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Understanding Structural Racism in the U.S. Government

Updated: 2 hours ago

Written by: Emily Chen, Edric Huang, Hannah Seabright, Laura Han

Edited by: Emily Chen, Jenny Dorsey

Table of Contents

  • Immigration Laws

  • Education System

Immigration Laws

The unequal road to naturalization and citizenship for BIPOC is as old as the United States itself. As early as the Naturalization Act of 1790, America imagined the freed white man as its default citizen, explicitly denying BIPOC their ability to belong and be recognized.

Although enslaved Africans were brought over through forced immigration to work in the American colonies as early as 1619 -- were later counted as ⅗ of a person in the newly formed United States to help Southern states gain electoral college votes -- they were not not legally counted as American citizens until slavery was abolished and the 14th Amendment was written into law in 1868.

Similarly, after indigenous people were forcibly resettled & acculturated, they were not given citizenship until the 1924 Indian Citizenship Act. In fact, in 1798 America legally offered legal standing to Canadian and Nova Scotian refugees escaping the British colonies of Canada but gave no such option to the Indigenous peoples they intentionally displaced with these white bodies (Taparata 2019).

Anti-Black and anti-Indigenous capitalism laid the groundwork for much of America’s racist immigration policies, alongside U.S. military imperialism abroad and claims to “national sovereignty” despite being built on stolen land. Through the past few centuries, American laws have continued to reinforce the “white citizen” as the default and make it clear that immigrants and their descendants do not ‘deserve’ the same rights, freedoms, and privileges as their white counterparts.

Formalizing Racism in Immigration: Anti-Asian Sentiments from 1882-1924

Chinese laborers became one of the first targets of exclusionary immigration laws as a response to rising anti-Chinese sentiment for “displacing” white workers. This public and political fervor culminated in the 1882 Chinese Exclusion Act, the first law to formally ban a segment of people from immigrating to the U.S. Initially, the act was focused on halting Chinese immigration over a 10-year period, but subsequent laws piled on arbitrary regulations and extended this “indefinitely” — that is, until 1965. Through the various stages of Chinese (and subsequently all Asian) exclusion, the American state began to write its playbook for nativism, or legal policies geared towards protecting native-born and already-naturalized American citizens.

Two major Supreme Court cases laid the long-standing foundation for our government’s ability to exclude. In Chae Chan Ping v United States (1889) and Fong Yue Ting v United States (1893), the Supreme Court used racist arguments to strike down two challenges to Chinese exclusion. In the majority opinion for Chae Chan Ping, Justice Stephen Field characterized the Chinese as “dangerous to … peace and security”, “strangers in our land”, and “menaces to our civilization.” This reflected widespread nativist sentiments, shouted by Americans who felt financially threatened by Chinese laborers. This, the Supreme Court declared, made it permissible for Congress to ban such people from our country.

Additionally, Chae Chan Ping established the plenary power doctrine, or the rule that Congress’s power over immigration is absolute. Following Fong Yue Ting, the power to exclude and deport was also firmly planted into Congress hands, sans judicial review. Both cases very clearly foreshadowed that race would be a (if not the) factor used to surveil, exclude, and deport unwanted immigrants.

Shortly after, driven by fear after the Russo-Japanese War marked Asia’s ascension in modern warfare, America expanded its exclusionary regime to the entire “Asian race” via two sweeping laws. In 1917, Congress created the Asiatic Barred Zone, prohibiting “natives or descendants of natives” of most, if not all, of Asia. Importantly, though, it did not apply to white people born in the zone. Later, with the Immigration Act of 1924, Congress formalized a racial hierarchy by creating “nationality quotas” where certain numbers of immigrants per country were allowed, while still completely excluding Asia. However, nationality was always secondary to race. For example, after 1924, a Japanese person born in Brazil was not recognized as Brazilian, but Japanese.

The Immigration Act also outright banned the immigration of “aliens ineligible to citizenship” -- that is, Asian “aliens” covered by the Chinese Exclusion Act or discussed in Chae Chan Ping, who were denoted as “racially ineligible to naturalize”. The justification for this ban was one of racial “difference”.

As Woodrow Wilson said, America had learned its lesson and did not want another “race problem to solve”.

When multiple Asian parties tried to make the case for citizenship during this period, race (as either biological fact or cultural fact) was always evoked. Ozawa v United States (1922) and Thind v United States (1923) are concrete examples.

After this foundation was set, Asian countries would go on to receive disproportionately small parcels of visas, mostly due to war and military conflict (e.g., America’s involvement in the Philippines, China’s role as a major Pacific ally in WWII, and the shame of Japanese internment.) It was not until 1943 that the Chinese Exclusion Act was dismantled, and took until 1965 for quotas from Asian countries to be formally revoked by the Immigration and Nationality Act (Hart-Celler Act).

