Wednesday, March 31, 2010

Critical Race Realism: A Glass Ceiling for the Legal Academy?

Ediberto Roman has been arguing in this blog and elsewhere that it is very difficult for Latinas/os to land jobs in the higher reaches of the legal academy. A new article by Ming Zhu entitled "An Empirical Study of Race and Law School Hiring" ( provides additional empirical evidence to support Roman's position. After reviewing the relevant data from one academic year (2004-2005), she concludes: "While being a minority resulted in a positive bump in getting a tenure-track law teaching job ... race only seems to help if the minority candidate is willing to teach in a lower-ranked school." In contrast, she finds that "White candidates seem to hold a monopoly on hiring at the nation's top law schools. In fact, every hire made by the top 16 law schools in the study was of a white candidate; put another way: not a single minority hire was made by any of the top 16 schools. These findings thus support Merritt and Reskin's assertion that top law schools seem to preferentially hire whites." Ms. Zhu's article is certain to generate debate on the always controversial topic of faculty hiring. Her article may also show the power of an emerging approach to the study of race -- critical race realism -- which uses the empirical tools of social science to analyze issues of race.

Sunday, March 28, 2010

Chinese Immgration to Cuba and its Political Ramifications

It is well known that there was a small but significant migration of Chinese nationals to Cuba before the 1959 Revolution.  That migration is proving to be a source of strengthening ties between Cuba and China today, both culturally and politically.  In a recent report published in an organ of the Cuban Communist Party the focus and effect of these efforts was elaborated:
El intercambio cultural entre Cuba y la República Popular China saldrá fortalecido a partir de las relaciones de trabajo establecidas por la UNEAC con organizaciones homólogas en el país asiático.
Tal apreciación se tuvo luego de los encuentros sostenidos en esta capital por los escritores Marta Rojas y Ernesto Pérez Chang y el arquitecto José Antonio Choy con directivos de la Federación de Círculos Literarios y Artísticos de China, la Asociación de Artistas de la TV China, y de la revista Intercambio Cultural.
Los medios intelectuales de Beijing valoraron la presencia de personalidades de ascendencia china en la vanguardia artística y literaria cubana y mostraron interés por difundir aquí la novela El equipaje amarillo, de Marta Rojas, que trata sobre la migración china en la Isla caribeña. (SE).

The UNEAC (The Union of Writers and Artists of Cuba) has long been  a powerful institution for the organization and disciplining of Cuban artistic and cultural production.  Its formal arrangements within China suggests efforts to deepen the connection between the two states in ways that will make it harder for the United States to affect Cuban cultural production.  More interesting is the focus of those ties--in Chinese immigration and in the work of Cuban Chinese authors. 

Obama Scores Big on Student Loan Reform

The Ramirez family could well serve as a case study in favor of higher education subsidies. My dad graduated from Northwestern on the GI Bill. He had five kids and they earned 10 post-secondary degrees, with huge assistance from the guaranteed student loan program and other federal financial aid programs from the Pre-Reagan era. We subsequently repaid these subsidies many times over through higher tax payments.

Empirical data shows these programs generated economic benefits far in excess of their costs, as I wrote about, here and elsewhere, in arguing for a vigorous re-ignition of federal subsidies for higher education. In my forthcoming book, Toward a More Perfect Capitalism, I extend this argument and propose a GI Bill for everyone that would greatly expand the current relatively modest GI Bill in scope and depth. (As an example, the government paid 100% of my dad's tuition at Northwestern plus $75 per month living expenses in 1951-53).

So, I confess that I felt real joy when I learned that Obama had somehow gotten historic student loan reform passed along with health care this past week. Obama will sign the bill Tuesday of next week, and so its details are still not clear. But the banks are out of the subsidized student loan business and that saves $60 billion in useless subsidies to the banking industry. The savings will be used to: i) expand Pell Grants for lower income students; ii) expand assistance to minority educational institutions; iii) expand aid to community colleges; iv) expand interest subsidies. In particular, the bill includes a provision for income-based repayment, whereby graduates repay no more than 10% of their income for loans originated after 2014.

Essentially we have socialized the risk of graduating without enough income to repay your loans and funded it by cutting subsidies to the banks. This removes an unnecessary risk to human capital formation and eliminates a near-predatory feature of higher education--the prospect of banks using enhanced collection efforts against borrowers who simply cannot repay.

This success will form a key part of the Democratic message this fall. But for minority students I think we need to send a clear message: whatever economic problems may exist when they graduate, financing their education makes sense because of the repayment cap of 10% income.

Thursday, March 25, 2010

Obama’s moral failure on immigration

From an op/ed in the Chicago Tribune:

I'm a community organizer. Last week, I did something I never thought would be possible. I met with the president of the United States in the West Wing of the White House.

President Barack Obama met for 75 minutes with 14 leaders from across the country to discuss immigration reform — and the destruction of some 1,100 immigrant families a day through deportations carried out by his administration.

The meeting was tense, blunt and passionate. And there was a racial irony to our discussion. Our labor, faith and immigrant rights leaders included seven Latinos, three Asians and four whites. We were meeting with our country's first African-American president, the son of an immigrant father. His senior advisers at the meeting included three African-Americans (one the child of immigrants), a Latina, a Chinese-American woman and a white woman.

