SSN Brief on Culling the Masses

HOW LEGACIES OF RACISM PERSIST IN U.S. IMMIGRATION POLICY

By David Scott FitzGerald, University of California, San Diego, and David Cook-Martín, Grinnell College

The United States has always been a nation of immigrants, but for most of its history U.S. law treated newcomers differently according to race.Between 1790 and 1952, legislators restricted naturalization– the process by which immigrants become citizens– to particular racial and ethnic groups, with a consistent preference for whites from northwestern Europe. Laws restricted black immigration beginning in 1803, and a series of subsequent measures banned most Asians and limited access by immigrants from southern and eastern Europe.The U.S. example proved contagious, as our research shows, because every country in the Western Hemisphere followed the U.S. practice of discriminating against certain immigrants by race and ethnicity.

By now, all countries in the New World have eliminated and repudiated legal provisions aimed against particular racial categories– but discrimination continues in more subtle forms. In the United States, reforms in 1965 ended the system of assigning different immigration quotas for each nationality in ways that favored northwestern Europeans. In addition, the U.S. Senate passed a resolution in 2011 symbolically repudiating anti-Asian measures such as the 1882 Chinese Exclusion Act (which had been legally rescinded in 1943) as “incompatible with the basic founding principles recognized in the Declaration of Independence that all persons are created equal” and “incompatible with the spirit of the United States Constitution.” Formally, therefore, U.S. immigration law is no longer based on ethno-racial criteria and real changes in immigration practices have greatly diversified the racial and ethnic make-up of the United States over the past half century.

Yet current U.S. immigration law retains subtle provisions reprising earlier efforts to privilege certain kinds of new arrivals and block others. Our research pinpoints these persistent legacies of discrimination and shows how they work to favor traditionally advantaged groups.

The False Equality of Preference Visas

A third of new legal immigrants to the United States hold “preference visas” sponsored by employers and certain kinds of family members of current U.S. citizens and permanent residents. Preference visas are not equally available, however, because each
sending country’s nationals have the same annual cap regardless of that country’s population or the size of its migration stream to the United States. Big countries with extensive migration histories like the Philippines
and Mexico have the same cap–about 26,000 visas a year–as countries like Andora or Lesotho with small populations and little history of migration to the United States.

In practice, this system means that Filipinos and Mexicans typically wait in line outside the United States more than twice as long as people from other countries. Filipino siblings of adult U.S. citizens are currently waiting 24 years and Mexicans are waiting 16 years, compared to 12 years for nationals of other countries. Mexican married adult children of U.S. citizens are waiting 21 years and Filipinos are waiting 20 years, compared to 10 years for other nationals. The discrimination so evident here is deliberate. When Congress ended the national- origins quotas in the 1960s, lawmakers implemented a policy of seemingly “equal” country caps in order to limit legal immigration from Mexico and countries in Asia.

New Back Doors for Europeans

Some lawmakers and ethnic lobbies continue to search for ways to favor Europeans without saying so. The most successful strategy has been to craft subtle mechanisms that make it easier in practice for Europeans to enter the United States, inserting those mechanisms into major immigration reform bills where they are little noticed because debate is dominated by broader questions.

  • The 1986 Immigration Reform and Control Act is remembered mostly for ending longstanding national-origins quotas favoring northwest Europe. But, quietly, the 1986 law also included extra visas for nationals from 36 countries , mostly in Europe.
  • The Diversity Visa program launched by the 1990 immigration reform bill also had biases.
    Congressional debates and hearings show that the intention was to increase the numbers of Europe an immigrants without using discredited national-origins quotas. Some 50,000 Diversity Visas are distributed each year in a lottery for nationals of countries that are not otherwise major sources of immigration. Ineligible for these special visas are people from nineteen countries–all but three of them in Latin America, the Caribbean, and Asia.
  • In the latest effort to bring Europeans in through the back door, Democratic Senator Charles Schumer of New York introduced a bill in 2011 that would provide 10,000 special annual visas for Irish citizens–not strictly immigrant visas but indefinitely renewable.

Ironically, intentions sometimes fail to pan out. For example, although the goal of the 1990 Diversity program was to boost the numbers of Europeans, in practice, the lottery has benefited nationals from African countries. The only European country of origin to crack the top ten has been the Ukraine, surely not the intended beneficiary for politicians catering to Irish-American and Italian-American voters. Despite such misfires, Congress has repeatedly tried to craft new preferences for traditionally favored groups in an era when explicit discrimination is illegitimate.

Will the Next Immigration Reform Institute True Equality?

