Examining Race-Conscious Remediation Through Pilipino/a American Experience

8/12/2019 Examining Race-Conscious Remediation Through Pilipino/a American Experience

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Examining Race-Conscious Remediation Through thePilipino/a American ExperienceCitadelle B. Priagula

INTRODUCTIONLegal examination of Asian American experiences has proliferated since the1960s, when Asian Pacific Islander (API)2 communities flourished after the

Immigration Act of 1965 invalidated restrictive quotas on immigration fromAsian countries.3 The subsequent population surge provided the critical massnecessary for API groups to assert their rights and fight for their interests.4 Inaddition, these communities were inspired by and directly participated in thelarger Civil Rights Movement.5 Further, the emerging political consciousness ofthe API community linked itself to the Black 6 community's struggle for race-

1. I use the term Pilipino/a rather than Filipino/a . When Spain colonized the Philippines, thePhilippines was renamed Las Islas Filipinas after Felipe (Phillip) of Spain. When the U.S.subsequently assumed colonial rule, Las Islas Filipinas became anglicized to the Philippines.Native-born people were called Filipinos. However, there is no f sound in any o the major languagesin the Philippines so Filipinos call the Philippines, Pilipinas, and themselves Pilipino/as. AnnetteB. Almazan, Comment, Looking at Diversity and Affirmative Action Through the Lens of PilipinolaAmerican Students Experience at UCLA andBerkeley 9 ASIAN PAC. AM. L.J. 44 n.2 (2004).

Citadelle Priagula is a 2010 graduate of the UCLA School of Law, where she specialized in theCritical Race Studies program. She would like to thank the APALJ staff especially Gary Li, Jason Wu,Jeremy Chen and Evelyn Wang, for their insightful comments and editing. She would also like to thankProfessor Cheryl Harris for her oversight with this comment.

2. Note that the broader Asian American identity was forged in the crucible of racialdiscrimination and exclusion, since the national identities o the groups mattered less than race did.RONALD TAKAKI, STRANGERS FROM A DIFFERENT SHORE: A HISTORY OF ASIAN AMERICANS 5(1998). Secondly, though the term Asian American certainly includes groups such as Pilipinos andPacific Islanders, I use Asian Pacific Islanders to specifically include Pacific Islander groups that areidentified within the larger umbrella group, such as Samoans and Chamorros.

3. It must also be noted that, despite the quota invalidation, the law was actually intended to ensurean immigration pattern that favored European immigration and limited immigration from Asian countrieswith larger populations, such as China and India. See id at 419.

4. Asian Americans numbered one million in 1965, and their numbers soared to five million by1985. This represents a four-fold increase from 1965 to 1985, compared with the 100 years spanningfrom the gold rush to the Immigration Act of 1965. Id. at 420.

5 See THE ASIAN AMERICAN ALMANAC: A REFERENCE WORK ON ASIANS IN THE UNITEDSTATES 333 (Susan Gall Irene Natividad eds., 1995).

6. I borrow from Kimberle Crenshaw and capitalize 'Black' because 'Blacks,' like Asians,Latinos, and other minorities, constitute a specific cultural group and, as such, require denotation as aproper noun. . By the same token, I do not capitalize 'white,' which is not a proper noun, since whitesdo not constitute a specific cultural group. Kimberle Crenshaw, Mapping the Margins:Intersectionality,Identity Politics,and Violence Against Women of Color,43 STAN L. REV. 1241, 1244n.6 (1991).


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conscious remediation for historical and contemporary injustices.Within this larger movement, Pilipino/a Americans served a visible and vitalrole. They built solidarity with Chicano migrant workers through theFarmworkers Movement8, and joined Black, Latino, Asian, and Native Americanstudents in the third world Liberation Front (twLF) strikes to demand theestablishment of Ethnic Studies departments at San Francisco State University. 9Despite such efforts, the Pilipino/a American struggle has been largely erasedfrom U.S. history, rendering the current discourse on race and the lawincomplete. In Robert Chang s 1993 Toward an Asian American LegalScholarship,Chang called for an Asian American legal scholarship to account forthe unique forms of discrimination and subordination faced by Asian Americans.The API community has greatly benefited from the subsequent scholarshiparising from this 'Asian American Moment' in the legal academy, o andcontributors who specifically highlight the Pilipino/a American experiencefurther enrich the legal and academic landscape. As a community that waspreviously discriminated against and rendered invisible by the law, the voice ofthe Pilipino American community could also work more robustly to expose thelegal system's failure to address the needs common to other communities ofcolor.In this comment, I will interrogate where and how Pilipinos interact withand shape the landscape of civil rights and anti-discrimination law, specificallyacross the issues of war reparations, employment discrimination and affirmativeaction. Given their history of colonization first by Spain, then by the UnitedStates, Pilipinos have been positioned as an Asian people not Asian in the eyesof their fellow Asian, not Western in the eyes of the West. ' 2 This liminal statushas affected the treatment of Pilipinos and the analysis of their claims under the

7. TAKAKI, supra note 2, at 418.8. Imutan discusses the merger of the mostly Pilipino Agricultural Workers OrganizationalCommittee (AWOC) and the majority Latino National Farm Workers Association NFWA) into one

union, the United Farm Workers. See Andy Imutan, What Happened When Mexicans and FilipinosJoinedTogether: 40th Anniversary of Delano Grape Strike Two day Reunion in Delano, UNITED FARMWORKERS, Sept. 2005, http://www.ufw.org/ page.php?menu=research&inc=history/04.html.

9. The third world Liberation Front was a collaborative endeavor of the Afro-American StudentAssociation, Mexican American Students Confederation, Asian American Political Alliance, PilipinoAmerican Collegiate Endeavor, and Native American Students Union to establish ethnic studies at SanFrancisco State University. Additionally, the groups organized and lead [sic] a series of actions toprotest systematic discrimination, lack of access, neglect, and misrepresentation of histories cultures andknowledge of indigenous peoples and communities of color within the university s curriculum andprogram. College of Ethnic Studies History, San Francisco State University,http://www.sfsu.edu/-ethnicst/home2.html (last visited Oct. 19, 2009).

10. Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory Post-Structuralism,and NarrativeSpace, 1 ASIAN L.J. 5, 1993).

I1. I discuss these three topics specifically because of the involvement of Pilipinos in shaping theseareas of law. From Pilipino WWII veterans to Pilipino and Alaskan cannery workers to Pilipino highschool students seeking entrance to institutions higher education, these groups have struggled for justiceunder U.S. law. Their triumphs and their failures exhibit both the law s potential and the ways in whichit can disserve subordinated communities.

12. Almazan, supra note 1 at 58 (quoting Stanley Karnow, In OurImage: America s Empire in thePhilippines14 1989)).

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imperialist, intent, and colorblind regimes. 13 Further, examination of availableremedies to Pilipinos exposes the inadequacies of these remedies in addressingthe harms experienced. Part II of this paper will detail the concerns thatmotivated the conception of Asian Americans in this fragmented manner. PartsIII through V will track the exploitation of Pilipino American identity along threeissues and their corresponding doctrinal regimes: 1) war reparations and theimperialist regime; 2) employment discrimination and the intent regime; and 3)affirmative action and the colorblind regime. I argue that through theexperiences of Pilipinos in these particular arenas where Pilipinos have beenmost affected, weaknesses in these remedies and their overriding doctrinalregimes are unearthed. 14This survey reveals that Pilipinos are doubly harmed by the variousconceptions of identity imposed on them.' 5 First, they are denied promisedbenefits in the form of discrimination-free workplaces and access to highereducation. Second, they are harmed by the legal system's inability to addressand historicize racial harms.16 Injustice is reproduced in the application of thelaw and its failure to effectively and meaningfully remedy the original claim.

FRAMING: PLIPINO AMERICAN IDENTITY As FLUIDThe racialization process of APIs in this country has resulted in a fluid

identity, whose various facets may be manipulated to justify various ends.17 TheSupreme Court's and lower courts' initial forays in constructing racial categorieshave run a wide gamut, from characterizing the Chinese as a race so differentfrom our own that we do not permit those belonging to it to become citizens ofthe United States, ' 8 to positioning APIs as constructive Blacks in order to curtail

13. By imperialist regime, I describe the extension of U.S. authority over other lands as part of thewhite nation-building project. By intent regime, I describe the move of courts in antidiscrimination lawaway from disparate impact analysis to require a showing of intent to discriminate. By colorblindregime, I describe the notion originating in Harlan s dissent in Plessy that our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens areequal before the law. Today, the colorblind regime has amounted to the uncritical application of strictscrutiny analysis any time race has been invoked in our constitutional jurisprudence, regardless of whichgroups are bearing the burdens or reaping the benefits of the practice at issue.14. 1do not intend to argue that the Pilipino experience is unique from other Asian American groupsentirely. Rather, there are many touchstones of the minority immigrant experience that are salient acrossgroups. Additionally, the experiences of individual Pilipinos in this country are widely varied and hardlymonolithic. Instead, I chose to focus on this group to show h ow particular conceptions of a group'sidentity shape their treatment under the law.

