Abstract

Excerpted From: Harvey Gee, Moving Forward Together: Asian Americans and Allyship in a Non-black-and-white America, 58 University of San Francisco Law Review 172 (2024) (442 Footnotes) (Full Document Requested)

Last term, the U.S. Supreme Court overturned four decades of precedent when it effectively ended the use of affirmative action in the historical decision Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA v. Harvard). A 6-3 conservative supermajority held that the admissions programs used by Harvard College and the University of North Carolina (UNC) violated the U.S. Constitution's Equal Protection Clause, which bars racial discrimination by government entities. SFFA v. Harvard was the first affirmative action decision by the Court where Asian Americans took center stage as petitioners, and the case was decided during a period of increased anti-Asian violence. The two lawsuits, claiming discrimination against Asian Americans in the admissions process at Harvard and UNC, were the latest attacks on affirmative action by conservatives using Asian Americans as a wedge group to abolish affirmative action. The Court's ruling did nothing to end discrimination against Asian Americans.

Claire Jean Kim's timely and innovative book, Asian Americans in an Anti-Black World, written as the decision in SFFA v. Harvard was pending, explains that this case was not the first or last time that Asian Americans played a role as racial spoilers opposed to the interests of African Americans and other people of color. This spoiler role exists when Asian Americans and African Americans are treated as “minorities” without distinction and are presumed to be similarly situated relative to “discrimination” generally. In this construct, deeply rooted anti-Black racism ebbs, and the racial groups being compared are considered “minorities too.” Under this false perception, differential treatment between Asian Americans and other racial groups goes unnoticed. Moreover, this “Asian spoilers” narrative enables white and Asian conservatives, and the Court, to present the provocative query of why Asian Americans are succeeding despite discrimination, and African Americans are not. In clear prose, Kim dispels the “Asian spoilers” narrative and offers her “sociometry” analytical framework as an alternative theory to understand how racial groups are treated historically and modernly in America.

At the book's core, Kim illustrates how the abjection of African Americans is historically unique and distinguishable from the racism that Asian Americans face, and that Asian Americans experience racial advantages relative to African Americans. Kim argues that Asian Americans are not minorities in the historical sense, given their fluidity across and in between the traditional black/white racial paradigm. Yet, as seen in SFFA v. Harvard, failing to treat Asian Americans as minorities harms African Americans. Kim's thesis is that confronting anti-Blackness remains peripheral to Asian American politics, and everyone, especially Asian Americans, should acknowledge this.

Kim's holistic framework comes at a time when a younger generation of Asian Americans are politicized in the era of Black Lives Matter. Kim asks Asian Americans to reimagine Asian American politics as a force that destabilizes, rather than stabilizes, and contradicts the simplistic notion that all racial groups could easily stand shoulder to shoulder against white supremacy. Kim directly challenges prevailing narratives and paradigms of Asian American history and politics by illustrating how Asian Americans have benefitted from anti-Blackness. This is evident where Asian Americans have aspired towards whiteness because of the benefits that whiteness brings. Indeed, Asian Americans benefit from being non-Black in an anti-Black order: Whites have been more willing to assimilate with Asian Americans than with African Americans in housing, education, work, and social spaces. Likewise, Asian Americans, like whites, are not impacted by ghettoization, overpolicing, the school-to-prison pipeline, and mass incarceration. According to Kim, the reality is that Asian Americans and other non-whites are not as oppressed as African Americans, and that Asian Americans have historically and modernly benefitted from the oppression of African Americans. At the same time, Asian Americans continue to face ongoing anti-Asian discrimination and physical violence themselves.

Adding to this complex mix, anti-Blackness exists within the Asian American community. Kim looks through the lens of structural anti-Blackness, an important framework founded in the history of slavery, based on phobic avoidance and hatred of Blackness. Asian Americans have uplifted themselves by being complicit in adopting anti-Blackness. According to Kim, “Asian Americans are dynamically constituted as not-white, but above all not-Black.” Kim's innovative approach to racial analysis, based on rigorous research, helps readers understand where Asian Americans fit into the U.S. racial order: Where whites are lifted up by both white supremacy and anti-Blackness, African Americans are pushed down by both. This racial ambiguity is historical and continues to this day, as demonstrated not only in the opposition to affirmative action by conservative whites and Asian Americans, but also when Asian American police officers representing whiteness are involved in the killing of African Americans.

This Article examines the major themes of Asian Americans in an Anti-Black World. Part I of this Article summarizes the history of Chinese and Japanese people in the United States, showing that the Chinese and Japanese, representing the earliest and most numerous Asian immigrant groups to arrive to the country, faced discrimination by whites. Select judicial rulings reflected the dominance and dictates of white hegemony and anti-Chinese fervor: The Chinese were denied the right to testify as witnesses against whites, and Chinese children were not allowed to attend white schools. Simultaneously, the Chinese experienced better treatment than Blacks, and the Chinese distanced themselves from Blacks when it was advantageous to do so. The Chinese did not associate with Blacks and were anti-Black based on their self-interests. After the bombing of Pearl Harbor, race was the sole consideration behind internment because only individuals of Japanese descent--including American citizens who held no allegiance to Japan or its culture--faced internment. Assimilated Japanese American internees tried their best to steer away from Blackness, which empowered them during one of the darkest times in American history.

Part II assesses the Asian American movement of the 1960s and 1970s when activists spoke up for more awareness of Asian American issues and worked in solidarity to bring about a panethnic coalition in relation to the Black freedom struggle. It was a historical high-water mark for the Asian American movement, but as Kim and other scholars note, the goals were not achieved because Asian Americans never had a cogent critique of anti-Blackness, which continues to this day. Kim offers concrete examples of challenges Asian American activists face when striving to build cross-racial alliances with other racial groups: The racial tensions between Korean and African American communities before and after the 1992 Los Angeles riots, the racial reckoning after the police murder of George Floyd, the surge of anti-Asian hate during the COVID-19 pandemic, and the narrative of Asian Americans as “racial spoilers” by conservative Asian American groups who sought the abolishment of affirmative action in SFFA v. Harvard. Part III departs from the confines of Asian American studies and legal scholarship traditionally limited to analyses of history, immigration, and affirmative action, to explore Asian Americans in the context of criminal justice, which does not receive as much attention as it deserves. This discussion analyzes racial disparities in criminal procedure and sentencing and looks at efforts to reduce mass incarceration--an issue that may bridge commonalties between communities of color moving forward.

[. . .]

In sum, Claire Jean Kim offers important theoretical tools for thinking through the issue of how Asian Americans, who have historically been perceived as non-white but above all not Black, benefit from structural anti-Blackness. Asian Americans, with their relative privilege, should not allow themselves to be weaponized against the Black freedom struggle. Kim's work also shows why Asian Americans should not distance themselves from racial issues or refrain from opportunities to work with other racial groups and instead join racial justice efforts in taking a principled stand against the politics of whiteness and subordination. Finally, Kim's book contributes to literature because it articulates a new theory of racial analysis that better informs our understanding of race relations in America. The volume asks difficult and uncomfortable questions for anyone interested in racial justice, and for Asian Americans in particular.

The author is an attorney in San Francisco.