black white binary k

USMA 2006-07 B/W Binary Kathryn and Jen Page 1 of 84

shellA) The black/white binary is a pervasive mode of ordering our very thinking on issues of race which prohibits a com-plete understanding of our racialize history and excludes those outside of the binaryPerea, 1998, Juan F., RACE, ETHNICITY & NATIONHOOD: The Black/White Binary Paradigm of Race: The "Normal Science" of American Racial Thought, 10 La Raza L.J. 1213

The Black/White Binary Paradigm of race has become the subject of increasing interest and scrutiny among some scholars of color. This Article uses Thomas Kuhn's notions of paradigm and the properties of paradigms to explore sev-eral leading works on race. The works the author explores demonstrate the Black/White paradigm of race and some of its properties, among them extensive paradigm elaboration over the years. Paradigms have limitations, however. Among them is a tendency to truncate history for the sake of telling a linear story of progress. The author demonstrates how one constitutional law text truncates history, by omitting entirely Mexican-American struggles for desegregation, and pre-senting a linear story of the Black struggle for civil rights. Omitting important history from the narrative of civil rights history becomes extraordinarily damaging, since it distorts history and contributes to the marginalization of non-Black peoples of color. While recognizing the centrality of slavery and White racism against Blacks at the core of American history and society, this Article seeks to expand our understanding of racism through the use of legal history. The author contends that mutual and particularized understanding of racism as it affects all people of color has the potential to en-hance our abilities to understand each other and to join together to fight the common evil of racism.

American society has no social technique for handling partly colored races. We have a place for the Negro and a place for the white man:the Mexican is not a Negro, and the white man refuses him an equal status. n1

[*1214] This Article is about how we are taught to think about race. In particular, I intend to analyze the role of books and texts on race in structuring our racial discourse. I believe that much writing on racism is structured by a paradigm that is widely held but rarely recognized for what it is and what it does. This paradigm shapes our understanding of what race and racism mean and the nature of our discussions about race. It is crucial, therefore, to identify and describe this paradigm and to demonstrate how it binds and organizes racial discourse, limiting both the scope and the range of legiti-mate viewpoints in that discourse.

In this Article, I identify and criticize one of the most salient features of past and current discourse about race in the United States, the Black/White binary paradigm of race. A small but growing number of writers have recognized the paradigm and its limiting effect on racial discourse. n2 I believe that its dominant and pervasive character has not been well established nor discussed in legal literature.

I intend to demonstrate the existence of a Black/White paradigm and to show its breadth and seemingly pervasive ordering of racial [*1215] discourse and legitimacy. Further, I intend to show how the Black/White binary paradigm operates to exclude Latinos/as n3 from full membership and participation in racial discourse, and how that exclusion serves to perpetuate not only the paradigm itself but also negative stereotypes of Latinos/as. Full membership in society for Latinos/as will require a paradigm shift away from the binary paradigm and towards a new and evolving understand-ing of race and race relations.

Why you do what you do that’s the point and all the rest of it is chatter


ShellDescriptions of the history of segregation in schools without explicit recognition of the contributions of Latinos/as is an act of academic colonialism that perpetuates the b/w paradigm and the marginalization that is a part of the binaryPerea, 1998, Juan F., RACE, ETHNICITY & NATIONHOOD: The Black/White Binary Paradigm of Race: The "Normal Science" of American Racial Thought, 10 La Raza L.J. 1213

One of Kuhn's insights about paradigms is their power to define relevance and so to define the scope of fact-gathering. n120 One of the most striking results of the Black/White binary paradigm is that it limits the scope of relevant facts that are deemed important in research and teaching about this country's racial history. Within the paradigm, the only facts and histories that matter are those regarding Whites and Blacks. Therefore, virtually the only stories we ever learn about civil rights are stories about Blacks and Whites struggling over civil rights for Blacks.

[*1240] This Section will show how a leading constitutional law text, like scholarly and popular literature on race, has adopted and reproduced the Black/White binary paradigm, promulgating a linear progression of the evolution of civil rights history based on the Black struggle for civil rights. As Kuhn described with regard to scientific texts, how-ever, a linear, Black/White version of civil rights history can only be achieved by truncating and distorting history. n121 As Kuhn wrote, events "that will not fit the box are often not seen at all." n122

In this Section, I will show how relevant Mexican-American legal history is entirely omitted in the paradigmatic telling of the civil rights story. This omission demonstrates the inadequacy of the existing paradigm of race and the trun-cation of history for the sake of the paradigm. This truncated legal history also shows how existing paradigms must be changed and expanded to provide a more accurate sense of past and present reality.

Stone, Seidman, Sunstein & Tushnet's Constitutional Law n123 (the Stone book) is a good example of the use of the Black/White binary paradigm. The book is explicit about its use of the binary paradigm and its controlling influence on constitutional law. Indeed, the authors go so far as to conflate "Black" with race. Their first section under Equality and the Constitution is Race and the Constitution, by which the authors clearly mean the Black race:

This section traces the evolution of constitutional doctrine concerning discrimination against blacks...

In one form or another, the controversy about the legal status of blacks has been central to U.S. politics since the found-ing of the republic....Consider the extent to which judicial decisions have shaped that controversy and the extent to which they have been shaped by it.

The Court's analysis of discrimination against blacks has served as a prototype for the development of other constitu-tional doctrines....Controversies over school segregation, racial discrimination in access to political power, and "affir-mative action" have shaped attitudes toward the proper scope of constitutional protection for minorities generally. To what extent is our experience with discrimination against blacks [*1241] generalizable? Have the special problems faced by black Americans distorted constitutional law? n124

The authors thus consciously use the evolution of equality doctrines through the Black struggle for civil rights as their basic paradigm for equality under the Constitution.

Legal history provides ample support for the authors' contention that struggles over the legal status of Blacks have been central in shaping the Constitution and the Supreme Court's decisions on race and equality. All the civil rights en-actments and court decisions deemed major in this area have sought to redress harms to Blacks. n125 The Thirteenth and Fifteenth Amendments abolished slavery and race discrimination in voting, respectively. n126 The first sentence of the Fourteenth Amendment established federal and state citizenship for Blacks, reversing the Dred Scott decision. n127 The Equal Protection Clause of the Fourteenth Amendment was enacted principally to protect the civil equality of the newly freed slaves from hostile state action. n128 Plessy v. Ferguson n129 sanctioned the separate and unequal regimes established by Jim Crow laws throughout the South. Brown v. Board of Education n130 abolished separate but equal schools and was widely understood as a vindication of Black equality interests. The Civil Rights Act of 1964,



as well, was passed as an attempt to establish equal treatment for Blacks in crucial social, educational and economic in-stitutions. n131

The casebook authors explicitly recognize that constitutional protection against discrimination on grounds other than race exists purely [*1242] by analogy. n132 Yet they also seem to recognize possible limits of the analogies to race upon which equal protection for subordinated groups other than Blacks must rest. They ask essential questions: to what extent is the Black experience generalizable? To what extent has that experience distorted constitutional law? n133 Alternatively, to what extent has that experience determined the meaning of constitutional law? Despite the au-thors' apparent recognition of the limits of analogies to Blacks, the Stone book is disappointing for its failure to answer these questions and for its exclusive focus on the Black experience in the context of race.

The linear, paradigmatic version of the story of civil rights and equality is a story of an exclusively Black struggle for equality and a gradual, progressive White concession to Black demands voiced in the courts and on the streets. This is the version presented by the Stone book. The book describes the NAACP's legal strategy and the familiar cases liti-gated by the NAACP, including Missouri ex rel Gaines v. Canada, n134 Sipuel v. Board of Regents, n135 Sweatt v. Painter, n136 and McLaurin v. Oklahoma State Regents, n137 all of which culminate in Brown v. Board of Educa-tion. n138

In order to tell this linear story of Black civil rights, the authors of the Stone book engage in a numbing truncation of history. For example, despite over forty pages of material on school desegregation, there is not a single mention of Latino/a segregation and desegregation as significant issues in American legal history. n139 By excluding all material on Latino/a segregation and desegregation, students are left with the misimpression that such segregation never existed or was never a significant problem.

On the contrary, Mexican Americans suffered from a very long tradition of segregation in public schools through-out the Southwest, both before and after the Supreme Court's decision in Brown v. Board [*1243] of Education. n140 Carey McWilliams described the segregated schools in Westminister, Orange County, California

There are two schools in Westminister: a handsomely equipped school with green lawns and shrubs for the Anglo-Americans; and a Mexican school whose meager equipment matches the inelegance of its surroundings. It was not the discrepancy between the two schools, however, that annoyed Gonzalo Mendez. Rather it was the fact, so he said, that he didn't like the idea of his Sylvia, Gonzalo Jr., and Geronimo, growing up with hatred in their hearts for the children who went to the beautiful school. In the nearby community of El Modeno, the two schools were side by side; but the Mexi-can youngsters were always served lunch at a different hour from the Anglo-American students. n141

Moreover, Chicanos played an important role in fighting and ultimately overturning school segregation. In Mendez v. Westminister School District of Orange County, n142 Gonzalo Mendez and several other Mexican-American parents challenged the long-standing and pervasive segregation of Mexican-American children in Orange County. n143 Cali-fornia's segregation statutes permitted school boards to establish separate schools for "Indian children...and for children of Chinese, Japanese, or Mongolian parentage." n144 Despite the absence of Mexican Americans from the statutory list, the parties "admitted that segregation per se is practiced in the above-mentioned school districts as the Spanish-speaking children enter school life and as they advance through the grades in the respective school districts." n145 One commentator found it ironic that "the Code did not mention the group that was most commonly segregated by 1945: children of Mexican descent." n146

One of the State's arguments in Mendez was that the Supreme Court had authorized the segregation of the races un-der the "separate but equal" doctrine of Plessy v. Ferguson. n147 District Judge McCormick [*1244] found that the physical facilities, teachers and curricula of the segregated school for Mexican children were "identical and in some re-spects superior to those in the other schools." n148 Accordingly, unlike many of the pre-Brown Black segregation cases, this case did not focus on the inequality of separate facilities, but rather on the inherent evil of state-sponsored segregation itself.

After concluding that segregation of Mexican-American children was inconsistent with California's Education Code, n149 Judge McCormick considered the federal constitutional question. Relying on a prescient interpretation of equal protection and on the stigmatizing effects of segregation on children subject to it, he concluded that California's segregation of Mexican-American pupils violated the Equal Protection Clause. The judge wrote:



"The equal protection of the laws' pertaining to the public school system in California is not provided by furnishing in separate schools the same technical facilities, text books and courses of instruction to children of Mexican ancestry that are available to the other public school children regardless of their ancestry. A paramount requisite in the American sys-tem of public education is social equality. It must be open to all children by unified school association regardless of lin-eage. n150

In this remarkable paragraph, the court rejects the entire underpinning of the Supreme Court's opinion in Plessy v. Fer-guson n151 and foreshadows the reasoning of the Court in Brown v. Board of Education. n152 Where Plessy had rei-fied segregation by disclaiming the Court's power to act to remedy social inequality, n153 the Mendez opinion conveys a powerfully different understanding of equality that ultimately prevails in Brown.

The Mendez court also anticipated Brown, and rejected Plessy, n154 in its understanding of the role of public edu-cation and the stigmatizing meaning and purpose of segregation:

[*1245] The evidence clearly shows that Spanish-speaking children are retarded in learning English by lack of exposure to its use because of segregation, and that commingling of the entire student body instills and develops a common cultural at-titude among the school children which is imperative for the perpetuation of American institutions and ideals. It is also established by the record that the methods of segregation prevalent in the defendant school districts foster antagonisms in the children and suggest inferiority among them where none exists. n155

In Mendez, Judge McCormick crafted an opinion whose interpretation of the meaning of equal protection foreshad-owed closely the reasoning in Brown. n156 The United States Court of Appeals for the Ninth Circuit upheld Judge McCormick's decision on narrower, statutory grounds. n157

Legal scholars and the general public recognized the importance of the Mendez decision. n158 A Note on the Mendez case in The Yale Law Journal commented, regarding Plessy's "separate but equal" doctrine, that:

a recent district Court decision [Mendez]...has questioned the basic assumption of the Plessy case and may portend a complete reversal of the doctrine....Modern sociological and psychological studies lend much support to the District Court's views. [*1246] A dual school system, even if "equal facilities" were ever in fact provided, does imply social in-feriority. n159

Another Note on the Mendez case, in Columbia Law Review, commented on its significance:

The segregation of races has not previously been considered a denial of equal protection so long as equal facilities were made available to the members of both groups...

Attacks on segregation based on the equal protection clause of the 14th Amendment have been equally unsuccessful. If the physical facilities available to each group are substantially equal, the courts have followed the traditional view that the humiliation engendered by relegation to an inferior social status is not in itself indicative of discrimination. The court in the instant case breaks sharply with this approach and finds that the 14th Amendment requires "social equality" rather than equal facilities. n160

Both of these notes, but particularly the note in Yale Law Journal, recognize the importance of Mendez in furthering the cause of racial justice and desegregation for Blacks. n161 On appeal, Thurgood Marshall, Robert L. Carter, and Loren Miller filed an amicus brief on behalf of the NAACP urging the desegregation of Orange County's schools. n162 Robert L. Carter, Assistant Special Counsel of the NAACP, apparently used this brief as a dry run of the argument that segregation was unconstitutional per se. n163 Carter noted that cases pending in Oklahoma, Texas, Louisiana and South Carolina involving segregated schools "may require a Supreme Court ruling in the near future on the constitu-tional issue of the Mendez case." n164 The NAACP's efforts in support of the Mexican-American plaintiffs in these



cases provide an example of early coalition between Blacks and Latinos/as to defeat White racism and Jim Crow as in-flicted upon Latinos/as. Mexican-American plaintiffs [*1247] also sued to desegregate the Texas schools in the Del-gado v. Bastrop n165 litigation, the first step leading to the defeat of school segregation in Texas. n166

Significantly, it was the Mendez decision that led to California's repeal of its school segregation statutes. n167 Then Governor Earl Warren signed legislation repealing California's segregation statutes on June 14, 1947. n168 This was, of course, the same Earl Warren who, as Chief Justice of the United States, would later pen the opinions in Brown v. Board of Education n169 and Hernandez v. Texas. n170 The sequence of events following Mendez might have provided a clue about what was to come when school segregation reached the Supreme Court. n171 The Stone book, like other constitutional law textbooks, n172 omits entirely this significant portion of the history of desegregation.

Other segregation-era cases tell a powerful story of White racism against Mexican Americans and strong Mexican-American resistance in the courts. In Lopez v. Seccombe, n173 for example, several leading Mexican-American and Puerto Rican citizens of San Bernardino, California, representing a class of 8000 Mexican Americans, sued officials of San Bernardino to gain simple access to a public park. n174 All [*1248] persons of Mexican or Latin descent, includ-ing the plaintiffs, had "been excluded, barred and precluded" for several years from using a public park, playground, swimming pool, bathhouse and other facilities solely because of their Mexican and Puerto Rican ancestry. n175 Ap-parently in response to contrary arguments by counsel for San Bernardino, the trial judge found it necessary to make a specific finding that the plaintiffs "are of clean and moral habits not suffering any disability, infectious disease, nor have they any physical or mental defect" that might justify the discrimination against them. n176 The court concluded that segregation of San Bernardino's public park violated the Equal Protection Clause and issued a permanent injunction pro-hibiting the segregation of persons of Mexican and Latin ancestry. n177

The Supreme Court finally considered discrimination against Mexican Americans in Hernandez v. Texas, n178 decided two weeks before Brown v. Board of Education. In Jackson County, Texas, grand and petit jurors were chosen by jury commissioners sworn to "not knowingly select a grand juror they believe unfit or unqualified." n179 The state agreed to a stipulation that qualified male Mexican-American freeholders who lived in Jackson County were fully quali-fied to serve on grand juries. n180 Between six and seven percent of the freeholders in Jackson County, Texas were Mexican American, but not a single Mexican American had served on a Jackson County jury in the last 25 years. n181 The Court concluded that "the result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner." n182 Accordingly, the Court decided that the discriminatory application of ostensi-bly neutral jury selection procedures violated the Equal Protection Clause. n183

The Hernandez decision is important in constitutional law for several reasons. It was the first case to recognize that Mexican Americans constitute a "cognizable minority group for equal protection purposes in areas where they are sub-ject to local discrimination." n184 The Warren [*1249] Court was able to transcend, at least to a limited extent, the Black/White binary paradigm. n185 The Court wrote that the "Fourteenth Amendment is not directed solely against discrimination due to a "two-class theory' - that is, based upon differences between "white' and Negro." n186

Second, like Yick Wo v. Hopkins n187 and Gomillion v. Lightfoot, n188 the Hernandez decision stands for the proposition that the discriminatory application of a neutrally worded standard against a minority defined by race and na-tional origin (persons of Mexican ancestry) violates the Equal Protection Clause. Furthermore, the decision is tied di-rectly to the Court's early interpretation of the Fourteenth Amendment in Strauder v. West Virginia. n189 In Strauder, the Court declared that the statutory exclusion of Blacks from jury service violated the Equal Protection Clause. n190 The Court also foresaw the eventual extension of equal protection doctrine to national origin classifications, a move fi-nally accomplished in Hernandez. In Strauder, the Court wrote:"Nor if a law should be passed excluding all naturalized Celtic Irishmen, would there be any doubt of its inconsistency with the spirit of the amendment." n191 Given these links to Strauder, the casebook authors should cite Hernandez, as well as the Yick Wo opinion, for the principle that they both articulate.

Finally, Hernandez is also important for the snapshot it gives of the application of Jim Crow laws against Mexican Americans in Texas and throughout the Southwest. Describing conditions faced by Mexican Americans in Jackson County, the Court wrote:

The testimony of responsible officials and citizens contained the admission that residents of the community distin-guished between "white" and "Mexican." The participation of persons of Mexican descent in business and community groups was shown to be slight. Until very recent times, children of Mexican descent were required to attend a segre-



gated school for the first four grades. [Most of the children of Mexican descent left school by the fifth or sixth grade.] At least one restaurant in town prominently displayed a sign announcing "No Mexicans Served." On the courthouse grounds at the time of the hearing, [*1250] there were two men's toilets, one unmarked, and the other marked "Colored Men" and "Hombres Aqui"("Men Here"). No substantial evidence was offered to rebut the logical inference to be drawn from these facts... n192

The Stone book contains absolutely no discussion of Mendez, Lopez, or Hernandez. Indeed, the authors went to some pains to excise Latinos/as from their materials. In their discussion of school desegregation cases, they present Keyes v. School District No. 1, Denver, Colo. n193 as another case about desegregation involving Black students. n194 The plaintiffs in the case, however, were Black and Latino, both groups having formed a coalition against de facto segrega-tion. n195 For the sake of telling a linear, Black/White story of struggles against segregation, the Stone casebook omits entirely the simultaneous and complementary history of segregation against Mexican Americans and their struggles for equality.

In the context of constitutional law, the paradigmatic presentation of the evolution of equality jurisprudence virtu-ally guarantees that students will learn nothing about the history of racism and "separate but equal" segregation against Mexican Americans nor about the federal cases in which the courts found such segregation unconstitutional. How many of my present readers are aware that Mexican Americans, like Blacks, were lynched frequently? n196 Mexican Ameri-cans were also segregated in separate but unequal schools, n197 were kept out of public parks by law, n198 were re-fused service in restaurants, n199 were prohibited from attending "White" churches on Sundays, and were denied burial in "White" cemeteries, among all of the other horrors of the separate but equal scheme. n200

[*1251] The paradigmatic, truncated presentation of racial and legal history that results from the Black/White bi-nary paradigm ensures that most readers will never learn anything about Mexican American struggles for equality. A presentation of this omitted history, on the other hand, would present law students with a more complex and accurate sense of the scope of racism and the multiple struggles mounted against it. Cases such as Lopez, Mendez and Hernandez should be included in every book that discusses racism and segregation, especially books on constitutional law. Omit these cases, omit this history, and the vast majority of law students (and many law teachers) will have no clue that the Mexican-American struggle against segregation has been long and hard-fought in the courts. Omit these cases and most law students will have no clue that the Mexican American struggle against segregation has a place in our constitutional history. Omit these cases and we get the story of the struggle for equality told only in Black and White. We get only the paradigm, not the picture.

I have shown that the tendency to present a linear story of the development of equality doctrines corresponding to the Black/White paradigm leads to the omission of Mexican-American history. Robert Blauner describes more generally the omission of Chicano history by White scholars, which leads directly to reproduction of the Black/White paradigm and public ignorance about Latinos/as:

Even informed Anglos [and Blacks] know almost nothing about La Raza, its historical experience, its present situation, its collective moods. And the average citizen doesn't have the foggiest notion that Chicanos have been lynched in the Southwest and continue to be abused by the police, that an en-tire population has been exploited economically, dominated politically, and raped culturally. In spite of the racism that attempts to wipe out or, failing that, distort and trivialize the history and culture of the colonized, both expert and man in the street are far more aware of the past and present oppres-sion suffered by blacks. n201

Blauner refers to this continuing omission as "academic colonialism" by White scholars who persist in ignoring the his-tory and problems encountered by Mexican Americans. n202

Similar "academic colonialism" exists among constitutional law casebook authors who persist in omitting signifi-cant developments in constitutional law and history affecting Latinos/as, for the sake of a [*1252] linear story within the Black/White binary paradigm. I want to know how casebook authors of constitutional law can justify leaving out the legal history I have described above. Do they deem it unimportant? If the reason for omitting Mexican-American legal history is a judgment that it is unimportant, how was that conclusion reached?

Adding this history presents a radically different picture of Latinos/as and Blacks struggling for equality and deseg-regation, and demonstrates some coalition between Latinos/as and Blacks in the struggle. n203 Omitting this history offers us only a paradigmatic and distorted history in Black and White. The burden should be on constitutional law casebook authors to justify their decisions to omit this material, because its omission leads directly to a distorted picture of Latinos/as as non-participants and "spectators" in the struggle for civil rights.



ShellThe Aff re-enforces the concept of racial inequality by normalizing “White” and lumping all racial and ethnic groups as Non-whiteKristi L. Bowman, 2001 NOTE: THE NEW FACE OF SCHOOL DESEGREGATION,50 Duke L.J. 1751

White privilege is reinforced when racial and ethnic groups are conceptualized not as White, African American, Latino, Asian American, Native American, etc., but instead as White or Non-White. Acknowledgement of differences among groups disappears in a White-Non-White paradigm, because instead of allowing racial or ethnic groups to iden-tify themselves by what they are, n238 all Non- [*1787] White groups are explicitly identified by what they are not, and only by reference to whiteness. Although aspects of a specific Non-White group might be easier to identify than "White culture," this occurs because White culture is mainstream culture. The culture of a specific Non-White group ap-pears distinctive because it deviates from the norm. Professor Martha Mahoney notes that a term such as "racially iden-tifiable" in the context of housing and urban development generally refers "to locations that are racially identifiably black." n239 The same is true in the context of education: racially identifiable means racially identifiably Non-White.

