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Challenges Facing the Arab American Community from a Legal Perspective

1The Constitution of the United States is one of our most precious resources for understanding the basic rights that are the backbone of the American legal system. Everyone in the United States—citizen, permanent resident, visitor or foreign student—has some rights and protections in common, which are granted by the United States Constitution.

2Three amendments to the Constitution are particularly important for you to know about. The First Amendment of the U.S. Constitution guarantees the right of freedom of expression for everyone. This very short amendment ensures that everyone in this country may express his or her own opinions and beliefs in public. Because of the First Amendment, it is entirely legal for a person to attend a political rally or work for a political group openly, whether that person is a U.S. citizen or not. For example, the right of a foreign student to join student organizations that address political issues is protected under the First Amendment. Additionally, this amendment enshrines the freedom of religion for all individuals to espouse a religious belief or to have no religious belief.

3The Fifth Amendment guarantees that no person shall be deprived of life, liberty or property without “due process of law.” This means that any action such as arrest, imprisonment or deportation, must be in accordance with the law, whether it is local, state or national law. The Fourteenth Amendment also guarantees this right, and it emphasizes that everyone must be treated equally under the law. It doesn’t matter whether the individual is a citizen or foreign visitor, irrespective of belonging to an ethnic minority, or being a man or a woman, or a religious observer, everyone has the right to equal treatment and protection under the law.

4Additionally, other federal laws safeguard our basic rights. For example, the Civil Rights Act prohibits discrimination against anyone exercising his or her constitutional rights, privileges and immunities. This applies to both citizens and non-citizens. The Civil Rights Act provides the legal means for an individual to protest, should he or she encounter discrimination when trying to rent an apartment, applying to schools or universities, and applying for a job. The Civil Rights Act provides the right to fair and equal treatment in one’s daily and private life, and persons engaging in discrimination can be prosecuted under the act.

5The Freedom of Information Act (FOIA) guarantees citizens the right to obtain documents about themselves from federal departments and agencies without having to declare a reason for requesting them. The FOIA has been a tool for Americans to correct injustices, abuses and corruption in government; it is a way to keep government honest and open. And finally, the Privacy Act guarantees everyone, citizens and non-citizens, the right to examine records pertaining to an individual in order to correct any errors.

Challenges Facing the Arab American Community

Racial Discrimination

6Throughout the more than 100 years of Arab immigration to the U.S., there has been the perpetual need to clarify, accommodate and reexamine the status of the community. The issues facing Arab Americans are an integral part of the larger discourse on ethnic and hyphenated American identities. Within hours of the terrorist attacks of September 11, Americans Middle Eastern and South Asian descent were targeted for acts of hate, violence, discrimination, racial profiling, and economic ruin as a direct result of the heightened negative generalized media and government scrutiny of Arabs.

7As a commentator states, “what has been happening to Muslims, Middle Easterners, and South Asians in the United States in the wake of September 11 is a process of ostracism from the American community—a de-Americanization process—that we have witnessed before.”¹ The result is that Arab Americans are cast as “perpetual foreigners,” deemed as being loyal to their country of origin, rather than to America, and hence disloyal and subversive.² Such views, when converted into actions, are direct examples of discrimination against Arab Americans. Hateful words, acts, and deeds of private citizens are examples of how such actions serve to “de-Americanize” the Arab Americans population.

8A few examples and accompanying explanations illustrate this point.³ First, in a suburb of Chicago a crowd of three hundred protestors, many waving American flags and chanting “USA! USA!” marched on a mosque. By chanting, “USA! USA!” the marchers are engaging in behavior more appropriate for an international sporting event such as the World Cup Soccer Finals, when in fact, the crowd has surrounded a mosque, a house of worship, and on American soil. The unfortunate message is that the crowd is marching on behalf of our country, not yours, and a mosque is viewed as an anti-USA symbol.

9Another example is an incident in which a Pakistani American was threatened with death for “destroying my country.” The translation of this action: the United States is not the victim’s country. Similarly, in the next example, an Arab American victim was stabbed for what has been “done to us.” Again, the meaning here is exclusion the victim is “not one of us.” One final example: victims of a hate crime are told to “go back to your country.” The message here is that the victims “don’t belong in the United States.”

