II Civil Rights: Are Black and Latino Experiences Analogous?

In contrast to the discussion of immigration, the papers on civil rights in this section clearly reflect the dominant influence of the Black experience on public policy. In dealing with employment discrimination and affirmative action, each author must assess whether a traditional civil rights framework predicated on the history of slavery and segre-gation suffered by African Americans fits the situation of Latinos. In “How the Garcia Cousins Lost Their Accents: Understanding the Language of Title VII Decisions Approving English-Only Rules as the Product of Racial Dualism, Latino Invisibility, and Legal Indeterminacy,” Professor Cameron shifts from Chang and Aoki's focus on conditions for participating in American society generally--by obtaining citizenship--to the conditions for participating in the American workforce. Cameron's article looks at employees who have already assimilated to some degree by learning English. Rather than being monolingual, however, they retain facility in another language, typically Spanish. The question that arises is the extent to which employers can regulate the use of a language other than English in the workplace without discriminating on the basis of national origin.

Cameron's article demonstrates that employers can engage in surprisingly intrusive language regulation on the job without being guilty of discrimination. Workers can be terminated for using a language other than English in violation of an English-only rule, even if the conversation involves only a few words and does not otherwise impede performance of assigned tasks. To add insult to injury, employees can be discharged for using a language other than English, even if they were hired because they had bilingual skills. The employer can set the boundaries for using a language other than English, and employees cannot expand these limits at their discretion.

To understand why bilingual workers have not enjoyed more protection under employment discrimination laws, Cameron offers three explanations. First, he argues that under a Black/White model of race relations, federal courts have been unable to appreciate forms of discrimination that uniquely disadvantage Latinos. The Black/White model is rooted in the belief that race is an immutable characteristic, an assumption that undergirds the corrective justice framework in employment discrimination law. At its core, corrective justice requires that workers not be penalized for traits that they cannot change and that are not job-related. Because language is a mutable characteristic, individuals can acquire the ability to speak English. Once they master English, they can choose to speak it if the employer deems it beneficial. Therefore, the courts' view is that for the bilingual worker, the requirement of speaking in English is not a form of discrimination, but rather a mere inconvenience.

Second, Cameron contends that the Black/White paradigm has rendered Latinos invisible in public policy debates. Consequently, case law on English-only rules does not carefully analyze the use of Spanish on the job to see if it is disruptive; in fact, courts do not even describe the proscribed utterances or their workplace context in any detail. Rather, the very use of Spanish is seen as a demand for visibility by Latinos that “offends and frightens many English-only speakers, who sense in the language a loss of control over what they regard as ‘their’ country.” The insistence on using Spanish violates the Latino's role as a deferential employee. Indeed, the purported ease with which the bilingual worker can comply with the English-only rule makes the decision to speak Spanish seem like an act of insubordination, one for which the worker should be demoted or fired.

Third, Cameron asserts that legal indeterminacy has permitted courts to manipulate outcomes in cases affecting Latino litigants. He claims that national origin discrimination has never been as clearly defined as racial discrimination under federal employment discrimination law. As a result, judges have been able to reject bilingual workers' allegations of discrimination by recasting their demands to speak Spanish on the job as an effort to gain recognition of a language preference, a demand to privilege their cultural expression. The courts have rejected this purported demand for special treatment as beyond the scope of protection for national origin. Judges have spent far less time explaining what protection against national origin discrimination means if it does not encompass rights to linguistic and cultural expression. For instance, the Equal Employment Opportunity Commission has promulgated guidelines that characterize broad rules requiring employees to speak only in English as national origin discrimination. Nevertheless, federal courts have rejected the guidelines as exceeding the Commission's authority without explaining how acceptable alternative guidelines might be drafted.

Like Chang and Aoki, Cameron argues that rules for assimilation, depicted as race-neutral and non-discriminatory, in fact disadvantage newcomer groups like Latinos. He calls for courts and agencies to recognize English-only rules as a form of discrimination that needlessly marginalizes a growing segment of America's workforce. Cameron contends that simply because an employee is bilingual, his decision to speak another language should not be interpreted as insubordination. In his view, language and culture are products of national origin that cannot simply be turned on and off at will to satisfy an employer. Moreover, he argues that an employer's preference for English in the workplace cannot automatically be privileged over an employee's preference for a language other than English. Because of the close links between a worker's language, culture, and identity, employers should be required to show that an English-only rule is justified by business necessity. In short, Cameron would alter the definition of the “good American worker” to mean one who is tolerant of differences in a pluralistic employment setting, rather than one who is required to assimilate more fully by minimizing linguistic and cultural differences.

