Thursday, February 27, 2020


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V. Lesson Four: The Court Should Refuse to Affirm the Beliefs of a Majority Class That Their Class Is Entitled to the Material Riches and OpportunitiesThat the United States Has to Afford

As a Property teacher, I often remind students that property concepts, particularly those we unconsciously use to organize our sense of justice, pervade social understandings in civil rights cases. The saga of Yick Wo should remind the Court that it is neither courageous nor just to give in to social assumptions about who owns the social, moral, or material resources of our country.

From the very beginning of the conflict between Whites and the Chinese over material property and economic opportunity in the nineteenth century, Whites made it clear that they assumed that the United States and its riches were theirs to own and exploit. We might remember the ubiquitous slogan during that period: California for the Americans. From the 1852 pronouncements of California Governor John Bigler, who felt that [e]xtraordinary measures were needed . . . [to] check [the] tide of Asiatic to the U.S. Supreme Court's upholding of the Geary Act with its pass system in 1893, the constant theme of legislative, executive, and judicial validation of popular hysteria about the Chinese sounded in property theory's absolute right to exclude.

The response of White manufacturers to competition from the Chinese in their own industries is illustrative: in industries such as canneries and woolen mills, where White industrialists did not have to worry about Chinese competition because the capital start-up costs were too high, employers welcomed the Chinese as a low-cost source of labor that could keep White male and female workers' demands in check (although they were as willing as others to believe in the cultural superiority of By contrast, in the shoe and cigar industries, where the Chinese who learned the trades could compete with Whites, manufacturers quickly jumped on the bandwagon in supporting the Chinese Exclusion Act, aggressively portraying the Chinese as inferior and socially disruptive. Indeed, in the cigar industry, White competitors were all too happy to scare the populace into buying White by circulating rumors that Chinese cigars were passed through Mongolian leprous hands' and sealed with black While competitors often find ways to disparage their opponents' commercial practices or goods, it is difficult to explain such class-based racist behavior apart from the assumption that White entrepreneurs believed that economic opportunity belonged to them as a class, and not to their Chinese counterparts.

This view that America was the God-given property of Whites pervaded the popular literature as well. In asking American consumers to spend their money at White-owned rather than Chinese-owned laundries, the Knights of Labor Pioneer Laundry Workers Assembly made it clear who (in their view) was entitled to American fortune and who was not:

We say in conclusion that the CHINAMAN is a labor consumer of our country without the adequate returns of prosperity to our land as is given by the labor of our people to our glorious country. Our motto should be: OUR COUNTRY, OUR PEOPLE, GOD, AND OUR NATIVE LAND.

Many Californians were blatant about who was entitled to the wealth of the country: Kearney's Workingmen's Party marched under slogans such as, This is a country for free White labor, not coolie Lawmakers were not immune from the presumption that only Whites deserved the economic opportunities available in the United States. Indeed, sometimes they were quite blatant about it. For example, laws passed by the California legislature included: An Act to Protect Free White Labor against competition with Chinese Coolie Labor, and to Discourage the Immigration of the Chinese into the State of and the capitation tax, entitled An Act to Discourage the Immigration to this State of Persons Who Cannot Become Citizens And some believed that only White people were entitled to jobs, a view embodied in proposed Article XIX of the new California Constitution, which would have barred Chinese immigrants from working on public works, carrying on mercantile businesses, and obtaining jobs from corporations. Similarly, California legislators demonstrated their hostility to sharing the state's bounty with those of Chinese origin and interest in encouraging Chinese immigrants to leave through laws coupling discriminatory taxation with prohibitions or disabilities on working in many of the state's industries.

Politicians and legislatures were only too happy to affirm this notion that the material prosperity of America belonged to Whites, even if they were not willing to do the dirty work the Chinese would do to earn it. In 1885, the San Francisco board of supervisors committee noted:

The fact that the race is one that cannot readily throw off its habits and customs, the fact that these habits and customs are so widely at variance with our own, makes the enforcement of our laws and obedience to our laws necessarily obnoxious and revolting to the Chinese, and the more rigidly this enforcement is insisted upon and carried out the less endurable will existence be to them, the less attractive will life be to them in California. Fewer will come and fewer will remain.

Similarly echoing the theme that America is for Whites, San Francisco mayor James Phelan defended a decision to quarantine all Chinese in Chinatown because a man had died of bubonic plague in a residence hotel in Chinatown. He claimed that the Chinese were

fortunate, with the unclean habits of their coolies and their filthy hovels, to be permitted to remain within the corporate limits of any American city. In an economic sense their presence has been, and is, a great injury to the working classes, and in a sanitary sense, they are a constant menace to the public health.

Perhaps the most literal symbol of Whites' views that they owned the wealth of the United States was the Bingham ordinance of 1890. As noted previously, that ordinance provided that no Chinese person could live or conduct business in San Francisco outside of a narrow area previously set aside for slaughterhouses, tallow factories and other unhealthy businesses. The ordinance would have required all ethnic Chinese in San Francisco, both in Chinatown and elsewhere, to leave the city or move into the new district, giving up as much as $15 million in real estate. The ordinance was aimed at stopping the spread of the alleged cancer or ulcer of a growing Chinatown that was cutting off the aristocratic neighborhoods of Nob Hill and Powell/Mason from the commercial center of the city. Though there had been plans for a test case against the ordinance, Supervisor Bingham ran amok and arrested seventy-five Chinamen living outside of this area, including a father tending to his sick child. Federal Judge Sawyer was so disgusted at the allegations of the complaint that he ordered many of them stricken from the record: the city alleged that the Chinese were criminal, vicious, immoral, incorrigible perjurers whose property decreased the value of surrounding property; that they left their sick to die in the streets and were a moral danger to other races; and that they had to be removed to districts where they would have less contact with other races. In the end, Judge Sawyer expressed concern not only about the discriminatory targeting of the Chinese, but also about the way the law worked an arbitrary deprivation of property, putting the Chinese completely at the mercy of sellers in the district where they were to be relocated. In the later years, as earlier suggested, the federal courts occasionally were willing to see state and local ordinances for what they were: attempts by Whites to take the hard-earned property rights of ethnic Chinese persons, citizens and resident aliens alike, on the theory that only Whites were entitled to the bounty of the country.

