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Asian Americans and 1996 California Civil Rights Initiative

 Harvey Gee

Abstracted from: Harvey Gee, Why Did Asian Americans Vote Against the 1996 California Civil Rights Initiative?, 2 Loyola Journal of Public Interest Law1-52, 1-13 (Spring, 2001) (197 Footnotes)

Of course, blacks and other people of color in this country know that when Japanese Americans and other Asian Americans are assenting to an honorary white status. When we play that card, and as long we do that, there's little reason for other people of color to trust us.

Although Asian Americans have been marginalized throughout most of the political and judicial debate over affirmative action, we now stand at the center of the controversy, at once lobbied and held up as an example by Proposition 209's advocates.

Asian Americans are told by conservatives that affirmative action hurts us. Yet even as efforts are being made to dismantle affirmative action for racial minorities, no efforts are made to dismantle the preferences given to whites that hurt Asian Americans. It is within this context that Asian Americans must decide if we will let ourselves be used as pawns in the struggle over affirmative action.

At a recent lecture delivered at Fordham University School of Law, Harvard Law Professor Christopher Edley, Consultant to President Clinton's Advisory Board on Racial Reconciliation, spoke about the challenges facing this nation in trying to cope with the problems of racial and ethnic justice in America.

In particular, Edley focused on President William Jefferson Clinton's Initiative on Race, and the President's efforts to build a worthwhile legacy regarding race relations "that is 150 years older than the nation itself." According to Edley, Clinton could have made a significant difference if he concentrated his efforts on two tracks - policy and values.
Edley suggests that to progress in race relations, the United States needs strong policy ideas, and that private practices must change in order to affect necessary social and economic facts in people's lives. Racial harmony also requires a sense of community. Edley states that "[i]t has to be about a strategy for changing people's perceptions and values so that they will draw the circle wider - change their perception of who is 'us' and who is 'them' - change values in order to create the moral and the political predicate for bold policy measures."

Further, Edley suggests that this "national conversation on race" is not an end unto itself. The conversation has to be the first step in creating understanding, and moving people to a different sense of community through actions and experiences that will shape people's values. Edley concludes with his assertion that "[a] major component of the Race Initiative ... is a search for what we call promising practices, looking for the effective strategies for changing people's values and people's sense of community."
Asian Americans have responded to Edley's call for action and have joined in the increasingly vibrant, and often compelling, national dialogue on race. The California Civil Rights Initiative (CCRI) campaign, in 1996, forced Asian Americans into the affirmative action debate. As demonstrated during the CCRI campaign, Asian Americans decided for themselves that they must support affirmative action.

Significantly, prior to the strong stand made by Asian Americans in opposing CCRI, both liberal progressives, who supported affirmative action, and their conservative opponents, utilized Asian Americans in their CCRI rhetoric. On one hand, affirmative action supporters and the mainstream media largely ignored Asian American concerns. On the other hand, affirmative action opponents were quick to portray Asian Americans as innocent victims subjected to reverse discrimination along with whites by allowing African Americans to have racial preferences.

The National Council of Asian Pacific Americans, and other activist organizations, represent the concerns of many Asian Americans who are in a quandary over the affirmative action debate. Collectively, the activist organizations realize that all too often, policymakers look at the overrepresentation of Asian Americans in higher education, especially in California, and assume that Asian Americans are one homogeneous group. When policymakers view Asian Americans as a homogeneous group, they mistakenly assume that Asian Americans do not need affirmative action programs. According to this stereotype, Asian Americans have experienced racial discrimination, yet they are one monolithic racial group that has achieved economic, educational, and social success through hard work and perseverance, without turning to assistance from the government or seeking racial preferences. Thus, policymakers automatically exclude Asian Americans from affirmative action programs without further analysis.

The underlying affirmative action controversy illustrates why the issue of where Asian Americans are situated in the debate is actually about a larger issue within race jurisprudence. Historically, the Asian American experience proved that race is not solely biologically determined, but rather it is a social and cultural construction, which is constantly in flux. At various times in history, society treated Asian Americans as honorary whites, as blacks, and yet always foreign. For instance, during the nineteenth century the white American bosses considered Chinese laborers as constructively white to further the bosses goals subordinating black laborers and sustaining the white racial privilege. Conversely, society treated Asian Americans as constructively "black" in school desegregation, and regarded Asian Americans as "foreign" during the Exclusion Era, World War II, and this treatment continues in present day debates over immigration. Today, Asian Americans are seemingly considered "white" in the affirmative action debate.

