A court decides who is white under the law
This is an entry in the cover feature 10 trials that changed the world.
Discrimination against Arab-Americans is widespread in the post-9/11 era, yet federal law does not generally recognize them as a group entitled to access to remedies for mistreatment. This dilemma is reflected in the fact that the U.S. Census Bureau classifies people from the Middle East and North Africa as white. As a result, millions of Americans experience the adverse effects of being racially stereotyped as the “terrorist other” at the same time that their racial classification keeps them from turning to remedies aimed at alleviating discrimination against racial minorities.
The Census Bureau’s classification is a product of a decadeslong struggle for the privilege of citizenship and its attendant benefits. Like other immigrants from non-European countries, those of Middle Eastern descent sought to avoid anti-Asian exclusionary immigration laws in effect from the late 1800s to the mid-1900s. A little known but pivotal case decided by the 4th U.S. Circuit Court of Appeals in 1915 set the stage for the current predicament of Arab-Americans: white by law but without the social privileges of whiteness.
In Dow v. United States, George Dow, a Syrian Christian living in Charleston, S.C., challenged two district court rulings denying his petition for naturalization. The lower courts reasoned that, as a Syrian of Asiatic birth, Dow was not a free white person within the meaning of the Naturalization Act of 1790. Despite the passage of numerous amendments and related new laws over the years (including exceptions for people of African descent or nativity), in 1915 the act still limited eligibility for citizenship to “any alien, being a free white person who shall have resided within the limits of the United States for a term of two years.”
On appeal, Dow successfully argued that the designation “free white person” was not limited to Europeans but also applied to “the western Asiatics on this side of the Caspian Sea and the Ganges.” The appellate court concluded that, under later legislative actions by Congress, “it seems to be true beyond question that the generally received opinion was that the inhabitants of a portion of Asia, including Syria, were to be classed as white persons.”
Notably, Dow was decided before the Supreme Court ruled in Ozawa v. U.S. (1922) and U.S. v. Thind (1923) that “free white person” was not defined by an ethnological Caucasian ancestry but rather a “common knowledge” approach based on widely held conceptions of race and racial differences. While those cases further codified the social construction of race in American law, Dow established the line of reasoning invoked by millions of Arabs seeking what all other immigrants sought upon arriving on America’s shores: the privilege of citizenship and whiteness.
Sidebar
Nearly 100 years after Dow was decided, the decision no longer bestows the privileges it once did for Arab-Americans. In the post-9/11 environment, it denies them certain protections that would otherwise be available to remedy their racialization in employment, public spaces and law enforcement. It is long past time to bury the ghost of Dow and amend the census classifications to reflect the social construction of people from the Middle East and North Africa as nonwhites.
List of Cases, in Chronological Order
1. God punishes Adam and Eve, and the Serpent – by George Anastapolo
2. Parliament puts King Charles I on trial – by Maura McGowan
3. Susan B. Anthony is convicted for casting a ballot – by Deborah Enix-Ross
4. Clarence Darrow is tried on charges of bribing jurors – by Michael E. Tigar
5. A court decides who is white under the law – by Sahar F. Aziz
6. An Allied tribunal brings Nazi leaders to account at Nuremberg – by Lori B. Andrews
7. The Supreme Court rejects the separate but equal doctrine – by Kim J. Askew
8. Adolf Eichmann is convicted for his role in the ‘Final Solution’ – by Mark S. Ellis
9. Nelson Mandela is spared from a death sentence – by Richard J. Goldstone
10. Serb leader is tried by an international tribunal – by Randy J. Aliment
Sahar F. Aziz is a professor at Texas A&M University School of Law, where she teaches about national security and race in post-9/11 America. Previously, she was a senior policy adviser to the Office for Civil Rights and Civil Liberties in the Department of Homeland Security.