Constructing Criminality: The Mexican American Identity from 1929 to 1965

The “Mexican American” identity was constructed before Chinese exclusion; its initial creation was rooted in U.S. imperialism, and its racialization coincided with its criminalization.

In the 1840s, the Mexican-American War was justified using Manifest Destiny, which presumed white superiority and non-white inferiority. Upon victory, however, America scratched its head when it encountered Mexicans living on newly-American land. These Mexicans were made “white” by law, through a “reverse one-drop rule” -- that is, one drop of European (in this case, Spanish) blood was enough to confer whiteness.

Although this put newly-“white” Mexican Americans above Black and Indigenous people, “Mexican-Americans” were still not fully integrated into white American society. This marks the genesis of what legal scholar Laura Gomez (2007) describes as an “off-white” Latino identity, often leveraged to incite interracial conflict using the “carrot” of white citizenship. The racially-ambiguous Mexican-American identity planted these roots.

The Latino identity became further racialized due to America’s open southern border. Throughout the 19th and 20th century, American employers and even local governments actively recruited Mexican laborers to their farms, ranches, railroads, and mines. Up until the 1920s, little attention was paid to the southern border; people were allowed to cross over it as they pleased to fulfill labor needs.

However, the free passage of Mexicans into the U.S. and bypassing the “white-only” immigration system presented a problem to the federal government. As a reaction, Congress passed Blease’s Law, or the Undesirable Aliens Act of 1929, spearheaded by “a proud and unreconstructed white supremacist”. This made “unlawfully entering the country” a misdemeanor and returning after a deportation a felony, which would then ban any subsequent re-entry.

In this light, the beginnings of what is now ICE (Immigration and Customs Enforcement) began nearly a century before its formal establishment in 2003. After Blease’s Law, the border became a criminalized place, with “legal” entry points intentionally positioned far apart and three new prisons being constructed to detain undocumented immigrants. (These prisons remain open today.) As Mexican immigrants continued to enter the country for work or other opportunities, their identities became criminalized; Border Patrol “subjected Mexican immigrants...to kerosene baths and humiliating delousing procedures because they believed Mexican immigrants carried disease on their bodies.” (City of Inmates, Kelly Lytle Hernandez)

“Illegality” became a way for America to assert its sovereignty using racist tropes. Blease’s Law coincided with the Border Patrol’s separate repatriation campaign of 1929-1936, which detained and deported nearly 1.8 million Mexican immigrants, including U.S.-born Mexican American citizens. White supremacists and eugenicists also leveraged the trauma of the Great Depression as a justification to remove Mexican immigrants (now characterized as “stealing jobs”). According to former California State Senator Joseph Dunn, who conducted a 2004 investigation into these deportations,

“the Republicans decided the way they were going to create jobs was by getting rid of anyone with a Mexican-sounding name.”

Despite the widespread racism, the reality of unfilled jobs, especially in the agricultural sector, prompted the government to sanction programs such as the Bracero Program (1942 - 1964), where Mexican laborers were allowed into the U.S. as guest workers but not given the rights of citizenship. While the program promised set wages, free housing, decent meals, insurance, and free transportation back to Mexico at the end of the contract these were rarely upheld; as a result, many negotiated backdoor deals to enter the U.S. “illegally”.

This set the stage for Operation Wetback. From 1954-55, the American government led a fully militarized campaign to find “illegal” immigrants (many of whom were American citizens), pack them into cargo ships, and deport them back to Mexico. The media corroborated the machismo, militarized image of Operation Wetback with criminalizing descriptions of “brown peril” and of alien “hordes.” As the Latinx identity expanded to include others, such as those from Puerto Rico and the Northern Triangle, the media cast them all into an ambiguous racial image: simultaneously “illegal” yet necessary for a functioning American society.

As Slavoj Zizek writes, “The way the universe of capital relates to the freedom of movement of individuals is inherently contradictory: it needs ‘free’ individuals as cheap labor forces, but it simultaneously needs to control their movement since it cannot afford the same freedoms for all people.”

America has never stopped these deportations, nor has it properly addressed the humanity of undocumented immigrants in this country. The enforcement of Blease’s Law, also known as Section 1325, expanded prolifically under Presidents Bush, Obama, and Trump. With the creation of “illegal immigration,” the American state created a problem that they’ve since become obsessed with “fixing” — without ever doing anything close.

A False Turning Point: Hart-Celler Act of 1965

1965 is heralded as a turning point in American history because the Hart-Celler Act opened the doors for immigrants all around the world. With the government finally publicly admitting that nationality quotas had resulted in heavily racialized patterns of immigration, the Act replaced them with formal equality: no nation could claim more than 7% of the available visas in any given year. President Johnson would go on to say: “[It repairs] a very deep and painful flaw in the fabric of American justice. It corrects a cruel and enduring wrong in the conduct of the American Nation.”

