Examining Race-Conscious Remediation Through Pilipino/a American Experience

Examining Race-Conscious Remediation Through the Pilipino/a' American Experience Citadelle B.
Priagula
INTRODUCTION
Legal examination of Asian American experiences has proliferated since the 1960s, when Asian Pacific Islander (API) 2 communities flourished after the Immigration Act of 1965 invalidated restrictive quotas on immigration from Asian countries. 3 The subsequent population surge provided the critical mass necessary for API groups to assert their rights and fight for their interests.4 In addition, these communities were inspired by and directly participated in the larger Civil Rights Movement.5 Further, the emerging political consciousness of the API community linked itself to the Black 6 community's struggle for race-
1. I use the term "Pilipino/a" rather than "Filipino/a". When Spain colonized the Philippines, the Philippines was renamed "Las Islas Filipinas" after Felipe (Phillip) of Spain. When the U.S. subsequently assumed colonial rule, "Las Islas Filipinas" became anglicized to "the Philippines." Native-born people were called Filipinos. However, there is no "f" sound in any of the major languages in the Philippines so "Filipinos" call the Philippines, "Pilipinas," and themselves "Pilipino/as." Annette B. Almazan, Comment, Looking at Diversity and Affirmative Action Through the Lens of Pilipinola American Students' Experience at UCLA and Berkeley, 9 ASIAN PAC. AM. L.J. 44 n.2 (2004). * Citadelle Priagula is a 2010 graduate of the UCLA School of Law, where she specialized in the Critical Race Studies program. She would like to thank the APALJ staff, especially Gary Li, Jason Wu, Jeremy Chen and Evelyn Wang, for their insightful comments and editing. She would also like to thank Professor Cheryl Harris for her oversight with this comment. 2. Note that the broader Asian American identity "was forged in the crucible of racial discrimination and exclusion," since the national identities of the groups mattered less than race did.
RONALD TAKAKI, STRANGERS FROM A DIFFERENT SHORE: A HISTORY OF ASIAN AMERICANS 502
(1998). Secondly, though the term "Asian American" certainly includes groups such as Pilipinos and Pacific Islanders, I use "Asian Pacific Islanders" to specifically include Pacific Islander groups that are identified within the larger umbrella group, such as Samoans and Chamorros. 3. It must also be noted that, despite the quota invalidation, the law was actually intended to ensure an immigration pattern that favored European immigration and limited immigration from Asian countries with larger populations, such as China and India. See id. at 419. 4. Asian Americans numbered one million in 1965, and their numbers soared to five million by 1985. This represents a four-fold increase from 1965 to 1985, compared with the 100 years spanning from the gold rush to the Immigration Act of 1965. Id. at 420.
5. See THE ASIAN AMERICAN ALMANAC: A REFERENCE WORK ON ASIANS IN THE UNITED
STATES 333 (Susan Gall & Irene Natividad eds., 1995). 6. I borrow from Kimberle Crenshaw and "capitalize 'Black' because 'Blacks,' like Asians, Latinos, and other "minorities," constitute a specific cultural group and, as such, require denotation as a proper noun. . . . By the same token, I do not capitalize 'white,' which is not a proper noun, since whites do not constitute a specific cultural group." Kimberle Crenshaw, Mapping the Margins: Intersectionality,Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1244 n.6 (1991).
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conscious remediation for historical and contemporary injustices. Within this larger movement, Pilipino/a Americans served a visible and vital role. They built solidarity with Chicano migrant workers through the Farmworkers Movement8, and joined Black, Latino, Asian, and Native American students in the third world Liberation Front (twLF) strikes to demand the establishment of Ethnic Studies departments at San Francisco State University. 9 Despite such efforts, the Pilipino/a American struggle has been largely erased from U.S. history, rendering the current discourse on race and the law
incomplete. In Robert Chang's 1993 Toward an Asian American Legal
Scholarship,Chang called for an Asian American legal scholarship to account for the unique forms of discrimination and subordination faced by Asian Americans. The API community has greatly benefited from the subsequent scholarship arising from this "'Asian American Moment' in the legal academy,"o and contributors who specifically highlight the Pilipino/a American experience further enrich the legal and academic landscape. As a community that was previously discriminated against and rendered invisible by the law, the voice of the Pilipino American community could also work more robustly to expose the legal system's failure to address the needs common to other communities of color. In this comment, I will interrogate where and how Pilipinos interact with and shape the landscape of civil rights and anti-discrimination law, specifically across the issues of war reparations, employment discrimination and affirmative action." Given their history of colonization first by Spain, then by the United States, Pilipinos have been positioned as "an Asian people not Asian in the eyes of their fellow Asian, not Western in the eyes of the West."' 2 This liminal status has affected the treatment of Pilipinos and the analysis of their claims under the
7. TAKAKI, supra note 2, at 418.
8. Imutan discusses the merger of the mostly Pilipino Agricultural Workers Organizational Committee (AWOC) and the majority Latino National Farm Workers Association (NFWA) into one union, the United Farm Workers. See Andy Imutan, What Happened When Mexicans and Filipinos Joined Together: 40th Anniversary of Delano Grape Strike Two-day Reunion in Delano, UNITED FARM WORKERS, Sept. 2005, http://www.ufw.org/ page.php?menu=research&inc=history/04.html. 9. The third world Liberation Front was a collaborative endeavor of the Afro-American Student Association, Mexican American Students Confederation, Asian American Political Alliance, Pilipino American Collegiate Endeavor, and Native American Students Union to establish ethnic studies at San Francisco State University. Additionally, the groups "organized and lead [sic] a series of actions to protest systematic discrimination, lack of access, neglect, and misrepresentation of histories cultures and knowledge of indigenous peoples and communities of color within the university's curriculum and State University, San Francisco Studies History, of Ethnic College program." http://www.sfsu.edu/-ethnicst/home2.html (last visited Oct. 19, 2009). 10. Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, PostStructuralism,and Narrative Space, 1 ASIAN L.J. 5, 11 (1993). I1. I discuss these three topics specifically because of the involvement of Pilipinos in shaping these areas of law. From Pilipino WWII veterans to Pilipino and Alaskan cannery workers to Pilipino high school students seeking entrance to institutions higher education, these groups have struggled for justice under U.S. law. Their triumphs and their failures exhibit both the law's potential and the ways in which it can disserve subordinated communities. 12. Almazan, supra note 1, at 58 (quoting Stanley Karnow, In Our Image: America's Empire in the Philippines14 (1989)).
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imperialist, intent, and colorblind regimes. 13 Further, examination of available remedies to Pilipinos exposes the inadequacies of these remedies in addressing the harms experienced. Part II of this paper will detail the concerns that motivated the conception of Asian Americans in this fragmented manner. Parts III through V will track the exploitation of Pilipino American identity along three issues and their corresponding doctrinal regimes: 1) war reparations and the imperialist regime; 2) employment discrimination and the intent regime; and 3) affirmative action and the colorblind regime. I argue that through the experiences of Pilipinos in these particular arenas where Pilipinos have been most affected, weaknesses in these remedies and their overriding doctrinal regimes are unearthed. 14 This survey reveals that Pilipinos are doubly harmed by the various conceptions of identity imposed on them.' 5 First, they are denied promised benefits in the form of discrimination-free workplaces and access to higher education. Second, they are harmed by the legal system's inability to address and historicize racial harms.16 Injustice is reproduced in the application of the law and its failure to effectively and meaningfully remedy the original claim.