The White-Non-White paradigm reinforces the power dynamic of the acted and the acted upon, of presence and ab-sence, of the defining and the defined. The power that Whites receive from their unearned privilege in the White-Non-White duality "is, in fact, permission to escape [the debate of race] or to dominate." n240 When federal courts reinforce this dynamic in the name of school desegregation, they perpetuate the normalized, mainstream practices and institutions that reinforce racial inequality. It is often these practices and institutions that are most damaging in terms of perpetuat-ing oppression because they are not usually questioned. They are conceptualized as just normal. n241

In contemporary school desegregation jurisprudence, Whites are normalized, and all Non-Whites are collapsed into the category of "other." Like African Americans, Latinos have been the victims of state-sanctioned educational segrega-tion; n242 but if courts gave attention to the present differences between African Americans and Latinos, courts' reme-dial orders would likely be structured differently. As will be discussed below, the recognition of Latinos and African Americans as distinct groups that continue to suffer different harms is easily within reach.



FYI- why paradigms matterA Paradigm is…Perea, 1998, Juan F., RACE, ETHNICITY & NATIONHOOD: The Black/White Binary Paradigm of Race The "Nor-mal Science" of American Racial Thought, 10 La Raza L.J. 1213

Thomas Kuhn, in The Structure of Scientific Revolutions, n4 describes the properties of paradigms and their power in structuring scientific research and knowledge. While Kuhn develops his understanding of paradigms in evaluating the development of scientific knowledge, many of his insights are useful in understanding paradigms and their effects more generally. A paradigm is a shared set of understandings or premises which permits the definition, elaboration, and solution of a set of problems defined within the paradigm. n5 A paradigm is an accepted model or pattern that, "like an accepted judicial decision in the common law...is an object for further articula-tion and specification under new or more stringent conditions." n6 Paradigms exist, therefore, not just in the sciences but also in law and other disciplines. n7

Thus, a paradigm is the set of shared understandings that permits us to distinguish those facts that matter in the solution of a problem from those facts that do not. As Kuhn writes,

in the absence of a paradigm or some candidate for paradigm, all of the facts that could possibly pertain to the development of a given science are likely to seem equally relevant. As a result, early fact-gathering is a far more nearly random activity than the one that subsequent scientific develop-ment makes familiar. n8

Paradigms thus define relevancy. In so doing, paradigms control fact-gathering and investigation. Data-gathering efforts and research are fo-cused on understanding the facts and circumstances that the relevant paradigm teaches us are important. n9

Paradigms are crucial in the development of science and knowledge because, by setting boundaries within which problems can be [*1217] un-derstood, they permit detailed inquiry into these problems. In Kuhn's words, a "paradigm forces scientists to investigate some part of nature in a detail and depth that would otherwise be unimaginable." n10 Indeed, it is this depth of research that eventually yields anomalies and discontinuities and, ultimately, the necessity to develop new paradigms. However, as a paradigm becomes the widely accepted way of thinking and of producing knowl-edge on a subject, it tends to exclude or ignore alternative facts or theories that do not fit the expectations produced by the paradigm. n11

Kuhn uses the concept of "normal science" to describe the elaboration of the paradigm and the solution of problems that the paradigm allows us to perceive. n12 Scientists and researchers spend almost all of their time engaged in normal science, conducting their research under the rules pre-scribed by the paradigm and attempting to solve problems cognizable and derivable from the paradigm. However, normal science "often suppresses fundamental novelties because they are necessarily subversive of its basic commitments." n13 As Kuhn describes, normal science "seems an attempt to force nature into the performed and relatively inflexible box that the paradigm supplies. No part of the aim of normal science is to call forth new sorts of phenomena; indeed those that will not fit the box are often not seen at all." n14 As normal research progresses in depth and detail within a paradigm, researchers make unexpected discoveries, yielding anomalies that the current paradigm does not adequately explain. In time, and in the face of problems not adequately explained by the paradigm, scientists are forced to abandon the old paradigm and replace it with some new understanding that better explains the observed anomalies. n15

Literature and textbooks play an important role in producing and reproducing paradigms. Kuhn identifies textbooks and popular literature, which convey scientific knowledge in a language more accessible to the general public, as au-thoritative sources of established paradigms. n16 Textbooks and derivative literature intend to communicate the partic-ular [*1218] paradigm or set of paradigms that constitute the current tradition of a science. n17

Interestingly, Kuhn observes that textbooks must distort history significantly in order to convey the current state of a discipline in a linear, co-herent way. n18 Textbooks truncate "the scientist's sense of his discipline's history and then proceed to supply a substitute for what they have elimi-nated." n19 In order to do this, textbooks present only a small part of history - the portion of history that authors can easily present as contributing to the development and solution of today's paradigm problems. n20 "The result," in Kuhn's words, "is a persistent tendency to make the history of sci-ence look linear or cumulative." n21 In other words, textbooks distort history to make it appear that the current paradigm, or current knowledge, is the result of a linear, related series of discoveries or events in which each subsequent event is causally linked to the prior events. n22 This distortion requires leaving out all of the historical complexity and the revolutionary questions and ideas on which new scientific discoveries and new paradigms depend. Kuhn terms this distortion of history "depreciation of historical fact." n23

Although Kuhn suggests that science is more vulnerable to textbook distortions of history than other disciplines be-cause of the assumed objectivity of scientific inquiry, n24 I believe his insights regarding paradigms, "normal science," and textbooks are extremely useful in explaining the persistent focus of race scholarship on Blacks and Whites, and the resulting omission of Latinos/as, Asian Americans, Native Americans, and other racialized groups from such scholar-ship. If science as a discipline is more vulnerable to textbook distortions of history, I believe this is only a matter of de-gree, as law, through its reliance on precedent, is also highly dependent on paradigms. Kuhn recognized as much when he used judicial precedent, and subsequent decisions based on precedent, as an example of paradigm elaboration. n25 Although Kuhn felt that the extent to which the social sciences had developed paradigms was an open question, n26 I suggest in this Article that [*1219] race scholarship both inside and outside of law is dominated by a binary paradigm of race. Like science textbooks, constitutional law textbooks also distort history for the sake of a paradigmatic, linear presentation of the evolution of equality doctrines.



AT: but we mention other groupsMere recognition of other people of color reasserts the B/W paradigm-- without a real investigation of how r ace issues impact those outside of the binary the Aff perpetrates the marginalization of racialized groups outside of the binary Perea, 1998, Juan F., RACE, ETHNICITY & NATIONHOOD: The Black/White Binary Paradigm of Race: The "Normal Science" of American Racial Thought, 10 La Raza L.J. 1213

Paradigms of race shape our understanding of race and our definition of racial problems. The most pervasive and pow-erful paradigm of race in the United States is the Black/White binary paradigm. I define this paradigm as the conception that race in America consists, either exclusively or primarily, of only two constituent racial groups, the Black and the White. Many scholars of race reproduce this paradigm when they write and act as though only the Black and the White races matter for purposes of discussing race and social policy with regard to race. The mere recognition that "other peo-ple of color" exist, without careful attention to their voices, their histories, and their real presence, is merely a reasser-tion of the Black/White paradigm. If one conceives of race and racism as primarily of concern only to Blacks and Whites, and understands "other people of color" only through some unclear analogy to the "real" races, this just restates the binary paradigm with a slight concession to demographics.

My assertion is that our shared understanding of race and racism is essentially limited to this Black/White binary paradigm. n27 This paradigm defines, but also limits, the set of problems that may be recognized in racial discourse. Kuhn's notion of "normal science," which further articulates the paradigm and seeks to solve the problems perceivable because of the paradigm, also applies to "normal research" on race.

Given the Black/White paradigm, we would expect to find that much research on race is concerned with under-standing the dynamics of the Black and White races and attempting to solve the problems between [*1220] Blacks and Whites. Within the paradigm, the relevant material facts are facts about Blacks and Whites.

In addition, the paradigm dictates that all other racial identities and groups in the United States are best understood through the Black/White binary paradigm. Only a few writers even recognize that they use a Black/White paradigm as the frame of reference through which to understand racial relations. n28 Most writers simply assume the importance and correctness of the paradigm, and leave the reader grasping for whatever significance descriptions of the Black/White relationship have for other people of color. As I shall discuss, because the Black/White binary paradigm is so widely accepted, other racialized groups like Latinos/as, Asian Americans, and Native Americans are often marginal-ized or ignored altogether. As Kuhn writes, "those that will not fit the box are often not seen at all." n29



S takeoutClaims to justice of those outside the binary are ignored, turning the impacts of casePerea, 1998, Juan F., RACE, ETHNICITY & NATIONHOOD: The Black/White Binary Paradigm of Race: The "Normal Science" of American Racial Thought, 10 La Raza L.J. 1213

One can thus discern how the binary paradigm interferes with liberation and equality. If Latinos/as and Asian Americans are presumed to be White (or quasi-White) by both White writers and Black writers (a presumption not borne out in the lived experience of most Latinos/as [*1232] and Asians), then our claims to justice will not be heard nor acknowledged. Whites can ignore our claims to justice, since we are not Black and therefore are not subject to real racism. And Blacks can ignore our claims, since we are presumed to be aspiring to and acquiring Whiteness, and there-fore we are not subject to real racism. Latinos/as do not fit the boxes supplied by the paradigm.



S take outThe B/W binary and the exclusion that is perpetuates prevents any transition we may hope for to a more just society. We must accept the K in order to move away from this structure of dominationPerea, 1998, Juan F., RACE, ETHNICITY & NATIONHOOD: The Black/White Binary Paradigm of Race: The "Normal Science" of American Racial Thought, 10 La Raza L.J. 1213

[*1253] My argument is not that this history should not be an important focus of racial studies. Rather, my argu-ment is that the exclusive focus on the development of equality doctrines based solely on the experience of Blacks, and the exclusive focus of most scholarship on the Black-White relationship, constitutes a paradigm which obscures and prevents the understanding of other forms of inequality, those experienced by non-White, non-Black Americans. The Black/White binary paradigm, by defining only Blacks and Whites as relevant participants in civil rights discourse and struggle, tends to produce and promote the exclusion of other racialized peoples, including Latinos/as, Asian Americans and Native Americans, from this crucial discourse which affects us all.

This exclusion is both the power and the stricture of the Black/White binary paradigm. Its power derives from the fact that a limited subject of inquiry makes possible the study of the Black-White relationship in extraordinary detail and with great insight. Its stricture, however, is that it has limited severely our understanding of how White racism oper-ates with particularity against other racialized peoples. Furthermore, the binary paradigm renders the particular histories of other racialized peoples irrelevant to an understanding of the only rac-ism - White racism against Blacks - that the paradigm defines to be important. This perceived irrelevance is why the history of Latinos/as, Asian Americans, and Native Americans is so frequently missing from the texts that structure our thinking about race.

One could defend the Black/White paradigm on the grounds that it represents the efforts of scholars to study the most virulent form of rac-ism in the United States, White racism against Blacks, and that study of the most virulent form will naturally encompass less virulent forms such as those experienced by Latinos/as. The extent of White racism against Blacks, cruelly manifested in slavery, was unprecedented. Pervasive and continuing racism against Blacks justi-fies every effort dedicated to its eradication.

There are at least three reasons, however, why an exclusive focus on Blacks and Whites is not justified. First, it is important to work to eradicate all racism, not just the racism experienced by Blacks. Second, it is wrong to assume that racism against Latinos/as is simply a less virulent form of the same racism experienced by Blacks. As Blauner de-scribed, racism against Latinos/as has a different genesis. It may also be different in kind in ways that are very impor-tant. For example, Blacks may or may not ever experience the language and accent discrimination faced by many Lati-nos/as. Finally, our national demographics are changing significantly. One cannot simply ignore the concerns of an in-creasingly [*1254] large and subordinated group of Latinos/as forever. A society is just only if everyone can partici-pate in it on equal terms.



S takeoutThe black/white binary perpetuates the sterotypes that allow racism to exist and leads the courts to ignore the discrimi-nation against Latino/asPerea, 1998, Juan F., RACE, ETHNICITY & NATIONHOOD: The Black/White Binary Paradigm of Race: The "Normal Science" of American Racial Thought, 10 La Raza L.J. 1213

The point of critical theory generally is to demonstrate shortcomings in our current understandings of legal and social structures and perhaps to suggest alternatives that improve upon these shortcomings. One implication of this Article is that, to the extent that critical theory has focused on questions of race, it is still tightly bound by the Black/White binary paradigm. Although this is much less true of critical race theory in particular, as some writers have focused on the points of view and histories of many racialized American groups, a true paradigm shift away from the Black/White par-adigm will only occur when such scholarship is more widely promulgated and accepted than is currently the case.

My review of important literature on race establishes the existence of the Black/White binary paradigm and its structuring of writing on race. The "normal science" of race scholarship specifies inquiry into the relationship between Blacks and Whites as the exclusive aspect of race relations that needs to be explored and elaborated. As a result, much relevant legal history and information concerning Latinos/as and other racialized groups is simply omitted from books on race and constitutional law.

The omission of this history is extraordinarily damaging to Mexican Americans and other Latinos/as. By omitting this history, students get no understanding that Mexican Americans have long struggled for equality. The absence of Latinos/as from histories of racism and the struggle against it enables people to maintain existing stereotypes of Mexi-can Americans. These stereotypes are perpetuated even by America's leading thinkers on race. Ignorance of Mexican-American history allows Andrew Hacker to proclaim that Hispanics are passive "spectators" in social struggle, n212 and allows Cornel West to imply that Latino/a struggles against racism have been "slight though significant." n213 To the extent that the legitimacy of claims for civil rights depends on a public perception of having engaged in struggle for them, the omission of this legal history also undermines the legitimacy of Latino/a claims for civil rights. This may ex-plain why courts treat Latino/a claims of discrimination with such indifference.

Paradigmatic descriptions and study of White racism against Blacks, with only cursory mention of "other people of color," marginalizes all people of color by grouping them, without particularity, as somehow [*1258] analogous to Blacks. "Other people of color" are deemed to exist only as unexplained analogies to Blacks. Thus, scholars encourage uncritical readers to continue to assume the paradigmatic importance of the Black/White relationship and to ignore the experiences of other Americans who also are subject to racism in profound ways.

Critical readers are left with many important questions: Beyond the most superficial understanding of aversion to non-White skin color, in what ways is White racism against Blacks explanatory of or analogous to White racism against Latinos/as, Asian Americans, Native Americans, and others? Given the unique historical legacy of slavery, what does a deep understanding of White-Black racism contribute to understanding rac-isms against other "Others?" Why are "other people of color" consistently relegated to parenthetical status and near-nonexistence in treatises purporting to cover their fields comprehensively?

It is time to ask hard questions of our leading writers on race. It is also time to demand better answers to these ques-tions about inclusion, exclusion, and racial presence, than perfunctory references to "other people of color." In the midst of profound demographic changes, it is time to question whether the Black/White binary paradigm of race fits our highly variegated current and future population. Our "normal science" of writing on race, at odds with both history and demographic reality, needs reworking.



AT but we are outside the binary

The B/W binary is so pervasive it effects the way everyone thinks about race, including those outside the binary such as Latino/as, this is its true power that it convinces even those marginalized by it to that it is the ‘right’ way to think about raceDelgado, 1997, Richard, Prof of Law University of Colorado Law School, BOOK REVIEW: Rodrigo's Fifteenth Chronicle: Racial Mixture, Latino-Critical Scholarship, and the Black-White Binary, 75 Tex. L. Rev. 1181

"I think I saw a notice for it the other day," I said. "And of course I'm familiar with some of the judge's opinions; in fact I've taught one or two of them in my courses over the years. What does the book say about him? Nothing too harsh, I hope. It's tough being a first of any kind. Sometimes biographers and critics expect more of you than you can possibly deliver."

"It's favorable," Rodrigo replied. "As well as intelligently written. Like all good biography, it helps you understand the person and his or her times - how the circumstances in which he or she lived affected the possibilities for that per-son's life and thought."

"What's the general thesis?" I asked. As a member of the judge's generation, I was anxious to hear the author's judgment.

"Her thesis is that Judge Garza was able to combine a successful career as a lawyer and a judge and maintain his Mexican-American ties and roots at the same time. n9 The book details his early years as a relatively secure child in a large family of middle-class Mexican immigrants who operated a hardware store in Brownsville, Texas. n10 It shows his early encounters with hardship, racism, and exclusion and the way he fought against those forces by trying harder. n11 It traces his college and law school career at The University of Texas, n12 one of only two Mexican-American students in his law school class, n13 and then his rise in Democratic politics and the state bar, n14 all concluding in his appointment as the nation's first Mexican-American federal judge." n15 [*1185]

"Wasn't he once offered a cabinet position?" I asked.

"U.S. Attorney General during the Carter administration," Rodrigo replied. "He turned it down because he didn't want to uproot his family. n16 Later he was appointed to the Fifth Circuit. n17 Serving during a time of intense civil rights activity, n18 he handed down many noted decisions, especially in the areas of labor law where, according to the author, his familiarity with working class people and conditions enabled him to write opinions notable for their progres-sivism." n19

"He sounds like a commendable human being," I observed. "In some ways he reminds me of some of the early African-American federal judges of my own generation who struggled to validate themselves in a skeptical world while trying to hand down rulings that advanced the cause of social justice."

"A difficult balancing act," Rodrigo acknowledged. "But I think that with Judge Garza it was harder, somehow. And this brings me back to what we were talking about at the conference."

"Harder because of who he was, or because of social conditions at the time he went on the bench?" I asked.

"Both, in a way," Rodrigo replied. "When he was appointed, it was a time of intense ferment, almost all on behalf of blacks. The Chicano movement came much later. n20 His own community, Brownsville, was more than eighty per-cent Spanish-speaking. n21 Many people were poor, but according to his biographer this resulted more from structural poverty and a lack of jobs than from outright discrimination. n22 Nor did the legal system consider Chicanos a suspect class. Like the Indochinese and other Asian groups, they occupied a sort of limbo - minorities, but not clearly entitled to the special protection of civil rights law." n23

"Don't the Lat-Crits have a special name for this?" I asked.

"The black-white binary," n24 Rodrigo replied. "It's an idea that's just now emerging as a means of understanding American civil rights law and the place of nonblack groups in it. The idea is that the structure of antidiscrimination law



is dichotomous. It assumes you are either black or [*1186] white. If you're neither, you have trouble making claims or even having them understood in racial terms at all." n25

"I think I follow you," I replied. "But could you fill it out a little more? Assuming that our system does incorporate such a dichotomy, how does that render nonblack minority groups one-down, as opposed to, say, one-up, compared to blacks?"

"That's the next step," Rodrigo replied. "At the conference, no one had worked that out yet. But it's an important question. America's racial future looks increasingly mixed up. Latinos will overtake blacks as the most numerous mi-nority early next century. n26 The Asian population, too, is increasing rapidly. Multiracial people are demanding their own voice and census category. n27 A simplistic paradigm of racial relations, based on an either-or, A-or-B model, won't work much longer. I've been trying to figure out why this is so. Reading about Judge Garza helped me to crystal-lize my thoughts."

"Every time a new movement springs up in the law, it's stimulating," I said. "It almost always leads to changes in the way we think about society and justice. We talked about some of these things before." n28 Rodrigo nodded. "I re-member the ferment when Critical Race Theory was born not too many years ago. n29 And, if you can believe it, I was actually around when Critical Legal Studies was born nearly thirty years ago." n30

"You have been teaching a long time," Rodrigo replied, giving me a quick look. "And that's why I want to run past you some things I've been thinking about in the wake of the conference."

"Ask away," I said. "How long does the drive to your place take?"

"About forty-five minutes since they built the new airport." Rodrigo eased past a group of slow-moving trucks, ac-celerated the little sports car smoothly to sixty miles-per-hour, then said: "You remember, Professor, [*1187] how Critical Legal Studies early on developed the notion of the fundamental contradiction?" n31

"Of course," I replied. "At the time a breathtaking breakthrough, it explains many of the strains and tensions run-ning through our system of law and politics. It led to powerful critiques of the public-private distinction, judicial inde-terminacy, and rights. n32 Were the Latinos at your conference working on something similar?"

"I think we were," Rodrigo replied. "But without knowing it. And it's that very same black-white binary. People are just starting to talk about it. You may have seen an article or two. n33 If one's paradigm identifies only one group as deserving of protection, everyone else is likely to suffer. Not only that, even members of one's own group are apt to think of themselves as black or white. It's quite a disabling instrument. We may have to blast the dichotomy - embrace the full multifariousness of life - if we're ever going to get anywhere."

"You put it rather dramatically," I said, smiling at my young friend and protege to let him know I appreciated his enthusiasm for ideas, even if it was sometimes a little superheated. "I suppose any rigid structure inhibits flexibility dur-ing times of change. But I think you started to say this had something to do with Judge Garza."

"I don't want to be too negative," Rodrigo said. "He was a genuine pioneer, for which we should all be grateful. But he never really developed much class consciousness - or, if he did, he kept it pretty secret. He went around the Mexican-American community extolling individualism and telling his countrymen and women that they could rise and accomplish the American dream through hard work, just as he had. n34 He detested discrimination and slurs aimed at Chicanos and Mexicans, but attributed them to individual failures on the part of particular Anglos, not to anything sys-temic. As a young man he worked for a Texas agency that ran the Texas Rangers, n35 despite their history of brutal mistreatment of his people. n36 He sold war bonds, backed America's role in wars, and [*1188] encouraged young Mexicans to enlist. n37 He praised all things American, n38 and even ruled against the plaintiffs in Partida v. Cas-taneda, n39 an early case presenting the issue of whether segregation and discrimination aimed against Mexican-Americans are redressable." n40

"He was overruled by the Supreme Court, as I recall," I said. n41

"Fortunately," Rodrigo agreed. "Garza began - and even ended - withgood social instincts and a love of justice. But the black-white racial binary made it difficult for him to think of himself or his group in effective legal terms - as a peo-ple with a history of conquest and brutal treatment in need of redress. If you don't have a class analysis - and the binary assures that you don't - all you can do is urge your countrymen to work harder, and those who are oppressing them to back off - as individuals, that is. You'll rule against your people, Jehovah's Witnesses, and other minorities, and oppose federal welfare programs for the poor and intervention on behalf of prisoners and the institutionalized." n42



"Didn't I read somewhere that early litigators arguing on behalf of Chicanos and other Latino groups embraced something called the "other white' strategy?" I asked.

