Rethinking work and citizenship

UCLA Law Review

Volumn 55, Issue 5, 2008, Pages 1161-1238

  Gordon, Jennifer ^a   Lenhardt, R A ^a  

^a FORDHAM UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 49349104715     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (521)

1. Barbara Ellen Smith, Racial/Ethnic Rivalry and Solidarity in the Delta, in ACROSS RACES AND NATIONS: BUILDING NEW COMMUNITIES IN THE U.S. SOUTH 51, 60 (Ctr. for Research on Women et al. eds., 2006). This narrative draws on work done by David G. Griffith on rural industry and Mexican immigration in North Carolina.
2. See David C. Griffith, Rural Industry and Mexican Immigration and Settlement in North Carolina, in NEW DESTINATIONS: MEXICAN IMMIGRATION IN THE UNITED STATES 50, 50-75 (Rubén Hernández-León & Víctor Zúñiga eds., 2005). It also draws on other depictions of Black-Latino relationships in the changing poultry industry in the New South.
3. See, e.g., LANCE COMPA, HUMAN RIGHTS WATCH, BLOOD, SWEAT, AND FEAR: WORKERS' RIGHTS IN U.S. MEAT AND POULTRY PLANTS (2004);
4. STEVE STRIFFLER, CHICKEN: THE DANGEROUS TRANSFORMATION OF AMERICA'S FAVORITE FOOD (2005);
5. Evan Pérez & Corey Dade, Reversal of Fortune: An Immigration Raid Aids Blacks - for a Time, WALL ST. J., Jan. 17, 2007, at A1;
6. Helen Marrow, Not Just Conflict: Intergroup Relations in a Southern Poultry Processing Plant 14 (2006) (unpublished manuscript) (on file with the authors). It further relies on new research by Barbara Ellen Smith, Helen Marrow, Jamie Winders, Angela Stuesse, Anita Grabowski, Laura Helton, and David Mandel-Anthony on these groups in low-wage workplaces throughout the South. See infra text accompanying note 18.
7. Smith, supra note 1, at 60. This quote and others like it from recent scholarship that we draw on in this Article reveal an ugly reality with which some readers might not want to be confronted. Statements from actual workers, however, are crucial to laying bare the precise nature of the conflict between African Americans and Latino immigrants in the low-wage context, as well as the possibilities for greater solidarity.
8. Marrow, supra note 1, at 14.
9. Id. at 13.
10. Id. at 13.
11. Id. at 14.
12. We focus here on these two groups as an entry point to examination of the relationship between workers of many different races and ethnicities, and as a first step in addressing the relationship between African Americans and immigrants in arenas other than the workplace. We have chosen to first explore interactions between new Latino immigrants and African Americans because of the overwhelming predominance of Latinos in current immigration patterns and because those interactions are frequently in the public eye as paradigmatic of Black-immigrant relationships. Furthermore, although this Article refers to "Latino" or "Latin American" immigrants as a group, we recognize that Spanish-speaking immigrants from different countries experience globalization, immigration, and work in the United States in very different ways. When Latino immigrants of different nationalities work together, the divisions between them can be profound, posing serious obstacles to organizing. JENNIFER GORDON, SUBURBAN SWEATSHOPS: THE FIGHT FOR IMMIGRANT RIGHTS 156-62 (2005);
13. Angela C. Stuesse, Race, Migration, and Labor Control: Neoliberal Challenges to Organizing Mississippi's Poultry Workers, in HEADING NORTH TO THE SOUTH: MEXICAN IMMIGRANTS IN TODAY'S SOUTH 4, 15-18 (M. Odem & E. Lacy eds., forthcoming 2008). Moreover, grouping a tremendously diverse array of people under a single label such as "African Americans" or "Latinos" and discussing these groups as if they are monolithic in their perspective risks essentializing their individual qualities and eliding the wide range of beliefs and attributes of their members. Even as we remain aware of the dangers, we employ these terms here in order to examine views that appear to be shared by many - although by no means all - of the group's members.
14. In 2006, people born in Mexico made up 60 percent of the foreign-born Hispanic population in the United States. PEW HISPANIC CTR., INDICATORS OF RECENT MIGRATION FLOWS FROM MEXICO 6 (2007), http://pewhispanic.org/ files/factsheets/33.pdf.
15. Elizabeth Grieco, Characteristics of the Foreign Born in the United States: Results From Census 2000, MIGRATION INFO. SOURCE, Dec. 2000, http://www.migrationinformation.org/USfocus/display. cfm?ID=71.
16. Report, A Visual Essay: Blacks, Asians, and Hispanics in the Civilian Labor Force, MONTHLY LABOR REV., June 2004, at 69, 72.
17. See AUDREY SINGER, BROOKINGS INST., THE RISE OF NEW IMMIGRANT GATEWAYS 5 (2004).
18. Stephanie Chavez, Racial Tensions Over South L.A. Jobs Grow, L.A. TIMES, July 22, 1992, at B1 (quoting James Johnson, director of the Center for the Study of Urban Poverty at UCLA).
19. Dorothy Gilliam, A Sad, Slow but Sure Awakening, WASH. POST, May 13, 1992, at D1.
20. Gary Lee & Robert Suro, Latino-Black Rivalry Grows, WASH. POST, Oct. 13, 1993, at A1.
21. Ben Stocking, Side By Side: Worlds Apart (Part 2), RALEIGH NEWS & OBSERVER, May 4, 1997, at A1 (quoting Professor Jim Johnson of UNC-Chapel Hill).
22. See, e.g., Steven Greenhouse, Picking and Packing Portabellos, Now With a Union Contract, N.Y. TIMES, July 21, 1999, at A14 (describing a successful United Farm Workers organizing campaign focusing on Latino and African American mushroom workers);
23. News and Notes With Ed Gordon: Black Hotel Workers Replaced by Immigrants (NPR radio broadcast Mar. 27, 2006), http://www.npr.org/ templates/Story/Story.php?storyid=5303325 (describing efforts by the Hotel Workers Union, inter alia, to create solidarity between black and immigrant workers in the industry).
24. Daniel B. Wood, Rising Black-Latino Clash on Jobs, CHRISTIAN SCI. MONITOR, May 25, 2006, at 1. For similar claims made over a decade earlier, see Lee & Suro, supra note 14, at A1;
25. Seth Mydans, Los Angeles Riot Anger Spills Into Competition for Jobs, N.Y. TIMES, Aug. 30, 1992, at A20.
26. Barbara Ellen Smith, Market Rivals or Class Allies?: Relations Between African American and Latino Immigrant Workers in Memphis, in GLOBAL CONNECTIONS AND NEW LOCAL RECEPTIONS: LATINO IMMIGRATION TO THE SOUTHEASTERN UNITED STATES (Frances Ansley & John Shefner eds., forthcoming 2009) (manuscript at 9, on file with authors). Smith notes that this recognition of economic commonality was limited to African Americans. "To the extent that immigrant interviewees voiced a general sense of shared status with African American workers, it was occasioned by racist treatment from their common employer." Id.
27. Id. at 10.
28. Id. at 15-17.
29. Id. at 13.
30. See, e.g., Smith, supra note 18; Smith, supra note 1; Stuesse, supra note 7, at 18; Rebecca M. Torres, E. Jeffrey Popke, & Holly M. Hapke, The South's Silent Bargain: Rural Restructuring, Latino Labor and the Ambiguities of Migrant Experience, in LATINOS IN THE NEW SOUTH: TRANSFORMATIONS OF PLACE 37, 62 (Owen J. Furuseth & Heather A. Smith eds., 2006);
31. Jamie Winders, Nashville's New Sonido: Latino Migration and the Changing Politics of Race, in NEW FACES IN NEW PLACES: THE CHANGING GEOGRAPHY OF AMERICAN IMMIGRATION (Douglass Massey ed., forthcoming 2008); Marrow, supra note 1. On African Americans' sense that immigrants are "taking our jobs," see Stuesse, supra note 7, at 18. According to a report released in 2006 by the Pew Hispanic Center, 41 percent of African Americans "say either they or a family member has lost a job to an immigrant, compared with 15% of non-Hispanic whites who say this."
32. PEW RESEARCH CIR. FOR THE PEOPLE & THE PRESS & PEW HISPANIC CTR., AMERICA'S IMMIGRATION QUANDARY 43 (2006), http://pewhispanic.org/files/reports/63.pdf. The Pew poll also revealed that over a third of African Americans polled believe that immigrants take jobs from U.S. citizens, compared to a quarter of white respondents.
33. Carroll Doherty, Attitudes Toward Immigration: In Black and White, PEW RES. CENTER PUBLICATIONS, Apr. 26, 2006, http://pewresearch.org/pubs/21/ attitudes_toward_immigration_in_black_and_white.
34. Smith, supra note 1, at 59.
35. See, e.g., Arnold Shankman, Black on Yellow: Afro-Americans View Chinese-Americans, 1850-1935, 39 PHYLON 1 (1978) (discussing, inter alia, the complexities of the early relationship between free Blacks and Chinese immigrants).
36. Political scientist Judith Shklar conceptualizes citizenship as standing in her book on the subject. See JUDITH N. SHKLAR, AMERICAN CITIZENSHIP: THE QUEST FOR INCLUSION 2 (1991); infra text accompanying notes 133-136.
37. See infra Part III.
38. We explore issues of solidarity and specific examples of collaboration between African Americans and new Latino immigrants in the workplace in a recent paper prepared for the Chief Justice Earl Warren Institute on Race, Ethnicity, and Diversity, University of California, Berkeley Law School. See Jennifer Gordon & R.A. Lenhardt, Conflict and Solidarity Between African American and Latino Immigrant Workers (Nov. 30, 2007), available at http://www.law.berkeley.edu/centers/ewi/Gordon&LenhardtpaperNov30.pdf.
39. Franco Ordoñez, Blacks Fret Over Immigrant Gains: Latino Population Surge Puts Wages, Jobs, Clout at Risk, Some Say, CHARLOTTE OBSERVER, May 21, 2006, at 1A (quoting Larry Watson, Professor, University of South Carolina).
40. Lee & Suro, supra note 14, at A1 (quoting Danny Bakewell, president of the Black Brotherhood Crusade).
41. Ned Glascock, Latinos Now Filling Bottom-Rung Jobs, RALEIGH NEWS & OBSERVER, Oct. 29, 2000, at A1.
42. Other than economists examining data on job competition, few social scientists have focused in any depth on workplace interactions between African Americans and new Latino immigrants. For one exception, see Alex Stepick et al, Brothers in Wood, in NEWCOMERS IN THE WORKPLACE: IMMIGRANTS AND THE RESTRUCTURING OF THE U.S. ECONOMY 145, 145-63 (Louise Lamphere, Alex Stepick & Guillermo Grenier eds., 1994).
43. Until recently, most of the American South had experienced almost no Latino immigration. See Owen J. Furuseth & Heather A. Smith, From Winn-Dixie to Tiendas: The Remaking of the New South, in LATINOS IN THE NEW SOUTH: TRANSFORMATIONS OF PLACE, supra note 22, at 1, 1.
44. Id. at 8 tbl.12; see also Paula D. McClain et al., Racial Distancing in a Southern City: Latino Immigrants' Views of Black Americans, 68 J. POL. 571, 572 (2006).
45. McClain et al., supra note 33, at 571-72. This influx is noteworthy, in part, because the number of African Americans returning to the South after having lived in the North for a number of years is also on the rise. The returnees include middle-class families and college graduates, as well as low-income workers. WILLIAM H. FREY, BROOKINGS INST., THE NEW GREAT MIGRATION: BLACK AMERICANS' RETURN TO THE SOUTH, 1965-2000, at 7-8 (2004). This dual pattern of in-migration is occurring in places that already have substantial Black populations.
46. Furuseth & Smith, supra note 32, at 11-12.
47. Grabowski is a former masters degree student in Stuesse's University of Texas anthropology department and is now the lead organizer with the Poultry Worker Project of the Center for Community Change. Helton and Mandel-Anthony are former undergraduate students in the department.
48. See Stuesse, supra note 7; Angela C. Stuesse & Laura E. Helton, Race, Low-wage Legacies and the Politics of Poultry Processing: Intersections of Contemporary Immigration and African Immigration Labor Histories in Central Mississippi (Apr. 17, 2004) (unpublished paper) (on file with authors);
49. Anita Grabowski, La Pollera: Latin American Immigrant Workers at the Koch Foods Poultry Plant in Morton, Mississippi (May 2003) (unpublished Masters Thesis, University of Texas at Austin) (on file with authors);
50. David G. Mandel-Anthony, From Comitancillo to Carthage, Mississippi: Activist Research, Transnationalism, & Racial Formation in a Community of Guatemalan Mam Poultry Workers 71 (unpublished B.A. thesis, University of Texas at Austin, May 4, 2005) (on file with authors).
51. See Winders, supra note 22, at 327; Marrow, supra note 1, at 13-14.
52. Smith, supra note 1, at 60.
53. Stuesse, supra note 7, at 18. Smith grapples with African American workers' perceptions of competition in the absence of data confirming direct displacement. Barbara Ellen Smith, Job Competition and Tensions in the Workplace, in ACROSS RACES AND NATIONS: BUILDING NEW COMMUNITIES IN THE U.S. SOUTH, supra note 1, at 77, 78-79.
54. See generally Stephen Steinberg, Immigration, African Americans, and Race Discourse, in RACE AND LABOR MATTERS IN THE NEW U.S. ECONOMY 175, 180 (Manning Marable et al. eds., 2006) (arguing that economists have failed to find evidence of competition due to methodological flaws and aggregation).
55. Smith, supra note 1, at 60. Such sentiments appear to be pervasive. See, e.g., Marrow, supra note 1, 13-14; Stuesse, supra note 7, at 21-22.
56. Glascock, supra note 30.
57. For a full discussion of this phenomenon, see infra text accompanying notes 335-341.
58. In 1998, 38.4 percent of African Americans and 44.8 percent of Latinos earned less than $15,000 per year; only 29.5 percent of white workers fell in that category. Anthony P. Carnevale & Stephen J. Rose, Low Earners: Who Are They? Do They Have a Way Out?, in LOW-W AGE WORKERS IN THE NEW ECONOMY 45, 52 (Richard Kazis & Marc S. Miller eds., 2001).
59. On the common attribution of Black unemployment to immigration, see Earl Ofari Hutchinson, Op-Ed, Rising Latino Numbers, Rising Black Fears, BOSTON-BAY ST. BANNER, Dec. 6, 2007, at A1, available at http://www.baystatebanner.com/issues/2007/12/06/ opinion12060758.htm ("The prime reasons for chronic black unemployment . . . are lingering racial discrimination and the lack of job skills, training and education. No matter; many blacks still blame their job plight on illegal immigrants.").
60. On poultry, see STRIFFLER, supra note 1, at 96. Cf. Timothy J. Dunn, Ana María Aragonés & George Shivers, Recent Mexican Migration in the Rural Delmarva Peninsula: Human Rights Versus Citizenship Rights in a Local Context, in NEW DESTINATIONS: MEXICAN IMMIGRATION IN THE UNITED STATES, supra note 1, at 155, 160 ("[L]atino workers are filling the poultry labor gap."); Pérez & Dade, supra note 1, at A1 ("[T]he number of black workers at [chicken-processing company] Crider declined steadily to 14% in early 2006 from as high as 70% a decade ago, the company says.").
61. On the hotel industry see, for example, ROGER WALDINGER, STILL THE PROMISED CITY? AFRICAN AMERICANS AND NEW IMMIGRANTS IN POSTINDUSTRIAL NEW YORK 155-70 (1996) (analyzing the shift from Blacks to immigrants in the New York hotel industry),
62. and News and Notes With Ed Gordon: Black Hotel Workers Replaced by Immigrants, supra note 16 (describing the replacement of African Americans by immigrants in the Los Angeles hotel industry).
63. On the janitorial industry see, for example, Cynthia Cranford, Networks of Exploitation: Immigrant Labor and the Restructuring of the Los Angeles Janitorial Industry, 52 SOC. PROBS. 379, 386 (2005) ("In the pre-World War II and immediate postwar periods, the janitorial workforce primarily comprised African Americans, many of whom were migrants from southern states. The proportion of African Americans began to decline in the 1970s and continued to fall as the de-unionization of the industry accelerated in the 1980s. In contrast, the proportion of Mexicans, Salvadorans, and Guatemalans rose throughout the 1980s.").
64. Arguing that the influx of immigrants into janitorial work was the consequence of de-unionization and the deterioration of cleaning jobs, rather than its cause, see RUTH MILKMAN, L.A. STORY: IMMIGRANT WORKERS AND THE FUTURE OF THE U.S. LABOR MOVEMENT 6-9, 104-13 (2007).
65. See, e.g., ROGER WALDINGER & MICHAEL I. LICHTER, HOW THE OTHER HALF WORKS: IMMIGRATION AND THE SOCIAL ORGANIZATION OF LABOR (2003); WALDINGER, supra note 45.
