Notes on “Yellow Face” by David Henry Hwang

Photo from the 2024 producton of Yellow Face, with Ryan Eggold, Marina Anderson, Daniel Dae Kim, and Kevin Del Aguila.  Photo by Joan Marcus.

If you have seen David Henry Hwang’s excellent play Yellow Face (or listened to it on Audible), you may have questions about what is real and what is fictionalized.  I did!  Here are some notes and commentary about the play’s real-life context, including employment discrimination laws, selective prosecution arguments, and a high-profile case against an Asian-American scientist.

“Face Value”

Let’s start with the easy stuff. 

David Henry Hwang did write a play called “Face Value,” and it did have a very short run in Boston in early 1993.  But the show did not inadvertently cast a white man as an Asian character.  The lead Asian-American male part was initially played by an Asian-American actor, Dennis Dun (probably best known for Big Trouble in Little China), and then played by B.D. Wong, according to my review of press reports at the time.

The lead of the play, at least according to my review of press reports, was Mark Linn-Baker, who is probably best known for the 1980s sitcom Perfect Strangers.  He played the white actor who was playing Fu Manchu, the fictional Chinese criminal mastermind created by author Arthur Ward aka Sax Rohmer.

And Jane Krakowski and Gina Torres were indeed part of the cast.

Casting Decisions Based on Race

The play Yellow Face takes place in and around the 1990s.  And during the 1990s, the law was not clear as to whether casting decisions could take race into account. 

Generally speaking, federal anti-discrimination laws do prevent employers from considering race in making hiring decisions.  As a result, some thought that you could not consider race in making casting decisions, though you could consider physical appearance.  Basically, you could look for actors who looked like they were of a particular race, but you had to be open to actors who were not actually of that race.

This view got tested in 2012, when two black men who unsuccessfully applied to be the “Bachelor” in 2011 brought a lawsuit alleging employment discrimination because all the Bachelors and Bachelorettes as of that time had been white.  A federal court noted that the lawsuit sought to “support the social acceptance of interracial relationships, to eradicate outdated racial taboos, and to encourage television networks not to perpetuate outdated racial stereotypes,” and the court noted that this cause was “laudable.”

Even so, the court dismissed the lawsuit because the First Amendment protected casting decisions that might violate anti-discrimination laws in other contexts.  The court found that casting decisions were “part and parcel of the creative process behind a television program” and thus merited First Amendment protection.

“Whatever messages The Bachelor and The Bachelorette communicate or are intended to communicate – whether explicitly, implicitly, intentionally, or otherwise – the First Amendment protects the right of the producers of [the shows] to craft and control those messages,” the court wrote.

The court also noted that applying federal anti-discrimination laws to casting decisions would have far-reaching consequences.  “Would applying anti-discrimination laws require a playwright to consider white actors to paly Othello, black actors to play Macbeth, or a male to play Lady MacBeth?  For that matter, could a dramatist face civil liability for staging an all-female version of Romeo & Juliet?” The court’s ruling avoided those consequences.

The reasoning from the Bachelor case was applied more recently in a lawsuit involving the Hadestown musical.  In 2023, a black woman who was a member of the chorus in Hadestown sued after she was terminated and replaced by a white actress.  At the time, all of the members of the chorus were black, while the actors who played Orpheus and Hades were white, and Hadestown officials were concerned that the casting resulted in the show being an “unintended and harmful ‘white savior’ story.” 

Following the reasoning of the Bachelor case, the court found in 2024 that the Hadestown casting decisions were protected by the First Amendment.  

As a result, much of Yellow Face’s plot makes sense for how the law was interpreted in the 1990s and early 2000s, but it does not depict how the law is generally interpreted today for casting decisions.

Henry Hwang and Wen Ho Lee

Much of Yellow Face focuses on two investigations of Asian Americans that were publicized in early 1999 – suggestions that Wen Ho Lee had passed nuclear secrets to China and suggestions that the bank founded by David Henry Hwang’s father had been used to bring Chinese money into the United States.

Both cases raise concerns about whether Lee and Hwang were improperly targeted because of their race or national origin.  Lee was born in Taiwan, studied in the United States, and became a U.S. citizen in 1974, and had worked at Los Alamos National Laboratory for 20 years when he was fired and prosecuted.  Hwang was born in Shanghai and came to the United States when he was 21 years old.

