California governor's veto blasted by AAPI legal advocates

KEVIN LO / ASIAN LAW CAUCUS

Southeast Asians protest Trump deportation policies.

A legal advocacy agency for AAPI denounces California Gov. Gavin Newsom’s veto of a bill that would further limit cooperation between the California Department of Corrections and Rehabilitation (CDCR) and Immigration & Customs Enforcement (ICE).

AB 1282, “No Private ICE Act,” which would have prohibited the state prison system, from facilitating or allowing private security corporations to conduct unlawful immigration arrests of individuals in CDCR custody.

“AB 1282 was an opportunity to put to end private prison corporations in California profiting off of conducting immigration arrests that are not authorized by federal law. CDCR should not be using its resources to assist private prison corporations in funneling community members into immigration detention,” said Angela Chan, Policy Manager at Advancing Justice – Asian Law Caucus.

“We urge Governor Newsom to recognize that immigrants should not be subject to a second punishment of deportation and permanent separation from their families and communities. That’s why we prioritized passage of AB 1282. And that’s why we launched a petition asking Gov. Newsom to tell CDCR to not turn over Tith Ton, a Cambodian refugee and upstanding community member detained in San Quentin, to ICE upon his imminent release.”

The private for-profit prison corporation G4S conducts about one-third of the immigration arrests of individuals released from CDCR custody, despite lacking the legal authority under federal law to do so. G4S has a deplorable record of subjecting individuals in their custody to inhumane and life-threatening conditions, according to the Asian Law Caucus. 

“CDCR’s past collaboration with G4S resulted in my transfer into immigration detention. This practice has led to the deportation of thousands of other community members who earned their release from state prison,” said Ny Nourn, Immigrant Rights Community Advocate at Advancing Justice – Asian Law Caucus. “Governor Newsom’s decision to not sign AB 1282 into law will continue to separate families and implicate our state in facilitating unlawful arrests by private contractors for deportation purposes.”

“AB 1282 would have been a major step toward California fulfilling its pledge as a sanctuary state,” added Liza Chu, California Policy Manager, Asian Americans Advancing Justice – California. 

In his veto message,  Newsom expressed concern that a provision in AB 1282 which prohibits CDCR from transferring individuals in their custody between state prison facilities within 90 days of release could hinder or delay transfers between facilities for a variety of situations, including medical care and court obligations.

However, this provision in AB 1282 merely codifies existing CDCR Regulation 3379, including its exceptions for such scenarios. Currently, CDCR violates its own regulations by transferring individuals to state prisons closer to ICE field offices or detention facilities prior to release, allowing easier access for private security corporations to conduct immigration arrests on ICE’s behalf.

Final language for AB 1282 is available here. AB 1282 was co-sponsored by Asian Americans Advancing Justice – California, Asian Prisoner Support Committee, Freedom for Immigrants, Legal Services for Prisoners with Children, and Youth Justice Coalition.

Currently, an estimated 12,000 noncitizens are serving in the state’s prisons and will likely face deportation upon release. Under Donald Trump's immigration policies, the Southeast Asian community has been targeted. 

Newsom has granted pardons to a handful of refugees and prevented their deportation, but nationwide, hundreds of  Cambodian and Vietnamese refugees have already been deported. 

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Asian Americans at center of court battle of district elections vs. at-large elections

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Santa Clara City Council member Raj Chahal, right, was elected after district elections was imposed on Santa Clara.

Voting rights law being challenged after Asian American voted onto Santa Clara city council. 

The addition of Raj Chahal to the city council was made possible by the California Voting Rights Act (CVRA), that formed the basis of a lawsuit filed by  the Hindu American Foundation; the San Jose, Sequoia, and Silicon Valley chapters of the Japanese American Citizens League; the Vietnamese American Roundtable; and the Vietnamese Voluntary Foundation.

After the Santa Clara Superior Court ruled in favor of the lawsuit, the city was forced to move to move from at-large elections to district elections, thus allowing districts with large number of minority voters to wield their power by voting in someone who shares their cultural heritage to represent them.

Just as the city was making history with Chahal's Nov. 2018 election, the council majority -- still white -- decided to appeal the Superior Court decision.

“The city is appealing because the trial court decision was a mistake,” said city attorney Brian Doyle, adding that people in Santa Clara do not engage in racially polarized voting patterns.

“The CVRA worked exactly as it should in Santa Clara,” said Jonathan Stein of the Advancing Justice - Asian Law Caucus, “replacing an election system that had systematically and inarguably blocked the City’s Asian American community from achieving representation on City Council and replacing it with a district election system that immediately ended that ignominious history of exclusion.”

The legal advocacy nonprofit filed a friend of the court brief in August supporting the original lawsuit filed by the minority organizations.

The amicus brief filed by Advancing Justice -- Asian Law Caucus, discusses the history of Asian American exclusion and discrimination in this nation and in California, the impact that history has on Asian American civic participation today, and the specific ways in which courts should interpret the CVRA to enable Asian American communities to vindicate their voting rights.

The ruling from Superior Court Judge Kuhnle follows a trend seen in other California cities such as Palmdale, Poway and Santa Monica, which also were sued for allegedly violating the voting rights law.

The amicus brief can be found online here. It states in part:

"Asian Americans’ political opportunities in this state are still shaped by the exclusion experienced by generations of Californians through immigration prohibitions, denials of fundamental rights and privileges, and political districts that diminish the impact of our community’s voice. In light of the federal government’s continued assaults on voting rights across the country, the CVRA’s protections are crucial to ensure that Asian Americans and all other groups have an opportunity to elect candidates of their choice and to meaningfully participate in California’s political processes."

