Billups, Alameda County District Attorney's Office, telephone interviews, Oct. 1, 1991. 77 Roger Patton, attorney representing the Toys, telephone interview, Oct. 1, 1991. 78 Frank Toy, staff interview, Castro Valley, CA, Feb. 22, 1990.

4 3 33 Mr. Toy also recalls that during the first 4 the boycott led many Korean Americans to be- years of his 10-year ownership of the store, hf: come disillusioned with the political process. had to endure a long series of harassing acts by The nature of the boycott remains controversial: county inspectors, which persisted until he hired a committee set up by Mayor Dinkins to investi- an attorney and threatened to sue. The harass- gate the incident (hereafter, Mayor's Commit- ment included: 1) not allowing Mr. Toy to put tee)concludeditwas"incident-based,"81 up a neon sign similar to the one on the store although the city council's committee on general next door, 2) telling Mr. Toy that promotional welfare flatly rejected this characterization and advertisements displayed inside the store were viewed it as racially motivated.82 The city council too big and had to be reduced, and 3) asking Mr. committee also questioned the neutrality and Toy to change the color of fluorescent lamps in- credibility of the Mayor's Committee. The inci- side the meat compartment, when other stores dent is a significant one because it illustrates a were allowed to use the same ones ashis." widespread pattern of racial tensions between Concerned about the continuing undercur- immigrant small retail store owners and their mi- rent of anti-Asian prejudice in the area, declin- nority clients. ingsales,and mostImportant,hiswife's The incident that led to the boycott occurred apprehension for the family's safety, Mr. Toy on January 18, 1990. At about 6:00 p.m., Ghisla- closed his store on June 29, 1990, incurring over ine Felissaint, a Haitian American resident of a $100,000 loss, and found a part-time job at an- Flatbush, was shopping for a few produce items other grocery store in the same city.8° at the Red Apple store. As she was leaving the Boycott of Korean Grocers in Flatbush,store to go across the street to another store Brooklyn, N.Y.On January 18, 1990, a seem- which seemed to have a shorter line, she was ingly minor incident occurred at the Family Red asked to open her bag, and she refused.83 An al- Apple Market grocery store (hereafter the Red tercation erupted between Ms. Felissaint and Apple grocery store) in the Flatbush section of store employees, the police were called, and she Brooklyn. It quickly led to a year-long boycott by was taken to a nearby hospital emergency room .black residents of two Korean American-owned where "she was treated for superficial injuries groceries. This boycott forced the owners to the and released several hours later."84 brink of bankruptcy, brought about one of the What took place during the altercation is not largest mass rallies of Asian Americans in the totally cicar, for the two sides have given con- history of New York City, and resulted in a flicting versions. According to Ms. Felissaint, the flurry of accusations between the offices of the store employee grabbed her by the neck and district attorney and the mayor. The handling of slapped her. She fell to the floor, and another

79 Ibid. 80 Melvin Toy, telephone interview, Dec. 11, 1990. 81 New York City Mayor's Committee, Report of the Mayor's Committee Investigating the Protest Against Two Korean-Owned Groceries on Church Avenue in Brooklyn (Aug. 30, 1990), p. 3 of Executive Summary, and pp. 14-15 of text (hereafter cited as Mayor's Com- mittee Report). 82 The Council of the City of New York, Committee on General Welfare, An An4sis of the Report of the Mayor's Committee Investi- gating the Protest Against Two Korean-Owned Groceries as Church Avenue in Brooklyn (December 1990), pp. 54-59 (hereafter cited as An Analysis of the Mayor's Commiuee Report). 83 Arnold H. Lubasch, "Woman Who Touched Off Boycott Describes Attack," The New York Times, Jan. 5, 1991, 84 Mayor's Committee Report, p. 20. The report stated that "Mme. Felissaint refused medical treatment at the scene on Church Ave- nue. She was treated for superficial injuries at Caledonia Hospital, where her attorney requested that she be admitted for observation. She was not admitted, however, and was released from the emergency room." Ibid.

34 4 4 called an ambu- employee kicked her on her leftside and under When the police arrived, they the insistence of her stomach.85 Since theassault, she has had lance for Ms. Felissaint and, at developed serious the crowd, arrested Bong JaeJang, who identi- "frequent headaches, and has the store, for com- gynecological problems. She has notbeen able fied himself as the owner of At this point the to work for fivemonths."86 At a January 26 mitting a third-degree assault. station, the attorney crowd was becoming"somewhat violent, throw- meeting held at the police the Koreans. The perfor Ms. Felissaint broughtforth further allega- ing rocks and bottles at Oriental [cashier] was sonnel quickly closed thestore."99 tions that "the female began shortly after the heard to say 'I'm tired of thefing black peo- A boycott of the store Ms. incident. According to thepolice record, at ple."87 The police officer who interviewed 40 persons as- Felissaint at the hospital stated thatshe did not about 7:00 p.m. approximately "mention ethnic remarks...andthe female cash- sembled in front of the store: ier spoke little or noEnglish."88 is somewhat dif- to protest the assault uponthe Haitian woman by the The store employees' version that the store close when Ms. Felissaint Korean merchants, demanding ferent. According to them, spokespersons voiced their had $3 worth of permanently. Unidentified arrived at the cash register, she opposition to the Korean-Americantreatment of cus- $2 to the cashier. While food, but presented only tomers in general,indicating that there have been a she looked in her bag for more money,the cash- number of incidents in which customershave been ier began to wait onanother customer because manhandled and there is a lack of respectto all black the line of customers was verylong. She became customers. When [thestore] closed at about 2000 angry, began yellingracial slurs, and then threw hours the demonstrators moved acrossthe street to a hot pepper atthe cashier. The cashier re- 1826 Church Ave, anotherKorean-owned fruit And sponded by throwing a pepperback at her. This vegetable market [Church Fruitsand Vegetables]. Felissaint knocking squabble grew, with Ms. Apple store, an em- down boxes of hot pepper, andspitting in the After closing the Red intervened, ployee "ran across the street totake refuge from cashier's face. The store manager outside the store. appealing to her to calm downand asking her to the angry crowd" gathered requested, with While crossing the street to theChurch Fruits forget about the $1. When he hit by bottles, his "hands on her shoulders,"that she leave the and Vegetables store, "he was fruits."92 It is because this employee store, she "laid herselfdown on the floor." Cus- rocks and sides, some telling her that took refuge in the Church Fruitsand Vegetables tomers began to take followed him across she should sue, and othersadvising her to get up store that the demonstrators the street. Although the two storeshave been and leave.89

85 Mayor's Committee Report,pp, 19-20. 86 Ibid., pp. 20-21. Officer, 70 Squad, New York City PoliceDepartment, memorandum to the Commanding 87 1.1. Charles E. Monahan, Commanding 1. Officer entitled "Meeting with Representativesof the Haitian Community," Jan. 26, 1990, p. 88 Ibid. 89 Mayor's Committee Report,pp. 21-22. 90 Ibid., p. 22. York City Police Department, "Chronology ofEvents Surrounding Haitian Demonstra- 91 Commanding Officer, 70th Precinct, New Memorandum). tions on Church Avenue," Feb. 6, 1990. p.1 (hereafter cited as Commanding Officer 92 Mayor's Committee Report,p. 23.

35 4 competitors and are in no way connectedto boycott the "ugliest crack' in each other, a connection thergeous mo- was established in the saic of racial harmony in the minds of the demonstrators, city."The boycott and Church Fruits was still continuing at least ayear later. In early and Vegetables also becamea target of boy- 1991 demonstrators appeared cott.93 only on evenings and weekends, but they stillwere driving away On the following day, therewas a demonstra- some shoppers." tion of about 25persons in front of the Red Several specific developments Apple and the Church Fruits that occurred and Vegetables subsequent to the January 18, 1990,incident are stores. The demonstrators "demanded thatthe worthy of special mention: store be closed permanently, claiming that a 1) On April 21, 1990, MayorDavid N. woman was beaten therein and is 9994 now in a Dinkins, who was electedon his campaign prom- coma. The next day, approximately 150 pro- ise of racial harmony andassumed office 17 days testers began demonstrating in frontof the before the start of the boycott,appointed a com- store, and the crowd grew to about 400persons mittee to investigate the circumstances by the late afternoon. One of and demonstrator was ar- climate surrounding the January18th incident rested for disorderly conduct after knocking and to make recommendationson resolving the over fruit stands and pushing bystanders.95 protest and boycott.im In this manner, the boycott grew in size and 2) Because of the continuingprotest and its gathered momentum. In the months that fol- devastating effects on business, thestore owners lowed: applied for and, on May 10, 1990,were granted injunctive relief by the Kings CountySupreme The boycott often became volatile and racially Court. Balancing the protesters' rightsto con- charged in tone, resulting in several instances of vio- gregate and express their position and thestore lence, as the demonstrators, using bullhorns and po- owners' rights to engage incommerce, the court sitioning themselves in close proximityto the store issued an order that the demonstrators entrances, exhorted, and, in certain instances, verbally could continue their protest from abused shoppers in orderto ckssuade them from pa- a distance of not less tronizing the boycottedstores. than 50 feet from thestore entrances and directed the New York City PoliceDepartment to Racist leaflets were distributed, andan act of enforce its provisions. The policedepartment violence by...emonstrator resulted in the wife failed to enforce the May 10order, however. of one ofthe storeowners undergoing a medical Because of thisfailure and the continuing abortion,leading one reporterto name the boycott's adverse commercial impact,on June 4, 1990, the store owners initiateda mandamus

93 Ibid.

94 Commanding Officer Memorandum,p. 2. Ibid. 96 Boung Jae Jang v. Lee Brown, No. 90-02710(Sup. Ct. N.Y. Sept. 17, 1990) at 2. 97 On Feb. 2, 1990, a female demonstratorcame into Church Fruits and Vegetables "yelling and looking for a confrontation" andan altercation ensued with Mrs. Park, the storeowner's wife, who was 2 months pregnant. Thisdemonstrator "took hold of Mrs. Park's face and neck and attempted to scratch her." Mrs. Park was hit during the scuffle andsubsequently required a medical abortion. She has returned to Korea, "physically, emotionally, and financially exhausted." Thisaccount is based on theMayor's Committee Re- port,pp. 23-24, and An Analysis of the Mayor's CommitteeReport,p. 14. 98 Laurie Goodstein, "Split Between Blacks, Koreans Widens in N.Y.Court," Washington Post, May 8,1990. 99 Bethany Kandel, "Tensions Ease Year After NYC GroceryBoycott," USA Today,Jan. 4, 1991, p. 8A 100 Mayor's Committee Report,p. 1.

4 6 proceeding to compel the police department to b) Although the New York City Police De- enforce the court order. On June 26, 1990, the partment did a commendable job of keeping court directed the police department to imple- peace in the neighborhood, the police failed ment its May 10 order. The police department, to inform the Bias Investigation Unit of the however, arguing that law enforcement is a mat- department, even though both sides claimed ter exclusively committed to the discretion of the that racial insults were used, and the police police department and that public safety and treated the incident "in a light and superficial community relations concerns strongly militated manner." None of the police officers spoke against enforcing the May 10 order, aRpealed Korean, French, or Creole, and the police lost the June 26 decision on several grounds.' "crucial witnesses" because they were more 3) On September 17, 1990, the State appel- intent on clearing the store than determining late court unanimously concluded that the police what had happened.1" depaatment must enforce the lawful order of the court. Srcifically, the court noted that the po- c) The mainstream media coverage of the sit- lice assertion that to enforce the May 10 order uation was "inflammatory and polarizing," would engender community resentment towards "overly simplistic and in some cases blatantly the police or exacerbate the intensity of the pro- racist," and did not assist the resolution pro- 105 test was unpersuasive. This assertion, the court CeSS. reasoned, failed to recognize that the court prescribed the measures as reasonable and neces- d) The district attorney's office did not move sary after examining the relevant circumstances. the resulting court cases as expeditiously it Furthermore, the police are not "entitled to uni- could have, thereby contributing to tht. J- laterally conclude otherwise by, in essence, abro- sion of public trust in the criminal justice sys- gating to themselves the ultimate authority to tem.106 weigh the petitioners' entitlement to effective enforcement of the court's order.. .and state of- 5) On the same day that the Mayor's Com- ficials are not entitled to rely on community hos- mittee Report was released, August 30, 1990, tility as an excuse not to protect...the exercise the District Attorney of Kings County issued a of fundamental rights."102 14-page statement responding to the report, 4) On August 30, 1990, the Mayor's Commit- characterizing it as "flawed because of inaccu- tee issuedits report (hereafter the Mayor's racy and an incomplete review of facts and cir- Committee Report). The report concluded that: cumstances."107 6) The New York City Council's Committee a) The boycott was "incident-based," not ra- on General Welfare (Council Committee) held cially motivated.103 a public hearing on the report on September 12,

101 Boung Jae Jang v. Lee Brown, No. 90-02710 (Sup. Ct. N.Y., Slpt. 17, 1990), at 3-4. 102 Id at 6. 103 Mayor's Cornrninee Report,pp. 15-16. This conclusion was drawn in spite of the committee's recognition that "openly racist remarks were made and leaflets with racist statemcnts were distributed by some protesters" (p. 15) and its own assessment that "conflict between particular Korean merchants and particular Black shoppers is not a new phenomenon. In the past 5 years several difficult protest and boycott situations have erurted in New York City. Very simiiar conflicts have been seen in many major urban centers in the past decade." (p. 3) 104 Ibid., pp. 39-40. 105 Ibid., p. 3 (Executive Summary) and p. 31 (text). 106 Ibid., p. 34.

4 7 37 1990, and issued its findings and conclusions in d) "The City's refusal to enforce the fifty-foot December 1990. The Council Committee ob- order [for demonstrators not to congregate served that the Mayor's Committee Report was within 50 feet from the stores] absent the spe- "a disappointment to all participants in the situ- cific direction of two courts is without de- ation and to the public who was hoping for a fense....The Mayor's failure to direct the courageous moral stand from itsleadership."108 police to enforce [the court order] raises Specific conclusions were as follows: questions about his willingness to exercise his authority. The failure of the Committee to a) "From the outset, the Mayor's Committee criticize this [aspect] is profoundly disturb- was apparently unwilling to evaluate critically ing.112 the facts of the January 18 incident...and [its] failure to investigate the protest meaningfully e) The conclusion that "the protest is inci- appears to be purposeful." As evidence for dent-based and not primarily racist is con- this statement, the Council Committee cited tradictedbythefacts.Thiserroneous the basic fact that the Mayor's Committee conclusion adversely affects the rationale be- failed to interview the protestors themselves hind the Committee's recommendations re- regarding their eauses for the boycott.1® garding resolution of the protest."113

b) The Mayor's Committee failed to attribute 7) The Mayor's Committee Report was also racist behavior to the particular groups re- criticized by the media. For example, a New York sponsible for the distribution of racist litera- Times editorial noted, "Cynics suggested the ture. The Council Committee calledthis [appointment of the committee] was merely a failure "baffling," since some of the racist lit- device to diffuse responsibility for an intolerable erature was clearly identified with particular display of racism. The report makes even the 110 groups. cynics look starry-eyed....The Flatbush boycott [is] racist....The report leaves Mayor Dinkins c) "While the goal of resolving the boycott is still seeming to excuse racial picketing. By doing laudable, it cannot be done at the expense of so, he encourages the spread of this pernicious the constitutional rights of one of the parties, tactic.,,114 nor the abrogation of the function of the po- 8) On September 18, 1990, Asian Americans lice [as law enforcement agents]."111 (primarily, but not exclusively, Korean Ameri- cans) held a civil rights rally in front of the city

107 Charles J. Hynes, District Attorney of Kings County, NY, "Statement by Kings County District Attorney Charles J. }Iynes in Re- sponse to Mayoral Committee Report," pp. 1 and 7-12. 108 An AnalYsis of the Mayor's Committee Repor4 p. 6. 109 Ibid., pp. 38, 40. 110 Ibid., p. 44. Copies of 14 different flyers distributed by demonstrators are shown in An Ana4)sis of the Mayor's Committee Report, exhibit 10. 111 Ibid., p. 47-48. 112 Ibid., pp. 48, 50. The council committee also noted the importance of the fact that "since shortly after the City began enforcing the court order, the level of confrontation between the parties and the police has not increased, but diminished [contrary to the police forecast]. Shoppers have returned to the stores, apparently demonstrating that they were kept awaynot by sympathy with the boy- cottbut by intimidation from the demonstrators." Ibid., p. 50. 113 Ibid., p. 54. For detailed discussion of this point, see pp. 54-59, An Analysis of the Mayor's Committee Report. 114 "These Boycotts Are Racist and Wrong," New York Times, Aug. 31, 1990.

38 4 8 violence or hall. This peaceful rally,officially named by the there were no major boycott-related organizers as "Peace Rally ForRacial Har- incidents since the mayor'svisit, demonstrators 10,000 per- were stillappearing on evenings andweekends, mony," drew a record crowd of ncar after one sons, the largestrally of its kind in the city.It driving away some customers, even promoted themes of racial harmony,racial jus- year.120 this rally Mayor The year-long boycott exacerbated race.ela- tice, and cultural pluralism. At have led to a Dinkins announced that thecity would enforce dons in the Flatbush area and may American the court order barringdemonstrators within 50 violent attack on three Vietnamese stores."' men by a large groupof black youths who mis- feet from the Koreans.121 In that incident, 9) After the appeals courtdecision, the po- took them for morning of Sun- lice department startedenforcing the 50-foot which took place early in the 13 persons for disorderly day, May 13, 1990, as many as15 youths were court order, arresting building in which conduct. On September21,1990, Mayor gathered outside an apartment of them threw a Dinkins visited the twoboycotted stores and the Vietnamese men lived. One "directly beer bottle, shattering aplate-glass window in shopped. His visit was characterized as When the contradict[ing] his previous position onhow to the Vietnamese men's apartment. what was handle the protest. . .andadopted instead ex- Vietnamese men came out to see them with a base- actly the tactic that an array ofother politicians going on, the youths attacked shouting, "Koreans, and opinion-makershad urged on him for ball bat, knives, and bottles, months." After the mayor's visit, business at what are you doinghere?"122 and other racial Tuan Ana the twoi boycotted storestook a sharp up- slurs. One of the Vietnamese men, skull and other severe swing." Over the following weekend, however, Cao, suffered a fractured attack.123 Despite the proximity 19 gasoline bombs werediscovered on the roof injuries in that of the boycott and of the Red Apple storeby police officers who of the attack to the location by the attackers, were conducting aroutine sweep of the build- the anti-Korean remarks made ing."8 The police noted, "We don't know who the police commissionermaintained that the in- [but] because of the cident was not related to the grocerystore boy- did this or for what purpose, 124 close proximity to the Korean grocerystores, there's a possibility it'sconnected."119 Although

Korea Times New York,Oct. 3, 1990. p. A5. 115 Myong-sok Lee, "Developments Leading To the 9.18Rally," Grocers," New York Times,Sept. 22, 1990. 116 Thdd S. Purdum, "Dinkins Supports Shunned the mayor's visit as follows: "Despite cries of'Boycott!' that were hurled at them, a 117 One source described the positive impact of shopped at both stores. Many said they had been stream of customers flowedthrough the steady rain past the demonstrators and shop at the stores on Fri- afraid to cross the picket lines in past months, but werestirred to action by Mayor Dinkins's decision to day." David Gonalez,New York Times,Scpt. 23, 1990. New York Times,Sept. 24, 1990. 118 David Gonzalez, "19 Firebombs Found on Roofof Grocery," Washington Post,Sept. 24, 1990. 119 New York Daily News, "Police Find FirebombsNear Boycotted Stores," USA Today,Jan. 4, 1991, p. 8A. 120 Bcthany Kandcl, "Tensions Ease Year After NYCGrocery Boycott," Robert D. McFadden, "Blacks Attack 3 Vietnamese;One Hurt Badly,"New York Times, 121 The account of this incident is based on May 14, 1990 (hereafter cited as "Blacks Attack 3Vietnamese").

122 Ibid. May 14. ("2 Black Teens Arrested in N.Y. RacialIncident,"Washington Times, 123 The police arrested two of the black teenagers on with the Vietnamese victims, who May 15, 1990.) Police response may have beendelayed because of difficulties in communicating unable to commu- had limited English proficiency. According to theNew York Times,IFJor hours after the attack, the police were Vietnamese"). nicate with (Mr. Cat)] effectively until a Vietnameseinterpreter could be found." ("Blacks Attack 3

39 4 The Flatbush incidentillustrates whatcan that the U.S. Coast Guard's happen when racial tensions selective enforce- are unchecked and ment of a 200-year-old lawwas being used to ha- racial incidents mishandledby local govern- rass them and ui ive them out of thefishing ments. An incident that might havebeen man- business in California.The Jones Act,127en- aged in such a wayas to improve racial relations acted in the late 1700s, effectivelyprohibits non- in New York City insteadended up worsening citizens from owning racial relations and disillusioning or operating large boats many Korean (heavier than 5 net tons) inU.S. waters. The Americans about the Americanpolitical pro- original objective of the cess.125 act was to ensure that such boats would be operatedby persons predis- posed to defend the United Statesin the event Harassment of Vietnamese of war. The U.S. Coast Guardapparently began Fishermen enforcing the Jones Actagainst Vietnamese The 1986 Commissionreport noted a general fishermen in northern Californiawaters in No- pattern of friction between Vietnamesefisher- vember of 1987. Most of theVietnamese fishermen and native fishermen in Florida, Texas,and men in northern Californiaare permanent California. The frictionwas caused by difficulties residents who have notyet met the waiting pe- in communication, the Vietnamesefishermen's riod for becoming citizens, andthus could not lack of awareness of local fishingregulations, operate their fishing boats in certainwaters and economic competition betweenestablished under the law. Fines of $500were levied against native fishermcii and the Vietnamesenewcom- fishermen found violating the law,and the Coast ers. The report documentedmany incidents of Guard threatened to seize boatsthat were oper- vandalism and violence arisingout of this fric- ated illegally. Several fishermenKaye up fishing tion, including Ku KluxKlan activity against after that, while others continued.i28 Vietnamese fishermen in Texas.The report also According to the Vietnamesefishermen, the pointed to a pattern of usingState government law had not been enforced bythe U.S. Coast action, such as restrictivelawsand regulations, Guard in recentyears, and they believe itwas against Vietnamese fishermen.L*6 being selectively enforcedagainst Vietnamese A more recent incidentdemonstrates that fishermen. The U.S. CoastGuard, however, such acts of harassmentwere not an isolated epi- contends that "[hjere in the SanFrancisco Bay sode. In 1989 Vietnamesefishermen charged Area, it has been enforcedat the same level as far oack as anybodycan remember."129 The

124 "2 Black Teens Arrested in N.Y. Racial Incident," Washington Times, May 15,1990. 125 A special panel discussion, "Toward RacialHarmony: The Flatbush Incident," sponsored by the Korean American JournalistAs- sociation at the annual convention of the Asian American Journalists Association,New York, NY, Aug. 24, 1990, The Flatbush incident tookon an international dimension when an influential monthly magazine in Korea carriedan article on the Flatbush incident. The article containsextensive quotes from the store owners imparting the impression that New York'spolice are insensitive and unresponsive to theconcerns of Korean American merchants, almost to the point of negligence. Similarly, theac- tions of city hall are also criticizedseverely. Jae-Myong Kim, "New York Produce Merchants Beleaguered By BlackBoycotters: An Interview With Jae-Bong Jang of theRed Apple Store," Wol-gan loong-ang, December 1990, pp. 510-17 (in Korean).Such coverage of racial incidents in the United Sty tes might serve to aggravaie anti-American feelingsworldwide and have an unintended rip- ple effect on our international relations. 126 Recent Activities Against Citizens and Residents of Asian Descentpp. 50-53. 127 46 U.S.C. §§8103(a), 12102(0(1),and 12110(d) (1988). 128 Susan Frcinkel, "Livelihoods on the Line: 200-Year.Old Law Unconstitutional,Viet Fishermen Say," The Recorder, 129 Ibid. Sept. 28, 1989.

40 4. Vietnamese fishermen contend further that the ident aliens to operate fishing boats in excess of Jones Act is unconstitutional, because there is 5 tons in California coastalwaters.134 no longer any overriding military need for thc law, and its enforcement deprives the fishermen Racial Harassment on College of their ability to earn a living.130 Campuses On September 27,1989, the Vietnamese Bigotry and violence against Asian Americans Fishermen Association of America and six indi- extends to college campuses,135 where the way vidual fishermen brought a suit seeking an in- the incidents are handled rever'- much about junction to stop the Coast Guard from enforcing the underlying climate of the institution. An in- the law on the grounds that itis unconstitu- cident that took place at the University of Con- tional. The next day Judge Orrick of the United necticut (UConn) at Storrs in December 1987 is States District Court for the Northern District illustrative.136 of California issued a temporary restraining order stopping the Coast Guard from enforcing On thc evening of December 3, 1987, at about 9:30, the law while the issue was being litigated. On Marta Ho, Feona Lee, and six other students of Asian October 16, Judge Schwarzer, of the same court, descent boarded a bus that was to take them to a denied application for a preliminary injunction semiformal Christmas dance sponsored by two Uni- on the grounds that the fishermen were unlikely versity dorms at the Italian-American Club in the to win their suit on themerits.131 The fishermen nearby town of Tolland. ...Marta in a black-and- appealed the denial of a preliminary injunction white, knee-length gown made of silk, which she had and at the same time filed an emergency motion borrowed from her sister, and Feona M a full-length, for injunctive relief, which was granted on No- blue silk gown that she had brought from her native vember 15, 1989.132 At that point in time, it was Hong Kong.. ..The crcwded bus held between 50 and 60 peoplesome of them drinking and yelling profan- agreed by the parties that the October 16 deci- ities. The group of eight Asian American students sion denying a preliminary injunction would be found seats scattered toward the rear of the bus. .. treated as a decision in favor of the Coast .While waiting on the bus parked in front of a dormi- Guard, and on January 24, 1990, the fishermen tory, Feona felt something land in her hair. "At first I appealed this decision. Arguments were heard thought it was just water dripping from the bus. .. on July 20,1990.133 .Then I felt something warm and slimy hit me in the Before a decision was rendered, however, face." She realized it was spit. As she stood up and Congress passed and President Bush signed leg- turned to face her attackers, she was hit again, this islation sponsored by Representative Norman time in the eye. "Who did that?" she screamed, Mineta (D-CA) that would allow permanent res- "Stop!".. When Daniel Shan, one of the eight [Asian

130 Brief for Appellants in the case of Vietnamese Fishermen Association of America v. Paul Yost before thc U.S. Court of Appeals for the 9th Circuit. 131 Vietnamese Fishermen Association of America v. Paul Yost, No, C 89-3522 WWS (N.D. Cal. Oct. 16, 1989) (1989 U.S. Dist. LEXIS 15075). 132 Ibid. 133 Ibid. 134 The law does not apply to all United States coastal waters. (Sec 46 U.S.0 59aa.) The Alaskan fishing industry had objected to having the law apply to Alaskan coastal waters for fear that Canadian fishermen could takc advantage of the law. (Katherine Bishop, "For Vietnamese-Americans, a Victory in Congress," New York Times, Oct. 31, 1990.) 135 The problem of bigotry and violence against Asian Americans in our schools is discusscd in chap. 4. 136 This account is excerpted from David Morse, "Prejudicial Studies: One Astounding Lesson From the University of Connecticut," Northeast/Hartford Couram, Nov. 26, 1989, pp. 10-32.

41 American] students, rushed over to see what was officer on duty conferred with his supervisor and told wrong, Feona was facing a group of half-dozen young them there was nothing he could do because the inci- men sitting in the back seats drinking beer, some of dent had taken p!ace in Tolland, outside UConn's ju- them chewing tobacco two of whom Shan recog- risdiction, suggesting they take their complaint to nized as football players. When Feona sat down, these state police and the campus affirmative action office. two men spat on her, hitting [Shan] as well, and yell- Only after he was confronted with the question, ing slurs such as "Chinks!" "Gooks," and "Oriental "Aren't you at least going to take a report?" he faggots!" Shan and another man in the group, Ron agreed to take a "miscellaneous" report for future ref- Cheung, approached the two men, demanding they erence. apologize. The two harassers invited them to fight, while one c` the two threw a punch at Cheung and It was nearly 10:00 p.m. that evening that the victims missed. Someone separated them, and the bus driver finally were able to talk to a state trooper in Tolland. yelled at everyone to "Sit down and shut up!" No ef- The officer advised the victims to go back to campus fort was made to put the spiders off the bus...By the police because the incident had begun on UConn time the bus pulled up to the Club, the harassment property. According to the victims, the trooper's re- had lasted nearly 45 minutes. sponse upon being told of the incident was "to laugh." He also said something like, "Boy, this guy must have The Asian Amcrican students tried to salvage the eve- been drunk out of his mind." Furthermore, Feona re- ning by dancing and staying on the opposite side of calls, "He asked me, did I sec [the man] pull his pants the room from their antagonists. But one of the two down, and did I see his penis? I said I did, and he harassers followed them repeatedly elbowing Marta's asked me, do I really know what a penis looks like?".. dance partner, making "animal sounds" and scream- .It was 11:00 p.m. when the victims finally went home ing insults. According to one witness, this harasser after being shunted back and forth all day. dropped his sweatpants, mooning her and her partner, and then danced with his penis exposed. Later he The following Monday, December 7, Maria called the urinated on a window and confronted Danny Shan in university's Office of Affirmative Action Programs a stairway, apparently trying to get him to fight... and made an afternoon appointment. When the vic- .The victims complained to three Resident Assistants, tims showed up, they were told the case lay outside upperclass students hired by the university as nominal the office's jurisdiction and referred to the Dean of authorities in the dormitories. But they were told "not Students....When Maria called the Dean's office to spoil a good time," otherwise they "would be writ- Tuesday, she learned the dean was out and his assis- ten up." When they asked permission to leave the tant offered to schedule them for later in the week. dance, they were told they could not because the RAs Maria then replied that if they did not receive prompt were responsible for the victims' safety.. ..Marta and attention, they would tell their story to the newspa- Feona called the Vernon police by mistake instead of pers. At that point the assistant invited the students to the Tolland police....A little before midnight, a come to the office to give oral testimony.... squad car drove up. Although the victims thought it was in response to their call, the squad car was re- After Maria Ho's threat to bring the incident sponding to another call stemming from an unrelated to the press, the pace of the university's re- fight. By this time thc dance was coming to an end, sponse picked up. On Thursday, December 10, and the first bus had arrived to take people home; the two perpetrators were charged with violating without making a complaint to the trooper, the group the Student Conduct Code and a hearing was got on the bus and rode back to the UConn campus.. scheduled fo- the accused. In the meantime, the ..A group photograph taken afterward at the dormi- university's director of public safety determined tory shows the brown tobacco stains on Feona's blue gown and on her wrist. that the actions that occurred while the bus was parked on UConn property were within his juris- At the insistence of Marta's sister, Maria Ho, thc vic- diction. The victims were summoned back to tims went to the campus police on Dec. 4, 1987 tore- give sworn affidavits, and warrants were ob- port the incident. After listening to their story, the tained for the arrest of tile two accused students

42 for disorderlyconduct.137 Eventually, one of thc tion requesting that "UConn President John two accused was expelledfrom school for 1 year Casteen investigate the allegations and if sub- and the other, a star football player, wasprohib- stantiated, the Dean and his assistant be sus- ited from living in the student dormitoriesbut al- pended fromparticipationinany hearing lowed to continue to play for the UConn affecting 9Illege of Liberal Arts and Sciences football team. students." The subcommittee reportalso To the Asian American community and stu- noted serious causes for concern at theStorrs dents, the "administration's treatment ofthem campus: "deep-seatedintolerance, a perceived was as bad as theoriginal incident. Perhaps absence of leadership at the top, an atmosphere worse."138 The frustration at the university's 'altogether too permissive of harassing behav- handling led to a protest fast of 8 days by an ior,' and lack of trust in theadministration."143 Asian American faculty member on the campus The report found that "deep-seatedprejudice at in the summer of1988139 and to thc univershy UConn has bred a climate in which harassment senate's passage in September 1988 of a resolu- based on race, sex, ethnic background and sexual tion mandating an investigation into the Decem- preference is tolerated by administrators, stu- members."144 Comment- ber3,1987,incident and theuniversity's dents, faculty and staff response.140The university senate's subcommit- ing on the report, one newspaper editorial noted tee on discriminatoryharassment, in its report that "without question, there areharassment released in early April 1989, noted thatthe dean problems on the campus. ...Whether the prob- of students may have mishandled thedisciplinary lem is less or greater at UConn than at other hearings on the December 1987 incident by vio- universities of equal size is not known. Whatis lating procedural rules and possibly coercingthe known is there is a problem of apparent perva- victims.141 Based on this report, the college of sive prejudice and harassment. The cure forthe liberal arts and sciences faculty passed a resolu-

university's allegedly sluggish response to its internal committee's rec- 137 Ibid., p. 19. This quickened pace provides a contrast with the ommendations on campus racism and student acts of bigotry. Forexample, at the time of the Tolland incident, the affirmative action advisory committee for the Greater I lartford campus wasconsidcring dissolving itself since "nonc of litsj proposals were acted upon" in spite of repeated recommendations. And its counterpart at Storm waswaiting for the university president's response to its recommendations submitted in July 1987. Ibid., p. 18. sentiments; "What was particularly distressing about the UConn inci- 138 p. 25. Also note the following quotes echoing similar oent, really, was the failure of the administration to respondin any meaningful way afterward." (Statement attributed to Peter Kiang, cited in ibid., p. 26); "The Asian-American victims hawcomplained repeatedly and bitterly of the treatment given them by the UConn administration. When they appeared for help tothc campus police, the Dean of Students, the residential life people, and the Office of Affirmative Action, they were first ignored, thengiven the 'run around." Paul Bock, "Institutionalized Racism at the University of Connecticut Continues; Recent Developments" (paperpresented at the 1990 convention of the Association of Asian American Studies, Santa Barbara, CA, May 19, 1990), P. 3. 139 Jean Caldwell, "A Quiet Professor Turns Protester," Boston Globe,Aug. 19, 1988, p. 2, and "UConn Professor Ends 8-Day Fast Against Racism,"Boston Globe, Aug. 20, 1988, p. 32,

140 Morse, "Prejudicial Studies," p. 28. Apr. 6, 1989, p.131; Jim Amspacher, "Ardaiolo 141 Katherine Famish, "Investigation Sought Into 11Conn I hearings," Hartford Courant, Criticized, Report Called Weak: Dean Said To Have Violated ConductCode," The Daily Campus (The University of Connecticut, Storrs), Apr. 6, 1989, p. 1. 142 Amspacher, "Ardaiolo Criticized," p. I. 143 Morse, "Prejudicial Studies," p. 28. Hartford Couram, Apr. 16, 1989, p. B-1. 144 Katherine Farrish, "Uconn Students Reflect on State of Race Relations,"

43 ailment is contained in the report if it is applied macy to the anti-Asian attitudes held by many in to the patient without delay." 45 the public and indirectly encourage anti-Asian By nearly unanimous voice vote, the Univer- activities. In a much-puHirized incident in 1990, sity of Connecticut's Faculty Senate votedon Jimmy Breslin, a promitcrit columnist for News- May 1, 1989, not to suspend the dcan of stu- day, angered at criticism of one of his columns dents for his alleged mishandling of the Decem- by a female colleague who is Korean American, ber 3, 1987, incident.146 Soon after the senate publicly referred to her as a "yellow cur" and vote, University President Casteen announced "slant-eyed."15° Newsdaymanagement's appar- that he found no evidence of wrongdoing by the ent reluctance to discipline Breslin after he had dean of students147 (who resigned in June 1989 made what to some seemed an inadequate apol- to become vice president of student life at a col- ogy, provoked accusations that they were oper- lege in South Carolina). At thesame time he in- ating under a double standard.151 The situation stituted two changes in the Student Conduct was further aggravated when Breslin made light Codc: 1) preventing students found guilty of ha- of the situation several days later, jokingon the rassment from playing sports or taking part in air, referring to his nephew's wedding, toa Ko- other activities for at least one semester, and 2) rean woman, "Now does this mean I can't go to imposing suspension or expulsion as a possible the wedding?" The next day, Newsdaymanage- punishment on every studcnt accused of discrim- ment gave Breslin a 2-week suspension.152 inatory harassment.148 The president alsoac- Breslin's comment is by no meansan isolated knowledged that he should have responded incident. In a much less publicized incident, Cliff more quickly to the incident: "In hindsight, if I Kincaid, a Washington, DC, radio personality, had known more of the incident, I would have or referredto CBS televisionanchor Connie should have acted differently.I would have Chung as "Connie Chink." Later, explaining taken a fairly strong posture."1° himself, he said, "It's a slang term. It is nota vul- gar term," and argued that it was not a term like Racial Slurs Made by Public "honky."153 Yet,a handbook for journalists. Figures sponsored by the National Conference of Chris- When public figures make racial slurs against tians arid Jews, the Asian American Journalists Asian Americans, they lend an aura of legiti- Association, and the Association of Asian Pa-

145 Editorial, "Prejudice at liConn," The Chronicle (Willimantic, Conn.), Apr. 12, 1989,p. 8. 146 Katherine Earrish, "liConn Dean's Accusers Rebuffed," Hartford Courant,p. D-1. After this vote, one of the supporters of the re . buffed motion said, "Not taking step constitutes a glossing over of misdeeds, anda confirmation of the perception...that the violation of victims' rights goes unpunished." ((bid.) 147 Morse, "Prejudicial Studies," p. 28. 148 Ibid. 149 Ibid. 150 Constance !lays, "Asian-American Groups Call for Breslin's Ouster Over Racial Slurs," New YorkTimes, May 7, 1990. 151 A Washington Times editorial contrasted Breslin's treatment to that of CBScommentator, Andy Rooney, who was suspended for making antihomosexual remarks. ("Tabloid Backs Breslin, But Few Others Do," WashingtonTimes, May 8, 1990.) Othas pointed out that Newsday had previously ousted an editor who had been accused of makinga racist remark about a black colleague. (Lee Michael Katz, "Columnist Under Eire: Outrage at Breslin's Ethnic Slur," USA Today,May 8, 1990.) New York City's former mayor, Ed Koch, was quoted as saying, "If he'd said the same thing about blacks they would have fired him."(Eleanor Randolph, "In N.Y., The Breslin Backlash: Asians Demand Ouster after Newsday Tirade," WashingtonPost, May 8, 1990.) 152 David Braaten, "A Jest Goes Sour; Breslin Gets Hook," Washington Times,May10, 1990. 153 Jeffrey llorke, "On Radio, A Racial 'Joke': WNTR Host Takeson Connie Chung," Washington Post, (date unknown), 1990.

44 cific American Artists, defines the term "chink" Statistics on Hate Crimes as: Against Asian Americans racial slurA derogatory term for Chinese and Chi- A thorough understanding of hate crimes nese Americans that some believe was derived from against Asians is required before effective mea- the Ch'ing Dynasty, which ruled during the period of suresto combat such crimes can be im- the first major migration of Chinese immigrants. plemented. Whereas the study of individual Avoid excent in direct quotes and specific historical incidents of violence provides insight into the references.r34 nature of anti-Asian hate crimes, statistical data can help to assess the extent of the problem and Kincaid's ignorance is illustrative of insensitiv- to uncover patterns in these incidents. Unfortu- ity in the media to Asian Americans.155 nately, an adequate source of comprehensive Racial remarks made by politicians can be statistical information on hate crimes does not even more damaging, because they suggest that now exist. The Hate Crimes Statistics Act en- the political process itself is racist. In January acted in 1990 by Congress provides for collec- 1990, John Silber, candidate for the Democratic tion of hate crimes statistics at the Federal level nomination for Governor of Massachusetts, and offers hope that national data on hate called Massachusetts a "welfare magnet" that crimes will become available within the next few has "suddenly become popular for people who years. For now, however, one must be content are accustomed to living in the tropical climate." with the fragmentary evidence provided by local He was also quoted as saying, "Why should Low- hate crimes statistics. ell [Massachusetts] be the Cambodian capital of America? Why should they all be concentrated in one place? This needs to be examined."156 Local Hate Crime Statistics A few cities and States across the Nation do Cambodian community leaders in Lowell found collect statistics on hate crimes. Most of these these remarks demeaning and offensive. They considered Silber's remarks another reflection data collection efforts were initiated within the of the anti-Asian bias that had led to the "En- last 2 or 3 years, and it is apparent that the in- glish-only" ordinance that had recently been herent problems in collecting hate crime data have not yet been solved. One major problem in passed by the Lowell City Council. Silber we.nt on to win the Democratic noraination, but in the collection of accurate hate crime data is that November 1990 he narrowly lost his bid to be- hacrimes are underreported by the victims of come Governor of Massachusetts. the crime. This is particularly true in the case of the Asian American community, especially recent immigrants, for a variety of reasons, including language problems, distrust of the police,157

154 Bill Sing, ed., Asian Pacific Arnrricans: A Handbook on How to Cover and Portray Our Nation's Fastest Growing Minority Group (National Conference of Christians and Jews, Asian American Journalists Association, and Association of Asian Pacific American Artist, 1989), p. 49 (hereafter cited as Asian Pacific Americans: A Handbook). 155 In a Mar. 26, 1990, letter to Tom Krimsier, Vice President and General Manager of WNTR Radio, S.B. Woo, National President, and Melinda Yee, Executive Director, Organization for Chinese Americans, expressed outrage at Mr. Kincaid's remarks, explaining "Thc word 'Chink' is clearly derogatory and a racial slur, similar to words such as 'Nigger' or 'Spic,'" In response, Mr. Krimsier apologized for the incident, noted that Mr. Kincaid has aLso apologized on the air, expressed the belief that Mr. Kincaid's remarks were "unintentional on his part," and promised to prevent any reoccurrence. Tom Krimsier, letter to S.B. Woo and Melinda Yee, Mar. 30, 1989. 156 Constance L. Hays, "Remarks Inflame Massachusetts Contest,"New York Times, Jan. 27, 1990.

45 the desire not to cause problems, and -shame at Los AngelesThe Los Angeles County Com- becoming a victim of a crime. As a result, many mission on Human Relations has been collecting hate crimes are never reported to the police. A data on crimes motivated by racial and religious second major problem in the collection of accu- bigotry in Los Angeles County since 1980. In rate hate crime data is that even when a racially 1990 the commission issued a report on trends in motivated crime is reported to the police, the hate crimes over the decade of the 1980s. In the police often do not report the crime as a hate 9 years that the Commission had been tracking crime. For instance, a racially motivated incident racially motivated hate crimes, 14.9 percent of that resulted in a mugging might be classified as the victims were Asian (compared with 62.0 per- a simple assault and battery. Police departments cent black). Between 1986 and 1989, when the generally do not provide sufficient training to number of hate crimes reported was larger, pre- police officers on the beat on how to recognize sumably because of a better reporting system, hate crimes. Only some larger jurisdictions have 15.2 percent of hate crime victims were As- formed special units whose mission it is to col- ians!An analysis of the individual crime., lecthale3 crimestatistics and combat hate listed at the back of the 1988 and 1990 annual crimes. reports of the commission reveals that, of the 32 Because of these limitations, it is difficult13 hate crimes against Asians in 1988 and 1989, 10 assess the representativeness of currently avail- (or roughly one-third) were against businesses, 2 able data on hate crimesIt seems clear that were in schools, 1 was against an ethnic church, these data are likely to reflect only a relatively and the remaining 19 (or roughly two-thirds) af- small subset of racially motivated crimes. None- fected victims in their residences. Crimes ranged theless, local hate crimes statistics provide some from graffiti and property vandalism1 to hate lit- basis for assessing the nature and extent of hate erature, cross burning, and assault.' crimes against Asian Americans. A review of BostonAn analysis of data on civil rights vi- hate crimes statistics reports from cities across olations provided by the Community Disorders the country reveals that Asians are frequently Unit of the Boston Police Department over the victims of hate crimes. years 1983-87 found: "When compared to the PhiladelphiaA 1988 Philadelphia Human population size of the various racial groups in Relations Commission report revealedthat the city of Boston, the Asian community in gen- while Asians made up under 4 percent of eral, and the Vietnamese community in particu- Philadelphia's population, they were the victims lar, suffer significantly higher rates of racial in 20 percent of the city's hate crimes. Asians violence than other racial or ethnic groups in the city:462 were more likely on a per capita basis to become Out of 452 incidents, 104 involved victims of hate crimes than whites, blacks, His- Asian victims, of whom 53 were Vietnamese.163 panics, or Jews.159

157 See chap, 3 on police-community relations for a discussion of the distrust many Asian Americans feel for the police. 158 Examples are New York City and Boston. 159 Philadelphia Commission on Human Relations,State of Intergroup Harmony: 1988,pp. 53-55. 160 Los Angeles County Commission on Human Relations,Hate Crime in the 1980's: A Decade of Bigotry,A Report to the Los Angeles County Board of Supervisors (February 1990), p, 9. 161 Los Angeles County Commission on Human Relations,Hate Crime in Los Angeles County, 1988,andHate Crime in Los Angeles County, 1989. 162 Jack McDevitt, "The Study of the Implementation of the Massachusetts Civil Rights Act," Jan, 25, 1989, p. 9. 163 Ibid., table I.

46 Asians were unlikely to be perpetrators of racial conclusion that there needs to be a mechanism incidents.164 to gather these statistics on a nationalbasis."169 ChicagoTheChicagoCommissionon A mechanism for nationwide data collection Human Relations reported only 9 bias crimes was finally provided by the Hate CrimesStatis- againq Asians in 1989, out of 185total.165 How- tics Act, enacted on April 23,1990.1" The act ever, an independent group,Asian Human Ser- calls for the Attorney General to collect nation- vices, reported 30 bias crimes against Asians in wide data on "the incidence of criminal acts that 1989, up from 20 the previousyear.166 The dis- manifest prejudice based on race, religion, ho- crepancy between the number ofanti-Asian inci- mosexuality or heterosexuality, ethnicity, or such dents reported to Chicago's Human Relations other characteristics as the Attorney General Commission and the number of incidents known considers appropriate" for a period of 4 years to an Asian community support groupillustrates and to publish annual reports analyzing the the difficulty in obtaining reliable data on hate data.171 crimes. Plans for implementing the Hate Crimes Sta- New YorkNew York City's Police Depart- tistics Act were drawn up by the Uniform Crime ment has a bias unit similar to Boston's, with 19 Reporting Section of the Federal Bureau of In- investigating officers. In 1988 the bias unit re- vestigation,and nationwide datacollection ported 550 hate crimes, of which 24 were against began on January 1,1991.172 The Uniform Asians.167 In 1989 there were 13 hate crimes Crime Reporting Section prepared a pamphlet against Asian Americans, and in 1990 there were entitled "Hate Crime Data Collection Guide- 28.168 lines" to inform police departments about what data to collect and report. The guidelines define The Hate Crimes Statistics Act of and give examples of hate crimes, require that all crimes be evaluated at two levels ofreview 1990 for whether or not they are motivated bybias, Because the absence of nationwide data on and specify the information police departments hate crimes severely hampers efforts to monitor are to provide abouteach hate crime.173 The activities against minority groups, the 1986 Com- section also developed a "Training Guide for mission report on anti-Asian activities concluded Hate Crime Data Collection" and has sponsored that these "limitations lead inescapably to the

164 Ibid., p. 10. 165 Chicago Commission on Human Relations, Bias Crime Report, 1989, p. 3. 166 Michael Selinker, "Reports of Bias Crime Decline in 1989," The Chicago Reporter, vol.19, no. 3 (March 1990), p. 6. 167 Howard Kurtz, "New York Measures Surge in Bias-Related Crime: Authorities SeeViolence Against Minorities, Gays as Symbolic of National Trend," Washington Post, Oct. 28, 1989. 168 Asian American Legal Defense and Education Fund, Outlook (date unknown). 169 Recent Activities Against Citizens and Residents of Asian Descent, p. 57. 170 28 U.S.C. 534. 171 Id. 172 Harper Wilson, Chief, Uniform Crime Reporting Section, Federal Bureau of Investigation,telephone intemiew, Jan. 31, 1991 (hereafter cited as Wilson interview). 173 The information required includes: the type of offense; the location; the bias motivation(racialanti-white, anti-black, anti-Amer- ican Indian/Alaska Native, anti-Asian/Pacific Islander, anti-Multi-Racial Group, ethnicity/nationaloriginanti-Arab, anti-Hispa- nic, and anti-Other Ethnicity, religious and sexual); victim type (individual, business,financial institution, government, religious organization, society/public, othcr, unknown); the number of offenders; and the race of the offenders.(U.S. Department of Justice, Federal Bureau of Investigation, Uniform Crime Reporting, "Hate Crime Data CollectionGuidelines.")

5 7 47 six regional training conferences, whichwere to Community Disorders Unit, which sorts through be completed by the end of October 1991.174 all police reports to identify potential racial inci- If the Hate Crimes Statistics Act is to be ef- dents and then assigns officers to investigate the fective, however, it will be necessary to take ad- incidents.178 ditional measures to ensurethat the data It is clear from the experiences of localities gathered under the act are accurate. Local com- across the country that effective implementation munities that do gather statistics on hate crimes of the Hate Crimes Statistics Act may require have experienced considerable difficulties in ob- more than developing a national reporting sys- taining accurate information. For instance, a re- tem for hate crimes. Additional ingredients nec- cent report evaluating Boston's hate crime essary for a successful implementation of the act statistics finds that victims of all races are un- include: likely to report racial incidents, are often reluctant to identify them as racially motivated, and 1) improved outreach to victim communities even when they have reported them, are reluc- to encourage hate crime victims to recognize tant to cooperate with police investigations.175 and report hate crimes; Furthermore, the report finds that officers on 2)improved police training so that officers the scene are unlikely recognize incidents as on the beat can identify hate crimes; hate crimes: only 19 of the 452 hate incidents in 3) the formation of new police units that spe- the report's sample that were subsequently iden- cialize in identifying, investigating, and re- tified as hate crimes were initially categorized as porting hate crimes,aswellasguiding civil rights violations by officers on the scene.176 community outreach and police training ef- Underreporting of hate crimes by victims and forts. difficulties encountered by police officers on the scene in identifying crimes that are racially moti- To ensure that localities take the necessary vated are not limited to Boston. These appear to measures to provide accurate hate crime data, be nationwide problems.177 the U.S. Department of Justice will need to pro- The Boston report concludes that for hate vide guidance to local police departments. Thus, crime data to be accurate, special police units effective implementation of the Hate Crime Sta- with the responsibility of investigating andre- tistics Act will require more resources for local porting hate crimes are necessary. As anexam- police departments and a significant Federal ef- ple, the report cites Boston Police Department's fort to ensure accurate data collection.

174 Wilson interview. 175 McDevitt, "The Study of the Implementation of the Massachusetts Civil Rights Act." 176 Ibid., p. 24. 177 For example, Jerry Chagala, Director of San Diego County's human relations commission, which compileshate crime data for San Diego County, cited several exampk3 where police officers incorrectly identified crimesas racially motivated, including a mother- son fight (mother and son were black) and a burglary of a Filipino woman's house. Jerry Chagala, interview, Mar. 5, 1990.) 178 McDevitt, "The Study of the Implementation of the Massachusetts Civil Rights Act."

48 5 Chapter 3 Police-Community Relations

There are serious fissures in the relationship Asian Americans' Access to between the Asian American community and the police that leave many Asian Americans Police Protection without effective access to police protection and For many Asian Americans, access to police some with the fear that they themselves may be- protection is severely limited by their lack of En- come the victims of police misconduct. Most po- glish proficiency, by their reluctance to callupon lice departments are unable to meet the needs the police for help, or by both. When Asian of the Asian American communities theyserve. Americans come into contact with the police, This inability stems from a variety of sources, language barriers produce gaps in communica- ranging from insufficient resources and police tion that too often result in Asian Americans' ignorance of and insensitivity toward Asian cul- being denied equal protection under the law. tures to outright police hostility towards Asian The first subsection below discusses the ade- Americans. Although many police departments quacy of the interpretive services used by the are making efforts to reach out to Asian Ameri- police and then gives examples of how Asian cans, these efforts are, with some exceptions, in- Americans suffer when the police fail to provide adequate. such services. Many Asian Americans, especially To provide a greater public awareness of thc immigrants, are reluctant to seek poi;ce protec- problems and encourage possible solutions, this tion and tend not to report crimes. This consti- chapter examines several aspects of police rela- tutes another major barrier to Asian Americans) tions with the Asian American community. It access to police protection, which is discussed in firstdiscussesmajorbarrierstoAsian the second subsection below. Americans' access to police protection, particularly language barriers and underreporting of Language Barriers crime. It then addresses the problem of police Because many Asian Americans, recent im- misconduct, including harassment and mistreat- migrants in particular, have limited English pro- ment of Asian Americans, and considers the un- ficiency, they need interpreters to communicate derrepresentation of Asian Americans among effectively with the police. Yet, staff research in- the police. Some police departments have made dicates that interpretive services provided by po- noteworthy efforts to reach out to Asian Ameri- lice departments are generally inadequate to cans, and a fourth section describes some of meet the need. For instance, according to a sur- their approaches. The chapter concludes with a vey of 20 California law enforcement jurisdic- case study of police-community relations in one tions carried out for the California Attorney city: Lowell, Massachusetts. General's Asian/Pacific Advisory Committee, "[h]alf of the agencies said they do not have sufficient interpreters and stated they could always use more."1

"Survey Analysis"summary of the results of a telephone survey of 20 selected law enforcement jurisdictions in Californiacarried

49 Even for those police departments using in- the paucity of interpreter service, the California terpreters, the survey does not distinguish be- Attorney General's Asian and Pacific American tween untrained persons who volunteer their Advisory Committee stated that, in California: services from time to time and bilingual police officers or paid agency staff. Many police de- [o]fficers with bilingual/bicultural skills in Southeast partments rely on local Asian American commu- Asian cultures were rare, even in larger police and nity organizations to supply interpretive services sheriff's departments whose jurisdictions include sub- voluntarily on an emergency basis. Reliance on stantial refugee populations. The survey indicated voluntary interpretive services can have serious that among sworn officers, their language and cultural drawbacks, however. Voluntary services are not skills were predominantly in Chinese and Japaner, always available when they are needed,2 and rather than in languages of those least acculturated. community organizations often find their opera- The San Diego Police Department, among the tions disrupted and their own missions difficult best, has 5 officers who speak Southeast Asian to fulfill because of interruptions occasioned languages, 18 who speak Tagalog, and 2 who when they supply interpreters to the police and speak Japanese.6 other agencies, such as local government, the Furthermore, some departments, although courts, and healthfacilities.3 Indeed, discussing they may have arranged to provide interpretive the Philadelphia Police Department's use of vol- services, have not fully informed police officers unteer interpreters, the Philadelphia Mayor's on the street or the Asian American community Asian American Advisory Board cautioned that about the availability of these services. For inpolice reliance on volunteer interpreters, in ad- stance,inPhiladelphia,the May Gr's Asian dition to placing undue strain on the volunteers, American Advisory Board found: may result in inaccurate information and poses pr Jblems ofconfidentiality.4 The Police Department. . .claims that all Police offi- Even when police departments do have paid cers are instructed to contact specific bilingual Police interpreters and/or bilingual officers, they often personnel for assistance. In fact, the Board receives do not have enough of them or do not use them reports from private citizens who are routinely called effectively. Even where police departments have by Police officers for interpretive services even when staff interpreters for some Asian languages, they the Police Department has personnel who are hired typically do not have interpreters who can col- to translate in the relevant language; moreover, the lectively cover all Asian languages. Concerning Police officers deny knowledge of such bilingual per-

out by the Division of Law Enforcement, California Department of Justice, for the Attorney General's Asian/Pacific Advisory Committee, provided by Barbara Takei, committee consultant. 2 In San Diego, for instance, according to a police deputy, "[v]arious Asian community groups also offer help with interpreters on an emergen4 basis, but itcan take an hour to get one to the scene of a crime or emergency." Gregory Gross, "In Multilingual Times, Cops Scramble to Cope," San Diego Union, Aug. 14, 1989. 3 Miirgaret Penrose, Union of Pan Asian Communities, San Diego, interview, Mar. 5, 1990. 4 The advisory committee's report states: "Private citizens who may be willing to act as interpreters in emergencies report that they are routinely called upon, without regard to time of day or availability of City interpreters. These volunteers quickly become over- utilized, putting a strain on their own employment and peisonal lives. In addition, the use of volunteers, although valuable and sometimes necessary, presents problems of confidentiality and accuracy." City of Philadelphia, Report of the Mayor's Asian Arneri- can Advisory Board (Sept. 7, 1989), p. 3 (hereafter cited as Philadelphia Report.) 5 State of California, Attorney General's Asian Pacific Advisory Committee, Final Report (December 1988), p. 64 (hereafter cited as Attorney General's Report) 6 Gross, "In Multilingual Times."

50 sonnel and when informed oft/en persist in seeking as- calls, of which 60 used the Montereyservice.10 sistance from private citizens. The Philadelphia Mayor's Asian American Advi- sory Board observed,however, that not all Access to interpretive services is particularly Asian-language 911 callers were offered the critic& in emergency situations, and it is in emer- Monterey interpretive service: gencies when they are the least available. It is extremely rare for 911 operators to speak an [The Police Department has repeatedly assured the Asian language. Philadelphia and other cities Board that persons of limited English proficiency who have attempted to cope with emergency situa- call the emergency 911 number are automatically con- tions by using the services provided by aprivate nected with an interpretive service that willideutify organization in Monterey, California, which pro- the caller's language and provide assistanceby a col- vides interpretation over the telephont.In lege-educated interpreter. In fact, the Board contin- of persons who call 911 and Philadelphia the service works as follows. ues to receive reports who are told that theuannot be helpedbecause they When a non-English 911 call comes in,if it is do not speak English. in Spanish, it is taken by one of theSpanish- speaking 911 operators working for thepolice The cost of using the Montereyinterpretive department. If the call is not in Spanish, the911 service is relativelymodest,12 but despite the low operator receiving thecall speed dials the cost, most police departmentsdo not subscribe supervisor's station, and the supervisor speed to the service. dials the Monterey number. The caller,the op- In addition to the Montereyinterpretive ser- erator, and Monterey then talk on aconference vice, some police departments haveadopted call. The Monterey service determinesthe lan- other approaches to providing emergency ser- guage spo9ken by thecaller and provides an in- vices to kAan-speaking 911 callers.In San terpreter. Diego, for instance, the police departmentis A police department spokesman said thatthe teaching the residents of Southcast Asian ances- delay in responding to the caller is at most a try to dial 911, say "Help,help, help," and leave minute and usually mucl- less. Only a verysmall the phone off the hook. The police tracethe call proportion of the city of Philadelphia's 911 calls and automatically dispatch anofficer to the uses the Montereyservice. As an example, in 1 scene.13This approach has the drawback of not month, Philadelphia had a total of 230,000911

7 Philadelphia Report, p. 3. Ragsdale Drive, Monterey, CA 93940. The AT&T Language operates 8 The service is provided by AT&T Language Line, 171 Lower both for-profit and not-for-profit services. Not-for-Frofitservices are offered to public agencies, such as police departments, gov- besides the Philadelphia ernment agencies, schools, and hospitals. Theirservices are used by hundreds of law enforcement agencies Police Departmcnt, including the California Highway Patrol,New York City's 911 services, and the Miami Police Department. fluent En- They hire staff to meet the anticipated needs of their clients.Staff are usually native speakers of the foreign language and National Sales glish speakers, are college educated, and have passed arigorous telephone interpretation test. Harry Moedinger, Manager, AT&T Language Line, telephone interview, Feb. 27,1991 (hereafter cited as Moedinger interview). interview, Feb. 7, 1990. 9 Capt. Howard Farkas, Philadelphia Police Department, telephone 10 Ibid.

11 Philadelphia Report, p. 3. $1,000 sign-on fce, and $1.94 per minute of service, with a mini- 12 The not-for-profit fees for AT&T Lanr 3ge Line are: a one-time mum monthly fee of $20. Moedingerinterview. Department, telephone interview, Jan. 31, 1990 (hereafter cited 13 Donald K. Abbott, Indochinese Liaison Officer, San Diego Police as Abbott interview).

51 permitting the caller to receive help immediately peated experiences is one in which theperpetra- over the phone, nor does it help to ensure that tor is allowed to go free and the victim isar- the police officers dispatched to thescene will rested."15 These problemsare not limited to be able to speak the caller's language. California. In Philadelphia, the Mayor's Asian A serious consequence of the general inade- American Advisory Board identified "the failure quacy of police interpretive services is that when of the Police to solicit or record the testimony of Asian Americans with limited English profi- Asian Americans in interracial conflicts"as an ciency are involved in incidents that requirepo- issue of concern in the Asian Americancommu- liceintervention,they often have difficulty nity.16 To illustrate thisproblem we describe gei.ing the police to understand their side of the below several examples of situations in which story. It is rare for the police to use official inter- barriers to communications resulted in the mis- preters in minor incidents, although sometimes carriage of justice. they enlist the help of personson thescene.14 In January 1987 Mr. Huang, a Chinese Sometimes, lacking immediate access to inter- American who spoke no English, was givena preters, the police do not even attempt to take ticket for double parking. According toa news- information from limited-English-proficient paper account of the incident provided by the Asian Americans involved in an incident. Other Coalition Against Anti-Asian Violence he tried times, they misinterpret the innocent silenceor to explain himself, and then sat in the car to wait attempts of Asian Americans to make them- for the officer to give him his ticket. The officer selves understood as an admission of guiltor not only gave him the original ticket for double misconstrue faltering English and agitated be- parking, but also gave him a second ticket and havior as indicating hostility or defiance. Staff then walked away with Mr. Huang's driver's li- heard of many instances, ranging from trafficac- cense. Mr. Huang followed the police officer to cidents to physica altercations, in which thepo- ask for the return of his license, at which point lice, bascd on only the partial information the officer handcuffed him, shoved him around, obtained from English-speaking witnesses, cited and took him to the police station. Mr. Huang or arrested allegedly innocent limited-English- was charged with traffic violations, resisting ar- proficient Asian Americans and let English- rest, and harassing a police officer? speakingpartiesgofree.TheCalifornia In 1989 a Cambodian was rear-ended bya Attorney General's Asian and Pacific Islander motorcyclist in Stockton, California. When the Advisory Committee observed that when Asian police arrived on the scene, they listened only to Americans are victims, "communication barriers the motorcyclist, who was white, and then began between the police and the victimcan create to rough up the Cambodian driver and pushed major problems. One of the most commonlyre- him against his car.18

14 Asian-language speakers on the scene are not always unbiased observers. For instance,as discussed in greater detail in chap. 7, the husbands of battered Asian American wives with limited English proficiencyare often used as interpreters by the policc even when the Asian wives have called to seek police protection. Moreover,even when the Asian-language speakers do speak English, they themselves may have limited English proficiency, and theymay not be familiar with specialized police terms or the terms necessary to describe an accident or other incident. Thus they are often of limited value for policeofficers who need effective two-way communication with witnesses. 15 Attorney General's Report, p. 61. 16 Philadelphia Report, p. 6. 17 "Huang Jin Bao UpdateCentre Daily News Interview Reveals MoreDetails," New York Nichibei, Apr. 9, 1987. 18 I3oon Heuang Khoonsrivong, Executive Director, RefugeeResource Center of the Lao Khmer Association, interview in Stockton,

52 f") In a similar incident in Fresno, California, against Asian Americans are reported to thepo- the car driven by a Hmong man was rear-ended lice, and several jurisdictions estimate that the by a car driven by a white woman. When thepo- percentahe of crimes report( I is as low as 10 lice arrived on the scene, they talked only to the percent.Tiis underreporting of crime consti- white woman and then issued the Hmong1man a tutcs a major barrier to police access by Asian citation for rear-ending the whitc woman.9 Americans. In a Southern California shopping center, a An often-cited reason for why Asian Ameri- white man provoked a fight with a Vietnamese cans seldom seek police protection is that Asians man. The Vietnamese man called the police. are distrustful of the police. Many immigrant As- When the police arrived, they asked the white ians bring with them a legacy of distrust ofau- man to explain what had happened, but did not thorityresultingfromtheirunfortunate ask the Vietnamese man for his side of the story. experiences with governmental or law enforce- The Vietnamese man was arrested, charged, and ment agencies in their countries of origin. 'This he later pleaded guilty to disorderly conduct.2° distrust is aggravated by poor communications On January 31, 1991, New York City traffic with the police, due not only to the language police severely beat Zhong Guoqing, a Chinese barriers discussed above, but also to difficulties immigrant, whom they had pulled over for alleg- in bridging the cultural gap that exists between edly running a red light. Mr. Zhong apparently many Asian Americans and the police. Few po- did not lerstand the police officer's request lice officers across the country have been given for his registration and got out of his car instead. sufficient training about Asian cultures, and as a The police officer became angry and asked him, result, many Asian Americans receive culturally "Are you a wise guy?" and then pushed him insensitive treatment from police officers. For against the car, handcuffed him, and beat him instance, when police officers are uninformed severely about the head. Mr. Zhong was charged about the traditional Hmong healing practice of with assaulting police, resisting arrest and ob- "coining" their children, which leaves bruises structing governmental administration. He spent and red marks on the children's skin, they may the night in the hospital recovering from his treattheparentsaschildabusers. Asian wounds, and he may have lost partial vision in Americans' distrust of the police is enhanced one eye. He may bring police brutality charges when they hear of or encounter instances of po- against the city.21 lice misconduct such as those discussed in the next section. Finally, Asian Americans may feel Underreporting of Crime alienated from and frustrated by the unrespon- For a variety oi reasons, including the difficul- siveness of local authorities at all levels, as in the ties in communicating with the police cited case of Lowell, Massachusetts, detailed below. above, many Asian Americans, especially im- Whatever the reasons for Asian Americans' dis- migrants, are reiuctant to seek police protection trust of the police, for Asian Americans to have and do not report crimes when they occur. In full access to police protection, that distrust California, for instance, most police departments must be dispelled. estimate that only 40-50 percent of crimes

CA, Feb. 27, 1990. 19 Ibid. 20 Interview with members of the Santa Ana Vietnamese community, Santa Ma, CA, Mar "wo. 21 Asian American Legal Defense Fund, "Chinese Charge Police Brutality," Outlook (t, 22 Attorney General's Report,p. 62.

53 f; 3 Other factors also contribute to the underre- Police HarassmentThere have been inci- porting of crime by Asian Americans. One of dents across the country of police harassment of these is immigrant Asians' ignorance of their Asian Americans, especially Asian American rights under the American judicial system. Most youth. In the absence of systematic monitoring new immigrants arrive in this countrywith very or data gathering, it is not possible to assess the little knowledge of our laws and civil rights tradi- extent of police harassment of Asian American tion. They may not know what is and what is not youth. However, community leaders and civil against the law, how to report a crime, what rights advocates across the country have advised their rights as victims are, and how to pursue re- Commission staff that undue police harassment course when their rights are violated.Additional of Asian American youth is a common occur- factors that may contribute to the underreport- rence. Over the past few yearsAsian youth ing of crime by Asian Americans are feelings of gangs have increasingly been terrorizingAsian shame at having become victims, fear of retribu- communities across the country. As a result, in tion by the perpetrator (coupled with a lack of many jurisdictions, police believethat Asian confidence in police ability to protect them from American teenagers are heavily involved in gang such retaliation), and reluctance to undertake activities, and it is alleged that they occasionally the time-consuming and stressful process of use this presumption as a justificationfor stop- dealing with the police at a time when their lives ping young Asians in an apparently random fash- are already complicated bythe stresses and ion and asking intrusive questions or detaining strains of adjusting to a new homeland. En- them. hanced efforts on the part of police depart- The following is a summary of an incident that ments,localgovernments,and community took xlace in Hercules, California, in August groups to infot m AsianAmericans of their 1989.' rights, to describe police procedures, to dispel Historicallyasmall,predominantly white Asian American distrust of the police, and to town of 1,000 residents, Hercules has mush- reach out to Asian Americans in general would roomed in recent years to 17,000 residents, 25 help to resolve the problem of underreporting. percent of whom areFilipino.24 At the time of the incident in question, there had been a gen- Police Misconduct eral pattern of harassment of Filipino youngsters Police misconduct towards Asian Americans by Hercules and Pinole (a neighboring city) po- fuels the Asian American community's distrust lice. Allegedly, the police frequently stopped fornoapparentreason, ofthepoliceandcontrib nestoAsian youngFilipinos Americans' feeling that tlic,y are treated as sec- searched their car trunks, and asked thcm if they occasionally the po- ond-class citizens. Staff learned about instances were members of gangs, and of police misconduct in various parts of the lice broke up group activities, such as basketball in country, ranging from harassment to cases of se- games, on public property. Until the incident rious brutality against Asian Americans. August, the parents of the Filipino teenagers

23 For more details on the incident and its resolution as described by the city manager of Hercules, seeMarilyn E. Leuck, City Man- ager, city of Hercules (CA), letter to James S. Cunningham, Assistant StaffDirector for Programs, Policy, and Research, U.S. Com- mission on Civil Rights, re Comment on Draft Report: Civil Rights Issues Facing Asian Americans in the1990s, Oct. 4, 1991, in the appendix. 24 1990 Census data provided by Marilyn Leuck, City Manager, Hercules, CA, and Johnny Ng, "FilipinasCharge Bias Against Hercules Cops," Asian Week, Dec. 22, 1989.

f; 4 were unaware of thesituation, because their had been held was 3 hours and 45minutes;29 children were afraid to tell theirparents.25 that photographing and fingerprinting was war- According to a complaint filed on November ranted undcr thecircumstances;30 that it had 17, 1989, with the Hercules Police Chief onbe- been too noisy in the booking roomfor the half of 11 Hercules teenagers and their parents, youths to call their parcnts, but that officers had on August 28, Herculespolice, responding to a contacted the parentsinstead;31 and thc reason complaint that a fight was taking place, arrested one girl had beenrefused permission to use the 18 youths who were in thc vicinity ofthc fight, bathroom was that thcrc was no female officer all of whom were Filipino, Latino, orblack, and to accompanyher.32 The city manager further charged thcm with disturbing the peace and tres- said that there was no evidence that thepolice passing. White youth who were in the vicinity officers had used excessive force or sought to in- were allegedly notdctaincd and told by the offi- timidate the youths.33 cers to go home. Thecomplaint charged that the The youths' parents reached a settlementwith arrested youth, some of whom wcrc unnecessar- the city of Hercules at thc end of 1990.The city ily handcuffed, were driven to the policestation agreed to modify its procedures to allowde- and detained for "from two to fivehours";26 that tained youth to phone home and to givethem the youths were photographed andfinger- privacy in bathrooms. Furthermore, therehave printed; that several of thc youths wererefused been no reports of policeharassmentin permission to call their parcnts; and that onegirl Hercules since the complaint was filed in No- was rcfuscd permission to uscthe bathroom for vember 1989.34 Tensions may have beenfurther over an hour and ahalf. The complaint charged eased following a Contra Costa HumanRights further that the arresting officers used excessive Commission Hcaring on unfair treatment of mi- force and had sought to intimidate the youths, nority youth by school and law enforcementoffi- including threatening to hurtthem.27 cials held on February 10, 1990, at which the Responding to the allegations, the Hercules Filipino parents and students (along with other city manager denied that the Hercules police minorities) testified.35 had selected minority youth for detention, point- A serious incident of police harassmentof ing out that they had detained "only those indi- Asian Americans in Revere, Massachusetts, viduals who the officer had reasonable cause to which has a large Southeast Asian (largely Cam- believe had violated thc law. .."28 The city man- bodian) population, is recountedbelow.36 ager also said that the longest anyof the youths

25 William Tamayo, Esq., Asian Law Caucus, telephone interview, Jan.22, 1990. Union 26 William R. Tamayo, Esq, Asian I .aw Caucus, and MarkMorodomi, Esq., and John M. Crew, Esq., American Civil Libertics of Northern California, letter to Hercules Chit i of PoliceRussell S. Quinn, Re Complaint of Police Misconduct andRequest for Administrative Investigation, Nov. 17, 1989, p. 4. 27 Ibid. William Tamayo, and John Crew Re City of Hercules' 28 Marilyn Lcuck, City Manager, Hercules (CAj, letter to Mark Morodomi, Response to Complaints of Police Misconduct on Aug. 28, 1989, Feb.13, 1990, p. 4 (hereafter cited as Hercules response). 29 Ibid., p. 8. 30 Ibid., pp. 6-7. 31 Ibid., p. 7. 32 Ibid., p. 10. 33 Ibid., pp. 6, 9-10. 34 William Tamayo. Asian Law Caucus, telephone interview, Jan. 9, 1991. 35 Contra Costa County (CA) I luman Relations Commission, Reportof the Hearing on Youth in Contra Costa Cowuy (Feb. 10, 1990).

