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Sylvia R. Lazos Vargas

 excerpted from Deconstructing Homo[geneous] Americanus: the White Ethnic Immigrant Narrative and its Exclusionary Effect, 72 Tulane Law Review 1493 - 1596, 1505-1543, 1594-1596 (1998) (citations ommitted)

Editor's Note: This is but a small excerpt of Professor Vargas extensively documented article. The article has over 400 footnotes. The footnotes have been edited out for presentation in this forum. I encourage you to see the original article for not only the scholarly documentation but the extensive explanations that Professor Vargas provided in her footnotes.


A. The Bases for the Homogeneity Assumption: Americanization as Monistic Ideology

The promise of America was born in the eighteenth century out of the bold conviction that we are all created equal. It was extended and preserved in the nineteenth century, when our nation spread across the continent, saved the union and abolished the scourge of slavery. Then, in turmoil and triumph, that promise exploded onto the world stage to make this the American century.

What a century it has been. America became the world's mightiest industrial power, saved the world from tyranny in two world wars and a long cold war, and time and again, reached across the globe to millions who longed for the blessings of liberty.

Along the way, Americans produced the great middle class and security in old age; built unrivaled centers of learning and opened public schools to all; split the atom and explored the heavens; invented the computer and the microchip; and deepened the wellspring of justice by making a revolution in civil rights for African-Americans and all minorities, and extending the circle of citizenship, opportunity, and dignity to women. The homogeneity assumption is best described as a cultural ideology of "Americanization," a monistic view that Anglo-Saxon culture is the core American culture and that Anglo-Saxon culture is superior to all others. This Part II identifies the main components of "Americanization" as a cultural ideology that forms part of an embedded sense of self. Part II.A below describes how in our cultural dialogue Americanization is commonly expressed as (1) utilitarian arguments made with respect to immigration and assimilation and (2) the view that the dominant Anglo-American culture represents the one "true" American culture. This dialogue, not always overtly stated, regarding why immigrants should assimilate and what it is that makes up the core American identity, deeply influences how we think about ourselves and those who the majority perceives as falling outside the assumption of sameness, which becomes also the assumption of who should be included in the monolithic whole. Part II.B describes how these ingrained cultural understandings have become intertwined in the White ethnic immigrant myth, a narrative that captures the core American values that reflect our sense of self. It is also a myth that constructs and reinforces hegemony by constructing those who are the same, from a dominant perspective, as virtuous Americans, and those who fall outside the homogenous core as nonvirtuous outsiders.

Sociologist Jeffrey Praeger defines cultural ideology as an organized set of assumptions concerning social reality that orient perception, thought, and action in society that is capable of articulation and rational defense. Because cultural ideology is a social construction of the world, the reality that cultural ideology captures has social meaning that may not correspond with reality. Praeger explains that racial ideology, in particular, "can be mistaken for reality." He continues:

Only the passage of time and the emergence of new understandings reveal how previous efforts to comprehend differences . . . serve to justify and, in a limited sense, legitimate inequity. . . . Any racial ideology is inadequate so far as it cannot comprehend the individual in the groups. What stands for explanation at the ideological levels easily dissolves when confronted with social reality. Ideology serves to rationalize what we perceive. It operates unconsciously, seamlessly constructing and supporting assumptions that cannot stand up on closer examination. "Americanization" functions as a cultural ideology because it seamlessly constructs and reinforces an attitude that sameness is normal and the universal status quo, and that difference, its opposite, is outside the norm and not desirable.

1. The Utilitarian Arguments

The utilitarian justification of homogeneity masks important value choices and the underlying tensions between the monistic view of American culture and other alternatives. Yet much of our discussion about tolerance for ways that lie outside the homogeneity assumption is conducted in the framework of utilitarian arguments, which, in turn, mask fundamental ideological assumptions.

From the dominant community's perspective, "Americanization" is expressed as a preference in immigration policy for immigrants from cultures like the Anglo- Saxon culture, on the grounds that such cultures assimilate faster into the American dominant culture. The utilitarian justification is that the process of assimilating such groups would be less stressful on the host group and would result in less noticeable social conflict. From the minority perspective, the utilitarian argument is often combined with ethnocentrism, which sometimes spills over as intolerance.

An early example of the utilitarian argument, combined with ethnocentrism and intergroup prejudice, is Benjamin Franklin's essay written before the American Revolution, in which Franklin contemplated what kind of "virtuous people" should become Americans. The "virtuous" were the "lovely White," who were "Superior Beings," already in short supply worldwide. The English were preferable stock, in contrast to ethnic groups such as Germans, who were unassimilable "swarms" and "boors," who would cling to their very different language and customs. Franklin's spirit can be traced to today. Pat Buchanan's 1992 and 1996 presidential nomination bids attracted support when he charged that there were already too many immigrants in the United States, and that they were not the right kind. A recent best-seller charges that increased immigration from Third World countries will "overwhelm" the United States' Anglo-American traditions and criticizes these immigrants for their failure to assimilate.

