To Stop Anti-Asian Violence, Invest in Communities, Not Police

This piece is part of a blog series highlighting key legal issues facing Asian American and Pacific Islander communities. 

At our office, the calls continue to come in. There was the Chinese woman whose neighbor, a local law enforcement officer, called her a ch*nk and waged an extended campaign of harassment to push her out of the neighborhood. The Vietnamese man who was showered with racial slurs when he confronted a hit-and-run driver about his damaged car. Another woman of Chinese descent who was run over with a shopping cart in the grocery store parking lot. The undocumented woman in public housing who was physically attacked outside her home.

Then, there is the aftermath. The anxiety of waiting for hospital, legal, body shop bills. The disappointment of police inaction. The calculation of whether the logistics and cost of finding a therapist was worth it. The need to move out of harm’s way but no resources to do so.

And there are questions for the broader community. Should I be scared when I leave the house? Will this wave of harassment and violence pass? Is this a hate crime? Or is this “just” another shooting? Does my race make me a victim, like the family killed at the mall in Allen, Texas? Or am I the violence itself, like the gunman in Monterey Park? Will the police target me, like Yia Xiong, the disabled Hmong elder who was killed by an officer, or serve and protect me?

I’m confronted with these questions every day, as a lawyer tasked with responding to anti-Asian violence. In observance of Asian American Pacific Islander Heritage Month, I looked back at our history to explore these questions about harm, identity, and public safety. What I found is that Asian Americans have a lot to learn from the history of other movements and our own.

For some Asian Americans, questions about violence and the criminal legal system are newly salient. For others, it is old news. Like other communities of color, Asian Americans, Pacific Islanders, and Native Hawaiians have been harmed by criminalization. This is especially true in high-poverty Asian neighborhoods, like parts of Long Beach and Stockton, California, that have endured high levels of community violence. Between 1999 and 2004, the AAPI prison population increased by 30%. In 2006, Oakland police arrested Samoan youth at a higher rate than any other racial or ethnic group, followed by Black youth. Cambodian and Vietnamese youth also had high arrest rates. The criminal legal system is particularly harsh to immigrants, who are funneled directly to ICE detention centers after earning their release from prison. Asian massage parlor and sex workers are regularly assaulted, stolen from, and harassed by their clients and the police officers who are charged with keeping them safe. And throughout the Asian community, there is underreported violence at home.

Many Asian community advocates and elected officials have called for strengthened hate crime laws and policing. As they tell it, Asian people are innocent, law-abiding victims who are receiving the brunt of a crime wave and anti-China rhetoric. The reality that Asian Americans can both be harmed, harm others, and be labeled “criminal” is inconvenient to this narrative. People who support law enforcement strategies dismiss reservations about law enforcement as limousine liberalism, even when they are rooted in decidedly Asian American experiences of intracommunity violence, police brutality, and incarceration.

On the other side of the spectrum, even opposition to more policing and incarceration can reinforce a false victim-perpetrator divide. As sociologist Tamara Nopper points out, some calls for Black-Asian solidarity to keep each other safe seem like “Black people are expected to reassure Asian Americans that they don’t ‘hate’ us…while Asian Americans reassure Black people we won’t call for more policing or criminalization of them.” As Nopper puts it, “the reality is all of us can commit harm and violence while only some of us will be prosecuted for crime.”

Increased policing has both easily foreseen and unintended consequences for all of us. One in 20 homicides are committed by police. Police officers kill Black people at a rate 3.5 times higher than white people, but this epidemic has touched all communities, including Asian American ones. The Asian American movement has been shaped by police brutality, like the brutal beating of Peter Yew in 1975 that galvanized the community and established organizing infrastructure that remains active today. In addition to Yia Xiong, earlier this year, Cambridge, Massachusetts police shot and killed a 20-year-old Bangladeshi college student, Sayed Faisal.

Longer criminal sentences—a common feature of hate crime legislation—also seem to have little practical value in making us safer. A 2016 National Institute of Justice review concluded that increased sentencing does not deter crime, and that prisons may in fact exacerbate recidivism. Over a decade ago, federal hate crime laws were expanded to criminalize more offenses targeting LGBTQ+ individuals, yet LGBTQ+ people are still nine times more likely to experience violence due to their sexual orientation.

