Kaiser Aluminum & Chemical Corporation Brief Amici Curiae

    In the

Supreme (fnurt of %  T&mtvb States
O c to ber  T e r m , 1978 

Nos. 78-432, 435 and 436

K a ise r  A l u m in u m  and C h em ic a l  Co rp ., et al.,

Petitioners,
—against—

B r ia n  P .  W e b e r ,
Respondent.

ON  W R IT  OP CERTIORARI TO T H E  U N ITED  STA TES COURT OF APPEALS 
FO R T H E  F IF T H  CIRCU IT

BRIEF OF THE ASIAN AMERICAN LEGAL DEFENSE AND 
EDUCATION FUND, THE ASIAN LAW CAUCUS, INC., AND 
ASIAN AMERICANS FOR EQUALITY AS AMICI CVIllAE

K e n n e t h  C hu  
S ta n l e y  M a rk  
L isa  S.J. Y e e

43 Canal Street
New York, New York 10002

V ictoria  C h in  
M ic h a el  W ong 
S a m u el  Y e e

1322 Webster Avenue 
Oakland, California 94610

C h a r l e s  S t e p h e n  R alston  
B il l  L ann  L e e  

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Amici



-1-

INDEX

Page

Interest of Amici ...............  2

Summary of Argument ............. 4

Argument:

I. Asian Americans Are a 
Racial Minority Histor­
ically Subject to 
Invidious Racial Discrim­
ination and Exclusion 
Sanctioned by Law.......  6

II. Asian Americans Are 
Still Subject to the 
Vestiges of Prior 
Racial Discrimination 
and Exclusion Compelled 
by Law...................  23

III. Voluntary Affirmative 
Action Programs Are 
Necessary and Proper 
to Guarantee Equal 
Employment Opportunity 
for Asian Americans.....  38

Conclusion 52



Table of Authorities

Cases :

Asakura v. City of Seattle, 265
U.S. 332 (1924) ................ 13

Brown v. Board of Education,
347 U.S. 483 (1954) ............ 8

Chinese for Affirmative Action
v. Federal Communications Comm'n,
16 E.P.D. f 8290 (D.C. Cir. 1978) 27

Cockrill v. California, 268 U.S.
258 (1924) .....................  13

Crawford v. Board of Education,
17 Cal.3d 280, 130 Cal. Rptr.
724, 551 P . 2d 28 (1976)   21

Domingo v. New England Fish Co.,
445 F. Supp. 421 (W.D. Wash.
1977)   28

Frick v. Webb, 263 U.S. 326 (1923) 13

Gaston County v. United States,
395 U.S. 285 (1969) ............ 46

Gong Lum v. Rice, 275 U.S. 78
(1927)   19

Guey Heung Lee v. Johnson, 404
U.S. 1215 (1971) ............... 17,21

-ii-

Page



*

-iii-

Hernandez v. Board of Education of 
Stockton Unified School District, 
Civ. Act. No. 101016, San 
Joaquin Super, ct. (Oct. 9, 1974)

Hiatt v. city of Berkeley, 149 
Cal. Rptr. 155, 85 Cal". Aop.3d 
29 (Cal. ct. App. 1978)

Hirabayashi v. United States,
320 U.S. 81 (1943) ...........

Huang v. College of the Holy 
Cross, 436 F. Supp. 639 (D.
Mass. 1977) .............

Korematsu v. United States, 323 
U.S. 214 (1944) .......

Hull v. Cason, 47 U.S.L.W. 2416 
(Cal. ct. App., Dec. 26, 1978)

In re Ah Yup, 1 F. Cas. 223 (c C 
Cal. 1878) .......

In re Hong Yen Chang, 84 Cal 163 
(1890) ...............

In re Yamashita, 30 Wash. 234,
70 P. 482 (1902) ......... '

Jackson v. Pasadena City School 
District, 59 Cal.2d 876, 31 
Cal.Rptr. 606, 382 P.2d 875 
(1963) (en banc) ......

22

44

14

28

14 

44

15 

13 

13

Page

21



-V-
Paqe

People v. Hall, 4 Cal. 399 (1854)

People v. San Diego Unified
School District, 19 Cal.App.3d 
252, 96 Cal. Rptr. 658 (Ct.
App. 1971), cert, denied, 405 
U.S. 1016 (1972)...............

14

21

Railway Mail Association v. 
326 U.S. 88 (1945) .... ■

Corsi,
51

San Francisco Unified School 
District v. Johnson, 3 Cal.3d 
937, 92 Cal. Rptr. 309, 479 
p.2d 669 (1971) (en banc), 
cert, denied, 401 U.S. 1012 
(1971) .......................

Saunders v. Naval Air Rework. 
Facility, N.D. Cal. Civ.
Action No. C-74-0520 (1978) ....

Slaughter House Cases, 83 U.S. 36 
(1873) ..........................

Soria v. Oxnard School District 
Board of Trustees, 386 F. Supp. 
539 (C.D. Cal. 1974), on remand 
from 488 F.2d 577 (9th Cir. 1973)

Spangler v. Pasadena City Board 
of Education, 311 F. Supp. 501 
(C.D. Cal. 1970) ...............

21

28

47

21

21



*

-IV-
Page

Johnson v. San Francisco Unified 
School District, 339 F. Supp.
1315 (N.D. Cal. 1971), app.
for stay denied, Guey Heung Lee
v. Johnson, 404 U.S. 1215 (1917),
vacated and remanded, 500 F.2d
349 (9th Cir. 1974) ............  20,21

Kelsey v. Weinberger, 498 F .2d
701 (D.C. Cir. 1974) ...........  21

Lau v. Nichols, 414 U.S. 563 (1974) 21

Martinez v. Bechtel Corp., 10
E.P.D. 5 10,570 (N.D. Cal. 1975) 28

Mendez v. Westminster School 
District, 64 F. Supp. 544 
(C.D. Cal. 1946), affirmed, 161
F . 2d 744 (9th Cir. 1947) ......  19

National Organization for Women 
v. Bank of California, 5 E.P.D.
5[ 8617 (N.D. Cal. 1973) ........ 28

Officers for Justice and United 
States v. City and County of 
San Francisco, N.D. Cal.
C-73-0657-RFP, C-77-2884-RFP ... 27

Oyama v. State of California,
332 U.S. 633 (1948) ............  15

Ozawa v. United States, 260 U.S.
178 (1922) ...................... 16



Takahashi v. Fish and Game Comm n,
334 U.S. 410 (1948) ............ 15

Tape v. Hurley, 66 Cal. 473,
6 P. 129 (1885) ................  18

Terrace v. Thompson, 263 U.S. 197
(1923) .........................  13

The Chinese Exclusion Case,
130 U.S. 581 (1889) ............ 15

United Pilipincs for Equal Employ­
ment v. California Blue Shield,
N.D. Cal. Civ. Action No.
C-73-1085-CBR (Nov. 4, 1974) ... 27

United States v. City of San
Diego, S.D. Cal. 76—1093 (1977)

United States v. Operating
Engineers, 4 F.E.P. Cases 1088 
(N.D. Cal. 1972)   25

United States v. Wong Kim Ark,
169 U.S. 649 (1898)   15,48

University of California Regents
v. Bakke, ___ U.S. ___, 57
L.Ed.2d 750 (1978)   20,23,48,49,50

Speer v. See Yup, 13 Cal. 73 (1855) 14



27 ,28

Verzosa v. Merrill Lynch, Pierce, 
Fenner & Smith, 17 E.P.D.
5 8518 (9th Cir. 1978) ........