55 1;5 On June 1, 1991,a young Italian American try, yet these incidents received little man who had recently moved to Revere national was publicity. Furthermore, itappears that the police murdered. Witnesses said that he was brutally officers involved in theseincidents are not al- beaten and stabbed repeatedlyby a group ofways disciplined, in part because of the Asian men. The Revere Police reluc- Department, tance of many Asian Americansto which has no Asian American filea police officers and complaint against the police.Some illustrative has no access to interpreters,was unable to examples are described below. solve the case and apprehend the murderers One morning in early January1987, New quickly and came under increasingcriticism from York City police arrivedat the door of the the victim's family. Chinatown apartment ofa Chinese couple On July 1, in an attempt to force information named Wong to followup on a complaint by a about the murder to the surface,a team of 40 cable-television serviceman thatthe Wongs Revere police officers, along withrepresenta- were illegally using cable service and had threat- tives of the Immigration and Naturalization Ser- ened him with a knife. When theWongs an- vice, made a 2-hoursweep through a Cambodian swered the door, they askedto see a warrant. neighborhood in search of persons with out- The police allegedly responded bybeating down standing warrants and possible illegalaliens. the door and hitting both of theWongs (Mrs. "We wanted to break open a case,"37 said one of Wong was hit by handcuffs and subsequentlyre- the police officers involved in thesweep. Cam- quired 12 stitches in the face). TheWongs and bodian Americans living in Reverewere fright- two relatives, named Woo, whowere also in the ened and angered by the policesweep. apat tment, were all arrested. According to the Staff were also told about incidentsof police Wongs, the police asked them, "Whydon't you harassment in Lowell, Massachusetts, and San Chinese go back to China?" TheWongs and the Diego. In Lowell there was an alleged pattern of Woos were charged with second-degreeassault, Massachusetts State police officersrandomly resisting arrest, and obstructinggovernmental stopping Cambodian youth drivingon sre administration. They were not releaseduntil the roads and searching theircars for weapons. A followingafternoon.Although the Aarges couple of years ago, police in SanDiego alleg- against the Wongs and the Wooswere later edly entered a cafe frequentedby Asian youth, dropped for insufficient evidence,no dkiplin- strip-searched everyoneon the premises, and ary action was brought against the police officers took pictures of the Asians for theirgang files. involved. The police departmentstated that the San Diego Police apparently stopped this tgype Wongs themselves had becomeviolent and hit of behavior when threatened with alawsuit.3 the police officers. The Wongsfiled a lawsuit Police BrutalityCommissionstaffhave against the New York City PoliceDeparment, learned of a number of incidents ofpolice bru- and in 1989 the suitwas settled for $90,000.40 tality against Asian Americansacross the coun-

36 The following account is based on Amy Sessler, "Revere Slaying, Police Probe RevealRaw Ethnic, Racial Nerves,"Boston Globe, June 16, 1991, p. 30, and Chris Block, "Sweep Upsets Asians in Revere,"Boston Globe,July 3,1991. 37 Lt. Col. Thomas Spartichino, Massachusetts State Police, as quoted in Block, "Sweep UpsetsAsians." 38 Sam Bok Sok, Coalition fora Better Acre, interview in Lowell, MA, Feb. 12, 1990. 39 Margaret Penrose, Union of Pan Asian Communities, interview in San Diego, CA, Mar. 5,1990. 40 "Chinatown, NYAlleged Police Brutality Against Chinese American Family,"New York Nkhibei,Jan. 29, 1987; Elaine Rivera, "Barriers Often Conceal Prejudice AgainstAsians,"Newsday, Jan. 30, 1987; Elaine Rivera, "DA DropsAssault Charges In China- town Brutality Case,"Newsday, Apr, 2, 1987; Barbara Lippman, "ChinatownBrouhaha: Family Claims Brutality, Sues Police,"

flt 6 In September 1987 a Korean studentwas law enforcement jurisdktionsacross the country. stopped in Manhattan fora traffic violation he For instance, only 1.7 percent of officersin the committed while on his bicycle. Accordingto a California State Highway Patrolare Asian newspaper account, witnesses saw him being Americans, and in Los Angeles, where Asians forced off his bicycle onto the ground bythe po- constitute roughly 10 percent of thepopulation, lice, who proceeded to beat his head againstthe only 1.8 percent of city policeofficers are pavement. The student was then arrested for Asian.44 Theproblem of underrepresentation is traffic violations, disorderly conduct,and ob- particularly severe fornew immigrant groups structinggovernmentaladministration.The from Southeast Asia and elsewhere. Asan exam- witnesses followed the student to the policesta- ple, Lowell, Massachusetts,a city whose population, where, they claim, the police madea refer- tion is roughly one-quarter Cambodian, hasno ence to the student's "Asian nose."41 Cambodian police officers. This lack ofrepre- In July 1989 a Philadelphia grand jury in- sentation may severely restrict policeaccess to dicted a police officer for illegally arrestinga information about crime in Asian American Southeast Asian man to "appease his neigh- communities, which in turnmay hamper police bors," who did not want him living in the neigh- efforts to protect these communities fromgrow- borhood. The officer w;s charged with falsely ing criminal activity. arresting Mr. Phomsaath inside his homeon In interviews with many Asian Americancom- charges of public intoxication, handcuffinghim munity leaders across the country, stafflearned and beating him with a nightstick. The officer that the dearth of Asian police officers isa com- booked the man at the police station under the mon source of frustration for members of Asian name "Mao Tse-Dung.'2 American communities in all parts of thecoun- In San Jose, California,a Vietnamese man try. Typically, Asian Americans, especially those was stopped by police officers as he was walking belonging to immigrant communities, feelthat home from work. A white police officerreport- the police are not interested in recruiting Asian edly threatened him witha knife while asking police officers. They cite lack of effortsto in- questions. Eventually hewas let go unharmed. form Asian Americans about vacancies inpolice He never reported the incident, but itbecame departments or about the procedures forapply- widely known in the San Jose Vietnamesecom- ing for police positions, failureto relax arbitrar- munity and was cited to staffas an example of a ilyrestrictive requirements for becominga pattern of frequent police harassment of Asians police officer, and the lack of affirmativeplans in San Jose.43 to recruit Asian, particularly Southeast Asian, police officers as evidence that policedepart- Representation of Asian ments are not truly interested in increasing Americans Among the Police Asian American representation. They also cite AsianAmericans are noticeably un- the length of time required between initial appli- derrepresented among police officers inmost cation and acceptance into police trainingas a

New York Daily News, July 29, 1987; and Helen Thorpe, "Chinese Family's Suit Alleging Police Brutality Ends in $90,000Settle- ment," The New York Observer, Aug. 14, 1989. 41 Howard W. French, "Bicyclist Says Officers Beat Him As They Held Him in Traffic Case," New York Times, Sept. 6,1987, and Co- alition Against Anti-Asian Violence, "Police Brutality:Incident Summaties," provided by Mini Liu, 42 Chri.topherIlepp, "Officer Accused of Beating Asian," PhiladelphiaInquirer, July 21, 1989. 43 Me 1,e Ho, Ray Lou, Cal H. 13. Nguyen, Zoon Nguyen, and Vu-Duc Vuong, group interview in San Jose, CA, Feb.21, 1990. 44 Attorney General's Repon, p. 74.

57 major barrier for many Asian Americans seeking The stereotype of Asian/Pacific Islander Americans to become police ofFicers. as subservient, unassertive,and lacking comtnunica- Police, on the other hand, cite the difficulty of tions skii!s can create institutional bias that makes it attracting Asian Americans, who allegedly pre- more difficult for Asians to p4iss thesubjective por- fer other careers or do not have therequisite tions of the screening process. qualifications. One Asian American police offi- The report continues: cer, who was incharge of Asian gang enforcement for his department,told staff that many Asian/Pacific Islander Americans may be eliminated Asian parents do not want their children tobe- by psychological evaluation, because they aredefined come police officers,because they have negative as lacking the desirablepsychological characteristics experiences with or impressions of thepolice, for the rigors of the job. The definitionof the desir- because the job is too dangerous, orbecause the able psychological characteristks for anofficer is an pay and prestige are toolow. He also claimed issue that has yet to be resolved, and care mustbc that many Asian Americans,especially new im- taken to insure that such criteria Idol. . artunfairly migrants, are not sufficiently aggressive todo impact Asian/Pacific Islander Americans. the job. He said that his policedepartment had police offi- For those from Southeast Asia and other re- been unable to attract a Vietnamese barriers to employ- too few qualified cent immigrants, two major cer, because there were ment as police officers appear tobe lack of Vietnamese and because his department wasin citizenship status and lack of English-language competition with eI5ry other law enforcement proficiency. Since most Southeast Asians who agency inCalifornia. be police officers are im- however, that Asian are old enough to It is not at all evident, 1980s, police offi- migrants who came to this country in the Americans do not want to become the United States long community members dispute this very few have lived in cers. Asian enough to become citizens. Most policedepart- contention.46 In virtually every Asian community ments require all policeofficers to be United visited by Commission staff, communityleaders States citizens, and thus many Southeast Asians were able to citeexamples of Asian Americans disqualified. Given that good officers but are automatically who had sought to become police police-community relations depend in large part applying who had either been discouraged from within the police accepted. Furthermore, there is upon group representation or had not been force, it is important for police departments to a pervasive stereotypethat Asians are not sufficiently aggressive to be policeofficers. As reexamine the necessity of any requirement, such as citizenship status, that automatically ex- pointed out in the California AttorneyGeneral's cludes a large proportion of a group that is seri- the disadvantage report, this stereotype works to ously underrepresented among police officers. of Asian Americans seeking to becomepolice Indeed, some police departments have relaxed officers, since it likely colors the perceptionsof the citizenship requirement in an effort toin- those who evaluate Asian Americancandidates. crease the representationof immigrant Asians in their policeforces."

Association, telephone interview, Feb. 20, 1990. 45 Ignatius Chinn, Northern California Asian Police Officer's 46 Attorney General's Report, p. 75. 47 Ibid., p. 76. 48 Ibid., p. 77. 49 Ibid., p. 76.

58 P s For Asian immigrants who seek to become goals and timetables for hiring persons bilingual police officers, limited English-language profi- in Chinese."52 In most other cities, however, ciency is a barrier that is extremely difficult to Asian Americans have not been included in law- overcome and hence requires special remedies. suits to increase minority representation among In most jurisdictions across the country, to be ac- the police. When they are under court order to cepted for police training, applicants are re- increase the representations of women and non- quired to pass a battery of tests, including tests Asian minorities in their forces, police depart- that measure the applicant's fluency in speaking ments have much less incentiveto increase the and writing English. Many police officers con- number of Asian police officers. tend that good written English ability is necessary to write a police report. They also contend Police Department Asian that good spoken English is necessary for the American Outreach police officer to communicate over the radio. Approaches According to one police officer, lilt doesn't do us any good if they're fluent in their native lan- Police misconduct toward Asian Americans guage but they can't handle English well enough and the underrepresentation of Asian Ameri- to use the radio or take a report."° A San cans on police forces across the country are Diego police officer told staff of a Southeast compounding the problem of poor police-com- Asian probationary police officer who finally was munity relations caused by language barriers and not accepted into the police force because he underreporting of crime by Asian Americans. To could not make himself understood over the improve their relationship with Asian Ameri- radio.51 Police departmentscan help overcome cans, some police departments are experiment- the language barrier by offering special English ing with alternative ways of reaching out to the classes to candidates. Furthermore, efforts to es- Asian American communities in their cities. As tablish precisely what level of English profi- part of a new trend in police departments across ciency is necessary for the job and to develop the country, commonly referred to as 'mmmu- appropriate tests of English proficiency could nity policing," many police departments are try- help to eliminate the suspicion that the language ing two approaches. The first approach entails requirements for Asian American police officers hiring Asian Ame, :can community service offi- are set arbitrarily high. cers (CS05) to help regular police officers in In San Francisco, the police department was their dealings with Asian American communi- sued because of the underrcpresentation of As- ties, while the second approach involves setting ians on its police force. The suit resulted in a up Asian American pnlice advisory boards. 1979 consent decree that "established specific The CSOs, hired under the first approach, are noncommissioned police officers who take on

50 Gross, "In Multilingual Times." 51 Abbott interview. 52 Auorney General's Report, p.75. 53 The Los Angeles Police Department, for instance, is under a court order to increase : representation of women, blacks, and His- panics, but not Asians. Staff wer ! told that Asians were hesitant to sue to be included in the consent decree, because they feared that in the wake of the supreme Court's Martin v. Willa decision (109 S.Ct. 2180 (1989)), the entire decree could unravel if they sought to be included iiit. Staff interview with Stewart Kwoh and Kathryn Imahara, Asian Pacific American Legal Center, Mar. 1, 1990. The U.S. Commission on Civil Rights has endorsed proposed legislation, the Civil Rights Art of 1990, now called the Civil Rights Act of 1991 (II.R. 1, 102nd Cong., 1st Sess.), which would undo the effects of the Wilks decision. U.S. Commission on Civil Rights,Report on the Civil Rights Act of1990 (July 1990).

59 1;9 many, but not all of the police officers' duties. A and subsequent donations from individuals and orga- good example of a police department using this nizations within the community helped provide space approach is San Diego, which has 12 CSOs serv- and needed materials. The storefronts are staffed by a ing San Diego's Indochinese communities. In police officer andi bilingual community person San Diego, CSOs wear uniforms and carry whose salary is paisIsby community donations and the badges but do not have guns. They work out of a police department. storefront office located in a heavily Indochin- Although CSOs are potentially an extremely ese neighborhood. They take repovs intheir valuable way of reaching out to Asian communi- storefront office, and they are also sent out to ties, their use may have some unintended conse- take reports in the field. In addition to taking re- quences. There are some reportsthat CSOs are ports, San Diego's CSOs are involved in proac- treated as second-class citizens within many po- tiveactivities, such as attending community lice departments.56 There also might be a ten- gatherings, juvenile counseling, helping battered dency for police departments to rely on CSOs women get temporary restraining orders, and rather than intensifying their efforts to recruit making Asian-language videos. They also help Asians as regular police officers. the police force gather information on crimes The second common "community policing" and gang activity within the Asian community by approach is to set up Asian American police ad- recruiting paid and volunteer informants. They visory boards. These boards consist of represen- are given training incardiopulmonary resuscita- tatives of the Asian American community who tion (CPR) and disasterpreparedness.54 mcet regularly with the police to voice the con- A second example of a police department cerns of the Asian Americancommunity and using this approach is the Los Angeles Police who help gain community support for police in- Department: vestigations of criminal activity within the Asian American community. An example of such a The Los Angeles Police Department has two store- board is San Diego's Southeast Asian Refugee- fronts serving Asian/Pacific Islander commurities, Police Advisory Task Force, set up in November neighborhood; the othe, in a one located in a Korean 1989.57 A similar advisory committee operates in Chinese neighborhood. Both storefronts are the result of organized community demand for such operations, Oakland. Oakland's Asian Advisory Committee:

54 dabott interview. Requirements for becoming a CSO in San Diego are fairly rigorous. CSOs musthave a high school diploma, Cali- ornia driver's license, and a green card or 194 form. Before being accepted, applicants must alsotake a written exam, fill out background packages, undergo a background investigation and a psychological profile, take polygraph exams, andfinally submit to an oral interview. CSOs in San Diego are full-time employees. Starting pay s $17,500, and the pay rises to$24,500 after 2 years.

55 Attorney General's Report, p. 65. Los Angeles also has an Asian Task Force, which is staffed with 10police officers who speak Ko- rean, Japanese, Chinese, Thai, and Tagalog, to provide expertise to policeinvestigations. 56 Steven Thom, U.S. Department of Justice, Community Relations Service, San Francisco Office, tclephoneinterview, Feb. 20, 1990. 57 San Diego Police Department, Introducing the Southeast Asian Refugee-PoliceAdvisory Task Force (Nov. 27, 1989). The proposed functions f9r the task force are given as follows: "1) To channel information from the Southeast Asian Refugee communities to the Chief of Police. "2) To serve as a conduit for information from the Police Department to the Southeast Asian refugeecommunities. "3) To provide backup assistance for translation and intervention where language and cultural differencesimpede police work. "4) To ei,hance the image of the Police Department and community visibility through jointly sponsoredintercultural events. "5) To develop rapport with the Southeast Asian business community. The business community is acritical component in refugee communities. Business owners provide leadership, funds, and general contact within the communities. In the course of doingbusi- ness they encounter public safety issues and need to consult with the police.The police also need to consult with the business lead-

60 7 0 [deals] with issues ranging from affirmative action in than adopting the traditional police posture of the Oakland Police department to its recent emphasis responding to symptoms (i.e., taking steps neces- on responding to the criminal justice needs of the sary to ward off criminal activity rather than con- local Southeast Asian population. centrating only on arrcsting perpetrators after a crime has taken place.) As examples, partici- The Asian Advisory Committee is currently working pants advocated police and community efforts to on resolving crime problems related to language and reach out to Southeast Asian youth in schools culture differences, including the reluctance of recent and community centers, to help facilitate the immigrants and refugees to report crime. As a result transition of new immigrants into this country, of cooperation among Committee representatives and Asian/Pacific Islander communities, the Oakland Po- and to help deal with the breakdown of the tra- lice Department established four outreach offices, lo- ditional Asian family structure that often occurs cated andstaffedtoserverespective Laotil among Southeast Asian refugee families and Vietnamese, Cambodian, and Chinese communities. leaves Southeast Asian youth lost and without guidance. For such advisory boards to work well, however, there needs to be a real commitment on the part Lowell, Massachusetts: A of both the police department and the Asian Case Study of Police- community to make them work. Otherwise, there is a danger that the advisory boards will Com m unity Relations bccome tokens that the police can point to as Relations between minorities and the police evidence that they are making efforts to 7:fach usually mirror the relations between minorities out to the Mai ,. community, when in fact their and the community at large.hey cannot be outreach efforts are wholly inadequate. fully understood in isolation from the broader Efforts arc underway across the country to context of the local political and economic cli- encourage innovative approaches to providing mate and interracial/ethnic relations. The fol- police protection to ethnic communities. For in- lowing discussion of police-community relations stance, on April 2-4, 1991, thc Office of Refugee in Lowell, Massachusetts, is embedded in the Resettlement and the Family Support Adminis- larger context of interracial/ethnic relations in tration of the U.S. Department of Health and Lowell. The case study of Lowell demonstrates Human Services sponsored a joint conference the strains on those intergroup relations that can with the Community Relations Service of the occur when a small community is transformed U.S. Department of Justice, entitled "Building overnight by a large influx of immigrants and ref- Bridges: NationalSoutheast Asian Refu- ugees, many of whom are limited English profi- gee/LawEnforcementConference,"which cient, who require extensive commitments of brought together law enforcement officials and social service and other resources to help them Southeast Asian community leaders from across integrate into the community. the country to exchange ideas and information Lowell was established in 1826 and grew with about ways to improve the relations between the booming textile industry along the Merri- Southeast Asians and the police. Participants at mack River, attracting successive waves of im- this conference generally agreed that a broad migrants. By the 1890s, when the textile industry approach to improved relations was needed, in- reached its peak, Lowell was widely recognized cluding attacking problems at their roots rather as a city built by immigrants working in textile

ers over these same issues." 58 Attorney General's Report, pp. 65-66.

61 mills. For about five decades starting in the auoitorium storage arca, and a converted bath- 1920s, Lowell endured a long period of eco- room with a toilet stall in it). Incoming minority nomic depression. In the mid-1970s, however, students were generally assigned either to the benefiting from a statewide economic turn- makeshift classrooms or to specific schools. As a around, Lowell experienced an economic revi- result, Lowell's public schools became highly talization. The city's vacant industrial land area segregated. For example, in 1986 one school was diminished from 100 acres in 1978 to none in 100 percent minority, and othcr schools had 74, 1987, and over the same period its unem9ploy- 72, 55, and 53 percent minority enrollment, re- ment rate dropped from 13.8 to 3percent.5 spectively, whi.,.; a few schools had minority en- Lowell's economic opportunitiesattracted rollment as low as 4.2 percent and 3.6 percent.61 Southeast Asian im,nigrants and refugees to the The Lowell school system had also failed to city in large numbers during the early 1980s. In build necessary teaching personnel to implement 1980 the size of the Southeast Asian population much-needed bilingual/bicultural education pro- in Lowell was less than 100, but it had increased grams in the Lowell publicschools.62 three-hundred-fold to roughly 30,000 by the Concerned with high dropout rates among mid-19R0s. Then, Southeast Asians made up 30 Lowell's language-minority students as well as percent of I .nwell's population (Cambodians at the substandard educational environment and 25 percent, and Laotians and Vietnamese at 5 insufficientteachingpersonnelinLowell's percent). 6° The phenomenal growth of Lowell's schools, minority parents and community leaders Southeast Asian population during the early made repeated attempts to improve the situa- 1980s posed two serious dilemmas for the city of tion, consulting and pleading with My and Lowell: how to educate Southeast Asian chil- school officials, but to no avail. In one of the dren, most of whom had limited English profi- meetings with the Lowell School Committee, ciency, and how to provide adequate police parents of language-minority students requested protectiontoSoutheastAsianresidents. interpreters, since at least half of the 100 or Lowell's failure to solve the problem of educat- more people present, mostly parents ofHispanic ing Southeast Asian children serves as a back- and Southeast Asian students, could not speak dropfor understandingthesubsequent or understand English. Yet one committee breakdown of police-community relations. member left the meeting saying he would not at- By 1987 the proportion of Lowell's school tend a school committee meeting that was not children who were minorities had grown to 40 conducted in English. His departure broke the percent. Faced with a massive influx of students, quorum, touching off an "explosive racial con- the Lowell School Committee set up makeshift frontation."6During the ensuing melee, this classrooms in nonschool buildings, often result- committee member was quoted as saying, "I've ing in substandard, unsafe conditions for stu- seen enough of ru on the streets" to an angry dents(e.g.,abasementboilerroom, an Hispanic parent.

59 This account is drawn from Peter Nien-chu Kiang, "Southeast Asian Parent Empowerment: The Challenge of Changing Demo- graphics in Lowell, MA,"Asian American Policy Review,vol. 1, no. 1 (1990). 60 Since the mir.1-1980s the Southeast Asian population in Lowell has declined, and Asians currently constitute less than 11 percent of Lowell's population. "Asians in America: 1990 Census, Classification by States,"Asian Week,August 1991, p. 30.

61 1 lispanic Parents Advisory Council v. Kouleharas, Civ. Action No. 87-1968-MA (D.Mass., 1987), at 18. 62 Id at 22. 63 Nancy Costello, "Committeeman Sparks Racial Clash at Meeting,"LowellSun, May 7, 1987, P. 1. 64 Ibid.

7 r) In addition to such incidents of outright racial Aggravating this already poor situation was a hostility, advocates of minority students' educa- series of events that took place over the past few tion encountered an entrenched barrier pre- years that added to the concern, worry,and ap- venting the hirinr; of bilingual/ESL (English as a prehension in Lowell's Southeast Asian commu- Second Language) teachers:the city and the nity. These events are briefly described below: school committee required that candidates for A few years ago, a proposal for the con- bilingual/ESL teaching positions pass the Na- struction in the city park of a 12.5-foot concrete tional Teachers Examination (NTE). Many of statue as a symbol of the Southeast Asian contri- the candidates, for whom English was a second bution in Lowell was turned down by the city language, were unable to pass this exam, which council. One council member allegedly said, "I had not been validated for language-minority fought in the Vietnam War, and I don't want test takers. Under State law, however,Lowell that stuff in our citypark."68 and the school committee are "free to abandon On September 15, 1987, an 11-year-old reliance on the NTE and substitute a more equi- white student accosted Vandy Phorng, a 13- table measure for hiring bilingual/ESL teachers, year-old Cambodian student, while Vandy and but they have deliberately refused to do so.9165 his brothers were walking along the canal near Because of this requirement, most of the candi- their home. After making racial comments about dates for bilingual/ESL positions were effec- Vandy's background, the white youth punched tivelybarredfromattainingeligibilityfor Vandy in the face, dragged him down a flight of permanent employee status. They wereforced stairs to the canal, and pushed him into the to work instead as temporaryteacher aides, water. Vandy was carried away by the strong cur- which mcant lower pay and fewer fringe bene- rent and drowned. fits. On May 12, 1989, a male University of The city and school system's apparent intran- Lowell student harassed a female board member sigence in providing for the needs of minority of the Cambodian Mutual Assistance Associa- students and the occasional incidents of racial tion. He blocked the Southeast Asian woman hostility, in addition to the deprivation of equal from entering a Burger King restaurant in Low- educational opportunity for the city's minority ell, saying, "What do you thinkyou own this students, finally prompted concerned parents to country? Go back to your f--ing country or I file a suit with the Federal district court gpinst will kill you." On May 13, she received a phone the Lowell School Committee in 1987.The call from a man saying, "If you don't go back to suit resulted in a consent decree designed to im- your f--ing country, I will killyou." She recog- plement a long series of comprehensive reme- nized the voice as that of her harasser. On June dial programs providing relief for the concerns 1 he was arrested on a criminal warrant for asof the Hispanic and Southeast Asianparents.° sault and battet,7, threatening to kill, and a civil rights violation. °

65 Ibid., at 23. 66 Hispanic Parents Advisory Council v. Ko Jleharas, Civ. Action No. 87-1968 (D.Mass. 1987). 1964 (Nov. 9, 1988). For further de- 67 Lowell Public Schools,Voluntary Comp' lance Plan Pursuant to Title VI of the Civil Rights Act of tails on this suit, see chap. 4 of this repol'. 68 Sam Bok Sok, Coalition for a 13etter Acre, interview, Feb. 12, 1990. Kim Tan, "Family De- 69 Doris Sue Wong, "Day of Fishing Ends in Violent Death for Lowell Boy,"BostonWok Sept. 23, 1987; mands Justice in Teen's Slaying."Busion Ikraki, Sept. 23, 1987, cited in Kiang, "SoutheastAsian Parent Empowerment." June 9, 1989, p. 13; 70 Nancy Costello, "ULowell Student Charged in Racial Threat, Assault on S.E. AsianLeader,"Lowell Sun,

63 7 3 In the November 1989 election, voters in Asians lived secluded lives within theirethnic Lowell endorsed a nonbinding referendum de- communities. An effective bridge of communica- claring English as the city's official language bya tion did not exist between Southeast Asiansand margin of 3 to 1 in one of the largestturnouts in the city of Lowell. Thus, when Southeast Asians recent years. The sponsor of this referendum increasingly became the victims of robberies and was the same school committee member who attacks by community youthgangs, they became had allegedly manifested racist behavior in the fearful for their physical safety, but theywere re- past and precipitated a racial clash by refusing to luctant to turn to the police for heip. The vul- allow interpreters for parents with limited En- nerability of Southehst Asians in Lowell and the glish proficiency (see above). Thisperson pub- inability of Lowell police to protect them isun- licly stated his intention to force the issueat the derscored in the following incident. State and Federal levels. Southeast Asians and At 10:00 p.m. on June 28, 1990,two masked Hispanics interpreted the outcome of the refer- gunmen pumped four bullets into Chhoeung endum as a reflection of underlying antiminority Ley, a Cambodian man, inside his home. Rob- sentiment. The Southeast Asian opponents of bery by a Southeast Asian youthgang was sus- the English-only movement fear that "it will in- pected by the police. The police investigation of spire and legitimize discrimination."71 the murder did not make meaningfulprogress, As previously recounted in chapter 2, in and the police appealed to the Scutheast Asian January 1990, John Silber, then the candidate community to come forward with pertinent infor the Democratic nomination for Governor of formation. The police appeal for murder clues Massachusetts (and eventually the Democratic was met with unresponsive reticence on the part nominee) was widely quotedas making anti- of the community, however. Southeast Asian Cambodian remarks. He called Massachusetts "a community leaders feel that the lacklusterre- welfare magnet" that had "suddenly become sponse to the police appeal for information popular for people who are accustomed to living arose out of a general perception in the South- in the tropical climate," and he said, "Why east Asian community that the Lowell police as should Lowell be the Cambodian capital of a whole3are insensitive to and neglectful of America? It is extraordinary. Why should they Southeast Asian concerns and that the police all be concentrated in one place? This needsto make overtures to the community only when be examined ."72 they desperately need the help of the Southeast These events added to Southeast Asians' dis- Asian community. More significantly, the police trust of and isolation from the broader Lowell are viewed neither as worthy of community trust community. Sensing anti-Asian hostility in the nor as capable of protecting informants afainst outside world and burdened with the struggle of possible retaliation by the perpetrators.7 The surviving in a strange country, most Southeast

Nancy Costello, "Judge Bars Student from Thai Activist,"Lowell 3un,July 15, 1989, p. 1; Jessie Yuan and J. Shiao, "Dr. Prem Seksmat, Victim of Racial Harassment in Lowell," The fAsian An rrican Resource Workshop] Newsletter,August 1989, p. 1. 71 Juks Crittenden, "City Campaign May Spawn Statewide BallotBaffle," Lowell Sun,Oct. 26, 1989, p. 1; Jules Crittenden "Lowell Voters Say 'Yes' to English Referendum," Lowell Sun, Nov.8, 1989, p. 1. 72 Constance L. llay, "Remarks Inflame Massachusetts Contest,"New York Times,Jan. 27, 1990. 73 In general, community leaders thought that Officer JeffreyDavidson, who has served as the onc-man, part-time community relations officer in I -melt, has done his best within limitedresources. 74 Vcra Godley, Executive Director, Cambodian Mutual AssistanceAssociation of Greater Lowell, Inc., telephone interview, Oct. 17, 1990 (hereafter cited as Godley interview, Oct. 17, 1990). In her officialcapacity, Ms. Godley was conveying the general sense of

7 4 Ley murder case remains unsolved after 15 invasion, robbery, and extortion against South- months.75 east Asians in Lowell, and police have cleared The Ley murder surfaced the ordeal of fear between 30 percent and 40 percent of thf.; and intimidation many Southeast Asians have cases.78On the average, then, every month at been forced to live under and also revealed the least one crime committed against the Southeast inadequacy of police protection in Lowell, as Asian community is reported to the police, and well as police inability to penetrate ethnic com- two cases out of three go unsolved. This fact munities. A few days after the murder, Lowell's alone would explain why, as alleged by commu- mayor appealed to the SoutheastAsian community leaders, Southeast Asians in Lowell feel vul- nity to come forward with information regarding nerableandunprotectedbythepolice." the case and agreed with community leaders on Moreover, many community leaders suspect that the urgent need to ivcruit Southeast Asian po- Southeast Asians in Lowell seriously underre- lice officers.6However, the mayor's recruitment port crimes committed against themselves, par- pledge was received by mpst Southeast Asians in ticularly when crimes apwar to be committed by Lowell as an empty political gesture necessitated other Asian Americans.Thus, the actual fre- by the emergency at hand. Fifteen months after quency of crimes and the rate ofunresolved the mayor's pledge, the Lowell police were still cases may be much higher than apparentfrom without Southeast Asian policeofficers.77 police records. The Ley murder was only one of a series of The seriousness of this situation invites in- crimes by Southeast Asian youth gangs and oth- quiry as to why there are no Southeast Asian po- ers against membersof Lowell's Southeast Asian lice officers on the city police force and how the communities, and most of these crimes were not police can offer equal protection to Southeast resolved by the police. According to a police Asian citizens without Southeast Asian repre- source, in the past 3 yearsthere have been ap- sentation on the force. At a February 1990 proximately 40 cases of shooting, armed home meeting with Commissionstaff,81 city officials

the board mt:mbers of the association. 75 As of Oct. 1, 1991, 15 months after the murder, police had made no arrest, and themurder was still under active investigation. John Guilfoyle, Inspector, Lowell Police Department, telephone interview, Oct. 1, 1991(hereafter cited as Guilfoyle interview). 76 Melissa Fran6 and Patrick Cook, "Police Link Gang to Murder: Community Leaders'Frustrated' With Rash of Violence," Lowell Sun, July 1, 1990, p. 1; Doug Pizzi, "Police Appeal for Murder Clues:Community Lives in Fear of Gangs," Lowell Sun, July 2, 1990, p. 1; Patrick Cook, "Police Appeal For Murder Clues: Murder InvestigationHitting Roadblocks," Lowell Sun, July 2, 1990,

P.1. 77 Jeffrey Davidson, Community Relations Officer, Lowell Police Department, telephone interview,Oct. 1, 1991. 78 Guilfoyle interview. For a chronological summary account of thc prominent eases, seePatrick Cook, "Chronology of Crime in Asian Community," Lowell Sun, July 3, 1990, p. 27. 79 In 1991 there were two gang-related murder cases in Lowell involving Southeast Asianyouths (the To Ky murder and the drive-by shooting at a playground) and several incidents of home invasion of Southeast Asian families.In all of these cases, however, suspects have ban arrested and are being duly processed by the judicial system.((iuilfoyle interview.) Southeast Asian community leaders also sense a positive change in the general climate of police community relations. The districtattorney's office has shown interest in Southeast Asian community issues, and Lowell police have becomeresponsive to the concerns of the Southeast Asian communities. (Vera Godley, Executive Director, Cambodian Mutual Assistance Association of GreaterLowell, Inc. (CMAA), telephone interview, Oct. 7, 1991; Charinthy Uong, President, CMAA, telephone interview, Oct. 8,1991 (hereafter cited as Uong interview).)

PO Godley interview, Oct. 17, 1990.

81 City officials present at the meeting held on Feb. 12, 1990, included the mayor, city manager, cityaffirmative action officer, and p0-

65 7 stated that thcy were fullyaware of the need to In this connection it is also instructiveto re- recruit police officers of Southeast Asianances- view some events that took place after theLey try, but that their good faith efforts in recruit- murder of June 1990. In anticipation of the ment had not succeeded. The officials gave State qualifying examination for police officers several reasons for their recruitment failure: 1) scheduled for October 1990 and inresponse to Southeast Asians do not take statewide qualify- the mayor's pledge to recruit Southeast Asi:An ing examinations (i.e., they do notseem inter- police officcrs, the Cambodian Mutual Assis- ested in becoming police officers); 2) U.S. tance Association (CMAA) of Lowell volun- citizenship is required to be a police officer, but teered to advertise orientation/training most Southeast Asians in Lowell have not workshops and offer bilingual interpretationser- earned their citizenship yet; and 3)many South- vice for the workshops, andcity officials agreed east Asians in Lowell are limited in English pro- to arrange such workshops. 4 Although a great ficiency and lack necessary understanding of the deal of interest was generated in the Southeast workings of U.S. society and its culture. The of- Asian community, the promised workshopswere ficials further claimed that the city is prohibited never held, and the aspiring Southeast Asians from requesting waivers of the statewide exami- were once more let down. This failure was due nation for Southeast Asian candidates because to a breakdown in communications between the of an earlier court order regarding black and city of La Ai and the State agency responsible Hispanic hires in the pclice force.82 for conducting such workshops, i.e., Lowellwas Contradicting the city officials' contention overlooked as one of the high-priority workshop that Southeast Asians were not interested in sites, and workshops could not be arranged in joining the police force and that mostwere not time for thc examination. Even this fact of slip- qualified, community leaders,ata separate page and oversight, however, was discovered meeting in February 1990, cited specific individ- only when the CMAA took the initiative of in- uals who had tried to become police officers in quiring why there was no notice of the planned Lowell and asserted that, with effectively tar- workshops. Although there may bea good ex- geted promotion, more Southeast Asians would planation for the breakdown in communication, consider law enforcement as a career, and with it is clear that the urgency of the situationwas proper coaching and training, many would pass not conveyed to the State agencies with suffi- necessary examinations. City officials expressed cient intensity. As a result, Southeast Asiancan- their desire to hire a Southeast Asian police offi- didates now have to wait for another 2years to cer, but they had not requested the State depart- take the statewide examinati-m. In themean- ment of personnel to exempt the city of Lowell time, the Southeast Asian communitymust con- from State requirements for Southeast Asian tinueto suf (t! r frominadequatepolice candidates.83 protection85 andcope with the overwhelming sense of fear and vulnerability.86

lice community relations officer (hereafter cited as Lowell officials interview). 82 Castro v. Beecher, [Civ. No. unavailable] (D.Mass. Jan. 7, 1975), Consent Decree,No. 70-1220-W (Jun. 27, 1975). 83 The city of Lowell has not requested any special waivers for SoutheastAsian police candidates, and the city is silent as to whyno request was ever made. Lowell officials interview. 84 Vera Godley, Executive Director, Camb( ,dian Mutual Assistance Associationof Greater Lowell, Inc., letter to Diane McLeod, Af- firmative Action Officer, City of Lowell, MA, Sept. 4, 1990. 85 The city of Lowell has requested the State department of personnelto bc allowed to hire two Southeast Asian-language-speaking candidates, although they are not at the top ot the candidate list. DianeMcLeod, Affirmative Action Officer, City of Lowell, MA,

66 The general situation in Lowell is largely the cut in 1991, making it even more difficult for result of a severe shortage of resources available Lowell to provide for the needs of Southeast to provide essential services to help immigrant Asian students out of its own resources." Ac- and refugee newcomers integrate into the com- cording to the Massachusetts State refugee co- munity. When large numbers of Southeast Asian ordinator, most of the rest of ORR funding refugees arrived in Lowell almost overnight in available to Lowell can only be used to provide the early 1980s, Lowell was unable to cope with for employment training of those refugees who the strains on its public schools and social ser- have been in the country for less than 8 months, vice agencies which were unprepared to cope and none of it can be used for refugees who with the sudden increase and to provide neces- have been in the country for more than 3 years. sary educational services to Southeast Asian stu- Since most of Lowell's Southeast population ar- dents and adults with limited proficiency in rived in the United States more than 3 years ago, English. As Lowell struggled to deal with this sit- they are not eligible to receive ORR funds.91 uation, Massachusetts' economic miracle turned The difficulties encountered by Lowell in try- into an economic debacle, and special State ing to provide basic services to Southeast Asian funds that had been available to help localities newcomers may be typical of the situation faced provide basic services to Southeast Asian refu- by small communities across the country. In the gees driedup.87 At thesame time, funding pro- State of California, for instance, only the 13 vided to Lowell by the Federal Government, most affected communities (based on the num- although never adequate to meet the need, also ber of refugees) receive any Federal funds, and began to decline. Although Lowell has received an official of the California Department of So- special annual grants from the Office of Refu- cial Services, Policy and Systems Branch, which gee Resettlement (ORR) to address the impact is responsible for allocating the Federal funds, of secondary migrants on the Lowell school sys- was adamant in his contention that the Federal tem, the amount of these grants was cut in half funds were inadequate to meet the needs of the in 1991, to $225,(XX).88 The total amount allo- refugees.92 There isa clear need for more Fed- cated to Massachusetts for cash and medical as- eral and State aid to help communities provide sistance by ORR also declined dramatically, essential services to Southeast Asian and other although the number of refugees arriving in immigrants and refugees. Massachusetts inereased.89 Also, the Lowell school district was hit with a $4 million budget

21ephonc interview, Oct. 24, 1990. 86 As of early October 1991, no Southeast Asian person was in the Lowell City Hall or the Lowell Police Department, and citizens of Southcast Asian ancestry in Lowell continued to encounter barriers in accessing thc city hall and thc police dcpartmcnt. Uong interview. 87 Regina Lee, State Refugee Coordinator, Massachusetts Office for Refugees and Immigrants, telephone inteiview, Nov. 20, 1991 (hereafter cited as Lee Nov. 20 interview). 88 Richard I Iowe, Mayor, Lowell, MA, telephone interview, Nov. 20, 1991. In addition to the $225,000 grant, Lowell received $59,000 ft.: outreach by the police department to thc Cambodian community. Only a small fraction of this amount was allowed for interpreters, however, far less than necessary for effective police work in Lowell's Southeast Asian community. Stevens interview. 89 Regina Lee, State Refugee Coordinator, Massachusetts Office for Refugees and Immigrants, telephone interview, Nov. 26, 1991. 90 George N. isapatsaris. Superintendent, Lowell School District, telephone interview, Nov. 20, 1991. 91 Lee Nov. 20 interview. 92 Frank Rondis, California Department of Social Services, Policy and Systems Branch, telephone interview, Nov. 22, 1991.

67 7 7 Chapter 4 Access to Educational Opportunity: Asian American Immigrant Children in Primary and Secondary Schools

Over the past two decades the United States Asian American Immigrant has experienced a major influx of refugees and Students in American immigrants from Asia. This influx has brought with it a new generation of Asian American chil- Schools dren who are either themselves immigrants or refugees or who are the American-born children The Condition of Asian American of recently arrived immigrants or refugees. Many immigrant Students of these children enter our schools unfamiliar Asian American immigrant children, particu- with mainstream American culture and knowing larly those who come from families at the bot- little or no English. This chapter focuses on the tom of the socioeconOmic scale, face a multitude problems that confront this new gerieration of of learning and adjustment challenges that main- Asian American children as they enter our pub- stream students do not confront. The recogni- lic primary and sccondary school system.' tion that they live in two very different worlds, The chapter begins by describing the condi- that of the family and that of the mainstream so- tion of Asian American immigrant children2 in ciety, may be a step to realizing what they have our schools and by assessing their academic per- to undergo as they enter our nation's schools. formance levels and goes on to examine the edu- The family situations of Asian American im- cational services these children are receiving in migrant students are typically very different from our schools. It then describes the legal protec- those of their fellow students. Often, their par- tions available to these children under Federal ents do not speak English and are having great civil rights laws and outlines the recent history of difficulty in making the transition into American Federal enforcement of these protcctions. Next, society. Their family is likely to be living below the chapter turns to examining the effects of ra- the poverty level,' with their parents either cial tensions on Asian American immigrant stu- working extremely long hours to make ends dents. Finally, it looks at promising avenues for meet or unable to find jobs at all. Because the improving the educational opportunitiesfor immigrant students, although often themselves Asian American students in our public schools. limited English proficient (LEP), are frequently more familiar with the English language and

1 The chapter addresses only tangentially issues related to the educational opportunity of native-born Asian American students whose parents were born in this country or who arrived many years ago. 2 In this chapter, the term "immigrant children" refers to children who are either immigrants or refugees themselves or who are the U.S.-born children of recently arrived immigrants and refugees. Many immigrant Asian American children are limited English proficient or formerly limited English proficient. 3 For instance, over 75 percent of Southeast Asian students in San Diego City public schools live below the poverty line. Ruben G. Rumbaut, "Immigrant Students in California Public Schools: A Summary of Current Knowledge," October 1989, table 6 (hereafter cited as "Immigrant Students").

68 American customs and culture than their par- households (many live with their widowed moth- ents are, they are often forced to take on the ers).6The adults they live with also have ex- role of go-between or interpreter between their tremely highrates of post-traumaticstress parents and society at large. syndrome and are having immense difficulty coping with everyday life. They often have little At quite an early age. . .children serve as interpreters or no emotional or physical energy left over to for their parents and help their families confront give to their children. In addition to the devasta- many adult tasks. For example, if their tenement has ting effects of the war itself on these families, no heat in the winter, the school child who knows En- the dislocation from non-Western societies and glish might be the one to place a telephone call.. the extremely low education levels of many adult .these immigrant children face much more responsi- refugees (especially women)7 leave many South- bility rd pressure than the average American school east Asian parents ill-prepared to cope in Amer- child. ican society and withlittle background for This role reversal undermines parental author- helping their children in school or even under- ity, sometimes leading to tensions within Asian standing what they are doing there. American immigrant families. During the schoolday, Asian American im- For children from Southeast Asia, an unusual migrant children are transported into a different dimension of their life experience needs to be world. They are Americanstrying to become recognized. Because of the political turmoil in like their peers and belong to the mainstream; Southeast Asia, most Southeast Asian children and they are outsiderstrying to fit into a for- carry scars from the ordeal of surviving the ex- eign land with a foreign tongue. Instead of en- treme hardshin of the battlefields and refugee countering a supportive school environment, detention camps or arduous boat ridcs to free- Asian American immigrant students all too often dom. Still vivid and alive are their memories of find schools that are unprepared to deal with di- starvation, violence, torture, cruelty, and even versity, teachers who do not know their lan- witnessing the rape and murder of their parents, guages and culture and are insensitive to their siblings,orrelatives.Indeed, post-traumatic needs, and an atmosphere that is unfriendly and stress syndrome (which includes such symptoms frequently charged with racial hostility. On the as depression,severe insomnia,nightmares, playground, other students may ridicule them for reliving war experiences, isolation, rd suicide) their accent, demeanor, or look. They may call is common among refugee children. These chil- them names or shout at them, "Go back where dren often cannot turn to their families for com- you belong!" Older students may be physically fort and support. Many live in families that have harassed and even provoked into physical tights, been torn apart by the violence in Southeast sometimes involving weapons. Quickly, Asian Asia: for instance, less than half of the Cambo- American immigrant children are made to feel dian students in San Diego live in two-parent like outsiders in our schools, which detracts from

4 Ying Chen, citcd in John Willshirc Carrera, New Voices: Inunigrant Students in U.S. Public Schools (Boston, MA: National Coali- tion of Advocates for Students, 1988), p. 21 (hereafter cited as New Voices). 5 Ibid., p. 24, and Laurie Olsen, Crossing the Schoolhouse Border: Immigrant Students and the California Public Schools (San Frk..- cisco: California Tomorrow, 1988), p. 23 (hereafter cited as Crossing the Border). 6 "Immigrant Students," p. 22. 7 The average education levels of the parents of Southeast Asian students in San Diego city schools range from 8.9 years for the Vietnamese to 1.3 years for Iimong students. On the average, the English literacy rates of Southeast Asian mothers was poor. "Im- migrant Students," table 6.

69 7 ;3 their ability to concentrate on school work and are at risk of low achievement in our schools. often has devastating consequences for their English competence is known to be an import- self-esteem. ant predictor of academic success.19 "Nothing Thus, Asian American immigrant children morc effectively separates students from the find themselves torn between the conflicting val- mainstream of school experience than the inabil- ues of home, on the one hand, and peer group ity to speak English and to communicate wit;) and school, on the other hand. According to the others."11 When students feel like outsiders in testimony of an 1 1 th grade Cambodian girl: the school environment, do not have a sense of belonging, have fcw friends involved in school, My family has such set values and they hold to them and are not integrated into the social or aca- strongly. They hold onto thc old ways. It is very diffi- demic life of their school, they become likely cult to explain something to them about my life now. candidates for academic failure. We end up always arguing about school, religion, Unfortunately, the lack of adequate data criti- how I dress, what I can and can't do. They even get cally hampers efforts to evaluate the academic mad at me for arguing. They say I shogldn't talk back. performance of Asian American immigrant stu- I hate my family. We fight all the time. dents. No comprehensive data on the academic All these factors contribute to the undermining achievement of Asian American immigrant stu- of traditional Asian family life, which too often dents are available.12 What data do exist provide leaves Asian American LEP students without a mixed picture of how these children are doing meaningful parental support or authority at a in school. By some measures, they appear to be time when they desperately need them.9 succeeding academically, but other indicators suggest that there are some serious problems as well. In particular, the most recent wave of im- The Academic Performance of migr: nt and refugee children from Asia seems to Asian American immigrant be encountering more educational difficulties Students than earlier waves.13 Because of the language and cultural barriers The following discussion examines what exist- they face, Asian American immigrant students ing data on grades, test scores, dropout rates,

8 11th grade Cambodian girl, as quoted in Crossing the Border, p. 31. 9 Two valuable ethnographic case studies examine thc school and family situations facing immigrant Asian American children in detail: 1-lenry T. Trueba,l,ila Jacobs, and Elizabeth Kirton, Cultural Conflict and Adaptation: The Case of Hmong Children in Ameri- can Society (New York: Falmer Press, 1990), and Margaret A. Gibson, Accorrunodation Without Assimilation: Sikh Immigrants in an American Iligh School (Ithaca, NY: Cornell University Press, 1988). 10 Joan Baratz-Snowden, Donald Rock, Judith Pollack, and Gita Wilder, The Educational Progress of Language Minority Children: Findings from the NAEP 1985-1986 Special Study (Princeton, NJ: Educational Testing Service, May 1988), p. 174 (hereafter cited as 1988 NAEP Report).

11 Patricia Gandara, California Assembly Office of Research, Sacramento, CA. Cited in New Voices, p. 66. 12 Council of Chief State School Officers, School Success for Limited English Proficient Students: The Challenge and State Response (February 1990), p. 15 (hereafter cited as School Success of LEP Students). For example, this report notes that:"the most over- arching conclusion to be drawn from the surveys is that lack of adequate data poses a serious barrier to enlightened, effective program development and service delivery. Wc do know that there are significant numbers of LEP children who are not receiving services that they need in school. But we found it difficult, if not impossible, to even ascertain how many LEP children tliere are, where they are, and whether they are being served." Ibid., pp. 20-21. 13 Ibid., p. 15. I luynh Dinh Te, "Southeast Asian Students: Facing the Language Challenge," Equity News, April 1988 (two-page document; pages unnumbered).

70 11th graders were at anadept or advanced read- and post-schoolaspirations reveal about the aca- ing level, comparedwith roughly one-half of demic achievementlevels of Asian Americanim- both their Asian AmericanNid white non-lan- migrant students. Grades and TestScoresGrades and test guage-minority counterparts. The NAEP sample,however, excluded chil- scores are aprimary measure of howwell stu- dren whose Englishproficiency was deemed by dents are doing in school.Considerable informa- their schools to be toolow for them to take the tion exists documentingthe high average grades NAEP Reading Assessmenttest. Roughly 11-13 and test scores ofAsian American students as a percent of Asianchildren were excludedfrom group. However,since the Asian American pop- in with respect to the sample.17 If theyhad been incorporated ulationis so heterogeneous in reading performance ethnicity, length of timein the United States, the study, the difference between language-minorityand non-language- and socioeconomic status,such group average minority children wouldhave undoubtedly been information is unlikely toreflect the grades and chil- much greater, because thereading scores of the test scores ofAsian American immigrant would have been very offer a partial glance atthe least English proficient dren. A few studies likelihood, the NAEP study se- grades and test scoresof Asian Americanim- low. Thus, in all riously overestimates theeducational achieve- migrant children. language-minority AsianAmerican In the mid-1980s,the EducationalTesting ment of Service conducted anational study of the educa- children. A second potentiallyvaluable resource for tional achievement oflanguage-minority chil- attainment of Asian dren as part of theNational Assessment of studying the educational ongoing con- American childrennationally is the National Ed- Educational Progress (NAEP), an Survey (NELS), which project to conduct sur- ucation Longitudinal gressionally mandated graders in 1988 and had American began studying eighth veys on theeducational attainment of its sample. NELS inchildren.14 The NAEP study compared theedu- 1,501 Asian students in cludes a host of informationabout these stu- cational achievement oflanguage-minority and dents, including informationabout their English non-language-minority childrenby race and proficiency. Unfortunately,this study has the ethnicity, where"language-minority" children same drawback asthe NAEP study: NELS sys- were defined aschildren who lived in ahome tematically excludes personswith very low En- where the language spokenby most family mem- glish proficiency fromits sample. To date, there bers was not English.The study found that11th has been only one studyof NELS that concen- grade Asian Americanlanguage-minority chil- trates on AsianAmericanchildren.18 Unfortu- dren read significantlyless well than their non- although little nately, this study does notdistinguish between language-minority counterparts, -Ind children whosefamilies difference was found ingrades 4 and8.'5 Only recent immigrants have been in the UnitedStates for generations. one-fifth of Asian Americanlanguage-minority

Findings from the 1983-1984 Duran, The Educational Progress ofLanguage Minoriv Students: 14 Joan C. Baratz-Snowden andRichard January 1987) (hereafter citedas 1987 NAEP Report). NA EP Reading Survly (Princeton,NJ: Educational Testing Service,

15 Ibid., p. 59, table 21. 16 Ibid., p. 64, table 22. p. 20, table 2. 17 1987 MEP Report, A Study of the 1988 "Diversity of Asian American Studentsand Its implications for Education: 18 SamuelS. Peng and Ralph M. Lee, Natiolial Association for BilingualEducation, Washington, DC, Eighth Graders" (paper presented atthe annual conference of the Jan.11, 1991).

71 The study does show readingand math achieve- dents excel and need2little inthe way of languageas- ment scores separately for eachAsian group, sistance and support. however, revealing considerableheterogeneity in achievement withinthe Asian Americanstu- Finally, the study foundthat self-reported grade dent population. Forinstance, the composite point averages andteacher comments indicated reading and math achievementscores of Chi- that, despite low testscores, Asian language-mi- nese, Japanese, Korean, and South andWest nority children receivedvery high grades. Asian children were well above the nationalav- One local study analyzedthe school records erage, but the composite scores of Southeast of all Southeast Asianchildren in the city of San Asian and Filipino children were average, and Diego schools and alsomatched the schoolre- the scores of Pacific Islanderchildren were well cords with family informationfor a subsample of below average. Children fromall Asian groups the children.22 That studyfound that thecumu- had higher mathscores than reading scores.1 lative grade pointaverages ((PAs) of Southeast State and local studies provide additional in- Asian 11th and 12thgraders in San Dievwas formation on the educational achievement of 2.52, higher than thc whiteGPA of 2.33.The Asian American immigrant children. An analysis average GPA of Southeast Asianstudents who of the performancc oflanguage-minority chil- were classified as LEPwas somewhat lower than dren on the CaliforniaAssessment Program thal ioNhose whowerc noLbut was not lower (CAP) exams concluded: "With few exceptions. than theaverage GPA of native-born whitestu- .. , most immigrant language groups scored dents./4Among Southeast Asians,Vietnamese below the norm in all subjectareas. Southeast and ethnic Chinese studentshad the highest Asian and Hispanic immigrantstudents ap- GPAs, and Hmong studentshad intermediate peared most at risk on the basis of these test GPAs (but still nigherthan those of whitcstu- scores."2° Thestudy also noted that thedata not dents). Laotian and Cambodianstudents had only demonstrated theheterogeneity of the GPAs at or below those of whites.25 Asian American immigrantpopulation, but also The San Dicgo study found,however, that de- dispelled the model minoritymyth: spite theiraverage or above-average GPAs, Southeast Asian 11thand 12th gradersper- The CAP test scores reveal that when results for all formed less well than whitestudents on reading Asian groups are combined, the higher achievement and math achievementtests administered by San of some obscures the need of certain other Asian lan- Diego city schools.26The readingscores of guage subgroups, such as the SoutheastAsians. And Southeast Asian students the relatively lower reading were lower than those and writing scores of all of all othergroups in the city, except for Samoan immigrant Asians shatters themyth that all Asian stu- students, and well belowthe national norm.27

19 Ibid., table 3. 20 Crossing the Border,p. 86. 21 Ibid., p. 87. 22 Ruben G. Rutnbaut and KcnjiIma, The Adaptation of Southeast AsianRefugee Youth: A Comparative Study, Office of Refugee Resettlement Final Report to the (January 1988) (hereafter citedas Adaptation of Youth). 23 Ibid., p. 21a, fig. 3.5. The studyfound that (other) Asian and Filipino students also had grade pointaverages above the white average, but that Pacific Islanders and Samoanshad grade point averages far below the white average (2.01 and1.76, respectively). The Samoan GPA was lower than thatfor any other group. Ibid. 24 Ibid., p. 21c, fig. 3-7. 25 Ibid. 26 The tests used by San Diego city schools are the ComprehensiveTests of Basic Skills.

72 The math scores of Southeast Asian students, al- Dropout RatesThe language and cultural though slightly below those of white San Diego barriers faced by Asian American immigrant students, were somewhat above the national children make them prime candidates for drop- norm. It should also be noted, however, that the ping out of school. Previous research has found scores reported in the study do not reflect the that language-minority students have dropout achievement of students with the lowest English rates that are twice as high as the dropout rates proficiency, because the tests are not adminis- of non-language.minority students.36 "Limited tered to LEP students until their English profi- proficiency in English is a significant factor con- cieng is deemed minimally adequate to take the tributing to students dropping out at all levels of test. education."31 Thereare some indications that The San Diego study's finding that Southeast some groups of Asian American immigrant stu- Asian students have higher grade point averages dents may have high dropout rates. An examina- than other groups, but lower achievement tion of the attrition rates of California school scores, especially in the area of reading confirms districts with high concentrations of LEP stu- the similar finding of the California-wide analy- dents showed that "the highest average attrition sis cited above. The discrepancy between the rate (48 percent) was for the schools with large test scores and grades of Asian American im- concentrations of Southeast Asians."32 High migrant students may be indicative of the hard dropout rates have also been reported for sub- work many Southeast Asian students put in to groups of Asian Amerisans:46.1 percent for evercome the barriers they face; the difficulties Filipino school students' and 60 percent for Sa- lited-English-profident students may have moans34in California. In Lowell, Massachusetts, with time-constrained exams as compared with where approximately 33 percent of the public the type of learning that goes on in the class- school population are Southeast Asians, during room; or students choosing to specialize in the 1986-1987 school year "over half of the courses,suchasmathematics andscience Laotian students who started out the school year courses, where reading achievement is less fun- in the Lowell High School dropped out due to damental. On the other hand, it may also indi- the absence of Lao-speaking staff there to pro- cate that Southeast Asian students are being vide school instruction or counseling."35 given higher grades because they work hard, at- There is very little firm data on the dropout tend regularly and turn in their assignments, or rates of Asian American students, however. The because teachers stereotype all Asian students NAEP study cited above looked at the propor- as high achievers, and not necessarily because tion of language-minority students nationwide they are really learning something.29 who were older than average for their grade level ari who most likely had repeated grades.

27 Ibid., p. 34a, fig. 3.18. 28 Ibid., p. 34. 29 See Crossing the Border,p. 87. 30 Ibid., p. 90. 31 Califorlia State University, Curriculum and Assessment Cluster Committee,California's Limited English Language Students: An lntersegmental Agenda(September 1989), p. 1. 32 Ibid., p, 88. 33 Lisa Javier, Executive Director, Search to Involve Filipino Americans, Los Angeles, CA. Cited inNew Voices,p. 66. 34 Audrey Yarnayaki-Noji, Commissioner, Orange County Human Relations Department. Cited inNew Voices,p. 66. 35 Hispanic Parents Auvisoty Council v. Kouleharas, Civ. Action No. 87-1968-MA (D. Mass., July 31, 1987) at 24.

73 F4: 3 Since grade repetition has long been considered additional evidence on the dropout rates of predictive of subsequent school dropout, these Asian American immigrant students. The NAEP data provide some indications about the dropout study found that in eighth grade, virtually all risks for Asian American language-minority stu- Asian American language-minority students ex- dents. The study found that the incidence of pected to graduate from high school.37 In 11th above-grade ages among fourth and eighth grade, however, 8 percent of Asian American grade Asian American language-minority stu- language-minority students did not expect to dents was comparable to that of Asian American graduate, a larger percentage than for any other non-language-minority students and to that of group.38 The study cautions, however, that be- white students and lower than those of Hispanic cause of the small sample size, the differences and black students. Among 1 1 th graders, how- across groups are not statistically significant.39 ever, only 61 percent of Asian American lan- The study of San Diego high school students guage-minority children were at or below the cited above looks at dropout rates directly. That age of 17 (the modal age for 1 1 th graders), far study found a high degree of variation among less than the roughly 84 percent of both white Asian American groups in their rates of dropout. and Asian non-language-minority children who Pacific Islanders had the highest dropout rate° were 17 or younger. Furthermore, 16 percent of (17 percent) among all the groups in the city, Asian language-minority students were 19 or and Cambodian students in San Diego had the older, more than four times the percentage for third highest (after Hispanics) dropout rate (14 Asian American non-language-minority students percent); the Vietnamese dropout rate (11 per- and 10 times the percentage for white students. cent) was slightly higher than the white rate (10 This percentage was also considerably higher percent). The other Asian American groups had than the percentages for Hispanic language-mi- dropout rates well below that of white students, nority children (12 percent) and for black stu- with Hmong students having the lowest droRout dents (7 percent).36 These data could reflect a rate (5 percent) of all the groups in the city.' large incidence of grade repetitn among Asian The NAEP and San Diego studies are not ad- American immigrant students in high school, or equate in and of themselves as indicators of the alternatively they could indicate that recently ar- dropout rates of Asian American immigrant stu- rived Asian students are placed below their dents, and much more research needs to be grade level in high school to allow them time to done before the dropout patterns of Asian catch up. American immigrant students are known with The NAEP study's question of 4th, 8th, and any confidence. However, these indications of 11th grade students about whether they ex- high dropout rates are disturbing because they pected to graduate from high school provides suggest that schools are failing to meet the

36 1987 NAEP Report, p. 31, table 7. 37 Ibid., p. 33, table 8. Roughly one-fifth to one-quarter of fourth graders of all groups say that they do not expect to graduate from high school. Their responses are unlikely to be sufficiently reliable to warrant serious analysis, Ibid. 38 Ibid. 39 Ibid., p. 32. 40 The dropout rates were measured as the percentage of 10th-12th graders in the school system who dropped out during the 1985-86 academic year. A student wag classified as a dropout if he or she left school and no request from another school system for the student's transcript was received within 43 school days of the student's departure. Adaptation of Youth, p. 53. 41 Ibid., p. 53a, fig. 5-1, This variation in dropout rates among Asian American groups may be accounted for in part by such variables as length of stay in the United States, native language, and ejucational attainment of parents.

R 4 needs of a large number of immigrant Asian pire to professional careers and the most likely children. Many of these children become frus- to aspireto low-status jobs of all the groups in trated over their lack of academic accomplish- the city.Furthermore, when San Diego city ment, feel abandoned by the schools, and turn schools did a followup study to see what became instead to youth gangs and criminal activities.42 of its high school graduates 3 years after gradua- In San Diego, for instarce, there has been a notion, although many Southeast Asian students table growth recently in the number of Cambo- had gone on to college, many others were not in dian gang members, some of whom were school and were unemployed or out of the labor involved in a drive-by shooting that killed a force.47 Hmong soldier who had recently returned from Existing data sources do not provide an ade- thc: Gulf War, and in Sacramento, Vietnamese quate basis for reaching firm conclusions about gang members recently participated in a shop- the educational achievement of Asian American ping mall shootout that killed six people:* immigrant students. They suffer from critical de- Post-High School AspirationsThe post- sign flaws (the exclusion of many limited-En- high school aspirations of Asian American im- glish-proficient students from their samples) and migrant students may be indicative of how well small sample sizes, and they do not always col- they feel they arc doing in school. The NAEP lect enough information to provide a context or study asked 11th grade students about their explanation for their findings. Regardless, on plans after high school. A higher percentage (56 balance, the data suggest that Asian American percent) of Asian American language minority immigrant students, although performing well by 11th graders planned to enter college than for some measures, are leaving our public schools any other group except for non-language-minor- with some serious deficiencies, particularly in ity Asian students." the areas of reading and writing, and that some The San Diego study documents similarly subgroups have high dropout rates. Further- high aspirations for some Asian groups but finds more, the San Diego study's finding of important that others have below-average aspirations. Stu- differences in achievement among Southeast dents in San Diego city schools are asked in 10th Asian grillips underscores the importance of grade what their two top career choices are. The studying Asian groups separately. Relying on av- San Diego study's analysis of their responses re- erage data is likely to provide misleading evi- veals that Vietnamese and Hmong students are dence about the nature of the educational more likely to aspire to professional jobs and problems facing Asian American youth. less likely to aspire to low-status jobs° than any other group. On the other hand, Laotian and Cambodian students were the least likely to as-

42 Kenji Ima, Professor of Sociology, San Diego State University, comments on July 31 Draft Report, pp. 1-2 (hereafter cited as Ima Comments). 43 Ibid. 44 1987 NAEP Report, p. 33, table 9. Seventy percent of A in American non-language-minority students planned to go to college. For comparison, 45 percent of white, 36 percent of black, and 36 percent of Hispnic non-language-minority students and 32 percent of language-minority Hispanics planned to go to college. Ibid. 45 The San Diego study defined clerical jobs, r usonal seivice jobs, police, firc, and military jobs, and blue-collar and agricultural occupations to be "low-status" jobs. Adaptation of Youth, p. 47. 46 Ibid., p. 47c, fig. 4-3. 47 Ima Comments, p. 2.

5 75

BEST COPY MARE The Provision of Educational riou, ,hallenges to our educational system in the Programs for Asian coming decades. A large proportion of Asian American LEP American LEP Students students are recently arrived refugee/immigrant Nationwide, there are 3.6 million school-aged children from Southeast Asia.51 Because South- LEP children.48 The number of LEP students east Asians in the U.S. have a much lower mean has grown considerably in recent years and is ex- age than other immigrant groups, including pected to continue growing during the coming those from Central America,4and Southeast decade. One estimate projected a 35 percent in- Asian women in the U.S. have fertility rates sev- crease in the number of LEP students between eral times higher than that of white women,53 1976 and 2000,49 although this is likely to be a the proportion of the Nation's LEP student serious underestimate? Meeting the needs of population who are Asian Americans is likely to our nation's LEP children is one of the most se- rise considerably in coming years. Even now,

48 In 1982 the U.S. Department of Education reported that there were approximately 3.6 million school-aged language-minority children who were limited in the English-language skills needed to succeed in an English-medium school. U.S. Department of Educa- tion, The Condition of Bilingual Education in the Nation, 1982: A Report from the Secretary of Education to the Presideru and the Congress (1982), p. 2. Subsequently, in 1987 the Department of Education revised this figure to 1.75 million. U.S. Department of Education, Office of Planning, BUdget and Evaluation, "Numbers of Limited English Proficient Children: Nntional, State, and Language-Specific Estimates," April 1987, pp. 7-8. Although estimates vary, the figure of 3.5 million is used by school officials. For example, the Council of Chief State School Officers notes that "approximately 3.5 million children are eligible for special language-related instruction either in English or in the native language." Council of Chief State School Officers, School Success for Limited English Proficient Students: The Challenge and State Response, February 1990, p. 15. 49 Rebecca Oxford-Carpenter, Louis Pol, David Lopez, Paul Stupp, Murray Gendell, and Samuel Peng, Demographic Projections of Non-English-Language-Background and Limited-English-Proficient Persons (kosslyn, VA:InterAmerica Research Associates, 1984), pp. 19, 68. 50 Since the projection used 1976 and 1978 data, it did not take into account the influx of refugees from Southeast Asia and the large number of immigrants who arrived in the United States in the late 197As and during the 1980s, particularly those from Asian countries. As a result, the projection was bound to be an underestimate. The projection for the state of California illustrates the point. The 194.X0 projection for California was 712,900 (see Oxford-Carpen- ter, Demographic Projections, p. 70), but the 1989-1990 school year State survcy of students shows the actual number to be much higher:825,500. James A. Fulton, Administrator, Educational Demographics Unit, California State Department of Education, telephone interview, Aug. 2, 1990 (hereafter cited as Fulton interview). 51 As of Sept. 30, 1989, approximately 920,000 refugees from Southeast Asia had been admitted to I:le U.S. since 1975. The school-age population (6-17) was about 24 percent of the total and an additional 19 percent were young adults aged 18-24. U.S. Department of Health and Human Services, Office of Refugee Resettlement, Report to the Congress: Refugee Resettlement Program (Jan. 31, 2990), pp. 6, 76, and A-1. In California, 53 percent of LEP students of Asian origin are from Southeast Asia, with mast of the remaiader coming from East Asia and the Philippines ("Immigrant Students," fig. 2.), and more than halt of Southeast Asian students in San Diego city schools are classified as LEP laptation of Youth. p. 19c, fig. 3-3. 52 The menn ages for Southeast Asian groups in the Unitec. States are 13 for Hmongs, 18 for Cambodians, 19 for Laotians, and 21 for Vietnamese, respectively. The mean ages for Latin American groups (23 years for Mexicans, 26 years for Dominicans, and 27 years for Jamaicans) are much closer to the U.S. nation: mean age of 30. New Voices, p. 5. 53 Current U.S. fertility rates are:1.7 children per lifetime for white women, 2.4 for black women, and 19 for Mexican American women, compared with 3.4 tor Vietnamese women, 4.6 for Laotian women, 7.6 for Cambodian women, and 11.9 for Hmong women. New Voices, pp. 6-7.

76 one out of every three LET students in Califor- do have Asian American teachers may have nia is an Asian American.- 7:Ius, the education teachers of a different national oligin and/or of LEP students is a national challenge that will teachers who do not speak their language. continue to increase in its scope and magnitude, State and local statistics confirm that Asian particularly for Asian Americans. American LEP students across the country are Providing equal educational opportunity to underserved by ESL and bilingual education Asian American LEP students requires sound programs. A 1987 State of California study student assessment procedures and programs found that Southeast Asians were dramatically orienting them and their parents to American underserved by bilingual education. For exam- society and American schools. Asian American ple, there was a need for 217 Cambodian bilin- LEP students need bilingual education and En- gual teachers statewide, but there were no glish as a Second Language programs staffed by certified Cambodian bilingual teachers in the trained teachers to enable them to learn English State, and only 77 percent of the need was met and at the same time te keep up in school. They by bilingual teachers for whom State-mandated need professional bilingual/bicuitural counseling teacher certificationrequirements had been services to help them in their personal, social, waived. The situation was even worse for and academic development. This section exam- Hmong and Mien students, for whom there also incs whether these needs are being met by our were no certified bilingual teachers, and for public schools. whom only 39 and 11 percent, respectively, of There is no national data source showing how the need was filled by teachers on waiver. The well served Asian American LEP students are by situation for Vietnamese and Laotian students English as a Second Language (ESL) and bilin- was slightly better, with virtually all of their gual education programs and other educational needs being met by teachers onwaiver.56 A sim- services. A proxy for the extent to which Asian ilar situation prevailed in Massachusetts, where American students are served by bilingual edu- there were no certified bilingual teachers to cation programs is the frequency with which serve 2,356 Cambodian and 2,604 Thai LEP stu- they are taught by Asian American teachers. dents. There were three certifiedbilingual The nationwide NAEP study discussed above teachers to serve 276 Laotian LEP students and found that an extremely small proportion ofeight certified bilingual teachers to serve 833 Asian American language-minority students arc Vietnamese LEP students. There were one taught by Asian American teachers: 4.7 percent Cambodian guidance counselor, two Vietnam- of 4th graders, 3.3 percent of 8th graders, and ese guidance counselors, and no Laotian Thai 0.4 percent of 11th graders. As a point of refer- guidance counselors in the entire State. ence, it should be noted that ,much higher per- Not only 'are Asian American LEP students centages of Hispanic language-Iiiinority students underserved by bilingual teachers in California, Are taught by Hispanic teachers (21.0 percent of but the situation has deteriorated in recent the 4th graders, 15.9 percent of the 8th graders, years. The number ^f Asian-language bilingual and 23.7 percent of the 11th graders).55 Further- teachers declines reent and the number more, Asian American immigrant students who of Asian languat, rer,elie s in training declined

MIMMILIIMIM 54 Approximately 255,000 of the 825,500 LEP students in California are Asian Americans. Fulton interview. 55 These figures are for reading and English courses../987NAEP Report, p. 51, table 17. 56 California State Depai iment of Education Data 13ical Report No. 87-9C, cited in "Southeast Asian Students: Facing the Language Challenge." 57 Tables provided by Dr. Juan Rodriguez, Program Director, Bilingual/ESL, College of Education, University of Lowell, Lowell, MA

77 F.k7 by 58 percent between 1988 and 1990.58 A re- about 6,000 LEP students speaking 74 other lan- cent report to the California Department of Ed- guages f% whom not a single bilingual teacher was ucation concluded: available.