There is no doubt that targeted violence and hate has overwhelmed our families and communities. But communities under this kind of pressure risk settling for immediate but unproven responses. Advocates for survivors of domestic violence found themselves in a similar position in the 1980s. They successfully advocated for aggressive arrest policies, with 90% of police departments adopting pro-arrest policies by 1991. In 1994, the Violence Against Women Act allocated funding to hire new police officers and prosecutors to protect people from partner violence. But several studies showed that arrests actually increased violence in certain cases. Research also shows that pro-arrest policies increased arrests of men by 60 percent and arrests of women by 400 percent. This is a cautionary tale for anti-Asian violence advocates, especially when police officers and prosecutors themselves have testified that finding clear-cut evidence of hate is difficult, even when they expend investigative resources.

A more effective response to public safety is possible. Justin Go, whose daughter Michelle was killed after being pushed in front of a New York City subway train, has charted a different approach. He proposes an ethic of community care, including preventative measures that fund housing and treatment. There is promising evidence that investments in our built environment, education, health care, treatment, and employment can prevent harm before it happens. These investments have the added benefit of helping people heal and recover after they have been harmed. Expansion of healthcare coverage, for example, both reduces arrests and increases access to medical care and counseling following an act of violence or harassment.

Historically, when advocates seeking protection from violence demand both harsher punishments and community investment, they only get the former. This was true in the domestic violence movement and for Black Americans who never saw the health care, jobs, and investments they asked for when crime and violence was at its highest in the late eighties and nineties. Pushing for the latter will get us the public safety solutions that work, instead of the decades of tough-on-crime policy that cost our communities so much. A public health approach to safety can ensure that people have the shelter, jobs, and care that make them less likely to both harm and be harmed.

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Jane Shim is Director of the Stop Asian Hate Project at the Asian American Legal Defense and Education Fund.

Asian Americans and the Bait-and-Switch Attack on Affirmative Action

This piece is part of a blog series highlighting key legal issues facing Asian American and Pacific Islander communities. 

As the U.S. Supreme Court considers challenges to affirmative action at Harvard and the University of North Carolina at Chapel Hill, Asian Americans find ourselves in a precarious position. Students for Fair Admissions (SFFA), the organization bringing these challenges, operates deceptively.  At the outset of the cases, it contended that “a 2013 U.S. Supreme Court decision essentially forbids [race-conscious admissions policies].” But SFFA founder Edward Blum, a longtime foe of affirmative action, himself orchestrated the litigation in Fisher v. Texas I (2013) and Fisher II (2016). The Fisher cases resulted in the Supreme Court upholding affirmative action, and Blum even expressed disappointment in the Fisher ruling.  That is why SFFA brought the current lawsuits. For the Harvard case, SFFA uses a bait-and-switch strategy with Asian Americans as plaintiffs by deliberately conflating two distinct concepts: “negative action” and affirmative action.

Although Asian Americans are well represented at Harvard, SFFA contends that the university wants to limit our enrollment. There is a history to such claims.  As our numbers increased at selective schools, some White students and administrators viewed Asian Americans as overly competitive and feared that elite campuses would look “too foreign.” Harvard denies intentionally engaging in such discrimination; thus the burden fell on SFFA to prove it. Doing so is very difficult and implicates a line of Supreme Court cases, including Washington v. Davis (1976), Village of Arlington Heights v. Metropolitan Housing Development Corporation (1977), and Personnel Administrator v. Feeney (1979). Even if Harvard discriminates against Asian Americans, the prospects for winning this claim were always dim.

In contrast, affirmative action refers to policies such as race-conscious admissions that tend to benefit underrepresented groups. Harvard admits to using race-conscious admissions policies, so SFFA does not have to prove intent. This implicates a different line of cases: Regents of the University of California v. Bakke (1978), Grutter v. Bollinger (2003), and Fisher I and II. The burden falls on Harvard to show its admissions policy satisfies strict scrutiny. Harvard has the difficult task here, particularly with a Supreme Court that is quite hostile to affirmative action.

SFFA’s bait-and-switch began with its first claim against Harvard, which focused entirely on negative action. Using statistical models, SFFA highlighted the higher academic credentials of admitted Asian American applicants compared to admitted White applicants. It noted how over 40 percent of White undergraduates at Harvard received admissions preferences for athletes or children of alumni, donors, and faculty/staff. Asian Americans had the lowest representation in these categories, which have a much larger impact on their admissions numbers than affirmative action. SFFA pointed to racist comments against Asian Americans by a Harvard alum, and it noted the Harvard administration’s blasé response to these comments. It also cherrypicked comments from admissions files which seemed to stereotype Asian Americans as passive and socially-inept stereotypes that many of us have experienced. And SFFA furthered this claim by showing that Asian Americans were rated lower than all other applicants on Harvard’s personal rating—a score that assesses leadership ability, social skills such as humor, and other desirable personality traits.