There were years of intertwined friendships and relationships at the table, including my own with the president that began when he was a Chicago community organizer in 1986. Yet, despite all of these ties, we were there to tell him about his moral failure on immigration, and his looming political catastrophe.

Immigrant families are destroyed every day through deportations, Deepak Bhargava of the Center for Community Change, a Washington, D.C.-based nonprofit advocacy group, told Obama. Latinos are angry and feel betrayed that the Obama White House has increased deportations and hasn't advanced reform, which could result in a nightmare for Democrats in the fall elections.

The president was just as blunt. He said that he and 45 to 47 Democratic senators support immigration reform. The problem, he said, is the lack of Republican support. Obama said his administration is shifting the focus of deportation onto undocumented immigrants who have committed crimes. If Americans come to believe the government is serious about immigration enforcement, he said, they will support reform measures that allow undocumented immigrants to gain legal status here.

Obama's wrong. Immigration is hunting down teens, workers, mothers, not just criminals. According to U.S. Immigration and Customs Enforcement reports, President George W. Bush's second term began with 246,000 deportations a year. Under Obama, the number is closer to 400,000. The administration's lack of leadership on immigration reform and its increased deportations of non-criminals has created a toxic relationship with Latino immigrants.

The president agreed to call on Republican senators to join in a bipartisan push, but the administration's spin is still that Republicans will need to step up first if immigration reform is going to be passed. This sounds like blame-shifting.

The president is poisoning the well of political support he received from Latinos. And Republicans aren't lining up to stand next to him on immigration.

On Sunday, tens of thousands of marchers will be on the streets of Washington, D.C. We hope that this participatory democracy will cause Republicans and Democrats to focus on legislative solutions for immigration reform. We will continue to push Obama and other leaders such as Sen. Dick Durbin to have courage.

In the U.S., we change stupid and broken laws. That is why first lady Michelle Obama and women across the U.S. can vote. That is why President Obama and I can eat at the same lunch counters in the South.

A law that allows the destruction of 400,000 families a year is immoral. Obama needs to make an honest push for immigration reform and stop his administration's reign of terror against non-criminal undocumented immigrants.

Something is afoot in immigrant communities. In Chicago, courageous young immigrants are "coming out," publicly declaring that they are undocumented and unafraid of the consequences. If immigration legislation stalls, President Obama may provoke a new period of civil rights confrontations — aimed at him.

Joshua Hoyt is the executive director of the Illinois Coalition for Immigrant and Refugee Rights.

Midwest Border Patrol and Local Law Enforcement Alliances

Along the nation’s southwestern geographic border the racial profiling of Chicanas/os and Latinas/os has historically ensured their high-level scrutiny in the nation’s quest for the “undocumented.” Accordingly in the Southwest whether heading for a soccer game or the gas station to fill your vehicle tank or on a run to local establishments or perhaps returning to your agricultural labor camp without attracting the attention of border patrol or local enforcement officials is not an uncommon occurrence.

In the Midwest less attention is placed on the relationship between Border Patrol agents and local law enforcement officers and the racially profiling of “Hispanic” appearing individuals. This alliance has local law enforcement officers presently operating outside their scope of jurisdiction and expediting extra-legal tactics in restraining and interrogating individuals of Mexican descent and other Latina/o groups. While they are employing methods that obligate our legal attention a recently filed class action complaint in the Midwest could also signal how southern and northern border patrol tactics are to be employed without running contrary to federal constitutional law.

As alleged in the class action complaint, Muñiz et al., v. Gallegos et al.,[1] Plaintiffs’ comprised of individuals, the Ohio Immigrant Worker Project and the Farm Labor Organizing Committee, AFL-CIO are charging the Detroit Border Patrol Sector and a host of Ohio law enforcement agencies with “restraining, interrogating and arresting individuals of “Hispanic” appearance “without reasonable suspicion or probable cause that they are aliens without a right to be or to remain in the United States.” Equally disturbing is that the complaint also alleges the Border Patrol held “seminars, trainings, or otherwise communicated with numerous local law enforcement agencies” that included “encouraging the local law enforcement agencies to target Hispanics for restraint and interrogation about their immigration status.” Accordingly not even driving your children to school without being followed, restrained and interrogated on your “immigration status” is off limits of local law enforcement officials.

Outside the immediacy of Plaintiffs’ complaint and allegations the case should also prove of interest for yet additionally related issues. First, in expediting immigration law, the nation purports to seek consistency in its direction and approach. Against this backdrop the extra-legal activities of law enforcement officers thereby raise questions as to the type of training they receive from border patrol agents or the legal training of the border patrol agents themselves. Further questions emerge as to how local officers who might lack the specific and precise legal training immigration law obligates can reconcile their particular approaches in targeting “Hispanics” with fourth amendment law. Equally disconcerting is that several of the plaintiffs are farm workers and not an unknown population group in the state whether as residents or migrant workers.

Specifically Ohio retains a huge agricultural history of employing innumerable farmworkers of Mexican descent born and raised in the state. Its own agricultural history includes workers from both inside the state and from Texas migrants who arrive to cultivate and harvest the state’s tomatoes and other commodities whether they are citizens, in status, or lawful permanent residents as well as immigrants. For those law enforcement officers that enjoy eating and yet stop agricultural workers on their way to their places of employment –that commonly others refuse to do –a reminder is necessary.

