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Compulsory Whiteness: Towards a Middle Eastern Legal Scholarship†

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Compulsory Whiteness: Towards a Middle Eastern Legal Scholarship† Compulsory Whiteness: Towards a Middle Eastern Legal Scholarship† * BY JOHN TEHRANIAN INTRODUCTION...........................................................................................................2 I. THE RACIAL IDENTIFICATION OF INDIVIDUALS OF MIDDLE EASTERN DESCENT IN HISTORICAL PERSPECTIVE.............................................................................6 A. Constructing Caucasians .......................................................................7 B. Confronting the Middle East: Early Contemplations of Racial Belonging .............................................................................................11 C. Negotiating Middle Eastern Racial Status in the New America: Covering, Passing, and the Irresistible Urge Towards Assimilation and Ethnic Denial........................................................................................17 II. THE MIDDLE EASTERN EXCEPTION: BEARING THE BURDENS, BUT NOT ENJOYING THE PRIVILEGES, OF WHITENESS ....................................................23 A. The Myth of Racism as an Historical Phenomenon .............................23 B. Civil Rights Inchoate: The Rising Tide of Hate Against Individuals of Middle Eastern Descent........................................................................25 C. The Middle Easterner as the Other: The Slippery Slope from Friendly Foreigner to Enemy Alien, Enemy Alien to Enemy Race .....................32 D. Justice Denied: The Judiciary and the Middle Eastern Subject...........35 III. ADDRESSING THE PROBLEM............................................................................36 A. The Only Thing Worse Than Being Reduced to a Number Is Not Being Reduced to a Number: Quantifying Discrimination Against Middle Easterners.............................................................................................37 B. Defining and Advancing Diversity: The Legal Academy and the Shortcomings of the Extant Literature in Critical Race Theory ...........38 C. A Middle Eastern Moment?..................................................................43 D. A Word of Caution: The Risk of Essentialization .................................44 CONCLUSION............................................................................................................46 † Copyright 2007 John Tehranian. All rights reserved. * Associate Professor, University of Utah, S.J. Quinney College of Law. A.B., Harvard University; J.D., Yale Law School. I would like to thank Richard Delgado, Martha Ertman, Ernesto Hernandez, Maryam Kia-Keating, Laura Kessler, Erik Luna, Kaipo Matsumoto, Geoffrey Rapp, Jean Stefancic, Joseph Su, Katharine and Majid Tehranian, Manuel Utset, and Jeremy Wooden for their insightful comments and suggestions on various drafts of this Article. The themes developed in this Article will be further explored in my forthcoming book, WHITEWASHED: AMERICA’S INVISIBLE MIDDLE EASTERN MINORITY, with New York University Press. 2 INDIANA LAW JOURNAL [Vol. 82:1 INTRODUCTION Some time ago, I was on the teaching market and I received an invitation to give a job talk at a law school. I flew to the school, enjoyed a pleasant day of meetings with the faculty, and received strong indications of support for my candidacy. I had been warned about the vagaries of the academic hiring process, so I naturally took this signal with a grain of salt, but remained cautiously optimistic. The day of the hiring decision arrived, and, as it turned out, a small minority of professors cast their ballots, in block, against my candidacy. Under department rules, full-time tenure-track positions required an affirmative vote of seventy-five percent of the faculty. I ended up one vote shy of the needed supermajority. The next day, I received a phone call from one of the faculty members. He told me the results of the vote and then dropped a rather curious line: “You shouldn’t take any of this personally. The group that voted against you thought you’d be a great colleague and a wonderful addition to the law school. It was just a race issue.” Thoroughly taken aback, I asked him to repeat his comment, just to make sure that I had heard him correctly. I had. Still nonplussed, I robotically mumbled: “Well, it’s sad to think that there might still be discrimination against minorities.” “No, no, John. They objected to the fact that you are white,” he replied. I was stunned. “White?” I said. “Yeah. They insisted that we hire a minority candidate. They’ve drawn a line in the sand and simply won’t accept another white male hire.” I chuckled at the unintentional pun and the notion that I was a white male. Apparently, the dissenters to my candidacy were a group of