While these findings are problematic, none of them prove intentional discrimination. SFFA’s negative action claim was doomed from the start. But this claim was an integral part of SFFA’s litigation strategy. It provided the “bait” to make Asian Americans the focus of the Harvard case. And SFFA’s second claim—an attack on affirmative action—was the “switch.”

SFFA’s second claim did not focus on Asian Americans. Rather, it contended that Harvard violated the guidelines for affirmative action laid out in Grutter and Fisher. Those guidelines, developed by Justices who were very ambivalent towards affirmative action, are vague enough to invite such challenges. As a remedy, SFFA wanted universities to remove from applications any information that would identify an applicant’s race. Doing so could address negative action, but it would also eliminate affirmative action.

The U.S. District Court for the District of Massachusetts ruled for Harvard on both claims. SFFA did not prove intentional discrimination against Asian Americans, and Harvard also demonstrated that its race-conscious admissions policy was consistent with Grutter and Fisher. But in evaluating the statistical models, the district court noted that Harvard did not fully explain the difference between White and Asian American applicants’ personal ratings. The court suggested that implicit bias—a form of unconscious racism—might be responsible.

Unlike intentional discrimination, implicit bias is not legally actionable. Nevertheless, SFFA seized upon this finding on appeal. It argued that Harvard bore the burden to explain the lower personal rating scores of Asian American applicants—an argument inconsistent with the Washington v. Davis line of cases. The U.S. Court of Appeals for the First Circuit rejected those arguments and affirmed the district court ruling. But the Supreme Court then granted SFFA’s petition for a writ of certiorari.

At the Supreme Court, SFFA’s bait-and-switch strategy became fully visible. It argued that the Court should overrule Grutter altogether. The claim of discrimination against Asian Americans was at the forefront of the district court case, but that now only played a small part. SFFA retreated from its proposed remedy of eliminating all references to race from applications, conceding that race could be revealed in applicants’ essays. It thus eschewed its own proposal for preventing negative action and focused mostly on striking down affirmative action. And unfortunately, most observers think that SFFA will prevail.

Nevertheless, Asian Americans should recognize SFFA’s bait-and-switch. Negative action is different from affirmative action. Asian Americans are stereotyped as socially inept, and we are viewed as a foreign threat because of our academic success. These are aspects of White supremacy, and even if Asian Americans are well represented at elite universities, civil rights advocates should acknowledge and address any negative action that occurs. But Asian Americans should also advocate for inclusion of underrepresented groups. Otherwise, we become mere pawns in a war against racial diversity and equity. And this war is far from over.

Acknowledgment
I thank Professor Jonathan Feingold of Boston University School of Law for his helpful feedback on this blog post.

Vinay Harpalani is a Professor of Law and the Lee and Leon Karelitz Chair in Evidence and Procedure at the University of New Mexico School of Law. His scholarship focuses on the intersections between race, education, and law, as he explores the nuances of racial diversity and identity from various disciplinary perspectives.

 

 

 

What History Teaches Us About “Critical Race Theory” Bans

Since the murder of George Floyd in 2020 and the mass protest movements that followed it, Americans of all colors have begun to pay renewed attention to the deep history of racial injustice in the United States and its ongoing negative effects for people of color. Majorities of Americans of all ethnic backgrounds now believe that systemic racism exists, and that society should work to address the ongoing impacts of discrimination.  

Despite this growing consensus (or perhaps because of it), right wing operatives have launched more than 600 local, state, and federal initiatives to suppress free discussions about race and racism in the nation’s schools, universities, and private businesses over the past three years. While these measures vary in their substance, many share a focus on censoring a vaguely defined set of “divisive concepts,” including the very notion that racism is systematic in nature. 

In suppressing discussion and debate about the nature of racial oppression in the U.S., right-wing leaders and operatives are drawing upon strategies first developed in the antebellum South to suppress criticism of slavery and targeting precisely the kind of speech the framers of the 13th, 14th, and 15th Amendments sought to protect after the Civil War. 

Abolition: the Original “Divisive Concept” 

Just as George Floyd’s murder and the social movements it sparked drew increased attention to racial injustice in 2020, abolitionist movements began to raise existential questions about slavery in the United States in the late 1820s and 1830s.  

A key development in abolitionist thought was David Walker’s 1829 “Appeal to the Colored Citizens of the World.” In blistering terms addressed directly to other free and enslaved Black peoples, Walker excoriated the hypocrisy of America’s failure to uphold the ideals of the Declaration of Independence (“compare your own language … with your cruelties and murders inflicted by your cruel and unmerciful fathers and yourselves on our fathers and on us”) and connected the dots between the exploitation of enslaved people and the enrichment of the nation (“The greatest riches in all America have arisen from our blood and tears”).  

