Excerpted From: Moushmi Patil, Requisite Realignment: Affirmative Action, Asian Americans, and the Black-White Binary, 170 University of Pennsylvania Law Review 1625 (June, 2022) (166 Footnotes) (Full Document)


MoushmiPatilOn 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. Believing that the election was stolen from former President Trump, mobs of mostly White, right-wing extremist groups gathered outside the Capitol and then ravaged its halls shortly after a Trump rally. The Confederate flag flew proudly over the crowd. Although the mob celebrated breaking into the building as a victory, many others saw it as a siege on American democracy. To some, it was the culmination of various agitations from a White supremacist majority who believed they had been wronged, demonstrated by symbols of White supremacy and antigovernment extremism that lined the posters, banners, and clothing of those in the riot. But the Confederate flag--a symbol that harkens back to White supremacism and dangerous discrimination 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.

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. 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. 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.

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 AmericanPacificIslander” constitutes East Asian, Southeast Asian, South Asian, West Asian, Micronesian, and Polynesian, which can then be further broken down by nationality, such as AsianIndian, Bangladeshi, Burmese, Chinese, Filipino, Guamanian, Indonesian, Iwo Jiman, Japanese, Korean, Lao, Malaysian, Maldivian, Marshallese, NativeHawaiian, Nepalese, Okinawan, Pakistani, Palauan, Singaporean, Samoan, Tahitian, Taiwanese, Thai, Tibetan, and Vietnamese. 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, the laws surrounding criminal protections and naturalization did not extend to them. 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” category, aligning themselves with Whiteness so that they could achieve the protections guaranteed towards this class of citizens.

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. 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.

[. . .]

We have seen how Asian Americans have often aspired for Whiteness in many contexts and over many eras. In the early years of Asian immigration, this aspiration was forced. American politics had created a Black--White binary into which the government then shoehorned Asians, instead of creating separate spaces for them. And aligning with Blackness was not a viable legal argument, if only because the laws that dealt with rights of Black citizens were clearly meant for those who were descended from slaves or had been slaves themselves. So, while there might have been some semblance of a choice between White and Black, this choice was often a fictitious one, leaving Asian Americans no option but to align with Whiteness in the late nineteenth and early twentieth centuries.

However, while Asian Americans during this era were certainly constrained in who they could align with, they had leeway in the kinds of arguments they could make within those constraints. In both separate-but-equal and citizenship cases, some Asian American plaintiffs and their attorneys chose to use this leeway to force a wider division between themselves and other minorities, aligning themselves with Whiteness by explicitly differentiating themselves from other minority groups instead of only pointing out the ways that they were similar to Whites.

This phenomenon is salient even in the modern era, as demonstrated in affirmative action cases like Fisher I, Fisher II, and Students for Fair Admissions. Even though Asian Americans are no longer relegated to aligning with Whiteness--the statutes that made aligning with Blackness an impossibility have now been eliminated--some still sought to do so when they argued that affirmative action policies harmed Asian American communities. These alignments followed the same patterns as the ones in the late nineteenth and early twentieth centuries: Litigants aligned themselves with Whiteness by explicitly distancing themselves from other minorities.

These alignments continue to be harmful because the White supremacist structure has never allowed Asian Americans to be considered White, except when it benefits them. When Asian Americans and Whites are lumped together, it only serves to foster divisions between minorities that have led to the continuance of the White supremacist structure. This is why it is so important to create solidarity movements between minorities. The White supremacist structure is dominant because of its manipulation of race. It has succeeded in convincing some Asian American groups that one needs to be White to be equal. If we can topple this system by creating solidarity movements, then the system that holds Whiteness up as the paradigm of perfectness also falls.

The solidarity movements I encourage the legal world to pursue do exist. The examples that we have of such coalitions and relationships--like the ones in the Students for Fair Admissions litigation--should be the beacon that Asian Americans and other minorities look to when they discuss the ways in which they can seek equality. Doing so will create bonds between people that would elevate them all, instead of chains that would raise one race at the expense of another.

J.D., 2022 University of Pennsylvania Carey Law School; B.A., 2019, Cornell University.