Legally, courts have recognized that a defendant could challenge a criminal case if they can show that the case was based on improper “selective prosecution,” but making such arguments is very difficult.  Generally, a defendant must show that people who are similar to him have not been prosecuted and that his prosecution was based on an impermissible motive such as racial prejudice.  This is very difficult to prove, and defendants often have difficulty even getting enough information from the government to try making these arguments.

As discussed below, Wen Ho Lee made such an argument on his behalf, and a judge’s willingness to consider this argument may have played a part in how the case got resolved (see more below).

Henry Hwang and Far East National Bank

In real life, the allegations against Henry Hwang did not go very far, apparently because the federal investigation of Far East National Bank was already closed by the time that it became public.

On May 12, 1999, the New York Times did publish a front-page article about Far East National Bank:  China Sent Cash to U.S. Bank, With Suspicions Slow To Rise.  But the article’s allegations are confusing and weak, no clear accusations are made against the bank or Hwang, and the news value of the story is debatable.

According to the article, U.S. bank regulators conducted an investigation of Far East National Bank relating to $92 million coming from sources connected to China.  Regulators began the investigation in July 1996 and completed the investigation in the spring of 1997.  “No charges were brought, and no regulatory actions taken.” 

There were suspicions and theories about the $92 million, but not much in terms of evidence.  According to the article, “the purpose of the money remains a mystery.”  The article cites some people who “suspect” that the money might have been used to pay for Chinese intelligence operations, or political contributions, or to buy military technology, but acknowledges that “officials do not rule out that it could be related to legitimate business dealings.”

Henry Hwang did agree to an interview with the New York Times, and the article says that he denied any wrongdoing in the bank’s handling of the money.  The article then says that he “declined to explain where the $92 million had come from or how they managed it, citing client confidentiality.”

The article insinuates that Hwang should have cleared up where the bank’s clients’ money came from.  But if he had told this to reporters, that likely would have violated bank privacy regulations.

In any event, it does not appear that federal regulators or law-enforcement re-opened their investigations or took any further action based on the article.

More broadly, there were some concerns in the 1990s of Chinese money entering the United States and potentially influencing elections.  When the New York Times published its article about Far East National Bank on May 12, 1999, the article was next to another article that had more definitive news value.  Johnny Chung, a Democratic fundraiser, had pled guilty to charges in connection with illegal campaign contributions and had testified that he had been given money by a Chinese official to use for political contributions.

Many of the quotes used in Yellow Face relate to concerns about campaign fund-raising, were not specific to Henry Hwang or Far East National Bank, and occurred prior to the publication of the article about Far East National Bank in 1999.

United States v. Wen Ho Lee

The case about Wen Ho Lee is very complicated, but here are a few points for context.

First, the government initiated its investigation based on concerns that someone had provided information about a nuclear warhead to China in the 1980s, but it was not clear whether someone actually had.  Investigators came to suspect Wen Ho Lee in part because he had been working at Los Alamos National Laboratory in the 1980s (where and when a leak was believed to have occurred), because of his connections to China, and because he had been briefly connected to another suspect in the early 1980s.

Second, news organizations did report that Wen Ho Lee was suspected of espionage months before he was charged with any crimes.  The Wall Street Journal was the first to report on the investigation in January 1999.  The New York Times published a detailed article on March 6 but did not identify Wen Ho Lee’s name.  After he was fired, news organizations began reporting his name, with the New York Times doing so on March 9.  This caused massive condemnation and scrutiny of Wen Ho Lee even though he was not charged and arrested until December 1999, months later.

Third, even though the concerns initiating the investigation were about espionage in the 1980s, Wen Ho Lee was charged with his handling of data on tapes in 1993 and 1994, years later.  Wen Ho Lee has said that he destroyed the tapes, but much of the case revolved around the government’s suspicions that the tapes still existed.

Fourth, Wen Ho Lee was detained and held in solitary confinement largely because of concerns about the tapes.  Judge James Parker ordered Lee detained in December 1999 largely because of concerns that Lee might “reveal to unauthorized persons the location of the seven missing tapes or to assist an unauthorized possessor in understanding and utilizing the information contained in the tapes.”  