66. Legal scholar Leticia Saucedo explores these issues in depth in her article, Leticia M. Saucedo, The Employer Preference for the Subservient Worker and the Making of the Brown Collar Workplace, 67 OHIO ST. L.J. 961 (2006).
67. See Joleen Kirschenman & Kathryn M. Neckerman, "We'd Love to Hire Them, But . . .": The Meaning of Race for Employers, in THE URBAN UNDERCLASS 203, 204 (Christoper Jencks & Paul E. Peterson eds., 1991); see also WALDINGER & LICHTER, supra note 46, at 166-67; Kirschenman & Neckerman, supra, at 210 (indicating that employers also use race to distinguish between immigrant groups).
68. For studies on the role race plays in employer decisions between native Blacks and Whites, see Devah Pager & Lincoln Quillian, Walking the Talk? What Employers Say Versus What They Do, 70 AM. SOC. REV. 355, 366 (2005) (documenting employer preferences for hiring white rather than black ex-offenders);
69. Marianne Bertrand & Sendhill Mullainathan, Are Emily and Brenda More Employable Than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination 2-3 (Nat'l Bureau of Econ. Research, Working Paper No. 9873, 2003) (studying bias evinced in employer attitudes toward resumes of individuals with names thought to signal African American heritage). Biases against African Americans appear particularly marked for the lowest-skilled positions. Waldinger and Lichter note that "[s]omewhat higher up in the hierarchy, where the demand for Subordination was not so great and the compensation more likely to motivate native-born workers, managers evinced a somewhat different view." WALDINGER & LICHTER, supra note 46, at 177-78. In this context, black workers were likely to be seen as more desirable than immigrants because of their literacy, English language abilities, and ambition. Id. at 178.
70. See WALDINGER & LICHTER, supra note 46, at 157-59, 176-77.
71. Kirschenman & Neckerman, supra note 47, at 204. For a comprehensive survey of employer views of African American workers, see PHILIP MOSS & CHRIS TILLY, STORIES EMPLOYERS TELL: RACE, SKILL, AND HIRING IN AMERICA 85-208 (2001).
72. MOSS & TILLY, supra note 49, at 100-03; see also WALDINGER & LICHTER, supra note 46, at 170-76.
73. Jennifer Lee, The Racial and Ethnic Meaning Behind Black: Retailers' Hiring Practices in Inner-City Neighborhoods, in COLOR LINES: AFFIRMATIVE ACTION, IMMIGRATION, AND CIVIL RIGHTS OPTIONS FOR AMERICA 168, 168 (John David Skrentny ed., 2001) (exploring the preference of small businesses in New York City and Philadelphia for "hiring Blacks because of their perceived utility . . . in dealing with a predominately black clientele").
74. See id. at 178 ("Merchants generally agree that native-born Americans of any kind . . . are unwilling to work in small business and put in the long hours and the physically exhausting labor for so little pay."). As a result, when they perceive a need for a black employee to act as a cultural bridge, they turn to African and Caribbean immigrants. Id. at 177-84.
75. WALDINGER & LICHTER, supra note 46, at 144, 160-63; Saucedo, supra note 46, at 978-79.
76. WALDINGER & LICHTER, supra note 46, at 162.
77. Id. at 162-63.
78. In addition to WALDINGER & LICHTER, supra note 46, at 160-67, see, for example, Karen D. Johnson-Webb, Employer Recruitment and Hispanic Labor Migration: North Carolina Urban Areas at the End of the Millennium, 54 PROF. GEOGRAPHER 406, 412-13 (2002);
79. Jeffrey Leiter, Leslie Hossfeld & Donald Tomaskovic-Devey, North Carolina Employers Look at Latino Workers (Apr. 2001) (paper presented at the Annual Meeting of the Southern Sociological Society, Atlanta, Ga., Apr. 2001) (discussing employer preference for Latino workers over non-Latinos).
80. See, for example, the recent statement of the Essential Worker Immigration Coalition (EWIC), to which the Chamber of Commerce and many other large business associations belong, regarding the need for a guest worker program to fill jobs "that most Americans take for granted but won't do themselves." Essential Worker Immigration Coalition, 5 Myths Regarding Immigration and Comprehensive Immigration Reform in the U.S., http://www.ewic.org/index2.php?option=com_content&do_pdf=1&id=44 (last visited Apr. 5, 2008).
81. On how employers structure jobs in ways that increase Americans' resistance to doing them, see Saucedo, supra note 46, at 973-76, and Smith, supra note 18, at 4-5.
82. For a discussion of employers' structuring choices and opportunities for women in the workforce, see Vicki Schultz, Telling Stories About Women and Work: Judicial Interpretations of Sex-Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument, 103 HARV. L. REV. 1749, 1816-38 (1990).
83. 42 U.S.C. §§ 2000e to 2000e-17 (2000).
84. Leticia M. Saucedo, Addressing Segregation in the Brown Collar Workplace: Toward a Solution for the Inexorable 100%, 41 U. MICH. J.L. REFORM (forthcoming 2008) (on file with the authors); Saucedo, supra note 46.
85. Saucedo, supra note 61, at 14. For further critiques of Title VII in the context of a multiracial workforce, see our discussion of the works of Noah Zatz and Elizabeth Iglesias, infra notes 329 and 330, respectively, and accompanying text.
86. For a study of the development and evolution of this niche, see Dae Young Kim, Beyond Co-Ethnic Solidarity: Mexican and Ecuadorean Employment in Korean-Owned Businesses in New York City, 22 ETHNIC & RACIAL STUD. 581 (1999).
87. Title VII cases in which plaintiffs have challenged racially and ethnically stratified workplaces amply illustrate this practice in workplaces around the United States. See, e.g., Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1074 (finding unsuccessful the plaintiffs' allegation of race discrimination in a work setting where the vast majority of skilled positions were held by white workers and the more arduous cannery positions were held by Native Alaskans and Filipinos and where each ethnic group had separate housing facilities). Anthropologist Carol Stack documents the segregation of fast food workers by race and ethnicity in Oakland, California, finding that African American workers are relegated to the least desirable late-night shifts. Carol B. Stack, Beyond What Are Given as Givens: Ethnography and Critical Policy Studies, 25 ETHOS 191, 202 (1997).
88. On racial and gender stratification within Silicon Valley, see Karen J. Hossfeld, Their Logic Against Them: Contradictions in Sex, Race, and Class in Silicon Valley, in TECHNICOLOR: RACE, TECHNOLOGY, AND EVERYDAY LIFE 34, 39-40 (Alondra Nelson & Thuy N. Tu eds., 2001).
89. For a recent example of an employer's use of race and immigration to divide workers in one meatpacking enterprise, the Smithfield Packing Company, see Charlie LeDuff, At a Slaughterhouse, Some Things Never Die: Who Kills, Who Cuts, Who Bosses Can Depend on Race, N.Y. TIMES, June 16, 2000, at A1.
90. WALDINGER & LICHTER, supra note 46, at 9. This process is and always has been fluid. For an account of how "black jobs" and "white jobs" were naturalized as categories in the North Carolina lumber industry in the early 1900s, see William P. Jones, Black Workers and the CIO's Turn Toward Racial Liberalism: Operation Dixie and the North Carolina Lumber Industry 1946-1953, 41 LAB. HIST. 279, 281-85 (2000).
91. For a discussion of the devaluation of jobs associated with Blacks, see Robin D.G. Kelley, "We Are Not What We Seem": Rethinking Black Working-Class Opposition in the Jim Crow South, 80 J. AM. HIST., June 1993, at 75, 101 ("But once derogatory social meaning is inscribed upon the work (let alone the black bodies that perform the work), it undermines its potential dignity and worth - frequently rendering 'nigger work' less manly.").
92. For a similar example in a different context, see Ruth Milkman's account of the shift from African American to immigrant labor in Los Angeles's janitorial industry. MILKMAN, supra note 45, at 104-13.
93. COMPA, supra note 1, at 15; LEON FINK, THE MAYA OF MORGANTON: WORK AND COMMUNITY IN THE NUEVO NEW SOUTH 12 (2003); STRIFFLER, supra note 1, at 51-52.
94. COMPA, supra note 1, at 11-14. African Americans left poultry jobs in droves. See Pérez & Dade, supra note 1. Employers hired Latino immigrants to replace them. See STRIFFLER, supra note 1, at 96.
95. See sources cited supra note 45.
96. See, e.g., Essential Worker Immigration Coalition, supra note 57. The example of meatpacking provides another useful illustration of a job's progression from desirable to undesirable in the eyes of U.S. workers. Once heavily unionized and dominated by native-born workers, meatpacking at one time paid wages 15 to 19 percent higher than the average in U.S. manufacturing. As enormous companies such as Iowa Beef Processors consolidated their control over the industry in the late 1980s and 1990s, they aggressively fought unionization and succeeded in automating and speeding up the work and lowering the pay. Today, offering 24 percent less than the average U.S. manufacturing wage for dirty and dangerous labor, these jobs have fallen into the category of "work Americans won't do" and are increasingly held by immigrants. COMPA, supra note 1, at 11-14; Marc Cooper, The Heartland's Raw Deal: How Meatpacking Is Creating a New Immigrant Underclass, THE NATION, Feb. 3, 1997, at 11, 11-17.
97. See, e.g., Steven Greenhouse, Immigrant Crackdown Upends a Slaughterhouse's Work-force, N.Y. TIMES, Oct. 12, 2007, at A1; Pérez & Dade, supra note 1, at A1.
98. See Stuesse & Helton, supra note 37, at 4 (quoting a Mississippi resident on the shift from black to white to immigrant workers: "The Whites left for more money, so they brought in Blacks. Then when Blacks wanted more money, they brought immigrants.").
99. FINK, supra note 67, at 13-18; Stuesse & Helton, supra note 37, at 7-8. For a similar story in the janitorial, garment, construction, and trucking industries in Los Angeles, see MILKMAN, supra note 45, at 104-13.
100. The employer strategy of placing African Americans in opposition to other groups is an old phenomenon. Over the past two centuries, African Americans have been used by employers to threaten and unseat other workers and have also been situated as the group to be unseated. W.E.B. Du Bois documented the complaint often made by Irish workers before emancipation that freedmen and women were undermining wages in cities like Philadelphia and New York through their sheer numbers and their willingness to work for little pay. W.E.B. DU BOIS, BLACK RECONSTRUCTION IN AMERICA 1860-1880, at 18-19 (Atheneum 1935). Employers openly fanned the flames of the hostility that resulted.
101. BRUCE NELSON, DIVIDED WE STAND: AMERICAN WORKERS AND THE STRUGGLE FOR BLACK EQUALITY 19-20 (2001).
102. Meanwhile, the tables were turned on African American workers in traditionally black-held jobs, who were told that immigrants would do their jobs better and more cheaply. As Frederick Douglass lamented of the economy in the North in 1853, "every hour sees the black man elbowed out of employment by some newly arrived emigrant, whose hunger and whose color are thought to give him a better title to the place." 2 THE LIFE AND WRITINGS OF FREDERICK DOUGLASS 224 (Philip Foner ed., 1950); see also id. at 265 (discussing a similar phenomenon in Southern states). Immigrants have long been used to play similar roles in relation to each other and to white workers. For example, Ronald Takaki has documented the way that Hawaiian sugarcane planters "used Chinese laborers as an 'example' for the native workers" in the mid-1800s, pointing out how hard they worked and calling the native Hawaiians "wahine" or "women" by comparison.
103. Ronald Takaki, Ethnicity and Class in Hawaii: The Plantation Labor Experience, 1835-1920, in LABOR DIVIDED: RACE & ETHNICITY IN UNITED STATES LABOR STRUGGLES, 1835-1960, at 33, 40 (Robert Asher & Charles Stephenson eds., 1990).
104. See STRIFFLER, supra note 1, at 96; Dunn, Aragonés & Shivers, supra note 45, at 160; see also Pérez & Dade, supra note 1 ("[T]he number of black workers at [chicken-processing company] Crider declined steadily to 14% in early 2006 from as high as 70% a decade ago . . . .").
105. Smith, supra note 40, at 79-80.
106. See, e.g., David Bacon, The Political Economy of Migration, NEW LAB. F., Fall 2007, at 57, 63 ("Very little of the rise in African American unemployment is a result of direct displacement by immigrants. It's caused overwhelmingly by the decline in manufacturing and cuts in public unemployment.");
107. DeWayne Wickham, Immigrants a Scapegoat for Blacks' Unemployment, USA TODAY, Aug. 7, 2007, at A9 ("'We examined the overall question of [the] black economic fate in the labor market, and [found that] there is not a clear link between the presence of immigrants and those adverse economic outcomes for African-Americans,' says Steven Pitts, a labor policy specialist at the University of California-Berkeley's Labor Center. For example, despite a steady increase in foreign-born immigrants from 1980 to 2000, Pitts says, U.S. black unemployment dropped sharply during those years."); see also Hutchinson, supra note 44.
108. See, e.g., George J. Borjas, The Labor Demand Curve Is Downward Sloping: Reexamining the Impact of Immigration on the Labor Market, 118 Q.J. ECON. 1335, 1370 (2003) [hereinafter Borjas, The Labor Demand Curve];
109. George J. Borjas, Increasing the Supply of Labor Through Immigration: Measuring the Impact on Native-Born Workers, BACKGROUNDER, May 2004, at 1, available at http://www.cis.org/articles/2004/back504.pdf [hereinafter Borjas, Increasing the Supply]. Economist Vernon Briggs has also long argued that immigration has negative economic consequences for African Americans.
110. See, e.g., Vernon M. Briggs, Jr., The Economic Well-Being of Black Americans: The Overarching Influence of U.S. Immigration Policies, in THE IMPACT OF IMMIGRATION ON AFRICAN AMERICANS 1, 1-26 (Steven Shulman ed., 2004).
111. Borjas, The Labor Demand Curve, supra note 78, at 1370 (estimating 8.9 percent);
112. Borjas, Increasing the Supply, supra note 78, at 1 (estimating 7.4 percent).
113. See George J. Borjas & Lawrence F. Katz, The Evolution of the Mexican-Born Workforce in the United States 63 (Nat'l Bureau of Econ. Research, Working Paper No. 11281, 2005);
114. Eduardo Porter, Cost of Illegal Immigration May Be Less Than Meets the Eye, N.Y. TIMES, Apr. 16, 2006, at 3.
115. Borjas, Increasing the Supply, supra note 78, at 1, 6;
116. see also Daniel S. Hamermesh & Frank D. Bean, Introduction to HELP OR HINDRANCE?: THE ECONOMIC IMPLICATIONS OF IMMIGRATION FOR AFRICAN-AMERICANS 1, 8-9 (Daniel S. Hamermesh & Frank Bean eds., 1998) (concluding that immigration has a small but "clearly identifiable" negative impact on the wages of all African Americans, with a stronger impact on low-skilled African Americans).
117. Borjas's most recent position is characterized in Roger Lowenstein, The Immigration Equation, N.Y. TIMES MAG., July 9, 2006, at 36, 38 ("To Borjas . . . the truth is pretty obvious: immigrants hurt the economic prospects of the Americans they compete with . . . especially African-Americans . . . .").
118. David Card, Is the New Immigration Really So Bad? 3 (Nat'l Bureau of Econ. Research, Working Paper No. 11547, 2005) [hereinafter Card, New Immigration];
119. see also David Card, Immigrant Inflows, Native Outflows, and the Local Labor Market Impacts of Higher Immigration, 19 J. LAB. ECON. 22 (2001) [hereinafter Card, Immigrant Inflows].
120. Card, New Immigration, supra note 83, at 12.
121. Id. at 24-25. In other words, where immigrant labor is abundant, employers turn towards less skill-intensive methods of production, using more workers instead. See Ethan Lewis, How Did the Miami Labor Market Absorb the Mariel Immigrants? 21 (Fed. Reserve Bank of Phila., Working Paper No. 04-3, 2004), available at http://philadelphiafed.org/files/wps/2004/wp04-3. pdf.
122. RAKESH KOCHHAR, PEW HISPANIC CTR., GROWTH IN THE FOREIGN-BORN WORKFORCE AND EMPLOYMENT OF THE NATIVE BORN 27 (2006), http://www.pewhispanic.org/files/reports/69.pdf. The differences between the two sides depend largely on the assumptions each makes. For example, economists who make predictions about outcomes assuming that immigrants and natives are perfect substitutes for each other in the workplace will find that an increase in immigration creates direct job competition. Those who assume that job markets are segmented and that immigrants and natives hold different positions in them posit that the presence of immigrants may increase the demand for native workers in supervisory positions, thus benefiting natives.