"They did," Rodrigo replied. "It's the logical extension of the kind of thinking that the black-white binary predis-poses you to. The only way to get relief is to maintain that your client, a Mexican-American or Puerto Rican, is white and thus should not be the object of social discrimination." n43 [*1189]

"Not exactly empowering," I commented wryly. "But I believe you were going to tell me of some other ways the binary does its pernicious work."

"In addition to the way just mentioned - namely that it fetters our own minds," Rodrigo said, "preventing us from articulating, or even imagining, how our victimization is a serious, group-based form of oppression."

"You must do so, and in the most complete fashion possible," I said. "If the binary is to serve as Latinos' funda-mental contradiction, you have to spell out exactly how this structure of thought renders your people one-down. n44 Otherwise, it's simply an observation, a descriptive statement no more useful than "many Latinos speak Spanish,' or "many have ancestors from Latin America or the Caribbean,' or "a certain judge with good social instincts stopped just short of a civil rights breakthrough.'"

"I agree," Rodrigo replied. "Without such an explanation, the insight kind of runs out of gas." He sneaked a quick peek at his instrument panel, then - "Which reminds me, we'll need a quick stop for fuel before we get home."

"Let me buy," I suggested. "You were kind to come get me in the middle of your evening."

Rodrigo waved my offer aside. "Your listening to my thoughts will be payment enough. We're our best sounding boards, I think."

"That we are," I agreed. "So, what are your ideas on how the black-white paradigm injures Latinos and other non-white groups?"

The black/white binary has dominated the scholarship and legal precedent in the school desegregation context . this al-lows whiteness to be centered as what should be, maintaining a system of white supremacyKristi L. Bowman, 2001 NOTE: THE NEW FACE OF SCHOOL DESEGREGATION,50 Duke L.J. 1751

In 1998, the balance tipped: for the first time, Latinos and Latinas n1 comprised a greater percentage of the national school-age population than did African Americans. n2 Within forty years, Whites will become a statistical minority in the United States' school-age population n3 - and in an increasing number of public school districts. n4 In Hawaii, New Mexico, and California, this population shift has occurred [*1752] already. n5 Texas will have a Non-White majority around 2015, and Arizona, New York, Nevada, New Jersey, and Maryland will quickly follow. n6 The rapidly changing racial and ethnic demographics of our country might seem surprising not only because a Non-White majority is antici-pated within the next sixty years, but also because so much of the growth will occur in the Latino population. The 2000 United States Census shows that the percentage of respondents identifying themselves as Latino increased 60% since 1990 and that Latinos will be the United States' largest minority group even sooner than expected. n7

American society operates in a paradigm in which an individual is a member of the "majority" or the "minority," ei-ther White or Non-White. As a group, Latinos are nearly invisible within this paradigm because Non-White often is pre-sumed to be roughly equivalent to African American. This invisibility is readily apparent in contemporary school deseg-regation law: it is not only law students and lawyers who know that Brown v. Board of Education n8 was about African American schoolchildren in Topeka, Kansas. The perception of Brown and its progeny as occurring in a society where there are two races, Black and White, is widely shared. This Black-White binary has influenced courts' and legislatures' race-conscious remedies such as school desegregation orders and employment discrimination claims. When those reme-dies originated in the 1960s, they reflected a population that was nearly 90% White, including an estimated 4% Latino, and 10% African American. n9

Although plaintiffs brought successful challenges to Latino segregation in public schools before Brown cemented the idea that "separate educational facilities are inherently unequal," n10 the Court [*1753] made no mention of those cases, or any reference to Latinos, in its 1954 decision. Brown ushered in an era of viewing school desegregation in a Black-White binary. It was not until almost two decades later, in 1973, that the framework changed.



In Keyes v. Denver, n11 the Court endorsed the White-Non-White paradigm by deciding that it would classify Lati-nos with African Americans for purposes of school desegregation. Since 1973, the changing racial composition of the United States and of public schools has resulted in many courts' balancing schools n12 according to a White-Non-White paradigm that ignores the full spectrum of racial and ethnic difference and presumes that Non-White groups are fungible for purposes of racial and ethnic balance. n13 The White-Non-White paradigm is injurious to Brown's intent, because instead of promoting equality, it promotes the dominance of whiteness. "White" becomes the singular point of reference for all other races; if one is not White, the "other" race to which one belongs is immaterial. White dominance and privi-lege remain unquestioned when "White" is the standard against which all else is defined. This White norm has been par-ticularly harmful to Latinos, whose history has been marginalized even more than that of African Americans. n14 This approach to balancing schools is not only intellectually imprecise, but also it denies Latinos the full benefits of school desegregation.


FYI- history of latino/a segregationThe history of Latino/a school desegregationKristi L. Bowman, 2001 NOTE: THE NEW FACE OF SCHOOL DESEGREGATION,50 Duke L.J. 1751

II. De Jure School Segregation and the Latino Experience School segregation, as well as desegregation efforts, have been viewed in a Black-White binary historically. Even when this binary was replaced by a White-Non-White binary, the Latino history of educational segregation was overlooked. The first step in understanding Latinos' contemporary experiences in segregated schools is to review the historical foun-dations of such segregation. During the early twentieth century, Latinos were raced White in some contexts but segre-gated from Whites in schools. The first successful case to challenge this segregation in federal court, Mendez v. West-minster, n112 was decided in 1946. Although Mendez foreshadowed Brown v. Board of Education and played a promi-nent role in dismantling the system of de facto educational segregation in the United States, Brown did not render the segregation of Latinos unconstitutional.

A. Latino School Segregation: A Historical Primer Public elementary education was not widespread in the United States until the mid-nineteenth century. n113 Public sec-ondary education was not common until the early twentieth century. n114 School systems often grew as de jure segre-gated systems; in the South, state or local governments frequently required the segregation of White and African [*1769] American students by law. Professor Mark Tushnet describes the role de jure segregated schools played in maintaining African American subordination, calling segregated schools "a visible and daily demonstration to children as they were growing up that whites did not consider them fit to associate with." n115 De jure segregation also affected Latinos, who, although they were viewed by courts as White for the basic - though not insignificant - purpose of citizen-ship, were viewed by their communities as categorically Non-White and segregated as such: "Jim Crow, in addition to targeting Blacks, also took aim at Latinos through segregated schools and other public facilities." n116 It was almost in-significant that Latinos were White for purposes of citizenship, because they were not White for the purposes of enjoy-ing the benefits citizenship should confer, such as education.

Writing in 1920, educator Grace Stanley noted the role the local community played in the creation and perpetuation of an educational system that segregated Latinos:

One of the first demands made from a community in which there is a large Mexican population is for a separate school. The reasons advanced for this demand are generally from a selfish viewpoint of the English-speaking public and are based largely on the theory that the Mexican is a menace to the health and morals of the rest of the community. n117 In the early twentieth century, the Latino population in the United States was concentrated in the southwest. At this time, the segregation of Latinos in California took the form of "Mexican schools" and "migratory schools." n118 Not surprisingly, these schools were plagued by "inadequate resources, poor equipment, and unfit building construction," their teachers were paid less than teachers at the White schools, and a promotion for a teacher at a Latino school often consisted of being transferred to the White school. n119 While these districts were not required by state statute to segre-gate Latino students, their actions would be characterized under contemporary standards as de [*1770] jure segregation because of the districts' prejudice-based intent to educate separately Latino and White students. n120

In California the establishment of segregated schools occurred "in town after Southern California town" as Latino schools were developed in Pasadena (1913), Mendota (1920), Santa Ana (1920), Ontario (mid-1920s), Riverside (unof-ficial in 1910, but specially built in 1924), and Los Angeles (by 1933). n121 The system of segregation was often justi-fied by race-based claims that Latinos simply were not as smart as Whites. In the words of one school superintendent, "Some Mexicans are very bright, but you can't compare their brightest with the average white children. They are an in-ferior race." n122 The common occurrence of Latino school segregation was confirmed in a 1931 survey of school dis-tricts with large Latino populations, demonstrating that over 80% of these districts were officially segregated and many of the remaining 20% had "unofficial" segregatory practices such as "Americanization" classrooms, n123 which contin-

ued through the 1950s. n124 Although these programs had the ultimate goal of assimilating Latinos into American soci-ety and training them for "appropriate" jobs, those purposes were pursued by isolating Latino students during most of their years as elementary and secondary school students. n125

While nearly one hundred school desegregation or education-related racial discrimination cases were brought in the nineteenth century, n126 the march toward equality was slow, and the first stuttering steps of progress occurred in state courts. The first known court-ordered school desegregation was rendered by a county court in 1931 in Lemon Grove, California. n127 In 1930, Latinos and Whites attended the Lemon Grove elementary school in nearly equal numbers, with a total enrollment of 169. n128 The Lemon Grove school board planned to [*1771] segregate Latino elementary students by building a new school specifically for Latinos. n129 When the Latino students were instructed to attend school in this barn-like building, Latino parents first organized a boycott of the separate school. n130 Then they filed a claim in the Superior Court of San Diego County alleging that the district was unlawfully segregating Latino students. n131 At the same time, the segregation of Latinos was a topic on the California legislature's agenda, and a bill to permit the segregation of Latinos was defeated, due in part, perhaps, to the Lemon Grove case. n132 Back in Lemon Grove, the court required the school district to justify its proposed segregation of Latino students, and the district responded with the rationale of "Americanization." n133 The municipal court ruled in favor of the Latino plaintiffs and prohibited seg-regation of White and Latino students. n134 The remedial order followed two days later and made clear that "the laws of the State of California do not authorize or permit the establishment or maintenance of separate schools for the in-struction of pupils of Mexican parentage, nationality, and/or descent." n135 The court considered the state law permit-ting the segregation of African and Indian students and concluded that because Latinos were not African or Indian, their segregation was not defensible under state law. n136 The case was not appealed, and it was never mentioned in the min-utes of a Lemon Grove school board meeting. n137

In the early twentieth century, the educational segregation of Latinos was common throughout California and Texas. n138 The trial court's holding in the Lemon Grove case was an anomaly. A more typical outcome had been reached by a Texas court one year earlier in Independent School District v. Salvatierra. n139 When Jesus Salvatierra and other local taxpayers in Del Rio, Texas, brought a suit to challenge [*1772] plans to increase the segregation of Latino students, the trial court issued an injunction prohibiting further segregation. n140 The Texas appellate court re-versed, stating that although segregation of Latinos from students of "other white races" n141 for arbitrary or malicious reasons would not be permitted, the separation was permissible in this case because it was based on acceptable pedagog-ical reasons. n142 The appellate court allowed the district to segregate Latino students in early elementary grades for the educational reasons that the migrant schedule affected the length of time Latino students could attend school each year, and, relatedly, that the English language often presented special challenges for Latino students. n143

This system of widespread Latino segregation in the Southwest persisted until the late 1940s and early 1950s, n144 when community groups, professional educators, and educational psychologists opposed segregation on a large scale. n145 Their opposition was supported by the weight of the federal courts, which quashed segregation as violative of the Fourteenth Amendment's Equal Protection Clause. The most notable battle was fought in the federal courts in Califor-nia.

B. Violation of Equal Protection: The Federal Courts Step In In 1929, California Attorney General U.S. Webb issued an advisory opinion concluding that the segregation of Latino students could not be defended under California law. n146 This advisory opinion clearly did not halt the segregation practices in California public schools. In fact, it seems to have had no direct impact at all. Nonetheless, just as Latino parents had prompted Attorney General Webb to issue his ruling, they continued their work as activists throughout the state. In the town of Westminster, California, where the schools were segregated, Gonzalo Mendez and other Latino parents worked with the school board to propose a ballot initiative approving the issuance of [*1773] bonds to finance the construction of an integrated school. n147 However, when the bond proposal failed, board action ceased. n148 In nearby Santa Ana, William Guzman and other Latino parents attempted to work with their school board to further inte-grate schools by increasing the size of the transfer program within the district. n149 This school board, too, was unre-ceptive to the Latino parents' proposals. Not only did it refuse to increase the transfer program, but it also further re-stricted the limited number of transfers available. n150 Mendez and Guzman challenged the decisions of these school boards to perpetuate segregation by becoming two of the five primary plaintiffs in Mendez v. Westminster School Dis-trict, n151 the case historian Gilbert Gonzalez describes as "the most significant court case affecting the de jure segrega-tion of Mexican children in the Southwest." n152

The Mendez suit was based upon the Fourteenth Amendment to the United States Constitution, and the claim was filed in a California federal district court in 1945. n153 While the school districts claimed to segregate students for the purpose of language instruction, the district court concluded that the student assignment process was sometimes com-pleted on the basis of the student's name alone, with no knowledge of the student's English language proficiency. n154 Latino students in California never were segregated at the demand of a state statute, but the district court concluded in Mendez that because the practice of segregating Latinos in public schools violated the state and federal constitutions, n155 the plaintiffs were entitled to injunctive relief so the defendant school districts could no longer segregate Latino students. n156 Specifically, the court held:

"The equal protection of the laws" pertaining to the public school system in California is not provided by furnishing in separate schools the same technical facilities, text books and courses of instruction to children of Mexican ancestry that are available to the other public school children regardless of their ancestry. A paramount requisite [*1774] in the American system of public education is social equality. It must be open to all children by unified school association re-gardless of lineage. n157 Importantly, the district court discussed a state statute under which schools could legally segregate students. n158 This statute was the successor to the statute reviewed in the Lemon Grove case and was titled "Schools for Indian children, and children of Chinese, Japanese, or Mongolian parentage." n159 Similar to the municipal court in the Lemon Grove case, the federal district court concluded that the statute was "not pertinent to this action" n160 because, as the court had previously noted, "it is conceded by all parties that there is no question of race discrimination in this action." n161 While the plaintiff class was described as those of Mexican "extraction," "descent," or "ancestry," n162 their race was not disputed because the court presumed that the Latino plaintiffs were racially White. n163 The NAACP filed a cau-tious amicus brief in Mendez at the appellate level, introducing social science evidence about the general harm of segre-gation. n164 Another amicus brief filed by lawyer and historian Carey McWilliams focused on the specific harm of seg-regation in the educational context. n165 The Ninth Circuit Court of Appeals affirmed the district court's decision, but the social science evidence was not part of its reported decision. n166

An unsigned student note in the Yale Law Journal one year after Mendez noted prophetically that Mendez "has questioned the basic assumption of the Plessy case... . Modern sociological and psychological studies lend much support to the District Court's views. A dual school system, even if "equal facilities' were even in fact provided, [*1775] does imply social inferiority." n167 This comment is particularly insightful because neither court in Mendez took the step that Brown later did of connecting social science studies about segregation to the harm that must be redressed by a court's remedial order. This social science evidence became well known in academic circles a decade after Mendez and was attached as an appendix to appellants' briefs in Brown. n168 Writing many years after both Mendez and Brown, historian Charles Wollenburg's words reminded readers of the context in which Mendez must be understood: Mendez "was part of a process which stripped away the formal structure of legalized segregation and exposed the underlying conditions of racism and reaction that divide the American people and plague their consciences." n169

The court has ignored the history of Latino/a school segregation inits attempts to desegregate Kristi L. Bowman, 2001 NOTE: THE NEW FACE OF SCHOOL DESEGREGATION,50 Duke L.J. 1751

The next major step towards achieving equal educational opportunity for all students - and the one known by most Americans today - was the landmark 1954 decision Brown v. Board of Education. n170 While Brown declared in Chief Justice Earl Warren's now famous words that "separate educational facilities are inherently unequal," n171 it omitted any reference to Mendez or, indeed, to Latino segregation at all. A distinction can be drawn that the Brown decision was premised on racial segregation, which had not been directly at issue in Mendez, according to the district court. Factual distinctions aside, the reasoning in Mendez not only was rare in American jurisprudence, it also was quite applicable to Brown. Inequality based on separation is unconstitutional when the separation is premised on a fallacious assumption of difference. Despite this analytical similarity, neither the parties nor amici in Brown cited Mendez in their briefs to the Supreme Court. n172 The fact that the Court did not mention Mendez [*1776] is especially surprising in light of Chief Justice Warren's personal experience:

The Mendez decision ... led to California's repeal of its school segregation statutes. Then Governor Earl Warren signed legislation repealing California's segregation statutes on June 14, 1947. This was, of course, the same Earl Warren who, as Chief Justice of the United States, would later pen the opinions in Brown v. Board of Education and Hernandez v. Texas. n173 The Court decided Brown a mere twelve days after it announced its opinion in Hernandez v. Texas, n174 where the Court declared Latinos to be a protected class in the context of jury eligibility. n175 Interestingly, Latino school segre-gation was noted as an indicator of Latinos' socially created "difference" in Hernandez. n176 Therefore, the Court was considering the issues of Latino identity and of school desegregation concurrently. Because the Court carefully dodged the question of Latinos' racial identity in Hernandez, though, it is not surprising that the Court did not address the ques-tion of Latino school segregation in Brown. After all, Brown occurred within the familiar Black-White binary.

Kristi L. Bowman, 2001 NOTE: THE NEW FACE OF SCHOOL DESEGREGATION,50 Duke L.J. 1751 The Black-White binary of the past forced Latinos into one of two categories when they fit into neither. The frequent racing of Latinos as White by the courts did not lead to similar experiences for Whites and Latinos. In 1973, the Supreme Court's endorsement of the White-Non-White paradigm and designation of Latinos as Non-White in Keyes v. School District No. 1 n177 would seem to have benefited Latinos. Instead, this new framework merely continued to keep Latinos invisible. The inequality resulting from Latinos' invisibility will continue as long as racial and ethnic groups are defined by reference to the normalized standard of White.

A. The Supreme Court Speaks While Brown introduced the Black-White paradigm into school desegregation litigation, Keyes v. School District No. 1, challenging school segregation in Denver, introduced the White-Non-White paradigm into Supreme Court jurispru-dence nearly twenty years later. n178 Keyes has been hailed as the decision that brought school desegregation to the North. Notably, it was the first Supreme Court case to hold that statutory segregation was not required for a district to be found liable for de jure segregation. n179 Thus, Keyes was the basis for a new wave of litigation. However, Keyes almost never is recognized for its significant holding that Latino students should be classified with African American students as Non-White for purposes of school desegregation. n180

For sixteen years, no court interpreted Brown to prohibit the segregation of Latino students. Then, in a span of three months in 1970, two federal district courts held that Latinos should be considered distinct from Whites in the context of school desegregation. n181 In [*1778] the Corpus Christi, Texas, school district, nearly half the students were Latino, nearly half were White, and approximately 4% were African American. n182 In the case arising out of this school sys-tem, Cisneros v. Corpus Christi Independent School District, the district court held that Brown protected Latino students n183 and that the segregation of both Non-White groups resulted in a constitutionally impermissible dual school system. n184 The Fifth Circuit affirmed two years later, correctly anticipating the Court's decision in Keyes. n185

Similarly, in Denver the demographic composition of the public school system in 1968 did not fit the Black-White binary: approximately 71% of the students were White, 13% were African American, and 16% were Latino. n186 Aware of this problem, the school board adopted resolutions to desegregate the Denver schools by changing attendance boundaries. n187 Before the resolutions were fully implemented, however, a newly elected school board rescinded the resolutions and implemented a voluntary exchange program. n188 In the school desegregation suit filed in 1968, Keyes v. School District No. 1, the district court found the school system liable for intentional segregation and entered a reme-dial order. n189 The district court considered Latinos Non-White n190 and concluded that a Denver school with 70-75% Latino or African American students would be considered impermissibly racially identifiable. n191 It distin-guished between Latino and African American students n192 and noted the "desirability (even though it is not constitu-tionally mandated) of having both Negroes and Hispanos in [*1779] the desegregated schools on as close to an equal basis as possible." n193 The Tenth Circuit affirmed in part, reversed in part, and remanded the case, but it did not ques-tion the designation of Latinos as Non-White. n194

When Keyes was argued in the Supreme Court one year later (in 1972), 66% of students in the Denver school sys-tem were White, 14% were African American, and 20% were Latino. n195 The Supreme Court held in part that on re-mand the district court in Keyes should consider African Americans and Latinos to be part of the same group for pur-poses of school desegregation. n196 Denver schools that had 70-75% Latino students, African American students, or a combination of Latino and African American students were held to be impermissibly racially identifiable. n197 The Court acknowledged its decision in Hernandez v. Texas n198 that Latinos can constitute a constitutionally protected class but relied upon the report of the United States Commission on Civil Rights to conclude that "though of different origins, Negroes and Hispanos in Denver suffer identical discrimination in treatment when compared with the treatment afforded Anglo students." n199 Thus, the Court announced no reason to distinguish between Latino and African Ameri-can students.

