A Case Study of Color-Blindness: The Racially Disparate Impacts of Arizona’s SB 1070 and the Failure of Comprehensive Immigration Reform
Kevin R. Johnson
University of California, Davis - School of Law
October 20, 2010
Arizona State Law Journal for Social Justice, Forthcoming
UC Davis Legal Studies Research Paper No. 229
This Article develops the theme that U.S. immigration law allows for coded, and thus more legitimate, arguments in favor of racial discrimination as well as for the pursuit of immigration law and policies with as extreme a set of racially disparate consequences as can be found in American law. Such arguments find legitimacy in the public discourse because they highlight notions of racial neutrality, color-blindness, and the moral call for obedience to the law. In this regard, the color-blind, pro-law enforcement approach to the debate over immigration serves a noteworthy legitimating function. Moreover, that approach provides plausible deniability to accusations of racism for advocates of immigration positions with blatantly discriminatory impacts. One glaring example is the law passed by the Arizona legislature in 2010 that was designed to address the state’s perceived immigration crisis. Opponents of comprehensive immigration reform also would achieve racially disparate ends through facially neutral measures. When the color-blind approach prevails, it effectively assists in ensuring racially disparate impacts of the operation of the immigration laws.
Part I of the Article offers an analysis of the deficiencies of the state of Arizona’s controversial recent endeavor to participate in immigration enforcement, as well as a study of the current debate over immigration reform. In so doing, this Part explains how debates over laws permitting discrimination based on a person’s immigration status, given the racial demographics of immigration to the United States today, allows for coded discussions about race and the civil rights of immigrants and people of color generally.
Part II of the Article analyzes the most obvious racially disparate impacts of the failure of comprehensive immigration reform, as well as the less visible racially disparate impacts of the failure of Congress to act now on immigration. It further spells out how the failure to reform the U.S. immigration laws, albeit in a facially neutral way, will injure people of color both inside and outside the United States.
One might wonder why race, even though perhaps animating the positions advocated by some restrictionists, tends to be buried in the modern debate about immigration. The answer is relatively simple. Times unquestionably have changed, even if not as much as those who suggest that the election of a Black President marks the beginning of a new post-racial America. Unlike the hey-day of Jim Crow, people in polite company today rarely contend that racial discrimination in the immigration laws – or in law generally – can be justified by the biological, or innate, inferiority of people of color. Indeed, the demise of Jim Crow, combined with the civil rights movement, contributed to the removal of the most blatant forms of racial discrimination from the U.S. immigration laws in 1965. However, racism still exists in the modern United States and arguably has often in recent years been transferred or displaced from domestic minorities to immigrants of color.
It often is argued that immigrants, especially those who are “illegal aliens,” warrant discriminatory treatment, punishment, and little sympathy because of their immigration status. An often accompanying argument is that race has nothing to do with the desire to make distinctions on the basis of immigration status. Rather, it is only a desire to “enforce the law” and “secure the borders.” The harsh treatment of immigrants has disparate racial impacts without the need to invoke discredited notions of racial inferiority as a justification, which certainly would bring out in force those committed to civil rights.
What does this in the end all mean? In the modern United States, the debate over immigration ultimately allows a convenient and legitimate place for venting racial antipathy and frustrations, whether it be about changes in the neighborhood, shifting population demographics and changing political power, languages other than English being spoken in public places, the decline in the economy (and loss of jobs), the poor quality of the public schools, health care reform, the fact that workers congregate on street corners, and virtually anything and everything.
Number of Pages in PDF File: 43
Date posted: October 22, 2010