FRAMING: PLIPINO AMERICAN IDENTITY As FLUID
The racialization process of APIs in this country has resulted in a fluid identity, whose various facets may be manipulated to justify various ends. 17 The Supreme Court's and lower courts' initial forays in constructing racial categories have run a wide gamut, from characterizing the Chinese as a "race so different from our own that we do not permit those belonging to it to become citizens of the United States,"' 8 to positioning APIs as constructive Blacks in order to curtail
13. By imperialist regime, I describe the extension of U.S. authority over other lands as part of the white nation-building project. By intent regime, I describe the move of courts in antidiscrimination law away from disparate impact analysis to require a showing of intent to discriminate. By colorblind regime, I describe the notion originating in Harlan's dissent in Plessy, that "our constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law." Today, the colorblind regime has amounted to the uncritical application of strict scrutiny analysis any time race has been invoked in our constitutional jurisprudence, regardless of which groups are bearing the burdens or reaping the benefits of the practice at issue. 14. 1do not intend to argue that the Pilipino experience is unique from other Asian American groups entirely. Rather, there are many touchstones of the minority immigrant experience that are salient across groups. Additionally, the experiences of individual Pilipinos in this country are widely varied and hardly monolithic. Instead, I chose to focus on this group to show how particular conceptions of a group's identity shape their treatment under the law. 15. See generally Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L.L. REV. 323 (1987). 16. Id. 17. See Almazan, supra note I (citing Michael Omi & Dana Takagi, Situating Asian Americans in the PoliticalDiscourse on Affirmative Action, 55 REPRESENTATIONS 155, 156 (Summer 1996)). 18. Plessy v. Ferguson, 163 U.S. 537, 561 (1896) (Harlan, J. dissenting). While Harlan's dissent in Plessy understood that the statute upholding "separate but equal" passenger cars for blacks and whites was truly intended to subordinate blacks, he also invoked notions that placed Chinese immigrants at the bottom of the racial hierarchy. Harlan employed "relational race" by positioning the Chinese as inherently incapable of assimilation. Id. See also Ozawa v. United States, 260 U.S. 178, 198 (1922) (holding that Ozawa, a Japanese-American, could not be considered for citizenship because citizenship
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group rights without upsetting the existing racial hierarchy.' 9 The racialization of APIs as "foreign" in the United States is also linked to the history of Asian immigration, which was largely driven by the need for inexpensive, replaceable labor. This racialization enabled farm owners to pit different minority groups against each other. For example, Chinese, Japanese and Pilipino workers in the Hawaiian plantation system were pitted against each other through the white plantation owners' "divide-and-control" strategy. The landowners' tactics included wage differentials on the basis of nationality and the cultivation of nationalist consciousness to further drive down wages and to prevent group solidarity. 20 The characterization of immigrants as "Other" also pitted workers of color against poor Irish, Italian and Eastern European white workers to prevent the unionization of subordinated groups and to drive down wages. 2 1 As a result, white workers viewed Asian Americans as unwelcome competition, who posed a very real economic threat to the livelihoods of white
workers.22
"Otherness" is also manifested in the public fear that Asian Americans constituted a "yellow peril." Here, Asian American disloyalty would support the military threat from the East.23 Most notoriously, the fear of yellow peril enabled the Supreme Court to declare the detainment and internment of Japanese American citizens and non-citizens in concentration camps following the attacks on Pearl Harbor constitutional. 24 Interestingly, the "yellow peril" label itself retains a volatile character when applied to individual groups across time. During the 1940's the Japanese were viewed as enemies during World War II, while the Chinese were viewed as allies. A shift occurred during the post-World War II era of McCarthyism, when the Communist party gained power in China. The Chinese were subsequently labeled as disloyal; despite their former status as allies, the "new peril was seen as yellow in race and red in ideology."25 Contemporary characterizations of APIs toggle effortlessly from "yellow peril" 2 6 to "model minority." The "model minority myth," expounded upon by
was reserved for the Caucasian race, despite his performative efforts to seek citizenship by attending U.S. schools, speaking English at home, and residing in the U.S. for over 20 years,). 19. See People v. Hall, 4 Cal. 399, 399 (1854) (holding that testimony from Chinese immigrants was prohibited from use against whites). The statute at issue banned testimony from black witnesses, and the court reasoned that "black" was a generic term meant to exclude all other races from the "white" category. See also Gong Lum v. Rice, 275 U.S. 78, 82 (upholding the constitutionality of denying a Chinese student entry into a white high school). The Supreme Court stated, "Most of the cases cited arose . . . over the establishment of separate schools as between white pupils and black pupils; but we cannot think that the questions is any different, or that any different result can be reached." Id. at 87. 20. TAKAKI, supra note 2, at 142. 21. See Natsu Taylor Saito, Model Minority, Yellow Peril: Functions of "Foreignness" in the Constructionof Asian American Legal Identity, 4 ASIAN L.J. 71, 86-94 (1997). 22. Id. at 89. 23. See Natsu Taylor Saito, Alien and Non-Alien Alike: Citizenship, "Foreignness" and Racial Hierarchy in American Law, 76 OR. L. REv. 261, 303 (1997). 24. See Korematsu v. United States, 323 U.S. 214 (1944). 25. Saito, supra note 3, at 304 (quoting TAKAKI, supra note 2, at 415). 26. In laying out Asian American identity as encompassing both model minority and yellow peril tropes, Saito discusses Gotanda's concept of "foreignness" as the necessary link connecting the two
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countless scholars, portrays Asian Americans as hard-working, studious and the modern-day poster children of the "American Dream." Both characterizations, despite their inherent contradictions, have been perpetuated by society's views of Asian Americans. Moreover, these characterizations persist despite the passage of time and the inapplicability of the labels to particular groups. However, this is not to suggest that these perceptions are diametrically opposed. Rather, the existence of both illustrates the ways in which identity is manipulated to maintain the status quo. The model minority myth, however, has numerous negative effects despite its seemingly beneficial portrayal of Asian Americans. It masks marked differences in income, educational attainment between API groups, and wedges Asian Americans against Blacks and Latinos. Furthermore, historical and contemporary stereotypes and social problems faced by Asian Americans are obfuscated, leading to the cultivation of anti-immigrant sentiments.2 7 The "1yellow peril" and "perpetual foreigner" characterizations help explain openly racist policies such as the Chinese Exclusion Act and the internment of Japanese Americans. It also serves a contemporary function in its implied presumptions that Asians as the perpetual "Other" who are not entitled to the same protections enjoyed by "true" Americans. 28 The fluidity of these conflicting facets of identity suggests significant utilitarian value in maintaining the racial status quo: reinforcing the racial hierarchy, facilitating discrimination, and legitimizing the subordination of minorities.29 Much of the stereotyped Pilipino American identity maps directly onto these characterizations. 30 Like many other API groups, Pilipinos were brought into this country as a part of the procession of immigrants providing cheap labor. The first wave of Pilipino immigrants, the Sakadas, came to Hawaii and California in the tens of thousands as agricultural laborers.3 1 Pilipinos were recruited
conceptions, providing continuity as Asian Americans flowed between positive and negative values. See Saito, supra note 21, at 73. See also Neil Gotanda, Other Non-Whites in American Legal History: A Review of Justice at War, 85 COLUM. L, REV. 1186, 1190 (1986) (reviewing PETER IRONS, JUSTICE AT WAR (1983)). 27. See generally TAKAKI, supra note 2, at 475-484. 28. ANGELO N. ANCHETA, RACE, RIGHTS, AND THE ASIAN AMERICAN EXPERIENCE 13 (Rutgers University Press 1998) (1960). As an example of this process, the positioning of Latinos and Asians as "Other" performs a large amount of the work in promulgating nativist sentiments in anti-immigration policy. Id. at 84-85.
29. See Saito, supra note 21, at 89-93.
30. While I argue for an examination of the Pilipino experience for its differences, I also remain cautious against providing an essentialist account in that I do not mean to assume that group members undergo a monolithic experience in my analysis. Rather, I provide these overarching touchstones of the Pilipino American experience to examine what the experience reveals about the underlying doctrine. See generally DIANA FUSS, ESSENTIALLY SPEAKING: FEMINISM, NATURE AND DIFFERENCE (Routledge 1989) (1960). 1 also do not intend to make an argument for an ethnic-based examination of group rights. Under an ethnicity-based model, the relative success of groups is explained by culture, rather than the systemic racial doling out of benefits or detriments. See Ian F. Haney L6pez, "A Nation of Minorities": Race, Ethnicity, and ReactionaryColorblindness, 59 STAN. L. REV. 985, 985 (2007). 31. ROYAL F. MORALES, MAKIBAKA 2: THE PILIPINO AMERICAN STRUGGLE 35 (2d ed., Crown Printers 1998) (1974). "Sakadas were the first among Pilipinos, outside of the Philippines, to experience economic oppression, superimposed poverty, overt racial bigotry, labor exploitation, social rejection,
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extensively to fill the demand left when Japanese and Chinese labor was limited by various Exclusion Acts.32 Much like the groups before them, they were pushed by poverty from their home country and were lured to the United States by recruiters promising prosperity and wealth.33 In reality, Pilipinos, despite their status as "U.S. nationals" were subjected to harsh and exploitative working conditions: long work days, scant pay, racial hostility, exploitation, backbreaking work, and inhumane housing. 34 Despite these similarities, facets of the Pilipino American identity differ starkly from other API groups. Pilipinos did not pose the same economic or military threat that seemed to motivate the split in conceptions of identity that Asian Americans experienced generally. In fact, Pilipinos allied with the United States during World War II. Additionally, Pilipinos did not pose much of an economic threat. A "notable lack of Filipino merchants in America [existed] ... [partly because] Filipinos did not bring . .. a tradition of mercantile enterprise, or institutions such as the credit rotating system." 35 Many incoming Pilipinos came from a U.S. territory as U.S. nationals and viewed themselves as sojourners. Thus, this generation of Pilipinos was less likely than Chinese and Japanese immigrants to "bring families and institutions. . .establish enterprises, and form communities replicating their homelands." 36 Moreover, Pilipinos had already undergone significant westernization under Spanish rule followed by U.S. rule. Under Spanish rule, the Catholic Church was established and shifted Pilipino viewpoints towards a more European perspective. 37 Subsequently under U.S. rule, many Pilipinos were educated in American schools, where English was the primary language. 3 8 The model minority and yellow peril frameworks, as applied to Pilipinos, are complicated by the westernization of Pilipinos because the underlying assumptions of APIs do not completely and necessarily apply to Pilipinos as a group. Where identity oscillates between U.S. national and "Other," between model minority and underrepresented student group, or between qualified professional and heavily accented foreigner, subordination is carried out, justified, and normalized in one fell swoop. Through these dualities, one facet of Pilipino identity has been used to subordinate the group while another facet is later used to justify this subordination. For example, in the reparations context, the status of Pilipinos as U.S. nationals was strategically used to recruit Pilipinos to fight in
. . civil wrongs[, and] empty educational neglect, political disenfranchisement, societal denials promises." FRED CORDOVA, FILIPINOS: FORGOTTEN ASIAN AMERICANS 30 (1983). A distinction exists between those Pilipinos in Hawaii and those in California. Those in Hawaii did not have to interact with a racist white working class. Instead, Pilipinos were pit against Japanese laborers in order to quell labor uprisings. On the mainland, Pilipino laborers became the easy targets of disgruntled white laborers. See TAKAKI, supra note 2, at 315. 32. See MORALES, supra note 31, at 40. 33. See id. 34. TAKAKI, supra note 2, at 317-20. 35. Id.at 336. 36. Id. at 337. 37. Id. at 341. 38. Id.