Ward v. Flood, 48 Cal. 36 (1874)

Webb v. O'Brien, 263 U.S. 313
(1923) .........................

Wong v. The Bon Marche, 508 F.2d 
1249 (9th Cir. 1975) ..........

Wong Him v. Callahan, 119 F. 381 
(C.C. Cal. 1902) ..............

Yamashita v. Hinkle, 260 U.S. 199 
(1922) ........................

Yick Wo v. Hopkins, 118 U.S. 356 
(1886) ....................  6 'X

19

13

,47

Statutes and Regulations:

Emergency School Aid Act of 1972, 
20 U.S.C. § 1619(9)(A) .......

Immigration and Nationality Act
of 1952, 8 U.S.C. §§ H OI et seg.. 16

Immigration and Nationality Act 
of 1965, 8 U.S.C. §§ 1151-1156

Philippine Independence Act, 48 
Stat. 456 (1934) .............. 16



Utah Code Ann. § 40-1-2 (1943) .... 14

28 C.F.R. Pt. 42, subpt. F .......  25

28 C.F.R. Pt. 42, subpt. E ........25,44

28 C.F.R. ch. I, pt. 50, § 50.14 .. 25

29 C.F.R. pt. 1602 ............... 25

29 C.F.R. pt. 1608 .........  44,50,51

41 C.F.R. pt. 60-2 and 60-4 ....  25,43

41 C.F.R. § 60.50.1 (d) ............ 43

Other Authorities:

F. Auerbach, Immigation Laws of
the United States (1955) .......  15

California State Advisory Comm.,
U. S. Comm'n on Civil Rights,
Asian Americans and Pacific 
Peoples: A Case of Mistaken 
Identity (1975)  22,37

California State Dept, of Education, 
Racial and Ethnic Survey of 
California Public Schools Fall 
1966 (1967), Fall 1968 (1969) 
and Fall 1970 (1971) ............ 20

P. Chiu, Chinese Labor in
California, 1850-1880 (1967) ___

-ix-
Page

9



-X-
Paqe

F. Chuman, The Bamboo People: The 
T.aw and Japanese Americans

q 7 f. > .. 11,12,15\ -L

111 Cong. Rec. 32096 (1971) ......  24,26

117 Cong. Rec. 32094 (1971) . 24

118 Cong. Rec. 294 (1972) ... ....  24,49

118 Cong. Rec. 4933 (1972) .. ....  25

M. Coolidge, Chinese Immigration 
(1909) .......................

R. Daniels, The Politics of
Prejudice (1962) ...............

Ferguson, The California Alien 
T.and Law ana the Fourteenth 
Amendment, 35 Cal. L. Rev. 61
(1947) ..........................

Fogel, The Effect of Low Educa­
tional Attainment on Income:
A Comparative Study of Selected 
Ethnic Groups, 1 J. of Human 
Resources (1966) ...............

J. Hendrick, The Education of Non- 
Whites in California, 1849-1970 
(1970) ..........................

Y. Ichihashi, Japanese In the United 
States (193 2) .................. 10



-XI-

Katzman, Opportunity, Subculture 
and the Economic Performance of 
Urban Ethnic Groups, 28 Amer. J. 
of Econ. & Sociology (1969) ....

Katzman, Urban Racial Minorities 
and Immigrant Groups: Some 
Economic Comparisons, 30 Amer.
J. of Econ. & Sociology (1971) .

H. Kitano, Japanese Americans: The 
Evolution of a Subculture (1969)

M. Konvitz, The Alien and the
Asiatic in American Law (1946) .

B. Lasker, Filipino Immigration 
(1931) ..........................

I. Light, Ethnic Enterprise in
America: Business and Welfare 
Among Chinese, Japanese, and 
Blacks (1972)...................

j. Loewen, The Chinese in the
Mississippi Delta (1973) ......

S. Lyman, The Asian in the West 
9-26 (1970) ....................

S. Lyman, Chinese Americans (1974)

McGovney, The Anti—Japanese Land 
Laws of California and Ten Other 
States, 35 Cal. L. Rev. 7 (1947)

38

38

10

13

11

9

19

9

9

Page

13



- X l l l -
Pa?e

U. S. Dept, of Commerce, Manpower 
Admin., H. Wong., The Relative 
Economic Status of Chinese,
Japanese, Blacks and White Men 
In California (1974)   38

U. S. Dept, of Health, Education,
& Welfare, Urban Associates,
Inc., A Study of Selected Socio- 
Economic Characteristics of 
Ethnic Minorities Based on the 
1970 Census, Vol. II: Asian 
Americans (1974) ........  29,30,32,36

U. S. Dept, of Labor Manpower 
Admin., B. Sung, Chinese Ameri­
can Manpower and Employment
(1975)   41

U. S. Dept, of Transp., Federal
Highway Admin., F. Wu, P. Chen, Y.
Okano, P. Woo, Involvement of 
Asian Americans in Federal-Aid 
Highway Construction Work in 
California (1978) ............. 30,42

M. Weinberg, A Chance to Learn
(1977) ........................  17,20

G. Wollenberg, All Deliberate
Speed, Segregation and Exclusion 
in California Schools, 1885-1975
(1976) .......................... 17



- X 1 1  —

R. McKenzie, Oriental Exclusion

Page

(1971) .......................... 15

H. Melendy, Asians in America:
Filipinos, Koreans, and East
Indians (1977) .................  11

P. Murray, States1 Laws on Race
and Color (1951) ...............  12

New York State Advisory Comm.,
U. S. Comm'n on Civil Rights,
The Forgotten Minority: Asian 
Americans in New York City
(1977) ...............  25,30,31,37,42

E. Sandmeyer, The Anti-Chinese
Movement in California (1939) 9,12,15

U. S. Comm'n on Civil Rights,
The Challenge Ahead, Equal 
Opportunity in Referral Unions
(1976) .......................... 41

U. S. Comm'n on Civil Rights,
Social Indicators of Equality for 
Minorities and Women (Aug.
1978) ....................  32,33,34,35

U. S. Dept, of Commerce, Bureau of 
the Census, Census of the United 
States: 1970, Subject Reports, 
Final Report PC(2)-IG-Japanese, 
Chinese, and Filipinos in the 
United States (1973) ........... 29



-XXV-
Page

J. Young, Discrimination, Income. 
Human Capital Investment, and 
Asian-Americans (1977) .....  36,3

Executive Order 9066 (1942),
rescinded on Feb. 19, 1976 ....

7,38

14



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1978 

Nos. 78-432, 435 and 436

KAISER ALUMINUM AND CHEMICAL CORP., 
et al.,

Petitioners,

-against-

BRIAN F. WEBER,
Respondent.

On Writ of Certiorari to the United 
States Court of Appeals for the 

Fifth Circuit

BRIEF OF THE ASIAN AMERICAN LEGAL 
DEFENSE AND EDUCATION FUND, THE 
ASIAN LAW CAUCUS, INC., AND ASIAN 

AMERICANS FOR EQUALITY AS 
AMICI CURIAE



A

Interest of Amici

The Asian American Legal Defense and 

Education Fund is a non-profit corporation 

established under the laws of the State of 

California and New York in 1974. It was 

formed to assist Asian Americans through­

out the nation in the protection of their 

rights, including the right to equal 

employment opportunity, through the prose­

cution of lawsuits and the dissemination 

of public information.