On the whole, the number of fully certificated Asian The study noted that LAUSD's 967 Cambodian language bilingual teachers has decreased from 1985 students, who had no bilingual teachers available to 1990. Both waivered teachers and classroom aides to them, were among the slowest to be trans- had stepped into the breech, a less than desirable sit- ferred to all-English curricula because of their uation. Many waivered teachers were not knowledge- generallyudeprived socioeconomic back- able of the child's primary language, and the aides are grounds. not, for the most part, professionally trainoa. In 1988, In the Fresno (California) Unified School waivered teachers were eliminated and their place District, roughly 19 percent of the students en- taken by "English language development teachers"; rolled in the 1990-91 school year, or 12,659 stu- and in 1990, they were joined by monolingual English dFmts, were Asian Americans.62 Approximately speaking teachers who were added to the primary lan- 80 percent of Fresno's Asian American students guage "teacher in training."..in effect, Asian primary language teachers have declined and are being were classified as LEP, and 99 percent of replacedy monolingual English speakers and pri- Fresno's LEP Asian American students were mary language aides. This mean , a deterioration of Southeast Asian.63 During this school year, how- the teaching force caRocity to provide Asian primary ever, there were no Southeast Asian bilingual language instructions. teachers in the district and no Southeast Asian. was in training to become a certified bilingual Local statistics show a similar picture. An teacher.64 Thus, nearly 10,000 Southeast Asian analysis of 1987 data on instruction of LEP stu- LEP students spent the entire school year with- dents in the Los Angeles Unified School District out a single Southeast Asian bilingual teacher. (LAUSD) found: Like Fresno, the Stockton (California) area had a large influx of refugees from Southeast [I]n 1987 only 7 of the 81 languages spoken by LEP Asia in the 1980s, and the situation of the Stock- students were served by bilingual teachers, and dis- ton Unified School District parallels that of trict-wide the LAUSD had only one bilingual teacner Fresno. Of Stockton's total student enrollment for every 100 LEP students. Of the 1,478 bilingual ele- in the 1990-91 schoel year, 28 percent were mentary teachers in the LAUSD in 1987...1,409 Asian Americans68 percent of whom are (95%) spoke only Spanish as their second language. counted as LEP.63Of the Asisn American LEP The remaining bilingual teachers consisted of 33 Can- tonese speakers, 28 Korean, 4 Japanese, 2 Armenian, students, 84 percent, or 5,606 students, were and one Pilipino and Vietnamese each. There were Southeast Asians 66 Yet there were no South-

58 Kenji Ima, 1Vhat Do We Know About Asian and Pacific Islander Lationiage Minority Students? Report to the Bilingual Education Of- fice, California Department of Education (1991), table 12. 59 Ibid., pp. 25-26. 60 "Immigrant Students," p. 10. 61 Ibid. 62 Richard Diaz, consultant, California Statl! Department of Education, Office of Program Evaluation a.id Research, Educational De- mographics Unit, telephone intervim, Oct. 8, 1991 (hereafter cited as Diaz interview). 63 Judy Lambert, bilingual education consultant, California State Department of Education, Office of Bilingual Education, telzphone interview, Oct. 8, 1991 (hereafter cited as Lambert interview). 64 Ibid. 65 Diaz interview.

78 east Asian certifiedbilingual teachers in the en- gual programs difficult to implementand has drasti- and the tire district.° cally upset the success of bilingual programs universally In the Providence (Rhode Island)school dis- students who need them. This is the most of the stu- reported problem throughout the state. Toprovide trict, as of October 1990, 12 percent by immigrant Americans, but the primary language support needed dents enrolled were Asian all levels, specially credentialed staff are constituted students teachers of Asian American ancestry desperately needed, but in district afterdistrict where in the dis- less than 1 percent of the teachers we did our research, wefound that need going unmet. trict.68 Approximately 96 percent of the Asian ...This shortage is particularly acute forIndochinese American studentswere SoutheastAsians, languages, even with thureat mrity of teachers for about 60 percent of whom were LEPstudents these groups on waiver. (i.e., approximately 1,450 students areSoutheast Asian LEPstudents)." Across the entire dis- The study also found thatschool orientation trict, however, there was not oneSoutheast programs for newcomers werein most cases Asian teacher in FSLfbilingualclasses." And in nonexistent.74 spite of the large number ofSoutheast Asian The quality of programs intendedfor LEP LEP students, not even onecounselor was ei- students is as important as the presenceof bilin- tilts So:AheastnAsian or spoke or .understood gual teachers and counselors. A reviewof a few existing programs their language. selected districts shows that In October 1990 the Lowell(Massachusetts) are generallyinadequate. For example, a 1989 of the school district had about 3,300Southeast Asian compliance review of the LEP programs (largely Cambodian) students,constituting 26 Providence school district identifiedserious defi- percent of the totalenrollment, but only 37 ciencies, which included: teachers, or 4 percent of allteachers, of South- infor- ancestry.72 1)Identification of LEP students and east Asian A review of A recent assessmen: ofthe educational ser- mation on them were inaccurate. iiCalifornia 3,000 LEP census forms revealed1,200 er- vices provided to LEP studenis 75 schools concluded that they weregenerally inad- rors. equate, and there are noindications that Cali- placement decisions fornia does not typify the Nation as awhole: 2) The assessment and regaiding LEP students were madewithout consulting teachers and districtstaff," In many districts a critical shortageof trained bilingual teachers, counselors and aideshas made hilin-

=MILO 11.0.01 66 Lambert interview. Southcast Asian (20 Cambodian, 4 Lao, and 6Vietnamese) teachers were in 67 Ibid. The situation may improve in the future since 30 training to become certified bilingual teacners in the1990-91 school year. Ibid. Providence School District, RI, telephone interview, Oct.8, 1991. 68 Paul Vorro, Assistant Superintendent for Personnel, Providence (RI) School District, telephoneinterview, Oct. 8, 1991. 69 Fran Momberg, Supervisor, ESL/Bilingual Programs, 70 Ibid. 71 Ibid. School District, telephone interview, Oct. 8, 1991.!i the past 2 years, the number of 72 George N. Tsapatsaris, Superintendent, Lowell Southeast Asian teachers Southeast Asian teachers has increased from 20 to 37.Efforts are being made to increase Ile num oer of further. Ibid. 73 Crussing the Border,pp. 59-60. 74 Ibid., p. 71. 1987-1988(1989), p. b. /5 Rhode Island State Department of Education,Basic Education Program Monitoring Report, Part a,

79 3) The quality of Eng!ishas a second lan- learn and have accepted and internalized their "dis- guage instruction was hampered by the large abilities" as their own pcxsonal attribute. ...Theover- numbers of students and their varying levels all decrease in participation in classroom activities of English proficiency77 and the documented deterioration of readingand writing skills show that some of these children didnot 4)Teachers were not following curriculum see mgsh hope of ever improving their perfor- parallel to that of the English monolingual mance. students in all th r:. academicareas. School personnel exhibited prejudice againstIn- An ethnographic study of Hmong studentsat- dochinese students: tending school in La Playa, California, revealsan even more dire situation for limited-English- Racial prejudice abow. the ability of Indochinesechil- dren in La Playa, whether conscious proficient students.78 The authors of thisstudy or unconscious, found that some Hmong students, rather is deeply rooted in the misperception by mainstream than teachers and peers that these children being given adequate language instruction, are academi- were cally incompetent because they have placed in programs for learning disabled chil- an inferior intelligence or an inferior culture, not because they havea dren, in large part because of their limited En- different set of apernces leading to differentvalues glish proficiency: and cognitive system.

To confirm teachers' suspicion that children's "dis- And they were insensitive to the culturalbar- abilities" and academic failureswere always a per- riers facing their students: sonal characteristic, the.. .childrenwere tested by the school psychologist,,..and.. .were officially decland There is a serious ignorance and pervasive insensitiv. "handicapped...." It did not matter that the testing ity by school personnel and textbook writers regard- took plave in English, a language the children didnet ing the inherent inaccessibility and confusionfor understand, ot that the information leadingw teacher minorities reading text written with mainstreammid- referral was not accurate, or that the child's perfor- dle-class American children in mind. Such in sitiv- mance in domgins such as art or mathematicswas ity to the obvious cultural and linguisticgap between above average. minority home cultures and mainstream cultures paves the way for school personnel to stereotype and Rather than making educational progress in the undEestimate minority children's learningpoten- learning disabled program, the children became tial. increasingly isolated, disengaged from theclassroom, and depressed. The authors found: Thus, the school did noteven begin to meet the educational needs of the LEP Hmong children The most disturbing finding inour research was that studied by these authors. some Indochinese children have stopped trying to 1=1, 76 Ibid., p. 246b. 77 Ibid., p. 247b. 78 Trucba, Jacobs, and Kirton, Cultural Conflict and Adaptation: Me Case of thnong inChildren in Arnerican Society. 79 Ibid., pp. 104-05. 80 Ibid., p. 81 Ibid., pp. 103-04. 82 Ibid., pp. 105-06.

80 J Equal Educational School District broughta classaction suit Opportunity for LEP against officials of the school district. Inthis Students: Legal Protections landmark suit the plaintiffs sought relief against and Federal Enforcement alleged unequal educational opportunitiesre- sultip; from the officials' failureto establish a It is a violation of Federal civil rights lawsto program to rectify the students' language prob- deny a meaningful opportunity for limited-En- letn. The U.S. District Court for the Northern glish-proficient (LEP) students tc orticipatein District of California denied the relief sought by a public educational program, and school sys- the pi iintiffs.85 tems are required to take affirmative steps to The Ninth Circuit Court of Appeals affirmed rectify the language deficiency of LEPstu- the district court's denial of the relief, citing the dents.83 Thissection discusses how a crucial Sl- lower court's reasoning: that the students' rights preme Court case brought by Chinese American to ail education and to equal educational oppor- students and their parents helpedto shane the tunities had been satisfied because they received law pr Itecting all LEP students, reviews the re- "the same education made availableon the same cent history of Federal enforcement of the rights terms and conditions to the other tens of thou- of LEP students,84 and describestwo recent sands of students in the San Francisco Unified court cases involving Asian American LEPstu- School District."86 The court held that the dents. school district had no duty "to rectify appellants' special deficienc;es, as longas they provided The Lau Decision these students with access to thesame educa- In the early 1970s, frustrated by the persistent tional system made available to all otherstu- inattention to their needs by school officials, dents.',u, non-English-speaking students of Chinesean- Thus, the court of appeals rejected theargu- cestry enrolled in the San Francisco Unified ment that the school district had an affirmative

83 We VI of the Civil Rights Act of 1964 bans discrimination basedon race, color, and national origin ny any program recziving Fed- eral financial assistance, which includes the nation's public schools.It states: "No person in the United States shall,on O.: ground race, color, or natiorul origin, be excluded from participation in, be deniedthe benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistrnce." (42 U.S.C. §2000c.) Title VI has been interpretedto require schools to take affirmative steps to provide instruction to LEP students. (Lau v. Nichols, 414 U.S. 563 (1974).) See belowfor a detailed discussion of theLaudecision. The Equal Education Opportunity Act (EEOA) of 1974 also providzs a statutory basis for protecting the equal educationalopportunity rights of LEP students. It specifically states: "No State shell deny equal educational opportunityto an individual on account of his or hcr race, wlor, sex, or iational origin,by "(f) the failure by an educational agency to take appropriateaction to overcome language barriers that impede equal participation by its students in its instructional programs." (20 U.S.C. §1703.) 84 For a thorough review of the Federal enforcement during the Reagan years and before of laws dealing with language-minoritystudents, including a discussion of the enforcement of both civil rights laws and the 131,.nr, ,r; Education Act, which providesFederal funds for the education of language-minority students to school districts, see Elliot ;./ -berg,Naomi Cahn, Marcia R. Isarrson, and James J. Lyons, "The Problems of Segregation and Inequality of Educational Upportunity," chap. 7,pp, 88-127, in Citizens' Commission on Civil Rights, One Nation Indivisibk: The Civil Rights Challenge of the 1990s(1988) (hereafter cited asCitizens' Conunission Report). 85 483 F.2d 791 (1973). 86 id at 793. 87 Id

81 duty to provide language instruction to com- ticipate in the public educationalprogram93 and pensate for students' languagehandicaps.88 The that "there is no equality of treatmentmerely by court also concluded thatthe school district's providing students with the same facilities, text- failure to ga ve non-English.speakingstudents books, teachers, andcurriculum."94 The Court special attention "does not amo8t9mt to a'denial'. further pointed out that since the CaliforniaEd- ucation Code requires proficiency in English as ..of educational opportunities"and its responsibility "extends no further than to providethem a prerequisite forgraduation, and basic English with the same facilities, textbooks, teachersand skills are at the core of what public schools curriculum as is provided to other childrenin the teach, it makes a "mockery of publiceducation" have ac- district."90Thedissentingjudge,however, to require that a child must already pointed out that: quired those basic skills in order topaOicipate effectively in the educational program.Thus, it when [a student] cannot understand thelanguage em- in Lau v. Nichols the Supreme Court made ployed in the school, he cannot be :aid to have aned- clear that under Title VI school districts'obliga- ucational opportunity in any sense.. ..Hiseducational tion to provide equal educational opportunity opportuhity is manifestly unequal even thoughthere is for all children includes the responsibility totake an illusion of equalitysince the facilities, books, and affirmative steps "to rectify the language defi- teachers made available are the same asthose made ciency in order to open" programs toLEP chil- available to the rest of the students. . .A pupilknow- dren.96 ing only a foreign language cannot besaid to have an educational opportunity ftqual to his fellow students unless and until he wires some minimalfacility in Federtil Enforcement nf 'Ma VI the English language. kilter Lau Development of Guidelines for Compliance In 1974 the U.S. SupremeCourt, in Lau v. with the Lau DecisionTheenforcement and Nichols,unanimously overturned the lower compliance oversight responsibility for TitleVI court's decision, finding that the SanFranc:o lay originally with the Office for CivilAights in Unified SchoDistrict had violated Title V1 of the Department of Health, Education,and Wel- the Civil Rights Act of1964.92 The Suprem fare (OCR/HEW), and when the Departmentof Court held that thc school district'sfailure to Education was formed, it fell to the Officefor provide English-language instructiondenied a Civil RiAhts i:, the Department of Education meaningful opportunity for LEP students to par- (OCR).

88 kiat 797. 89 Idat 797. 90 Id.at 799. 91 Id.at 801. 92 414 U.S. 563 (1974). 93 hiat 568. 94 Idat 566. 95 Id. 96 Id.at 570,quoting45 C.F.R. §80.3 aseq.(Stewart, 1, concurring). OCR is responsible for enforcing the following 97 In addition to Title VI of the Civil Rights Act of 1964 (42U.S.C. §2000da seq.). Federal civil rights laws prohibiting discrimination in federally assistededucation programs and r.ctivities: a seq.); 1) Title IX of the Education Amendments of 1972, whichpeohibits discrimination on the basis of sex (20 U.S.C. §1681 (29 2) sec. 504 of the Rehabilitation Act of' 1973, whichprohibits discrimination on the basis of physical and mental handicap

82 2 Since the Lau Court did not address what Dished in the Federal Register a Notice ot Pro- kind of special instruction schools should proposed nulertvng (NPRM), which required vide to LEP students, it became necessary for school districts receiving Federal assistance to OCR/HEW to develop guidelines to help school provide special inshuction toall LEP stu- districts understand their responsibilities it) lan- dents.102 guage-minority students under Title VI as inter- The NPRM was wkiely criticized as too pre- preted in the Lau decision. The guidelines, scriptive, 03 however, and it was officially with- usually referred to as the "Lau Remedies" or drawn in the early days of the first Reagan "Lau Guidelines"98 were issued in August 1975 administration (February 1981). Subsequently, and widely circulated in memorandum form to on December 3, 1985, OCR issued a new set of school officials and the public. Although the Title VI compliance procedures!" Like the Lau Remedies were neither published in the 1975 Lau Remedies, the 1985 compliance pro- Federal Register nor promulgated as formal regu- cedures were never published in the Federal lations, they quickly evolved into the de facto Register, but they remain OCR's stated policy. aandards that the OCR/HEW staff applied to The 1985 procedures reaffirm that school dis- assess school districts' compliance with Title VI tricts serving LEP students must "tagce affirma- under Lau.99 In subsequent years, several court tive steps" to open their instrustional programs decisions were based on whether or not the Lau to language-minority students.") In determining Remedies had been followee° In 1978, how- whether a school district has taken appropriate ever, the Northwest Arctic School District in steps, they are not prescriptive, however: Alaska filed a suit challenging OCR/HEW's use of the Lau Remedies as the basis for determin- In providing educational services to language minority ing Title VI compliance on the grounds that the students, school districts may use any method or pro- Remechel had never been published in the Fed- gram that has proven successful, or may implement eral Register or promulgated as formal regula any sound educational program ;hat promises to be tions. In a zent decree, OCR/HEW agreed to successful. Districts are expected to carry out their publish formal Title VI Lau compliance guide- programs, evaluate the results to make sure the pro- lines at the earliest practical date.im In August gramsre working as anticipated, and ng1ify programs that do not meet these expectations. 1980, in compliance with the consent decree, the newly formed Department of Education pub-

U.S.C. §794), and 3) the Age Discrimination Act of 1975, wLich prohibits discrimination on thc basis of age (42 U.S.C. §6101et sei.) 98 Officially entitled "Task Force Findings Specifying Remedies Available for Eliminating Past Educational Practices Ruled Unlawful Under Lan v. Nichols." 99 11.S. Department of Education, "The iice for Civil Rights' Title VI Language Minority Compliance Procedures," issued Dec. 3, 1985, reissued Apr. 6, 1990, p. 2 (hereafter cited as "Title VI Compliance Procedures"). 100 For example, see Serna v. Portales Municipal Schools, 499 F.2d 1147 (10th Cir. 1974); Cintron v. Brentwood Union Free School Districts, 455 F. Supp. 57 (E.D.N.Y. 1976); and Rios v. Reed, 480 F. Supp. 14 (B.D.N.Y 1978). 101 Northwest Arctic School District v. Califano, No. A-77-216 (D. Alaska Sept. 29, 1978). Cited in James J. Lyons,Legal Responsibili- tks. of Education Agencies Serving National Origin Language Minority Students(Washington, DC: Mid-Atlantic Equity Center, American University, 1988). 102 45 Fed. Reg. 52,052 (1980). 103 Lyons. Legal Responsibilities of Education Agencies,p. 19. 104 'Title VI Compliance Procedures." 105 Ibid., p. 2.

83 9 3 OCR Enforcement of the Rights (If Lan- taken as agreed.112 An Education Week analysis guage-Minority StudentsIn recent years OCR of the data found that: has received substantial criticism for its alleged failure to enforce Title VI requirements aggres- [o]f the 78 plans negotiated or renegotiated under the sively. In 1988, for instance, a Citizens' Commis- Reapn Administration, only 6 have been the targets siononCivilRightsanalysisof OCR's of subsequent monitoring or compliance reviews. enforcement activities came to the following From 1981 to 1983, 44 districts failed compliance re- conclusion: "With respect to ensuring equal ed- views and agreed to make changes. But OCR re- ucational opportunity for limited-English-profi- turned to ally two of these for later review or monitorLig. cient students,...,OCR [has] failed to fulfill [its] responsibilities over the last eight years."107 Sim- Other oversight functions of OCR such as com- ilar charges of OCR's nonenforcement of its ob- plaint investigation and monitoring visits also ligations were made repeatedly at congressional declined sharply.114 In the 202 reviews OCR had oversight hearings held in1982,1985, and conducted since 1981, it found a 58 percent rate 1987.1' of compliance violation with Title VI.115 In 1985 Congress requested OCR to compile The steady and mounting criticism of OCR data on its enforcement activities.1" These data led to a 1988 congressional investigation of revealed that during the period from 1981 OCR enforcement activities.116 This investiga- through 1985 school districts were nine times tion concluded that "the agency has adamantly less likely to be scheduled for a compliance re- failed to enforce the civil rights laws according view than during the previous 5-year period.11° to its mandate"117 and that "the history of OCR During this same period, OCR conducted only is a history of letharg, defiance, and unwilling- 95 compliance reviews covering 65 districts, ness to enforce thelaw."118 Some of the major compared with 573 districts reviewed between findings of this report were: 1976 and 1980.111 Whcn violators agreed to take corrective action, OCR officials rarely made site visits to see whether corrective actions had been

106 Ibid., p. 3. 107 Citizens' Commission Report, p. 123. 108 U.S. House of Representatives, Committee on Education and Labor, A Repon on the Inveatigation of the Civil Rights Enforcement Activities of the Office for Civil Rig/us, US Depanmem of Education, H.R. Serial No. 100-FF, 100th Cong., 2nd Sess. (1989), pp. 20- 21 (hereafter cited as Investigation of OCR). 109 In December 1985 the House Education and Labor Committee, the Judiciary Subcommittee on Civil and Constitutional Rights, and the Governoient Operations' Subcommittee on Human Resources and Intergovernmental Relations requested enforcement data from OCR, which was then analyzed by Education Week, resulting in a report. James Crawford, "U.S. Enforcement of Bilin- gual Pbns Declines Sharply," Education Week, vol. V, no. 37 (June 4, 1986), p. 1. 110 Crawford, "Enforcement of Bilingual Plans Declines," p. 1. 111 Ibid., p. 14. 112 Ibid., p. 1. 113 Ibid., p. 15. 114 Ibid., p. 1. 115 Investigation of OCR, p. 2. 116 Ibid. 117 Ibid., p. 1. 118 Ibid., p. 20.

84 1) OCR "has not vigorously enforced laws investigated and on the number of complaints protecting the rights of women and minorities it had found to be justified, and he argued in education since 1981.419 that "OCR has no control over the kinds of complaints it receives or the merits of those 2) "There was a clear perception among the complaints."123 [OCR] regional office staff that certain issues were 'off limits' and could not be investigated. 2) In response to the second "off limits" find- Most of the issues involved race discrimina- ing, Smith stated "except for thosc issuesover tion. Among such issues were: discrimination which OCR has no jurisdiction, no issues are involving disciplinary actions and the 'pface- 'off limits' to OCR. All issues that arise ment of black students in special education through the complaint process are treated programs.,4 equally, and investigations are carried out as necessary to resolve any, issues raised by the 3) "The National Office made it virtually im- complaint allegations."1'7 possible to find a violation of the civil rights laws because the standard of proof required 3) In response to the allegation that OCR's to establish a violation was a stringent 'intent' national office had adopted an "intent" stan- standard, which many regional staff inter- dard of proof, Smith stated that "the regula- viewed believed was not required by the tions do not require proof of intent to courts."121 discriminate to find a violation of Title VI.. .The regional offices have never been told At a House Committee on Education dnd that a violation of Title VI will be found only Labor oversight hearing on November 28, 1989, if thc regional offices can obtain evidence of then-Acting Assistant Secretary for Civil Rights intent to discriminate. All evidence gathered William L. Smith made a point-by-point re- in an investigation, including any evidence of sponse to the findings of the 1989 report.122 Re- an intent to discriminate, is evaluated under garding the specific findings listed above, Smith thepertinentregulationstodetermine responded as follows: whether the tecipients are in compliance."125

1)In response to the first finding, Smith Faced with continuing allegations of OCR's noted that the finding was based on statistical neglect of its oversight responsibility and the evidence on the types of complaints OCR had lack of evidence of visible improvement, Con-

119 Of the 9,768 comp'aints investigations initiated by OCR during FYs 1981-1988, only 3 percentwas related to national origin discrimination allegations, 15 percent to race discrimination, am: 17 percent to gender discrimination. Of the 1,378compliance reviews initiated, only 46 related to national origin discrimination issues and 162 to race discrimination. Ibid.,p. 2. 120 Ibid., p. 4. 121 Ibid., p. 5.

122 William L. Smith, Acting Assistant Secretary for Civil Rights, U.S. Department of Education. "ce for Civil RightsResponse to the Committee on Education and Labor Staff Report Entitled Investigation of the Civil Righs EnforcementActivities of the Office for Civil Rights, U.S. Department of Education," pp. 302-271 in U.S. House of Represen'atives, Committeeon Education and Labor, Hearing on the Federal Enforcement of Equal Eclucational Opportunity Laws, H.R. Seival No. 101-73,101st Cong., 1st Sess. (1990). 123 Ibid., p. 311. 124 Ibid., p.333. 125 Ibid., p. 334.

85 9 5 gress requested the General AccountingOffice Lau, and OCR also has provided guidance and (GAO) to conduct an investigation of OCR ac- training to its regional staff on procedures for in- tivities. hA July 1991, GAO released a report on vestigations involving charges of noncompliance OCR's enforcement activities with respect to with Title VI as interpreted by the Lau Court.'" within-school discrimination which found that the number of compliance reviews conducted by Two Recent Court Cases OCR in this area declined between 1987 and In recent years, two successful lawsuits have 1990, that OCR had not issued much internal been filed on behalf of Asian American LEP policy guidance on how to conduct compliance students. In each case, school officials agreed to reviews on this topic, and OCR had not ade- take affirmative steps to remedy the language quately monitored districts' correctiveactions.'26 deficiency of students to bring the defendant In response to GAO's findings, Assistant Secre- school district into compliance with Title VI tary for Civil Rights Michael L. Williams noted under Lau. One of these suits was in Philadel- that the number of compliance reviews had de- phia, Pennsylvania, and the other in Lowell, clined in all areas because of a dramatic increase Massachusetts. in the number of complaint investigations OCR Y.S. v. School District of Philadelphia needed ro undertake, that OCR had already More than 20,000 refugees from Southeast Asia prepared a draft of the written policy guidance settled in Philadelphia after 1975, and in the on how to conduct within-school-discrimination early 1980s it became apparent that Asian LEP compliance investigations, and OCR had re- students were failing in large numbers at the ju- cenitk made monitoring compliance a top prior- nior and senior high schools, and that their edu- ity. cational needs were not bcing met in significant OCR made "Equal Educational Opportuni- ways. Informal regotiations with district officials ties for National-Origin Minority and Native- failed to coroduce any results. In December 1985 American Students Who are Limited-English a lawsuit31was filed against the Philadelphia Proficient" its number one priority issue for fis- School District by the F4ucation Law Center, a cal year 1991:28 OCR is planning to increase public interest law firm, on behalf of Asian LEP the number of compliance reviews it undertakes students. It was the first Federal lawsuit con- in this and WI(high priority areas:29 In Sep- cerning the affirmative obligation of a school tember 1991 Ash.. tant Secretary Williams issued district toward its LEP students since the Su- a policy update on schools'obligations under preme Court's Lau decishn in1974.132 The suit

126 U.S. General Accounting Office,Within-School Discrimination:Inadequate Title VI Enforcement by the Office for Civil Rights (Washington, DC: Government Printing Office, 1991), pp. 4-5.

127 Michael L. Williams, Assistant Secretary for Civil Rights, letter to Franklin Frazier, Director, Education and Emp!oyment Issues, U.S. General Accounting Office, May 10, 1991, as printed in ibid., pp. 73-77. 128 Michael Williams, Assistant Secretary for Civil Rights, "National Enforcement Strategy, Office for Civil Rights: FYs 1991-1992," Dec. 11, 1990. 129 In fiscal year 1991, OCR initiated 12 Title VILaucompliance reviews out of a total of 40 reviews initiated. OCR is planning to increase the number ofLaucompliance reviews still further in fiscal ycar 1992. Michacl 1.. Williams, Assistant Secretary for Civil Rights, U,S. Department of Education, letter to Wilfredo J. Gorraez, Staff Director, U.S. Commission on Civil Rights, Oct. 16, 1991, p. 1. 130 Ibid, p. 2. 131 Y.S. v. School District of Philadelphia, C.A. No. 85-6924 (E.D. Pa., 1985). 132 Len Rieser,A Short History of Y.S. v. School Disaict of Philadelphia(Education Law Center: July 1990), rp. 1-2.

86 fG alleged that the school district had failed to take ment, the district was to undertake a set of im- sufficient steps to address the problems stem- mediate remedies and appoint a cabinet-level ming from LEP students' and their parents' lan- officer who would develop and implement a guage handicaps, and that as a result the long-range remedial plan to be implemented students were without adequate counseling ser- under the court supervision. The court has re- vices, bilingual instruction, and special educa- tained jurisdiction of YS. at least through mid- tion. It further alleged that the students' parents 1993, and has demonstrated an interestin were denied meaningful notice and an opportu- e-_-:Asuring that its orders are carried out.137 nity to be heard with respect to decisions about HispanicParentsAdvisoryCouncil v. their children's education.133 KouleharasOnJuly 31, 1987, a lawsuit was Plaintiffs' efforts to interest the district in filed against the Lowell School Committee on reaching an out-of-court settlement drew no behalf of Hispanic, Southeast Asian, and other substantive response until the court began the language-minority students alleging unconstitu- process of scheduling a trial date in late 1987. As tional segregation and denial of educational op- the trial became imminent, the district indicated portunitiestostudents of limitedEnglish that it would consider a settlement.134 The re- proficiency.138 The minority enrollment in the sulting negotiations eventually produced an "In- Lowell Public Schools had been approximately 4 terim Remedial Agreement,"which was percent in 1975, but, with the heavy influx of approved and entered by the court on May 4, Southeast Asian refugees starting in the late 1988.135 In the agreement, the district "recog- 1970s, it had rcached 40 percent by 1987.139 In nizes and accepts its obligation to facilitate the the 1986-1987 school year, one-half of all minor- linguistic, academic, and cultural transition of ity students were enrolled in bilingual/bicultural language minority students in the public school educational programs, and about 60 percent of system. Additionally, the intent of [this plan is] the enrollees were Southeast Asian students.149 to facilitate and support such transition while These minority students were concentrated in maintaining and fostering an appreciation and several schools141 with substandard facilities. respect for the cultures and languages of lan- The suit charged that: guage minoritystudents."136 Under theagree- 1low 133 Ibid., pp. 1-2. 134 Ibid., p. 4. 135 Y.S. v. School District of Philadelphia, C.A. 85-6924, Interim Remedial Agreement, entered ED. Pa., May 4, 1988. 136 School DiL:rict of Philadelphia, Office of Curriculum,Proposed Remedial Plan for Services to Asian LEP Students(December 1988),

P.4. 137 Quarterly reports, which are reviewed and countersigned by the plaintiffs, are submitted to the court for review. Plaintiffs seem to be reasonably satisfied with the progresses made by the school district. For example, see Leonard Rieser, "Fourth Quarterly Re- port to the Court for Y.S., et al., v. School District of Philadelphia, C.A. No. 85-6924," Apr. 16, 1990. 138 I lispanic Parents Advisory Council v. Konleharas, Civ. Action No. 87-1968-MA. 139 Peter NiPm-chu Kiang, "Southeast Asian Parent Empowerment: The Challenge of Changing Demographics in Lowell, Massachu- setts,"Asian American Policy Review,vol. 1, no. 1 (1990). With 25,000 Cambodian residents, Lowell now has the second largest community of Cambodian refugees in the country after Long Beach, CA. In addition, Lowell has approximately 5,000 residents from other Southeast Asian countries. Ibid. 140 Hispanic Parents Advisory Council v. Kouleharas, at 18-19. 141 For example, in 1986, !he Ames School and the Moore Street School had 73.9 percent and 72.1 percent minority students, respec- tivet. The adoption of the Boys Club as a school resulted in 100 percent minority enrollment.(Idat 18.) During the 1989 school year, when Southeast Asian students made up roughly 23 percent of Lowell's total enrollment, there was one school that was 64 per-

87 9 7 1)Bilingual students are unlawfully segre- gual staff personnel,148 better identification of gated and hc,used in "inappropriate, over- LEP students, and prompt service to them.149 crowded, substandard,...unsafe facilities."142 Also contained in the plan was a dropout prevention and recovery program,15° a noteworthy 2) There is an "insufficient number of per- feature that responded to the hip dr pout rate sonnel to implement the hilingual/bicultural of LEP students in Lowel1.15Since its in- education programs."143 and ception, 30 students have graduated from the program with a high school diploma, and there 3) Defendants created an employment bar- are approximately 80 students participating in rier to hiring linguistic minority candidates by the program at any one time." Among those "deliberately refus[ing]" to abandon the pass- monitoring the hrplementation of the plan, ing of the National Teachers Examination test there is a shared sense of some progress:33 as aprerequisite.144 Racial Tensions in Public The suit resulted in a settlement under which the Lowell Public Schools adopted a Voluntary Schools Lau Compliance Plan,145 which was character- Public high school campuses throughout the ized as a model "pointil a direction in which Nation are confronted with a high level of racial the tide can be turned."16This plan contained tension and are often marred by incidents of big- specific remedial prgyiisions regarding equitable otry and violence. Several recentstudies1on student assignment, increasing qualified bilin- immigrant/refugee students in public schools

cent Southeast Asian and four oth. r schools with Southeast Asian percentages above 40 percent. It also had four schools that were 5 percent or less Southeast Asian. (Materials provided by Dr. Juan Rodriguez, Program Director, Bilingual/ESL, College of Educa- tion, University of Lowell, Lowell, MA.) 142 Ibid., p. 20. 143 Ibid., p. 22. 144 Ibid., P. 23. 145 Lowell Public Schools, Lowell, MA, Voluntary Lau Compliance Plan (Oct. 28, 1988). 146 Camilo Perez-Bustillo, Chief Counsel for Plaintiffs, cited in Deborah L. Gold, "Legal Settlement in Bilingual Case Hailcd as Model," Education Week, vol. VIII, no. 16 (Jan. 11, 1989). 147 Consent Agreement at 1-2. 148 Id. at 13-19. 149 Id. at 22-24. 150 Id. at 26-28. The program is conducted at a community college instead of at the Lowell High School so that the dropout students do not have tc come back to the same setting that they decided to leave. Courses are taught by the teachers from the Lowell High School to ensure program quality, am.' counseling services are offered through interpreters or bilingual counselors. James T. Foye, Director of Guidance, Lowell (MA) School District, telephone interview, Aug. 21, 1990 (hereafter cited as Foye interview). 151 "Hispanic, Cambodian, and Laotian linguistic minority students have dropped out of the Lowell Public Schools at a disproportion- ate rate throughout the period of time that the Lowell Public Schools have failed to comply with federal law respecting treatment of these students... During the 1986-1987 school year, over half of the Laotian students who started out the school year in the Lowell High School dropped out due to the absence of Lao-speaking staff there to provide school instruction or counseling." Hispanic Par- ents Advisory Council v. Kouleharas, at 24. 152 Foye interview. 153 Roger Rice, Director, Multicultural Educational Training Advocacy (META), Summerville, MA, telephone interview, July 12, 1990. 154 These studies are:

88 11Q offer a distressing portrait of the unfriendly, curricula and programs or in their community role often hostile school environment in which many models, in understanding the newcomers in their Asian American students, especially immigrant midst. Fear, intolerance, ethnocentrism and prejudice children, find themselves. One study summa- prevent a democracy from thriving, and make a plu- rized the school climate facing immigrant chil- ralistic society unworkable. The majority of the im- dren as follows: migrantstudentsinour, researchbelievethat A mericans feel negatively and unwelcoming towards If they comc to schools seeking a social safe haven, a them. Comments like, "they look down on us," "they place to recapture some of a lost childhood, and a are afraid we are going to take over," "they wish we'd place to begin building for a better future, they are go back where we came fro i," or "they think we are often bitterly disappointed. taking their jobs and money" vere most comrion.... Almost every student in our sample reported the first It was distressing to hear so many yedng newcomers describe the hatred, prejudice and violence which too school year included incidents of being called names, often awaits them in U.S. schools, Young immigrants pushed or spat upon, deliberately tricked, teased and told [us] at length about the insensitivity often bor- laughed at because of their race, language difficulties, dering on outright racism directed toward them by accent or foreign dress. American students, and sometimes by teachers. A third study, the indepth investigation of the "What have we done to be treated this way?" they asked, over and over again.!155 adaptation of refugee students in the San Diego city school system cited above, reveals a similar A similar characterization is given by another picture. The authors conclude: study [R]efugee students were affected by the racism shown Racial and ethnic hostility, violence and prejudice by other students and staff toward [them]. The perva- clearly arc an integral part of the social fabric on most siveness of name-calling and even physical confronta- school campuses and in many communities. This is of tions based on ethnic-racial grounds was discussed by humanitarian concern because of the effects on the many [of] our respondents. ...Almost all of the re- children who are its victims. But it is also of concern spondents have experifmced some form of racism in because of what it says about our society. Native U.S. the U.S., and many have been affected deep., by it, born children are given little help, through the school [leading one Khmer respondent to conclude] that no one who is not white can ever really become an

John Willshire Carrera,New Voices: Immigrant Students in U.S. Public Schools(Boston: National Coalition of Advocates for Stu- dents, 1988) (hereafter cited asNew Voices).This study was based in part on 1) 180 structured interviews and 24 case studies; 2) five public hearings in which approximately 150 witnesses participated; and 3) interviews with Federal, State, local, and schoolper. sonnel familiar with the school experiences of immigrant children.New Voices,p. 133. Laurie Olsen,Cros,sing the Schoolhouse Border: Immigrant Students and the California Public Schools(San Francisco: California Tomorrow, 1988) (hereafter cited asCrossing theBorder). This study incorporates findings from 1) 360 indepth interviews with re-

cently arrived immigrant students; 2) interviews with close to 200 community advocates, agency staff, teachers, and researchers; 3)a study of 29 school districts; and 4) public hearings at which 55 witnesses presented testimony. Crossing the Border,p. 112. Ruben G. Rumbaut and KenjiIma, The Adaptation of Southeast Asian Refugee Youth: A Comparative Study, Final Report to the U.S. Department of Ikalth and Human Services, Office of Refugee Resettlement(January 1988) (hereafter cited asAdaptation of Youth). This report relied on several data sources, including official records from the San Diego city schools containing demographicam educational performance information on 24,666 students, dropout data on 2,691 students, and suspension dataon 8,102 students. For further details on other data sources used in the report, seeAdaptation of Youth,pp. 12-18. 155 New Voices,p. 59. 1 56 Crossing the Border, p.35.

89 5 "American."...1t is clear that Southeast Asian refu- School teachers and staff may themselves add gee students have been subjected in recent years to to the hostile climate. Many Asian American pervasive racial prejudice within the public schools, children perceive their teachers and school offi- reflecting more general anti-Asian attitudes in the cials to be prejudiced against them. For instance, wider society, and that this is a factorspich exacer- in San Diego, it was found that Vietnamese stu- bates the problems of their adjustment. dents felt that they were not treated fairly by their teachers: The personal testimony of a female student who immigrated to this country from China offers [One] student said that a teacher told them to shut up vivid details: and then made a negative reference to Vietnam. Oth- ers identified certain teachers as imposing what they [When I came to America,] working extremely hard felt was unfair punishment on Vietnamese students. didn't make us feel sad, facing challenges didn't make They feel little can be done to correct such incidents, us feel sad, but some of the Americaus' attitudes to- accepting the advice of older refugees about "not wards us did break our hearts. Before I came to making waves," yet they also feel that non-refugee stu- America I had a beautiful dream about this country. dents get help for their problems. At that time I didn't know that the first word I learned in this country would be a dirty word. American stu- It also appears that school officials often fail dents always picked on us, frightened us, made fun of to take adequate steps to deil with this racially us and laughed at our English. They broke our lock- charged environment. Teachers and administra- ers, threw food on us in cafeteria, said dirty words to tors apparently frequently minimize or overlook us, pushed us on the campus. Many timesthey the seriousness of anti-Asian sentiments in pub- shouted at me "Get out of here, you chink, go back to your country." Many times they pushed me and yell lic schools. Even when racial tensions are called on me. I've been pushed, I had gum thrown on my to the attention of school officials, it is alleged, hair. I've been hit by stones, I've been shot by air-gun. they often brush aside the problem or explain it I've been insulted by all the dirty words in English. All away in a glib manner. When Asian American this really made me frustrated and, gcl. I often asked students get involved in disputes or fights with myself, "Why do they pick on me?"I other students, teachers and administrators are said to come down harder and impose harsher This portrait of the racially hostile environ- disciplinary actions on the Asian students. A ment encountered by Asian American students New York Roundtable Conference participant in our schools is consistent with what Commis- gave several examples of unequal discipline in sion staff has learned from site visits and inter- New York City schools and cited Korean Ameri- views. For instance, one participant at our New can parents as saying: York Roundtable Conference cited racial harassment of Asian American students by other We just don't understand. In Korea, two people talk students as her top concern and gave several in classroom, both will be punished. We don't under- chilling examples of students who had been stand. There is a new rule in America. If two people physically assaulted in racial incidents in New talk in the classroom, (it one kid is punished, and it York City schools.159 will be the Korean kid.

157 Adaptation of Youth, pp, 96-97. 158 crossing the Border, p. 34. 159 Theresa Ying Ilsu, Director, Asian American Communications, Statement at the U.S. Commission on Civil Rights Roundtable Conference on Asian American Civil Rights Issues for the 1990s, New York, NY, June 12, 1989 (hereafter cited as Hsu Statement). 160 Adaptation of Youth, p. 61.

90 1 U School officials' failure to recognize the seri- principal suspended the two honor students re- ous ramifizations of racial incidentsand their in- sponsible for the racist application for 3 days. ability to intervene effectively results in their When the students' parents appealed, the dis- losing credibility as a reliable source of impartial trict superiniendcnt reversed the principal's de- adjudication. As a result, some students take cision, instead placing the students on detention matters into their own hands in resolving what for 4 hours and assigning them to write a 300- they consider unjust situations. These interre- word essay. The reversal of the principal's deci- lated factors are said to contribute to and in a sion undermined his authority and resulted in way be responsible for theoutbreak of interra- students taking his efforts to combat racism in cial incidents, sometimes involving deadiy arms. the schools less seriously. Participants at the Even when school officials recognize the seri- Commission's Houston Roundtable Conference ousness of the situation, they mayreceive little alleged that the district superintendent's deci- support from district administrators. As an ex- sion was only one example of a long history of ample, in an incident brought to the attention of insensitivity to Asian American concerns by the the Commission at the Houston Roundtable Houston Independent SchoolDistrict.164 Conference,162 the parents of students who were Described below are several other specific in- responsible for sending hate literature to an cidents illustrating the generic situation depicted Asian American teacher and who initially were in the foregoing pages. Of these incidents, the severely punished by their high school principal story of Chol-Soo Lee's high school yearsis typi- were able to persuade districtofficials to undo cal of the ordeal that many Asian Americans, the punishment. For several years prior to the particularly immigrant or LEP students, have to incident, Sharpstown Senior High School in endure. At age 13 he was already confined in a Houston had been the scene of mounting racial juvenile hall, and a age 20 he was a convicted tensions as the school's minority population in- murderer serving a life sentence (which was creased rapidly.163 The situation became so ex- overturned later, setting him free.) An account treme that a new principal was assigned to the of how he initially got into trouble with the law school specifically to control the racial problems. is illustrative:165 The new principal clamped down hard on racist At the age of 12, Chol-Soo came to the behavior, instituting a policy of suspending for United States from Korea to join his mother the rest of the year students caught fighting. The after 2 years of separation. By the time he joined school climate appeared to be improving when his mother, she had already left her abusive GI Betty Waki, an Asian American teacher who was husband and had come to San Francisco with the advisor to the yearbook, received an applica- her 4-year-old daughter. For 2 years she had tion to be on the yearbook staff that was filled been working 16 hours a day, seven days a week, with racist parody and anti-Asian remarks. The as a motel maid during daytimehours and as bar-

161 Anonymous Korean American parents, as cited in I Isu Statement. 162 Glenda Kay Joe, Statement at the U.S. Commission on Civil Rights Roundtable Conference onAsian Civil Rights Issues for thc 1990s, I louston, TX, May 27, 1989 (hereafter cited as Glenda Joe Statement). 163 The following account of the incident is based on Barbara Karkabi, "Betty Waki: Sharpstown TeacherDevoted to Easing School's Racial Tension," Houston Chronicle, Apr. 24, 1989, p. DI. 164 Glenda Joe Statement and Michael Chou, Statement at the U.S. Commission on Civil RightsRoundtable Conference on Asian Civil Rights Issues for the 1990s, Houston, TX, May 27, 1989.

165 This account is a summary based on K.W. Lee, "Lost in a Strange Culture: The Americanizationof Chol-Soo Lee," Sacrarneruo Union,Jan. 29, 1979.

91 maid at night to save money for Chol-Sooto taking me down to school principal'soffice and travel to the States. let the guy I was fighting withgo to his class. I Within a year of his arrival, hewas confined couldn't understand what the teacher toldthe to a juvenile hall following a fight witha student principal, but he said hewas calling my mother and a shoving incident involving three school to let her know I was suspended from school teachers, including his vice principal. Several key again. So I tried to explain to the principalI was players described the precipitating incidentas not at fault in the fight and couldn't succeed be- follows. cause of my English. So I thought if I brought According to his mother, "One day Iwas in the other boy he will tell the truthso I can be shower. The school principalsay 'you hurry and saved from being suspended, but when theguy come down to school.' Chol-Soo was already was telling what happened, I understood enough gonc to juvenile hall. Police took him. I go to to know that he was telling a lie. So I tried to tell the school board. What kind of school is this? he was lying, but the principal didn't believeor He speaks no English, and they take him to ju- couldn't undersund what Iwas saying. I was so venile hall... .I was so ashamed and sad. I talkto angry I started fighting the guy. The principal my son in Korean. What happen? He say 'I walk grabbed me and the guy ran out. The principal in line with boys. A boy bump intome. He hit andotherteachersheld meuntilpolice me. I hit him. He hit me again. I hit him back.' came.,,168 Why? 'The boy call Korean boy stupid, stupid. The probation officer's report on the incident Teachers say I am wrong. I amcrazy boy.'.. stated, "The boy admits he had been fightingan- .They say my boy kick principal. My boysay other boy but it was his co,itention that itwas three teachers hold him tight. 'I try to getaway the other boy's fault. He says that the principal from them, so I kick up. They call police.'"166 didn't listen to what he was trying to tell him, According to the vice principal's report of the and he became very angry and shoved the princi- incident, "Lec and another boy hada fight in pal...It should be understood that he isnew to which Lee had deliberately attacked the other American culture since he came to the United boy. The principal called Lee into his office and States only a year ago. In this writer's opinion, while he was talking to him, Leeran out to the intense counseling either through the school de- class and brought the boy back. The principal partment or through the children's hospital talked to the other boy and excused him. As the should now be employed to hasten his adjust- other boy walked out, Lee leaped up andran ment to the American way of life. Itmay take after and attacked him. The principal and other another year or more for him to become entirely teachers dragged Lee off while the boywas assimilated, but with professional assistance, this swearing and kicking. Th.? principal believed writer is confident the lad will eventuallycome Lee was quite disturbed."16 through okay."169 According to Chol-Soo himself,as narrated to In the following episode theanger caused by a reporter, "Some guy bumped into me in the harassment and the desire to avenge and do jus- hallway and looked toward meas if it was my tice erupted into violence involving deadly fault. He started the fight, so I fought him back. weapons: During the fight a teacher grabbed and started

166 Ibid., p. 2. 167 Ibid. 168 p. 5. 169 Ibid., p. 4.

92 During a lunch break on Jan. 16, 1990, two similar incidents many times before. Although youths opened fire on a group of students out- the center staff did not attempt to clarify thecir- side Central High School, Providence, Rhode Is- cumstances of suspension withschool offi- land,missingtheirtargetbut striking two cials,'" the incident nevertheless shows how bystanders. 'I he two gunmen, a Cambodian stu- Cambodian students and their parents come to dent at Central and his Cambodian friend from believe that school officials are biased against Lowell, Massachusetts, were arrested minutes Cambodians and hand out disparate disciplinary after the shooting. They told the police that they actions. were aiming at one of severalwhite youths who Racial harassment, if left unchecked, can es- had been harassing Cambodian students.Ac- calate into intimidation and open violence.The cording to these students, Southeast Asian stu- following incident shows how audacious the ha- dents(largelyCambodians)areconstantly rassers can be: harassed by a "group of white students" and In April 1989 a Cambodian socialworker was called names. "The name-calling erupted into a driving by Central High School in Providence fight with sticks, pipes and bottles last fall and and saw a Cambodian girl who wasjust getting has been festering since. The problem escalated out of school being harassedand chased by a last week, including a fight in which one Cambo- group of students. The womanshouted at the dian student reportedly suffered a broken arm." girl to get into her car quickly becauseshe was One of the two youths at Central High School afraid physical harm might be done to thegirl. decided to fight back and enlisted clsistance When the girl jumped into the car, theharassers win- from his friend inLowell.'" started throwing rocks and broke all the The next episode shows the erosion in the dows. The damage was over $1,000. This typeof trust between Asian Americanstudents and harassment, intimidation, and terrorizing is said Ohoolofficials: to be notunusual.'" In early February 1990, a Cambodiangirl at In December 1989 a school parking lot gun- Central High School in Providence, Rhode Is- fight involving Korean American students oc- land, got into a fight with other girls and got sus- curred in California. Here again, theincident pended for a week although the other two girls shows that the injury to a student's pridesuf- she fought against were not. After the fight, the fered as a result of racial insults and harassment Cambodian girl armed herself with a dart be- can easily erupt into openviolence if it is left to cause of continuing harassmentand abuse, as fester without being resolved by appropriate au- well as fear of physicalattack."' thorities: When she was suspended, the girl came with A female student of Koreandescent at her parents to the Cambodian community ser- Calabasas High School in a suburb of Los Ange- vice center, puzzled as to why the teachers had les had been racially harassed by a white male not listened to both sides of the story.They student. She asked a female friend to help with wanted to know why the other girls did not get the situation, and her friend in turn alerted some suspended. This episode presented hardly any- Korean American male students from another thing new to the center staff; they had heard of high school. Several Korean Amerkan male stu-

MM. Tension Blamed For Midday Attack,"Providence Journal- 179 Laura Meade, "2 Wounded in Central Shooting: 2 youths held; Racial Bulletin, Jan. 17, 1990. Providence, RI, interview, Apr. 18, 1990. 171 Staff of the Socio-Liconomic Development Center for Southeast Asians, 172 Ibid. Island, April 1990, p. 17. 173 Rhode Island Advisory Committee to the U.S. Commission on Civil Rights,Bigotry and Violence in Rhode

1 1) 3 dents came to Calabasas,a scuffle with some Crystal's older brother arrivedto pick her up. white students ensued, andonc of the visitors Seeing his sister being pushed aroundby a male was beaten with a baseball bat. The following student, he got out of hiscar and challenged the week, six Korean American male studentsre- pusher, "That is my sister, ifyou have to push turned to Calabasas High's parking lot in three her why don't you push me." A scufflebegan. vehicles to seek retaliation for the beatingof Although the school vice prin6palwas standing their friend. Upon noticing thc parkedcar of a nearby all through the commotion, kedid abso- sheriff, who had been alerted by the school ad- lutely nothing until the situation beganto get ministration of a possible fight, thcy triedto out of hand. The scuffle was finally brokenup drive out of the parking lot. At this point the and the crowd dispersed. Upon returninghome, same student who had wielded the baseball bat Crystal and her brotherwere severely scolded by the week before aimcd his revolverat one of the their father because the principal hadalready fleeing cars and fired4several rounds.Fortu- called and given a distortedaccount of the inci- nately, no one was hit. dent. Although several students at.a closed school Thc following day Crystal and herbrother board meeting spoke in support of thc Korean went to school to complain to officials for having American student's allegation of racial tension given a distorted account to their fathcr without on campus, the principal denied that therewas hearing their side of the story. When theychal- any racial tension on campus involving Korcan lenged thc vice principal to give hisaccount of American students.175 No action had been taken what he had seen at thescene, he shouted back against the alleged harasscr because, according saying, "Shut up before I putyou on thc boat." to the principal, "we have no proof of what hc's At about this time, therewas a noisy distur- done."176 The student'sexplanation as to why bance outside thc building,near where they had shc did not go to school officials is revealing: "V parked their car. Dashing outside, theyfound you bring it to the principal, all they could do is that a group of studentswere kicking and rock- talk to the person, suspend theperson:ncxt ing their car with their cousin inside.There was time, he wouilid get revenge onyou. It could only a lot of pushing, and soon Crystal's brother and get worse."1 cousin were in the midst ofa fight with other A strikingly similar incident took place in Caucasian students. School officialscame to the Long Beach, California, this time involving Crys- scene and fowl(' a gun in her brother's hand. tal, a ninth grader who came to thc U.S. fyom The police were called, and the situationwas Cambodia at the age of 2:178 brought under control. Crystal'sbrother and While waiting for a rideon the curbside, Crys- cousin were spared from beingarrested whcn tal got into an argument with another girl,as had Crystal's father negotiatedan agreement with happened many times before. This timc,how- thc principal that Crystal would withdrawfrom ever, a male student who was standing nearby school voluntarily.179 started pushing Crystal. At about thistime,

174 Ibis accourn is a condensed version based on Sophia Kyung Kim, "Calabasas Student May Face ExpulsionFrom High School: Ko- rean 'kers Says She Was Victim of Racial Slurs," Korea Times (LosAngeles Edition), Jan. 19, 1990, 175 Ibid. 176 Ibid. 177 Ibid. 178 The following account is based on information provided by Crystal Hul. Crystal I -WI, telephoneinterview, Nov. 28, 1990 (hereafter cited as Crystal I lul interview),

94 14 According to Crystal, on several previous oc- ated for the past 10 years. (See above for further casions Cambodian students had told tile vice detailsortCris episode.) In recounting this epi- principal about incidents of racial harassment, sode to Commission staff, the son of the Chinese but he had done nothing. Refugee studcnts from American store owner, who is U.S. born and a Cambodia generally do not go to school officials college gt aduatc, recalls that "anti-Asian preju- with their interracial problems for two reasons: dice and atmosphere are not new; they were 1) they are not confident with English; and 28(1 there whcn I was going to junior and senior high they do not think it would help their situation.1 schools here in Castro Valley. Kids routinely used to tease us by mimicking slanted eyes, and To this day, Crystal's father remains con- taunted and harassed us with racial remarlo;<"182 vinced that hir children were sufficiently pro- According to him, they were not violent; tilt'. :a- voked and that the incident simply reflected cial incidents he had txperienced in school were underlying racial tensions that school officials more or less contained but unmistakably ..!re. refused to acknowledge. Although he believed Asian American kids were "sort of msfgned," that school officials were responsible for not ad- made the most of the situation, and did not talk dressing the real cause of the whole problem about it at all. Now things are much more open and that his children were victims of the officials' and violent, "it seems that the social constraint inattention rather than instigators of the inci- that existed is no longer with us."183 dent, he did not think he could effectively argue There are indications that racial incidents and win the case. To protect his children's future occur among much younger children and have from the adverse consequences of expulsion and been out there for a long time. Here is an exam- police records, he decidedto withdraw his ple: daughter. He is certain that he was able to nego- Soon after Mrs. Kwak's 8-year-old son started tiate this much because he was a widely known attending a public school in a predominantly Cambodian community leader and had some white neighborhood in the late 1960s, she re- credibility with police and school officials. He ceived a phone call from the principal saying suspects that other refugees with a poor com- that her son, David, had pushed a girl on the mand of English would have farcd far worse school bus. After some discussion, she and the than he and his children.181 principal agreed that David should be required Anti-Asian harassment and slurs on middle to walk to school for a week as punishment. She and high school campuses are neither limited to naturally gave David a long lecture that he children from Southeast Asia, nor a recent phe- should not hit or push little girls on the school nomenon. In late 1989 a Chinese American man bus and that not being able to ride thc school and his son were assaulted by a group of six bus was his ; imishment. A day or two later she white youths in their meat store in Castro Val- received a call from a neighborhood friend, say- ley, California, which they had owned and oper- ing, "I saw David walking to school." This friend

179 Crystal I Iul graduated from another public high school in Long Ileach in 1990. (Crystal Hu! interview.) Thc principal and vice principal of the high school who were involved in Crystal's case are no longer with the school. In the past several years, there have been no expulsions of Asian American students on account of Interracial incidents. (Sue McKee, Principal, Hills Jr. High School, tde- phone interview, Nov. 30, 1990.) 180 Crystal I lul interview. 181 Nil I lul, Executive Director. Cambodian Association of America, Nov. 28, 1990. 182 Melvin Toy, personal interview, Castro Valley, CA, Feb. 22, 1990. 183 Ibid.

95 1 1' 5 was quite amazed that Mrs. Kwak did not know class would turn to stare at me at the mere mention of and had not asked why David had pushed the any Asian country. "I am not from China," I would say girl. The neighborhood friend said that her son, to myself. "I'm from New York. I don't know anything who also rode the same bus as David, had seen about China." During recess, some students would the girl making fun of David for his Chinese ap- mimic Chinese speech. Others would pull back their pearance rd thc situation escalating into a eyes in a squint. Behind a mask of smiles and laughs, I shoving match. The mother immediately called would try to hide my pain....Racism was inescapable. Once, while I was walking home with my father, the the principalftt-Jreinstated David's privilege to ridc the schoC, and she protested his pre- doorman at a nearby building yelled, "Hey, China- man." My father paused momentarily, then continued mature accouni, the incident, that is, for not walking, draggM me along behind him. There was having looked into how the pushing got started fury in his step. and for having given her a prejudicial account. Although her anger at the principal dissipated One serious consequence of racial tensions in long ago, Mrs. Kwak still feels bothered by one the schools has been that Asian American youth aspect of this incident. When she confronted join gangs to defend themselves and become in- David later over why he had not explained that volved in crimind activities. In San Diego, for the girl had made him angry by making fun of instance, after a high school riot during which him, he said, "Mom, I didn't want to lie or any- Asian American students were beaten by black, thing. She started the whole thing, but I didn't Latino, and white students, the number of Cam- want you to feel hurt by what she said." It pains bodian gang members increased dramatically. her, the mother says, to think that a young child The violent activities of Asian youth gangs in had not only to be afflicted by an insult, but also turn reinforce existing stereotypes and escalate to suppress his outrage at authority figures and racial tensions.186 accept what must have appeared an unfair pun- Experiencingincidentssuch as those ishment in order to shield his mother. She re- illustrated in the foregoing pages is likely to en- mains apprehensive that minority children leave gender in Asian American children the feeling our public schools thinking that school officials that they are unwelcome outsiders and a sense do not care to understand their concerns.184 of societal victimization and injustice, and may A U.S.-born journalist recalls growing up in cause them to become self-defensive. There arc New York City as a Chinese American boy in signs that some Asian Americans carry with the 1960s. His painful memories include the fol- them unhealed wounds from the racial incidents lowing facets: of high school days. Although such wounds are often concealed, they can remain active psycho- I was reminded constantly that I was different. I recall logically,hinderingeffectivedevelopmental how quickly my schoolmates could turn on me with growth in post-secondary education years. An taunts of "Ching, Chong, Chinaman."...1 tried to fit Asian American counselor at a prestigious col- in, though at times it seemed impossible, especially on lege° observes thatmany Asian American stu- the rare days when Chinese New Year or "exotic" dents on his campus, particularly those in their Asia was mentioned in school. Reflexively, the entire freshmen and sophomore years, are not interact-

184 Katherine Kwak, interview in Washington, DC, Sept. 25, 1990. 185 Steven A. Chin, "Searching for Eastern Roots: Thllow Bamboo' Seeks To Be Filled," Washington Tunes, May 29, 1990,p. E5. This story originally ran in the San Hancisco Examiner, May 6, 1990. 186 Ima Comments, p. 3.

187 Tommy I ,ce Woon, Assistant Dean and Director of Asian American affairs, Oberlin College, telephone interview, Dee. 15,1989.

96 ing with fellow students as actively as their non- age, but also create barriers to the educational Asian American counterparts. He sees in them attainment of the Asian American student vic- an element of apprehensive caution, a deliber- tims, such as suspension from school and drop- ate withdrawal while they appraise the situation, ping out of school. An analysis of suspensions in as if they want to see if other students' openness San Diego city schools by race and ethnicity of- is genuine and also if the open liberal atmo- fers valuabL information about how the racially sphere of the campus is authentic. He recalls charged climate in our schools may cause some one particular case: students to engage in behavior that results in school suspension. The San Diego study cited Throughout the entire year of counseling, the student above found that although /Lim students of all has been doing reasonably well academically, but his groups had lower overall suspension rates during social life was not up to par for a freshman. He had e the 1984-85 school year than black, Hispanic, tendency to be withdrawn, he was very hesitant in and white students, a far larger percentage of reaching out to other students, he did not participate their suspensions was for fighting (as opposed to in many campus activities. He was tentative in style defiance or substancc abuse).18 The suspension and cautious in approach. It seemed he was withhold- ing quite a lot within and couldn't decide whether he rates for black, Hispanic, and white students were 13.9, 7.5, and 6.3 percent, respectively, should open up...it was toward the end of the year- long counseling that he gradually let himself go and whereas the suspension rates for Filipino and opened up. During his high school years he was at. Southeast Asian students ranged from a high of object of frequent racial harassment and ridicu!c he 4.8 percent for Vietnamese students to a low of was not strong enough to fight back and put his ha- 1.0 percent for Hmong students.1" Yet the pro- rassers in place. He withdrew into himself and just portion of all suspensions that were for fighting concentrated on school work. He did well in school were much higher for Filipino and Southeast and his parents and teachers thought he was doing Asian students than for other groups: ranging O.K., but he did not enjoy his school life. Deep inside, from 67 percent of all suspensions for Hmong he wanted to graduate and get away from school. He studentsto 45 percent of suspensions for did not have a good feeling of belonging to any group, Vietnamese students (compared to 25, 36, and and he was keenly aware of his inner sense of es- 43 percent of suspensions for white1 Hispanic, trangement. Years ofgenation made it difficult for , 19 him to trust his peers. and black students, respectiveiy). Further- more, although the number of suspensions had The counselor was the first person with whom fallen sharply for all other groups since the pre- he shared his debilitating sense of isolation and vious school year, the number of suspensions of loneliness. Asian students had increasedy 22 percent, and The pervasive anti-Asian climate and the fre- the number of suspensions I:or Southeast Asian quent acts of bigotry and violence in our schools students had increased fle large figure of 47 not only inflict hidden injuries and lasting dam- percent.192

188 Ibid. 189 Adaptation (4'Muth,pp. 55-58b. 190 Ibid., p. 5.5a, fig. 5-2. 191 Ibid., p. 57c, fig. 5-1 192 Although the numbei of suspensions for Asian students could have increased merely because of an increase in their numbers in the school system. there is evidence that this is not thc case. A San Diego school district report found that the number of suspensions increased by a far larger percentage than the number of Asian students between the 1983-84 and the 1984-85 academicyears. San Diego City Schools, Planning, Research, and Evaluation Division,Report on 1984-85 Student Suspensions(May 27, 1986) p. A-4,

97 17 Citing a San Diegocityschoolsreport drawn into racial confrontations in the U.S. (Schools Report), thc San Diego study attrib- when provoked by non-refugee students."197 uted the large percentage of Southeast Asian The report adds that: and Filipino student suspensions that were for physical fighting and the large I-year increase in Some Vietnamese students (particularly males),.. the number of their suspensions to racial ten- .told us that they wi!.ot respond at the first insult sions in the schools. The Schools Report had from an American sti.dent, would take notice of a sec- found evidence of "linguistic, racial and social ond insult from the same provocateur, and will "blow barricrs [facing] Indochinese students" in the up" and get into a figila in response to a third or sub- schools, including "increasing prejudice toward sequent provocation. all Asians, particularly the Indochinese."193 The The San Diego study found further that racial rcport had also noted that, "Both schools and incidcnts begin in the elementary grades, dra- community report increased physical retaliation matically increasing in the middle years, and by Indochinese studcnts in response to verbal peaking at the about the 10th or 1 1 th grade,'" and physical abusc from other students."94 Fi- and that for some students, racial tensions led to nally, the Schools Report had observed that: gang style activities.

Concerns regarding the problems faced by Indochin- For some youths, especially the Vietnamese and the ese students have increased dramatically within the Lao, confrontations result in a search for companions past year. There is increased community dissatisfac- who can thus help protect themselves from aggressive tion over the Asian "model minority" success stereo- non-refugee classmates. In some of the cases we type as well as the name-calling and physical abuse found ir the Probations Department data, juveniles between Indochinese and other students. Staff and reported joining pcer groups initially for protection, students demonstrate a lack of understanding of par- but once in those groups a switch in interests oc- ticular Indochinese behaviors and values. Increase of curred away from school toward peer preoccupations gang influem is also noted within the Indochinese for fun and material indulgences. Parentless youths community. are the most susceptible for such "gang" involve- The San Diego study found that, in contrast ments, though it should be noted that the majority of those troubleAjouths come from homes wit. -me or to Hmong students, who apparently keep them- both parents. selves distant from othcr students, and Cambo- dian students, who tend to be concerned with Racial tensions may also cause some Asian getting along,196 Vietnamese and the Laotian American students to drop out of school. An- students, in particular, appear to be "conflict- other study of immigrant students found that oriented and aggressively preoccupied with 'sav- one out of fGur immigrant students had consid- ing face' (and ethnic pride), and are more easily ered dropping out of school and the "most-

table 2. 193 San Diego City Schools, Community Relations and Integration Services Division report (1985), cited in Adaptation of Youth, p. 58. 194 Ibid. 195 Ibid. 196 Adaptation of Youth, p. 55. 197 Ibid., p. 56. 198 Ibid. 199 Ibid., p. 97. 200 Ibid.

98 ecnocd reasons given" by themincluded "hostil- Teacher Certification ity and prejudice felt in theschool environ- Requirements ment."20 A Southeast Asian social worker in Teacher certificationrequirements area Stockton reports that in an averageweek he major barrier to the recruitmentof the bilingual sees or hears offour Indochinese students drop- teachers and counselors socritically needed to ping out of school. According tohim, reasons for educate Asian Americanimmigrant children. dropping out varies, but one prominent reasonis Across the country very fewSoutheast Asian im- the hostile school environmentand loss of inter- migrants or refugees havebecome certified est inschoo1.202 teachers. Racial confrontations, thus, affectyouths by Documenting Previous Education andExpe- diverting them away from an academicfocus to a rienceA barrier facing adultrefugees from peer-group preoccupation.Some react by fight- Southeast Asia in particular is thatthey are un- ing, others by withdrawing fromtheir peers. able to obtain transcripts andreferences show- Probable consequences are marredaccultura- ingtheireducationalattainmentortheir tion, lowered academic achievement,trouble experience as teachers or professorsin their with the law, and even higherschool dropouts. home countries. In the absenceof such docu- These consequences forebode ahigh price that mentaCon, these refugees arcunable to meet not only thc individualsinvolved but also our so- teacher certification requirementswithout du- ciety as a whole are bound to payin the fu- plicating years of education andtraining they al- ture.203 ready had in their home countries.For instance, Hoa Truong, a refugeewho escaped from Viet- Improving the Educationof nam on a boat,had taught English in Vietnam Asian AmericanImmigrant for 12 years. When she arrivedin Massachusetts, Children: Barriers and she was given a waiver thatallowed her to teach Promising Avenues temporarily, but thc Statc requiredthat she go back to school and go throughthc entire teacher immigrant The education of Asian American training ,nprogramtobecomeacertified with seri- children in our public schools is beset teacher. Many potential teachers choose to ous problems.Schools face critical shortages of take other jobs rather thanrepeating educa- bilingual and English as a SecondLanguage tional programs thcy havealready completed Asian (...... SL) teachers and counselors for most and thus are lost as educators forAsian Ameri- festering immigrant groups. Racial tensions are can children. in schools, and little is beingdone about them. The University of Lowell andthe State of Many Asian American students areleaving our Massachusetts developed an innovativeand ap- schools with below-average Englishproficiency. parently unique program tohelp Southeast barriers to This section examines some of the Asian refugees document theirprevious educa- provided to improving the educational services tionand employment.Thisprogram was Asian American students anddiscusses some prompted by a critical shortageof Southeast promising avenues for overcoming them. Asian teachers and a court orderrequiring Low-

201 Crossing the Border, p. 88. personal interview, Feb. 28, 1990. 202 Ky floang, Youth Program Coordinator,Vietnamese Voluntary Foundation, Stockton, CA, 203 Ibid., p. 97. Teachers," Union-News, Jan. 4, 1990, p. 3. 204 William Freebairn, "State Will Certify SI. Asia

109, ell, Massachusetts, schoolsto improve the edu- essary for becoming teachers, generally have cation of Southeast Asian andother language- very high failure rates on these tests and do minority students. Under theprogram, the pwrly on those sections of thetest requiring Academic Credentials Committee forUndocu- high levels of English proficiency.For instance, mented Educators, made up of prominent since 1983 teacher certification inCalifornia has Southeast Asians whoare very familiar with the required a passing scoreon the California Basic education systems of their native countries be- Educational Skills Test (CBEST), whichis made fore the Communist takeover,interviews pro- up of three subtests: mathematics, writing, and spective teachers intensively abouttheir home reading.206 Onaverage, Asian candidates had country background and certifies their IT.S.- significantlylower CBESTpassratesthan equivalent levels of education. TheState of whites, although theirpass rates were hilher Massachusetts accepts the findings ofthe com- than those of Hispanic and blacktest takers. 7 mittee in determining whether or not an inter- A recent study of Southeast Asiantest takers viewed cardidate has met therequirements to in San Diego shows how theCBEST has be- become a teacher. If certified by the committee, come an almost insurmountable barrierto candidates are exempted from repeating educa- teacher certification for Southeast Asians.208By tional programs the committee determines thcy 1980 the city of San Diegowas faced with a criti- have already completed in their homecountry. cal shortagc of Southeast Asianteachers. To A pilot program for the Vietnamese community help fill this gap, San Diego StateUniversity and began in 1989, and subsequentlyan ongoing pro- the city of San Diego jointly createdan In- gram was instituted for Cambodians, Laotians, dochinese Teaching Intern Programto give and Vietnamese. In June 1990, 38 Cambodians, Southeast Asian professionals the skillsand cre- 7 Laotians, and 11 Vietnamese were interviewed dentials needed to become certifiedteachers. and their academic credentials reconstructed.245 The program initially enrolled 47 interns.When Programs such as thcone in Massachusetts arc the interns took the CBESTtest in 1983, not urgently needed in other Statesto meet the one of them passed. By 1987 only 7 of the in- need for bilingual teachers and counselors. terns had passed the test. Interns who failedthe Teacher Certification ExaminationsAscc- exam were initially allowed to teach under certi- ond problem is that in many Statcs, teachers fication waivers, but these waiversexpired in need to pass a written examination to be certi- 1985, and by 1987 only 3 of the47 interns were fied. Asian American immigrants,even those full-time teachers, andone was a substitute who appear to have the basic qualificationsnec- teacher. This study of the internsfound that

205 Frank E. Markarcwicz, "Getting the Past on Paper: Untangling the Red Tape For Southeast Asians,"University of Lowdl Maga- zine,vol. 5, no. 1 (Spring 1990), pp. 8-9, and materials provided by Dr. Juan Rodriguez, ProgramDirector, Bilingual/ESL, College of Education, University of Lowell, Lowell,MA. 206 Each of the subtests is scored on a scale of 20 to 80. To pass the CBEST test, candidatesmust have a total score of 123 (an average of 41 on each subtest) and must score no lower than 37 on any of the subtcsts. EducationalTesting Service, "California Basic Edu- cational Skills Test, Information Bulletin, October1989-August 1990," pp. 7-8. '5207 Li-Rong Lilly Cheng and Kenji Ima, "The California Basic Educational Skills Test (CHEST)and Indochinese Teacher Interns: A Case of a Cultural Barrier to Foreign-Born Asian Professionals?" chap. 10 in Gary Y.Okihiro, Shirley Hune, Arthur A, Hansen, and John M. Liu, eds.,Reflections on Shattered Windows: Promises and Prospects for Asian American Studies(Pullman, WA: Wash- ington State University Press, 1988). Of course, the average pass rates for Asian test takers includesthe scores of all Asian Ameri- cans in the State of California, not just immigrant Asians. 208 Ibid.