Fifth, the case against Wen Ho Lee started to collapse over the course of the next few months, and Judge Parker made several rulings in August 2000 that probably had serious problems for the government’s case.

• On August 23, Parker issued an order allowing Wen Ho Lee to use some classified information in his defense.  For example, Lee could use some information to show that the data at issue was not sensitive or as important as the government had indicated, which would help undercut the government’s arguments about criminal intent.

• On August 25, Parker issued an order showing that he was seriously considering Wen Ho Lee’s “selective prosecution” argument.  Parker specifically ordered the government to provide the Court with information that might support Lee’s “selective prosecution” argument.

• And on August 31, Parker wrote that he now saw a “tableau different from what was described by the government last December.”  The picture of Wen Ho Lee had looked “extremely dark” in December 1999, but Parker had reviewed more information and now saw it as a “somewhat mottled shade of gray.”  The evidence of wrongful intent appeared much weaker, the data’s significance was arguably much less, one important statement that an FBI agent had attributed to Wen Ho Lee turned out to have been misquoted, and the danger posed by Wen Ho Lee’s release was much weaker.  As a result, Parker ordered that Lee be released from jail.

All in total, these rulings probably weakened the government’s case significantly.  The government and Wen Ho Lee quickly worked out a deal under which Wen Ho Lee pled guilty to one count of mishandling data and agreed to cooperate with the government’s investigations regarding the tapes which he said he had already destroyed.  He was then released.

After the criminal case was done, Wen Ho Lee proceeded with a lawsuit against the federal government and several news media organizations based on the leaks in early 1999 about his case.  Ultimately, several reporters were held in contempt for not revealing the sources for their articles.  The reporter who appears to be the basis for the reporter in Yellow Face was initially held in contempt, but that was vacated upon appeal.  In 2006, the case was settled for $1.65 million by the federal government, the New York Times, the Associated Press, the Washington Post, the Los Angeles Times, and ABC News.

Hope you found this useful! Please contact me if you have questions or would like to discuss.

Sources:  Here are some of the sources I consulted.

• “Face Value”

  • Alexis Soloski, New York Times, “David Henry Hwang’s ‘M. Butterfly’ Followup: ‘M. Turkey,” November 1, 2020, https://www.nytimes.com/2020/11/01/theater/face-value-david-henry-hwang-broadway.html (this also has a photo of Mark Linn-Baker and Jane Krakowski from the show)

• Casting decisons

  • Claybrooks v. American Broadcasting Companies, Inc., 898 F.Supp.2d 986 (D. Maryland 2012), https://casetext.com/case/claybrooks-v-am-broad-cos-inc

• Henry Hwang and Far East National Bank

  • Tim Golden and Jeff Gerth, New York Times, “China Sent Cash to U.S. Bank, With Suspicions Slow to Rise,” May 12, 1999, https://www.nytimes.com/1999/05/12/us/money-trail-special-report-china-sent-cash-us-bank-with-suspicions-slow-rise.html

  • Glenn F. Bunting, Los Angeles Times, “Controversy Often Follows Far East Bank Chief Hwang,” April 23, 1989, https://www.latimes.com/archives/la-xpm-1989-04-23-me-1822-story.html

  • Douglas Martin, New York Times, “Henry Y. Hwang Dies at 77; Founded Asian-American Bank,” October 13, 2005, https://www.nytimes.com/2005/10/13/business/henry-y-hwang-dies-at-77-founded-asianamerican-bank.html

• United States v. Wen Ho Lee

  • Wen Ho Lee with Helen Zia, “My Country Versus Me: The First-Hand Account by the Los Alamos Scientist Who Was Falsely Accused of Being a Spy” (published in 2001).