Specifically, farmworkers are critical to feeding the nation and in expediting domestic and international agricultural markets. I’m thereby wondering whether the Detroit Border Patrol agents are “training” local law enforcement officers on the intricacies of agricultural labor markets in ensuring commodities are cultivated and harvested. Questions also surface as to whether border patrol agents are training local law enforcement officers in federal law that attempts to ensure that farmworkers are not mistreated in their places of employment or in the labor camps in where they reside.

The instant case raises perplexities however beyond the intent and alleged purposes of Midwest Border Patrol efforts in the Ohio region. Perhaps a financial accounting from the state’s comptroller of the revenue the above racially profiled groups contribute to the state’s economic coffers could help in reconciling whether the actions of the Detroit Border Patrol Sector should re-direct their approaches elsewhere in dire need of attention.

In sum, the instance case could prove of value in ensuring much needed consistency in expediting immigration law without violating the rights of all individuals within the nation’s geographic borders. It could also ensure border patrol actions are not in conflict with the realm of other laws that intersect with the immigration law template. Perhaps and finally it could draw yet more needed attention on the highly recognized economic benefits and contributions of diverse populations groups in urban and rural environments.

[1]Muñiz al., v. Gallegos et al., Class Action Complaint filed in the U.S. District Court for the Northern District of Ohio, Case 3:09-cv-0265-JA and filed on Dec. 10, 2009.

Tuesday, March 23, 2010

A Post that may be of interest from Immmigration prof. blog....


On March 24, 8 PM, HBO2 will air THE SENATORS' BARGAIN, a behind-the-scenes look at history in the
making, with the late Senator Ted Kennedy and his battle for immigration reform as the documentary's centerpiece. Click here for the Facebook page. Learn more at

The documentary reveals with unprecedented access the inner workings of Capitol Hill, from ambitious staffers to Senate floor vote wrangling. Watch and find our how democracy really works.

As part of the premiere, there will be discussions via Twitter (, and liveblogging online from participants in the film at


Monday, March 22, 2010

Diversity: Its Costs and Challenges Part II

Since my last post entitled "Diversity: Its Challenges and Costs," I have been busy greeting the newest Latina to our household, the beautiful Isabella Soleil Roman. While engaging in the typical wonder and amazement that every new parent seems to share, I also wondered what would the world look like for the newest love of my life. I had many many questions and some typical fears. I wondered: Will she have to contend with the challenges of diversity many my fellow travelers have written and struggled with over the years? Will she even be viewed as a Latina (a complex label that will perhaps be addressed in subsequent posts)? Will she and the world she resides in as an adult even consider her a woman of color? Will her gender limit her life chance or pose professional development challenges?

While I suspect her world will be very different from the 1960s model of diversity her dad seems to focus on, I fairly confident she will face at least some challenges as a result of being female and a Hispana.

In many respects, my first post on diversity typifies my generation. I am arguably a second generation of critical race scholars that grew up in a world that has recently transformed dramatically. In the world I observed as a child, important social justice efforts such as freedom marches in the South were greeted with water cannons and attack dogs. If someone would have suggested to me when I was a child, or even three years ago for that matter, that an African American would be President and a fellow Boriqua that happened to ride the same 6 train to Jerome Avenue that I did as a teenager would be our newest United States Supreme Court Justice, I would have accused the person of being intoxicated. The world has changed much over my 46 years and my Bella's world will likely continue to develop and evolve.

It is in that spirit of hope that I want to continue to opine on the challenges of diversity. While due perhaps to stubbornness or old age, I continue to believe that those that advocate a dominant cultural view that question diversity and affirmative action should equally question the benefits of what I have labeled "affirmative affinity." In other words, can legislative or other remedial efforts to assist ethnic and racial minorities come close to the benefits of not being presumed to be an outsider or a member of an underclass? While early race scholars have posed similar points a bit more aggressively by using terms such as "Whiteness Being a Property Right" or "White By Law," my goal in these posts is to pose the question in a fashion that will not immediately cause most non-minorities to immediately dismiss my position. In similar fashion, I recently notice how labels like "White Supremacy" will cause even the most liberal of non-minorities to insist on an apology, despite historical accuracy of a particular depiction.

Among the questions that may arise include: If in fact I seek to challenge bias and fight for social justice, do I serve my purposes if I only speak and write in a fashion that appeals to my fellow travelers? If in addressing affirmative action or other social justice efforts, I live up stereotypes of the angry minority in the eyes of some, should I even continue my efforts? Or should I follow the advice of family members and write on securities regulation or antitrust, areas I had practice in a former life?

When reviewing recent lateral hires and new administrative appointments, there appears to be something to be said for avoiding the tough or uncomfortable questions questions concerning race. In the end, my upbringing in the streets of New York City causes me to always be available to stand up for what I think is right. However, nearly half a century of living has also taught me the value of honey over vinegar. Thus, an advocate of social justice should recognize the real costs of possibly being labeled a difficult or angry person. Are such labels just if they stem from merely writing about historical events? Obviously not!