The Asian Law Caucus, Inc., is a non­

profit corporation established under the 

laws of the State of California in 1972.

It was formed to assist Asian Americans in 

the greater San Francisco Bay Area in the

-2-

protection of their rights in employment, 

housing, immigration, governmental benefits



-3-

and criminal justice by providing legal 

and educational services.

Asian Americans For Equality is a non­

profit corporation established under the 

laws of the State of New York and original­

ly founded in 1974. It was formed to pro­

mote equal employment opportunity for Asian 

working people through educational and

social action programs.

Amici have found that much of their 

work concerns discrimination on the basis 

of race and color and national origin m  

the field of employment suffered by Asians 

as a result of their historic exclusion 

from the mainstream of American life and 

the legacy of overt racial discrimination 

sanctioned by law. It is amicijj; experience 

that racial discrimination in the job market



-4-

and working place remains a persistent 

barrier for Asian Americans, and that 

voluntary affirmative action programs are 

necessary to overcome burdens on equal 

employment opportunity. Such programs, 

including programs in which Asians now 

participate, are clearly imperiled if the 

decision of the court below becomes the 

law of the land.

The parties have consented to the filing 

of this brief and letters of consent have 

been filed with the Clerk.

SUMMARY OF ARGUMENT

Historic legally-imposed exclusicr. from 

equal participation in the economic life 

of the nation remains substantially un­

remedied for Asians as well as members of 

other racial minorities. When each cf the



-5

principal Asian American groups Chinese, 

Japanese and Pilipinos — in turn came into 

competition for employment with white labor 

each was subject to imposition of invidious 

racial legislation, much like the Black 

Codes, in the western states, and national 

prohibition of naturalization and further 

immigration. These legal restraints have 

now lapsed, but their vestiges and in­

equality remain. The present status of 

the Asian minority illustrates the prac 

tical necessity for affirmative action 

programs in employment: Asian Americans

earn less than white Americans even when 

their education and occupational attain­

ments are greater. Governmental and 

private efforts to overcome the impact of 

legally compelled unequal employment



opportunity through affirmative action pro­

grams are therefore proper and necessary.

a r g u m e n t

1 • ASIAN AMERICANS ARE A RACIAL 
MINORITY HISTORICALLY SUBJECT 
TO INVIDIOUS RACIAL DISCRIMINA­
TION AND EXCLUSION SANCTIONED 
BY LAW.

The circumstances giving rise to this 

Court's decision in Yick Wo v. Hopkins.

118 U.S. 356 (1886)— discriminatory exclu­

sion of Asians from business enterprise 

and employment in the western states— were 

neither anomalous nor unusual. Instead, 

the ordinance regulating laundry buildings 

which San Francisco authorities administered 

"with an evil eye and an unequal hand" to 

exclude Chinese from an entire occupation, 

and for which "no reason for it exists 

except hostility to the race and national-



-7-

ity to which petitioners belong," 118 U.S. 

at 3 7 4 , was but one, and by no means the 

most invidious, part of the structure of 

racial discrimination and exclusion sanct­

ioned by law. The breadth and scope of the 

resulting legally-enforced badge of race 

and color has no parallel in our nation's 

history, except the Black Codes of the 

southern states which gave rise to the 

Fourteenth Amendment. Like the Black Codes, 

the primary objective of the laws to which 

Chinese, Japanese and other Asians were 

subjected was discrimination and exclusion 

in the area of livelihood. Indeed, the 

history of Chinese, Japanese and Pilipinos 

in the western states, to which they first 

came, is largely the history of legally- 

imposed exclusion from the mainstream of



-8

economic life and restriction to separate 

and lesser employment opportunity. These 

laws included state and local prohibitions 

on business enterprise and employment, 

national prohibition of naturalization and 

further increase in their numbers, and 

segregation in public education, which is 

"a principal instrument in awakening the 

child to cultural values, in preparing him 

for later professional training, and in 

helping him to adjust normally to his 

environment," Brown v. Board of Education. 

347 U.S. 483, 493 (1954). This condition

is not remote in time: legally—imposed

discrimination and exclusion has faded in 

recent years, but the badge of race and 

color persists.

Substantial Chinese immigration began



-9-

in 1847, with most immigrants arriving as 

contract labor in mining, railroad, agri­

culture and other menial labor. Chinese 

laborers were a significant and the largest 

racial minority throughout the western 

states. As the Chinese came into competi­

tion with whites for employment after 1860, 

they were excluded from most labor and 

forced by legal and extralegal means into

ghettos 

cisco.

in a few cities, notably San Fran 

By 1900, Chinese were either self-

1. The history of the Chinese in the West 
is set forth in M. Coolidge, Chinese Immi­
gration (1909); E. Sandmeyer, The 
Chinese Mov^^i- in California (1939); S. 
Lyman, The Asian in the West 9 26 (19 ),
S. Lyman, Chinese Americans (1974); see  ̂
also P. Chiu, Chinese Labor in California^  
1850-1880 (1967); I- Light, Ethnic Enter,
orise in America: Business and Welf^£g.
Among Chinese, Japanese and Blac s.



-10-

employed in laundries, restaurants, and 

stores serving the Chinese community or 

employed in the general labor market as 

domestic servants, cooks and gardeners. 

Chinese, like black persons, were pre­

vented by racial discrimination from any 

entry into other kinds of employment until 

after the Second World War.

Japanese immigration began in the 186o's, 

and, as did the Chinese before them, Japan­

ese' worked in agriculture, railroad, mining
1 /

and other menial work. Japanese were

effectively restrained by legally-imposed

discrimination to work in truck farming,

2. The history of the Japanese in California 
is set forth in Y. Ichihashi, Japanese in 
the United States, (1932); R. Daniels, The 
Politics of Prejudice (1962); H. Kitano, 
Japanese Americans: The Evolution Qf a
Subculture (1969K " ~



-11-

gardening and self-employment serving the

Japanese community in California. Pilipino

immigration followed the Spanish-American

War with their recruitment as farm labor-
3/

ers. Pilipinos, somewhat like the 

Japanese, were restricted largely to 

migratory farm labor in the large west 

coast farming areas until the postwar era.

At every step in the process of restric­

tion of Asian Americans to a separate and 

unequal sphere of economic endeavor and

employment, the force of law was resorted
1 /

to. Thus, Chinese miners were forced
3. The history of the Pilipino in the con­
tinental United States is set forth in B. 
Laster, Filipino Immigration (1931); H. 
Melendy, Asians in America: Filipinos, 
Koreans and East Indians 17-110 (1977).
4. The history of legally-enforced dis­
crimination and exclusion of Asians is set 
forth in F. Chuman, The Bamboo People:

(footnote continued on next page)



■fe

-12-

out of mining through imposition of a
5/

miner's tax enforced only upon them.