Hart-Celler did indeed spark a massive demographic shift. However, as with much of the Civil Rights movement, racism merely evolved after 1965. It created formal “equality” in the eye of the law, yet its implementation and execution fell short. While the Act should rightfully be celebrated for officially dismantling the Chinese Exclusion Act, it privileged immigrants who were coming for family reunification (which was unlikely for Asian Americans after decades of separation) and employment visas, which privileged highly skilled immigrants. The implicit metric for entering the U.S. became tied to immigrants’ abilities to contribute to our capitalist society. (For Asian Americans, this also set the stage for the model minority myth.)

Moreover, the Hart-Celler Act was ignorant of previous immigration flows. For the first time, it capped the number of immigrant visas available to Mexico and the Western Hemisphere, immediately creating a huge backlog. Legal scholar Gerald Lopez points out that it “made no room for the massive undocumented migration of Mexican labor that had already become an essential feature of U.S. and Mexican life and, not coincidentally, again avoided enacting employer sanctions.” While it may not be racist in intent, the choice to bypass historical injustices alluded to how insignificant the Latinx identity was —and is — in the law’s eye.

With more restrictions came more opportunities to police. As critical race theorists and legal scholars Devon Carbado and Cheryl Harris recount: The ruling of United States v. Montoya de Hernandez (1985) permitted strip searches at the border without either probable cause or a warrant; United States v. Martinez-Fuerte (1976) sanctioned a factory sweep of Latino workers by declaring actions beyond the reach of the Fourth Amendment; United States v. Brignoni-Ponce (1975), which sanctioned the use of race to justify roving patrols near the border. Anything became allowed at an increasingly racialized border, as the economic anxiety of the 1980s spurred deportations harkening back to the 1930s.

White Saviorism: The Beginning of U.S. Refugee Policies from 1980 - 2000

While often viewed through the lens of humanitarianism, asylum has always been a political technology. As pointed out in the introduction to this section, racial politics lay at the heart to offer refuge to white Canadians — who pledged their undying loyalty to this country — but never to Indigenous or enslaved peoples. When Creek Indians and African Americans were finally offered “refuge” and soon contested forms of citizenship, it would be on the basis of their labor and use. Evan Taparata (2019) traces these genealogies beautifully.

These politics (of enhanced white loyalty and displaced non-whiteness) echo the U.S.’s contemporary refugee policies, which came after WWII. In the 1950s, for example, Eisenhower rewarded parole to over 15,000 Hungarians who had resisted their Soviet-controlled government. Later, the Carter administration actively accepted over a quarter million Vietnamese, Cambodian, and Laotian refugees because they fit neatly into the U.S.’s war on communism.

In fact, asylum seekers’ “very desire for asylum provided much-needed ideological evidence of the superiority of Western liberal democracy” against communism (Gibney 2005).

Meanwhile, nothing was offered to the millions of Muslims fleeing post-partition India, or the Mozambicans and South Africans and Rwandans thrown into discord over recently imposed borders. Even after the U.S. officially established the Refugee Act of 1980, Salvadorans and Guatemalans were granted asylum less than 3% of the time. These groups were fleeing the Northern Triangle of Guatemala, El Salvador, and Honduras, which had erupted into civil war and genocides -- much of which can and should be attributed to U.S. intervention, from extensive military training to puppet regimes to the political creation of gangs to harmful economic policies that only benefited the U.S. The U.S. could not accept refugees from these countries without also accepting responsibility for its actions.

In the same year as the Refugee Act, the U.S. Coast Guard began intercepting boats of Haitian refugees and caging them at Guantanamo Bay, because they posed “a serious national problem detrimental to the interests of the U.S,” according to Reagan. This created a dangerous precedent: by remotely detaining asylum seekers, the U.S. could bypass “the need to grant them constitutional protections” like due process or freedom from cruel and unusual punishment (Gibney 2003). In stark contrast, many white-passing Cuban refugees were widely welcomed during the same time period. Yet again, racism ensured Black and Brown bodies were largely excluded from the chance at asylum.

The selectivity underlying U.S. asylum policy fits neatly into its imperialist and neocolonial history. Now that East Asian migrants have largely become palatable to America, those “racially ineligible to naturalize” are now Black and Brown people. Since 1980, 55% of refugees have come from Asia (including the Middle East / Southwest Asia), 28% from Europe, 13% from Africa, and 4% from Latin America (Pew Research 2019). Even when race is typically not discussed in the context of asylum, asylum policies reproduce and reinforce race by solidifying white supremacy through charity.

However, the guise of humanitarianism in the asylum process adds a dangerous element. Reagan claimed that Haitians, Guatemalans, and Salvadorians were economic, not political, migrants -- and therefore ineligible for asylum. This entirely ignores the conditions that created poverty in these countries, which include violence incited by the U.S.-sanctioned gangs. Instead, poverty and violence are characterized as the natural condition of the nation and its (Black and Brown) people.