15 See generallyMari J. Matsuda, Looking to the Bottom: CriticalLegal Studies and Reparations22 HARV. C.R.-C.L.L. REV. 323 1987).16. Id17 See Almazan supra note I (citing Michael Omi Dana Takagi, SituatingAsian Americans inthe PoliticalDiscourseon Affirmative Action 55 REPRESENT TIONS 155, 156 (Summer 1996)).18. Plessy v. Ferguson, 163 U.S. 537, 561 1896) (Harlan, J. dissenting). While Harlan s dissent inPlessy understood that the statute upholding separate but equal passenger cars for blacks and whiteswas truly intended to subordinate blacks, he also invoked notions that placed Chinese immigrants at thebottom of the racial hierarchy. Harlan employed relational race by positioning the Chinese asinherently incapable of assimilation. Id. See also Ozawa v. United States, 260 U.S. 178, 198 1922)(holding that Ozawa, a Japanese-American, could not be considered for citizenship because citizenship

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group rights without upsetting the existing racial hierarchy.' 9The racialization of APIs as foreign in the United States is also linked tothe history of Asian immigration, which was largely driven by the need forinexpensive, replaceable labor. This racialization enabled farm owners to pitdifferent minority groups against each other. For example, Chinese, Japaneseand Pilipino workers in the Hawaiian plantation system were pitted against eachother through the white plantation owners' divide-and-control strategy. Thelandowners' tactics included wage differentials on the basis of nationality and thecultivation of nationalist consciousness to further drive down wages and toprevent group solidarity.2 The characterization of immigrants as Other alsopitted workers of color against poor Irish, Italian and Eastern European whiteworkers to prevent the unionization of subordinated groups and to drive downwages. 21 As a result, white workers viewed Asian Americans as unwelcomecompetition, who posed a very real economic threat to the livelihoods of whiteworkers.22 Otherness is also manifested in the public fear that Asian Americansconstituted a yellow peril. Here, Asian American disloyalty would support themilitary threat from the East.23 Most notoriously, the fear of yellow peril enabledthe Supreme Court to declare the detainment and internment of JapaneseAmerican citizens and non-citizens in concentration camps following the attackson Pearl Harbor constitutional. 24 Interestingly, the yellow peril label itselfretains a volatile character when applied to individual groups across time.During the 1940's the Japanese were viewed as enemies during World War II,while the Chinese were viewed as allies. A shift occurred during the post-WorldWar II era of McCarthyism, when the Communist party gained power in China.The Chinese were subsequently labeled as disloyal; despite their former status asallies, the new peril was seen as yellow in race and red in ideology. 25Contemporary characterizations of APIs toggle effortlessly from yellowperil 26 to model minority. The model minority myth, expounded upon bywas reserved for the Caucasian race, despite his performative efforts to seek citizenship by attending U.S.schools, speaking English at home, and residing in the U.S. for over 20 years,).

19 See People v. Hall, 4 Cal. 399, 399 (1854) (holding that testimony from Chinese immigrants wasprohibited from use against whites). The statute at issue banned testimony from black witnesses, and thecourt reasoned that black was a generic term meant to exclude all other races from the whitecategory. See also Gong Lum v. Rice, 275 U.S. 78, 82 (upholding the constitutionality of denying aChinese student entry into a white high school). The Supreme Court stated, Most of the cases citedarose over the establishment of separate schools as between white pupils and black pupils; but wecannot think that the questions is any different, or that any different result can be reached. Id. at 87.

20. TAKAKI, supranote 2, at 142.21. See Natsu Taylor Saito, Model Minority, Yellow Peril: Functions of Foreignness in the

Constructionof Asian American Legal Identity, 4 ASIAN L.J. 71, 86-94 1997).22. Id. at 89.23 See Natsu Taylor Saito, Alien and Non Alien Alike: Citizenship, Foreignness and Racial

Hierarchy n American Law 76 OR. L. REv. 261, 303 1997).24. See Korematsu v. United States, 323 U.S. 214 (1944).25. Saito, supra note 3 at 304 (quoting TAKAKI, supranote 2, at 415).26. In laying out Asian American identity as encompassing both model minority and yellow periltropes, Saito discusses Gotanda s concept of foreignness as the necessary link connecting the two



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countless scholars, portrays Asian Americans as hard-working, studious and themodern-day poster children of the American Dream. Both characterizations,despite their inherent contradictions, have been perpetuated by society's views ofAsian Americans. Moreover, these characterizations persist despite the passageof time and the inapplicability of the labels to particular groups. However, this isnot to suggest that these perceptions are diametrically opposed. Rather, theexistence of both illustrates the ways in which identity is manipulated to maintainthe status quo.The model minority myth, however, has numerous negative effects despiteits seemingly beneficial portrayal of Asian Americans. It masks markeddifferences in income, educational attainment between API groups, and wedgesAsian Americans against Blacks and Latinos. Furthermore, historical andcontemporary stereotypes and social problems faced by Asian Americans areobfuscated, leading to the cultivation of anti-immigrant sentiments.2 7 The 1yellow peril and perpetual foreigner characterizations help explain openlyracist policies such as the Chinese Exclusion Act and the internment of JapaneseAmericans. It also serves a contemporary function in its implied presumptionsthat Asians as the perpetual Other who are not entitled to the same protectionsenjoyed by true Americans.28 The fluidity of these conflicting facets ofidentity suggests significant utilitarian value in maintaining the racial status quo:reinforcing the racial hierarchy, facilitating discrimination, and legitimizing thesubordination of minorities.29Much of the stereotyped Pilipino American identity maps directly onto thesecharacterizations. 3 Like many other API groups, Pilipinos were brought into thiscountry as a part of the procession of immigrants providing cheap labor. Thefirst wave of Pilipino immigrants, the Sakadas, came to Hawaii and California inthe tens of thousands as agricultural laborers.31 Pilipinos were recruitedconceptions, providing continuity as Asian Americans flowed between positive and negative values. SeeSaito, supra note 21, at 73. See also Neil Gotanda, Other Non Whites in American Legal History: AReview of Justice at War 85 COLUM. L, REV. 1186, 1190 1986) (reviewing PETER IRONS, JUSTICE ATWAR 1983)).

27. See generallyTAKAKI supra note 2, at 475-484.28. ANGELO N. ANCHETA, RACE, RIGHTS, AND THE ASIAN AMERICAN EXPERIENCE 13 (RutgersUniversity Press 1998) 1960). As an example of this process, the positioning o Latinos and Asians as

Other performs a large amount of the work in promulgating nativist sentiments in anti-immigrationpolicy. Id. at 84-85.29. See Saito supra note 21, at 89 9330. While I argue for an examination of the Pilipino experience for its differences, I also remaincautious against providing an essentialist account in that I do not mean to assume that group membersundergo a monolithic experience in my analysis. Rather, I provide these overarching touchstones of the

Pilipino American experience to examine what the experience reveals about the underlying doctrine. Seegenerally DIANA FUSS, ESSENTIALLY SPEAKING: FEMINISM, NATURE AND DIFFERENCE (Routledge1989) 1960). also do not intend to make an argument for an ethnic-based examination of group rights.Under an ethnicity-based model, the relative success of groups is explained by culture, rather than thesystemic racial doling out of benefits or detriments. See Ian F. Haney L6pez, ANation of Minorities :Race Ethnicity, and ReactionaryColorblindness, 59 STAN L. REV. 985, 985 2007).