In Keyes, the Supreme Court collapsed the Latino and African American narratives of segregation and discrimina-tion by making Latinos, who had been raced White by courts (and would continue to be raced White by the U.S. Census Bureau), Non-White for purposes of school desegregation. These new lines of group identification are easily recogniz-able in the terms "minority" and "majority," - meant to be racial and ethnic descriptions - which pervade not only con-temporary school desegregation litigation, but also American popular culture. The employment of the White-Non-White paradigm through the use of "minority" and "majority" classifications leads to a shallow understanding of the range of

educational experiences among Non- [*1780] White students. By denying these differences, courts do not allow African Americans and Latinos to benefit similarly from Brown. n200

Differences b/w African Americans and non-White non-African Americans exist and ignoring them jeopardizes the struggle for equalityKristi L. Bowman, 2001 NOTE: THE NEW FACE OF SCHOOL DESEGREGATION,50 Duke L.J. 1751While Latinos and African Americans share the common bond of being consistently viewed as other-than-White in the context of school desegregation litigation, significant differences between the two groups remain. The differences start on a fundamental level: while African Americans are presumed to have United States citizenship and to have been so-cialized as Americans, this presumption does not exist for non-African American Non-Whites, including Latinos. n212 An additional presumption of "foreignness" layered upon Latinos' group identity relates to language. n213 Because ap-proximately one-third [*1782] of all Latinos in the United States tend to be immigrants, n214 more Latinos (than Whites or African Americans) have a need to improve their English language skills. The recent "English only" move-ment, echoed in the attacks on bilingual education, reveals hostility to Spanish speakers and emphasizes the presump-tion of foreignness. n215 Latinos recognize these many layers of assumptions when they are manifested in the form of discrimination against Latinos as an identifiable group. n216

Latinos' socioeconomic inequality vis-a-vis Whites and African Americans is echoed in the educational realm. Lati-nos have the highest high school drop-out rates: in 1998, 30% (1.5 million) of Latinos aged sixteen to twenty-four had dropped out of school, compared to only 8% of Whites and 14% of African Americans the same age. n217 Of the dropouts, 40% of the Latinos had less than a ninth-grade education when they left school, compared to 13% of Whites and 11% of African Americans. n218 Although the number of Latinos attending a college or university has increased dramatically over the past twenty [*1783] years, n219 Latinos still attend a college or university in lower proportions than Whites or African Americans. n220

The disparities reach beyond the realm of attendance and graduation rates. Social science research has rarely fo-cused on the contemporary educational segregation of Latinos, but the limited research in this area suggests that Latinos suffer disproportionately from school segregation. n221 The President's Advisory Commission on Educational Excel-lence for Hispanic Americans has reported that Latinos are "more segregated" and "more concentrated in high-poverty schools than any other group of students." n222 Latinos' concentration in high-poverty schools has increased at an alarming rate: between 1988 and 1993, the likelihood that a Latino student would be in a high poverty school increased from 14% to 40%. n223 Comparable rates for Whites increased from 7% to 8%, and African Americans' likelihood in-creased from 11% to 25%. n224 Latino school segregation has "remained in an unbroken pattern of increasing segrega-tion" since the 1960s, n225 and it dramatically increased in the 1970s and 1980s. n226

Although segregated Latino schools often share characteristics of segregated African American schools (poorer students than in White or inte-grated schools, lower levels of competition, significantly higher dropout rates, and low scores on college entrance exams by those who [*1784] do finish), n227 recent school desegregation litigation initiated by African Americans has not necessarily been helpful to Latinos. n228 Professor of Edu-cation and Social Policy Gary Orfield has recognized what most courts do not: a trial and a resulting remedial order that treat African Americans and Latinos the same do not sufficiently allow for the dramatic differences in the contemporary experiences of Latinos and African Americans. While the characterization of Latinos as Non-White demonstrates a need for their integration with White students, such classification results in the tangible harm of increased segregation of Latinos, and the denial of fundamental differences, such as English language speaking ability. These results relate directly to the concentration of Latinos in high-poverty schools, and also likely relate to Latinos' high drop-out rates and thus economic inequality. Quantify-ing this harm, the President's Advisory Commission on Educational Excellence for Hispanic Americans stated, "[a] social disaster is in the making. The continued denial of the tools of excellence will exact a high economic toll on individual Hispanics, the Hispanic community, and the nation as a whole." n229

When the African American and Latino stories are collapsed, both are disadvantaged in intangible ways. Each group is denied its own history and the recognition of its unique present experiences when the characteristic that be-comes most important is that the group is Non-White - that it has been discriminated against by Whites historically and that it is less privileged than Whites currently. These generalizations are technically accurate but dangerously over-broad. Because of their overbreadth, the claims are especially damaging to Latinos. While the African American civil rights struggle is a well-known part of our history, the Latino struggle is not. Characterizing Latinos as merely Non-White for historical purposes can lead to the assumption that Latinos never suffered invidious discrimination because, in the United States, Whites did not systematically enslave Latinos. Similarly, to conclude that Latinos were not discrimi-nated against because they were considered legally White by courts in the 1870s n230 would be akin to arguing that Latinos are not presently discriminated against because the United States Census also classifies [*1785] them as racially White. These interpretations based on the White-Non-White paradigm threaten Latinos' pursuit of equality by assuming the existence of a level playing field where none exist

Kristi L. Bowman, 2001 NOTE: THE NEW FACE OF SCHOOL DESEGREGATION,50 Duke L.J. 1751This Note has argued that race and ethnicity are socially constructed concepts in which society instills meaning and that the Latino identity has been constructed in a self-contradictory manner - at once White and Non-White - because it does not fit within the Black-White binary through which Americans understand race. The issue of Latino identity is further complicated in the context of school desegregation because federal courts have moved from a Black-White to a White-Non-White binary. This new paradigm denies the history of segregation and discrimination against Latinos and fails to recognize the contemporary differences between Latino and African American experiences. As a result of this concep-tual negligence, Latinos are denied the full benefits of Brown. The question that must be asked is what should be done to improve this difficult situation. In this final part, several alternatives will be proposed to minimize Latinos' educa-tional segregation - including options that do not directly involve the courts.

A. Racial and Ethnic Balancing in the Present System: Considering Latinos Separately The most obvious remedy to the present inequality would be to consider Latinos and African Americans separately for purposes of establishing racial and ethnic balance in school districts. In school districts with substantial African Ameri-can, Latino, and White student populations, this approach might be both appropriate and feasible. Courts could consider this measure sua sponte, or the parties to the litigation could propose it. Although this measure would rely on some out-moded standards of racial and ethnic classification, such classification would address many of the issues discussed in this Note by making Latinos a visible group.

When courts acknowledge the history and contemporary situation of Latino students, they can craft remedial orders that consider those students' unique needs. The Supreme Court has held that every school in a community is not re-quired to be a mirror image of the specific racial and ethnic composition in the surrounding community. n243 Currently, courts overseeing school desegregation ensure that schools' enrollment approximates the White-Non-White balance in the community, but courts do not distinguish among Non-White [*1789] groups. Courts are not precluded, however, from considering Latino and African American students' distinct needs without binding districts to strict mandates of multi-group racial and ethnic balance where such balancing is impractical. Because of Latino students' concentration in large urban areas, n244 many smaller school districts will have such a low percentage of Latino students that to consider them separately from African Americans for purposes of racial and ethnic balancing would be a logistical nightmare. In these situations, awareness of and attention to differences between Latinos and African Americans through means less restrictive than racial balancing would address present inequalities, especially when narrowly tailored to specific school systems. It also would promote desegregation of Latino students.

RACE GOES BEYOND BLACK AND WHITE- ASIAN AMERICANS HAVE HIS-TORICALLY BEEN MARGINALIZED BY ANTI-RACIST MOVEMENTS.Nolan 2003 [Laurence, Prof. of Law @ Howard, “Yellow: Race in America Beyond Black and White - An Interesting Read for the Great Dissenter in Plessy v. Ferguson , by Frank H. Wu. Book Review. 47 How. L.J. 87] lexis.

On the eve of the fiftieth anniversary of Brown v. Board of Education, n1 Professor Frank H. Wu's recent book, Yellow: Race in America Beyond Black and White, is a timely reminder of Plessy v. Ferguson. n2 Plessy issued in the era of the constitutional doctrine of "separate but equal." n3 Brown overruled that doctrine in 1954. n4 Moreover, [*88] Plessy presents what appears to be the Supreme Court's paradigm of race in Amer-ica in 1896: two races, the black and the white. Justice Harlan's lone dissent, however, re-jected the "separate but equal" doctrine in the black/white paradigm. n5 Today, according to Yellow, this paradigm continues to inform much of the jurisprudence on race. A funda-mental premise of Yellow is that this black/white paradigm of race is too narrow a focus in the jurisprudence on race when there are other Americans who are neither black nor white. n6 Yellow invites the reader to see how and why race has mattered, does matter, and will matter in the experience of Asian Americans in America and why the paradigm on race should be expanded to include "the others." n7

Because many of the themes in Yellow parallel those in Justice Harlan's dissent in Plessy, the major focus of this review will be to rethink his dissent in the context of Yel-low's thesis that the paradigm on race should be expanded beyond black and white in confronting racism, racial discrimination, and racial disparities in the larger framework of a comprehensive look at race in America. Part I will present an overview of Yellow. Part II will discuss whether Plessy's dissent offers any insight into Yellow's call for a dialogue that extends race beyond black and white despite the fact that Yellow is critical of both Justice Harlan and of Plessy's dissent. Part III will explore why Yellow may be an inter-esting read for Justice Harlan and will also comment on the "enigmatic justice" with re-spect to his social attitude toward blacks and the Chinese. Part IV will attempt to recon-cile Yellow and [*89] Plessy's dissent in determining how to confront racism, racial dis-crimination, and racial disparities in a framework beyond black and white. Part V will summarize the challenges in expanding the paradigm. Finally, the review will conclude by emphasizing the need for discussions on race to include "other" Americans who are neither black nor white.

Professor Wu's choice of using Yellow as the title of his book is a creative approach to begin his dialogue with the reader n8 that race in America is beyond black and white. One reviewer has noted that Yellow's book jacket also gets the reader's attention. He de-scribes it as a "day-glow yellow cover screaming from the bookshelves." n9 Ironically, even the term Asian American is beyond Yellow. n10

For non-Asian Americans, Yellow presents a comprehensive discourse on the experi-ences of Asians and Asian Americans in America, revealing that there has been both his-torical and ongoing discrimination against them, and that they do not enjoy social equal-ity because of their race. In this respect, their history is similar to other minority groups in this country: suffering discrimination because of race in the context of white supremacy. Therefore, American racial problems are more than black and white. n11 From the per-

spective of Asian Americans, Professor Wu writes: "Race is more than black and white, literally and figuratively. Yellow belongs. Gray predomi- nates." n12

Thus, "Asian Americans do not automatically side with either blacks or whites" n13 on issues. They may be "fungible" with either, or separate and independent from either. n14 Affirmative action is such an [*90] example. Professor Wu devotes an entire chap-ter to affirmative action. n15 He is a proponent of affirmative action and presents a co-gent argument for his position. On the other hand, he carefully examines the positions of other Asian Americans who oppose or who are indifferent to affirmative action. n16 He concludes that they have been misled by others who are opposed to affirmative action, and who have inserted the Asian American in their debate to argue that Asian Americans would be disadvantaged. n17 After investigation, however, these claims of Asian Ameri-cans being disadvantaged in higher education were found not to be the result of affirma-tive action programs. n18

ACADEMIC SUCCESS DOES NOT MEAN THAT ASIAN-AMERICANS ARE NOT DISCRIMINATED AGAINST. THE “MODEL MINORITY” VIEW LOCKS THEM INTO BEING PERPETUALLY FOREIGN AND SUBJECT TO XENOPHOBIC HATE.Nolan 2003 [Laurence, Prof. of Law @ Howard, “Yellow: Race in America Beyond Black and White - An Interesting Read for the Great Dissenter in Plessy v. Ferguson , by Frank H. Wu. Book Review. 47 How. L.J. 87] lexis.

Professor Wu argues that many Americans today, especially whites, are surprised when they hear Asian Americans complaining about race and discrimination, especially when they seem to be doing so well educationally and economically and when they seem to have assimilated into mainstream American society (white America). He attributes some of this misunderstanding, that Asian Americans are not discriminated against, to both the paradox of the model minority myth n19 and the perpetual foreigner syndrome. n20 He devotes an entire chapter to each.

Furthermore, Professor Wu argues very convincingly, that racial discrimination and racial prejudice have been and continue to be a part of the Asian and Asian American ex-perience. n21 He laments that until recently, public education, literature, movies, and television neglected [*91] to mention any facet of these experiences, neither the positive nor the negative ones. n22

Yellow presents numerous examples, including Professor Wu's own personal exam-ples, of how race negatively underlies many of America's most mundane perceptions. Professor Wu notes that he often finds himself answering the question of why he is teach-ing at Howard University. n23 Would he be asked that same question, he ponders, if he, as an Asian American, were teaching at a predominately white university instead of a predominately black one? n24 He doubts it because he would be doing what is expected of an Asian American, that is, teaching at a white university. n25 He is also annoyed by the question that often follows from the inquiry, "Where are you from?" Instead of ac-cepting his answer, he is asked again, "Where are you really from?," n26 even though he is conversing in perfect, unaccented English. n27 Another example Professor Wu shares is that on a subway or walking down the street, a white or black boy upon seeing him, will "strike a karate pose, chop at the air, throw a kick, and utter some sing-song gibber-ish, before turning around and running away." n28

[*92] Professor Wu concludes Yellow with a chapter on coalition building. n29 In fact, Professor Wu's description of the evolution of the term "Asian American" is an ex-ample of coalition building even though the federal government did help with the is-suance of Directive No. 15 n30 as well as the launching of the Yellow power movement. n31 As he points out, the coalition of the diverse groups now identified as Asian Ameri-can "have made the idea operational by emphasizing a pan-Asian American basis for their activities in academic ... settings." n32 He suggests coalition building among racial minorities as one approach to "re-forming" the civil society. n33 As one racial minority builds a coalition with another, both will be helping one another in confronting mutual problems, n34 though he does note some of the difficulties in coalition building even

among Asian Americans. n35 He is also cognizant of the many challenges to coalition building between the black and the yellow. For example, some question whether Asian Americans form a minority group. n36 There is also a belief by some that Asian immi-grants have made it "on the backs of blacks." n37 Nevertheless, both groups face a com-mon concern: racism in the context of white supremacy.

Yellow has an abundance of information contained between its covers. This abun-dance is both a plus and a minus. Some of the information may be treated too hurriedly for readers unfamiliar with Asian American issues. n38 Other readers (especially non-lawyers) may also [*93] find parts of the book somewhat tedious reading, both because of the abundance of the information and because of Professor Wu's legalistic writing style. One reviewer has noted that his writing may lack the poetry or compelling narra-tives of others who have written about the Asian American experience, but "the law pro-fessor excels at using logic to unclothe the inconspicuous manifestations of racial think-ing." n39 Nonetheless, Professor Wu's use of autobiographical narrative to help him de-pict the Asian and Asian American experience makes Yellow a satisfactory read in many respects. Other minorities, including ethnic white minorities, may find their own experi-ences resembling many of those of Asian Americans, notwithstanding that each is differ-ent. Finally, Yellow should remind non-Asian Americans to ask themselves whether they are guilty of discriminating against or stereotyping Asians or Asian Americans.

RACE JURISPRUDENCE CREATES AND PERPETUATES A BLACK/WHITE PAR-ADIGMNolan 2003 [Laurence, Prof. of Law @ Howard, “Yellow: Race in America Beyond Black and White - An Interesting Read for the Great Dissenter in Plessy v. Ferguson , by Frank H. Wu. Book Review. 47 How. L.J. 87] lexis.

There are several themes in Plessy's dissent, often overlapping in their analyses or one theme supporting the analysis of another. They are also reflected in Yellow. Such themes, for example, as race, the black-white paradigm, citizenship, white supremacy, racial equality, the "color-blind" constitution, the perpetual foreigner syndrome, and coalition building are arguably reflected in both. Thus, there is no dispute that Plessy and Yellow are both about race in America.

1. Race and the Black/White Paradigm Though the rationales of the majority n42 and the dissenting opinions in Plessy differed, all of the justices, nevertheless, saw race in America as black n43 and white. This may be understandably so, at least [*95] from the standpoint that the Louisiana statute regulated the use of a public highway by citizens of the United States solely upon the basis of race, the black and white races, and no other race. n44 The opinions of the justices, however, convey that from their perspective the race problem in America was about the black and the white races. The references to other races or ethnic groups were merely used to sup-port their analyses as to the constitutionality of the statute. The majority, in rejecting that the statute violated the Thirteenth Amendment, argued that the Slaughter-House Cases n45 held that the Amendment was intended to abolish slavery, and equally was to forbid Mexican peonage or the Chinese coolie trade, when these amounted to slavery or invol-untary servitude. n46 The majority, again, referred to the Chinese race in its explanation that the statute was not like the one in Yick Wo v. Hopkins, n47 where the Supreme Court held that the statute in that case was "a covert attempt on the part of the municipal-ity to make an arbitrary and unjust discrimination against the Chinese race." n48

Similarly, in supporting his analysis that the Louisiana statute was unconstitutional, Justice Harlan referred to the Chinese race to help him make that point. The Chinese, who, in 1896, were for the most part legally excluded from the country and could not be-come citizens through naturalization, would be able to ride on rail cars with whites be-cause the statute did not apply to them. On the other hand, as Justice Harlan argued, citi-zens, black citizens, were legally restricted [*96] from riding with white citizens while non-black, non-citizens could. In making his point, however, his language about the Chi-nese is insulting and insensitive, and to the modern ear, racist. n49

Furthermore, at the time of the Plessy decision, according to the United States Census data for 1890, in addition to approximately 62,000,000 whites and approximately 7,500,000 blacks, there were 248,000 persons classified together as American Indians, Eskimos and Aleuts, and approximately 109,527 persons classified as Asian and Pacific Islander. n50 Yet, even though these numbers are small for "the others," Justice Harlan, as well as the majority, seemed to see Americans, then and in the future, as either black or white. n51 He wrote, "the destinies of the two races, in this country, are indissolubly

linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law." n52

JUSTICES, IN THE MOMENTS WHERE THEY PROMOTED CIVIL RIGHTS FOR BLACKS, WENT OUT OF THEIR WAY TO EXCLUDE ASIANS FROM A LEGITI-MATE PLACE AS CITIZENS OF THE UNITED STATES.Nolan 2003 [Laurence, Prof. of Law @ Howard, “Yellow: Race in America Beyond Black and White - An Interesting Read for the Great Dissenter in Plessy v. Ferguson , by Frank H. Wu. Book Review. 47 How. L.J. 87] lexis.

It is quite evident from Justice Harlan's dissent that he considered the Chinese perpetual foreigners. "There is a race so different from our own that we do not permit those belong-ing to it to become citizens of the United States. Persons belonging to it are, with few ex-ceptions, excluded from our country. I allude to the Chinese race." n88 Why allude to the Chinese race at all in a case about a Louisiana [*103] statute that affects only the black and white races? What made the Chinese race "so different from our own" and not the black race which the statute affected? Was this a showing of white supremacy by Justice Harlan, or of his personal animosity toward the Chinese race, or both, or neither? n89 If his writing is taken at face-value, he is making a point about the treatment of some citi-zens, whose civil rights were being abridged, in relationship to non-citizens, who were not only foreigners, but foreigners who were not permitted to become citizens. These non-citizens were not denied those same rights. A Chinese person could ride with whites, while blacks could not, because the statute only applied to whites and blacks.

Apparently, the dividing line for Justice Harlan was about citizenship and the civil rights inherent therein. The amended Constitution made blacks part of the people of the United States, and some of them, as Justice Harlan noted, may have "risked their lives for the preservation of the Union." n90 The Constitution protected their civil rights. There-fore, white supremacy, in relationship to the purposes of these amendments to the Consti-tution, could not be tolerated. Yet, Justice Harlan's use of the Chinese race to make a point about blacks fits well within Yellow's discussion of how whites use one minority to attack another. n91 What made the black race no longer so different and inferior, as por-trayed in the Dred Scott case, was a civil war and the Constitutional amendments that made the black race citizens, a part of the "people" of the United States. The Chinese were not part of the "people" of the United States; they were not even permitted to be-come citizens, to become part of the "people." n92 Accordingly, Justice Harlan seems to be reasoning that whereas under the Constitution there is no superior, dominant ruling class of citizens, no caste, there may be such in the case of non-citizens. Thus, under this reasoning, [*104] color-blindness in the Constitution would not extend to non-citizens. n93

5. Race and Coalition Building Coalition building among different groups necessitates a common agenda or common in-terests or common problems, and not hostility and mistrust. In that vein, Justice Harlan was concerned that the Court's judgment would "prove to be quite as pernicious as the de-cision by this tribunal in the Dred Scott case." n94 He writes that "the destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted

under the sanction of the law." n95 This decision, he observed, upheld a statute that would create and perpetuate a feeling of distrust between these races because the statute proceeded on the basis that black citizens were inferior to whites and were segregated from them. n96 On the other hand, Justice Brown, writing for the majority, had no doubt that the statute was about social equality. For him, coalition building for social equality "must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals." n97

THE BLACK/WHITE BINARY ORIGINATED IN THE COURTS AND CONTINUES TO THIS DAY AS A WAY TO EXCLUDE ASIANS AS PERPETUAL FOREIGNERSNolan 2003 [Laurence, Prof. of Law @ Howard, “Yellow: Race in America Beyond Black and White - An Interesting Read for the Great Dissenter in Plessy v. Ferguson , by Frank H. Wu. Book Review. 47 How. L.J. 87] lexis.

Yellow offers a perspective of the race problem in America in the twenty-first century and calls for a dialogue that extends race beyond black and white. Yellow's thesis is that this black-white paradigm is too narrow a focus because there are other Americans who are neither black nor white, in particular, Asians, the yellow. Can a dissent in a 1896 case offer any insight into that dialogue? To begin an effort to answer that question, Plessy's dissent focuses on race, as black and white, introduces the concept of the color-blind con-stitution and with its related issues, n98 discusses citizenship and civil rights, and [*105] identifies the Asian (Chinese) as a perpetual foreigner. Apparently, as Yellow contends, these issues still remain problems, and they continue to inform race jurisprudence in the twenty-first century.

ASIANS SHOULD BE MORE THAN JUST A FOOTNOTE IN THE DOMINANT DISCOURSE ON RACE JURISPRUDENCE AND SCHOLARSHIP- THIS EXCLU-SION IS DEBILITATING FOR RACE RELATIONS IN AMERICANolan 2003 [Laurence, Prof. of Law @ Howard, “Yellow: Race in America Beyond Black and White - An Interesting Read for the Great Dissenter in Plessy v. Ferguson , by Frank H. Wu. Book Review. 47 How. L.J. 87] lexis.