Nonetheless, I have recently grown to appreciate the true value of professional relationships and limits traditional measures of achievement such as scholarship. As one fellow blogger recently mentioned to me concerning her research on diversity on corporate boards, "one common thread in all of those we interviewed was the need to be perceived as one that gets along with others." Am I suggesting here that by writing on issues of diversity or related matters, one may face a cost of being perceived as non-team player? Yes, I am suggesting this very point. This does not mean one should avoid addressing matters that are important, but one should recognize (what may be obvious to some) that there are possible costs to such efforts. I do nonetheless believe that such perceptions, no matter how unfair, are real and may be faced in a host of circumstances and in a variety of ways. I do, however, believe such thinking may be able to be overcome, at least to some degree. For instance, I, for one, have made it a professional mantra to work on developing relationships, and, among other things, letting people know how much I value them and how I appreciate their efforts. When one focuses their writings on addressing bias or other wrongs, one must be careful to maintain balance. While such statements may sound a bit spiritual or even sappy, I believe in them.

South Florida’s First Ladies Honored

The St. Thomas University School of Law’s Black Law Students Association & Caribbean Law Students Association hosted their Annual Spring Gala this weekend. This year’s program was dedicated to South Florida’s First Ladies. The first ladies honored were V. Lynn Whitfield, City Attorney for the City of North Miami, who was appointed in June 2006, and is the first African American women to hold the position since the City of the North Miami’s incorporation in 1926. The other honoree was the Honorable Barbara Lagoa, Third District Court of Appeal, who was sworn in November 2006, and is the first Hispanic woman to serve as an appellate judge in the history of the State of Florida. This was very disheartening to learn.

The first ladies shared their individual, yet eerily familiar stories of struggle, pain, “lesser than treatment,” self-determination, faith, perseverance, and ultimate success. I sat listening to Ms. Whitfield’s interpretive reading of Langston Hughes famous poem, Mother to Son, and Judge Lagoa’s words of often being mistaken, for a court reporter, a court clerk or a paralegal but rarely considered as actually being “the judge.” I slowly realized that the 1980s slogan “you’ve come a long way baby,” is not true for minority women, and certainly not true for Hispanic women in particular.

Judge Lagoa shared some disturbing statistics regarding the number of women of color that hold judicial positions in the State of Florida. The numbers were extremely low and disappointing. I thought we, in the collective sense, were doing better especially in geographical areas that have a strong concentration of Hispanics like South Florida. Unfortunately, this is one of those instances where perception is not reality. Judge Lagoa’s statistics confirm that Hispanic women are the smallest category of judges in the State of Florida. Ironically, the percentage is so small that Hispanic women judges are almost statistically “insignificant,” which is to say that the number of Hispanic women judges is so small that in terms of statistical regression analysis (the number of Hispanic women judges is so far away from the median or mean of all judges in the State of Florida), that the number of Hispanic women judges is “irrelevant.” It is as if there were no Hispanic women judges. This is shocking. It also means that there is much work to be done.

As I sat watching the faces of the young law students, soon-to-be-young-attorneys, listening to the speeches they stopped smiling, they sunk into their chairs, and hung their heads almost in despair. In my heart I shouted out to them, “Listen. Learn. Be Determined to Succeed.” And almost like a silent message from my heart to Judge Lagoa, I heard her next words, “my story should not sadden you, it’s a story of achievement. I succeed and so can you.” Yes, I silently applauded, that is the lesson for each of us, and all of us because in the words of Langston Hughes “life for [us] has been no crystal stairs … it's had tacks in it…and splinters…and boards torn up … but don’t you set down on that step … cause you find it’s kinder hard…don’t you give up … you keep climbin’….”

Monday, March 15, 2010

Chile’s Economy Strong Enough to Recover from Devastating Earthquake without International Aid

The earthquake and subsequent tsunami that ravaged Chile a few weeks ago has left an estimated $30 billion in damages. The amount is almost twice as much as economists have estimated for Haiti’s recovery from its devastating earthquake two months ago. University of Chile economist Joseph Ramos stated that "[R]ight now Chile isn't drawing at all on international relief funds." Chile’s new President Sebastian Pinera has stated that Chile does not need international aid or generous loans to recover, “we will draw on foreign credit with moderation." This is very impressive.

Chile’s economy is very strong, thanks in part to robust profits that previous Chilean presidential administrations saved away in better times. Chile has several sovereign wealth funds totaling in the billions from the sky-high copper prices over the years. Chile is the world’s biggest copper producer, accounting for about 35% of global output. As a result, Chile will be able to finance much of its own reconstruction from last month's disaster. President Pinera is, in part, benefiting from the financial acumen of Chile former President Michelle Bachelet, Chile's first woman president. During former President Bachelet’s administration, Chile's Government continued to save profits from record-high copper prices. The savings is currently totaled at approximately $11 billion of surplus revenue from copper exports. Chile Government’s multi-presidential-administration-savings-plan is perhaps a concept that “developed” countries should learn especially given the economic turmoil that has existed in the U.S. and Europe during the past two years. The concept of preserving the future by making sound fiscal decisions in the present is not a philosophy that is practiced in many "developed" nations. We need only look to the massive national debts of North American, and Europe nations for confirmation.

Carlos Felipe Jaramillo, the World Bank's director for the Andean region, applauded Chile’s financial condition, “I haven't seen a country in such a favorable position to address a natural disaster in a long time. They are in fabulous standing with us and have a tremendous capacity to respond." In addition, to Chile's $11 billion in surplus, Chile’s private sector is expected to recover more than $3.5 billion in insured damages. Furthermore, Chile also has strong domestic financial markets on which it can rely, before it needs to turn to foreign loans — and when it does reach out to international creditors, Chile can attract low interest rates with its excellent fiscal record and minimal debt.