The next round of U.S. immigration reforms could at last put all potential newcomers on the same footing. In June 2013, the Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act, which has the support of President Barack Obama but remains blocked in the Republican-controlled House of Representatives. Significantly, this legislation, or future legislation like it, would repeal the Diversity Visa program, eliminate country limits for employment-based visas, and increase country limits for new arrivals with ties to family members already in the United States. By admitting all new Americans not by country of birth but based on skills, occupations, and ties to relatives, such reforms would go a long ways toward making the United States, at last, truly an equal nation of immigrants.


Read more in David Scott FitzGerald and David Cook-Martin, Culling the Masses: The Democratic Origins of Racist Immigration Policy in the Americas (Harvard University Press, 2014)

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Slate interview on Culling the Masses

Scarily, the potential congressman’s credo is nothing new. Here’s the truth on America’s racist immigration policy

BY ELIAS ISQUITH   JUNE 12, 2014

David Brat (Credit: AP/Steve Helber)

While Speaker of the House John Boehner seems to want the media (or at least GOP donors) to think otherwise, most observers of American politics believe any chance of comprehensive immigration reform coming out of Congress this year is vanishingly small. The politics on the issue for the GOP are brutal, with the Tea Party on one side and the business wing on the other, and most Republicans see no need to create internal strife in advance of a midterm election in which they’ve got, according to Nate Silver, about even odds to retake the Senate.

Yet while it’s tempting to lambast the modern-day Republican Party — with David Brat now taking the political world by storm — as a frightful and xenophobic aberration from the welcoming, pluralistic and multicultural values embodied by the Statue of Liberty and symbolized by the metaphor of a “melting pot,” the truth may be that the most vocal opponents of immigration are the ones with a stronger claim on the model of American history. At the very least, that’s what Grinnell College professor David Cook-Martín and University of California, San Diego, professor David Scott FitzGerald argue in their new book, “Culling the Masses.” Rather than tell a story of a nation of immigrants, “Culling the Masses” is an in-depth look at how the history of immigration policies in the U.S. and all over the world challenge the general belief that democracies naturally tend toward welcoming policies of equality and anti-racism.

In order to better understand this contrarian and disturbing argument, Salon recently called up Cook-Martín to discuss the book as well as how his findings influence his view of immigration politics in the U.S. today. Our conversation is below, and has been edited for clarity and length.

Could you explain not only what your book is about, but also why you were inspired to write it?

In terms of what inspired me to write the book, after finishing a project in which I looked at citizenship laws in multiple countries … I was left with a lot of questions about how countries were selecting immigrants by race. I knew that they were selecting obviously by skills or in terms of abilities and so forth, but I had questions about how they were selecting by race or ethnicity. I was talking to the person who became the co-author of this new book about what he had found in the Mexican case. He had studied emigration from Mexico also in the long perspective and had been dealing with some of the same questions as he read some historical and legal sources on how Mexico itself was selecting immigrants by race in their immigration laws, even though they didn’t really have a lot of immigration.

So we had these questions and we thought, “Well, look, let’s just go out, do a little bit of research, and just find that book that tells about how immigration laws selected in different countries in the Americas.” The reason we wanted to look at the Americas is that most of what we had read compared the U.S. to Western Europe or countries within Western Europe, and if you do that, you get little variation in terms of different kinds of political regimes. So we wanted a little bit of variety in terms of liberal democracies, more authoritarian kinds of countries and so forth. That’s why we were looking at the Americas, because by looking at those kinds of countries you get a little more variation in that sense. We looked for that book that would do this, and we didn’t find it, so we decided — maybe foolishly; I don’t know — we decided we would do this and set out to write that book.

What we ask in the book is, “What explains the different patterns that we see in immigration and citizenship laws with respect to selecting either immigrants or prospective members or citizens?” And like anyone else, we had notions of democracy that meant that, y’know, we thought that democracies would treat everyone equally regardless of race — which appealed of course to our own political sensibilities — and, of course, we knew that there were exclusionary policies; we both are experts in immigration policy; but we didn’t realize how systematic this was, and what we saw on the ground, in terms of what actually happens with immigration laws, is that the most democratic countries — the most liberal, democratic countries — have the longest uninterrupted periods in which they selected immigrants by race.

Let’s talk about the United States. What do you think is the common understanding of the U.S. when it comes to immigration policy? Does your research challenge or complicate that conventional narrative?

With respect to the point that I mentioned earlier about the coexistence of liberal democracy on the one hand and racism in immigration law on the other hand, I think the conventional narrative is: Yes, of course, there were things like slavery, and, of course, there was racial selection; but that was just a matter of an immature liberal system, and liberal democracy over time had to work out its own internal kinks. So [racism] is sort of a passing aberration. The problem with that narrative — especially when it comes to immigration law — is that that passing aberration lasted for at least 220 years.