Yellow discusses several reasons for expanding the paradigm beyond black and white. The obvious reason is that in America, "race is more than black and white." n99 Many Americans, including Asian Americans, are neither black nor white. By discussing race as either black or white, Yellow asks, "Where do Asian Americans belong?" Are they black, white, neither, or either, depending on the circumstances? n100 If words matter, and words in context matter, Yellow argues, and if American means white and minority means black, then Asian Americans are not included. Yellow asserts that books about race "have relegated [Asian Americans] to the margins and footnotes." n101 If everything about race in America is to be complete, they should be included as well as other non-black minority groups. n102 The racial problems of Asian Americans, therefore, are often marginalized and overlooked because they do not fit within the dominant discourse on race. n103

Academics writing on racial issues of other people of color are also recognizing the concept of the black/white paradigm and are raising similar criticisms. Professor William R. Tamayo argues that as to civil rights issues, the black/white paradigm "is ill-equipped to deal with an increasingly multiracial and multicultural America." n104 Professor Juan Perea raises identical criticisms of what he calls the "black/white binary paradigm." n105 The paradigm focuses the discourse and scholarship on race through the lens of the rela-tionships of blacks and whites. It marginalizes and ignores other racialized groups, in-cluding Latinos, Asian Americans, and Native Americans. Writing about [*106] Mexi-can Americans, Professor Perea concludes that by omitting their experiences in their struggles for civil rights, the history of civil rights does not show the true complexity and scope of American racism. n106 Similarly, Professor Richard Delgado recognizes and criticizes the black/white paradigm. n107 Professor Adrienne Davis has remarked that "an historical assessment of the relationship of other groups of color to a black/white par-adigm reveals the paradigm as not only undescriptive and inaccurate, but debilitating for legal analysis, as well as civil rights oriented organizing." n108 Professor Davis provides two nineteenth century cases involving blacks, other groups of color (Native Americans and Asian Americans) and whites. She argues that in each of these cases, where the black/white paradigm of race was in crisis and vulnerable to correction, the force of the paradigm prevailed "reinscribing itself with yet more force in the law and the lives of all three groups implicated." n109 One of the primary mechanisms of the paradigm, Profes-sor Davis asserts, is "its disciplining function on other groups of color seeking legal rights and recognition," n110 which Professor Davis surmises, may result in the court's reason-ing, not so much driven "by the interests of the immediate parties, but rather by a larger, perhaps unconscious, desire to define white identity and secure white liberty interests." n111

THERE IS NO DISAD TO INCLUDING MORE PEOPLE IN RACE SCHOLARSHIP- THIS HELPS THE DIALOGUE GENERALLYNolan 2003 [Laurence, Prof. of Law @ Howard, “Yellow: Race in America Beyond Black and White - An Interesting Read for the Great Dissenter in Plessy v. Ferguson , by Frank H. Wu. Book Review. 47 How. L.J. 87] lexis.

Yellow also argues that expanding the paradigm to include other non-black racial groups may aid the discussion of racism between blacks and whites. Professor Wu writes that introducing Asian Americans into the dialogue about civil rights may make it easier to see how people of all backgrounds operate through sets of racial assumptions and may cause the issues to become less sensitive. n112 Both blacks and whites may see how mul-tiple interpretations can be given to a moment, [*107] which would have little signifi-cance to either blacks or whites, but lasting significance to Asian Americans, and vice versa. n113

One could certainly analogize what Justice Harlan was doing in both of his dissents in Plessy and the Civil Rights Cases to Yellow's thesis. He was arguing that the paradigm of race was no longer the white (unitary) paradigm, but had been expanded to include blacks. The law changed the paradigm. Blacks were now citizens. Moreover, the Thir-teenth and Fourteenth Amendments instituted an equal paradigm under law. n114

MUST BUILD COALITIONS OUT OF NATURAL RACIAL ALLIANCES IN THE FIGHT AGAINST RACISMNolan 2003 [Laurence, Prof. of Law @ Howard, “Yellow: Race in America Beyond Black and White - An Interesting Read for the Great Dissenter in Plessy v. Ferguson , by Frank H. Wu. Book Review. 47 How. L.J. 87] lexis.

Expanding the paradigm may be problematic and challenging. The various minority groups of people of color are diverse and complex as are their racial histories in America. For blacks, who are still waiting for the promises of full citizenship, there is the obvious question of how an expansion would affect their interests. Would it lessen the focus on their struggle for full citizenship? As Yellow points out, some Asian Americans have done so well that they are thought of as the model minority, even to the extent that some have reached the status of "Anglo." n115 But, as Yellow also makes clear, the various groups lumped together as Asian Americans have their own, unique racial discrimination issues. n116 Thus, not all Asian Americans fit within the model minority. It is a myth that has obscured many of the realities of racism against Asian Americans. n117 How many non-Asian American minorities, however, are aware that it is a myth? They only see the positive results of the myth, with them being left further behind, and resentment may sur-face. n118 Nevertheless, Yellow makes a strong case that the myth has distorted the fact of racism against Asian Americans.

Coalition building requires cooperation and usually self-interest from the perspective of benefiting from the participation. n119 For example, [*108] there was a natural coali-tion between blacks and Mexican Americans leading up to Brown v. Board of Education. An earlier case affecting segregated schools involving Mexican American children in California, Mendez v. Westminister School District, n120 inspired the new approach to attacking segregation per se in education, n121 and was useful as a dry run in preparation for arguments used in Brown. n122 As Judge Motley has written, n123 two of the trial court's findings were very important for the purposes of the Brown litigation. First, the court found that although the facilities of the white and the Mexican American schools were equal, "a paramount requisite in the American system of public education is social equality." n124 Second, the court stated that "it is also established by the record that the methods of segregation prevalent in the defendant school districts foster antagonisms in the children and suggest inferiority among them, when none exists." n125 When the case was appealed, the NAACP Legal Defense Fund filed an amicus brief, authored by Thur-good Marshall, Robert L. Carter, and Loren Miller, urging the United States Court of Ap-peals for the Ninth Circuit to uphold the district court's decision to desegregate the school system. n126 The appellate court upheld the district court's decision, but on the rationale that the school administrators had acceded their authority to create segregated schools be-cause the California statute did not expressly mention Mexican Americans. n127

As another example of coalition building, there is a natural coalition between Asian Americans and Latinos regarding the perpetual foreigner syndrome and the related issue of language. Blacks are not considered foreigners. They are presumed, along with whites, to be citizens of the United States. While, as both Yellow and Professor Perea stress, even

after several generations, most Asians and many Latinos are not presumed to be citizens, but presumed to be foreigners. n128 [*109] This presumption is fortified even more so if they do not speak English. Thus, there is a common sensitivity among Asian Ameri-cans and Latinos regarding current immigration issues.

On the other hand, affirmative action, however it is defined, is of the utmost impor-tance to most blacks. As Yellow discusses, Asian Americans may not have the same in-terest in affirmative action if that policy is not beneficial to them. When it comes to affir-mative action in educational programs, many Asian Americans see affirmative action as a policy that may affect them adversely by limiting their numbers. n129 However, where affirmative action is beneficial to them, such as breaking the glass ceiling in the corporate world, more Asian Americans will support affirmative action. n130 Conversely, many Mexican Americans support affirmative action because of its benefits to them.

COALITION BUILDING IS DIFFICULT BECAUSE IT IS HARD FOR ASIAN IS-SUES TO GET RECOGNIZED IN A NATION WHERE RACE ISSUES ARE DE-FINED IN BLACK AND WHITENolan 2003 [Laurence, Prof. of Law @ Howard, “Yellow: Race in America Beyond Black and White - An Interesting Read for the Great Dissenter in Plessy v. Ferguson , by Frank H. Wu. Book Review. 47 How. L.J. 87] lexis.

Yellow acknowledges the difficulties in expanding the paradigm. n131 Except for coalition building, Yellow does not provide very much of a road map to accomplish the task. Coalition building is difficult even among Asian Americans. n132 This lack of a better road map is not so much a criticism of the book, but rather it shows the reality of the complexities of race and racism even among subordinated groups. In fact, Professor Wu states that because of the nature of this project, Yellow is published in incomplete form. n133 Such a task to develop a road map must be the hard work of all the partici-pants. Yellow's call for a dialogue would probably be the beginning of that task. n134

Plessy's dissent also acknowledges the difficulties in paradigm expansion and coali-tion building although the dynamics were different between the two groups in 1896. Blacks were the subordinated group, struggling for full citizenship, in relation to whites. Although the paradigm expanded to include blacks, opposition to equality by whites kept the paradigm with whites on top and blacks at the bottom. n135 In expanding the present paradigm, the relation between blacks and [*110] other minority groups are similar in their relationship to whites: each a subordinated group in some respect, struggling for full citizenship. Nevertheless, they are seemingly at different stages in their struggles, which may result in clashes among these minority groups and even within a group. These differ-ences impede coalition building and enhance the potential for the developing of factions.

PARADIGM OF SOCIAL AND CIVIL EQUALITY, DEFINED IN SHADES OF GREY SO THAT IT ELIMINATES THE HIERARCHY OF COLOR IN SOCIETY IS KEY TO FORMING COALITIONS ACROSS RACES TO DEFEAT THE SYSTEM.Nolan 2003 [Laurence, Prof. of Law @ Howard, “Yellow: Race in America Beyond Black and White - An Interesting Read for the Great Dissenter in Plessy v. Ferguson , by Frank H. Wu. Book Review. 47 How. L.J. 87] lexis.

Again, the central argument for expanding the paradigm is that the paradigm does not ad-equately address the issues of the other diverse groups of people of color. Yellow is not calling for the rejection of the black/white paradigm, only its expansion. n136 Neverthe-less, how would the new paradigm look and function? Would the new groups function as a wedge group, dividing the groups and causing clashes among them? n137 Would the outcome of the expansion create further hierarchies, with the other groups falling in the middle, but still with whites at the top and blacks still at the bottom? Yellow notes that the model minority myth reinforces racial hierarchies. n138 Asian Americans become pawns in the hands of whites against other minority groups. Whites ask: "If one minority group has made it, why haven't the others?" n139 The model minority, however, is just a myth, which has obscured racism toward Asian Americans. Therefore, this effect of the model minority myth becomes one of the arguments for the inclusion of Asian Americans in the paradigm.

Under the heading, "Literal Yellow, Figurative Gray," Professor Wu writes: "Race is more than black and white, literally and figuratively. [*111] Yellow belongs. Gray pre-dominates." n140 What do these words mean in forming the new paradigm? Is each color equal to form gray thus, eliminating hierarchies? If so, this idea is a future goal because equality is not presently found in the black/white paradigm. The heading seems to be re-ferring to yellow as gray, and not yellow as yellow. n141 Does that mean gray is posi-tioned between white and black? Is this back to a hierarchy, or does this mean that the Asian American minority group is a shade of each because they "do not automatically side with either blacks or whites." n142 Here again, Yellow falls short in not being more definitive about the formulation of the new paradigm. n143

COLORBLINDNESS IS ITSELF A FORM OF RACIAL DISCRIMINATIONNolan 2003 [Laurence, Prof. of Law @ Howard, “Yellow: Race in America Beyond Black and White - An Interesting Read for the Great Dissenter in Plessy v. Ferguson , by Frank H. Wu. Book Review. 47 How. L.J. 87] lexis.

According to Harlan's dissents in Plessy and in the Civil Rights Cases, the paradigm would be equality under law. His argument with the majority in each case was that blacks and whites were equal under law because of the constitutional amendments. But, what about social equality, another aspect of citizenship? Justice Harlan is silent except that he considered public accommodations as a part of civil rights in both cases while the major-ity opinions did not. Yellow criticizes Justice Harlan as being a hypocrite and duplicitous in his inception of color-blindness in only perceiving it as formal equality. n144 Professor Wu interprets Justice Harlan's language about the white race deeming itself as the domi-nant race as Justice Harlan's expectation "that by acceding to color blindness in law, 'the white race' will protect its role as the 'dominant race in this country.'" n145 Thus, in every other way, Professor Wu concludes that Justice Harlan considers blacks as inferior. n146

Furthermore, commenting on Justice Harlan's language about the Chinese race, Pro-fessor Wu also concludes that his color-blindness concept was meant for blacks and whites and not for Asian immigrants; thus, giving his color-blindness a racial interpreta-tion. n147 According to Plessy's dissent, however, any citizen would be equal in the [*112] paradigm, whatever its scope may be. n148 The Civil Rights Cases also support this conclusion. To-day it is the colored race which is denied, by corporations and indi-viduals wielding public authority, rights fundamental in their freedom and citizenship. At some future time it may be some other race that will fall under the ban. If the constitu-tional amendments be enforced, according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may choose to grant. n149

FORMALIZED EQUALITY PROGRAMS DO NOT WORK- THEY ARE ALWAYS UNDERINCLUSIVE AND FAIL TO ADDRESS THE REASONS BEHIND IN-EQUALITY.Nolan 2003 [Laurence, Prof. of Law @ Howard, “Yellow: Race in America Beyond Black and White - An Interesting Read for the Great Dissenter in Plessy v. Ferguson , by Frank H. Wu. Book Review. 47 How. L.J. 87] lexis.

Harlan's dissent argued that the "separate but equal" doctrine was unconstitutional for two primary reasons. First, it was unconstitutional where public accommodations were concerned because those were civil rights. It is unclear whether Harlan would have con-sidered public education and the liberty to marry anyone as forms of civil rights. Al-though the majority opinion noted that legislation providing for segregated accommoda-tions similar to laws for segregated schools for black and white children n150 and to laws prohibiting intermarriage between the two races, Justice Harlan made no reference to ei-ther in his dissent. He was silent. While he was on the bench, these issues of segregated education and interracial marriages did not come before him directly so that he would have been compelled to confront them. n151 The Plessy majority was certain that, as to social issues, "segregated accommodations" were matters of private consent. n152 Whether Justice Harlan would have interpreted citizenship broadly to include non-segre-gated education and intermarriage is, therefore, debatable. n153 [*113] His second rea-son for finding the "separate but equal" accommodations unconstitutional was that he in-terpreted segregation as a badge of inferiority under the Thirteenth Amendment.

Ironically, Brown overruled the "separate but equal" doctrine in a public education case. n154 Although Brown has been thoroughly criticized for its reasoning, and even called unprincipled, n155 one cannot read Brown without noticing its similarities to Jus-tice Harlan's dissent in Plessy. Both focused their emphasis on citizenship and subordina-tion because of racism. Justice Harlan's focus was on citizenship, civil rights, and the badge of inferiority that segregated coaches generated. n156

Just as Plessy was the final death blow to the reconstruction movement and reaf-firmed "a majority of the population's belief in the inherent inferiority of African Ameri-cans," n157 Brown rejuvenated a new era in the civil rights movements. n158 Brown and its progeny abolished legal discrimination, or as Yellow terms it, sanctioned "formal equality." Yet, the elimination of formal inequality has not been enough. Yellow empha-sizes that the nation, in its movement towards full citizenship must confront racism and its effects before racial justice will happen. For example, regarding the issue of affirma-tive action, Professor Wu suggests that one cannot begin a debate on affirmative action without a focus on the original problems, which formal equality has not solved, and which white Americans and others want to ignore. n159 The problems are racial discrimi-nation and the realities of racial disparities. Why do they persist? Affirmative action, in that context, becomes a question of how do we address the disparities? n160 This turns the issues toward discrimination and toward the questions of when will it end. Thus, as

Yellow contends, if race is used abstractly without history and in the context that blacks and whites were and are already equal, then affirmative action does not look like [*114] a remedial tool to combat the effects of racial discrimination and racial disparities. n161

ASIANS HAVE ASSIMILATED AND THEREFORE THREATENED WHITE DOMI-NANCE- THAT IS NOT A REASON TO IGNORE THEIR OPPRESSION.

Nolan 2003

[*116] Citizenship encompasses the idea of being part of the community. Being part of the community does not occur if one does not have freedom to be in the space where the community congregates (the public), but instead, one is "fenced away" from the dominant group of the community. n173 Justice Harlan did believe that private actions limiting citi-zens in the space where the community congregates, such as hotels, buses, theaters, and the like, were unconstitutional. n174 Similarly, it might be easier to speculate on Justice Harlan's approach to the constitutionality of segregated education if he had seen the rela-tionship between education and citizenship as the Brown court contended, n175 and the effect of segregation on the students. However, both Justice Harlan and the Brown Court analyzed the effect of the "separate but equal" doctrine and reached similar conclusions. n176

Justice Harlan seems to have followed the prevailing sentiments of the late nineteenth century regarding the attitudes of many white Americans toward the Chinese race. Even in public documents, the Chinese might be referred to as obnoxious. n177 Justice Har-lan's voting record on Chinese issues is not completely negative, but as a whole, he voted against such issues. n178 Justice Harlan, who had dissented in the case that would not ex-tend citizenship to Native Americans who no longer were affiliated with a tribe, n179 joined with the dissent in another case that held that native born children of Asian immi-grants were citizens [*117] under the Fourteenth Amendment. n180 Although he did not write the dissenting opinion, he concurred. The dissent refrained from applying the plain meaning approach to interpreting the first part of the Fourteenth Amendment, but instead relied on a technical interpretation of the amendment's requirement of "subject to the ju-risdiction" of the United States. n181

The prejudice against Asians as people so different from Americans made many whites believe that the Chinese would hold onto their own customs and ways and would not assimilate into American culture. n182 Yellow is a testament that Asian Americans have assimilated in America, both figuratively and literally. They seem, as Yellow ob-serves, to be the first group to jeopardize the dominance of white Americans, n183 and their intermarriage with whites is high. n184 Yet, as Yellow has painfully shown, their status as Americans quickly reverts to be seen as non-Americans, as foreigners, perpetual foreigners. "Where are you REALLY from?" Japanese Americans were interned during World War II for being a perceived threat to national security because the United States was at war with Japan while no German Americans were interned, though the United States was at war with Germany.

Perhaps, without being controversial with Yellow's assessment of Justice Harlan, one may modestly conclude that Justice Harlan was ahead of his time as compared to many other whites where race was concerned in 1896, at least about blacks, but still had much to learn, as we all do, about race, racial discrimination, and citizenship.

WE NEED A BETTER SYSTEM OF COALITION BUILDING TO APPROACH RACISMNolan 2003 [Laurence, Prof. of Law @ Howard, “Yellow: Race in America Beyond Black and White - An Interesting Read for the Great Dissenter in Plessy v. Ferguson , by Frank H. Wu. Book Review. 47 How. L.J. 87] lexis.

Yellow has not adequately explained how a new paradigm might be perceived. n185 Both Yellow and Harlan's dissent agree that white supremacy is the historical root of America's racism and racial discrimination. [*118] To read Harlan's dissent, apparently as Yellow does, as pertaining to formal equality is a mere partial reading. Much of Justice Harlan's celebrated language about a "color-blind" Constitution is making the definitive point that this "separate but equal" doctrine is a subterfuge for creating a badge of servi-tude. Such badges are prohibited by the Thirteenth Amendment. Therefore, a plausible interpretation of Harlan's dissent is that his color-blind Constitution is rooted in disman-tling white supremacy. Modernizing his vision of a "color-blind" Constitution in elimi-nating badges of servitude resulting from white supremacy may be a more helpful way of approaching a new paradigm on race, and it may also be helpful in discussing issues of affirmative action, as well.

As discussed below, though Yellow begins a discussion of coalition building, a more developed model of coalition building may prove to be a durable, pragmatic tactic in ap-proaching race and confronting racism. n186

COURTS SHOULD USE THE 13TH AMENDMENT TO REMOVE ALL BADGES OF SERVITUDE ROOTED IN WHITE SUPREMACY- A NEW JURISPRUDENCE CAN EMERGE IN THIS AREANolan 2003 [Laurence, Prof. of Law @ Howard, “Yellow: Race in America Beyond Black and White - An Interesting Read for the Great Dissenter in Plessy v. Ferguson , by Frank H. Wu. Book Review. 47 How. L.J. 87] lexis.

The Thirteenth Amendment is non-existent today in approaching racial issues, seemingly frozen in Justice Harlan's dissents in the Civil Rights Cases and Plessy. n187 The Four-teenth Amendment, especially the Equal Protection Clause, is the basis of modern race jurisprudence. n188 How can one obtain equality before the law unless the "hundred pound elephant in the room" is dealt with? White supremacy is the root of racism and racial discrimination and a hindrance [*119] to facing and dealing with its effects. Therefore, the confrontation is both with the problem and with its effects.

A Thirteenth Amendment approach would recognize that for one group of individuals to obtain equality of citizenship with another group, then, the obstacles to freedom must be identified and addressed. Thus, Harlan's "color-blind" Constitution is not so much based on the Equal Protection Clause, but rather on the Thirteenth Amendment's mandate to remove all badges of servitude and not enshrine the Constitution with them, as was the purpose of the Louisiana statute at issue in Plessy. Removing any traces of badges of servitude rooted in white supremacy was necessary in order for citizens to enjoy the free-dom inherent in citizenship. Thus, Justice Harlan reasoned that this Amendment prohib-ited "the deprivation of any right necessarily inhering in freedom," n189 and the arbitrary separation by race was inconsistent with this Amendment's guarantee of freedom and equality under law. n190 Brown, without referring to the Thirteenth Amendment, recog-nized, among other findings, that the effect of segregated schools was equivalent to a badge of servitude for the black children because they considered themselves inferior.Even though there are anti-caste and anti-discrimination principles inherent in the Four-teenth Amendment, n191 the Thirteenth Amendment, this freedom amendment, directly approaches the issue that badges of servitude are just as lethal to freedom of citizenship as is slavery itself.

13TH AMENDMENT KEY TO SHOWING WHY RACIAL DISCRIMINATION EX-ISTS IN THE FIRST PLACE. WE CAN’T EVEN GET TO EQUAL PROTECTION UNTIL WE GET PAST THISNolan 2003 [Laurence, Prof. of Law @ Howard, “Yellow: Race in America Beyond Black and White - An Interesting Read for the Great Dissenter in Plessy v. Ferguson , by Frank H. Wu. Book Review. 47 How. L.J. 87] lexis.

Thus, before a discussion of treating citizens equally under the Fourteenth Amend-ment can proceed, the Thirteenth Amendment's mandate of dealing with the presence and elimination of all badges of servitude must first proceed. A Thirteenth Amendment analy-sis would show why racism and racial discrimination persist and why affirmative action programs may be needed to remedy their effects, to bring equality among citizens. If af-firmative action issues are discussed under Thirteenth Amendment analysis, the discus-sion would dovetail into Yellow's analysis that there cannot be a debate on affirmative ac-tion without a focus on the original problems of racism and racial discrimination, result-ing in racial disparities. n195

A more productive approach to addressing Yellow's thesis, beyond black and white, therefore, may be to follow a Thirteenth Amendment approach in analyzing racism, racial discrimination and remedying racial disparities in America for non-black minorities as well. For example, the perpetual foreigner syndrome is a badge of servitude for Asian Americans. This Amendment confronts race problems by accepting the principle that freedom or equality comes as a result of dismantling slavery and its vestiges. Thus, a Fourteenth Amendment discussion of racism and white supremacy in connection with equality and anti-discrimination may not be as helpful an approach to obtaining equality and non-discrimination for minority groups than would be a Thirteenth Amendment ap-proach.

NEED TO OVERCOME MISTRUST AND HOSTILITY TO BUILD COALITIONS Nolan 2003 [Laurence, Prof. of Law @ Howard, “Yellow: Race in America Beyond Black and White - An Interesting Read for the Great Dissenter in Plessy v. Ferguson , by Frank H. Wu. Book Review. 47 How. L.J. 87] lexis.

