I have sometimes wondered whether it matters that the experiences of Asian Americans are nowhere to be found in the family law canon. This omission should be surprising. People from Asia have been skirting the shores of the Americas since the 17th Century. Within two decades of California becoming a state, people from Asia, mostly men from China, made up 25% of the entire work force and played a crucial role in developing the state’s infrastructure.1 These men, and others in western states, soon faced anti-miscegenation and immigration laws designed to prevent them from marrying and producing American-born children—laws concerning the bread and butter of family law. People from Asia or of Asian descent, some 22.4 million of them, are now the fastest growing minority group in the United States, largely because of family preferences in immigration law. Surely, I have told myself in passing, these and other developments should fit into the story we teach about family regulation. Surely, too, there are legal interventions that could strengthen Asian families or validate their shared experiences. But soon after I begin considering the possibilities, I am waylaid with doubts: What, if anything, are those shared experiences and values, and are they worth preserving, here? And would anyone, even Asian Americans themselves, really care about these stories?
The Loneliest Americans, by New York Times staff writer Jay Caspian Kang, is an epistemology of these ambivalences. Asia, Kang explains, means nothing to the immigrant from Korea, who finds little in common with people from countries like the Philippines or China. (P. 59.) Additionally, the highly skilled workers and their descendants who arrived after the Hart-Celler Act of 1965 (which replaced national origin-based immigration with a preference system favoring family reunification and skilled workers) have at best a tenuous, mostly imagined connection to the exclusion, lynchings, discrimination, and interment experienced by earlier Asian laborers and their descendants. (P. 57.) Above all, Kang provocatively argues, the upwardly mobile contingent of post-Hart-Celler Asian Americans are not invested in an Asian American identity because they hold onto the belief that it is possible on some level to assimilate into whiteness: thus, they hollow out Asian Americanness from the inside.
To be clear, Kang does not suggest that Asian Americans are naïve enough to believe that they themselves can become white. Mapped onto the Black-white binary that some have argued defines race relations in the United States, Asian Americans’ upward economic trajectory suggests that some should already have achieved that distinction. Kang notes, however, that this “narrative elides one crucial question: How do you actually become white if you’ve never felt white a day in your life . . . ?” (P. 78.)
Instead, whitening is inherently a generational project, which means it is inherently about the family, and, consequently, family law, expansively conceived. For immigrants themselves, children are the vehicle to assimilate into American culture and into whiteness. Children acquire English proficiency and use school as a launching pad to ascend to the middle class, presumptively bringing along the entire family. (Pp. 79-83.) This mindset frames the proliferation of test preparation centers in Chinese and Korean immigrant communities, where parents send their children to maximize their chances of getting into elite public schools, prep schools, and universities. (Pp. 115-128.) And it inevitably informs views about the importance of test scores in those admissions processes: as Kang wryly observes, “Nearly all the wealthy, assimilated parents I [know] ke[ep] their opinions [about New York’s use of standardized testing for admission to its most prestigious schools] to themselves, or, when pressed, spew[] out gibberish about ‘complicated situations’ and pine[] for some utopia where minority groups w[ill] not be pitted against one another.” (P. 128.) At the end of the day, however, those parents “still believe[] in the virtues of a pure meritocracy” and still see this meritocracy as the “best shot” for their children to overcome racial barriers. (Pp. 128-129.) Kang suggests that less assimilated Asian immigrants believe the same thing, just less self-consciously. If this is true, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College is not only about the fate of affirmative action, but the fate of some Asian families as well. The current discourse surrounding the legal dispute elides this dynamic.
Assimilation can also be generational in the biological sense when Asian Americans have children with white partners. Unlike earlier Asian immigrants, post-Hart-Cellar Asian Americans have not been subjected to laws designed to stunt the growth of Asian American families. Kang, the child of post-Hart-Celler Korean immigrants, begins the book by describing how he would stare at his newborn daughter and her “full head of dark hair and almond-shaped eyes[.]” (P. 3.) He recounts his “troublesome hope” that she would resemble her mother, “half Brooklyn Jew, half Newport WASP,” and join the ranks of “one who could either pass or, at the very least, walk around with the confidence of some of the half-Asian kids I had met—tall, beautiful . . . .” (Id.) Being biracial, he assumed, would ease her ability to “get[] a seat at the wealthy white liberal table” and “have the spoils of full whiteness.” (P. 11.) Importantly, her easy access to the white world would be a mark of his own assimilation, and a culmination of a process that began with his parents: “My parents, when they immigrated from Korea to the United States in 1979, could not have conjured up the details of their future granddaughter’s life, but they must have been after something like it.” (P. 229, emphasis added.)