31. ROYAL F. MORALES, MAKIBAKA 2: THE PILIPINO AMERICAN STRUGGLE 35 2d ed., CrownPrinters 1998) (1974). Sakadas were the first among Pilipinos, outside of the Philippines, to experienceeconomic oppression, superimposed poverty, overt racial bigotry, labor exploitation, social rejection,

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extensively to fill the demand left when Japanese and Chinese labor was limitedby various Exclusion Acts.3 Much like the groups before them, they werepushed by poverty from their home country and were lured to the United Statesby recruiters promising prosperity and wealth.33 In reality, Pilipinos, despitetheir status as U.S. nationals were subjected to harsh and exploitative workingconditions: long work days, scant pay, racial hostility, exploitation, backbreakingwork, and inhumane housing. 34Despite these similarities, facets of the Pilipino American identity differstarkly from other API groups. Pilipinos did not pose the same economic ormilitary threat that seemed to motivate the split in conceptions of identity thatAsian Americans experienced generally. In fact, Pilipinos allied with the UnitedStates during World War II. Additionally, Pilipinos did not pose much of aneconomic threat. A notable lack of Filipino merchants in America [existed][partly because] Filipinos did not bring a tradition of mercantile enterprise, orinstitutions such as the credit rotating system. 35 Many incoming Pilipinos camefrom a U.S. territory as U.S. nationals and viewed themselves as sojourners.Thus, this generation of Pilipinos was less likely than Chinese and Japaneseimmigrants to bring families and institutions. .establish enterprises, and formcommunities replicating their homelands. 36Moreover, Pilipinos had already undergone significant westernization underSpanish rule followed by U.S. rule. Under Spanish rule, the Catholic Church wasestablished and shifted Pilipino viewpoints towards a more Europeanperspective.37 Subsequently under U.S. rule, many Pilipinos were educated inAmerican schools, where English was the primary language. 3 The modelminority and yellow peril frameworks, as applied to Pilipinos, are complicated bythe westernization of Pilipinos because the underlying assumptions of APIs donot completely and necessarily apply to Pilipinos as a group.Where identity oscillates between U.S. national and Other, between modelminority and underrepresented student group, or between qualified professionaland heavily accented foreigner, subordination is carried out, justified, andnormalized in one fell swoop. Through these dualities, one facet of Pilipinoidentity has been used to subordinate the group while another facet is later usedto justify this subordination. For example, in the reparations context, the statusof Pilipinos as U.S. nationals was strategically used to recruit Pilipinos to fight ineducational neglect, political disenfranchisement, societal denials civil wrongs[, and] emptypromises. FRED CORDOVA, FILIPINOS: FORGOTTEN ASIAN AMERICANS 30 (1983). A distinction existsbetween those Pilipinos in Hawaii and those in California. Those in Hawaii did not have to interact witha racist white working class. Instead, Pilipinos were pit against Japanese laborers in order to quell laboruprisings. On the mainland, Pilipino laborers became the easy targets of disgruntled white laborers. SeeTAKAKI, supranote 2, at 315

32 See MORALES supra note 31, at 40.33 See id34. TAKAKI, supranote 2, at 317-20.35. Id at 336.36. Id at 337.37. Id at 341.38. Id

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World War II to fulfill their duties as a colony of the United States, but theirposition as the Other was used to justify the denial of rightfully earned andpromised benefits.WAR REPARATIONS

ackgroundand HistoryIn the aftermath of the Spanish American War, Spain ceded the Philippines,and the United States subsequently colonized the Philippines in 1898.39 At this

time, Pilipinos were classified as U.S. nationals, a status that is neither alien norcitizen.40 In 1934, the United States Congress passed the Tydings-McDuffie Act,which set a 10-year transitional period toward eventual Philippineindependence. 4 More critically, the Tydings-McDuffie Act also gave the UnitedStates the right to call all military forces organized by the government in thePhilippines to serve the U.S. Armed Forces.42This provision later proved to be instrumental during World War H. Afteran escalation of Japanese aggression, President Roosevelt issued a Military Orderin 1941, which eventually funded the mobilization and training of the PhilippineArmy.43 About 470,000 Pilipinos answered General MacArthur's call forvolunteers as the Old Philippine Scouts, the Commonwealth Army of thePhilippines, Recognized Guerilla Forces, and New Philippine Scouts to defendthe U.S., under the promise that their service would entitle them to Veterans'Administration (VA) benefits. These illusory benefits were supposed to includevocational rehabilitation, compensation for disabilities incurred while on duty,VA medical care and life insurance, and burial and death benefits.45 However,no such benefits were issued for their service.The Pilipino veterans most famously fought alongside U.S. soldiers in thebattle of Bataan. During the battle, 70,000 Pilipino and American prisoners ofwar marched 65 miles to Bataan, and the remaining soldiers were subjected totorture.46 Even after the U.S. troops withdrew from the Philippines, PhilippineGuerillas fought against the remaining Japanese occupation, paving the way for

39. Directly following this event, the First Philippine Republic protested the annexation o theislands to the United States, commencing the Philippine- American War, which ended in 1902 andcemented U.S. control of the Philippines.

40. ANCHETA supr note 28, at 841. SIDATH VIRANGA PANANGALA, CHRISTINE SCOTT CAROL D. DAVIS, DOMESTIC SOC.

POLICY Div., CONG. RES. SERV. REP., OVERVIEW OF FILIPINO VETERANS' BENEFITS 1 2009).Regarding Pilipino immigration into the U.S., the quota became severely limited, allowing only 50immigrants from the Philippines entrance into the United States.42. Tydings-McDuffie Act, Pub. L. No. 73-127, 2(a)(12), 48 Stat. 456 457 (1934).43. Michael A. Cabotaje, Comment, Equity Denied:Historicaland Legal Analysis in Support of theExtension of U S Veterans Benefits to FilipinoWorld War II Veterans 6 ASIAN L.J 67, 74-75 (1999).44. Paul Watson, Philippine Veterans Line Up for Long-Awaited U S War Benefits Los ANGELES

TIMES Mar. 7, 2009, available at http://articles.latimes.com/2009/mar/07/wo rld/fg-philippines-veterans7.

45. Cabotaje, supra note 43, at 69.46. Id. at 75.

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142 UCLA ASIAN PACIFIC AMERICAN LAW JOURNAL [Vol. 15:135

American reentry into the Philippines. 47 This move was integral in securing avictory for the U.S., as the Philippines served as a Pacific base of operations fromwhich the U.S. lodged its final attacks on Japan.48 Despite their invaluableservice to the U.S., the Rescission Acts of 1946 stripped all 49 but the OldPhilippine Scouts of their VA benefits.50 In fact, the Pilipino veterans were theonly foreign U.S. military veterans from the 66 countries allied with the U.S. tonot receive VA benefits.51Over the years, Congress has expanded some benefits to the veterans. Thiswas mostly the result of immense struggle and advocacy by the veteransthemselves, and other organizations such as Justice for Filipino AmericanVeterans (JFAV), American Coalition for Filipino Veterans, Inc. and variousother community groups.52 In February 2009, President Obama signed into lawthe Filipino Veterans Equity Compensation Fund as part of his stimuluspackage. 53 The American Recovery and Reinvestment Act of 2009 authorized aone-time payment under the Compensation Fund of $15,000 for U.S. citizens and$9,000 for non- U.S. citizens.5 4 While much of the Pilipino community lauded

47. See id. at 72.48 See id49. Some accounts have estimated that 250,000 Pilipino solders were denied benefits. See Oliver

Teves, FilipinoWWII Veterans Seek U.S. Benefits THE DAILY HERALD, Nov. 23, 2008.50. See 38 U.S.C. 107(a), (b) (West 2009).51. Satoshi Nakano, Nation Nationalism and Citizenship in the Filipino World War II Veterans

EquityMovement 1954-1991 32 HITOTSUBASHI J.SOC. STUD. 33, 37 (2000). The first of the benefits tobe called into question was the right to the conferral of citizenship. Since the Rescission Act of 1946 leftopen the question of its effect under immigration policy, a number of suits were brought challenging theapplicability of the Rescission Act to Pilipino Veteran s rights to citizenship, with differing outcomes.Id. at 37-41. Finally, in Immigrationand NaturalizationServ. v Pangilinan unanimous court held thatCongress limited the court s scope to grant citizenship to the challenging veterans, foreclosing any futureopportunities for the veterans to litigate the issue of their citizenship eligibility. Immigration andNaturalization Serv. v. Pangilinan, 486 U.S. 875, 887 (1988). The veterans had no statutory rights tocitizenship under the 1940 Act. Id. Congress responded by passing the 1990 Immigration Act, whichincluded provisions allowing Filipino veterans special naturalization. See Nakano supra at 42 .

52. This has included the authorization of certain and limited health care benefits, educationassistance to the children of Commonwealth Army veterans and New Philippine Scouts, and funeral andburial benefits for the Commonwealth Army veterans. Note that the granting of benefits has never beenapplied across the board to all groups of Filipino WWII veterans. PANANGALA, ScoTT DAVIS supranote 41, at 10-15. Compare these advances to what the veterans want: [o]fficial recognition of theirhonorable U.S. military service during World War II and the eligibility to receive full veterans benefitsfrom the U.S. Department of Veterans Affairs such as health care at VA hospitals, outpatient clinics andnursing homes in the U.S. including a clinic in Manila and non-service disability pension (as a minimum:$300 monthly in the Philippines). $300 is average monthly difference between what a low-income U.S.veteran receives in VA pension ($911 mo.) compared to a U.S. citizen Pilipino veteran who relies onfederal Supplemental Security Income (SSI of $623) (emphasis omitted). American Coalition forFilipino Veterans, Inc., Fact Sheet available at http://usfilvets.tripod.com/id8.html (last visited Apr. 3,2010).