Most crucially, the Appeal broke from prior anti-slavery writings by calling for the immediate abolition of slavery and for Black Americans to be treated equally within the United States, rather than the then-mainstream approach of the American Colonization Society which called for Black Americans to be gradually emancipated and resettled to other territories.  

Walker’s words caused an immediate stir across the country, and while his views were initially deemed radical, even by many Black readers and white allies, they helped to influence a new generation of advocates including Frederick Douglass and William Lloyd Garrison. In 1833, Garrison helped co-found the American Anti-Slavery Society (AASS), which took up Walker’s call for immediate and total abolition of slavery—and quickly began to supplant the American Colonization Society as the nation’s leading anti-slavery voice. By 1835, the AASS had launched a national pamphlet campaign aimed at raising the moral consciousness of white Southerners.  

Even in the deep South, Walker’s and others’ criticisms of slavery moved some to question the legitimacy, or at least the sustainability of the slave system. In 1831, in the wake of Nat Turner’s rebellion, which many linked to the Appeal, approximately 2,000 Virginians petitioned their state legislature to end slavery, with some describing the institution as a violation of “the first principles” of American democracy as well as “the immutable laws of justice and humanity.” A bill that would have gradually ended slavery in Virginia narrowly failed in the 1832 legislative session.  

The South’s Censorship Campaign 

While growing criticism of slavery moved some to question the status quo, it motivated other Southern politicians to stamp out critical conversations about slavery entirely. In 1829, shortly after the publication of Walker’s Appeal, Georgia passed a law making it a crime to instruct a person of color to read or write. Virginia and Alabama passed similar laws in 1831 and 1833. After the AASS began its 1835 mass mailing campaign directed toward white Southerners, Southern states responded by expanding the scope of censorship. In 1836, Virginia passed a law criminalizing speaking, writing, or publishing “incendiary doctrines” including the notion that people did not have the right to own slaves or that slaves had the right to rebel. The following year, Missouri’s general assembly passed a law to prohibiting “the publication, circulation, and promulgation of the abolition doctrines.” 

Southern fervor against the “incendiary doctrine” of abolition was so strong that Southern states petitioned the federal government to suppress abolitionist doctrines being sent by mail, and even called upon Northern states to take steps to suppress abolitionist speech. In practice, preserving the institution of slavery would require suppressing the free speech rights of free and enslaved people of all colors.  

After the Civil War, the framers of the revised Constitution saw abolition and free speech as inseparable virtues. As Sen. James Harlan put it, “slavery cannot exist, when its merits can be freely discussed.” John Bingham, the drafter of the 14th Amendment, drew on the experience of Southern suppression of free speech as a key argument for its passage, declaring “the American people cannot have peace, if, as in the past, States are permitted to take away freedom of speech, and to condemn men, as felons, to the penitentiary for teaching their fellow men.” In their eyes, defending the rights of all Americans would require being able to speak freely and openly on the most pressing injustices facing the nation.  

Today’s Battle for Free Discourse on Racial Justice  

Today’s efforts to limit free discourse and education about the role of race in American history bear striking parallels to the slaveowners' efforts to outlaw dissent and maintain ignorance among populations they desired to control. Current measures targeting “divisive concepts” might as easily apply to some of the rhetoric that the abolitionists used to rally their audiences against slavery.  

Teaching William Lloyd Garrison’s famous assertion that the Constitution was a “covenant with hell” (due to provisions like the Three-Fifths compromise which protected slavery) would arguably run afoul of new Iowa standards censoring the concept that the United States is “systematically racist.” Similarly, teaching the abolitionists' broadsides against slaveowners might violate new Tennessee standards prohibiting “division between or resentment of... a social class.”  

Unfortunately, due to the inherent vagueness of these standards and the consequences of violating them, many educators are now afraid to speak out on some of the most important topics of our times—according to a recent national survey of educators, nearly 1 in 4 educators have altered or moderated their lesson plans for fear of broaching topics that parents or officials might deem controversial. 

Free speech remains a key tool in the ongoing struggle for true equality. As history informs us, the stigmatization of “divisive concepts” is too often a tool for suppressing dissent and reinforcing unfair power structures. Just as slavery could not exist when discussed freely, critical education and debate about current forms of exclusion and exploitation is one of the surest tools in our continued liberation.  

There is More Work to Be Done to Eliminate Oppressive Child Labor

This piece is the second in a month-long blog series that celebrates Labor History Month and examines how the labor movement’s past struggles and victories can inform the present fight for workers’ rights.

