The system cannot fail those it was never meant to protect. – W.E.B. Dubois

Marissa Alexander will spend more time in prison for not killing anyone than the person who shot an unarmed, young, black man, Michael Brown.

The grand jury failed to indict anyone, much less Darren Wilson. When does that ever happen? That rarely ever happens, and in fact, it is very likely that the 108 day wait that Mike Brown’s family endured was not to make the decision, but to bury it.

But the amazing protesters in Ferguson, Missouri, and the solidarity protesters around the country refused to let it go, refused to stand down in the face of injustice.

Racism is insidious, institutional and pervasive. We must acknowledge it before we can eradicate it. Last night, McCullogh proved that to the people of the U.S. Last night, the first African-American President of the U.S. fumbled and hammed through a half-hearted and ineffective speech. Where is his outrage as a black man in America?

People are outraged, and rightly so.

Much love and healing to Michael Brown’s family.

The struggle continues.

Asian Americans and Affirmative Action

Race still matters infographic AAAJ - for websiteAffirmative action is now the latest wedge issue in California to keep ethnic minorities from seeing our common interests.

In California, a bill to revive affirmative action is dead. Mainstream media reports convey that opposition from insurgent Asian Americans groups killed the measure at the last minute. If this is true, then there is much work to be done in Asian American communities about the benefits of affirmative action. 

However, it is more likely that the measure was primarily opposed by white voters, and an over-hyped loud minority of Asian American opposition became a convenient scapegoat for lawmakers. After all, more than 75 percent of Asian American support affirmative action programs. Even when Prop 209 was passed by overwhelmingly white voters, Asian Americans were scapegoated for supporting the repeal effort even though 61 percent of Asian Americans voted against the ban. The backlash against Asian-Americans for the latest affirmative action debacle is the same old “divide and conquer” strategy, and we must stop falling for it.

I support affirmative action. I have written at length about the need for affirmative action, as well as why it is constitutional. Contrary to myths, Asian Americans have been hurt by Prop. 209, and projected Asian-American enrollment rates have fallen as a result of Prop 209. Moreover, Asian-Americans do not lead single issue lives. Many Asian-American women and LGBT Asian-Americans directly benefit from affirmative action. 

We need to restore affirmative action in California, and we need to stop allowing the white majority to use the increased Asian American enrollment numbers as a way to defend a ban that only they support overwhelmingly. 

But We Are Criminals: Countering the Anti-Racial Justice Frame of Immigration Reform

He can be known as the Abraham Lincoln of undocumented immigrants. But thus far, President Obama’s record on immigration is depressing and dismal.

The first black President has deported more brown people than any other President in U.S. history.

For someone working on building a racial justice movement, one would imagine that a headline such as that would mean we are royally screwed.

President Obama is nearing 2 million deportations, and estimated to reach 3 million by the end of his term. That is a quarter of all undocumented immigrants in the United States. Many such persons deported have significant ties to the U.S. and many are spouses and parents of U.S. citizens. Even while the federal government was shutdown, the Department of Homeland Security (DHS) was deemed essential, and continued to deport persons at a rate of 1,100 per day, tearing apart black and brown families and communities.

As Congress emerges from the shadow of shutdown, the President has taken the opportunity to try and put immigration reform back on the agenda. While we desperately need some sort of immigration reform, many see this latest attempt as a way to divert attention from the record-breaking 2 million deportations under his Administration, and a way to pander to certain demographics for the mid-term elections rather than a genuine effort to undertake real reform before the next government shutdown on January 15.

But here is the real problem. In its current frame, the pursuit for comprehensive immigration reform is a complete failure for both racial justice and real immigrant lives. It is reform without justice.

One of the greatest victories of right-wing extremists such as the Tanton Network has been to push professional immigration reform advocates to adopt right-wing talking points. As such the entire immigration reform debate is framed along the binary of good immigrant and bad immigrants. Since 2005, immigration reform advocates have waged a national campaign for comprehensive immigration reform on the premise of exchanging a militarized border wall, privatized prisons and increased surveillance for a pathway to citizenship for a limited number of undocumented immigrants. Under the current frame, the 11.7 million who are undocumented and aspiring to be American have to “get right with the law,” “get in line,” speak English, pay fines, and pay taxes in order to gain some sort of legal status in the U.S. These are professional messaging points that bear no truth and no justice for immigrants.