Let me put some dates to that: As early as 1790, with respect to nationality, the U.S. was already excluding non-whites. With respect to immigration, per se, in the 1850s, the U.S. was already saying, “No, we don’t want ‘coolies’ transported on American vessels.” And certainly by 1882, when the Chinese Exclusion Act began, you had a very overt exclusion against the Chinese that lasted in immigration law pretty much all the way through 1865 (although that changes when it comes to citizenship law) … From 1790 through 1952, most Asians could not naturalize, simply because they were Asian.

I think the preponderance of the historical evidence is in the direction of [racist immigration policy] not being a passing aberration or something that needed to [be] worked out. It was part and parcel of democracy — hence the title of our book.

What you just said sort of reminds me of Thomas Piketty and how his book also challenges a traditional understanding of America that is, in fact, the product of an aberrant period. For Piketty, he’s showing that the roughly 30-year period of relative economic equality following World War II is outside the norm and that the U.S. economy has usually been defined by great inequality. Your book makes a similar argument; you’re saying that the period most Americans think of when they think of U.S. immigration policy — the late 19th century until the early 1920s — was also aberrant and that the U.S. usually didn’t have such a welcoming official stance toward the rest of the world’s population.

The period between 1880 and let’s say the first World War … that period of time is often thought of as a golden age of immigration. But if you look not only at the U.S. but at most countries, whether they’re countries of immigration or emigration, it’s also a period of time at which states are building the capacity to control who comes and goes. So over time they gained more capacity and they did use it. By the time of World War I, arguably, the stem in the flow of migrants had more to do with both economics and war, but also states had built up the legal infrastructure and the administrative infrastructure to control who came and went. The closer you got to the 1930s, the more control states actually had. If that’s where you were going with it.

Can I follow up on a point that you made that I think actually contributes to the kind of analogy or link that you were drawing to Piketty’s work?

Of course.

You’re right: We have sort of judged immigration law on the postwar period, and from that perspective, the U.S. is very egalitarian … whereas both Canada and the U.S. were actually, over the long-term, extremely exclusionary, as suggested earlier. But not only that, when it [changes] around the time of World War II, it was not the U.S. and Canada saying, “Hey, let’s get right with our liberal democratic principles and change immigration so that it’s more egalitarian and doesn’t select based on race or ethnicity.” That’s not what happened. What happened is that there was sort of a series of geopolitical moments that drove the major world powers in that direction, of doing away with those kinds of exclusionary laws — and it was actually countries in the global South, Asian countries, Latin American countries, and a little later, African countries, who pushed this agenda on the world stage of anti-discrimination in immigration policy and other public policy. I think that’s another finding that some folks have found surprising, that it didn’t come from the enlightenment of the Global North but rather that that shift away from discrimination in immigration law came by advocacy from below, from some of these weaker countries.

OK, so fast-forward to today and the ongoing debate about immigration reform. Do you see any continuities with the past in terms of how the debate about immigration is conducted today?

On the continuity end, I want to say … that one of our findings is that the more open the political process is to a diversity of voices, the more likely you’re going to have some sort of exclusionary policy come from that. There are big historical qualifiers to that, but that’s a major finding. I wish that were not the case, as someone who is democratically inclined; but that’s what we find. By the way, it happens not only in democracies, but also in populist regimes that are open, at least rhetorically, to voices from below.

If I could interrupt for just a second, I want to underline the point you just made because it’s pretty counterintuitive and important. You’re saying that the more pluralist or democratic a country is, the more likely it is that its immigration policies will be exclusionary?

Yes. I don’t want to emphasize the number as much as I want to emphasize the plurality of interests represented. So let me make this more on the ground: If you were to think of a primary process happening in California in the 1870s and ’80s, [it was] very open, very democratic … because you had all these people at the table. But that led very directly to exclusions against the Chinese in California and, subsequently, that became part of federal policies … Similarly today, in those [countries] in which the political process is open to local voices, you have more of a tendency towards exclusion. The best example of that is probably SB 2070 in Arizona (and then subsequent iterations of that in different states) and in this trend to [make] immigration policy local, as opposed to the long-term trend of it being a federal domain.

Does that mean that if someone wants more inclusive, open immigration policy, they should push for a federal rather than state-by-state response?

Yes, I think so. I can add one other element to this: the higher you go up the political structure, the more there are other constraints on what actors can do. So, at the federal level, there’s one major constraint that we talk about in the book, and that’s geopolitics. It’s much harder for the executive today — let’s say Obama were to say, “We’re going to ban Mexicans by virtue of their origins; we’re just going to ban Mexicans.” Can you imagine the reputational fallout of that, and the multilateral institutions that would be involved and so forth? I’m not making a case for the fact that the U.S. is or is not answerable to these transnational intergovernmental organizations; I’m just saying they, at the federal level, are much more aware of geopolitics than Sheriff Arpaio. He’s not constrained by that so much.