“[I]f there is any matter upon which civilized countries have agreed…it is the evil of premature and excessive child labor." - Justice Oliver Wendell Holmes Jr.

Child labor has long been a source of exploitation, injury, and death among youth in the United States. Where it hasn’t caused physical or psychological harm, it has kept children from being educated and limited their future potential. Many assume that the scourge of child labor is a relic of the past, but the exploitation continues, particularly in the wake of pandemic-related labor shortages, and particularly among children of low-income and migrant families.

In the early 20th century, Congressional efforts to protect children from excessive and harmful labor were thwarted by the Supreme Court. Congress responded by passing an amendment to the Constitution to empower the federal government to regulate in this area. The fact that the Child Labor Amendment (CLA) has not been ratified by enough states illustrates the challenges commonly faced when government seeks to protect children — strong deference to states’ and parents’ rights and the outsized influence of business interests in our political system.

Today, child labor is subject to regulation by both federal and state law. However, the existing regulatory framework has proven to be inadequate. Regulations include exceptions and loopholes, and enforcement is insufficient. Recent reports reveal children as young as twelve working long hours in dangerous places such as factories, tobacco fields, and meat-processing facilities, often in violation of federal law. For example, in a 2022 brief filed by the U.S. Department of Labor in support of an injunction against Packer’s Sanitation Services, the Department reveals:

  • children as young as thirteen working overnight shifts, falling asleep in class and missing school as a result
  • children suffering serious chemical burns from using chemical cleaners
  • children working on a slaughterhouse “kill floor” cleaning heavy, dangerous machinery, including head-splitters, meat pullers, skinners, and bandsaws.

At the same time, several states have begun to roll back their existing child labor laws. With the threatened weakening of state protections and the inadequacy of federal regulation, there is renewed interest in completing the ratification of the CLA. What seemed like a largely symbolic effort just a few years ago may have far greater significance in our modern society than previously assumed.

The Need for an Amendment

In 1924, Congress passed the CLA and submitted it to the States for ratification. The text of the CLA was straightforward, requiring nothing more than permitting Congress the authority to regulate child labor.

Section 1. The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.

Section 2. The power of the several States is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress.

Thus, the CLA would allow Congress to set a minimum floor of protection, with States remaining free to enact stronger protective regulations.

Predating the proposed Amendment, many states had enacted their own child labor protections. However, the laws varied among the states, allowing businesses to avoid those with stricter regulation, and enforcement was consistently lacking.

In 1916, the federal government attempted to regulate child labor, with Congress passing the Keating-Owen Child Labor Act, banning the sale of products derived from child labor. The U.S. Supreme Court struck down the law, finding it beyond Congress’s authority to regulate interstate commerce. Congress soon tried again, imposing a tax on profits earned on goods produced by child labor. This provision met a similar fate in the Court.

As Congress struggled to regulate child labor, an increasing number of young children were working excessive hours under hazardous conditions. As the Chief of the Children’s Bureau noted  in 1924, children continued to labor in steel mills, garment industry sweatshops, and even coal mines. In some areas of the country, as many as a quarter of all children ages 10–15 were at work in these and other occupations. With federal efforts stymied by the Supreme Court, an endorsement by the states to empower Congress to regulate seemed necessary. Moreover, several Constitutional amendments had recently been ratified, in relatively short order. The time seemed ripe to utilize this strategy in the interest of children.

The Stalling of the Amendment

When Congress passed the CLA in 1924, it was typical for state legislatures to respond positively and quickly to new amendments, providing few challenges to ratification. However, the CLA received a colder response from the states than expected. Industries that relied on child labor, including the textile industry and agriculture, bolstered the opposition. These interests successfully touted state’s rights and parental rights, stoking fear regarding federal government intrusion into something as integral to family and local communities as labor. The broad language of the amendment did nothing to quell that concern; however, broad language was necessary to overcome the limitations previously imposed by the Court.

The CLA ultimately garnered support in only 28 of the 36 states required for ratification. Continued efforts in support of the Amendment diminished following enactment of the federal Fair Labor Standards Act (FLSA) in 1938, which included the prohibition of “oppressive child labor.” The FLSA was challenged in the Supreme Court, as previous legislation had been, but this time Congress prevailed.

The FLSA and its regulations generally prohibit employment of youth under 16, except by parent or guardian, and the employment of youth under 18 in any hazardous work. Youth ages 14 and 15 can work outside school hours under certain conditions and subject to time limitations, but are prohibited from engaging in manufacturing or hazardous work. Youth under 14 can only work jobs exempt from the Act, such as paper delivery or babysitting.