The California State Constitution of 1879 

expressly forbade the employment of any 

Chinese, directly or indirectly, by any 

California corporation or governmental 

entity. While that provision did not 

survive constitutional challenge, other 

prohibitive statutes and ordinances were 

widely enacted throughout the western * * * * 5 6

(footnote continued from previous page)
Tjie Law and Japanese Americans (1976) • e
Sandmeyer, The Anti-Chinese Movement In 
California (1939); M. Coolidge, Chinese
Immigration (1909). See general Tv. P. 
Murray, States 1 Laws on Race and Color 
(1 9 S 1 ) .
5. Foreign Miners' License Tax, Act of 
Apr. 13, 1850, ch. 97, § 1 et sec..
1850 Cal. stat. 221. See M. Coolidge, 
Chinese Immigration (1906).
6 . California State Constitution of 1879,
Art. XIX, §§ 2-3. See E. Sandmeyer, The 
Anti-Chinese Movement In Ca1ifnrnia 11-1A 
( 1 9 3 9 ) . ------------------



-13-

states. Other statutes, particularly

aimed at Japanese, restricted the owner-
87

ship of land. Moreover, these prohibi­

tions were part of a system of laws that 

restrained Asians in the enjoyment of 

virtually every civil right, most notably

V

7. See, e.g.. Idaho Constitution of 1890, 
art. 13, § 5 (public works); Yick Wo v. 
jj°Pkins> U S  U.S. 356 (1886) (San Francisco 
laundry building ordinance); In re Hong 
Yen Chang, 84 Cal. 163 (1890) (attorneys); 
In re Yamashita. 30 Wash. 234, 70 P. 482 
(I902); Asakura v. city of Seattle. 265 
U.S. 332 (1924) (pawnbrokers); Yamashita
—  Hinkle, 260 U.S. 199 (1922) (incorpora- 1 
tion of businesses).

8 . See, e.g.. Terrace v. Thompson. 263 
U.S. 197 (1923) (Washington statute); Webb 
v. O'Brien, 263 U.S. 313 (1923); Frick~7T~ 
Webb, 263 U.S. 326 (1923); Cockrill v. 
California, 268 U.S. 258 (1924) (California 
statutes). See generally M. Konvitz, The 
Alien and the Asiatic in American Law 157- 
70 (1946); McGovney, The Anti-Japanese
Land Laws of California and Ten Other States 
35 Cal. L. Rev. 7 (1947); Ferguson, The 
California Alien Land Law and the Fourteenth 
Amendment, 3 5 Cal. T,. Rpu po/|v).



public education, infra. As with other 

official racial segregation and discrimi­

nation, equally debilitating and pervasive 

private discrimination was fostered.

-14-
9/

Legally-imposed restrictions on livelihood 

did not end in the western states until * 4

?• — --e' Calif°rnia Constitution of
1879, art. II (Chinese denied right to 
vote); Idaho Constitution of 1890 (persons 
o Mongolian descent prohibited from votin 
and serving as jurors); People v. Han
4 Cai 399 (1854) and Spier v. See Yu p !
t tL ' . 73 ,(1855) (Chinese prevented from 
testifying in courts); Hirabayashi v 
United States, 320 U.S. 81 (1943); Kore-
nyatsu v. United States. 323 U.S 214----
(1944); Executive Order 9066, rescinded 
by Presidential Proclamation No. 2 7 1 4 of 
Feb 19, 1976 (Japanese placed in i^ern- 
ment camps during World War II); Mississip­
pi Constitution, art. 14, § 263 (1942)- 
Miss. Code Ann. § 459 (1942) (marriages 
between white persons and Mongolians pro-

 ̂ '* Mont- Rev- Codes Ann. §§ 5701
5702 (1935) (marriages between white 
persons and Chinese or Japanese void)- 
S.D. code § 14.0106 (1939) (marriages'
a n d ^ r  W!llte Pers°ns and Koreans, Malayans and Mongolians void); Utah Code Ann. S 40-
1-2 (1943Xmarriages between white persons 
and Mongolians prohibited).



the postwar era.

The legal structure of discrimination

and exclusion extended to prohibitions on
11/

naturalization and immigration. Such

laws and statutes were expressly intended 

to extinguish or limit Asian competition 

to white business enterprise and employ­

ment. They applied to each of the major
12/

Asian groups in turn, first the Chinese,

10. See, e.g., Oyama v. State of Califor­
nia, 332 U.S. 633 (1948) (California Alien
Land Law of 19 20) ; Takahashi v. Fish and 
Game Comm'n, 334 U.S. 410 (1948) (commer­
cial fishing license).
11. The history of the exclusionary laws
is set forth in M. Coolidge, Chinese Im­
migration (1909); E. Sandmeyer, The Anti- 
Chinese Movement in California (1939); F. 
Chuman, The Bamboo People: The Law and
Japanese Americans (1976) ; see generally
F. Auerbach, Immigration Laws of the United 
States (1955); R. McKenzie, Oriental Exclu­
sion (1971).
12. See The Chinese Exclusion Case, 130 
U.S. 581 (1889); In re Ah Yup, 1 F. Cas.
223 (C.C. Cal. 1878); see also United States 
v. Wong Kim Ark, 169 U.S. 649 (1898) and 
cases cited therein.



-16-
13/ 14/

the Japanese and then Pilipinos. The

effect of this discrimination was national

in scope: effectively branding every

Asian on the basis of race and color and

nationality an alien unfit for citizenship

and further immigration. This historically

unique restriction did not finally end 
15/

until 1965.

The history of public education for 

Asians in California is a "classic case 

of [the] de_ jure segregation involved in

13. See Ozawa v. United States, 260 U.S 
178 (1922); see also, Immigration and 
Nationality Act of 1952, 8 U.S.C. § 1101 
et seq.

14. Philippine Independence Act, 48 Stat. 
456 (1934).

15. Immigration and Nationality Act of 
1965, 8 U.S.C. §§ 1151-1156.



-17-

Brown v. Board of Education," Guey Heung 

Lee v. Johnson, 404 U.S. 1215, 1215-16

(1971) (Douglas, J., as Circuit Justice).

California's education law was formally 
17/

amended in 1860 to permit separate

schools for the education of "Negroes,
18/

Mongolians and Indians." The consti-

16/

16. The history of school segregation in 
California is reviewed in C. Wollenberg,
All Deliberate Speed, Segregation and 
Exclusion in California Schools, 1855-1975 
(1976) [hereinafter "Wollenberg"] and J. 
Hendrick, The Education of Non-Whites in 
California, 1849-1970 (1977) [hereinafter 
"Hendrick"]. Pertinent sources and studies 
are cited. See also M. Weinberg, A Chance 
to Learn (1977).

17. 1860 Cal. Stats., ch.329, § 8 ; see 
also 1863 Cal. Stats., ch.159.

18. See Wollenberg at 10-14.



-18-

was upheld in Ward v. Flood. 48 Cal. 35

(1874), but the statute was repealed for
19/

economic reasons. Following unsuccess­

ful efforts to exclude Chinese and Japan­

ese children from public education alto- 
20/

aether, specific statutory authority

was created for the establishment of

separate schools for Chinese, Japanese
21/

and Indian children. The constitu—

tutionality of the separate school law

19. General School Law of California,
§ 1652 at 14 (1880); see WOllenberg at 
24-26.

20. See, e.g.. Tape v. Hurley, 66 Cal.
473, 6 P. 129 (1385) (Chinese); Aoki v. 
Peane (Japanese), discussed in WOllenberg 
at 48-68.