Didn’t something along these lines happen in the early 20th century with then-President Teddy Roosevelt and Japan? Something about how he had to go over there and try to repair the relationship that was damaged by California’s anti-Japanese restrictions on immigration?

That’s a very astute example, actually. That’s a great example of how these geopolitics play out. So why did we sign — we meaning the U.S. — why did we sign an agreement with Japan [to] exclude Japanese immigrants as we had with Chinese immigrants? Well, partly because Japan was an empire at the time, a powerful empire, who had just upset the Russians in a war and were sort of seen as a very heavy player in the region. So it would have been very difficult to outright exclude the Japanese, and hence you end up with the gentlemen’s agreement [which was] essentially a bunch of internal memos that went back and forth between the U.S. and Japan that said Japan would take measures to self-regulate on emigration. That’s where geopolitics comes in.

The idea that there’s a divergence in priorities the higher up you go in the political hierarchy reminds me of the current dynamic within the Republican Party over immigration, in which the party’s more business-minded, elitist and educated wing — the country club Republicans, basically — want immigration reform while the more populist, salt-of-the-earth Republicans — Tea Partyers, basically — are intensely against anything they deem “amnesty” (which encompasses a lot). Considering we live in such a time of political and economic inequality, though, do you think immigration reform might happen soon because the GOP elites are more influential than the Tea Party?

I think what you pointed out about the disjuncture between conservatives on this particularly issue … I don’t think that that’s that different from what we’ve seen in the long-run. [In the past], you also had labor adamantly against immigration, basically of everyone, but it was also racialized at one point. So this issue has traditionally been one that has made for some pretty interesting bedfellows. You’ve had people like the U.S. Chamber of Commerce aligned with some left-wing folks and progressives on the immigration issue for very different reasons; and you also had the alignment in terms of division among the more conservative types, but also people who have made arguments against immigration on more environmental grounds and population grounds … you’ve had strange alliances in the past.

I think that’s because what happens with immigration is that it has two main contrasting and sometimes colliding orientations. One is to focus on issues that have to do with labor, and labor’s economic interests, and what a country needs in terms of its labor market to function as a competitive, capitalist economy. On the other hand, you have matters of the heart — or of identity, so to speak. These things, these kinds of different interests, have become more or less salient depending on context. At times, and often times, elites won on this issue of getting cheap labor, which is what they wanted … But sometimes this ideological side — what I refer to as matters of the heart and identity — sometimes that comes to the fore in such a way that even elites can’t ignore [it]. So you might find elites sometimes supporting exclusionary immigration policies even when it probably went against their own economic interests.

That makes me think immigration reform is bound to win. Not only do elites have economic interest in cheap labor, but the “heart” of America is, at least on the surface, so devoted to ideas of pluralism and diversity and the melting pot and so on, that a more ideological argument against reform — the kind you hear from Tea Party types who worry immigrants are moochers who are changing the national character — won’t be able to have mainstream appeal.

Right. Economic and also demographic imperatives … What do I mean by demographics? I’m sure you’re more than aware of the shifts that have happened in the U.S. with the growth of Latino and non-majority populations … so this is sort of a fact on the ground. What’s going to happen is that the political structure is going to have to come to terms with that. The Republicans are kind of between a rock and a hard place because … to make overtures to Latinos is going to take some time at this point, and we all know that the political game is sort of a two-year game … So on the one hand, Republicans want to please Latinos; but on the other hand, they have … the Tea Party crowd that is against immigration, and they’re the crowd you want to please for your short-term game. But on the other-other hand, they know that the long-term game is one in which they will have to engage the Latino electorate. I think that was already clear in the last election; it will be more clear as time goes on. So what do they do? I think that’s the dilemma for Republicans at this point.

Right, and the Democrats are all too happy to exploit this internal contradiction by trying to make the most controversial opponents of immigration reform — like Rep. Steve King or Sheriff Joe Arpaio — the face of the GOP on the issue. Anyway, to take a step back from the nitty-gritty of politics and look at the issue of immigration — and how liberal democracies haven’t lived by their supposed values in that regard — I wanted to ask you what this discovery meant to you on a more personal or philosophical level? Was it just kind of surprising and unexpected and interesting, or was its effect on you more significant?

It really kind of shook my assumptions about how much [racist immigration policy] was something that was just sort of an historical interest or something … that really [shook] the way I think of what’s going on today. What exactly do I mean by that? If you think of some of the very strong racist or borderline-racist rhetoric that’s out there — or even more insidiously, some of the rhetoric that purports not to be racist but is making the same kind of selections, and using the same kinds of rationales to make distinctions among people — if you think of [that] today, and the way that [it’s] sort of the very violent flailing of people who are losing privilege … I was really struck by the immediate postwar [era] in that sense.