  • New York Times, “Statement by Judge in Los Alamos Case, With Apology for Abuse of Power,” September 14, 2000, https://www.nytimes.com/2000/09/14/us/statement-by-judge-in-los-alamos-case-with-apology-for-abuse-of-power.html

  • Matthew Purdy, New York Times: “The Making of a Suspect: The Case of Wen Ho Lee,” February 4, 2021, https://www.nytimes.com/2001/02/04/us/the-making-of-a-suspect-the-case-of-wen-ho-lee.html

  • Matthew Purdy, New York Times, “The Prosecution Unravels: The Case of Wen Ho Lee,” February 5, 5021, https://www.nytimes.com/2001/02/05/us/the-prosecution-unravels-the-case-of-wen-ho-lee.html

  • William Branigin, Washington Post “Wen Ho Lee Settles Privacy Lawsuit, June 4, 2006, https://www.washingtonpost.com/archive/business/technology/2006/06/05/wen-ho-lee-settles-privacy-lawsuit/ce52e390-9525-4d01-bc6d-30c2bfbf84f8/

  • Special Statement on the Wen-Ho Lee Espionage Investigation, August 5, 1999, https://www.globalsecurity.org/intell/library/congress/1999_rpt/080599_china_espionage_statement.htm

  • The case docket for United States v. Wen Ho Lee, No. CR 99-1417, District of New Mexico.

  • Wen Ho Lee v. Department of Justice et al, 413 F.3d 53 (D.C. Cir. 2005), https://law.justia.com/cases/federal/appellate-courts/F3/413/53/616817/

  • There are many news articles and reports about the Wen Ho Lee case available online, but not much from Wen Ho Lee himself.  He did issue a public statement in May 1999, after the news media had reported about his case and before he was charged.  I could not find the statement available online, but his memoir does include the statement as well as much of the transcript of the March 7, 1999 interview quoted in the play. 

The Roundabout Theatre also has some notes about the facts in the play at https://www.roundabouttheatre.org/get-tickets/upstage-guides-current/yellow-face/the-facts-in-the-fiction/

Sau Ung Loo Chan: A Pioneering Asian-American Lawyer

I have researched a lot of amazing stories of Asian-American legal history, but this one may be my favorite.  I discovered it in a footnote and wanted to know more.

Sau Ung Loo Chan first had to prove her U.S. citizenship during law school in the 1920s. She was one of the first Asian Americans to attend Yale Law School and one of the first women to do so.

On her way back from a student trip to Europe, she was refused re-entry and was threatened with detainment. “After having finished one year at Yale, I knew just enough law to scream ‘habeas corpus’ at the immigration officials, and they finally let me in,” she later recalled.

Years later, she used her training and drive to win perhaps the most important case of her life—proving that her husband was an American.

Sau Ung Loo Chan’s Early Life and Legal Challenges

The case was rooted in family tragedy and drama long before she met her husband, Chan Hin Cheung, and the complicated racial restrictions in naturalization law in the early 20th century.

Chan was born in San Francisco in 1906, but the San Francisco earthquake ruined his father’s health and finances, so the family went to China in 1907, and his father died soon afterward.

Chan grew up in China but wanted to go to the United States to study at Phillips Academy.  His mother was worried he would not return to her, so she let him believe he would be an international student in the United States, not a native-born citizen returning home.

Soon, upon arrival, he began to suspect that he had been born in the United States.  But he did not know until 1927 when he confronted his mother in China, and she admitted the truth.

He tried to clear this up with U.S. immigration authorities in 1928. Still, they were suspicious and concluded that he was an “impostor seeking a return certificate through fraud and misrepresentation.” 

The Struggle for Citizenship

Clearing up his citizenship became a priority after he met Sau Ung Loo, a Chinese American born in Hawaii and attending Yale Law School.  Marriage could have serious legal consequences for her – U.S. law at the time stripped American women of their citizenship if they married a non-citizen.  This law reportedly had been designed to punish rich American women who married European men with titles (think Downton Abbey). Still, the law severely impacted Asian-American women who married Asian-American immigrant men. 

They decided to go to China together to find evidence of his birth, but they ran into trouble.  While he had been in the United States, Chan’s mother had picked out a Chinese girl for her son to marry, and she refused to help prove her son’s citizenship and threatened to never speak with him again unless he broke off the engagement with Sau Ung.

Despite all the legal and familial consequences, Chan Hin Cheung and Sau Ung Loo married in Hong Kong in 1929.  But they did not give up hope.

“You knowing how thoroughly Americanized my wife is and the value she places upon her U.S. citizenship—we being absolutely alike in this respect—I need not stress the importance of our having our status definitely cleared,” Chan wrote in a 1931 letter.

A Family's Second Fight for Citizenship

The second time was more challenging.