21. 1885 Cal. Stats., ch.117, § 1662 
(Chinese); 1893 Cal. Stats., ch.193, § 1662 
(Indians); 1921 Cal. Stats., ch.685, § 1 
(Japanese). See generally Wollenberg at 
28-107; Hendrick at 11-59.



-19-

Code was upheld in Wong Him v._Callahanx_

119 F 381 (C.C. Cal. 1902). These pro-
22/

visions were not repealed until 1947, 

see Guey Heung Lee v. Johnson, supra, 404

t i o n a l i ty o f  t h e  C a l i f o r n i a  E d u c a t i o n

U.S. at 1215.

Elsewhere, Asians were treated as

"colored persons" subject to the same

racial segregation imposed upon black

school children, see, e. g. , Gong Lum v_._
23/

Rice, 275 U.S. 78 (1927).

22. 1947 Cal. Stats., c. 737, § 1. The 
repeal was precipitated by Mendez— y_̂_ 
Westminster School District, 64 F . Supp. 
544 (C.D. Cal. 1946), aff1d, 161 F .2d 744 
(9th Cir. 1947) (Mexican-Americans).

23. See generally J. Loewen, The Chinese 
in the Mississippi Delta (1973).



-20-

Notwithstanding the repeal of the 

California separate school law, "[jJudi­

cial decrees recognizing discrimination 

m  public education in California testify 

to the fact of widespread discrimination 

suffered by California-born minorities]," 

University of California Regents v. Bakke. 

— ' 57 L -Ed-2d 750, 822 (Brennan, 

J ')* In Particular, there have been

recent school desegregation 

areas of significant Asian school popula- 

tion, such as San Francisco, Los Angeles, 

Pasadena, San Diego, Oxnard and Stock- 

ton, which include a substantial

23. See also Hendrick at 104-06; Califor­
nia state Dept, of Education, Racial & 
Ethnic Survey of California's Public 
Schools, Fall 1966, iii (1967),
24. San Francisco: Johnson v. s*n Fran_ 
£isco Unified School District. 75Q p 
(footnote continued on next page)



-21-

(footnote continued from previous page) 
Supp. 1315 (N.D. Cal. 1971), app. for
stay denied, Guev Heunc Lee_v̂ — Johngon,
404 U.S. 1215 (1971), vacated & remanded, 
500 F.2d 349 (9th Cir. 1974); San Fran­
cisco Unified School District v. Johnson,
3 Cal.3d 937, 943, 92 Cal. Rptr. 309, 311, 
479 P.2d 669, 671 (1971) (en banc), cert. 
denied, 401 U.S. 1012 (1971); Lau v . 
Nichols, 414 U.S. 563 (1974) (Title VI
violation found).

Los Angeles: Crawford v. Board of Edu- 
cation, 17 Cal.3d 230, 130 Cal. Rptr. 724, 
551 P.2d 28 (1976); see Kelsey v. Wein-
berger, 493 F.2d 701, 704 n.19 (D.D.C.
1974) (HEW determination of violation of 
Emergency School Aid Act of 1972, 20 U.S.C. 
§ 1600 et seq., noted).

Pasadena; Spangler v. Pasadena City Bd. 
of Education, 311 F. Supp. 501 (C.D. Cal. 
1970);Jackson v. Pasadena City School 
District, 59 Cal.2d 876, 31 Cal. Rptr.
606, 382 P.2d 878 (1963).

San Diego: People v. San Diego Unified 
School District, 19 Cal. App.3d 252, 96 
Cal. Rptr. 658 (Ct. App. 1971) (14th
Amendment violation), cert, denied, 405 
U.S. 1016 (1972).

Cxnard: Soria v. Oxnard School Dist. Bd. 
of Trustees, 386 F. Supp. 539 (C.D. Cal. 
1974), on remand from 488 F.2d 577 (9th 
Cir. 1973).
(footnote continued on next page)

m a j o r i t y  o f  t h e  e n t i r e  A s i a n  A m e r i c a n



-22-

1972, Congress determined that Asians 

remain a group "who, as a result of 

language barriers and cultural differences, 

do not have equal education opportunity." 

Emergency School Aid Act of 1972, 20 U.SC.

§ 1619 (9) (A).

25/
population of the State. Moreover, in

(footnote continued from previous page) 
Stockton: Hernandez v. Board of Educa­
tion of Stockton Unified School Dist. .
Civ. Action No. 101016, San Joaauin Super. 
Ct. (Oct. 9, 1974).

25. See California State Advisory Comm 
U.S. Comm1n on Civil Rights, Asian-Amer 
cans and Pacific Peoples: A Case of
Mistaken Identity 14-16 (1975).

• /



-23-

II. ASIAN AMERICANS ARE STILL 
SUBJECT TO THE VESTIGES OF 
PRIOR RACIAJ. DISCRIMINATION 
AND EXCLUSION COMPELLED BY LAW^

While the express legal structure and 

sanction that "put the weight of govern - 

ment behind racial hatred and separatism" 

has faded, its effects have not been 

eliminated root and branch. The legis­

lative history of Title VII of the Civil 

Rights Act of 1964 clearly indicates that 

Congress recognized the need to protect 

Asian Americans against continuing employ 

ment discrimination. In the debases on 

the 1972 amendments to Title VII, sena­

tor Williams noted that Asians and other 

minority worker's had been "relegated to

2 6~ University of California Regents v._
Bakke, __U.S.__, 57 L.Ed.2d 750, 813
(1978) (Brennan, J.).



-24-

the lowest paying, least desirable jobs—  

if indeed, they get hired at all." 118 

Cong. Rec. 294 (1972). Congress observed 

that such discrimination against Asians 

was based in part on their national origin, 

see, e.g ., 117 Cong. Rec. 32094 (1971) 

(comments of Reps. Pucinski and Bent), 

and that, in addition, Asian women were 

likely to be “victims of double discrim­

ination." 117 Cong. Rec. 32096 (1971) 

(comments of Rep. Abzug). Senator Cran­

ston also remarked in a letter to the 

Civil Service Commission chairperson that 

the 1972 amendments to Title VII were 

designed to "deal with discrimination in 

Federal Government employment and to open 

up more high level positions for minorities, 

particularly Mexican-Americans, blacks.



-25-

Rec. 4933 (1972). Federal agencies

charged with enforcement of Title VII, 

Executive Order 11246 and other civil 

rights guarantees have similarly included

Asians as a group protected by anti-
27/

discrimination guarantees.

27. See, e.Q., 29 C.F.R. PaTt 1602 (Title 
VII employer reporting and record keeping 
requirements); 41 C.F.R. Parts 60-2 and 
50-4 (Executive Order 11246 regulations 
for affirmative action programs); 28 C.F.R. 
Part 42 (LEAA regulations, see §§ 42.203(d) 
and 42.302(e)); 28 C.F.R. Part 42, subpart 
F (Justice Dept. Title VI guidelines for 
federal agencies, see §§ 42.402(e)(3));
28 C.F.R. Chapter I, Part 50, § 50.14 
(Justice Dept, federal executive agency 
guidelines on employee selection procedures, 
see § 50.14(4)); but see New York State 
Advisory Committee, U.S. Comm1n on Civil
Rights, The Forgotten Minority;-- A s i a n

Americans in New York City 28, 45 
(1 9 7 7 ) (federal and local officials criti­
cized for failure to recognize Asians as 
minority and to enforce civil rights 
statutes and laws).