Because asylum is largely dictated on an individual basis, the U.S. Border Patrol, ICE, and immigration officers have internalized this inaccurate structural inferiority directly onto the people. Guatemalans and Salvadorians became “dangerous illegal immigrants” associated with the War on Drugs; Haitians were labeled as welfare-seekers and disease-bearers (specifically of HIV). Southeast Asian refugees were also subject to this racialized treatment, their brown skin undermining their relationship with the model minority myth. All of these tropes continue to be perpetuated today by a President who has largely cut off refugee and asylum policies, effectively reducing legal means of immigration.

Racial Profiling in the Name of National Security: 1996 - 2016

We include these historical examples to remind us that structural racism is historically produced. However, our current immigration regime is marked by some extreme additions, beginning with the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and 1996 Antiterrorism and Effective Death Penalty Act (AEDPA). These two acts essentially invented immigration enforcement as we know it today — where deportation is a constant and plausible threat to millions. It vastly expanded the number of crimes that would trigger a deportation for even green card-holders, including low level drug crimes, without any due process. Of course, “drugs” and other crimes were already firmly associated with only a specific segment of immigrants.

IIRIRA disregarded most grounds for deportation appeals, eliminated much judicial discretion in cases, and created the “expedited removal” that Trump quotes often. It also allowed individual Border Patrol agents to rapidly issue orders of deportation to people arriving at the border, unless a person can demonstrate to immigration officials that they have a “credible fear” of persecution in their home country. If the officials determine that a person’s fear is credible, they may then apply for asylum; if not, they are deported.

As legal scholar Gabriel Chin has pointed out, racial profiling was now essentially codified into immigration law. According to law enforcement officials, however, they were not interested in discriminating against Latinos but rather interested in arresting people who violate immigration law, the majority of whom “just happen to be” Latinos.

Unsurprisingly, this implicit discrimination expanded post-9/11, when “national security” became the default reason for deportations and militarized enforcement. Plenary power persisted here; one example is the Special Registration Program, controlled by INS and later the Department of Homeland Security (DHS) from 2002 to 2011. The program targeted men from majority-Muslim countries by requiring them to register and periodically re-register with immigration officials regarding their visa status. While the program was enacted to “defend national security”, it was nothing more than an opportunity to enforce a racial identity and persecute a religious faith.

Many have pointed out how 9/11 solidified and reinvigorated the “Arab” / “Muslim” identity. While Arabs have bounced between whiteness, Blackness, and colonial imaginaries throughout history, after 9/11 they were boxed into a Brownness linked to terrorism — a criminality familiar to Latinos and Southeast Asians. Fear was used to legitimize the government’s ability to exclude. With 9/11 and the U.S.’s failure to “win” in Iraq and Afghanistan, the media staged our physical borders as our last frontier against this civilizational threat of Islam as both religion and race.

Prior to the mid-1990s the annual number of deportations had not exceeded 50,000 for decades. By the turn of the century, deportations were at just under 200,000 annually. With the passage of the Patriot Act in late 2001, which granted the power to deport anyone the Attorney General had “reason to believe” might facilitate terrorism, the number of deportations reached nearly 400,000 in 2009 and peaked at 430,000 in the middle of the Obama era. (Even though mass deportations were launched in the name of the war on terrorism, Mexican immigrants actually bore the brunt of them, comprising 72% of those removed in 2009. More data can be found here and here.)

Moreover, racial profiling does not only happen on the federal level; the effects trickle down. Since Bush established DHS in 2002, which houses ICE and Customs and Border Patrol (CBP), its budget has steadily increased over the years. Local law enforcement soon became deputized to assist with immigration raids, and by 2007 all fifty states had enacted some law dealing with “illegal immigration.” Most severely, Sheriff Joe Arpaio of Maricopa County, Arizona, built his reputation on his tough stance toward “illegal immigrants.”

Arizona entered the national conversation as a result of not only Arpaio but also S.B. 1070, or the Support Our Law Enforcement and Safe Neighborhoods Act. The law openly declared its policy to be “attrition through enforcement” and its intent to make living in Arizona virtually impossible for undocumented immigrants. It legalized racial profiling and made it a crime for undocumented immigrants to work in the state. Over 10 states followed in Arizona’s example.

Rather than defend the humanity of undocumented immigrants, Obama responded to S.B. 1070 by attempting to gain the public’s trust. He enhanced both ICE and CBP, and released statements on his unparalleled enforcement record. As a result, Obama is often discussed as a “Deporter-in-Chief”, with his first years of office overseeing “unprecedented levels of personnel, technology, and resources to the Southwest border” and a widely increased number of “boots on the ground” (i.e. Border Patrol agents). However, his militarization is merely the legacy of Presidents before.