53. Press Release, Justice for Filipino American Veterans, On the 63rd Anniversary of theRescission Act of 1946, Fil-Ams Demand Full Recognition and Genuine Equity (Feb. 20, 2009).

54. PANANGALA, SCOTT DAVIS, supra note 41, at 16. The report also states that [t]he one-timepayment is considered a settlement for all future claims for benefits based on service in theCommonwealth Army of the Philippines, Recognized Guerilla Forces, and New Philippine Scouts. Theexception is that a veteran may receive benefits that the veteran would have been eligible for based on thelaws in effect on the day before the enactment (September 17, 2009). Id.


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this development as a victory, the veterans waited over 60 years to see PresidentRoosevelt's promises of VA benefits to come to fruition. Moreover, the fact thatthe bill s supporters had to use an economic emergency to overcome decades ofopposition in Congress adds to the sense of betrayal. 5 5 As a result, many ofthe veterans and their advocacy groups vowed to continue their fight for fullrecognition, equity, and lifetime pension, to pass a bill giving priorityimmigration visas to the children of veterans, and to allow recent widows of theveterans to receive the benefits. 6 Critique of ReparationsDoctrine

The plight of the Pilipino veterans sheds light on the ineffectiveness ofreparations as a race-conscious remedy in addressing past wrongs and spurringsocietal change. In Eric Yamamoto's piece linking the Japanese Americanreparations movement to the African American slavery reparations movement, herecognizes the aspirational aspect of reparations as transformative with thepotential to help change material conditions of group life and send politicalmessages about societal commitment to principles of equality. 57 However, asapplied to the Pilipino veterans, reparations can be problematized on two levels.First, since the veterans' claims to VA benefits in Quiban v VeteransAdministration were dismissed under a rationale rooted in U.S. investment in itsinsular possessions to build the American Empire, the lump sum awarded to theveterans did nothing to overturn or address the view o Pilipinos as second-classveterans. Secondly, examining the rhetoric surrounding the movement to grantPilipino veterans' reparations reveals the uncritical acceptance of model minorityclaims. For example, to further the veterans' claims, allies invoked the ideas ofPilipino veterans as model minorities and super patriots with unwavering loyaltyand bravery. This uncritical acceptance of model minority claims forecloses theavailability of reparations as a remedy to other groups who are unable toestablish the same claims. As a result, reparations for Pilipino veterans failed tomeet its aspirational goal of transformative change and instead furtheredsubordination of Pilipino veterans as second-class veterans.

The ImperialistRegime and Its Effects on Pilipino VeteransAfter the Philippines was ceded by Spain to the United States, the FirstPhilippine Republic, led by Emilio Aguinaldo, protested the annexation of the

Philippines to the U.S. by declaring war against America. 59 Following the U.S.takeover of Puerto Rico, the Philippines, Guam and Cuba, under the Treaty of

55. Watson, supranote 44.56. Benefits like burial expenses are emotionally important to veterans in that they provide an

honorable end to their lives. See Nakano supranote 51, at 34 .57. Eric K. Yamamoto, Racial Reparations: Japanese American Redress and African American

Claims 40 B.C. L. REV. 477, 494 1998).58. 928 F.2d 1154 D.C. Cir. 1991).59 See Cabotaje supra note 43, at 72.



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Paris, courts faced the question of whether the Constitution and its protectionsapplied to territories belonging to the U.S.60 The seminal case, Downes v.Bidwell, held that the Constitution did not apply to U.S. territories.61 Instead, thecase established precedent through a line of cases known as the Insular Cases- cases resolved in 1901 involving the territorial possessions acquired after theSpanish American War. 62 The Insular Cases stood for the territorialacquisition but only partial political incorporation of these island nations. 63Thus, the Court granted the U.S. approval to have legal, military and politicalcontrol over the land without any obligation to grant rights to the peopleinhabiting these lands. This extension of national authority over aliencommunities ... implies that a country does not have to own the territory of analien community in order to exercise imperial authority over it.

The Insular Cases were integral in cementing U.S. imperial interests withoutrequiring the protection of the people of the exploited lands. Additionally, theyformed the basis for the rationale used to justify denying Pilipino veterans theirpromised benefits. Pedro Malavet, in his analysis of Downes v. Bidwell, arguesthat the Insular Cases also created a second-class citizenship by differentiatingbetween American citizenship and the diluted citizenship of peoples inhabitingthe insular territories. 65Pilipino veterans have been treated as second-class veterans, and theirdifferential treatment vis-A-vis other veterans who fought as foreign alliessupports this characterization. In 1946, for example, the U.S. Congress extendedVA benefits to some groups of non-citizen discharged members of allied forcesduring World War II. The Philippines was considered one of the 47 alliedcountries, but it failed to meet one of the requirements for benefits. Thus,Pilipino veterans and others were denied benefits under 38 U.S.C. 109(a), aU.S. Code section regarding the distribution of veterans' benefits.66 In 1976,however, Congress passed a bill granting Polish and Czechoslovakian armedforced benefits after 10 years of citizenship, despite failure to comply with thesame requirements of 109 a . 67 This denial of benefits is especially egregious,given the Pilipino veterans' status as U.S. nationals during their service to theUnited States. 68

Pilipino veterans have filed cases challenging the constitutionality of theRescission Acts because they distinguished Pilipino soldiers from other U.S.

60. Balzac v. Porto Rico, 258 U.S. 298 (1922).61. Downes v Bidwell, 182 U.S. 244 (1901).62. Pedro A. Malavet, The ConstitutionFollows the Flag.. but Doesn t Quite Catch Up with It :The Story of Downes v. Bidwell, in RACE LAW STORIES 111, 125 (Rachel F. Moran Devon WayneCarbado eds., 2008).63. Id. at 114.64. Id.65. Id. at 143-144.66. Cabotaje, supra note 43, at 83.67. Id. at 83-84.68. Id. at 84 85.

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service members based on nationality. 69 Since the veterans were discriminatedagainst on the basis of their nationality, the Rescission Acts should have beensubjected to heightened or strict scrutiny. 7 Instead, courts have applied thelower rational basis standard, based on precedent set in the Insular Cases, and

upheld the constitutionality of the Acts under this deferential level of review.An example of this rationale may be found in Quiban v Veterans72Administration In Quiban two Pilipino veterans and the surviving spouse of aPilipino veteran challenged their exclusion from federal VA benefits as violative

of equal protection under the Fifth Amendment.73 The Court applied the moredeferential rational basis standard under precedent that denied Aid to Familieswith Dependent Children ( AFDC ) payments to persons residing in PuertoRico.74 In his article, Michael Cabotaje critiques the Court's rationale in basingQuiban on the Insular Cases, arguing that today's environment is vastly differentthan the one that motivated the Court's logic and decision in the Insular Cases. 75Specifically, Cabotaje contends that racist sentiment at the time clouded thedebates surrounding such issues, suggesting that given the opportunity today, theCourt would not have ruled in the same way.76 This argument assumes thatcontemporary Courts would not have come down the same way because itignores the contemporary effects of characterizing Pilipinos as Other. Thischaracterization works to preserve benefits for those considered Americancitizens.Another motivating factor was Congress' fear that the promisedcompensatory scheme would be prohibitively costly to the United States.77 Iargue that, especially in the current economic recession, Congress would likelyprioritize other issues over issuing benefits to Pilipino veterans. Over 60 yearshave elapsed since the veterans' benefits were rescinded, so the need to act

69. Id. at 81, 85.70. Id. at 85-87.71. Id at 86; see also Harris v. Rosario, 446 U.S. 651 651-52 (1980) (holding that Congress isauthorized under the Territory Clause of the Constitution to treat Puerto Rico differently from the States

so long as there is a rational basis for its actions).72. Quiban v. Veterans Admin., 928 F.2d 1154 1163 (D.C. Cir. 1991).73. Id. at 1155-56. The Fourteenth Amendment governs state action in violation of the equalprotection clause. The Supreme Court held that the same protection against federal action is implied inthe Fifth Amendment's due process clause. Weingerger v. Wisenfeld, 420 U.S. 636 (1975).74. Quiban 928 F. 2d at 1159.75. Cabotaje, supranote 43, at 92.76. Id at 93 ( In the Senate, Senator Bate of Tennessee characterized the Filipino people as.physically weaklings of low stature, with black skin, closely curling hair, flat noses, thick lips, and large,clumsy feet.' With regard to the Filipino people, he cautioned: 'Let us beware of those mongrels in theEast, with breath of pestilence and touch of leprosy. Do not let them become a part of us with theiridolatry, polygamous creeds, and harem habits. ').77. In response to a request by the Appropriations Committee at the time considering the firstRescission Act, General Bradley indicated that the total cost of paying veterans' benefits to members ofthe Philippine Commonwealth Army and their dependents, under then existing veterans' laws, wouldamount in the long run (75 years) to about 3 billion. It seems clear from Senator Hayden s statementsthat the passage of the first Rescission Act was meant to balance competing financial interests.