Great Britain and Canada … now purport to be these multicultural paradises, and the U.S. [claims] to be a post-racial place; all of those [self-descriptions] really contrasted with the way that they went kicking and screaming into a period of doing away with these exclusionary laws. And they did it mostly, I think, because there were outside, big political constraints, and they wanted something [else] more than they wanted to … keep their privilege. But I don’t think that they fully comprehended the long-term consequences of, for example, opening up migration to a greater diversity of people … The U.S. is a clear example of [this] transformation, so that now you have constituencies of those very people who for over a century had been excluded, [and] they have become major political players. That really shook my world in the sense that it made me rethink now and the past; those two came into a conversation that I had not paid enough attention to.

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Immigration Law and Border Enforcement Program

Monday-Saturday, May 26-31, 2014

Co-sponsored by the Maurice A. Deane School of Law and the University of California, San Diego’s Center for Comparative Immigration Studies
Approved by the American Bar Association

The application deadline is Friday, April 4, 2014.

The fourth annual Immigration Law and Border Enforcement Program will be taught on campus at UC San Diego.

A first-of-its-kind opportunity, the program gives students of varying understanding levels the chance to see immigration law and border enforcement at work.

It includes lectures, practical training, court visits and a special border security training and tour with the U.S. Department of Homeland Security.

Course Description

Immigration Enforcement at the Border (3 credits)
Taught by Professor Rose Cuison Villazor

This course analyzes the ways in which federal immigration officers enforce immigration laws at the border and the various legal, political, human and moral issues that they raise.

The course examines, among other areas, the relevant provisions of the Immigration and Nationality Act; The Secure Fence Act of 2006; federal programs and policies, such as the Secure Border Initiative, Operation Streamline and Operation Stonegarden; Fourth Amendment search and seizure cases; and cases and controversies regarding the increasing movement of the borders inward.

Through the study of these laws and relevant cases, the course considers how enforcement of immigration law at the border has led to significant tensions between immigration officers’ authority to guard the border on sovereignty and security grounds and the rights of individuals to, among other things, privacy and equal protection under the law.

About San Diego

San Diego is on the coast of the Pacific Ocean in Southern California, approximately 120 miles south of Los Angeles and adjacent to the border with Mexico. One of the nation’s fastest-growing cities, it is the eighth-largest city in the U.S. and second-largest in California.

San Diego is known for its mild year-round climate, natural deep-water harbor, extensive beaches and long association with the U.S. Navy.

The 37th Meeting of the Politics of Race, Immigration, and Ethnicity Consortium (PRIEC)

University of California, San Diego
Friday, May 23, 2014—12:00 pm-7:30 pm
ROOM: The Village at Torrey Pines, 15th Floor

Co-sponsored by: The Center for Comparative Immigration Studies (CCIS),
Department of Political Science, and the Department of Sociology

MEETING AGENDA

12:00-12:20 pm LUNCH AND INTRODUCTION

12:20-2:45 pm PANEL 1

1. David FitzGerald, Culling the Masses: The Democratic Origins of Racist Immigration Policies in the Americas

2. Tom Wong, Mike Nicholson and Nazita Lajevardi, “Immigrants, Citizens, and (Un)Equal Representation”

3. John Griffin, Zoltan Hajnal, Brian Newman, and David Searle, “Understanding Bias in Responsiveness in American Politics”

4. Ben Newman, “Diversity of a Different Kind: Gentrification and Its Impact on Social Capital and Political Participation in Black Communities”

5. Mackenzie Israel-Trummer “Facing a Black Woman: the Irrational Response to Underperforming White Male Incumbents”

6. Jennifer Merolla, Karthick Ramarkishnan and Chris Haynes, “Framing Immigration Reform and Amnesty in News Media and Public Opinion”

3:00-3:15 pm Coffee Break

3:15-5:15 pm PANEL 2

7. Melissa Michelson, Nazita Lajevardi and Marianne Marar Yacobian, “The Unbearable Whiteness of Being Middle Eastern: Causes and Effects of the Racialization of Middle Eastern Americans”

8. Francisco Pedraza, “Political exclusion and the “chilling effect” of immigration enforcement on participation in Medicaid”

9. David Ayon, “Reversal of Fortune: Understanding the Contrasting Paths & Effects of Latino Empowerment in California and Texas”

10. Lucila Figueroa, “Support for Latino Politicians and U.S. Norms”

5:30-7:30 pm Reception at Home Plate Sports Café, UCSD

Mexican Migration to the United States with David FitzGerald — 20 Years After NAFTA — Center for US-Mexican Studies & Osher UCSD

UC San Diego sociologist David FitzGerald explains how recent changes in the economies of the US. and Mexico, along with border enforcement and shifting demographics have led to a stabilization of Mexican migration to the U.S. This is the fourth in a five-part series exploring the impact of NAFTA, sponsored by the Osher Institute for Lifelong Learning and the Center for U.S.-Mexican Studies at UC San Diego.