In becoming racialized, the border has blanketed the country. More than a line on a map that separated us from Mexico, it became inscribed on the skin of BIPOC at large. More than a marker of difference, it became a marker of death. Between the Arizona desert littered with backpacks — a product of the U.S.’s “Prevention through Deterrence” campaigns — and the looming risk of deportation to warzones, immigrants are no longer teetering on a line of belonging, but life or death.

Xenophobia Codified: The Trump Era

While Trump may seem different in how he has gone above and beyond to restrict both illegal and legal immigration pathways, none of his policies are necessarily “new.” His brand of nativism continues to use racism to protect an immiserating capitalist order, racializing immigrants to promote the idea of economic prosperity requires punishing many. What is significant, though, is how widely and comprehensively he pulls from history.

Sarah Pierce and Jessica Bolter from MPI have rigorously covered the wide expanse of nearly 400 racist immigration policies that Trump has enacted, most of which are in the name of the plenary power doctrine. To highlight some continuities across time, we’ve denoted some examples of his deeply racist ideology towards immigration below:

1/ A new denaturalization task force has begun working to strip citizenship from naturalized American citizens. While there are few legal grounds for denaturalization, the administration has already referred 100 cases to the Justice Department for prosecution. The creation of the task force is causing a sense of insecurity and uncertainty among naturalized citizens and permanent residents, hearkening back to the Mexican repatriation campaigns of 1929.

2/ The administration has put into force elements from the IIRIRA that were never implemented. For example, ICE has begun levying fines of up to $799 per day for unauthorized immigrants who remain in the country in violation of a removal order. This pulls heavily from the public charge rule initially created in the wake of the Chinese Exclusion Act. What began as a $0.50 surcharge on Mexican immigrants — insurance that they will not become a “public charge” or burden on taxpayers’ wallets — has now expanded into a wealth test by denying green cards to any immigrants who “may” become a public charge.

3/ Over the course of the pandemic, Trump used public health as an excuse to bar asylum seekers, much in the same way the U.S. did in the 1980s by linking Haitian refugees and parolees with HIV. In a federal rule still under review from July, the administration added a range of diseases (such as a number of fully treatable STDs) to a list of conditions that would ban entry. This narrative of the diseased immigrant body follows in line with the many stories that have come out of ICE detention facilities, as recently as the forced sterilization and hysterectomies reported by Dawn Wooten.

Why Don’t We Talk about Anti-Blackness in Immigration More?

Within his inflammatory rhetoric, Trump has claimed that Nigerian immigrants will never “go back to their huts” after coming to the U.S., and has covered all of the Caribbean and Africa within his numerous bans and sanctions. It’s estimated that nearly 5 million foreign-born Black individuals live in the U.S., 84% of whom have arrived by legal means. However, outside of organizations such as BAJI or UndocuBlack (whom much of this research can be attributed to), immigration is largely not prioritized in many conversations around anti-Blackness.

Black immigrants are disproportionately affected by mass incarceration as a funnel to deportation. Under our current regime, they continue to be an integral part of the “criminal” immigrant narrative. As legal scholar Breanne Palmer details, nearly 1 in every 3 non-citizens facing deportation on criminal grounds is Black. Whereas most immigrants are 3.5x more likely to be detained for an immigration violation (i.e. a civil offense) than a criminal conviction, Black Caribbean immigrants are twice as likely to be detained as criminals. In The Immigration Crucible: Transforming Race, Nation, and the Limits of Law, Jamaican author Philip Kretsedemas shows that local law enforcement officers arrest and turn over Black Caribbean immigrants at a rate 5x their representation in the undocumented population.

Perhaps America’s aversion to discussing Black immigrants comes from our shame around slavery. While most people mark 1882 as our first federal immigration policy, this claim erases the fact that slavery was forced immigration regulated by federal law. When we take into account slavery as the foundation of Black migration flows in the U.S., it’s unsurprising that Black migration flows were more outward from the country than inward for a little bit of time. When immigration increased from the rest of the world in the early 1900s, only a total of 7,368 persons were admitted from Africa; in 1902, only 37 came. (Source: U.S. Census Bureau). Even then, restrictions were levied: a separate quota was set up for Caribbean migration from British territories, requiring an ancestry test specifically designed for “curtailing Negro immigration from the West Indies” (Vilna 2004).

Even now, Black immigration from the Caribbean and Central and South America is often overlooked or not well understood, documented, or analyzed. There is very little data on race along the border; while we know that nearly 70,000 unaccompanied Central American minors crossed the U.S. border in 2014 alone, it is unclear how many of these migrants are Black. Reports suggest that many of them are Garifuna, who have been dealing with the consequences of environmental damage, land grabs and narco trafficking. As a result of this invisibility, Black migrants receive less attention and fewer resources, such as necessary translation services.

For more information on anti-Blackness in immigration and Black immigrants at large, follow BAJI and UndocuBlack Network.

