nys69-1_cv_nys69-1_cv 10/15/2014 7:32 AM Page 7 Reprinted from the New York University Annual Survey of American Law DESICRIT: THEORIZING THE RACIAL AMBIGUITY OF SOUTH ASIAN AMERICANS Vinay Harpalani Volume 69 Issue 1 2013 35559-nys_69-1 Sheet No. 45 Side A 10/20/2014 11:50:05 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 1 15-OCT-14 10:41 DESICRIT: THEORIZING THE RACIAL AMBIGUITY OF SOUTH ASIAN AMERICANS VINAY HARPALANI* ABSTRACT This Article analyzes the racial ambiguity of South Asian Amer- icans—peoples whose ancestry derives from the Indian subconti- nent—and has two major aims. First, it provides a comprehensive account of the racialization of South Asian Americans (Desi) a group that legal scholars have not considered at any length in the * Associate Professor of Law, Savannah Law School. J.D. 2009, N.Y.U. School of Law; Ph.D. 2005, University of Pennsylvania. In 2013, I presented this Article at the Yale Law School Critical Race Theory Conference, the Advanced Critical Race Theory Workshop at UCLA School of Law, and the Conference of Asian Pacific American Law Faculty. Much earlier versions were presented at the Latina and Latino Critical Legal Theory, Inc. (LatCrit) XIII conference, the annual meetings of the Law and Society Association and the American Sociological Association, the “Can ‘People of Color’ Become a United Coalition” Symposium at N.Y.U. School of Law, “Global and Local Dimensions of Asian America: An International Conference on Asian Diasporas” at the University of California, Berkeley, and the Asian American Studies Colloquium and the Interdisciplinary Studies in Human Development Proseminar at the University of Pennsylvania. Earlier versions of this Article also won writing prizes from LatCrit and from the National Association of Ethnic Studies. IIT Chicago-Kent College of Law provided financial and logistical support for this work from July 2012 to June 2014. The Fred T. Korematsu Center 35559-nys_69-1 Sheet No. 45 Side A 10/20/2014 11:50:05 for Law and Equality provided similar support from August 2010 to May 2012, while I was the Korematsu Teaching Fellow at Seattle University School of Law. I would like to thank Professors Devon Carbado (and his students), Robert Chang, Richard Delgado, Neil Gotanda, Eduardo-Bonilla-Silva, Raymond Gunn, Peter Huang, Thomas Joo, Brant Lee, Rosane Rocher, Christopher Schmidt, and Karen Shimakawa for helpful comments on various drafts of this Article. Tom Gaylord and Kathryn Kuhlenberg provided valuable research assistance, and Brittany Jones and Adrienne Lucas also assisted me in completing the Article. Student members of the N.Y.U. Annual Survey of American Law were also very helpful. Alex Gorman and Patrick Totaro provided insightful feedback as the development and article editor of this Article, respectively. Several other staff editors also assisted with its completion. Finally, the late Professor Derrick Bell and his wife, Ms. Janet Dewart Bell, supported my work in immeasurable ways, particularly while I was the Derrick Bell Fellow at N.Y.U. School of Law from September 2009 to June 2010. Well before I met him, Professor Bell’s pioneering scholarship in Critical Race Theory inspired me to go into the legal academy. It is rewarding for me that this Article is published in the N.Y.U. Annual Survey of American Law issue dedicated to Professor Bell. 77 35559-nys_69-1 Sheet No. 45 Side B 10/20/2014 11:50:05 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 2 15-OCT-14 10:41 78 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 rubric of American racial dynamics. The experiences of South Asian Americans are unique in the variety of racial classifications and characterizations they present, including in the U.S. Supreme Court case United States v. Thind, the “model minority” stereotype, “flying while brown” instances of racial profiling, and former Vir- ginia Senator George Allen’s “macaca” remark in 2006. Analysis of South Asian American racialization adds many general insights to Critical Race Theory (CRT), and this Article introduces “DesiCrit,” focusing on South Asian Americans as racially ambiguous beings, to go alongside LatCrit, AsianCrit, and TribalCrit. The analysis here covers the formal classification of South Asian Americans as white and non-white, and also examines informal racial characterizations of South Asian Americans as model minorities, mystical foreigners, and malleable scapegoats more generally. By analyzing South Asian American racialization, this Article aspires to its second major aim: beginning the synthesis of a general theoretical framework to analyze racial ambiguity of individuals and groups. In the process, this Article draws not only from CRT, but also from sociological theories of racialization, ethnic studies, his- torical