Asian Americans and Pacific Islanders (AAPIs) are often considered the “model minority.” On its face, the label seemingly touts all AAPIs as a hardworking group who have achieved financial and educational success in the United States. Stephen M. Caliendo & Charlton D. McIlwain, The Routledge Companion to Race and Ethnicity (2011). In reality, it perpetuates the illusion that AAPI individuals are “less oppressed” and do not face the same or similar prejudices and challenges as other minority groups. American Bar Ass’n, The Model Minority Myth: The Impact on AAPIs in the Legal Profession and Beyond (May 12, 2021). This article discusses how the model minority myth—the idea that AAPIs have “made it” despite obstacles—has led to AAPI lawyers becoming an “invisible minority,” a group that is neither considered a minority nor in need of societal “help.”
October 28, 2021 Articles
Shattering the Model Minority Myth and Vindicating the Invisible
How the model minority myth—the idea that AAPIs have “made it” despite obstacles—has led to AAPI lawyers becoming an “invisible minority,” a group that is neither considered a minority nor in need of societal “help.”
By Valerie Phan and Allison Ng
Overview of the History of Anti-AAPI Laws
Consistent with other minority groups, AAPIs have long struggled against discrimination, stereotyping, and scapegoating. Below is a brief timeline of anti-AAPI laws:
1854: On October 1, 1854, the California Supreme Court decided the case of People v. Hall, 4 Cal. 399 (1854), which reversed the conviction of George W. Hall, “a free white man,” for the murder of a Chinese immigrant. Hall’s conviction was primarily based on the testimony of three Chinese eyewitnesses, which the court concluded was inadmissible based on a tortured interpretation of California laws that prohibited “Indian” (i.e., Native American), “Negro,” “Black,” and “Mulatto” persons from testifying against a white person. Id. at 399–404. The court characterized Chinese persons as “a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point[.]” Id. at 404–5.
The Page Act of 1875: On March 3, 1875, Congress enacted the Page Act, which prohibited the recruitment of laborers from “China, Japan or any Oriental country,” who did not enter the U.S. of their own will or who were brought for “lewd and immoral purposes” (i.e., prostitution). The act, which was built on stereotypes and scapegoating, reflected the hyper-sexualization of Chinese women and effectively blocked Chinese women from entering the U.S.
The Chinese Exclusion Act of 1882: On May 6, 1882, Congress passed the Chinese Exclusion Act, which suspended the immigration of Chinese laborers (skilled or unskilled) for a period of 10 years, declared Chinese immigrants ineligible for naturalization, and required every Chinese person to carry a certificate identifying his or her status as a laborer, scholar, diplomat, or merchant. Although the act was set to expire in 1892, Congress extended it for an additional 10 years and made the extension permanent in 1902. The act was not repealed until 1943.
The Alien Land Law of 1913: On May 3, 1913, California passed the Alien Land Law, which prohibited “aliens ineligible to citizenship” (i.e., all immigrants from Asia) from owning land. California expanded the law in 1920 and 1923, barring American-born children of Asian immigrant parents or corporations controlled by Asian immigrants from owning and leasing land.
The Immigration Act of 1917: On February 5, 1917, Congress passed the Immigration Act of 1917, expanding the prohibitions against immigration from China and Japan to the “Asiatic Barred Zone,” which included India, most of Southeast Asia, the Pacific Islands, and the Middle East.
1942: On February 19, 1942, two months after the December 7, 1941, Japanese attack on Pearl Harbor, President Franklin D. Roosevelt issued Executive Order 9066, which authorized military commanders to exclude civilians from military areas. Although the order did not specify any ethnic group, it was used to force some 70,000 Japanese Americans out of their homes and into internment camps.
1944: On December 18, 1944, the U.S. Supreme Court decided the case of Korematsu v. United States, 323 U.S. 214 (1944), in which Fred Toyosaburo Korematsu, an American citizen of Japanese descent, appealed his conviction for failing to comply with an order to leave his home and report to an internment camp on the grounds that the order was unconstitutional. The court ruled, in a 6–3 decision, to uphold Korematsu’s conviction, holding that the detention of Japanese Americans was a “military necessity” not based on race. In 1983, the Korematsu case was reopened by a pro bono legal team on the basis of government misconduct. On November 10, 1983, Korematsu’s conviction was overturned, but the Supreme Court’s 1944 decision remained good law until 2018.
The Rise of the “Invisible Minority” in the Legal Profession
Despite this historical background, AAPIs are generally invisible in discussions of diversity in the United States. This phenomenon has not escaped the legal profession even though there is a dearth of AAPIs in the judiciary, law firm leadership, and law firm equity partnership. Indeed, while the legal profession is moving toward increased diversity, the statistical evidence demonstrates that AAPI lawyers fall squarely within the small numbers of the other minority groups.
According to the American Bar Association’s 2021 report on the legal profession, in July 2021, 85.4 percent of U.S. lawyers were White, 4.8 percent were Hispanic, 4.7 percent were Black, 2.5 percent were Asian, 2 percent were multiracial, 0.4 percent were Native American, and 0.3 percent were Hawaiian/Pacific Islander. ABA, Profile of the Legal Profession 2021, at 13 (July 2021). Ten years earlier, 88 percent of U.S. lawyers were White, 3.9 percent were Hispanic, 4.7 percent were Black, 1.7 percent were Asian, and 1 percent were Native American. Id. In other words, notwithstanding the prevalence of the model minority myth, AAPI lawyers have not significantly outpaced or outnumbered other minorities and the legal profession remains overwhelmingly White.
In addition, the 2020 ABA Model Diversity Survey reported that lawyers of color, a term that encompasses AAPI lawyers, are twice as likely to leave U.S. law firms during a typical year. Notably, in 2019, the attrition rate for White U.S. lawyers was 11 percent, in stark contrast to the attrition rates for Pacific Islander lawyers (22 percent), Black lawyers (21 percent), Hispanic lawyers (21 percent), Asian lawyers (18 percent), and Native American lawyers (13 percent). Id. at 21. Yet, despite the statistical evidence to the contrary, AAPIs are overlooked as minorities to the point that many companies do not consider AAPI candidates as “diverse” for hiring or staffing purposes, highlighting AAPI lawyers’ invisibility due, at least in part, to the impact of the model minority myth.
Conclusion
While AAPIs are the fastest-growing racial group in the United States, AAPI lawyers remain one of the least represented racial and ethnic groups in the legal profession. The reality is that racial diversity in the profession is making steady, but achingly slow, progress. As we move forward, it is important to reflect on the model minority myth’s impact on AAPI lawyers and their struggles.
As diverse individuals and AAPI lawyers, we must continue dialogue on racial justice and on the unique challenges we face if we want to be seen and effectuate change. This includes sharing our stories of successes, setbacks, and disappointments, as well as proposing solutions to issues affecting our community. As we continue to shine light on these issues, we are optimistic that the model minority narrative can change.
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