President Pinera has made it clear that despite Chile’s sound economic footing, reconstruction will not be easy. He has called for "tremendous austerity" in government spending. Nonetheless, Chile’s ability to recover from such a devastating natural disaster without or limited international assistance should be applauded, studied and emulated as a model for developing and developed countries a like.

Thursday, March 11, 2010

The Future of the Legal Academy, Legal Scholarship and Race Theory

In "A World Without Law Professors" ( , Mathias Siems has recently considered what the world would be like without law professors. Such speculation may be useful because some argue that the legal academy is about to undergo major changes, including the downsizing of law faculty. See David Barnhizer, "Redesigning the American Law School" ( (arguing that "the existing model of American university legal education is unsustainable"). Some of the changes are anticipated in Siems' article, including a shift in the training of lawyers from law schools to practitioners. Among the shifts that Siems contemplates is that as the changes occur, the nature of legal scholarship will become increasingly interdisciplinary. Siems' article suggest that legal scholars who are more likely to survive may well be those who are able to market themselves to other academic disciplines. Thus, race scholars, including LatCrit scholars, should be in a fairly good position over time as they are potentially marketable to other disciplines, including history, sociology and Latino/a studies or ethnic studies.

Tuesday, March 9, 2010

Positive Results in MALDEF, ACLU, NDLON Lawsuit Challenging Costa Mesa Anti-Solicitation Ordinance

Last month, I wrote about the efforts of MALDEF, ACLU and the National Day Labor Organizing Network to protect the rights of day laborers in southern California. The organizations filed a lawsuit challenging an anti-solicitation ordinance implemented by the city of Costa Mesa, CA. Last week, the City of Costa Mesa agreed to place a moratorium on the enforcement of its ordinance pending the outcome of a Ninth Circuit appeal challenging a similar ordinance. The press release announcing the positive results from the lawsuit can be found here.

En Chile: Dónde están los peruanos?

Two of the first known victims of last month’s Chile earthquake were Lurde Margarita Arias Dias, a Peruvian immigrant and her infant daughter, who died when their apartment collapsed on them as they tried to escape. (See Frantic Rescue Efforts in Chile as Troops Seek to Keep Order, NYT. February 28, 2010). A large Peruvian immigrant population makes its home in Chile, mostly segregated in the workforce by gender. The women perform domestic work and the men work in construction. Now that Chile is starting to pull itself together after the earthquake, the question come to mind: Dónde están los peruanos? Where are the Peruvian victims? How many other Peruvian immigrants have been the victims of this natural disaster?

We all know immigrants are the most vulnerable of any population, and this is worse during natural disasters. Dean Kevin Johnson deftly told us the story of what happened to immigrants during Hurricane Katrina (see his 2007 piece, Hurricane Katrina: Lessons about Immigrants in the Modern Administrative State in the Houston Law Review.) The situation of the Peruvians in Chile is shaping up to be equally difficult. The influx of Peruvian migrant workers in Chile is widely known, as is their mixed reception from the native Chileans. At present there are an estimated 85,000 Peruvian immigrants in Chile, or about 21% of the total immigrant population. They arrived during the strong economic boom in Chile after 1996. They are the second largest immigrant group after the Argentines. Even with these large numbers, they are not full participants in Chilean society. There are two reasons why Peruvians are excluded from mainstream Chilean society—first, because of their perceived tight knit group (for exaple there is a section of the city of Concepción commonly called Pequeña Lima (“Little Lima”). Secondly, in comparison to the immigrants from Argentina and Ecuador, who are typically professionals, technical workers or students, the majority of the immigrants from Peruvian migrant is that of an unskilled laborer.

Last week, Peruvian President Alan Garcia visited some of the Peruvians in Chile. When he returned to Peru, he took with him approximately 30 of his compatriots back to their country. While this is fortunate for these Peruvians, help for the rest of the victims of the earthquake is slow in coming For example, according to news reports, an eleven day old baby and a one month old infant girl are not being provided any services because of their “lack of papers.” “There is no food, no cash, nothing..” is what some Peruvian immigrants are saying. No Peruvian consular officials have been to visit the immigrant victims. Many are living in tents, and winter in the Southern Hemisphere is soon approaching. The Peruvian and Chilean governments must act swiftly to meet the needs of this population. The fact that they are immigrants should not act to their detriment in these difficult times.

Sunday, March 7, 2010

Remembering Trina Grillo (1948-1996)

This past weekend the University of Oregon law school hosted the 12th annual Trina Grillo Public Interest and Social Justice Law Retreat with the theme Globalization, Economic Justice, and Climate Change. The retreat embodies the aspirations of Trina’s scholarly and administrative work against injustice in its many forms and toward diversity and equality. As part of the program, I detailed her personal and scholarly legacy, and want to share some of that information here, especially for our young professors of color who may be unfamiliar with her work. Trina spent most of her life in Oakland, California. The daughter of an Italian mother and a Black Cuban American father, she started her teaching career in 1977 at UC Hastings and taught later at the University of San Francisco, in the subject areas of constitutional law, torts, and mediation, while also directing the academic support program. Her published writings encompassing themes of women, women of color, multiracialism, mediation, and inequality include these:

Trina Grillo & Stephanie M. Wildman, Obscuring the Importance of Race: The Implications of Making Comparisons Between Racism and Sexism (or Other-Isms), 41 Duke L.J. 397 (1991)

Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 Yale L. J. 1545 (1992)

Trina Grillo, Anti-Essentialism and Intersectionality: Tools to Dismantle the Master's House, 10 Berkeley Women's L.J. 16 (1995)

Trina Grillo, A Tribute to Dean Robert A. Stein: Former Dean of the University of Minnesota Law School, 80 Minn. L. Rev. 1 (1995)

Trina Grillo, Respecting the Struggle: Following the Parties' Lead, 13 Mediation Q. 279 (1996)

Stephanie M. Wildman with contributions by Margalynne Armstrong, Adrienne D. Davis & Trina Grillo, Privilege Revealed: How Invisible Preference Undermines America (1996)

Trina Grillo, Tenure and Minority Women Law Professors: Separating the Strands, 31 U.S.F. L. Rev. 747 (1997)

Scholars acknowledging our collective debt owed to Trina’s pathbreaking work include Richard Delgado writing in a symposium of essays published in her memory: Richard Delgado, Conflict as Pathology: An Essay for Trina Grillo, 81 Minn. L. Rev. 1391 (1997) (part of his ongoing Rodrigo Chronicle series). Trina’s struggles against injustice and her vision live on through the work of the annual retreat in her honor co-sponsored by SALT, through the work of the dozens of students, law professors, and activist lawyers who attended this year’s retreat, and through the work of all of us who labor toward la causa.


Friday, March 5, 2010

War Over Knowledge

War Over Knowledge[1]
Guadalupe T. Luna

Chicana scholar Teresa Córdova states: “In the struggle to give voice to our experiences, working class people of color encounter multiple mechanisms meant to silence us.”[2] One form of silencing includes institutions threatening educators with lost tenure for “daring” to teach Latinas/os Studies. Comprising a “war over knowledge,” as an example is seen in the present struggle to derail Chicana/o Latino Studies (“CLS”) at Michigan State University.

This recent version of “silencing Latinas/os” initially involved the arbitrary and capricious working and disparate educational conditions for CLS faculty and graduate/undergraduate students. Rather than protect the students however, and through a pattern and practice of heavy hand tactics MSU administrators are employing and re-directing the facts to ultimately eliminate CLS at MSU.

The struggle began after CLS faculty appointed a new director for undergraduate students. Thereafter the director initiated a series of confrontations and polarizing events that alienated many undergraduate and graduate CLS students (both female and male) and faculty members (both female and male). All attempts to meet with the director to resolve the issues were rejected with statements that there was “no problem.”

The “no problem” position however is difficult to reconcile with the director verbally harassing students and faculty members. Students faced threats of retaliation such as in withholding student funding. Attempts of the director to drive senior faculty from their office and students from their study space at CLS also provoked difficult situations. Harassment of both witnessed the director changing the outside door lock to the inner CLS suites; gratuitously charging both male and female students with sexual harassment or sex discrimination; following a pre-arranged bus trip of students and faculty to another state with ensuing harassment and intimidation of the class and its faculty during the outings presentations and dinner. In sum, the whole culture, learning environment and production of knowledge within CLS shifted thereby causing students to flee to libraries and cafeterias and other safe places to study.

Rather than attempt to resolve the issues the director went outside the program and garnered the “support” of individuals who were neither involved in CLS, nor ever attended faculty meetings. Support for the director followed from individuals who were never locked out of their offices, nor witnessed or experienced any of the above hostile working conditions and educational environment. In one situation a MSU police officer called a student at home stating their protests “had to cease” in violation of administration and due process law.

Following faculty governance procedures the faculty resolved to vote to remove the Director but the Dean instead formed a Task Force. To hear the Dean in her charge which also included the option of removing the Director, go to:

Comprised of graduate and undergraduate students, faculty as well as outsiders who had not attended faculty meetings, and after extensive testimonies from students and faculty the Task Force voted to remove the Director. The Dean however falsely and publicly reversed her earlier position and stated she had not given the Task Force the option of recommending the director’s removal. To the present the administration refuses to follow its own earlier mandate.

The above does not reflect the theoretical praxis that shapes the contours of CLS; nor is this an instance of gendered politics (recall female students and female faculty have all witnessed direct injuries). Neither is this an instance of the war over gendered identity politics (as the director asserts). The bottom line is that gendered identity politics obligate primary facts and evidence. And the primary facts and the Dean’s systemic shifting countervailing edicts reveal a hostile working and educational environment with attendant extra-legal harm to CLS students and faculty.

Yet an additional lesson remains. Specifically on top of failing to resolve the formally filed faculty and student grievances the fundamental issue emerging is that the University is on course to dissolve CLS. The University has responded to students’ not by addressing their legitimate concerns and grievances, but instead by retaliation and threats.

Further primary facts and evidence show that in a blatant disregard or faculty governance and due process the faculty names were removed from the CLS website. Even more egregious, upper level administration pressured faculty chairs from other units to threaten junior faculty who are protesting the director’s divisive administration and thereby rendering their potential tenure at MSU vulnerable. In one instance such pressures ultimately caused the constructive discharge of a junior Chicano faculty professor with much regret and disappointment to the remaining CLS faculty, students and supporters and causing yours truly to link his forced resignation with Title VII employment discrimination law.