123. See Howard F. Chang, The Economic Impact of International Labor Migration: Recent Estimates and Policy Implications, 16 TEMP. POL. & CIV. RTS. L. REV. 321, 327-29 (2007); see also Lowenstein, supra note 82, at 10-11. Similarly, when economists calculate the impact of immigration without taking into account the possibility that an influx of labor will draw new capital to the industries where immigrants labor, they find a greater negative impact. Chang, supra, at 329-30;
124. see also Borjas, The Labor Demand Curve, supra note 78, at 1368 (calculating the wage impact of immigration under the assumption that capital stock is constant). Once capital is presumed to adjust to the increased economic activity from immigration, the wage effects diminish or disappear. Chang, supra, at 330-31.
125. Steven Raphael & Lucas Ronconi, The Effects of Labor Market Competition With Immigrants on the Wages and Employment and Natives: What Does Existing Research Tell Us? 23 (Jan. 2007) (unpublished manuscript), available at http://irle.berkeley.edu/cwed/ronconi/immigration_existing_research.pdf; see also id. at 23-25 (discussing factors such as English proficiency, education, and incarceration).
126. The exception is a handful of case studies of natural experiments that arose when a large discrete group of immigrants arrived in a particular city or local economy at one time. Id. at 18. The arrival of the Mariel Cubans in Miami is one example. See, e.g., David Card, The Impact of the Mariel Boatlift on the Miami Labor Market, 43 INDUS. & LAB. REL. REV. 245 (1990).
127. For further critiques of the economic competition theory, see Smith, supra note 18, at 3-6. Smith grapples with African American workers' persistent perceptions of competition in the absence of data confirming direct displacement in Smith, supra note 40, at 78-79. See also Steinberg, supra note 40, at 180 (arguing that the studies that find no displacement are flawed because they aggregate data across sectors, rather than examining industries individually).
128. One exception is the work of Roger Waldinger, who has explored displacement in Los Angeles and New York, among other settings. WALDINGER, supra note 45.
129. Julie Murray, Jeanne Batalova, & Michael Fix, The Impact of Immigration on Native Workers: A Fresh Look at the Evidence, 18 MIGRATION POL'Y INST. INSIGHT 7 (2006).
130. For example, Roger Waldinger analyzes the shift from African Americans to immigrants in New York's hotel and garment industries and concludes: In the end, immigrants may have hastened the African-American exodus from New York's low-skilled sectors, but if so, they only pushed along a development that was well underway before they arrived. African-Americans stopped doing New York's dirty work more than a generation ago . . . . Today's areas of African-American concentration are to be found in areas that require more schooling and provide much greater rewards. But this particular path of adaptation leaves behind the low-skilled. WALDINGER, supra note 45, at 173. Michael J. Rosenfeld and Marta Tienda tentatively offer the better jobs hypothesis. See Michael J. Rosenfeld & Marta Tienda, Mexican Immigration, Occupational Niches, and Labor-Market Competition: Evidence From Los Angeles, Chicago, and Atlanta, 1970-1990, in IMMIGRATION AND OPPORTUNITY: RACE, ETHNICITY, AND EMPLOYMENT IN THE UNITED STATES 64, 97-98 (Frank D. Bean & Stephanie Bell-Rose eds., 1999). Not all economists agree that this is the case. See Murray, Batalova & Fix, supra note 91, at 4-6 (summarizing the debate).
131. See, e.g., KOCHHAR, supra note 86, at 15; Murray, Batalova & Fix, supra note 91, at 4-6; Raphael & Ronconi, supra note 87, at 19-20.
132. Murray, Batalova & Fix, supra note 91, at 4-5.
133. Borjas, increasing the Supply, supra note 78, at 1, 6; see also Carnevale & Rose, supra note 44, at 52 (noting that while only 1 in 16 white workers have not completed high school, 1 in 8 Blacks and 1 in 3 Latinos do not have a high school diploma).
134. See BUREAU OF LABOR STATISTICS, THE EMPLOYMENT SITUATION: SEPTEMBER 2007, NEWS 1 (2007), available at http://www.bls.gov/news.release/ archives/empsit_10052007.pdf (stating the official unemployment rate for September 2007 as 4.2 percent for white workers, 8.1 percent for African Americans, and 5.7 percent for Latinos). The official rate does not include discouraged workers who had not searched for work in the four weeks prior to the survey. Id. at 3. The actual numbers of jobless people are therefore much higher. And African Americans make up over 28 percent of the long-term jobless, more than twice their representation in the population as a whole.
135. ECON. POL'Y INST., FACTS & FIGURES: AFRICAN-AMERICANS 2 (2006).
136. This may be particularly true in the South where, as we indicated earlier, surges in Latino immigration are occurring in areas with substantial African American populations. On the influx of immigrants to the South, see SINGER, supra note 11, and supra text accompanying note 11. On the high concentration of African Americans in the South, see Jesse McKinnon, The Black Population 2000, at 3-4 (Census 2000 Brief, 2001), available at http://www.census.gov/prod/2001pubs/c2kbr01-5.pdf.
137. On changing immigration patterns and the increase in Latino immigration to Southern states, see SINGER, supra note 11, at 5.
138. See Steinberg, supra note 40, at 180. For additional efforts to square the outcomes of the economic competition studies with African American workers' persistent perceptions of competition, see Smith, supra note 40, at 78-79, and Smith, supra note 18, at 3-6.
139. For an argument that immigration has different labor market effects in different locations, see Frank D. Bean, Jennifer Van Hook & Mark A. Fossett, Immigration, Spatial and Economic Change, and African American Employment, in IMMIGRATION AND OPPORTUNITY: RACE, ETHNICITY, AND EMPLOYMENT IN THE UNITED STATES, supra note 92, at 31; see also Steinberg, supra note 40, at 180.
140. Economist Lisa Catanzarite has consistently found that when large numbers of recent Latino immigrants cluster in a line of work in a particular location, African American and earlier-immigrant Latino workers pay a particularly high wage penalty for continuing to work in that occupation. See Lisa Catanzarite, Dynamics of Segregation and Earnings in Brown-Collar Occupations, 29 WORK & OCCUPATIONS 300 (2002);
141. Lisa Catanzarite, Occupational Context and Wage Competition of New Immigrant Latinos With Minorities and Whites, in THE IMPACT OF IMMIGRATION ON AFRICAN AMERICANS, supra note 78, at 59, 68-69.
142. Linda Bosniak, Citizenship Denationalized, 7 IND. J. GLOBAL LEGAL STUD. 447, 455 (2000);
143. Leti Volpp, "Obnoxious to Their Very Nature:" Asian Americans and Constitutional Citizenship, 8 ASIAN L.J. 71, 71-72 (2001).
144. To cite the most obvious example, women have always been U.S. citizens but were long denied the right to vote, among many other privileges and benefits of citizenship. See, e.g., Minor v. Happersett, 88 U.S. 162 (1875).
145. See infra Part IV.A. During slavery, of course, Blacks were not regarded as citizens. See Dred Scott v. Sandford, 60 U.S. 393, 407-08 (1857) (rejecting the claim that a black man held as a slave could be regarded as a citizen for the purpose of bringing suits in federal court). Formal legal citizenship was not conferred on Blacks until ratification of the Fourteenth Amendment. And even then, the substantive benefits of citizenship were denied to the vast majority of African Americans. See infra pp. 1203-1211; see also Jennifer Gordon & R.A. Lenhardt, Citizenship Talk: Bridging the Gap Between Immigration and Race Perspectives, 75 FORDHAM L. REV. 2493, 2502-04 (2007) (discussing the concept of second-class citizenship in Critical Race scholarship and the notion that the substantive benefits of formal citizenship have yet to be accorded African Americans).
146. Linda Bosniak, Citizenship and Work, 27 N.C. J. INT'L L. & COM. REG. 497, 505 (2002) [hereinafter Bosniak, Citizenship and Work];
147. Linda Bosniak, Constitutional Citizenship Through the Prism of Alienage, 63 OHIO ST. L.J. 1285, 1307-1308 (2002) [hereinafter Bosniak, Constitutional Citizenship].
148. For a discussion of noncitizen voting, see RON HAYDUK, DEMOCRACY FOR ALL: RESTORING IMMIGRANT VOTING RIGHTS IN THE UNITED STATES (2006);
149. Gerald L. Neuman, "We Are the People": Alien Suffrage in German and American Perspective, 13 MICH. J. INT'L L. 259 (1992);
150. Jamin B. Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, 141 U. PA. L. REV. 1391 (1993);
151. Gerald M. Rosberg, Aliens and Equal Protection: Why Not the Right to Vote?, 75 MICH. L. REV. 1092 (1977).
152. KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION (1989) [hereinafter KARST, BELONGING];
153. see also KENNETH L. KARST, LAW'S PROMISE, LAW'S EXPRESSION: VISIONS OF POWER IN THE POLITICS OF RACE, GENDER, AND RELIGION (1993) [hereinafter KARST, LAW'S PROMISE];
154. Kenneth L. Karst, Paths to Belonging: The Constitution and Cultural Identity, 64 N.C. L. REV. 303 (1986) [hereinafter Karst, Paths to Belonging];
155. Kenneth L. Karst, The Supreme Court, 1976 Term - Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1 (1976) [hereinafter Karst, Equal Citizenship].
156. KARST, BELONGING, supra note 106, at 3 ("The principle of equal citizenship, as I use the term, means this: Each individual is presumptively entitled to be treated by the organized society as a respected, responsible, and participating member. Stated negatively, the principle forbids the organized society to treat an individual as a member of an inferior or dependent caste or as a nonparticipant. The principle thus centers on those aspects of equality that are most closely bound to the sense of self and the sense of inclusion in a community.").
157. Karst, Equal Citizenship, supra note 106, at 6 (footnote omitted).
158. Id. at 31 (citations omitted).
159. Other scholars have employed the term membership in arguing for a broad conception of citizenship. See, e.g., René Galindo et al., Dual Sources of Influence on Latino Political Identity: Mexico's Dual Nationality Policy and the DREAM Act, 11 TEX. HISP. J.L. & POL'Y 75, 78 (2005) (advocating the need for a "view of citizenship that is understood in terms of societal membership");
160. Joel F. Handler, "Constructing the Political Spectacle:" The Interpretation of Entitlements, Legalization, and Obligations in Social Welfare History, 56 BROOK. L. REV. 899, 967 (1990) (discussing concept of membership);
161. Kevin R. Johnson, Race Matters: Immigration Law and Policy Scholarship, Law in the Ivory Tower, and the Legal Indifference of the Race Critique, 2000 U. ILL. L. REV. 525, 536-37 & n.51 (discussing the contributions of LatCrit theory on the study of membership and citing authorities on membership theory);
162. Rachel F. Moran, The Terms of Belonging, in THE CONSTITUTION IN 2020 (Jack Balkin & Reva Siegal eds.) (unpublished manuscript on file with author);
163. see also Kevin R. Johnson, The Case Against Racial Profiling in Immigration Enforcement, 78 WASH. U. L.Q. 675, 692, 717, 724, 728-34 (2000) (discussing racial profiling as a barrier to full membership for Latinos).
164. See Denise C. Morgan & Rebecca E. Zietlow, The New Parity Debate: Congress and Rights of Belonging, 73 U. CIN. L. REV. 1347, 1393 (2005). In this respect, our conception of citizenship arguably goes beyond that articulated by Karst in 1989. For example, Belonging to America addressed the issue of immigration, but only insofar as it shaped how we think about American identity.
165. See KARST, BELONGING, supra note 106, at 81-104. Karst was certainly concerned about issues that affect noncitizen immigrants, such as bilingual education, see id. at 98-100, but did not engage as directly as we do here the social standing or status of noncitizens. His work is principally concerned with how law has informed and shaped what it means to be a citizen.
166. See Morgan & Zietlow, supra note 111, at 1392-93; see also DENISE C. MORGAN ET AL., AWAKENING FROM THE DREAM: CIVIL RIGHTS UNDER SIEGE AND THE NEW STRUGGLE FOR EQUAL JUSTICE, at xv (Denise C. Morgan et al. eds., 2006). Morgan and Zietlow understand "'[r]ights of belonging' [to] . . . includ[e] rights that historically were not considered to be civil rights - such as economic rights, like the right to a living wage, and social rights, like equal access to public accommodations and the right to adequate education." Morgan & Zietlow, supra note 111, at 1392 (citations omitted). In their view, various laws create rights of belonging. See id. at 1392-93 ("Labor laws create right of belonging when they empower workers to bargain effectively for economic mobility. Similarly, social welfare laws create rights of belonging when they enhance the ability of poor people, the disabled, and the elderly to participate more fully in the national community. Federal education legislation creates rights of belonging when it makes education more accessible because adequate education is essential to economic and political success.").
167. See Morgan & Zietlow, supra note 111, at 1392-93.
168. Gordon & Lenhardt, supra note 104, at 2494-95; see also Morgan & Zietlow, supra note 111, at 1394 ("[I]n order to 'belong to America' one must have rights that ensure inclusion, participation, equal membership, economic mobility, and freedom from stereotyping in our diverse national community.").
169. We say "most" because some newcomers are U.S. citizens from Puerto Rico, and others are citizens by virtue of having U.S. citizen parents although they may never have entered the United States before.
170. Two recent volumes eloquently make this point: AFTER THE STORM: BLACK INTELLECTUALS EXPLORE THE MEANING OF HURRICANE KATRINA (David Dante Troutt ed., 2006),
171. and WHAT LIES BENEATH: KATRINA, RACE, AND THE STATE OF THE NATION (South End Press Collective ed., 2007).
172. On the critical intersection between race and class, see John O. Calmore, A Call to Context: The Professional Challenges of Cause Lawyering at the Intersection of Race, Space, and Poverty, 67 FORDHAM L. REV. 1927 (1999).
173. Gordon & Lenhardt, supra note 104, at 2495.
174. Leti Volpp, Divesting Citizenship: On Asian American History and the Loss of Citizenship Through Marriage, 53 UCLA L. REV. 405, 480 (2005);
175. see also BOAVENTURA DE SOUSA SANTOS, TOWARD A NEW COMMON SENSE: LAW, SCIENCE AND POLITICS IN THE P ARADIGMATIC TRANSITION 311-12 (1995) (claiming that "[b]y means of its territorial grounding, the concept of citizenship keeps its integrity only by creating, in sociological terms, second-class, third-class and even fourth-class citizens," but calling for "a new theory of citizenship" that is democratic, deterritorialized, and permits multiple affiliations);
176. Donna Baines & Nandita Sharma, Migrant Workers as Non-Citizens: The Case Against Citizenship as a Social Policy Concept, STUD. POL. ECON., Autumn 2002, at 75, 94-96; Moran, supra note 110. In contrast, as we note in an earlier work, critical race scholars have retained their faith in the citizenship concept as a framework despite their critiques of the racist foundations of the U.S. citizenship regime, its disenfranchisement of black voters, and its disentitlement of black citizens to the substantive benefits of citizenship. See Gordon & Lenhardt, supra note 104, at 2504.
177. See, e.g., Linda Bosniak, Critical Reflections on "Citizenship" as a Progressive Aspiration, in LABOUR LAW IN AN ERA OF GLOBALIZATION: TRANSFORMATIVE PRACTICES AND POSSIBILITIES 339, 342-43 (Joanne Conaghan et al. eds., 2002);
178. Alexander Aleinikoff, Citizenship Talk: A Revisionist Narrative, 69 FORDHAM L. REV. 1689, 1692 (2001);
179. Ediberto Roman, The Citizenship Dialectic, 20 GEO. IMMIGR. L.J. 557, 568-72, 573-75 (2006).
180. Volpp, supra note 118, at 481.
181. See Dorothy E. Roberts, Welfare and the Problem of Black Citizenship, 105 YALE L.J. 1563, 1573-76 (1996)
182. (reviewing LINDA GORDON, PITIED BUT NOT ENTITLED: SINGLE MOTHERS AND THE HISTORY OF WELFARE 1890-1935 (1994),
183. and JILL QUADAGNO, THE COLOR OF WELFARE: HOW RACISM UNDERMINED THE WAR ON POVERTY (1994));
184. see also Gary P. Freeman, Migration and the Political Economy of the Welfare State, ANNALS AM. ACAD. POL. & SOC. SCI., May 1986, at 51, 52 ("[T]he concept of membership implies the existence of persons who are not members and who are, therefore, excluded from the process of sharing.").
185. Moran, supra note 110, at 19.
186. A number of alternative models show some promise. As we noted earlier, the concept of membership has been advanced by some scholars. See supra note 110. In addition, notions of personhood and denizenship have been suggested by scholars. See, e.g., Moran, supra note 110. We are persuaded that, in addition to these models, an economic model of citizenship or belonging might be particularly beneficial, especially given our focus on the experiences of workers in the low-wage context. As we indicate above, however, we do not adopt any one of these frames here.
187. On the impact of abusive employer behavior on black workers, see Regina Austin, Employer Abuse, Worker Resistance, and the Tort of Intentional Infliction of Emotional Distress, 41 STAN. L. REV. 1, 23-25 (1988).
