The Lack of Arab American Categorization in the U.S. Census and its Legal Implications for Protection Against Discrimination
Arab Americans are categorized as “White” on the United States Census. Yet, the vast majority of reputable public opinion studies show that anti-Arab sentiment has rapidly grown in the past two decades, setting Arab Americans apart as a discriminated minority. After the 2001 attacks on the World Trade Center, Arabs and Muslims faced a sharp increase in hate crimes and ingrained cultural distaste. Studies show that the media also played a role in establishing disingenuous narratives surrounding Arab Americans in the wake of 9/11. [1] With the seeds of prejudice planted and growing, Arab Americans crucially require official categorization on the United States Census to establish them as a minority group in the eyes of the law in order to access established government policies that benefit underserved communities, such as affirmative action.
Arab Americans passed into white categorization upon their arrival to the United States in the late 1800s as Christian Lebanese and Syrian immigrants who resembled other white Mediterranean groups. [2] White categorization initially served as a benefit for the fledgling Middle Eastern immigrant community in America, as whiteness was a de facto prerequisite for civil rights, socioeconomic mobility, and, most crucially, American citizenship. White classification meant that an arriving Arab American could be naturalized and avoid legal barriers such as marriage restrictions, land ownership, and socioeconomic placement. Indeed, in the late 1800s, associated legalities attached to a white grouping far surpassed those of any minority. [3] Yet, contemporary American politics show the contrary as Arab Americans are restrained from policy and law such as affirmative action.
Today, studies show that anti-Arab sentiment in the U.S. has grown rapidly since the 2001 attacks on the World Trade Center. [4] These sentiments have crept into state actions carrying the full force of the law. For example, President Trump’s Executive Order 13769, on the pretense of “Protecting the Nation From Foreign Terrorist Entry into the United States,” placed a travel ban on several Muslim-majority Middle Eastern countries. [5] Through this executive order, President Trump upheld and rectified the media constructs of aggressive Arab Americans. Evidently, Arab Americans today do not benefit socioculturally or legally from “White” categorization.
In the 2017 case Arab American Civil Rights League (ACRL) v. Trump, the ACRL claimed that President Trump’s Executive Order 13769 violated several freedoms acts such as the Administrative Procedure Act, the Uniform Declaratory Judgments Act, and the Religious Freedom Restoration Act, as well as the Fifth Amendment rights to procedural due process, substantive due process, and equal protection. [6] The case would ultimately be dismissed by the parties as President Biden terminated President Trump’s executive order on his Inauguration Day. Despite its dismissal, ACRL v. Trump yields major takeaways for Arab American official categorization. When brought to the U.S. District Court of Eastern Michigan, Judge Victoria Roberts seemingly advanced the lawsuit. In regards to the adaptation of the executive order, Judge Roberts wrote: “this was a Muslim Ban the first time, a Muslim Ban the second time, and a Muslim ban the third time. No amount of wordsmithing changes the fact that this mean-spirited policy was specifically designed to keep people out of the United States based on how they worship.” [7] Judge Roberts then expands the basis of discrimination and prejudice engraved in President Trump’s executive order through First Amendment protections of religious freedoms. Judge Roberts proceeded further in her conclusion to show that, “it is reasonable to infer that the morphed executive orders and companion Proclamation rest on an irrational prejudice against Muslims.” Yet, in no part of the opinion was the issue of Arab Americans as a distinct ethnic group in America raised.
The legal groundwork for Census categorization has already been laid by the landmark Supreme Court case Saint Francis College v. Al-Khazraji, which distinguished ethnicity as a means of differentiation in race and involved an Arab discriminated against by a white employer and tenure committee. [9] Argued before the Supreme Court in 1987, Majid Al-Khazraji, an Iraq-born U.S. citizen and professor at Saint Francis College, was denied tenure because of his Arab ancestry. When Al-Khazraji sued on the grounds of prejudice, a district court deemed his claim insufficient because both his employer and he were considered of the same race—white. Yet, the Supreme Court found that Arabs were indeed protected from racial discrimination, arguing that ethnicity and ancestry are enough grounds for prejudice. Justice Byron White also noted in the majority opinion that history did not back the claim that Arabs and whites shared the same race. The Court therefore suggested that Arab Americans were indeed not to be considered white because they themselves were discriminated against and had the right to sue for prejudice as they are ethnically distinct.
Indeed, Arab Americans have stood separate from white Americans in the legal system for over a century as the federal court, in a series of conflicting rulings, struggled to define whiteness. In Ex Parte Dow, George Dow, a Syrian man, applied for U.S. citizenship based on the claim that he was recognized as white. [10] His petition, however, was rejected by U.S. District Judge Henry Smith. Translating past white recognition into minority status, Judge Smith wrote: “to speak of the Asiatic inhabitants of Persia or India as ‘Aryan’ or ‘Caucasian' is almost as great a contradiction as to call a negro inhabitant of South Africa a Saxon because he speaks English, or an Indian inhabitant of Peru or Mexico a Latin because he speaks Spanish.” [11] Although the Fourth Circuit later reversed the lower court’s ruling on appeal, Chief Judge Charles Albert Woods carefully limited the scope of the decision to “contiguous countries of Asia near the Mediterranean” and cited only “Syrians, Armenians, and Parsees” as examples—all non-Muslim Arab minorities (at the time of the decision, the term “Syrian” largely referred to Syriac Christians, of whom George Dow was a member). In effect, Dow continued to exclude Arab Muslims from whiteness in court. [12] Similarly, in 1942, the U.S. District Court for the Eastern District of Michigan again denied Yemeni Ahmed Hassan naturalization because the court did not deem him as white due to his Arab descent. Judge Arthur Tuttle directly expressed that Arab Americans do not have the capacity to assimilate with white Americans. Judge Tuttle stated, “Apart from the dark skin of the Arabs, it is well known that they are a part of the Mohammedan world… It cannot be expected that as a class they would readily intermarry with our population and be assimilated into our civilization.” [13] Judge Tuttle made it clear that Arab Americans were not white due to their appearance, geographic location, and apparently most concerning to the court: their distinct cultural ethnicity.