Instead, the good immigrant and bad immigrant frames has hurt advocacy for racial and immigrant justice. For example, when immigration reform advocates hold up banners saying “We are Not Criminals…” they inadvertently buy into the notion that certain demographic groups are criminals. When they emphasize a pathway to citizenship at the expense of basic human right to live, work and travel, they willfully ignore what citizenship means for a young, black man such as Trayvon Martin. When they criminalize and exclude various categories of immigrants from the blueprint for immigration reform, they make it harder to ally with movements for criminal justice and racial justice.


This sign is problematic. We are all criminals.

Besides, most of the immigration reform agenda ignores and feeds into the real problem — many white people are petrified of the rapid demographic changes occurring in this country, mostly due to immigration from Latin American countries, which have been devastated by neo-liberal globalization policies. They do not like that the country is becoming more brown. However, instead of constructively talking about race and the devastation caused by U.S. foreign policies that lead people to move here, professional immigration reform advocates have tried to pacify these white racist fears with the discourse of “aspiring Americans.” The message is that the 11.7 million will just assimilate into the “melting pot” of the United States and won’t threaten white supremacy and white privilege.

Of course, it is beside the point that not a single undocumented person actually identifies as an aspiring American in real life. As Junot Diaz put it, we actually cannot be certain that people stop being immigrants. Perhaps many of the 11.7 million will integrate much like the previous amnesty, but not because the 11.7 million necessarily want to be American voters but because most of them just want to work, drive, travel, take care of their families and be left alone by Immigration and Customs Enforcement (ICE). Yet, despite this salient assimilationist rhetoric, comprehensive immigration reform is not going anywhere. And that is mostly because the campaign messaging is predicated on a series of lies that does not inspire faith or confidence among undocumented immigrants who cannot relate to it.

The other strategy–placating to the extreme right-wing nuts at the GOP–does not help matters. Staunch defenders of President Obama’s terrible immigration record state that the GOP is the real problem and the reason why the President has had to take a tough stance against immigrants, ramping up enforcement numbers, in order to sell immigration reform to them on a bipartisan platter. However, if the recent government shutdown has shown us anything, it is that compromising with whiny hostage takers is a bad idea. In order to win on policy matters, well-meaning immigration reformers have to stop focusing on winning elections for the Democrats who bear just as much responsibility for draconian deportations and immigration detention system, and start focusing on playing both sides.

But comprehensive immigration reform is just one vehicle for those of us who are more interested in immigrant justice and less interested in winning elections for the Democrats. Our fight for immigrant justice is not just about Latinos — it is about everyone who is racially profiled and treated as second-class in a country that is supposed to be the land of the free and home of the brave. In order to cut through the current impasse on immigrant justice, immigrant rights and criminal justice movements, as in brown and black people, need to recognize their shared experiences, common goals and build a racial justice movement. Everyone pays lip-service to black/brown solidarity but it has not translated into anything meaningful for the thousands of black and brown persons who are increasingly incarcerated in our jails, prisons and detention centers. Without actively working and building alliances in black communities, non-black immigrant rights advocates threaten to isolate themselves from those with whom they have the most in common.

We have much in common with the black community and the movement for criminal justice. Sometimes, this solidarity is wrongly expressed by labeling immigrant rights as the “new civil rights movement.” This is yet another example of how mainstream immigration reformers have no racial justice compass. Instead of falling into the trap of calling ourselves the “new civil rights movement” and faking civil disobedience actions for history books, we need to build solidarity not on literal comparisons of our oppressions, but on our shared experiences with the system.

As undocumented persons, we are part of a community that is targeted, racially-profiled and criminalized in jails across the country. Various states such as Arizona and Alabama have tried to make our mere existence a crime. Prosecutors across the country seek criminal convictions for black and brown persons before trying to deport us. The Department of Homeland Security is currently building databases of young persons who are possibly “gang members” and running a “risk assessment” on every undocumented person in order to exclude such persons from immigration reform. It is impossible to rehabilitate ourselves and our communities out of such a situation by hailing that “we are not criminals” and “we are aspiring Americans.”

As such, immigration justice seekers need to have a critical dialogue on race and stop compromising with racists. Before all else though, we need the President and his latest nominee for DHS Secretary, Jeh Johnson, to stop the deportations.

Forget time is now. Time has passed.

Affirmative Action Survives But Not For Long

This is now illegal, FYI.

Protesting at the Supreme Court is now illegal, FYI.

My heart skipped a few beats today when the Supreme Court vacated and remanded Fisher v. Texas, to the Fifth Circuit, but affirmative action remains the law.

The Justices are so scared of race and racial politics that they said a few words about the compelling interest provided by diversity, and told the Fifth Circuit to apply the criteria set in Bakke v. California (race-based admissions policies should be narrowly tailored) because a showing of good faith by the University of Texas was not enough to overcome impermissible consideration of race. Universities must show there is “no workable race-neutral alternative” to achieving diversity. This anything-but-race approach to achieving a critical mass of diversity means that affirmative action survives, but it is still in a lot of trouble.