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Migration Theory: Talking Across Disciplines (3rd edition) available for pre-order & Fall 2014 course adoption

Edited by Caroline B. Brettell, James F. Hollifield

“During the last decade the issue of migration has increased in global prominence and has caused controversy among host countries around the world. To remedy the tendency of scholars to speak only to and from their own disciplinary perspective, this book brings together in a single volume essays dealing with central concepts and key theoretical issues in the study of international migration across the social sciences. Editors Caroline B. Brettell and James F. Hollifield have guided a thorough revision of this seminal text, with valuable insights from such fields as anthropology, demography, economics, geography, history, law, political science, and sociology.

Each essay focuses on key concepts, questions, and theoretical frameworks on the topic of international migration in a particular discipline, but the volume as a whole teaches readers about similarities and differences across the boundaries between one academic field and the next. How, for example, do political scientists wrestle with the question of citizenship as compared with sociologists, and how different is this from the questions that anthropologists explore when they deal with ethnicity and identity? Are economic theories about ethnic enclaves similar to those of sociologists? What theories do historians (the “essentializers”) and demographers (the “modelers”) draw upon in their attempts to explain empirical phenomena in the study of immigration? What are the units of analysis in each of the disciplines and do these shape different questions and diverse models and theories?

Scholars and students in migration studies will find this book a powerful theoretical guide and a text that brings them up to speed quickly on the important issues and the debates. All of the social science disciplines will find that this book offers a one-stop synthesis of contemporary thought on migration.”

Pre-Order Here

John Skrentny’s Op-Ed in The New York Times

Only Minorities Need Apply

By JOHN D. SKRENTNY   MAY 6, 2014

SAN DIEGO — THIS year is the 50th anniversary of the Civil Rights Act, which among other things prohibits the use of race in deciding whom to hire, fire, promote or place in the best and worst jobs.

But while the overt discrimination of 1964 is now rare, a more subtle form of bias is emerging: Both public and private employers increasingly treat race not as a hindrance, but as a qualification — a practice that, unchecked, could undermine the basic promise of the act.

For example, corporations often match African-American, Asian-American and Latino sales employees to corresponding markets because of their superior understanding of these markets, or because customers prefer to see employees of their own race, or both.

This is not affirmative action: Such “racial realism” is not intended to guarantee equal opportunity or compensate injustice, but rather to improve service and deliver profits for employers.

Racial realism is common in many sectors. Hospitals, supported by progressive foundations, racially match physicians and patients to improve health care. School districts place minority teachers in schools with large numbers of minority students because they supposedly understand their learning styles better, and serve as racial role models. Police departments try to reduce crime and police brutality by racially matching officers and neighborhoods.

Film producers manipulate audience reactions by displaying the right races in the right roles. This may be motivated by artistic goals — obviously, a film like “12 Years a Slave” required actors of particular races in particular roles. More often, these are business decisions. Whites in starring roles are thought to generate more box-office revenue, though adding nonwhites can broaden appeal.

Such practices are legally dubious. The Equal Employment Opportunity Commission, charged with enforcing federal anti-discrimination laws, states that the Civil Rights Act “does not permit racially motivated decisions driven by business concerns.” Nor may race or color ever be a “bona fide occupational qualification.”

Courts have long supported this position. The Supreme Court’s 1986 decision in Wygant v. Jackson Board of Education held that hiring and placing teachers to be racial role models was discrimination, even linking it “to the very system the Court rejected in Brown.”

In 1999, the 11th Circuit Court considered a telemarketing firm that matched employees’ race with those of the customers they called, and ruled that the company’s belief that this produced better responses was based on a stereotype and was “clearly” discrimination.

Meanwhile, the Seventh Circuit rejected Chicago’s contention that minority firefighters were needed for credibility and cooperation in minority neighborhoods; separately, it ruled that hiring black counselors to deal with black disadvantaged youths was illegal because it catered to discrimination by clients and their parents.There are only two areas where courts have authorized racial realism. Some courts have argued that law enforcement creates a compelling interest — “operational needs” — in communication and legitimacy with nonwhites, justifying racial realism in the hiring and placement of police officers. And there have been some exceptions made for artistic license: In 2012, a Tennessee district court, in a case regarding the reality show “The Bachelor,” stated that casting only whites in the lead roles was expression, akin to speech, and protected by the First Amendment.

Not only is racial realism legally unjustified, but it often hurts the people who, in the short term, would seem to benefit from it. Studies by the sociologists Elijah Anderson and Sharon Collins have found that nonwhite employees who are promoted to fill racially defined roles have trouble leaving them.

