This article was originally published in the Sep/Oct 2021 issue of San Diego Lawyer Magazine.
By Julie T. Houth
Over 30 years ago, President George H. W. Bush signed a law that designated May 1990 as the first Asian American and Pacific Islander Heritage Month. However, much of Asian American history remains a mystery to many Americans, including Asian Americans themselves.
The term “Asian American” and variations of the term, e.g., Asian American and Pacific Islander (AAPI), encompasses individuals of Asian descent. These individuals do not necessarily identify themselves as part of the same culture because of language differences, cultural differences, and the historical enmities of their homelands. In American history, many Asians and AAPIs have united in solidarity across Asian ethnic groups for various reasons, including the desire to show their collective struggles and oppression.
The United States is known for its diversity of people and cultures, the melting pot of the world. Asians and AAPIs have had a significant impact on American legal history, for better or for worse. Asians and AAPIs in American history IS American history. “By not showing up in American history, by not hearing about Asian Americans in schools, that contributes to that sense of foreignness,” said Sarah-SoonLing Blackburn, a teacher educator with the Southern Poverty Law Center’s Learning for Justice initiative. The history of the AAPI community is tied closely to federal and state court rulings because, like other minority racial groups who were denied full access to certain constitutional rights, the main avenue of recourse in the struggle for equality was through the court system. The following section highlights a few landmark cases and laws where individuals of the AAPI community helped shape American legal history.
Landmark Cases and Laws
(1) Chinese Exclusion Act (1882)
Congress passed the Chinese Exclusion Act, the only U.S. law to prevent immigration and naturalization on the basis of race, which restricted Chinese immigration for the next 60 years. This was known as the “Chinese Must Go” movement and greatly contributed to the decline of Chinese immigration to the United States.
(2) United States v. Wong Kim Ark (1898)
During this time, the Chinese Exclusion Act denied citizenship to Chinese immigrants. Furthermore, no Chinese subject in the United States could become a naturalized citizen. Wong Kim Ark was born in San Francisco to parents who were both Chinese citizens residing in the U.S. He visited China, and on his return to the U.S., was denied entry because he was not considered a citizen.
Because Wong was born in the United States and his parents were not “employed in any diplomatic or official capacity under the Emperor of China,” the Citizenship Clause of the Fourteenth Amendment automatically made him a U.S. citizen. Justice Horace Gray authored the opinion on behalf of a 6-2 majority, in which the Court established the parameters of the concept known as jus soli — the citizenship of children born in the United States to non-citizens.
(3) Korematsu v. United States (1944)
President Franklin D. Roosevelt issued Executive Order 9066 on Feb. 19, 1942, authorizing the War Department to create military areas from which any or all Americans might be excluded. “All persons of Japanese ancestry, including aliens and non-aliens” were relocated to internment camps; however, Fred Korematsu, a Japanese American man, refused to leave the exclusion zone. Korematsu was a landmark decision by the U.S. Supreme Court to uphold the exclusion of Japanese Americans from the West Court Military area during WWII.
Of significant note is that Dale Minami, a civil rights lawyer, led the reopening of this case and helped overturn Korematsu’s criminal conviction 40 years after the case closed. Minami received several awards, including the ABA’s Thurgood Marshall and Spirit of Excellence Awards in 2019.
(4) Loving v. Virginia (1967)
Loving was the pivotal U.S. Supreme Court case that legalized interracial marriage across the United States. Although the parties in this case did not directly involve a member of the AAPI community, William Marutani, a Japanese American lawyer, filed an amicus brief and was permitted to speak in favor of the couple. He represented the Japanese American Citizens League.
(5) Lau v. Nichols (1973)
In 1971, the San Francisco, California school system was integrated and absorbed almost 3,000 students of Chinese ancestry who were not proficient in English.
Kinney Kimmon Lau and other students of Chinese descent who did not speak English and received no supplemental English courses brought a class action suit against the officials in the San Francisco Unified School District. The students claimed that the failure to provide supplemental English classes constituted an unequal educational opportunity in violation of the Fourteenth Amendment and the Civil Rights Act of 1964. The case was taken all the way to the U.S. Supreme Court, where it held unanimously that schools that fail to provide supplemental classes to students who do not speak English violate the Civil Rights Act.
Lau remains an important decision because the Supreme Court found a violation of the Civil Rights Act based on the discriminatory effect of the school policy, regardless of the intent of the officials.
Conclusion
Inclusion of Asians and AAPIs in academic curriculums can help educate the community at large about the historical significance and impact this group of people has had in American history. In 2021, Illinois became the first state in the country to require the inclusion of Asian American history in public school curriculums — the Teaching Equitable Asian American Community History Act (TEAACH). This Act takes the first step toward addressing some of the gaps by requiring all public elementary schools and high schools to have a unit dedicated to Asian American history. The effectiveness of this law will depend a lot on its implementation, but it is a start toward a more inclusive America. As sophisticated individuals, lawyers have the great responsibility to promote justice and serve their respective communities. By understanding this country’s past and present, we can work toward the integral need to create a better, more inclusive future.
Julie T. Houth (jhouth@rgrdlaw.com) is a staff attorney at Robbins, Geller, Rudman & Dowd LLP and co-editor of San Diego Lawyer.