Yellow's call for coalition building is a logical strategy in exploring and developing ways to confront the obstacles that block the realization of full citizenship, not only con-fronting racism and racial discrimination but also confronting ways to remedy their exist-ing effects. The goal of coalition building must not only be for gaining full citizenship for minorities hampered by racism, but also to promote the principles of citizenship and democracy for all. Two recent books are helpful in examining Yellow's strategy for coali-tion building as well as supporting Justice Harlan's truism, stated in his dissent in Plessy, that coalition building and cooperation will not succeed if built on mistrust and hostility. n196

In their book, The Miner's Canary, n197 Professors Lani Guinier and Gerald Torres use the metaphor of the miner's canary to discuss achieving racial justice and a healthy democratic process. n198 The metaphor refers to the practice of miners, who, in former times, often took a canary with them into the mine. Because of the canary's fragile respi-ratory system, the little canary would collapse from noxious gases, and thus, alert the miners to the presence of dangerous gases so that they could leave before being harmed. The Miner's Canary compares persons who are racially marginalized to the canary. n199 Their distress is the first sign of danger, which will affect all Americans if "[they] ignore the problems that converge around racial minorities." n200 These problems are symp-toms of the danger. Thus, people of color, the racially marginalized, are the best protec-tors of democratic principles, which are threatened because of the danger: racism. The authors believe that achieving racial justice and ensuring a healthy democratic process, can be achieved through cross race-relationships of coalitions. n201 They use the metaphor of the canary with a concept they call "political race." "Political race seeks to construct a new language [*122] to discuss race, in order to rebuild a progressive demo-cratic movement led by people of color but joined by others." n202 Race-consciousness, as opposed to color-blindness, is the focus. Thus, these are coalitions being led by mi-norities, with racial identity in the forefront. The authors provide a number of recent events in which a coalition of groups worked out a solution. n203 The important point, the authors emphasize, is that the solution benefits everyone, not just the minority groups.

Professors Guinier and Torres make similar points about racial identity groups that Professor Amy Gutmann makes in her book, Identity in Democracy, n204 in assessing the value of identity groups generally in American democracy. These identity groups are natural because they represent who some of the people are in America. n205 Identity groups should not be abolished from democratic politics unless they impede justice. n206 The litmus test for both Professors Guinier and Torres and for Professor Gutmann is whether the group is using its identity to promote and assure the rights of all or whether it is using its identity to promote only the group's rights. n207 In this vein, Professors Guinier and Torres state that Dr. Martin Luther King, Jr. is one of the persons who in-spired them in writing their book because of his belief that when blacks "illuminated" the imperfections in the democratic structure, America was forced to reexamine American democracy. As a result, the whole nation benefits. n208

NEED A FRAMEWORK BEYOND BLACK AND WHITE TO CONFRONT RACISMNolan 2003 [Laurence, Prof. of Law @ Howard, “Yellow: Race in America Beyond Black and White - An Interesting Read for the Great Dissenter in Plessy v. Ferguson , by Frank H. Wu. Book Review. 47 How. L.J. 87] lexis. As Professor Wu has written, Yellow is incomplete because of the nature of the project. n209 The nature of the project is how to confront racism, racial discrimination and racial disparities in a framework beyond [*123] black and white. And, how to do that is chal-lenging. One of Justice Harlan's attempts in his dissent in Plessy, in a black/white frame-work, was a constitutional approach using the Thirteenth Amendment. That approach may still be worth pursuing in a framework beyond black and white. The approaches of coalition building and identity politics may prove to be better approaches in the twenty-first century. These approaches have the advantage of starting from the bottom up and not from the top down. Surely, Yellow's readers look forward to Professor Wu's next book where he will continue, if not complete, this challenging project.

REFLECTING ON RACE IN AMERICA BEYOND THE BLACK/WHITE BINARY KEY. MUST REACH AS WIDE AN AUDIENCE AS POSSIBLE.Nolan 2003 [Laurence, Prof. of Law @ Howard, “Yellow: Race in America Beyond Black and White - An Interesting Read for the Great Dissenter in Plessy v. Ferguson , by Frank H. Wu. Book Review. 47 How. L.J. 87] lexis.

Yellow provides the reader with the opportunity to pause and reflect about race in Amer-ica in a larger context by interjecting the Asian American's experience. Professor Wu convincingly argues that race has been and continues to be a dominant factor in the rela-tionship of Asian Americans and their country. Many Americans are unaware of the many issues regarding Asian Americans because their discussion has generally reached only a limited audience. Thus, one of the real contributions of Yellow is that it has reached a mass audience and has been reviewed by a cross-section of public reviewers in print, television, and radio media. Moreover, as this country approaches the fiftieth an-niversary of the Brown decision, Yellow also encourages us to revisit Plessy and rethink Justice Harlan's dissent and put his dissent in the context of race beyond black and white. Both Yellow and Justice Harlan's dissent are common in their efforts for inclusion of other Americans beyond white Americans.

Yellow has succeeded in accomplishing several goals that Professor Wu had in mind in writing his book: to give the story of the Asian and Asian American's experience in America and to think about race in America beyond black and white. Time will only tell whether he has succeeded in accomplishing his other goal: to start a dialogue. Yellow be-gins with these words from W. E. B. Du Bois's book, The Souls of Black Folk, as an epi-gram: "The problem of the twentieth century is the problem of the color-line - the relation of the darker to the lighter races of men in Asia and Africa, in America and the islands of the sea." n210 Unfortunately, Yellow provides support that those words continue to be true in twenty-first century America.

THE MASTER’S HOUSE OF WHITE SUPREMACY SWALLOWS UP NON-BLACK MINORITY GROUPS INTO WHITENESS, ERADICATING IDENTITY AND DIF-FERENCE.Trucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

Latinas/os are a force to be reckoned with, and we now require our own room in the "Master's House." n1 Yet, we must not forget it is the "Master's House," and we are con-strained by the basic home rule that is White supremacy. Latinas/os are not exempt from the oppression of White supremacy, yet, as a group or individually, we often are seduced into thinking we are White. n2 Latinas/os must be vigilant to avoid the seduction of Whiteness. And we, Latinas/os, more than other groups of color, are vulnerable to the se-duction of whiteness. We carry the desire for Whiteness, inscribed on our souls, from Latin America and transported across the border or from our neighborhoods where our parents and generations before have lived. Latinos/as, more than others, are seduced by Whiteness because we are not called Black, n3 we are not even identified as a race--at least not officially. We are seduced by whiteness because we do not see that the founda-tion of the Master's House, the Black-White paradigm, includes the racialization of our language, our culture, our history. We must see - Tenemos que ver.

[*2] In 1944, Gunnar Myrdal described the "American Dilemma:" n4 the ideal of all persons being created equal and the "basic characteristic of race prejudice--a hierarchi-calized sense of group position." n5 This contradiction continues today. Latinas/os n6 occupy a position within the entrenched racial hierarchy that Myrdal described, and this is an issue that must be addressed by scholars developing LatCrit Theory. This hierarchi-cal order applies to all groups perceived in racial terms, including Latinas/os, and reflects more than a simple Black-White divide. n7 Racial hierarchy today incorporates what Neil Gotanda has described as "racial stratification," n8 which accepts the model of a "hierarchical structure between minorities," instead of a model that "emphasizes the sub-ordinate position of all racial and ethnic minorities." n9 The Latina/o community has reached a critical mass in the U.S., and we can no longer afford to be silent regarding race-related issues. Latinas/os have been on the sidelines in the racial discourse within the U. S. for numerous reasons, stemming both from within the community and from external influences. However, Latinas/os must not only directly address how race has defined our group in U.S. socio-political discourse, but also become active participants in disassem-bling racial hierarchy in all its forms throughout the United States.

BLACK/WHITE BINARY LAYS THE FOUNDATION FOR A RACIAL HIERAR-CHY THAT REINFORCES EXISTING SOCIAL STRUCTURESTrucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

The racial hierarchy in the United States is part of the system of White supremacy that organizes racial discourse using a strict Black-White racial divide. n10 White supremacy embodies a White-over-Non-White/Black construct or a racial hierarchy, which has been defined differently by various critical race scholars. n11 [*3] However, it is commonly agreed that white supremacy creates and reinforces the existing economic, political and social structures, and convinces the dominated classes that the existing order is inevitable. n12 We, as Latinas/os, must acknowledge and investigate the ways in which the dominant culture defines our group as a Non-White, White or non-racial group that is outside of the race discourse, in order to suit its convenience, depending upon the interest that exists at a particular time. n13

Many Latinas/os experience their daily lives as Non-White people in terms of their race, color, national origin, language, culture, and/or citizenship status, n14 which some have referred to as "foreignness". n15 I submit that while Latinas/os have in part chosen and partly have been forced to accept an indeterminate racial group identity, n16 politi-cal unity may require Latinas/os to affirmatively adopt a Non-White group identity. n17 At a minimum, it is critical that LatCrit scholars confront our community's ambivalence about its group racial identity. n18

CURRENT LAWS PERMIT THE MANIPULATION OF LATIN IMAGE TO EX-PLOIT RACIAL FEARSTrucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

The legal construction of Latinas/os as an indeterminate racial group is problematic. n19 An indeterminate racial identity permits discrimination to remain [*4] unremedied under current antidiscrimination law, n20 and permits the manipulation of the Latina/o image to exploit racial fears. n21 Furthermore, Latina/o political organizations should acknowledge the constructed Non-White racial identity that has been imposed broadly on the group in socio-political discourse. n22 Latinas/os united by a sophisticated under-standing of this constructed Non-White identity can be a force for developing a broader view of racial group identity--one that better accounts for Latina/o experience. n23 Lati-nas/os must also recognize that an indeterminate racial identity does not reflect the lived experience of many, if not most of us within the United States. n24 LatCrit theory must assess the multidimensionality of the Latino/a identity to understand how White supremacy impacts the Latina/o community, and the ways in which Latinas/os may rein-force White supremacy. n25 In so doing, LatCrit theory can help develop a new founda-tion for building coalitions with other communities of color. n26

[*5] Self-identification for many Latinas/os includes experiences not recognized within the dominant Black-White paradigm for racial discourse in the United States. n27 For example, some Latinas/os possess a racial identity intertwined with their cultural identity. n28 Some segments of the Latina/o community already understand their racial position within the U.S. Black-White paradigm, despite their multidimensionality in terms of color, race, language, culture, national origin, citizenship status and other fac-tors. n29 Those who perceive their racial identity as intertwined with their cultural iden-tity, may recognize a broader concept of racial identity than the seemingly narrow racial categories in the United States under the Black-White paradigm. n30 A broader, more contextualized understanding of racial identity may lead to more inclusive racial discrim-ination remedies and a broad-based effort to combat subordination in U.S. society. n31

An affirmative Non-White Latina/o racial identity may bring about equality under the law for Latinas/os. If we accept that Latinas/os largely are perceived as a Non-White racial group in this country, we must also push for a definition of "race" that includes color, race, language, culture, national origin, citizenship status and other factors that re-flect the Latina/o experience. n32 A broader conception of racial identity--one that in-cludes the critical aspects of Latina/o identity--is a step toward recognizing the histories of all communities of color in the United States and their interrelatedness. n33 A Non-White identity for Latinas/os need not ignore the tremendous diversity of our peoples. n34

I further argue that critical race theory should include a Latina/o perspective of racial identity. n35 Much of critical race theory has focused on the racial oppression of [*6]

the Black community as it is constructed within the Black-White paradigm. n36 And, LatCrit Theory has focused on the limitations of the Black-White paradigm to address Latina/o concerns. n37 However, LatCrit scholars must do more than merely reject the Black-White paradigm and point out the ways in which critical elements of the Latina/o experience are rendered invisible within it. n38 A functional definition of race, one that recognizes the powerful mediating place race occupies in the lives of all who live in the United States, n39 particularly the lives of people of color, can transform the traditional understanding of equal protection under law. n40 A functional definition of race would recognize that the Latina/o community, as a whole, is perceived in racial terms by the White majority, and would include a Latina/o experience of racial identity. In order to in-clude the Latina/o experience of racial identification in the United States, Latinas/os must investigate the position of the Latina/o group within the Black-White paradigm and the racial hierarchy constructed thereon, as well as investigate the manipulation of our group's racial identity. n41 This effort and a unified front of communities of color and al-lied groups can result in a transformation of equal protection jurisprudence and anti-dis-crimination law. n42

OUR CRITICISM IS KEY TO DISMANTLING RACIAL HIERARCHIES AND FORMING COALITIONS THAT DEFEAT RACISM Trucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

[*7] A unified fight to dismantle racial hierarchy will not require Latinas/os to "give up" anything. n43 Perhaps in recognizing the various racisms that continue to develop in U.S. society, communities of color can find an equal meeting ground from which to coor-dinate the struggle against White supremacy. n44 Such a cooperative endeavor would re-quire that all communities of color recognize that racism affects different communities of color in different ways, and that Latina/o concerns such as bilingual education, the limits of assimilation, and immigration reforms are part of this struggle. n45

Part II examines how Latinas/os have been constructed as an indeterminate racial group by the hegemony of the Black-White paradigm for racial discourse in the United States, the legal system through judicial opinions and legislation, and how Latinas/os have been racialized as Non-White historically and today. I also address how the indeter-minacy of the Latina/o racial identity reinforces racial hierarchy because of the manipula-tion of the Latina/o image. Part III explains how the process of Latina/o racial identifica-tion may vary from the process of racial identification assumed by the Black-White para-digm in the United States, but may nonetheless reinforce White supremacy. This section also assesses how LatCrit scholarship reflects the Latina/o indeterminate group racial identity. Part IV identifies the impact of the Latina/o indeterminate racial status on devel-oping new approaches to antidiscrimination law and the legal remedies available to Lati-nas/os, the reinforcement of White supremacy, and the obstacles it creates to coalition building with other communities of color..

BLACK WHITE BINARY CREATES AN INDETERMINATE RACIAL GROUP FOR LATINO/AS THAT HURTS THEIR ABILITY TO FORM COALITIONS TO COM-BAT DISCRIMINATION Trucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

Latinas/os are indeterminately raced because racial identity in the United States oc-curs within a Black-White Paradigm, and this paradigm does not incorporate the experi-ences of Latinas/os and other groups of color. n46 The Black-White paradigm has been described as "the reduction of race relations in American society and law to the relations between 'White' Euro-Americans and to 'black' African-Americans." n47 Racial inequal-ity in this country is assessed through the prism of the Black-White paradigm and Lati-nas/os are rendered invisible in this construct of race relations. n48 It is a by-product of White supremacy because it explicitly accepts that White racial group identification is preferred to a Black racial group identification. n49

[*9] Because the Black-White paradigm establishes rigid categories in which racial identity is fixed by a Black-White dividing line, persons who are not perceived as either Black or White become subordinated to this dividing line. n50 The Black-White para-digm is so dominant that it shapes "our understanding of what race and racism mean and the nature of our discussions about race." n51 The analysis of race in our society using this Black-White divide (where White dominates over Black) is reflected in legislative and judicial decisionmaking. n52 The Latina/o critique of the Black-White paradigm and its relevance to the Latina/o experience is also a critique of the Critical Race Theory scholarship because of its focus on racial discrimination against Blacks and its effect of excluding other groups of color from analysis. n53 The Black-White paradigm excludes Latinas/os from full participation in racial discourse because Latinas/os are neither Black nor White within the Black-White paradigm. n54

THE US CONSTITUTION REINFORCES THE BLACK/WHITE BINARY AND WHITE SUPREMACYTrucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

The foundational structure of the United States embodied in the U.S. Constitution re-flects the Black-White paradigm and White supremacy. Blacks at the inception of this country were excluded from participation as citizens of the United States through the in-stitution of slavery. n55 After the Civil War, Blacks were rendered subordinate to Whites through a system of constitutionally validated structures such as de jure segregation and other forms of institutionalized discrimination. n56 All other Non-Whites were also de-nied full participation in U.S. socio-political-legal life because citizenship remained racially limited to free White persons, although later expanded to [*10] include persons of African nativity or descent. n57

Those involved in race discourse in law and politics must include the different experi-ences of racialization in the United States. n58 Any broad framework used to understand race in the United States must include those issues relevant not only to the African-Amer-ican community, but also the Latina/o and other communities of color n59 because al-though their experiences are rendered invisible within the Black-White paradigm, these communities are still subject to the system of White supremacy in the United States. n60

LEGAL SYSTEM AT LARGE HAS CONSTRUCTED LATINA/OS AS AN INDE-TERMINATE RACIAL GROUP, WHICH DISEMPOWERS THEM.Trucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

The construction of the indeterminate Latina/o legal racial classification has a long history and is linked to an 1897 federal district court case in Texas. n61 In this case, the district court determined that a "pure-blooded Mexican" n62 was eligible for individual [*11] naturalization, despite the racial limitation in the naturalization law at the time that should have rendered him ineligible for citizenship. n63 In Rodriguez, n64 the district court decided that, despite Rodriguez's status as a Non-White, he was eligible for natural-ization. n65

In Rodriguez, the district court struggled to develop a contextual definition of "White" that was inclusive rather than exclusive in order to naturalize Rodriguez. As a self-described "pure-blooded Mexican," Rodriguez was a Non-White person based on the existing scientific classifications. n66 The district court asserted it was following the spirit of the naturalization law by finding that Rodriguez was eligible for citizenship de-spite his Non-White status. n67

The district court relied upon prior Supreme Court cases that recognized that all per-sons born in the United States, regardless of race, were U.S. citizens. n68 The district court was also influenced by the Treaty of 1848, n69 by which Mexico ceded the terri-tory of Texas to the United States, thereby providing for the incorporation of thousands of Mexicans as U.S. citizens, regardless of color. n70 In addition, the district court was persuaded by the Texas Constitution n71 that had conferred United States citizenship upon Mexicans, although collectively rather than individually, by various acts of natural-ization despite their Non-White racial identification. n72

The Rodriguez case is significant because it illustrates how factors external to the ex-isting racial classification system helped to impose an indeterminate racial status upon Mexican-Americans. n73 Although the court recognized that Rodriquez "would probably not be classed as white" under "the strict scientific classification of the [*12] anthropol-ogist," the court still refused to ascribe any racial classification upon Rodriquez. n74 Ro-driguez's racial identity, for purposes of applying the naturalization law, was neither White, nor Native-American, nor Black. n75 Rodriguez, the individual, was implicitly assigned an indeterminate racial status because of the foreign policy concerns based on related treaty obligation to Mexico: the district court decided that the spirit of the natural-ization law required a grant of citizenship. n76 The existence of a distinct Latina/o Non-White racial identity was therefore submerged in Rodriguez in order to reach the desir-able result of permitting Mexicans to naturalize individually because of the socio-politi-cal pressures related to the 1848 Treaty and the U.S. acquisition of land from Mexico. n77

Rodriguez is significant because it establishes an indeterminate Latina/o racial iden-tity under U.S. law, and marks a line of distinction between Latinas/os and other Non-White people in the United States in order to serve the U.S. foreign policy interests. n78 By virtue of a judicially crafted exception to the White race requirement for naturaliza-tion that existed at the time, n79 Latinas/os were shielded from the brutal racial limita-tion on naturalization, and perhaps, as a result, were less racially conscious than other Non-White groups. n80

Another case, Hernandez v. Texas, n81 also illustrates how Latinas/os have been constructed as an indeterminate racial group. In Hernandez, the Mexican-American plain-tiff, Hernandez, had been indicted for murder by an all White grand jury, and Hernandez moved to quash the indictment, arguing that people of Mexican descent were purpose-fully excluded from the jury. n82 The League of United Latin American Citizens (LU-LAC), who represented Hernandez, raised a Fourteenth Amendment challenge, "asserting that exclusion of this class deprived him, as a member of the class, the equal protection of the laws guaranteed by the Fourteenth Amendment of the Constitution." n83 LULAC had taken on the case to test the constitutionality of the systematic exclusion [*13] of Mexicans and other persons of Latin American descent from service as jury commission-ers, grand jurors and petit jurors. n84 In describing the discrimination against Mexican-Americans in Jackson County, Texas, the Supreme Court referred to traditional indicia of racial discrimination. n85 However, it was unwilling to directly acknowledge that the Equal Protection Clause protected Latinas/os as a racial group. n86 Rather, the Supreme Court stated that Mexican-Americans were entitled to equal protection to the extent that they were discriminated against as a group marked by "other differences from the com-munity norm," other than race. n87

In Hernandez, the Supreme Court ignored the obvious racial character of the evidence presented about discrimination against Latinas/os, and instead characterized the discrimi-nation experienced by Mexican-Americans in Jackson County, Texas as non-racial. n88 This characterization was inconsistent with the evidence it relied upon to show that Mexi-can-Americans were discriminated against as a group distinct from other members of the community. The evidence of segregated public facilities, a history of racial group identi-fication distinguishing between Whites and Mexicans, and the systematic exclusion of Mexican-Americans from participation in public life typically would be recognized as ev-idence of racial discrimination. n89

DATA COLLECTION INDETERMINATE RACIAL GROUPING OF THE LATINA/O COMMUNITY, FORCING THEM INTO THE DOMINANT RACIAL PARADIGM AND FORCING THEM TO IDENTIFY EITHER AS BLACK OR AS WHITE.Trucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

The collection of census data and other forms of formal government classification is another way in which an indeterminate racial group identity is imposed upon the Latina/o community. The Office of Management and Budget Statistical Directive No. 15 "has for more than twenty years . . . provided the common language to promote uniformity and comparability of data on race and ethnicity." n90 Under this [*14] directive, statistics are gathered in a way that separates race from ethnicity, and Latinas/os are only identified as an ethnic group whose members may fall within different racial categories. n91 Hence, the federal government establishes a construct that places Latinas/os outside of the racial categories it identifies: Black, White, Indian (American) and Asian or Pacific Islander. n92

The U.S. Census has consistently imposed the limited racial categories recognized within the Black-White paradigm on the Latina/o community. Latinas/os have been asked to identify themselves as either Black, Hispanics, or White Hispanics, without recogni-tion that perhaps a Latina/o might be an Amerindian Hispanic or Asian Hispanic. n93 This lack of recognition for other categories of racial identification among "Hispanics" clearly indicates an effort to force Latinas/os into the dominant racial paradigm that limits its focus on Black and White racial groups in the United States. n94

The Latina/o community has been reluctant to adopt a specific racial classification of Hispanic. A separate Latina/o race category had been proposed for the 1980 census. n95 However, organizations representing Latina/o interests vigorously opposed the designa-tion of Latinas/os as a distinct racial group. n96 The willingness of the U.S. government to recognize a separate racial category for Latinas/os and the reticence of the dominant political organizations advocating Latina/o interests also illustrates the contested racial group identification of Latina/os. n97