and philosophical work on race and racial identity, and whiteness studies. It delineates formal and informal modes of racial- ization, extending racialization theory past the creation of legal cat- egories to racial symbols and performative notions of race. This Article expands the discourse on racial status hierarchies by exam- ining the agency of racialized actors, analyzing not only ascriptions of racial status by others, but also proactive claims to racial status by such actors. Also, this Article highlights the importance of “racial microclimes”: local historical and political climates that impact 35559-nys_69-1 Sheet No. 45 Side B 10/20/2014 11:50:05 racialization, particularly for ambiguous groups and individuals. Fi- nally, while this Article is a full account of South Asian American racial ambiguity, it also posits broader implications of this analysis for examining American racial hierarchy and dynamics more broadly. Introduction ................................................ 80 R I. South Asians in the United States: An Overview ..... 90 R A. Definitions and Use of Terminology ............. 90 R 1. “South Asian American” ..................... 90 R 2. “Desi” and “DesiCrit” ........................ 92 R B. Changing Demographics and Increasing Visibility ......................................... 92 R 1. Population and Regional Distribution ........ 92 R 35559-nys_69-1 Sheet No. 46 Side A 10/20/2014 11:50:05 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 3 15-OCT-14 10:41 2013] DESICRIT 79 2. Economic, Educational, and Occupational Diversity ..................................... 95 R 3. Varying Media Images: From Apu to Sanjay Gupta to M.I.A. to Bobby Jindal ............. 98 R C. Racial Ambiguity of South Asian Americans: A Primer........................................... 104 R II. Theorizing Racial Ambiguity ......................... 109 R A. Racialization Processes ........................... 109 R 1. Sociological Theories of Racialization ........ 110 R 2. Formal and Informal Modes of Racialization . 111 R B. Racial Status, Contestation, and Agency .......... 115 R 1. Whiteness and Racial Capitalism ............. 115 R 2. Claims and Ascriptions ...................... 117 R 3. Preliminary Synthesis: Racialization via Claims and Ascriptions .............................. 119 R C. Racial Microclimes............................... 121 R III. To Be or Not to Be White: Formal Racialization of South Asian Americans .............................. 122 R A. U.S. Immigration Policy I: The Yellow Peril and the Pacific Barred Zone ......................... 124 R B. Racial Prerequisite Cases Involving South Asian Americans Prior to 1922 ......................... 126 R 1. In re Balsara and United States v. Balsara ...... 127 R 2. United States v. Dolla.......................... 128 R 3. In re Mozumdar............................... 128 R 4. In re Sadar Bhagwab Singh, In re Mohan Singh, and In re Thind .............................. 129 R C. Caucasian but Not White: Ozawa v. United States, 35559-nys_69-1 Sheet No. 46 Side A 10/20/2014 11:50:05 United States v. Thind, and the Aftermath ........ 129 R D. “White by Law” Revisited?: Census Classification of South Asian Americans ....................... 133 R IV. From Model Minority to “Macaca”: Informal Racialization of South Asian Americans .............. 137 R A. “How Does it Feel to Be a Solution?”: South Asian Americans and the Model Minority Stereotype ....................................... 138 R 1. U.S. Immigration Policy II: State Selection and the Model Minority ..................... 141 R 2. Underemployment and the Glass Ceiling .... 143 R 3. Model Minorities, South Asian Politics, and People of Color Coalitions ................... 144 R B. Coloring Conservativism: Claims and Negations of Honorary Whiteness ............................. 147 R 35559-nys_69-1 Sheet No. 46 Side B 10/20/2014 11:50:05 \\jciprod01\productn\N\NYS\69-1\NYS108.txt unknown Seq: 4 15-OCT-14 10:41 80 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:77 1. Bobby Jindal ................................. 149 R 2. Nikki Haley .................................. 153 R 3. Intersection of Foreignness, Racial Ambiguity, and the Model Minority Stereotype .......... 155 R C. Racing Religion: Of Hated Hindoos, Spiritual Swamis, and Turbaned Terrorists ................ 157 R 1. The Hated Hindoo and the Dotbusters: Anti- Hindu Racism ............................... 157 R 2. New Age Orientalism: South Asians as Mystical, Exotic Foreigners................... 159 R 3. Arab and South Asian Americans as Turbaned Terrorists ......................... 161 R D. Brown Skin, Black Masks ........................ 163 R 1. Bengali Harlem.............................. 165 R 2. Hip Hop Desis .............................