Her husband (first name Hin, family name Chan) was born in the United States. Stidid did not know that fact until he was a teenager, so he had inadvertently given false information to immigration authorities when he first entered the United States in 1922.  Clearing this up would be difficult, especially since her mother-in-law refused to help Chan prove his ownership unless he renounced Sau Ung.

Sau Ung and Hin got married in 1929 despite the familial and legal consequences - Sau Ung lost her citizenship by marrying a man whom the U.S. viewed as an ineligible alien to become a citizen (U.S. law at the time prevented Asian immigrants from becoming citizens because they were not “white” and stripped American women’s citizenship if they married someone who was not a citizen).  She managed to get her citizenship restored in 1934, but that still left the citizenship of her husband and that of their daughter unclear (born in 1932 in Hong Kong).

The Legal Battle for Chan Hin Cheung's Citizenship

Proving her husband’s citizenship took more than a decade.

First, she had to convince Chan’s mother to cooperate.  “Year to year, we tried to get reconciled with my mother-in-law, but she refused to have anything to do with us,” she later explained.  Finally, in 1937, Chan’s mother signed the affidavit she had refused to sign eight years earlier.

Second, she had many connections due to her family’s status in Hawaii (her father was a court interpreter, and she had graduated from Punahou School), and she worked there, even managing to meet directly with a top immigration official in San Francisco.  As a result of all this, her husband was released on bond while his case was pending, rather than being detained like many other Asian Americans.

Third, she reached out to people in California and China who could corroborate parts of her husband’s family history and a U.S. official in Panama who had known her in Hong Kong and managed to clear up one inconsistency.

Fourth, she tracked down records showing that her husband was the same boy born in San Francisco in 1906, including a birth certificate that had been assumed to have been destroyed, 11 years of school records, and estate records.

Finally, she testified in an immigration hearing with her husband. At the end, she was asked if she had anything that she wanted to say:

“I want to say that he was born in San Francisco; otherwise, we would have given up the claim long ago.  We had to wait year after year to get help from his mother, and she refused for a long time.  My husband felt that it was rather hopeless.  That is all I have to say.”

Thanks to all her work, immigration officials agreed that there was a “substantial body of evidence” that Chan was born in the United States and was admitted back to the United States as a U.S. citizen.

Sau Ung Loo Chan's Legacy

Not only did Sau Ung win the case, but she impressed immigration authorities so much that they offered her a job! She worked briefly for the government and then began a long and distinguished legal career in Hawaii. In 1994, the Hawaii State Bar Association recognized her legal career, and in 1995, a Chinese organization named her “Model Chinese Mother of the Year.”  She passed away in 2002.

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Stephen Chahn Lee has written about Asian American legal history throughout his time as a lawyer, illuminating the pivotal legal battles fought by Asian Pacific Americans and their role in shaping the rights and freedoms we uphold today. This article was one of a series that Stephen wrote in 2023 and that grew out of an event that Stephen organized for the United States District Court of the Northern District of Illinois, the Federal Bar Association Chicago Chapter, the Asian American Bar Association of Greater Chicago, and other bar associations.

For further insights into the story of Sau Ung Loo Chan or for legal guidance with healthcare fraud defense, please contact Stephen Lee Law.

Sources

• Damon, Annabel. "Local Attorney Makes Hobby of Immigration Law." Honolulu Advertiser, September 13, 1949.

• Fruto, Ligaya. "Small Estates Are Serious Problem to Estate Lawyer." Honolulu Star-Bulletin, January 31, 1960.

• Hacker, Meg. "When Saying ‘I Do’ Meant Giving Up Your U.S. Citizenship." Access online.

• Matsuda, Mari J., editor. Called from Within: Early Women Lawyers of Hawaii. (Includes a chapter on Sau Ung Loo Chan.)

• Volpp, Leti. "Divesting Citizenship: On Asian American History and the Loss of Citizenship Through Marriage." 53 UCLA Law Review 405 (2005).

• Acknowledgements: Special thanks to Jane Park for her assistance with Sau Ung Loo Chan's oral history at Yale Law School, Caroline Kness for organizing archival materials, and the helpful archivist at the National Archives for providing the case file of Sau Ung Loo Chan's husband.

• Appreciation is also extended to Phillips Academy for making its historical yearbooks available online, which provided valuable insights into Chan Hin Cheung's background.