The traditional black/white understanding of race relations is inadequate in dealing with the demographic spectrum of racial and ethnic issues, including many forms of discrimination against Asian Americans. The need for a more refined and inclusive analysis of race, the purpose of which is to guarantee equal protection under the laws, is clearly demonstrated in problem areas such as: Anti-Asian violence, education, inter-minority conflict, and the shortcomings of the post-Civil Rights discrimination laws.
The use of a bipolar paradigm also creates a racial hierarchy by forcing racial groups to chose one color over another. This binary construction forecloses an examination of the ways in which Asian Americans and African Americans have been racialized against each other. This racialization is well demonstrated in the treatment Asian Americans receive as "white" in contemporary debates over affirmative action.
According to scholars Michael Omi and Dana Takagi, both the political Right and the political Left have divergent approaches to situating Asian Americans in the affirmative action debate, and how to frame particular strategic representations of Asian Americans. Political attempts to situate Asian Americans in the affirmative action debate illustrate the modern complexity of race. The bipolar model of race relations reveals an increasing inability by policymakers to comprehend the patterns of conflict and accommodation, which now occurs between, and among, different racial groups.

Omi and Takagi suggest that policymakers need a new expansive analytical framework to obtain an understanding of the present complexities of racial location and interests. The proposed new paradigm would extend beyond the shadows of black/white relations, and would not essentialize race. Instead, it would interpret how groups are constructed and represented, thereby allowing a more inclusive understanding of how social policies have a different impact on different groups.

This article illustrates the political awakening of Asian Americans as marked by the Asian American experience in the fight against the passage of Proposition 209. It will use the thesis offered by Omi and Takagi, as well as Professor Lydia Chavez's diversity research published in her recent volume, The Color Bind: California's Battle to End Affirmative Action, as the basis for analyzing and interpreting Asian American political activism in reference to Proposition 209. The central proposition of this article is that Asian Americans occupy a unique position in the affirmative action debate, and that this fact was clearly illustrated during the California Civil Rights Initiative.

Secondarily, this article will demonstrate why the contemporary stereotype of Asian Americans as being apathetic to the political process is without merit. The opposition by Asian Americans against the passage of CCRI is just one example of recent Asian American organized community activism. Other prominent examples include protests during controversy over the casting of the 1990 broadway production of "Miss Saigon;" the John Huang/Democratic National Committee fundraising controversy; the Republican Senate's efforts to block the confirmation of Bill Lann Lee as Assistant Attorney General for Civil Rights; and the prosecution of former Los Alamos nuclear scientist Wen Ho Lee for allegedly providing nuclear secrets to the Chinese government. Besides reflecting the vibrant political activism of Asian Americans, these examples underscore the fact that the important issues of race and ethnicity are just as salient today as they were during the Chinese Exclusion period in the United States. I believe that by considering Asian Americans on our own terms, the perception that Asian American interests are either identical to those of the white majority or different from African American interests will be clarified, understood, and addressed.
This article is divided into five parts. Section II summarizes the origin and development of affirmative action. By examining the legislative history and important Court decisions concerning affirmative action, this section allows the reader to achieve a broader understanding of affirmative action and the struggle for civil rights. Section II also examines the equal protection clause of the Fourteenth Amendment to the United States Constitution, which affirmative action opponents claim is at odds with race- based preference programs.
Section III explores both sides of the CCRI campaign. A particular focus is on the major efforts of Asian Americans fighting against the passage of Proposition 209, and events missed by most mainstream commentators.

Section IV explores why affirmative action, in its present form, represents a challenge, especially for Asian Americans.

Section V concludes the article with a discussion on the possibility of building interracial coalitions in the New Millennium.

[FNa1]. Staff Attorney, US District Court for the District of Nevada, Ninth Circuit; LL.M. (Litigation and Dispute Resolution), The George Washington University School of Law; J.D., St. Mary's University School of Law; B.A., Sonoma State University. E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it..