Pulling at the Roots: What Can We Do?

Unfortunately, immigration law and policy is largely out of our hands as a result of the plenary power doctrine. That being said, structural racism feeds off our implicit biases and assumptions. We believe that small acts of resistance that change our collective consciousness are necessary in order to advocate for more systemic changes.

1/ Remember that the border is everywhere. While incredible organizations (like RAICES and Al Otro Lado) continue to do work on the literal border, immigrants and non-citizens are terrorized everywhere. Immigrant advocacy organizations as well as immigrant-centered organizations are always in need of support. Help raise awareness for these organizations, and ask if there are ways to volunteer.

2/ Challenge your own biases. When you think of a refugee, who do you imagine? How intimate are you with immigrant communities and backgrounds distinct from your own? How intimate are you with undocumented communities?

3/ Know your rights — as well as the rights of immigrants. Especially as ICE continues to conduct covert operations, it’s crucial to know how to de-escalate a situation. The ACLU details a lot of important information here.

4/ Ask non-citizens what they need. Especially in light of attacks on legal and illegal immigration pathways, many noncitizens are forced to reckon with their status in America. If you are a citizen, ask if there are ways to use your privilege in their support.

5/ Stay alert of new federal rules and regulations. In the past four years, Trump has quietly proposed a plethora of federal rules while evading public attention and oversight. However, we do have a say! Federal rules and regulations are open for a comment period, during which individuals and organizations can critique, propose amendments, or encourage the rule’s passage. The government is obligated to read every unique comment and, in the final rule, address them in its logic. Though commenting may not ultimately overhaul a proposed rule, they can change bits and pieces of the rule. Moreover, all comments become a part of public record, and can be used in court after a final rule is posted. Read more about public comments here.

6/ Assert your political voice. When voting, be aware of the candidates’ immigration platform. Presidential candidates may receive the most scrutiny for their platform but remember that any political candidate, including at the local level, may have a stance on immigration.

7/ Keep learning. While it is impossible for this blog post to be completely comprehensive, we hope it provides a foundation to learn even more about immigration policy and how its effects bleed into the lives of BIPOC at large.

Additional Reading / Sources

Public Education System

The Origins of Systemic Racism in Education

Following the Civil War and emancipation of enslaved African Americans, Congress passed three Constitutional Amendments in the 1860s, known as the Reconstruction Amendments, that abolished slavery and involuntary servitude (13th), provided citizenship to those born or naturalized in the U.S. regardless of race (14th), and guaranteed the right of all citizens to vote (15th). The following decade, known as the Reconstruction era (1965 - 1977), was the attempt by the U.S. Government to address the inequities and the protect the rights of newly enfranchised African Americans.

However, the 1880s marked the resurgence of white supremacy in the south and the rollback of these advancements; Jim Crow laws, voter suppression, and quasi re-enslavement eliminated the gains made by freed people. One of the most infamous Supreme Court rulings that codified state-sanctioned segregation and provided the foundation for institutionalized inequality was Plessy v. Ferguson (1896). The majority opinion effectively declared “separate but equal” public facilities, such as schools and public transportation, as constitutional and not in violation of the Equal Protection Clause of the Fourteenth Amendment.

While these Black-only schools may have been denoted as “equal”, in reality they did not receive nearly the same amount of funds as white-only schools and lacked adequate resources and facilities for Black children. Teachers at Black schools were paid substantially less and resources at Black schools were often discarded by nearby white schools. In South Carolina, the government spent 3x as much on white schools than Black schools and 100x more on the transportation of white children than Black children to schools.

Founded in 1909, the National Association for the Advancement of Colored People (NAACP) began by fighting for racial equality through the creation of legislation that would protect African Americans from racial discriminatory laws. In the 1930s, they turned their focus to education, eventually culminating in the Brown v. Board of Education (1954) ruling that finally overturned formal racial segregation in public schools.

Regarded as one of the most consequential legal judgments, Brown v. Board of Education actually consisted of five different cases -- Brown v. Board of Education of Topeka, Briggs v. Elliot, Davis v. Board of Education of Prince Edward County (VA.), Bolling v. Sharpe, and Gebhart v. Ethel -- each centering around the constitutionality of school segregation. Chief Justice Warren delivered the opinion of the Court, stating:"We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."

However, the Supreme Court did not provide any guidelines on the implementation of this decision until the following year and it would take many more years for all public schools to be desegregated with white southerners complaining of changes to their “way of life”. The “Little Rock Nine” illustrates the educational apartheid and intense resistance that white southerners had towards integration. In 1957, as nine Black students prepared to enter Central High School in Little Rock, Arkansas for the first time, they faced the national guard and a mob of hostile white people.

