The Turbulent History and Future of Developing a
Legal Identity for Arab Americans
Emma Reilly | May 2021
President George W. Bush signs the PATRIOT Act into law on October 26, 2001
t is doubtless that individuals from the Middle East and North Africa living in the US have had a strained relationship with the government. In the aftermath of the attacks of September 11th, which have become infamous in the American consciousness, there has been an increase in anti-Muslim hate crimes. Five years ago, these levels of abhorrence were surpassed and some blamed the rhetoric of former President Trump. Yet despite these hardships faced by the Middle Eastern and North African (MENA) community, these individuals are legally considered “white” by the federal government.
I first became aware of this phenomenon when I was in my junior year of high school. We were discussing the required demographic questions for the Advanced Placement tests when my friend told me that her only option in documenting her racial identity was to check “white.” The same is true for the United States Census, which as of 2020 has still failed to adopt the MENA category, causing disappointment to many of the advocates for this change.
Tracing the history of the legal “whiteness” of Arab Americans not only brings to light an interesting relationship between the United States and whiteness but also provides context for some concerns regarding a potential MENA amendment and the consequences that could arise from introducing such an identifier into federal documents.
The first wave of Arab Americans immigrated to the United States as early as the mid-
19th century, and were either of the Christian or Muslim faith. However, in terms of having a de jure identity within the American legal framework, there is a marked difference between the timing of the recognition of Christian Arabs and Muslim Arabs.
The case Dow v. United States, which was heard in the Fourth Circuit in 1915, declared that Syrian Christians were “white” under federal law. The case shows its age with the majority opinion citing Johann Blumenbach, whose work in the classification of races via human anatomy served as fodder for later scientific racism. The Fourth Circuit's decision was beneficial to George Dow, the plaintiff in this case, as the court was still following the precedent set by a statute passed in 1790 which states that “any alien, being a free white person … may be admitted to become a citizen.” Thus, the court endowed Dow, a Syrian, with the legal status, and the respective legal privileges, which came with being a white man in early-20th-century America.
It’s relevant to note that the decision made by the court was extremely narrow and only applied to Syrian Christians. It took until Ex Parte Mohriez in 1944 for the federal government to include individuals who were conceptualized as “Arab”, which was conflated with being a practicing Muslim, as legally “white.” This more accepting decision was made despite the facts of both Dow and Ex Parte Mohriez being quite similar, so it appears that such disparate treatment of Christians and Muslims is related to religion rather than some variance in the facts of each case.
When “Arab” Means “Muslim”
This impeded acceptance of Muslim Arabs as “white” Americans, compared to their Christian counterparts, has taken place against a backdrop of discriminatory behavior. Yet in a post-9/11 world, Arab Americans have experienced a further collapsion of their identity by being affiliated with radical terrorist groups. In a study published in 2017, nine out of every ten Arab American students said that they experienced peer harassment based on their race. The study also found that there was no distinction made based on whether students had visible representations of Muslim faith such as wearing a hijab, but rather relied on percieved linguistic and physiological cues such as speaking Arabic or having a name that sounded Arabic in origin.
One poignant example Jeffrey Bale cites in his article “Arabic as a Heritage Language in the United States” is the opening of Khalil Gibran International Academy in 2007.1 The school was supposed to be an Arabic-English dual language school, but was met with strong objections for purportedly “espousing a fundamentalist Islamic curriculum.” The irony in this is that the school is named after Khalil Gibran, a Lebanese writer who draws on his Christian faith for inspiration in his prose. While it’s not expected that Khalil Gibran and his work be a household name, the degree to which a school with little to no ties to the Islamic faith is denounced as being associated with terrorism must be noted.