Arab Americans today possess a double burden. They are excluded from whiteness and its associated privileges and are also excluded from mainstream minority recognition, losing the assistance of policies established to support minority groups such as affirmative action. Federal affirmative action applies to the minorities: “American Indians or Alaskan Natives, Asians, Blacks, Hispanics, Native Hawaiians, and other Pacific Islanders.” [14] The same minority categorizations found in the U.S. Census are the same minority groups that qualify for affirmative action. The National Association of Iranian Americans attempted to secure minority recognition for Arab Americans in the Small Business Administration’s affirmative action program, but the request was denied. The Small Business Administration claimed that Middle Eastern Americans were not qualified minorities in that they are not, “socially disadvantaged groups subjected to racial or ethnic prejudice or cultural bias within American society because of their identities as members of groups.” [15] Yet both reputable studies and American courts have shown time after time that Arab Americans are indeed a discriminated minority within the United States that are subjected to prejudice and bias.
The Supreme Court has already differentiated Arab Americans from white Americans on the basis of prejudice and discrimination. Contemporary policies and laws like President Trump’s executive order adversely affect Arab Americans, and courts have explicitly stated so. For more than a century, American courts have emphasized and stated that Arab Americans are not white and should not be treated as such. Yet, in the scope of legal recognition as a qualified minority on the United States Census and for legal policies that protect minorities like affirmative action, Arabs are strictly white. In order for Arab Americans to be entitled to protection from unlawful discrimination through policies such as affirmative action, a Census box for Middle Easterns and North Africans that would mark official recognition as a minority group must be put in place on the next United States Census.
edited by Aishlinn Kivlighn
Sources:
[1] Steven Salatia, “Ethnic Identity and Imperative Patriotism: Arab Americans before and after 9/11,” College Literature 32, no. 2 (Spring 2005): 146-168.
[2] Kristine Ajrouch and Amaney Jamal, “Assimilating to a White Identity: The Case of Arab Americans,” The International Migration Review 41, no. 4 (Winter 2007): 860-879.
[3] Charles Hirschman, Richard Alba, and Reynolds Farley, “The Meaning and Measurement of Race in the U.S. Census: Glimpses into the Future,” Demography 37, no. 3 (August 2000): 381-393.
[4] Louise Cainkar, “Thinking Outside the Box: Arabs and Race in the United States,” in Race and Arab Americans Before and After 9/11: From Invisible Citizens to Visible Subjects, eds. Amaney Jamal and Nadine Naber (Syracuse, NY: Syracuse University Press, 2007).
[5] ACLU Washington, “Timeline of the Muslim Ban,” American Civil Liberties Union, 2020, https://www.aclu-wa.org/pages/timeline-muslim-ban.
[6] Arab Am. Civil Rights League v. Trump, 399 F. Supp. 3d 717 (E.D. Mich. 2019).
[7] Ann Mullen, “Federal Judge Says President Trump’s Muslim Ban Shows ‘Irrational Prejudice Against Muslims,’” American Civil Liberties Union (ACLU) Michigan, July 10, 2019, https://www.aclumich.org/en/press-releases/federal-judge-says-president-trumps-muslim-ban-shows-irrational-prejudice-against
[8] Taeku Lee, “Race, Immigration, and the Identity-to-Politics Link,” The Annual Review of Political Science 11 (2008): 457-478.
[9] Saint Francis College v. al-Khazraji, 481 U.S. 604 (1987).
[10] Dow v. United States, 226 F. 145, 145-148 (4th Cir., 1915).
[11] John Tehranian, “Compulsory Whiteness: Towards a Middle Eastern Legal Scholarship,” Indiana Law Journal 82, no. 1 (Winter 2007): 14. L
[12] Dow v. United States, 226 F. 145, 148 (4th Cir., 1915); Sarah Gualtieri, “Becoming ‘White’: Race, Religion and the Foundations of Syrian/Lebanese Ethnicity in the United States,” Journal of American Ethnic History 20, no. 4 (2001): 42-44. http://www.jstor.org/stable/27502745.
[12] In Re Ahmed Hassan, 48 F. Supp. 843 (E.D. Mich. 1942).
[13] “Equal Employment Opportunity and Affirmative Action,” University of California, Merced, accessed August 19, 2022, https://eeoaa.ucmerced.edu/node/8.
[14] George LaNoue and John Sullivan, “Presumptions for Preferences: The Small Business Administration's Decisions on Groups Entitled to Affirmative Action,” Journal of Policy History 6, no. 4 (Oct 1994): 439-467.