Loving v. Virginia: The JACL Argues for Interracial Marriage

When the United States Supreme Court held in 1967 that bans on interracial marriages were unconstitutional, a Japanese American civil rights group helped win this victory.

In the 1960s, Virginia was one of 17 states that banned interracial marriages.  Virginia’s ban declared that “all marriages between a white person and a colored person shall be void without any decree of divorce or other legal process” and defined “white” as a person “who has no trace of whatsoever of any blood other than Caucasian.”

The Landmark Case of Loving v. Virginia

Many groups supported Mildred and Richard Loving when they challenged Virginia’s law.  The Japanese American Citizen League was the only one that filed an amicus brief and was given leave to argue before the Supreme Court.

During oral argument, Supreme Court justices had two questions for William Marutani, the JACL’s general counsel at the time.

William Marutani's Contribution to the Case

First, Marutani was asked if Virginia’s law would meet equal protection requirements if it banned all people of all races from intermarrying. He argued that the law would still be unconstitutional because it was, at heart, a “white supremacy” law, in addition to being one that was unworkable practically.

Second, Marutani was asked if Japan prohibited interracial marriages. He had already introduced himself as a Nisei – an American born and raised in the United States – and said he did not know. He said that his mother might have objected to his marrying a white person by “custom,” but the state should have no role in this area.

Later, Virginia’s attorney tried to defend the state’s ban as preventing only marriages between white and “colored” people. This argument was odd and probably just wrong since Virginia’s Supreme Court had upheld its ban to annul the marriage of a Chinese man and a white woman just a decade earlier in the Naim v. Naim case.

The Supreme Court's Historic Decision

Ultimately, the Supreme Court held Virginia’s ban unconstitutional for depriving the Lovings of liberty without due process of law. In a footnote, the Supreme Court said that it need not decide the equal protection argument that some justices had been thinking about because “we find the racial classifications in these statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the ‘integrity’ of all races.”

William Marutani's Legacy Beyond Loving v. Virginia

As for Marutani, he later became the first Asian American judge in Pennsylvania. He also served on a commission that studied the incarceration of Japanese Americans during World War II and recommended that the U.S. government issue a formal apology and make reparations payments, which happened in the 1980s.

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Stephen Chahn Lee has written about Asian American legal history throughout his time as a lawyer, illuminating the pivotal legal battles fought by Asian Pacific Americans and their role in shaping the rights and freedoms we uphold today. This article was one of a series that Stephen wrote in 2023 and that grew out of an event that Stephen organized for the United States District Court of the Northern District of Illinois, the Federal Bar Association Chicago Chapter, the Asian American Bar Association of Greater Chicago, and other bar associations.

For further insights into Loving v. Virginia or legal guidance with healthcare fraud defense, please contact Stephen Lee Law.

Sources

• Muto, David. "An Unsung Hero in the Story of Interracial Marriage." New Yorker, November 17, 2016. Read here.

• "Oral Argument Transcript of Loving v. Virginia." Access online.

• I would like to give special thanks to Nancy Marutani for providing a copy of the Japanese American Citizens League's amicus brief and for sharing insights about her father, William Marutani.

Before Brown: The Lum Family's Fight for School Equality

Decades before Brown v. Board of Education, the Lum family challenged segregation in public schools on behalf of their daughter Martha. There are many amazing immigrant mothers out there, but Katherine Lum stands out and should be better known.

A Family’s Fight Against Segregation Before Brown v. Board of Education

Martha had been going to school with white children for years, and she was a straight-A student.  But on her first day of high school, she was told that she, her sister, and two other girls had to leave.  Mississippi’s constitution at the time required separate schools for “children of the white and colored races,” and the school policy treated Chinese as “colored.”

There were not many Asian Americans in the South in the 1920s, but there were a few hundred Chinese in Mississippi along with two Hindus and one Filipino, according to 1920 census data.  Katherine Lum had come to be a servant for a Chinese merchant.  Jeu Gong Lum had entered the country illegally and had come to the South for work.  They met, married, and had their children in Mississippi.

Other families accepted the school’s policy, but Katherine Lum would not back down.  She and her husband convinced former Mississippi Governor Earl Brewer to bring a case. 

The Lum Legal Battle and Its Aftermath

“The state collects from all for the benefit of all.  Martha Lum is one of the state’s children and is entitled to the enjoyment of the privilege of the public school system without regard to her race,” Brewer argued before the Mississippi Supreme Court in 1925.