There are looser standards under the FLSA with regard to agricultural employment, allowing minors 16 and older to perform any farm job at any time, even if considered hazardous. Children as young as 12 may work on a farm outside school hours with parental consent. Children of any age may be employed by their parent or guardian at any time, in any work activity, on a farm owned by the parent or guardian.

These provisions of the FLSA have provided the framework of child labor regulation for generations of children, largely relegating the CLA to the annals of history—until recently.

A Renewed Effort to Ratify the Child Labor Amendment

The FLSA has not been a panacea. Its permissive standards related to agriculture have allowed children to work in environments detrimental to their health without any legal protections. Enforcement of the protections that do exist is challenging, with an insufficient number of federal inspectors engaged in monitoring and investigating. Even so, the Department of Labor reported an increase of 283% in the number of children employed in violation of child labor laws between 2015 and 2022. It is understood that many more violations occur that never come to the attention of the Department. When violations are identified, penalties are often minimal and unlikely to disincentivize employers from hiring young workers.

Even as violations of federal child labor laws increase, there is a trend among mostly conservative states to loosen their own child labor regulations. In Arkansas, a recently enacted law eliminates age verification requirements for employers. In Iowa, a bill was introduced to allow 14 and 15-year-olds to work in meat coolers and to protect employers from civil liability for injury, sickness, or death while engaged in work-based learning. A Minnesota bill would allow youth 16 and up to work in construction. Several other states have proposed extending work hours for youth and lowering the minimum age for workers in certain sectors.

In light of these developments, advocates have renewed the effort to ratify the Child Labor Amendment. Although the effort stalled in 1937, the CLA is still officially pending and remains only ten states short of the required number of states to ratify. Some states, including New York, Rhode Island, Hawaii, and Nebraska, have recently introduced resolutions to ratify the CLA. Most recently, the Minnesota legislature introduced HF 3275 on April 20, 2023, reaffirming its ratification of the Amendment.

The suffering of children we are witnessing today is reminiscent of what led Congress to pass the Child Labor Amendment almost one hundred years ago. Although ratification may seem unnecessary in light of the FLSA, this legislation passed eighty-five years ago may not be capable of providing critical protection for children today. Ratification of the CLA could pave the way for more meaningful and effective federal action as states threaten to prioritize special interests over children. Even if the effort is viewed as largely symbolic, it would be a powerful and historically significant statement of this nation’s commitment to children’s rights.

_____________________

Jessica K. Heldman is the Fellmeth-Peterson Associate Professor in Child Rights at the University of San Diego School of Law.

Labor’s Past and Future: The New Deal Order, the Neoliberal Order, and Beyond

This piece is the first in a month-long blog series that celebrates Labor History Month and examines how the labor movement’s past struggles and victories can inform the present fight for workers’ rights.

Just after announcing his reelection campaign, President Biden’s first address was to the North America’s Building Trades Unions Legislative Conference. Biden called himself “the most pro-union president in American history,” telling the assembled crowd that he sees the country “through the eyes of the working people I grew up with … through the eyes of people like you.”

The announcement suggests the possibility that Biden might center labor in his reelection campaign. The labor movement and workers’ rights were once at the center of the American political and legal system. However, as the neoliberal order came into shape over the past half-century, labor issues have receded. Today, we are witnessing new and exciting forms of worker mobilization, and as progressives frame a strategy for moving beyond neoliberalism, a vision fusing work and care may be a promising path forward.

Labor Primacy in the New Deal

In the late nineteenth century, on the heels of the Civil War and with the Industrial Revolution roaring, the “labor question” was a core part of American political and legal discourse. The labor movement, intellectuals, and political leaders struggled with the implications of a society increasingly composed of workers in firms and this reality’s implications for democracy, republican values, and freedom.

Conflicts over labor and law’s role in labor relations evolved throughout the Progressive Era and into the New Deal. Then, labor issues came to the center of a broad constitutional discourse. Labor organizations and a host of other social movement actors worked successfully to put into place a “worker’s constitution,” composed of the National Labor Relations Act, Social Security Act, and Fair Labor Standards Act. These three statutes redefined economic freedom for workers around security and sought to entrench worker security in the constitutional fabric.

The New Deal was defined by its labor primacy—by its centering of labor in the efforts to build an “economic constitutional order.” Indeed, when envisioning building an economic constitutional order in 1932, FDR placed at its foundations the “right to make a comfortable living” and right to security when work dried up or injuries occurred on the job. Of course, the New Deal was about so much more; it involved, among other things, significant legislative achievements involving banking and securities, the environment, and public works. But the era’s fiercest social and political mobilizations were about work and workers. And those mobilizations helped to frame and personalize the problems of economic power that animated the New Deal transformation.