Lets make one thing clear. Achieving a race-neutral critical mass of diversity is not a convincing-enough rationale for affirmative action. It will not survive long. I’m not saying diversity is not a compelling government interest but I certainly question how, why and for whom it is important. Three years of law school at a rich, mostly-white private school has me thoroughly convinced that white people gain much more from interactions with people of color than we do from interactions with them. Justice O’ Connor made this point crystal clear in her majority opinion in the last affirmative action case where she praised diversity as a tool for providing legitimacy for government:

In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. (Grutter v. Bollinger)

Because having confidence in the legitimacy of government is a more overriding principle than actually addressing past and present discrimination, diversity becomes the overriding government interest in preserving affirmative action. Heavens forbid that people notice lingering racial segregation in their schools and housing patterns, and wake up to question why 60 years after Brown, we still live in an America so unequal.

The 7-1 remand from Fisher v. Texas has only one dissent: Ginsburg. And she shows again why she’s the only one who understands court-constructed 14th Amendment jurisprudence:

“I remain convinced ‘those that candidly disclose their consideration of race [are] preferable to those that conceal it’ […] ‘Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated.'”

Ginsburg is criticizing the fallacy behind the constitutional jurisprudence that all use of race should be subjected to strict scrutiny in order to be upheld under the Fourteenth Amendment. This strict scrutiny test comes from the Supreme Court decision in Korematsu, where the Court declared that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect” (and then refused to apply the principle to the clearly unconstitutional internment of Japanese Americans). As opposed to Korematsu, affirmative action cases such as Bakke, Grutter and Fisher, do not “curtail the civil rights of a single racial group.” They, much like Brown v. Board of Education, involve the benign use of race to advance a legitimate government interest in tackling the vestiges of past and present discrimination, and promoting diversity. Thus, a strict reading of equal protection jurisprudence requires that strict scrutiny should be limited to “all legal restrictions that curtail the civil rights of a single racial group” as Ginsburg implies in her dissent.

Unfortunately, both benign and invidious uses of race get strict scrutiny. The Court has steadily moved away from encouraging the use of race in cases such as Brown v. Board of Education, to promoting colorblind constitutionalism as the way to guarantee equal protection. Colorblind constitutionalism is the proposition that the U.S. constitution, in treating all races equally, is colorblind. With its legal roots in Justice Harlan’s dissent in Plessy v. Ferguson, color-blindness espouses the questionable principle of race neutrality in a legal system that is constructed to generate and maintain disparity. Colorblind constitutionalism has gained more credence through the rhetoric of a post-racial America, and especially the re-election of President Obama. Supporters of color-blindness contend that we have moved beyond race and race is no longer relevant i.e. Parents Involved in Community Schools v. Seattle School Dist. No. 1 (“[T]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race”). This is deeply problematic, as colorblindness threatens to blind us from the continuing reality of white privilege in American society and the institutional discrimination that persists, including gentrification, white-flight, re-segregation, spirit injury, legacy admits, and even micro-aggressions.

Espousing neutrality and colorblindness in a white supremacist order is not neutral—it is a raincheck for an unequal world. Race neutrality serves to legitimize the current racial order while making sure that systemic discrimination remains undisturbed. While some may argue that colorblindness is a laudable principle, it is in effect, a way to keep the racial pecking order while ignoring the very real impact of racism on everyday lives. Failure to see and acknowledge racial differences makes it difficult to recognize white privilege and systemic racism, and take action to address the impact of these on our lives.

Thus, colorblindness is a vestige of institutionalized racism. Race consciousness policies such as affirmative action are imperative to battling racism, and the benign use of race in order to do so should not rise to the level of strict scrutiny.

Ginsburg could have articulated all of this better, but for now, I’m glad affirmative action is still legal. 

Remembering Fred Korematsu

English: Gravestone of Fred Korematsu at Mount...

English: Gravestone of Fred Korematsu at Mountain View Cemetery, Oakland, CA (Photo credit: Wikipedia)

Fred Korematsu would have turned 94 today. This post is in honor of his legacy of rabble-rousing. He challenged his internment, only to have the Supreme Court justify Japanese internment for “national security” reasons. It is pretty well established that Korematsu v. United States was wrongly decided. However, it is important to revisit and re-remember Korematsu because it exposes the racism and poverty of liberal thought in American legal jurisprudence, by exposing the legal fiction of levels of scrutiny


In Korematsu, the Court upheld the conviction of Mr. Korematsu, a Japanese-American, who had failed to evacuate his home as ordered by the military. The Court stated that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect” but did not apply the rule. If the Court had applied strict scrutiny, Korematsu would be ripe with over-inclusivity and under-inclusivity problems, such that the detention of Japanese would not show narrow-tailoring to fulfill a compelling government interest. Korematsu was over-inclusive because loyal Japanese were swept up but it was also under-inclusive because Germans and Italians were only marginally detained.