Anthony DiMaggio, in his book “Selling War, Selling Hope,” cites a Pew survey completed in 2007, in which 65% of individuals whose opinions were mostly shaped by the media associated the Islamic faith with being more likely than other religions to encourage violence.2 This prejudice, fueled by our nation’s rhetoric, is not foreign to contenders for national office. DiMaggio writes that Newt Gingrich criticizied Obama for being “Pro-Islamic” using “Islamic” as a substitute for “radicalism, and terrorism.” Thus in understanding the rhetoric of the media and political figures, with ample knowledge of issues of national security and statistical data, coupled with individuals harassing Arab Americans for being “terrorists” using perceived physiological and linguistic cues, it becomes clear that the identity of Arab Americans is frequently collapsed into one affiliated with violence as a result of misinformation and poor rhetoric.
The MENA Classification: A Blessing and a Curse
Such discrimination also exists in the enactment of government policy. Most notable is the PATRIOT Act. Following its enactment, there was an increase in racial profiling among government agencies. Additionally, Section 102 of the act declares explicitly that “Arabs'' and Muslims are entitled to equal protection under the law, which, according to the Institute for Social Policy and Understanding, could certainly be considered anticipatory of a need for legal defense on the part of the United States government.
The fact that Arab Americans experience discriminatory treatment on two fronts - by civilians and by government officials - presents an interesting conundrum for the adoption of the MENA box on federal legal documents. This potential amendment could afford the Arab American community more just recognition in aligning the community’s legal classification with its lived experience as a discriminated class. However, the potential downside of the amendment is that it could make it easier for the United States to surveil individuals who identify themselves as a part of the MENA category. Thus an important question to ask is whether the addition of a MENA category to the census, considering the legal and political context of the United States, will afford Arab Americans equal protection under the law, both de jure and de facto.
One example is the fact that, under the United States PATRIOT Act, the delayed notification of search warrants is permissible. This limits the ability of the individual being searched to verify that the search is indeed legal. Coupled with the Bureau of Counterterrorism’s most recent report stating that the Bureau is pursuing extremist groups Al-Qaeda and ISIL all over the world, it’s reasonable to claim that Arab Americans are still at risk of being searched on a relatively random basis.
The nature of the warrants permissible under the PATRIOT Act brings to mind Mapp v. Ohio , a landmark Supreme Court case decided in 1961, which determines that evidence collected by means of an illegal search is inadmissible in a state court. One of the key pieces of the complainant’s story leading to this decision was the failure of the officers executing the search to produce a warrant at the time of the search. The delay of a search warrant under the PATRIOT Act creates essentially the same unjust conditions experienced by the complainant of Mapp v. Ohio. While there has been a failure to make a concrete ruling regarding whether delayed searches are reasonable due to the need to weigh the interests of individual privacy and “governmental interests,” it should be clear under the 14th Amendment that laws should not override the privileges and immunities afforded by US citizenship, but should rather protect citizens of all groups equally.
It is also relevant to consider the relationship between this search issue and the Sixth Amendment, which guarantees criminal defendants knowledge of the “nature and cause of the accusation” against them, along with a speedy trial. Of note is the Supreme Court case Barker v. Wingo, which establishes four criteria to be considered in determining whether the delay of a trial is reasonable: the length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. It would be interesting to put the delayed searches admissible under the PATRIOT Act in the context of Barker v. Wingo, particularly in the case that racial profiling is highly relevant to the reason for the delay of producing a search warrant. Combine this with the fact that a potential motivation behind the legislation is anti-Arab prejudice, and this disparate treatment of Arab Americans might very well be struck down under the standard established in Barker.
Because of what appears to be a disconnect between Supreme Court precedent and legislation supposedly in the interest of national security, case law must be developed that imposes greater protection of the rights of Arab Americans, so that this group can be protected from the potential for increased surveillance following the addition of a MENA classification on legal documents.
Overall, the legal classification of Arab Americans as “MENA” poses both a benefit to this group but also a threat. It is the job of the courts, along with more appropriate legislation, to ensure that a more specific, non-white classification of this group does not lead to further discrimination under the PATRIOT Act. For the very validity of the 14th Amendment, with its clauses providing privileges and immunities and equal protection, might just depend upon a judicial resistance to prejudice.