100

1 11 "[a]though ten of the original forty-seven interns east Asian college students in teachertraining dropped out or resigned [before takingthe programs. Commission staff weretold by Cam- CBEST exam], the majority of the remainingin- bodian students at California State University at terns have not become teachersbecause of the Long Beach, some of whom were teacheraides CBEST requirement."209 In recent years,addi- in the Long Beach schools, that they were hesi- tional requirements for teacher certification tant to take the education coursesand train to have been instituted, making it moredifficult for become teachers becluse they were afraid they Southeast Asian teachers to become certified. would not be able to pass the exam. Despite the These additional requirements include oralEn- urgent need in California forCambodian-speak- glish-language fluency and demonstrated class- ing bilingual teachers, these studentsdid not room managementskills.210 know of any Cambodian students who were The study also analyzed the problemsthe in- training to becometeachers.213 terns had taking the CBEST exam.It found that Waivers and Teacher's AidesSchoolshave the interns had a higher than average pass rate adopted two main approaches to dealing with for the mathematics subtest of the exam,but ex- the shortage of certified bilingualteachers and ceedingly low pass rates for the writing andread- counselors:waiving teacher certification re- ing subtests. Among 19 internsfor whom the quirements and hiring other bilingual personnel, study had complete records, the average score such as teacher's aides, to help in theclassroom. al- on the mathematics exam was51.6 (well above Waiving teacher certification requirements the passing score of 41), whereas the average lows schools and school districts to bringbilin- tofill scores on the readingand writing subtests were gualpersonnelinto the classrooms 26.7 and 32.1,respectively.2" A closer analysis immediate needs when there are insufficient of four of the most successful internsis reveal- certified bilingual personnel. Usually, thewaiv- ing. All of these interns had graduatedfrom ers expire after a few yearsunless the teacher ei- American universities and been involvedwith ther passes the relevant test or shows progress the San Diego city schools for years.Yet, they towards acquiring the necessary credentialsfor had problems with the cultural content andthe teacher certification.214 Furthermore,teachers abstract nature of the writing assignmentstypical on waiver do notalways receive the same pay in the CBEST exam, and they haddifficulties and benefits as regular teachers. with the inferential thinking needed to answer Many school systems have resorted tohiring questions in the reading portion of the CBEST bilingual teacher's aides to help in the classroom y.212 exam correctl and/or to communicate with the parents of lan- The difficulty that Southeast Asians have en- guage-minority students as an alternative to hir- countered in passing the CBEST exam appears ing credentialed bilingual and ESLteachers. to be having a chilling effect notonly on teacher Hiring teacher's aides may help to fill the gap recruitment from among older SoutheastAsian created by the shortage of credentialed teachers. refugees, but also on the enrollment of South- Unless accompanied by active teacherrecruit-

209 Ibid., p. 69. 210 Ima Comments. 211 Ibid., p. 71. 212 Ibid. Beach, Mar. 3, 1990 (hereafter cited as College students interview). 213 Interview with students at California State University at Long College of Education, University of Lowell, Lowell, MA, 214 Interviews with Dr. Juan Rodriguez, Program Director, Bilingual/F,L, Feb. 12, 1990, arid Profs. Ruben Rumbaut and Kenji Ima, San Diego StateUniversity, San Diego, CA, Mar. 5, 1990,

101 1 1 1 ment and training programs, however, hiring to help assess each student's individual educa- teacher's aides may becomea mere token re- tional and emotional needs before thestudent is sponse to the needs of Southeast Asian students. placed in the classroom. Once the orientation As an example, Cambodian collegestudents at and assessment has been completed, thestu- California State University at LongBeach who dents need ongoing programs that helpthem were part-time teacher's aides in a local school bridge their two cultures, deal with theirsocial district told Civil Rights Commissionstaff that and emotional needs, and-,...epare them to be- they had received no training for theirpositions come successful students in ..merican schools, and mabtained that in manycases the teachers while their parents need ongoingprograms to they were working for gave them routine tasks, keep them informed. such as grading homework, to performrather Asian American immigrant studentsusually than having them interact with and helpCambo- encounter fellow students, teachers, and admin- dian children.215 istrators who know littleor nothing about their States and localities need to continueto ex- cultures and histories. Frequently, schooloffi- plore alternatives to rigid teacher certification cials do not understand theirnew students and requirements when urgent needs for teachers are unprepared to help them cope with their are not being met. They also need to putmore transition into American schools, and theirfel- resources into recruiting and training Asian low students have no backgroundto help them American bilingual teachers. appreciate why theirnew classmates are so different and are likely to react to them withhostil- Other Barriers and Avenues for ity. For Asian American studentsto realize their Overcoming Them full rtential to learn, they need schoolenviron- Many Asian American immigrant students ments that are understanding and supportive, and their parents arrive in thiscountry with little not insensitive and hostile. Aggressiveplograms background to help them understand American to educate school personnel and students about public school systems. Many havevery little pre- Asian (and other) cultures and historiesand to vious education, and what formal educationthey combat racismin our schools are urgently have received has been ina very different setting needed. and in schools with a completely differentstruc- A summary of the educational needsof im- ture and culture from those they find in Amer- migrant students in California's publicschools ica. Too often these studentsare dumped in our and a compilation ofprograms across the State classrooms with littleor no preparation, and that are helping to meet those needscan be their parents are givenno help in understanding found in a 1989 California Tomorrow report.216 how our school system works andlittle opportu- The report finds that immigrant studentsneed nity to participate in making decisionsabout orientation and assessmentprograms; programs their children's education. AsianAmerican im- to help students bridge their cultural differ- migrant students and theirparents need com- ences; programs to improve intercultural rela- prehensive orientationprograms to help them tions in our schools andto teach mainstream understand and adjust to Americanschools and teachers about their needs and cultures;educa-

215 College students interview. These students were teacher aides for the Long Beach Unified School District,Long Beach, CA. 216 Laurie Olsen, Bridges: Promising Programs For the Education of Immigrant Children(San Francisco: California Tomorrow, 1989).

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1I2 tional curricula that are sensitive to the multi- the schools.'17 These recommendations are rele- cultural makeup of our classrooms; and aca- vant to the entire country, not just the State of demic support and outreach efforts to keep their California. parents informed about and get them involved in

217 Ibid.

113 103 Chapter 5 Access to Educational Opportunity: Higher Education

The Commission's Roundtable Conferences intervention, including the introduction of ci and staff followup investigations revealed a congressional resolution condemning any use of number of concerns in the Asian American com- admissions quotas against Asian Americans. munity related to highcr education. Foremost During the past decade, the Department of among these concerns were alleged discrimina- Education's Office for Civil Rights (OCR) un- tory admissions policies against Asian American dertook multiyear investigations of the admis- applicants toelitecolleges and universities, sions procedures of several institutions of higher which is the subject of the present chapter. A education. In 1990, OCR released reports on its number of other concerns are not covered here investigations of Harvard University and the but arc also worthy of attention. These include University of California at Los Angeles, and allegations of inequitable awarding of financial OCR investigations of other institutions are in aid to Asian American students; inadequate aca- progress. Meanwhile, the central issue, whether dcmic and other supplementary services for lan- or not there is or has been admissions discrimi- guage-minoritystudentsof Asianancestry; nation against Asian American applicants, be- underrepresentation of Asian Americans among came clouded as thc admissions discrimination faculty and administrators (narticularly at the issue became associated with the continuing na- higher ranks); and the failure of colleges to in- tional &bate on affirmative action. corporate the experiences and contributions of This chapter provides an overview of the con- Asian Americans into the mainstream curricu- troversy to help the public develop an informed lum. understanding of the key issues involved. It first The allegation that our most prestigious col- discusses how the controversy has unfolded and, leges and universities usc discriminatory admis- in doing so, identifies the central issues. It then sions policies against Asian American applants relates how the controversy played out on three was first made on several college campuses in different campusesBrown University, the Uni- the early 1980s. At issue was whether elite col- versity of California at Berkeley, and Harvard leges and universities, in the face of increasing University. numbers of Asian American applications, were placing ceilings on the numbcr of Asian Ameri- The Controversy cans they would admit. More generally, the issue The allegation of discriminatory admissions was whether Asian American applicants were policies against Asian Americans was first raised less likely to be accepted at elite colleges and in 1983 with a statement issued by the Asian universities than white applicants with compara- American Students Association at Brown Uni- ble characteristics. The admissions discrimina- versity.1 "After four frustrating years" ofun- tion controversy quickly became a highly visible publicizeddiscussionandnegotiation national issue leading to Federal Government with

1 Asian American Students Association of Brown University,Asian American Admission At Brown University(Oct. 11, 1983) (hereafter citedas Asian American Admission At Brown).

104

I 1 university officials regarding the low admit rate thatAsian American students were over- of Asian American applicants in comparison to represented and presumed that they hagl narrow other applicants to Brown, Asian American stu- career interests and passive perAmality. dents at Brown decided to "document and publi- The issue erupted again in 1984, this time at cize.. .aprima facie case of racial discrimination the University of California at Berkeley. In spite against Asian Americanl in the Brown Univer- of the university's earlier projection of an in- sity admission process." Their main contention creased enrollment of Asian American stu- was that although Asian American applicants as dents,7 the number of newly enrolled Asian a group have one of the highest academic stand- American students at Berkeley fell by 21 percent ings among all subgroups and the number of between 1983 and 1984, in comparison to a de- Asian American applicants increased eight and a cline of 11 percent for white students over the half times between 1975 and 1983,3 the number same period. The admit rate for Asian American of Asian American students admitted did not students fell from 48 percent in 1983 to 34 per- "refleut this increase in any significant way."4 cent in 1984.8 Alarmed by this development, The number of Asian .American applicants ad- Asian American civil rights groups and commu- mitted to Brown rose from 74 in 1975 to 140 in nity representatives formed the Asian American 1983, less than a twofold increase.5 Task Force on University of California Admis- In 1983 the East Coast Asian Student Union sions (hereafter referred to as the Task Force) (ECASU) released a study that revealed a sim- to determine the causes of the sudden decline ilar pattern in other East Coast institutions. This and to study the effect of a set of new admOions study surveyed 25 schools in the East Coast and criteria on Asian American applicants.The found that in most schools the number of Asian Task Force report, released in June 1985 after 6 American applicants admitted had barely in- months of intensive study, concluded that the creased during the 1970s and early 1980s, al- "sharp decline...in Fall 1984 resulted from uni- thoughthenumberofAsianAmerican lateral, undisclosed changes in freshman admis- applicants had increased dramatically. The result sion policies."18 was lower admit rates for Asian American appli- The issue of whether Asian American applicants in comparison to other groups, including cants are treated fairly at the Nation's top insti- whites. The ECASU report concluded that the tutions of higher education began to receive higher rejection rates of qualified Asian Ameri- national attention in 1985 when the New York can applicants were the result of low personal Times and the Washington Post printed articles ratings by admissions officers who considered on thistopic." The New York Times article

2 Ibid., p. 1. 3 The numbers of applicants to Brown University are shown below in table 5.1 (of this report). 4 Ibid., p. 2. 5 Ibid., table 2a. 6 Jayjia Ilsia,Asian Americans in Higher Education and at Work(Hillsdale, NJ: Lawrence Erlbaum, 1988), pp. 93-94. 7 Asian American Task Force on University of California Admissions, AsianAmerican Struxle For Fairness in Higher Education, Highlights of ATFUA 1984-1988(undated), p. 7 (hereafter cited as Task Force Highlights). 8 Asian American Task Force on University of California Admissions,Task Force Report(June 17, 1985), pp. 6-7 (hereafter cited as Task Force Report). 9 Tack Force Report,p. 1. 10 Task Force Highlights, pp. 7-8. 11 Michael Winerip, "Asian-Americans Question Ivy League's Entry Policies,"New York Times,May 30, 1985, pp. 111,134; "The Super

105 1 1 5 started with the experience of One faculty mem- newspapers16Grew the Nation's attention to the ber who served on a Princeton admissions com- questionofrestrictiveadmissionspolicies mittee: "We were going over the applicant list against Asian Americans. By 1988 the sustained and we came to a clearly qualified Asian Ameri- attention of thc print media and researchers had can student. And one committee member said, transformed what had started out as a local mat- 'We have enough of them.' And someone else ter at several colleges into a highly visible na- turned to me and said, 'You have to admit, there tional issue. The core concern was whether the arc alot."2 The article wcnton to say, "This Nation's elite institutions of higher education, ycar at Princeton 17 percent of all applicants faced with an increasing number of qualified and 14 percent of Asian-American applicants Asian American applicants, were placing a ceil- were accepted. At Harvard, 15.9 percent of all ing on the number of Asian American students applicants and 12.5 percent of Asian-Americans they would admit. Phrascd differently, the issuc were accepted. At Yale 18 percent of all appli- was Lher higher standards of admission were cants and 16.7 percent of Asian-Americans were being applied to Asian Amedcan candidates as a accepted."13 As for the academic qualifications means of reducing or containing the number of ofAsianAmericanapplicants,thesame Asian American students. Princeton faculty member was quoted as saying, Although based on scattered data for differ- "My hunch is if you look at the top 20 percent of ent colleges for different years, the cumulative the Asian-Americans beingrejectedatIvy literature of this period showed a pattern of League schools, thcy arc better qualified aca- lower admit rates for Asian American students demically than thc bottom part of the class that than for white students. At most selective col- is accepted."14 The article also described how leges, the enrollment of Asian American stu- difficult it had been for concerned Princeton dents did not rise in proportion to the rapidly students and alumni to get admissions-related increasing number of Asian American appli- statistics from the university. cants. At such prestigiouscolleges17as Harvard, In the ncxt few years numerous articles in Brown, Princeton, Yale, Stanford, and the Uni- professional journals15 and in magazines and versity of California at Berkeley and Los Ange-

Students," Washington Post (editorial), Nov. 16, 1985, p. A22. 12 Winerip, "Ivy League's Entry Policies," p. BE Although this particular quote was in reference to a graduate school admissions committee, it reflected a widespread suspicion as to what might be happening behind the closed doors. 13 Ibid., p. B4. 14 Ibid.

15 John El. Bunzel and Jeffrey K.D. Au, "Diversity or Discrimination?Asian Americans in College," The Public Interest, no. 87 (Spring 1987), pp. 49-62; John H. Bunzel, "Affirmative Actian Admissions: How It 'Works' at UC Berkeley," The Public Interest, no. 93 (Fall 1988), pp. 111-28; Jayjia Usia, "Limits of Affirmative Action: Asian American Access to Higher Education," Educa- tional Policy, vol. 2, no. 2 (1988), pp. 119-36; Don T. Nakanishi, "Asian Pacific Americans and Selective Undergraduate Admis- sions," Journal of College Admissions, vol. 118 (Winter 1988), pp. 17-26; L. Ling-chi Wang, "Meritocracy and Diversity in Higher Education: Discrimination Against Asian Americans in the Post-Bakke Era," The Urban Review, vol. 20, no. 3 (1988), pp. 183-209. 16 For example, see: Wincrip. "Ivy League's Entry Policies"; "The Super Students," Washington Post (editorial), Nov. 16, 1985, p. A22; Lawrence Biemiller, "Asian Students Fear Top Colleges Use Quota Systems: Acceptancim Haven't Kept Pacc With Increases in Applications," Chronicle of Higher Education, Nov. 19, 1986, p. 1; Dorothy Gilliam, "A New Restrictive Racial Quota," Washington Post, Feb. 5, 1987, p. D3; Eloise Salholz and Shawn Doherty, "Do Colleges Set Asian Quotas? Enrollments Are Up, But They Could Be Higher Still,' Newsweek, Feb. 9, 1987, p. 60; "The Specter of Quotas," Washington Post (editorial), Dec. 17, 1988, p. Al8; Robin Wilson, "U.S. Studies Policies at Ilarvard, UCLA on Admitting Asians: Public Concern Over Quotas Cited; Universities Vehemently Deny Bias," Chronicle of Higher Education, Nov. 30, 1988, p. Al.

106 les, Asian American applicants were admitted at spectively, of its plan to conductcompliance re- a lower rate than white applicants at one point views of their admissions policies.19On May 3, or another in the 1980s, although Asian Ameri- 1988, then-President Reaganspoke in ogosi- can applicants had academic qualifications com- don to Asian quotas in college admissions.On parable to those of white applicants.18In 1988 November 30,1988,Senators Thomas A. the issue of admissions discrimination against Daschle (D-SD) and Paul Simon (D-IL)hosted Asian Americans began to receiveFederal Gov- a congressional seminar on the "alleged anti- ernment attention. In January and June of 1988, Asian bias in university admissions."21 the U.S. Department of Education'sOffice for The year 1988 also markeda turning point in Civil Rights informed the University of Califor- the development of the admissionsdiscrimina- nia at Los Angeles and Harvard University, re- tion controversy. Until 1988 thecontroversy had

17 Although it was most telling among prestigious private colleges, the low admissions rate for AsianAmerican applicants was also observed at 4-year public institutions. According to a 1985 national survey of 4-year undergraduateinstitutions, the Asian American admit rate to public institutions was 92 percent of the total admit rate (i.e., 66 percent vs. 72 perzent),while the Asian American admit rate to private institutions was 77 percent of the total admit rate (i.e., 49 percentvs. 62 percent). Hunter M. Breland, Gita Wilder, and Nancy J. Robertson, Dernogra.911ks, Standards, and Equity: Challenges in College Admissions(AACRAO, ACT, The C)llege Board, Educational Testing Service, and NACAC, 1986), cited in Jayjia IIsia, "Limits of AffirmativeAction: Asian Ameri- can Access to Higher Education," Educational Policy, vol. 2,no. 2 (1988). p. 122. 18 Among those who monitored and researched the issue, thc simple facts of the disparate admit rate andthc slow increases in the numbers of Asian Americans enrol 1 were undisputed, but their interpretivecontext differed. While sonic researchers merely de plored the lack (4 access to the kind of data and decisionmaking information necessary to supportor refute the allegation, others saw the controversy as "another manifestation of a very old anti-Asian racism " Notice a distinct contrast in the followingquotes: "It should be emphasized that we have not found any definitive esedence that numerical limits on Asian Americanadmissions might bc in effect....But it is equally important...that...we have not been given the kind of access to data and decision-makinginforma- tion that would permit us to support or refute conclusively [the allegation of numerical limits). ...The possibilityof numerical limits on Asian Americans operating in the college admissions process...cannot be rejected out of hand." (Bunzel and Au, "AsianAmeri- cans in College," p. 61.) "To maintain their privileged status and to perpetuate their domination.. .[the nation's elite colleges and universities) have been forced in the 1980s to modify their admissions criteria in order to slow down the Asian American 'invasion,'much like what these same institutions had to do from 1918 to 1947 when they discovered the 'Jewish problem.' To these elite institutions,Asian Ameri- can students constitute a 'New Yellow Peril.... .The current efforts to limit Asian American access to high-quality education is in fact another manifestation of a very old anti-Asian racism deeply woven into the fabric ofour society and embedded in our culture and national consciousness." (Wang, "DiscriminationAgainst Asian Americans, pp. 201, 205.") 19 U.S. Department of Education, Office for Civil Rights, "Chronology of OCR Asian Quota ComplianceReview," by Gary Curran, Jan. 23, 1989, p. 1 (hereafter cited as OCR Chronology). Prior to the announcement, OCR beganreceiving individual complaints about Asian American discrimination in college admissions. On July 13, 1987, the OCR regionaloffices were instructed to select for compliance rmiews higher education institutions where there were suggestions of usingquotas to deny admission to qualified Asian American applicants. Ibid. 20 On the occasion of signing the Asian/Pacific American Heritage Week Proclamation, then-PresidentReagan said: "1 know there's a growing concern that some universities may be discriminating against citizens of Asian and Pacificheritage...despite their academic qualifications. To deny any individual access to higher education when it has been wonon the basis of merit is a repudiatIon of everything America stands for. Let everyone be clear...that the use of informal exclusionary racialquotas, or any practice of racial discrimination against any individual violates the law, is morally wrong, and willnot be tolerated." Public Papers of the Presiderus of the United States, Ronald Reagan. 1968, Book 1, p. 546 (Washington, DC: GovernmentPrinting Office, 1990). 21 Congressional Record-Senate, S. 1135, Feb. 2, 1989. In May 1989, Al3C's TVprogram "200" covered the issue, further directing the nationai attention to the controversy. ABC-TV, "20a0 Program," May 5, 1989, 10:00-11:00PM (EST).

107 1 1 7 been uncomplicated. It centered aroundthe sim- have traditionally opposed affirmativeaction ple empirical question of whether or notthe policies, who argued that the restrictiveadmis- Nation's prestigious colleges anduniversities sions policies against Asian Americans areboth treated Asian American applicantsfairly in com- symptomatic of a larger problem, affirmative ac- parison to white applicants. Thequestion was tion in universityadmissions,25 and an inevitable This clearly amenable to resolution. Itwould have re- outcome of affirmative action programs. quired comparing the admit ratesof Asian casting of the controversy as part ofthe national attention American and white candidatesafter adjusting debate on affirmative action deflected elite colleges for pertinent characteristics andqualifications. from the core issue, whether or not Such an analysis would havebeen relatively and universities had instituteddiscriminatory ad- American stu- straightforward if the admissions datahad been missions practices against Asian made available toresearchers.22 Admissions-re- dents. late in 1990, lated data for selective colleges anduniversiti...s At this stage in the controversy, civil rights com- were extremelydifficult to obtain,23 however, OCR released its long-awaited undergraduate and preventing the kind of systematicinvestigation pliance reviews of Harvard's Los Angeles' that could have provided afactual basis for re- the University of California at controversy24 and creating in some (UCLA) graduate programs. OCR,in a report solving the below, found observers the suspicion of apossible coverup by that is discussed in some detail Harvard free of any discriminatoryadmissions college administrators. applicants,' but Starting in 1988 the controversytook on a policy against Asian American UCLA new twist as itbecame embroiled in the national concluded that one graduate program at Asian American appli- debate on affirmative action.The admissions had discriminated against discrimination issue was embraced bythose who cants in violation of civilrights laws.2 Several

Nakanishi observed that "the admissions debatemight not have become so explo- 22 Writing on the larger picture of the controversy, used to test or verify their largerly un- sive if there had been a body of empiricalknowledge that all parties to the dispute could have "A Quota on Excellence? The Asian founded assumptions and assertions aboutAsian American students." Don T. Nakanishi, American Admissions Debate," Change(November/December 1989), p. 40. pertinent data. For example, Dr. Dana Takagi ofthe University of California at 23 Researchers have generally been unable to obtain Wesleyan University, who is working on her Santa Cruz, who is working on a book onthis controversy, and Ms. Lai-Wan Wong of Takagi, telephone in- thesis, recounted a similar experience regarding access tocritical admissions data at selective campuses. Dana by Commission staff have terview, Feb. 7, 1991; Lai-Wan Wong, telephoneinterview, Mar. 4, 1991, Requests for admissions data encountered similar difficulties with selective institutions. of pertinent data, which inhibited objectiveappraisal of the controversy. Note 24 Many researchers have deplored the inaccessibility confidentiality, it has been extremely diffi- such comments as "Because of numerousand, in our view, often questionable policies of in College," p. 53. "It is...important cult to collect official and comprehensiveadmissions data." Bunzel and Au. "Asian Americans data and decision-making information that to note...that with the exception ofBrown, we have not been given the kind of access to admissions]." Ibid. "The scope of this would permit us to support or refute (theallegation of numerical limits on Asian AmeCtan "Discrimination Against Asian study is severely limited by the closely guardeddata and documents available to date." Wang, Americans," p. 190. Action: Facts in the Asian American AdmissionsControversy," Social Prob- 25 Dana Y. Takagi, "From Discrimination to Affirmative lems, vol. 17, no. 4 (1990), p. 578. 1, U.S. Department of Education, Office forCivil Rights, letter to Derek 26 Thomas J.I libino, Acting Regional Director, Region cited as OCR Let- Bok, President, IlarvarJ University, entitled "ComplianceReview No. 01-88-6009," Oct. 4, 1990, p. 1 (hereafter Review No. 01-88-6009" (on Har- ter). U.S. Department of Education, Office forCivil Rights, "Statement of Findings, Compliance vard University), Oct. 4, 1990 (hereafter cited asOCR Findings).

108

S other colleges were under review by OCR as of between 1980 and 1983 (see table 5.1).29They September 1991.28 sought to resolve the issue withoutmaking it Given the politically charged environmenten- public by talking with the Brownadministration gulfing the controversy, it is important forthe and the admissions office. When 4years of ef- public not to lose sight of the central issue ofthe forts "resulted in little, ifany, change in admis- controversy:Do institutions of higher educa- sion policy vis a vis Asian Americansand no tion, particularly the eliteones, treat Asian substantial increase in the number ofAsian Americanapplicantsunfairly comparedto Americans admitted,"3° the Asian American whites? StudentsAssociationof BrownUniversity (AASA) decided to "document and publicize Three Case Studies the prima facie case of racial discrimination The remainder of this chapter offers descrip- against Asian Americans in the BrownUniver- tions of how three institutionsBrown,the Uni- sity admissions process"31 by releasinga report in October 1983. versityofCaliforniaat Berkeley,and Harvardcoped with the admissions discrimina- Table 5.1 shows the admissions datacon- tion issue. These institutionsare selected for attained in the AASA report for theclasses of tention because their admissions policiesand 1979-87 and also updated admissions datafor processes have undergone intense scrutiny and the classes of 1989-93. Basedon an analysis of the outcomes of these investigationsare publicly the admissions data for the classes of1979-87, available. Furthermore, these threeuniversities the AASA report found that: provide instructive contrasts in themanner in which controversywas handled. 1) Between the classes of 1982 and 1983the admit rate for Asian American students fell Brown University dramatically, from 46 percent to 26percent. In comparison, the overall admitrate declined Brown University's Asian American commu- only slightly, from 27 percentto 24 percent. nity became concerned about possible admissions discrimination against Asian Americans 2) There were 235 more Asian Americanap- when the Asian American admit rate, which had plicants for the class of 1983 than for theclass historically been higher than the overall Brown of 1982, but the number of AsianAmerican admit ratc, became equal to and then fell below applicants accepted declined byone, from 141 the overall admit rate during the4-year period to 140.

27 John E. Palomino, Director, Region IX, U.S. Department of Education, Office for Civil Rights, letterto Charles E. Young, Chan- cellor, University of California at Los Angeles, "Statement of Findings, Compliance Review No. 09-89-6004,"Oct. 1, 1990, p. 2. OCR also imposed a recordkeeping requirement on several other UCLA gradtiate programs that had not i,:eptsufficient data on their admissions processes for OCR to be able to reach a determination about whetheror not they were in compliance with Title VI. Ibid. 28 As of October 1991, the following colleges were under compliance review or complaint investigation regardingthe admissions of Asian American students: the University of California at Berkeley (undergraduate programs); the University ofCalifornia at Los Angeles (undergraduate programs); Boalt Hall School of Law at the University of California at Berkeley;and the School of Optom- etry at thc University of California at Beiteley. Lillian Dorka, Attorney Advisor to the Assistant Secretary for CivilRights, U.S. Department of Education, Office for Civil Rights, telephoneinterview, Oct. 15,1991. 29 Asian American Admission al Brown,p. 1. 30 Ibid. 31 Ibid.

109 1 1 9 lot

TABLE 5.1 Admissions Data: Brown University,Classes 1979-1993

1979 INIM!M1119801981 1982 1983 1984 1985 1986 1987 1989 1990 1991 1992 1993 Total freshman 1 dass Applicants 8,635 9,1259,15610,56511,29811,90111,81711,74613,27813,70713,08112,48612,73111,720 Admits 2,856 2,8303,016 2,C46 2,6732,559 2,593 2,6042,6242,637 2,6272,788 2,701 2,869 Admit rate (%) 33 31 33 2) 24 22 22 22 20 19 20 22 21 24 Asian Americans Applicants 168 265 224 307 542 679 868 1,006 1,425 1,539 1,627 1,703 1,564 1,783 Admits 74 101 106 141 140 153 156 188 204 256 245 324 303 424 Admit rate(%) 4 38 47 46 26 23 18 19 14 17 15 19 19 24 Asian American admits as % of total freshman admits 2.6 3.6 3.5 5.0 5.2 6.0 6.0 7.2 7.8 9.7 9.3 11.6 11.2 14.8

Source: Information for classes 1979-89 was obtained from tables 2a and 2b, the Asian American Students A3sociation at Brown Report (1984).Information for the classes of 1989-93 was provided by the Office of the Dean ofAdmissions, Brown University. Information for the class of 1988was not available.

111111MM/....11EMEMUNIAMIIIII

1 2 ( ) 1 ' 3) After the dramatic decline between 1982 2) The acceptance of the "model minority" and 1983, the Asian American admit ratecon- myth of Asian Americans by university admin- tinued to fall, from 26 percent to 14 percent, istrators and admissions officers led to inat- for the classes of 1984-87 although the class- tention to, and disparate cffortsiii, recruiting wide admit rate remained almostconstant Asian Americans.3" over this period. Starting with the class of 1985 the Asian American admitrate was Finding the explanations offered by Brown in- below the classwide admit rate. sufficient, AASA recommended that the admit ratc for Asian American applicants be madc "at 4) Although the number of Asian American least equal to the all-college admit rate,"34 thata applicants to Brown University increased greater number of sociocconomicall; disadvan- steadily between the classes of 1979 and 1987, taged Asian Americans be recruited, 5 and that the number of students admitted seemed to more information on Asian American applicants plateau between the classes of 1982 and 1983 and acceptances be gathered and madc available and between the classes of 1984 and 1985. for analysis.36 Four months after the AASA report, the AASA's inquiry concerning the causes of the Brown University Corporation Committeeon disparity in admissions rates led it to two conclu- Minority Affairs (hereafter referred toas CI; sions: poration Committee) issued a forthright report ' admitting the existence of "an extremely serious 1) Asian American and white applicantswere situation,"38 concurringthat "Asian American comparable in their academic qualifications, applicants have been treated unfairly in thc ad- and the academic profile of the Asian Ameri- missions process,"38 and calling for "immediate can applicant pool had not changed suffi- remedial measures."40 Thc report specifically ciently to "justify such a drastic decrease in stated: the admit rate."3

Eit 32 Ibid., p. 7 and table 6. 33 Ibid., pp. 8-13. Specific illustrations cited in the AASA report include: 1) "no letters [of recruitment] were sent to Asian American students in California,New York, Pennsylvania.. .bccause [they] were 'self-recruiting,' and [admissions officers argued that} Brown neednot make any special effon to recruit Asians." (Ibid., p. 10.) 2) The "model minority myth especially hurts Asians from lowerincome families. Inner-city and economically disadvantaged Asian students need extra consideration and affirmative action to compete...with themore affluent and assimilated suburban Asian students." (Ibid., p. 11.) 3) Funding was cut off by the admissions office, preventing studentrepresentatives from attending a Co'iqc Day in New York's Chinatown along with representatives from other schoolson the East Coast. Funding was restored after A.,.SA's strong opposition. (Ibid., p. 11.) 4) Asian American students' efforts to meet with individual admissionsofficers informally to discuss Asian American admissions were thwarted. The associate director of minority recruitment asked admissions officersnot to meet with the Asian American students and also tried to discourage AASA from carming out its plans. (Ibid.,p. 12.) 34 Ibid., p. 26. 35 Ibid. 36 Ibid., p. 27. 37 Brown University Corporation Committee on Minority Affairs, "Reportto the Corporation Committee on Minority Affairs From Its Subcommittee on Asian American Admissions," Feb. 10, 1984. 38 Ibid., p. 2.

BEST CPY AYLAIIE 111 unjusti- While.. .wedo not claim intentionally unfair treat- paratively low non-academic ratings. These biases gul ste- ment on the part of individuals orin the stated admis- fied low ratings are due to the cultural sion policies of the University, the admissionpractices reotypes which prevail in the admissionoffice. used to implement these policies have resultedin sucb Com- unfair treatment [of Asian American candidatesthat]. Based on its findings, the Corporation If left unrectified, thc combination ofpolicies and mittee made five remedialrecommendations. practicAs would make the resulting inequitiesinten- These recommendations included: 1)the admit tional. rate for each minority subgroupof applicants with qualifications equal or comparable tothose The report uncovered several factorscontrib- of nonminority applicants "should be atleast uting to the differential treatment ofAsian equal to the admit rate of non-minorityappli- American applicants. Two of these factors areof cants,"44 and 2) statistical information concern- interest here. The first involves the use ofhistor- ing admissions and financial aid shouldbe made ical benchmark figures as enrollmentgoals, available on request to legitimateuniversity which had resulted in limiting thenumber of groups with an interestin theseareas.45 The Asian American admits: Corporation Committee also urgedthe president of Brown to proclaim itsrecommendations When the Asian American admits closelyapproxi- as part of theofficial univeisity policy on admis- mated its historical benchmark number, theadmission sions.46 The Corporation Cimmittee report and process is curtailed withoutregard to the total num- its recommendations were subsequentlyadopted the current year ber of Asian American applica%for by the university, and theadministration as a or their academicqualifications. whole embraced the CorporationCommittee's self-criticism.47 As The second factor was the subjective natureof underlying spirit of open of Asian rating nonacademic or personal characteristics. shown in table 5.1, the admit rate starting The Corporation Committee wasforthright in American applicants improved gradually class of 1993, pointing out: with the class of 1989, and, for the it became identical to the admit rate ofthe total It was clearly stated by all admission staff towhom we freshman class. spoke that Asian American applicantsreceive com-

39 Ibid. 40 Ibid. 41 Ibid. 42 Ibid., p. 3. 43 Ibid., p. 4. 44 Ibid., p. 5, italics in original. 45 Ibid., p. 7. 46 Ibid. submitted by the Visiting Committee on Minority Life andEducation at 47 An example of the spirit of open self-criticism is the report and Brown University. entitled "The American University and thePluralist Ideal." Impressed by the intense desire of both students committee administration officials to "see (Brown] measure up to higherstandards of ethnic sensitivity and racial civility," this this critique.. noted: "the existence of the Visiting Committee illustratesthe point. The President and the Board of Fellows invited The .We have admired the open, candid, and sharing attitudesencountered as we went about our inquiry." Brown University, American University and the Pluralist Ideal: A Report of the Visiting Committee onMinority Life and Education at Brown University (May 1986). Quotes are from pp. 3 and xi, respectively.

112 The University of California at requirement. During these years, Asian Ameri- Berkeley can community leaders and the Task Force also The Asian American Task Forceon Univer- made their concerns known to thepress and the sity of California Admissions (hereafter Task State legislature. In 1987 several developments Force),48 formed in fall 1984 inresponse to the occurred:California State Assembly Speaker precipitous decline in Asian American freshman Willie Brown announced his support forgreater enrollment, released its report in June 1985.49 legislative oversight involvement to resolve the According to the Task Force report, several fac- controversy over the alleged admissions quotas; tors caused the number of Asian Americans ad- Cali"ornia State Senate President Pro Tempore mitted at Berkeley to decline. Specifically, the David Roberti requested the State auditorgen- report stated that UC-Berkeley: eral to conduct an audit of the UC-Berkeley freshman admissions policies and proceduresas 1) imposed a minimum 400score on SAT verbal test they affected Asian American and white appli- to deny admission to eligible Asian American immigr- cants; and the UC-Berkeley Academic Senate ant freshman student applicants; appointed the Special Committeeon Asian American Admissiors to review the allegations 2)unexpectedly ceased freshman admission consid- of the Task Foree.51 erationfor low-income,first-generation-collegiate The State auditor general's report,52 released Asian American applicants;...redirected them to in October 1987, reached the following conclu- other UC campuses; these low-income Asian Ameri- sionsregarding Asian American applicants, can students did not enroll in significant numbers at while noting that gaining admission to Berkeley other UC campuses because of the economic barriers had become increasingly more difficult for both in attending a campus far from home; Asian American and white candidates between 3)did not include Asian American faculty and staff 1981 and 1987: members in the discussion, adoption and implementation of freshman admission policies; didr ot publicize 1) of the 49 separate admission rates comparing to affected Asian America% applicants changes in Asian American with white applicantsacross differ- freshman admission policies. ent colleges and programs for the seven-year period between 1981 and 1987, Asian American applicants Throughout 1985 and 1986, therewere many were admitted at51 lower rate in 37 instances and at a exchanges between the Task Force and univer- higher rate in 12; sity officials, who disputed the Task Forcefind- ings. In particular, the university officials flatly 2) during the same period, theaverage figh school denied the Task Force's contention that Berke- grade point average (GPA) of Asian American applicants rose from 320 to 3.72, wft the average GPA ley had imposeda minimum SAT-verbal score for whites rose from 3.27 to 3.62;

48 The Task Force was co-chaired by San Francisco MunicipalCourt Judge Lillian Sing and Alameda County Superior Court Judge Ken Kawaichi. 49 Task Force Report. 50 Task Force Ilighlights, p. 8. 51 Ibid., p. 9. 52 Auditor General of California,A Review of First-Y'ar Admissions of Asians and Caucasiansat the University of California at Berkeley (October 1987) (hereafter cited as Auditor General's Report). 53 Ibid., p. S-4. 54 Ibid.

113 1.'24 3)in the College of Letters add Scicnces, the deci- Economic Disadvantage Removed sion made by the university to redirect economically From Protected Category disadvantaged candklates to other campuses was a major factor explaining the drop in the number of A comparison of the admit rates of Asian Asian. American freshman admitted in the fall of American and white applicants for the years 1981 to 1987 showed that in 2 years, 1984 and 1984.55 1987, "the campus should have admitted approx- In Februan, 1989 the Academic Senate's Spe- imately 50 more Asian Americans [if Asian cial Committee on Asian American Admissions Americans had been admitted at the same rate (hereafter Special Committee) released its re- as whites with the sameacademic qualifications], port.56The report, which is based on examina- or about 1.1 percentof the campus-wide admit tion of university documents, interviews with pool."59 The Special Committee found that the university staff, and otherinformation,57 is im- university's decision to cease guaranteeing ad- portant becaese it represents athorough investi- mission to applicants who qualified for the edu- gation of the controversy and because it paved cational opportunity program (EOP) but not for the way for an eventual agreement betweenthe affirmative action(i.e.,applicants who came Asian American community and the university from an economically disadvantaged background to develop new procedures and policiesthat but were not members of underrepresented would ensurc fairness al provide reassurance groups) was the major reason far the 1984 drop to the Asiancommunity.5 The following pages in Asian American enrollment.The committee discuss three important findings of the report in estimated that in 1984 the dropping of EOP as a detail. protected category resalted in denyingadmis- sion to 146 EOP applicants, about 90 percentof whom were AsianAmericans.61

[Educational Opportunity] applicants tad been admitted to the 55 Ibid., p. 48. The report found that "if Asian and Caucasian EOP College of Letters and Science at the same rate as they werc in 1983, thenthe difference in the overall 1984 admission rates of the two groups (51.9 percent for Asians and 59.5 percent for Caucasians)would have been 2.1 percentage points-58.0 percent for As- ians and 60.1 percent for Caucasians." Ibid. American Admisskms of the Berkeley Division of the Ac- 56 University of California, Berkeley, Report of the Special Committee on Asian ademic Senate (February 1989), p. 4 (hereafter cited as Shack Report, as it iscommonly referred to after the committee's chairman Prof. W.A. Shack). involved in shaping and implementing admissions 57 The Special Committee examined relevant documents and interviewed persons policies as well as the Task Force members. The committee also evaluatedthe auditor general's report, other statistical information, and Berkeley's admission policies as a whole. Ibid., p. 4-5. of the Asian American Task Force on University Admis- 58 "A Joint Statement by Judges Ken Kawaichi and Lillian Sing, Co-chairs sions, and Chancellor Ira Michael Heyman of the University of California atBerkeley," Apr. 6, 1989 (hereat r cited as Joint State- ment). 59 Shack Report, p. 23. 60 Ibid., p. 6. 61 Ibid., p. 30. This committee finding was consistent with the finding by the Stateauditor general discussed above. The committee finding that the LOP decision led to roughly 130 fe% Jr AsianAMerican applicants being admitted in 1984 when only 50 more Asian American students needed to be admitted to reach parity with whites suggests that other factors werealso at work, but that the EOP decision, by itself, could more than explain the entire Asian American deficit in 1984.

114 125 In the process of evaluating the university's While these allegations are troubling, they are im- reasons for changing its policy on EOP appli- pressionistic charges that cannot outweigh, in our cants, the Special Committee was made aware of opinion, the substantial evidence that the decision to and became "troubled" by the allegation of one redirect non-AA EOP applicants was based on legiti- Asian American administration staff member mate considerations. The legitimate reasons for the that "administrators and staff have expressed the decision, as described above, were plausible, substantial, and plainly at work. ...We therefore think it un- view that there are 'too many Asians' at Berke- likely that the decision to end protection for non-AA ley"62 and by the "perception of another staff EOP applicants Aeflected intentional bias against person that some of the participants in a De- Asian Americans. cember 1983 admissions meeting 'seemed to be deliberately searching for a standard which In concluding that the ply change was could bg used to exclude Asian immigrant appli- based upon legitimate reasons,the committee cants."'3Given these indications of anti-Asian believed that because the policy change was bias within the Berkeley administration, the widely reviewed and accepted by many within committee acknowledged the possibility that the Berkeley administration, any anti-Asian mo- anti-Asian bias might have contributed to the tivation for the policy change would have been decision to change the policy on EOP appli- detected and the policy would not have been cants: adopted had its motivation been anti-Asian bias.° Asa result, the committee did not con- It is possible that some or all of the decision-makers sider whether these legitimate reasons might were motivated, in whole or in part, by a desire to re- have been pretexts for reducing the number of duce the enrollment of Asian Americans a group Asian American students on campus. Given the that rexesented, as they surely knew, the largest per- information presented to thecommittee68 sug- centage of the Non-AA [affirmative action] EOP ap- gesting that at least some university administra- plicants. There is some second-hand evidence, or at tors at some staff meetings expressed and shared least internal allegations, that some people Ln the their concern that there were too many Asian Campus Administration were thinking this way. American students on the Berkeley campus, the However, the committee concluded that the pol- committee could have investigated further to de- icy change was most likely based on legitimate termine whether and to what extent anti-Asian considerations and not anti-Asian bias: bias played a role in the EOP policy change.

62 Shack Report, p. 7. 63 Ibid., p. 7. 64 Ibid., p. 31. 65 Ibid., p. 32. 66 'I\vo legitimate reasons for the policy change were cited by the committee. These were: 1) The number of EOP students was becoming "too large," and thc admission guarantee to HOP students was beginning to interfere with the admission of affirmative action stueents; and 2) EOP studcnts were "having considerable difficulties with the English language," imposing both academic and financial costs on the university. Ibid., p. 31. 67 The committee stated: "Mhe number and variety of the persons and groups participating in the decision...make it in our view unlikely that an improper purpme of limiting Asian enrollment would either have eluded all these decision-makers or been sharedby all of them. We therefore think it unlikely litat the decision to end protection for non-AA HOP applicants reflected intentional bias against Asian Americans." (Ibid., p. 32.) 68 Patrick S. llayashi, Assistant to the Chancellor, letter to Prof. William Shack, Chair, Special Committee on Asian American Admis- sions, Academic Senate, Apr. 7, 1988, pp. 1-2 (hereafter cited as Ilayashi letter).

115 Furthermore, since the policy changewas Regarding this policy change the conunittee con- likely to have a disparate impact on a minority cluded: group, it should have been evaluated to determine:1) whether the purpose it is designed to We do not know why L and S decided, or who in L accomplish is necessary; 2) whether the policy and S decided, to respond to the surge in applications change in fact would accomplish that purpose; by raising the GPA threshold but not by raising the and 3) whether there exist other measures that test-score threshold as well. We cannot rule out the could accomplish that purpose without a dispa- possibility that this decision had the purpose, at least in part, of limiting the number of Asian Americans rate impact. Such scrutiny would constitute an admitted relative to the numbeyf whites. But neither important safeguard against the adoption of dis- can we confirm that possibility. criminatory admissions policies. It is not clear from the Special Committee report that the Considering the serious nature of this possi- EOP-redirection decision was ever given such bility, it would have been legitimate for the com- scrutiny, nor does the report attempt to address mittee to have investigated further the process this issue. and circumstances leading to the GPA decision with a view to determining more definitively 1) Raising Required Minimum on GPAI the extent to which the decision was motivated But Not on Entrance Tests by a desire to reduce the number of Asian Faced with a surge of applications to the Col- American students on campus and 2) whether lege of Letters and Science (L and S) for the fall the decision was given the thorough scrutiny of 1984, the administration decided to raise the warranted for policies that are likely to have a minimum grade point average (GPA), but did disparate impact. not raise the required minimum scores on college entrance tests, that would guarantee admis- Directive For Setting Minimum sion.AtthattimeBerkeleyguaranteed SAT-Verbal Scc.e admission to candidates who met either a mini- On December 28, 1983, the director of the mum OPA threshold or a minimum score on col- Office of Admissions and Records announced lege entrance tests.69 Asian American applicants that applicants of "permanent aliens" status not were more likely to be admitted on the strength meeting a minimum SAT-verbal score72 would of their GPA, whereas white applicants were be redirected to other campuses.73 The directive more likely to be admitted on the strength of (hereafter referred to as the Bailey directive) test scores (especially English tests). Thus, rais- was rescinded in early January 1984, however, ing only the minimum GPA threshold had the about 10 days after it was issued and before it effect of disadvantaging Asian American appli- had an adverse effect on any applicant to Berke- cants relative to white applicants." ley.

69 This policy has been abandoned since then in favor the Academic Index Score, which isnow in use. 70 Shack Report,pp. 5, 24, 71 Ibid., p, 24. 72 A score of less than 400 for those applicants in the upper 50 percent of the applicant pool anda score of less than 450 for those in the lower 50 percent of the pool.Shack Report,p. 34. 73 Robert L. Bailey, memorandum "Permanent AliensFall 1984," to Vice Chancellor Watson M. Laetsch, Dec. 28, 1983 (reproduced as app. II-C in the Shack Report) (hereafter cited as Bailey directive).

116 I7 Since the directive affected Asian American ministration officials had handled and responded immigrant applicantsmore than any other 74 to their concerns about freshman admissions group,the directive naturally becameone of quotas against Asian American applicants.76 the focal points of the 1985 Task Forcereport. The following pages offera brief account of As noted earlier, however, the existence of the the events surrounding the issuance of the direc- directive was reReatedly denied by the university tive. Faced with a 25 percent increase in applica- administration," creatinga tense atmosphere tions for fall 1984, the directol of the Office of filled with anger, distrust, and accusation. Fi- Admissions and Records (OAR)was advised nally, in early 1988, the California State Assem- that some action was needcd to avoida potential bly Subcommittee on Higher Education released overenrollment crisis. In early December 1983 two internal memoranda (dated December 28, the university held a meeting at whichways to 1983, and January 4, 1984) written by the direc- reduce the number of new freshmen admitted tor of admissions at UC-Berkeley establishinga were discussed. During the course of this meet- minimum score of 400 on the SAT-verbaltest ing, someone suggested establishinga minimum for immigrant applicants only. At the subcom- SAT-verbal score requirement of 400 for im- mittee hearing at which the Bailey directivewas migrant students. This suggestion met with released, the UC-Berkeley chancellor apolo- strenuous objections for its adverse impacton gized publicly to the Asian American community Asian Americans and its discriminatory intent, for the insensitivemanner in which Berkeley ad- and the meeting ended withoutany decision.'"

74 Shack Report, p. 38. 75 In responding to the Task Force, the university claimed that "theCampus never instituted a minimum verbal SATscore of 400... .In fact, of freshmen entering in Fall 1984, 9 percent (and 14percent of Asian freshmen) scored below 400 on the verbal scale." B. Thomas Travers, Assistant Vice Chancellor for Undergraduate Affairs, letterto Ken Kawaichi and Lillian K. Sing, Co-chairs, Asian American Task Force on UC Admissions, July 26, 1985, p. 6 (hereafter citedas Travers letter). 76 "In this regard, first I would like to say I wish I had beenmore sensitive to the underlying concrrns at issue. While they did not manifest themselves as neatly as I now see them, Berkeley could havereacted more openly and less defensively than we did. Because the anxieties were elevated, I apologize for this. I really do believe, that regardlessof the occasional hostilities between the Task Force and the campus, that the Task Force has performedavery. .ervice in opening up all of these issues for a vote, for viewing and for debate.

"Second, I believe that there is no systematic bias against Ask.n-Americansin our admissions system, that no verbal SAT became operative in '84 and that the removal of Asians from blanket EOP protectionwas done in good faith. I want to be sure of the cor- rectness of these conclusions and the fairness of the results. The AcademicSenate al Berkeley has sct up a special committee to investigate these matters." Chancellor Ira Michael Heyman, Statementat the hearing of the California State Assembly Subcommittee on Higher Education, chaired by Tom Hayden, Asian-American Admissions at the University of California: Excerpts froma Legisla- tive Hearing,Jan. 26, 1988, pp. 4-5. 77 The written statement of one person who participated at this meeting is worth quoting because it illustrates thc dynamicsthat prevailed at the meeting: "In early December 1983, Assistant Vice Chancellor Travers asked that I attend a meeting to discuss admissions. I normallydid not attend meetings on admissions and I do not know why I was invited to attend this meeting....At that meeting, we discussedways to reduce the number of new freshmen admitted for Fall, 1984...Someone suggested that OAR (Office of Admissions and Records) establish a minimum SAT-Verbal score requirement of 400 for immigrant students. The stated rationale was that therewas a great deal of concern about the number of Asian immigrants whowere coming to Berkeley who had difficulty writing or speaking English well. "I objected to this proposal on the grounds that, if implemented, it would clearly discriminate against Asians. Someonecountered by saying that the proposed minimum standard was not discriminatory in Otat it would be applied to everyone equally. I statedthat it would not be applied equally to everyone, that it would be applied only to 'immigrants.' Someone stated that it wouldbe applied

117 aliens may On Decembu 28, 1983, however,the OAR ...Such discrimination against resident Bailey directive well be illegal or unconstitutional; in any event,it vio- director issued the controversial treating im- implementing the policy of a minimumSAT-ver- lates [the] University policy [of not migrants or refugees ny differentlyfrom citizens in bal score. At an UndergraduateAffairs staff re- treal held on January8-10, 1984, an Asian its admission process]. Ametican 6taff person, who had been presentat Nonetheless, the committee did notconclude the early December meeting andhad raised ob- that the directive was necessarilymotivated by a jections to the proposal at thattime, spoke with desire to reduce the number ofAsian students Affairs. The vice chancellor for Undergraduate on campus: Asian American staff person repeatedhis objections to the SAT-verbal minimurarequirement, Whether the Bailey directive alsorepresented dis- whereupon the vice chancellor"agreed with crimination "against Asians" is a moredifficult ques- this] concerns and immediatelyordered the pol- tion. Bailey and the otherpolicy-makers involved icy be revoked.°8 The SpecialCommittee cider- surely knew that the largest numberof applicants ex- mined that, although a dozen or soAsian cluded by the directive would beAsian immigrants. It American applicants were to beaffected by the does not necessarily follow, however,that the direc- directive, the rescission of thedirective came in tive was intended to exclude theseapplicants because &desire to re- time to stop the mailing ofrejection letters and they were Asians, or that it reflected duce the number of Asians at Berkeley. instead accept thoseapplicants.79 regarding the Two of the committee's findings As these quotes demonstrate, thecommittee First, the com- Bailey directive merit comment. report dismisses the argumentthat imposing a mittee stated: minimum SAT-verbal score forimmigrant stu- intentionaldiscrimination 1983, was im- dents represented The Bailey directive of December 28, against Asians. This dismissal, however,needs to ..0n its face the directive disciiminated proper. . be weighed against severalfacts:1) the policy against aliens living permanently in theUnited states.

immigrants would be protected wider affirmativeaction to all immigrants. I said that even thatstatement was false in that Hispanic would be Asians. I pointed out that...one policy. I said that it was clear that the vastmajority of students who would be impacted should be made in consultation with the ap- must also look at projected impact....1also stated that any change of policy of this sort propriate Academic Senate committees and notby administrators alone. seemed to be deliberately "1 (urther argued that the proposed policy wasdiscrimiratoty in intent in that some of the people present stated that if Berkeley established an searching for a standard which could be used toexekttic Asian immigrant applicants. Finally, I would object strongly. Someone SAT-Verbal minimum requirement for immigrants,members of the Asian American community that they were 'fools' if opined that because there are so many Asian students atBerkeley nobody would notice the change....I said else would learn of the change. I re- they through they could get away with this changein policy. Someone asked how.. .anyone sponded by saying, 'I'll tell them personally.' implemented. I informed AVC "After the Christmas holiday, I spoke with DirectorBailey and learned that the policy had been repirement had been implemented and repeated myobjections." Travers that I had learned thatic SAT-Verbal minimum Hiyashi letter. in the form of a memorandum addressed toLaetsch, Lactsch was not aware 78 Shack Report, p. 36. Althoegh the Wit') *et; .ive was hack in Berkeley for only 1 day of it until the retreat because he Pad been awayliom Berkeley over the holidays and had stopped 36-37. before going to the retreat. "On learning ot the directive,"Laetsch said, "he immediately rescinded it." Ibid., p. 79 Ibid., pp. 37-38. 80 Ibid,, p. 38. 81 Ibid.

118 1 2 9 changc affected only one specific population the University's good faith and naturally arouses sus- group (i.c., immigrant applicants), and a large picions among the communitiesminterested in the majority of that population group was known to University's admissions be Asian American; 2) the inevitable effect of the policy change on the number of Asian [One must also consider,1 not only the issuance of the American students admitted had been pointed directive in the first place, and the likelihood that the improper judgement itreflected was not Bailey's out in no uncertain terms at the December alone, but also the prolonged footdragging of the meeting;82 3) alternatives to the policy were not Berkeky Administration in producing the key docu- discussed at the December meeting, nor were ment. other objectives mentioned that would have been achieved by the SAT-verbal minimum However, the committee's investigation does score.83Given these facts, some could draw the not explain adequately how the directive came conclusion that the policy change was indeed to be issued in spite of the strong objections motivated by a desire to reduce the number of voiced at the early December meeting. Consid- Asian American students, or at least was in- ering the possibility that thc improper judgment tended to exclude certain applicants because reflected inthe directive was "not Bailey's they were Asians. It would have been helpful if alone," and that indeed other decision-makers the committee had elaborated its conclusions were implicated, it would have beenlegitimate morefully." for the committee to have undertaken a more Second, the committee stated: comprehensive investigation of how the decision was made and to have developed recommenda- We also find troubling the claim by the Campus ad- tions for measures87that would protect against a ministration over a prolonged period that it could not future recurrence. find this memorandum. As best we can determine, the The prolonged controversy at Berkeley was fi- memorandum was not produced by the Administra- nally resolved in April 1989 when the Task tion until January 1988. Such conduct casts doubt on Force and the university issued a joint statement

82 Hayashi letter. 83 I layashi letter. pp. 1-2, andShack Report,pp. 34-7. 84 Moreover, the committee failed to point out that the Internal process should have had built-in safeguards to ensure that policy changes with a disparate impact never be made without careful examination of whether or not they are necessary. Instead, the committee appears to be satisfied with the internal process at Berkeley because the Bailey directive was revoked before any damage was done: "Indeed, it might be said that the internal processes of Berkeley Administration showed healthy capacities of self-correction in this casc. An improper directive was issued, but it was met by prompt and vigorous internal criticism, criticism that came from subordinate officials...as well as persons in ot' z.r offices. As a result the directive was retracted two weeks later, before it could have any impact." Ibid., p. 40. 85 Ibid., p. 38. 86 Ibid., p. 40. 87 As for the university's "footdragging," some of the facts of the situation call into question the university's claim that it could not find the directive. In particular, an assistant vice chancellor was present at the early December 1983 meeting (Hayashi letter, p. 1), and the directive was carbon-copied to him on Dec. 28, 1983 (Bailey directive, p. 1). In addition, he was also informed of the directive's implementation eer the 1983 winter break (Hayashi letter, p. 2). Yct, this official claimed in July 1985 that "the Cam- pus never instituted a minimum Verbal-SAT score of 400" (Travers letter, p. 6). Although there may be someambiguity as to whether the university ever "instituted" a minimum verbal SAT for immigrant students since the policy never actually affected any applicants, the university was clearly less than forthcoming in its denial. Had the university adopted a more candid approach, the issue might have been rtmolved much sooner.

119 1 3 0 promising mutual cooperation. The joint state- cies or procedures. We found no evidence of the exis- ment said, "We are here today to put the past in tence or use of quotas, nor did we find that Asian perspective and move forward together to en- Americans were treated differently than white appli- sure that the admissions process at Berkeley cants in the implementation of the admissions pro- guarantees fairness to all groups and is based on cess. ...We determined that the primary cause of the full public understanding."88 This joint state- disparity was the preference given to children of ment officially ended an era of tense confronta- alumni and recruitedathletes. . .andthat[the tion between the Asian American community preferencestrre leettimate and not a pretext for dis- and the university, marking the beginning of a crimination. forward-looking spirit of cooperation. The OCR report on Harvard presents the results of the first thorough, outside investigation Harvard Universit; of the admissions discrimination issue at one of In 1988, in response both to questions about the country's top private universities. The report Harvard's admissions process raised by Asian unveils, for the first time, some of the well- American organizations and by media and re- guarded institutional proprietary information search reports and to spccific concerns brought about Harvard's admissions procedures.93 More directly to the U.S. Department of Education,89 importantly, it provides a factual basis for evalu- OCR initiated a compliance review of Harvard ating the admissions discrimination controversy University to determine whether Harvard dis- on its merits. Because of its historical impor- criminated against Asian American applicants to tance,91he OCR report merits careful consider- its undergraduate program in violation of Title ation. VI of the Civil Rights Act of 1964." Afte 2 OCR's findings are based on three separate years of intensive investigation, OCR released components of its analysis:1) an analysis of the its report on October 5, 1990,91 concluding: overall admissions picture at Harvard; 2) a statistical analysis comparing the admit rates of white Harvard has not violated Title VI with respect to the and Asian American applicants after adjusting admission of Asian American applicants to the under- for qualifications; and 3) a detailed stuuy of graduate program. Over the last ten years Asian Harvard's admissions process, including inter- American applicants have beet admitted at a signifi- views with staff and an examination of a large cantly lower rate than white applicants; however,.. number of applicant folders. The following .this disparity is not the result of discriminatory poli-

88 "A Joint Statement by Judges Ken Kawaichi and Lillian Sing, Co-Chairs of the Asian American Task Forceon University Admis- sions, and Chancellor Ira Michael Heyman of the University of California at Berkeley," Apr. 6, 1989,p. 1. 89 U.S. Department of Education, Office for Civil Rights, "Statement of Findings" (for Compliance Review No. 01-88-6009on Har- vard University), Oct. 4, 1990, p. 2 (hereafter cited as OCR Findings). 90 OCR letter. 91 U.S. Department of Education, "Harvard Cleared of Asian-American Discrimination Charges," Press Releasc, Oct. 5, 1990 (hereafter cited as OCR Press Release). 92 OCR Letter, p. 1. 93 Although there have been a number of historical studies of who attended Harvard and what influence I larvard graduatesatert, few studics have empirically investigzeed who gets admitted to I larval:d and on what basis. David Karen, "Who GetsInto Harvard? Se- lection and EXcillsion at An Hite College (Ph.D. dirs., Harvard University, 1985).p. 4. 94 Some Asian American researchers have charged that the OCR report is flawed and have called foran independent evaluation of the OCR investigation. Scott Jaschik, "Dounts Are Raised About U.S. Inquiryon Harvard Policies,"Chronicle of Higher Education, Feb. 6, 1991, p.

1.20 TABLE 5.2 Admissions Data: Harvard University,Classes 1983-1992

1983 1984 1985 1986 1987 1988 1989 Whites 1990 1991 1992 Applicants 10,344 10,708 9,849 9,715 8,855 9,219 9,561 9,196 9,270 9,157 Admits 1,744 1,642 1,609 1,755 1,707 1,629 1,596 1,623 1,474 1,453 Admit rate (%) 16.9 15.4 16.3 18.1 19.3 17.7 16.7 17.6 15.9 15.9 Asian Americans Applicants 784 1,015 1,161 1,351 1,391 1,605 1,731 2,054 2,168 2,263 Admits 'i 18 153 167 180 199 204 220 232 267 291 Admit rate (%) 1E.1 15.1 14.4 13.3 14.3 12.7 12.7 11.3 12.3 12.9 Asian American admit rate as % of total freshman admits 5.5 7.5 8.5 8.5 9.6 10.4 10.9 11.5 12.9 14.2

Source: U.S. Department of Education,Office for Civil Rights, Statement of Findings, Compliance Review 01-98-6009, 1990, tables1, 2, and 3. "OM eMINIM

1 "43 VI 2 pages review these three components of OCR's covered through its investigation, led OCR to investigation and offer general commentson conclude that Harvard had not placed a limitor Harvard's admissions policy visa vis Asian "quota" or ceiling on the number or percentage American students and On OCR's conclusion of Asian American applicants admitted.95 that Harvard's policy giving admissions preferences to children of alumni does not violate Statistical Analysis of Admit Rates Title VI. Although the overall admissions picture led OCR to conclude that Harvard had not setan Analysis of Harvard's Overall Asian American "quota," it did not help tore- Admissions Picture solve the broader issue of whether equally quali- Table 5.2 shows the overall admissions picture fied Asian American and whitc applicants had for Asian American and white applicants to Har- equal chances of being admitted to Harvard. vard for the classes of 1983-92. Thc admit rate of Thcrcfore, OCR sought to address this issue by Asian American applicants was lower than that undertaking a statistical analysis of Harvard's ad- of white applicants in the last 7years of the 10- mission decisions. The following summary of year period (classes of 1986-92). However, the OCR's statistical analysis is based in parton number of Asian American applicants admitted OC9F6t's report and in part on a statistical appen- to Harvard during the 1980s increased both in dix made available to Commission staff by absolute number and as a percentagc of the class OCR. along with the increase in the number of Asian At the heart of OCR's statistical analysis is American applicants. Specifically, the number of the estimation of logistic regressions predicting Asian American applicants admitted increased admission for Asian American and white candi- steadily from 118 to 291, while the number of dates for the classes of 1983-92 based on their Asian American admits as a percentage of the measured qualifications.97 This analysis was de- total class showed a parallel increase from 5.5 to signed to allow comparison of the admit rates of 14.2 percent, without any apparent sign of Asian American applicants and white applicants reaching a plateau or ceiling. These statistics, after controlling for differences in their qualifi- along with the absence of contrary evidenceun- cations.98 The statistical analysiswas carried out

95 OCR Findings, pp. 5-6. 96 U.S. Department of Education, Office for Civil Rights, "Harvard Discriminant, Logistic Regression,and Odds Ratio Analyses," May 10, 1990 (hereafter cited as OCR Statistical Appendix). 97 OCR estimated separate logistic regressions for Asian Americ3n and white apphcantsto I larvard. The dependent (or criterion) vambie in tieae ir.gresswim was the admit/reject decision for the applicant, andthe independent (or predictor) variables included measures ot' ihe applk:ant's qualificatimn (e.g., test scores, grades, teacher ratings, extracurricular activities, inteiviewratings, etc). , pp. 334.) OCR's fiadings were also based in part on the results of another type of statistical analysis (i.e., an odds ratio analy5is)-- .4c-scribed in O( R's statisticai appendix, but not mentioned in the OCRreportthat further supports OCR's finding tha! when at hif7tes and let acies are removed from consideration similarly qualified AsianAmerican and white candidates are almost equally likdy to be admitted. (OCR Statistical Appendix,pp. 8-12.) 98 With tvwccl to the relative qualifications of Asian American applicants, OCR reportedtwo major findings:"i) Asian American applicants had significantly higher scores than whites on academic rating, SAT math, classrank, and teacher rating. White applicants, on the other hand, were higher on athletic raung, penronal rating, and SAT verbal" (ibid.,p. 33); and "ii) eight of the ten criterion variables relevant to the admissions decision significantly differentiatedthe two groups (with the exception of SAT verbal, Asian American applicants were higher on academic scores while whiteapplicants were higher on non-academic scores)" (OCR Findings, p. 34). Judging that the "magnitude of the differenee betweenthe two groups was small," however, OCR concluded that

122 in two stages. In the first stagc, OCR analyzed "disparity in admit rates [notcontrolling for the admit rates of all applicants99 and foundthat qualifications] is virtually eliminatedover the there were significant differences between the ten year period whcn removing lekcies andre- factors influencing the admh/reject decisions for cruited athletes from the sample."'"2These find- Asian American and white candidates.In the ings led OCR to conclude thatthe lower admit second stage, because Harvard asserted that the rate for Asian American applicants could beex- preferences given to children of alumni(lega- plained, as Harvard had contended,by their cies) and recruited athlete applicantsexplained lower representationamong legacies and ath- the admit rate disparity,m OCR repeated the letes and was not the result of differentialtreat- analysis without these two preferencegroups. ment of Asian American candidates.103 Upen removing legacies and athletes fromits OCR made the appropriate decisionto base analysis, OCR found that "all of theserace ef- its conclusions in large parton statistical analy- fects [i.e., group differences between Asian sis. However, several commentson OCR's statis- Americans and whites] disappeared, withthe ex- tical analysis and its presentationare in order. ception that one variable, the readeracademic First, OCR's iogistic rcgression analysishas sev- rating, continued to havea small adverse effect eral methodological problems that ifcorrected on Asian Americans."101 This finding means that couldpotentiallyproduce differentresults. once legacies and athletes were removed from Among these problemsare OCR's specification consideration, Asian American and whitecandi- of flu., independent variables,104 OCR'sdecision dates with the same measured qualificationshad to use a stepwise logistic regression procedure similar admit rates. Indeed, even the raw or un- rather than including all relevantvariables in the controlled difference between the admitrates of regressions,105 andOCR's decisions about when Asian American and white candidateslargely and when not to aggregate differentclasses into disappeared when legacies and athleteswere re- one data set.11°6 Second, given that the central moved from the sample: OCRstates that the legal question to bc answeredwas whether simi-

"[the two groups appear overall to be comparably qualified when viewing their means." (Ibid.,p. 33.) 99 Those applicants for whom there were incomplete data were excluded from the analysis. Asa result, slightly more than three-quarters of the applicants to Harvard over the period 1983-92 were ruled out from the statistical analysis. OCR Statistical Appendix,p. 4. 100 OCR Findings, p. 2. 101 Ibid., p. 34. 102 Ibid., p. 36. 103 Ibid., p. 40. 104 For instance, variables such as academic rating on which applicants were given a score from 1 to 5 by Harvardadmissions staff were entered as continuous variables in the logistic regression analysis, when a more appropriate specificationwould have been to enter them as categorical variables. There is even evidence from OCR's odds ratio analysis to support theview that Asian Americans with the highest academie rating had much better relative chances of being admitted than Asian Americans withmidlevel academic rating scores. (OCR Statistical Appendix,pp. 10-1.) 105 The stepwise procedure ends up discarding some variables, making it nearly it impossible to arriveat a straightforward interpretation of OCR's results. For instance, in some instances the dummy variable for race was excluded,while interaction terms between that dummy variable and other variables were kept (see, e.g., OCR Statistical Appendix, table 14.) Inthese situations it is difficult to interpret the coefficients on the interactionterms. 106 OCR's decision to aggregate 10 classes into one data set rather than estimating separate regressionsfor each year may have had the effect of masking discriminatory effects existing only in 1 or 2 years during the 10-year period.An incident of noncompliance (e.g., treating Asian Amerium applicants in a discriminatory manner) in 1 year, if mixed together withthe data from the other 9 years,

123 1 (.1 5 larly qualified Asian American and white candi- are likely to beinfluenced by any biases and ste- dates had the same chances of beingadmitted by reotypes subscribed to by Harvard'sadmissions Harvard (and not whether Asian American and staff. Thus, Asian American applicants may be white candidates as a group have the same admit given lower personal ratings than equallyquali- rates), the most important statistical findings are fied white applicants depending onthe reader's those that compare Asian American andwhite biases. Until it is known that the personal ratings admit rates after controlling for differencesin given Asian American candidates do not incor- qualificationsi.e., the logistic regressions. Yet porate such bias, the statisticalresults s'howing the OCR report gives too little prominence to that the admit rates of AsianAmerican and its discussion of the logistic regressions that con- white candidates with equal measuredqualifica- trol for differences inqualificationsw and as a tions were the samc do not necessarilyindicate result may leave the casual reader with little un- that Asian American candidates did notface dis- derstanding of the basis for OCR's statistical crimination at Harvard. Partly because ofthese of findings. limitations, OCR undertook a careful review In addition, it should bc noted that thereis an Harvard's admissions process and Harvard's inherent limitation in the ability ofstatistical treatment of Asian Americans' filefolders in ad- analysis alone to resolve the issue of whether dition to a statistical analysis. Asian American candidates receive discriminatory treatment in the admission process.This Examination of Harvard's Admissions limitation is related to the subjective natureof Process some of the variablesmeasuring the qualifica- OCR interviewed admissions staff to gain an tions of the applicants. For example, oneof the understanding of the process, reviewed 400 ap- variables used in the OCR's regression analysis plicant file folders to determine whetherAsian to measure an applicant'squalifications is a nu- American and whitc applicants were evaluated merical rating of the applicant's "personal" char- differently, and looked at reader summarysheets acteristics given by admissions staff based on his for an additional 2,000 applicantfiles.108 Al- or her applicationfolder. Such subjective ratings

Thus, unless prohibited may not be powerful enough to show itseffects above and beyond what may have happened in other years. by practical considerations, such as small sample sizes, statistiulanalysis should be conducted on each class separately. OCT explained to Commission staff that small sample sizes w tire one of theconsiderations that prevented them from performing year-by- but not year logistic regressions. Furthermore, OCR states,"We believed that a statistical discrepancy found for a single year, Civil Rights, present in later years or thc current year, would havelimited value in making a compliance determination." (Office for "Comments and Concerns on Draft Report, Harvard ComplianceReview," p. 2, accompanying Michael Williams, Assistant Secre- tary for Civil Rights, U.S. Department of Education, letter toWilfredo J. Gonnlez, Staff Director, U.S. Commission on Civil Rights, Oct. 17, 1991 (hereafter cited as OCR Comments). On the other hand, in comparing the admit rates of AsianAmerican and white legacies, OM' chose to examine each class separately. OCR found that Asian American legacies had lower admit rates thanwhite legacies, but that the differences were not significant. (OCR Findings, table 11, p. 38.) liad OCRaggregated the data to obtain a larger sample size, it might have found that the difference in Asian American and white legacy admit rates was signficant. (Ibid., pp. 34-3S.) In contrast, the report gives consid- 107 The OCR report devotes one paragraph to discussing the logistic regressions. erable visibility to table 8, which shows the mean admit rates of AsianAmerican and white candidates for all applicants and for non- athlete, nonlegacy applicants onlyboth with and with legacies and athletes.(Ibid., p. 36.) Because table 8 does not control for the qualifications of the applicants, it says little about how Harvard treats similarlyqualified Asian American and white candidates. In addition, neither the OCR report nor the statistical appendix provided byOCR provides sufficient information for an outside observer to determine exactly what OCR did in itsstatistical analysis.

124 126 though OCR's indcpth examination of Harvard's read their assignments. In spite of Harvard's admissionsprocessfoundseveralpotential claim that nearly all of the Vietnamese and Fili- sources of discrimination, overall OCR did not pino applicants were read by an ethnic reader, find evidence that the admissions process was bi- OCR found that for several applicants notedas ased against !"e.ian Americans. OCR's investiga- being of Vietnamese or Filipino heritaiel "there tion did bring to light several issues worth was no evidence of the ethnic read." 1 When examining. These issues are the ethnic read Har- confronted with this finding by OCR, Harvard vard says it gives Asian Amcrican applicants and asserted that: stereotyping comments madeaboutAsian American applicants by Harvard's admissions the Asian American ethnic reader was assigned to staff. dockets and sits on subcommittees which included Asian American Ethnic ReadHarvard ex- over half of all Asian American applicants. Conse- plained to OCR investigators that it uses ethnic quently,..In addition to those files in which OCR readers for Asian American (as well as black, found evidence of the Asian American read, the Hispanic, and Native American) applicants to: Asian ethnic reader reviews files and participates in discuss:ons at subcommittee and full committee, fret- ings on many more Asian American applicants. provide an additional or different sensitivity to the G.-, view of the application. The ethnic read is designed to Nonetheless, the OCR report found that "our ensure that no special cultural or ethnic factors are file review did not support Harvard's assertion overlooked which might prevent an Asian American applico's background from beingfully under- that the Asian American ethnic reader reviews stood. 'most' or all files of Asian American applicants who 'have a chance."14 Furthermore, "ialccording to the Dean of Ad- Based on its indepth review of Asian Ameri- missions, the Asian American reader reviews can and white candidates' file folders, OCR folders of Asian American applicants who 'have "could not conclude that the lack of an ethnic a chance,' perhaps 80 percent of the appli- read put Asian American candidates at a disad- 110 cants. Yet, contrary to this claim, OCR vantage,"115 but noted that "the possibilityexists found that only 19 percent of Asian American that some ethnically-related factors might be applications were read by the Asian American overlooked."6 Nonetheless, OCR didnot find ethnic reader. Moreover, the Asian American that Harvard's failure to provide an ethnic read reader read most of these cas,s, not as an eAtra to many Asian American candidates was in viola- ethnic reader, but as the first reader who was as- tion of Title VI.117 signed to read cases as other first readers would

108 OCR Findings, p. 19. 109 Ibid., p. 14. 110 Ibid. 111 Ihid., p. 23. 112 Ibid. 113 Ibid. 114 !hid., p. 24. 115 Ibid. 116 Ibid. 117 In elaborating on this finding, OCR asserts that Harvard is not required by Title VI to providean ethnic read to Asian American candidates, and thus Harvard's failure to do so does not constitute a violation of Title VI. (OCR Comments,p. 4.) However, if

125 117 In another apparent inconsistency between Stereotyping Comments on Asian American Harvard's stated policy and its procedures, al- ApplicantsOut of concern for the potential though Harvard states that race and ethnici% stereotyping of Asian American applicants and are positive factors in the admissionsdecision,1 its impact on the admissions decision, OCR re- OCR "found no readers' comments which sug- viewed reader comments on applicant folders gested that an applicant's Asian ethnicity was a for negative characterizations. OCR found sev- significant factor in deciding to admit the appli- eral examples of readers making generalizations cant in the same way that being a legacy or re- about Asian Americans. For example, consider cruited athlete was instrumental' Indeed, the remark, "[the applicant's] scores and appli- OCR observed: cation seem so typical of other Asian applications I've read:extraordinarily gifted in math None of those interviewed could think of, or remem- with the opposite extreme inEnglish"122 and ber a single case in which an applicant's Asian Ameri- references to a "classic V.N. [Vietnamese] boot- can ethnicity was cited as the "tip"which resulted in strap case,9123and to "a classic BC/NC [blue col- the applicant being agmitted over a substantially lar/noncollege background]Asian American equal white applicant. from theinner-city."124 Furthermore, OCR found that "quite often" and "in a number of Thus, it is not clear whether Harvard has a well- "126 cases Asian American applicants were de- articulated, Lonsistent policy about whether scribed as being science/math oriented, quiet, Asian Americans should be given preference in shy, reserved, self-contained, and soft spoken. admissions. In fact, there was considerable dis- Interestingly enough, "these characteristics were agreement among file readers interviewed by underlinedforaddedemphasis by the OCR as to whether being Asian was likely to reader."127 OCR further noted that while white help an applicant in the admissionsprocess.121 applicants were similarly described, such descrip- Even thoughthesediscrepanciesbetween tions were ascribed to Asian American appli- Harvard's stated admissions policy and Harvard's cants morefrequently.128These comments procedures may not be in violation of Title VI, it suggest that Harvard's admissions staff may have is important for Harvard to clarify its admissions been influenced by the stereotype of Asian policy vis a vis Asian Americans to allay appre- Americans as achieving academic excellence at hensions about unfair treatment among the the expense of a balanced overall personal de- Asian American community. velopment. Based on its review of applicant file

+,1=11 OCR had found evidence that Asian American applicants were given discriminatory treatment as a result of the lack of anethnic read, then the failure to provide an ethnic read would indeed have been a violation of Title VI, 118 OCR Findings, p. 8. 119 Ibid., p. 28, italics in original. 120 Ibid., p. 29. 121 Ibid., np. 14-15. 122 Ibid., p. 25. 123 Ibid. 124 Ibid. 125 Ibid., p. 24. 126 Ibid. 127 Ibid. 128 Ibid.