The New Deal also had significant limits. They include the ways its policies baked in patterns of exclusion along the lines of race and gender and failed to protect domestic and agricultural workers. New Deal policies brought stability and security for many workers, but also left many behind.

Labor’s Decline & the Neoliberalism of the Left

The New Deal order ultimately ceded to the neoliberal order, and the decline of labor primacy looms large in that transition. In the 1970s, neoliberalism—with its focus on reducing the power of government in society and shifting power (and government solicitude) to markets—began to take hold in the United States. Many factors made its rise possible, including currents in international affairs, the economic challenges of the 1970s, and the unraveling of the New Deal coalition around civil rights issues. But the rise of neoliberalism is also a story about labor, Democrats, and the left.

Gary Gerstle’s recent book, The Rise and Fall of the Neoliberal Order: America and the World in the Free Market Era, outlines various ways—including surprising ones—that Democrats and the left contributed to the rise of neoliberalism. Gerstle argues that the neoliberal shift was facilitated by Ralph Nader and Jimmy Carter’s presidency. Nader, who had significant influence in the Carter presidency, shifted the terrain from workers to consumers, and framed as evils both corporate and governmental power, undermining New Deal faith in the affirmative power of government. President Carter, torn between New Dealers and deregulatory forces within his own ranks, began a path of deregulation that would continue strongly not only in the Reagan presidency but also the Clinton presidency.

For Gerstle, too, the fall of the Soviet Union features in the rise of neoliberalism and decline of labor. “The fear of communism,” he writes, “made possible the class compromise between capital and labor that underwrote the New Deal order,” and the “collapse of communism … cleared the way of capitalism’s most ardent opponent.” As a result, the need for compromise with working people dissipated.

Across these examples, a connecting thread is that a political order characterized by its labor primacy shifted to one where labor was decentered. Along the way, faith in government and its ability to reshape economic power relationships and provide for the security of workers was also shaken.

Towards the Future: Fusing Work and Care

The question of what will replace neoliberalism—if the neoliberal era is coming to an end or has ended—is on the minds of many progressives. The future of labor will surely center in that conversation. A new political order, however, would have in its sights so much more, including climate change, voter suppression and disenfranchisement, student debt, childcare and healthcare, the power of big tech, and mass incarceration.

Gerstle’s book, however, reminds us that a political order is much more than an arrangement of policies and electoral victories; it also grows from and is sustained by a vision that reaches people where they are, drawing from the stuff of their lives to demonstrate the pitfalls of the old order and the promise of a new one. Progressives and New Dealers spoke to the insecurity that people felt on the heels of the Industrial Revolution and Great Depression; they promised that government could tame markets and provide security for workers. Neoliberals, including forces such as Ronald Reagan and Ayn Rand, offered those facing a growing bureaucratic state an ecstatic vision of freedom—of being unbound, spontaneous, innovative, and unconstrained. The idea of freedom as throwing off restraint also resounded with the “new Left” and its critiques of “the system.” As with the rise of neoliberalism, its replacement—to the extent there is one—will likely arise from articulating what neoliberalism robs and what a new order can bring or restore.

Today, in charting such a path forward beyond neoliberalism, it would be a mistake to return to a strategy of pure labor primacy. As that strategy developed in the New Deal, it focused too much on the workplace as a unit of emphasis and linked too many goods—including healthcare—to that unit. But this does not mean that it would be wise to decenter labor, either. Instead, a promising path forward may be articulating a progressive vision fusing labor and care.

At the most basic level, these things hit home. So many of us spend our lives primarily engaged in work and care. A progressive vision centering these core life activities can meet people where they are and offer an opportunity to think about these activities and their relationship in broader and more inclusive ways. Such a vision might address the exclusion of housework and caregiving from how we understand the economy. And it might offer opportunities for the focus on labor to be expanded beyond its narrow historical lens. As an example, workers are increasingly “bargaining for the common good,” allying with other organizations to expand the sphere of bargaining to encompass broader policy and community issues, including healthcare, student nutrition, racial justice, and immigration issues. A progressive politics centering work and care thus provides an opportunity to think about how we define and support these endeavors and how we can engage in acts of solidarity and countervailing power to give people the security for which so many yearn.