In “Deconstructing the Distinction Between Merit and Bias,” Professor Roithmayr examines a group arguably even more assimi-lated than bilingual workers: applicants for higher education, particularly law school education. Using deconstruction to demonstrate the interdependency of notions of merit and bias, she challenges Daniel Farber and Suzanna Sherry's claim that traditional definitions of merit are the most rational means of ranking applicants because they provide an unbiased, objective measure of individual ability.

Like Chang and Aoki, Roithmayr argues that standards that appear to be race-neutral are in fact deeply infected by racism. Relying on Professor Gerold Auerbach's historical account of legal education, Roithmayr contends that in the 1920s law school admissions standards were indirectly created by, if not directly motivated by, virulent anti-immigrant sentiment and anti-Semitism in the legal profession. Concerned that newcomers might enter elite preserves of power and authority, law schools worked with professional associations to develop strategies of exclusion. She notes that reformers often masked their antipathy by emphasizing a concern with preserving the moral character of the bar. For example, a former president of the American Bar Association, Elihu Root, worried that some attorneys were entering practice “who ha[ve] not any conception of the moral qualities that underlie our free American institutions.” Another prominent attorney justified raising standards for admission to the bar on the ground that “foreigners” in the cities threatened the integrity of the legal profession because they were “an uneducated mass of men who have no conception of our constitutional government.”

Having looked at the unsavory history of excluding foreigners from the profession, Roithmayr argues that affirmative action can be understood as the most rational and, hence, meritorious selection process available because diversity in law schools is an appropriate response to past exclusionary policies. Far from embodying illicit racial bias, affirmative action overcomes the bias inherent in processes rooted in disgraceful acts of past discrimination. For Roithmayr, Grade Point Averages (GPAs) and Law School Admission Test (LSAT) scores are as much a function of racial and cultural differences as they are a reflection of ability and hard work. In an academic competition tainted by a history of discrimination and exclusion, numbers that appear to be scientific are, at best, imperfect measures of the “good student.” Moreover, insofar as law schools are centrally implicated in the allocation of wealth and power, members of racially subordinated groups should enjoy a say in building the profession and redistributing social opportunity. By creating a core minority intelligentsia, affirmative action is a plausible means of overcoming past bias and promoting diversity. Based on this view, Roithmayr argues that law schools can and should defend affirmative action programs on the ground that numerical indices for admission, such as GPAs and LSAT scores, do not correlate sufficiently with law school performance to overcome their tainted history. With an eye to current efforts to eliminate affirmative action at law schools in California and Texas, she suggests that her analysis could transform current approaches to defining unlawful discrimination by reallocating the burden of justifying criteria with a disproportionate racial impact from Black and Latino applicants to law school administrators.

In the end, though, Roithmayr concedes that there is no foolproof way to choose on rational grounds between Farber and Sherry's defense of traditional meritocratic criteria and her defense of affirmative action. Farber and Sherry argue that the traditional standards are objective and non-discriminatory by pointing to the success of previously excluded groups, such as Asian Americans and Jews, in meeting these criteria. Roithmayr contends that the traditional standards perpetuate an unfair status quo by citing the limited presence of Blacks and Latinos, even with affirmative action programs. Because there is no way to prove conclusively that one account is right and the other wrong, Roithmayr claims that policymakers must make intuitive choices between these arguments based on political and moral convictions. Unfortunately, she never makes clear precisely whose intuitive judgments should govern the policymaking process, nor does she explain whether politics and morality necessarily lead to similar intuitive insights.