Santa Clara is 37 percent Asian, 36 percent white and 17 percent Hispanic, based on the 2010 census.

The statistical evidence presented at the trial a year ago shows racially polarized voting (RPV) — where minorities cannot elect candidates that aren’t favored by the city-wide majority — in five of 10 elections. The city doesn’t dispute this.

Plaintiffs are hoping the appellate court will uphold the Superior Court decision based on these facts:

• No minority has ever been elected to the Santa Clara City Council prior to district elections.
• Only white candidates preferred by most white voters won elections.
• The City retained its at-large by-seat system after being told repeatedly that it resulted in vote dilution.
• In 2016 the City Council appointed a white applicant to Council vacancy over two qualified Asian-American applicants.
• Precinct analysis of the 2016 election shows that even though almost 60 percent of Asian American voters cast their ballot for Chahal in his first attempt to get elected, Chahal still finished third in that election for two seats.

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Judge rules Harvard admissions doesn't discriminate against Asian Americans

Harvard students rallied in favor of the university's admission policies before the trial begain in 2018.

Harvard's affirmative action policy "passes constitutional muster" and doesn't discriminate against Asian Americans ruled a federal judge Tuesday (Oct. 1).

In U.S. District Court for the District of Massachusetts federal Judge Allison D. Burroughs issued her decision, saying "the Court finds no persuasive documentary evidence of any racial animus or conscious prejudice against Asian Americans." In the decision, Burroughs said that while Harvard's admissions program is "not perfect," "ensuring diversity at Harvard relies, in part, on race conscious admissions."

“Ultimately, the Court finds that Harvard has met its burden of showing that its admissions process complies with the principles articulated by the Supreme Court in Fisher II,” she wrote, referring to an earlier affirmative action challenge, Fisher v. University of Texas, which was instigated by anti-affirmative action advocate Edward Blum.

Blum was also president of Students for Fair Admissions (SFFA), which reportedly represents several Asian American students in the case against Harvard. Blum said he was disappointed in Burrough's ruling.

"SFFA will appeal this decision to the 1st Court of Appeals and, if necessary, to the U.S Supreme Court," he said.

Blum's statement demonstrates that while the Boston court trial is over, the debate over affirmative action is far from over. With the conservative majority currently in the Supreme Court, civil rights advocates fear that affirmative action could still be overturned.

Tuesday's "decision is a critical victory for Asian American students, who benefit from affirmative action and support race-conscious admissions policies,” said Aarti Kohli, executive director of Advancing Justice - Asian Law Caucus. “While we must do more to ensure that Asian American students do not face unequal opportunities through harassment, stereotyping and language barriers, the use of race-conscious admissions policies — which safeguard against discrimination — is an important step.”

Rep. Judy Chu, D-CA, said, “It is shameful that the educational playing field remains unequal for so many students of color, including many within the Asian American and Pacific Islander (AAPI) community who continue to face significant barriers to attaining a college degree. 

"For instance, only 14% of Laotians, 16% of Cambodians, and 19% of Pacific Islanders have a bachelor’s degree. These educational disparities show us why it is important to expand opportunities to higher education for all students, including AAPIs, who have benefited from race-conscious admissions policies that help to level the playing field," she continued.

Harvard University President Lawrence S. Bacow wrote in a statement Tuesday that the College’s consideration of race in its admissions process “helps us achieve our goal of creating a diverse student body that enriches the education of every student.”

“Everyone admitted to Harvard College has something unique to offer our community, and today we reaffirm the importance of diversity—and everything it represents to the world,” he wrote.

“I applaud the Harvard students who made their voices heard in this case and during the trial. They made vividly clear the benefits of student body diversity,” he wrote. “I also saw firsthand the intense commitment of many, including all those who testified, and who defended and supported the University, with tremendous acumen and skill, and I am deeply grateful for their excellent work.”

HARVARD UNIVERSITY

None of the Asian American students SFFA purportedly represents didn't want to testify during the trial. The testimony of the students in favor of affirmative action played a major factor in Burrough's decision. She wrote that their testimonies showed how race played a critical role in their experiences before and during their time at Harvard.

"The students who are admitted to Harvard and choose to attend will live and learn surrounded by all sorts of people, with all sorts of experiences, beliefs and talents" she wrote. "They will have the opportunity to know and understand one another beyond race, as whole individuals with unique histories and experiences. It is this, at Harvard and elsewhere that will move us, one day, to the point where we see that race is a fact, but not the defining fact and not the fact that tells us what is important, but we are not there yet."

The basis for Blum's lawsuit was that Harvard discriminated against Asian applicants who had higher test scores than some of the students admitted through Harvard's admission policies which considers race as one factor in looking at a student holistically.

The trial and debate also exposed an apparent schism in the Asian American community that Blum took advantage of. Generally, it pitted long-time AAPI civil rights organizations against newer immigrants -- primarily from China -- who pushed for a pure meritocratic evaluation of test scores, GPA and extracurricular activities without out taking into account other socio-economic factors -- including race -- in an applicant's background.

With the focus on Harvard's admissions, researchers also learned that the university had a high proportion of so-called "legacy" students, who are children of large donors, alumni, children of alumni or who have special skills, such as athletics. Roughly three-quarters of white legacy students would have been rejected if they had been treated the same as non-white legacy students. 

“As an Asian American, affirmative action helped give me a fair shot in Harvard’s application process,” said student Sally Chen, who testified in support of Harvard in the trial last fall. “The court made the right decision for Asian Americans, for diversity in education, and for all of the students like me who believe race is an important part of our identity and something we deserve to be able to share. The fight for racial equity is far from over. I will continue to fight for race-conscious policies on behalf of other Asian American students at Harvard and across other college campuses.”

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