126 folders, however, OCR found that "whilesome [Harvard's alumni] are naturally, very interested in reader comments could be construed to nega- the college choices of their own children. If their chil- tively affect the case of Asian American appli- dren are rejected by Harvard, their affection for and cants, the ratings given to the applicants, where interest in the college may decline; if their children these comments did occur, did not reflecta are admitted, their involvement with the College is re- lower than expected score.029Therefore, OCR newed. Having children share the parent's college af- concludedthatthestereotyping comments filiation stimulates those three aspects of "could not be shown to have negatively iini- contribution: of service, of money, and of community pacted the ratings given to these applicants."' relations. OCR also accepted the evidence provided by Legacy Tips and Their Legitimacy Harvard that alumni contribute both financially OCR concluded that Harvard's policy of giv- and through service to the university. In addi- ing preferential consideration to children of tion, OCR asked Harvard whether it had consid- alumni (i.e., "legacies") does not violate Title ered alternative ways of achieving its goals that vI.131 This conclusionrests on three considera- might have a less severe impact on Asian Ameri- tions. First, OCR noted that there was "no evi- canapp1icants.136 OCR accepted Harvard'sre- dence to suggest that these preferences were sponse that "in our judgment, and inthe instituted intentionally or deliberately to limitjudgment of our fellow institutions, tips for 7- the number of Asian Americans at Harvard,"132 eage.. .could not be eliminated without a sev since these preferences had been in place long effect on the strength and vitality of the insti before the number of Asian American appli- tions and their ability to achieve their educa- cants increased significantly. Second, OCR de- tional objectives."137 Given the importance of terminedthatHarvard's alumni preference thisissue,ratherthanmerelyaccepting policy was derigned to serve the legitimate Usti- Harvard's assertion, OCR might have asked for tutional goal of obtaining financial and volunr supporting evidence that alumni support would teer support for the university from alumni, and indeed drop off substantially if legacy prefer- that there were no viable alternative policies ences were no longer given and that there were that would accomplish the same goal.133 Finally, no reasonable alternative sources for such sup- OCR argued that existing casc law doesnot sug- port. gest that legacy preferences arc illegal." OCR noted that although there is no case law In determining that alumni preferencesserve addressing the legitimacy of a private university's a legitimate institutional goal, OCR accepted admissions preferences to children of alumni, Harvard's explanation that: there is one case (Rosenstock v. Board of Gover- nors of University of North Caro1ina)138 in which

129 Ibid.,p.26. 130 Ibid. 131 Ibid.,p.43. 132 Ibid.,p.40. 133 Ibid.,pp.40, 43. 134 Ibid.,p.42. 135 Ibid.,p.40. 136 Ibid.,p.40. 137 Ibid.,p.41. 138 423 F. Supp. 1321 (1976).

127 .D9 these a Federal district court waswilling "to recognize is a private university, it cannot be sued on the legitimacy of a link between a University's constitutional grounds and would insteadbe economic interests and admissions preference to challenged for violating Title VI of the Civil alumni children based on the factalumni donate Rights Act of 1964, and Title VI law, not consti- large sums of money to theUniversity."139 Based tutional law, would be controlling. OCRcould on these considerations,OCR concluded that make a valuabie contribution to theresolution "there is no definitive authority to suggestthat of this issue by issuing guidelinesspecifying in such preferences are unlawful in andof them- what circumstances alumni preferences areal- selves."14° lowed under Title VI. Although OCR is correct in its determination The issue of legacy tips is an importantissue that legacy preferences arc not clearlyillegal with far-reaching ramifications notonly for the under Title VI, it should be noted that theissue immediate question of Asian Americanadmis- of the legality of alumni preferencesunder Title sions, but also for the general issue of equal op- VI remains unresolved. As noted byOCR, the portunity in higher education.Although the pertinence of Rosenstock to the legitimacyof practice of legacy tips was in place beforeAsian Harvard's legacy preferences is open to ques- American applicants increased innumber, its tion. It is true that the court in Rosenstock stated use will continue toaffect Asian Americans and that since alumni provide substantial monetary other minorities adversely to the extentthat they support for the university,providing a prefer- are underrepresented amongalumni of elite col- ence to the childrenof alumni is rationally re- leges and universities. It is too important an based on lated to the legitimate objective ofcontinuing issue to grant legitimacy so readily that alumnisupport.141 However, Rosenstock "one Federal district court's willingness to rec- institution's eco- may not necessarilybe controlling in the Har- ognize a link"I42 between an It vard context for two reasons.First, no "suspect nomic interests and alumni contributions. class," such as Asian Americans, was involvedin deserves to be debated and articulatedby the the Rosenstock case, meaning thatthe university larger community of legal scholarsand civil in that case only needed to meet the"rational rights advocates against the broader contextof relation" test rather than the stronger"strict civil rights advancement. scrutiny" test that would have been requiredhad It was in recognition of this broadnational ramifizations that Sen- a suspectclassbeen involved.Second,in context and its profound Rosenstock thc plaintiff's challenge was that the ate Minority LeaderRobert J. Dole (R-KA) university (a public university) violated the equal wrote to Secretary ofEducation Lamar Alexan- protection and due process clauses of the 14th der upon his nomination urginghim to "re-ex-

amendment of the Constitution. Since Harvard amine the Department's. . .endorsementof the

139 OCR Findings, p. 42. 140 Ibid.. p. 42. 141 423 F. Supp. 1322. 142 Ibid.

128 1 -1 0 so-called 'legacy preference.'"143 He was con- observed that the practice "calls into question.. cerned that the practice of legacy preference .the very assumptions undergirdingour society "serves only to discourage the aspirations of(that 'the rules of thegame are fair to all' and those students who are not fortunate enoughto that 'merit will prevail')."145 come from privileged backgrounds."144 He also

143 Sen. Robert J. Dole (R-KA), letter to Secretaty ofEducation nominee I amar Alexander, Dec. 18, 1990,p. 1. 144 Ibid., p. 2. 145 Ibid.

129 141 Chapter 6 Employment Discrimination

Asian Americans face a number of barriers to tion against Asian American women. Resource equal participation in the labor market. Many of limitations prevent the chapter from providing these barriers are encountered to a greater de- detailed coverage of other important issues, in- gree by the foreign born, who oftenconfront lin- cluding several serious specific allegations of guisticandculturalbarrierstofinding employment discriminationreceivedby the employment commensurate with their education Commission. These allegations include: and experience, but even third- or fourth-generation Asian Americans find their employment 1) Participants at the Commission's New prospects diminished because employershave York and San Francisco Roundtable Con- stereotypical views of Asians and prejudice ferences alleged that recently arrived Asian against citizens of Asian ancestry. Employment immigrants are exploited by firms who take discrimination, to varying degrees, is a problem advantage of their ignorance of their rights facing all Asian Americans. As will be seen in and their need for jobs. They spoke of em- the succeeding pages, employment discrimina- ployers of immigrant Asians who violated tion against Asian Americans ranges from dis- labor laws with unsafe workinf conditions, crimination based on accent or language, to low pay, and long hours of work. discrimination caused by our nation's immigration control laws, to artificial barriers preventing 2) Cambodians in Lowell, Massachusetts, al- many Asian Americans fromrising to manage- leged that there were some industrial employment positions for which they are qualified. ers in the area who resorted to numerous This chapter details several types of employ- pretexts for discriminationincluding pre- ment discrimination that are frequentlyexperi- tending that they had run out of application enced by i-thian Americans and examines the forms and setting arbitrarily high job require- legal protections available to victims of discrimi- ments (such as a high school diploma require- high nation. The chapter covers five employment dis- ment for an unskilled job or extremely crimination issues in detail:the glass ceiling, English-proficiency requirementpto avoid language rights in the workplace, the certifica- hiring Cambodian job applicants. tion of foreign-educated professionals, discrimination caused by the Immigration Reform and Employment discrimination on the basis of under sec- Control Act, anti-Asian discrimination in con- race or national origin is prohibited struction unions, and employment discrimination 1981 of the Civil Rights Act of1866,3 which

Roundtable Conference on Asian American 1 May Ying Chen and Jackson Chin, Statement at the U.S. Commission on Civil Rights Civil Rights Issues for the 1990s, New York, NY, June 23, 1989; Andy Anh, Statcment atthe U.S. Commission on Civil Rights Roundtable Conference on Asian American Civil Rights Issues for the 1990s, San Francisco, CA, July 29, 1989. 2 Vera Godley, Project Director, and Cambodian American staff members, CambodianMutual Assistance Association, interview, Lowell, MA, Feb. .2, 1990. 3 42 U.S.C. *1981.

130 14 2 prohibits racial discrimination in contracts (and Also,as noted elsewhere,7 the Supreme has been interpreted to apply to national origin Court's Martin v. Wilks8 decision, which allows discrimination as wcll, and Title VII of the Civil consent decrees to be challenged in court after Rights Act of 1964,which prohibits employ- they have been entered, has made itmore diffi- ment discrimination on the basis of race, color, cult for Asian Americans to seek to be included religion, sex, or national origin. Several recent in consent decrees requiring affirmative action Supreme Court decisions interpreting section in municipal and State government employment, 1981 and Title VII have had a negative effecton while the Wards Cove Packing Co.v. Atonio de- Asian Americans' ability to obtain legal redress cision9 made itmore difficult for Asian Ameri- for discrimination against them, however. Inpar- cans and others who face artificial barriers to ticular, the 1989 decision, Patterson v. Mclean employment to prove their case in court. The Credit Union,5 which limited the types of em- U.S. Commission on Civil Rights has supported ployer behavior that arc illegal under section the Civil Rights Act of 1990 passed by Congress, 1981, means that Asian Americans can no longer but subsequently vetoed by President Bush, sue for damages when their employers racially which would undo the effects of these three de- harass them On the job. For example, as a direct cisions.19 Although the Civil Rights Act of 1990 result of the Patterson decision, a case brought was not enacted, in 1991, after exhaustive de- by a Hawaiian woman of Asian descent against bate,Congress passed and President Bush her employer was dismissed by the court, even signed into law a compromise bill, the Civil though the court acknowledged that: Rights Act of 1991,11 containing most of the provisions of the Civil Rights Act of 1990. Itisundisputedthat[the woman's supervisor] McDonough made many derogatory and discrimina- Glass Ceiling toryremarksaboutvariousethnicgroups. . .McDonough referred to a Japanese person as a The perception that there is a "glass ceiling" "Jap" and compared local people to "thc spies in New barring most Asian Americans from attaining York," stating that locals arc "not capable of bcing management positions (especially upper level supervisors" and are "incompetent"...McDonough management positions) for which they are quali- told her..."in a contemptuous way" that "I have to fied was perhaps the concern most frequently have the only secretary who does the hula.. . ." voiced by Asian American participants in the McDonough adopted a rude and aggressive behavior Commission's Roundtable Conferences12 and by with [the womanh yelling at hcr frequently6 and de- other Asian American individuals and advocacy meaning hcr in front of the other employees. groups across the country. Most felt that Asian

4 42 U.S.C. §2000. 5 491 U.S. 164 (1989). 6 Leong v. Hilton I folds. 50 ITP (7as. 738 (D. Hawaii 1989), cited in NAACP Legal Defense and Education Fund, "TheImpact of Patterson v. Mel can Credit Union," Nov. 20, 1989. 7 See chap. 3, n. 53. 8 490 U.S. 755 (1989). 9 490 U.S. 642 (1989). 10 In June 1990 the Commissioners voted to endorse the Civil Rights Act of 1990 and releaseda report on the proposed legislation. U.S. Commission on Civil Rights, Report on the Civil Rights Act of 1990 (July 1990). Similar legislation hasbeen passed by the I louse of Representatives this year and is currently before the Senate. 11 Pub. 1.. 102-106. 12 The glass ceiling issue was raised by Romesh Divan, New York Roundtable Conference; Harry Gee, TheresaChang, Martha Wong,

131 1 3 Americans are unfairly stereotyped as being un- Many of us feel that our Asian accent is a major stum- aggressive, having poor communications skills bling block in our career path. ...There is no doubt and limited English proficiency, and being too that communication skills are very important. How- technical to become managers, and that Asian ever, adopting a standard that is unreasonably high Ameridans were excluded from networks neces- may be tantamount to allowing an employment prac- sary for promotions. tice that is prejudicial against foreign-born Asian American employees.... The following statement illustrates the depth and the nature of the concerns. Most of us have proved our technical capability. How- ever, many major corporations tend to overlook the I am of the opinion that most Asian Americans are non-technical side of many Asian Americans. Corpo- facing an insurmountable glass wall in the corporate rations pick pigeon holes for us. And what is worse, world. As a matter of fact, most of us have given up they believe that we are quite contenbstaying in those hope of advancing up the zorporate ladder. The more technologically airtight pigeon holes. we think about it, the morefrustrated, discouraged, and depressed we becomo.... The perception among Asian Americans that discrimination is the root cause of their un- Within my company there are about 800 to 1,000 re- derrepresentation among highermanagerial searct, and engineering professional staff members. ranks is widespread. Thus, in a survey of 308 About 60 of them are of Asian origin. We think that Asian American professionals and managers in there are altogether about 200 management and man- the San Francisco Bay area, over two-thirds of agement track positions in the company. There are no Asians in management positions and only one Asian the Chinese Americans, one-half of the Japan- in a management track position... . ese Americans, and three-quarters of theFili- pino Americans felt that racism was a very I suspect that the minds of many corporate managers significant factor limiting their upward mobil- and the senior staff members who have direct control. ity.14 Respondents also pointed to difficulties in . .arestill in the 1960s. As a consequence, for most of networking, the lack of mentors, management them we Asians are a suspect class, and we usually insensitivity, and corporate culture as barriers to have to prove that we are better in order to be equal.. uppermobility.15 There exists some statistical evidence at the national level supporting the view that a glass Even after we pass a certain test or a certain set of ceiling exists for Asian Americans as well as for tests, the rules or penalties are much harsher against other minorities and women. A recent survey of us if we ever make any mistake.... highly successful executives in Fortune 500 companies shows that only 0.3 percent of senior ex-

Edward Chen, Chiang Cho, Wayne Liauh, William Chang, Albert Wang, Rong-Tai Ho, and Mark Chang, Houston Roundtable Conference; and Henry Der, Raj Prasad, Paul Wong, Vinod Patwardhan, and Virginia Barrientes, San Fra, cisco Roundtable Con- ference. 13 Wayne Liauh, Statement at the U.S. Commission on Civil Rights Roundtable Conference on Asian American Civil Rights Issues for the 1990s, May 27, 1989. 14 Amado Cabezas, Tse Ming Tam, Brenda M. Lowe, Anna Wong, and Kathy Owyang Turner, "Empirical Study of Barriers to Up- ward Mobility of Asian Americans in the San Francisco Bay Area," in Gail M Nomura, Russell Endo, Stephen H. Sumida, and Russell C. Leong, eds.,Frontiers of Asian American Studies: Writing, Research and Commentary(Pullman, Wk Washington State University Press, 1989), p. 93. 15 Ibid.

132 ecutives in the United States are of Asian. de- for Asian Americans.P9 For instance, a recent scent.16 therepresentation of Asian study of Asian Anwrican engineers found that Americans among senior executivea is just. one- they were significantly less likely to be in mana- tenth their representation in the population as a gerial positions or to be promoted to managerial whole,1' despite the high education levels of positions than white engineers with the same many Asian Americans. Not only ate Asian measured qualifications (e.g., educational atta.n- Americans undemtpresented at the highest lev- rant, years of experience) and other character- els of management, Asian Americans are un- istics (e.g., field within engineering, region of derrepresented in managerial occupations in residence, other demographic factors).-° This general. A recent Commission study showed that finding held for U.S.-born Asian Americans as U.S.-born Asian American men were between 7 well as for immigrants. A report on the city of and 11 percent. less likely to be in managerial oc- San Francisco's civil service by Chinese for Af- cupations than non-Hispanic white men with the firmative Action, an Asian American civil rights same measuredcharacteristics:8 It should be organization, concluded that "Asian profession- noted that since the analysis only includes U.S.- als are clustered in technical jobs," "there is a se- born Asian American men (and in addition ad- riousdeficitof Asian administrators," and justsfor English-language proficiency),itis "Asian professionals face the worst promotional unlikely that English-language deficiencies or opportunities of all groups."21 The report also cultural barriers could he responsible for the found that Asian American professional employ- finding of Asian underrepresentation among ees were considerably overrepresented infi- managers. nance. and operations, while they were largely There also exist a number of local studies and unrepresented in public safety and judicial ser- studies of individual occupations or industries vices72 In addition, the ratio of administratorsto that suggest that there is indeed a glass ceiling professionals was lower for Asians than for any 11 16 Korn/Ferry International, Kornihny's International Executive Profile: A Decade of Change in Corporate Leadership (1990), table 61, p. 23. 17 According tc, newly released figures from the U.S. Bureau of the Census, persons of Asian descent made up 2.9 percent of the U.S. population in 1990. Barbara Vobejda, "Asians, Hispanics Giving Nation More Diversity," Washington Post, June 12, 1991. 18 U.S. Commission on Civil Rights, The Economic Sto:us of Americans of Asian Descent: An Exploratory Investigation (Clearinghouse Publication 95, October 1988), pp. 75. The characteristics controlled for in the Civil Rights Commission analysis are: education, work experience, English ability, region, location, marital status, disability, and industry of work. Ibid., table 7.7, p. 75. 19 See chap. 7 for discussions related to the glass ceilings in journalism and in the legal profession. 20 Joyce Tang, "Asian American Engineers: Earnings, Occupational Status, and Promotions" (paper presented at the 86th annual meeting of the American Sociological Association, Cincinnati, OH, Aug. 23-27, 1991). 21 Henry Der and Colleen Lye, The Broken Ladder '89: Asian Americans in City Government (San Francisco: Chinese for Affirmative Action, 1989). p. 5. 22 Ibid, pp. 14-15. The occupational clustering of Asian Americans, although it does not bear directly on the issue of the glass ceiling (which applies, essentially, to promotions within occupations), may indicate the existence of other forms of employment discrimination against Asian Americans. For articles arguing that Asian Americans, especially immigrants, earn less than their white counterparts and are often forced into the "secondary labor market" (or the lower tier of the "primary labor market") or "peripheral" jobs, see Amado Cabezas and Gary Kawaguchi, "Empirical Evidence for Continuing Asian American Income Inequality: The Human Capital Model and Labor Market Segmentation," pp. 144-64 in Gary Y. Okihiro, Shirley flume, Arthur A Hansen, and John M. Liu, eds., Reflections on Shattered Windows: Promises and Prospects for Asian American Studies (Pullman, WA: Washington State University Press, 1988) and Eui Hang Shin and Kyung-Sup Chang, "Peripherization of Immigrant Professionals: Korean Physicians in the United States," International Migration Review, vol. 22, no. 4, pp. 609-26,

115 133 other group. Thus, 28 percent of the city's pro- sales manager for the San Francisco Bay area. fessionals but only 11 percent of the city's ad- He had been working in that position for 3 years ministrators were Asian American, whereas when a new mamement group came in. His blacks and Hispanics had roughly the same rep- new boss frequently used racial slurs against him. resentation among professionals as among ad- For instance, one time, when he was speaking to ministrators, and whites were more heavily his boss, his boss said, "Slow down, I cannot represented agong administrators than among write as fast as a Chinaman." Eventually he was professionals. demoted and transferred to a sales territory. A General Accounting Office (GAO) study When he asked his boss why he had been de- of the aerospace industry also provides data sug- moted, his boss told him that it was his "gut feel- gesting that Asian Americans have difficulties ing" that he [the sales professional] was not a moving from xrofessional to managerial jobs in good manager and that he did not exhibit leader- that industry.An analysis of the data reported ship qualities. The man subsequently filed a dis- in the GAO study shows that although a higher crimination suit against his employer at the percentage of aerospace professionals are Asian California Fair Employment and Housing Com- American than are either black or Hispanic, the mission and was issued a right to sue letter. The reverse was true for managers: blacks and His- suit was eventually settled out of court. He still panics both had higher percentage2s5among man- works for the same company, but he has not agers than did Asian Americans.Thus Asian been reinstated to his old position.27 Americans may be less successful in moving A woman of Asian Indian descent was from professional to managerial jobs in theaaero- hired as the personnel manager for a mkiwest- space industry than other minority groups. ern city. She was the first woman and the first The stories of those who have experienced minority ever to be hired in a managerial posi- the glass ceiling are compelling. Not only do tion by that city. As soon as she arrived at her these stories help to document the existence of a job, she began encountering resistance from her glass ceiling against Asian Americans, but they staff, and when she brought their behavior to help to show that the glass ceiling is at least par- the attention of her boss, he told her that her tially caused by sometimes subtle and sometimes staff was insubordinate because she was a overt discrimination against Asian Americans. woman of color. Almost a year after she started Three such stories are told below. the job, despite receiving an above-average per- An Asian American sales professional with formance appraisal, she was abruptly fired with- an MBA in marketing and r, alcs had worked with out severance pay. A subsequent investigation the same Fortune 500 company for well over a by the city's human relations commission found decade and received many sales achievement that "Substantial Evidence exists to show that awards when he was promoted to the regional the Complainant was discriminated against be-

23 Ibid., p. 20. 24 U.S. General Accounting Office, Equal Employmeru Opportunity: Women and Minority Aerospace Managers and Professionals, 1979-86 (Oct. 26, 1989). 25 1bid, p. 30. The GAO study does not provide information on white professionals and managers in the aerospace industry. 26 Without further information, it remains possible that the black and Hispanic managers in the aerospace industry did not move up from professional jobs but were placed in low-level administrative/management jobs that did not require professional aerospace expertise. 27 This summary is based on information provided by the Asian American sales professional, who requested anonymity in a telephone interview on Oct. 1, 1991.

134 and the cause of her sex,female, and her race, Asian; leadershiP and interpersonal skills, agreed. He also her national origin, India; andher color, non- EEOC administrotive law judge white, in the manner in whichshe was termi- held that a white man wo W95highly technically nated/suspended and in theconditions under skilled would have been promotedwith the con- job." Despite the fidence that he could develop thegeneral out- which she performed her job. human relations commissionfinding, the city did look necessary to perform the management retroactive nothing to rectify the situation. Infact, city em- M. Tom was awarded backm, a ployees repeatedly told thewoman's profes- promotion, and attorney'sfees.' in a man- sional colleagues and otherswho called that she Because the choice of whom to -,ut suspension for not performing up to agement position is usually ahighly subjective was under vulnerable to par. As a result,the woman could not find an- decision, Asian Americans are stereotypical views other comparable job,suffered considerable managers who subscribe to having the qualities mental ary_ruish, and did nothave the financial of Asian Americans as not resources necessary to pursueher casein that make a good manager. Inaddition, the subjective nature of promotiondecisions usually court.28 that the reason In early 1988, Angelo Tom, afifth-genera- makes it very difficult to prove decision was a dis- tion Chinese American whohad worked at the for an adverse employment Department of Housing andUrban criminatory one. Although limited resources U.S. Civil Rights from Development's (HUD) SanFrancisco Regional prevented the Commission on nationally recog- undertaking in this report a thoroughinvestiga- office for 9 years and become Asian Ameri- nized as the leading communityplanning and de- tion of the glass ceiling as it affects velopment analyst in the Bay area wasturned cans, theCommission is convinced that the position of supervi- problem is a serious oneand that it pervades down for promotion to the agen- sor of his unit.The woman chosen to fill thejob both private corporations and government Tom. At the time cies. The issue meritsconsiderable further re- had less experience than Mr. efforts on the of Mr. Tom's rejectionthere were only three search and increased enforcement Asian Americans in middle-managementposi- part of Federal, State,and local antidiscrimina- tions at HUD's San Franciscooffice and none in tion agencies. ane several qualified Asian The glass ceiling has begun to capturethe na- upper management, barrier to equal Americans had repeatedly beenrejected for tional spotlight as an important for other mi- management positions.After Mr. Tom filed a opportunity for Asian Americans, Federal Govern- complaint, a HUD investigationfound that he norities, and for women. The several steps to deal had been rejected for theposition because he ment has recently taken The U.S. Depart- did not have leadership orinterpersonal skills with the glass ceiling problem. the Equal Employment Op- and was too technical forthe job. Mr. Tom then ment of Labor and recently made requested and received a formalhearing in front portunity Commission have each of the U.S. Equal EmploymentOportunity the glass ceiling issue one of their toppriorities. Commission (EEOC). At that hearing,witnesses In March 1990, EEOC ChairmanEvan Kemp, would concen- refuted the HUD contention that hehad poor Jr., announced that the EEOC

of her experience is based on materials sheprovided to Commission staff, including 28 The woman requested anonymity. This account a copy of the city humanrelations commission report. 'Glass Ceiling' Case," Asian Week, Nov. 3, 1989;Angelo Tom, memorandum to Phillip 29 Johnny Ng, "Asian Wins EEOC decision in Discrimination Complaint, May 27, Savage, Director, Public Employment Division,ECCP Office of HUD Program Compliance, re 1988; and materials supplied by Dale Minami,plaintiff's attorney.

135 147 trate efforts on bringing and trying to win glass Congress has also begun to address glass ceiling cases, although he ceil- acknowledged that ing issues. In February 1990Senator Robert such cases were oftenvery difficult to prove.30 Dole (R-KS) and U.S. In August 1990 then-Secretary Representative Susan of Labor Eliza- Molinari (R-NY) introduced legislationentitled beth Dole announced that the glass ceiling was "The Women's Equal OpportunityAct of 1991" her top priority,31 and shortlythereafter the De- that would establisha Federal Glass Ceiling partment of Labor's Office of Federal Contract Commission to study the problemand recom- Compliance Programs (OFCCP) undertook a mend remedies.35 A similar provisionwas in- glass ceiling initiative under which "federal com- cluded in the revised Civil Rightsand Women's pliance officers will focus for the first time on Equity in Employment Act of 1991,36passed by examining seecession plans in corporationsthe House of Representatives inJune 1991. hew ipdiviouals are selected for keyhigh-level Lastly. in May 1991, the Senate jobs."'2 Governmental As a first step, the OFCCP begana thor- Affairs Committee helda hearing on the glass ough study of the promotionsystems used at ceiling in Federal employment.37 nine Fortune 500 companies.The purpose of the study was to providebackground informa- Language Rights in the tion necessary to guide themin restructuring their compliance reviewsystem to target en- Workplace forcement efforts onupper echdon jobs.33 In The wave of Asian immigrationbeginning in 1991 the Department of Laborissued a report 1965 and accelerating throughmost of the 1970s based on that study, finding that: and early 1980s has broughtto our shores a large Women and minorities donot reach the number of Asian American workerswith varying top of the corporate ladder, andminorities degrees of English-languageproficiency. Some generaly plateau at lower levels thanwomen. Asian American immigrants havevery little com- Corporations do not have in placecrucial mand of the English language;others speak En- procedures for assessing and ensuringprogress glish well but aremore at ease speaking in their towards eliminating barriersto the career ad- native languages; and still others speakEnglish vancement of women and minorities. Inparticu- fluently but retain recognizableaccents. M the lar,senior-levelmanagers werenotheld Asian American immigrantpopulation has in- accountable for equal employmentopportunity creased, language rights in theworkplace have responsibilities. thus becomea pressing civil rights issue for Corporations used word-of-mouthand em- many Asian Americans. ployee referral to fill vacanciesand did not make Language rights in the workplaceare gov- training and othercareer advancement opportu- erned by two Federalstatutes that ban employ- nities as available towomcn and minorities.34 ment discrimination basedon national origin: Title VII of the 1964 Civil Rights Act38and sec-

30 Fair Employment Report, vol. 28,no. 7, Mar. 28, 1990, p. 49. 31 Fair Employment Repon, vol. 28,no. 18, Aug. 29, 1990, p. 137. 32 Bureau of National Affairs, Daily LaborReport, no. 52 (1990), p. A-1. 33 Bureau of National Affairs, Daily LaborRepon, no. 177, Sep. 12, 1990,p. A-3. 34 U.S. Department of Labor, A Reponon the Glass Ceiling Initiative, 1991,p. 5. 35 Bureau of National Affairs, Daily LaborReport, no. 36, Feb. 22, 1991,p. A-6. 36 H.R. 1, 102nd Cong., 1st Sess. (1991). 37 Bureau of National Affairs, Daily LaborRepon, no. 96, May 17, 1991,pp. A-9A-11. 38 42 U.S.C. §2000.

136 duties he per- tion 1981 of the Civil Rights Actof 1866." Be- cian. Neither his pay nor the between national origin and formed were affected by thereclassification of cause of the link dental laboratory ex- language, the ban on nationalorigin discrimina- his position. When the fill the position in these two statutes hasbeen interpreted panded, a white man was hired to ability to discriminate tion of dental laboratory supervisor.Mr. Carino to restrict employers' he was no longer based on workers' English-languageproficiency, had never been informed that speak another language. supervisor nor was he given anopportunity to accent, or desire to filled. At This section discusses therights of non-native apply for the position when it was and gives ex- about this time, Mr. Carino wasreduced to per- English speakers in the workplace work because the amples of cases when theserights have been in- forming general laboratory In particular, the University of Oklahoma no longerhad a faculty fringed for Asian Americans. products, his section addresses three employmentpractices member who required maxillofacial Asian Americans ad- specia 1 ty.41 that frequently affect charges made versely: discrimination based on accent,the use Responding to disci imination non-native speakers of by Mr. Carino in a lawsuit,his employers argued of employment tests for him from his English, and English-onlypolicies in the work- that they were justified in demoting supervisorial position becausehit, accent ham- place. pered his work as asupervisor. The district court hearing the caseconcluded, however, that Discrimination Based on Accent Mr. Carino's accent did notaffect his ability to The Federal courts have heldthat not giving a perform his job: person a job or apromotion because of his or her accent violates Title VIIof the Civil Rights from the evidence and the of national origin dis- It is the Court's opinion Act of 1964's prohibition observation of the plaintiff's speech attrial that his ac- crimination except in cases wherethe accent sig- cent did not impair his ability tocommunicate or pre- nificantly impairs theindividual'sability to vent him from performing anytasks rhquired of the perform the job in question.The issue of supervisor of the old dental laboratory. whether discrimination based on accentis national origin discrimination wasdecided in Car- Furthermore, the court held thatdenial of of a person's Mo v.Universityof Oklahoma Board ofemployment opportunities because Regents,4° a case in which a U.S. citizen of Fili- accent is national origindiscrimination: pino origin charged that hehad been demoted from his supervisory positionin a university den- The FiftVircuit court of Appealsreasoned in Garcia tal laboratory because of his accent. v. Gloorthat a trait related to nationalorigin must The plaintiff, Mr. Carino, hadbeen hired in bt of an immutable nature inorder to come within .An accent would appear to the position of supervisorof dental laboratory Title VII protections. .. Oklahoma, but approach that sort of immutablecharacteristic. Al- technology at the University of color, an accent is reclassified without his though not as permanent as race or his position was later not easily changed for a personwho was born and knowledge to senior dental laboratorytechni- ..111I 39 42 U.S.C. §1981. 1984). 40 26 EPD 1131,974 (W.D. Okla. 1981), aff'd750 F.2d. 815, 35 EPD 1134,850 (10th Cir. 41 Id. 42 Id. at 21,390. 43 Id. at 21,391. 618 F.2d 264 (5th Cir. 1980), cert. denied, [24EPD 1131,478), 449 U.S. 1113 (1981). 44 Refers to Garcia v. Gloor [23 EPD 1130,9641

137 149 lived in a foreigncountry for a good length of time. employment decision. In Fragantev.City & This Court cannot give legalcognizance to adverse County of Honolulu148 the empIoymznt decisions made simply Ninth Circuit held because a person that the Honolulu Division ofMotor Vehicles speaks with a foreign accent. Thecourt would recog- could legitimately denya Fi ipino American with nize that in some instancesa foreign accent may actually prevent a person from performing a heavy accent a job as a clerk,a position that tasks required required the incumbent for employmentor promotion,...; but otherwise an to communicate with employer should not make adverseemployment deci- the public over the telephoneand at an informa- sions simply becausea person possesses an acwnt re- tion counter. The court held: sulting from birth and life ina foreign country. An adverse employment decisionmay be predicated Agreeing that accent alonewas not a justifica- upon an individual's accent whenbut only whenit tion for an adverse employmentdecision, the interferes mated, Ily wi'.h job performance.There is Tent Circuit upheld the districtcourt's deci- nothing improper aboutan employer making an hon- sion. est assessment of the oral communications skillsof a Based partly on thc Carinodecision, the candidate for a job when welt skillsare reasonably related to job performance. Equal Employment OpportunityCommission issued a policy statement holding that an adverse The court cautioned, however: employment decision basedon a person's accent is unlawful national origindiscrimination: Accent and national originare obviously inextricably intertwined in manycases. It would therefore be an Title VII case law establishes that denial of an em- easy refuge in this context for an employer unlawfully ployment opportlin:ty because of manner of speaking discriminating againstsomeone based on national ori- or accent is unlawful discrimination on the basis of gin to state falsely that itwas not the person's national national origin provided thatthe employer cannot origin that caused the employment show a legitimate nondiscriminatory or promotion reason for the al- problem, but the candidate's inabilityto measure up leged discrimination... .A foreign accent that inter- to the communications skills demanded by feres with an employee's ability the job. to perform a task may We encourage a very5parching lookby the district also constitute a legitimatenondiscriminatory reason courts at such a claim. for an adverse employment decision. Yet, despite the illegality of A more recent case provides discrimination an example of based on accent, Asian Americans when a person's foreign continue to accent can be consid- be denied employment opportunities ered an acceptable justification simply be- for an adverse cause they speak English with a foreign accent.51

45 Carino at 21,391. 46 The circuit court held that "[a] foreignaccent that does not interfere with a Title VII claimant's ability to perform duties ofthe position he haF been denied is nota legitimate justification for adverse employment decisions." Carino v. University of OklahomaBd. of Regents, 750 F.2d 815, 819 (1984). 47 U.S. Equal Employment OpportunityCommission. Office of Legal Counsel, "Policy Statement: Discrimination Basedon Manner of Speaking or Accent," August 1986,pp. 51-53. 48 888 F.2d 591 (9th Cir. 1989),cen denied, 110 S. Ct. 1811 (1990). 49 Id. at 596-97. 50 Id. at 596.

51 Even when Asian Americansare not actually denied opportunities because of their accents, they may tind themselvesbeing forced to respond to complaints about theiraccents. For instance, in the mid-1980s, responding to complaints by students thatmany of their foreign-born teachers were difficult to understand, the Florida StateLegislature set up a hotline to which Universityof Mr-

138 150 The following example may be typical of a situa- Aptitude Test Battery (GATB) in that State and tion that occurs regularly across the country: regarding the use of honesty tests in hiring Asian A Japanese American woman who speaks En- American job applicants.5(Elsewhere, this re- glish fluently but with a very slight accent was port gives evidence suggesting that the use of hired as a temporary receptionist in the human tests for teacher certification and police officer resources department of a southern California selection may also have 9adverse and unfair ef- city. Her job was to respond to inquiries about fect on Asian Americans.) This subsection first posted jobs and to refer callers to the appropri- discusses the general legal framework surround- ate offices. She worked in the job as a temporary ing the use of employment tests for non-native t.itirLiyee for 3 months and then was hired as a speakers of English and then considers the use permanent from a field of three applicants. Six of the GATB and honesty tests in particular. months later, although she had received no com- Title VII prohibits employers from using tests plaints about her accent, she was discharged in the process of employee selection if they have from her job by a superior who told her to take an adverse impact on the basis of race, color, re- English lessons and that she did not fit. She religion, sex, or national origin and they are not cently filed a complaint with thc Equal Employ- justified by business necessity.56 If a test has an ment OpportunityCommission.52 adverseimpact,57 thenthe employer must demonstrate that the test is a reasonable mea- Employment 'rests sure of success on the job: the test must be valid The potential for employer misuse of employ- (i.e., its scores are appropriate and meaningful ment tests53in selecting employees is an emerg- and, usually, equally meaningful for various ingcivilrightsissuefor Asian Americans, races, sexes, and ethnic groups) and job related. particularly when the tests are given to those Thus, the use of any test could be judged dis- who are not native speakers of English. A partic- criminatory if it requires knowledge or under- ipant in the Commission's Houston Roundtable standing of English 1)...yond the job-related skill Conference raised specific concerns regarding that the test is intended to measure and it has an the procedures for administering the General adverse impact. Tests of English-language profi-

ida students could report teachers they felt did not speak Friglish adequately. One of the first teachers reported was a first-year assistant professor of Indian origin, who wrs a native English speaker but who had a slight Indian accent. The professor was requested to meet with high university officials about the complaint, but in the end IR) adverse employment action was taken. 52 Kathryn Imahara, Director, Language Rights Project, Asian Pacific American Legal Center of Southern California, telephone interview, Jan. 28, 1991. 53 The discussion in this section is in large part extracted from an Apr. 3, 1990, internal Commission memorandum from Eileen E. Rudert, director of the Commission's project, "The Validity of Testing in Education and Employment," to lames S. Cunningham, Director, Office of Programs, Policy, and Research. The information contained in the April 3 memorandum was updated based on a second memorandum dated Mar. 1, 1991. 54 Gordon Quan, Statement at the United States Commission on Civil Rights Roundtable Conference on Asian Civil Rights Issues for the 1990s, Houston, TX, May 27, 1989 (hereafter cited as Quan Statement). 55 See chap. 4 for a discussion of teacher certification tests and chap. 3 for a discussion of tests and police officer selection. 56 Precedents of what tests or test uses may be construed as discriminatory have been established in law cases, starting with the Su- preme Court's landmark Griggs v. Duke Power Company (401 U.S. 424 (1971)) decision in 1971. Furt hermore, the EEOC has published specific guidelines on emplojment selection procedures, including tests, entitled "Uniform Guidelines on Employment Selection Procedures." (29 C.F.R. 1607.) 57 The Uniform Guidelines define an adverse impacl. as a "selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate." 29 C.F.R. 1607.4 D.

139 1 5 1 ciency may be used, however, when English is a Foreign-born applicants, whose command of skill necessary for success in the job. the English (or perhaps any written) language is Therefore, when English proficiency is critical marginal, cannot be reasonably assessed with the to performing well on a test used in job selec- GATB....The GATB will portray these job tion, the test needs to be carefully scrutinized seekers as of very low cognitive abilities because for job relatedness. Two specific examples of language difficulties, lack of formal education, where test practice may not conform with Title and lack of experience with paper-and-pencil VII requirements are given below. tests. Yet many of them. .. .are verybright and The GATB ExamThe General Aptitude can demonstrate job-relevant skills in hands-on Test Battery (GATB) is an employment test work simulations."58 sponsored by the Department of Labor that is The study concludes that "It is not reasonable used widely across the country to match job to use the GATB to estimate the abilities of for- seekers to employers' requests for job appli- eign-born applicants who have a marginal com- cants. The GATB consists of 12 separately timed mand of the English language."6° Nevertheless, subtests58 that are combined to form various ap- the GATB continues to be used for referrals in titude scores. The GATB scores on four apti- manyStates61 and is regularly administered to tudes (General Aptitude, Verbal and Numerical persons with limited English proficiency. Aptitudes, and Clerical Perception) are affected A participant at the Commission's Houston by performance on the three subtests that use Roundtable Conference was concerned about familiarity with or knowledge of English and the Texas Employment Commission's policy of thus are likely to be lower for persons with lim- not allowinA the GATB exam to be taken more ited English proficiency. than once.Many recent arrivals want to take A recent study of the GATB by the National the GATB test as soon as possible so that they Academy of Sciences observed that: can be referred to jobs for which they are quali-

58 See John A. Hartigan and Alexandra K. Wigdor, Fairness in Employment Testing (Washington, DC: National Academy Press, 1989, ) pp. 75-82, for a more detailed description of the GATB test. 59 Ibid., pp. 219-20. 60 Ibid., pp. 232. A Spanish version of the test is available, especially for testing skills for jobs that require Spanish, rather than En- glish. 61 Since the Commission received the complaint about the use of the GATI3 exam in the Houston area, the Department of Labor has issued preposed regulations that would suspend the use of the GATB for 2 years so that additional validation of the GATB could be undertaken to respond to thc major concerns raised in the National Academy of Sciences rcport. (These issues do not include the issue of the validity of the GN1B for persons with limited English proficiency.) The Federal Register notice of the proposed regulations suspending the use of the GAM provided for a period of comment. As of November 1991, thc Departmcnt of Labor had not yet madc its final decision about whether or not to suspend the use of the OATS. In the interim, some States are cmtinuing to use the GATB as before, others are modifying their use of the OATH, and still others are phasing out its use. John Hawk, U.S. Em- ployment Service, U.S. Dcpartmcnt of Labor, telephone interview, July 16, 1991. 62 According to the testing supervisor for the Texas Employment Commission (TEC), TEC policy is to allow persons to take the GATB test again if they have hal intervening education or experience ttpt would change their aptitudes. Decisions about whether to allow the test to be retaken are made ou a case-by-case basis. lie did not think that informal exposure to the English language with time in the country would generally be sufficient to allow a person to retake the test, however. (Charles Larpenter, Testing Su- pervisor, Texas Employment Commission, telephone interview, Jan. 23, 1990.) One reason proffered for polices against allowing thc GATB to be retaken is that GATB scores are significantly improved by practice. The General, Verbal and Numerical Aptitude scores are among those least affected by practice, however, although the clerical perception score is onc of those most affected by practice. Furthermore, practice improves scores only about half as much when an

140

1 El fied. Yet, knowing that if they take the GATB job applicants and refer to the firm only those soon after arriving in the country their scores on applicants who "passed" the GATB. The firm the portions of the exam requiring greater En- was not told the scores of those referred to it for glish proficiency will be low, many recent arrivals employment. are also afraid that if they take the GATB exam Shortly after the testing and referral process now their low scores on those portions of the began, the firm noticed that several of its work- test will prevent them from obtaining better jobs ers of Vietnamese and Cambodian origin, who later on when their English has improved.63 had been hired as temporary employees pending The following example of how the use of the the test results and who were performing very GATB exam in referring job applicants to a well on the job, were not subsequently recom- Houston-areaemployeradverselyaffected mended by TEC, presumably because their lim- Asian American applicants in the Houston area ited English proficiency prevented them from may be typical of a much more pervasive situa- doing well on the GATB. The firm did not hire tion across the country." these employees as permanent employees in the A subsidiary of a Japanese firm opened a mechanical assembly jobs even though they ap- plant in Houston in 1988. Because the jobs it peared to be performing well, because the firm was filling required an aptitude for mechanical felt that this would not be "fair."65 The firm did, assemblyskills not required by other employ- however, go back to TEC, which agreed to lower ers in the Houston areathe firm turned to the the weights of the GATB test components re- Texas Employment Commission (TEC) to help quiring English in calculating the final score of it screen its job applicants. The firm explained its applicants for jobs at the firm. needs to TEC, which recommended that job ap- Honesty TestsIn 1988 Congress passed the plicants be given the GATB exam. TEC under- Employee Polygraph Protection Act,66 which took to administer the exam to all of the firm's prohibits most private employers from using any

alternate form of the GATB is used at retake. Unfortunately, until 1983, Employment Services offices only had one version of the GATB to administer. Since 1983 two additional forms have been available. The National Academy of Sciences' recent study of the GATB has recommended the development of additional alternate forms, and indeed two are underway. (Hartigan and Wigdor, Fairness in Employment Testing.) The Department of Labor currently issues no policy on retesting or interpreting the GATB score of non-native English speakers. Instructions issued before 1980 did si -.cif), that retesting was appropriate when there was some reason to believe that a job seeker's skills had changed (e.g., had received education, experience, or training). These instructions were abolished in the early 1980s, but many State and local offices continue to follow them. One Department of Labor official stated that if the Department were to re- sunrt tssuing policies to State and local test administrators, it would permit much more retesting than in the past. Instead of issuing instructions, however, the Department currently counsels test administrators to follow sound testing practices. For non-native En- glish speakers, such practices include not taking test scores at face value and providing other testing accommodations and individual counseling to those for whom test scores may invalid. The Department's research program has demonstrated that use of a translator for giving instructions or giving oral versions of the test are not promising alternatives for Southeast Asians, Without Federal guidance, State are free to set their own policies or allow local Employment Setvice Offices to make them. 63 David Mathias, YMCA International Septices, telephone interview, Jan. 23, 1990. 64 The following is based on information obtained in a telephone interview with Sharon Gerchow, Personnel Office, MI-II Forklift America, Jan. 18, 1990. 65 One of the affected employees, a Vietnamese man, was reassigned as a permanent employee with the job of "painter," a job classification that the firm did not require to take the GATB exam. This man has not tried to retake the test, because he is happywith his current job assignment, according to a personnel officer in the firm. 66 29 U.S.C. §§ 20001, et seq. Also see 29 C.F.R., Part 801.

141 1 5 3 lie detector tests for preemployment screening screen job applicants, most of the Asian Ameri- or during the course of employment. Since then, cans he referred to the employer were hired; but many employers have turrNd to using paper- after the employer switched to an honesty test, and-pencilhonestytests. Paper-and-pencil for which interpreters/translators were not al- honesty tests have not been as carefully scruti- lowed, no more Asian Americans were hired." nized, validated, and researched as employment tests measuring skills and abilities. Indeed, a re- English-Only Rules In the cent report by the U.S. Congress' Office ofWorkplace Technology Assessment cautioned that "[t]he Employers often seek to impose rules requir- research on integrity tests has not yet produced ing their employees to speak only English while data that clearly supports or dismisses the asser- they are on the job. Sometimes these English- tion that these tests can predict dishonest behav- only rules are blanket rules banning the use of ior."68 Although research suggests that honesty any language other than English at any time tests generally do not have an adverse impact, while the employee is at work. Other times the that research looks primarily at blacks. Asian rules are more specific, banning the use of non- Americans are almost never included in such English languages when the employee is per- studies, although Hispans sometimes are. Fur- forming certain duties. English-only rules are a thermore, paper-and-pencil tests of honesty re- common source of frustration and resentment quire the test taker to have considerable English for many Asian Americans and others whose pri- proficiency as well as a grasp of American social mary language is not English. They feel that the customs and values. If the level of English re- rules single them out for adverse treatment quired by the job is less than that necessary to based on their national origin, that they are take the test, a paper-and-pencil honesty test often adopted for the purpose of discrimination, may adversely affect non-native English speak- and that they repress their ability to express ers. themselves freely. Concerns about the adverse effect of honesty In some instances English-only policies may tests on Asian American job applicants were be illegal discrimination based on national ori- raised at the Commission's Houston Roundtable gin, but in other instances they may be lawful. Conference.69 According toa job counselor who English-only policies are unlawful when the places Asian refugees in jobs in the Houston rules gre adopted for the purpose of discrimina- area, when one area employer used polygraph tion based on national origin. Thus, the Equal exams (with interpreters when necessary) to Employment Opportunity Commission explicitly

67 However, two StatesMassachusetts and Rhode Islandalso ban written examinations that purport to detect deception, verify truthfulness or measure honesty. 68 The Office of Technology Assessment report was presented at a hearing before the Subcommittee on Employment Opportunities of the Committee on Education and I abor, U.S. House of Representatives, on Sept. 26, 1990. 69 Quan Statement. In following up on his concerns, staff discovered that the allegation involved two honesty teststhe Phase H Pro- file Integrity Status Inventoty (developed by Lousig-Nont & Associates) and the Stanton (the complaint did not specify whether the reference was to the Stanton Survey or the Stanton Survey Phase II)in particular. (David Mathias, YMCA International Services, telephone intervim Dec. 21, 1989.) Although neither of these tests has been shown to have an adverse impact, neither has been adequately validated for Asian Americans or for members of language minorities. Furthermore, independent reviewers concluded that the Lousig-Nont test is inadequate for making hiring decisions at all without further validation and gave the Stanton mixed reviews, 70 David Mathias, YMCA InternationalServices, telephone interview, Dec. 21, 1989.

142 states that these policies areinvalid when they tory working environment. Therefore theCommission Title VII and are applieddifferentially to members of differ- will presume that such71 rule violates ent national origin groups.I will closely scrutinize it. the pur- Even when they are not adopted for However, EEOC regulations state that more pose of discrimination,English-only policies may specific English-only rules may be lawful ifthey theo violate Title VII under an adverse impact can be justified bybusinessnecessity.74 The if they are not justified bybusiness necessity. EEOC elaborates on what is necessaryfor an rules banning The EEOC has held that blanket English-only rule to be justified by business ne- the use of non-English languages atall times are cessity in its Compliance Manual: almost always illegal, because theywill never be justified by business necessity. Typically, narrowly drawn rules justifiedby business necessity are applicable only to certain employeesand A rule requiring employees to speakonly English at only apply to those employees while they areactually all times in the work place is aburdensome term and performing a specific job duty or underspecific cir- language of an condition of employment. The primary cumstances. To prove an overridingbusiness purpose individual is often an essential nationalorigin charac- sufficient to override the adverse effectsof the rule, teristic. Prohibiting employees at alltimes, in the the respondent must establish thatthe rule is neces- primary dnguage or work place, from speaking their sary to safe and efficientjob performance or the safe the language they speak mostcomfortably, disadvan- and efficient operation of the business. Inappropriate tages an individual's employmentopportunities on the circumstances, either safety or efficiencyconsipa- atmo- basis of national origin. It may also create an lions alone may justify a speak-English-onlyrule. sphere of inferiority, isolation andintimidation based on national originwhich could result in a diserimina-

§623.3. Differential application of employment rulesis generally held to be proof of intentional 71 EEOC Compliance Manual, vol.U, discrimination. English-only policy must have an adverse impactbased on national origin: "In recogni- 72 The EEOC regards it as self-evident that an characteristic, the Commission will tion of the fact that the primary language. of anindividual is often an essential national origin individual's employment oppor- 'presume that rules requiring employees to speakonly English in the work place adversely affect an Compliance Manual, vol. II, tunities on the basis of national origin where thatemployee's primary language is not English." EEOC §623.6(a). 73 29 C.F.R. Ch. XIV §1606.7(a). 74 29 C.F.R. Ch. XIV §1606.7(b). 75 EEOC Compliance Manual, vol. II, §623.6(e)(1)(ii). following: "Reasonable cause An example of an English-only rule that theEEOC held to be justified by business necessity is the English to be spoken by re- does not exist to believe that petroleum companyviolated Title VII when it adopted rule requiring only by all employ- finery employees who work in laboratory and processingareaswhere potential of fires and explosions existsand of assuring effective communication among ees during emergencies, where ruleis narrowly drawn to accomplish specific purpose employees during specified times and in specificareas." (EEOC Decision 83-7, 31 FEP Cases 1861.) (Complaining Parties), Polish Ameri- An example of an English-only rule that may notbe justified by business necessity is: "CPs against them on the basis of national ori- cans, allege that the speak-English-onlyrule of R (Respondent), a nursery, discriminates inside the store itself gin, since their primary language is Polish. R'sspeak-English-only policy applies only to employees working and other plants who serve and assist customers. The rule is inapplicable tooutside employees who care for the shrubs, flowers, working inside the store, it does not grown on the premises. Although therules does apply to casual discussions among employees prohibition and is apply to conversation in the employee lounge during workbreaks or lunch. Although R's policy is not an absolute by business applied only at certain lima, depending on R's justification,it still may not be narrowly drawn enough to be justified necessity." (iiEOC Compliance Manual, vol. 11, §623.6(a)(2).)

143 155 BEST COPY MILAN The courts have differed in theirtreatment of In a decision thatwas later rendered moot by English-only rules. In acase that predated the the Supreme Court,78 the Ninth Circuitagreed EEOC policy on English-only rules, theFifth with the EEOC's approachto English-only Circuit held that an employer's policy requiring rules: all employees to speak English whileon duty at all times did not violate Title VII's prohibitionof The EEOC guidelines, by requiringthat a business national origin discrimination,76 becausethe em- necessity be shown beforea limited English-only rule ployees were all bilingual and therefore could may be enforced, properly balance the individual's in- choose to obey the rule. Thecourt cautioned, terest in speaking his primary language andany possi- however, that its decision applied onlyto En- ble need of the employer toensure that in particular glish-only policies affecting bilingual employees: circumstances only English shall be spoken. The business necessity requirement prevents an employer Our opinion does not impressa judicial imprimatur from imposing a rule that hasa disparate impact on on all employment rules that require an employee to groups protected by the national origin provision of use or forbid him from using a language spoken by Title VII unless there isa sufficient justification under the Civil Rights Act of 1964 for doing him at home or by his forebears. We hold onlythat an so. Accordingly employer's rule forbiddinga bilingual employee to we adopt the EEOC's business necessity testas the speak anything but English in publicareas while on proper standard for d%ermining the validity of limited English-only rules. the job is not discrimination basedon national origin as applied to a person who is fully capable of spealdng Because the Gutierrez decision English and chooses not to sloso in deliberate disre- was rendered gard of his employer's rule.7 moot, it cannot be used as a precedent in deciding future cases dealing with English-onlyrules Despite Otis caveat, however, the FifthCircuit in the workplace. Furthermore,because the decis; in is at odds with EEOC policy, which EEOC regulationswere adopted after the Gar- doer not distinguish between English-onlyrules cia decision, the Gutierrezcourt itself did not apt. tied to bilingual persons and those appliedto view the EEOC guidelinesasdecisive.84 Thus,at persons with limited English proficiency.

76 The rule did not apply to breaks or other employee lime time. Garcia v. Gloor, 618 Fed. 2d 264, 270(1981). 77 ki at 272. 78 Municipal Court v. Gutierrez, 873 F.2d 1342 (9th Cir. 1989). The Ninth Circuit decision may have beenrendered moot because the case was settled after the decision was rendered or because the Gutierrez no longer worked for thc court. Linda M.Mealey, "En- glish-Onty Rules and 'Innocent' Employers: Clarifying National Origin Discrimination and Disparate ImpactTheory Under Title VII," Minnesota Law Review, vol. 74,no. 2 (December 1989), p. 418, n. 1831 79 838 F. 2d 1031, 1040 (9th Cir., 1988), dismissed on remand 873 F.2d 1342,1343. In an accompanying footnote, thecourt explained that if the English-only policy was shown to be the product of discriminatory intent, the stricter bona fideoccupational qualifications standard applies 'nstead of the business necessity standard: "We note that the part of the EEOC guidelinesthat refers to bdsiness necessity is, under general principles of equal employment opportunity law, applicable only tocases in which the employer has acted without invidious intent. Where a rule is shown to have been adopted for the pwpase of discriminatingagainst a protected group, the employer's conduct is permissible only if the discriminatoryrule constitutes a bona fide occupational qualification (BFOQ) for the job. Thus even a limited English-only rule must meet the strict BFOQ test if it is theproduct of discriminatory intent." Id. at 1040 it. 9. 80 The Gutierrez decision states: "We need not decide in this case, whether, in the absence of decisionallaw, EEOC guidelines and decisions can constitute clearly established law. Here, jud:cial precedent existed and itappears to have been inconsistent, at least in part, with the guidelines. If contraty judici precedent had been issued subsequent to the guidelines,there is no question that we would hold that the guidelines do not 'clearly Aish' the law. Although the answeris not as ccrtain when the guidelines are issued

144

1 5 this time, the law regarding English-onlyrules in the workplace is not clearly established. The Certification of A case currently before the Ninth Circuitmay Foreign-Educated help to resolve some of the law'sambiguities Professionals with respect to English-only rules,however. In Many Asian Americans and others whore- this case, a Filipinonurse is charging that a Cali- ceived their professional trainingoutside of the fornia hospital discriminated againsther on thc United States have difficulty obtaining jobscom- basis of national origin by institutingan English- mensurate with their education and experience only rule that applied to all staff conversations in this country.85 Sometimes theyare unable to "at any time oranyplace,"81 andcetaliated provide documentation of their professional against her for filinga discrimination comp!aint training and experience in their countriesof ori- by demoting her and transferringher from the gin and arc forced to retrain in thiscountry or to hospital's maternity unit to the hospital'semer- switch careers. Other times they findthat, al- gency room even though her skills and training though they can provide diplomas andtran- are in maternal care." The EEOC has inter- scripts as proof of their professionaleducation vened in the case on behalf of the nurse.83The abroad, State professional certification boards case went to trial on April 18, 1991, and closing often have different requirements for foreign- arguments were heard on May 3, 1991.84 The educated professionals thar for U.S.-educated case has received considerable attention in professionals. Although differentialtreatment of Asian American communities throughoutthe professionals educated in foreign countrieshas United States because itinvolves an Asian not been found to be per se illegal discrimination American nurse who sought to speakTagalog under Title VII, it can erect barriersto obtaining during work hours and because suchEnglish- professional jobs that are asource of enormous only rules are common in hospitals employing frustration for Asian and other professionalim- large numbers of Filipinonurses across the migrants to this country.86 Furthermore,many country.

after a judicial decision, where that decision has been rendered by a federal circuit court and the subsequentlyissued guidelines remain largely untested, we think it appropriate to reach the same conclusion. Thus, we hold that in thecase bcfore us the EEOC guidelines did not serve to clearly establish the law regarding the validity of English-only rules." Gutierrezat 447. 81 Gigi Santos, "Nurse in 'English-Only' Case Gets Support,"Philippine News,vol. 20, no. 21 (Jan. 31- Feb.6, 1990). 82 Ibid. 83 Jean Guccionc, "EEOC Will Intervene in Lawsuit Challenging English-Only Policy,"Los Angeles Dai4, Journal,Apr. 3, 1990, and Kathryn lmahara, attorney for plaintiff, telephoneinterview, Apr. 12, 1990. 84 Kathryn Imahara, attorney for plaintiff, telephone interview, Jan. 28, 1991, and Kathryn Imahara, letter to NadjaZalokar, Office of Programs, Policy, and Research, U.S. Commissionon Civil Rights, Stpt. 4, 1991. 85 See California Advisory Committee to the U.S.Commission on Civil Rights, ADream Unfulfilled: Korean and Pilipino Health Pro- fessionals(1975), for an earlier report touchhigon this topic. 86 Although discrimination based on country of education is not illegal under Title VII, itmay be illegal under some local ordinances. For instance, the city of Chicago recently banned discrimination based on "origin of educationor professional training, from an ac- credited institution." Municipal Code of Chicago,§21-10.

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1 7 Asian immigrant professionals suspectthat the lic hospitals, in smaller not-for-profithospitals, and in differential treatment they receive asforeign-ed- regions of the country that have experiencedemigra- industry and ucated professionals may in factbe a pretext for tion of population because of declining arig Medicaid discrimination on the basis of nationalorigin. high unemployment. Poor populations recipients also are often reliant on FMGs. A case in point is the situationof graduates of foreign medical schools (FMGs), whomake up Furthermore, foreign-born FMGs alsoplay a roughly one-fifth of all physicianspracticing in critical role in providing for thehealth care the United States. Approximately30 percent of needs of Asian immigrant communities,since re- FMCTs are U.S citizens, and 70 percent arefor- cent immigrants areoften prevented by lan- eign nationals.87 A large proportionof foreign guage, cultural, orinformational barriers from national FMGs come trom Asiancountries, es- seeking treatment from American-bornphysi- FMGs pecially India and the Philippines. Many cians.8' came to this countryin the mid-1960s when they To practice medicine in theUnited States, were given Neferentialvisa status because of a FMGs, like USMCTs, need to belicensed by a shortage of physicians in theUnited States. By State medical licensing board. ManyFMGs have shortage had the 1970s, hcwever, the physician not completed residenciesbefore comirg to the apparently become a physiciansurplus, generat- United States and thus also need toobtain posi- ing some resentment of FMGsby graduates of tions as residents in U.S. hospitals.Some FMGs U.S. medical schools (USMGs).Nevertheless, charge that they are the victims ofunfair dis- there remain many places in whichAmerica's crimination by State licensing boards,hospitals basic health care needs arc not yetbeing met, with residency 2ositions, and othersin the medi- Accord- especially in rural and depressed areas. cal community.' show that ing to one expert, data appear to Infact,Statemedicallicensureboards FMGs service these basic health careneeds dis- throughout the country have imposedstiffer cer- proportionally: tificationrequirementsfor FMGs than for USMGs.91 USMGs are required to pass a single FMGs serve in disproportionatenumbers in rural examination, usually the NationalBoard of areas, often in solo andpartnership practices, in pub-

Licensing By Endorsement: Requirements Differ forGraduates of Foreign and U.S. Medical 87 U.S. General Accounting Office, Medical Schools (May 1990), p. 3, n. 3. Medical Graduates," Health Affairs, Fall 1987, pp.5-18, 88 Stephen S. Mick, "Contradictory Policies for Foreign 89 Sec chap. 7 for a discussion of the health care needsof Asian Americans. against State licensing boards. In .1986 Dr. Kar, whohad received his medical 90 Several lawsuits have been filed by Asian Americans in two other States, filed a suit education at the University of Medical Sciencesin New Delhi, and was licensed to practice medicine licensing board said that against the State of Vermont for denying his applicationfor a license. In denying his application, the State the American Medical As- his medical school had not been approved by theAmerican Council for Graduate Medical Education of th .t the decision sociation (ACGME). Dr. Kar pointed out that there was nopublished requirement to that effect in Vermont and Suc Vermont on License," India to adopt the requirement was made afterhis application was complete. (Lynn Hudson, "Doctor to Abroad, Mar. 7, 1986.) Saigon filed a suit against In 1987 two Vietnamese American doctors who hadreceived their medical degrees from the University of licenses after fulfilling all the the State of California's medical licensingboards seeking damages because they were denied medical graduated from requirements. The State licensing board had decided, in aclosed meeting, not to issue licenses to persons who had education received there. (Harriet the University of Saigon after 1975, because itfelt that it could no longer verify the quality of the Chiang, "Foreign-Trained MDs Charge License Iiias,"San Francisco Chronicle, June 8, 1987.) between State requirements for FMGs and USMGs is derivedfrom U.S. General Ac- 91 The following description of the differences

146 Medical Examiners exam (NBME), which is FMGs are said to be necessary toensure that taken in parts throughout the student's medical they meet U.S. professional sta idards. education. FMGs, on the other hand,are re- FMGs, on the other hand, )oint to research quired first to bc certified by the Educational showing that the performance of FMGs and Commission for Foreign Medical Graduates USMGs asphysiciansisindistinguishable.93 (ECFMG)--which requires that they passa They stress the hardships imposedon many basic medical exam, the Foreign Medical Gradu- FMGs by requirements that they document in ate Examination in Medical Sciences detail the course content, facultyresumes, facili- (FMGEMS), and an English-language-profi- ties, etc. of their medical schools. These time- ciency examinationand then topass a second consuming requirements allegedly amount to examination, the Federal Licensing Examination harassment. They also argue that it is particu- (FLEX), which is equivalent to the NBME but larly unfair to base endorsement requirements must be taken in one 3-day sitting. Most States for FMGs on the quality of thcir medical educa- also require that FMGsserve longer periods in tion rather than on their individual recordsas postgraduatetraining,orresidencies,than practicing physicians because inmany instances USMGs. Furthermore, FMGs are oftenre- these FMGs have been practicing medicine in quired to provide information showing that their the United States for many years. medical school provided an education that meets Representatives of all sides of the debate the stand's of the Liaison Committee on have reached agreement to developa national Medical Education (LCME), which accredits clearinghouse "to maintain and verify informa- U.S. and Canadian medical schools. Typically, tion on licensure applicants' educational back- States also have stiffer endorsement require- grounds and credentials," and the American ments (requirements for physicians already li- Medical Association has taken somc steps in censed to practice in one State seeking to that direction.94 The clearinghouse wouldease become licensed in another State) for FMGs hardships for FMGs in obtaining original docu- than for USMGs, even for FMGs who have ments over and over again as they apply for li- practiced in the United States successfully for censure and then endorsement. Federal funding many years. for such a clearinghouse is proposed ina bill Defenders of stiffer licensing requirements sponsored by Congressman Mervr Dymally (D- for FMGs cite the wide range in quality of for- CA) currently before Congress.5The medical eign medical schools. For a variety ofreasons, it profession is also moving to a "single examina- is not thought practical for the LCMEor other tion pathway to licensure" for USMGs and American agencies to accredit foreign medical FMGs." FMGsare now allowed to take parts I schools.92 Thus, thestiffer requirements for and II of the NBME, but it is still less widely available abroad than the FMGEMS.97

counfing Office, Medical Licensing by Endorsement: Requirements Differ for Graduatesof Foreign and U.S. Medical Schools (May 1986). 92 Prof. Stephen Mick, Department of Health Policy, University of Michigan,telephone interview, Mar. 7, 1991, and U.S. General Ac- counting Office, Medical Licensing by Endorsement,p. 7, n. 10. 93 U.S. General Accounting Office, Medical Licensing by Endorsement,p. 7. 94 U.S. General Accounting Office, Medical Licensing by Endorsement,pp. 6-7. 95 11.R. 319 is sponsored by Representative Dymally. Senator Simon hasintroduced a similar (S. 802) in the Senate. 96 U.S. General Accounting Office, Medical Licensing by Endorsement,p. 10. 97 Prof. Stephen Mick, Department of I lealth Policy, Univetsity of Michigan,telephone int, , tar. 7, 1991.

147 159 FMGs have also charged that they are dis- ized legal status for 3 million undocumented criminated against in the allocation of residency aliens who had entered the United States before positions and hospitalprivileges." A bill cur- 1982 while imposing civil and criminal penalties, rently before Congress, H.R. 319, may provide "employer sanctions," on employers who hire some relief for FMGs. Underthis bill, it would unauthorized workers. To allay concern that em- be illegalto have differential treatment of ployer sanctions would lead employers to dis- FMGs in licensing, endorsement, hiring for staff criminate against foreign-looking and positions, or granting of clinical privileges. For foreign-sounding workers, IRCA also contained now, however, FMGs maybe in some instances provisions aimed at preventing such discrimina- protected under Title VII, which prohibits dis- tion. Under IRCA, employers are required to crimination on the basis of national origin. A re- verify the work authorization of all workers, not cent court case is pertinent here: just those workers employers suspect might not A physician, educated in Iran, was offered be authorized to work. Furthermore, IRCA employment with an Alabama medical corpora- makes it illegal for employers with four or more tion on the condition that he was given admit- employees to discriminate in hiring, firing, or re- ting privileges at a nearby hospital. When he was ferrals against any authorized worker based on initially denied hospital privileges at the hospital the individual's national origin or citizenship sta- and later given privileges with a longerproba- tus. To enforce its antidiscriminationprovisions, tionary period than customary, he sucd the hos- IRCA set up the Office of the SpecialCounsel pital, charging national origin discrimination for Immigration-Related Unfair Employment Practices (OSC) within the Department of Jus- under Title VII.99 tice.102 In deciding the case, the Eleventh Circuit Court ruled that a hospital that denies a doctor's &ars that the IRCA's antidiscrimination pro- application for admitting privileges can be sued visions would prove to be insufficient to prevent for discrimination under Title VII even though it discrimination led Congress to require the Gen- is not in any sense the doctor's employer if that eral Accounting Office (GAO) to conduct a se- denial interferes with the doctor's employment ries of three studies to determinewhether opportunities elsewhere.1" IRCA'semployersanctionsprovisionhad caused discrimination. In March 1990 thethird Discrimination Camad by and final GAO report (hereafter, "GAO report") concluded that "a widespread pattern of the Immigration Reform and discrimination has resulted against eligible work- Control Act ers. . .[and] it is morereasonable to conclude In 1986 Congress passed the Immigration Re- that a substantial amount of these discriminatory form and Control Act(IRCA),101 which author-

98 Materials provided by Dr, Kishore Thampy, International Medical Council of Illinois. 99 The ultimate resolution of the case was still pending as of November 1991. 100 Pardazi v. Cullman Medical Center, 838 F.2d 1155 (11th Cir. 1988). 101 8 U.S.C. §§1101 et seq. (1988). authorization under Title VII of the Civil Rights Act 102 Before IRCA, the Equal Employment Opportunity Commission (EEOC) had of 1964 to investigate employment discrimination complaints involving charges ofnational origin discrimination against employers with 15 or more employees, but discrimination on the basis of citizenship status was notillegal. Under IRCA, complaints charging employers with 15 or more employees with national origin discrimination can bebrought either to the EEOC or to the OSC. Citi- zenship discrimination complaints and complaints involving employers with 4 to 15employees can only be brought to the OSC,

148 1 60 practicesresultedfrom IRCA rather than that group at all. For Asian Americans, this ten- not."103 The GAOreport confirmed the findings dency is likely to be compounded by thecom- of numerous other reports that IRCA hasre- monmisperceptionthat all Asiansare sulted in widespread discrimination against for- foreigners. Furthermore, employers whoare not eign-looking and foreign-sounding workers.1" thoroughly informed about all the documents IRCA-related discrimination is likely to fall that can establish an individual's work authoriza- most heavily on groups that have large numbers tion may prefer familiar documents, suchas so- of immigrant workers, such as Asian Americans. cial security cards, U.S. passports,or green If employers assume thatmore individuals in cards, to the less familiar work authorization ethnic groups with high proportions of im- documents that are frequently held by new immigrants are likely to be unauthorized workers, migrants and refugees, many of whom are Asian. then they may be more suspicious of the work Other employers may mistakenly requiregreen authorization of all members of thegroup, and cards from all foreign-seeming workers, even they might be reluctant to hireany members of U.S. citizens, who do not have them.

103 U.S. General Accounting Office,Immigration Reform: Employer Sanctions and the Question of Discrimination(Mar. 29, 1990), p. 71.

104 GAO's conclusions are based in part on the results of a survey of employers that led GAOto project that 891,000 employers, about 19 percent of all employers, began illegal discriminatory practicesas a result of IRCA. Further analysis of the GAO employer survey data reveals that roughly 499,000 employers began to discriminate on the basis of national origin, and 687,000 employersbegan to discriminate on the basis of citizenship. Of those starting illegal discriminatory practices, 757,000 employers begana policy of not hiring a certain category of workers, and 381,000 employers began a practice of selectively askingfor work authorization papers. Other government reports that concluded that IRCA had caused discrimination include: U.S. Commission on Civil Rights,The Immigration Reform and Control Act: Assessing the Evaluation Process,September 1989. Arizona Advisory Committee to the U.S. Commission on Civil Rights,Implementation in Arizona of the Inunigration Reform and Control Act(December 1990). Colorado Advisory Committee to the U.S. Commission on Civil Rights,Implementation in Colorado of the Immigration Reform and Control Act: A Preliminary Review,January 1989. Rhode Island Advisory Committee to the U.S. Commissionon Civil Rights,Irnpkmentation in Rhode Island of the Immigration Reform and Control Act: A Preliminary Review,May 1989. New Mexico Athisory Committee to the U.S. Commissionon Civil Rights,Implementation in Mw Mexico of the Immigration Re- form and Control Act: A Preliminary Review,May 1989. Texas Advisory Committee to the U.S. Commissionon Civil Rights,Implementation in Texas of the Immigration Reform and Con- tiol Act: A Preliminary Review(September 1989). State of Illinois, Human Rights Commission,Sum,,.rarizing Data and Information Gathered on Employment Discrimination Caused by Enactment and Implementation of the Immigration Reform and ControlAct of 1986,Report to the U.S. General Accounting Of- fice, Sept. 23, 1988. New York State Inter-Agency Task Forceon Immigration Affairs,Workplace Discrimination under the Immigration Reform and Control Act of 1986: A Study of Impacts on New Yorkers,Nov. 4, 1988. John E. l3randon, City of New York Commissionon Civil Rights,Tarnishing the Golden Door: A Report on the Widespread Dis- crimination Against Immigrants and Persons Perceived as Immigrants WhichHas Resulted from the Immigration Reform and Control Act of 1986,August 1989. State of California, Fair Employment and !lousing Commission,Report and Recommendations of the California Fair Employment and !lousing Commission: Public Ikarings on ihe Impact and Effectiveness inCalifornia of the Employer Sanctions and Amui-Discrim- ination Provision of the Immigration Reform and Control Act of 1986,Jan. 11, 1990. New York State Inter-Agency Task Force on Immigration Affairs,Immigation in New York State: Impact and Issues,Third Re- port, Feb. 23 1990.

