REQUISITE REALIGNMENT: AFFIRMATIVE ACTION, ASIAN AMERICANS, AND THE BLACK-WHITE BINARY.

• Author: Patil, Moushmi

1. INTRODUCTION 1626 II. WHICH ONE DOESN'T BELONG?: ASIAN AMERICANS AND THE BLACK-WHITE BINARY 1630 III. ASIAN AMERICANS AND "ASPIRATIONS" FOR WHITENESS WITHIN THE BLACK-WHITE BINARY 1636 IV. A MOVE INTO THE PRESENT: AFFIRMATIVE ACTION, ASIAN AMERICANS, AND ASPIRING FOR WHITENESS 1639 A. Asian American Alignment with Whiteness in the Fisher v. University of Texas saga 1641 B. Asian Americans and Alignment with Whiteness in Students for Fair Admissions v. President & Fellows of Harvard College 1647 V. DANGEROUS DECISIONS: HOW WHITE ALIGNMENT WILL NOT LEAD TO EQUALITY FOR ASIAN AMERICANS 1650 VI. A WAY FORWARD: USING THE STUDENTS FOR FAIR ADMISSIONS BRIEFS FILED IN FAVOR OF AFFIRMATIVE ACTION AS A GUIDE FOR FUTURE CHANGE 1657 VII. CONCLUSION 1659 I. INTRODUCTION

   On January 6, 2021, a violent mob stormed the American Capitol building, intent on subverting the Congressional vote that would finalize the November 2020 election results. (1) Believing that the election was stolen from former President Trump, mobs of mostly White, (2) right-wing extremist groups gathered outside the Capitol and then ravaged its halls shortly after a Trump rally. (3) The Confederate flag flew proudly over the crowd. (4) Although the mob celebrated breaking into the building as a victory, many others saw it as a siege on American democracy. (5) To some, it was the culmination of various agitations from a White supremacist majority who believed they had been wronged, (6) demonstrated by symbols of White supremacy and anti-government extremism that lined the posters, banners, and clothing of those in the riot. (7) But the Confederate flag--a symbol that harkens back to White supremacism and dangerous discrimination (8)--was not the only flag that was flying proudly that day. To the surprise of some, South Asian American supporters of the insurrection waved the Indian flag alongside the Confederate one, blatantly stating their support of Trump and expressing their belief that rampant voter fraud in the 2020 election had led to antidemocratic results. (9)

   The coalition between White supremacist movements and some of those within minority groups, including South Asians, is certainly puzzling to those who know and understand the history of discrimination against Asian Americans in the States. (10) As one article argues, the irony of South Asians wearing "Make America Great Again" hats is particularly comical because the America that South Asians want back is the same one that did not let many Asian Americans enter its ports. (11) This clear alignment with Whiteness--with the White supremacist state--is not new, however. Not just South Asians but Asian Americans as a whole have often aligned themselves with Whiteness to fit into American society. This Comment will trace and explain this aspiration, while proposing that the key to Asian American equality is not striving towards a structure that has never and will never embrace them. Instead, it is solidarity movements between Asian Americans, Blacks, Hispanics, and other minorities. (12)

   As an introductory note, I acknowledge that the term "Asian American" is too broad to encompass the nuances of the different kinds of people that supposedly fit underneath that tent. Indeed, the term "Asian American Pacific Islander" constitutes East Asian, Southeast Asian, South Asian, West Asian, Micronesian, and Polynesian, (13) which can then be further broken down by nationality, such as Asian Indian, Bangladeshi, Burmese, Chinese, Filipino, Guamanian, Indonesian, Iwo Jiman, Japanese, Korean, Lao, Malaysian, Maldivian, Marshallese, Native Hawaiian, Nepalese, Okinawan, Pakistani, Palauan, Singaporean, Samoan, Tahitian, Taiwanese, Thai, Tibetan, and Vietnamese. (14) By using one broad term, I do not mean to erase the unique characteristics and cultures of these different groups or to expunge the moves made by them throughout the period discussed in this Comment. However, because most available data involves "Asian Americans" as a catch-all category, I will use the term throughout the argument, knowing that dialogue may become complicated if I choose to break down the term into its disaggregated parts.