Latinas/os had been designated for Census purposes as White in the Censuses of 1940 and 1950, unless definitely Native American or some other race besides White. n98 The 1960 Census also coded Latinas/os as White unless they were Black, Native American or some other race. n99 In an attempt to identify the Latina/o population [*15] of the U.S. and determine the percentage of Latinas/os in the United States in response to the Latina/o interest group pressure, the 1970 Census focused on the "Spanish heritage popu-lation" defined as those with a Spanish surname or Spanish language usage in the five southwestern states, those born in Puerto Rico or within the three Mid-Atlantic states, and those Spanish speaking individuals in the rest of the United States. n100

The 1980 Census attempted to cure the deficiencies of the 1970 Census, which was viewed as identifying Hispanics too broadly and inaccurately. n101 The 1980 Census asked individuals to indicate their national origin or ancestry (descent) as Mexican, Puerto Rican, Cuban or other Spanish/Hispanic Origin. n102 A significant number of Latinas/os responding to this census indicated their national origin group in the "other" box for race. n103 The 1990 Census sought to address this unanticipated response from Latinas/os by requesting a separate racial and ethnicity identification. n104 The 2000 Census contained five racial categories: American Indian or Alaska Native, Asian, Black or African-American, Native Hawaiian or Other Pacific Islander and White. n105 There were two categories for ethnicity: "Hispanic or Latino," and "Not Hispanic or Latino." n106

For census purposes, it is clear that a narrow, biological racial identification is im-plicit and, as a result, Latinas/os may not be correctly counted. n107 This difficulty is made clear by the fact that "no single set of racial categories has been used in more than two censuses, and most were only used once." n108 The Census Bureau has reported that 40% of Latina/o respondents in 1980 and 1990 "failed to check both a race and an ethnic-ity box . . . and it is estimated that over 97% of the persons reporting in the "other race" category were Hispanic. n109 One problem is that Latinas/os responding to the census may not identify with the racial categories reflected in the Black-White paradigm [*16] and incorporated in the census, n110 although Latinas/os may view themselves as a sep-arate racial group since the overwhelming Latina/o identification as an "other race" (nei-ther Black nor White) implies that Latinas/os possess a racial identity that is not reflected in the Census questions. One study found that regardless of how the question is asked about Latina/o origin on the census form, a percentage of Latinas/os did not identify with any of the racial categories listed on the Census Form because they saw themselves as an "Other" race and outside of the distinctive U.S. racial construct. n111

ANTIDISCRIMINATION LAW FOCUSES ON A BIOLOGICAL DEFINITION OF RACE THAT LEAVES LATINA/OS SUSCEPTIBLE TO DISCRIMINATIONTrucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

Another way in which the legal system structures Latinas/os as an indeterminate race is reflected in the narrow definition of race that focuses on biology in antidiscrimination law. n112 Race viewed as a biological trait cannot include changeable and voluntarily adopted cultural aspects of identity such as language, accent and customs. n113 The Supreme Court's interpretation of the Equal Protection Clause of the Fourteenth Amend-ment similarly protects Latinas/os only to the extent there is discrimination based on na-tional origin as described above. n114 Title VII of the Civil Rights Act of 1964 also pro-vides protection against employment discrimination based on national origin that has been interpreted as synonymous with ancestry. n115 Currently, the constitutional and statutory protection against national origin discrimination represents the best vehicle for Latinas/os to challenge discrimination, because Latinas/os are not recognized by the Supreme Court as a biological race. n116 However, the legal interpretation of national origin is at odds with the plain meaning of the term. n117 National origin means the place of one's birth and is not the same as one's ancestry, which refers to one's family his-tory. n118 Latinas/os born in the United States, who possess a U.S. national origin, are only protected if there is discrimination based on some characteristic tied to their ances-try. This means that the courts must focus on ethnic traits such as language difference, surname, accent, or other similar characteristic. n119

[*17] Latinas/os are not fully protected by anti-discrimination law because they do not fit within a narrow biological definition of race that focussed on color and bloodlines, yet they are considered an insider racial group in public policy debates about government benefits, immigration law, affirmative action, and other issues. n120 The Supreme Court has yet to recognize that culture biases and discrimination against Latinas/os based on language ability, presumed foreignness as non-citizens, and other experiences, are a form of racial discrimination. n121 A key factor in discrimination that has been challenged by Latinas/os is related to Spanish language usage. n122 However national origin protection under Title VII has not included language discrimination because language, as a change-able trait, is not considered an immutable characteristic. n123 Recent challenges to Eng-lish-only rules in places of employment have contested the idea that language usage is a choice and that an individual can choose to speak only one language when he or she is bilingual or multilingual. n124

LATINAS/OS HAVE NO IDENTITY BECAUSE THEY ARE DEFINED AS NON-WHITE PEOPLE IN THE UNITED STATES- BUT THEY AREN’T BLACK EITHER. FALLING OUTSIDE OF THE RACIAL CATEGORY LEAVES THEM SUSCEPTI-BLE TO DEHUMANIZATION.Trucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

Although Latinas/os have become an "indeterminate" minority, n125 identified at times as Non-White, White, n126 and non-racial and, therefore, outside of the racial hi-erarchy, a Non-White racial group identity has been ascribed to Latinas/os. n127 [*18] Latinas/os, as a group, are socially constructed as a Non-White racial group. n128 Pro-fessor Haney Lopez has identified three basic factors that determine how social race is created, maintained and experienced in the United States based on the premise that bio-logical race traits do not exist and racial identity is formed by human interaction: (1) chance based on morphology and ancestry; n129 (2) context based on the social setting in which races are recognized, principally a "Black-White" paradigm that racialized all persons of color as this relates to morphology and ancestry; n130 and (3) choice about racial identity exercised in a social context ranging from clothing choices to the ability of some individual people of color to "pass" and jump races to a White racial identity. n131 Professor Gotanda has asserted that the key factors used to identify a particular racial [*19] group can differ among racial groups. n132 The social view of Latinas/os as a dis-tinct racial group would include such traits as an attributed "foreignness" which may be equated with non-citizenship, n133 language, accent, race, color, gender, culture, length of U.S. residence, country of origin, and indigenous ancestry. n134

The Non-White identity ascribed to Latinas/os has a long history in the United States. n135 Starting in the 1800's, Mexican-Americans experienced residential segregation, n136 while Mexican-American children received a segregated education in many parts of the Southwest both before and after Brown v. Board of Education. n137 Mexican-Ameri-cans also were commonly referred to as an inferior race in the Southwest. n138 Further, "Chicanos have been defined as alien to the mainstream white society whose members viewed themselves as a superior European civilization in America." n139 The history of this Non-White racial identity is evident from such racial [*20] practices as the lynching of Mexicans from the 1880s through the 1930s, n140 the use of the term "greaser" as a racial epithet, n141 and U.S. government publications warning of the inferiority of Latin Americans who were ninety percent of Indian blood. n142

Puerto Ricans similarly were viewed as a racial group unworthy of citizenship after the territory was acquired by the United States in the Spanish-American War of 1899. n143 The concern was expressed in Congress that "millions of negroes" from Puerto Rico would have access to the mainland if American citizenship were granted to the people of Puerto Rico. n144

Today, and "racism burdens the lives of Latinas/os," n145 and this racism is evident from recent public policy skirmishes about immigration reform where debates regarding immigration are racialized, and view Latinas/os as Non-White in the U.S. racial caste sys-tem. n146 One could view the debates about Proposition 187 n147 and [*21] Proposi-tion 209 n148 in California, first focusing on immigration and an obviously disenfran-chised group, and then moving to anti-affirmative action and other politically weakened groups, as tied to the same racialized opposition to an increasingly diverse society. n149 Thus, Latinas/os are perceived as "illegal aliens" flooding the borders of the United States n150 and abusing the system by obtaining public assistance benefits, 151 much like the stereotype of the "welfare queen." n152

There is evidence that Latinas/os have begun to recognize the impact of the Black-White paradigm on their lives, n153 and adopt a racial identity within the Black-White [*22] paradigm of the United States. n154 The current acculturation process of second generation Latinas/os includes feeling forced to identify as members of a Non-White racial group using a White-over-Black construct. n155

Some scholars have advocated that Latinas/os acknowledge this Non-White racial identity, in order to facilitate in the coalition building process with other Non-White com-munities. For example, Bill Piatt has stated that the coalition building process with Blacks requires that Latinas/os acknowledge their Non-White identities because Latinas/os reinforce White supremacy when they claim to be White. n156 George Martinez has stated that "Mexican-Americans should embrace a non-white identity to facilitate coali-tion building with African-Americans." n157 Martinez finds that the legal construction of Mexican-Americans as White has generated tensions that "form a barrier to coalition building" between African-Americans and Latinas/os. n158 Martinez describes how Mexican-Americans have been characterized as "free riders" by African-Americas, who assert that they have fought for civil right, while "Mexican-Americans have ridden their coat tails and share in the benefits." Other Latina/o scholars assume the Latina/o position as a racially subordinated group, without discussing the contested nature of that assertion. n159

The Indeterminate Latina/o Group Racial Identity Permits the Exploitation of Racial Fears and the Manipulation of Racial Issues.Trucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

A Latina/o indeterminate group racial identity facilitates the manipulation of the Latina/o image to exploit racial fears. Latinas/os, on one hand, are characterized as an integral part of racial prob-lems in the United States, yet legal remedies for race discrimination do not include this reality expe-rienced by most Latinas/os. n160 This incongruence between law and reality harms Latinas/os di-rectly not only by limiting antidiscrimination remedies, but also by manipulating our group image to increase fears of a growing Non-White population in the United States.

A Latina/o indeterminate group racial identity permits the portrayal of [*23] Latinas/os as a substantial part of larger racial problems, making these issues appear much more threatening or in-tractable. Latinas/os can be characterized as another racial minority taking advantage of the system in such areas as affirmative action and social welfare benefits. The code words designed to inflame racial fears in public policy discussions about such issues include "urban crime", "illegal alien", and "welfare queen", "wetbacks giving birth to U.S. citizen babies." n161 Opposition to increased legal immigration has focused on the threat of a larger Non-White population, specifically a larger Latina/o and Asian population. n162 Latinas/os are implicated either explicitly or implicitly as part of the problem. n163

Recent legislation reflects this racialized fear of a larger Latina/o population in the United States. For example, anti-immigrant measures such as California's Proposition 187 would have lim-ited access to public education, health and social welfare benefits by undocumented persons in Cali-fornia. n164 Federal legislation limited social welfare benefits to both documented lawful perma-nent residents as well as undocumented immigrants. n165 Such legislation demonstrates the hyste-ria of the sentiment that the United States has lost control of its borders, not just because of the problem of undocumented workers coming from Latin America, but because of the color of these workers. n166 Proposals to limit birthright citizenship that is accorded to the United States born children of undocumented persons also exemplify the desire to limit Latina/o participation because U.S. citizen children born of undocumented parents is perceived as a Latina/o issue. n167

The Latina/o image is used to increase racial fears when Latinas/os are viewed as an impetus to further balkanization among racial groups. The belief that amendments to the immigration laws have permitted greater immigration of Latinas/os and Asians since 1965, and therefore has caused increased balkanization among racial groups, relies on a Non-White Latina/o identity. n168 The of-fered antidote to this problem is a limitation on legal immigration. n169

[*24] The 1965 Amendments to the Immigration and Nationality Act formally shifted the fo-cus of immigration policy from national origin to family reunification. n170 Before 1965, discrimi-natory national origin quotas favored the entry of northwestern European immigrants into the Unites States. n171 As a result, immigrants from other parts of the world were often excluded. The 1965 amendments to the Immigration and Nationality Act, enacted one year after the passage of the 1964 Civil Rights Act, n172 were heralded as an integral part of the civil rights movement seeking

equality for all noncitizens in the immigration laws. This shift in policy has become the source of much of the criticism of immigration policy today, because of the racial character of the immigrant stream since 1965. n173 The immigrant population within the last decade has been dominated by Asian/Pacific Islanders and Latino/as, n174 with 48% of all immigrants to the United States com-ing from Asian/Pacific Islander countries. n175

The link between immigration policy and balkanization among groups, particularly schisms be-tween the African-American community and the Latina/o community, has been highlighted by those seeking to limit the current streams of immigration, predominantly Asian and Latina/o. n176 It has also been noted that immigration policy became such a divisive issue in the 1990s because of the in-creased Asian and Latina/o immigration and U.S. Census Bureau predictions that the White popula-tion of the United States could become a racial minority. n177

LATINAS/OS HAVE EMBRACED AN INDETERMINATE RACIAL IDENTITY IN THE UNITED STATES BECAUSE LATINA/O RACIAL IDENTITY IN THE UNITED STATES IS SHAPED BY CONCEPTIONS OF RACIAL IDENTITY EXTERNAL TO THE U.S. BLACK-WHITE PARADIGM.Trucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

Even though most Latinas/os in the United States are treated as a Non-Whites, racial diversity within the Latina/o community has led Latinas/os to accept an indeterminate racial identity. The di-versity of the Latina/o peoples in the United States confounds efforts to create a group identity. n178 The dynamics of Latina/o identity are fluid and include Spanish, African, and Amerindian cul-tures, and conquest by both the English and Spanish. n179 We are: recent immigrants and people whose families lived in the United States for generations; people from many different nations in Latin America, although the largest groups are from Puerto Rico, Cuba and Mexico; citizens, refugees, legal residents and undocumented workers; people of mixed race ancestry, primarily a combination of Amerindian, African and Spaniard peoples, as well as part Anglo-American; people with varied language skills who are fluent in the Spanish language, speak an indigenous language, or only speak English; and people born in one of the many nations of Latin America or born in the United States. n180

The diversity of Latinas/os is further reflected in the fact that many Latinas/os do not identify with the strict division between Black and White in the United States. n181 For many, the Black-White paradigm is a U.S. phenomenon that is largely irrelevant to their own racial identity. n182 Many Latinas/os identify themselves within a racial hierarchy in Latin American, which is imported to the U.S. and passed onto successive generations. n183 Many, if not all of the countries of Latin America, as well as the [*26] Caribbean, also have entrenched color and racial barriers to full par-ticipation. n184 Thus, the collective racial history of Latinas/os in the United States includes expe-riences from Latin America and the Caribbean, as well as experiences in the United States. n185 Some scholars have pointed out that Latinas/os have a fundamentally different view of race, which might offer an alternative, more inclusive paradigm for racial group identification because of the Latin American paradigm. n186

Racial identity is ascribed to individuals differently in Latin America in comparison to the United States. n187 In Latin America, there is no sharp dividing line between Black and White. n188 Rather, race is viewed on a "continuum with no fixed demarcation between categories," with an individual's racial identification subject to change based on "social variables . . . such as educa-tion and class. n189 Racial identity is more "fluid" than the rigid categories that are identified in the Black-White paradigm in the United States, where differences among Whites and among Blacks are subordinated to this dividing line. n190

Latinas/os who understand their racial identification within the Latin American [*27] paradigm may themselves contribute to the indeterminate racial identity ascribed to the group in the United States because they do not see how they fit within the Black-White paradigm. The imposed U.S. racial identification process, emphasizing phenotype or color, creates a dual identity for many Lati-nas/os. n191 There is an internal cultural identity, for example as a Latina/o or Puerto Rican, and an

external racial identity, as Black or White. n192 A conflict between internal and external identifica-tion may occur when Latinas/os, who are externally constructed as a racial group in the United States, may possess a contrary internal racial identification. n193 Those Latinas/os who do not rec-ognize the hegemony of the U.S. construct may view themselves as outside of the system of White supremacy. n194 According to Professor Hernandez-Truyol, race in the Black-White paradigm and the "Latina/o" racial construct represent "polar opposite" views of race. n195 In comparison to the U.S. rule of hypodescent that ascribes a Black racial identity to persons who possess one drop African blood, the Latin American construct reflects an hypodescent rule for whiteness, where one drop of White blood can attribute a White racial identity. n196

Latina/o indeterminate racial identity may be the product of coexisting dual racial paradigms re-sulting in perceptual dissonance between internal and external racial identification when the Black-White racial paradigm is secondary to cultural-racial identification. n197 Migration between lo-cales with different racial paradigms may also influence internal racial identification. n198 When an individual moves from one place [*28] with a particular racial paradigm, such as Latin Amer-ica, to another place with a different racial paradigm, does she adopt dual racial paradigms, or does she adhere to her own perceptions of race? n199 One study confirms that Latinas/os possessing a more African phenotype have adopted a U.S. understanding of racial identity. n200 It has been sug-gested that one indication of whether Latinas/os are assimilated in the United States is whether they identify themselves using U.S. racial referents. n201

The incongruence between internal and external racial identification is important because racial identity as a group, or as an individual, is a composite of these forms of identification. n202 Exter-nal identification of Latinas/os is an integral aspect of the group image, and external identification is affected by many factors such as the informal meanings associated with a particular identity. n203 In comparison to internal identification, which may reflect an individual's choice of racial group as-signment, external group identification in many instances is not a matter of choice. n204 The dis-connect between internal identification and external identification may obscure the fundamental na-ture of the Black-White paradigm within the United States, and obscure its impact on individual Latinas/os. n205 This lack of individual recognition must be challenged and examined in the con-text of the general understanding that Latinas/os are Non-White within the larger racial framework in the United States. n206

FORCING LATINA/OS INTO THE BLACK WHITE PARADIGM CREATES A FALSE SO-CIAL REALITY THAT OBSCURES THEIR UNIQUE IDENTITIES.Trucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

[*29] Although Latinas/os as a group are constructed with a racial identity within the Black-White paradigm, some assert that the Black-White paradigm may never become flexible enough to incorporate the diverse experiences of Non-White groups. n207 The dominance of the Black-White paradigm is a concern for Latinas/os to the extent that Latina/o issues are rendered invisible within it, and Latinas/os do not find it meaningful to describe their experiences in the United States. n208 One Latino scholar claims that placing Latinas/os within the Black-White paradigm would represent a "false social reality" because Latinas/os are comprised of not only diverse races, but also diverse ethnicities, genders, religions, cultures, nationalities, classes, abilities and sexualities, but also not-ing that race and ethnicity are necessary components of LatCrit anti-subordination analysis. n209 Other Latina/o scholars have advocated a rejection of a racebased strategy modeled on the African-American civil rights approach, which reflects the paradigm, because of its limited utility, in many instances, for Latinas/os who are not considered a racial group under United States law. n210

There is a concern that the true diversity of Latinas/os must be incorporated in any racial con-struction of the group. n211 For example, Professor Hernandez-Truyol rejects the dominant legal paradigm that focuses on identity based on a single attribute, such as race or gender. n212 Latina/o multidimensionality, she asserts, can not be addressed within this paradigm. n213 Professor Her-nandez-Truyol proposes a LatCrit theoretical model that focuses on the internal identification of Latinas/os to reflect the multidimensionality of Latinas/os. n214 Others have discussed the multidi-mensional identity of Latinas/os, and the diversity of national origin groups within the Latina/o [*30] community, which makes a common identity difficult to construct. n215

PEOPLE HAVE LAYERED SOCIAL IDENTITIES- YOU CAN’T JUST BOX THEM INTO THE BLACK/WHITE PARADIGM, LABEL THEM A MINORITY AND DECLARE IT SOLVED BY LAME SOLUTIONS LIKE AFFIRMATIVE ACTION PROGRAMSTrucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

The idea that an individual can possess a layered identity has been addressed by social scien-tists. n216 This layered identification does have a racial meaning within the Black-White paradigm. n217 A Cuban can be either White or Black. For example, Marielitos have been characterized as "poorer, less educated, and mostly black or mixed Cubans." n218 Under Professor Hernandez-Truyol's theory, Latina/o diversity requires that multidimensionality be at the center of the LatCrit paradigm to address the diversity of Latinas/os and the layered identity of Latinas/os. n219 In con-trast, others assert that the Black-White paradigm may be broadened to include the multidimension-ality of Latinas/os within the dominant race construct in this society. n220

Acknowledging race as an overarching concept that structures Latina/o lives in the United States, which can be a means of solidarity with other groups of color, is not inconsistent with recog-nizing the diversity of Latina/o people. n221 Despite the concern about the limits of any single cat-egorization to capture the diversity of national origins, citizenships, and languages that exists in the Latina/o communities of the United States, there are examples of constructed political, cultural and racial identities that bridge these differences. For example, common references to Asian Pacific Is-lander Americans or African-Americans similarly mask the diversity within these communities. n222 It is perhaps the hope of LatCrit Theory that we can help redefine the relevant terms to include the Latina/o position. However, we must also recognize that no single word will ever fully reflect the diversity of our community. For example, the term Asian-American ignores the long history of racial oppression of Chinese immigrants as distinguished from that suffered by the Japanese, and further is distinct from the experiences of newer immigrants, such as the Vietnamese and other groups. n223

[*31] Some LatCrit scholars appear ready to adopt the Latin American conception of race as a key aspect of the Latina/o position in the United States because of its apparent inclusiveness and lack of fixed lines of demarcation. n224 We should be cautious about advocating a Latin American understanding of racial identity. The Latin American race construct embodies the same spectrum of subordinated groups: Black or indigenous people at one end of the spectrum, and Whites, who hold themselves out to be more or entirely "Spaniard" at the other privileged end. n225 The Latin Amer-ican version reflects a "White-over-Black" racial construct despite the relative lack of fixed racial categories and ease of movement into a different category. n226 In Latin America race matters and, if an individual is perceived as Non-White, racial identification adds an additional hurdle to social advancement and upward mobility by requiring racial as well as economic integration. n227 Race introduces a certain fixed element of identity in Latin America and is a significant element in the processes of social mobility. n228

THE FORCED BLACK/WHITE CHOICE MAY PIGEONHOLE LATINA/OS AS BEING “WHITE” AND THEREFORE REINFORCING WHITE SUPREMACYTrucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

Latina/o scholars also should be wary of advocating an alternative racial construct that may re-inforce White supremacy. Latinas/os asserting a White racial identity may reflect the forces of White supremacy throughout Latin America and the incorrect perception that adoption of a Non-White racial identity for Latinas/os within the United States is voluntary. n229 Although some Latinas/os may not experience the full [*32] force of racism because they are not perceived as Non-White, particularly some mixed Anglo-Latinas/os, this is not the experience of many Latinas/os. n230 Also, the perceived choice of being White or Non-White within the U.S. system, may be tied to the racialized identity of different Latina/o national origin groups in this country. That is, to refer to oneself as Cuban, prior to the 1980s and the Marielito Cuban migration, n231 may have signified a White racial identity. The existence of an expanded and clearly multiracial Cuban popu-lation in the United States, may change the voluntariness of racial identification. n232 Individuals from Puerto Rico and the Dominican Republic where there is a much larger Black community, may not possess a choice regarding racial identification. n233 As a result, individuals from these na-tional origin groups may possess both an internal and external racial identification that aligns with the U.S. Black-White paradigm.