1 1 149 The GAO report provides confirmation that as a result of IRCA is provided by a study by San Asian Americans experience IRCA-related dis- Francisco State University's Public Research In- criminationdisproportionately.Thereport stitute (PRI) jointly with the Coalition for Im- found that the proportion of employers adopting migrant and Refugee Rightsand Services discriminatory practices was higher in the West- (CIRRS), which analyzed data collected from a ern States, New York City, Chicago, and Miami telephone survey of 416 San Francisco employ- and especially high in Texas and Los Angeles.1o3 ers. The PRI/CIRRS report found that alarge Reviewing these data, the Task Force on IRCA- majority of San Francisco employers engage in Related Discrimination (Task Force)1°6 ob- illegal discriminatory practices: served: An overwhelming majority (97%) of sample business Considering all of the GAO data, it appears that the firms regularly engage in at least or mploymcnt problems of IRCA-related discrunination are most practice that may be discriminatory unuta or prevalent in areas which arc heavily populated by His- other anti-discriminati109on laws, and 53% regularly en- panics and Asians. This highlights that Hispanics and gage in three or more. Aians whether they are citizens or work-authorized non-citizens irk bearing the brunt of IRCA-related Furthermore, the report finds that San Fran- discrimination. cisco employers are particularly wary of hiring Asian Americans: The Task Force Report continued:"Further analysis of the GAO survey data made available Fifty percent of employers in the sample feel that the to the task force suggests that IRCA-related dis- INS's documentation requirements make it riskier to crimination is more prevalent among employers hire people who speak limited English. A large pro- with highorcentages of Hispanic or Asian em- portion feel it is riskier to hire Latinos (40%) and As- ployees." ians (39%).110 Additional evidence that Asian Americans are experiencing illegal employment discrimination

105 GAO report, pp. 40-44. 106 GAO's finding that IRCA had caused a widespread pattern of discrimination triggered a provision in 1RCA requiring the conven- ing of a Task Force on 1RCA-Related Discrimination to review GAO's findings and make recommendations to Congress. This Task Force was chaired by John R. Dunne, Assistant Attorney General, Civil Rights Division, U.S. Department of Justice. Thc other members of the Task Force were R. Gaull Silberman, Vice Chairman, U.S. Equal Employment Opportunity Commission, and Arthur A. Fletcher, Chairman, U.S. Commission on Civil Rights. The Task Force issued its report to Congress in S-plember 1990. 107 Task Force on IRCA-Related Discrimination,Report and Recommendations of the Task Force on Ik ':A-Related Discrimination,Re- port to Congress Pursuant to 8 U.S.C. 1324a(k) (September 1990), p. 21. 108 Task Force Report, p. 23. The Task Force based this contention on an analysis of the GAO data undertaken by the U.S. Commis- sion on Civil Rights. Thc Commission analysis revealed that 2.0 percent of the work force of employers who did not discriminate because of 1RCA was Asian, as compared to 2.7 percent of the work force of employers who did adopt discriminatory practices as a result of 1RCA. Asian Americans appear to be particularly subject to selective screening of their work authorization documents. The percentage Asian among the work forces of employers who did not screen selectively was 1.9 percent, whereas the percentage Asian for employers who did screen selectively was 4.0 percent. 109 Lina M. Avidan,Employment and Hiring Practices Under the Immigration Reform and Control Act of 1986:ASurvey of San Fran- cisco Businesses(Preliminary Report, Public Research Institute, San Francisco State University, and Coalition for Immigrant and Refugee Rights and Services, January 1990), p. 110 Ibid., p. iv.

150 There are no other studics of the effects of nity, such outreach must consider the myfiTzi lan- IRCA documentdiscriminationspecifically guages spoken by many of thoseaffected.... against Asian Americans, but many studies have found that employer confusion about IRCA has OSC has made some efforts to inform Asian caused discrimination against foreign-looking or Americans of their rights under IRCA. These ef- foreign-sounding individuals, noncitizens, or im- forts include speaking to Asian American com- migrants. For instance, the New York City Com- munity organizations; printing and distributing informative posters in Chinese, Japanese, and mission on HumanRights (NYCCHR) conducted a hiring auditin which carefully Korean; and grants to promote the outreach ef- matched individuals, one with a heavy accent forts of community organizations, including a and the other without an accent, responded to $100,000 grant to the Chinese American Plan- help-wanted advertisements in major New York ning Council in New York and grants to two papers. NYCCHR found that theaccented job other organizations with Asian American clien- applicants were often treated less favorably than tele. OSC's 800 number is staffed only by En- the job applicants withoutaccents.111 glish- and Spanish-speaking operators, however, Thus, there is little doubt that many Asian and OSC's informational pamphlets for the pub- Americans have been di; criminated against be- lic are only available in English andSpanish.'13 itsfinding that cause of IRCA's employersanctions provisions. After the GAO released Aggravating this situation, many Asian Ameri- IRCA has caused a "widespread pattern of dis- cans are not aware of their rightsunder IRCA crimination," the U.S. Commission on Civil and do not know where or how to file IRCA-re- Rights issued a statement calling for the repeal lated complaints. As one observer puts it: of IRCA's employer sanctions provisions. That statement said: Even if an applicant is aware that he is not hired due to his not being a citizen, many would notbe aware The United States Commission on Civil Rights...calls employer sanctions provis- that this is an illegal form of discrimination. For Asian on Congress to repeal the Americans, cultural barriers to filing a complaint also ions of the Immigration Reform and Control Act exist. Most Asian cultures have limited traditions of (IRCA).. ..With the U.S. General Accounting asserting individual legal rights. Even those born in Office's announcement...that employer sanctions America have substantially lower tendencies to take createa "widespread patternof discrimination" legal action in the face of discrimination. This is against legal workers, there is no longer doubt that changing, but will be especially pronounced among America's efforts to stem illegal immigration through immigrant groups. sanctions have seriously harmed large numbers of Hispanic, Asian, and other "foreign-looking" and Finally, information on how to file a complaint under "foreign-sounding" American workers. This discrimi- the Immigration Reform and Control Act is not well nation is unacceptable, and its r(nl causeemployer kpown. Outreach, to the extent that it has been done, sanctions should be eliminated. has been limited. ...in thc Asian American commu-

111 NYCCIIR observed that "Mlle audit's findings indicate substantial discrimination by employers in NewYork City. C the 86 employers tested, 41% were found to demonstrate differential treatment towards job applicants with accents."John B. 13randon, Tar- nishing the Golden Door: A Report on the Widespread Discrimination Against Immigrants and PersonsPerceived as Immigrams Which Has Re.sulted from the Immigration Reform and Control Act of 1986 (City of New York Commission onHuman Rights, August 1989), p. 29. 112 Paul Igasaki, Statement to the U.S. Senate Committee on the Judiciary, Apr. 20, 1990, pp. 10-11. 113 Juan Maldonado, Office of Special Counsel, U.S. Department of Justice, telephone interview, Fcb.15, 1991.

151

1 E 3 The Commission's position was reiterated IRCA's antidiscrimination provisions, several months later at a House Judiciary Sub- simplify employers' work authorization veri- committee on Immigration, Refugees, and Inter- fication process, national Law hearing: broaden the authority of the Department of Labor to enforce document check require- There are those who implicitly seem to believe that ments, or added discrimination against American workers isa request a future GAO study to determine small price to pay to stem the flow of illegal immigra- the extent of remaining discrimination, tion. The Commission on Civil Rights takes strongex- ceptiontothispointofview.Discrimination, all of which were recommended by the Task irrespective of its source and form, is intolerable, but Force. discrimination caused by a policy of the Federalgov- ernment is especially offensive and can never be justi- In September 1991 bills entitled the Em- ployer Sanctions Repeal Act of 1991 that would fied....1 urge Congrcss to...take a hard look at how employer sanctions have actually worked. Theyare repeal employer sanctions were introduced in not cost effective in stopping illegal immigration. the Senate by Senator Kennedy (D-MA) and More importantly, they have created new discrimina- Senator Hatch (R-UT)'17 and in the House of tion against American workers, which is simplyunac- Representatives by Representative Roybal (D- ceptable. Employewanctions are bad policy and CA)andRepresentativeRichardson(D- should be repealed. NM).118 As November 1991,no action had been taken on these bills. In 1990, however, Congress chose not tore- peal employersanctions.Instead,Congress chose to attempt to reduce the discriminatory Discrimination in effects of IRCA's employer sanctions provisions Construction Unions by implementing some, but not all, of therecom- Participants at the Commission's New York mendations made by the Task Force on IRCA- Roundtable Conferenceallegedthat Asian Related Discrimination."6 Congress did not Americans are virtually shut out of construction ldopt several critical Task Force recommenda- unions in New York City andas a result are tions. In particular, Congress did not: forced to take lowF.r9 paying jobs restoringor re- pairing buildings."These allegations resur- establish regional offices for the Office of faced several months later at a series of New Special Counsel, York City hearings ,o20 discrimination in thecon- appropriate funds for a new outreach effort structionindustry, and similarallegations to educate employers and employees about were made at the Commission's San Francisco

114 U.S. Commission on Civil Rights, "Civil Rights Commission Calls for Repealof Employer Sanctions." News Release, Mar. 29, 1990. 115 Arthur A. lktcher, Chairman, U.S. Commission on Civil Rights,statement to the House Judiciary Subcommittee on Immigration, Refugees, and International Law, June 27, 1990. 116 Changes to IRCA were part of the Immigration Act of 1990, Pub.L. No. 101-649. 117 S.1734, 102nd Cong., 2nd Sess. (1991). 118 H.R. 3366, 102nd Cong., 2nd Se.s.s. (1991). 119 Stanky Mark, Mini lju, and Jackson Chin, Statement at the U.S. Commissionon Civil Rights Roundtable Conference on Civil Rights, New York, NY, June 23, 1989, 120 Wing lam, Testimony at New York City Human Rights Commissionand New York City Office of Labor Services Hearingon crimination in the Construction Trades, Mar. 12, 1990; Stanley Mark, Testimonyat New York City Human Rights Commission and

152 Roundtable Conference.121 Among the discrimi- Employment Discrimination natory practices allegedly engagedin by con- Against Asian American struction unions to keep Asian Americus out Women are selective use ofEnglish-proficiency require- Although Asian Americans of both genders ments and unfair hiring hall practices. Although resource constraints prevented the encounter employment discrimination based on Commission from undertaking a complete inves- their race, the barriers to equal employment op- tigation of these allegations, available statistics portunity may be greater for Asian American women because of theirgender. As women, they confirmthatAsianAmericansareun- discrimination and derrepresented in construction unions. Nation- may be the victims of gender wide, Asian Americans constituted 0.8 percent sexual harassment on the job. And as Asian of the membership of construction unions inAmerican women, especially if they are im- 1990, although they made up 2.9 percent ofthe migrants, they may be less equipped to handle U.S. population.12 Asian American representa- such discrimination than women of other races tion is even lower in New YorkState,'23 where for two reasons. First, Asian American women, Asian Americans constituted 3.9 percent of the especially those who ale -immigrants, may find population in 1990 but made up only 03 percept that the small number of Asian American women in the workplace is animpediment to of the membership of construction unions.24 Furthermore, among persons in New York State their joining informal networks of co-workers on with skill levels comparable to those of construc- the job; and this in turn may mean that when tion workers (i.e., the pool of potential construc- Asian American women encounter discrimination they do not have easy access to the support tion workers), Asian Americans are considerably less likely to be employed in constructionjobs and advice of their co-workers. Second, immigrant Asian American women may be lesswell-in- than are whites: in 1980 only 2.6 percent ofthe Asian Americans who reported their occupa- formed about their rights in the workplace and tions as craftsmen, operators, or laborers were in culturally conditioned not to complain about construction jobs, as compared to 14.5 percent mistreatment. Their isolation from their co- of whites with these occupations. Based on these workers, their ignorance of their rights, and their statistics, further investigation of the allegations reluctance to complain all make Asian American of construction union discrimination against immigrant women vulnerable to sexual harass- Asian Americans in New York City and of anti- ment in the workplace and other forms of em- Asian discrimination by unions in general is war- ployment discrimination. ranted.

New York City Office of Labor Services Hearing on Discrimination in the ConstructionTrades, Apr. 25, 1990. Civil Rights, San Francisco, CA, July 121 Harold Yee, Statement at the U.S. Commission on Civil Rights Roundtable Conferenv, In 29, 1989. 122 "Membership in Referral Unions, By Type, By International, and by Race/Ethnic Groups/Sex,1990," table provided by the U.S. Equal Employment Opportunity Commission. 123 Unfortunately, comparable data were not readily available for New York City. 124 "Membership in Referral Unions, By State, By Type, By International, and by Race/EthnicGroups/Sex, 1990," table provided by the U.S. Equal Employment Opportunity Commission.

BES COF1 MAME 153 1 5 Briefly presented below are three illustrative In this case, the victim was too ashamed to cases: talk about her ordeal, which deprived her of the Case 1In May 1989 a Filipino American advice and support of close workplace friends. woman working as a secretary in a medical labo- Not knowing what rights and means of recourse ratory at one of the University of California she had as an employee, she had to endure thc campuses fainted on the job. The rescue squad abuse for 5 long years. When she finally ven- called to the scene happened vo include a tured out seeking assistance, she was discour- Tagalog-speaking man, who learned that the aged from seeking justice. fainting was related to job stress and ultimately Case 2The second case concerns a Korean discovered that. the stress had been caused by American woman workinkat a United States Air sexual abuse by the woman's supervisor.125 The Force base in California:' rescue team member reported his finding to the A technical support division at the base was school authorities and advised the woman to placed under the management of a new supervi- seek legal and psychological counsel. The uni- sor a few years ago. This no., supervisor was versity found the supervisor guilty as alleged, perceived by many to be anti-Asian in subtle and the case is in progress. ways, and except for a Korean American female The victim came to the United States as a stu- compt.ter programmer, the staff members of dent in 1983 and found a part-time job the same Asian ancestry all moved to other divisions one year. Three months after she started her job, her by one. supervisor, a medical doctor, took her to his When the Korean American programmer home on the pretext of giving her a ride home asked her new supervisor informational ques- and raped her. Her supervisor's sexual abuse tions regarding new office policies or practices continued for years, up to the time of the faint- being instituted, she was rarely given straight ex- ing incident. During this time, she was ashamed planations or answers. She was made to feel as if and dumbfounded, felt lost, and did not know she was asking something she was not supposed what to do. She was totally ignorant of what to. While the supervisor treated questions from rights she might have and what means of rc.:- her co-workers with courte3y and professional- course she could pursue. In early 1989 she acci- ism, she felt that her questions were handled in dentally discovered that the same supervisor had an unfriendly way, sometimes with hostility. At sexually harassed other women at the same labo- one of the office meetings, the division chief ratory. Upon hearing what had happened to the pointedly said her behavior of questioning office victim ome of these women advised her to file policies was out of line. She soon began to feel a conaint. Being uninformed of the complaint that she was being singled out and that she was a procedure and its ramifications (she was then an target of harassment and disparate treatment. undocumented alien), the victim sought counsel The new division chiers harassment and mis- from another supervisor, a non-Asian American treatment intensified when she signed a docu- medical doctor in the same laboratory. Shewas mentthatchronicleda longseriesof discouraged from pursuing the case, and she be- simultaneous absences by the division chief and came hesitant and afraid of filing a complaint. It his female secretary during regular business was at about this time that she fainted. hours. The suspicious absences had continued for quite some time, and they were a matter of

125 This account is based on information provided by Madge Kho, Equal Rights Advocates, intervim,Feb. 22, 1990, Oakland, CA. 126 This account is based on information supplied to Commission staff. Thiscase is undergoing adjudication, and the complainant requested anonymity.

154 common knowledge. Although the document someone was watching them, trying to overhear was submitted to a higher commanding officer, their conversation. This Asian Americanwoman there was no official investigation orresponse to finally filed a discrimination complaint. An inter- the revelations contained in the document. nal EEO investigation and reconciliation efforts From the time that she submitted the signed were not successful, and the case is now under document to a highe1authority, the Korean investigation by an outside source. American employee began to experience ad- This case illustrates the influencea manager verse turns in her work life. Her promotion was can exert in the workplace in setting a particular denied twice without what she considered an ad- tone regarding race and gender. Through exem- equate explanation. Her request for a transfer to plary behavior, a manager can help seta racially another division was turned down by the division supportive atmosphere in the workplace, but chief on the grounds that the chief of the divi- through subtle maneuvering, themanager can sion to which she was requesting the transfer turn an entire workplace against ar, employee or had shown favoritism to her in the past. While employees of a particular race or ethnicity. It her transfer request was being deniedon this underscores the need for top management to be frivolous ground, her immediate supervisor was alert to signs of potential civil rights problems in advising her, "If I were you, I wouldmove out of subordinate units, such as high turnover rates this division." The supervisor repeated thisun- among minorities or different racial patterns of solicited advice three more times after she made promotion and assignment to desirable jobs. it clear that she did not want to =we under co- Case 3The third case concerns a Filipino ercion or intimidation. American woman working at a United1States According to he he harassment continued. Army base in the San Francisco Bay area. For instance, one time she received an official The woman reported sexual harassment by reprimand for abusing government resources for her immediate supervisor to the basecom- personal use (i.e., using an office typewriter to mander. The base commander talked to the de- fill out her son's college applications). She filed partment head about the complaint. Instead of a grievance, and an official investigation con- investigating the alleged harassing official, the cluded that the accusation was unfounded. She department head staited a series of what ap- soon found out that thc amount of time she took peared to be retaliatory actions against thecom- for lunch was being closely monitored, while plainant,including work-related harassment, there was no such nionitoring of others. The disparate work assignments, demeaning treat- people she had been going to lunch with grad- ment, and general hostility. The complainant ually dropped out; she found out that thcywere heard her co-workers make comments which getting comments from their immediate supervi- seemed to imply that the base leadershipwas sors which apparently discouraged them from taken aback not so much by the substance of the going to lunch with her. Finally, shewas left with complaint as by the fact that it came froman only one person who was willing to eat lunch Asian American woman. According to her, it with her. Whenever they went to lunch at the was as if an Asian American woman was not sup- cafeteria, these two people felt certain that posed to complain. Because of the stereotypic

127 This case is based on the information provided at a meeting of Filipino communityrepresentatives held at the Filipinos for Affirma- tive Action, Oakland, CA, Feb. 22, 1990.

155 187 charge of expectation of compliance and docility, aformal propviate actions had been taken. The complaint from an Asian American woman ensuing retaliation filed with theauthorities might have been considered as apersonal af- went unheeded. Second,the number of Asian basis for front or challenge. Her notificationof the al- Americans was too small to serve as a leged retaliation to the base authorities wasto collective mobilization. In addition,probably for alleged by it aggravated an already badsituation. fear of blacklisting and retaliation (as no avail: representatives),128 the few The complainant final!),suffered a nervous Filipino community breakdown and had to quit her job.A lawsuit is Asian American employees at the base were un- with the now in progress. able to register a collective concern Several aspects of this case arenoteworthy. base authority. Deprived ofcollegial support, vulnerable target for First, the base leadership did notfollow up on the complainant became a the original complaint to makecertain that ap- harassment by management.

128 Ibid.

156 1 fi Chapter 7 Other Civil Rights IssuesConfronting Asian Americans

Topics discussed in thc precedingchapters by of Asian American elected officials andpolitical no means exhaustthe civil rights issues of vital candidates.1 there concern to AsianAmeecans. This chapter dis- Indeed, outside of the State of Hawaii, cusses six otherfundamental civil rights issues: are very few AsianAmerican elected officials political representation, access tohealth care, across the country.The State of California has Congressmen,2 but the only access to the judicial system,public services for two Asian American Ameri- battered women, coverage andrepresentation in clected State position held by an Asian the media, and religiousaccommodation. Al- can is that of CaliforniaSecretary ofState.3 Al- close to though limited resources precludedindepth ex- though Asian Americans now make up amination of these issues, the chapterdiscusses 10 percent of the State's population,there have each issue in sufficient detail todefine the na- been no Asian Americans in theCalifornia State ture of the problem and toheighten public Legislature for over adecade.4 A similar pattern officials', legislators', and the generalpublic's prevails in local districts. For instance,in Daly awareness of andsensitivity towards the issue. City, California, where Asian Americans are over 42 percent ofthe population, there has never been anAsian American elected to the Political Representation city counci1.5 New York City, whichhas an Asian Even though the numbers ofAsian Ameri- American population of more than400,000, has cans have beenincreasing steadily for several never had an Asian Americanelected to its city decades, Asian Americans are onlyjust now be- counci1.6 According to a participant at the New ginning to become a political force. Manyof the York Roundtable Conference, "Right now we participants at the Commission'sRoundtable don't have one single elected official at any Conferences expressed concern aboutAsian level, be that state assembly, city council, or any Americans' lack of political representationand other type ofoffice."7 Asian Americans who political empowerment and decried thedearth have been elected usually are notidentified with

Houston, TX, May 27, Michael Yuan, Statement at the U.S. (ommission onCivil Rights Roundtable Conference on Civil Rights, 1 Righz Roundt- 1989; Stanley Mark, Charles Wang, Rockwell Chin, andJackson Chin, Statements at the U.S. Commission on Civil the U.S. Cemmis- able Conference, New York, NY, June 23, 1989; Vu DucVuong, Kevin Acebo, and Harold Yee, Statements at sion on Civil Rights Roundtable Conference, SanFrancisco, CA, July 29, 1989. 2 Rep. Robert 'I'. Matsui (D-CA-3) and Rep. Norman Y.Mineta (D-CA-13). Style," Wall Street Journal, May 23, 1991. March Fong Eu isCalifornia's Sec- 3 .1'n W. Ferguson, "California Ethnic Politics, Chinese Elected and Appointed Officials retary of State. Asian/Pacific American MunicipalOfficials, Directory of Asian/Pacific American (1990). 4 Ibid. Voting Rights of Asian Pacific Americans," Asian AmericanStudies Cen- 5 William Tamayo, Robin Tom, and Stewa.1 Kwoh, "The ter, University of California, IAA Angeles, July1991, p. 3. American on City Council in 091? AALDEF Workswith Commis- 6 Asian American Legal Defense and Education Fund, "Asian City Council?"). sion to Create Asian American Seat,"Outlook (Winter 1991), p. 1 (hereafter cited as "Asian American on

157 1E9 an ethnic constituency. For instance, Los Ange- lation as a whole.1° Thusmany Asian Americans les City Councilman Michael Woowas elected are either under the voting age of 18or in their from a district that is only 5percent Asian young adulthood, which is the age at which American.8 those eligible to vote have the lowestparticipa- Asian Americans' political underrepresentation rate. Asian Americans' noncitizenshipand tion and consequent lack of politicalpower re- age combined substantially reduce their eligibil- sult both from demographic factors, suchas low ity to vote. In New York City, forinstance, out percentages eligible to vote, and barriers topo- of a total Asian American populationof 245,220 litical participation,some of which are discrimi- in 1980, only 76,400,or 31 percent, were citizens natory. of voting age.11 Two demographic factorsoperate to reduce Even among Asian Americans whoare eligi- the voting participation and hence thepolitical ble to vote, however, thevoter participation rate power of Asian Americans. First, becausemany is lower than for many other populationgroups. Asian Americansare recent immigrants, a large For example, a survey of Californiavoters found proportion of the Asian American population that only 48 percent of Asian Americansoverall has not yet attained citizenship and hence itnot and 69 percent of Asian Americans whowere eligible io vote. In 1980 almost 70percent of citizens voted in 1984, compared with80 percent Asian Americans aged 15 andover weie foreign of non-Hispanic white and black citizens.12A born, and only 55 percent of the total Asian number of factors has been suggestedas contrib- Amei ican population were U.S. citizens.9 With uting to the low voter participation ofeligible the continuing large-scale immigration of Asians Asian American voters, including therecent im- to this country after 1980, it is likely thatan even migration status ofmany, which means that they larger percentage of Asian Americans todayis have not yet become accustomedto the Ameri- foreign born. Second,some Asian American can political system,13 and cultures and historical groups, especially Southeast Asians and Pacific experiences that discourage participationin the Islanders, are much younger than the U.S.popu- political process.14

7 Charles Wang, Chinese American Planning Council. Statement at the U.S. Commission on Civil Rights RoundtableConference on Asian American Civil Rights Issues for thc 1990s, New York, NY, June 23, 1989. Since thatstatement, three Asian American judges have been elected. 8 Sc:h Mydans, "Votc in a 'Melting Pot' of Los Angeles May Be Mirror of California's Future,"New York Times,June 2, 1991. 9 U.S. Bureau of the Census, 1980 Census of Population, vol. 2, Subject Reportr,Asian and Pacific Islander Population in the United States! 1980(January 1988), table 16. Almost two-thirds of foreign-born Asian Americans were not citizens, and two-thirdsof non- citizen Asian Americans had immigrated to thc UnitcdStates between 1975 and 1980. Ibid. 10 Whereas the median age for the U.S. population as a whole is around 30, thc median age for Southeast Asians is21.5 for Vietnam- ese, 16.9 for Lao ians, 22.4 for Cambodians, and 16.3 for Hmongs; and the median age of ?nine Islanders is 23.1. Ibid.,tables 48, 54, 66, 84, and 90. 11 Stanley Mark, Asian American Legal Defense and Education Fund, "Voting Rights, A Summary of theIssues," September 1989. 12 Bruce E. Cain, "The Political Impact of Demographic Changes," pp. 304-19 in U.S Commissionon Civil Rights,Changing Persp;:- rives on Civil Ridits, Report on a Forum Held in Los Angeles, CA, Scpt.8-9, 1988. 13 Vuong Statement. 14 Bruce E. Cain, "The Political Impact of Demographic Changes," p. 309. As explained byaNew York Timesarticle, "Participation in government is often looked on with suspicion by Asian immigrants who fled repressive governments. Forthem government at its best has meant taxation and military service, and at its worst, oppression, persecutionor death." "Randolph Journal: Asian Refu- gee Sends Voters a Signal,"New York Times, Aug. 21, 1990. Congressman Matsui,a Japanese American, attributes the reluctance to enter politics of Asinn Americans who have lived in this country for generations to the history ofanti-Asian legislation and the

158 170 Several factors limiting Asian Americans' po- that Koreatown, Chinatown, and Filipinotown in litical representation and political power are se- Los Angeles are each split into several city coun- rious civil rights concerns, however. Participants cil districts; and that Daly City and other cities in at the Commission's Roundtable Conferences the south Bay and San Gabriel Valley have at- named several specific barriers to the political large elections." participation and hence the political representa- Drawing dists;cts that give Asian Americans tion of Asian Americans: 1) apportionment pol- significant political power is not always easy, icies that dilute the voting strength of Asian however. Despite heavy increases in recent American voting blocks;15 2) the unavailability years, the Asian American population remains of Asian-language ballots and other election ma- small in comparison to the population as a terials;16 3) problen15 with the implementation whole, and even though geographically concen- of the Census of Population; and 4) anti-Asian trated in certain States, Asian Americans gener- sentiments among ncn-Asian voters and the ally are not so concentrated at a local level that media17 and the consequent dearth of Asian they can even potentially become a majority American political candidates (which may also population in more than a handful of electoral be partly caused by political parties that ignore distticts.21 Furthermore, Asian Americansare the Asian American population and do not ac- less likely to vote as a block than other minority tively seek or promote Asian candidates).18 groups.22For instance, in the State of California, Each of these causes is discussed in turn. Asian Americans are roughly equally divided 1) Apportionment policiesAsian American amonk DemocraticandRepublicanregis- political power may have been diluted by appor- trants.-23These facts make it very difficult to tionment schemes that split the Asian American draw electoral districts in which Asian Ameri- population in an area into several districts and cans can be assured of being the majority of vot- by at-large election systems within districts.19 ers or a block of voters of sufficient size to have One study,forexample,notesthatSan a major electoral influence. Francisco's State senate district boundaries have With the release of the 1990 census data split the Asian American population in that city; showing large increases in the numbers of Asian

forced internment of Japanese Americans during World War 11. (Ibid.)

15 Acebo Statement; Yee Statement; Mark Statement; Wang Statement; Jackson Chin Statement, 16 Mark Statcmcnt; Rockwell Chin Statcment, 17 Vuong Statement; Mark Statement. 18 Vuong Statement; Mark Statement. 19 This argument has been made by Tamayo, Toma, and Kwoh, "The Voting Rights of Asian Pacific Americans." 20 Ibid., pp. 3-4. 21 For instance, with a 57.5 percent Asian population, Monterey Park, CA, is thc only city on the U.S. mainland with a majority Asian American population. Ferguson, "California Ethnic Polities." 22 Bruce E. Cain, "The Political Impact of Demographic Changes," pp. 311-12. 23 Bruce E. Cain, Statement at the U.S. Commission on Civil Rights Forum on Changing Perspectives on Civil Rights, T os Angeles, CA, Sept. 8-9, 1988, p. 104. A case in point is the city of Montemy Park, where Asian Americans arc roughly 58 percent of thcpop- ulation. A 1988 exit poll of Asian American voters in Monterey Park found that 45 percent of Chinese American voters identified themselves as Republican and 30 percent as independent, with only one-quarter identifying themselves as Democratic; whereas 60 percent of Japanese Americans identified themselves as Democratic, 30 percent as Republican, and 10 percent as independent. (Southwest Voter Research Institute Exit Poll, Apr. 12, 1988, as reported in Leland T. Saito, "'Asian American' Polities: Emerging Tendencies in the City of Monterey Park" (paper presented at the 86th Annual Meeting of the American Sociological Association, Cincinnati, OIL Aug.23-27,1991), p. 14.)

171 159 Americans, however, Asian Americans have seats on the city council from 35 to 51.28 Previ- begun to get involved in the politics of the redis- ous plans had split Chinatown into two different tricting process. Buoyed by a recent court deci- districts. The Asian American Legal Defense sion suggesting that a minority group does not Fund and othcr Asian groups worked to pro- necessarily have to constitute over 50 percent of mote two "Asian districts," one in Chinatown a district's populate to be protected by the and one in Queens.2Others sought to join Voting Rights Act,Asian American groups in Asian Americans living in Chinatown with other California have formed the Coalition of Asian minorities living in the lower East Side or with Pacific Americans for Fair Reapportionment to whites livirq in So Ho, TriBeCa, and Battery "ensure that the voice of Asian Pacific Ameri- Park City.- On June 4, 1991, the districting cans on the redistricting process is heard in commission adopted a plan that placed virtually order to facilitate fairly drawn districts that do all of Chinatown in a district that included not fragment the Asian Pacificvote."25 As part TriBeCa, and Battery Park City and had a of this effort, the Asian American Studies Cen- voting-age population of 114,207, of whom 37.9 ter at the University of California at Los Ange- percent were Asian American, 40.7 percent les is helping to analyze voting districts and to were white, 15.3 percent were Hispanic, and 5.8 conduct studies on Asian American voter pat- percent were black.31 Since all of Manhattan is terns.26 Somearc working for the creation of a estimated have only about 8,000 Asian San Gabriel Valley district that would include: Americans registered to vote,j2 however, it is many Asian American voters and would give not clear that Asian Americans will be able to Monterey Park City Councilwoman Judy Chu a win representation even in this district with a chance of being elected to the State legisla- large plurality of Asians. Nonetheless, because ture.27 the plan keeps Chinatown mainly intact, the In New York City, Asian Americans have plan does give Asian Americans some potential been actively trying to influence the decisions of electoral influence, and it may also signal that a 15-member districting commission that was Asian Americans are beginning to gain political charged with drawing a new districting plan re- influence. quired by a decision to increase the number of

24 Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir. 1990), cert. denied, 112 L. Ed.2d 673 (1991). The ease dealt specifically with Hispanic voters in Los Angeles County. 25 Tamayo, Toma, and Kwoh, "The Voting Rights of Asian Pacific Americans,- p. 11. 26 Kathryn Imahara, Asian Pacific Legal Center of Southern California, letter to Nadja Zalokar, U.S. Commission on Civil Rights, Sept. 4, 1991, p. 4. 27 Ferguson, "California Ethnic Politics." 28 Felicia Lee, "Blocs Battle to Draw Chinatown's New Council Map," New York Times, Apr. 30, 1991, p. Bl, and "Minority Districts for Council Added in New York Plan: Political Map Redrawn; Proposal is Quickly Criticized by Some Groups Seeking More Rep- resentation," New York Times, May 2, 1991. 29 "Asian American on City Council," p. 5. 30 Lee, "Blocs Battle to Draw Chinatown's Ncw Council Map." 31 Felicia Lee. "Plan Adopted to Increase Minorities on City Council," New York Times, June 4, 1991. The plan also included two other districts with large Asian American populations (one with 29.6 percent and the other with 28.3 percent Asians), both in Queens. (Ibid.) The U.S. Department of usticc gave its approval to a slightly modified version of this plan on July 26, 1991. (Rob- ert Pear, "New York Plan Wins U.S. Backing: Justice Department Approves City Council District Map," New York Times, July 27, 1991.) 32 Stanley Mark, Asian American Legal Defense and Education Fund, "Voting Rights: A Summary of the Issues," September 1989.

160 1 7 2 federally mandated bilin- A similar situation prevailsin District 20 in almost never receive materials.36 Because the benefits Flushing, which was drawn toinclude a sizable gual election 31 percent of the of the Voting Rights Act do notextend to Asian number of Asian Americans: proficiency is a seri- district's 140,000 residents areAsian American. Americans, limited English the political participationof many Yet Asian Americans are only6.7 percent of the ous barricr to registeredvoters.33 Nonetheless, there are two Asian Americans. for District 20's city A particularly egregiousexample is New York Asian American candidates 100,000 Chinese council seat: Pauline Chu, aChinese American City, where there were almost 1980.37 Because New running inthe Democratic primary Americans of voting age in who is large, this number against incumbent Julia Harrison,and Chun Soo York City's population is very only Republican fell just short of the 5 percentcutoff.38 Voter Pyun, a Koman American, the by the Asian American in the race. surveys undertaken Legal Defense and EducationFund found that: 2) Limited EnglishproficiencyLimited English proficiency is potentially animportant in Chinatown, four out of five votershave language barrier to political participationfor many Asian slated to expire difficulties. These voters stated..that they would vote Americans. In a provision that is bilingual assistance were provided.Simi- the Voting Rights Actof more often if on August 6, 1992, larly in Queens, four out of everyfive limited-English- political subdivisions 1982 requires States and proficient Asian American votersindicated that they for which the "Directorof the Census deter- would3ote more if bilingualassistance were proof the citi- mines (i) that more than 5 percent vided. zens of voting ageof such State or political subdivision are members of a singlelanguage mi- Thus, many Asian Americans aredeterred from nority and (ii) that the illiteracy rateof such per- voting because of limitedEnglish proficiency. sons as a groupis higher than the national 3) 1990 CensusBecauseit is very closely illiteracy rate"35 to distritn te allelection materi- related both to the drawingof political maps and als, including ballots, in thelanguage of the ap- to the issue of theprovision of bilingual voting plicable minority group. Becausethe Asian materials, it is critical whctherthe 1990 census American population is generallysmall, speaks a was able toobtain an accurate countof Asian variety of languages, and is not veryresidentially Americans. A number ofparticipants at the concentrated, Asian Americansfrom a single Commission's Roundtable Conferencesunder- language almost never constitute5 percent of a scored the importance ofgetting an accurate 40 district's voting-age population.Thus, the 5 per- count.For instance, whether or notChinese cent requirement meansthat Asian Americans Americans in New York City meetthe 5 percent

A Slice of AsianPolitim," New York Times.Aug. 28, 1991. 33 Donatella Lorch, "In Flushing Council Contest, 34 Ibid. 42 U.S.C. 41973aa-la(b) (1988). 35 mandated bi- Americans in three counties in Hawaii, noAsian Americans received federally 36 In fact, as of 1988, apart from Japanese lingual election materials. 28 C.F.R. Ch. 1(7-9-89 Ed.), app. in the United Population, vol. 2, Subject Reports,Asian and Pacific Islander Population 37 U.S. Bureau of the Census, 1980 Census of States: 1980(January 1988), table 18. American Legal Defense and Education Fund,telephone interview, Jan. 29, 1991. 38 Margaret Fung, Executive Director, Asian American Legal Defense and Education,Statement before the New York City District- 39 Margaret Fung, Executive Director, Asian ing Commission, Nov. I, 1990. the U.S. Commission on Civil RightsRoundtable Conference on Asian American 40 Stephen Wong and Mar1ha Wong, Statement at

173 161 threshold specified in the VotingRights Act for Census Bureau has agreed mandatory bilingual voting materials to release the data may turn much earlier this time, probablyin 1991 or on how accurately Chinese Americansin New 1992.43 York City were counted. Whetheror not "Asian 4) Bias against Asian AmericansAsian American" districtsare drawn in the redistricting American candidates for publicoffice across the process is also likely to hingeon an accurate country often say that they had difficulty count of Asian Americans. Many in get- participants ting their candidaciestaken seriously by the were concerned that the Census Bureau'sform major political parties." is not provided in Asian Furthermore, they con- languages, that there tend that the partiesare not always responsive were not enough bilingual/bicultural census tak- to the concerns of Asian Americans.A 1989 ers, and that the Census Bureau'spostenumera- Washington Post article, which (ion survey might be argued that the too small to detect and Democratic Party has been slowto adjust its po- pinpoint an inaccuratecount of Asian Ameri- litical agenda to attract Asian cans.41 American voters and in many issues has beenguilty of anti-Asian As important as the accuracy of the data is sounding rhetoric, supports theirview. It said: their timely release. AsianAmericans expressed frustration and exasperationat the delayed re- The new [Asian and Hispanic] lease of detailed data Americans often feela on Asian Americans from personal stake in shifting U.S. prioritiestowards a the 1980 census.42 They pointedout that the more Asian and Latin American orientation. Yetto 1980 census data were not released until 1988 date, the Democrats have beenremarkably resistant. and that by the time the datawere released, they .to the idea of a less Eurocentric foreign policy.Per- were no longer useful in documenting thenum- haps the most ominous is theincreasingly anti-Asian bers and characteristics of thcAsian American tone of Democratic rhetoric, all too clearlydemon- population, since Asian Americanshad under- strated in the "Japan-bashing" and"Korean-bashing" campaign ads used last gone a dramatic transformation during theinter- year by both lichael Dukakis and Rep. Richard Gephardt (D-Mo.) vening 8 years. According toone participant, the

PRIZAKIINIMMMKIWOODMACAlelt0.1411411.M11/11..11111 Civil Rights Issues for the 1990s, Houston, TX, May 27, 1989; Acebo Statement;Mark Statement; Wang Statement; Rockwell Statement. Chin

See, e.g., Acebo Statement. Mark Statement,Martha Wong Statement. In November 1990 the Census Bureau agreed to domore postcensus sampling in areas with large AsianAmerican populations. ("Census 13ureau to Study U.S. Asian Populace,"WallStreet )ourna(,Nov. 19, 1990.) Although thissampling will provide better data on Asian Americans, it will have no effecton the apportionment process, because the Federal Government decided not to adjust the 1990census figtim based on the posteensus enumeration survey. 42 Wang Statement. Both the general booklet,We, the Asian and Pacific islander Americans, and ihe detailed censusstatistics, Asian and Pacific Islander Population in the UnitedStates: 1980,were published in 1988. 43 Wang Statement. 44 Fer instance, Congressman Matsuidescribed the incredulity with which his colleagues greeted his decision torun for office in a speech given at "Asian and PacificMieticans: Challenges in the New Decade," a conference sponsored by Senators Simonand Daschle, Washington, DC, Oct. 5, 1990.Judy Chu, who is planning to run for the California State legislature, 4tvmplained"that 'Blacks and progressive whites' set (the Democratic Party'sj agenda, and Asiansare given short shrift." (Ferguson, "California Eth- nic Politics,") However, shefeels that "Republicans promote Asian candidacies and issues such as collegeadmissioe quotas..." (ibid.) Tom Hsieh, a San FranciecoCity Supervisor currently running for mayor, voiced similar feelings. (Jay Mathews."San Fran- dsco Canipaign May Accent MUMClout,"WashingtonPost, June 11, 1991.) 45 Joel Koikin and Bill Bradley,"Democrats and Demographics; Asians, Hispanics and Small Businessare the Party's Future,"Wash- ingum Post, Feb. 2t),19S9,

162 1 7 I In recent years, however, there has been an ag- not being met. Refugees fromSoutheast Asia gressive outreach effort made by bothpolitical arrive in this country with serious physical and parties to the Asian Americancommunity.46 mental health problems stemming from their ex- Roundtable Conferenceparticipants gave periences intheir homecountries.° Other several examples that they felt demonstrated Asian Americans, especially those inlower so- that anti-Asian sentiments are one of theunder- cioeconomic strata, also do tic I receivethe care limit Asian lyingfactorslimiting or discouraging Asian they need. Two factors appear to Americans' political participation. One partici- Americans' access to health care inthe United pant pointed out that manySan Franciscans States: language and cultural barriers and alack considered one Asian On the San Francisco of data on Asian American health status.Al- Board of Supervisors to be enough: though limited resources prevent a discussionof Asian Americans' access to other publicservices The population of the City of San Franciscois 35 per- in this report, it should be notedthat similar cent Asian. There are 11 membersof the City Coun- problems hamper Asian Americans' access to cil, but there's only one Asian. Andalready the talk is most other public services aswell. that Asians are alreadyrepresented adequately, so 47 you don't need any more. Language and Cultural Barriers California Although there are no nationwide statistics He also charged that an influential documenting the numbers of health care inter- written an editorial asking paper had recently languages, it is clear people not to vote for a Korean American can- preters who speak Asian that the national health care system is notade- didate for local election because he had an ac- 48 quately meeting the interpretation needsof the cent. limited-English-proficient Asian American population. The bilingual family membersand other Access to Health Care untrained interpreters frequently used byhealth Many Asian Americans, especially recentim- care providers are a poorsubstitute for trained migrants, have serious health care needs that are health care interpreters. As noted by ahealth

Commission on 46 Melinda Yee, letter to James S. Cunningham, AssistantStaff Director for Programs, Policy, and Research, U.S. Civil Rights, Sept. 6, 1991. For example, in May 1991 the DemocraticParty hosted an Asian Pacific American Democratic Summit Democratic Ad- in Washington, DC. (Democratic News, "DemocraticParty Chairman Ron Brown Forms Asian Pacific American Brown, and visory Council," May 8, 1991.) The summit brought together partyofficials, including Democratic Party Chairman Ron Asian American party activists "to discuss public policyissues, increased political participation, and the 1992presideatial campaign." (Ibid.) At the summit meeting, the party set up the AsianPacific American Advisory Council to "coordinate activitiesbe- tween registration and education, outreach tonaturalized citizens, candidate development, campaign training,fundraising, and increased participation within (the Democratic National Party.)"(Ibid.) 47 Vuong Statement. 48 Ibid. Southeast Asian refugees] has been tuberculosis, followed by 49 According to a Connecticut State official: "the chief disease [among intestinal parasites, hepatitis Tve B, and syphilis. The chiefpersonal health disorders are abnormalities in dental conditions,vision, and hearing." ((ieorge Raiselis, Refugee Health ProgramDirector, State of Connecticut Department of Health Services, ascited Connecticut State Advisory Committee to the U.S. Commission onCivil Rights, Southeast Asian Refugees and Their Access 13 Ikalth and Mental Ikalth Services (December 1989), p. 16 (hereaftercited as Connecticut SAC Report)) Another Connecticut State official said that his estimates suggested that between 45 and72 percent of Southeast Asian refugees have mental health problems. (John Cavenaugh, Administrator, State of ConnecticutDepartment of Mental Health, as cited in Connecticut SAC Report, p. 18.)

163 175 care official for the State of Connecticut, inter- the Asian American Health Forum (AAHF) preting medical information to Southeast Asians noted that: requires considerable expertise: A health provider's appreciation and understanding Not all medical/health terminologiesare translatable of Asian/Pacific values and practices rer..ainsa criti- into the various Southeast Asian languages and dia- cal factor in access. Imposing Western medical mod- lects nor can the Southeast Asian expressions of their els without considering Asian/Pacific responses will physical and mental states be directly translated for lead to confusion and conAict, rather thancoopera- western health care providers. The interview ofa tion and health promotion. Southeast Asian refugee must be interpreted byone who is aware of the nuances of the various cultures. A health care provider's insensitivity mightre- Many Southeast Asian medical termsor health condi- sult in misdiagnosis. For example: tions when translated literally to English tend5ho mis- lead or confuse western health care providers. Asian cultures with hierarchical social structuresre- vere authority figures....As a result, a patient of Ko- The shortage of interpretive services seriously rean descent may not question a physician's diagnosis limits the access of many Asian Amcricans to and treatment. He or she may indicate understanding, health care. Furthermore, when a physician's agreemfft and compliance when none arein- ability to communicate witha patient is ham- tended. pered by the lack of an interpreter, heor she maybeviolatingtheAmericanMedical Researchers caution that effective healthcare Association's (AMA) Principles of Medical Eth- provision requires health care providers to "rec- ics. The AMA's Council on Ethical and Judicial ognize culturally-appropriate responses to ill- Affairs has offered the opinion that the patient's ness.54 right of informed consent "can be effectivelyex- Health care providers sometimes need to take ercised only if the patient possesses enomh in- stepst ) reach out to some Asian Amcrican formation to enable an intelligent choice."The groups who may bc reluctant to seek their se, council has not addressed directly physicians' ob- vices. A participantatthe San Francisco ligations to use medical interpreters whencom- Roundtable Conference said: municating with limited-English-proficient patients, however. [Flor many Asian families it is a stigma to be identi- In addition to language barriers, cultural bar- fied as having [mental health problems]. We needto riers compound the problems faced bymany begin to explore different ways of presenting mental Asian Americans in gainingaccess to proper health services....We have an excellentprogram here health care. To render effective healthcare to in San Francisco, the China Health Child Develop- ment Center, that uses a sort of non-stigmatized way Asian Americans, health care providers need of getting some Asian familiesChinese families in considerable knowledge of and sensitivity to- particularto come into their center so that theycan wards Asian American cultures. Participantsat be evaluated for mental health problems. ..[This way]

50 George Raiselis, Director, Refugee Health Program, State of ConnecticutDepartment of Health Services, as cited in Connecticut SAC Report, p. 17. 51 Council on Ethical and Judicial Affairs of the American Medical Association,"Current Opinions," no. 8.08, "Informed Consent." 52 Malaya Forman, Michael Chunchi I,, Mingyew Leung, and Nina Ponce, "Ethnocultural Barriers to Care," Asian American Health Forum I'olicy Paper, November 1990,p. 4. 53 Ibid. 54

164 l 7 we have been able to increase t4 number of families plastic bags on hcr head until she would pass out. As receiving mental health services. a result, shhcould not bear having her head touched or ci,vered. Here is an example of a successful outreach effort. Soon after three Hmong children died A man who had suffered a scrious stroke in a refugee from measles in the Twin Cities area in the camp and who still had markedly high blood pressure spring of 1990, the public television station in was denied supplemental security income because he Minneapolis-Saint Paul quickly put together a had no physical handicaps from the first stroke. None half-hour Hmong-language broadcast to provide of the four physicians who had examined him noticed the Hmong community with information about that he was confused and did not know where he lived measles symptoms, treatment, and prevention or what day it was. He could not work, and his family could not leave him5olone because he would wander and to encourage parents to vaccinate their chil- off and become lost. dren. The unique outreach program featured a discusrion in question and answer format be- One woman, who had lost her first husband and seven tween Hmong medical professienals and Hmong children during the Pol Pot regime and who was tor- community leaders and was widely publicized in tured and raped, was hospitalized after threatening to the Hmong community before it was broadcast. kill herself; she was kcpt only a short time because she Copies of the program have since been made could not communicate and was told that long-term available to socialservices agencies serving therapy was unavailable becuse the therapist refused Hmong communities across the country.56 to work through a translator. Several examples illustrate how the lack of interpretation and/or culturally sensitive staff can A father was excluded from thc treatment plan of his psychotic daughter because he believed that the spir- obstruct or complicate Asian Americans' access its must be consulted before his daughtcr received to proper health care are given below. medicine; the translator was ashamed of this belief and refused to communicatc the father's concern. .. [Speaking of inadequate mental health care for north- 61 ern California youth of Asian ancestry]. ..it is uncon- scionable when often times we find thatfamily It is unlawful to discriminate in health services members are asked to go into therapy sessions to based on national origin. According to the U.S. serve as translators for the therapy itself. It is unethi- Department of Health and Human Services cal, it is unprofessional, and it is total], inappropriate. (HHS) regulations implementing Title VI of the But these things happcn all the time. Civil Rights Act, health-service-providing orga- A [Cambodian] woman suffering from convulsions nizations receiving Federal funds are prohibited, was termed uncooperative for not permitting medical on grounds of national origin, from: personnel to perform brain tests. It turned out that she had been tortured by the Khmer Rouge who tied

55 Leland Yee, Statement at the U.S. Commission on Civil Rights Roundtable Conference on Asian American Civil Rights Issues for the 1990s, San Francisco, CA, July 29, 1989 (hereafter cited as Yee Statement). 56 Materials provided by Gail Feichtinger, KIVA-Channel 2, St. Paul, MN. 57 Yee Statement. 58 Theanvy Kuoch, Khmer I lealth Advocates, as reported in Connecticut SAC Report, p. 5. 59 Ibid. 60 Ibid., p. 4. 61 Ibid pp. 4-5.

177 165 providing any service to an individual, which is differ- were made. They tried to tag medical folders so when ent or is offeretin a different manner from that pro- appointments were made it was identified that a vided to others; translator was needed. They also tried to revamp their treating an individual differently from ters in deter- Patient Assistance Officaso that people were there if mining eligibiiity for receiving services;and they needed translation. utilizing criteria or methods of administration that have th&effect of subjecting an individual to discrimi- On October 10, 1985, the Vietnamese Society nation. of Rhode Island filed a complaint of discrimination based on national origin against Health Ser- For these reasons, a Federal fund recipient that vices Incorporated (HSI), RI, with the HHS is unable to communicate with a substantial lim- Office for Civil Rights (OCR). The complaint ited-English-proficient (LEP) population in its alleged that HSI discriminated against a class of service area effectively subjects that population LEP persons whose primarylanguage is to discrimination based on nationalorigin.65 In Vietnamese and specifically that HSI required recent years, lawsuits and complaints alleging LEP persons to bring their own interpreters discrimination against LEP Asian Americans in with them to obtain services. When the OCR in- health services resulted in consent decrees or vestigation found a failure on the part of HSI to voluntary compliance agreements. Several exam- comply with the Title VI regulations, HSI indi- ples arc: provided below: cated a willingness to comply voluntarily, resulting in the execution of a voluntary compliance [M]any working [Asian Americans, particularly recent agreement between HHS and HSI on October immigrants] have private health plans, particularly the 1, 1986.67 Kaiser prepaid health plan. Because of language and On May 8,789, OCR received a complaint cultural barriers, these people were coming back to against the Maine Medical Center (Hospital) al- private physicians in Chinatown [instead of using Kai- leging that the hospital had failed to provide in- ser services] in order to get adequate health care, and terpretersfor persons with limited English in many instances were double paying....Chinese for proficiency whose primarylanguages were Affirmative Action. . filed a Title VI complaint against Kaiser Hospital...[After much foot-dragging] Khmer and Vietnamese. When notified that Kaiser agreed to sit down to talk about a consent de- OCR found a probable cause of allegation, the cree. ...Unfortunately, Kaiser was very slow in re- Hospital indicated its desire to be in voluntary sponding to the agreement but minor improvements compliance. In September 1991, OCR and the

62 45 C.F.R. §80.3(b)(1)(ii). 63 45 C.ER. §80.309(1)(v). 64 45 CFR. §80.3(b)(2). 65 Caroline J. Chang, Regional Manager, Region 1, U.S. Department of Health and Human Services, Office for Civil Rights, "Letter of Findings Re: Complaint No. 01-86-3004," to Rhode E. Perry, Executive Director, Health Services Incorporated, Woonsocket, RI, Sept. 26, 1986, p. 1. 66 Henry Der, Chinese for Affirmative Action, as reported in Asian American Health Forum,Asian American Health Forum National Agenda for Asian and Pacific Islander Health (1988). 67 Chang, "Letter of Findings Re: Complaint No. 01-86-3004," and accompanying compliance agreement. 'lite agreement includes the following specific provisions: "When scheduling appointment for patients of limited English proficiency, HSI appointment personnel will identify the language spoken by the patient and explain that 1151 will arrange for an interpreter. "[Institute] cultural awareness programs for staff who may be unfamiliar with the customs, attitudes and traditions of LEP populations in 1151's service areas." Ibid., p. 1-2.

166 1 7 s populations,72 the Fed- hospital entered a compliance agreementdetail- many AsiaiA American include ing a series of steps thatwould ensare nondis- eral Government generally does not recruitment pro- criminatory services to LEP persons. Asian Americans in its minority Although there are many AsianAmerican grams for health careprofessionals, because it tobe"over- doctors and other healthprofessionals in this deemsAsianAmericans country, it is said that there are"persistent prob- represented."73 By not taking account of the popula- lems such as cultural and linguistic gapsbetween heterogeneity of the Asian American health care service providers and patients,which hinder the tion, this policy fails to address the provision of health services to[Asian Ameri- needs of many AsianAmericans.74 cans], specifically SoutheastAsian immigrants and refugees."6 The ethnicbackgrounds and Data Needs languages spoken by most AsianAmerican phy- An understanding of the health statusof the sicians are not those of theimmigrant popula- Asian American population isdependent on de- tions needingservices." Furthermore, Asian tailed data on the health andhealth care partici- American physicians areunderrepresented in pation of Asian Americans aswell as general the Western United States,where the bulk of background data on their demographicand so- the Asian immigrantpopulationisconcen- cioeconomic characteristics. Such data areindis- trated.71 Despite the need for culturally and lin- pensable in assessing the health careneeds of guistically capable health professionalsto serve

Complaint No. 01-89-3040," to Donald L.McDowell, President, Maine Medical Center, 68 Caroline J. Chang, "Letter of Findings Re: following specific provisions: Portland, ME, Sept. 9, 1991, and accompanyingcompliance agreement. The agreement includes the coordinator of the Hospital's Title VI poli- "The I lospital will immediately name aTide VI Coordinator who will act as the overall interpreters...and as liaison with community groups cies and practices including. . .theup-dating of the interpreter lists, obtaining and agencies in matters relating to...equalservice to LEP persons. opportunity. In order to alert its staff to a "The Hospital will identify and record theprimary language of its patients at the earliest interpreter, a distinctive mark or no- patient's primary language and the need forassigning a bilingual worker or the need to use an during treatment. tation shall be made on the patient's history orother record that accompanies him or her reading as follows: 'Maine Medical Cen- "The Hospital will post and maintain a sign(or signs) in English, Khmer and Vietnamese Patients do not have to provioe their own inter- ter will provide interpreting services tonon-English speaking patients and families. Ibid., pp. 5-7. preters. Interpreter services are alsoavailable for the deaf. Please ask for assistance." Leung, and Ninez Ponce, "The Development ofAsian/Pacific Islander Health Pro- 69 Malay Forman, Michael Chunchi Lu, Mingyew November 1990, pp. 1-2. fecsionals: The Myth of 'Overrepresentation,"Asian American Health Forum Policy Paper, 70 Ibid, p. 4. 71 Ibid. tvxd. The Department of Health and HumanServices recently listed the following as 72 The Federal Government does recognize this Americans: "Increase to at least 50 percent the propor0nof one of its goals for improvingthe health of Asian and Pacific Islander for racial and ethnic counties that have estabtished culturally andlinguistically appropriate community health promotion programs and Dis- minority populations." U.S. Department of Healthand liuman Services,Healthy People 2000: National Health Promotion 601 (hereafter cited asHealthy People 2000). ease Prevention Objectives(Washington, DC: Government Printing Office, 1991), p. staff of the National Heart, Lung, and BloodInstitute's minority biomedical research, 73 For instance, in August 1989 the guidance for underrepresented in biomedical tesearch training, and career development programsdefined eligible minorities as those who are underrepresented. National relative to their proportion in thc lopulation andexplicitly finds that Asian/Pacific Islanders are not Heart, Lung, and Blood Institute Guidance forMinority Activities, Aug. 22, 1989. difficult for foreign-trained physicians to becomecertified to practice medicine in the 74 As noted in chap. 6, policies that make it skills and cultural background to United States may also have the effect ofrestricting the supply of physiciaus with the language treat Asian America,,nmigrants effectively.

167 1%4 Asian Americans and developing policies to Department of Health and Human Servicesre- meet these needs. They need to be collected port, Healthy People 2000, lists the following separately for each major Asian Americaneth- goal among its objectivesfor improving the nic group and broken down by immigration sta- health status of Asians and PacificIslanders: tus, region of residence, and socioeconomic "Develop and implementa national process to status. Without such data, critical needs of Asian identify significantgaps in the nation's disease Americans will go officially undocumented and prevention and health promotiondata, including politically unrecognimd, and hence unmet. data for racial and ethnic minorities, peoplewith Yet most States and Federal health agencies low incomes and people with disabilities,,and es- make only minimal efforts to collecthealth-re- tablish mechanisms to meet these needs." 6 lated data on Asian Americans. Vitalstatistics records collect critical information forassessing Access to the Judicial the health status ofour population but generally System do not collect separate informationon different Asian groups. The State of California'svital sta- Many Asian Americans, especially thosewho tistics has check-off boxes for 11 Asiangroups are immigrants or limited in Fnglish proficiency, and encodes informationon 14 groups, but the do not have equalaccess to the American judi- National Center for Health Statistics(NCHS), cial system. This section first highlightsthe which provides model birth anddeath certifi- shortage of trained interpretersas a critical bar- cates for the Nation, has put outa form with no rier to access toour courts for limited-English- check-off boxes. Therace question asks for the proficientAsianAmericansand examines individual's race to be written in and inparen- Federal and State laws and regulationspertain- theses specifies "American Indian, Black,White, ing to the provision ofcourtroom interpreters. It etc." It is clear that sucha form will net elicit ac- then notes that cultural barriers anddiscrimina- curateinformationaboutindividualAsian tory court treatment may also impede Asian American groups. Yet the NCHS modelform is Americans' access to the court. Finally,the sec- used by several States with large concentrations tion considers the underrepresentationot Asian of Asian Americans, namely, NewYork, Texas, Americans in the legal profession, whichmay and Illinois. Many other national levelhealth also affect Asian Americans'access to legal rep- data sets collect information onlyon Asian resentation and fair treatment in thecourts. Americans in aggregate. Furthermore,because such data sets are usually designedto be repre- Court Interpreters sentative of the population, their AsianAmeri- One major obstacle to justice facedby Asian can samples are almost always too smallto Americans is the unavailability of qualitycourt provide meaningful data,even when Asian interpreters to facilitate understandingfor those Americans can be disaggregated into 75 individual Asian Americans whoare not fluent in En- groups. glish.77 Incidentswhere litigants' rights have The Federal Government has begunto recog- been denied due toan insufficient understand- nize the data needs of Asian Americans.A 1991 ing of English have been reportedin the media

75 Nina Police, "Public Health Statistics for Asian and Pacific Islander Americans" (San Francisco,CA: Asian American Health Forum, April 1989). 76 Healthy Peopk WOO, p. 602. 77 The need for professional, qualified court interpreters has been documented and welldemonstrated, It has been reported that there are 43,000 annual requests in Feckral court for interpreters in 60 languages. During 1988 the Cook County,IL, State court system

168 s task forces established to When interpreters areunavailable, linguistic and by several State from using the study minorities and theirexperiences in the minorities are often deterred courts. Even whenthese people do use the courtsystems.78 misinformed, intimidated, The following is anexample ot a situation courts, they are often who spoke very demeaned, and sometimesdenied important where a Vietnamese immigrant not avail- stand trial for a crime rights. Often when interpreters are little English was forced to members, court with and was unable to able, defendants rely on family he had not been charged officers to lawyer or the court personnel, and even law enforcement communicate w:th either his them.° Such persons, although because he did not have access to aninterpreter: translate for 1985, Nguyen Hen Van, a possibly fluent in thedefendant's primary lan- In Florida in familiarity, with legal Vietnamese defendant, whohad been charged guage, lack the necessary trial for 2 days as the terminology and pidelinesforinterpreting with theft, was placed on Also, conflicts of interest defendant in a murder trialbecause the jail staff court proceedings. family member interpretsfor a simply brought the wrong manfrom the cell, and Iry arise when a witness.82 no one elsein the court processnoticed the defendant or other error. Twotestifying witnesses in the murder trial even identified Mr.Nguyen as the mur- Federal Regulation derer. The actual murderdefendant was Nguyen Federal regulation of theavailability and Ngoc Tieu, also Vietnamese,who was sitting in quality of court interpreters hasbeen scarce. In the county jail three blocks away.Even Mr. Tieu 1970 the U.S. Court ofAppeals for the Second Nguyen's lawyer, who hadinterviewed him for Circuit upheld the decision of adistrict court to conviction because the lack of an hour only2 weeks before thetrial did not re- reverse a murder alize that the wrong man was ontrial, even when an interpreterfor the defendant did not meet Mr. Hen Van Nguyentried to protest saying, constitutional requirements offairness.83 The "Not me, not me."'Y case was of criticalimportance in setting precedent because it held thatsince most of the trial

parties sought interpreters 250 times perday. processed 40,000 requests for interpreters,and in the New York State courts, ("Libertad and Justicia For All," Time,May 29, 1989.) System Hurts Asian-Americans, PanelSays," Philadelphia In- 78 See, e.g., "Libertad and Justiciafor All"; "Disorganized Interpreter York Times, Nov. 3, 1985; see alsoNew York Judicial quim., Nov. 1, 1989, P. 9-B; "Race andBlind Justice Mixup in Court," New Minorities, vol. 4 (1991) (hereafter cited asNew York Commission on Minorities, Report ofthe New York Judicial Commission on Interim Report (1990); Washiagton StateMinority and Jus- Report); New Jersey Supreme CourtTask Force on Minority Concerns, 'Task Force on Racial/Ethnic Issues inthe Courts, Final tice Task Force, Interim Report(March 1989); Mictigan Supreme Court Report (December 1989). the end Defendant Undergoes 2 Days of MurderTrial," Seattle Times, Oct. 26, 1985. Near 79 "Mixup in Court"; "Wrong Vietnamese defendant and a mistrial was declared. of the trial, someone in the courtroomdid recognize Mr. Nguyen as the wrong Force, Interim Report, 1989, p. 3 (hereaftercited as Washington State Report). 80 Washington State Minority and Justice Task Translation Services, Equal Access to the Courtsfor Linguistic Minorities 81 New Jersey Supreme.'-mn Task Force on Interpreter and New York Report, p. 217. (May 22, 1985), pp. 102-03, andWashington State Rep' t, pp. 2-3, as cited in require attorneys "to explain a matter tothe extent reason- 82 The American Bar Association'sModel Rules of Profeasional Conduct representation." (American Bar Association,"Model ably necessary to permit the client to makeinformed decisions regarding the accompanying comment is silent on whetherthis rule Rules of Professional Conduct," 1989,Rule 1.4, "Communication.") The obliges attorneys to use interpreters whentheir clients are limited English proficient. the ef- New York, 434 F.2d 386 (1970). The courtof appeals granted a writ of habeas corpus, 83 United States ex rel Negron v, State of of guilt or innocence. fect of which is to release the defendantfrom imprisonment without a determination

181 169 must have been incomprehensible to the defen- ity to -.Insult with his lawyerwith a reasonable dant, Mr. Negron," his trial "lacked the basic degree of rational understanding."91The court and fundamental fairness requiredby the due also rejected theargument that the defendant process clauseot 85 the Fourteenth Amend- had waived his right toan interpreter, for it was ment. The court relied on two basictenets of clear that the defendantwas not so aware of his law to reach its decision. First, the sixth amend- rights that he should be madeto assert them on ment of the United States Constitution86 guar- his own, particularlynwhen hislanguage disability antees the right to be confronted withadverse was plainly obvious. witnesses87and includes the right to cross-exam- In 1978, just 8 years after theNegron case ine those witnesses. Theserequirements are "es- Congress enacted the Court 9s sential and fundamental" Interpreters Act. to the achievement of The statute sets forth thatthe Director of the a fairtria1.88 The defendant's confrontation Administrative Office of UnitedStates Courts rights were clearly violated when he could not shall prescribe qualifications foicourt interpret- understand the witnessesnor partake in his de- ers and shall institute a program that will certify fense.89 Second, Iclonsiderations of fairness, qualified interpreters." TheDirector is also the integrity of the fact-finding re- process, and the quired to maintaina list of all cer:ified court in- potency of our adversary system of justice forbid terpretera and other qualified interpretersand that the state shouldprosecute a defendant who to establish a reasonable schedule of is not present at his fees. own trial, unless by his con- Under the statute, each districtcourt is also di- duct he waives his right."90 To givemeaning to rected to maintain a list of certified this requirement, the interpketers court reasoned that the which shall be made availableupon request. defendant must possess "sufficient present abil- The presiding judge96 has discretionto use an

84 Idat 387. The court stated that the defendant, at the time of trial a 23-year-old indigent, witha sixth grade education iL Puerto Rico, neither spoke nor understood any English. His court-appointed lawyer spokeo Spanish. Negron, the defendant, was unable to participate in his defense, except for "spottyinstances when the proceedings were conducted in Spanish, or Negron's wordswere translated into English, or dr.: English of the lawyer, the trial judge, and the witnesses againsthim were translated into Spanish." at 388, Id. 85 Id.at 389. The Bill of Rights was originally intended as a limitation of the power of the Federal Government, Subsequently, most of those guarantees have been incorporated into the 14th amendment, so that theynow also serve as limitations on State governmental authority. 86 "In all criminal proseotions, the accusedshall enjoy the right to a speedy and public trial, by an impartial jury of the State anddis- trict wherein the crime shall have been committed, which district shall have been previouslyascertained by law, and to be informed of the nature and cause of accusation; to be confronted with the witnesses against him; to have coT..pulsoryprocess for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."U.S. Const., amend. VI. 87 434 F2d at 389. This also a 'plies to the States through the 14th amendment. Pointerv, Texas, 380 U.S. 400 (1965), 88 434 F.2d at 389 (citing Pointerv. Texas, 380 U.S. 400, 405 (1965)). 89 Id. 90 Id.(citations omitted). 91 Id.(citing Dusky v. United States, 362 U.S.402 (1962) (per curiarn)). 92 Id.at 390. 93 28 U.S.C. §1827 (1988). 94 Id.at §1827(a)-(b). 95 Id.at §1827(c). 96 The statute uses the term "judicial offiar"rather than judge to indicate applicability to "any judge of a United States districtcourt including a bankruptcy judge,a United States magistrate, and in the case of grand jury proceedings conducted under theauspices of

170 of defendantf, who claim interpreter's services in judicialproceedings ini- to strike the challenges trial, either be- tiated by the United Stateswhether or not they that they did not receive a fair given an interpreter or be- are requested by anyof theparties.° The judge cause they were not who was present Plas not is to make the decision based onwhether the cause the interpreter witness in question speaks of sufficientquality.wl The two cases discussed party or testifying but they only or primarily a languageother than English, below do not involve Asian Americans, protection "so as to inhibit the party'scomprehension of clearly affect the prospect of legal the proceedings or communicationwith counsel under the Court Interpreters Act. or [the judge], or so asto inhibit the witness' In Hrubec v. UnitedStates,w2 the U.S. District comprehension of questions and thepresenta- Court for the Eastern District ofNew York em- defendant's pri- tion of suchtestimony."98 phasized that the fact that the There are two problems with theFederal stat- mary language isother than English does not its implementation and the create upon the judge aduty to inquire about ute, one regarding interpreter.103 The court held other resulting from one ofits provisions. In the need for an defendant's lan- terms of implementation, asof 1989 only 308 that for such a duty to arise, the rigorous certification guage difficulties must, asstated in the statute, people had passed the of the pro- standards,99 and the certification program tests inhibit the party's comprehension counsel or the only inSpanish,100 leaving the identification of ceedinias4 or communication with Asian-language interpreters totallyuntouched. judge.' turn to local In Valladares v.UnitedStates,105 the U.S. As a result, individual district courts Circuit also commercial vendors to providefreelance inter- Court of Appeals for the Eleventh abused its dis- preters for Asian languages.Since these freel- found that the trial court had not the adequacy of ance interpreters arenecessarily uncertified due cretion when it did not question certification program for the defendant's interpreter. The courtreiterated to the absence of a committed "to Asian languages, the statutoryrequirement of that the use of an interpreter is judge,"106 stress- quality control remains unenforced. the sound discretion of the trial number of fac- The second failing of the statute maybe its ing that the decision hinges on a the judge, including "the provision delegating responsibility tothe trial tors to be balanced by and the com- judge. Recent challenges under theCourt Inter- defendant's knowledge of English testimony...and preters Act illustrate thatplacing discretion with plexity of the proceedings and ofcriminal the judge has given appellate courtsthe freedom theeconomicaladministration

the United States attorney, a Unitui Statesattorney." Id. at §18270). 97 28 U.S.C. §1827(d) (1988). 48 Id. at §1827(d)(1). 99 "Libertad and Justicia for All." 100 Ibid. Cir. 1989); Hrubec v. U.S., 734 F. Supp. 6e )0) 101 See Valladares v. U.S., 871 F.2d 1564 (11th 102 Id. 103 Id. at 67, magistrate's fimiing that the defendant had asufficient command of the English lan- 104 Id. In the lirubee case, the court relied on the indication that he needed an inter- guage to understand proceedings andconsult with counsel. The court stated that there was no preter and for this ivason, found no constitutional orstatutoty violation. Li. 105 871 F.2d 1564. 106 Id. at 156t).

1 S 3 171 law."167 This reasoning seems to contradict the permitted to appointone interpmer, to be se- Negron mandate, which was codified by the lected jointly by the city judgeand the district at- Court Interpreters Act.1°8 Negron would seem to torney. The statute also permits thetemporary imply that the right to confrontation and the appointment of interpreters. Nevertheless,few fundamental fairness of a trial are constitutional interpreters are available. Many witnesseswho matters that cannot be diluted merely because of testified before the New YorkState Judicial the simplicity of the proceedings. If a party does Commission on Minorities (hereafterreferred not have the fluency to understand his trial fully, to as the New York Commission) describeda no matter how simple the trial, the judge should number of inadequacies of the existingsystem, use the services of an interpreter, pursuant to including the specific need forAsian-language the Court Interpreters Act. Similarly,et,onomic interpreters.111 Inparticular, a witness in Albany administration should not be balancedagainst a "attested to the need for certain Asianlanguage fundamental right such as the right to be mean- interpreters in the state's capital."112 Spanishis ingfully present at one's owntrial.109 the only lanrage for which therearc full-time interpreters. 13 Here again, the interpretation State Regulation needs of Asian Americansare totally unserved. Because the Court Interpreters Act applies A New Jersey task force concluded thatlin- only in Federal court, it isup t(the individual guistic minorities feel that theyare foreclosed States to implement requirementsregarding the from the court system dueto a "lack of inter- use of interpreters in the State courts. A number preter skills, including familiarity with legalter- of States have recognized the need forcourt in- minology; the absence of translated formsand terpreters and, through specially assigned task documents; the lack of defined qualificationfor forces, have recommended comprehensiveplans interpreters; and the absence of1 guidelinesfor to rectify the problem. However, these plansare interpreting court proceedings." 1' A Washing- just being initiated and will probablytake years ton State study came to the same conclusions to enact and implement. For example, inNew and recommended that interpreter qualifications York, interpretersare provided for by statute, should be prescribed by the highestcourt and but like the Federal statute, discretionis left to that the legislature should establisha State he local court administrators.110Each city is

107 Id. (citing United States v. Coronel-Quitane, 752F.2d 1284, 1291 (8th Cir. 1985)). 108 28 U.S.C. §1827 (1988). 109 See yJnited States e rd Negron v. New York, 434 F.2d 386, 389 (2d Cir. 1970) ("[I]t is equallyimperative that every criminal defen- dantif the right to be present is to have meaningpossess 'sufficient present ability to consultwith his lawyer with a reasonable degree of rational understanding.'"). 110 New York Report, pp. 204-05, citing N.Y. Ju.i.Law H386-87 (McKinney 1988). 111 Id. at 205. 112 Id. (citing Albany Ilearings, ;it 35-51 (testimonyof Walter Kiang)). 113 Id. at 205. 114 New Jecxy Supreme Court Task Firce on Interpreter and Translation Services, Equal Accessto the Courts for Linguistic Minorities (May 22, 1985), pp. 102-03, as cited in New YorkReport. p. 217, nn. 49.50.