Kang is too careful a writer not to have implied a binary in which whiteness is beautiful and Asianness less so, hence the “troublesomeness” of his hopes. He explores this dynamic in a chapter on MRAZNs (an acronym for Men’s Rights Activist Azns (“Asians”)). MRAZNs react to the perceived beliefs that Asian men are viewed as objectively unattractive and that Asian women are mostly interested in white men. They attribute these beliefs to this country’s history of white supremacy. Through this lens, Asian women who date white men are traitors, complicit in the plan to subjugate and eventually eliminate Asian men through interbreeding. (Pp. 186-194.) Here we see the flip side of marriage and reproduction as a tool of assimilation and acquisition of whiteness. If marriage and childbearing are marks of success, then the inaccessibility of intimate relationships becomes a manifestation of societal rejection, a failure of the intergenerational quest: family becomes the benchmark of failure. MRAZNs therefore lash out at their “oppressors” notwithstanding the fact that many of them have achieved high degrees of educational and financial success.
MRAZNs engage in tactics such as doxxing and online harassment that are deeply inappropriate, and Kang criticizes this aspect of the movement. But he expresses some sympathy for their rage: “[W]hy would you trust those Asians who deny Harvard is discriminating against Asian applicants, who tweet jokes about your small dick and your flat face, who seem almost embarrassed every time there’s a hate crime against your people? They will sell you out in a minute to maintain the illusion of the multicultural elite, and then they’ll go off and marry a white man and laugh in your face.” (P. 201, emphasis added.) MRAZNs intuit what some legal scholars have made explicit: that romantic preferences are shaped by structural factors, including the law.2 Here, too, is an opportunity to explore how law can be a tool to dismantle prejudices that affect family formation.
As the MRAZN example reveals, not all post-Hart-Celler Asian Americans share equally in the prospect of assimilation. Unskilled individuals arrive through the family reunification process as well, not to mention refugees and people who are undocumented. Kang accuses assimilationist Asian Americans (of which he is a part) of repeating the sanitized narrative of the “multicultural coalition of the upwardly mobile and overeducated,” where “everyone [is] doing well enough to celebrate their differences,” (P. 218), instead of allying with the working-class immigrants for whom whiteness is so hopelessly out of reach that it is not even a concern. These assimilationists believe the promise that by living “as a part of a multicultural elite” and erasing “all the unseemly parts of Asian America,” essentially “acting in the role of a white liberal,” they can cloak themselves, or at least their children, in whiteness. (P. 149.)
These assimilationist tendencies do not only complicate the project of advocating around an Asian American identity: they create something of an existential paradox. Kang recognizes that if his daughter in fact achieves “full whiteness,” something he simultaneously hopes for and fears, it will only be because she is able to “betray her father’s anxieties over belonging and identity and step into something that [he] do[es] not understand,” an un-race-conscious existence. (P. 219.) Full assimilation inevitably results in alienation from the previous generations, a form of intergenerational abnegation.
I should state explicitly that I have concerns with The Loneliest Americans, most prominently Kang’s casual essentializing of post-Hart-Celler Asians. Yet I appreciate the extent to which Kang illuminates how family is central to the experiences and aspirations of post-Hart-Celler Asian Americans, and the ways in which the legal landscape has mostly facilitated, but sometimes thwarted, those aspirations.
Kang has also succeeded in identifying the precise nature of the difficult choices faced by scholars who are interested in considering how to make the law more responsive to Asian American concerns. Obviously, these concerns are not universal. But more insidiously, to the extent they are rooted in values like filial piety or gender differentiation, they might be unpalatable or embarrassing, out of step with the liberal, individualist ethos embraced by the white-adjacent assimilationists. As just one example, some Asian American families structure their spending around the assumption that adult children will eventually serve as their parents’ de facto retirement plan. Yet only 30 states (excluding New York, with its large Asian population) have filial responsibility statutes on the books, and only three enforce their laws consistently. In states like California, for example, enforcement is rare (nearly all cases pre-date the 1970s), and only available where there is demonstrable need, which may not match the expectations of the parents. To protect these expectations, states could tailor and enforce filial responsibility laws by adding the expressed expectations of the parties as a factor for courts to consider. Yet to advocate for stronger filial responsibility laws, which would certainly protect some elders in the Asian American community, risks endorsing a heteronormative view of the family with which one (and here I admit that I am hiding behind the third-person pronoun) might not want to be associated.
Kang ends the book by vowing to step away from the protective cloak of whiteness and committing to cast his lot with the Asian American working class. One senses, however, that the comforts of whiteness may be too good for him to refuse. I feel a similar ambivalence about leaving the protective confines of our mostly white family law, with its established parameters and well-trodden debates. But I am telling myself here and now that the rewards may be worth the effort.
- See Ronald Takaki, Strangers from a Different Shore 79, 88-89 (1998).
- For examples of scholarly accounts documenting the role that the law plays in the formation of romantic preferences, see Solangel Maldonado, Romantic Discrimination and Children, 92 Chi.-Kent L. Rev. 105, 131-33 (2017), and Russell K. Robinson, Structural Dimensions of Romantic Preferences, 76 Fordham L. Rev. 2787, 2788 & passim (2008). As these scholars note, laws like anti-miscegenation laws, which deemed Asian men inappropriate objects of white affection, or the War Brides Act, which gave American soldiers easier access to Asian brides and girlfriends, have impacted the development of what might otherwise be viewed as subjective preferences.
