The Volokh Conspiracy
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It's Time for the Commission on Civil Rights to Stop Using Words Like "Racism," "Xenophobia," "Hate," and "Hateful" So Indiscriminately
A Statement by Two Commissioners.
On March 20, 2020, the U.S. Commission on Civil Rights issued a statement expressing "grave concern" and "alarm[]" over "recent demonstrations of violence and hate toward people of Asian descent." It warns of a "growing anti-Asian racism and xenophobia." For the reasons we will explain below, we declined to support that statement.
We agree, of course, that COVID-19 is no excuse for anyone to attack or insult individuals of Asian descent and that when such acts rise to the level of criminal behavior, law enforcement should immediately intervene. But that's obvious to just about everyone in America. The rare exception is unlikely to read the Commission's statement, much less be persuaded by it.
It is important to keep things in perspective. Given that the population of the United States is estimated to be over 330,000,000, the litany of incidents in the Commission's statement is really quite small; most involve misbehavior by children or teenagers. Yes, a nine-year-old child in New Jersey was told by a classmate, "You're Chinese, so you must have coronavirus." But that's why we send nine-year-olds to school; they've got a lot to learn. For adults to view the statement as hateful would be over the top. We're talking about a child.
More serious is the case of the New York teenager who kicked an Asian-American man in the back, knocking him to the ground. Surely that is (and should be) a matter for the police. Fortunately, there is nothing to show this thuggish behavior represents a wave of racial violence.
Here is our biggest objection: The Commission make the ill-advised suggestion that referring to COVID-19 with terms like "Chinese coronavirus" is somehow fueling "[t]his latest wave of xenophobic animosity toward Asian Americans." It is common to refer to infectious diseases by their geographic origin. Examples include Asian flu, Bolivian hemorrhagic fever, Brazilian hemorrhagic fever, Ebola, German measles, Japanese encephalitis, Lyme disease, Marburg virus, Middle East respiratory syndrome (MERS), Pontiac fever, Rift Valley fever, Rocky Mountain spotted fever, Spanish flu, Venezuelan hemorrhagic fever, and West Nile virus. In the case of Spanish flu, it was probably a misnomer. That disease likely originated in Kansas instead. But calling it the Spanish flu was never an indication that people hated Spaniards. It was simply a case in which the Spanish press reported on the flu extensively while the American press was preoccupied with World War I and subject to censorship. People therefore made the mistake of believing it originated in Spain.
It is counter-productive to hector the American people (or its leaders) about describing the COVID-19 as "Chinese" or as having originated in China. It did originate there. Ordinary Americans—of all races and ethnicities—who harbor no ill will toward anyone don't like to have the U.S. Commission on Civil Rights imply that that they are fueling the flames of xenophobic animosity. We can't blame them. It is insulting.
Our colleagues on the Commission close their statement by writing under the current circumstances no American should be "ostracized solely because of their race or national origin." That is certainly sensible enough. We would add that Americans should not be ostracized on account of false accusations that their conduct has been racist, xenophobic and hateful. The promiscuous use of those terms needs to stop.
Gail Heriot & Peter N. Kirsanow, Members, U.S. Commission on Civil Rights