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World War II to fulfill their duties as a colony of the United States, but their position as the "Other" was used to justify the denial of rightfully earned and promised benefits.
WAR REPARATIONS
Backgroundand History In the aftermath of the Spanish American War, Spain ceded the Philippines, and the United States subsequently colonized the Philippines in 1898.39 At this time, Pilipinos were classified as U.S. nationals, a status that is neither alien nor citizen.40 In 1934, the United States Congress passed the Tydings-McDuffie Act, which set a 10-year transitional period toward eventual Philippine independence. 4 1 More critically, the Tydings-McDuffie Act also gave the United States the right to call all military forces organized by the government in the Philippines to serve the U.S. Armed Forces.4 2 This provision later proved to be instrumental during World War H. After an escalation of Japanese aggression, President Roosevelt issued a Military Order in 1941, which eventually funded the mobilization and training of the Philippine Army.43 About 470,000" Pilipinos answered General MacArthur's call for volunteers as the "Old" Philippine Scouts, the Commonwealth Army of the Philippines, Recognized Guerilla Forces, and "New" Philippine Scouts to defend the U.S., under the promise that their service would entitle them to Veterans' Administration (VA) benefits. These illusory benefits were supposed to include vocational rehabilitation, compensation for disabilities incurred while on duty, VA medical care and life insurance, and burial and death benefits.45 However, no such benefits were issued for their service. The Pilipino veterans most famously fought alongside U.S. soldiers in the battle of Bataan. During the battle, 70,000 Pilipino and American prisoners of war marched 65 miles to Bataan, and the remaining soldiers were subjected to torture.46 Even after the U.S. troops withdrew from the Philippines, Philippine Guerillas fought against the remaining Japanese occupation, paving the way for
39. Directly following this event, the First Philippine Republic protested the annexation of the islands to the United States, commencing the Philippine- American War, which ended in 1902 and cemented U.S. control of the Philippines. 40. ANCHETA, supra note 28, at 85. 41. SIDATH VIRANGA PANANGALA, CHRISTINE SCOTT & CAROL D. DAVIS, DOMESTIC SOC.
POLICY Div., CONG. RES. SERV. REP., OVERVIEW OF FILIPINO VETERANS' BENEFITS 1 (2009).
Regarding Pilipino immigration into the U.S., the quota became severely limited, allowing only 50 immigrants from the Philippines entrance into the United States. 42. Tydings-McDuffie Act, Pub. L. No. 73-127, 2(a)(12), 48 Stat. 456,457 (1934). 43. Michael A. Cabotaje, Comment, Equity Denied: Historical and Legal Analysis in Support of the Extension of U.S. Veterans' Benefits to Filipino World War II Veterans, 6 ASIAN L.J 67, 74-75 (1999). 44. Paul Watson, Philippine Veterans Line Up for Long-Awaited U.S. War Benefits, Los ANGELES TIMES, Mar. 7, 2009, available at http://articles.latimes.com/2009/mar/07/world/fg-philippinesveterans7. 45. Cabotaje, supra note 43, at 69. 46. Id. at 75.
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American reentry into the Philippines. 47 This move was integral in securing a victory for the U.S., as the Philippines served as a Pacific base of operations from which the U.S. lodged its final attacks on Japan.4 8 Despite their invaluable service to the U.S., the Rescission Acts of 1946 stripped all 49 but the "Old" Philippine Scouts of their VA benefits.50 In fact, the Pilipino veterans were the only foreign U.S. military veterans from the 66 countries allied with the U.S. to not receive VA benefits.51 Over the years, Congress has expanded some benefits to the veterans. This was mostly the result of immense struggle and advocacy by the veterans themselves, and other organizations such as Justice for Filipino American Veterans (JFAV), American Coalition for Filipino Veterans, Inc. and various other community groups.5 2 In February 2009, President Obama signed into law the Filipino Veterans Equity Compensation Fund as part of his stimulus package. 53 The American Recovery and Reinvestment Act of 2009 authorized a one-time payment under the Compensation Fund of $15,000 for U.S. citizens and $9,000 for non- U.S. citizens.5 4 While much of the Pilipino community lauded
47. See id. at 72. 48. See id. 49. Some accounts have estimated that 250,000 Pilipino solders were denied benefits. See Oliver Teves, Filipino WWII Veterans Seek U.S. Benefits, THE DAILY HERALD, Nov. 23, 2008. 50. See 38 U.S.C. 107(a), (b) (West 2009). 51. Satoshi Nakano, Nation, Nationalism and Citizenship in the Filipino World War II Veterans Equity Movement, 1954-1991, 32 HITOTSUBASHI J.SOC. STUD. 33, 37 (2000). The first of the benefits to be called into question was the right to the conferral of citizenship. Since the Rescission Act of 1946 left open the question of its effect under immigration policy, a number of suits were brought challenging the applicability of the Rescission Act to Pilipino Veteran's rights to citizenship, with differing outcomes. Id. at 37-41. Finally, in Immigration and NaturalizationServ. v. Pangilinan,a unanimous court held that Congress limited the court's scope to grant citizenship to the challenging veterans, foreclosing any future opportunities for the veterans to litigate the issue of their citizenship eligibility. Immigration and Naturalization Serv. v. Pangilinan, 486 U.S. 875, 887 (1988). The veterans had no statutory rights to citizenship under the 1940 Act. Id. Congress responded by passing the 1990 Immigration Act, which included provisions allowing Filipino veterans special naturalization. See Nakano, supra, at 42. 52. This has included the authorization of certain and limited health care benefits, education assistance to the children of Commonwealth Army veterans and New Philippine Scouts, and funeral and burial benefits for the Commonwealth Army veterans. Note that the granting of benefits has never been applied across the board to all groups of Filipino WWII veterans. PANANGALA, ScoTT & DAVIS, supra note 41, at 10-15. Compare these advances to what the veterans want: "[o]fficial recognition of their honorable U.S. military service during World War II and the eligibility to receive full veterans benefits from the U.S. Department of Veterans Affairs such as health care at VA hospitals, outpatient clinics and nursing homes in the U.S. including a clinic in Manila and non-service disability pension (as a minimum: $300 monthly in the Philippines). $300 is average monthly difference between what a low-income U.S. veteran receives in VA pension ($911 mo.) compared to a U.S. citizen Pilipino veteran who relies on federal Supplemental Security Income (SSI of $623)" (emphasis omitted). American Coalition for Filipino Veterans, Inc., Fact Sheet, available at http://usfilvets.tripod.com/id8.html (last visited Apr. 3, 2010). 53. Press Release, Justice for Filipino American Veterans, On the 63rd Anniversary of the Rescission Act of 1946, Fil-Ams Demand Full Recognition and Genuine Equity (Feb. 20, 2009). 54. PANANGALA, SCOTT & DAVIS, supra note 41, at 16. The report also states that "[t]he one-time payment is considered a settlement for all future claims for benefits based on service in the Commonwealth Army of the Philippines, Recognized Guerilla Forces, and New Philippine Scouts. The exception is that a veteran may receive benefits that the veteran would have been eligible for based on the laws in effect on the day before the enactment (September 17, 2009)." Id.