CLS remains at heightened risk moreover when administrators refuse to reconcile the direct harm students’ experienced and without resolving their formally filed grievances. In the present for example the chances of Chicana/o students obtaining funding and teaching assistant posts remains elusive. Meanwhile students face a breach of first amendment rights or are threatened with the loss of inter alia scholarships; and without funding their chances of graduating disappears. The door to CLS elimination thereby, opening even further.

Colonial theory accordingly reveals evidentiary rules are manipulated when newer and arbitrary burdens of proof are shifted and where results do not match what power brokers seek to accomplish. See the Dean’s initial charge with her subsequent public denial of the Task Force’s results. Colonialism over gente de color is accomplished when such administrative recalcitrance “fails” to see causative factors leading to the disparate environmental educational culture at MSU and employ the immediate issues for its own purposes. It is not difficult to comprehend why the Dean has formed yet another Task Force comprised of individuals who publicly demonstrated hostility to CLS. In essence while the students’ are exhaustively challenging their forced alienation from a Program that initially drew them to MSU, the administration is thereby throwing gasoline into a raging fire.

Colonialism is thereby accomplished when long ignored intersectionalities are challenged in the production of knowledge. Recall the loss of tenure for faculty producing Latina/o knowledge, or the firing of the Cordova sisters in New Mexico for teaching Chicana/o histories, and the present forced departure of a CLS professor at MSU. Colonialism is revealed where MSU is not seeking to resolve a disparate educational and employment environment. In contrast and specifically, it is seeking the elimination of CLS and with its ultimate disappearance at stake, the University thereby succeeding in this war over knowledge.

[1]This essay is taken from the public record, through personal interview and direct knowledge. See also

[2]Teresa Córdova, Power and Knowledge: Colonialism in The Academy, in Living Chicana Theory, 17 (Carla Trujillo ed., 1998).

Thursday, March 4, 2010

The First Year of Immigration Policy Under the Obama Administration Struggling to Turn Principles Into Practice March 2, 2010

Kudos to my friend Dean Kevin Johnson and the Immigration Prof Blog for this important post:

The month of March marks the seventh anniversary of the Department of Homeland Security (DHS), which is home to the nation's three immigration agencies. It also marks the end of a sweeping internal review ordered by DHS Secretary Janet Napolitano - a review which has not been made public. Therefore, in order to assess the first year of immigration policy under the Obama Administration, the Immigration Policy Center releases DHS Progress Report: The Challenge of Reform. The report compares DHS's record to the "Transition Blueprint," a document delivered to the Obama transition team by immigration policy experts and advocates which focused on administrative improvements to the immigration system. IPC's overall analysis finds that while DHS struggles towards reform it has failed to meet some key expectations in many of the blueprint areas. The department has engaged thoughtfully and strategically on some issues and has made some fundamental changes in how it conducts its immigration business. However, turning principles into practice has fallen short, and the practical realities for individuals caught up in the system have not necessarily changed for the better. Ultimately, this first year was both promising and frustrating, a year in which the promise of reform seemed to conflict daily with the dynamics of an entrenched, enforcement-driven culture. For every two steps forward, it seems that the Department takes one step back, inching its way toward a more humane and just system. There is clearly much more that can and should be done at an administrative level. However, without Congressional action on immigration reform, there are limits to how much the system can be changed.

For over fifty years, the Supreme Court's standard for pleading a claim has been a liberal standard known as notice pleading. According to this standard, claims should not be dismissed unless "plaintiff can prove no set of facts in support of his claim." Conley v. Gibson,355 U.S. 41, 45-46 (1957). This standard did not require the plainftiff to plead detailed facts to support the claim. In Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), the Supreme Court made clear that there is now a new pleading standard that is applicable in all civil cases which holds that the plaintiff must allege sufficient facts to show that a claim is plausible. Judges are to use their "experience and common sense" in evaluating the plausibility of claims. Two new articles explain how this major shift in pleading standards is likely to create problems for Latinos/as and other minorities who seek to challenge discrimination. See Suzette M. Malveaux, Front Loading and Heavy Lifting: How Predismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases,; A. Benjamin Spencer, Iqbal and the Slide Toward Restrictive Procedure, Latinos/as and other minority plaintiffs will find it difficult to allege sufficient facts to meet the plausibility standard since such facts will often be unavailable to them and because judges may use their "experience and common sense" to conclude that the claim of discrimination is not plausible.

Wednesday, March 3, 2010

Racist incidents, protests spread at UC campuses

AP – Students rally at the UCLA campus in Los Angeles on Tuesday, March 2, 2010 to protest racially tinged … .By CHRISTINA HOAG, Associated Press Christina Hoag, Associated Press – Tue Mar 2, 9:47 pm ET
LOS ANGELES – A firestorm over racially and ethnically charged incidents at several University of California campuses spread Tuesday as UC San Diego announced a KKK-style hood was found on campus and students in Los Angeles and Irvine demonstrated against intolerance.

"What kind of campus promotes an environment that allows people to think it's acceptable to target people for their ethnicity, gender or sexuality?" said Corey Matthews, one of about 200 mostly minority UCLA students who held a lunchtime rally. "It's something about the tone of the environment that allows this."