10These acts of hatred and racial profiling bear one message in common— exclusion: “You Muslims, Middle Easterners, and South Asians are not true Americans.”⁴ The assault is on the loyalty of the victims, irrespective of the victim community’s possible longstanding status in the country. The members are cast out as “perpetual foreigners.” The victim community is forever regarded as “immigrant America,” as opposed to being a welcomed part of America’s diversity.⁵

Hate Crimes

11The Federal Bureau of Investigation (FBI) defines a hate crime as a

criminal offense committed against a person, property, or society which is motivated, in whole or in part, by the offender’s bias against a race, religion, disability, sexual orientation, or ethnicity/national origin.⁶

Hate crimes refer to criminal acts that are motivated by particular types of bias or prejudice. Although age old, hate crimes have developed as a special category of American criminal law in the past quarter century. Most states have adopted laws explicitly criminalizing hate crimes or enhancing penalties for underlying crimes where bias is a motivating factor (or both). Additionally, the Hate Crimes Statistics Act (HCSA) of 1990 requires the Justice Department to collect information about hate crimes as part of its regular information-gathering function. HCSA defines hate crimes in terms of twelve predicate offenses (such as crimes against property or persons) and five types of bias (race, religion, sexual orientation, ethnicity, and disability).⁷ In conjunction, the Violent Crime Control and Law Enforcement Act of 1994⁸ provides for enhanced penalties in cases of hate crimes. The Justice Department’s collected data is published annually in the Uniform Crime Report (UCR). HCSA reports of religiously based hate crimes list anti-Islamic ones as a specific category.⁹ HCSA traces ethnic hate crimes in only two categories: anti-Hispanic and “all other.”

12To summarize, the 2002 Hate Crimes Report indicates that anti-Islamic and anti-Arab hate spiked remarkably in 2001, receded in 2002, but did not decline to their pre-September 11 levels.¹⁰

13Since not all hate crimes are reported to local police, the data should not be read to represent the actual incidence of hate crimes. They reflect only the reporting of hate crimes to local police, and, even then, only the portion that local police agencies go on to report to the federal government. The data almost definitely underreport the actual incidents of hate crimes.¹¹ If anti-Islamic and anti-Arab hate crime reports continue at this level, these crimes, along with the already-high levels of other hate crimes, deserve heightened attention through future policy initiatives.

Civil Rights Abuses: Official Government Policies after September 11

14The USA Patriot (“Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act¹² provides the legal framework for much of the “war on terrorism.” This act gave the government broad new investigative powers as well as the power to detain and deport—based on little or no information—those who are believed to pose a special threat. The act raised immediate alarms within the civil rights and civil liberties communities. A number of civil rights organizations raised concerns about the “guilt by association” framework and the vague terms that are used to define groups supporting terror. The Act has been the source for a series of Department of Justice initiatives and executive orders that gave the government more investigative powers and changed immigration rules to make them more restrictive to those coming from Middle Eastern countries.

Racial Profiling

15By definition, racial profiling is treating someone first as a “suspect,” based solely on the false belief that a person’s race, ethnicity, and/or religion alone is a sufficient predictive indicator of potential criminal behavior. Racial profiling denies persons equal treatment and protections under the laws.

16In the 1960s and early 1970s such generalizations were referred to as “racial stereotypes” and Americans were taught that acting on them constituted “prejudice” or “racism.” Today, it is called racial profiling. The only difference now is that it has a more politically correct name. According to recent polls, 66 percent of whites and 71 percent of African-Americans support the ethnic profiling of individuals who look to be Arab.¹³

17Violent acts carried out by individuals against Arabs, Muslims, and South Asians have been accompanied by documented official government actions.¹⁴ There are countless stories of Arabs and Arab-Americans being singled out for “suspect” (criminal) treatment based on nothing more than their physical features and attire. These assaults are on the rise increasingly in the time period surrounding “the war on terrorism.” The Arab American community has been increasingly stigmatized and demonized as a so-called “terrorist” threat. For example, President Bush issued an executive order authorizing the creation of military tribunals to try non-citizens alleged to be involved in international terrorism. A number of U.S. Muslim charities were targeted for scrutiny, resulting in freezing of assets, seizure of records, charges filed against officers accused of aiding groups defined by the government as terrorist organizations, and the raiding of offices and homes of individual officers of these organizations. In addition, the incidents of Arabs being stopped, interrogated, and detained at airports and other border points has skyrocketed.¹⁵