A. The Uncertain Identity of Latinos in Civil Rights Policy

The papers on civil rights in this section present new difficulties in deciphering Latino identity. While Chang and Aoki analogize Latinos to Asian Americans, Roithmayr, to the extent that she addresses the Latino experience at all, treats Latinos as similar to Blacks because both groups have suffered a history of discrimination. To substantiate the analogy to Blacks, she compares both groups' historical exclusion from education and employment as well as their contemporary failure to meet traditional meritocratic criteria based on GPAs and LSAT scores. Yet, Roithmayr's paper ignores substantial differences between Latinos and Blacks that might matter to policymakers in the affirmative action debate. First and most importantly, Latinos have not been racialized in the same way as Blacks. Because Latinos have not suffered a history of discrimination rooted in slavery, some commentators have argued that Latinos should not be eligible for affirmative action to the same extent as Blacks. As circumstantial evidence, critics of affirmative action for Latinos point to the very LSAT scores that Roithmayr cites. These critics note that although Latinos' LSAT scores lag behind those of non-Hispanic Whites, Latinos are about four times as likely as Blacks to obtain a top score. Moreover, Latinos have substantially better access than Blacks to integrated housing and have higher rates of intermarriage with non-Hispanic Whites, both traditional measures of assimilation. Once Latinos achieve necessary job skills, they are better able than Blacks to obtain appropriate levels of employment and income, even though all but the most elite Latinos clearly continue to pay an ethnicity tax in comparison to non-Hispanic Whites.

Critics of affirmative action programs for Latinos contend that differences in education and employment between Latinos and non-Hispanic Whites are an artifact of immigration, rather than invidious discrimination. That is, recent Latino immigrants with low rates of education and training depress overall outcomes for the group. By contrast, the characterization of Black Americans as a racial group subordinated by a history of slavery and inequality has yet to be significantly affected by recent and relatively low levels of immigration. Indeed, when General Colin Powell was touted as a possible Republican candidate for President, he was labeled the first Black with a genuine chance to win this coveted nomination and office. General Powell reminded reporters on several occasions that he thought of himself as a Jamaican immigrant, yet this did little to alter the media's excited headlines about a pathbreaking Black man.

Interestingly, when immigration is noted in conjunction with Black Americans, it plays a role nearly opposite to the one that it occupies in the debate over Latinos and affirmative action. For Latinos, depressed levels of educational and occupational attainment are attributed to immigrant status, not ethnic discrimination. Although there is evidence that the promise of intergenerational mobility is not materializing for all Latinos, the assumption that Latinos will assimilate without special government help remains a powerful force in public policy debates about affirmative action. For Blacks, however, race remains the single most important explanatory variable in evaluating socioeconomic outcomes, regardless of findings about the immigrant experience. For example, when Caribbean immigrants achieve higher rates of education and income than native-born Blacks, the difference is attributed to the devastating consequences of American racism on the latter. When Caribbean Blacks are found to do no better--or even worse--than native-born Blacks, these findings are attributed to the pernicious impact of racism, which saps immigrant initiative. In either case, researchers conclude that affirmative action remains vital to the successful integration of Black Americans, for whom race is the dispositive factor in shaping access to opportunity regardless of immigrant status.

Because Roithmayr fails to bring Latinos to the center of her analysis, she makes no nuanced contribution to the debate over the distinctions between Latinos and Blacks and how they affect Latinos' entitlements to affirmative action. Elsewhere, I have written about Latinos' ambiguous identity as neither Black nor White, and how this ambiguity influences the perceived legitimacy of Latinos' participation in affirmative action programs. Without a monolithic racial label, Latinos are presumed to be less disadvantaged than Blacks. This approach at times trivializes the genuine discrimination, both historical and contemporary, that impedes Latinos' educational and economic advancement. The tendency to dismiss depressed levels of income and education among Latinos as a mere artifact of immigration overlooks the ways in which immigration has reinforced and intensified prejudice against Latinos. The ready assumption that Latino immigrants enjoy the privileges of a White ethnic identity ignores the systematic structures of exclusion that block their intergenerational mobility. All of these issues should be central to an examination of affirmative action in which Latino identity really matters.

B. Putting Latinos' Concerns at the Center: The Impact on Civil Rights Policy

In Cameron's discussion of workplace language rules, Latinos emerge clearly as a distinct group with unique policy needs. Even so, much of the article is devoted to explaining why Latinos are rendered invisible by a Black/White paradigm of race relations. The piece argues persuasively that Latinos are neither Black nor White, but their alternative identity is not fully elaborated. One might infer that the relevant dimensions of Latino identity for Cameron are national origin, ethnicity, language, and culture, rather than race. Yet, what remains uncertain is how these factors interact in forming an authentic Latino identity. This question is particularly critical for policymakers because of the internal heterogeneity of the Latino population. For example, a third-generation Latino who does not speak Spanish and knows relatively little about his cultural heritage could still be Latino based on ethnicity alone. What sort of protections against ethnic discrimination should this individual enjoy? Do these protections really look all that different from protections against racial discrimination afforded to Blacks? Has the Black/White model really hampered the most assimilated Latinos' quest for equal treatment? Perhaps evidence that highly educated Latinos who are fluent in English earn wages comparable to those of Whites suggests that the traditional civil rights model has worked well for them, even if it has failed their less acculturated counterparts.