An originalist critique of Korematsu also exposes the decision as wrong. While the Court upheld Mr. Korematsu’s conviction based on military necessity, nothing in war powers given to Congress and Executive means they can take any action deemed expedient or suspend habeas corpus. In fact, Framers distrusted unlimited powers and martial law, which is why they gave each branch of government limited and enumerated powers, not to be suspended. Yet, the legacy of this wrongly decided decision pervades our existence, and exposes the underlying racism of American jurisprudence


Korematsu exposes the inherent racism of the legal system. Korematsu is the case that held “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect” and yet, on that day, Mr. Korematsu was only the suspect. In Grutter v. Bollinger, one of the Michigan affirmative action cases, the Court states that the lesson from Korematsu is that national security constitutes a “pressing public necessity” such that the government can use race. Thus, Korematsu legitimizes invidious group-based discrimination in the name of national security. It completely violates the spirit of due process, as not a single Japanese was found to be a spy during World War II.


This makes Korematsu contrary to the liberal principle of individual rights. Much like Derrick Bell’s The Space Traders where blacks were asked to perform a civic duty, in Korematsu, the Japanese were asked to carry out a civic duty by subjecting themselves to detention. But there is no such civic duty when it comes to whites. This civic duty is reserved for racial and ethnic minorities. Indeed, in post 9-11 America, programs such as NSEERS targeted Arab Americans and South Asians based on the same rationale – that minorities have a civic duty to sacrifice themselves for the greater good due to the actions of a few people who belonged to that group.


Whites have no similar duties – they are simply individuals who are afforded the protection of the Fourteenth Amendment because they suffer from reverse discrimination. But racial and ethnic groups who are constantly racially profiled, discriminated against and subject to suspect classification, are not afforded these protections because they can’t prove disparate treatment when the racial legal order endorses group-based disparate treatment.


Most importantly, Korematsu does not stand for the proposition that all use of race is suspect but rather, only discriminatory use of race is constitutionally suspect. In Adarand v. Pena, the Supreme Court majority relied on Korematsu to use strict scrutiny to strike down a government program that used benign race classifications. But Korematsu does not stand for the proposition that remedial programs should be subject to strict scrutiny.  Instead, as the dissent in Adarand notes in a footnote, Korematsu specifies that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.” The programs at issue in Adarand, and the affirmative action cases such as Bakke, Grutter and Fisher, do not “curtail the civil rights of a single racial group.” They involve the benign use of race distinctions to advance a legitimate government interest in tackling the vestiges of past and present discrimination. A strict reading of Korematsu would hence give strict scrutiny a different meaning—strict scrutiny should be limited to “all legal restrictions that curtail the civil rights of a single racial group.”


This does two things. First, such a re-definition of strict scrutiny looks like the intermediate scrutiny in the Metro Broadcasting, where the Court drew a bright-line between the use of race for invidious discrimination and the benign use of race. And second, it exposes the tiers of scrutiny as legal fiction, constructed by a Court that is unable to deal with race and race relations, and applied inconsistently.  If all use of race is actually not suspect and Korematsu’s strict scrutiny is really the intermediate scrutiny of Metro Broadcasting, then affirmative action and other remedial programs would be legal without more. But a re-reading of Korematsu exposes the tiers of scrutiny as legal fiction, and maybe something the Court should reconsider.


Perhaps then, Korematsu’s biggest legal significance is in realizing that it does not deviate from the norm. It is normative because it exposes racism and the legal fiction of tiers of scrutiny. Korematsu was the logical extension of the history of American race relations with Asian Americans. From People v. Hall, where a Chinese were not allowed to testify on the basis of their race, to the Chinese Exclusion Act, to Gong Lum v. Rice, where an Asian girl could not attend a whites-only school to the Court’s decisions to restrict citizenship to white people (Ozawa, Thind), Korematsu is a legal manifestation that Asian Americans are the inassimilable Other who can never become a part of the political community so exclusively defined by the Court in Dred Scott. Today, such race-based exclusion remains the law of the land.


And so we remember Fred Korematsu, who told us to struggle, even in the face of state-sponsored exclusion.