Moreover in jobs where part of an employee’s salary is based on sales volume, assigning nonwhites to nonwhite market sectors — which tend to be lower income — can mean significantly smaller paychecks. In 2008, Walgreens agreed to pay $24 million to black managers who objected to being placed in black neighborhoods, which typically had lower sales and thus lower compensation.

Nevertheless, racial realism is too slippery, and too widely used, to stamp out completely. And so rather than trying to end racial realism, we need to make sure that it doesn’t block opportunities for minorities. For one thing, we could require more transparency and verification. If employers think race is a legitimate qualification for a job, they must rely on evidence, not stereotypes.

And in cases where racial-realist hiring and placement is justified, like after a series of racially fraught police incidents, there should be opt-outs and time limits.

This was the position of a New York district court when black police officers sued to limit Mayor Rudolph W. Giuliani’s ability to force them to work in a dangerous precinct after the 1997 beating of Abner Louima, a Haitian immigrant, by white police officers. Mayor Giuliani argued that the presence of black officers was necessary to ease racial tensions, and the court agreed — but also held that the placements had to be temporary.

America has changed significantly since the Civil Rights Act. But we are still a long way from the day when race no longer plays a role in society. Racial realism may be unavoidable for the time being, but we must still be wary of its excesses, lest it lead us back down the road toward racial discrimination.


John D. Skrentny, a professor of sociology and the director of the Center for Comparative Immigration Studies at the University of California, San Diego, is the author of “After Civil Rights: Racial Realism in the New American Workplace.”

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Making the border less enticing to cross



CCIS Associate Director David FitzGerald comments on what migrants in Mexico know about enforcement and dangers at the border.


U.S. Border Patrol agents are taking a more proactive tactic to deter migrants: asking Mexican and Central American TV and radio stations and newspapers for the opportunity to tell of the dangers of crossing illegally.

BY PALOMA ESQUIVEL, Los Angeles Times   APRIL 8, 2012

The federal government has tried just about everything to stop the flow of migrants crossing the border illegally. It boosted the number of Border Patrol agents, made punishment harsher, deployed drones and motion sensors, built and rebuilt fences. For years it has even quietly funded the dissemination in Mexico of songs and mini-documentaries about dangers at the border.

Now it is using a more proactive tactic: Since last year, agents in Arizona have called Mexican and Central American television and radio stations and newspapers, asking for the opportunity to tell of the dangers of crossing illegally, particularly through the Sonoran Desert.

The outreach, which was initially greeted with skepticism, is being embraced.

Newspapers in the Mexican states of Chiapas and Michoacan have run stories based on their accounts. Outlets in El Salvador and Guatemala have followed suit. Some ran photos provided by the Border Patrol of packed safe houses and emergency rescues.

“Immigrants are mistreated, assaulted, lied to, made fun of and women are often raped,” was the lead to one story in El Diario de Hoy, a daily newspaper in El Salvador.

The efforts are considered successful enough that this year the agents expanded them to U.S. cities with large immigrant communities, including Los Angeles, Phoenix, Chicago, Seattle and Atlanta. The goal on this side of the border is to persuade residents to warn family members back home about treacherous conditions, particularly along the Arizona border, agents said.

“Our message is: If you do decide to come, don’t come through Arizona,” said Border Patrol spokesman Andy Adame. “We’re seeing a big increase in smuggler abuse; robberies with AK-47s and pistols, knives; rapes of women, more physical abuses — not only in the desert but in safe houses where people are tied up with duct tape.”

What effect the public relations effort will have on migrants is unclear. The number of apprehensions at the border is already down dramatically. There were 340,000 last year, compared with 1.6 million in 2000, a drop many experts attribute to fewer migrants attempting to cross.

And many of the threats are already well known. For years, the Mexican government and media have warned migrants about the danger posed by extreme temperatures, crime and U.S. enforcement.

Since 2004 the Border Patrol has spent about $1.1 million annually to anonymously fund the dissemination of musical corridos, mini-documentaries and other public service announcements depicting tragedies at the border.

The campaign, called No Mas Cruces, is not openly sponsored by the U.S. government, in part to make “the message more palatable for the intended audience,” said U.S. Customs and Border Protection spokeswoman Kerry Rogers.

Some critics have denounced the program for lack of transparency. But government officials consider it successful. One of the songs was nominated for a Latin Grammy. And this year, the program will include an art exhibit of tragedies and dangers that will travel to several small towns in Mexico, Rogers said.

David Fitzgerald and others at the Center for Comparative Immigration Studies at UC San Diego have spent the last several years researching what migrants in Mexico know about enforcement and dangers at the border and how that knowledge affects whether they decide to come to the U.S.

“People are aware that it’s extremely dangerous and that a lot of people are dying,” he said. “They have very high levels of knowledge in terms of what’s going on at the border.”