How has a Black/White paradigm affected opportunities for Latinos who have yet to fully assimilate by learning English and American customs? One of the ironies of the jurisprudence regarding English-only rules is that federal courts have regularly indicated in dictum that monolingual speakers of a language other than English deserve greater protection than bilingual employees. Because the non-English speaker cannot comply with a directive to use English on the job, judges fear that language can be used as an extremely effective proxy to discriminate on the basis of national origin. Courts therefore appear willing to treat the monolingual non-English speaker as an individual with a trait that can not be readily changed in the short run and that leaves him vulnerable to abuse and discrimination in the meantime. For the fully fluent bilingual employee, however, a workplace language rule is not considered an obstacle to participation because he is readily able to comply by speaking English. Therefore, he can be subjected to intrusive language regulation. In other words, the Black/White paradigm that Cameron describes appears to afford solid protection to the most assimilated and the least assimilated Latino, but the partially assimilated Latino is left out.

This apparent anomaly requires a closer examination of the complexity of Latino identity and its impact on public policy. If a Latino is a first-generation immigrant who arrived speaking only Spanish but has struggled to learn English to obtain a job, should this person enjoy the same workplace language protections as a second-generation Latino who grew up speaking only English but subsequently learned Spanish in school to reclaim a sense of linguistic and cultural heritage? Does it make any difference that bilingualism is linked to national origin for the first-generation immigrant and to ethnicity for the second-generation Latino? Should it matter that the first-generation immigrant, although bilingual, is more comfortable speaking Spanish than English, while the second-generation Latino is more comfortable speaking English than Spanish but chooses the latter as an expression of ethnic pride? Should these differences bear on a court's assessment of whether a worker's decision to use Spanish on the job is voluntary because compliance is relatively easy?

For many, the instance of the bilingual employee who is more comfortable in Spanish than in English presents a sympathetic case for government protection because the employee seems to be punished for something he cannot change: Spanish is his first language, while English is a laboriously acquired asset. Far from being voluntary, reverting to Spanish seems like an artifact of the employee's status as a newcomer with Spanish-speaking roots. However, courts have examined neither a bilingual person's relative comfort in English and Spanish nor the special burdens of switching back and forth between two languages. In assessing the ability to comply with an English-only rule, the courts have focused exclusively on whether employees are able to speak English. Even if it is burdensome for native-Spanish speakers to use English because it is their second language, judges believe that they must expend the extra effort to do so if the employer wishes it.

Perhaps the courts are reluctant to protect the bilingual employee's right to speak Spanish on the job because it appears to make assimilation optional. In particular, labeling English-only rules for bilingual employees a form of discrimination might empower Latinos to reclaim their linguistic heritage and inject it into the workplace at will, regardless of whether Spanish is their mother tongue. By simply urging the courts to take national origin discrimination against first-generation Latinos seriously, Cameron leaves open the question of how he would deal with the second-generation bilingual employee who chooses to speak Spanish as an act of ethnic pride. Should courts treat this as a voluntary act of insubordination, one that puts an employee's personal preferences ahead of an employer's desire for linguistic order and uniformity? Or, is this application of English-only rules also a form of discrimination against Latinos?

These problems lead to the second difficulty with these civil rights analyses. Even if Latinos are depicted in textured and nuanced terms rather than simply analogized to other racial and ethnic groups, the essays leave open a key question: Will a full understanding of Latinos be used simply to extend the traditional civil rights model to them or will it require the creation of new paradigms of inclusion? Predicated on the African-American experience with slavery and the legalized caste system that followed Reconstruction, the traditional civil rights model focuses on correcting past injustices to achieve a colorblind society. Not only do individuals have the right to be free from discrimination, but officials also must eradicate the impact of historical wrongs by using remedies like affirmative action to improve access to education and employment. These remedies are applied without requiring that each beneficiary establish a personal history of discrimination.