In contrast to the loud and disruptive resistance to integration, southern states also enacted covert methods of segregation; for example, using home address to determine school placement shuttered Black children in redlined neighborhoods from accessing the same education as their white peers. Even though redlining was outlawed in 1968 with the Fair Housing Act, previously redlined neighborhoods still feel the repercussions, often receiving less taxpayer funding for education as a result of lower property values.

In 2018, school districts located in neighborhoods with the highest rates of poverty received an average of $1,000 or 7% less in funding per student than those in the wealthiest zip codes. In some states, the difference in state and local funding was up to 22%. Similarly, school districts with the largest population of Black, Latinx, or indigenous students received an average of $1,800 or 13% less in funding per student than those serving the fewest students of color. For a school district with 5,000 students, this difference adds up to a significant funding gap of $9 million per year.

Furthermore, there are state-by-state restrictions on open enrollment at public schools, or the ability to transfer to another school within or outside of your district. Policies like the No Child Left Behind Act of 2001 can make schools more likely to push out low-performing students in order to meet national testing standards, which only serves to compound existing problems while overlooking the systemic roots that generate income, neighborhood, and education discrimination.

While Brown v. Board of Education was a landmark decision which set the stage for the Civil Rights Movement, it was ultimately unsuccessful in the desegregation of schools. Black children are even more racially and socioeconomically isolated and the racial achievement gap between Black and white students has only widened. The legacy of Brown v. Board of Education and the roots of systemic racism in the U.S. education system are evident today in the increased criminalization and isolation of marginalized students, most notably Black and Brown students.

Consequences of Systemic Racism in Education: School-to-Prison Pipeline

The school-to-prison pipeline refers to the consistent stream of children (disproportionately students of color, especially Black boys) that move from public schools into the prison system. Often this process starts with disciplinary action due to subjective behavioral issues such as “disrespect”, which is influenced by negative stereotypes such as Black youth being more “adult” than their peers and Black boys being dangerous. (White students are more likely to be disciplined for recordable offenses such as vandalism.) As a result, Black students represent 31% of school-related arrests and are 3x more likely to be suspended or expelled compared to their white peers. This process starts incredibly young: 50% of suspensions in preschool are Black children despite a report finding that Black students are misbehaving no more than other students.

Instead of offering these youth the support to succeed in school, such as additional tutoring or counseling services, or working to fix larger, systemic issues they may be facing in their lives, these youth are punished with zero-tolerance policies that greatly increase the likelihood of them either entering a juvenile detention system or dropping out of school altogether. As Dani McClain writes in The Atlantic from her interviews with Jessica Black, a mother of two Black teenagers:

Behaviors that many Black parents might consider annoying but developmentally appropriate, such as an ill-timed joke or talking back to an adult, are treated by school staff as cause for suspension. From there, students are pushed out of classrooms, lose learning time, and can end up in the school-to-prison pipeline.

Many factors have also exacerbated the school-to-prison pipeline. The Gun-Free Schools Act in 1994 prompted widespread adoption of zero-tolerance policies that resulted in hefty punishments -- such as a year-long, out-of-school suspension -- for any students caught with a “weapon” at school. (These policies were widely criticized as “weapon” was so loosely defined students could be suspended for making guns with their fingers.) This coincided with schools adopting their own version of the broken window theory of policing, or utilizing harsh crackdowns on minor infractions believing it would make schools feel safer and discourage students from committing larger offenses.

In the late 1990s, schools also began relying more heavily on police presence, known as School Resource Officers (SROs), to supposedly protect students from events like the Columbine school shooting in 1998. Over time however, these SROs began to police students, oftentimes arresting students for minor, non-violent offenses. Compared to schools without SROs, schools with SROs had five times more arrests due to "disorderly conduct". When SROs make these arrests, students are much more likely to be turned over to the juvenile justice system and given a juvenile record.

Disparities in resources for public schools have also increased school reliance on these above systems of punishment. Neighborhoods that receive less funding are more likely to have inadequate resources in the form of overcrowded classrooms and a lack of qualified teachers and additional resources such as special education services or counselors, contributing to higher dropout rates. They are also more likely to rely on SROs for discipline due to the lack of resources to meet individual student needs.

Consequences of Systemic Racism in Education: Achievement Gap

The achievement gap is defined as the "difference in academic outcomes between historically advantaged and disadvantaged groups", most often discussed in the context of standardized test scores between Black, Hispanic, and white students. While the public largely recognizes it as a concern, education reform has been slow to tackle the achievement gap across races.

In 2016, nearly half (44%) of survey respondents responded "None" to the question of "How much of the difference in test scores between white students and Black students can be explained by discrimination against Blacks or injustices in society?"

Structural racism is so deeply embedded into our society and communities that survey respondents were more likely to attribute the difference in test scores to parenting and student motivation than to any inequities.

This understanding of our society is so prevalent that Americans are more concerned about the wealth achievement gap rather than any racial achievement gap between Hispanic and Black students compared to their white peers. In fact, 64% of Americans stated that it was essential or high priority to close the poor-wealthy gap in comparison to only approximately 30% for the Black-White and Hispanic-White gap.