While the Bingham ordinance was perhaps the most egregious attempt by majority Whites to claim ownership of American opportunity, it is not simply a historical footnote. The Court's modern affirmative action cases display White plaintiffs' similar assumptions that certain opportunities are owed to them as White persons.

Jennifer Gratz, who was denied admission to the University of Michigan undergraduate program, demonstrates this unwritten expectation that the opportunities available from government belong to Whites by right if only they work hard. Jennifer said that she thought she was a shoo-in to the University because of her 83rd percentile ACT score, and her background as a cheerleader, student body president, homecoming queen, and volunteer. She was so sure of herself that she had not applied to any other school until she got a letter from the University indicating that she was well qualified, but less competitive than other admitted students. When she received her rejection:

[Jennifer was] devastated, angry, and embarrassed all at once. Jennifer thought about all the hard work on her studies, extracurriculars, and application . . . [She] was sure that something had gone terribly wrong. Her thoughts flashed to a Hispanic classmate who had been admitted to Michigan with lower grades than hers. Finally, Jennifer uttered the first words that came to her, Dad, she said, Can we sue them?

For Jennifer, the expectation that her classmate was not worthy because of his race and a number was firmly fixed. Her co-plaintiffs similarly admitted in interviews that they had been relatively confident they would be admitted to Michigan and had done little to line up comparable backup Similarly, Allen Bakke, who set the affirmative action debate in education on its course, maintained that he should have been admitted because of his higher test scores, even though an admissions interviewer described him as opinionated with a limited approach to problems in the medical profession. Indeed, he thought he was entitled to admission even though several White students with lower scores had been admitted to his claimed seat. And Marco DeFunis, who applied to the University of Washington Law School [f]eeling that his credentials were as good as anyone's [and] that he was the victim of unfair treatment, claimed that race discrimination was obvious given his LSAT score. This despite the fact that of the seventy-four admitted law school applicants with scores lower than his, thirty-eight were White and only thirty-six were identified minorities. Although DeFunis had been accepted at four other law schools, he insisted on attending Washington because it would have saved him and his wife an estimated $1,500 a year in possibly lost

This pattern is repeated in employment affirmative action cases as well. Randy Pech, the principal in Adarand Constructors v. Pena, complained to anyone who would listen that government programs that disfavored White men were gaining Highly cognizant of the fact that his was the only White guardrail company in his area, he claimed that when he heard that he had submitted the low bid but the contract would go to a minority firm, I flipped. It is a pattern repeated in gender as well as race cases. For example, Paul Johnson, who was passed over for the job of Santa Clara County highway dispatcher, always believed that if you set goals and worked hard, you could achieve He testified, I knew there was no one else taking the test that was anywhere near qualified as I was . . . . Usually, if you're doing the job, you automatically get In fact, when the woman who was instead hired applied for the position, her supervisor shouted, don't you realize that you're taking a man's job

Each of these plaintiffs implicitly believed that he or she was entitled to a job or opportunity as a virtual property right even if there is no legal foundation for that assumption: no one is legally entitled to be admitted to a public university even with a perfect test score, and no one is legally entitled to receive a public construction contract even if his work is exceptional and his costs are low. These plaintiffs' responses suggest that they were expecting, as property, a benefit tied to their hard work and overall qualities, a benefit which they automatically assumed the minority who gained their spot had not earned.

Of more concern is the fact that the Supreme Court both acknowledges White plaintiffs' anger over losing their entitlements and uses their property assumptions as a policy justification for invalidating affirmative action programs. The Court treats affirmative action plaintiffs as innocent victims of the programs, implying that the minorities who received the benefits of the programs were not innocent. More critically, the Court accepts the hostility and stigmatization of Whites directed at recipients of affirmative action as a primary justification for striking down these programs. Such programs can lead to a politics of racial and resentment by innocent victims of those who receive benefits. In affirming such feelings held by people like Jennifer Gratz, the Court seems unwilling to recognize that only those persons who believe they have something in the nature of a property interest or entitlement to the benefit at issue will be resentful or stereotype minorities to justify their failure to get what was theirs.

The consequences of accepting the unexamined and perhaps unconscious beliefs of majority victims that they and not minorities are entitled to the benefits of American society are manifested in the Chinese cases. Property is protected, at least in part, because it provides security of person and other property to the owner. In times of high economic and social anxiety, human beings will resort to extraordinary means to protect their property, including, as we saw in the Chinese cases, killing, threatening and driving others out. If the costs of violence are too high, persons who believe their property is at risk will make those who compete for what is theirs miserable, using the auspices of the law wherever possible. For the Supreme Court to accept any dominant group's unconscious beliefs that they are entitled to the opportunities available in the United States--that these opportunities are their property--is like putting a loaded gun in their hands for the time the decide to utilize their stronger social or economic position to take that property out of the hands of other deserving persons with less power. The Chinese cases prove no less.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law


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