I n d i a n s ,  O r i e n t a l s  a n d  women." 118 Cong.



•l

It is the experience of amici that

Asian Americans have been reluctant to

assert their legal rights in court because

they have historically been subjected to

a wide range of legally-imposed discrimi- 
28/

nation. However, , an increasing number

of employment discrimination cases have

been brought in recent years by Asian

Americans or in their behalf alleging dis-
29/ 30/

crimination in training, hiring,

2S. Congress perceived the subtle nature 
of discrimination against Asian Americans 
today and their reluctance to seek legal 
redress, noting that "cases involving dis­
crimination against Orientals have been 
practically invisible under Title VII."
117 Cong. Rec. 32096 (1971) (comments of
Rep. Abzug).
29. e .g ., United States v. Operating Engi­
neers, 4 F.E.P. Cases 1088 (N.D. Cal. 1972) 
(union apprenticeship and training programs 
discriminate against black, Mexican, Orien­
tal and other minority applicants).
30. E-g., Chinese for Affirmative Action 

(footnote continued on next page)

-26-



-27-
31/ 11/

promotions working conditions and 
33/

terminations.

(footnote continued from previous page) 
v. Federal Communications Comm'n, 16 E.P.D.
5 8290, at 5485 (D.C. Cir. 1978) (en banc) 
(Robinson, J., dissenting) (statistics 
established prima facie case of discrimi­
nation against Asian Americans by San 
Francisco television station) ; Tin 3.
Pilipinos for Equal Employment v._Califor­
nia Blue Shield, N.D. Cal. Civ. Action No.
C 73-1085-CBR, consent decree approved 
Nov. 4, 1974 (Class of Asian Americans
denied hiring and managerial and super­
visory promotions); United States— v.— Citv 
of San Diego, S.D. Cal. 76-1093, consent- 
decree approved Dec. 20, 1977 ; United 
States v. County of San Diego, S.D. Cal. 
76-1094, consent decree approved May 6,
1977 (women, blacks, Hispanics and Asians 
claim discrimination in hiring for all 
county and all city positions except 
police); officers for Justice and United 
States v. Citv and County of San Francisco, 
N.D. Cal. C-73-0657-RFP, C-77-2884-RFP 
(challenge to entry level and sergeants 
civil service examinations, and to failure 
to hire bilingual officers, includes 
Asians).
31. E.q., Verzosa v. Merrill Lynch, Pierce,
Fenner & Smith, __F.2d__, 17 E.P.D. 5 8518
(footnote continued on next page)



-28-

(footnote continued from previous page)
(9th Cir. 1978) (Filipino denied 
promotion to account executive); Huan- v. 
College of the Holy Cross. 436 F. Supp.
639 (D. Mass. 1977) (Chinese political 
science professor denied tenure); Martinez 
v. Bechtel Corp., 10 E.P.D. 10,570 (N.D. 
Cal. 1975) (Class of Pilipino women denied 
promotion to higher—level management 
positions); National Organization forwomen 

Bank of California. 5 E.P.D. ^ 8617 
(N.D. Cal. 1973) (Filipinos included in 
consent decree requiring bank to establish 

irmative action plan); Saunders v. Naval 
Air Rework Facility. N.D. Cal. Civ. Action 
No. C-74-0520, consent decree approved 
Sept, z.8, 1978 (class of employees claiming 
denial of supervisory positions includes 
blacks, Mexican-Americans and Pilipinos).

32. E_. g . , Domingo v. New England Fish Co. 
445 F. Supp. 421 (W.D. Wash. 1977) (find-"’ 
ing of discrimination against Pilipino 
cannery workers in 30b placements and 
housing conditions).

33. E .g ., Wona v. The Bon Marche. 508 
F.2d 1249 (9th Cir. 197 5) (Chinese pharma­
cist allegedly terminated because of race).



-29-
Furthermore, demographic information 

establishes that while Asians are the 

racial minority which has made the great­

est progress in the post-war era, discrim 

ination still operates to significantly 

disadvantage Asian American employment

opportunities.

in 1970, well over a third lived m  

California and well over a majority m
34/

, . ct-ates and estimates ofthe western sraue^/

all Asian groups in 1970 range up to

I T " H e a l t h  Education 
s, weliile. Urban Associates, Inc.,
of Ethnic Minorities Based on the
77777 Vol. II: Asian_Miericans 16 1/ _

(Th1e"ein_after "HEW Study")); see oen^r^L, —  
Dept, of Commerce, Bureau of t '
oon.n. of the Unit_ed_S_ta_tesj— L2Z2-I Subi£C_

rhinese, and F i l i p i n o s  in the United 
States (1973) .



-30-

2,089,932. The state of California

estimates that between 1970 and 1977, the

Asian American population doubled from

549,248 to 1,290,000 or 5.4% of the

state's population, almost all in the San

Francisco and Sacramento areas and Los

Angeles and San Diego Counties where they
36/

form substantial minority populations.

35/

35. New York State Advisory Comm, to the 
U.S. Comm'n on Civil Rights, The Forcotten 
Minority; Asian Americans in New York City 
4 (Nov. 1977) (estimate including Chinese, 
Pilipino, Hawaiian, Korean, Japanese, Gua­
manian, Samoan, Malayn, Polynesian and 
Thai groups). It should be noted that the 
Asian population is undercounted by the 
Bureau of the Census, HEW Study at 4.
36. See U.S. Dept, of Transportation,
Federal Highway Admin., F. Wu, P. Chen, Y. 
Okano, P. Woo, Involvement of Asian Ameri­
cans in Federal-Aid Highway Construction 
15-17 (March 1978) (hereinafter "DOT Study") 
(California's population in 1977 estimated 
to be 63.3% white, 17.6% Mexican American, 
6.9% black, 5.4% Asian American, and 4.8% 
others).



-31-

In 1970, Asians were already 15,2% of the 

San Francisco County population and 3.5,o 

of the Los Angeles population. New York 

City, the other area of Asian concentra­

tion, estimated that by 1975 the Asian 

American population had doubled since 1970

and that the Asian population was 2.9% of 
37/

the total.

The postwar era has seen Chinese, 

Japanese and Pilipinos entering the econ­

omic mainstream in greater numbers, but 

many Asians continue in traditional jobs 

to which they were once largely restricted 

by law. A quarter of Chinese men are 

employed as service workers in restaurants 

and laundries, and most Chinese in "mana-

37. See New York State Advisory Comm., U.S. 
ComnfrTon Civil Rights, The Forgotten 
Minority, supra at 5.



-32-

proprietors of small retail and food stores

or restaurants in Chinatowns throughout 
38/

the nation. 40% of Pilipino men work

in traditional low-skilled, low wage menial

laborer and service occupations, many as 
39/

farm workers. After wartime internment, 

Japanese were legally deterred from and 

did not return to traditional rural employ­

ment and enterprises.

The educational attainment of Japanese 

and Chinese Americans exceeds that of she

copulation as a whole, although there has
40/

been a recent decline. The higher

g e r i a l " p o s i t i o n s  a r e  a c t u a l l y  o w n e r s  a n d

38. HEW Study at 91-92.

39. HEW Study at 93-95.
40. U.S. Comm, on Civil Rights, Social 
Indicators of Equality for Minorities and 
Women 9-16 (Aug. 1978) [hereinafter "CCR 
Study"]; HEW Study at 70.