PANANGALA, SCOTT & DAVIS supra note 41, at 8-9.



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immediately is pressing. Decades of economic strife and economic bounty havecome and gone, yet the Pilipino veterans have yet to receive justice. Of the250,000 Pilipino World War II veterans, only about 18,000 survive. 78 For thosewho have lived this long, most of the veterans are in their late eighties ornineties, and the vast majority of them live below the poverty line.79The prioritization of other matters over veterans' benefits was likely tooccur as evidenced by the fact that there was public pushback regarding theinclusion of the Filipino Veterans Equity Compensation Fund into the stimuluspackage, even though the monies had been previously earmarked.o In fact,ranking Republican on the House Veterans' Affairs Committee, IndianaRepresentative Steve Buyer, opposed the benefit and questioned the motives ofthe bill endorsers, stating, I hope Americans will stop to ponder the distortedvalues of those who crafted this bill. Additionally, legislators were aware of thepushback against granting the Pilipino veterans' benefits. Chairman of the

committee, Representative Bob Filner, stated, The only way we could get it topass was to put it in a must-pass bill. 8 As stated above, Pilipinos were U.S. nationals, somewhere in between

aliens and citizens. When their service was needed, President Rooseveltemphasized the characterization of Pilipinos as U.S. nationals by stating thatPilipino veterans were certainly veterans of the U.S. forces. However, theRescission Act denied these benefits under the rationale that providing thebenefits would bankrupt the U.S. 82 This toggling of different justifications toserve different ends occurs seamlessly, and the inherent contradictions layunchallenged.Reparationsas an Unworkable RemedyAs discussed earlier, Yamamoto critiques the Japanese American redressmovement and examines its effects on current reparations efforts.83 He claimsthat framing the Japanese American claim in terms of the 'super patriot/modelminority ' models allowed the government to award reparations to a relatively

small number of highly deserving Japanese Americans ... without opening thefloodgates to reparations for other racial groups. 8 In the same vein, thecharacterizations of the veterans' service only reify the rewarding ofexceptionalist aims.

78. Bernie Becker, Filipino Veterans Benefit in Stimulus Bill, N.Y. TIMES, Feb. 17, 2009, availableat http://www.nytimes.com/2009/02/17/us/politics/17vets.html.

79. Josh Levs, U to Pay Forgotten Filipino World War II Veterans CNN, Feb. 23 2009availableat http://www.cnn.com/2009/US/02/23/forgotten.veterans/index.html.

80. Becker, supra note 78. Additionally, Jack Cafferty pointed to the fund s inclusion in a proposedstimulus package as an example of fiscal irresponsibility. Jack Cafferty, Commentary: Stimulus Bill aSorry Spectacle, CNN, Feb. 17, 2009, available athttp://www.cnn.com/2009/POLITICS/02/17/cafferty.stimulus/index.html.81. Becker, supra note 78.

82. ee generally PANANGALA ScOTT &DAVIS, supra note 41.83. Yamamoto, supranote 57, at 479-82.84. Charles P. Henry, The Politicsof Racial Reparations,34 J.BLACK STUD. 131, 147 2003).



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In the struggle to obtain benefits and equity for the veterans, argumentsframing Pilipinos as a model minority were invoked to rationalize that theveterans deserved such a remedy. For example, in expressing his support forPilipino veterans, the Honorable Ed Case implored Congress to keep in mind thatthe veterans were indispensible. .to Allied success. 85 In turn, granting thebenefits as reparations for their racist treatment at the hands of the U.S.government becomes a failing argument. Instead, justifications for reparationsmirror meritocracy arguments, such that groups who have worked hard andcontributed to this country are more deserving of the remedies. Secondly,recognition was conferred on the veterans over 60 years after their service inWorld War II As a result, the majority of those veterans did not live to see theirmilitary service recognized by the U.S.The exceptionalist claims for benefits ignores the conception of Pilipinos as Other and helps to justify the intent behind the passing of the Rescission Acts.As stated earlier, Congress acquiesced to financial interests in their decision tolimit benefits to Pilipino veterans. Cost, however, was not a prohibiting issuewhen it came to the doling out of benefits to U.S. citizen veterans and even somenon-U.S. citizen veterans. 86 Because they are considered Others , Pilipinos arenot entitled to the same level of benefits. This is especially egregiousconsidering the fact that the Philippines, a territory of the U.S. at the time, wasthe only country whose foreign allied veterans did not receive such benefits.

EMPLOYMENT DISCRIMINATIONThe Intent Regime 87 andAccent Discrimination

Under Title VII of the Civil Rights Act of 1964, Griggs v uke Power88established a disparate impact theory of discrimination that measured equality ofresults between racial minorities and whites. Under Griggs facially neutralemployment practices that produced a discriminatory effect were unlawful,unless the employer was able to prove that the policy or practice was job-relatedor a business necessity.89 The reach of Griggs was severely limited inWashington v Davis.90 The case explicitly foreclosed the applicability ofdisparate impact to establish claims under the equal protection clause. There, theCourt held that the protections of the Fourteenth Amendment would not betriggered unless the plaintiff could show discriminatory intent.9 Since racially

85. 150 CONG REC. E447-03 (2004) (speech o Hon. Ed Case o Hawaii), at E448.86. For example, benefits later became available to other non-citizen veterans. Cabotaje, supra note

43, at 83.87. Employment discrimination cases under Title VII may be brought under disparate treatment ordisparate impact theories. Disparate treatment cases require intentionality and employ the McDonnellDouglas framework in order to tease out intentionality. Under disparate impact theory, intentionality is

not required. See generallyGriggs v. Duke Power Co., 401 U.S. 424 1971).88. See id.89 See i90. Washington v. Davis, 426 U.S. 229 1976).9 1 Id.



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motivated discrimination often now occurs on a less cognizable level, 92 theburdens heaved onto plaintiffs have become overly restrictive. It is for thisreason that disparate impact claims under Title VII had been viewed as a lastbastion for plaintiffs to seek relief. The disparate impact doctrine, however, hasexperienced a shift towards evidence of intent. The Supreme Court's 2009decision in Ricci v DeStefano shifted disparate impact analysis even further inthe direction of disparate treatment by requiring strong evidence in basis ofdisparate impact.93The focus on intent to discriminate is particularly apparent in accentdiscrimination cases because native speakers will often attach 'culturalmeanings to an accent which derive from the stereotypes and prejudices that thelistener holds toward the race or ethnic group associated with that accent. ' 94Outsider identity is often the underlying trigger in accent discrimination cases.Unlike race, which is viewed by society as an immutable trait, 95 foreignness isseen as a choice because immigrants always have the option of returning to theirhome countries if they disagree with their treatment here.96 Somewhere betweenimmutability and choice lies the analysis of accent. On the one hand, speech isseen as a performative characteristic that is malleable. On the other hand, when asecond language is acquired later in life, accent becomes a de facto immutabletrait , and thus should be protected. 97 Formally, Title V11 98 prohibitsdiscrimination on the basis of national origin, but the text does not explicitly referto accent discrimination. The Equal Employment Opportunity Commission( EEOC ), the agency charged with Title VII enforcement, determined thatdiscrimination based on foreign accent may constitute national origindiscrimination. Despite the EEOC's determination, case law tells a different

92 See generally Jerry Kang, The Trojan Horses ofRace, 118 HARV L. REV. 1489 (2005).93. Ricci v. DeStefano, 129 S Ct. 2658 (2009).94. Gerrit B Smith, Note, I Want to Speak Like a Native Speaker: The Case for Lowering the

Plaintiff s Burden of Proof in Title VII Accent DiscriminationCases, 66 OHIO ST. L.J. 231, 260 (2005)(quoting Beatrice Bich-Dao Nguyen, Comment, Accent Discriminationand The Test of Spoken English: Call For an Objective Assessment of The Comprehensibilityof Nonnative Speakers, 81 CAL. L. REV.1325, 1335 n.57 (1993)).

95. 1qualify this statement in order to make the point that the proposition that race is an immutabletrait is a problematic one, in the sense that race is a social construct that has changed over time.Additionally, many individuals are able to pass in and out of their race, which undermines thestatement that it is fixed and immutable.96. Immigration rhetoric regarding one's choice to come into the country cannot be properly

analyzed unless the concept of meaningful choice is used. This concept understands that immigrants'decisions to come to the United States have been shaped by U.S. foreign policy, and not in a vacuum.See generally HIROSHI MOTOMURA, AMERICANS INWAITING: THE LOST STORY OF IMMIGRATION ANDCITIZENSHIP IN THE UNITED STATES 2006).