188. See SHKLAR, supra note 25, at 2.
189. Cynthia L. Estlund, Working Together: The Workplace, Civil Society, and the Law, 89 GEO. L.J. 1, 17 (2000);
190. Kenneth L. Karst, The Coming Crisis of Work in Constitutional Perspective, 82 CORNELL L. REV. 523, 550-52 (1997);
191. Marrow, supra note 1, at 10 (citing KATHERINE S. NEWMAN, NO SHAME IN MY GAME: THE WORKING POOR IN THE INNER CITY (1999));
192. Vicki Schultz, Life's Work, 100 COLUM. L. REV. 1881, 1888 (2000).
193. Estlund's comprehensive vision of the workplace as a critical civil society institution builds on earlier ideas put forth by Susan Sturm and Lani Guinier, Kenneth Karst, and others. See, e.g., Karst, supra note 126, at 550-53; Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REV. 953, 1031 (1996) ("Virtually every aspect of citizenship is channeled through participation in the workplace.").
194. Estlund, supra note 126, at 25. For an overview of the literature examining the workplace as a site for the exercise of citizenship, see Eddie A. Jauregui, Note, The Citizenship Harms of Workplace Discrimination, 40 COLUM. J.L & SOC. PROBS. 347, 359-61 (2007).
195. Estlund, supra note 126, at 30. On work as a place through which people contribute to the larger society and as a "building block for community," see Schultz, supra note 126, at 1888-90.
196. Estlund, supra note 126, at 53.
197. Id. at 52. Estlund also touches on the idea, see id. at 74-76, which others have more fully developed, that the workplace itself is - or could be - a microcosm of democracy. Mark Barenberg, The Political Economy of the Wagner Act: Power, Symbol, and Workplace Cooperation, 106 HARV. L. REV. 1379 (1993);
198. Craig Becker, Democracy in the Workplace: Union Representation Elections and Federal Labor Law, 77 MINN. L. REV. 495 (1993).
199. William E. Forbath, Caste, Class, and Equal Citizenship, 98 MICH. L. REV. 1, 18 (1999); see also Karst, supra note 126, at 539-48; Schultz, supra note 126, at 1883-84.
200. SHKLAR, supra note 25, at 63-64, 99-101.
201. Id. at 2.
202. Id. at 101. Shklar highlights these two activities - possessing the right to cast a ballot and the independence that flows from being "a free remunerated worker, one who [in contrast to a slave] is rewarded for the actual work he has done" - because of the devastating impact of their denial on groups such as women, Native Americans, and African Americans. Id. at 15. She explained that "[i]t is because slavery, racism, nativism, and sexism, often institutionalized in exclusionary and discriminatory laws and practices, have been and still are arrayed against the officially accepted claims of equal citizenship that there is a real pattern to be discerned in the tortuous development of American ideas of citizenship." Id. at 13-14.
203. Shklar makes clear that a primary goal in writing the book was "to recall . . . the enduring impact of slavery not merely on black Americans and on the Civil War generation generally, but also on the imagination and fears of those who were neither threatened by enslavement nor deeply and actively opposed to it." Id. at 22. Shklar stays true to this goal throughout her text, exploring the dimensions and citizenship-related implications of the "peculiar institution." See KENNETH M. STAMPP, THE PECULIAR INSTITUTION: SLAVERY IN THE ANTEBELLUM SOUTH (1956). This partially accounts for our conclusion that American Citizenship provides a useful starting point for our project. For reasons we explain later, see infra Part IV, we are persuaded that there is something in the patterns of citizenship for African Americans and Latinos - the paths that they have taken to the workplace - that sheds light on the nature of the tensions evident in their workplace interactions. This said, our approach differs from Shklar's. For example, in employing the term "standing," we believe that Shklar herself understood "[t]he struggle for citizenship in America . . . [as] a demand for inclusion in the polity, an effort to break down excluding barriers to recognition, rather than an aspiration to civic participation as a deeply involving activity." SHKLAR, supra note 25, at 3. In our view, Shklar adopts too formalistic an interpretation of citizenship, one that is too closely tied to political activities, like voting, that legal citizens - assuming the nonexistence of overtly discriminatory laws or policies - engage in. For reasons already articulated, we prefer the concept of belonging. Additionally, as our discussion thus far suggests, we think work a better term for the pathway that relates to financial compensation than earning. The ability and right to be compensated for one's work distinguishes a person from the quintessential noncitizen, the slave. Id. at 16, 36. But there is more to autonomy than simply being able to earn wages. Equally important to one's dignity and self-respect is the ability to control how one's labor is defined and to have some authority over the place and pace of that labor. Our sense is that work captures this notion of control and dignity, as well as the compensation-related aspects of citizenship identified by Shklar.
204. SHKLAR, supra note 25, at 1.
205. Id. It bears noting that property ownership was also deemed fundamental to American citizenship, particularly in the early years. See HERBERT APPLEBAUM, THE AMERICAN WORK ETHIC AND THE CHANGING WORK FORCE: AN HISTORICAL PERSPECTIVE 9 (1998) ("In the beginning America was the land and the land was America. Land was the dream that drew settlers to American shores, the dream of ownership that had eluded most of them in Europe. Land was waiting for them, waiting to be acquired, granted, seized, bargained for, rented, and above all, worked on and accumulated for one's family and heirs.").
206. Karst, supra note 126, at 538.
207. Frank Munger, Poverty, Welfare, and the Affirmative State, 37 LAW & SOC'Y REV. 659, 674 (2003) (book review). The rhetoric employed during the welfare reform efforts of the 1990s and the language used to describe the unemployed reinforce the notion that failure to work decreases one's social status.
208. Cf. Angela Onwuachi-Willig, The Return of the Ring: Welfare Reform's Marriage Cure as the Revival of Post-Bellum Control, 93 CAL. L. REV. 1647, 1669, 1672 (2005);
209. Gwendolyn Mink, Welfare Reform in Historical Perspective, 26 CONN. L. REV. 879, 883, 888, 891-92 (1994).
210. Vicki Schultz, for example, has argued that "work has been fundamental to our conception of the good life. It has been constitutive of citizenship, community, and even personal identity." Schultz, supra note 126, at 1886.
211. See Forbath, supra note 132, at 18. For "Jefferson, Madison, or most other eighteenth-century political thinkers," the low-wage worker or "hireling was, in theory, free and self-owning, still his hireling status meant he had forfeited not simply his property in his own labor, but his economic independence, and with it, the franchise." Id. at 18-19. As Professor William Forbath has explained, "status [characterized by] . . . dependence and submission disqualified [a man] . . . for citizenship." Id. at 19. The disenfranchisement of slaves at the founding attests to this. See id. Autonomy and control over one's work was essential to citizenship status. See id. at 19-20.
212. See Forbath, supra note 132, at 18-19; Schultz, supra note 126, at 1886-87.
213. SHKLAR, supra note 25, at 67.
214. Id. As we note above, given the link between citizenship and property earlier in American history, it might have been better said that we are citizens only if we own.
215. See Schultz, supra note 126, at 1889-90; see also Karst, supra note 126, at 533.
216. Schultz, supra note 126, at 1890 (discussing ROSABETH MOSS KANTER, MEN AND WOMEN OF THE CORPORATION (1977)).
217. Karst, supra note 126, at 533. Karst made the point about the internalization of characteristics quite nicely. See id. Examples he gave in this regard include "terms [such] as initiative, dependability, industry, attention to detail, and cooperativeness." Id. As feminist scholars have pointed out, the downside of a conception of citizenship in which paid work carries such weight is that it excludes those who are not members of the labor force, with particular detriment to women, who are far more likely than men to play an unpaid caregiving role family. MARTHA ALBERTSON FINEMAN, THE AUTONOMY MYTH: A THEORY OF DEPENDENCY 34-40 (2004);
218. Martha M. Ertman, Love and Work: A Response to Vicki Schultz's Life's Work, 102 COLUM. L. REV. 848, 852 (2002);
219. Nancy Fraser & Linda Gordon, Civil Citizenship Against Social Citizenship? On the Ideology of Contract-Versus-Charity, in THE CONDITION OF CITIZENSHIP 90 (Bart van Steenbergen ed., 1994);
220. Judy Fudge, After industrial Citizenship: Market Citizenship or Citizenship at Work?, 60 REL. INDUSTRIELLES/INDUS. REL. 631 (2005);
221. Alice Kessler-Harris, In Pursuit of Economic Citizenship, 10 SOC. POL. 157, 163 (2003);
222. Carol Pateman, The Patriarchal Welfare State, in DEMOCRACY AND THE WELFARE STATE 231 (Amy Gutmann ed., 1988); see also infra p. 1238.
223. See Forbath, supra note 132, at 16 (noting that "[w]ork, the nature of a person's contribution to the social enterprise and how that contribution is socially valued, goes a long way toward determining her status or standing").
224. Karst, supra note 126, at 533.
225. See Forbath, supra note 132, at 18-20; Karst, supra note 126, at 533.
226. Forbath, supra note 132, at 90; Karst, supra note 126, at 530, 571; Schultz, supra note 126, at 1928.
227. On work and the extent to which it enables us to provide for our families and loved ones, see Karst, supra note 126, at 532.
228. Id. This responsibility, of course, extends not just to our loved ones, but also to one's community and self. See APPLEBAUM, supra note 138, at x.
229. Karst, supra note 126, at 532.
230. Schultz, supra note 126, at 1887-88 (providing examples).
231. Although it is rarely outcome-determinative, work history is a relevant consideration in the government's decision to grant noncitizens certain forms of discretionary relief from removal, and in an immigrant's demonstration of good moral character for the purpose of naturalization. See, e.g., In re Arreguin, 21 I & N Dec. 38, 41 (1995) (granting relief under INA former section 212(c) to a woman in deportation proceedings, considering, among other factors, the applicant's long history of employment, payment of taxes, and the prospect of full-time employment upon her release); Yaqub v. Gonzalez, No. 1:05-cv-170, 2006 U.S. Dist. LEXIS 36727 (S.D. Ohio June 5, 2006) (granting a Pakistani man's application for naturalization, on the grounds that his successful educational and employment endeavors, his future employment prospects, and his positive community contributions all show he "has been and still is a person of good moral character" within the meaning of the statute).
232. Karst, supra note 126, at 543; see also Estlund, supra note 126, at 17, passim; Michael B. Katz et al., The New African American Inequality, 92 J. AM. HIST. 75, 89-92 (2005) (discussing integration of white collar workplaces by African Americans). Note that, as an historical matter, groups have also been excluded from the workplace on grounds such as race, gender, and sexual orientation. See Karst, supra note 126, at 543-44 (citing examples of racial exclusion); see also Bradwell v. State, 83 U.S. 130 (1872) (upholding a woman's exclusion from the state bar on gender grounds as constitutional); Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) (discussing FBI policy of excluding gays and lesbians from employment).
233. See, e.g., Forbath, supra note 132, at 17-18; Karst, supra note 126, at 538-48; Schultz, supra note 126, at 1883-85.
234. See KARST, BELONGING, supra note 106, at 43.
235. Forbath, supra note 132, at 1-7 (describing the concepts of social citizenship and inclusion).
236. Linda Bosniak criticizes Karst, Forbath, Schultz, and Shklar for this reason. Bosniak, Citizenship and Work, supra note 105, at 501; Bosniak, Constitutional Citizenship, supra note 105, at 1319-21. The scholars who explore work as a site for the exercise of citizenship also fail to grapple with the implications of their theories in a context where many in the workplace are not citizens at all. See, e.g., Estlund, supra note 126, at 4 (crediting the workplace for "the formation and interchange of political and social views among the majority of adult citizens" and arguing that "for ordinary citizens, workplace interactions among co-workers . . . can help to foster an ephemeral but essential sense of connectedness among citizens").
237. This said, Karst has considered the treatment accorded so-called aliens. See Karst, Equal Citizenship, supra note 106. He concludes that because such individuals lack formal citizenship status, certain restrictions on their political participation might be permissible. Id. at 45. However, he seems to suggest that limitations on other rights necessary to achieve belonging would not be consistent with his conception of equal citizenship. Id. at 42-45.
238. Bosniak, Constitutional Citizenship, supra note 105, at 1321;
239. see also Bosniak, Citizenship and Work, supra note 105, at 500-01.
240. Bosniak, Constitutional Citizenship, supra note 105, at 1321.
241. Shklar makes a similar omission in her book. Indeed, Shklar discusses openly the choices she makes with respect to the relative weight accorded to issues such as slavery and exclusionary immigration policies in trying to trace the pattern or path of American citizenship. See SHKLAR, supra note 25, at 14-15. We share Shklar's sense of the centrality of slavery to notions of citizenship in the United States. How well Americans navigated the "glaring inconsistencies between their professed principles of citizenship and their deep-seated desire to exclude certain groups permanently from the privileges of membership" must be part of any examination of American citizenship. Id. (quoting JAMES H. KETTNER, THE DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608-1870, at 288 (1978)). But in contrast to Shklar, we also believe that the exclusionary naturalization and immigration policies that have historically constrained the ability of individuals who were not native-born should be part of the focus here. We do not think it necessary to choose which legacy of exclusion has had the greatest impact on the American terrain. As we explained in a recent article, citizenship in the United States cannot fully be understood without attentiveness to the role that both race and immigration play in this context. See Gordon & Lenhardt, supra note 104, at 2497, 2511-16.
242. Though it goes somewhat beyond our specific project in this Article, we feel compelled to note that the failure to engage the reality of immigration undermines the normative agenda evident in the work of Karst, Schultz, and Forbath, who argue that the availability of decent work should be understood as an important guarantee of equal citizenship. See Forbath, supra note 132, at 90-91; Karst, supra note 126, at 571; Schultz, supra note 126, at 1928-29. Whatever one thinks about the capacity of the state to be generous with its benefits, see Freeman, supra note 121, at 54), it seems clear that, in today's context of massive immigration, a policy of full economic citizenship for citizens only creates a second tier of non-citizen workers, and jeopardizes the very principle of equality that lies at the core of Karst and Forbath's scholarship.
243. Estlund places a great deal of weight on the importance of such interchanges. Estlund, supra note 126, at 52 ("People practice skills of deliberation at work - they communicate their views, listen to others, compromise, and often participate in making decisions. . . . They also discuss public issues that have nothing to do with the workplace." These exchanges,
244. For an exploration of the role of language barriers in reinforcing the estrangement between African Americans and new Latino immigrant workers, as well as of efforts to bridge the gap, see Gordon & Lenhardt, supra note 27, at 17-18, 35, 41-42.
245. Forbath, supra note 132, at 17; Karst, supra note 126, at 547.
246. Forbath, supra note 132, at 17.
247. See Karst, supra note 126, at 527, 533-34. On the cut between good work and bad work, see Forbath, supra note 132, at 16-18.
248. With regard to work as a site for the exercise of citizenship, Estlund explicitly makes the argument that work should be broadly considered an important civil society institution despite its frequently undemocratic and hierarchical character. Estlund, supra note 126, at 71-73. As we explain in Section V.A., however, we suspect that a number of workplaces in the low wage context simply do not meet the threshold requirements to play this citizenship function.
249. We develop this point further in Part V.C.
250. See also infra p. 1201 (discussing the importance of work and land ownership to early African American citizens).
251. COMPA, supra note 1, at 11-14.
252. DANIEL T. RODGERS, THE WORK ETHIC IN INDUSTRIAL AMERICA, 1850-1920, at xi (1978)
253. (quoting THOMAS CARLYLE, PAST AND PRESENT (1843)).
254. See generally Arne L. Kalleberg, Barbara F. Reskin, & Ken Hudson, Bad Jobs in America: Standard and Nonstandard Employment Relations and Job Quality in the United States, 65 AM. SOC. REV. 256, 260-61 (2000).
255. See Kelley, supra note 65, at 79-84.
256. For further elucidation of one such contrast between two low-wage job categories within a single enterprise, see Jamie Winders' analysis of the difference between laundry and room attendant jobs in Hotel Nashville. Winders, supra note 22. For a comparison of domestic work and day labor along similar lines, see GORDON, supra note 7, at 100-01.
257. GORDON, supra note 7, at 95, 100-01.
258. See discussion infra pp. 1221-1224.
259. We use the term "migrants" to describe Blacks in this section in an effort to draw a parallel between their experiences and those of Latino immigrants. Obviously, voluntary migration is only one part of African American history. Early slaves were, of course, involuntary migrants to this country. Cf. Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 COLUM. L. REV. 1833, 1837 n.18 (1993) (discussing whether the slave trade should be characterized as involuntary immigration);
260. see also Nell Irvin Painter, Foreword to THE GREAT MIGRATION IN HISTORICAL PERSPECTIVE: NEW DIMENSIONS OF RACE, CLASS, AND GENDER, at viii, viii (Joe William Trotter, Jr. ed., 1991). As we note in this section, this difference has had real consequences for the path taken by African Americans to the modern workplace.