The Lums lost their case – the Mississippi Supreme Court ruled unanimously in favor of school segregation.  They then appealed to the United States Supreme Court, but a different lawyer handled the appeal.  His brief was so bad that one of the justices asked about getting the Lums a better counsel, but this lawyer stayed on and even waived oral argument. 

The United States Supreme Court unanimously affirmed the Mississippi Supreme Court’s decision in 1927, letting stand racial segregation within public schools until Brown v. Board of Education in 1954.  

As for Martha, her sister and her younger brother, Katherine Lum sent them to a relative in Michigan, where they were able to attend public schools with other immigrant children, albeit in very difficult family circumstances.  Katherine then found a white school in Arkansas that agreed to take her children and moved the family there.  Martha and her sister graduated from high school in 1933.

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Stephen Chahn Lee has written about Asian American legal history throughout his time as a lawyer, illuminating the pivotal legal battles fought by Asian Pacific Americans and their role in shaping the rights and freedoms we uphold today. This article was one of a series that Stephen wrote in 2023 and that grew out of an event that Stephen organized for the United States District Court of the Northern District of Illinois, the Federal Bar Association Chicago Chapter, the Asian American Bar Association of Greater Chicago, and other bar associations.

For further insights into the story of the Lum family’s fight for school equality or for legal guidance with healthcare fraud defense, please contact Stephen Lee Law.

Source Acknowledgement

This article draws extensively from Adrienne Berard's insightful book, Water Tossing Boulders: How A Family of Chinese Immigrants Led the First Fight to Desegregate Schools in the Jim Crow South. Special thanks to Adrienne Berard for her invaluable book and assistance.

When Citizenship Depended on Race: Discussing Pre-World War II Restrictions

When citizenship depended on race, Asian American immigrants faced numerous barriers to becoming U.S. citizens before World War II. This introduction offers a visual journey through the history of these racial restrictions. Initially created for a webinar hosted by the Asian American Bar Association of Greater Chicago, the Federal Bar Association, and the National Asian Pacific American Bar Association, I am now broadening the reach of this critical narrative.

Exploring a Time When Citizenship Depended on Race

First, the naturalization law of 1790 restricted U.S. citizenship to “free white persons.”  At that time, the U.S. population was 80 percent white and 20 percent black (18 percent enslaved person, 2 percent free).  

Second, in the 1800s, Chinese immigrants started seeking U.S. citizenship, and some did become citizens thanks to judges who read the naturalization law’s restriction very narrowly.  This helped contribute to a legislative backlash – an 1882 law specifically excluded the Chinese from naturalization and led to a slight decline in the Chinese American population.

Third, as other Asian immigrants came from different counties, they also sought citizenship, especially as some states required U.S. citizenship to own property and work in some professions.  In 1922 and 1923, the U.S. Supreme Court held that Japanese and Hindu people were not “white” and thus were not eligible for citizenship.

Fourth, these restrictions had real consequences for Asian Americans, professionally and personally.  This has significant implications for families since immigrants’ children were U.S. citizens if born in the United States, but the immigrants could not become citizens.  

Finally, the United States started easing these restrictions in the 1940s and 1950s, in part because of international relations during and after World War II. In 1952, race was finally stricken as a requirement for citizenship. Further changes to immigration law in the 1960s led to a huge growth in the Asian American population.

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Stephen Chahn Lee has written about Asian American legal history throughout his time as a lawyer, illuminating the pivotal legal battles fought by Asian Pacific Americans and their role in shaping the rights and freedoms we uphold today. This article was one of a series that Stephen wrote in 2023 and that grew out of an event that Stephen organized for the United States District Court of the Northern District of Illinois, the Federal Bar Association Chicago Chapter, the Asian American Bar Association of Greater Chicago, and other bar associations.

For further insights into pre-World War II American citizenship restrictions or for legal guidance with healthcare fraud defense, please get in touch with Stephen Lee Law.

Sources

Gibson, Campbell, and Kay Jung. Historical Census Statistics on Population Totals by Race, 1790 to 1990, and by Hispanic Origin, 1970 to 1990, for the United States, Regions, Divisions, and States. U.S. Census.