18Official government policies not only injure the legal rights of Arab Americans but of all Americans. One unfortunate effect of the intensified scrutiny was that many attorneys settled cases involving Arabs on terms that would have been unacceptable before September 11. Today, a traffic stop is more than just a routine check if the motorist is an Arab.¹⁶ When Arabs are arrested, even those who have lived here for decades, judges often deny bail or set it at significantly higher figures than for non-Arab defendants. Even in the realm of domestic relations cases, prejudice about Arab culture has affected the treatment of Arabs. The police and prosecutors often treat Arab men more harshly than non-Arab defendants because of prevalent racist stereotypes.¹⁷

19Professor Leila Nadya Sadat, former Commissioner, U.S. Commission on International Religious Freedom, points out that there has been “a disturbing tendency in U.S. government’s public discourse to consider Arabs and Muslims as less deserving of normal courtesies than other ethnic or religious groups.”¹⁸ She cites as an example the President Bush’s appointee to the U.S. Civil Rights Commission, Peter Kirsanow, who stated that if there was a future terrorist attack in America, “and they come from the same ethnic group that attacked the World Trade Center, you can forget about civil rights.”¹⁹ Kirsanow even suggested that the establishment of internment camps for Arab-Americans would be a foreseeable scenario if Arab terrorists strike again in the U.S.²⁰

Immigration

20Since September 11, the government’s most vigorous racial profiling practices have come in the immigration context, and mainly on a theory of preventive law enforcement.²¹ The United States government has developed a corpus of immigration law and law enforcement policy that by design or effect applies almost exclusively to Arabs, Muslims, and South Asians. Most blatant has been the program dubbed “special registration” instituted by the Department of Justice (DOJ), ostensibly to catalog immigrants of all nations. Rather, the program required certain immigrant men, from twenty-six countries, all but one of which a non-Arab or non-Muslim country, to register with the government and to submit to interrogations.²² When Arabs and Muslims showed up in good faith, thousands were arrested and imprisoned for periods of time ranging from days to months. Many of the prisoners were treated extraordinarily harshly and inhumanely, despite that fact that the overwhelming majority of them had committed no crime whatsoever. (Furthermore, the Justice Department never called for the registration of immigrants from non-Arab and non-Muslim countries.)²³

21The selective enforcement against Arabs, Muslims, and South Asians of pre-existing immigration laws is another example of government sanctioned violation of the rights of individuals from these backgrounds.²⁴ In January 2002, the DOJ announced the Alien Absconder Initiative, purporting to identify and deport 315,000 undocumented people who have ignored court orders to leave the United States.²⁵ Although theoretically applicable to all immigrants, the government announced that the program would begin with six thousand immigrants from Muslim countries despite the fact that such immigrants comprise only a small percentage of “absconders.”²⁶ In some instances, the government has relied on obscure and previously un-enforced immigration laws, and applied them, seemingly exclusively, against Arabs, Muslims, and South Asians. Chief among these is a requirement that immigrants notify the INS of a change of address within ten days of moving.²⁷

Workplace Discrimination

22Similar to the national average, about 64 percent of Arab American adults are in the labor force with 5 percent unemployed. Seventy-three percent of working Arab Americans are employed in managerial, professional, technical, sales or administrative fields. Most Arab Americans work in the private sector (about 88 percent), while 12 percent are government employees.²⁸

23Post-September 11 backlash has significantly spilled into the employment arena, exacerbating an already long-standing problem. Harassment of Arab Americans at work apparently became an act of patriotism for some of their coworkers. The types of comments and epithets became increasingly more threatening and intimidating with more terrorist references, and linking anyone from any country in the Middle East to terrorists and suicide bombers. ²⁹

24From September 11, 2001 to February 11, 2004, 904 charges were filed with the EEOC alleging post- September 11-backlash discrimination. The charges in this category include national origin discrimination claims by an individual who is or is perceived to be Muslim, Arab, Afghani, Middle Eastern or South Asian or individuals alleging retaliation related to the terror events. The primary claims were “wrongful discharge” (employment termination because of their national origin) and “harassment.” In addition, Arab Americans were also not hired and denied promotions because of their national origin. The harassment included offensive epithets, e.g. “sand n—,” “camel jockey,” “terrorist,” “suicide bomber,” and “political“ comments such as “we should turn the Middle East into a parking lot.” These types of remarks provided ample support for harassment claims and, if uttered by a decision maker, provided pretext proof that the decision was made based on national origin, as opposed to the legitimate business reason cited by the employer.³⁰