97. Smith, supra note 94, at 236. Id. at 250-51 ( Adults have a more difficult time acquiring thesecond language and speaking it accent-free because the adult will 'relate to his native sound system allthe sounds he hears. ') (quoting FRED M. CHREIST, FOREIGN ACCENT 18 (1964))).

98. Title VII, in its recognition of disparate impact claims, does not necessarily requireintentionality. However, courts have been moving away from the disparate impact regime, andemployment discrimination has trended towards an intentionality requirement. At the very least, post-Wards Cove, proving a prima facie case of disparate impact has become much more burdensome onplaintiffs.

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20I XMNN AECNSIU EEITO 4story.In disparate treatment cases, employers may invoke an exception to theplaintiffs prima facie case of discrimination under Title VII by establishing thata discriminatory practice on the basis of religion, sex or national origin is a bonafide occupational qualification BFOQ). 99 There is no BFOQ on the basis ofrace.' While the law dictates that customer preference is not an availabledefense for the discriminating employer, accent discrimination cases are anexception to this rule.' In accent discrimination cases, employers often cite tocustomer or co-worker preferences as a partial defense. 102

Such judgments reinforce the exclusion of non-native speakers from fullparticipation in the workplace. This is complicated by the notion that listenersoften place hierarchies on accents, and are more willing to attempt to understandcertain accents over others.' 3 These judgments imply that the hierarchy ofaccent is aligned with race, and not just national origin. The perception ofdifferent accents creates and enforces social boundaries, and such boundariesfurther isolate accented speakers. Thus, accent operates as a marker ofOtherness. Moreover, acceptance of customer and co-worker preference inaccent discrimination cases relegates those who speak with particular accents to asecond-class citizenship and reifies the conception of certain groups as perpetualforeigners. This acceptance of customer and co-worker preference results indecreased protection under Title VII.

In Fragante v. City and County of Honolulu, 0 plaintiff Manuel Fragantewas a retired officer of the Philippine Navy. During his military career, Fraganteattended and excelled in U.S. military schools.'5 During his service in the U.S.military, Fragante's superiors rated his English language ability as excellent. 106Fragante attributed his masterful command of the English language to hiseducation in the Philippines, which was conducted almost entirely in English. 'After immigrating to Hawaii from the Philippines, Fragante applied to work for

99. Section 703(e) of the Civil Rights Act of 1964 states that [lt shall not be an unlawfulemployment practice for an employer to hire and employ employees .. on the basis of his religion, sex,or national origin in those certain instances where religion, sex, or national origin is a bona fideoccupational qualification reasonably necessary to the normal operation of that particular business orenterprise. Civil Rights Act of 1964, Pub. L. No. 88-352, 703(e), 78 Stat. 241, 256 2006).

100 Id.101. Smith, supra note 94, at 235-36. Smith also discusses the use of customer preference arguments

in sex discrimination cases such as Diaz v PanAmerican Airways, 442 F.2d 385, 389 (5th Cir. 1971) ( [C]ustomer preference may be taken into account only when it is based on the company's inability toperform the primary function of service it offers. ).

102. See e.g. Fragante v. City of Honolulu, 888 F.2d 591, 598 (9th Cir. 1989); Ang v. ProctorGamble Co., 932 F.2d 540 (6th Cir. 1991); Yu v. U.S. Postal Serv., Appeal No. 01956772, 1997EEOPUB LEXIS 3884, at *3-*4 (Oct. 10, 1997); Poskocil v. Roanoke County Sch. Div., No. CIV. A.98-0216-R, 1999 WL 15938, at *4 W.D. Va. Jan. 11 1999).103. In Fragante . City of Honolulu, the court noted that listeners stop listening to Filipino accents,

resulting in a breakdown of communication. 699 F. Supp. 1429, 1431-32 D. Haw. 1987).104. Id. at 1431.105. Smith, supra note 94, at 246.106. Id.107 See Fragante, 99 F. Supp. at 1429.

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the City of Honolulu's Division of Motor Vehicles and Licensing ( DMV ). Thejob duties included filing, processing mail, cashiering, orally providing routineinformation to the 'sometimes contentious' public over the telephone and in-person, and obtaining supplies. 8 Though Fragante scored the highest out of721 test takers on a civil service exam and was ranked first on a list of 15 eligibleapplicants, he was denied a position after an in-person interview.The City argued that his accent would be unacceptably difficult for the sometimes contentious customers of the DMV to comprehend over thephone. o The court assume[d] without deciding that Fragante was able toestablish a prima acie case of discrimination. However, the court did not holdthe DMV liable. The court assumed that Fragante would be unable to effectivelycommunicate with customers, which supported the DMV's defense that clear andeffective communication was necessary for job performance. ' The courtdeferred to the great number of disgruntled members of the public. .who do notwant to hear what the clerk may have to explain concerning their applications oran answer to their questions. ll 2

Fragante reflects the acceptance of accent hierarchy. Anglo accents arepreferred, and accents like the Pilipino accent denote incompetence orintellectual inferiority. By allowing employers to invoke customer preference asa defense in accent discrimination cases, especially when other employmentdiscrimination claims would not allow the same defense, the court implied thatPilipino-accented plaintiffs are less deserving of protection under Title VII.These links are highly problematic because they also conflate conceptions ofOtherness with assumptions of incompetence. Because accents also overlap withrace and racial perceptions, employers are able to bring up the defense thataccented employees are not as qualified for jobs as native speakers. In this sense,employment discrimination law fails to meet its aspirational goals of eradicatingdiscrimination from U.S. workplaces.Because many Pilipino immigrants, like Fragante, have been educated inEnglish in the Philippines, the failure to protect against accent discrimination forotherwise qualified individuals, is particularly harmful. In this dynamic, themodel minority identity clashes against perceptions of Pilipinos as intellectuallyinferior or incompetent. However, this framing becomes problematic because itpits certain groups of non-native speakers (usually different immigrant groups)against others, and only serves to reinforce the hierarchy placed on incoming

108 Fragante,888 F.2d at 593.109. Fragante, 99 F. Supp. at 1430-31.110. Id. at 593 94. Notwithstanding the fact that all members of this country have an accent, this is aparticularly curious assumption considering the fact that, according to the 2000 census, Hawaii's

population is 39.9 Asian, with 26.6 of the population speaking a language other than English athome, compared to the U.S. overall at 4.4 and 17.9 , respectively. See U.S. Census Bureau, HawaiiQuickFacts from the US Census Bureau, Feb. 23, 2010,http://quickfacts.census.gov/qfd/states/15000.html.

11 Fragante,888 F.2d at 595-96. Note, however, that the job description included many tasks thatdid not require communicating with customers, such as filing, ordering supplies, and processing mail.

112. Id. at 597.



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groups with less-developed English skills. They are viewed as less qualified andless intelligent. The accent discrimination cases failed to change the structuraldynamics that dictate which types of accents are preferred by employers. Rather,these cases reinforce a preference for Anglo accents, or speech approaching thisstandard. It is no coincidence that the accent hierarchy tracks closely with theracial hierarchy.Courts resistance against protecting accents is interesting since accentdiscrimination claims were carved out from the protected group, nationalorigin.113 Accents in and of themselves are not a protected characteristic, but theuse of accents as a proxy for national origin discrimination is. Under this viewthen, groups for whom access to education in English is limited or nonexistent,should be protected as well. Therefore, litigants such as Pilipinos, who are morelikely to speak English as a result of the U.S. colonization, must be mindful thattheir claims do not reinforce discrimination against other groups that were notexposed to English before immigration to the United States. If we are to takeseriously the charge that groups should be protected on the basis of nationalorigin, we must also recognize that the protection of groups against accentdiscrimination is an important step in this direction, but it is a step that can alsobe critiqued along the lines of the structures it reinforces.

IDENTITY, POLITICS, AND THE W RDS COVE CASEBackground andHistory

Historically, Alaskan canneries have depended on the cheap labor ofmigrant workers as far back as 1878 when the Alaskan canning industry wasfirst pioneered by Chinese laborers. When Asian immigrants began to work atthe canneries, their labor was especially valued because unlike Native Alaskanworkers, these populations could not leave the canneries for home if the workbecame unbearable. This work was necessary for the livelihood of manyPilipinos, as agricultural work was generally unavailable during the canningseason. Pilipinos remained a large force in cannery work for about 60 canningseasons. As of 1930 there were over 4,000 Pilipino cannery workers, and thenumbers increased tremendously before World War II up to as many as 9 000workers.