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this development as a victory, the veterans waited over 60 years to see President Roosevelt's promises of VA benefits to come to fruition. Moreover, the fact that the bill's supporters "had to use an economic emergency to overcome decades of opposition in Congress . . . adds to the sense of betrayal."5 5 As a result, many of the veterans and their advocacy groups vowed to continue their fight for full recognition, equity, and lifetime pension, to pass a bill giving priority immigration visas to the children of veterans, and to allow recent widows of the veterans to receive the benefits. 6
A Critique of ReparationsDoctrine
The plight of the Pilipino veterans sheds light on the ineffectiveness of reparations as a race-conscious remedy in addressing past wrongs and spurring societal change. In Eric Yamamoto's piece linking the Japanese American reparations movement to the African American slavery reparations movement, he recognizes the aspirational aspect of reparations as "transformative" with the potential to "help change material conditions of group life and send political messages about societal commitment to principles of equality."57 However, as applied to the Pilipino veterans, reparations can be problematized on two levels. First, since the veterans' claims to VA benefits in Quiban v. Veterans Administration5 were dismissed under a rationale rooted in U.S. investment in its insular possessions to build the American Empire, the lump sum awarded to the veterans did nothing to overturn or address the view of Pilipinos as second-class veterans. Secondly, examining the rhetoric surrounding the movement to grant Pilipino veterans' reparations reveals the uncritical acceptance of model minority claims. For example, to further the veterans' claims, allies invoked the ideas of Pilipino veterans as model minorities and super patriots with unwavering loyalty and bravery. This uncritical acceptance of model minority claims forecloses the availability of reparations as a remedy to other groups who are unable to establish the same claims. As a result, reparations for Pilipino veterans failed to meet its aspirational goal of transformative change and instead furthered subordination of Pilipino veterans as second-class veterans.
The Imperialist Regime and Its Effects on Pilipino Veterans
After the Philippines was ceded by Spain to the United States, the First Philippine Republic, led by Emilio Aguinaldo, protested the annexation of the Philippines to the U.S. by declaring war against America. 59 Following the U.S. takeover of Puerto Rico, the Philippines, Guam and Cuba, under the Treaty of
55. Watson, supra note 44. 56. Benefits like burial expenses are emotionally important to veterans in that they provide an honorable end to their lives. See Nakano, supra note 51, at 34. 57. Eric K. Yamamoto, Racial Reparations: Japanese American Redress and African American Claims, 40 B.C. L. REV. 477, 494 (1998). 58. 928 F.2d 1154 (D.C. Cir. 1991). 59. See Cabotaje, supra note 43, at 72.
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Paris, courts faced the question of whether the Constitution and its protections applied to territories belonging to the U.S. 60 The seminal case, Downes v. Bidwell, held that the Constitution did not apply to U.S. territories.6 1 Instead, the case established precedent through a line of cases known as the Insular Cases"cases resolved in 1901 involving the territorial possessions acquired after the Spanish American War." 62 The Insular Cases stood for the "territorial acquisition but only partial political incorporation" of these island nations. 63 Thus, the Court granted the U.S. approval to have legal, military and political control over the land without any obligation to grant rights to the people inhabiting these lands. This "extension of national authority over alien communities ... implies that a country does not have to own the territory of an alien community in order to exercise imperial authority over it." The Insular Cases were integral in cementing U.S. imperial interests without requiring the protection of the people of the exploited lands. Additionally, they formed the basis for the rationale used to justify denying Pilipino veterans their promised benefits. Pedro Malavet, in his analysis of Downes v. Bidwell, argues that the Insular Cases also created a second-class citizenship by differentiating between "American citizenship" and the diluted citizenship of peoples inhabiting the insular territories. 65 Pilipino veterans have been treated as "second-class veterans," and their differential treatment vis-A-vis other veterans who fought as foreign allies supports this characterization. In 1946, for example, the U.S. Congress extended VA benefits to "some groups of non-citizen discharged members of allied forces during World War II." The Philippines was considered one of the 47 allied countries, but it failed to meet one of the requirements for benefits. Thus, Pilipino veterans and others were denied benefits under 38 U.S.C. 109(a), a U.S. Code section regarding the distribution of veterans' benefits.66 In 1976, however, Congress passed a bill granting Polish and Czechoslovakian armed forced benefits after 10 years of citizenship, despite failure to comply with the same requirements of 109(a). 67 This denial of benefits is especially egregious, given the Pilipino veterans' status as U.S. nationals during their service to the United States. 68 Pilipino veterans have filed cases challenging the constitutionality of the Rescission Acts because they distinguished Pilipino soldiers from other U.S.
60. Balzac v. Porto Rico, 258 U.S. 298 (1922). 61. Downes v. Bidwell, 182 U.S. 244 (1901). 62. Pedro A. Malavet, "The Constitution Follows the Flag.. but Doesn't Quite Catch Up with It": The Story of Downes v. Bidwell, in RACE LAW STORIES 111, 125 (Rachel F. Moran & Devon Wayne Carbado eds., 2008). 63. Id. at 114. 64. Id. 65. Id. at 143-144. 66. Cabotaje, supra note 43, at 83. 67. Id. at 83-84. 68. Id. at 84-85.
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service members based on nationality. 69 Since the veterans were discriminated against on the basis of their nationality, the Rescission Acts should have been subjected to heightened or strict scrutiny. 70 Instead, courts have applied the lower rational basis standard, based on precedent set in the Insular Cases, and 71 upheld the constitutionality of the Acts under this deferential level of review. An example of this rationale may be found in Quiban v. Veterans 72 Administration. In Quiban, two Pilipino veterans and the surviving spouse of a Pilipino veteran challenged their exclusion from federal VA benefits as violative of equal protection under the Fifth Amendment. 73 The Court applied the more deferential rational basis standard under precedent that denied Aid to Families with Dependent Children ("AFDC") payments to persons residing in Puerto Rico.74 In his article, Michael Cabotaje critiques the Court's rationale in basing Quiban on the Insular Cases, arguing that today's environment is vastly different than the one that motivated the Court's logic and decision in the Insular Cases. 75 Specifically, Cabotaje contends that racist sentiment at the time clouded the debates surrounding such issues, suggesting that given the opportunity today, the Court would not have ruled in the same way.76 This argument assumes that contemporary Courts would not have come down the same way because it ignores the contemporary effects of characterizing Pilipinos as "Other." This characterization works to preserve benefits for those considered "American citizens." Another motivating factor was Congress' fear that the promised compensatory scheme would be prohibitively costly to the United States.77 I argue that, especially in the current economic recession, Congress would likely prioritize other issues over issuing benefits to Pilipino veterans. Over 60 years have elapsed since the veterans' benefits were rescinded, so the need to act
69. Id. at 81, 85. 70. Id. at 85-87. 71. Id. at 86; see also Harris v. Rosario, 446 U.S. 651, 651-52 (1980) (holding that Congress is authorized under the Territory Clause of the Constitution to treat Puerto Rico differently from the States so long as there is a rational basis for its actions). 72. Quiban v. Veterans Admin., 928 F.2d 1154, 1163 (D.C. Cir. 1991). 73. Id. at 1155-56. The Fourteenth Amendment governs state action in violation of the equal protection clause. The Supreme Court held that the same protection against federal action is implied in the Fifth Amendment's due process clause. Weingerger v. Wisenfeld, 420 U.S. 636 (1975). 74. Quiban, 928 F. 2d at 1159. 75. Cabotaje, supra note 43, at 92. 76. Id. at 93 ("In the Senate, Senator Bate of Tennessee characterized the Filipino people as .physically weaklings of low stature, with black skin, closely curling hair, flat noses, thick lips, and large, clumsy feet.' With regard to the Filipino people, he cautioned: 'Let us beware of those mongrels in the East, with breath of pestilence and touch of leprosy. Do not let them become a part of us with their idolatry, polygamous creeds, and harem habits."'). 77. In response to a request by the Appropriations Committee at the time considering the first Rescission Act, "General Bradley indicated that the total cost of paying veterans' benefits to members of the Philippine Commonwealth Army and their dependents, under then existing veterans' laws, would amount in the long run (75 years) to about $3 billion. It seems clear from Senator Hayden's statements that the passage of the first Rescission Act was meant to balance competing financial interests."
PANANGALA, SCOTT & DAVIS, supra note 41, at 8-9.