25In EEOC v. Poggenpohl, No. 03-CV-6190 (S.D.NY., filed 8/19/03), the Charging Party, a woman of Egyptian origin, was harassed because of her national origin and religion and was terminated (after 20 years of employment) because she complained about it. More specifically, the Charging Party was often called “Mrs. Osama bin Laden.” The same coworker said all Arabs and Muslims were stupid and lazy.³¹

26In a class action post-9/11 harassment case against the Plaza and Fairmont HotelandResorts, Inc., the plaintiffsalleged that Muslim, Arab, and South Asian employees were subjected to a hostile work environment including being called “Osama,” “Al Queda,” “Taliban” and “dumb Muslim.” They were accused of destroying the World Trade Center and the country. Even the managers joined in the harassment by writing “Osama Binladin,” [sic] “Alkada,” [sic] and “Taliban” instead of the employees’ names when giving them key holders. See EEOC v. Plaza and Fairmont Hotel and Resorts, Inc., No. 03-CV-7680 (S.D.N.Y., filed 9/30/03).

27Religious discrimination charges (in general) made up 1.9 percent of all charges filed in 1992. However, in 2004, they accounted for 3.1 percent according to the Equal Employment Opportunity Commission. The number of charges filed by Muslims alleging discrimination doubled from the four years before the 9/11 terrorist attack in 2001 to 2005, four years after the fact.³²

28Companies have a duty, and are legally bound, not to discriminate against anyone based on religion. Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on religion, national origin, race, color or sex. But still, employers discriminate against individuals for things such as wearing a hijab (headscarf), both subtly and not so subtly. Here is a narrative from a woman who faced religious discrimination due to wearing a headscarf. “While I may wear this external symbol of faith, I consider my faith intensely private and will never discuss it unless someone asks me something. When I walk into interviews, I find that literally interviewers’ jaws drop. They are excited on the phone, but in person they lose the energy.” The woman was born and raised in the U.S. (not that it should matter) and is well educated, with a master’s degree in public policy, and has six years of work experience.

29According to the First Amendment of the U.S. Constitution, the exercise of religion is protected, and wearing the headscarf is an exercise of religion. Many Muslims feel more conspicuous, particularly if they choose to wear a headscarf, because it is more of an easy symbol to identify a person’s faith and make them subject to negative stereotypical backlash.

30The headscarf/hijab debate has been waged in schools as well. Nashala Hearn, an 11-year-old sixth-grade student at Ben Franklin Science Academy in Oklahoma was suspended twice for wearing the scarf. School officials said the headscarf violated the school’s dress code, which prohibits hats, bandanas, or jacket hoods inside the building. The U.S. Department of Justice joined the suit on behalf of the student and accused the Muskogee School District of violating the equal protection clause of the 14th Amendment to the Constitution. The court’s holding protects a student’s right to wear the headscarf.³³

What Can Be Done to Prevent Discrimination?

31Government leaders (starting with the president) can prevent governmental discrimination during a crisis by reminding citizens that Arab Americans are Americans afforded the same constitutional safeguards as other citizens.³⁴ In reminding the public, government leaders remind themselves to not discriminate. An example is President Bush’s address to Congress following the September 11 attacks when he urged Americans to not discriminate against Arab Americans despite the recent terrorist attacks on the Pentagon and the World Trade Center.³⁵ On another occasion, President Bush stated, “there are thousands of Arab Americans that live in New York City who love the flag just as much [as other Americans].”³⁶ President Bush visited a mosque in Washington, D.C., a very important gesture.³⁷

32But at the same time, the government had authorized the roundup of Arab and Muslim immigrants, and put forth proposals to take away civil liberties and rights that sent exactly the opposite message: “We’re not just going to focus on specific terrorists, we’re going to focus on an entire community. The government was telling Americans not to engage in discrimination, and yet it was engaging in that very form of discrimination.”³⁸

33Law enforcement agencies and prosecutors can prevent governmental discrimination against Arab Americans during a crisis by vigorously investigating and prosecuting those who racially discriminate, engage in hate crimes, etc.³⁹ Vigorous investigation and prosecution will inhibit future acts of racial discrimination by sending a clear signal to the public and those in government that racial discrimination will be punished, thus inhibiting future acts of racial discrimination. Hate crime law is an important tool in this effort.