Centering labor and care also holds the possibility of reaching and mobilizing people worn out by life under the neoliberal order. Neoliberalism affects people’s ability to work, care, and exist together securely. It takes the public spaces where people might gather, converting them for private gain. And it makes other spaces ones where people must bear sometimes maddening insecurity: where paying for childcare or elder care seems impossible; where family picnics go on the credit card; where job insecurity makes keeping the family afloat all the more difficult, while long hours take away time with loved ones; where an education brings with it debt that weighs heavily on young lives; where healthcare decisions pinch in painful ways; where the carceral state tears people apart; and so much more. As a society, we are impoverished by neoliberalism.

A progressive future might be sustained by a rejuvenated vision of security—of being together with a good measure of stability, being supported and healthy as we work and care, and doing so in a system that values human flourishing in engaging in these core life activities. A vision of labor and care is less ecstatic than the vision of freedom that neoliberals put forward, but potentially more cathartic, more attuned to present-day challenges and needs.

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Luke Norris is an Associate Professor of Law at the University of Richmond School of Law.

Racial Justice Depends on Nixing the Blue Slip

When a single district court judge in Texas is able to threaten access to abortion medication across the United States, the need for diverse, progressive judges who will stand up for our rights at all levels of the federal courts cannot be clearer or more urgent. 

But while President Biden and Senate Democrats have made considerable progress diversifying the federal judiciary over the past two years, it is still far too easy for individual senators acting in bad faith to derail diverse nominees—as Senator Cindy Hyde-Smith did last week when she announced that she would not return her blue slip[i] for Scott Colom, a Black nominee for the federal bench in Mississippi.  

Illinois Sen. Dick Durbin, the current chair of the Senate Judiciary Committee, has expressed openness to setting aside blue slips “if there’s a case that clearly demonstrates a disregard for a nominees’ qualifications because of race, gender or sexual orientation,” but otherwise defended the tradition. 

However, the sad reality is that the modern blue slip tradition was intentionally designed to provide cover for racist opposition to judges, and, over the past 60 years, has been systemically applied against Black nominees, and other candidates from historically oppressed groups.  

While blue slips have been used to solicit senators’ input on judges since 1917, the modern tradition of using blue slips to block nominations arose in the context of massive resistance to federal enforcement of civil rights and Black equality in the South. When the Supreme Court issued its landmark decision to integrate American schools in Brown v. Board of Education, Mississippi Senator James Eastland declared, “the South will not abide by nor obey this . . . decision.”  

When Eastland became Senate Judiciary Chair in 1956 (two years after the Brown ruling), he dramatically strengthened the ability of individual senators to block judicial nominations to prevent integrationist judges from being confirmed to federal courts in the South. With the acquiescence of federal district judges, many Southern states were able to resist integration until the late 1960s.  

Since Eastland’s chairship, the Senate has, to varying degrees, continued his tradition of deferring to home state senators on judicial nominations—a tradition with devastating impacts on judicial diversity throughout the country.  

In Louisiana, despite Black people making up 33 percent of the population, only 2 of the state's 18 active federal district court judges are Black (11 percent). In Alabama, although Black people make up to 27 percent of the population, only 1 of the state’s 12 active district court judges is Black (8 percent). In South Carolina, where Black people make up 27 percent of the population, only 1 of the state’s 9 active district court judges is Black (11 percent).  

To this day, the blue slip tradition disproportionately cuts against qualified nominees from underrepresented groups. During the Obama administration, 17 nominees were denied hearings because Republican senators refused to return their blue slips—of that number all 17 were women and 12 were nominees of color.   

Last year, Wisconsin Republican Sen. Ron Johnson blocked the nomination of Judge Pocan, in a decision that many believe was linked to Judge Pocan being an openly gay man and Sen. Johnson’s history of opposition to gay rights. Sen. Hyde’s decision to block Scott Colom, a well-qualified Black judge, is the latest in the long history of abuse of the blue slip.  

As it has in the past, the blue slip threatens to deprive women, people of color and other underrepresented groups of federal judges who reflect their lived experience, skewing the judiciary and the law toward straight, white, male perspectives.  

In the 2022 midterms, in the wake of the Supreme Court’s attack on reproductive rights, progressive voters mobilized to preserve Democrats’ majority in the Senate and the opportunity to fill judicial vacancies throughout the country with diverse, progressive candidates. Sen. Durbin should take all necessary measures to do so—starting with eliminating blue slips.  

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[i] The “blue slip” refers to actual blue slips of paper that senators return to the Senate Judiciary Committee to signal approval for candidates nominated to district court vacancies in their home states. By refusing to return their blue slip a single senator can stop the confirmation process in its tracks. Crucially, a senator does not have to explain their opposition or justify it with objective criteria.

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Taonga Leslie is Director of Policy and Program for Racial Justice at ACS.