The researchers found evidence to suggest that people who think the U.S. economy is bad and that the border is very dangerous were less likely to migrate.

Still, the vast majority of people polled who tried to cross illegally into the country succeeded, he said. More than 95% eventually made it through, even after they were apprehended multiple times.

Adame, the Border Patrol agent, and Chris Leon, a Customs and Border Protection official involved in the efforts, said the outreach provides crucial information to migrants. Since October there have been 83 deaths at the Arizona border. Routes are more dangerous now, they said, in part because of increased enforcement.

In their experience, many migrants rely on information provided by people who crossed the border several years ago.

“A lot of times they’ll contact someone who is already here and they’ll say, ‘Oh, yeah, five years ago I came through. It was easy,’ ” Adame said. “A lot has changed in those last five years, including enforcement being tougher so smugglers are having to take the migrants out further.”

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‘After Civil Rights’ explores ‘racial realism’ in the workplace (Florida Courier)

CCIS co-director John Skrentny’s book “After Civil Rights: Racial Realism in the New American Workplace” is discussed in the Florida Courier.


BY DR. GLENN C. ALTSCHULER
SPECIAL TO THE COURIER

Over two decades ago, Harvard Law Professor Martha Minow described “the dilemma of difference.” When does treating people differently “stigmatize or hinder them on that basis,” she asked. “And when does treating people the same become insensitive to their difference and likely to stigmatize or hinder them on that basis?”

Title VII of the Civil Rights Act of 1964 provided one answer to these questions.  An affirmation of classical liberalism, Title VII declared any action based on an individual’s race, color, religion, sex or national origin that adversely affects the terms and conditions of employment to be unlawful.  Nor does Title VII permit racially motivated decisions driven by business concerns, including the preferences of clients or customers.

Less prominent in law, affirmative action infused race with significance in employment.  Politically charged and controversial, it is tolerated, if at all, as a temporary fix that does not replace color-blind policies – and is confined to situations where imbalances in the composition of the workforce can be authoritatively attributed to past discriminatory practices.

Making assumptions
Both approaches, John Skrentny, a professor of sociology at the University of California, San Diego, points out, are out of sync with actual workplace practices.  In “After Civil Rights,’’ Skrentny demonstrates that in many, many fields, ranging from media to marketing, meatpacking and medicine, employers use perceived or actual racial abilities in recruitment, hiring, and on the job assignments.

“Racial realism,” Skrentny argues, can open doors of opportunity; it can also “freeze in place” racial – and racist – assumptions.  Too widespread to be rolled back, he emphasizes, race-conscious employment dynamics should not “run unchecked as it does today.”

Employment practices
“After Civil Rights’’ makes a compelling case for the pervasiveness of race-conscious employment practices.  Presidents take race into account when making appointments.  Patients express greater satisfaction with the quality of their health care when they are treated by physicians who share their racial or ethnic background.

News organizations hire African-American anchors to attract Black viewers – and assign Latino journalists to cover the Latino community (“the taco beat”).  Retailers admit to race matching sales personnel to their client base.  And many low-skilled jobs go to immigrants because employers deem them more likely to work hard, without complaints and for lower wages, than African-Americans or Whites.

It is by no means clear, however, that “racial realism” in employment produces positive results.  While police officers of different races vary in their knowledge of neighborhoods, Skrentny notes, studies have found little evidence of different behavior.  And a nationwide study showed that the race of teachers did not have an impact on how much students learned.

Mended, not ended
Nonetheless, the advantages of policies based on market realities and employer discretion are obvious.

After all, some would argue, the Harlem Globetrotters and the producers of “Othello’’ should confine their searches to Blacks. And yet, as Skrentny observes, legitimizing race-based BFOQ (“bona fide occupational qualifications”) exceptions to anti-discrimination laws would not only be difficult to draft and expensive, but could be used to defend the preferences of racist customers.

What, then, should be done?  Skrentny suggests that “racial realism” be mended, not ended.  To start the conversation, he advocates multi-cultural training programs in areas where employers believe race is a qualification; interpreting laws to give “breathing room” to initiatives designed to benefit members of minority groups; requiring validation of practices predicated on “racial abilities” and “racial signaling;” and more responsible corporate behavior in locating firms, setting wages, employing immigrants, guaranteeing workplace safety, and taking responsibility for displaced workers.

“After Civil Rights’’ leaves no doubt that current workplace realities – and practices – have diverged from statutes and constitutional interpretations of them.  The “strategic management of racial differences” may or may not always be necessary “to achieve a wide variety of goals in a wide array of contexts.”

But, as Skrentny urges, for now, and for the foreseeable future, we must do a better job of aligning workplace practices “with our values and our laws.”

Dr. Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He wrote this review for the Florida Courier.

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