Monday, May 20, 2019


Excerpted from: Vinay Harpalani, Desi Crit: Theorizing the Racial Ambiguity of South Asian Americans, 69 New York University Annual Survey of American Law 77 (2013) (595 Footnotes) (Full Document)


Vinay Harpalani“Japanese Beetle!” “Japanese Beetle!” It is the fall of 1979, and my earliest memories of kindergarten class are not so pleasant. Several young children are darting around me in circles, repeatedly yelling, “Japanese Beetle!” At a mere five years of age, I understood all too acutely that I was the object of relentless teasing, but I did not think about how inaccurate this teasing was. While I was aware of my ethnicity, Asian Indian, or South Asian American as I now prefer, it somehow did not register that my classmates had identified me incorrectly.

Looking back, I suspect that the teasing was related to the rising economic competition between the United States and Japan in the late 1970s, particularly in the automotive industry. I wonder now if any of those kids had parents who worked at the Chrysler plant down the street from my elementary school; that might explain where they learned the racial epithet.

Fast-forward to the winter of 1991, my junior year of high school. The scene is the locker room, after basketball practice. The United States is heavily immersed in the first Persian Gulf War, and Iraqi leader Saddam Hussein is one of the most hated men in America. So this time the insult is “Saddam!” and the perpetrators are my teammates on the Glasgow High School boys' basketball team. One of them warns the others to stop heckling me. “His dad actually might be Saddam!” he cracks.

These two memorable incidents from my childhood illustrate that I received my fair share of racial/ethnic teasing, but what is more interesting is how little of it actually involved my own ethnic group. Growing up in New Castle County, Delaware, from the 1970s to the early 1990s, there were very few people of South Asian descent around me. Delaware's racial climate was defined largely by its black/white demographics and its history as a border Southern state. Moreover, the implementation of comprehensive school desegregation in New Castle County, just as I started kindergarten, brought racial conflict to the forefront. In this local climate, I was a racial chameleon--a malleable target of derision, serving as a scapegoat for whichever group was unpopular at the particular moment.

My ambiguous racial identity is still apparent, even when the intent is not derogatory, and it is often dependent on the local context: on the predominantly white campus of the University of Delaware, professors and students sometimes referred to me as Italian; conversely, in the more diverse, urban environments of Philadelphia during graduate school and New York City during law school, I was often mistaken for Puerto Rican. When I visited Arizona, and when I lived in Seattle for two years, people on the street told me I looked Mexican, particularly Mexican Americans themselves. Of course, in various places, I have been mislabeled as Arab or Middle Eastern, as have many other South Asian Americans.

Such racial ambiguity--the changing racial characterization of a person or group, depending on the local and historical context--is an important part of the experience of South Asians in the United States. More generally, racial ambiguity is significant because: (1) it reveals the social meanings and stereotypes associated with race, which have been lost in recent American formalist race jurisprudence; and (2) it illustrates how these social meanings change across time and space. Racial ambiguity itself is not unique to South Asian Americans; other groups, such as Latinos and Arab Americans, can be racially ambiguous. Biracial and multiracial individuals in our society, including President Barack Obama, also may be racially ambiguous, as reflected by their self-identification and their racial characterization by others. Moreover, ambiguity in racial identification is also becoming part of the discourse of major U.S. Supreme Court cases, such as Fisher v. University of Texas.

Nevertheless, the dynamics of racial ambiguity are under-theorized in the scholarly literature. Articles dealing with racial ambiguity have focused on a single group or on biracial and multiracial individuals. Focusing on racialization of a single group can be valuable, particularly for a group that has not been studied extensively, such as South Asian Americans. However, racial ambiguity is relational: it can only be understood by considering the positioning of individuals and groups with respect to other groups, and situational changes in such positioning. There has not been a broader attempt to analyze how racially ambiguous individuals and groups are racially characterized in various situations and varying historical and political circumstances. Understanding racial ambiguity requires a nuanced consideration of the relationship between physical appearance, racial stereotypes, and media depictions in promoting understandings of race. Such an inquiry must also examine the dynamic nature of formal racial categories and the impact of local contexts in shaping these issues. Socio-historical theories of racialization have focused largely on the creation and malleability of racial categories over time, rather than on how individuals may be racialized differently in different contexts. Critical race theorists have explored the performative aspects of race, but they have not devised a general racialization framework to analyze individual and group racial ambiguity, or incorporated situational performances of race into sociological theories of racialization.

In light of these considerations, this Article has two major aims. First, it is a comprehensive analysis of the racial ambiguity of South Asian Americans (Desi) an idea that has been introduced previously in sociology and ethnic studies, but has not been explored fully or theorized. In particular, this Article expands the limited discourse on South Asian American racialization in legal scholarship, moving beyond the post-September 11, 2001 war on terror, immigration law and H-1B visas, and the well-known case of United States v. Thind. By doing so, this Article adds another dimension to Critical Race Theory (CRT). In addition to the classic CRT writings, and to LatCrit (focusing on Latinos), AsianCrit (focusing on Asian Americans, and particularly East Asian Americans), and TribalCrit (focusing on Native Americans), this Article introduces “DesiCrit” (focusing on South Asian Americans as raciallyambiguous beings).