A driving force behind these responses is the implicit racial bias ingrained in our education system, especially among educators. Implicit racial bias can present as having certain expectations for student behavior and academic performance based on race, which can then lead to differences in discipline measures. A study published in Educational Researcher found that overall, teachers hold a pro-white/anti-Black implicit bias. While this is less prevalent in teachers of color, more than 80% of teachers are white. Additionally, in areas with greater pro-white/anti-Black implicit bias among teachers, there were larger racial disparities in suspensions and test scores. While implicit bias training has been implemented to combat implicit biases in education, evidence has shown little overall impact.

Affirmative Action

Affirmative action initiatives most commonly refers to acceptance into two arenas: education and employment. Affirmative action laws were born out of the civil rights movement in the 1960’s with the creation of the Equal Employment Opportunity. The phrase was suggested by a Black lawyer named Hobart Taylor Jr. when drafting this executive order under Kennedy. Alongside other executive orders passed by Lyndon B. Johnson and Nixon, these orders encouraged government contractors and firms to end racial discrimination by hiring marginalized individuals. Furthermore, under the Civil Rights Act of 1964, if an employer was intentionally discriminatory in their hiring practices, affirmative action could be mandated as a “remedy”. In 1969, affirmative action was mandated in government employment.

Soon after, affirmative action policies were voluntarily adopted by higher education institutions to increase representation of historically excluded and underrepresented minorities. Universities that are recipients of federal funds must document their affirmative action processes and efforts; those that have discriminated against prospective students must take affirmative action as a “remedy”. This is not to say that all higher education uses affirmative action. In fact, since 1996, nine states have banned affirmative action in college admissions: California, Texas (reversed in 2003), Washington, Florida, Michigan, Nebraska, Arizona, New Hampshire, and Oklahoma. This 2013 study shows a decrease of 23% in students of color at top public colleges after an affirmative action ban took place.

As pointed out by Shirley J. Wilcher, the executive director of the American Association for Access, Equity, and Diversity, the “key word in affirmative action is ‘action’”. This highlights the initiative to not only ban or denounce past discrimination, but also to actively prevent future discrimination by having “the government (or employers) take an active role in treating employees fairly”.

Since then, affirmative action has become a highly debated topic. With institutions admitting more students of color, white students began suing institutions for being victims of "reverse discrimination" as early as 1971.

Despite 60% of Americans being in support of affirmative action policies, 70% believe that admissions should solely be based on merit without racial or ethnic consideration.

Even now, institutions such as Harvard, Yale, and Princeton University are currently being (or have been) investigated or sued over race related policies such as affirmative action.

While affirmative action has been successful in increasing diversity among college campuses -- with white students only making up 57% of U.S. college students in 2016 in comparison to over 80% in 1976 -- it is far from able to “fix” centuries-old issues of unequal access and opportunity. For example, even with affirmative action policies the Harvard 2023 class is still over 40% white, far more than any other racial demographic. The practice of legacy admissions in higher education only exacerbates this issue; at Harvard, children of alumni are 6x more likely to be admitted and legacy students compose more than 30% of each incoming class.

Once students have entered post-secondary education, the lingering effects of systemic racism within education still remain. Wealth disparities that exist among marginalized families lead to higher debt burden and lower rates of graduation for marginalized individuals. After graduation, implicit racial is also alive and well in the workforce, from job descriptions and resume screening to the actual interview and evaluation process. According to research, Black and Asian candidates are twice as likely to receive a job interview by “whitening” their resumes and removing references to their race than when they do not mask their race. Firms that emphasize diversity through statements like "equal opportunity employer" were found to be just as likely to discriminate on the basis of race as firms without such statements.

Tackling Systemic Racism in Education

1/ Get involved. As a parent or legal guardian of students, you can attend your PTA and/or local school board meetings to discuss the role of law enforcement or zero-tolerance policies as well as advocate for an anti-racist curriculum in your school district. (Here is a template to get you started.) A school board is most often comprised of elected officials who provide oversight of a school district, so make sure to research and vote for those who you would like to see on a school board.

2/ Support organizations and campaigns combatting structural racism in education and housing. There are organizations doing great work to advance racial justice and combat systemic racism in education including the Center for Racial Justice.

3/ Advocate for anti-bias training for students and professionals within the education system. While training cannot solve the unequal ways in which we perceive and judge others, it’s important that everyone within the education system is aware so that all can take steps towards questioning their implicit biases and how it may be reflected in their actions.

4/ Advocate for restorative justice programs in schools that aim to resolve problems without escalating to police. Hold your school accountable in stopping excessive discipline against students, for example banning zero tolerance policies, discouraging suspensions and expulsions, and instead investing in counselors and professional development.

Additional Reading / Sources

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