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immediately is pressing. Decades of economic strife and economic bounty have come and gone, yet the Pilipino veterans have yet to receive justice. Of the 250,000 Pilipino World War II veterans, only about 18,000 survive. 78 For those who have lived this long, most of the veterans are in their late eighties or nineties, and the vast majority of them live below the poverty line.79 The prioritization of other matters over veterans' benefits was likely to occur as evidenced by the fact that there was public pushback regarding the inclusion of the Filipino Veterans Equity Compensation Fund into the stimulus package, even though the monies had been previously earmarked.o In fact, ranking Republican on the House Veterans' Affairs Committee, Indiana Representative Steve Buyer, opposed the benefit and questioned the motives of the bill endorsers, stating, "I hope Americans will stop to ponder the distorted values of those who crafted this bill." Additionally, legislators were aware of the pushback against granting the Pilipino veterans' benefits. Chairman of the committee, Representative Bob Filner, stated, "The only way we could get it to pass was to put it in a must-pass bill." 8 1 As stated above, Pilipinos were U.S. nationals, somewhere in between "aliens" and citizens. When their service was needed, President Roosevelt emphasized the characterization of Pilipinos as U.S. nationals by stating that Pilipino veterans were certainly veterans of the U.S. forces. However, the Rescission Act denied these benefits under the rationale that providing the benefits would bankrupt the U.S. 82 This toggling of different justifications to serve different ends occurs seamlessly, and the inherent contradictions lay unchallenged.
Reparationsas an Unworkable Remedy
As discussed earlier, Yamamoto critiques the Japanese American redress movement and examines its effects on current reparations efforts.83 He claims that "framing the Japanese American claim in terms of the 'super patriot/model minority"' models allowed "the government to award reparations to a relatively small number of highly deserving Japanese Americans ... without opening the floodgates to reparations for other racial groups."8 In the same vein, the characterizations of the veterans' service only reify the rewarding of exceptionalist aims.
78. Bernie Becker, Filipino Veterans Benefit in Stimulus Bill, N.Y. TIMES, Feb. 17, 2009, available at http://www.nytimes.com/2009/02/17/us/politics/17vets.html. 79. Josh Levs, US to Pay 'Forgotten' Filipino World War II Veterans, CNN, Feb. 23, 2009 availableat http://www.cnn.com/2009/US/02/23/forgotten.veterans/index.html. 80. Becker, supra note 78. Additionally, Jack Cafferty pointed to the fund's inclusion in a proposed stimulus package as an example of fiscal irresponsibility. Jack Cafferty, Commentary: Stimulus Bill a at available 2009, 17, Feb. CNN, Spectacle, Sorry http://www.cnn.com/2009/POLITICS/02/17/cafferty.stimulus/index.html. 81. Becker, supra note 78. 82. See generally PANANGALA, ScOTT & DAVIS, supra note 41. 83. Yamamoto, supra note 57, at 479-82. 84. Charles P. Henry, The Politics of Racial Reparations,34 J. BLACK STUD. 131, 147 (2003).
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In the struggle to obtain benefits and equity for the veterans, arguments framing Pilipinos as a model minority were invoked to rationalize that the veterans deserved such a remedy. For example, in expressing his support for Pilipino veterans, the Honorable Ed Case implored Congress to keep in mind that the veterans were "indispensible. . .to Allied success."85 In turn, granting the benefits as reparations for their racist treatment at the hands of the U.S. government becomes a failing argument. Instead, justifications for reparations mirror meritocracy arguments, such that groups who have worked hard and contributed to this country are more deserving of the remedies. Secondly, recognition was conferred on the veterans over 60 years after their service in World War II. As a result, the majority of those veterans did not live to see their military service recognized by the U.S. The exceptionalist claims for benefits ignores the conception of Pilipinos as "Other" and helps to justify the intent behind the passing of the Rescission Acts. As stated earlier, Congress acquiesced to financial interests in their decision to limit benefits to Pilipino veterans. Cost, however, was not a prohibiting issue when it came to the doling out of benefits to U.S. citizen veterans and even some non-U.S. citizen veterans. 86 Because they are considered "Others", Pilipinos are not entitled to the same level of benefits. This is especially egregious considering the fact that the Philippines, a territory of the U.S. at the time, was the only country whose foreign allied veterans did not receive such benefits.
EMPLOYMENT DISCRIMINATION
The Intent Regime 87 and Accent Discrimination
Under Title VII of the Civil Rights Act of 1964, Griggs v. Duke Power88 established a disparate impact theory of discrimination that measured equality of results between racial minorities and whites. Under Griggs, facially neutral employment practices that produced a discriminatory effect were unlawful, unless the employer was able to prove that the policy or practice was job-related or a business necessity.89 The reach of Griggs was severely limited in Washington v. Davis.90 The case explicitly foreclosed the applicability of disparate impact to establish claims under the equal protection clause. There, the Court held that the protections of the Fourteenth Amendment would not be triggered unless the plaintiff could show discriminatory intent.91 Since racially
85. 150 CONG. REC. E447-03 (2004) (speech of Hon. Ed Case of Hawaii), at E448. 86. For example, benefits later became available to other non-citizen veterans. Cabotaje, supra note 43, at 83. 87. Employment discrimination cases under Title VII may be brought under disparate treatment or disparate impact theories. Disparate treatment cases require intentionality and employ the McDonnell Douglas framework in order to tease out intentionality. Under disparate impact theory, intentionality is not required. See generally Griggs v. Duke Power Co., 401 U.S. 424 (1971). 88. See id. 89. See id. 90. Washington v. Davis, 426 U.S. 229 (1976). 9 1. Id.
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motivated discrimination often now occurs on a less cognizable level, 92 the burdens heaved onto plaintiffs have become overly restrictive. It is for this reason that disparate impact claims under Title VII had been viewed as a last bastion for plaintiffs to seek relief. The disparate impact doctrine, however, has experienced a shift towards evidence of intent. The Supreme Court's 2009 decision in Ricci v. DeStefano shifted disparate impact analysis even further in the direction of disparate treatment by requiring "strong evidence in basis" of disparate impact.93 The focus on intent to discriminate is particularly apparent in accent discrimination cases because native speakers "will often attach 'cultural meanings to an accent which derive from the stereotypes and prejudices that the listener holds toward the race or ethnic group associated with that accent."' 94 Outsider identity is often the underlying trigger in accent discrimination cases. Unlike race, which is viewed by society as an immutable trait, 95 "foreignness" is seen as a choice because immigrants always have the option of returning to their home countries if they disagree with their treatment here.96 Somewhere between immutability and choice lies the analysis of accent. On the one hand, speech is seen as a performative characteristic that is malleable. On the other hand, when a second language is acquired later in life, accent becomes a "de facto immutable Formally, Title V11 98 prohibits trait", and thus should be protected. 97 discrimination on the basis of national origin, but the text does not explicitly refer to accent discrimination. The Equal Employment Opportunity Commission ("EEOC"), the agency charged with Title VII enforcement, determined that discrimination based on foreign accent may constitute national origin discrimination. Despite the EEOC's determination, case law tells a different
92. See generally Jerry Kang, The Trojan Horses ofRace, 118 HARV. L. REV. 1489 (2005). 93. Ricci v. DeStefano, 129 S. Ct. 2658 (2009). 94. Gerrit B. Smith, Note, I Want to Speak Like a Native Speaker: The Case for Lowering the Plaintiff's Burden of Proof in Title VII Accent Discrimination Cases, 66 OHIO ST. L.J. 231, 260 (2005) (quoting Beatrice Bich-Dao Nguyen, Comment, Accent Discriminationand The Test of Spoken English: A Call For an Objective Assessment of The Comprehensibility of Nonnative Speakers, 81 CAL. L. REV. 1325, 1335 n.57 (1993)). 95. 1 qualify this statement in order to make the point that the proposition that race is an immutable trait is a problematic one, in the sense that race is a social construct that has changed over time. Additionally, many individuals are able to "pass" in and out of their race, which undermines the statement that it is fixed and immutable. 96. Immigration rhetoric regarding one's choice to come into the country cannot be properly analyzed unless the concept of meaningful choice is used. This concept understands that immigrants' decisions to come to the United States have been shaped by U.S. foreign policy, and not in a vacuum.
See generally HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES (2006).
97. Smith, supra note 94, at 236. Id. at 250-51 ("Adults have a more difficult time acquiring the second language and speaking it accent-free because the adult will 'relate to his native sound system all
the sounds he hears."') (quoting FRED M. CHREIST, FOREIGN ACCENT 18 (1964))).
98. Title VII, in its recognition of disparate impact claims, does not necessarily require intentionality. However, courts have been moving away from the disparate impact regime, and employment discrimination has trended towards an intentionality requirement. At the very least, postWards Cove, proving a prima facie case of disparate impact has become much more burdensome on plaintiffs.