261. See, e.g., Dred Scott v. Sandford, 60 U.S. 393, 407 (1856) (citing former enslavement as one justification for denying citizenship status to black man and claiming that Blacks were "so far inferior that they had no rights which the white man was bound to respect"). Poor Whites frequently justified their right to legal citizenship by placing themselves in opposition to black slaves. See SHKLAR, supra note 25, at 36; Forbath, supra note 132, at 20. The ability to direct the course of one's labor, to engage in work more dignified that what, in some contexts, would become regarded as "nigger work," see Kelley, supra note 65, at 101, to obtain wages, and to secure some measure of self-ownership, helped to establish their claim to citizenship, see SHKLAR, supra note 25, at 36, 67, as well as whiteness itself. See Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1709 (1993) (arguing that "[s]lavery as a system of property facilitated the merger of white identity and property"); see also Kelley, supra note 65, at 100 ("The limited privileges afforded white workers as whites meant a subordinate status for African-American workers. Hence even the division of labor was racialized - black workers had to perform 'nigger work.' And without the existence of 'nigger work' and 'nigger labor,' whiteness to white workers would be meaningless."). The distinction between whiteness and blackness was, of course, one that had serious ramifications during slavery. See, e.g., Gobu v. Gobu, 1 N.C. (Tay.) 188 (1802) (discussing the legal presumption that blackness itself defined one's status as a slave); see also Harris, supra, at 1716-21.
262. Kelley, supra note 65, at 75, 89. The link between land and citizenship, see supra note 138, was also particularly important to African Americans as they emerged from bondage. For example, a group of black religious leaders conferring with Union representatives in the aftermath of the Civil War argued that land would be central to black men and women's ability to transcend the wreckage of American slavery: The way we can best take care of ourselves is to have land, and turn in and till it by our labor - that is, by the labor of the women, and children, and old men - and we can soon maintain ourselves and have something to spare . . . . We want to be placed on land until we are able to buy it and make it our own. Garrison & Frazier, Colloquy With Colored Ministers, 16 J. NEGRO HIST. 88, 91 (1931). For a time, it seemed that freedmen and women might be successful in securing land. In the wake of the Civil War, the Freedmen's Bureau, which was established by the federal government to assist former slaves with the transition to freedom, was authorized to administer a program under which the government would sell or lease land parcels confiscated by Union troops or abandoned by white Southerners to Blacks for cultivation.
263. See DONALD G. NIEMAN, TO SET THE LAW IN MOTION: THE FREEDMEN'S BUREAU AND THE LEGAL RIGHTS OF BLACKS, 1865-1868, at 46 (1979);
264. see also Adoja A. Aiyetoro, Formulating Reparations Litigations Through the Eyes of the Movement, 58 N.Y.U. ANN. SURV. AM. L. 457, 458-61 (2003) (discussing Field Order 15 and various changes in Bureau authority to provide land to freedmen and women);
265. Charles J. Ogletree, Jr., Repairing the Past: New Efforts in the Reparations Debate in America, 38 HARV. C.R.-C.L. L. REV. 279, 303 n.136 (2003) (referencing a brief in a black farmer reparations case noting the land leases and grants made by Freedmen's Bureau);
266. Brent Staples, Forty Acres and a Mule, N.Y. TIMES, July 21, 1997, at A16 (noting also that General Sherman, under Special Field Order 15, had also declared that newly freed Blacks in the Georgia Sea Islands and portions of South Carolina would receive land allotments of forty acres and an Army mule as part of an effort to provide them with food and the means for self-support). The Bureau, however, lacked the land necessary to satisfy the claims of all freedmen and women. The program was ultimately terminated by President Andrew Johnson, who, as part of his Reconstruction program, sought to placate white Southerners property owners whose land had been confiscated during the Civil War. NIEMAN, supra, at 46-53. As many commentators have noted, "forty acres and a mule" remains a popular phrase among African Americans to this day, a reminder of substantive benefits promised but never provided Blacks upon gaining formal legal citizenship. See, e.g., Aiyetoro, supra, at 458;
267. Emma Coleman Jordan, A History Lesson: Reparations for What?, 58 N.Y.U. ANN. SURV. AM. L. 557, 603-04 (2003);
268. Rhonda V. Magee, Note, The Master's Tools, From the Bottom Up: Responses to African American Reparations Theory in Mainstream and Outsider Remedies Discourse, 79 VA. L. REV. 863, 891 n.141 (1993); Staples, supra, at A16.
269. R.A. Lenhardt, Understanding the Mark: Race, Stigma, and Equality in Context, 79 N.Y.U. L. Rev. 803, 854 (2004).
270. Leon F. Litwick, The Ordeal of Black Freedom, in THE SOUTHERN ENIGMA: ESSAYS ON RACE, CLASS, AND FOLK CULTURE 5, 7 (Walter J. Fraser, Jr. &. Winfred B. Moore, Jr. eds., 1983).
271. SHKLAR, supra note 25, at 16.
272. See id. at 16.
273. ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877 140 (1988).
274. See Carole Marks, The Social and Economic Life of Southern Blacks During the Migration, at 37, 38, 41, in BLACK EXODUS: THE GREAT MIGRATION FROM THE AMERICAN SOUTH (Alferdteen Harrison ed., 1991).
275. FONER, supra note 190, at 136. Freedmen's Bureau officials deployed to the South to oversee Reconstruction assisted in brokering and enforcing these contracts, but ideological commitments to free labor made them more focused on ensuring that freedmen engaged in "diligent toil" than on the fairness of the terms under which they did so. NIEMAN, supra note 185, at xvii; see also Lacy Ford, Labor and Ideology in the South Carolina Up-Country: The Transition to Free-Labor Agriculture, in THE SOUTHERN ENIGMA: ESSAYS ON RACE, CLASS, AND FOLK CULTURES, supra note 187, at 25 (discussing efforts of Freedmen's Bureau officials);
276. John Scott Strickland, "No More Mud Work" The Struggle for Control of Labor and Production in Low Country South Carolina, 1863-1880, in THE SOUTHERN ENIGMA: ESSAYS ON RACE, CLASS, AND FOLK CULTURES, supra note 187, at 43, 50 (discussing attitudes of Bureau officials).
277. Herbert Hill, Race and Ethnicity in Organized Labor: The Historical Sources of Resistance to Affirmative Action, 12 J. INTERGROUP REL. 5, 19-21, 31 (1984);
278. see also Susan Olzak, Labor Unrest, Immigration, and Ethnic Conflict in Urban America, 1880-1914, 94 AM. J. SOC. 1303, 1312-13 n.8 (1989) (giving the railroad industry as an example of one industry in which Blacks were pushed out of positions by Whites). New white immigrants frequently engaged in acts of violence against black workers, whom they often perceived as willing to work for lower wages and under conditions less favorable than those under which Whites would work.
279. See KARST, BELONGING, supra note 106, at 89; Hill, supra, at 31 (citing riots and other similar examples of violence); Olzak, supra, at 1306 (noting white violence against Chinese and new European immigrants, as well as Blacks);
280. James Gilbert Ryan, The Memphis Riots of 1866: Terror in a Black Community During Reconstruction, 62 J. NEGRO HIST. 243 (1977) (discussing race riots involving Irish immigrants and Blacks). White union workers frequently regarded Blacks as strikebreakers. Olzak, supra, at 1304.
281. See Hill, supra note 193, at 6-7.
282. LEON F. LITWACK, BEEN IN THE STORM SO LONG: THE AFTERMATH OF SLAVERY 367-68 (1980).
283. DUBOIS, supra note 74, at 30.
284. Critical Race Theory scholars note that these benefits continue to be withheld from many people of color today, establishing what is essentially a second tier of citizens. See Gordon & Lenhardt, supra note 104, at 2502-05 (citing sources); see also Lenhardt, supra note 186, at 806-09 (discussing the persistence of racial inequalities).
285. See Forbath, supra note 132, at 27; Lenhardt, supra note 186, at 861-63.
286. NIEMAN, supra note 185, at 75.
287. Id. at 90.
288. 163 U.S. 537 (1896) (holding that racially segregated rail cards did not offend the Fourteenth Amendment).
289. Id. at 544 ("Laws permitting, and even requiring, th[e] separation [of the races], in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally recognized as within the competency of the state legislatures in the exercise of their police power."); see also id. at 544-48 (citing examples of laws requiring racial segregation with approval).
290. See generally C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW (3d rev. ed. 1974) (discussing the history of Jim Crow laws and their relation to the contemporary situation of American Blacks).
291. See James R. Grossman, Black Labor Is the Best Labor: Southern White Reactions to the Great Migration, in BLACK EXODUS: THE GREAT MIGRATION FROM THE AMERICAN SOUTH, supra note 191, at 52; Marks, supra note 191, at 42-43, 47.
292. See Jones, supra note 65, at 282-83.
293. Id. at 282. The Supreme Court later addressed whether Title VII of the Civil Rights Act of 1964 prohibited segregation of this sort in the workplace. See Griggs v. Duke Power, 401 U.S. 424 (1971) (holding that employer was prohibited from requiring tests or passage of certain standards as precondition of employment or transfer, where requirements were unrelated to the job at issue and had a disparate impact on African American workers).
294. TIMOTHY J. MINCHIN, THE COLOR OF WORK: THE STRUGGLE FOR CIVIL RIGHTS IN THE SOUTHERN PAPER INDUSTRY, 1945-1980, at 33 (2001).
295. See Hill, supra note 193, at 7 (noting that white ethnic laborers, often due to the discriminatory efforts of labor unions, had access to status-transforming wages, whereas Blacks did not).
296. See Kelley, supra note 65, at 76-78 (discussing the need for greater acknowledgement of the acts of resistance in which black workers engaged during Jim Crow).
297. Id. at 93; see also id. at 91 (discussing sabotage efforts of black workers).
298. Id. at 93-94.
299. W.E.B. Du Bois, the great scholar of and activist for black liberation, once commented on the ways in which Whites misinterpreted the behavior of black slaves: All observers spoke of the fact that the slaves were slow and churlish; that they wasted material and malingered at their work. Of course, they did. This was not racial but economic. It was the answer that any group of laborers forced down to the last ditch. They might be made to work continuously but no power could make them work well. Kelley, supra note 65, at 93 (quoting DU BOIS, supra note 74, at 40).
300. Indeed, there are some ways in which this stigmatization may not be regarded as a significant cost. Kelley suggests that, at different points in history, African American workers may have exploited negative stereotypes about them - performing tasks in a way that reinforced the message carried by the stereotype - as a way as exerting control over the pace of work. Kelley, supra note 65, at 93-94.
301. Thomas J. Sugrue, Affirmative Action From Below: Civil Rights, the Building Trades, and the Politics of Racial Equality in the Urban North, 1945-1969, 91 J. AM. HIST. 145, 148 (2004).
302. See Kelley, supra note 65, at 89-90.
303. TERA W. HUNTER, TO 'JOY MY FREEDOM: SOUTHERN BLACK WOMEN'S LIVES AND LABORS AFTER THE CIVIL WAR 88 (1997) (discussing efforts of washer women in Atlanta and others to secure fixed rates for wash); see also Kelley, supra note 65, at 90 (discussing tobacco worker efforts to "control the pace of work or to strike out against employers"). Kelley notes that "[t]heft at the workplace was [also] a common form of working-class resistance." Id. at 90. Equipment sabotage was also a strategy employed to counter speedups mandated by employers. Id. at 91.
304. Jones, supra note 65, at 288.
305. For more on A. Philip Randolph and the organizing efforts of the Pullman Porters, see ERIC ARNESEN, BROTHERHOODS OF COLOR: BLACK RAILROAD WORKERS AND THE STRUGGLE FOR EQUALITY 59, passim (2001).
306. Kelley, supra note 65, at 96-97.
307. Sugrue, supra note 214, at 248 (discussing A. Philip Randolph's role in persuading President Franklin D. Roosevelt to sign "Executive Order 8802, creating a Fair Employment Practices Committee (FEPC), the first federal agency since Reconstruction to handle matters of civil rights").
308. Early in organized labor's history, African Americans were regarded as rivals rather than potential allies by white unionists, who saw black workers as strikebreakers. KIMBERLY L. PHILLIPS, ALABAMA NORTH: AFRICAN-AMERICAN MIGRANTS, COMMUNITY, AND WORKING CLASS ACTIVISM IN CLEVELAND, 1915-1945, at 38 (1999). In the late 1800s and early 1900s, white labor unions engaged in actions designed to displace black workers in various sectors, such as the railroads and steel mills. Hill, supra note 193, at 21. Furthermore, the vast majority of unions had constitutions or bylaws that expressly excluded black members. See id. at 21-27. Unions that did permit African American members frequently consigned them to segregated black locals that sometimes limited the agency of black workers in the collective bargaining process rather than protecting their interests. Id. at 26.
309. MICHAEL K. HONEY, GOING DOWN JERICHO ROAD: THE MEMPHIS STRIKE, MARTIN LUTHER KING'S LAST CAMPAIGN 17 (2007).
310. Robert Korstad & Nelson Lichtenstein, Opportunities Found and Lost: Labor, Radicals, and the Early Civil Rights Movement, 75 J. AM. HIST. 786-87 (1988).
311. Kelley, supra note 65, at 95 (describing the Great Migration as a form of protest).
312. PHILLIPS, supra note 221, at 16, 39.
313. Id. at 39-40; Katz et al., supra note 158, at 78, 89.
314. See William Cohen, The Great Migration as a Lever for Social Change, in BLACK EXODUS: THE GREAT MIGRATION FROM THE AMERICAN SOUTH, supra note 191, at 72;
315. see also Nell Irvin Painter, Foreword to THE GREAT MIGRATION IN HISTORICAL PERSPECTIVE: NEW DIMENSIONS OF RACE, CLASS, AND GENDER, at viii-x (Joe William Trotter, Jr. ed., 1991) [hereinafter THE GREAT MIGRATION IN HISTORICAL PERSPECTIVE].
316. Alferdteen Harrison, Preface to BLACK EXODUS: THE GREAT MIGRATION FROM THE AMERICAN SOUTH, supra note 191, at vii. This exodus had tremendous "consequences . . . as blacks, at the start of the twentieth century primarily a southern and rural people, became at its end an urban population distributed far more equally throughout the nation". Katz et al., supra note 158, at 78; see also id. at 105-06.
317. James R. Grossman, The White Man's Union: The Great Migration and the Resonance of Race and Class in Chicago, 1916-1922, in THE GREAT MIGRATION IN HISTORICAL PERSPECTIVE, supra note 227, at 97.
318. See Sugrue, supra note 214, at 145 (discussing efforts of black activists in Philadelphia).
319. 347 U.S. 483 (1954).
320. 42 U.S.C. § 2000e (2000).
321. Timothy J. Minchin, Black Activism, the 1964 Civil Rights Act, and the Racial Integration of the Southern Textile Industry, 65 J.S. HIST. 809, 814 (1999). Title VII continues to be a tool for challenging racially discriminatory treatment in employment. See, e.g., Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). Many scholars, particularly critical race theorists, have argued that its utility in the race context has, however, been severely compromised by narrow judicial interpretations of its scope and purpose.
322. See, e.g., Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antirocist Politics, 1989 U. CHI. LEGAL F. 139, 141-43;
323. E. Christi Cunningham, The Rise of Identity Politics I: The Myth of the Protected Class in Title VlI Disparate Treatment Cases, 30 CONN. L. REV. 441, 461-96 (1998);
324. see also Kathryn Abrams, Title VII and the Complex Female Subject, 92 MICH. L. REV. 2479 (1994) (discussing interpretations of Title VII in gender context).
325. MELVIN OLIVER & THOMAS M. SHAPIRO, BLACK WEALTH/WHITE WEALTH: A NEW PERSPECTIVE ON RACIAL INEQUALITY 12 (2004).
326. Id. at 7. The figure is for middle-class African Americans. Oliver and Shapiro point out that wages only tell part of the tale of economic disparity: Middle-class African Americans hold only fifteen cents of assets for every dollar held by their White counterparts. Id.
327. See, e.g., supra note 44 (discussing percentages of blacks and whites earning $15,000 or less per year).
328. OLIVER & SHAPIRO, supra note 234, at 24; see also supra note 96 (citing employment figures from the Bureau of Labor Statistics).
329. FREY, supra note 34, at 1. Many Blacks returning to the South are middle-class families or young college graduates, but others are low-wage laborers. Id. at 7-8.
330. The experiences of new migrants should not be confused with those of Mexican American communities that have resided in the United States for generations. Long-term Mexican American citizens have sometimes endured segregation and exclusion not unlike that confronted by African Americans. There have been a number of court cases involving challenges to policies segregating or discriminating against Mexican Americans. See, e.g., Hernández v. Texas, 347 U.S. 475, 479 (1954) (invalidating discrimination against Mexican Americans in jury selection as unconstitutional); Westminster Sch. Dist. v. Mendez, 161 F.2d 774, 781 (9th Cir. 1947) (invalidating as violative of equal protection efforts to segregate students of Mexican descent in public schools). For further exploration of this history, see "COLORED MEN" AND "HOMBRES AQUÍ ": HERNANDEZ V. TEXAS AND THE EMERGENCE OF MEXICAN-AMERICAN LAWYERING (Michael A. Olivas ed., 2006) (commemorating the 50th anniversary of Hernandez v. Texas and chronicling the struggle to eliminate discrimination against Mexican Americans);
331. Kevin R. Johnson, Hernandez v. Texas: Legacies of Justice and Injustice, 25 CHICANO-LATINO L. REV. 153, 173-75 (2005) (discussing racialization of and discrimination against Mexican Americans).