At UC Irvine, about 250 people gathered for a "student solidarity speakout" to condemn the recent spate of racist incidents at UC San Diego that targeted black students and another incident last month at UC Davis, which targeted a Jewish student with a swastika carved on her door, said Marya Bangee, an event organizer.

The protests came on the same day UC San Diego announced the discovery of a white pillowcase fashioned into a KKK-style hood — the third racist incident around the campus in as many weeks — and a day after UC Santa Cruz officials found an image of a noose scribbled on the inside of a bathroom door.

Officials found the hood, which bore a hand-drawn circle and cross, on a statue of children's book author Theodor Geisel, aka Dr. Seuss, outside the main campus library late Monday. A rose had been inserted between the statue's fingers.

Detectives were analyzing the pillowcase for fingerprints and DNA evidence, a university statement said.

UC San Diego Chancellor Marye Anne Fox vowed to punish the culprits to the fullest extent of the law. "We will not tolerate these despicable actions," she said in the statement.

The hood came on the heels two other UC San Diego incidents: a February off-campus, student-organized "Compton Cookout" party that mocked Black History Month with ghetto stereotypes; and a noose found hanging from a library bookshelf last week.

UC San Diego campus police said they had completed their investigation into the noose incident and turned their results over to the city attorney on Tuesday for possible hate crime charges.

One of the students responsible for the noose apologized to the university community in an anonymous letter published Monday in the campus newspaper. She said the noose was formed while she and friends were playing around with a piece of rope and had no meaning as a lynching symbol.

The student said she is not black, but is a minority.

The incident also is under investigation by law enforcement agencies, campus spokeswoman Judy Piercey said.

Although UCLA students said no racial incidents had occurred recently on their campus, in 2007, a fraternity held a "Tijuana Sunrise" party that mocked Mexican-Americans with stereotyped images, they said.

The incidents are disturbing and most likely the work of "outliers" using offensive and outrageous behavior to gain notoriety, said Brian Levin, director of California State University's Center for Study of Hate and Extremism in San Bernardino.

He said surveys show young people are less prejudiced than ever, but "these things touch a nerve, and these folks know it."

UCLA demonstrators called on administrators to institute a required ethnic studies course that would teach students about other cultures.

"It would be a very strong and powerful statement for diversity," said Kent Wong, a speaker at the rally and director of UCLA's Center for Labor Research and Education.

At UC San Diego, officials were already moving to create a more tolerant environment after meeting with black student leaders, Piercey said.

Initiatives include recruiting more minority faculty, instituting a mentoring program, creating an African American Resource Center, and ensuring funding for the diversity office, Piercey said.

Tuesday, March 2, 2010

In January, the Warren Institute issued a report on the Department of Homeland Security’s Operation Streamline that has been getting much attention in the media and in the blogosphere. The report interests me because it challenges the government’s broken windows theory of immigration enforcement. Operation Streamline targets as priorities for prosecution such low-level immigration violations as entry without inspection and re-entry after removal. The program has stripped prosecutors of their discretion to prosecute such cases. The vast majority of defendants under the program have been migrant workers with no criminal history. The rationale for the policy has been that it enhances the government’s ability to secure its borders, especially in the Southwest. In fact, the report found, prosecutions of serious security-related crimes such as drug trafficking and alien smuggling have declined or increased very little at the same time that petty immigration prosecutions have dramatically increased under the program. The results are important. Advocates who decry the racial profiling aspects of these low-level prosecutions have support in a report that quantifies the negative enforcement effects of the policy. The report calls for an end to the policy because of its waste of resources and it also calls for restoration of prosecutorial discretion. I would add that given the facts in the report, Operation Streamline’s purported goals of decreasing border crossings and increasing border security do not outweigh the racial profiling implications of the policy. The report can be found here.

Ay Bendito in Puerto Rico!

If you are the holder of a birth certificate from Puerto Rico-- BEWARE! As of July 1, 2010, your validly issued birth certificate will be null and void. The Puerto Rican Legislature enacted Puerto Rico Law. No 191 (formerly Senate Bill 1182) last December, in response to concerns about Puerto Rican birth certificates commanding high prices in the black market, following the break up of a crime ring which trafficked in Puerto Rican identity documents.

Because a Puerto Rican birth certificate in prima facie evidence of U.S. citizenship, these documents, of course, have immigration implications for those who use them. At present, the federal government is deciding how to handle U.S. passports issued to persons who use Puerto Rico birth certificates to prove U.S. citizenship. However, it seems like the Puerto Rican legislature has gone too far with this law. Not only are all the pre- July 1, 2010 birth certificates invalid (without exceptions for older Puerto Ricans, etc.), but Puerto Ricans are now prohibited from surrendering custody of a certified copy of a birth certificate to any person, public or private entity, they will only be allowed to present such certified copies to the agencies, and they cannot be retained by the person, public or private entity under any circumstances. The law sets forth penalties for violations of the law.

More than half the Puerto Ricans in the mainland U.S. were born in the island. This law will affect them all. To apply for a Puerto Rican birth certificate under the new law, see

To view a copy of the law, see in Lexis Nexis 2009 P.R. ALS 191;2009 PR Laws 191;2009 P.R. S.B. 1182 "Act to Prohibit the Retention, Keeping on Record and keeping under Custody of Certified Copies by Public and Private Entities."