-33-

level of educational attainment of these

Asian groups distinguish them from other
41/

racial minorities. However, on the

occupational overqualification index,

Asian Americans (except for Chinese males

at the high school level), like other

racial minorities, are more overqualified

for their occupations than white persons.

This is true of high school graduates in

occupations typically not requiring a high

school diploma and college graduates m

occupations typically not requiring a
42/

college degree. In addition, earnings

tend to be higher for people with higher 

educational attainment for all groups, 

but all racial minorities, including Asians
41. CCR Study at 10-15.
42. CCR Study at 17-22.



-34-

earn less than whites with the same edu-
43/

cational attainment. "In 1976, Japanese,

Chinese and Pilipino Americans were much

more likely to have completed a college

education than majority males but, as

college graduates, they earned far less
44/

than majority males." Consistent with

their higher educational attainment, more

Chinese and Japanese men have prestigious

occupations than other minority and white 
45/

persons, although Asian Americans

exhibit as much or more occupational seg-
46/

regation as other racial minority groups.

43. CCR Study at 22-27, •

cn00

44. CCR Study at 27.
45. CCR Study at 34-38, 90. But see
suora at 31-32.
46. CCR Study at 39-44, 90 ("Occupational
segregation" defined as degree of dissimi­
larity of occupations between minority 
groups and white persons measured by the 
percentage of a group who would have to 
change occupations in order to have the 
same occupational distribution as white 
persons).



-35-

For all minority groups, occupational
47/

segregation is increasing. The family

income of Japanese Americans exceeds that 

of white, other Asian and other minority 

groups, but after statistically equalizing 

levels of educational attainment, occupa­

tional prestige, age, hours and weeks 

worked, and cost of living m  different 

localities, ad̂ _ racial minorities con­

sistently earn substantially less than
48/

white persons.

Other studies have made similar find­

ings. A U.S. Department of Health, Edu­

cation and Welfare study confirms that 

"when educational attainments are taken 

into account in all three Asian subgroups.

47. CCR Study at 39-44, 90.

t

00 CCR Study at 47-56, 90.



-36-

the proportion of workers employed in 

higher status jobs is not equal to the 

proportion in the total population" and 

that "it is easier for persons in the 

majority population to obtain employment 

in higher level jobs without a college
49/

degree than it is for the Asian Americans."

The HEW study also found an income lag for 

Asians with comparable education and occu­

pation to that of whites, higher household 

income due to greater likelihood of both 

husband and wife working, and substantial

pockets of poverty, particularly in San
50/

Francisco and New York City.

49. HEW Study at 103; see id. at 82-103.
50. HEW Study at 104-131. The study also 
found higher income levels largely attri­
butable to a greater proportion of Asians 
in Hawaii, where income and standard of 
living are higher, compare J. Young, Dis- 
(footnote continued on next page)



-37-
Economic studies using various statistical 

models demonstrate that Asians have lower 

earnings because they receive lower returns 

from education than whites, are excluded 

from high earning occupations, do not 

advance at the same rate as whites in par­

ticular occupations, and experience greater 

unemployment, and that such disparities 

are not statistically accountable but fo*.

(footnote continued from previous page) 
crimination. Income, Human Capital Invest̂ . 
ment And Asian-Americans 89-SO (1977).
For statistics on urban Asian communities 
wi+-h indicia of economic and employment 
problems most similar to black and other 
racial minorities, e.g., San Francisco and 
New York City, see New York State Advisory 
Comm., U.S. Comm1n on Civil Rights, The 
Forgotten Minority: Asian Americans in
New York City (Nov. 1977); California State 
Advisory Committee, U.S. Comm'n on Civil 
Rights, Asian Americans and Pacific Peoples; 
A Case of Mistaken Identity (Feb. 1975).



-38-

racial discrimination.

H I .  VOLUNTARY AFFIRMATIVE ACTION 
PROGRAMS ARE NECESSARY AND 
PROPER TO GUARANTEE EQUAL 
EMPLOYMENT OPPORTUNITY FOR 
AG TAN AMERICANS.

51/

The American dream is not yet within

reach of most Asian Americans. It is

true that legally-imposed discrimination

and exclusion has ended, that formal pro-

51. U.S. Dept, of Commerce, Manpower 
Admin., H. Wong, The Relative Economic 
Status of Chinese, Japanese,— Blacky— siDiL 
White Men in California (1974); J. Young, 
Discrimination, Income, Human Capital^ 
Investment, and Asian-Americans (1977);
M. Katzman, “Opportunity, Subculture and 
the Economic Performance of Urban ̂ Ethnic 
Groups," 28 American J. of Economics & 
Sociology 351-366 (1969); M. Katzman,
"Urban Racial Minorities and Immigrant 
Groups: Some Economic Comparisons," 30
American J. of Economics & Sociology 16-25 
(1971); W. Fogel, "The Effect of Low Edu­
cational Attainment On Income: A Compara­
tive Study of Selected Ethnic Groups,
1 J. of Human Resources 22-39 (1966).



-39-

hibition of discrimination on the basis 

of race and color is firmly established 

in American life, and that, compared to 

other racial minorities, Asian Americans 

have been better able to overcome obstacles 

to full participation in American life 

since the Second World War. However, 

although significant numbers of Asian 

Americans have overcome obstacles to 

achieve notable educational and occupa­

tional success, such success has not wholly 

extinguished the badge of inferiority of 

race and color. Indeed, there is no 

clearer demonstration of the intractability 

of state-imposed racial inferiority than 

the fact that the earnings and employ­

ment opportunity of Asian Americans remain 

less than that of white Americans despite



-40-

greater educational and occupational 

attainment. Therefore, affirmative action 

in employment is a necessary specific cure 

for remaining vestiges of legally-imposed 

exclusion of Asian Americans from full 

participation in the economic life of 

the nation.

For Asian Americans, affirmative action 

orograms do no more than provide a spe­

cific remedy for the vestiges of the prior 

state-imposed discrimination and exclusion 

that effectively restricted Asians to 

restaurant, laundry, farm labor and other 

low-paying traditional occupations separate 

and apart from the dominant society, 

supra. Without such programs, Asian 

Americans, particularly blue collar 

workers, do not have access to many jobs,

*C*



-41-

especially skilled craft jobs such as 

the position in question in the instant 

case. For instance, Asians, like other 

minorities, have been unable to enter

skilled trades in the construction indus­

try in any appreciable numbers in areas 

of substantial Asian population because 

of racially exclusionary policies of con­

struction unions; indeed, they are prac­

tically invisible, see, e . g.., United

States v. Operating Engineers, 4 F.E.P.
52/

Cases 1088 (N.D. Cal. 1972). One study

found that Asian participants in the Fed-

527 See also U.S. Dept, of Labor, Man­
power Admin., B. Sung, Chinese American 
Manpower and Employment 184, 187-189
(1975) (San Francisco and New York City 
construction union statistics); see gen­
erally U.S. Comm'n on Civil Rights, The 
Challenge Ahead. Equal Opportunity in 
Referral Unions (1976).