By the 1930s, the various immigrant groups (Chinese, Japanese andPilipinos) began to organize into unions. However, this process was haltedabruptly as a result of the Japanese internment.1 5 Rather than join as a unitedfront, ethnic-specific unions emerged. Because of their large numbers, Pilipinounions began to grow in membership and in bargaining power, which wasparticularly important considering the work conditions they endured. The

113. Title VII protects against discrimination based on race, sex, ethnicity, religion, and nationalorigin. Notably, it does not protect sexual orientation.

114. CORDOVA, supr note 28 at 57115 Id

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canneries operated racially segregated work and housing accommodations,assigned Pilipinos to the lowest and most hazardous job classifications, and paidthem the lowest wages. White employees, on the other hand, were hired formanagement roles and held other supervisory and technical positions.1 16 Despitethe increase in ethnic group unionization, Alaskan cannery practices resistedchange.The Wards Cove Case

In Wards Cove Packing Co. v. Atonio, the plaintiffs were Pilipino andNative Alaskan salmon cannery workers who alleged that the cannery's hiringpractices had a discriminatory impact. The plaintiffs referenced data showingthat the non-skilled cannery positions were filled by predominantly Alaskanand Pilipino workers, who worked the assembly line, while the skilled non-cannery jobs were mostly filled by whites, who worked as machinists, engineers,quality control supervisors, cooks, carpenters, and in beach gangs. Thecannery used two separate tracks in their recruitment and hiring: cannery jobswere filled through the local union, whose membership consisted mainly ofPilipinos, and from the villages near the canneries. Non-cannery jobs were filledthough the company's offices in Washington and Oregon. 8 The two-tracksystem, coupled with nepotism, a rehire preference, a lack of objective hiringcriteria [and], a practice of not promoting from within ensured themaintenance of racially segregated positions. 119

A split Court 5-4) held that statistical evidence showing that nonwhiteswere overrepresented in the lower paid jobs and underrepresented in the higherpaying jobs was not sufficient by itself to establish a disparate impact claim. 2Instead, the Court required a comparison of qualified workers and actualworkers. This requirement makes little sense when applied to the facts of WardsCove since positions included in the skilled jobs category required little or noskills, such as the beach gang or quality control positions. Moreover, so longas there are no barriers or practices that deterred qualified nonwhites fromapplying for the jobs, the Court held that the fact that there was racial imbalancewas inconsequential.121

The case nearly overturned the provisions created under Griggs by makingthe evidentiary burden on plaintiffs prohibitively high. Under the standardestablished in Griggs, plaintiffs claiming disparate impact had the originalburden of persuasion to establish a prima facie case by showing adisproportionate impact. The burden then shifted to the employer, who wasrequired to show that the impact was a result of a business necessity. Wards

116. Id at 72117. Wards Cove Packing Co. v. Atonio, 490 U.S. 642 1989).118. Id119. Id at 647 n.3.120. Id. at 650.121. Id. at 653.

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FFIRM TIVE CTION

This section analyzes two affirmative action cases brought forth by AsianAmericans. Taken together, these cases show both the pitfalls of uncriticallyapplying colorblind analysis to affirmative action cases and the potential fordifferent communities of color to join together and fight for race-consciousremediation.Affirmative action policies and their justifications under the colorblindregime interact with, support, and bring into focus the deployment of a number offacets of Pilipino identity. The conception of Pilipinos as model minority isused to justify dismantling affirmative action programs. These programs areoverturned partly under the belief that affirmative action programs benefit AsianAmericans much more than they benefit Blacks and Latinos. Under thisreasoning, the understanding that formal racial barriers no longer exist reifiesstereotypes of APIs as hard working and studious. These cultural values are usedto explain away the gap between APIs and Blacks and Latinos. The harm lies inthe idea that these arguments displace the larger racial dynamics at play and failto recognize the influence of strong forces such as structural racism, de factosegregation, and implicit bias. Instead, a more specific analysis of affirmativeaction through the Pilipino American experience highlights the multi-facetednature of the API community, and challenges the perceptions of Pilipinos as a model minority .The ColorblindRegime

In Justice Harlan's famous dissent in Plessy v Ferguson he stated that ourconstitution is color-blind, and neither knows nor tolerates classes amongcitizens. In respect of civil rights, all citizens are equal before the law. 27 Thisdissent laid the groundwork for the colorblind regime. Under the principle ofcolorblindness, courts uncritically apply strict scrutiny analysis any time a racialclassification subjects an individual to unequal treatment, regardless of whichgroups bear the burdens or reap the benefits of the policy or practice in question.Because strict scrutiny is strict in theory, but fatal in fact, policies that seek toremediate racial harms are usually struck down.The colorblind regime has traveled from Plessy that infamous caseupholding separate but equal, to preside over the issue of access to highereducation through the affirmative action cases. By adopting an approach thatdoes not take into account whether a particular classification provides a benefit ora detriment to a subordinated group, the Court is able to avoid the difficulty ofactually solving racial inequality. First, Courts are not required to weighcompeting discrimination claims; this gives the Courts the ability to resolve theclaims before them without requiring a historically contextualized account of thegroups before them. 28 Secondly, Courts do not then have to engage in the

127. Plessy v. Ferguson, 163 U.S. 537 559 1896).128. Gitanjali S Guiterrez, Note, Taking Account of Another Race: Refrarning Asian-American



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difficult process of fashioning particularized remedies to actually correct thespecific harms faced by groups.129 Thus, application of colorblindness principlesto the Constitution ignores the complicated racial dynamics at play in these cases,and often leaves groups seeking recourse with inadequate resolutions.The Ho Litigation

In Critical Race Praxis, Eric Yamamoto discusses the Ho litigation as apoint of departure to investigate an intensifying dissociation of law (as itconceives of justice) from racial justice (as it is experienced by racializedgroups). l3 In this case, Chinese American students brought a class action thatchallenged a 1983 judicial consent decree seeking to desegregate the publicschools in San Francisco by imposing a 40 percent cap on each school for anygiven racial or ethnic group.131 Chinese American students first benefited fromthe cap during its implementation. However, after Chinese American enrollmentinto SFUSD increased during the 1980's, the cap produced an adverse affect onChinese American high school students, who were denied entrance into the mostsought-after schools in the school district.132 In 1999, the case settled, and theresulting settlement order eliminated the mandatory racial compositionrequirement and entered a preliminary injunction prohibiting the San FranciscoUnified School District SFUSD) from assigning students on the basis of race forthe 1999-2000 school year. 133 The school district was able to choose betweentwo race-neutral assignment plans. SFUSD rejected the plan that considered testscores, poverty level, and language ability; and instead adopted a plan that gavepriority to siblings o enrolled children, children living near the school, andchildren in specific zip codes. 134 These provisions only resegregated SanFrancisco public schools. 135The strategy o Chinese American plaintiffs to strike down the 1983 consentdecree exhibits the failures of colorblindness to address interracial dynamics. AsYamamoto describes, the attorneys for the Chinese American students usedrhetoric refined by neoconservative race scholars by advancing argumentsbased on meritocracy and colorblindness. 1 6 Under rationales rooted inmeritocracy, supporters of the Chinese American students argued that thestudents succeeded despite the caps in the consent decree while Black students

Challengesto Race-ConsciousAdmissions in PublicSchools, 86 CORNELL L. REV. 1283, 1296 (2001).129 Id130. Eric K. Yamamoto, Critical Race Praxis: Race Theory and Political Lawyering Practice in

Post-Civil Rights America, 95 MICH. L. REV. 821, 828 1997).131 Id at 821-22.132. Guiterrez, supranote 128, at 1306-07.133 Id. at 1309.134. Nanette Asimow, S F DistrictOKs Race-Neutral School Plan Judge Had Rejected Diversity

Index , SAN FRANCISCO CHRON., Jan. 7, 2000.135. Julian Guthrie, Race Gap to Widen Furtherat Lowell Next Year: Fewer lacks and Latinos,

More Asians and Whites, SAN FRANCISCO EXAMINER, arch 10, 2000 at Al.136. Yamamoto, supra note 130, at 822.

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did not experience the same successes.137Here, one community of color sought to undo the protections of a consentdecree mandating the desegregation of schools for the benefit of anothercommunity of color. A doctrine that allows such results, fails to address theunderlying dynamics of subordinated groups, and strips these groups of anymeaningful avenues to affect change in the realm of access to education. Ratherthan challenging the power differentials between communities of color andwhites, this case pits groups of color against each other, further subordinating onegroup in order for another to advance. By forcing these groups to work againsteach other in the struggle to claim a seemingly finite amount of resources, groupsof color are further marginalized, and the existing power structure remainsundisturbed.