   Part II of this piece begins by explaining the formation of the Black-White binary and Asian Americans' place within it. While Asians had entered the American stage in substantial numbers by the late nineteenth and early twentieth centuries, (15) the laws surrounding criminal protections and naturalization did not extend to them. (16) Despite attempts by Asian American litigants to force a unique space for themselves, the Black-White binary remained firmly intact, most saliently within citizenship cases in front of the federal courts. When Asian Americans found themselves without a place in the law, they sought to box themselves into the "White" (17) category, aligning themselves with Whiteness so that they could achieve the protections guaranteed towards this class of citizens. (18)

   Part III further discusses this "aspiration" for Whiteness, acknowledging that Asian Americans in the nineteenth century did not have much room to argue that they were instead Black. However, their lawyers made purposeful strides to distance Asian Americans from other minorities. Asian American litigants cleaved a space for themselves within Whiteness by explicitly distancing themselves from other non-White peoples, a phenomenon that can be seen most prominently through separate-but-equal and the naturalization cases from the nineteenth century that I first discuss in Part II. Part IV illuminates how this aspiration for Whiteness at the expense of other minorities has carried over into the twenty-first century, using the amicus curiae briefs filed by Asian American organizations in cases like Fisher v. University of Texas and Students for Fair Admissions v. President & Fellows of Harvard College as primary sources. Part V will explain why such alignment is dangerous: Asian Americans have never been and can never be considered White, except when the alignment would support White supremacist goals. When Asian Americans align with Whiteness in the hopes of achieving their own equality, they do so by spurning solidarity movements with other minorities that would both subvert the White supremacist state and lead to more powerful advocacy for all minority groups. (19) Part VI points to an example of this in an amicus curiae brief in Students for Fair Admissions v. President & Fellows of Harvard College, encouraging litigants to use such lawyering as an example of how solidarity movements can better achieve equality and equity not just for Asian Americans, but also for other minorities like Blacks and Hispanics.

2. WHICH ONE DOESN'T BELONG?: ASIAN AMERICANS AND THE BLACK-WHITE BINARY

   In the founding era, only "free white persons" were guaranteed the formal privileges of citizenship. (20) If the laws discussed Black people, it was almost exclusively in the context of slavery. (21) During Reconstruction, the government began extending protections to Black men, as exemplified by the Naturalization Act of 1870, (22) but state and federal systems simultaneously passed and interpreted laws that sought to exclude Black Americans from judicial proceedings, accommodations, schools, and more. (23) Within these statutes and amendments, there was very little, if any, mention of Asian Americans, even though Asians had first begun to immigrate to the United States in substantial numbers from the late 1800s to the mid-1900s. (24) In fact, as Dr. John Hayakawa Torok argues, the Reconstruction Congress made deliberate choices to use language like "citizens" and "inhabitants" in Reconstruction statutes and amendments to prevent Chinese immigrants from claiming the protections of citizenship bestowed on Black Americans. (25) State legislatures also did not explicitly provide protections to Asian Americans for decades. (26) Because the laws were so ambiguous, Asian immigrants initially attempted to carve out a place for themselves within the judicial sphere to either set themselves apart from discriminatory legislation or to claim protection under laws that benefited them. That endeavor ultimately failed, resulting in Asian Americans being forced to "box" themselves into either Whiteness or Blackness to obtain any sort of identity under the law.

   The criminal sphere is a particularly stark example of the existence of the Black-White binary and the way Asians were forced to fit themselves into it. In 1850, California passed a law restricting any "Black," "Mulatto," or "Indian" from serving as a witness against a White man. (27) Presumably, such laws existed to protect the White man, reflecting the belief that a White citizen should not be punished for harms he perpetuates against minorities. It could also reflect the belief that minorities could not be trusted, especially against the word of White persons. Unfortunately, California's statute was just one of many that exemplified how unequal the system was between those in power and those not and how protections differed greatly depending on the color of one's skin. (28)

   The prevalence of these statues does not mean, however, that such legislation was not challenged by litigation. Four years after the California legislature passed the statute, the state supreme court decided People v. Hall. (29) There, it was forced to confront whether a Chinese man who was attempting to testify against a White man would be barred from doing so under the 1850 statute. (30) Because the law did not encompass Asians, the most obvious answer for the California court was to hold that the statute did not apply as a restriction against Asian witnesses. Instead, the California court decided that the Chinese witness could fit under the definition of "Indian" because "this continent was first peopled by Asiatics, who crossed Behring's Strait . . . ." (31) Given this reasoning, it held the man's testimony inadmissible under...