34There needs to be greater awareness and recognition on the part of the American public that the individual rights of all are at risk, and not only those of one community. Until then, there will not be the level of engagement in Congress necessary to fix the civil liberties problems. Initiatives in areas like immigrant detention have primarily affected Arabs and Arab-Americans. However, many of the checks and balances that once existed and have now been taken away could affect the liberties of everyone in the future.⁴⁰

35Once average Americans feel their rights or liberties are at stake, the abuses toward Arab-Americans help confirm their fears: “Well, I don’t think I’m going to be indefinitely detained in a military prison, but if the government is willing to do that to someone who is Arab or Muslim, maybe it is willing to do other things generally that I object to that may affect my life and my liberties.”⁴¹

Ideas for Preventing and Combating Bias in Schools

36Children of Arab descent have also endured increasing incidents of bias as a result of anti-Arab rhetoric on television and newspapers in the aftermath of September 11. Educators can play an important role to correct misimpressions by providing opportunities in the classroom to explore cultural generalities and move students to a richer understanding of all human contributions to contemporary life.The goal being to bring about a positive change in attitudes and behavior, promoting greater respect for students of Arab ancestry, and a better understanding of the Arab world.⁴² A negative event can be the catalyst for bringing about a positive change at the level of classroom relationships.

37For instance, Anti-Arab “jokes” and epithets are a common problem. However, the situation can be addressed by conveying the message to students that personal identity is serious, and others’ feelings matter and should be respected. Also, educators can help children counteract the stereotypes that they absorb from popular culture by providing an in-depth understanding of social, cultural and historical reality of the Arab world. One means is teaching students critical thinking skills to recognize stereotypes and to critique the rhetoric of the media, government officials and “experts.” It is possible to integrate material about the Arab people and the Arab world into all classes at school, including world history, literature, music, geography, math and science, government and democracy, sociology, current events, cooking, reading, politics and so forth. Teachers should not dismiss the Middle East conflict as “too complex” or “too controversial.”

38Bias-free textbooks and classroom resources are integral to the goal of fostering a better understanding of the Arab world. Teachers are encouraged to look critically at the textbooks and reading material throughout the school curriculum to identify bias and to ensure Arabs and the Islamic word are represented fairly and in comparison with the coverage of other regions and civilizations.

39Many valuable resources can be found on the web. The New York Times maintains a learning aid that provides lesson plan ideas for middle school and high school teachers examining the issue of racial profiling of Arab Americans and other Middle Easterners. These lessons include investigating American policies after 9/11 and using skits to examine individual views toward Arabs. Additionally, lesson plans on a variety of topics such as Islam, Stereotypes, Arab Culture and Society, and many others can be found on the American-Arab Anti-Discrimination Committee (ADC). Another website to help students become more aware of the dynamics of cultural bias, Engaging Schools, is sponsored by the ADC. 

40Reliable information concerning textbooks can be obtained from organizations such as the ADC that have evaluated textbooks for accurate Arab portrayals. The Text Evaluation Project conducted by the Middle East Studies Association (MESA) and The Middle East Outreach Council (MEOC) has published a critique of evaluations of Arab depictions in textbooks.⁴³

41For teachers interested in teaching factual information about Islam and Muslims, the Council on Islamic Education maintains a website to provide accurate information on various Islamic holidays such as Ramadan, Eid, and Hajj. They also offer teachers’ guides on Islamic traditions and holidays. This information can be found at http://www.cie.org/modules.aspx?id=N&moduleid=52.

42In the event that you feel your school has not yet created an atmosphere of genuine openness, understanding, and acceptance of ethnic minority groups (in this case Arab or Muslim), it may be more a problem of effective implementation of schoolpolicy than of the attitudes of individuals. The solution may require a stronger school policy against harassment and more conscientious efforts to reach out to the community. This could consist of meetings with parents and community leaders at the school or at a parent or community leader’s home, church, mosque or community organization. For example, “town meetings,” Ramadan dinners and other social and educational events can be organized (such as setting up cultural exhibits or teacher in-service programs) to build positive relationships with educators.⁴⁴