332. See supra note 8. Nearly 500,000 Mexican migrants come to the United States each year, the majority of whom are undocumented. Gordon Hanson, Illegal Migration From Mexico to the United States 7 (Ctr. for Comparative Immigration Studies, Working Paper No. 143, 2006). We have chosen to focus on Mexico here not only because of the sheer number of migrants from that country - numbers that increased dramatically beginning in the early 1980s and accelerated through the 1990s - but because multiple sources of information allow us to offer a complex portrait of the immigrant experience. Over the past decade, social scientists in the Mexican Migration Project, http://mmp.opr. princeton.edu (last visited Mar. 5, 2008), and the Center for Comparative Immigration Studies at U.C. San Diego, http://www.ccis-ucsd.org/PUBLICATIONS/ working_papers.htm (last visited Mar. 5, 2008), among other efforts, have gathered and analyzed substantial data on recent Mexican immigration to the United States. Personal histories offer the perspectives of individual migrants, including those from an unusual contest launched by the Mexican government in 2006 that asked Mexicans at home and abroad to submit written accounts of their experiences as migrants to the United States.
333. Historia de Migrantes Mexico-Estados Unidos: Primer Concurso [México-United States Migrant Histories: First Contest], http://www.conapo.gob.mx/pop/migrantes/convocatoria.htm (last visited Mar. 5, 2008).
334. Smith, supra note 40, at 23-24.
335. JOSEPH E. STIGLITZ, GLOBALIZATION AND ITS DISCONTENTS 78-80 (2003);
336. Soren Ambrose, Social Movements and the Politics of Debt Cancellation, 6 CHI. J. INT'L L. 267, 268-71 (2005);
337. Carmen G. Gonzalez, Trade Liberalization, Food Security, and the Environment: The Neoliberal Threat to Sustainable Rural Development, 14 TRANSNAT'L L. & CONTEMP. PROBS. 419, 457-58 (2004). Mexico held loans from investor nations of over $160 billion in the late 1990s, or more than 40 percent of that country's GDP.
338. Diego Cevallos, Jubilee 2000 Musters Support Against Debt, THIRD WORLD NETWORK, Apr. 28, 1999, available at http://www.twnside.org.sg/title/musters-cn.htm.
339. The North American Free Trade Agreement (NAFTA) was justified on both sides of the border as a measure that would create higher-paying jobs in Mexico and slow immigration to the United States. Jeff Faux, How NAFTA Failed Mexico: Immigration Is Not a Development Policy, THE AMERICAN PROSPECT, June 30, 2003, at 35, available at http://www.prospect.org/cs/articles?article=how_nafta_failed_mexico;
340. Louis Uchitelle, Nafta Should Have Stopped Illegal Immigration, Right?, N.Y. TIMES, Feb. 18, 2007, at Week in Review 4.
341. For a nuanced explanation of how NAFTA has failed to deliver these promised economic benefits to Mexico, see Raul Delgado Wise & Humberto Marquez Covarrubias, The Mexico-United States Migratory System: Dilemmas of Regional Integration, Development, and Emigration, MIGRACIÓN Y DESARROLLO 38, 43, 47 (segundo semestre 2006).
342. After NAFTA, many Mexican farmers left their fields, unable to compete with the flood of highly subsidized U.S.-grown corn and other agricultural products pouring into Mexican markets. Faux, supra note 243, at 36; Uchitelle, supra note 243. But see SASKIA SASSEN, GLOBALIZATION AND ITS DISCONTENTS: ESSAYS ON THE NEW MOBILITY OF PEOPLE AND MONEY (1998) (discussing the displacement resulting from the development of large-scale commercial agriculture). Some migrated directly to the United States, while others sought work in Mexican cities or in the export-production or maquiladora plants that sprouted in Mexico's northern regions in NAFTA's wake. As they encountered urban underemployment and as maquila jobs failed to live up to their promises, many left the country in search of higher income. Uchitelle, supra note 243;
343. Kathryn Kopinak, The Relationship Between Employment in Maquiladora Industries in Mexico and Labor Migration to the United States 4 (Ctr. for Comparative Immigration Studies, Working Paper No. 120, 2005); Wise & Covarrubias, supra note 243, at 42-44, 47.
344. Douglas Massey has argued that the dynamics described here can lead the rational Mexican actor to pursue temporary, rather than permanent, migration: Whereas the rational actor posited by neoclassical economics takes advantage of a temporary geographic disequilibrium in labor markets to move abroad permanently to achieve higher lifetime earnings, the rational actor assumed by the new economics of labor migration seeks to cope with market [failures in insurance, futures, capital, and credit markets at home] by moving overseas temporarily to repatriate earnings in the form of regular remittances or lump-sum transfers. Douglas S. Massey, International Migration at the Dawn of the Twenty-First Century: The Role of the State, 25 POPULATION & DEV. REV. 303, 305 (1999).
345. Raúl Delgado Wise & James M. Cypher, The Strategic Role of Mexican Labor Under NAFTA: Critical Perspectives on Current Economic Integration, 610 ANNALS AM. ACAD. POL. & SOC. SCI. 120, 139 (2007);
346. Howard F. Chang, The Immigration Paradox: Poverty, Distributive Justice, and Liberal Egalitarianism, 52 DEPAUL L. REV. 759, 764 (2003). The minimum wage in Mexico averages about 42 pesos, or $3.60, per day. Fred Rosen, The End of the Honeymoon, HERALD MEXICO, Jan. 28, 2007, available at http://www.eluniversal.com.mx/miami/23179.html.
347. Hanson, supra note 240, at 1 (estimating that 56 percent of Mexican immigrants in the U.S. are undocumented); see also JEFFREY S. PASSEL, PEW HISPANIC CTR., THE SIZE AND CHARACTERISTICS OF THE UNAUTHORIZED MIGRANT POPULATION IN THE U.S., at i (2006), http://pewhispanic.org/files/reports/61.pdf (noting that Mexicans make up the majority of the country's undocumented population). At 11.5 million, the total undocumented population of the United States now exceeds the country's 10.5 million legal permanent residents (green card holders). Id. at 3.
348. The United States principally admits immigrants in four categories: family-based, employment-based, refugees or asylees, and winners of the visa lottery for countries with historically low levels of immigration. For immigrants from Latin America and the Caribbean, few of whom of whom qualify for the visa lottery or employment visas or are considered refugees, family relationships offer the main option. For more on employment visas, see infra note 258 and accompanying text. An individual can only be sponsored for family-based immigration if she is the spouse, child, parent, or sibling of an adult U.S. citizen, or the spouse or unmarried child of an adult green card holder. For those who do qualify, backlogs are often staggering. The Mexican sister of a U.S. citizen, for example, is likely to have to wait approximately thirteen years to obtain a green card. See U.S. Dep't of State, VISA BULLETIN, Mar. 2007, http://travel.state.gov/visa/frvi/ bulletin/bulletin_3143.html.
349. Wayne A. Cornelius, Death at the Border: Efficacy and Unintended Consequences of U.S. Immigration Control Policy, 27 POPULATION AND DEV. REV. 661, 670 (2001). Notably, border policies have failed to limit Mexican immigration and have had the perverse effect of turning temporary or circular migrants into permanent (if undocumented) residents.
350. DOUGLAS S. MASSEY, JORGE DURAND & NOLAN J. MALONE, BEYOND SMOKE AND MIRRORS: MEXICAN IMMIGRATION IN AN ERA OF ECONOMIC INTEGRATION 49, 83-104 (2002).
351. An estimated 90 percent of undocumented Mexican migrants now use a coyote to cross the border. Wayne A. Cornelius, Introduction: Does Border Enforcement Deter Undocumented Immigration?, in IMPACTS OF BORDER ENFORCEMENT ON MEXICAN MIGRATION: THE VIEW FROM SENDING COMMUNITIES 1, 11 (Wayne A. Cornelius & Jessa M. Lewis eds., 2007). This figure represents a significant increase in the percentage of migrants hiring coyotes (69 percent from 1978 to 1996); Hanson, supra note 240, at 19. The average coyote fee for Mexican migrants rose from between $385 and $715 during the pre-1996 period, id. at 17, to $1000-$2000 today.
352. See, e.g., Andrew Buncombe, The Devil's Highway: Crossing The Deadly Frontier, INDEPENDENT (London), July 14, 2006, at 36 (detailing stories of men from Oaxaca paying $2,000 each);
353. Spencer H. Hsu, Immigration by the Numbers, WASH. POST, May 26 2006, at A19 ("From 1980 to 1992, the cost of hiring a 'coyote,' or smuggler, averaged $400 per crossing. The cost rose to about $1,200 in 1999 before leveling off.");
354. Meg Jones, At the Border, a Second Front, MILWAUKEE J. SENTINEL, Mar. 4, 2007, at A1 ("[T]he current rate is as much as $3,000 for a Mexican . . ."). Fees are much higher for South American migrants.
355. See, e.g., Robert E. Kessler, Smuggle Sting Nets Four From L.I.: Fed. Officials Set Trap Using Ecuadorean Immigrants, NEWSDAY, Dec. 17, 2003, at A2. ("Working with federal agents, an informant approached Lopez [a coyote for Ecuadorean immigrants]. According to the informant, Lopez said he had been smuggling illegal aliens into the United States since 1998 for $10,000 each.");
356. Missy Ryan, Consul Makes a Road Stop, BOSTON GLOBE, Dec. 18, 2005, at 1 (recounting the experience of an Ecuadorian migrant who paid $9,500 in coyote fees).
357. Smith, supra note 18, at 23-24.
358. For an overview of the rights of undocumented workers, see Rebecca Smith et al., National Employment Law Project, Undocumented Workers: Preserving Rights and Remedies After Hoffman Plastic Compounds v. NLRB 6-16 (2003), http://www.nelp.org/docUploads/wlghoff040303%2Epdf.
359. Employer sanctions are codified in the Immigration and Nationality Act, 8 U.S.C. § 1324(a) (2000). They impose penalties against employers who fail to require proof of identity and authorization to work from each employee.
360. Sanctions are notable both for how useful they are to management as a threat against workers and as a cover for retaliatory action, and for how infrequently they have actually been enforced against employers since their passage. See Lack of Worksite Enforcement and Employer Sanctions: Hearing Before the Subcomm. on Immigration, Border Security, and Claims of the H. Comm. of the Judiciary, 109th Cong. 41-43 (2005) (testimony of Jennifer Gordon, Associate Professor of Law, Fordham Law School) (describing instances in which employer sanctions have been deployed by employers to undermine workers' efforts to enforce their rights);
361. Ruben J. Garcia, Ghost Workers in an Interconnected World: Going Beyond the Dichotomies of Domestic Immigration and Labor Laws, 36 U. MICH. J.L. REFORM 737 (2003);
362. Lori A. Nessel, Undocumented Immigrants in the Workplace: The Fallacy of Labor Protection and the Need for Reform, 36 HARV. C.R.-C.L. L. REV. 345 (2001); Smith et al., supra note 252, at 3-5;
363. Michael J. Wishnie, Emerging Issues for Undocumented Workers, 6 U. PA. J. LAB. & EMP. L. 497 (2004). In 2004, the Immigration Control and Enforcement Bureau issued Notices of Intent to Fine under employer sanctions to a total of 3 employers, down from 417 in 1999.
364. GOV'T ACCOUNTABILITY OFFICE, IMMIGRATION ENFORCEMENT: WEAKNESSES HINDER EMPLOYMENT VERIFICATION AND WORKSITE ENFORCEMENT EFFORTS 35 (2005).
365. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147-51 (2002). Although limited in its holding to the NLRA, Hoffman Plastic sparked a series of cases by employers seeking to avoid obligations to undocumented workers in other areas of workplace law, and created a great deal of concern among immigrants and their advocates. See, e.g., Smith et al., supra note 252, passim (reviewing post-Hoffman cases in the areas of wage, anti-discrimination, and health and safety law).
366. Some scholars have documented a much greater extent of temporary or circular migration patterns among current Mexican immigrants than in the previous era. See, e.g., Jorge Durand, Douglas J. Massey & Rene M. Zenteno, Mexican Immigration to the United States: Continuities and Changes, 36 LATIN AM. RES. REV. 107 (2001);
367. Douglas S. Massey, Five Myths About Immigration: Common Misconceptions Underlying U.S. Border-Enforcement Policy, IMMIGR. POL'Y IN FOCUS, Aug. 2005, at 1, 4, available at
368. Conference, Working Borders: Linking Debates About Insourcing and Outsourcing of Capital and Labor, 40 TEX. INT'L L.J. 691, 726 (2005) ("A significant number of Mexicans and Central Americans do not come to the United States to stay, but instead with a firm intention to return home with money to buy a home or a business. What sociologists call circular migration - back and forth, one or more times, to work in the United States and to return home - has become a widely recognized way of life. Circular migrants are de facto guest workers." (William Forbath, speaking)).
369. But see Enrico A. Marcelli & Wayne A. Cornelius, The Changing Profile of Mexican Migrants to the United States: New Evidence From California and Mexico, LATIN AM. RES. REV., 2001, No. 3, at 105, 112-13 (arguing that Mexican immigrants after 1980 are more likely to remain permanently than their predecessors).
370. See PIERRETTE HONDAGNEU-SOTELO, GENDERED TRANSITIONS: MEXICAN EXPERIENCES OF IMMIGRATION 40 (1994); Marcelli & Cornelius, supra note 256, at 112.
371. To be clear, for most new Latino immigrants, work does not create any entitlement to legal citizenship. But see supra note 157 (discussing of the relationship of work history to immigration relief and naturalization). In particular, very few Latin Americans are admitted to permanent residence through the operation of employment visa categories. Most Latin American immigrants do not have the level of education or training required to get one of these visas or are unable to gain recognition for the qualifications they do have because of barriers such as an inability to speak English. Only 12.5 percent of Latin American and Caribbean applicants gain legal permanent residence through employment categories. See OFFICE OF IMMIGRATION STATISTICS, U.S. DEP'T OF HOMELAND SECURITY, 2005 YEARBOOK OF IMMIGRATION STATISTICS 27-30, tbl. 10 (2005), available at http://www.dhs.gov/xlibrary/assets/statistics/ yearbook/2005/OIS_2005_Yearbook.pdf (authors' calculations based on the sum of North American and South American totals, less Canadian admissions). The existence of a limited number of guest worker visas offer another work-related route to temporary legal status in the United States. But - with the exception of higher-skilled H-1B workers, most of whom are not from Latin America - there is no path from guest worker to permanent residence, and participants must return home after their temporary stay expires. Guest work is thus not currently a potential route to status citizenship.
372. Cristina M. Rodríguez, Guest Workers and Integration: Toward a Theory of What Immigrants and Americans Owe One Another, 2007 U. CHI. LEGAL F. 219, 260;
373. Katherine L. Vaughns, Reflections on Fixing the Immigration System and Exploring Failed Policy Choices, 5 U. MD. L.J. RACE, RELIGION, GENDER & CLASS 151, 160 (2005).
374. For an overview of hometown associations, see Manuel Orozco & Rebecca Rouse, Migrant Hometown Associations and Opportunities for Development: A Global Perspective, MIGRATION INFO. SOURCE, Feb. 2007, http://www.migrationinformation.org/Feature/display.cfm?id=579.
375. Id.
376. For an overview of the economic programs that a range of sending countries have created to build the allegiances of their citizens abroad and keep remittance dollars flowing, see Anupam Chander, Homeward Bound, 81 N.Y.U. L. REV. 60 (2006).
377. There is a large and growing social science literature on immigrants' home country political participation, largely examining mechanisms for immigrant voting in home country elections. See, e.g., Rainer Bauböck, Towards a Political Theory of Migrant Transnationalism, 37 INT'L MIGRATION REV. 700 (2003).
378. For recent discussions of voting and other forms of political participation in legal scholarship, see Kim Barry, Home and Away: The Construction of Citizenship in an Emigration Context, 81 N.Y.U. L. REV. 11, 52-58 (2006); Chander, supra note 261, at 69-72;
379. Ruth Rubio-Marin, Transnational Politics and the Democratic Nation-State: Normative Challenges of Expatriate Voting and Nationality Retention of Immigrants, 81 N.Y.U L. REV. 117, 124-35 (2006);
380. Peter Spiro, Perfecting Political Diaspora, 81 N.Y.U L. REV. 207 (2006).
381. For a historical overview of the development of political transnationalism in Mexico, see Gustavo Cano & Alexandra Délano, The Mexican Government and Organised Mexican Immigrants in the United States: A Historical Analysis of Political Transnationalism (1848-2005), 33 J. ETHNIC & MIGRATION STUD. 695 (2007).