-42-
eral Highway Administration highway con­

struction-related trades and apprentice­

ship training, who successfully completed 

their training, nevertheless were unable 

to enter apprenticeship programs because 

of racial discrimination against Asians 

within the construction industry in Calif 

ornia. ^  Another striking example is 

the recent protracted efforts of amicus 

Asian Americans for Equality, other g P 

and government agencies to convi. 

builders and contractors to employ Asians

in trainee construction jobs at Confucius

Plaza, a federally-supported residential

and commercial complex in the heart of

New York City's Chinatown.
53 DOT Study at 41-42.
54*. See New York State Advisory Conmu;
u.s. cSSm'n on Civil Rights. The Forg_----
Minority, supra at 28-29.



- 4 3 -

For this reason, federal agencies 

charged with enforcement of civil rights 

statutes and executive orders have included 

Asian Americans among racial minorities 

for whom participation in voluntary affirm­

ative action programs is deemed necessary. 

See, e . g . , U.S. Department of Labor, Office 

of Contract Compliance, Affirmative Action 

Programs of Government Nonconstruction 

Contractors, 41 C.F.R. Part 50-2, effective 

July 1, 1968 (35 Fed. Reg. 2586), last

amended October 20, 1978 (43 Fed. Reg.

49249 (§ 60-2.11 (a)); Affirmative Action

Programs of Government Construction Con­

tractors, 41 C.F.R. Part 60-4, effective 

October 20, 1978 (43 Fed. Reg. 49254)

(§ 60-4.3); see also 41 C.F.R. § 60.50.1(d)

Law Enforcement Administration Agency,



-44-

Equal Employment Opportunity Program 

Guidelines, 28 C.F.R. Part 42, subpart E 

(43 Fed. Reg. 28802), effective June 30, 

1978 (28 C.F.R. § 42.302(e)); Equal 

Employment Opportunity Commission Guide­

lines on Affirmative Action, adopted 

December 11, 1978, 29 C.F.R. Part 1608 

effective January 11, 1979 (44 Fed. Reg.

4422) (see §§ 1608.4 and 1608.5 incor­

porating standards of the Department ô. 

Labor) . State and local governmental ena 

ties have also included Asians in their 

affirmative action programs. See, e_^-, 

Hiatt v. city of Berkeley,, 149 Cal. Rptr. 

155, 85 Cal. App.3d 29 (Cal. Ct. App. 

1978); Hull v. Cason, 47 U.S.L.W. 2146 

(Cal. Ct. App., Dec. 26, 1978) (fire 

department affirmative action programs in

7;



-45-
Berkeley and Oakland, California, including 

Asians, held unconstitutional).

Without affirmative action, amici 

respectfully submit that the entrenched 

stigma of race and color once imposed by 

force of law will continue to handicap 

Asian Americans who seek to enjoy the 

guarantee of equal employment opportunity 

in the federal Constitution, statutes and 

executive orders. Absent such affirmative 

efforts by government and private employ­

ers, those guarantees will never be 

effectively and practically enforced. 

Government and private employers can and 

should examine whether their employment 

policies have the effect of denying equal 

employment opportunity because they have 

previously subjected a racial minority to



-46-

discrimination and exclusion from the 

economic life of the nation, cf. Gaston 

County v. United States, 395 U.S. 285,

293 (1969). Furthermore, government and

private employers should initiate properly 

considered remedial measures to assure 

that their employment policies take account 

of artificial barriers which have their 

roots in prior discrimination and exclu­

sion. It is clear that Asian Americans 

have been guaranteed equal opportunity 

for livelihood since 1886 when this Court 

declared that " [t]hough the law itself 

be fair on its face and impartial in 

appearance, yet, if it is applied and 

administered by public authority with an 

evil eye and an unjust hand, so as prac­

tically to make unjust and illegal dis-



-47-

criminations between persons in similar 

circumstances, material to their rights, 

the denial of equal justice is still with­

in the prohibition of the constitution," 

vir»k Wo v- Hopkins,, 118 U.S. 356, 373-74.

Permitting voluntary affirmative action 

programs, however, is necessary today to

give life to that pledge.

Asian Americans as well as blacks were 

subjected to discriminatory legislation, 

notably in the field of employment, supra^ 

Furthermore, this Court long ago recognized 

that the protections of the post-Civil War 

amendments and the civil rights acts were 

specifically intended to protect tne 

rights of "Chinese coolie labor" as well 

as black freedmen, Slaughter House .Cases., 

83 U.S. 36 (1873), and that "the applica-



-48-

tion of the Amendment to the Chinese race 

was considered and not overlooked,

United States v. Wong Kim Ark, 169 U.S.

649, 697-699 (1898) (citing legislative 

history of the civil rights acts and 

Fourteenth Amendment). The post-Civil 

War amendments were not intended to 

prohibit measures designed to remedy the 

effect of the nation's past treatment of 

racial minorities. The Congress that 

passed the Thirteenth and Fourteenth 

Amendments and early civil rights acts is 

the same Congress that passed the 1 8 6 6  

Freedmen's Bureau Act, which provided many 

of its benefits and protections only to 

black freedmen then subject to the Black 

Codes, University of California Regents 

v. Bakke, supra, 57 L.Ed.2d at 838-39

■ f



-49-

(1978) (Marshall, J.). "Such a result 

would pervert the intent of the framers 

by substituting abstract equality for the 

genuine equality the amendment was intended 

to achieve," id.

Title VII recognizes that Asians and 

other minority workers are still "relega­

ted to the lowest paying, least desirable 

jobs— if indeed, they get hired at all,"

118 Cong. Rec. 294 (1972). "Executive, 

judicial, and congressional actions sub­

sequent to the passage of Title VII con­

clusively established that the Title did 

not bar the remedial use of race," Univer­

sity of California Regents v. Bakke, supra, 

57 L.Ed.2d at 811 n.28. "Moreover,

Congress, in enacting the 1972 amendments

to Title VII, explicitly considered and



-50-

rejected proposals to alter Executive 

Order 11246 and the prevailing judicial 

interpretations of Title VII as permitting, 

and in some circumstances requiring, race 

conscious action," id.

Last, the EEOC and other federal 

agencies, which recognize that Asians 

are a group entitled to the protections 

of executive orders and other civil rights 

guarantees, have also sanctioned affirma­

tive action employment programs, supra.

The new EEOC Guidelines on Affirmative 

Action, adopted for the express purpose 

of effectuating "the clear Congressional 

intent to encourage voluntary affirma­

tive action," 29 C.F.R. § 1608.1(a), 

declare "the principle that each person 

subject to Title VII should take voluntary



-51-

action to correct the effects of past 

discrimination and to prevent present and 

future discrimination without awaiting 

litigation," 29 C.F.R. § 1608.1(c).

To use the Constitution and civil 

rights statutes and laws as a sword 

against such efforts would be to stultify 

the purpose of those guarantees, c 

Railway Mail Association v. Corsi, 326 

U.S. 88, 98 (1945) (Frankfurter, J., 

concurring).



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CONCLUSION

For the above reasons, the decision 

of the court below should be reversed.

Respectfully submitted,

KENNETH CHU 
STANLEY MARK 
LISA S.J. YEE

43 Canal Street
New York, New York 10002

VICTORIA CHIN 
MICHAEL WONG 
SAMUEL YEE

1322 Webster Avenue 
Oakland, California 94510

CHARLES STEPHEN RALSTON 
BILL LANN LEE 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Amici