By analyzing South Asian American racialization, the Article aspires toward its second and more ambitious aim: beginning the synthesis of a general theoretical framework to analyze racial ambiguity of individuals and groups. Given that racialization theory deals with the creation and transformation of racial categories, and racial ambiguity by definition problematizes those categories, this is an almost paradoxical undertaking. But analysis of South Asian American racialization necessitates such an undertaking, and this Article merges sociological theories of racialization with racial ambiguity.

To accomplish this second aim, this Article draws not only from CRT, but also from sociological theories of racialization, philosophy of race and racial identity, and whiteness studies. By examining the agency of racialized actors, this Article analyzes not only ascriptions of racial status by others, but also proactive claims to racial status--particularly “whiteness,” although also discussed herein are claims to minority status--by such actors. In addition to the creation of formal categories, this Article also analyzes racialization through symbols and through performative notions of race. It defines formal and informal modes of racialization, and applies both in its analysis of South Asian American racial ambiguity, focusing particularly on informal racialization. Finally, this Article highlights the importance of “racial microclimes” historical and political climates that impact racialization. It theoretically integrates these various areas to examine the racial ambiguity of South Asian Americans, from the first wave of Asian Indian immigrants in the early 1900s, to the current population of approximately 3.4 million South Asians in the United States.

Part I of this Article serves as an overview. It reviews basic definitions and terminology as used in this Article. Part I also gives a social and demographic profile of South Asians in the United States, and it introduces the idea of racial ambiguity as applied to South Asian Americans. All of this serves to situate the analysis in subsequent sections.

Part II lays out the theoretical framework for this analysis, by reviewing and synthesizing insights from CRT, sociological theories of racialization, philosophy of race, and whiteness studies. Drawing upon these various areas, Part II first defines “formal” and “informal” modes of racialization. “Formal” racialization occurs through creation, application, and transformation of legally cognizable racial categories, while “informal” racialization occurs via physical identification, performance of particular behaviors, and through transferrable symbols that have acquired social meanings associated with race and status. While the racial ambiguity of South Asian Americans is apparent through both modes, informal racialization is particularly salient for racially ambiguous groups and individuals. Next,Part II delineates the processes by which both formal and informal racialization operate. It posits that racialization occurs when ambiguous actors make claims to racial statuses, in addition to when they are labeled by ascriptions of racial statuses. Racialization is thus a bidirectional process that involves agency and ascription, in intertwined fashion. Finally, Part II highlights the importance of racial microclimes-- local historical and political circumstances that affect racial dynamics and are particularly important for understanding the situational manifestation of racial ambiguity.

Subsequent Parts apply these concepts to the racialization of South Asian Americans. Part III focuses mainly on whiteness in the formal racialization of South Asian Americans, examining the changing views on whether South Asian Americans are legally “white.” This Part gives the early U.S. immigration history of Asian Indians, focusing particularly on their racial characterization. It covers the “racial prerequisite” cases, where in order to gain citizenship, immigrants from South Asia and other countries had to prove they were “white” under the Naturalization Law of 1790. Particularly important here is the case of United States v. Thind, where the U.S. Supreme Court ruled that Asian Indians were “Caucasian” but not “white,” and thus not eligible for naturalization. Part III also examines the changing Census classification of South Asian Americans and patterns of racial self-identification among South Asian Americans, all of which reflect the theme of racial ambiguity.

Part IV focuses on informal racialization of South Asian Americans, from “model minority,” to “macaca.” It examines how U.S. immigration policy helped create the model minority stereotype by granting preference to educated immigrants from Asian countries in the 1960s and 1970s--preference that was later curbed. Part IV also discusses “glass ceiling” effects in employment, and illustrates how the model minority stereotype contributes to the racialization of black Americans and Latinos through the affirmative action debate. Next, Part IV examines claims to status and racial ascriptions involving the two most well-known South Asian American politicians: conservative Republican governors Bobby Jindal of Louisiana and Nikki Haley of South Carolina. Part IV also analyzes the role of religion in the racialization of South Asian Americans, covering aspects of Christianity, Hinduism, and Islam. Finally, this Part examines the racialization of South Asian Americans as “black,” focusing on the role of social, political, and historical context and the interplay between agency and ascription.

The Conclusion then synthesizes the major aims above and also lays out the broader implications of this analysis, not only for South Asian Americans, but for American racial hierarchy more generally.

. . .

Finally, by considering informal racialization in depth, this Article posits racial identity as a transferrable entity and focuses on social meaning and racial symbols, as alluded to already, rather than categorical classification. Although formal racialization is still important, racially ambiguous groups such as South Asian Americans, can simultaneously possess attributes of whiteness, “foreignness,” and “blackness,” and may attempt to claim or rebuke these attributes. Additionally, attributes of these various racial statuses can be ascribed onto racially ambiguous actors. This Article contends that the future of Critical Race Theory and racialization theory lies not only in examining other groups and creating notions such as DesiCrit, but rather in showing how race is salient as a form of transferrable capital (or as a negation of such capital) rather than just as a category. “Post-racial” America, if anything, reflects only the declining significance of racial categorization itself: the symbols, stereotypes, and social meanings associated with race are still salient. And at a time when the U.S. Supreme Court, through its formalist, “colorblind” jurisprudence, is de-emphasizing race, it is important as ever to emphasize these powerful social meanings and their continuing effects.

Associate Professor of Law, Savannah Law School. J.D. 2009, N.Y.U. School of Law; Ph.D. 2005, University of Pennsylvania.