LatCrit theory can be a means to acknowledge and inform our community that hypodescent rules for Blackness in the United States, and blanqueamiento for Whites in Latin America, are twin concepts representing a distinction without a difference. n234 White supremacy is international and perhaps LatCrit theory can incorporate this perspective. This is only possible, however, if we are willing to see the comparable structures for what they are: different versions of the same process. The uniquely Latina/o racial identification process is important because it is enmeshed within Latina/o politics in the United States, and because LatCrit theory seeks to address transnational is-sues. n235

INDETERMINATE LATIN GROUP IDENTITY OBSCURES DISCRIMINATION AGAINST LATINAS/OS UNDER THE LAW AND IN SOCIETY.Trucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

The Latina/o indeterminate racial group identity permits discrimination against Latinas/os to be ignored and remain unremedied. This occurs because the dominant Black-White paradigm struc-tures discourse about all racial issues, and discrimination against Non-Whites who are not Black be-comes nearly invisible. Discrimination against Non-Whites who are not Black under this paradigm is identified as less problematic than discrimination against Blacks. For instance, the classifications that predominantly impact Latinas/os are not viewed as discrimination against a racial group and, therefore is more easily justified because it seemingly may focus on some "legitimate" reason for distinctions between Latinas/os and Whites such as language ability. n236 Discrimination based on language ability may be unremedied under antidiscrimination law because it is not perceived as race-based. n237

Under current antidiscrimination law, Latinas/os are protected only so much as the discrimina-tion is based on national origin. The guidelines of the Equal Employment Opportunity Commission (EEOC) prohibits discrimination based on "physical, cultural or linguistic characteristics corre-sponding to a different national origin," or because of an individual's place of origin. n238 One writer has commented that "there is no meaningful legal protection against discrimination based on the ethnicity of Latinos," as long as ethnicity is distinguished from race. n239 This lack of antidis-crimination law protection has been attributed to Congress's principle concern of prohibiting dis-crimination based on race or color. n240 National origin further has been [*34] interpreted as dif-ferent from language discrimination, which is deemed non-actionable because language is not an immutable trait. n241

LATINA/OS ARE DISCRIMINATED AGAINST BECAUSE OF THE WAY LAWS RELY ON BIOLOGICAL RACE DEFINITIONS.Trucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

The failure of current antidiscrimination law to address uniquely Latina/o concerns results from a narrow definition of race and racial group used by state and federal governments, as well as courts of law, all of which rely on biological race definitions such as those incorporated in OMB Directive 15. n242 This definition of race as a biological trait has been rejected by scientists and academics. n243 The idea that racial groups are socially constructed, and are identified by a shared set of expe-riences, and a common way of being perceived, n244 makes it possible to understand Latinas/os as a race entitled to appropriate remedies for discrimination based on race. A demand that the civil rights paradigm fully address the complete range of discrimination experienced by groups with a Non-White racial group status in this country would include Latinas/os. n245 An effective demand for a broader definition of racial discrimination requires a united political stance among communi-ties of color that currently does not exist. n246

Some scholars view the Latina/o identity as an ethnic identity, proposing an expanded antidis-crimination protection for ethnicity. n247 Professor Juan Perea has also focused on the ethnicity of Latinas/os. Professor Perea would adopt a broader view of ethnic traits than those currently pro-tected under the national origin paradigm. n248 His view of ethnicity incorporates "physical and cultural characteristics that make a social group distinctive," either in group members eyes or in the view of outsiders, including traits in addition to race such as "national origin, ancestry, language, re-ligion, shared history, traditions, values and symbols." n249 There is a concern that Latina/o dis-crimination described as race-based rather than ethnicity "would inappropriately conflate the sepa-rate racial and ethnic identities that are a reality for Latinas/os of African ancestry who are primar-ily, but not exclusively, from the Caribbean." n250

[*35] It is the indeterminacy of the Latina/o identity accepted at the individual level and at the group level that effectively removes Latina/o issues from the race relations discourse in this coun-try. The remedies for discrimination against Latinas/os must be established firmly within the civil rights paradigm. n251 Through Latina/o advocacy of a clear, Non-White racial group identity, it is possible to redefine remedies to include all of the discrimination that is perpetrated against all peo-ple of color.

CURRENT CONSTRUCTIONS OF LATINA/O IDENTITY REINFORCES WHITE SUPREMACYTrucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

Latinas/os, as members of a group that largely is understood to be a Non-White racial group, may find that we reinforce White supremacy. n252 Latinas/os reinforce White supremacy to the ex-tent that Latinas/os are compared as a more favorable racial group to African-Americans and these comparisons are not publicly challenged. n253 For example, an article about the 1992 Los Angeles Uprising reports the conflict between the Latina/o and African-American communities. n254 The article asserted that employers in Los Angeles preferred "docile" Mexicans as employees in com-parison to African-Americans. n255 The image of Latinas/os as docile, and therefore preferable workers, impliedly states that African-Americans are more difficult employees. n256 Neither is true, but this perception can become an accepted fact when published and restated. This perceived difference between Latina/o and African-American employees can become part of the dominant perceptions of each group.

Latinas/os and LatCrit scholars must also acknowledge the position we occupy within the racial hierarchy established by White supremacy. To do so, we must be willing to explore the ways in which our position within the U.S. racial hierarchy situates Latinas/os as second line guardians in the system of White supremacy, and how [*36] Latina/o identity is used to moderate the Black ex-perience. n257 All racial groups in the United States reinforce White supremacy as "second line guardians" in the system because racial groups are constructed in relation to each other and, in some sense, each group is used to define the experience of the other racial groups. n258 We must identify the ways in which the Latina/o experience is described in a way to criticize other people of color. This requires Latinas/os to recognize that our group identity may be used to splinter communities of color, and to examine closely the devices that fracture coalitions sometimes before these even have been assembled. n259

RACE STUDIES FORCE WHITENESS ONTO LATINAS/OS AND REINFORCES WHITE SUPREMACY.Trucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

One example is the way in which statistical data can be used to exemplify the "good" attributes of one group with an implicit denigration of another group. n260 For example, a recent study based on census data reflecting five decades of Latina/o experience established that Latinas/os, more than any other group in our society, have the "highest percentage of labor force participation, worked more hours per week, worked more in the private sector and were twice as likely as whites to form families composed of couples and children." n261 This data illustrates a picture of Latinas/os in sharp contrast to popular discourse about immigrants and Latinas/os. n262 While this data is useful to counter negative assertions in debates about the impact of Latinas/os in various communities, we must understand how this hardworking image may be used to make a comparison to the perception of African-Americans as less hardworking. n263 This type of data can create the false impression of broad Latina/o labor force participation. Another study has shown that native Latinos did not par-ticipate at the same high rates of foreign born Latinos, which may indicate the impact of the U.S. structures on native born. n264 LatCrit scholarship can be useful in placing this difference in con-text.

[*37] Latinas/os also reinforce White supremacy if we adopt the dominant perspective on racial group identification, i.e., that the White racial group identification is preferred. One way im-migrants are acculturated in the United States is through their identification within the racial hierar-chy system. n265 Newcomers "quickly learn what to belong to"--the White racial group, if possi-ble. n266 Further, Latinas/os who possess an indeterminate racial identity simply may not see this acculturation process for what it is--a uniquely U.S. racial identification process.

THE LAW’S INDETERMINATE RACIALIZATION OF LATINO/AS THWARTS COALITION BUILDING WITH OTHER COMMUNITIES OF COLOR, LOCKING THEM INTO A CYCLE OF DISCRIMINATION.Trucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

An indeterminate racial identity also thwarts Latina/o coalition building with other communities of color. n267 Latina/o ambivalence about a Non-White group racial identity not only limits our ability to acknowledge the Latina/o group position within the U.S. racial hierarchy, which may rein-force the hierarchy, but it may create unnecessary divisions with communities of color that may dis-trust Latina/o efforts to oppose racial injustice. n268

Coalition building requires that each group openly acknowledge the ways in which it has as-sisted in the maintenance of racial hierarchy. As Professor Yamamoto points out, there are many racial injustices that have been committed by each community of color in relation to other commu-nities of color. n269 Communities of color will only be [*38] able to form effective coalitions when each community forthrightly assesses its own complicity, knowing or unseen, in the mainte-nance of the hierarchy and White supremacy. n270

LATCRIT KRITIK IS ESSENTIAL TO BUILD COALITIONS AND TRANSCEND THE BLACK/WHITE BINARYTrucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

LatCrit Theory is an essential part of this coalition building project. LatCrit scholars face the se-rious challenge of recognizing that we, Latinas/os, are not all the same, n271 while simultaneously attempting to construct community among Latinas/os and between Latinas/os and other communi-ties of color. LatCrit Theory is integral to identifying how the bipolar, Black-White model of race relations obstructs the ability to construct coalitions. n272 Among the goals of LatCrit scholars and other progressive voices, is the construction of alliances that are built on a shared goal of a re-ordered society that eliminates the power of White supremacy. n273

Latina/o leaders and scholars should assist in the development of a pan-Latina/o movement that includes a unified Non-White group identity. n274 The racial experience of many Latinas/os as Non-White is a reality that should not be ignored, and can be the effective link among diverse Latina/o national origin groups. n275 It has been suggested that Latinas/os adopt a political racial identity. n276 For example, Professor Angel Oquendo offers a theory that would shift the focus from a material to a "spiritual" concept of race that would incorporate culture rather than a material focus on phenotype. n277 He provides two reasons for identifying Latinas/os as a racial group. First, most groups are identified as ethnic groups in official as well as ordinary [*39] descriptions, except for the African-American community. n278 In this regard, Latinas/os should not reinforce the dominant perception that "what distances African-Americans is qualitatively different than what separates them [Latina/os] from the White majority. n279 Second, a broader adoption by the Latina/o community of the idea of "La Raza" of indigenous people of North America prior to Euro-pean conquest is part of Latina/o heritage. n280 This indigenous ancestry continues to be an orga-nizing factor for Latina/o political activism. n281

COALITIONS NEED TO ENGAGE MEMBERS FROM ALL DIFFERENT CLASSES AND RACES TO BEAT DOWN THE SYSTEM.Trucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

There are models for community of color coalition-building that have worked in other countries. In South Africa, the challenge to the apartheid system required unification among communities of color and other allied groups, including members of the dominant class. n282 Some people who were designated as "Coloured" under apartheid chose to identify themselves as "Black" as a politi-cal statement. n283

A unified Non-White group racial identity may aid Latinas/os in building coalitions with other communities of color. n284 For Latinas/os, this may be the first step toward the development of a model to address inter-minority conflict. Other scholars also have called for a more practical ap-proach to race theory and an explicit focus on the empowerment of racial groups, n285 new under-standings and extensions of existing antidiscrimination law, n286 and an alternative racial forma-tion analysis to link conceptually the experiences of various groups of color in relation to White supremacy. n287 A call for an alternative racial formation analysis or a broad [*40] understanding of racial identity that includes the Latina/o experience is necessary so we can begin to link our struggle with the struggles of other communities of color. n288

Eric Yamamoto recently offered an ideal framework for developing an interracial justice ju-risprudence, which views communities of color as occupying varying positions of situated power, as a way to combat the structures of White supremacy. n289 Professor Yamamoto's framework holds communities of color responsible for their role in the reinforcement of (as second line guardians) of White supremacy because, while not fully autonomous, these groups of color operate as more than mere extensions of racially oppressive structures and operations. n290 Communities of color must acknowledge and endeavor to fully understand their complicity in maintaining racial hierarchy, and any attempt to develop links among communities of color must directly identify issues relating to interracial harms and injuries. n291 As Professor Yamamoto asserts, it is only by addressing inter-group justice claims and rebuilding intergroup relationships that the healing processes necessary as a precursor to political or economic alliances across communities of color can occur. n292

CRITIQUE AND THEORY ARE KEY TO DEVELOPING AN INTERRACIAL JUSTICE JU-RISPRUDENCE THAT CONFRONTS IDENTITY ISSUES UNIQUE BY MEMBERS OF THE LATIN COMMUNITY.Trucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

LatCrit Theory is critical to the development of an interracial justice jurisprudence organized around the identity issues that are faced collectively by Mexican-Americans, Puerto Ricans, and Cuban Americans, as the largest Latina/o communities in the United States, n293 as well as by the other Latina/o national origin groups that are growing in number. n294 LatCrit Theory seeks to ad-dress issues of central concern to this broader Latina/o community, such as 1) the transnational identity of our community n295 and the impact of immigration; n296 2) overarching similarities among Latina/o peoples, including language, in many instances, and a shared history of [*41] col-onization and conquest by the United States in Latin America; n297 and 3) "cultural resistance to Anglo assimilation." n298

Scholars of LatCrit Theory must directly address the position in which Latinas/os are situated within the U.S. system of racial hierarchy. n299 Latinas/os also must acknowledge responsibility for the way in which our group is viewed as an indeterminate racial group, and how this identifica-tion relates to the racial oppression of all communities of color within a system of White supremacy. Such an analysis must include a candid assessment of the advantages gained by being perceived as an "indeterminate" racial group, as well as a realistic understanding of how this situ-ated position impacts interracial community coalition building.

Coalitions among various Latina/o national origin groups have been successful and further ef-forts to construct a group identity for Latinas/os in the United States should focus on the Non-White racial status of Latinas/os. n300 These successes might become models for future efforts to bring the diverse community members together. Latinas/os should not ignore the way in which the group identity has been socially and politically constructed, or accept the indeterminate racial identity that we have been accorded under law. Race is meaningful in the way that the Latina/o group is con-structed in the United States, and the every day lives of most Latinas/os in this country. n301 LatCrit scholars should begin to address more directly the impact of that socially constructed racial identity on Latinas/os in the United States. n302 This approach would require that scholars identify the connection between the constructed racial identity of Latinas/os and other communities of color in the United States, because group identity within a hierarchy structure is relationally defined. n303 The identification of the Latina/o racial identity [*42] would further require the legal defini-tions of race to include how a group is socially constructed. In this way, Latinas/os are integral to the development of a new definition of race, one that includes more than biological connections, and reflects myriad of racisms to which Non-White people are subjected in the United States. n304

LEGAL CONSTRUCTION HAS A LARGE IMPACT ON RACE RELATIONS WITHIN THE UNITED STATES- THIS CAN BE CONFRONTED AND DEFEATED THROUGH A JU-RISPRUDENTIAL SHIFT RECOGNIZING MORE THAN JUST A BLACK/WHITE BINARYTrucios-Haynes 2001 (Enid, Prof. of Law @ U.Louisville, Brandeis School of Law, Why Race Matters: Lat Crit Theory and Latina/o Racial Identity, 12 La Raza L.J. 1) lexis.

The fact is that "race matters," n305 and continues to matter in the United States. n306 Non-White people are identified in terms of racial group identity, and defined by the majority in many instances by the ascribed racial group identity, despite the wishful thinking expressed by Justice Scalia in Adarand Constructors, Inc. v. Pena that ". . .we are just one race here. It is American." n307 The racial hierarchy of White supremacy continues to exist in the United States and it affects us all. n308 Examining the Latina/o position within this racial hierarchy is crucial to a complete under-standing of how the racial hierarchy is structured, and how Latinas/os may themselves support this system, both individually and as a group. n309 In part, the Latina/o position depends upon both in-ternal and external racial identification factors, as well as the legal construction of the Latina/o group.

In terms of our own group identity, Latinas/os have come to a crossroads. We must choose the road that leads to self-recognition, self-determination and coalition building with other communities of color. We must shed our invisibility in race relations discourse by openly acknowledging and strongly asserting the group's socially constructed Non-White racial identity. Doing so will create a more contextualized understanding of racial identity in this country that includes language, culture, national origin, immigration status and other aspects of Latina/o multidimensionality.

MUST IDENTIFY WAYS FOR NON-BLACK MINORITIES TO RESPOND TO RACIAL ANALYSIS THAT EXCLUDES THEMBROWN 2005 (Dorothy A., Prof. of Law @ Washington & Lee, “Moving Beyond the Black/White Paradigm: An Introduction” 12 Wash. & Lee J. Civil Rts. & Soc. Just. 1) Lexis.

Much has been written concerning the Black/White Paradigm in Critical Race Theory (CRT). n1 CRT analyzes how the law impacts people of color as a group-not as individuals. n2 As Professor Devon Carbado has written, "in America there is more than one race on the bottom. The bottom, in other words, is multiracial. American multiracialism complicates the interactions among and be-tween the racial groups on the bottom." n3 How should people of color who are not black respond to the constant stream of racial analysis that focuses solely on blacks and whites in American soci-ety? This symposium was conceived of as a first interdisciplinary step in addressing that question.

According to a recent Census Bureau report, non-Hispanic whites make up two- thirds of the United States population. n4 Many cities have people of color as a majority of their population. In California, Hawaii and New Mexico, people of color make up more than half of the population. n5 In Maryland, Mississippi, Georgia, New York and Arizona, people of color make up almost 40 per-cent of the population. n6 This symposium seeks to discover ways in which different racial groups can work together and build coalitions.

SOCIETY WAS BUILT ON A FEAR OF BLACKNESS. MODERN TIMES REQUIRE THAT WE CONFRONT THE IMPACT THAT THIS HAS UPON NON-BLACK MINORITIES.BROWN 2005 (Dorothy A., Prof. of Law @ Washington & Lee, “Moving Beyond the Black/White Paradigm: An Introduction” 12 Wash. & Lee J. Civil Rts. & Soc. Just. 1) Lexis.

Professor Mari Matsuda writes that although it is important to incorporate the views of all those at the margins of society, "Fear of [*2] blackness and oppression of African-Americans formed American culture." n7 So there is this tension currently running through CRT as to how to incorpo-rate the experiences of non-African-American people of color with the experiences of Asian- Amer-icans, Latinos, and Native Americans. Does the law affect different racial groups differently? Does the law affect African-Americans more harshly than other groups? Do certain racial groups take ad-vantage of the oppression of other racial groups? These questions are quite complicated and our symposium participants seek to answer them from their unique perspectives on the issues.

Professor Sinclair's co-authored article, What Intergroup Relations Research Can Tell Us About Coalition Building, n8 gives us a primer on social psychology research on intergroup relations. Her article places the literature in a concrete setting of recent events in a Virginia school district where an interracial coalition building effort to improve the academic scores of African-American students was unsuccessful. The article shows how understanding social psychology literature could have helped enhance coalition building and led to a different outcome.

Professor Sinclair's article shows that in order to build successful coalitions, several barriers must be overcome. For whites, those barriers include stereotypical views of African-Americans as well as prejudice, which is "a positive or negative attitude directed toward people simply because they happen to be members of a specific group." n9 For African-Americans, the barriers include stereotypes, prejudice, as well as fear of rejection because of their race. n10 Stereotyping, which is often found when we interact with strangers, can hinder effective coalition building. n11 The article concludes on an optimistic note by providing specific suggestions for overcoming these barriers to coalition building.

Professor Valencia's article, What if You Were First and No One Cared: The Appointment of Alberto Gonzales and Coalition Building Between Latinos and Communities of Color, n12 ad-dresses issues raised in the context of coalition building from the perspective of intra-racial unity. He posits that once a critical mass of a particular racial group is reached in a [*3] particular setting, the driving force behind intra-racial unity diminishes. n13 He cites the failure of the Mexican-American Legal Defense and Educational Fund (MALDEF) to support Alberto Gonzales' nomina-tion to be Attorney General as evidence of this phenomenon. n14 Ultimately, Alberto Gonzales be-came the first Latino ever to hold that post. Professor Valencia suggests that MALDEF's stance in opposition to Gonzales' nomination signaled that the organization was growing and entering a new state of its development. n15 MALDEF recently selected a new leader, Ann Marie Tallman, who was appointed because of her experience in and around corporate America. n16 I will note that ear-lier this year the NAACP followed suit and appointed Bruce Gordon, also a leader from corporate America. n17 Perhaps the explanation is because both groups have realized that attaining economic equality is the civil rights issue of the twenty- first century. n18

Professor Valencia argues that MALDEF's change in leadership was "evidence of its new inde-pendence and maturity." n19 This level of maturity signals a new opportunity for communities of

color to work together in ways never before imagined. He then provides two examples of coalition building where Latinos worked with other groups to achieve racial equality. Professor Valencia concludes by suggesting several potential areas for coalition building in the twenty-first century, once racial group members are able to think beyond their own specific needs and become more in-clusive.

RACE RELATIONS CAME FROM SLAVERY- WE HAVE TO RECOGNIZE THAT THIS OTHERIZATION IMPACTS NON-BLACK MINORITIES AS WELLBROWN 2005 (Dorothy A., Prof. of Law @ Washington & Lee, “Moving Beyond the Black/White Paradigm: An Introduction” 12 Wash. & Lee J. Civil Rts. & Soc. Just. 1) Lexis.

Professor Ota begins with the premise that America's race relations came from slavery and the Black/White Paradigm. n20 Moving beyond it requires you to recognize how Asians are viewed as outsider, non-citizens and coalition building efforts must take care not to further subordinate non-black racial minorities. Professor Ota examines case law surrounding the adoption of Chinese or-phans by U.S. citizens to show how family law principles that shape American identity are con-structed in a racialized manner. She argues that barriers to coalition building include a willingness on the [*4] part of whites to confront the racism within and a willingness on the part of people of color to work with whites who "don't get it." n21 What must be avoided are other racial minority groups not being aware of-and contributing to-the subordination of Asians as a result of their per-ceived outsider status, which results in their not being treated as part of the American family.

Professor Lasso acknowledges the importance of moving beyond the Black/White Paradigm, but provides a cautious note. n22 He argues "that the only way to resolve the American dilemma of race is to embrace the Black/White Paradigm by self-identifying ourselves as Black." n23 Only by focusing on blacks' status and seeking to improve it will racial equality be found for all. In essence, Professor Lasso argues that there is a black/white continuum of racial subordination, with blacks re-ceiving the worst treatment/benefits, and whites receiving the best treatment/benefits and Asians, Latinos, and Native Americans receiving worse treatment than whites, but better treatment than blacks. Professor Lasso shows how his being born and raised in Latin America made him a for-eigner with positive results. In his own words, he concludes that because he was a foreigner "I was not considered Black." n24

So we end the symposium where we started, and ask the question: how should people of color who are not black respond to the constant stream of racial analysis that focuses solely on blacks and whites in American society? Professor Lasso's answer is first for everyone to self-identify as black. Second, discover how blacks are being treated and work to bring racial equality to blacks. Only then will equal treatment become available to us all.

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