382. Quoted in Dan La Botz, First Migrant Summit Calls for Reform of Immigration Laws, MEXICAN LAB. NEWS & ANALYSIS May 2007. A recent documentary about an upstate New York Mexican hometown association, which highlights the way that Mexican elected officials responded to the group's remittances by lavishing attention on the association's hometown, previously all but ignored by the politicians, reinforces the point. THE SIXTH SECTION (P.O.V. 2003).
383. Relatively few newcomers are members of unions. Roger Waldinger & Claudia Der-Martirosian, Immigrant Workers and American Labor: Challenge . . . or Disaster?, in ORGANIZING IMMIGRANTS: THE CHALLENGE FOR UNIONS IN CONTEMPORARY CALIFORNIA (Ruth Milkman ed., 2000). Nonetheless, in sectors such as health care, hotels, and janitorial work, where unions like SEIU and UNITE-HERE are active, a migrant might well be hired for a unionized job or become involved in an organizing campaign. In addition, new migrants may come into contact with one of the 160 worker centers around the country whose mission is to organize and advocate for the newest and least organized workers.
384. JANICE FINE, WORKER CENTERS: ORGANIZING COMMUNITIES AT THE EDGE OF THE DREAM (2006). And in cities with high levels of Latino immigration, such as Los Angeles, Latino immigrants have been in the lead of some of the most successful union organizing struggles of the past two decades. MILKMAN, supra note 45, chs. 3 & 4.
385. CLAYTON SINYAI, SCHOOLS OF DEMOCRACY: A POLITICAL HISTORY OF THE LABOR MOVEMENT (2006);
386. Jennifer Gordon, Transnational Labor Citizenship, 80 S. CAL. L. REV. 503, 526-28 (2007).
387. See, e.g., GORDON, supra note 7, at ch. 6 (describing political participation of immigrants in a campaign to change New York State wage payment laws); Paul Johnston, Rethinking Cross-Bcrrder Employment in Overlapping Societies: A Citizenship Movement Agenda, in FORUM FOR TRANSNATIONAL EMPLOYMENT 66 (2001);
388. Paul Johnston, Transnational Citizenries: Reflections From the Field in California, 7 CITIZENSHIP STUD. 199, 204-07 (2003) ("Note the ubiquitous appearance of unions in the Greenfield story.");
389. Monica W. Varsanyi, The Paradox of Contemporary Immigrant Political Participation: Organized Labor, Undocumented Migrants, and Electoral Participation in Los Angeles, 37 ANTIPODE 775, 783-785 (2005) (describing Los Angeles labor unions' involvement of non-citizens not only in legislative change efforts but in elections, as participants in decisions about candidate endorsement, in campaign rallies, and in get out the vote drives).
390. For reflections on the 2006 immigrant marches and their implications for new Latino immigrants as participants in the civic and political life of the United States, see Sylvia R. Lazos, The Immigrant Rights Marches (Las Marchas): Did the "Gigante" (Giant) Wake Up or Does It Still Sleep Tonight?, 7 NEV. L.J. 780 (2007);
391. Bill Ong Hing & Kevin R. Johnson, The Immigrant Rights Marches of 2006 and the Prospects for a New Civil Rights Movement, 42 HARV. C.R.-C.L. L. REV. (2007).
392. GORDON, supra note 7, at 237-80. This legitimizing effect may come at a price. Our earlier article discusses the way that such claims may exacerbate tensions between immigrants and African Americans because of their implicit - and sometimes explicit - contrast with black people in the United States. Gordon & Lenhardt, supra note 27. A related issue is how emphasizing the role of work in securing citizenship may have the effect of further stigmatizing those who receive public benefits. See GORDON, supra note 7, at 276-77.
393. See Erin Allday et al., Immigrants, Labor Walk on Common Ground: Reform Issues Attract Members of Both Groups to Bay Area Rallies, S.F. CHRON., Sept. 6, 2006, at A1 ("Some of the Oakland marchers carried signs that 'We are labor.'");
394. Michael Mayo, Commentary: "No Human Is Illegal" . . . "We're Hard Workers," SUN-SENTINEL (Fort Lauderdale, Fla.), Apr. 10, 2006, at 1B ("Thousands rallied in Miami on Sunday to support a humane approach. They held up homemade signs that read, 'No human is illegal' and 'We're hard workers, not criminals.'");
395. Erin O'Donnell, Latinos Nix Violence, HARV. MAG., Sept.-Oct. 2006, at 15 (displaying a photograph of a participant at a Chicago immigrants' rally holding a sign reading "We are Workers Not Criminals!");
396. Encarnacion Pyle, Area Latinos Celebrate Their Contributions, COLUMBUS DISPATCH, May 2, 2006, at 1A ("'I am not a criminal. I am a computer programmer,' said Jesus Anguiano, 51, who held a sign with those same words."). Here, too, the claims immigrants make can come at a cost to African Americans.
397. See Rene P. Ciria-Cruz, Activists Must Avoid Cultural Tripwires Over Immigration, NEW AM. MEDIA, June 1, 2006, http://news.newamericanmedia.org/news/view_article.html?article_id= c18d2713fa49471adc89cdb7cb0fb3b8 ("Protest signs such as 'We came here to work hard' or 'We're not criminals' or 'We're not on welfare' may be perceived as invoking negative black stereotypes as a way to distinguish Latinos. Unchecked, such statements will only deepen the divide between the communities.").
398. A mainstream advocacy group, the National Immigration Forum opens its position paper on immigration reform with the observation that "[t]he presence of large numbers of unauthorized immigrants in the nation's workforce is indisputable; their hard work is widely recognized to be an asset to the United States." National Immigration Forum, Introduction, http://www.cirnow.org/content/en/legislation_cir_backgrounder.htm (last visited Feb. 10, 2008). The Forum states on its website that one of its principle goals is to "legalize the status of hard working immigrants caught in legal limbo."
399. National Immigration Forum: Inside the Forum, http://www. immigrationforum.org/DesktopDefault.aspx?tabid=29 (last visited Apr. 6, 2008).
400. Jonathan Fox, Unpacking "Transnational Citizenship," 8 ANN. REV. POL. SCI. 171, 176 (2005).
401. See supra notes 259-261 and accompanying text.
402. See discussion supra Part IV.B.
403. Despite these circumstances, immigrants (particularly Latino and Latina immigrants) have been at the forefront of many of the most prominent labor organizing struggles and victories of the past two decades. For two recent examples in the South, see FINK, supra note 67, passim, (describing an extended labor organizing campaign among Guatemalan immigrant workers at a poultry plant in Morganton, North Carolina); Kim Cobb, As Factory Jobs Leave and Latino Immigrants Arrive in Morristown, Tenn., the Leader of a Dying Labor Union Sees Hope in A Slaughterhouse, HOUSTON CHRON., Oct. 24, 2006, at A1 (describing the Latino-immigrant-led organizing victory at chicken processor Koch Foods). In urban areas with large Latino populations and active labor movements, Latino leadership in labor organizing efforts is all the more evident. MILKMAN, supra note 45, chs. 3 & 4. For the argument that new immigrants are not themselves "unorganizable," but rather labor in jobs that are structured in ways that make them difficult to organize,
404. see Ruth Milkman, Organizing the Unorganizable, BOSTON REV., Sept.-Oct. 2006, available at http://www.bostonreview.net/ BR31.5/milkman.php. To reiterate, we do not see the lens we offer as a deterministic predictor of behavior, but as a descriptive and interpretive tool.
405. Our reference to a domestic yardstick is not intended to imply that African Americans lack interest in or awareness of international issues. We simply mean that the typical black worker must pay U.S. prices for the goods and services she buys for herself and her family and will reap whatever citizenship rewards work has to offer her within the United States - as opposed to immigrants, who may be able to get more value out of the low wages they earn within the economies of their home countries.
406. Important work remains to be done on the parallels and divergences between the position occupied by African American migrants during the Great Migration and the position occupied by new Latino migrants today. One key difference, of course, is that black migrants were legal citizens, while the new migrants are not. But the two groups were used by employers in similar ways and may have seen their opportunity to gain a foothold in the labor market similarly as well. These parallels reinforce the idea that the social positions we describe for African American and new Latino immigrant low-wage workers today are not inherent in the group, but in the structural context as distorted by racism and employer manipulation.
407. See discussion supra notes 235-237 and accompanying text.
408. See, e.g., STEVEN C. PITTS, CTR. FOR LABOR RESEARCH AND EDUC., BLACK WORKERS IN THE BAY AREA: EMPLOYMENT TRENDS AND JOB QUALITY: 1970-2000, at 2 (2006) (arguing that "there is a two-dimensional crisis of work in the Black community," "the crisis of unemployment" and "the crisis of low-wage jobs").
409. Id.; STEVEN C. PITTS, CTR. FOR LABOR RESEARCH AND EDUC., JOB QUALITY AND BLACK WORKERS: AN EXAMINATION OF THE SAN FRANCISCO BAY AREA, LOS ANGELES, CHICAGO AND NEW YORK 6 (2007); see also sources cited supra notes 235-238.
410. For an insightful reflection on this phenomenon in the context of the 2006 immigrant marches, see Erin Aubry Kaplan, What Was Lost in the Crowd, L.A. TIMES, May 3, 2006, at B13 ("[Black employment has never been as noble or as resonant a cause as that of the immigrant worker. It is an orphaned cause still looking for something or someone to take it up. Blacks who've more than earned their 'Amertcanness' are still trying to make that point today. . . . Blacks are even losing their historic and symbolic role as a mirror of the nation's conscience; another group now holds a mirror that is less damning and easier for the nation to gaze into.").
411. See Gordon & Lenhardt, supra note 27, at 41-42.
412. Smith, supra note 18, at 19-20.
413. Devon Carbado & Mitu Gulati, Working Identities, 85 CORNELL L. REV. 1259, 1265 & n. 11 (2000)
414. ("'[T]he subjects of inequality are not simply acted upon, but manifest a partial agency.'" (quoting Kathryn Abrams, Afterword: Critical Strategy and the Judicial Evasion of Difference, 85 CORNELL REV. 1426, 1428 (2000))).
415. Id. Although Carbado and Gulati focus on the identity work required of outsiders in the professional workplace, they note that all people do some form of identity work on the job. The question of how low-wage work differs from the white-collar context with regard to the identity work it demands is largely uncharted territory.
416. Id. at 1264.
417. Id.
418. Smith, supra note 18, at 14-16; Marrow, supra note 1, at 5-6.
419. Carbado & Gulati, supra note 283, at 1264. In contrast, some workers might act in ways that confirm negative stereotypes when such behavior serves to fulfill other interests or needs. See Kelley, supra note 65, at 94 (suggesting that Blacks engaged in behavior that confirmed negative stereotypes regarding laziness and initiative as a way of controlling the pace of work). For work on negative stereotypes concerning Latinos, see Cynthia Kwei Yung Lee, Race and Self-Defense: Toward a Normative Conception of Reasonableness, 81 MINN. L. REV. 367, 441-52 (1996),
420. and Ediberto Roman, Who Exactly Is Living La Vida Loca?: The Legal and Political Consequences of Latino-Latina Ethnic and Racial Stereotypes in Film and Other Media, 4 J. GENDER RACE & JUST. 37, 46-48 (2000).
421. Smith, supra note 18, at 15.
422. Id. at 14.
423. See supra note 274. Many new immigrants come to the United States with their own strategies for resistance, refusing to serve as passive recipients of abuse. In that sense, they resemble many people in oppressive situations who nonetheless find ways to exercise their agency. See JAMES C. SCOTT, DOMINATION AND THE ARTS OF RESISTANCE: HIDDEN TRANSCRIPTS (1990); Austin, supra note 124, at 25-29; Carbado & Gulati, supra note 283, at 1265.
424. For more on stereotypes of African Americans, see Sherri Burr, Television and Societal Effects: An Analysis of Media Images of African-Americans in Historical Context, 4 J. GENDER RACE & JUST. 159-74 (2001),
425. Richard Delgado & Jean Stefanie, Images of the Outsider in American Law and Culture: Can Free Expression Remedy Systemic Social Ills?, 77 CORNELL L. REV. 1258, 1262-64 (1992), and Lenhardt, supra note 186, at 858-60. A number of legal scholars have addressed the effects of racial stereotypes in the employment context.
426. See, e.g., Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161 (1995).
427. At different points in history, Latinos have made this claim explicitly. In trying to combat discrimination against them in housing, public accommodations, and schools during the 1940s and 1950s, many "Mexican community members argued that discrimination against Mexicans in the United States is illegal because Mexicans are white, and unlike blacks, no state statutes permitted discrimination against whites." Richard Delgado, Linking Arms: Recent Books on Interracial Coalition as an Avenue of Social Reform, 88 CORNELL L. REV. 855, 881 (2003) (book review). Asian Americans have, at times, employed a similar strategy to avoid discriminatory treatment.
428. Taunya Lovell Banks, Both Edges of the Margin: Blacks and Asians in Mississippi Masala, Barriers to Coalition Building, 5 ASIAN L.J. 7, 13 (1998); see also Gong Lum v. Rice, 275 U.S. 78 (1927) (showing a Chinese American father seeking to prevent his child's assignment to segregated black public school by arguing that Asians were more like Whites than Blacks).
429. McClain et al., supra note 33, at 581. Scholars such as Tanya Hernández have argued that Latino immigrants to the United States bring an entrenched sense of racial hierarchy with them from their home countries. Tanya K. Hernández, Latino inter-Ethnic Employment Discrimination and the "Diversity" Defense, 42 HARV. C.R.-C.L. L. REV. 259, 267-71 (2007);
430. Tanya K. Hernández, Roots of Anger: Longtime Prejudices, Not Economic Rivalry, Fuel Latino-Black Tensions, L.A. TIMES, Jan. 7, 2007, at M1;
431. see also Taunya Lovell Banks, Toward a Global Critical Feminist Vision: Domestic Work and the Nanny Tax Debate, 3 J. GENDER RACE & JUST. 1, 31 (1999) (providing an example of a racialized hierarchy between non-English speaking Latinas and other minority groups);
432. Enid Trucios-Haynes, Why "Race Matters:" LatCrit Theory and Latina/o Racial Identity, 12 LA RAZA L.J. 1, 25-26 (2000-2001) (explaining the manner in which Latinos identify themselves in a racial hierarchy). Along these lines, social scientists Robert Sampson and Stephen Raudenbush have considered the effect of race and racial attitudes on perceptions of disorder in an urban neighborhood. Among other things, they found that "the percentage [of] black [residents] in a block group is linked more closely to perceived disorder for Latinos than for other ethnic groups."
433. Robert J. Sampson & Stephen W. Raudenbush, Seeing Disorder: Neighborhood Stigma and the Social Construction of "Broken Windows", 67 SOC. PSYCHOL. Q. 319, 336 (2004). They attribute this finding to the likelihood that Latino immigrants received negative messages about African Americans immediately upon arriving in this country. Id. Prior to the 1990s, most research on racial attitudes studied the perceptions of Whites vis-à-vis African Americans and vice versa, with limited scholarship on white-Latino or white-Asian attitudes. Studies of African American, Asian, and Latino views of each other were nearly nonexistent.
434. See John J. Betancur, Framing the Discussion of African American-Latino Relations: A Review and Analysis, in NEITHER ENEMIES NOR FRIENDS: LATINOS, BLACKS, AFRO-LATINOS 159, 162 (Anani Dzidzienyo & Suzanne Oboler eds., 2005); McClain et al., supra note 33, at 575. This gap is consistent with the Critical Race Theory critique of the black-white binary as the predominant - though inaccurate - frame for the analysis of race relations in the United States.
435. See, e.g., Juan F. Perea, The Black/White Binary Paradigm of Race: The "Normal Science" of American Racial Thought, 85 CAL. L. REV. 1213 (1997).
436. For more recent social science research focusing on Latino/African American relationships, see, e.g., TATCHO MINDIOLA, YOLANDA FLORES NIEMANN & NESTOR RODRIGUEZ, BLACK-BROWN RELATIONS AND STEREOTYPES (2002);
437. Eric Oliver & Janelle Wong, Inter-Group Prejudice in Multiethnic Settings, 47 AM. J. POL. SCI. 567 (2003) (finding that the degree of negative racial stereotyping by one group of another rises with the first group's racial isolation in a neighborhood).
438. See Robert S. Chang & Neil Gotanda, The Race Question in LatCrit Theory and Asian American Jurisprudence, 7 NEV. L.J. 1012, 1017-27 (2007);
439. see also Claire Jean Kim, The Racial Triangulation of Asian Americans, in ASIAN AMERICANS AND POLITICS: PERSPECTIVES, EXPERIENCES, PROSPECTS 39, 42 (Gordon H. Chang ed., 2001), cited in Chang and Gotanda, supra, at 1024.