172 1 s Board of Court Interpreting and Legal Translat- ter or an expectation thereof would discourage ing to ensure a uniform certification process."5 Asian Americans from assertive use of the judicial system. Asian Americans, along with other Other Barriers minorities, are sometimes the victims of racial Asian Americans' equal access to justice is stereotyp'ng, as testified by one Asian American further impeded by cultural barriers and nega- witness to the New York Commission: tive experiences in the courts.116 For example, certain cultural barriers, in addition to language Mhere is.. .a real insensitivity to all minorities. ..be it barriers, may discourage minorities from using Asian or other, because when you aye an Asian de- the courts. The New York Commission states fendant.. .Ijudgesj assume that they're part of a gang; that "largely due to the influence of Buddhist, and that kind of guilty-until-proven-innocent applies to Asian defendants who are charged with robbery or Taoist, or Confucian doctrines, 'in Asian society whatever because the Ndia or everyone else assumes the usc of law as a method for settling disputes is they're part of a gang. regarded as something to be avoided.' Thus, there is a preference among some first-genera- One litigator told the New York Commission tion Chinese-Americans, for example, to settle that he had heard judges say to Asian litigants legal disputes through informal mediation and that they "do not have a Chinaman's chance."121 community groups.""' The experiences of minorities in courts today Representation of Asian are generally regarded as quite negative. Minori- Americans in the Legal ties are often uninformed about courtroom procedures, such as where one should to appear Profession for a hcaring. Additionally, because most court Overall minority representation in the legal personnel, including judges, court officers, ste- profession has remained small and, according to nographers, law assistants, district attorneys and the report of the New York State Judicial Com- their staffs,as well as private counsel, are mission on Minorities, "lags far behind the rep- white,118 minority litigants have the perception resentationofminorities in thegeneral that the environment is unfriendly, and some- population."122 Accordingto thL i980 U.S. Cen- times hostile, to them.119 Asian Americans are sus, minorities were 20.3 percent of the popula no exception, and a generally negative encoun- tion, but only 5.5 percent of the 501,834 lav yers in the United States. Representation of Asian

115 State of Washington, Office of the Administrator for the Courts, Initial Report and Recommendations of die Court Interpreto fask Force (1986), pp. 15-18, as civ:d in New York Aeport, pp. 217-18. 116 Asian Amencans have encountered discriminatory treatment in American courts since the 1850s. See,e.g., People v. Hall, 4 Cal. 309 (1854); Terrace v. Thompson, 261 "S. 197 (1923). As noted in chap. 1, courts restricted and often completely denied Asians' rights of land ownership, earning a living in the trade of one's choice, and alienation and inheritability of land. Many decisions revealing the courts' suFpicion of anti animosity toward Asian Americans were pasled down, even from the Supreme Court through the 1940s, when the Court upheld the decision to detp;ti Japanese Americans in internmentcamps during World War 11. See Korematsu v. United States, 323 U.S. 214 (1944). The wartime internment of Japanese Americans is discussed in chap. 1. 117 Kahng, "Asian Americans and Litigation," Equal Opportunity Forum, vol. 2 (March 1977),as cited in N, v York Report, p. 96. 118 New York Report, p. 45. 119 Ibid., p. 45. 120 Ibid, p. 55, n. 167. 121 Ibid., p. 58. 127 Ibid., p. 23.

1 S 5 173 Americans is even more sparse: Asian Ameri- agreed with the statement.128 Large percentages cans were only 0.7 percent of the lawyers nation- of Asian Americans also agreed that minority wide, although they constituted 2.9 percent of lawyers have fewer opportunities for advance- the U.S. population.123 Figures in New York ment or choice assignments, and are less likely State yield the same percentage; while the state- than white lawyers to make partner.'" wide total number of lawyers is 62,032, only 433 are Asian American (0.7percent).124 The Plight of Battered Asian In New York, representation of Asian Ameri- American Women can lawyers in law firms has increased tothe This section examines the plight of Asian point where it now exceeds the representation American women who are battered by their hus- of Asian Americans in the total attorney popula- bands and discusses barriers to their access to tion;125 however, a 1989 survey of 49 New York social services, police protection, and the judicial law firms reflects that Asian Americans still rep- system Finally, it addresses the ill effects of the resent only 2.1 percent of firmlawyers.126 Of Immigration Marriage Fraud Amendments on these lawyers, only 0.8 percent or 31 Asian battered Asian American immigrant women. Americans were partners.1`7 With regard to attorneys' experiences in law firms and other legal organizations, the New Access to Social Services York Commission's report reflects that Asian According to shelter providers for battered Americans, like most minorities, have felt some women and advocates for Asian American degree of difficulty or animosity within the pro- women's rights,'" the problem of battered fession. In New York City, 17.4 percent of Asian women is neither properly recognized nor well American litigators agreed with the statement understood by law enforcement agencies, fund- that "minority lawyers have fewer opportunities ing agencies, and the general public. Shelters to participate in continuing educatioa ir train- and agencies serving Asian American battered ing opportunities," while no white litigators women are few to begin with, and the ones ';erv-

123 U.S. Bureau of the Census,1980 Censu.r of the Populatien, Detailed Occupation and Years of iichool Completed by Age, for Civilian Labor Force by Set; Race and Spanish Origin: 1980 (Supplementary ReportPC89-S1-8), p. 6, as cited ;,n New York ker,ort, p. 23. 124 New York Report, p. 25 (citing 1980 Census of Population, Equal Emplo) :tient Opportunity i3rofile, prepared by the New York State Data Center) (on file with the New York Commission). Other minorities are also underrepmented in New York's legal profession:minorities represented 25 percent of the New York State's population, yet 96 percent of the state's lawyers were white. Ibid., p. 23. In New York County, where the minority population is 51 percent, the minority lawyer population is only 6 percent, with Asian Americans at only 1.1 percent (195 attorneys). Ibid. 125 New York Repert, p. 27. 126 !bid, citing Jensen, "Minorities Didn't Share in Firm Growth,"National Law Journal,Feb. 19, 1990, p, 1, 127 Ibid. 128 Ibid., p. 44. Thirty-one percent of black litigators and 25 percent of I Iispanic litigators agited with the statement. 129 58.2 and 59.45 percent, respectively. Ibid. Agreement of Asian American lawyers responding to the survey was generally lower than agreement among black and 1 ispanie lawyers; however, Asian American agreement is still significantl l. higher than that of white attorneys responding to tun: survey. 130 Madge Kho, Equal Rights Mvoeates, interview, Feb. 22, 1990, Oakland, CA (hereafter cited as Kho interview); Patricia Eng, New York Asian Women's Center, "Problems faced by Battered Asian Women,' Statement dt the U.S. Commission on Civil Rights, Roundtable Conference on Asian American Civil Ri-hts Issues, New York, NY, Junc 23, 1989 (hereafter cited as Eng Statement); Nolda Rimonte, I.os Angeles Center for Pacific Asian Famity, telephone interview, Dec. 14, 1989 (heredter cited as Rimonte interview); Debbie Lee, Family Violence Project of San Francisco. telephone interview, June 15, 1990 (heleafter cited as Lee interview).

174 ing Asian American women with limitedEnglish than is publiclyknown.135 These sources cited proficiency (LEP) are fewer. Some battered several reasons for underreporting by battered women's shelters do not accept women who do Asian American women. Many Asian Americans not speakEnglish."' Advocates contend that in consider marital problems highly private matters some cases sheltersrequire LEP women to pay that ought to remain within families. Therefore, exorbitant per diemrates.132 Furthermore, the for an Asian American woman, particularly an shelters serving Asian American women arc dis- LEP immigrant, to confront the issue of domes- proportionately underfundc,i.ASa result, many tic violence and bring it into the public arenais battered Asian American women are discour- "often synonymous with condemning herself to aged from using existing shelters, and thosewho isolation andostracization."136 The dominant do do not always receive adequate services. cultural norm for many Asian American women Several :actors appear to contribute to the is to accpt theirfate.137 Additional reasons underservingofbatteredAsianAmerican cited for why Asian American women are partic- women. The firstfactor isthat incidents of ularly unlikely to report spouse abuse are:1) spouse battering are notroutinely recorded and the behavioral norm for most Asian American tabulated by race/ethnicity, which makesit women does not includedivorce as a viable op- nearly impossible either to assess therelative tion, although divorce is becoming more com- frequency of incidents by race/ethnicity or to mon and gaininglegitimacy; end 2) LEP Asian monitor trends over time. Lack of supporting American women are hot adequately informed statistics in turn make3 it difficuft to justify es- about the means of recourse they have against tablishing new shelters or requesting additionah spouse battering, services they may expectfrom funds.13' Established shelters on the 'Vest Coast shelters and public service agencies, and the pos- and in New York serve a large numberof cli- sible benefits of reporting incidents to proper ents, however: the New YorkAsian Women's authorities. Shelter, which operates a multilingualhotline, The third factor has to do with fund allocation received more than 2,000 calls and helped about formulas that do not take into account the 250 ballered women in1990.134 higher cost of servicing LEP Asian American cli- A second contributing factor is the widely ac- ents. According to providers catering toAsian knowiedged problem of underreporting. The American clients, the per-client service cost is sources contacted for this reportall agreed that considerably higher for LEP clients than tor En- incidents of wife battering are underreported glish-speaking clients because itis frequently and that the phenomenon is far more prevalent necessary to provide interpretersand to spend

131 Eng Statement, p. 5. 132 Ibid., p. 6. 133 Rirnonte interview. Aug. 25, 1991. 134 Marvinellowe, "Battered Alien Spouses Find a Way To Escape an Immigration Trap,"New York Times, by, but there is one study that shows the 135 Eng Statement, Rimonte interview, Lee interview. Pertinent statistics arc hard to cr4-11, prevalence of wife battering among Asian Americans. The statistics ccmpiled by 'he '. for Asian American Family in Los An- geles, CA, reveal that of the 1,429 cases reported to the 'miter in 1982, one-third inv 4%4- tSoutheast Asian families. 1. Smith, 'Viet Women In aNewWorld,"LosAngeles Times,May 30, 1983 (cited in J.Cnu,"Southeast Asian Women: In Transition," inIn Amer. ica andMNeed: Immigrant, Refugee, and Entrart Women,ed. Abby Spero (Washington, DC: American Association of Community and Junior Colleges, 1985), p. 44). 136 Eng Statement, p. 3. 137 e'u, "Southeast Asian Women," p. 44; Rimonte interview.

17 175 time explaining procedures and other basics. feel certain of having to face theconsequences Yet, the fa.mulas most commonly used in fund when he is released.14) allocation are dividing available funds equally Battered Asian Americanwomen consider among service providers or distributingn funds the judicial system equally ineffective andfrus- based on the number of clients served.1" Until trating. Court orders for the abuser tostay away funding agencies take into consideration differ- from the victim are rarely enforced. Theyare ent per-client costs, there will be an economic viewed as hardly "worth thepaper they are writ- disincentive to serving LEP Asian American ten on....There are numerous stories ofwomen women. Service providers will be forced either clutching these orders as theyare beaten or to sacrifice the quality of service to LEP Asian even murdered."141 American clients or to refuse toserie them. Furthermore, obtaining orders of protection is often a long and complicatedprocess. In New Access to Police Protection and York City_ for instance, an entire daymust be the Judicial System spent in courti and even then the order is not ai- Many battered Asian Americanwomen, ac- ways granted. 42 For those battered women who cordini to shelter operators who work with are limited in their English proficiency, unfamil- them,1' 9 believethat it is futile and even harmful iar with court procedures, and compelledto to involve law enforcement officials in domestic work every day out of financial necessity, it is al- violence cases. One reason for this feeling is that most unthinkable to go to the courthouse and police departments oftentimes fail tocarry out a spend an entire day trying to obtainan order of thorough investigation of the situation by talking protection. to both the husband and the wife. As noted in Vacate or exclusionary orders which require chapter 3, it is rare for the police to bring bilin- the flatterer to vacate the place of residence, gual police officers or interpreters to thescene. could allow battered women to remain in their Thus, when visiting the site of reported domestic homes and prevent displacementor homeless- violence, the police often talk only to theperso: ness for those battered women who ha--2 no who speaks English. This English-speakfngper- place to go. However, vacate ordersare rarely is- son is usually the husband, who often succeeds sued. Judges are said to be "reluctant to ordera in minimizing the seriousness of the situation. man out of his castle and they certainly are even A second reason is that bt. tteredwomen are more reluctant to do so for Asian maks."143 It is vulnerable and feel totally unprotected by the consideredv .rtuallyimpossibleforbattered police against retaliadon from their abusers. Asian American women to obtain ordersof ex- Many battered womenare convinced that re- elusion .144 porting abuse to the police will onlyserve to fur- The 1989 sentencing in New York ofan im- ther anger the abuser andencourage him to migrant Chinese man to 5years on probation for inflict even more abuse when the policeleave. the slaying of his wife'4 nt a disheartening sig- Furthermore, even if the aber is arrested, they nal to battered Asian Americanwomen.

<138 Rimonte 139 Irig Statement; Rimonte interview; Lee interview. 140 Eng Statement, p. 6. 141 Eng Statement, p. 7. 142 Ibid, 143 Ibid. 144 Ibid., p. 8.

176 This case146 involved a Chinese man,Dong justice system will not protectAsian American Lu Chen, 50, who immigratedfrom China to women [against abuse], and this message Asian Amer- New York in 1986 with his wife,30, and ihree ic rnceived loudly and clearly in the children. He worked as a dishwasherin Mary- icancommunity."148 A,..er the sentencing, many and land until he moved to NewYork 2 muntbs clients at the shelter showed their outrage going through the prior to the incident to joinhis wife, who was said they would not consider working part time in a garmentfactory in New court system becauseit would not protect them noted that even under York. On September 7, 1987, hebludgeoned his at all. This spokesperson background, jus- 99-pound wife to death by strikingher eight the guise of respccting cultural under a double timcs with a hammer after sheconfessed to hav- tice should not be administered ing an affair. At the bench trial,the defense ex- standard!" Efforts are being made in some areasof the pert witness arguedthat Mr. Chen was under battered Asian American extreme emotional strcssaggravated by his isola- country to increase in China, mar- women's information about anddecrease their tion from family and community: For instance, the riages are sacred, and husbands arcexpected to distrust of the judicial process. become extremely angry on hearingof their city of Los Angeles, alongwith nonp-ofit agen- the Asian Ameri- wives' infidelity. Ordinarily,however, friends cies and other groups serving in Los Angeles, began raising and family exert a moderatinginfluence on hus- can community spring of 1990 to produce a video- bands, and violence is avoided.Isolated from money in the going through friends and community in the newsetting, the tape in Korean showing a woman defense argued, Mr. Chen had no oneto keep the entire process ofseeking protection from goals of the project hini from translating his angerinto violence. her abusive husband. The victims about why prosecution Noting that "[The] court cannotignore the very are to "educate testimony [of the expert vit- of domestic violence isoften necessary; help cogent powerful called to testify; [and] nessr and that "Chen took allhis Chinese cul- prepare victims who are counseliNpro- ture with . tothe United States except the explain the potential benefits of community which would moderatehis behav- grams for batterers,victims andchildren."1 ior,"147 the judge acquitted Chen of second-degree murder chargesand instead convicted him Immigration Marriage Fraud of second-degree manslaughter. Amendments A spokesperson of a battered womenshelter In 1986 Congress enactedthe Immigration on the EastCoast testified that "th,-.; message. . MarriageFraudAmendments (IMFA),151 .inherent in this sentencing is thatthe criminal amending the Immigration andNationality Act

Wife-Killer to Probation: Pincus Aceepts Immigrant'sNovel Defense,"Manhattan Law- 145 Shaun Assael, "judge Defends Sentem,ag yer, Apr. 4, 1989, pp. 4, 17. "Wife-Kilier May Get Probation," ManhattanLaAyer, Mar, 14, 1989, pp. 1, 11, 146 Accounts of this case are drawn from Shaun Assad, and Assael, "Judge Defends Sentencing." 147 Assad, "Probation," p. 11. 148 Eng Statement, p. 8. 149 Ibid, p. 9. reception to publicize and raise money fur the videoheld at the KSCI-TV 150 Domestic Violence Video Project brochure obtained at a Studios in West Los Angeles, CA, Feb. 2s, 1990. Pub. L. No, 99639, 1(10 Stat. 3537 (1986)(codified at 8 U.S.C. §1186a). Im- 151 Immigration Marriage Fraud Amendments of 1986, Regulations, 53 Fed. Reg. 3011 plementing regulations for these amendments werepublished as Marriage Fraud Amendments

S 9 177 of 1982152 to cope with the allegedlylarge and have been previoudy. Toremove the condi- growing number of immigrants whowere using tional status and obtain permanent residency, marriage to U.S. citizens as a ploy to obtain per- the c..ple must file a written petition, FormI- manent residency.153 751, with the Immigration andNaturalization Under the 1986 amendments, foreignspouses Service (INS) and appear fora personal inter- of U.S. citizens who enter the UnitedStates are view with an INS official within 90 days ofthe granted .2-year "conditional" residency,154in- expiratien of the 2-year period.155 Thewritten stead of permanent residencyas they would petition must be accompanied by evidencethat

(1988) (codified at 8 C.F.R. §§1,204.205, 211-12,214, 216, 223, 233a, 235, 242, 245). 152 8 U.S.C. §1101-1557 (1982). 153 In supporting this Iegislation, the U.S. Department of Justice, the parent agency of the Immigration and NaturalizationService (INS), noted that: "present protections against marriage fraud arc totally inadequate. Once permanent status has beengranted, it is almost impossible to revoke, rescind, deport, or even locate the alien or thc original spouse. By postponing the privilege ofper- manent resident status until two years after the alien's obtainingthe status of lawful admission for permanent residence, the bill provides a balanced approach... .(11t strikesat the fraudulent marriage by the simple passage of time:it is difficult to sustain the appearance of a bona fide marriage over a long period....it still...providesfor family unification.'' John H. Bolton, Assistant Attor- ney General, U.S. Department of Justice, letter to Rcp. Peter W. Rodino, Jr.,Chairman, Committee on the Judiciary, Housc of Representatives, July 31, 1986, rcprinted in U.S. Code Congressionaland Administrative News (1986) no. 6,p. 5980. Similar reasoning is also found in the legislative history of the amendments: Wiens who either cannot otherwise qualifyfor immigration to the United States or who, though qualified,are not willing to wait until an immigrant visa becomes available, frequently find it expedient to engage in a faudulent marriage in order to sidc-stcp the immigration law....[A]pproximately30% of all petitions for immigrants visas involve suspect maritalrelationships...the bill perpetually bars from immigrating to the United States any alien who has conspired to engage in a fraudulent marriage or who has attempted to obtainan immigration benefit on thc basis of such marriage." H.R. Report No. 906, 99th Cong., ind Sess. 6, reprinted in 1986 U.S. Code Congressionaland Adminis- trative News (1986), no. 6, p. 5978. Alan C. Nelson, then-Comniissioner of the Immigration and Naturalization Service, testified before Congress in :iuly 1985that up to 30 percent of marriages between aliens and U.S. citizenswere suspected of fraud. More recently, however, David Nachtsheim, Special Assistant to Clarence Coster, INS Associate Commissioner for Enforcement, stated that the 1984survey that served as the basis for fraud claims by then-INS Commissioner Nelson was flawed and that it was not appropriateto use thc survey for recom- mending legislative reform concerning marriage fraud. Heaiso noted that he and others at the INS knew thesurvey was flawed before Nelson's congressional testimony and that the then-INS Deputy Arsistant Commissiot.,.. forInvestigations had received a recommendation that "The estimation of fraudulent cases.. should be avoided." Interpreter Releases, vol. 66 (Sept. 11, 1989),pp. 1011-12. One advocacy group claims that "prior to the passage of the law, the INS launched a xenophobic media campaignfocusing on the plight of U.S. citizen women who were duped into marriage by foreign mcn only looking fora quick way to a green card and later were abused and deserted by them. No media attention was given to the plight of battered immigrant women." Coalition forIm- migrant and Refugee Rights and Services, Immigrant Women's Task Force, memorandum to NationalLawyers' Guild, National Lawyers Project, June 12, 1989, p. 2 (hereafter citedas "Immigrant Women's Task Force Memorandum"). One researcher points out that the estimate of the number of fraudulent cases was questioned duringthe congressional hearing, alerting Congress to the possible unreliability of thc estimated figure. However, Congresswas also made aware of the problem of fraudulent marriages by the INS's discovery of marriage fraud rings around the country and nationalmedia attention (e.g., ABC's "Nightline: Marriage Fraud," Aug. 26, 1985, and CBS's "60 Minutes: 1)0 You Take ThisAlien?" Sept. 22, 1985). Vonnell C. Tin- gle, "Immigration Marriage Fraud Amendments of 1986:Locking In by Locking Out?" Journal of FamilyLaw, vol. 733, no. 3 (1988-1989), p. 735, 154 8 U.S.C. § 1186a(a)(1). 155 8 C.F.R. § 216.4.

178 the marriage was entered into in good faith and tional-resident spouses are limited in their En- "not for the purpose of evading the immigration glish proficiency and are unaware of this waiver laws of the United States"156 and that the mar- option. Not infrequently abusers and their rela- riagehas not been terminated other than tives withhold information on waivers from the through the citizen spouse's death. Failure to battered spouses. Being new to the United file the petition157 or appear for the intervim States, most of the abused, battered spouses are would result in the revocation of the alien not well informed of resources and means of re- spouse's conditionai status and the initiation of course, such as shelters, social service agencies, deportation proceedings.158 and legal services, available to them.161 In addi- Critics contend that this requirement subjects tion, the statutory language on the standards of immigrant spouses, a significant number of extreme hardship and good cause termination of whom are women from Asian counaies, to ex- a marriage is not specific. Indeed, a congres- ploitation and abuse, since it effectively forces sional inquiry162 prompted because of this abused, battered foreign-born spouses to be- ambiguity. come helpless hostages for 2 years, even when According to an article appearing in the Wall their marriages are not working out right. It is Street Journal, "The problem seems to affect said that batterers, usually the U.S. citizen hus- Asian women more than other immigrants."163 bands, have often refused to petition for the This articlF: gave two examples of Chinese wife or have threatened to withdraw the petition women who had been forced to stay with their once it has been filed or to call the INS and re- abusive husbands for fear of being deported: port that the marriage was a sham. Being dependent upon her citizen spouse to petition, a A 30-year old Chinese woman in San Francisco says battered woman or a victim of a destructive mar- she fmaily left her husband after months of abuse. Re- riage is forced to stay in an abusive or life- peated beatings and her husband's disregard for her threatening situation, since to do otherwise is to infant son's health fmally drove her to leave their risk the danger of deportation and separation home. "He bring the spray for ants," she says, recall- ing an incident when shediadn't cleaned the bath- from her children.159 Furthermore, critics point out that although room. "He spray my face." the IMFA provides for "extreme hardship" and 160 [A] Chinese woman's husband had abused her for al- "good faith/good cause" waivers of the joint most two years and repeatedly threatened not to sign petitionrequirement, many battered condi-

156 8 § 216 "(a)(5). 157 8 C.F.R. § 216.4(a)(6). 158 The act provides for two types of waivers of the petition requirement, commonly refmed to as "extreme hardship" and "good faith/good cause" waivers. The Attorney General may remove the conditional basis of the permanent resident status if an alien spouse demonstrates that: "i) atreme hardship would result if the alien is deported; or ii) the qualifying marriage was entered into in good faith, but was terminated by the alien spouse for good ca»se." 8 U.S.C. §1186a(c)(4) and 8 C.F.R. §216.5(a). 159 Kho interview; Immigrant Women's Task Force Memorandum; Eng Statement; Rimonte interview: Lee interview. 160 See n. 158. 161 Eng Statement, pp. 2.4; Kho intervim; Rimonte interview. 162 A letter of inquiry signed by Sen. Mark 0. Hatfield (R-OR) and Rep. Louise M. Slaughter (D-NY) was sent to the INS on Sept. 14, 1989, to which Bonnie Detwinski, Acting Director for Congressional and Public Affairs, INS, resr»ded on Sept. 19, 1989. 163 Cecile Sorra, "Americans' Immigrant Spouses Seeking U.S. Status Can Be Trapped in Marriage," Wall Street Journal, Aug. 28, 1989. 164 Ibid.

191 179 sign the petition. Pregnant with her second child, she opinions. Television alone reaches 98 percent of delayed filinOr divorce for fear of losing custody of all American homes. The average family watches the childrei. television for 6 hours and 55 minutes each day, according to Nielsea Media Research statis- On June 7, 1989, Congresswoman Louise M. tics.168 Not onlyare television and other forms Slaughter (D-NY) introduced a bill, H.R. 2580, of media the American public's prime source of granting permanent residency to foreign spouses information, but they also are a major vehicle victimized by their spouses. H.R. 2580 was later for transmitting the norms, beliefs, and values of incorporated into a larger bill, H.R. 4300, "Fam- our culture. As such, the media play a dominant ily Unity and Employment Opportunity Im- role in shaping the general public's perceptions migration Act of 1990," which was finally and attitudes about members of different races approved by Conircss as part of the Immigra- and ethnic groups. tion Act of 1990.66The story of one woman Since the Asian American population is rela- who was helped by this law may be typical. tively small and concentratcd in a few geo- Raco M. came to the United States 3 years graphicareas,many Americansmaynot ago from a small village in south China to marry frequently come into contact with Asian Ameri- her Chinese American husband. Three months cans in their daily lives. The media, therefore, after she arrived, her husband began to hit her may exert a particularly important influence on in the face. When she refused to have a child the development of the general public's views of right away, the beatings increased. Her husband Asian Americans. Insensitive or unidimensional threatened not to sponsor her for permanent portrayals of Asian Americans by the mcdia residency if she did not carry her baby to term, might foster prejudice and promote anti-Asian but continued to batter her even after she bias, whereas balanced coverage might dispel agreed to have the baby. Finally, afraid for her long-standing myths and prejudices and build baby, she ran away, was directed by the police to understanding for Asian Americans. the New York Asian Women's Center, where The employment of Asian Americans in the she was provided with a safe house. Because of mcdia, especially in influential positions, is likely the changes in the law, she has received her to have a significant impact on how Asian green card, alp s' e is now commencing divorce Americans are covered and on how the general proceedings.' public comes to view them. Asian Americans working in the media may be essential for elimi- Asian Americans and the nating superficial and sporadic coverage and ar- Media riving at portrayals that promote understanding Thc mainstream media are the primary source ofAsian Americans. Furthermore, un- of information for most Americans, and they derrepresentation of Asian Americans in the consequently have a powerful influence on thc media work force, and in decision-making posi- American public's perceptions, attitudes, and tions in particular, may have resulted from dis-

165 Ibid. 166 Pub. L. No. 101-649. §701(a)(4) of the final bill provides that permanent residency will be granted when: "the qualifying marriage was entered into in good faith by the alien spouse and during the marriage the alien spouse or child was battered by or was thesub- ject of extreme cruelty perpetrated by his or her spouse or citizen or permanent resident parent...." 167 Howe, "Battered Alien Spouses Find a Way to Escape." 168 "A Short Course in Broadcasting,"The Broadcasting Yearbook 1991(Washington, D.C.: Broadcasting Publications, Inc., 1991), p. A-3.

180 criminatory barriers restricting the employment United States who happen to be of Asianances- and advancement of Asian Americans in the try has remained largely unarticulated by the media. For these reasons, this section discusses media. Therefore, many in the public do not dif- first the portrayal and then the representation of ferentiate between Asians who are citizens and Asian Americans in the mainstream media. residents of countries in Asia and Asian Ameri- cans who are citizens or intending citizens of the The Portrayal of Asian Americans United States, and media stereotypes of foreign by the MediaStereotypes and Asians have come to affect the general public's Invisibility views of Asian Americans as well. These blurred Over the years, the portrayal of Asians in the distinctions areinpartattributableto the American news and entertainment media has media's inadequate coverage of Asian .Ameri- been largely dominated by foreign affairs. Until cans:in contrast to the extensive media cover- the early 1970s, the mainstream media in the age of foreign Asians, Asian Amsricans have United States depirled Asians largely as citizens been largely invisible in the media.' ° For exam- of Asian nations, and often in connection with ple, a recent study found that only three Asian wars (e.g., World War II, Korean War, Vietnam Americans appeared regularly on the spring War). As the economies of Japan, Korea, and 1989 prime time television lineup."' Similarly, other Asian countries have become increasingly Asian Americans are seldom the focus of news competitive with the United States economy, media coverage. When the news media do por- the media have begun to cover Asians as citizens tray Asian Americans, they often treat them in a of our economic competitors. For the most part, superficial, stereotypical fashion. For instance, a therefore, the Asians portrayed in film, on tele- common focus of the stories about Asian Ameri- vision, and in the news media are foreign Asians, cans is the success of some immigrants and refu- and they often have been portrayed in a nega- gees who arrived in the United States with tive light.169 nothing, overcame all barriers, and achieved The distinctions between citizens of Asian na- high levels of education and income. At the tions and citizens or intending citizens of the same time, the news media almost never cover other aspects of Asian American communities,

169 The film character, Dr. Fu Manchu, a cruel, violent, diabolical villain, and early films basedon the Chinese warlord period (e.g., Bit- ter Tea of General Yen (1933), Oil for the Lamps of China (1935), and The General Died at Dawn (1936)),are historical examples of negative portrayals of Asians. More recent examples are the portrayal of the Vietnamese in The Deer Humer(1978) and Apocalypse Now (1979. 1 170 Textbooks also may pay too little attention to the history and culture of Asian Americans and other minorities.(California State Board of Education, Histoty-Social Science Framework For California Public Schools: Kindergarten Through Gradenvelve (July 1939), pp. 20-21.) A 1990 survey of graduating seniors in San Francisco public schools showed thatmany of the students felt that their textbooks failed to "give them accurate depictions of any ethnic groups but whites." Asa result, minority students, including Asian American students, leave school with meager knowledge of not only other cultures but of theirown as well. (Raul Ramirez, "Ethnic Students Often Treated as Foreigners," San Francisco Examiner, May 7, 1990,p. A-9, and K. Connie Kang and Dexter Waugh, "Minority Students Feel Likc Outsiders Who Were Robbed of Their Past," San Francisco Examiner,May 6, 1990, p. A-1.) 171 Sally Steenland, Unequal Picture: Black, Ifispanic, Asian, and Native American Characterson Television (Washington, DC: National Commission on Working Women of Wider Opportunities :jr Women, August 1989),pp. 21, 31-33. loki, an Asian American officer in a racially diverse undercover unit on "21 Jump Street"; Chao-Li,a butler on "Falcon Crest"; and Billy, a radio producer on "Midnight Caller," were all supporting roles. Asian characters appearing intwo Vietnam war series, "Tour of Duty" and "China Beach " were usually found in the background of thescenes or did not have continuing roles. "Murphy's Law" featured an Asian American female lead, but was canceled in the spring and relied heavilyon ethnic stereotyping. Ibid.

181 1 9 3 such as poverty or the problems of limited-En- More recent data suggest that minorities are still glish-proficientyoungsters.Thus,the news not in a position to influence program content. media have played a role in disseminating the Of thr 162 producers working on 1989 spring "model minority" stereotype of Asian Ameri- season prime time programs, only 12 producers cans. (7 percent) were minorities. Of thow 12 minol.- ity producers, only 2 were AsianAmerican.1 4 Asian American Representation One observer wrote: in the Media Work Force On television today, the portrayals of people of color, In 1968 the Kerner Commission, appointed and whites too, are created almost solely by white by President Johnson in response to growing ra- producers and writas. In such a scheme, all viewers cial unrest in the late 1960s, concluded that a lose. White viewers lose because they rarely see their mass medium controlled by whites could not reflection from someone else's eyes. In addition, they portray minorities accurately and that a white- are absorbing images ef Ithers which lackdimension dominated mass medium would ultimately fail to and authenticity. Black, Hispanic, Asian and Native serve minorityaudiences.172 Almost 25 years American viewers suffer because the complexity and later, Asian Americans and other minorities con- reality of their livemre distorted into something that tinue to be underrepresented in the media work is unrecognizable. force (i.e., television, film, and print media), par- As for film, although several talented Asian ticularly at the management level. With respect to minority representation in American actors began to make a visible impact 19805,176over television, a 1977 study by the U.S. Commission on the Hollywood screen in the the yearlwnly a handful of Asian American per- on Civil Rights found that: formers have been recognized as having Hol- (1)white males held most of the decision- lywood "star" status, most Asian American making positions in the television industry, actors have been cast in minor roles. The ab- while women and minorities held subsidiary sence of Asian American film stars was not only positions; due to a dearth of Asian roles: even Asian roles (2) television executives often assumed that a were often not given to Asian American ac- 178 realistic portrayal of women and minorities on tors. Historically, an overwhelming majority television would diminish the mcdium's ability of leading Asian roles in films were played by to attract the largest possibleaudience.'" white actors.179

172 U.S. Commission on Civil Rights, Window Dressing on the Set: Women and Minorities in Television (Washingtop, D.C.: U.S. (Jov- ernment Printing Office, 1977), p. 173 Ibid., p. 148. 174 Steen land, Unequal Picture, p. 37. 175 Ibid., p. 43. 176 They ate: Pat Morita playing "Miyagi" in Karate Kid; John Lone appearing in Iceman, Year of the Dragon, and 77:e Last Emperor; and Joan Chen starring in Taipan, The Last Emperor, and The Salute of the Jugger. 177 E.g., Anna May Wong, Sessue Hayakawa, and James Shigeta. 178 Furthermore, Asian actors have not customarily been given the opportunity to play non-Asian roles. 179 Three of the most well-known Asian chancters were portrayed in "yellowface," by white actors: after Charlie Chan became a major box-office draw, the part was always played by white stars, while Chan's bumbling sons were usually played by Asian Ameri- can actors; and Dr. Fu Manchu and Mr. Moto, a Japanese version of Charlie Chan, were also played by white actors. (PattiIiyama and Harty H.L. Kitano, "Asian Americans and the Media," in Gordon L. Berry and Claudia Mitchell-Kernan, eds., Television and

182 1 4 A similar pattern prevails on Broadway, as formation systems; and 3 percent in account- demonstrated by the recent controversy con- ing/finance:84 The Asian American Journalists cerning the casting of a white actor, Jonathan Association (AMA) reports that Asian/Pacific Pryce, as the Eurasian engineer in the New Americans arc only 1.3 percent of newsroom York vst-:ion of the London hit musical, Miss employees, primarily reporters, although they Saigon. Advocacy groups such as Association are 2.9 percent of the population at large and of Asian American Artists (AAPAA) and Asian Asian Americans have high average education Pacific Alliance for Creative Equality (APACE) levels, meaning that many Asian Americans have have argued that it exacerbated the problem of the basic qualifications lecessaty to become limited opportunities for Asian American actors journalists. In fact, 54 pei :ent of the Nation's and prevented the engineer character from 1,500 dailies employ no minorities at all.165 being portrayed more sensitively.181 A similar pattern of underrepresentation pre- As for the news media, although they have ac- vails in broadcast news, where minorities make knowledged that minority rea&rship is vital to up 17 percent of the work force at commercial the growth of their businesses and have made a television stations and 9 percent at commercial concerted effort to diversify their newsrooms,182 radio stations.186 The U.S. civilian work force, in a study by the American Newspaper Publishers comparison, is about 22 percent minority. Asian Association releasedin1990 indicatedthat American men constitute an estimated 1.7 per- news/editorial departments had the lowest mi- cent of the television news work force and a nority representation (10 percent) in thc news mere 0.7 percent of the radio news work media, and that there had been no improvement force.187Amongtelevisioncorrespondents, in minority representation fill these departments there are still only a few Asian American faces. over the previous 2years.'Inside the newspa- Only 4 Asian American journalists were ranked per business, Asian Americans accounted for 1 among the 100 most visible men and women net- percent of the executives and managers in ad- work television reporters in a 1990 Network vertising,circulation,generalmanagement, CorreEpondent Visibility report.188 news/editorial and production; 2 percent in in-

the Socialization of the Minority Child (New York, NY: Academic Press, 1982), p. 154.) 180 "Miss Saigon: Deja Vu 100 Years Later,"Inside Movies,Fall 1990, p. 1. 181 Ibid., p. 2. 182 Cornerstone for Growth: How Minorities are Vital to the Future of Newspapers (Task Forceon Minoritim in the Newspaper Business, date unknown), p. 39. 183 NeW5 Release fram American Newspaper Publishers Association (ANPA), June 1, 1990 (Regarding ANPA survey of Employment of Minorities and Women in U.S. Daily Newspapers). 184 Ibid. 185 David A. Louie, President, and Diane Yen-Mei Wong, Executive Director, Asian American Journalists Association, letter to Ki- Tack Chun, Deputy Director, Eastern Regional Division, U.S. Commission on Civil Rights, Mar. 13, 1991 (hereafter cited as Louie and Wong letter). 186 "Study Finds 1,ittle Change in Status of Minorities in News Media,"Newsleuer of the Asian American Journalists Association,Fall 1990, p. 19. 187 Louie and Wong letter. 188 "Few Asian Americans among Most Visible 1V Correspondents,"AAJA Newsletter,Summer 1991, p. 11. Among the male correspondents, Ken Kashiwahara of ABC and CI3S's James Hattori were ranked 45th and 74th, respectively; of thc female correspondents, Linda Taira of CBS and Ann Curry of NBC were ranked 15th and 27th. (Connie Chung was not ranked, because news anchors were not included in the survey.)

183 1 9 5 Journalists arc information gatekeepers. By ing to an unqualified person (a Japanese Ameri- deciding what to cover, they help define what can professor) as spokesmen for Los Angeles' constitutes major social issues; by presenting in- Korean American community end printing his formation in a certain way or at a certain time, statement implying that Korean American busi- they can affect how society views and decides is- nessmen are wealthy and higher class than their sues.189Minority journalists may be able to un- inner-city customers.192 Similarly, it has been al- cover otherwise inaccessible information. They leged that a series of Associated Prcss articles may also provide an understanding arid insigillti about a prostitution ring staffed by Korean necessary to balanced and accurate coverage. American wives of American soldiers gave the Yet, these statistics suggest that Asian Ameri- inaccurate and unsupported impressionthat cans are underrepresented as a whole and arc "Korean womenmostly marrieetoU.S. not yet in a position to determine or implement servicemenare involved in a growing network broad poky as to "what is news" in news organi- of sex for sale and the Korean American com- zations. munities are engaged in a conspiracy of si- Thcrcarc indications that theun- lence,"193 while at thesame timc failing to take derrepresentation of Asian American journalists the opportunity to examine the related issue of at critical junctures may adversely affcct thc the "enormous needs of tcns of thousands of media's ability to cover incidents involving the Asian women (including Koreans) who have Asian American community with due balance been victimized or abandoned by their former and sensitivity. When spccific incidents require GI husbands."94 coverage of Asian American communities, the The stereotype shared by some newsroom mcdia may be ill-prepared to provide balanced managers that Asians are not sufficiently aggres- coverage of the issues; instead they may Over- sive in their reporting may create a "glass ceil- simplify situations and fail to provide thc public ing" that impedes thc advancement of Asian with crucial insights. For instance, some critics Americans ir, the industry. A 1989 survey of 50 have alleged that the local news media in Los news managers across the Nation revealed that Angeles exacerbated racial tensions iii that city some news directors stillbelieve that Asian following the murder of a black customer by a American journalists are not assertive, do not Korean American storeowner by turning an iso- like risk, and avoid confrontation.195 Approxi- lated iiacident into a racial issue"' and by turn- mately one in four Asian American journalists

189 Louie and Wong letter. 190 For example, the Asian American Journalists Association notes: "Members of a community of color often feel more comfortable talking with journalists of color, especially journalists whom they can identify as being of their community, whether because of color, ethnicity, culture or interest. Without adequate representation of journalists of color, communities can sometimes be effectively cut off from access to the media in that geographic area. A community's alienation from its own local, and the national, media means important issues are not covered, key community resource people are not consulted, and the community is left voiceless about how their community is covered, if at all." Ibid. 191 K.W. Lee, editor, Korea Times., as quoted in Marlene Adler Marks, Jewish Journal, Apr. 12-18, 1991. 192 K. Connie Kang, letter to James S. Cunningham, Assistant Staff Director for Programs, Policy, and Research, U.S. Commission on Civil Rights, Sept. 19, 1991 (hereafter cited as Kang letter). 193 K.W. Lce, President, Korean American Journalists Association, letter to Louis D. Bocardi, President, Associated Press, Dec. 11, 1986, as quoted in Kang letter. 194 Ibid. 195 Mark llokoda, "Arc Asian Americans 'Too NicelManagers Sharc Views on AA Journalists," AAJA Newsletter Spring-Summer 1989, pp. 2, 21.

184 responded to a 1987 survey by saying that they Religious Accommodation perceived "a specific career barrier based in ei- Many Asian Americans belong to non-West- ther ethnic or sexual discrimination, particularly ern religions that areminority religions in the as impediments to the moveinto manage- 096 United States, such as Buddhism, Hinduism, ment. Asian American journalists are likely Islam, Shinto, Sikhism, Taoism, and tribal reli- to quit their jobs because they found limited op- gions. Not only do the religious differences be- portunities for advaacement in their organiza- tween Asian Americans and the majority of the tion or field.197 U.S. population contribute to anti-Asian bigotry Representation of Asian Americans In the and violence, but thcy can at times cause other media needs to be improved, particularly at the conflicts when the practices and requirements of management level, because: Asian American religions are incompatible with majority traditions, established business prac- These managers are the ones who help decide who is tices, and laws. This section discusses protec- hired, retained and fired; they help set policy and tions available to members of minority religions tone both in the newsroom and in the news reports. Without adequate representation of Asian Pacific under the law ?nd gives examples of whcn soci- Americans and other journalists of color, these deci- ety at large has failed to accommodateAsian sions are all to often made without a full understand- Americans' religious convictions. ing of the impactle minority communities and minority journalists. First Amendment Rights to For these reasons, thc Asian American Journal- Religious Accommodation by ists Association offers thc reminder that: Federal, State, and Local Government In thesc times of increased diversity in society, we The rights of individuals to be free of govern- need more journalists who can reflect accurately and ment interference with their religion are pro- sensitively this diversity in their reporting, producing, tected by the first amendment, which forbids the editing and photography. ...And, it is only through Federal Government (and through the 14th this type of enlightened journalism that we can expect amendment, State and local governments) from this country to learn to live with, and embrace, differ- interfering with the free exercise of religion. The ences in color, etMicity, culture, religion, sex, ...and first amendment has been interpreted to provide physical abilities. an absolute guarantee against governmentinter-

196 Edgar P. Trotter,The Asian American Journalist (LosAngeles, CA: Institute for Media-Society Studies, Department of Communi- cations, California State University, Sept. 24, 1987), p. 19. 197 Alexis S. Tan,Why Asian American Journalists Leave Journalism and Why They Stay(Pullman, WA: The Edward R. Murrow School of Communication, Washington State University, 1990), p. 3. 198 Louie and Wong letter, p. 2. 199 Ibid.

9 7 185 ference with religious beliefs,200 but government tion from) physical acts; ...It would betrue, we think. interference with religious conduct isallowed ..that a state would be "prohibiting the freeexercise under certain circumstances. For instance,gov- [of religionr if it sought to ban suchacts or absten- ernment laws ban polygamy, sacrifice of human tions only when they arc engaged in for religiousrea- beings, and funereal immolation of widows,and sons, or only because of the religious belief that they thatispermissible."'In the past, the first display. ..The government's ability to enforcegener- amendment was generally interpretedto exempt ally applicable prohibitions of socially harmfulcon- individuals from general laws and regulations duct, like its ability tocarry out other aspects of public policy, "cannot depend that required conduct prohibited by theirreli- on measuring the effectsof a governmental action gion (or prohibited conduct required by theirre- on a religious objector's ligion) except when the government could show spiritualdevelopment." To makean individual's obligation to obey sucha law contingent a compelling state interest for why they should upon the law's coincidence with his religious beliefs, not be exempted. In Sherbert v. Verner, the U.S. except where the State's interest is "compelling" Supreme Court argued that there needsto be a permitting him, by virtue of his beliefs, "tobecome a "compelling state interest"202 forgovernment law unto himself," contraiigs both constitutionaltra- interference with religious conduct. It held that: dition and common sense.

It is basic that no showing merely ofa rational rela- The Smith decision has already hadan effect tionship to some colorable state interest wouldsuf- on the religious rights of some Asian Americans. fice; in this highly sensitive constitutionalarea, lolnly For example, the decision prompted the reversal the gravest abuses, endangering paramount interests, of a 15-year-old Occupatioual Safety andHealth 203 give occasion for permissible limitation." Administration (OSHA) exemption of Sikhs and Amish from regulations requiring the wcaringof In April 1990, however, the U.S.Supreme hard hats by construction workers.206 The Smith Court decisionin Employment Divisionv. decision has also hadconsequences for Hmongs Smith2" considerably narrowed the first amend- and others whose religions prohibit autopsies. In ment rights of individuals by allowing thegov- a case that was brought before the Smith deci- ernment to deny exemption from laws that sion, a Hmong couple in Rhode Islandsought interfere with religious conductas long as such damages from the chief medical examiner ofthe laws are generally applicable andnot adopted State because his office had performed for the purpose of discrimination: an autopsy on their 23-year-old son, who had died suddenly, without their knowledge andagainst rIlhe "exercise of religion" often involvesnot only be- their will. The Hmong religion holds lief and profession but the performance of that bodies (or absten- are sacred and does not allow any form of muti-

200 "The door of the Free Exercise Clause stands tightly closed against any governmental regulation ofreligious beliefs as such. Gov- ernment may neither compel affirmation of a repugnant belief; nor penalize or discriminate against individualsor groups because they hold religious views abhorrent to the authorities; nor employ the taxing power to inhibitthe dissemination of particular religious views." Sherbert v. Verner, 374 U.S. 398,402 (1963). 201 U.S. Commission on Civil Rights, Religion in the Constitution: A Delicate dalame, (ClearinghousePublication no. 80, September 1983), p. 16, quoting Reynolds v. United States,98 U.S. 145, 165-66 (1874 202 374 U.S. 398 at 406. 203 374 U.S. at 406, quoting Thomasv. Collins, 323 U.S. 516, 510 (1945). 204 110 S. Ct. 1595 (1990). 205 M.at1599, 1603 (citations omitted). 206 ()MIA Notice CPI, 2, signed by Patricia K. Clark, Director Designate, Directorate of CompliancePrograms, Nov. 5, 1990.

186 1`. lation of bodies, including autopsies. The chief Religious Accommodation by medical examiner defended the autopsy as nec- Civilian Employers essary to "ensure that the cause of death was not In addition to their first amendment rights, in- attributable to some act or agerat that posed a dividuals have also received protections against threat to the health, safety and welfare of the religious discrimination from the Civil Rights citizens...of Rhode Island."207 Citing the Sher- Act of 1964. As amended in 1972, Title VII of bert "compelling interest" standard, and finding the Civil Righ,3 Act requires employers not only that the interests cited by the defense "fall far to refrain from differential treatment onthe short of being compelling," the U.S. District basis of religion (e.g., not hiring a prospective Court of Rhode Island initially held that the employee because he or she is of the Hindu reli- chief medical examiner had impermissibly inter- gion) but also to take affirmative steps to accom- fered with the Hmong couple's free exercise of modatethereligiousconvictionsoftheir their religion.208 Following the Smith decision, employees "unless an employer demonstrates however, the district court reversed itsruling.2°9 that he is unable to reasonably accommodate to As the religions adhered to by many Asian an employee's or prospectiveemployee's reli- Americans come into conflict with mainstream gious observance or practice without undue America, the Smith decision could have a wide- hardship on the conduct of the employer's busi- ranging effect on Asian Amcricans and others ness.9921 1For example, employers are required to who subscribe to minority religions. The Reli- take steps to accommodate employees whose re- gious Freedom Restoration Act of 101, intro- ligious convictions are in conflict with the duced in the House of Representatives by employer's work schedule and employees who Congressmen Stephen Solarz (D-NY) on June seek to wear religious garb or follow religious 26, 1991, and co-sponsored by 41 members of groomingpracticesthatconflictwiththe .he House, would mandate a compelling interest employer's regulations. There are, however, lim- test for determining when gpvernment can inter- its to employers' obligations to accommodate fere with religious conduct.`10

207 You yang Yang v. Sturner, 728 F. Supp. 845 (D.R.I. 1990) citing Defendant's Memorandum in Support of aMotion for Summary Judgment at 8. 208 Id 209 Ruth Marcus, "Reins on Religious Freedom? Broad Coalition Protests Impact of High Court Ruling," WashingtonPost, Mar. 9, 1991. 210 Congressional Record, vol. 137, no. 101, June 27, 1991. Specifically, the bill states: "(a) Government shall not burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b). "(b) Exception--Government may burden a person's exercise of religion only if it demonstrates that application of theburden to the person "(1) is rsential to further a compelling governmental interest; and "(2) is thc least restrictive means of furthering that compelling government interest." H.R. 2797, 102nd Cong., 1st Sess, §3. 211 42 U.S.C. §2000e(j). The issue oi what is reasonable has not been definitively resolved. In a landmark case, Trans World Airlines v. Hardison, 432 U.S. 63 (1977), the Supreme Court held that Title VII does not require employers to accommodate religious convictions when the accommodation necessitates more than a de minimus cost. The Equal Employment Opportunity Commission guide- line "states that undue hardship will be identified when an employer, labor organization, or other entity can demonstrate that accommodation would require more than a de minims cost or would require a variance from a bona fide seniority system when doing so would deny another employee his or her job or shift preference as guaranteed by the system." EEOC Compliance Manual 628.7(a).

1 9 9 their employees' religious convictions. A 1987 The Court stated that the judiciaryowes consid- decision by the Equal Employment Opportunity erable deference to the military'sown judgment Commission (EEOC) is illustrative. Despite the about military needs: then-existing OSHA exemption for Sikhs from its requirement that hard hats beworn in con- [W]hen evaluating whether military needs justifya structionareas,the EEOC heldthat the particular restriction on religiously motivatedcon- employer's need to guarantee the safety of its duct, courts must give great deferenceo the profes- electrician employees was sufficientthatit sional judgment of military duthorities concerning the would cause the employer undue hardshipto ex- relative importance of a particular interest. Not only empt a Sikh emq9yee from wearing a hard hat are courts "'ill-equipped to determine the impact and a gas mask. " (Sikh menare required by upon discipline that any particular intrusion upon mil- their religion to wear a turban that prevents the itary authority might have," but the military authori- wearing of a hard hat, and to leave their facial ties have been charged by the Executive and the Legislative Branches with carrying out hair unshaved, which would prevent the mask our Nation's military policy. "Pjudicial deference is at itsapogee from achieving a proper seal.) when legislative action under the congressionalau- thority to raise and support armies and make rules Religious Accommodation by the and reelationsfortheirgovernanceischal- Military lenged." 14 The military is not under the same obligation In separate dissents, Justices Wiiiiam Brennan to accommodate religious differences among its and Sandra O'Connor each pointed out that the members as civilian employers are, and even majority had not only accepted the military's after the Smith decision, it probably facesa judgment that military discipline is an important lesser standard than other government entitins military interest, but also had accepted the in determining when it must accommodate religious needs. In a decision made before Smith military's unsupported word that allowinga Jew- ish officer to wear a yarmulke would have seri- (i.e., at a time when many thought thata compelling interest standard applied to ous adverse con..;equences for military discipline. government Thus, the Goldman decision apparently entities), the U.S. Supreme Court held that the gave the Armed Forces considerably greater protections military must be givenmore leeway than other governmental bodies: from first amendment challenges than other governmental bodies. Concerned about the implications of the Our review of military regulations challenged on First Goldman decision for religious minorities, such Amendment grounds is far more deferential thancon- stitutional review of simt lawsor regulations de- as Jews who seek to wear yarmulkes and Sikhs signed for civilian society. who seek to wear turbans, the 100th Congress enacted a provision explicitly allowing members

212 Commission Decision no. 82-1, CCH EEOC decisions (1983)116817,28 FEP Cases 1840. 213 Goldman v. Weinberger, 475 U.S. 503, 507 (1986). 214 Id. at 507, 508 (citations omitted).

188 2 (() of the armed forces to "wear an itcmof religious wearing of .Igish yarmulkes by members of the apparel while wearing the uniformof the armed force. member's armed force" except when "the wear- Despite the legislative history and the intent ing of the itcm interferes with theperformance of Congress, the Department of Defense(DoD) of the member's military duties'2' or ifthe apparel has issued regulations banning thewearing of is "not neat and conservative."15The law gives in deciding Sikh turbans with the uniform. Responding to a the Secretary of Defense discretion letter of concern about the DoDregulations which items of religious apparel areallowable. from Rep. Les Aspin, Chairman of theHouse Although the lawitself does not mention Committee on Armed Services, then-Secretary yarmulkes or turbans, the ConferenceReport of Defense Frank Carlucci defended !.henoD makes clear that Congress expected these tobe regulations as in compliance with the law: allowed:

, At and that the The DoD implementing directive defines The conferees arc concerned about reports conservative to preclude items that replace orinter- implementing regulations may be written sonarrowly fere with the regular uniform. We do notbelieve ei- virtually all religious apparel. The law as to exclude ther of these requires the Army to permitthe wearing does not list eligible items of apparel, but theconfer- of visible religious apparel in place ofrequired items Army in the past has permitted the ees note that thc of the unym, such as Service caps,hats, or other wearing of Sikh turbans and that the Senateand the headgear. House floor debates cited variousexamples of thc

1989, 10 U.S.C. *774 (Supp. 1991). 215 National Defense Authorization Act for Fiscal Years 1988 and also gives the following guidance: "The provision also per- 216 House Conference Report no. 100-46 p. 638. The Conference Report performance mits the Secretary concerned to prohibit the wearing of anitem of religious apparel when 'it would interfere with the sole of the members' military duties.' The conferees note that the'nonuniform' asptct of religious apparel should not be used as the units, basis for involving the interference with duties provision, exceptin unique circumstances, such as those involving ceremonial and, even then, only when actually performing ceremonial functions."Ibid. Chairman, Committee on Armed Services, Dec. 8, 1988. 217 Frank C. Carlucci, Secretary of Defense, letter to Rep. Les Aspin,

189 4 0 1 Chapter 8 Conclusions andRecommendations

This report nresents thc results ofan investi- American culture and thc workings ofAmerican gation into 1.6,1 Ovil rights issuesfacing Asian society. There has beena widespread failure of Am :Huns aim) undertaken as a followup to government at all levels and of the Nation's pub- the Commission's 1989 Mial RoundtableCon- lic schools to provide for the needs ofimmigrant ferences. Contrary to the popular perception Asian Americans. Si-basic nccds as interpre- that Asian Americans hp,veovercome discrimi- tive services to help limited-English-proficient natory barriers, Asian Americans still face wide- Asian Americans in their dealings withgovern- spread prejudice, discrimination, anddenials of ment agencies, culturally appropriate medical equal opportunity. Inaddition, many Asian care, bilingual/English as a Second Language ed- Americans, particularly those whoare im- ucation, and information about availablepublic migrants, arc deprived of equalaccesb to public services are largely unmet. services, including police protection, education, A third, but equally important, problemcon- health care, and the judicialsystem. fronting Asian Americans today isa lack of po- Several factors contribute to the civilrights litical representation andan inability to use the problems facing today's Asian Americans. First, political process effectively. AsianAmericans Asian Americans are the victims ofstereotypes face many barricrs to participation in thc politi- that arc widely heldamong the general public. cal process, in addition to thc simplefact that These stereotypes deprive Asian Americansof many Asian Americans are not yet citizens and their individuality and humanity inthe public's hence ineligible to vote. Althoughsome Asian perception and often foster prejudiceagainst Americans arc politically active, the large major- Asian Americans. The "model minority"stereo- ity have very littleaccess to political power. This type, the often-repeated contcntion that Asian lack of politicalempowerment leads thc political Americans have overcome all barriersfacing leadership of the United Statesto overlook and them and that they are a singularly successful sometimes ignore the needs andconcerns of minority group, is perhaps thcmost damaging of Asian Americans. It also leadsto a failure of the these stereotypes. This stereotype leads Federal, political leadership to make addressingAsian State, and local agencies to overlookthc prob- American issuesa national priority. lems facing Asian Amerkans, and it oftcn causes This chapter lays out specific conclusionsand resentment of Asian Americans within thegen- recommendations. Many of thc civil rightsissues eral public. facing Asian Americans also confrontother mi- Second, many Asian Americans,particularly nority groups. For example, issuesrelated to the immigrants, face significant culturaland linguis- rights of language minoritiesare equally import- tic barriers that prevent thcm from receiving ant for othcr language-minoritygroups. Thus, equal access to public servicesand from partici- many of our conclusions with respect to viola- pating fully n the Amcrican political process. tions of Asian Americans' civil rightsand our Many Asian American immigrants arrive in the recommendations for enhancing theprotection United States with minimal facility in thc En- of their civil rightsare applicable to other minor- glish language and with littlefamiliarity with ity groups as well.

190

2 n 2 media giv e. little attention to hate crimes against Bigotry and Violence Againsc Asian Americans, thereby hindering the forma- Asian Americans tion of a national sense of outrage about bigotry In 1986 the Commission drew attention tothe and violence against Asian Americans, acritical problem of bigotry and violence against Asian ingredient for social change. Schools contribute Americans.1 Oui investigation shows that big- to the problem by not teaching studentsabout otry and violence against AsianAmericans re- the histories, cultures, experiences, and contri- mains a serious national problem today.This butions of Asian Americans. Political leaders report has recounted numerousincidents of big- contribute to the problem when they unthink- otry and violence directed againstAsian Ameri- ingly lash out at Japan as the cause of United cans.Theseincidentsincludethevicious States economic difficulties. More important, bias-related murdcrs of Vincent Chin, Jim Loo, political and government leaders have yet to Navroze Mody, and Hung Truong, andthc re- makc it a national priority to prevent and de- cent massacre of SoutheastAsian schoolchildren nounce anti-Asian prejudiceand violence. in Sacramento, California; attacks onAsian American homes and places of worship; racially Recommendation 1: motivated boycotts against Asian-owned busi- Local and State governments should review nesses; racial harassment ofAsian Americans on whether their laws adequately protect the rights college campuses; and racial slurs made bypub- of Asian Americans and others to be freefrom lic figures, one of whom was a candidate for gov- bias-related intimidation and violence; all juris- ernor. The incidentsreported here are by no dictions should enact and implement effective means exhaustive:for every incident reported anti-bias laws. here, there are many more that have notbeen reported. Recommendation 2: The root causes of bigotry andviolence The media should make concerted efforts to against Asian Americans are complex.Racial increase public awareness of incidents of anti- prejudice; misplaced anger caused by wars or Asian discrimination and hate crimesagainst economic competition with Asian countries; re- Asian Americans and to build a national consen- sentment of the real or perceived succcssof sus about the urgency ofcombating all acts of Asian Americans; and a lack of understanding of bigotry and violence. the histeries, customs, and religions ofAsian Americans all play a role in triggering incidents Recommendation 3: of bigotry and violence. The media havecontrib- Political leaders shoulei a_frain from activities uted to prejudice by promoting stereotypes ofand remarks that nrIrr.ote or play upon racial Asian Americans, especially the model minority and ethnic bias, - as "Japan bashing." Ac- stereotype; by sometimes highlighting thecrimi- cordingly, the leadership or both na- nal activities of Asian gangs; and by failing to tional politicalpartiesshould agree to refrain provide the indepth and balanced coverage that from "race-baiting" tactics in upcoming election would help the public to understand the diverse campaigns.2 Asian American population. Furthermore, thc

(Clearinghouse Publication 88, 1 U,S. Commission on Civil Rights,Recent Activities Against Citizens and Residents of Asian &seem 1986). In letters to President Bush and to the leaders of the 2 This recomnwndation was originally made hy the Commissioners in July 1991. U.S. House and Senate, Commission Chairman Arthur Fletcher urged thePresident and congressional leaders "to convene a sum-

191 3 Recommendation 4: hanced police officet training andcommunity The Federal Government shouldmount a co- outreach efforts toensure that hate crimes are ordinated national effortto promote under- correctly recognized, reported,and recorded, standing forAsianAmericans,particularly and large police departments shouldcreate spe- immigrants,andtoprevent hateactivities cial units to investigate and collectdata on hate against them. This effort should includeas active crimes. participants the schools, police, andlocal and State governments,as well as the Federal Gov- ernment. The U.S. Department of Justice's Police-Community Relations Community Relations Service isa logical agency There are serious fissures in the relationship to be involved in coordinating the nationalef- between the Asian American communityand fort. the police that leavemany Asian Americans without effective access to policeprotection and The Hate Crimes Statistics Act,3enacted in some with the fear that they themselvesmay be- 1990, provides an opportunityto learn more come the victims of police misconduct. about and document theextent of hate-moti- For many Asian Americans,recentim- migi ants in particular, vated violence against Asian Americansand oth- access to police protec- ers at a national level. The experiences of local tion is severely limited by their lackof English jurisdictions across thecountry that have made proficiency. Persons with limited Englishprofi- efforts to collect dataon hate crimes make it ciency need interpretive servicesto communi- clear that proper implementation ofthe Hate cate effectively with the police. Yet, interpretive Crimes Statistics Act will requiremore than de- services are rarely provided by policedepart- veloping a national reportingsystem. Additional ments across the country, and when provided, thcy are generally inadequate. As ingredientsnecessaryforasuccessfulim- a result, lim- plementation of the act include: ited-English-proficientAsianAmericans are often reluctant to call the police, andwhen they 1) improved outreach to victimcommunities do, they often have difficulty inmaking their to encourage hate crime victimsto lecognize side of the story knownto the police. This .mis- and report hate crimes: communication frequently results inincci plete 2) improved police trainingso that officers police reports, and sometimes inpolice harass- on the beat can readily identify hate crimes; ment or false arrests of limited-English-profi- 3) the formation ofnew police units that spe- cient Asian American witnesses. cialize in identifying, investigating,and re- Somctimcs, immigrant Asians bringwith them porting hate crimesaswellasguiding a legacy of distrust of authority, including the community outreach and policetraining ef- police, that results from unfortunateencounters forts. with governmentalor law enforcement agencies in their countries of origin. Theresidue of such Recommendation 5: experiences makes them rciuctantto talk to or To implement the Hate CrimesStatistics Act seek help from the police. This distrustis aggra- properly, police departments shouldprovide en- vated by difficulties in bridgingthe cultural and

mit conference, comprised ot major public officials from Fuleral, State and localgovernment, the media, and private citizens, to address [the issuc of inflammatoty racial rhetoric in political campaigns) and toprepare guidelines for proper conduct." U.S. Commis- sion on Civil Rights, letter to President Bush and Leaders of the U.S. !louse ofRepresentatives ;Ind Senate, July 18, 1991. 3 28 U.S.C. 534.

192 24 between many Asian Recommendation 7: language gap that exists provide interpret- Americans and the police.Few police officers Police departments should limited-English-proficient AsianAmeri- across the countryhave been givensufficient ers to anemergency and ona training about Asiancultures, and as a result, cansbothon basis. Asian Americans oftenreceive culturally insen- nonemergency sitive treatment frompolice officers. Policemis- Americans exacerbates Recommendation 8: conduct towards Asian civilian review boards the distrust. Ourinvestigation revealed that Police departments and should make a commitment tomonitor actively there have been incidentsof police m!sconduct ranging from harass- alleged incidents of policeharassment and bru- in all parts of the country, thorough followup investiga- ment of AsianAmerican youth to casesof seri- tality, to undertake tions, and to takeappropriate action based on ous brutalityagainst Asian Americans. investigations. A third barrier to AsianAmericans' access to the results of these police protection is theunderrepresentation of police officers in most Recommendation 9: Asian Americans among adopt community law enforcement jurisdictions acrossthe country. Police departments should severely restricts po- policing methods to build atrusting relationship This lack of representation communities. In particular, lice access to informationabout crime in Asian with Asian American American communities,which in turn hampers they should consider: police efforts to protectthese communities from creating Asian Americanpolice advisory growing criminal activity. Some police departments acrossthe country boards; hiring Asian Americancommunity liaison are experimentingwith alternative waysof reaching out to the AsianAmerican communi- officers; providing cultural sensitivitytraining to all ties in their cities. Thesealternative approaches, police officers; and commonly known as "communitypolicing," have disseminating information aboutthe police been reported to helpbridge the gap between department to immigrantAsian Americans. Asian Americans and thepolice. Community policing entails 1) hiringAsian American community service officers to serve asliaisons between Access to Primaryand regular police officers andAsian Americans; 2) Secondary Education setting up AsianAmerican police advisory Immigrant AsianAmerican boards consisting ofrepresentatives of the Asian Children American community who meetregularly with immigrant children, community concerns and who Many Asian American the police to voice particularly those who arelimited English profi- help gain community supportfor police investi- of equal access to ed- in Asian American cient (LEP), are deprived gations of criminal activity ucational opportunity. Thesechildren have to communities; and 3) providingcultural sensitiv- overcome bothlanguage and cultural barriers ity training for police officers. before they can participatemeaningfully in the educational programs offeredin public schools. Recommendation 6: Providing equal educationalopportunity to Police departments shouldtake aggressive ac- requires sound representation of Asian Asian American LEP students tion to increase the student assessment proceduresand programs Americans among police officers. that can orient them andtheir parents to Ameri- can society andAmerican schools. AsianAmeri- can LEPstudents need bilingualeducation and

193 205 English as a Second Language(ESL) programs staffed by trained teachers Recommendation 10: to enable them to Federal, State, and localgovernments should learn English and at the same time to keep up in collect systematic data school. They need professional on how the needs of lim- bilingual/bicul- ited-English-proficient (LEP) students tural counseling services are being to help them in their met and on the educational achievement ofLEP social adjustment and academicdevelopment. students. Our investigation has revealed thatthese needs of Asian American LEP students are being dras- Recommendation 11: tically underserved. In particular,there is a dire Colleges and universities, in conjunction national with shortageoftrainedbilingudl/ESL the U.S. Department of Education, teachers and counselors. State education agencies, and local school districts,should Title VI of the 1964 Civil RightsAct requires establish programs that recruit and school systems to takc "affirmative train bilin- steps to rec- gual/English as a Second Languageteachers tify theinguage deficien7 in order to open specifically for underserved languages,such as programs to LEP children." In recentyears, the the Southeast Asian languages. U.S. Department of Education'sOffice for Civil Rights (OCR), the designatedagency for monitoring and enforcing ilk, provisions Recommendation 12: of Title VI, Every school system with immigrantstudents has been criticized fornot adequately enforcing should have in place these Title VI requirements for a comprehensive program LEP students. to ease the transition of newly arrived Recently, OCR has made protecting immigrant the rights students and their families into theAmerican of LEP studentsa top priority and has pledged school system and into Americansociety at to carry out more compliance reviewsin this large. Such a program should include area. intensive English as a Second Language classesoffered to There islittle information on how Asian adults, as well as classes for childrenin school. American immigrant childrenarc faring in public schools. Many nationaldata sets on educa- Recommendation 13: tionalachievement,suchasthe National The Office for Civil Rights (OCR) inthe U.S. Assessment of Educational Progress,do not col- Department of Education should lect information step up its en- on the achievement of students forcement of Title VI's Lau requirements with extremely limited English for in- proficiency, and struction for LEP students. Inparticular, OCR most do not have adequate samplesof Asian should carry out American students more compliance reviews for or do not differentiate be- compliance with Lau guidelines. tween immigrant and nonimmigrantstudents. Asian American immigrant Available information studentsfre- suggests that many Asian quently encounter fellow students, American immigrant students, teachers, and although per- administrators who know little forming well by or nothing about some measures, arc leaving our their cultures and histories. public schools with serious Oftentimes, school deficiencies, particu- officials do not understandtheir new students larly in theareas of reading and writing, and that and are unprepared to helpthem cope with their some subgroups have high dropoutrates. transition into American schools;their fellow students have no backgroundto help them appreciate why theirnew classmates are different

4 Lau v. Nichols, 414 U.S. 56:3 (1974).

194 and arc likely to react to them with unease or school curricula should be revised to pro- hostility. For Asian American students to realize vide a truly multicultural education. their full poteniial at school, they need school environments that are understanding and sup- Admissions Discrimination portive, not insensitive and hostile. Aggressive Against Asian Americans in programs to educate school personneland stu- Higher Education dents about Asian (and other) cultures and histories and to combat racism in our schools are In the early 1980s, the admit rates of Asian American students to elite colleges and universi- urgently needed. Even more serious, our investigation found ties fell at a time when the number of Asian American applicants to these colleges and uni- that a high degree of racial tensions is prevalent versities was increasing rapidly. Charges that col- inpublic schools across the country. Asian American studcnts are frequently the targets of leges and universities were placing ceilings on the numbers of Asian American students admit- racial remarks by fellow students, and arc often provoked into physical fights because of their ted, and that Asian American applicants were discriminated against in the admissions process race or national origin.Furthermore, school of- relative to white applicants, began to be made ficials often fail to take appropriate preventive with increasing frequency. Because researchers steps to deal with the racially chargedenviron- fre- and other interested parties could not gain ac- ment. Allegedly, teachers and administrators the issue quently minimize or overlook the seriousness of cess to the necessary admissions data, could not be resolved. Starting in 1988, the con- anti-Asian sentiments in public schools. Many troversy became embroiled in the national de- Asian Americans arc convinced that when Asian American students get involved in disputes or bate on affirmative action, with opponents of affirmative action maintaining that admissions fights with other students, teachers and adminis- discrimination against Asian Americans is the in- trators come down harder and imposeharsher evitable outcome of affirmative action programs. disciplinary actions on Asian American students. The ensuing politicization of the controversy ob- scured the central issue, whether or not elite col- Recommendation 14: Federal, State, and local government and leges and universities had instituted admissionspracticesagainst school officials, in partnership with parents and discriminatory students, should make a concerted effort to de- Asian American students. This report reviewed the admissions discrimi- fuse racial and ethnic tensions in public schools and to promote mutual tolerance and under- nation controversy at three universities: Brown University of Californiaat standing among racial and ethnic groups. As part University,the Berkeley, and Harvard University. At Brown, of this effort, the issue led to the university's admission that public school officials should become aware "Asian American students have been treated un- of racial tensions in the schools; take steps to fairly in the admissionsprocess,"5 and recom- defuse them; and respond to racial incidents mendations6 for "immediate remedial rapidly and aggressively; and measures, which were implemented shortly thereafter. At Berkeley, an investigation of the

5 Brown University Corporation Committee on Minority Affairs, "Report to the Corporation Committee onMinority Affairs From Its Subcommittee on Asian American Admissions, Feb. 10, 1984, p. 2. 6 Ibid.