This civil rights model is fundamentally assimilationist. It offers the promise that, in the long run, Blacks will compete equally with Whites for desirable jobs and schools in a society finally free of the taint of racial prejudice. Affirmative action is a temporary palliative necessary to counteract past discrimination, but once Blacks are assimilated, the programs will be eliminated. Roithmayr's paper nestles at the heart of this traditional model. She contends that past discrimination has harmed some groups' access to the traditional indicia of merit. Affirmative action helps these groups to build their portfolios of success. With respect to Latinos, she suggests only that the existing civil rights model be preserved and extended to include a population that, like Blacks, is seriously disadvantaged. Her call for policymakers to rely on their intuitions about social justice does not offer a normative alternative to the traditional paradigm. Rather, it asks decisionmakers simply to reflect on their sense of unfairness in evaluating civil rights protections. Unfortunately, for a population as little understood as Latinos, such intuitions may not provide a very accurate guide to good policy. Even for Blacks, intuition may seem less appealing than hard evidence of continuing segregation, discrimination, and racial violence.

By simply analogizing Latinos to Blacks, Roithmayr misses the ways in which the ambiguity of Latino identity can alert policymakers to the contradictory impulses behind affirmative action programs. In evaluating the legitimacy of Latino participation in affirmative action in higher education, for example, commentators seldom treat the internal diversity of Latinos as a plus in building a pluralistic academy. Instead, this heterogeneity is viewed only as a daunting complication in determining whether Latinos deserve a compensatory remedy. In particular, analysts worry that some Latinos who have not suffered a history of discrimination will wrongly benefit from affirmative action programs designed primarily to help Blacks. Ultimately, this critique of Latino participation suggests that the claim that previously excluded groups can enrich and transform institutions has yet to be taken seriously. Rather, affirmative action is still understood mainly as an act of noblesse oblige that permits Blacks and perhaps some disadvantaged Latinos to assimilate to prevailing norms.

While Roithmayr devotes most of her discussion to corrective justice concerns, Cameron more clearly suggests that the traditional civil rights model may be inadequate to address the unique circumstances of Latinos. In particular, by emphasizing the role of language and culture as well as race, ethnicity, and national origin, he appears to be pressing for a pluralistic model of inclusion. Under this approach, Latinos would insist that equality not depend on assimilation to White norms. In Cameron's piece, for example, Latinos could demand that their choice to speak Spanish be respected, even if they speak English as well. Latinos need not “act White” in order to insist on equal treatment in the workplace.

Yet, the pluralist model has implications that potentially go far beyond English-only rules in the workplace. For example, under a pluralist model, the government might have an obligation to assist families to preserve their native language and cultural heritage in the public schools. Bilingual schooling and multicultural curricula would become integral components of achieving a society that respects differences, rather than marginalized and highly controversial areas of the curriculum. A bilingual workplace would affirmatively welcome languages other than English, rather than simply refrain from discrimination against non-English speakers. Signs at the job site might be in multiple languages, unions would have to provide bilingual ballots and translators, and bilingual skills would be affirmatively rewarded through additional compensation. Cultural expressions--as demonstrated through various styles of dress, religious observance, and dietary restrictions--would have to be accommodated as well.

The debate over assimilation and pluralism is, of course, linked to the one over transnationalism and national identity. Pluralism, like trans-nationalism, threatens traditional notions of shared community and identity, as distinct linguistic and cultural groups are empowered to preserve their members' ways of life. Many of the same concerns about balkanization and strife arise here, and it would once again be helpful to provide a model of the successful pluralistic workplace. By searching for models of success, policymakers might discover that statutes and regulations are only a small part of the effort necessary to accommodate and respect differences. Top-down measures can dictate a minimum level of tolerance, but workplaces that foster employee participation and communication may be necessary to convert this abstract norm into the lived, daily experience of employees.

In the employment setting, local participation through inclusive governance processes may be particularly important for those who advocate alternatives to the traditional civil rights model. Once the policy goal is something other than a colorblind society in which previously excluded groups have assimilated to White norms, the specter of government engineering of diverse employment settings looms as a daunting possibility. Few could welcome the prospect of a bureaucracy that declares which linguistic and cultural practices are sufficiently authentic to deserve official protection. Certainly, the specter of government profiles of “real” ethnics is offputting enough to give pause to any who would advocate an officially mandated, pluralistic workplace. For policymakers who advocate pluralism, then, the challenge in the workplace and elsewhere is to protect language and culture without unduly infringing on the autonomy of groups to determine their own ways of life.