In Negative Action Versus Affirmative Action, William Kidder discussespublic fears that Asian Americans would gain the most as a result of the ban onaffirmative action, which invoke modern day yellow peril tropes.138 Kiddercritiques a study by Espenshade and Chung' 9 that concludes that AsianAmerican applicants would gain the most from dismantling affirmative action,occupying 80 percent of the seats opened up by African American and Latinostudents who would be negatively impacted by the loss of affirmative actionprograms. Kidder distinguishes between negative action, the awarding ofnegative points to APIs, leading to a decreased chance of admission compared towhites with similar credentials,140 and affirmative action, which promotes theadmissions chances of Black, Latino, and American Indian students.14' Heargues that conflating the two ideals leads to the incorrect assumption that APIsare negatively impacted by affirmative action.' 42 Chang and Espenshade's studysuggests that it is in the interest of APIs to do away with affirmative action.The Pilipino American experience undermines this assumption because theyoften have benefited from affirmative action. Census data shows that Pilipinoswho have completed a high school education are less likely to enter highereducation compared to other API groups. For example, while 91.8 percent ofPilipinos have at least a high school education, only 47.7 percent of Pilipinoshave a bachelor's degree or higher. 1 3 This indicates that 44.1 percent ofPilipinos do not advance from high school to college and beyond. Koreans,

137. Id.138. Kidder builds on Jerry Kang s concept of negative action. See generallyJerry Kang, Negative

Action Against Asian Americans: The Internal nstability of Dworkin sDefense of ffirmative ActionHARv. C.R.-C.L. L. REV. 1, 3 1996).

139. Thomas J. Espenshade Chang Y. Chung, The Opportunity Cost of Admission PreferencesatElite Universities,86 Soc Sci. Q. 293, 298 2005).

140. See generally Kang, supra note 138, at 3.141. William C. Kidder, Negative Action Versus ffirmative Action: Asian Pacific Americans Are

Still Caught in the Crossfire, MICH. J. R CE L. 605, 605-06 2006).142. Id at 606.143. 2006-2008 American Community Survey 3-Year Estimates, Selected Population Profile in the

United States, http://factfinder.census.gov/servlet/IPTable. I calculated these figures by subtracting thepercentage of Pilipinos aged 25 and older with high school diplomas only from the percentage ofPilipinos with both high school diplomas and college degrees.

[Vol. 15:13556 UCL SI N P CIFIC MERIC N LAW JOURN L


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Chinese, and South Asians, on the other hand, experience much lower relativerates of failure to obtain a bachelor's degree, at 38.7 percent, 29.6 percent, and21.5 percent, respectively.'44 Though Pilipino Americans are often clumpedtogether with other Asian American groups, they differ in terms of economic andeducational attainment. These characteristics are more significantly masked bythe model minority myth in comparison to other Asian groups. Thus,affirmative action measures could address the deleterious effects of assumingPilipino Americans have the same levels of educational attainment and economicprosperity as East Asian groups generally.Kidder also suggests that negative action may not necessarily be due tothe fact that Black and Latino students are occupying slots that would otherwisebe awarded to API students. Instead, affirmative action may work as a screenthat hides more invidious institutional practices, such as an interest in preservinga majority white population at elite institutions or the use of stereotypes againstAsian American applicants during the admissions process. 145 Again, because ofthe disparities that Pilipinos face in comparison to some Asian American groups,the fact that Pilipino, Pacific Islander, and Southeast Asian students are trailing ineducational attainment supports Kidder's argument that discrimination isoccurring in the admissions process. heBerkeley Litigation

In 1999, civil rights groups such as the NAACP Legal Defense andEducational Fund, Mexican American Legal Defense and Educational Fund, theAsian Pacific American Legal Center, the Lawyers Committee for Civil Rights,and the American Civil Liberties Union joined to represent African American,Latino and Pilipino students in a class action suit against the University ofCalifornia at Berkeley ( Berkeley ).1 46 The students claimed that Berkeley's1998 admissions program created an adverse discriminatory impact on thoseunderrepresented groups. Specifically, the plaintiffs contended that Berkeley'srace-neutral admissions process (relying extensively on factors such as thenumber of Advanced Placement (AP) courses taken and differences in SATscores) diminished or severely limited the likelihood of admission for thesegroups.147 They argued that these practices violated Title VI of the Civil RightsAct of 1964 by mirroring disparate impact charges under Title VII.148 In fact, in1998 over 750 African American, Latino and Pilipino American applicants withgrade point averages of 4.0 or better were denied admission. While white

144. Id While the rate of Pilipinos with high school diplomas who fail to later earn their bachelordegrees is higher than the average for APIs, Japanese and Vietnamese experience even higher rates, at47.2% and 45.9%, respectively.

145. Kidder, supranote 141, at 610.146. Joint Case Management Statement, Castaneda v. Regents o the Univ. of Cal., No. 99-0525N.D. Cal. 2003).147. Id at148. Complaint for Declaratory and Injunctive Relief, Rios v. Regents of the Univ. of Cal., No. 99-0525 N.D. Cal 1999).



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students with 4.0 GPAs or better had a 48.2 percent chance of admission, Latinostudents had only a 39.7 percent chance, African American students a 38 5percent chance and Pilipino students a 31.6 percent chance. 49 Plaintiffs alsobrought a Fourteenth Amendment claim that the UC Regents knowinglymaintained discriminatory practices by adopting this race-neutral admissionsprocess at UC Berkeley 5Berkeley contended that its 1998 admissions program, based on directivesfrom California Proposition 209 required extensive and individualized review ofapplicants, which did not yield a disparate impact on these students of color whencontrolling for differences in qualifications. 15 In 2003, the case settled, partlybecause UC Berkeley decided during the litigation to adopt a comprehensivereview of its applicants. 152 The comprehensive review requires admissionsofficials to consider factors beyond grades and test scores, such as the applicant'spersonal statement and extracurricular activities. 5 The settlement also yielded aconsent decree, which required Berkeley to provide materials on admissionstraining, and an annual report of admissions disaggregated by race andethnicity. 154 The disaggregation of this data by ethnicity is particularly importantto examining the progress of API's in reaching educational equity, as thepresence of significant numbers of Asian Americans masks differentials withinthe group.Here, this note juxtaposes two efforts by the Asian American community toshow that there is potential under affirmative action jurisprudence to seek race-conscious remediation. For example, the Ho litigation understood the allocationof resources as a zero-sum game and used color-blindness to further argumentsthat benefit parts of the API community at the expense of other subgroups. Theresulting settlement agreement from the Ho litigation not only worsened chancesfor admission of underrepresented API groups to San Francisco's most desiredpublic schools, but it also undid protections that were put into place tospecifically guarantee Black students fair representation at these schools as well.The Berkeley litigation, on the other hand, exhibits the possibilities ofincorporating the Pilipino American experience to litigation strategy. ThePilipino American class members in the Berkeley litigation were represented bythe Asian Pacific American Legal Center ( APALC ), the nation's largest legalorganization serving the Asian and Pacific Islander (API) communities.APALC understood its role as an API legal organization to encourage andinclude collaboration with other racial groups to advocate for all people of color.A developing convergence in the needs of the community exhibits the potentialeffectiveness of demanding remediation, and the power of building coalitions.

149. NAACP Legal Defense Fund, Settlement Reached in Suit Over Discriminatory AdmissionsProcess at UC Berkeley, June 17, 2003, http://www.naacpldf.org/content.aspx?article=54.

150 Id151 Id at.7.152. Id153. Id154 Consent Decree, Castaneda v. Regents of the Univ. of Cal., No. 99-0525 {N.D. Cal. 2003).



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Further, the groups negotiation of the consent decree helps to hold the publicuniversity accountable to the people it intends to serve. As a public university,UC Berkeley must comply with civil rights laws, and the students who areadmitted into the university should be reflective of the communities that make upCalifornia.

CONCLUSIONWhile the Pilipino American experience has been profoundly and similarly

affected by racism and xenophobia as other oppressed groups in the UnitedStates, there are events in the history of this community prior to, during, and afterarrival to this country that have uniquely shaped their identity and experiences.Colonization, westernization and stereotyping under the model minority mythhave splintered Pilipino identity into facets that cannot be captured under thecurrent, and notably inaccurate, conceptions of APIs. The liminal status ofPilipinos illustrates the ways in which race-conscious remediation, as itcurrently conceived under the law, has failed to provide effective relief for theinjustices faced by these communities. Examining these failures reveals insightsinto the workings of civil rights and anti-discrimination law that may be used topromote racial collaboration and solidarity in order to bring about justice for allcommunities of color.

1592010] EXAMINING RACE CONSCIOUS REMEDIATION

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Examining Race-Conscious Remediation Through Pilipino/a American Experience

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