progressive liberals concerned about minority representation on the faculty. Ironically, they appeared indifferent to the lack of a single professor of Middle Eastern descent on the full-time faculty—a fact made more pronounced by the school’s presence in a community with a large Middle Eastern population and a ten percent Middle Eastern student body. More concerned with diversity de jure than de facto, the school counted statistical appearances over reality.1 Still in shock, I responded: “They do know that I’m Middle Eastern, don’t they?” “Yes, of course,” he said, “so they consider you white.” I was flabbergasted. I had suspected that I would come face-to-face with discrimination in the hiring process at some point in my professional experience, but I had never thought that it would be so unabashed and that it would stem from being considered white. At my wit’s end, I simply replied: “White, huh? That’s not what they call me at the airport.” Several days later, I received another phone call. This time, it was the dean of the law school on the line. He was calling to present me with a formal offer to join the faculty. I asked him what circuitous chain of events had led to this reversal. Apparently, after consulting with the president and general counsel of the university, he had determined that his faculty’s actions had violated numerous federal and state anti- discrimination laws. 1. As I argue later, race statistics almost uniformly count Middle Easterners as white. Thus, on paper, the hiring of a Middle Eastern male counts as the hiring of a white male. 2007] COMPULSORY WHITENESS 3 “They all agreed that they would love to have you on the faculty. The sole objection to your candidacy was your ethnic background—a small block of our faculty objected to the fact that you were white. They wanted the position to go to a minority candidate.” Needless to say, this bizarre sequence of events left me thoroughly perplexed. Ultimately, after contemplating the circumstances of the offer, I politely declined it. Yet the experience was not without merit. First of all, it served as a remarkable introduction to the realities of the academic hiring process, especially at the law-school level. Secondly, the experience highlighted the degeneration of the politics of race in certain circles. Though ripe for and deserving of further analysis, these topics remain beyond the scope of this particular Article. Instead, I would like to focus on one particular aspect of the story, a critical and wholly unaddressed issue: the ambiguous racial status of Middle Eastern individuals. As this vignette indicates, despite the use of race-based criteria in the hiring process, the racial status of Middle Eastern individuals remains thoroughly nebulous. And, this uncertainty informs problematic social policies and undermines progress in the fight against racial discrimination. Individuals of Middle Eastern descent are caught in a racial catch-22. Through a bizarre fiction, the state has adopted the uniform and mandatory classification of all individuals of Middle Eastern descent as white. On paper, therefore, they appear no different than the blue-eyed, blonde-haired individual of Scandinavian descent. As a consequence, Middle Easterners are ineligible for affirmative action policies and other remedial benefit systems. Within the confines of our legal education system, the increased presence of Middle Easterners does not count as a contribution towards diversity in the classroom or on the faculty—despite the fact that Middle Easterners advance diversity interests when assessed under both the academic theories of such scholars as Devon Carbado and Mitu Gulati2 or jurisprudential theories advanced by the Supreme Court in recent years.3 All the while, reality does not mesh with the bureaucratic characterization of Middle Eastern individuals as white. On the street, individuals of Middle Eastern descent suffer from the types of discrimination and racial animus endured by recognized minority groups. And, unlike most minority groups, Middle Eastern individuals have endured increasing levels of vilification and demonization in recent years, especially in 4 the wake of the war on terrorism and the 9/11 attacks. 2. See Devon W. Carbado & Mitu Gulati, What Exactly Is Racial Diversity?, 91 CAL. L. REV. 1149, 1150–51 (2003) (reviewing ANDREA GUERRERO, SILENCE AT BOALT HALL: THE DISMANTLING OF AFFIRMATIVE ACTION (2002)) (advancing a theory of diversity that contemplates inclusion, social meaning, racially-cooperative citizenship, belonging, color blindness, speech, and institutional culture). 3. See Grutter v. Bollinger, 539 U.S. 306 (2003) (upholding the compelling interest of educational institutions in diverse student bodies on the grounds that diversity promotes cross- racial understanding, enervates invidious racial stereotypes, and enlivens classroom
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