440. Work has played a pivotal role in this dynamic throughout the history of immigrant-African American relations. See Herbert Hill, Race and Ethnicity in Organized Labor: The Historical Sources of Resistance to Affirmative Action, 12 J. INTERGROUP REL. 5, 7 (1984) (discussing the last "Great Wave" of immigration, roughly from 1860 to 1920, and arguing that "for immigrant workers the Americanization process was directly linked to the workplace" and the exclusion of black workers);
441. see also DAVID R. ROEDIGER, THE WAGES OF WHITENESS (1991);
442. DAVID R. ROEDIGER, WORKING TOWARD WHITENESS (2005). As Bruce Nelson has eloquently written: [T]o the Irish becoming "white" meant creating social and psychological distance between themselves and African Americans and, as a first priority, severing the occupational and residential ties that linked the two groups in the popular imagination. Frederick Douglass warned that in taking jobs away from blacks the Irish would "assume our degradation." But Irish longshoremen developed a compelling answer. To avoid the "taint of blackness," and the heavy psychological burden of "slaving like a nigger," they would drive blacks from the labor market altogether and, in the process, redefine the jobs they appropriated as "white." NELSON, supra note 74, at 20-21.
443. Frank Wu maintains that Asian Americans have also internalized the extent to which "blacks b[ear] the ignominy of their skin color." FRANK H. WU, YELLOW: RACE IN AMERICA BEYOND BLACK AND WHITE 304 (2001) (discussing the extent to which Asian American immigrants have realized that "blacks . . . even if they were Americans . . . could vie with aliens to be the least liked").
444. Toni Morrison, On the Backs of Blacks, in ARGUING IMMIGRATION: THE DEBATE OVER THE CHANGING FACE OF AMERICA 97-100 (Nicholaus Mills et al. eds., 1994).
445. Racial triangulation of this sort is not limited to the relationship between African Americans, Latinos, and native Whites. Naomi Mezey notes that an early form of triangulation involving African Americans, Whites, and Chinese immigrants can be found in Justice Harlan's much-quoted dissent in Plessy v. Ferguson, 163 U.S. 537 (1896), which "makes a plea for black inclusion at the expense of the Chinese." Naomi Mezey, Erasure and Recognition: The Census, Race and the National Imagination, 97 NW. U. L. REV. 1701, 1737 (2003).
446. See Earl Ofari Hutchinson, Commentary: Why Blacks March Against Illegal Immigration - And Why They Shouldn't, NEW AM. MEDIA, June 21, 2007, http://news.newamericamedia.org/news/ view_article.html?article_id=bedb04d502d6a7af148fd569fa2247fb.
447. See Kevin R. Johnson, An Essay on Immigration Politics, Popular Democracy, and California's Proposition 187: The Political Relevance and Legal Irrelevance of Race, 70 WASH. L. REV. 629, 641 n.57, 659 n.144 (1995); see also Hutchinson, supra note 300. The Pew Research Center for the People and the Press reports that while African Americans generally have positive attitudes about new immigrants, Blacks in areas where the influx of immigrants has been especially high generally voice strong opposition to immigration and concern about the economic and cultural effects of new migrants on the country. Doherty, supra note 22 (noting, inter alia, that although along many dimensions African Americans nationally are considerably more sympathetic to immigrants than whites, Blacks in the Raleigh-Durham area expressed deep reservations about immigration).
448. See Hutchinson, supra note 300.
449. Earl Ofari Hutchinson discussed uhis organization in recent commentary on black attitudes toward immigration reform. See id.
450. To counter the predominant narrative of a Black/immigrant divide, some African American leaders and advocacy groups have recently sought to open a constructive dialogue on Immigration within the black community, with the goal of developing a coordinated response to anti-immigrant sentiment. The Center for New Community's Which Way Forward Initiative is a prominent example. CENTER FOR NEW COMMUNITY, WHICH WAY FORWARD SUMMARY: AFRICAN AMERICANS, IMMIGRATION, AND RACE (2007) (on file with the authors).
451. Athena Mutua has suggested that African Americans and Latinos alternate occupying the lowest rung of the social ladder. See Athena D. Mutua, Shifting Bottoms and Rotating Centers: Reflections on LatCrit III and the Black/White Paradigm, 53 U. MIAMI L. REV. 1177, 1202-05 (1999).
452. For a discussion of the bottom of the ladder and its implications for racial minorities, see Devon Carbado, Race to the Bottom, 49 UCLA L. REV. 1283 (2002);
453. Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323 (1987).
454. Devon W. Carbado, Racial Naturalization, 57 AM. Q. 633, 646 (2005).
455. Id. at 652-53. But cf. Tanya Katerí Hernández, Latino Inter-Ethnic Employment Discrimination and the "Diversity" Defense, 42 HARV. C.R.-C.L. L. REV. 259, 267-73 (describing extent to which Latino immigrants bring racist attitudes with them to the United States).
456. See generally Hernández, supra note 308, at 274 (discussing preference for categorization as white among Latinos, including new immigrants). The question whether Latinos should be regarded as white or as people of color is one that has garnered much attention. See, e.g., Colloquy, Our Next Race Question: The Uneasiness Between Blacks and Latinos, HARPER'S MAG., April 1996, 55, 59-60 (noting scholars Cornell West and Jorge Klor de Alva and writer Earl Shorris who question whether Latinos should be regarded as brown people of color or cultural minorities in the U.S.).
457. Many immigrant groups have succeeded in distancing themselves from African Americans, only to discover that they have been assigned a perpetual outsider status by mainstream society. As Neil Gotanda, Keith Aoki, Leti Volpp and Natsu Taylor Saito have argued, however long they and their families have lived in the United States, Asian Americans have been racialized and are seen as foreign, not fully a part of the polity. Keith Aoki, 'Foreign-ness' & Asian American Identities: Yellowface, World War II Propaganda, and Bifurcated Racial Stereotypes, 4 UCLA ASIAN PAC. AM. L.J. 1 (1996);
458. Natsu Taylor Saito, Alien and Non-Alien Alike: Citizenship, "Foreignness," and Racial Hierarchy in American Law, 76 OR. L. REV. 261, 296-97 (1997); Volpp, supra note 102, at 82-83. Others have argued that parallel assumptions of foreignness apply to other ethnic communities of color, including Latinos and (particularly post-9/11) to people who are Muslim and/or appear to be of Middle Eastern or South Asian descent.
459. Enid Trucios-Haynes, Latinos/as in the Mix: Applying Gotanda's Models of Racial Classification and Racial Stratification, 4 ASIAN L.J. 39 (1997);
460. Neil Gotanda, Race, Citizenship, and the Search for Political Community Among "We the People", 76 OR. L. REV. 233, 252 (1997);
461. Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. REV. 1575 (2002);
462. see also Muneer Ahmad, Homeland Insecurities: Racial Violence the Day After 9/11, 20 SOC. TEXT 72 (2002). Conservative critics such as Samuel Huntington have taken this assumption of foreignness to its logical conclusion in scare-mongering about Latino immigration's devastating cultural impact on American society.
463. SAMUEL HUNTINGTON, WHO ARE WE? THE CHALLENGES TO AMERICA'S NATIONAL IDENTITY (2004).
464. This effect is substantially different than that which characterized the white immigrant assumption of job categories from Blacks. Indeed, white immigrants contended that the status of the work was elevated by its association with whites and that the payment and treatment they received should be similarly improved. See NELSON, supra note 74; ROEDIGER, THE WAGES OF WHITENESS, supra note 296; ROEDIGER, WORKING TOWARD WHITENESS, supra note 296.
465. Smith, supra note 40, at 62.
466. Id. at 81.
467. Id.
468. Id.
469. Grabowski, supra note 37, at 56.
470. Stuesse, supra note 7, at 21.
471. Winders, supra note 22, at 348. Indeed, Winders found that "many native-born workers - both black and white - seemed either not to notice or to give much weight to the changing faces of their co-workers." Id. at 351.
472. Id. at 349-50.
473. Id. at 8.
474. Id. at 11.
475. See Gordon & Lenhardt, supra note 27, at 27-28. Our sense is that such walkouts are, in fact, rarely spontaneous. Id. Rather, they frequently occur in contexts in which unions had been active or workers were already organized or organizing. Id. at 28.
476. Id. at 27-37.
477. See Elizabeth Martinez, Black & Brown Workers Alliance Born in North Carolina: Five Organizers Speak, Z MAG., Mar. 2000, http://www.zmag.org/zmag/viewArticle/13401.
478. Telephone Interview by R.A. Lenhardt with Ajamu Dillahunt, Founding Member, Black Workers for Justice, and Former Local President, American Postal Workers Union (Oct. 4, 2007).
479. Gordon & Lenhardt, supra note 27, at 32-39.
480. See id. at 33-36; see also Steven Greenhouse, Hundreds, All Nonunion, Walk Out at Pork Plant, N.Y. TIMES, Nov. 17, 2006, at A22;
481. Katrina vanden Heuvel, Smithfield Walkout Challenges Agribiz Giant, NATION, Nov. 20, 2006, http://www.thenation.com/doc/ 20061204/kvh;
482. Press Release, Smithfield Justice Campaign, Smithfield Workers Win Negotiated Agreement With Company on Unnecessary Firings (Nov. 18, 2006), available at http://www.smithfieldjustice.com/Documentos/Press_Room/ Press_Releases/PDFs/Smithfield_Workers_Win.pdf.
483. See supra Part II.A.
484. Noah D. Zatz, Beyond the Tero-Sum Game: Toward Tide VII Protection for Intergroup Solidarity, 77 IND. L.J. 63, 69 (2002). Zatz's principal focus is on acts of solidarity by white men with people of color, id. at 67, but his idea has applications in the Latino-African American context as well.
485. Elizabeth M. Iglesias, Structures of Subordination: Women of Color at the Intersection of Title VII and the NLRA. Not!, 28 HARV. C.R.-C.L. L. REV. 395 (1993) (arguing that the interaction between Title VII and the National Labor Relations Act (NLRA) operates to limit the ability of women of color to gain redress for workplace harms and to create change both in their workplaces and in their unions);
486. Elizabeth M. Iglesias, Institutionalizing Economic Justice: A LatCrit Perspective on the imperatives of Linking the Reconstruction of 'Community' to the Transformation of Legal Structures That Institutionalize the Depolititization and Fragmentation of Labor/Community Solidarity, 2 U. PA. J. LAB. & EMP. L. 773, 797-804 (1999-2000) (arguing that the interaction between Title VII and the NLRA interfere with the ability of communities of color to demand accountability from unions and with the emergence of genuine union-community collaboration). On a more positive note, Michael Duff has recently argued that the NLRA can be construed to offer some protection to the immigrants who participated in the mass marches of 2006.
487. Michael C. Duff, Days Without Immigrants: Analysis and Implications of the Treatment of Immigration Rallies Under the National Labor Relations Act, 85 DENV. U. L. REV. 93 (2007).
488. See supra notes 253-255 and accompanying text.
489. See, e.g., James C. McKinley, Jr., Mexican President Assails
490. Editorial, Stop the Raids, N.Y. TIMES, Oct. 4, 2007, at A28.
491. See Gordon & Lenhardt, supra note 27.
492. See supra notes 126-131 and accompanying text.
493. Jamie Winders argues that racial diversity in a workplace and even in a category of jobs within a workplace does not necessarily "translate into a racially or ethnically interactive workforce." Winders, supra note 22, at 349 (emphasis added).
494. Robert Putnam has recently found that communities with high levels of diversity exhibit low levels of interpersonal trust. Robert D. Putnam, E Pluribus Unum: Diversity and Community in the Twenty-First Century, 30 SCANDINAVIAN POL. STUD. 137 (2007);
495. John Lloyd, Harvard Study Paints Bleak Picture of Ethnic Diversity, FIN. TIMES (London), Oct. 8, 2006, at 1. Some scholars have found that increased cross-racial contact leads to increased competition and prejudice. Others have found "both increased animosity and reduced prejudice." McClain et al., supra note 33, at 575 (internal citations omitted).
496. Conflict and Solidarity, supra note 27, at 41-49.
497. McClain et al., supra note 294, at 574.
498. Winders elaborates this theory in Nashville's New Sonido, supra note 22, at 349-50. We discuss the job qualities and conditions that appear to enhance the potential for collaboration and offer additional examples in Gordon & Lenhardt, supra note 27, at 37, 41.
499. Gordon & Lenhardt, supra note 27, at 39-41.
500. Winders, supra note 22, at 349-50; Marrow, supra note 1, at 12-15.
501. NICOLAS C. VACA, THE PRESUMED ALLIANCE: THE UNSPOKEN CONFLICT BETWEEN LATINOS AND BLACKS AND WHAT IT MEANS FOR AMERICA 48-49 (2004) (discussing the "presumed alliance" between Blacks and Latinos and the "shared-interest" theory of coalition formation);
502. see also Kevin R. Johnson, The Struggle for Civil Rights: The Need for and Impediments to Political Coalitions Among and Within Minority Groups, 63 LA. L. REV. 759, 776-78 (2003) (discussing need to identify common ground between racial minorities in fight for civil rights);
503. Kevin R. Johnson & Bill Ong Hing, The Immigrant Marches of 2006 and the Prospects for a New Civil Rights Movement, 42 HARV. C.R.-C.L. L. REV. 99, 134-37 (2007). Critical race theorist Derrick Bell has advanced the interest convergence theory in analyzing the relationship between Whites and Blacks in the United States. In considering Brown v. Bd. of Educ., 347 U.S. 483 (1954), Bell argued that Whites will only permit civil rights gains of the sort secured through that decision when they deem it to be within their group interests.
504. Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518, 523-28 (1980). The basic contours of that theory are applicable here.
505. See Richard Delgado, Locating Latinos in the Field of Civil Rights: Assessing the Neoliberal Case for Radical Exclusion, 83 TEX. L. REV. 489, 520-22 (2004) (noting that "interest convergence has entered the lexicon of all critical scholars as a powerful explanatory tool").
506. Conflict and Solidarity, supra note 27, at 41-44.
507. See Douglas S. Massey, The Settlement Process Among Mexican Migrants to the United States, 51 AM. SOC. REV. 670, 670 (1986);
508. Jeffrey S. Passel, Undocumented Migration, 487 ANNALS AM. ACAD. POL. & SOC. SCI. 181, 184 (1986). But see Durand, Massey, & Zenteno, supra note 256, at 122 (documenting an increase in return migration among Mexicans in the 1990s). Marcelli & Cornelius dispute this assertion, supra note 256, at 112-13.
509. African Americans' perceptions of their interests change too, of course, and it is as both groups' interests shift that new opportunities for collaboration are revealed. See Gordon & Lenhardt, supra note 27, at 44-45.
510. Waldinger & Der-Martirosian, supra note 264.
511. Grabowski, supra note 37, at 59.
512. See Gordon & Lenhardt, supra note 104, at 2513.
513. For an exploration of the interactions and experiences of African Americans and black Caribbean immigrants, see MARY WATERS, BLACK IDENTITIES: WEST INDIAN IMMIGRANT DREAMS AND AMERICAN REALITIES (1999).
514. See also Reual Rogers, Afro-Caribbean Immigrants, African Americans, and the Politics of Group Identity, in BLACK AND MULTIRACIAL POLITICS IN AMERICA 15 (Yvette M. Alex-Assensoh & Lawrence J. Hanks eds., 2000).
515. For a discussion of the interactions and experiences of African immigrants and African Americans, see Alkwasi B. Assensoh, Conflict or Cooperation? Africans and African-Americans in Multiracial America, in BLACK AND MULTIRACIAL POLITICS IN AMERICA, supra, at 113.
516. On settlement patterns, see sources cited supra note 344,. On the interaction between law and women's migration, see Joan Fitzpatrick & Katrina R. Kelly, Gendered Aspects of Migration: Law and the Female Migrant, 22 HASTINGS INT'L & COMP. L. REV. 47 (1998).
517. See Katharine Silbaugh, Turning Labor Into Love: Housework and the Law, 91 NW. U. L. REV. 1, 8 (1996) (noting that "[w]omen do much more unpaid work than men, even in two-wage families"). Feminist legal scholars have long argued that housework performed by women is worthy of remuneration.
518. See, e.g., Reva B. Siegel, Home as Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880, 103 YALE L. J. 1073, 1075 (1994) (describing the nineteenth-century feminist movement's contention that "wives were entitled to property rights in their household labor"); Silbaugh, supra, at 4 (arguing, inter alia, that "a wide range of legal doctrines treat women's home work as if it were not value-producing labor");
519. Nancy C. Staudt, Taxing Housework, 84 GEO. L.J. 1571, 1573-74 (1996) (arguing that "rather than maintaining the invisibility of housework, feminists should encourage society to value the productive and political nature of women's labor both in the home and the market");
520. Noah D. Zatz, What Welfare Requires From Work, 54 UCLA L. REV. 373, 384, 458-59 (2006) (discussing treatment of housework and the utility of a focus on paid work).
521. See Katz et al., supra note 158, at 77 (arguing that persistent inequality among African Americans cannot be fully understood without some attention to gender and its effect on economic opportunity).