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story. In disparate treatment cases, employers may invoke an exception to the plaintiffs prima facie case of discrimination under Title VII by establishing that a discriminatory practice on the basis of religion, sex or national origin is a bona fide occupational qualification (BFOQ). 99 There is no BFOQ on the basis of race.'" While the law dictates that customer preference is not an available defense for the discriminating employer, accent discrimination cases are an exception to this rule.' 0 In accent discrimination cases, employers often cite to customer or co-worker preferences as a partial defense. 102 Such judgments reinforce the exclusion of non-native speakers from full participation in the workplace. This is complicated by the notion that listeners often place hierarchies on accents, and are more willing to attempt to understand certain accents over others.' 03 These judgments imply that the hierarchy of accent is aligned with race, and not just national origin. The perception of different accents creates and enforces social boundaries, and such boundaries further isolate accented speakers. Thus, accent operates as a marker of Otherness. Moreover, acceptance of customer and co-worker preference in accent discrimination cases relegates those who speak with particular accents to a second-class citizenship and reifies the conception of certain groups as perpetual foreigners. This acceptance of customer and co-worker preference results in decreased protection under Title VII.
In Fragante v. City and County of Honolulu,'0 plaintiff Manuel Fragante
was a retired officer of the Philippine Navy. During his military career, Fragante attended and excelled in U.S. military schools.' 05 During his service in the U.S. military, Fragante's superiors rated his English language ability as "excellent." 106 Fragante attributed his masterful command of the English language to his education in the Philippines, which was conducted almost entirely in English. '" After immigrating to Hawaii from the Philippines, Fragante applied to work for
99. Section 703(e) of the Civil Rights Act of 1964 states that "[lt shall not be an unlawful employment practice for an employer to hire and employ employees . .. on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." Civil Rights Act of 1964, Pub. L. No. 88-352, 703(e), 78 Stat. 241, 256 (2006). 100. Id. 101. Smith, supra note 94, at 235-36. Smith also discusses the use of customer preference arguments in sex discrimination cases such as Diaz v. Pan American Airways, 442 F.2d 385, 389 (5th Cir. 1971) ( "[C]ustomer preference may be taken into account only when it is based on the company's inability to perform the primary function of service it offers."). 102. See, e.g., Fragante v. City of Honolulu, 888 F.2d 591, 598 (9th Cir. 1989); Ang v. Proctor & Gamble Co., 932 F.2d 540 (6th Cir. 1991); Yu v. U.S. Postal Serv., Appeal No. 01956772, 1997 EEOPUB LEXIS 3884, at *3-*4 (Oct. 10, 1997); Poskocil v. Roanoke County Sch. Div., No. CIV. A. 98-0216-R, 1999 WL 15938, at *4 (W.D. Va. Jan. 11, 1999). 103. In Fragantev. City of Honolulu, the court noted that "listeners stop listening to Filipino accents, resulting in a breakdown of communication." 699 F. Supp. 1429, 1431-32 (D. Haw. 1987). 104. Id. at 1431. 105. Smith, supra note 94, at 246. 106. Id. 107. See Fragante,699 F. Supp. at 1429.
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the City of Honolulu's Division of Motor Vehicles and Licensing ("DMV"). The job duties included "filing, processing mail, cashiering, orally providing routine information to the 'sometimes contentious' public over the telephone and inperson, and obtaining supplies." 0 8 Though Fragante scored the highest out of 721 test takers on a civil service exam and was ranked first on a list of 15 eligible applicants, he was denied a position after an in-person interview. The City argued that his accent would be unacceptably difficult for the "sometimes contentious" customers of the DMV to comprehend over the phone."o The court "assume[d] without deciding" that Fragante was able to establish a primafacie case of discrimination. However, the court did not hold the DMV liable. The court assumed that Fragante would be unable to effectively communicate with customers, which supported the DMV's defense that clear and effective communication was necessary for job performance."' The court deferred to the "great number of disgruntled members of the public. . .who do not want to hear what the clerk may have to explain concerning their applications or an answer to their questions."ll 2 Fragante reflects the acceptance of accent hierarchy. Anglo accents are preferred, and accents like the Pilipino accent denote incompetence or intellectual inferiority. By allowing employers to invoke customer preference as a defense in accent discrimination cases, especially when other employment discrimination claims would not allow the same defense, the court implied that Pilipino-accented plaintiffs are less deserving of protection under Title VII. These links are highly problematic because they also conflate conceptions of Otherness with assumptions of incompetence. Because accents also overlap with race and racial perceptions, employers are able to bring up the defense that accented employees are not as qualified for jobs as native speakers. In this sense, employment discrimination law fails to meet its aspirational goals of eradicating discrimination from U.S. workplaces. Because many Pilipino immigrants, like Fragante, have been educated in English in the Philippines, the failure to protect against accent discrimination for otherwise qualified individuals, is particularly harmful. In this dynamic, the model minority identity clashes against perceptions of Pilipinos as intellectually inferior or incompetent. However, this framing becomes problematic because it pits certain groups of non-native speakers (usually different immigrant groups) against others, and only serves to reinforce the hierarchy placed on incoming
108. Fragante,888 F.2d at 593. 109. Fragante,699 F. Supp. at 1430-31. 110. Id. at 593-94. Notwithstanding the fact that all members of this country have an accent, this is a particularly curious assumption considering the fact that, according to the 2000 census, Hawaii's population is 39.9% Asian, with 26.6% of the population speaking a language other than English at home, compared to the U.S. overall at 4.4% and 17.9%, respectively. See U.S. Census Bureau, Hawaii Feb. 23, 2010, US Census Bureau, QuickFacts from the http://quickfacts.census.gov/qfd/states/15000.html. 11. Fragante,888 F.2d at 595-96. Note, however, that the job description included many tasks that did not require communicating with customers, such as filing, ordering supplies, and processing mail. 112. Id. at 597.
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groups with less-developed English skills. They are viewed as less qualified and less intelligent. The accent discrimination cases failed to change the structural dynamics that dictate which types of accents are preferred by employers. Rather, these cases reinforce a preference for Anglo accents, or speech approaching this standard. It is no coincidence that the accent hierarchy tracks closely with the racial hierarchy. Courts' resistance against protecting accents is interesting since accent discrimination claims were carved out from the protected group, national origin.113 Accents in and of themselves are not a protected characteristic, but the use of accents as a proxy for national origin discrimination is. Under this view then, groups for whom access to education in English is limited or nonexistent, should be protected as well. Therefore, litigants such as Pilipinos, who are more likely to speak English as a result of the U.S. colonization, must be mindful that their claims do not reinforce discrimination against other groups that were not exposed to English before immigration to the United States. If we are to take seriously the charge that groups should be protected on the basis of national origin, we must also recognize that the protection of groups against accent discrimination is an important step in this direction, but it is a step that can also be critiqued along the lines of the structures it reinforces.
IDENTITY, POLITICS, AND THE WARDS COVE CASE
Background and History
Historically, Alaskan canneries have depended on the cheap labor of migrant workers as far back as 1878, when the Alaskan canning industry was first pioneered by Chinese laborers. When Asian immigrants began to work at the canneries, their labor was especially valued because unlike Native Alaskan workers, these populations could not leave the canneries for home if the work became unbearable. This work was necessary for the livelihood of many Pilipinos, as agricultural work was generally unavailable during the canning season. Pilipinos remained a large force in cannery work for about 60 canning seasons. As of 1930, there were over 4,000 Pilipino cannery workers, and the numbers increased tremendously before World War II, up to as many as 9,000 workers. 114 By the 1930s, the various immigrant groups (Chinese, Japanese and Pilipinos) began to organize into unions. However, this process was halted 15 Rather than join as a united abruptly as a result of the Japanese internment.1 front, ethnic-specific unions emerged. Because of their large numbers, Pilipino unions began to grow in membership and in bargaining power, which was particularly important considering the work conditions they endured. The
113. origin. 114. 115.
Title VII protects against discrimination based on race, sex, ethnicity, religion, and national Notably, it does not protect sexual orientation. CORDOVA, supra note 28, at 57. Id.
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canneries operated racially segregated work and housing accommodations, assigned Pilipinos to the lowest and most hazardous job classifications, and paid them the lowest wages. White employees, on the other hand, were hired for management roles and held other supervisory and technical positions.1 1 6 Despite the increase in ethnic group unionization, Alaskan cannery practices resisted change.
