David B. Oppenheimer

Playing the Trump Card: The Enduring Legacy of Racism in Immigration Law

As this Article goes to press in spring of 2016, Donald Trump is the leading candidate for the Republican nomination for President of the United States. He has built his campaign on promises to build a wall on the United States-Mexico border to prevent illegal immigration; to deport all of the estimated twelve million Mexican immigrants who are not legally authorized to live in the United States; to prohibit Syrian refugees from entering the U.S.; and to exclude all Muslims who are not U.S. citizens from entering the country. While many complain that these views violate our history of welcoming immigrants and visitors of all races, creeds, and colors, a historical examination reveals that from its beginnings, racism and xenophobia have been a driving force behind immigration law in the United States.To understand immigration law in the United States, one must thus examine the history of racial exclusion and inequality. From the formation of the Republic, our immigration laws have reflected racist policies toward various and changing racial, ethnic, and religious minority groups. Today, anti-immigrant hysteria is directed largely at immigrants from Mexico and, increasingly, at Muslims or those associated (correctly or not) with Islam, especially immigrants from the Middle East and South Asia. One question that emerges is whether Mexican immigrants will follow the same patterns of assimilation or integration as past groups of immigrants, or whether they will join Black Americans as long-standing second-class citizens.

The Disappearance of Voluntary Affirmative Action from the U.S. Workplace

As voluntary affirmative action in the United States has been transformed into diversity management, the original intended beneficiaries of affirmative action, racial/ethnic minority group members and women, and particularly Black Americans, have been left behind. Despite controversy over the use of racial quotas in the United States, demands for voluntary affirmative action by private employers grew into a nationwide movement in the 1960s under the leadership of Rev. Dr. Martin Luther King Jr. and Rev. Jesse Jackson. In cities across the United States with large Black populations, they demanded the use of proportional hiring so that companies selling their products to Black consumers would hire Black employees in proportion to the local Black population or their Black clientele. In the 1964 Civil Rights act, the U.S. Congress considered the affirmative action/proportional representation/quota issue and reached a compromise; employers would not be required to give preferences to Black applicants, but neither would they be prohibited from voluntarily doing so. In the 1970s and 80s the U.S. Supreme Court upheld the compromise, holding that private employers could give hiring and promotion preferences to underrepresented ethnic/racial minority workers (and women) to correct “imbalances” in the workplace, subject to certain limitations. Yet beginning with the election of Ronald Reagan in 1980, and accelerating into the twenty-first century, U.S. employers have abandoned affirmative action policies in favor of “diversity management” policies. While these policies initially focused on the hiring and promotion of women and racial/ethnic minorities, as diversity policies have grown and developed, they have abandoned their focus on aiding underrepresented workers. As a result, Black Americans are being left behind, even as the policies adopted through their advocacy have become widely accepted.