195 207 issue by a Special Committee of Berkeley's Aca- port findirg that Harvard had not discriminated demic Senate pinpointed several factors that against Asian American applicants. Thereport may have been responsible for a precipitous de- concluded that the lower admit rate for Asian cline in Asian American admissions in the fall of American applicants in comparison to whiteap- 1984, including a decision to cease guaranteeing plicants could be entirely explained by admis- admission to economically disadvantaged appli3 sions preferences given by Harvard to athletes cants who did not qualify for affirmative action and children of alumni ("legacies"). OCRcon- and a decision to raise the minimum grade point cluded that Harvard's policy of giving preferen- average that would guarantee admission to tial consideration to children of alumni doesnot Berkeley VY ithout at thc same time raising the violate Title VI.1° This conclusion restson three minimum test score threshold.8 The Special considerations. First, OCR argued that existing Committee also revealed one episode at Berke- case law does not suggest that legacy prefer- ley that, although it ultimately hadno effect on ences are per se illegal. Second, CCR noted that Asian American admissions, was particularly dis- there was "no evidence to suggest that these turbing. In December 1983, the director of the preferences were instituted to intentionallyor Office of Admissions and Records imposeda deliberately limit the number of Asian Ameri- minimum SAT-verbal requirement onimmigrant cans atHarvard," since thesepreferences had students (and not on other students). Although been in place long before thc number of Asian the policy was revoked less than 2 weeks later, it American applicants increased significantly. Fi- was implemented with the full knowledge of its nally, OCR applied a disparate impact analysis discriminatory effect on Asial American appli- to Harvard's legacy preference policy and deter- cants and without any apparent purpose othcr mine(' that it was designed toserve the legiti- than to limit the number of immigrant students mate institutional goal of obtaining financial and on campus. Furthermore, while the controversy volunteersupportfortheuniversityfrom on admissions discrimination was in high gear, alumni, and that there wereno viable alternative the Berkeley administration repeatedly denied policies that would accomplish thesame goal. that the policy had ever existed, until copies of Despite the determination that legacy prefer- thc directive putting thc policy in effectwere re- ences are not per se illegal, the issuc of the legal- leased by the California State Legislature in ity under Title VI of legacy preferences that early 1988. have a disparate impact byrace remains unre- At Harvard, the issue prompteda Title VI solved. To date, although OCR determined that compliance review initiated in 1988 by the U.S. tilc information supplied by Harvardwas suffi- Department of Education's Office for Civil cient to justify its legacy preference policy under Rights (OCR). In late 1990, OCR issued itsre- Title VI, there is no established Federal policy

7 The vast majority of these students were Asian Americans. 8 Berkeley guaranteed admission to candidatm who met either a minimum grade point average ((WA) thresholdor a minimum test score threshold. Asian American applicants were more likely to be admittedon the strength of their GPAs, whereas white applicants weic more likely to be admitted on the strength of theirtest scores Thus, raising only the GPA threshold had the effect of disadvantaging Asian American applicants relativeto white applicants. 9 Because I lispanics, the other large immigrant group among Berkeley's applicants, were eligible for affirmative action, thevast majority of students who would have been affected by this policywere Asian American. 10 U.S. Department of Education, Office for Civil Rights, "Statement of Findings" (for Compliance Review No. 01-88-6009on Har- vard University), Oct. 4, 1990, p. 43. 11 Ibid., p. 40.

196

2 P S guidance on whcn a universityadmissions policy Employment Discrimination with a disparate impact by race,color, sex, reli- Asian Americans face a number ofbarriers to gion or national origin can bejustified under equal participation in the labor market.Many of Title VI. these barriers are encountered to a greaterde- gree by the foreignborn, who often confront lin- Recommendation 15: guisticandculturalbarrierstofinding Colleges and universities shouldexamine employment commensurate withtheir education thoroughly their admisjons policiesfor adverse and experience, but even third- orfourth-gener- effectsor unintentionalbiasagainst Asian ation Asian Americans find theiremployment Americans and put in place safeguards to pre- prospects diminished becauseemployers have vent them. Such safeguardsshould include: stereotypical views of Asians andprejudice against citizens of Asian ancestry.Employment providing training to admissionsstaff; discrimination, to varying degrees, is aproblem adverse routinely reviewing new policies for facing all Asian Americans. impact; The perception that there is a"glass ceiling" admis- including Asian Americans in the barring most Asian Americansfrom attaining sions process; and management positions(especially upper level break- making data on the racial and ethnic management positions) forwhich they are quali- admitted students down of applicants and fiedis perhaps the concern mostfrequently available to the public when requested. voiced by Asian American individualsand advocacy groups acrossthe country. Because the Recommendation 16: choice of whom to put in a managementposition OCR should require collegesand universities usually a highly subjectivedecision, Asian Rights Act of is covered under Title VI of the Civil Americans are vulnerable to managerswho arc with data on the 1964 to provide OCR regularly biased against Asian Americ:ans orwho sub- qualifications racial and ethnic breakdown and scribe to stereotypical views of AsianAmericans of applicants and admittedstudents, and OCR qualities that make strong cor- whether or not as not having Vie should use these data in deciding porate leakis, executives, andhigh-level deci- to institute Title VIcompliance reviews of these sion makers. In addition, thesubjective nature should make institutions. Furthermore, OCR of promotion decisions usually makesit difficult when re- such data available to the public to prove that the adverseemployment decision quested. was a discriminatory one.The vidence accumu- lated in this study convinces Commission Recommendation 17: that the problem is a serious oneand that it per- guidance clarifying OCR should issue policy vades both private corporations and government show specifically what a university needs to agencies. The issue merits serious researchand under Title VI to justify a legacypreference pol- increased enforcement efforts on the partof that have a dis- icy or other admissions policies State,andlocalantidiscrimination color, sex, religion, or Federal, parate impact by race, agencies. Such enforcement effortsshould build should re- national origin. At a minimum, OCR upon the pilot studiesof Fortune 500 corpora- that quire universities to be prepared to prove tions carried out by the Departmentof Labor's i.e, that they such policies arc truly necessary, Office of Federal ContractCompliance Pro- fact ac- have a necessary purpose; that they in grams as part of theDepartment's Glass Ceiling complish that purpose; and that there ar2 noal- Initiative. ternative ways to accomplish the purposewith less discriminatory impact.

20 9 197 Recommendation 18: Recommendation 21: Federal and State monitoring agencies should Employers should review theiremployment periodically collect, disseminate,and analyze practices with a view to ferretingout and elimi- data on the number of Asian Americans as well nating (unless justified) those practicesthat dis- as other minorities and women inupper level criminate on the basis of language,such as management positions. English-only workplace rules,artificially high minimum-English-proficiency requirements, lnel Recommendation 19: the use of nonvalidated employmenttests for Federal andState enforcement agencies limited-English-proficient job applicants. should take aggressive stepsto enforce antidiscrimination provisions withrespect to the Recommendation 22: glass ceiling, including initiating compliancere- Federal, State, and local civil rights enforce- views of firms' employment practicesthat follow ment agencies should make an increased effort the lead of the Office of Federal ContractCom- to protect the rights of language-minority work- pliance Programs' pilot studies of Fortune500 ers. As part of this effort, they should, forexam- companies. ple:

Recommendation 20: increase outreach efforts to educateem- All glass ceiling monitoring andenforcement ployers and the public about the rightsof lan- efforts should include Asian Americansas well guage-minority workers; as women and other minorities. monitor the developnvIt anduse of employment tests given lang. minority work- Our investigation revealed thatmany Asian ers to ensure that they a.professionally Americans, particularly immigrants, face unlaw- validated for those with limited English profi- ful discrimination in the workplacebecause of ciency. limited English proficiency, accent,or the desire to speak their native language on the job. Asian Many Asian Americans and others whore- Americans with limited English proficiencyor ceived their professienal trainingoutside of the who speak accented Englishare unnecessarily United Statcs have difficulty obtainingjobs com- barred from jobs and promotions becauseof ar- mensurate with their education and experience tificially high English-proficiencyrequirements in this country. Sometimes theyare unable to imposed by employers. For example,employers provide documentation of theirprofessional at times use the results of employmenttests that training and experience in their countriesof ori- require more English proficiency thannecessary gin and are forced to retrain in theUnited States to do the job for which they are hiring. Fewem- or to switch careers. In many fields, State profes- ployment tests arc professionally validatedfor sional certification boards havedifferent re- the limited English proficient in generaland for quirements for foreign-educatedprofessionals Asian Americani in particular. Similarly,em- than for U.S.-educated professionals.In medi- ployers may sometimes excludepersons who cine, for instance, foreign medicalschool gradu- speak with accents from promotioneven when ates facestifferlicensing and endorsement these accents are easily understandable.Finally, requirements than graduates of UnitedStates many Asian Americans have found theuse of medical schools. Such disparate certificationre- their native languageson the job arbitrarily quirements arc a major employmentbarrier for banned by employers when there isno compel- foreign-educated professionals. Althoughdiffer- ling business justification for doingso. ential treatment of professionalseducated in foreign countries has not beenfound to be illegal discrimination under TitleVII, many

198 2 0 Asian American immigrant professionals suspect antidiscrimination provisions, targets the bulk of that the differential treatment they receive as its dissemination efforts towards Spanish-lan- foreign-educated professionals may in fact be a guage speakers. Last year,Congress declined to pretext for discrimination on the basisof na- repeal employer sanctions and implemented tional origin. State certification boards, on the only some of the recommendations made by a other hand, contend that differential certifica- Task Force on IRCA-Related Discrimination tion requirements arc necessary because percons with a view to reducing the discriminatory ef- trained abroad often are not trained up to U.S. fects of IRCA's employer sanctions provisions. standards or because it is difficult to ascertain In September 1991 bills entitled thc Employer the quality of their training. Sanctions Repeal Act of 1991 that would repeal employer sanctions were introduced in the Sen- and Senator Recommendation 23: ate by Senator Kennedy (D-MA) Professional licensing boards that have differ- Hatch (R-UT)13 and in thc House of Represen- ential requirements for U.S.-educated and for- tatives by Representative Roybal (D-CA) and eign-educatedprofessionalsshould examine Representative Richardson(D-NM).14 thcir policies in light of the disparate impact on immigrants of diverse national origins to ensure Recommendation 24: fair treatment of foreign-educated professionals Congress should repeal employer sanctions while maintaining U.S. professional standards. provisions of the Immigration Reform and Con- trot Act (IRCA) by passing the Employer Sanc- The Immigration Reform and Control Act tions Repeal Act of1991.13 (IRCA),12 enacted in 1986, imposes civil and criminal penalties (i.e., "employer sanctions,") Recommendation 25: on employers who hireunauthorized workers. In thc event that Congress chooses not to re- To allay concern that employer sanctions would peal IRCA's employer sanctions provisions, lead employers to discriminate against foreign- looking and foreign-sounding workers, IRCA a) Congress should, at the least, adopt all re- also contained provisions aimed at preventing maining recommendations made by the Task such discrimination. There is considerable evi- Force on IRCA-Related Discrimination for dence, however, that many Asian Americans, reducing IRCA-caused discrimination, along with other minorities, have been discrimi- namely: nated against because of IRCA's employer sanc- establish regional offices for the Office tionsprovisions.Inaddition,many Asian Americans arc not aware of their rights under of Special Counsel; IRCA and do not know where or how to file appropriate funds for a new outreach ef- IRCA-related complaints. The Office of the fort to educate employers and employees Special Counsel of the U.S. Department of Jus- about IRCA's antidiscrimination provis- tice, which has as one of its duties the dissemina- ions; tionofinlbrmationabouttheIRCA's simplify employers' work authorization

12 Immigration Reform and Control Act of 1980, 8 U.S.C. 01101 et seq., Pub. I.. No. 99-603, 100 Stat.3359. 13 S.1734, 102nd Cong., 2nd Sess. (1991). 14 11.R. 3366, 102nd Cong., 2nd Sess. (1991). provisions. U.S. Commis- 15 The U.S. Commission on Civil Rights has previously called for the repeal of IRCA's employer sanctions sion on Civil Rights Statement, "Civil Rights Commission Calls for Repeal of EmployerSanctions," Mar. 29, 1990.

199 211. verification process; and sexual harassment on the job. Andas Asian broaden the authority of thc Department American women, especially if theyare im- of Labor to enforce document checkre- migrants, they are often less equipped to handle quirements; and such discrimination than women of otherraces request a future GAO study to deter- for two reasons. First, Asian Americanwomen mine the extent of remaining discrimina- may find that the small number of Asian Ameri- tion. can women in the workplace is an impediment to their joining informal networks of co-workers 1)) The Office of the Special Counsel of the on the job, and this in turn may mean that when Department of Justice should make increased Asian American women encounter discrimina- efforts to inform Asian Americans and those tion, they do not have easy access to the support who employ them of theirrightsunder and advice of their co-workers. Second, immigr- IRCA's antidiscrimination provisions. al,tsian American women are often not well- informed about their rights in the workplace and The Commission has received allegations that culturally conditioned not to complain about Asian Americans are virtually shut out ofcon- mistreatment. Their isolation from theirco- struction unions in New York City andas a re- workers, their ignorance of their rights, and their sultare forcedto take lower paying jobs reluctance to complain all make Asian American restoringorrepairingbuildings.Although women, especially immigrants, particularly vul- resource limitations prevented the Commission nerable to sexual harassment in the workplace from undertaking a full investigation of this and other forms of employment discrimination. issue,available statistics confirm that Asian Americans are underrepresented in construction Recommendation 27: unions in New York City. Employers and civil rights enforcement agencies should take steps to reduce the specialem- Recommendation 26: ploymentbarriersfacingAsianAmerican The New York City Commission on Human immigrant women; such steps should include Relations and the U.S. Equal Employment Op- special outreach efforts to inform Asian Ameri- portunity Commission should undertake indepth can women and other vulnerable groups of their studies of New York City's construction unions rights and how to vindicate them. to determine whether they are discriminating against Asian Americans; should these investiga- Employment discrimination on the basis of tions uncover evidence that construction unions race or national origin is prohibited under Fed- are discriminating, they should take vigorous eral laws. However, several recent Supreme stcps to enforce Federal, State, and local anti- Court decisions had a negative effecton Asian discrimination laws. Americans' and other minorities' abilityto ob- tainlegalredressfor discrimination against Although Asian Americans of both genders them. Patterson v. Mclean Credit Union16 limited encounter employment discrimination based on the types of employer behavior thatare illegal their race, the barriers to equal employmentop- under section 1981, meaning that Asian Ameri- portunity may be greater for Asian American cans could no longer sue for damages when their women because of their gender. As women, they employers racially harassed themon the job. may become the victims of gender discrimination Martin v. Wilks" allowed consent decrees to be

16 491 U.S. 164 (1989).

200 02 challenged in court after they were entered, non-English languages whcn persons of that lan- making made it more difficult for Asian Ameri- guage group constitute more than 5 percent of cans to seek to be included in consent decrees the citizens of voting age in a district and have a requiring affirmative action in municipal and higher than average illiteracy rate. Because the State government employment.Ward:: Cove Asian American population is generally small Packing Co. v. Alonio18 increased plaintiffs' bur- and speaks a variety of languages, Asian Amcri- den in disparate impact suits, making it more dif- cans with a single language almost never consti- ficult for Asian Americans and othcrs who face tute5percentofadistrict'svoting-age artificial barriers to employment to prove their population. Even in Ncw York City, where case in court. In 1990 the Commission recom- 100,000 Chinese Americans were enumerated in mended the enactment of the Civil Rights Act of 1980, Chinese Americans are less than 5 percent 1990 that would undo the effects of these three of the population. Thus, the 5 percent require- decisions.° Although the Civil Rights Act of ment mcans that Asian Americans almost never 1990 was not enacted, in 1991, -after exhaustive receive federally mandated bilingual election debate, Congress passed and Prcsidcnt Bush materials. Because thc benefits of the language signed into law a compromise bill,thc Civil requirements of the Voting Rights Act do not Rights Act of 1991,20 containing most of the extend to Asian Americans, limited English pro- provisions of the Civil Rights Act of 1990. ficiency is a serious barrier to the political participation of many Asian Amcricans. Recommendation 28: In the past, Asian American political power The Equal Employment Opportunity Com-may have beendilutedby apportionment mission and the Federal cwrts should makc schemes that split the Asian American popula- every possible effort to enforce vigorously the tion in an area into several districts and by at- Civil Rights Act of 1991. large election systems within districts. As the fastest growing minority group in the Nation Political Participation over the past decade, however, Asian Americans arc increasingly becoming involved in the redis- Asian Americans as a group lack political rep- tricting process, and several redrawn districts resentation and empowerment. There are very across the country have large Asian American few elected Asian American officials across the populations. country, and Asian Americans as a group have Because of its effect on reapportionment and low participation in the political process. This on the provision of bilingual voting materials, it report has identified several barriers to Asian is critical whether the 1990 census can provide Americans' participation in the political process. an accurate count of Asian Americans. As im- In a provision that is slated to expire on Au- portant as the accuracy of the data, however, is gust 6, 1992 section 203(c) of the Voting Rights their timely release, since the data arc critical for Act of 1982requires States and political subdi- gaining support for programs to help Asian visions to provide bilingual election materials in Americans. The detailed data on Asian Ameri-

17 490 U.S. 755 (1989). 18 490 U.S. 642 (1989). 19 In June 1990 the Commissioners voted to endorse thc Civil Rights Act of 1990 and released a report on the proposed legislation. U.S. Commission on Civil Rights, Report on the Civil Rights Act of 1990 (July 1990). 20 Pub. I.. No. 102-166. 21 42 U.S.C. §1973aa-la(h) (1988).

201 213 cans from the 1980 census were not released Many Asian Americans face both language until 1988. By the time the data were released, and cultural barriers to access to healthcare. they were no longer useful in documenting the Our national health carc system is not ade- numbers and characteristics of the Asian Ameri- quately meeting thc interpretation needs of the can population, since Asian Americans had un- limited-English-proficient Asian American pop- dergone a dramatic transformation during the ulation. The bilingual family members and other intervening 8 years. The Census Bureau has untrained interpreters frequently used by health agreed to release the 1990 data without undue care providers are a poor substitute for trained delay, probably in 1991 or 1992. health care interpreters. Cu ltb.zal barriers com- Other factors limiting Asian Americans' polit- pound the problems faced by many Asian ical influence are anti-Asian bias among the Americans in gaining access to proper health public and difficulty in getting Asian American care. To render effective care to Asian Ameri- candidacies and issues taken seriously by the cans, health care providers need considerable major political parties. knowledge of and sensitivity towards Asian American cultures. Federal policies that exclude Recommendation 29: Asian Americans from Federal programs that re- Congress should reauthorize section 203(c) of cruit and train minority health care professionals the Voting Rights Act of 1982 with the following have contributed to the dearth of trained health change: care professionals to serve Asian American communities. The section should be modified to apply to Detailed data on the health and health care language-minority groups with more than a participation of Asian Americans as well as per- specified minimum number rather than a pertinent background data on thcir demographic centage of citizens of voting age. and socioeconomic characteristics are indispens- able in assessing the health care needs of Asian Recommendation 30: Americans and in developing appropriate poli- The Bureau of the Census should release de- cies to meet these needs. Such data need to be tailed data on Asian Americans promptly,as collected separately for each major Asian Amer- promised. ican ethnic group and broken down by immigra- ticnstatus, regionof residence, and Recommendation 31: socioeconomic status. Without such data, critical The major political parties and civic organiza- needs of Asian Americans will go officiallyun- tions(e.g.,the League of Women Voters) documented and politically unrecognized, and should launch a major effort to promote voter hence unmet. Yet most States and Federal registration and political participation among health agencies make only minimal efforts to Asian Americans. collect health-related data on Asian Americans.

Access to Health Care Recommendatiln 32: Many Asian Americans, especially recent im- Public health al.d other social servicepro- migrants and those in lower socioeconomic grams should strive to meet the specific needs strata, have serious health care needs that are (e.g., interpretation, cultural sensitivity) of low- not being met. Refugees from Southeast Asia income and immigrant Asian Americancommu- arrive in this country with serious physical and nities. Federal funding for suchprograms should mental health problems stemming from thcir be increased. war-related experiences in their home countries.

202 2 1 Recommendation 33: enforcement officers to translate for them, cre- The Department of Health and Human Ser- ating the potential for inaccurate interpretation vices should raise the priority given to increasing due to lack of familiarity with legal terminology the number of trained health care professionals or conflict of interest. It is for these reasons that who have the linguistic and cultural skills to the Court Interpreters Act22 provides that the serve immigrant Asian Americancommunities. Federal courts set standards for and certify qual- Asian Americans who meet these qualifications ified interpreters. However, very few interpret- should be included in programs targeted at in- ers have been certified, and the certification creasing the numbers of minority health care program set up under the act only tests in Span- professionals. ish. Furthermore, the use of an interpreter is left to the discretion of the presiding judge. Recommendation 34: The Council on Ethical and Judicial Affairs of Recommendation 36: the American Medical Association should offer Federal and State authorities should launch a an opinion clarifying physicians'obligations to national effort to train and certify court inter- use medical interpreters when dealingwith lim- preters and to ensure that all limited-English- ited-English-proficient patients. proficientpersons have accesstocertified interpreters in tneir dealings with the judicial Recommendation 35: system. In particular, the Court Interpreters Act Public health data should be collected and re- should be implemented more vigorously and ported separately for Asian American sub- should be modified to give judges precise in- groups. struction about when the provision of certified interpreters is warranted. Access to the Judicial Recommendation 37: System The American Bar Association should amend Many Asian Americans, especially those lim- Rule 1.4 of its "Model Rules of Professional ited in English proficiency, do not have equal ac- Conduct"23 to clarify attorneys' obligations to cess to the American judicial system. The severe use interpreters when dealing with limited-En- shortage of trained interpreters is a critical bar- glish-proficient clients. rier to access to our courts for limited-English- proficient Asian Americans. When interpreters Battered Asian American are unavailable, linguistic minorities arc often deterred from using the courts. When they do Women use the courts, they are often misinformed, in- Foreign-born Asian American women who timidated, demeaned, and sometimes denied im- are battered by their spouses do not have ade- portant rights. In the absence of quate access to police protection and social ser- court-appointed, qualified interpreters, defen- vices. These women have signiftcant linguistic dants have no choice but to rely on family mem- and cultural barriers that prevent them from bers, untrained court personnel, and even law seeking help. When they seek police protection,

22 28 § 1827. 23 American Bar Association, "Model Rules of l'rofessional Conduct," Rule 1.4, "Communication."

203 21 5 they find that police arriving at their doorarc in modulating racial tensions and shaping the fu- likely to listen only to their husbands, particu- ture of relations between the Asian American larly if they speak better English than they do. community and the public at large. As such, they Furthermore, few social service agencies have have the responsibility to provide accurate and linguistically and culturally trained staff whocan indepth coverage of Asian American communi- help them. In fact, social service agencies who ties to the American public. seek to serve the needs of battered Asian Amer- ican womcn often are unable to obtain thenec- Recommendation 39: essary funding, sometimes because of rigid The media should make every effort topro- funding formulas that provide a fbted amount of vide balanced, indepth, and sensitivecoverage of money per client served and do not make allow- Asian Americans and to improve the representa- ances for the extra costs of serving Asian Am :xi- tion of Asian Americans in their decision-mak- can women. ing ranks. Recommendation 38: Religious Accommodation Federal, State, and local funding agencies should fund social servicesprograms that meet For Asian Americans who belong tonon- the specific needs (e.g., interpretation, cultural Western religions, the practices and require- sensitivity) of battered Asian American wives. In mentsoftheirreligionsaresometimes particular, such agencies should adopt flexible incompatible with majority traditions, estab- funding formulas to allow social service agencies lished business practices, and laws. Asian Ameri- to serve higher cost clients, such as Asian Amer- canspracticingnon-Westernreligionsare ican battered wives. vulnerable to discrimination basedon their religion in the employment arena, where employers Media Portrayal of Asian set requirements that fail to accommodate the religious needs of Asian Americans. Arecent Americans Supreme Court decision,Employment Division The public's perceptions and attitudesto- v.Smith,24 has considerablynarrowed the rights wards Asian Americansare heavily influenced of religious minorities by allowing thegovern- by the way Asian Americansare portrayed by ment to deny exemption from laws that interfere the mcdia. Many of the civil rights problems with religious conduct as longas such laws are confronting Asian Americansare fashioned by generally applicable and not adopted for the stereotypes, especially the model minority ste- purpose of discrimination. The Religious Free- reotype, that arc promoted by the media. Others dom Restoration Act25 currently before Con- are the result of a general ignorance about gress would require thc government to show a Asian Americans that arises froma lack of cov- compelling State interest before religious minor- erage of Asian Americans and their concerns by ities could be forced to comply with laws that the mainstream media. The underrepresentation significantly interfere with their religion. of Asian Americans in decision-making positions in the media contributes to determiningthe Recommendation 40: slant and depth of the media'scoverage of Asian Congress should move quickly to hold hear- Americans. The media havea major role to play ings on the effects of theEmployment Division v.

24 110 S. Ct. 1595 (1990). 25 H.R. 2797.

204 Smith decision on the religious practices of leaders in the United States need to provide ef- Asian Americans. fective moral leadership in the area of civil rights, thereby once again making civil rights an General Recommendations urgent national issue given sustained public attention. The general absence of moral leader- Accurate, reliable, and complete data on ship carries over to the civil rights concerns of Asian Americans are vital for government, pri- Asian Americans: this report has found that the vate sector, and other efforts todevelop plans to political leadership, the media, and the public meet the needs of Asian Americans.Yet data on have in most instances failed to respond to the Asian Americans are sorely lacking in many criti- needs and concerns of Asian Americans. Viola- cal areas, including demographics, socioeco- tions of Asian Americans' civil rights are not nomic status,educational achievement, and given the high priority on the national agenda public health. Often, available sample sizes of that they deserve. This observation leads the Asian Americans are too small to provide infor- Commission to recommend: mation about them. In many large-scale data collection efforts, Asian Americans are grouped Recommendation 42: together with Native Americans and sometimes This country's political leadership should en- with blacks and Hispanics in "other" or "non- deavor to create a national climate that discour- white" categories. Asian Americans are some- ages anti-Asian discriminationand ensures equal times identified as a separate group, but data en opportunity for Asian Americans. In particular, individual Asian American subgroups are almost political leaders at all levels need to make a top never collected. The diversityof the Asian priority: American community, which is comprised of persons with many nationalorigins, immigration combating prejudice and violence against as dates and statuses, and socioeconomic levels well as stereotyping of Asian Americans; means that until data collectionefforts differen- increasing public awareness and sensitivity tiate among these diverse subgroups, our under- towards the needs of Asian American im- standing of Asian Americans will continue to be migrants; inadequate to develop plans to meet their needs. ensuring that all necessary measures are taken to guarantee equal opportunity to Recommendation 41: Asian Americans. Federal, State, and local governments should provide for enhanced data collection on Asian Recommendation 43: Americans inallareasincluding socioeco- Federal, State, and local government should nomic statistics, education, vital statistics, health, mount a coordinatod national effort to reach out etc. The data need to be disaggregated by to new Asian American immigrants, toeducate Asian/Pacific group and include such informa- I hem about our system of government, to inform tion as immigration date and status. In most them of their civil rights, and to encourage their cases, Asian Americans need to beoversampled, participation in the political process. As part of and in some cases special surveys may be this effort, the Department of Justice should co- needed. ordinate the development of a civil rights handbook to provide Asian American immigrants Racial tensions appear to be escalating across with basic information about our system of gov- the country, yet the political parties have done ernment and their rights as American resi- little to defuse them, and some political candi- dents/citizens. dates have even exatx.rbated racial tensions by using racial rhetoric in their campaigns. Political

205 217 Recommendation 44: The President should appointa national to the President and Congress for improving aid council on refugees to review Federal activities to refugees and thc communities in which they and programs designed to help refugees and the live. Also the Office of Refugee Resettlement in communities in which refugees reside,to work the Department of Health and Human Services with State and local governments and privateor- should undertake a comprehensive review of its ganizations on refugee-related efforts, to collect programs and policies to determine their effec- and disseminate information on refugees and tiveness in meeting the needs of refugees and of refugee policy, and to make recommendations the communities in which refugees live.

206 21 Appendix

THECrryOP NEW YORK OFFICE CP THE MAYOM

OmcallokMIASMA= VIROOY.1ER $20MNIM Mom New Yam N.Y. KW October 11, 1221 g14$064010

Dr, James Cunningham Assistant Staff Director U.8 Civil Rights Commission 1121 Vermont Avenue, N .11 Roon 700 Washington D.C. 20425

pear Dr, Cunningham,

Mayor Dinkins has asked my office to comment onthe portion of the draft of the report entitled "CivilRights Issues Facing Asian AmowLonnn Ln10,9014, 11- mayasil."401ses-U4s Woo-boyeett-el-Vmt. Korean grocery stores in the Platbuish Section ofBrooklyn that started on January 18, 1990.

Your draft primarily takes quotes from newspaperarticles and published reports such as: the Mayor's Committee, the NOw York City Council and NYc Police Department. As such, ther is littleto be maid about previously published opinions regarding the boycott issue. would only offer the opinion that when the boycott issue is referred to as a "black" boycott of Korean stores, a moreaccurate description would be "Caribbean" since the surroundingcommunity was primarily aRaitiao Community and tho initial boycotters wr of Caribbean descent. Beyond this opinion and the attached comments, the report adequately attributes the comments to the appropriate sources.

aincerely yluri

..-4".°1)141/r) / Virgo Y. Le CITY OF HERCULES 111 CIVIC DRIVE, HERCULES, CA 94547 PHONE: 415 799 8200

October 4, 1991

Mr. James S. Cunningham Assistant Staff Director for Programs, Policy and Research 1121 Vermont Avenue, N. W., Room700 Washington, D.C. 20425

Re: Comment on Draft Report: Civil Rights Issues Facing AsianAmericans in the 1990's Dear Mr. Cunningham:

This letter responds to correspondence which the City receivedfrom Staff Director Wilfredo Gonzales, dated September 27, 1991. In thatcorrespondence, Mr. Gonzales requested the Hercules Police Chief to reviewa portion of the abo ve-entitied draft report regarding an arrest of a number of juveniles in the Cityof Hercules on August 28, 1989, and to commenton the accuracy of the report. The City appreciates the opportunity to commenton the draft report. The Chief of Police, the City's Attorney and I have reviewed the draftreport, and have concluded that it does not accurately describe theAugust 28, 1089, juvenile arrests in several respects. In particular, the draft failsto describe the diligent efforts the City's Police Department made to work with its minoritycommunity to resolve these important. issues of police/community relations. For your convenience, I have redrafted thereport so that it is consistent with both the facts that were revealed through the Departmo.nt's investigationof the matter,, and the City's willingness to eliminateeven the appearance of police harassment of juveniles.For your convenience,I have also enclosed a copy of the City's investigative response to the matter.

Draft Report Revision Between 1900 and 1970, Herculeswas a small, predominantly white town of 1,000 residents. Since then, Hercules, hasgrown rapidly to 17,000 residents, 25 percent af whom are Filipino (see 1990 Censusmaterial).The community has evolved as inulti-racial with fully integrated neighborhoodsduring the past 15 years uf growth. The City Council has been composed ofa "majority of minorities" since the early 1980's, including Filipino representationsince 1979.The community is highly educated and is at a high middle income levelof $60,000 average per household.

208 Regular social interaction among thedifferent races and ethnic groups isroutinely enjoyed as seen in our annual CulturalFair, at special community eventsthroughout the year, in our parks, on the trailsystem, tennis courts, etc. On November 17, 1989, theAmerican Civil Liberties Union and theAsian Law Caucus filed a complaint with the Hercules PoliceDepartment. The complaint wasmade on behalf of 11 Hercules juveniles andtheir parents regarding theDepartment's response to a citizen report onAugust 28, 1989, that severaljuveniles were fighting at a private residence. When the police arrived on the scene,approximately 20 to 25 juveniles werefighting and running through the frontand back yard of a vacanthome on a residential street .Further investigation revealed that theback door of the vacant homehad been pried open. The police arrested18 juveniles in the vicinity andcharged them with trespassing and fighting. Policealso confiscated two baseballbats and a knife from the juveniles.Police identified two juveniles atthe scene who had previously been released to the custody of their parentsthree days before the fightingin a shopping center parking lot .The August 28, 1989, fightappeared to be an expansion of the prior fight . The complaint charged that thearrested juveniles, some of whom wereallegedly handcuffed, were driven to the policestation and detained for "two tofive hours ." The Police Department respondedthat it processed the groupof 18 juveniles as quickly as possible, releasing each to thecustody of his or her parents as soon as the juvenile was photographed andfingerprinted. Although many werereleased much sooner, , the last of the severaljuveniles has completed processingafter only three hours and 45 minutes hadelapsed. Several juveniles had to waitthe extended time due to their parent's request 4.,pick up their child after work. The juveniles also alleged in thecomplaint that they were refusedpermission to make telephone calls .The Department responded that theDepartment itself contacted each parent or guardian in order tofacilitate the efficient processing ofthe juveniles and to assure that a responsibleadult was notified. Several juvenileshad expressed objections to their parents being notified.In response to the allegationthat one girl was refused permissionto use the bathroom for over anhour and a half, the Department's investigation revealed thatthere was no female officeravailable to accompany the girlduring that time.The complaint furthercharged that the arresting officers used excessive forceand had sought to intimidate thejuveniles, including threatening them. TheDepartment responded that it hadacted c nly to the extent necessary to maintaincontrol over the boisterous group . Following the August 28, 1989, incident ,Filipino juveniles also came fm-wardwith the allegation that the police hadfrequently stopped them for no apparent reason, searched the trunks of their cars, andasked them if they were members of gangs. Until that time, not even the parents ofthe Filipino juveniles were not awareof such allegations nor were any complaints lodgedwith the Department or the City. . The City and the parents of the juvenilesworked together to resolve theseissues . City representatives met with the parentsand their representatives onseveral occasions to devise strategies to improvepolice and community relations.Juveniles, parents , and City representativesalso attended a Contra CostaHuman Rights Commission Hearing on the treatment ofminority juveniles in order to gain abetter understanding of the issues .

209 The Police Department choseto modify several of its operatingprocedures in an effort to address allconcerns raised. The Department revised itsprocedures to specify both the criteria to beused to identify gang members andthe juvenile arrest rights regarding theuse of telephmes and bathroom facilities.There have been no reports of police harassment inHercules since that complaintwas filed. On behalf of the Hercules Mayor aridCity Council, we hereby formallyrequest that this revision be substituted,in its entirety, for the draft languagewhich was originally provided. We believe itto be a forthright and accurate portrayalof the community, the City and of theincident.Please contact me if questions or concerns. you have further

Very truly yours,

Marilyn E. Leuck City Manager City of Hercules

MEL: kc cc: The Honorable Mayor and CAtyCouncilmembers of Hercules California Delegation of the HouseJudiciary Committee Ms. Eve Maldonado, CaliforniaLeague of Cities- Washington, D. C. Mr. Richard Whitmore, Attorneyat Law Mr. Russell Quinn, HerculesChief of Police

210 2 UNITED STATES DEPARTMENT OF EDUCATION OFFICE FOR CIVIL RIGHTS

THE ASSISTANT SECRETARY NOV 7 1991 Mr. Wilfredo J. Gonzalez Staff Director U.S.Commission on Civil Rights 1121 Vermont Avenue, N.W. 5 1 Room 700 Washington, D.C. 20425 Dear Mr. Gonzalez: 4 Thank you for the opportunity to commentagain on your proposed report. As you recall, on September 27, 1991,you asked the Office for Civil Rights (OCR) to reviewand comment upon two sections of your draft report, "CivilRights Issues Facing Asian Americans in the 1990s." One section provided a summary of the Oflice for Civil Rights' enforcementof Title VI of the Civil Rights Act of 1964 regarding the provisionof services to limited-English-proficient children, andthe other section was a lengthy discussion of OCR's 1990 compliancereview of Harvard University. I sent comments to you on October 16,1991, pointing out OCR's concerns with the report. Some revisions were subsequently made, and on October23, 1991, you again forwarded the two sections and asked for additionalcommerts. I have reviewed the draft and submitthe following comments. These comments, supersede my previous commentsand I have no objection to your not includingmy previous letter with your report. 0 s n

I am disappointed that this section ofthe report presents sucha one-sided view of OCR's activities inthis critical area. The provision of services to limited-English-proficientstudents was first identifiedas a priority issue for OCR in 1990. As such, the resources of thisagency that are not consumed by the investigation of complaintsare focused on this, and a limited number of other, high priority issues. The effort OCR is devoting to this issue is greatlydisproportionate to the extremely small percentagt of complaintswe receive alleging that school districts are not providingservices to limited-English- proficient children; however, its prioritystatus reflects my own sense of this issue's importance. Access to educational programs is a civil right, and it is essentialto the successful accomplishment of the President's nationaleducation goals.

400 MARYLAND AVE SW. WASHINGTON. D.C. 202024100 211

t . 213 Page 2 - Mr. Wilfredo J. Gonza;ez

Your summary criticizes this agency'sperformance in the l980s, citing a decline in the number of compliancereviews, inadequate monitoring of the corrective action plans obtained as aresult of those reviews, and selected quotes fromvarious Congressional reports. The draft report leaves the readerwith the strong impression that OCR was willfully ignoring this issue and the criticism leveled by various representatives ofthe Congress. This is simply incorrect.

In the 1980s, OCR followed a consistent andresponsible path of enforcement, policy development and compliancereview activity. Due to OcRls inappropriate reliance on the LAMRemedies from 1975 to 1981 as a de facto compliance standard andthe failed effort to require bilingual education throughregulation, OCR began the 19805 with no viable Title VI policy or procedures onthe provision of services to limited-English-proficientstudents. Essentially, OCR started from scratch to develop workable guidance to begin to address the po$icy vacuum thatexisted in 1981. Following the Secretary's withdrawal of the "LanguageMinority NPRM" in February 19811 OCR developed interim proceduresfor conducting Title VI investigations. Under these procedures, more than 170 compliance reviews and complaintinvestigations were carried out during the 1981-1985 time period. Following an update of these interim pro(''-res in the December 3, 1985, document, OCR continued to r w the practices of school systems on this issue. For example, i June 19861 OCR reviewed survey data from school districts nationwide todetermine which districts reported significant numbers of unservedlimited- English-proficient students. OCR's regional offices followed up with each of these districts.

At several points in the draft report, referenceis made to various studies or Congressional reports on OCR's performance. W atolc- ns me _not the ef n to_a ch kc me ts but that the Commission' sAz_lrAft mDoti conclusions of these reports and theirinterpretation of the data ggE_Provided without examining whether they interpreted thedata correctly. I can only imagine that the Commission would,itself, be quite concerned if committee studies and reports or a congressman's comments regarding your performance weretaken as gospel without being subjected to critical analysis.

For example, on pages 35-37, the draft reportdiscusses the conclusions of a 1988 report generated by the House Committee on Education and Labor. A brief summary of OCR's response to the report's charges follows. OCR provided the Congressional committee with a detailed response to every allegation their report made. OCR also noted. in the cover letter to the Chairman of the Committee, that

212 2 4 rage 3 - Mr. Wilfredo J. Gonzalez

[I]t is also clear that many of the report's criticisms are inaccurate or misleading. The report does not accurately take into account the effects on OCR of certain major legal changes nor does it display a sound urderstanding of OCR's enforcement procedures.

Also, on pages 34 and 35, the draft report states a journalist's conclusion that the 1981 to 1985 OCR Title VI compliance activity data on limited-English-proficient students show that "school districts were nine times less likely to be scheduled for a compliance review [from 1981 to 1985] than during the previous five-year period. During this same period, OCR conducted only 95 compliance reviews covering 65 districts compared with 573 districts reviewed between 1976 and 1980. . . ." Using a newspaper article as evidence to reach conclusions about a Federal agency's civil rights enforcement practices in an area where there are complex policy and legal issues is, in my view, a dubious practice. Aside from that, the statement is very misleading. It leaves the impression that OCR, from 1976 to 1980 conducted on-site compliance reviews of 573 school systems. It did not. In the mid-1970s, based on statistical data, OCR developed a list of about 230 school systems nation-wide that might not be serving limited-English-proficient students. Many of these districts were required to submit corrective action plans without any on-site investigation ever being conducted. Another group of about 175 systems was required to submit plans to qualify for the Emergency School Aid Act funding.

OCR has made numerous ongoing efforts since 1988 to improve its performance as an enforcement agency. We are still improving. The agency has not accomplished all that I would like to achieve, particularly in the number of r.,ompliance reviews we have been able to conduct, but given the enormous increase in complaintswe have received since 1989 (up 37 percent) and the budgetary constraints under which we have been asked to operate, Iam extremely proud of OCR's performance during my tenure.

As noted in your reportmy National Enforcement Strategy establishes the enfcrcement of the :rights of limited-English- proficient children Gs a priority issue for OCR for compliance reviews and technical agsiltance activities in FY 1991. It is also a priority iss,,e, in FY 1992. In FY 1991, OCR initiated 12 Title VI compliance reviews on the provision of services to limited-English-proficient students, or 30 percent of the 40 reviews initiated, although complaints on this issue account for an extremely small percentage of the cgomplaints received by this agency. By comparison, in 1990 OCR initiated no reviews on this issue. In 1992, we will significantly increase the number of compliance reviews OCR initiates, including additional reviewson the provision of services to limited-English-proficient students.

213 2 5 Page 4 - Mr. Wilfredo J. Gonzalez

In FY 1991, several regional offices conductedmonitoring and technical assistance outreach activities with school districts that had corrective action plans as a result of previous OCR invsstigations. For example, our regional office in Chicago conducted a comprehensive on-site monitoring review of a major mid-western school system, found specific violations of previous plan agreements, and obtained detailed corrective actions. Another regional office assisted a major school district in its efforts to develop a plan to address problems with its procedures for assigning students to bilingual education. Additionally, we have participated in over 35 technical assistance workshops on limited-English proficiency during 1991 in cities across the country from Boston to Springfield to Portland.

To further assist our regional offices in conducting investigations on this issue, on September 27, 1991, I issued a memorandum entitled, "Policy Update on Schools' Obligations Toward National Origin Minority Students with Limited-English Proficiency (LEP) Students."This is an update of the 1985 policy statement. OCR's regional offices were also provided with detailed investigative guidance and training on how to conduct investigations of this issue.

In order to ensure that our enforcement policy guidance reaches all aspects of the education and limited-English community, I have initiated a dissemination plan for the policy update that includes mailings to over 1,900 interested groups, briefings for all interested Department personnel, as well as for House and Senate staffers and a briefing for interest groups scheduled for November 14, 1991, to which you have been invited. Additionally, we have put together a fact sheet that contains frequently asked questions and provides answers in terms that are less legalistic and easier to understand. I am enclosing a copy of the fact sheet for your information.

Your report aims to summarize OCR's enforcement of the rights of limited-English-proficient students. I ask that you describe OCR's efforts in this area in the context of OCR's total workload and the efforts we have made to improve our effectiveness as a civil rights enforcerent agency. It is my hope that you will give additional focus to these efforts in your report. By not doing so, your report does a disservice to this agency and to its staff.

Harvard Compliance Review I am pleased to see that in response to my earlier comments much of the discussion in the report on the Harvard Compliance Review has been revised and made more accurate. However, there continue to be statements in this section of the report that misinterpret, or misconstrue, OCR's investigation and findings.

214 Page 5 - Mr. Wilfredo J. Gonzalez

In the discussion of the methodology of OCR's logistic regression analysis, which appears on page 39, footnote112 states that "a more appropriate specification [of the independent variables] would have been to enter [them] as categorical variables [rather than as continuous variables.]"Variables such as the academic rating were treated as continuous and not categorical variables because of the large number of possible comparisons involved in the latter approach. When this analysis was conducted, OCR had no preconceived notion that particular categorical comparisons required closer review than others. Consequently, we examined the general impact of all available variables.

With regard to the decision touse the stepwise procedure, we disagree with the draft report's implicationthat this was somehow incorrect or inappropriate. Although this procedure did "[discard] some variables," as noted in footnote113, we "employed logistic regression to try to identify whichof the ten admissions variables could account for the admitrate disparity." (Statement, p.34.) Thus, the procedure was supposed to discard those variables that clearly did not accountfor the disparity. While it is true that the coefficients wouldhave been slightly different with the inclusion of all of the variables,these differences would have been extremely small, giventhe statistical power involved and the R<.05 inclusioncriteria. The differences would have had no effecton either the conclusions OCR drew from the statistical analyses conductedor the direction of OCR's investigation as a whole.

The statistical analyses were onlyone part of our investigation, and they were based on availahle informationonly. As explained in the cautionary note that precededthe statistical section in OCR's Statement of Fineings: "More importantly, perhaps, is the understanding that, while there isa great deal of information relevant to the admit/reject decision containedin the quantitative variableswe analyzed, there may be other unmeasured variables which affect the decision." (Statement, p.32.)

In addition, on page 41, the report concludesthat OCR "gives.too little prominence to its discussion ofthe logistic regressions and as a result may leave the casual reader withlittle understanding of the basis for OCR's statisticalfindings." It is doubtful that the "casual reader's"understanding of OCR's statistical findings would be enhanced byfurther discussions of logistic regression analyses.

One of my major concerns with the draft reportfocuses on the discussion of the use of legacies, whichappears on pages 48-49. First, or page 48, the report impliesthat OCR should have, and did not, ask for supporting evidencethat alumni support would drop off without the legacy preference,and that there were no reasonable alternatives to theuse of the preference. OCR did, indeed, ask Harvard forany data, studies or other iniormation

215 227 Page 6 - Mr. Wilfredo J. Gonzalez that demonstrated the effect ofthe legacy preference on alumni giving. In response, Harvardprovided no quantifiable data, but asserted that "based on hundreds,perhaps thousands, of conversations with alumni whose sons anddaughters have applied [to Harvard]," they believed thatthe legacy preference stimulated financial contributions andthat "alumni whose children have been rejected may severall connections with the University." (Letter to OCR, July 2, 1990). Also on page 48, the report concludesthat "[t]he issue of the legality of alumni preference underTitle VI remains unresolved." This is not true with repect toits use at Harvard. Harvard's use of the legacy(alumni) preference as one factor in the admit/reject decision is not inconsistentwith the requirements of Title VI. While the Commission may have more general concerns about the legality of alumni preferencesunder Title VI, it should not obscure the distinctionbetween those concerns and OCR's specific findings with respectto Harvard.

On page 49, the report suggeststhat OCR, by relying upon the Rosenstock decision, erroneouslyemployed a "rational relation" test, developed under the due processand equal protection clauJes of the U.S. Constitution, whenit should have looked to the more demanding "strict scrutiny"standard in conducting its review of Harvard's use of legacy tips. Neither proposition is correct.

OCR did not use a "rationalrelation" test. Instead, OCR, in making a determination under Title VI,utilized a legal standard and analytical frameworkderived from Title VII "disparate impact" cases. griggs v. Duke_aygr_gemgeny, 401 U.S. 424 (1971); McDonnell Deuglee v. Green, 411 U.S.792 (1973), Wards Cove Packing_0.1_ V. Antani2, 490U.S. 642 (1989). Following the approach developed in these cases, OCR'sinvestigation: (1) identified whether there was asignificant disparity in the rate of acceptance for Asian-Americanapplicants; (2) identified criteria that caused the disparity; (3)ascertained whether the recipient was able to offer a legitimatejustification for the criteria; (4) identified whether there were anyalternative criteria that are less divisive that wouldhave accomplished the recipient's legitimate ends; and (5) if there weresuch alternatives, determined whether the recipienthad legitimate reasons for not adoptingthem.

OCR should not have applied theconstitutional standard of "strict scrutiny" to its review of the Harvardlegacy policy, because the policy does not employ,implicitly or explicitly, a racial or ethnic classification. OCR found that the application of the legacy tips resulted in adisparate impact on the basis of national origin. Therefore, analysis under the Title VII disparate impact standard was mostappropriate.

216 Page 7 - Mr. Wilfredo J. Gonzalez

Finally, on page 49 the report criticizes OCR for basing its approval of legacy tips "on 'one Federal district court's willingness to recognize a link' between an institution's economic interest and alumni contribution." OCR's determination on the legitimacy of the use of the legacy tip at Harvard was based on a standard Title VI analysis following Title VII precedents, not on the decision of "one Federal district court."

Thank you for affording me this additional opportunity to comment on the Commission's draft report. If I can be of further assistance to you, please contact me at FTS 732-1213.

Sincerely,

ichael . Williams ssistant Secretary for Civil Rights

Enclosure

217

I 229 FACT SHEET-OCR POLICY UPDATE ONICHOOLS' OBLIGATIONS A. . V 1. It I lk I t 'it P DIO LIMITED-ENGLLSH PROFICIENCY

kupose of the Policy Updat,

Q: Why is this issue important?

A: Without special language assistance, an estimated two million limited-English proficient students from a wide variety of ethnic and racial backgrounds may not have meaningful access to their schools' programs. In his AMERICA 2000 strategy, the President calls for meeting the educational needs of all students.

Q: Why is OCR involved in this area?

A: OCR is responsible for enforcing Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin in programs or activities that receive Federal financial assistance.OCR has interpreted Title VI to require that school districts "take affirmative steps to rectify (English] language deficiencies which have the effect of excluding national origin minority children from participation in the educational program offered." In LILLAAHigh21A, 414 U.S. 563 (1974), the Supreme Court upheld this interpretation of Title VI.

Q: What is the purpose of the policy update?

A: The policy update is designed to provide additional guidance to our regional offices about what schools must do to comply with Title VI. OCR has distributed this policy widely to make schools, parents, and students aware of schools° obligations under Title VI and to ensure better compliance with Title VI. This policy update does not change OCR's policy under Title VI.

Acceptable Alternative Language pmgram

Q. Must school districts use a particular type of alternative language program, such as transitional bilingual education or English as a Second Language, to comply with Title VI?

218

230 A. No. Districts may use any program that is recognizedas sound by some experts in the field or is considereda legitimate experimental strategy. Examples of such programs include transitional bilingual education, bilingual/bicultural education, structured immersion, developmental bilingual education, and Englishas a Second Language.

Q. Has a school district satisfied its responsibilities under Title VI once it chooses an appropriate alternativelanguage program?

A. No. The district must also carry ,zut theprogram properly and provide the teachers and resourcesnecessary for the program to succeed. In addition, the school district must modify its program if, aftera legitimate trial, does not succeed in enabling LEP students toovercome their language barriers. As a practical matter, school districts will be unable to comply with this requirement withoutperiodically evaluating their programs.

AtEALIKAPAPIKARIAtA

Q. What sort of qualifications must teachers ina bilingual education program have?

A. Teachers of bilingual classes must be ableto speak, read, and write both languages, and they shouldhave received adequate instruction in the methods of bilingualeducation. They must also be fully qualified to teachthe subject matter of the bilingual courses. In addition, the school district must be able to show that ithas determined that its bilingual education teachers havethe required skills.

Q. If a school district usesa program other ihan bilingual education, what sort of qualificationsmust the program's teachers have?

A. The program's teachers must have receivedadequate training in the specific teaching methods requiredby that program. This training can take the form of in-servicetraining, formal college coursework,or a combination of the two. Thc district should ensure, through testingand classroom observation, that teachers have actuallymastered the skills necessary to teach in the program successfully.

219 211 Q. How can a school district comply with Title VIif qualified teachers for its program are unavailable?

A. First, a district should be prepared to describe the efforts it has made to hire qualified teachers. If qualified teachers are temporarily unavailable, the district must require its teachers to work toward obtaining formal qualifications. In addition, the district must ..trisure that those teachers receive sufficient interim training to enable them to function adequately in the classroom, as well as any assistance they may need from bilingual aides that may be necessary to carry out the district's interim program.

Q. Can LEP students be taught solely by bilingualaides?

A. No. Bilingual aides must work under the direct supervision of qualified classroom teachers. LEP students should not be receiving instruction from aides rather than teachers.

Q. What qualifications must bilingual aides meet?

A. To the extent that the district's chosen educational program requires native language support, and if the district relies on bilingual aides to provide such support, thedistrict should be able to demonstrate that it has determined that its aides have the appropriate level of skill in speaking, reading, and writing both languages. Aides at the kindergarten and first grade level, however, need not sjii.14gats,demonstrate reading and writing proficiency. Q. When can a school district exit a student from an alternative language program?

A. Students may not be exited from an alternative language program unless they can read, write, and comprehendEnglish well enough to participate meaningfully in the district's regular program. Exit criteria that simply measure a student's oral language skills are inadequate. The district's exit criteria should be based on objective standards, such as test scores, and the district should be able to explain why students meeting those criteria will be able to participate meaningfully in the regular classroom.

220 Q. If a school district elects to emphasize English over other subjects when LEP students first enroll, does the district have any obligation to provide special instruction to dle students once they learn English well enough to function in the regular classroom?

A. Yes. While schools with such programs may discontinue special instruction in English once LEP students become English-proficient, schools must provide the assistance necessary to remedy academic deficiencies that may have occurred in other subjects while the student was focusing on learning English. Clifted/Talontedimusa

Q. Can school districts refuse to consider admitting LEP students to gifted/talented programs?

A. No. If a district has a process for locating and identifying gifted/talented students, it must also locate and identify gifted/talented LEP students who could benefit from the program. Exclusion of LEP students from gifted/talented programs must be justified by the needs of the particular student or by the nature of the program.

0:101.Ss_m_sli

Q: How does OCR ensure that school districts fulfill their obligations under Title VI?

A: OCR Investigates complaints filed by individuals or groups who believe that they, or others, have been subjected to discrimination. Even if no formal complaint has been filed, OCR can conduct compliance reviews of school districts to determine whether they are fulfilling their obligations under Title VI. In addition to conducting investigations, OCR provides technical assistance to state and local education agencies and program beneficiaries to inform them of their obligations and rights under Title VI. Technical assistance is provided using a variety of methods including on-site consultations, training, workshops, and meetings.

Q: What happens if OCR finds that a school district°s treatment of LEP students violates Title VI?

221

2 1 3 A: If OCR finds a Title VI violation, we try to negotiate a corrective action plan under which the district specifies the actions it will take to remedy the violation. If negotiations are successful, OCR issues a letter of findinss detailing the Title VI violation and stating that the district has agreed to remedy the violation. We then monitor the district's actions to ensure that it has carried out the corrective action plan.

If OCR is unable to get the district to agree to a corrective action plan, we initiate formal enforcement activities which, after an administrative hearing, can lead to the termination of all Federal financial assistance to the district unless the district agrees to remedy the Title VI violation.

Q: Who can we contact for information on how to file a complaint or obtain technical assistance?

A: You can call OCR at (202) 732-1213 to obtain the address and telephone !umber of the OCR regional office responsible for your area. The regional office will be able to give you specific information about filing a complaint or obtaining technical assistance.

222 214 UNIVERSITY OF CALIFORNIA, BERKELEY

BIEREILEY DAVIS IRVINELOS ANGELES RIVERSIDESAN MECO SAN FRANCISCO

OFFICE OF ThE CHANCELLOR BERKELEY, CALIFORNIA 94720

October 16,1991

Mr. James S. Cunningham Assistant Staff Director for Programs, Policy, and Research United States Commission on Civil Rights 1121 Vermont Avenue, N.W. Washington, D.C. 20425

Dear Mr. Cunningham:

Thank you for the opportunity to review sections of the draft report Civil Rights Issues Facing Asian Americans in the 1990s. As an active member of the Berkeley faculty during most of the 1980s, I wasvery interested to revisit many of the issues with which we struggled. I am also impressed by the thoroughness of the research reflected in the draft and in the extensiveuse of primary sources.

At the same time, however, I mustsay that I am somewhat troubled by the tone of the sections dealing with Berkeley.I believe the current draft places too much emphasis on the allegations against the University andtoo little on the findings of the investigative bodies. Overall, much less attention is devotedto the University's side in the current draft, and muchmore is given to speculation about motivations. I believe the draft should cite the facts of thecontroversy more concisely and in a more balanced manner.

I hope these comments will be helpful.

Sincerely,

Chang-Lin Tien Chancellor

223

2 1 5 HARVARD UNIVERSITY

DANIEL STEINER MASSACHUSETTS HALL Vice President and General Counsel CAMBRIDGE, MASSACHUSETTS 02138 (657) 495-4778

November 7, 1991

Mr. James S. Cunningham Assistant Staff Director for Programs, Policy and Research U. S. Commission on Civil Rights 1121 Vermont Avenue, N.W. Washington, D. C. 20425

Dear Mr. Cunningham:

Thank you for your letter of October 28, 1991 andfor the revised version of the Harvard University portion of the draftreport of the Commission on Civil Rights.The changes from the earlier version are, as you wrote, significant, and we accept yoursuggestion that we sub stitute this letter and the enclosure for our earlierletter as the Harvard comments that will be included with the final report as an appendix.

As set forth in the enclosed memorandum, someof the earlier expressed serious concerns still remain.The criticism of the methodology employed by the Office of Civil Rights, Departmentof Education (OCR) in its investigation of Asian Anericanundergraduate admissions at Harvard and Radcliffe Colleges seemsunwarranted and based largely on speculation that different approachesmight have produced different results. The draft report fails to provide any solid argument for faulting the OCR methodology.The draft report also tries to make an issue of the extent to whichHarvard in fact uses an ethnic reader to reviewapplications for admission. Title VI does not require Harvard to involve an ethnicreader in its admission process, and the extent to which one is usedis irrelevant to the question of discrimination. In respect to the two factors that accounted for the small difference in the admission rateof Asian American applicants, the Commission's discussion ofthe legal issues shows an inadequate understanding of the analysisperformed by OCR, which is the Department charged by law with the interpretationof Title VI, and of the applicable legal concepts underestablished case law.

224 Mr. James S. Cunningham -2- November 7, 1991

Both OCR and Harvard invested enormous amounts of time, thought, and energy in the two-year investigation into the questions ofalleged quotas on Asian American admissions and other forms of dizcrimination. OCR definitively concluded that Harvard did not discriminate inany way. The range of the analysis and the amount of data-- from regression analysis involving thousands of numbers to folder-by-folder review of hundreds of applications-- demonstrates the breadth and quality of the review.Over the years, Harvard has devoted a great deal of attention not only to compliance with Title VI but alsoto affirmative action in Asian American admissions.Our affirmative action program, particulaLly our extensive recruiting efforts,has been effective:Asian Americans in 1990 and 1991 constitutedover 19% of the entering freshman class as opposed to under 5% inthe late 1970s. The conclusions reached by OCR fairly reflect Harvard's actions in an area that has great meaning to usas we seek an able and diverse student body, and we would hope that the Commissionon Civil Rights, before criticizing an extensive OCR investigation, would provide a better reasoned, sounder basis for its criticism.

We appreciate your courtesy in sending us the revised draft report for comment. If we can be helpful in any way in theprocess of further consideration of the draft report,we are prepared to review any later drafts or to meet with you and your staff.

Sincerely,

Enc.

225 217 MEMORANDUM OF HARVARD UNIVERSITY ON DRAFTREPORT

This memorandum presents Harvard University's comments onthat section of the U.S. Civil Rights Commission's draft report that concerns the Title VIreview of Asian American admissions conducted by the Department of Education'sOffice for Civil Rights (OCR). Harvard's comments concern three parts of the draft report: thestatistical analysis, the examination of the admission process, and the preference given tochildren of alumni.

Before turning to these matters, we have one preliminary comment.The Commission characterizes OCR's report as providing for the first time "well-guardedinstitutional proprietary information about Harvard's admissions procedures." (p.35) In fact,however, previous public statements by Harvard and reported research about itsadmissions process had disclosed the essential elements of the process; OCR's report corroborated thoseprior accounts.Our admissions process has been studied by innumerable faculty committees,by many graduate students (including the researcher referred to in the Commission'sfootnote), and by various publications.Indeed, a recent book by the former Dean of the Facultyincluded an entire chapter on Harvard admissions, Far from being secret, Harvard'sadmissions process has been extensively discussed in the public domain.

Statistical Analysis

Some of the Commission's comments on OCR's statistical methods seem tospeculate without basis that alternate methodological approaches would have haddifferent results.The Commission criticizes OCR's aggregation of data without addressingOCR's justification (mentioned in footnote 114) that the sample size was too small to be completelyreliable. Note that OCR's statistical analysis aggregated data from 10 years, looked atdata from individual classes, and analyzed particularly the more recent classes (the classes of1991 and 1992). While we are confident that no discriminationoccurred in any of the years reviewed, we agree with OCR's approach that ensuring current compliance is the proper goalof a Title VI review. There are, after all, sound policy reasons for statutesof limitation; not only is proof less "stale" and more likely to be available, but alsogovernmental resources are focussed on what a recipient of federal funds is doing now and not in the distant past.

More significantly, we find troubling the discussion that endsthe section on statistical analysis (p. 411. The Commission speculates at length that admissionsofficers might have held biases that might have affected personal ratings that might have affectedadmissions decisions. The report does not mention at this point that OCR itself considered thishypothesis, addressed it by reviewing files, and concluded that there was no evidence of suchbias.While the

226 S Commission discusses this aspect of OCR'sanalysis later in its draft report, its raisingthis issue in this way -- based purely on speculation and without immediately acknowledgingthat OCR's review disproved it-- unfairly implies discrimination. If a reader looked onlyat this section of the report without turning to the laterdiscussion (which is not cross-referenced),that reader could easily conclude that subjective biasmight have affected theprocess.

EiciminationsilfauxiaMmuLoocts.'i n Pr s

We believe that the Commission' report exaggerates the "problems" that it highlightsin this section, and showsa misunderstanding of the careful process used byHarvard's admissions committee. The statement in theintroductory paragraph that OCR found"several potential sources of discrimination"in the admissionsprocess overstates the case:indeed, the Commission's report mentions onlytwo (the ethnic read and the "stereotypingcomments"), neither of which is orwas found to be discriminatory in practice, andthe former of which could not be a "potential source of discrimination".

On the issue of the Asian Americanethnic reader, we believe thatthe Commissit. misconstrues OCR's findings. First,it should be recognized that Harvardhas chosen to use an ethnic reader as an additionalmethod of ensuring that applicantsfrom arying ethnic backgrounds are treated sensitively.The members of the admissions staffwho serve as ethnic readers are particularly knowledgeableabout certain ethnicgroups and serve as additional advocates for such candidates. Theethnic readers may be the admissionsofficers routinely assigned as the first, second, or third readers of a folder; sometimes, they givea folder an extra read, a "fourth read", in theircapacity as the ethnic readers.They also serve as informal advisors to other readers in theoffice, and often give oralcomments as asked by other admissions officers.The ethnic reader is generally assignedto the dockets (geographical groupings of applications) from whichmost of the applicants in that particular ethnicgroup come. The ethnic readers are thus involved insome capacity with most ethnic applicantsto Harvard.

OCR found that approximately 19%of the folders of Asian Americanapplicants that it reviewed contained writtencomments by the ethnic reader. Harvardexplained that this percentage did not accurately reflect theethnic reader's involvement, sincemuch of that involvement was oral andwas thus never noted in writing in the folder. Forthe two classes that OCR reviewed, we continueto believe that the ethnic reader'sinvolvement in the applications of credible Asian Americanapplicants-- including reading files as an assigned "reader", reading without making writtencomments, giving oral advice,sittingin docket meetings, and participating in committee meetings-- was much closer to 80% than to 19%.

The Commission's draftreport shows a lack of understanding ofthis process, in that it distinguishes between a read done by the ethnic reader in her capacityas first reader and a read done in her capacity as ethnic reader. The ethnic reader brings herparticular sensibility to the process whenever she reads the folder, andthe Commission's (and indeed OCR's)distinction is therefore meaningless.Moreover, the Commission'sreport responds to Harvard's explanation

2 227 21 9 repeating that the written that the ethnic reader's involvement wasoral, not written, simply by documentation did not support thisassertion -- which by definition itcould not. quite rightly, that We also find the Commission'sfootnote 125 confused. OCR stated, providing an ethnic reader. Harvard is not required underTitle VI to take affirmative action by The Commission then arguesthat if OCR found that the lackof an ethnic read resulted in discriminatory treatment, this lack couldviolate Title VI. We are puzzled as tohow the lack of something that is not requiredcould ever be discriminatory;in other words, does the Commission suggest that this sortof affirmative action may belegally mandated?

St i_e_mtypAgli omments

The word "stereotype" implies anegative categorization withoutfoundation. Some of not in the comments that the Commissionand OCR label "stereotyping" comments are themselves negative; there is, for example, nonegative rating associated with being"shy". Nor is there anything negative in the term"classic"; a student from a "classic"blue collar, inner city background is one of the kinds ofapplicants whom Harvard tries torecruit.Moreover, these characterizations were frequently based oninformation given to Harvard by others,including, in some cases, the studentsthemselves; those "stereotyping"characterizations can hardly be submitted by attributed to Harvard admissions officerswhen they are founded in the documents others. We also note that theCommission's report fails to quote that partof OCR's report stating that some readers showedunusual sensitivity to possible bias inteachers' or others' reports. And finally, evenif the so-called stereotyping comments were"negative" in themselves effect on the ratings, and and were without foundation,OCR's review showed that they had no no effect onadmissions decisions.

Legacy Tips

It is important to put the "tips"for children of alumni in context.First, the great majority of alumni children who apply toHarvard are extremely well qualified.While test scores are only oneindication of ability, it is worth notingthat, in the most recent classes, the scores of the admitted alumni children arealmost the same as the average of theadmitted class (an insignificant 10 points less) and abovethe overall average of applicants.Then' is a natural self- selection by the children of alumni, and manyof the less strong potential candidatessimply do the not apply. Second, themajority of alumni children who apply arenot admitted. And third, number of alumni children at Harvardis not large: over the past two years,approximately 13% of the incoming class has been comprisedof the children of alumni while over19% has been Asian American.

The Commission's reportmisconstrues OCR's analysis of thisissue and misstates applicable law. OCR addressed thelegality of preferences in admissionsby analogy to the considerable body of employment lawthat has grown up under Title VIIof the Civil Rights Act admissions process the disparate impact of 1964.Specifically, OCR applied to the college 424 (1971) and analysis used in such Title VII cases asGriggs v.. Duke Power Co., 401 U.S.

3 228 2-40 Larsmadrciamrsa.,_yaimiy, 422 U.S. 405 (1975). Its statistical analyses showedthat the somewhat lower acceptance rate for Asian American applicantscould be explained by the preferences accorded to legacies and athletes-- categories in which Asian American applicants to Harvard are currently somewhat underrepresented.(This "underrepresentation" exists ir. comparison to the pools of applicants, not necessarilyto the general population. In recent years, more Asian American students have participated in intercollegiate athletics, and the pool of athletes increasingly includes Asian American students; andas the more recent alumni have children applying to college, the pool of Asian American legacyapplicants will increase.)

Using the Title VII model, OCR effectively shifted the burden of persuasionto Harvard, which in turn explained and defended its policies.In respect to alumni children, Harvard pointed out the extraordinary importance of alumni financial and othercontributions to Harvard's achievement of its educational objectives.Alumni gifts of over $36 million in 1989were essential to our need-blind admissionsprogram; over 4,000 alumni serve on committees throughout the United States that recruit and interview applicantsto Harvard; more than 37,000 dues-paying members of Harvard and Radcliffe Clubs contributeto scholarship funds; and alumni assist Harvard in many other significantways.

The OCR report examined Harvard's explanations, foundthem supported by empirical evidence, and concluded that Harvard had shown thatthe legacy, as well as the athlete, policies served "legitimate institutional goals." OLA then weighed, andaccepted, Harvard's assertion that there are no acceptable alternatives that mightserve these legitimate goals. OCR also recognized the latitude that courts have given universitiesin selecting their students and achieving diversity.

The Commission's report seems '.o be confusedon the case law and to put an impossible burden of proof on Harvard, a burden that is not called for underthe analogous Title VII law. The Rosenstock case, which OCR mentioned, is simplyone case in which alumni preferences were addressed.It does not control in Harvard's situation because,as OCR noted and as the Commission notes, it involves constitutional law,not Title VI. The Commission's discussion about "suspect classes" is thus irrelevant; that isa concept used in constitutional cases but not in Title VI cases.

Moreover, the Commission states that OCR "might have askedfor supporting evidence" that alumni support would drop if the preferenceswere not given, and that there are no reasonable alternatives for such support.Harvard in fact provided ample supporting evidence for the policy by explaining the rationale and giving factsconcerning alumni involvement. But the Commission seems to be asking for somethingmore: that Harvard prove what would happen if it chose not to give a preference for alumni children.Harvard would then be faced with the impossible task of proving theconsequences of a hypothetical condition.

As to reasonable alternatives for support, OCR presumablyknew from its close involvement with higher education in the United States todaythat many educational institutions are facing significant shortages of funds.Federal government support has been declining

4 229 241 steadily; state support is even moredepleted; and many grant making entities havereduced their Budget awards.Tuition and fees are already high and cannotbe significantly increased. cutbacks and general retrenchmentprevail.The generosity of alumni and otherdonors to Harvard remains the one potential source of revenuethat can help to make up for the decline in other sources of support.

We would also point out that there are manytips commonly granted by colleges in addition to the tip for alumni children, such asthe tip for recruited athletes or forin-state residents.The legal and policy issues on tipsshould thus be considered in this larger framework.For example, if a private college in a statethat has a small Asian American community grants a preference to residents of the state,is that tip illegal?If not, under what standards must it be evaluated, and whatburden of proof must the college bear?Similarly, how could a college prove the legitimacyof a tip for athletes? And how do the legalissuei mesh with the academic freedom traditionallygranted to colleges in the province of admissions?

The admission of ethnic minorities toHarvard has greatly increased the diversity in its broadest sense -- and vitality of thecollege. We are committed to continuing ourpolicies that have resulted in Asian American studentsconstituting nearly 20 percent of the freshman class. We consider OCR's report to be impartialand thorough, and view it as objective corroboration that Harvard's policy is not onlynondiscriminatory but also fundamentally fair.

November 7, 1991 MCP7:civRTcom.2

230 5 212 THE OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE WASHINGTO", D.C. 20301-4000

FORCE MANAGEMENT AND PERSONNEL 1 11OCT 1991 Dr. James S. Cunningham Assistant Staff Director for Programs, Policy and Research 1121 Vermont Ave., N.W., Rm 700 Washington, D.C. 20425

Dear Dr. Cunningham:

Thank you for your letter of September 27 to the Secretary of Defense concerning a section of the draft report, Civil RightsIssues Facing Asian Americans in the 1990s. I have been asked to reply.

The section of the report we received is entitled Religious Accommodation by the Military. You asked for our comments on the accuracy of this section. Attached are our comments for your consideration.

I hope that these comments are of some benefit toyou. If you have any questions, please callme or my Deputy, Lieutenant Colonel Jim Schwenk, at (703) 697-3387/5947.

T. D. Keating Captain, JAGC, USN Director, Legal Policy (Requirements & Resources) DoD Comments "Religious Accommodation by the Military" from Civil Rights Issues Facing Asian Americans in the 1990s

We believe that your comments on page 59 of the report fairly summarize the standard of review of military decisions that was discussed in golaman. Howeverr we do not agree with your analysis of the legislative intent in passing 10 USC 774. Three sentences in your report state opinions that we do not believe are accurate.

The first sentence of the first full paragraph on page 60 of the report contains the phrase "such as Jews who seek to wear yarmulkes and Sikhs who seek to wear turbans."The phrase is used to explain why Congress enacted 10 USC 774. While we agree that Congress enacted that statute because of concern for religious accommodation in the wearing of uniforms, we do not believe that Congress, as a whole, focused explicitly on Jews and Sikhs.

In our view, the statute clearly demonstrates that, as a whole, Congress focused on the broader issue of religious apparel for all groups. Although certain members may well have considered the statute to be a relief measure for one particular religious group or another, the statute does not address any particular group. More- over, the statute authorizes the Secretary concerned to prohibit the wear of Any item of religious apparel, if the Secretary determines either that the item is not neat and conservative or that its wear would interfere with military duties. We do not believe that Con- gress would have passed a bill with such broad language, and given the Secretary concerned such broad authority, if Congress had intended to authorize the wear of yarmulkes and turbans. Instead, we believe that Congress would have simply authorized their wear, clearly and explicitly, in the statute. This Congress did not do, so we recommend that you delete this phrase from the report.

Six lines below the line discussed above, the report states, "Although the law does not mention yarmulkes or turbans, the Confer- ence Report makes clear that Congress expected these to be allowed." The cited conference language states, in pertinent part, "The law does not list eligible items of apparel, but the conferees note that the Army in the past has permitted the wearing of Sikh turbans and

232 that the Senate and the House floor debates cited various examples of the wearing of Jewish yarmulkes by members of the Armed Forces."

The cited language does not "make clear" that Congress intended yarmulkes and turbans to be allowed in all circumstances. The conferees merely noted that, in the past, one service had permitted turbans to be worn, and that the wear of yarmulkes was common in certain circumstances. The conferees' intent was that the Secretary consider that practice when deciding how to implement the law. Had the conferees intended to mandate the wear of turbans and yarmulkes, they would not merely have "noted" our past practice, but would have clearly expressed their intent that DoD allow the wear of those specific items of apparel. This the conferees did not do, so we recommend that you delete the sentence that begins with "Although" including the cited conference report language.

Finally, the first sentence of the first full paragraph on page 61 states, "Despite the legislative history and the intent of Con- gress, the Department of Defense (DoD) has issued regulations banning the wear of Sikh turbans with the uniform." We believe, as the Secretary of Defense said in the letter cited in the report, that our regulation fully complies with the law, the legislative history and the intent of Congress. We recommend that you rewrite the quoted sentence to read, "In implementing this law, the Department of Defense has issued regulations that prohibit the wear of religious apparel, such as turbans, that replace the wearing of required items of the uniform or interfere with the wearing of protective equipment such as helmets and gas masks."

* U.S. GOVERNMENT PRINTING OFFICE:1992.619.508/41376 233 215