The Wards Cove Case
In Wards Cove Packing Co. v. Atonio," 7 the plaintiffs were Pilipino and Native Alaskan salmon cannery workers who alleged that the cannery's hiring practices had a discriminatory impact. The plaintiffs referenced data showing that the "non-skilled" cannery positions were filled by predominantly Alaskan and Pilipino workers, who worked the assembly line, while the "skilled" noncannery jobs were mostly filled by whites, who worked as machinists, engineers, quality control supervisors, cooks, carpenters, and in "beach gangs." The cannery used two separate tracks in their recruitment and hiring: cannery jobs were filled through the local union, whose membership consisted mainly of Pilipinos, and from the villages near the canneries. Non-cannery jobs were filled though the company's offices in Washington and Oregon." 8 The two-track system, coupled with "nepotism, a rehire preference, a lack of objective hiring criteria... [and], a practice of not promoting from within" ensured the maintenance of racially segregated positions. 119 A split Court (5-4) held that statistical evidence showing that nonwhites were overrepresented in the lower paid jobs and underrepresented in the higher paying jobs was not sufficient by itself to establish a disparate impact claim. 120 Instead, the Court required a comparison of qualified workers and actual workers. This requirement makes little sense when applied to the facts of Wards Cove since positions included in the "skilled jobs" category required little or no skills, such as the "beach gang" or quality control positions. Moreover, so long as there are no barriers or practices that deterred qualified nonwhites from applying for the jobs, the Court held that the fact that there was racial imbalance was inconsequential.121 The case nearly overturned the provisions created under Griggs by making the evidentiary burden on plaintiffs prohibitively high. Under the standard established in Griggs, plaintiffs claiming disparate impact had the original burden of persuasion to establish a prima facie case by showing a disproportionate impact. The burden then shifted to the employer, who was required to show that the impact was a result of a business necessity. Wards
116. Id. at 72. 117. Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989). 118. Id.
119. Id. at 647 n.3.

120. Id. at 650. 121. Id. at 653.
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Cove saddled the burden of persuasion onto plaintiffs by requiring them to either rebut the employer's business justification or show an alternative employment practice. Thus, an employer's refusal to adopt such an alternative employment practice is demonstrative of the employer's intent to discriminate; this reasoning blurs the line between disparate treatment claims that require intent and disparate impact claims. 122
The Aftermath of Wards Cove
The Court's opinion in Wards Cove, carried by a bare majority, was so outrageous that Congress limited its effects to this single case. Section 402 of the Civil Rights Act of 1991 states that "[N]othing in this Act shall apply to any disparate impact case for which a complaint was filed before March 1, 1975, and for which an initial decision was rendered after October 30, 1983.",l23 The Act "reversed the legal underpinnings of the Wards Cove case, thereby shifting the burden to prove business necessity back to employers."1 24 This "compromise" between Congress and the Court only reifies notions of Pilipino Americans as "Other," since it communicates the message that the plaintiffs in this case are not deserving of the full protection of the law. The Pilipino and Native Alaskan workers were treated as second-class citizens in the nature of their work conditions, and in the law's inability to provide remediation for the harms they endured. Especially problematic with Wards Cove, is the fact that the original plaintiffs, Native Alaskan and Pilipino cannery workers, were unable to obtain relief after nearly ten years of litigation. 12 5 For years, these workers were subjected to a workplace that resembled a "plantation economy",126 and the law's response was to silence their stories. The notion of Asian Americans as economic threats to whites motivated the employer's segregationist practices, and the effects of segregation were maintained for years. After decades of work in these positions, Pilipinos and Native Alaskans were foreclosed from better jobs under the rationale that they did not possess the skills necessary for the higher-paid positions. The Court failed to link the practices of segregating the work to real consequences that Pilipinos and Alaskans would not have the opportunities to develop the skills required. The Court raised the plaintiff s burden of proof to establish a violation of their rights and ignored the specific history of discrimination against Pilipinos; thus, the remedies tied to successful employment discrimination claims become illusory and hollow. The Court and Congress only provided the appearance of justice, without actually providing a sufficient vehicle to reach such ends.
122. Leigh Anne Gilbert Hodge, The Civil Rights Act of 1991: A Legislative Response to the Supreme Court's Weakening of Civil Rights Remedies in the Workplace, 22 CUMB. L. REv. 801, 804-05 (1992). 123. Civil Rights Act of 1991, Pub. L. No. 102-166, 402, 105 Stat. 1071, 1099 (1991). 124. ANCHETA, supra note 28, at 59. 125. Id. at 59-60. 126. Wards Cove Packing Co., 490 U.S. at 649 n.4.
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This section analyzes two affirmative action cases brought forth by Asian Americans. Taken together, these cases show both the pitfalls of uncritically applying colorblind analysis to affirmative action cases and the potential for different communities of color to join together and fight for race-conscious remediation. Affirmative action policies and their justifications under the colorblind regime interact with, support, and bring into focus the deployment of a number of facets of Pilipino identity. The conception of Pilipinos as "model minority" is used to justify dismantling affirmative action programs. These programs are overturned partly under the belief that affirmative action programs benefit Asian Americans much more than they benefit Blacks and Latinos. Under this reasoning, the understanding that formal racial barriers no longer exist reifies stereotypes of APIs as hard working and studious. These cultural values are used to explain away the gap between APIs and Blacks and Latinos. The harm lies in the idea that these arguments displace the larger racial dynamics at play and fail to recognize the influence of strong forces such as structural racism, de facto segregation, and implicit bias. Instead, a more specific analysis of affirmative action through the Pilipino American experience highlights the multi-faceted nature of the API community, and challenges the perceptions of Pilipinos as a "model minority".
The Colorblind Regime
In Justice Harlan's famous dissent in Plessy v. Ferguson, he stated that "our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law." 127 This dissent laid the groundwork for the colorblind regime. Under the principle of colorblindness, courts uncritically apply strict scrutiny analysis any time a racial classification subjects an individual to unequal treatment, regardless of which groups bear the burdens or reap the benefits of the policy or practice in question. Because strict scrutiny is "strict in theory, but fatal in fact," policies that seek to remediate racial harms are usually struck down. The colorblind regime has traveled from Plessy, that infamous case upholding "separate but equal," to preside over the issue of access to higher education through the affirmative action cases. By adopting an approach that does not take into account whether a particular classification provides a benefit or a detriment to a subordinated group, the Court is able to avoid the difficulty of actually solving racial inequality. First, Courts are not required to weigh competing discrimination claims; this gives the Courts the ability to resolve the claims before them without requiring a historically contextualized account of the groups before them. 12 8 Secondly, Courts do not then have to engage in the
127. Plessy v. Ferguson, 163 U.S. 537, 559 (1896). 128. Gitanjali S. Guiterrez, Note, Taking Account of Another Race: Refrarning Asian-American
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difficult process of fashioning particularized remedies to actually correct the specific harms faced by groups.129 Thus, application of colorblindness principles to the Constitution ignores the complicated racial dynamics at play in these cases, and often leaves groups seeking recourse with inadequate resolutions.
The Ho Litigation
In Critical Race Praxis, Eric Yamamoto discusses the Ho litigation as a point of departure to investigate "an intensifying dissociation of law (as it conceives of justice) from racial justice (as it is experienced by racialized groups)."l 30 In this case, Chinese American students brought a class action that challenged a 1983 judicial consent decree seeking to desegregate the public schools in San Francisco by imposing a 40 percent cap on each school for any given racial or ethnic group.131 Chinese American students first benefited from the cap during its implementation. However, after Chinese American enrollment into SFUSD increased during the 1980's, the cap produced an adverse affect on Chinese American high school students, who were denied entrance into the most sought-after schools in the school district.132 In 1999, the case settled, and the resulting settlement order eliminated the mandatory racial composition requirement and entered a preliminary injunction prohibiting the San Francisco Unified School District (SFUSD) from assigning students on the basis of race for the 1999-2000 school year. 133 The school district was able to choose between two race-neutral assignment plans. SFUSD rejected the plan that considered test scores, poverty level, and language ability; and instead adopted a plan that gave priority to siblings of enrolled children, children living near the school, and children in specific zip codes. 134 These provisions only resegregated San Francisco public schools. 135 The strategy of Chinese American plaintiffs to strike down the 1983 consent decree exhibits the failures of colorblindness to address interracial dynamics. As Yamamoto describes, the attorneys for the Chinese American students used rhetoric "refined by neoconservative race scholars" by advancing arguments 36 Under rationales rooted in based on meritocracy and colorblindness. 1 meritocracy, supporters of the Chinese American students argued that the students succeeded despite the caps in the consent decree while Black students
Challenges to Race-Conscious Admissions in PublicSchools, 86 CORNELL L. REV. 1283, 1296 (2001).
129. Id.
130. Eric K. Yamamoto, Critical Race Praxis: Race Theory and Political Lawyering Practice in Post-Civil Rights America, 95 MICH. L. REV. 821, 828 (1997). 131. Id. at 821-22. 132. Guiterrez, supra note 128, at 1306-07. 133. Id. at 1309. 134. Nanette Asimow, S.F. District OKs Race-Neutral School Plan Judge Had Rejected 'Diversity
Index', SAN FRANCISCO CHRON., Jan. 7, 2000.
135. Julian Guthrie, Race Gap to Widen Further at Lowell Next Year: Fewer Blacks and Latinos,
More Asians and Whites, SAN FRANCISCO EXAMINER, March 10, 2000, at Al.
136. Yamamoto, supra note 130, at 822.
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did not experience the same successes.137 Here, one community of color sought to undo the protections of a consent decree mandating the desegregation of schools for the benefit of another community of color. A doctrine that allows such results, fails to address the underlying dynamics of subordinated groups, and strips these groups of any meaningful avenues to affect change in the realm of access to education. Rather than challenging the power differentials between communities of color and whites, this case pits groups of color against each other, further subordinating one group in order for another to advance. By forcing these groups to work against each other in the struggle to claim a seemingly finite amount of resources, groups of color are further marginalized, and the existing power structure remains undisturbed.
In Negative Action Versus Affirmative Action, William Kidder discusses
public fears that Asian Americans would gain the most as a result of the ban on affirmative action, which invoke modern day "yellow peril" tropes.138 Kidder critiques a study by Espenshade and Chung'"9 that concludes that Asian American applicants would gain the most from dismantling affirmative action, occupying 80 percent of the seats opened up by African American and Latino students who would be negatively impacted by the loss of affirmative action programs. Kidder distinguishes between "negative action," the awarding of negative points to APIs, leading to a decreased chance of admission compared to whites with similar credentials,140 and affirmative action, which promotes the admissions chances of Black, Latino, and American Indian students.14' He argues that conflating the two ideals leads to the incorrect assumption that APIs are negatively impacted by affirmative action.' 42 Chang and Espenshade's study suggests that it is in the interest of APIs to do away with affirmative action. The Pilipino American experience undermines this assumption because they often have benefited from affirmative action. Census data shows that Pilipinos who have completed a high school education are less likely to enter higher education compared to other API groups. For example, while 91.8 percent of Pilipinos have at least a high school education, only 47.7 percent of Pilipinos 43 This indicates that 44.1 percent of have a bachelor's degree or higher. 1 Pilipinos do not advance from high school to college and beyond. Koreans,
137. Id. 138. Kidder builds on Jerry Kang's concept of "negative action." See generally Jerry Kang, Negative Action Against Asian Americans: The InternalInstability of Dworkin's Defense of Affirmative Action, 31 HARv. C.R.-C.L. L. REV. 1, 3 (1996). 139. Thomas J. Espenshade & Chang Y. Chung, The Opportunity Cost of Admission Preferences at Elite Universities,86 Soc. Sci. Q. 293, 298 (2005). 140. See generally Kang, supra note 138, at 3. 141. William C. Kidder, Negative Action Versus Affirmative Action: Asian Pacific Americans Are Still Caught in the Crossfire, 11 MICH. J. RACE & L. 605, 605-06 (2006). 142. Id. at 606. 143. 2006-2008 American Community Survey 3-Year Estimates, Selected Population Profile in the United States, http://factfinder.census.gov/servlet/IPTable. I calculated these figures by subtracting the percentage of Pilipinos aged 25 and older with high school diplomas only from the percentage of Pilipinos with both high school diplomas and college degrees.
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Chinese, and South Asians, on the other hand, experience much lower relative rates of failure to obtain a bachelor's degree, at 38.7 percent, 29.6 percent, and 21.5 percent, respectively.' 44 Though Pilipino Americans are often clumped together with other Asian American groups, they differ in terms of economic and educational attainment. These characteristics are more significantly masked by the "model minority" myth in comparison to other Asian groups. Thus, affirmative action measures could address the deleterious effects of assuming Pilipino Americans have the same levels of educational attainment and economic prosperity as East Asian groups generally. Kidder also suggests that "negative action" may not necessarily be due to the fact that Black and Latino students are occupying slots that would otherwise be awarded to API students. Instead, affirmative action may work as a screen that hides more invidious institutional practices, such as an interest in preserving a majority white population at elite institutions or the use of stereotypes against Asian American applicants during the admissions process. 14 5 Again, because of the disparities that Pilipinos face in comparison to some Asian American groups, the fact that Pilipino, Pacific Islander, and Southeast Asian students are trailing in educational attainment supports Kidder's argument that discrimination is occurring in the admissions process.
The Berkeley Litigation
In 1999, civil rights groups such as the NAACP Legal Defense and Educational Fund, Mexican American Legal Defense and Educational Fund, the Asian Pacific American Legal Center, the Lawyers Committee for Civil Rights, and the American Civil Liberties Union joined to represent African American, Latino and Pilipino students in a class action suit against the University of California at Berkeley ("Berkeley").1 46 The students claimed that Berkeley's 1998 admissions program created an adverse discriminatory impact on those underrepresented groups. Specifically, the plaintiffs contended that Berkeley's race-neutral admissions process (relying extensively on factors such as the number of Advanced Placement (AP) courses taken and differences in SAT scores) diminished or severely limited the likelihood of admission for these groups.147 They argued that these practices violated Title VI of the Civil Rights Act of 1964 by mirroring disparate impact charges under Title VII.148 In fact, "in 1998 over 750 African American, Latino and Pilipino American applicants with grade point averages of 4.0 or better were denied admission. While white
144. Id. While the rate of Pilipinos with high school diplomas who fail to later earn their bachelor degrees is higher than the average for APIs, Japanese and Vietnamese experience even higher rates, at 47.2% and 45.9%, respectively. 145. Kidder, supra note 141, at 610. 146. Joint Case Management Statement, Castaneda v. Regents of the Univ. of Cal., No. 99-0525 (N.D. Cal. 2003). 147. Id. at 5. 148. Complaint for Declaratory and Injunctive Relief, Rios v. Regents of the Univ. of Cal., No. 990525 (N.D. Cal. 1999).
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students with 4.0 GPAs or better had a 48.2 percent chance of admission, Latino students had only a 39.7 percent chance, African American students a 38.5 percent chance and Pilipino students a 31.6 percent chance." 4 9 Plaintiffs also brought a Fourteenth Amendment claim that the UC Regents knowingly maintained discriminatory practices by adopting this race-neutral admissions
process at UC Berkeley. 150
Berkeley contended that its 1998 admissions program, based on directives from California Proposition 209 required extensive and individualized review of applicants, which did not yield a disparate impact on these students of color when ' In 2003, the case settled, partly controlling for differences in qualifications. 15 because UC Berkeley decided during the litigation to adopt a comprehensive review of its applicants. 152 The comprehensive review requires admissions officials to consider factors beyond grades and test scores, such as the applicant's personal statement and extracurricular activities.15 The settlement also yielded a consent decree, which required Berkeley to provide materials on admissions training, and an annual report of admissions disaggregated by race and ethnicity. 154 The disaggregation of this data by ethnicity is particularly important to examining the progress of API's in reaching educational equity, as the presence of significant numbers of Asian Americans masks differentials within the group. Here, this note juxtaposes two efforts by the Asian American community to show that there is potential under affirmative action jurisprudence to seek raceconscious remediation. For example, the Ho litigation understood the allocation of resources as a zero-sum game and used color-blindness to further arguments that benefit parts of the API community at the expense of other subgroups. The resulting settlement agreement from the Ho litigation not only worsened chances for admission of underrepresented API groups to San Francisco's most desired public schools, but it also undid protections that were put into place to specifically guarantee Black students fair representation at these schools as well. The Berkeley litigation, on the other hand, exhibits the possibilities of incorporating the Pilipino American experience to litigation strategy. The Pilipino American class members in the Berkeley litigation were represented by the Asian Pacific American Legal Center ("APALC"), the "nation's largest legal organization serving the Asian and Pacific Islander (API) communities." APALC understood its role as an API legal organization to encourage and include collaboration with other racial groups to advocate for all people of color. A developing convergence in the needs of the community exhibits the potential effectiveness of demanding remediation, and the power of building coalitions.
149. Process 150. 151. 152. 153. 154.
NAACP Legal Defense Fund, Settlement Reached in Suit Over Discriminatory Admissions at UC Berkeley, June 17, 2003, http://www.naacpldf.org/content.aspx?article=54. Id. Id. at.7. Id. Id. Consent Decree, Castaneda v. Regents of the Univ. of Cal., No. 99-0525 {N.D. Cal. 2003).
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Further, the groups' negotiation of the consent decree helps to hold the public university accountable to the people it intends to serve. As a public university, UC Berkeley must comply with civil rights laws, and the students who are admitted into the university should be reflective of the communities that make up California.
CONCLUSION
While the Pilipino American experience has been profoundly and similarly affected by racism and xenophobia as other oppressed groups in the United States, there are events in the history of this community prior to, during, and after arrival to this country that have uniquely shaped their identity and experiences. Colonization, westernization and stereotyping under the model minority myth have splintered Pilipino identity into facets that cannot be captured under the current, and notably inaccurate, conceptions of APIs. The liminal status of Pilipinos illustrates the ways in which race-conscious remediation, as it is currently conceived under the law, has failed to provide effective relief for the injustices faced by these communities. Examining these failures reveals insights into the workings of civil rights and anti-discrimination law that may be used to promote racial collaboration and solidarity in order to bring about justice for all communities of color.

Examining Race-Conscious Remediation Through Pilipino/a American Experience

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UCLA ASIAN PACIFIC AMERICAN LAW JOURNAL