Minority neoconservatives also champion the monistic Americanization view, without adopting the racial hostility taint of Franklin's argument. They focus on the utilitarian advantages for the minority of swift behavioral acculturation and assimilation into the Anglo-American majority. Some, like Linda Chavez, a Mexican-American lawyer and now popular commentator, attack the resistance of minority groups to acculturation as dangerous and misguided. In Out of the Barrio she argues that bilingual education should be abolished. She urges Latino groups to learn English, adopt the norms and other modes of communication of the dominant group, so that their speech, clothing, mannerisms, mode of socializing, and other cultural markers no longer differentiate them as belonging to a distinct ethnic group. In this way, Latinos can better compete with Anglo- Americans. Similarly, in the African-American community a long list of conservative social scientists, among them Thomas Sowell and Shelby Steele, like Franklin Frazier before them, advocate a change in African-American cultural norms and traits. Terry Eastland, also makes this argument in his recent best seller. They contend that African-American culture should become more aligned with the Anglo-American norm, in order for African-Americans to better compete in today's national and global economy.

Both of these arguments, Chavez's praise of behavioral acculturation and neoconservative African-Americans' assimilation, are Darwinist and utilitarian assertions that the survival, and indeed the economic progress, of the individual members of minority groups depends on their ability to fully integrate into American society. The arguments are also Anglo-centric because they take as a given that Anglo-American culture is, in essence, the American culture. Although not often articulated as a political argument, the minority utilitarian argument also contains a hope that, by fully assimilating into the majority core culture, minorities would not only become economic successes but also would be subject to less prejudice and discrimination.

What remains unquestioned and unanswered by the utilitarian arguments is: (1) whether and why Anglo-American culture is indeed superior; (2) whether utilitarian concerns are all that matter; and (3) why immigrant parents are willing to urge, without reserve, practical complete assimilation, even at the cost of survival of their own culture. These latent questions reveal that utilitarian arguments fail to consider another fundamental point of view, that different cultures should coexist with the dominant American culture, even if the participants in the minority culture are foregoing utilitarian advantages. Utilitarian arguments mask the choices that these unanswered questions raise, because the choices are made by cultural ideology. Cultural ideology lends strength to the utilitarian arguments and makes the choices for acculturation and assimilation seem a natural and essential part of the American tradition.

2. The Teleological Argument: Bracketing Cultural Ideology

Americanization is also a teleological argument: it is a monistic view that Anglo-Saxon heritage represents the true and only heritage of Americans. Psychologist Young-Bruehl believes, like Benjamin Franklin, that ethnocentrism, love of one's own culture and the inability to see the merit of others, is a universal condition of humankind. De Tocqueville captured this as Americans' "insatiable vanity."

The hold of ethnocentrism is directly related to the important role that culture plays in how societies think about themselves.Cultural character endures over time, forms the psychological and sociological anchor of a society, and becomes the traditions and norms that capture the essence of what a people are and understand themselves to be. According to neoclassical economist Frederick von Hayek, cultural norms, developed over time, account for the success of a people and their ability to survive and defy alteration and manipulation by rational man.

Cultural character can be defined, but for those of us living within the culture it is difficult to extract what it is. We take our own "local knowledge" to be the "metaphysics of humankind." The inability to be conscious of our own view implies that we are what anthropologist Renato Rosaldo calls a positioned subject, an analyst who comes to the subject with her own cultural perspective, through which she filters what she observes and evaluates. Clifford Geertz, an influential anthropologist, urges that we take a "thick" approach and that we study culture in layers, as an analysis of the symbolic dimensions of social action. He believes that to study a culture we should examine shared realities, myths, social identity, ethnicity, status, and "attempts by particular people to place these things in some sort of comprehensible meaningful frame."

To answer the question of what are the cultural values that guide how we think about ourselves, we would set about discerning the set of values and norms that guide the conduct and goals and strivings of our society--the conversation about who we are and our ideals and destiny as a people. We can construct a "thick" framework drawing on what Americans say they believe, sociological studies, and our own narratives and myths.

The beliefs of (a) individualism, (b) merit, (c) fairness, and (d) exceptionality form the core basis of the cultural ideology that supports the homogeneity assumption:

a. Individualism

First is individualism, the idea that the individual is the agent of moral decisionmaking, the focus of legal rights in our society. In our myths, individual heroes accomplish incredible feats, like the brave detective and the lone cowboy. A sociological study, Habits of the Heart, declares that it is "individualism, not equality, as de Tocqueville thought, that has marched inexorably throughout our history." The picture of the individual that captures the American imagination is the individual with freedom to be left alone, to be her own person, to speak out, to participate freely in the community, and free to have her rights respected. In law, individual rights "trump" all else. Property rights protect the individual from government intrusion, and, in the current battle over government regulatory "overreaching," property rights have taken on rhetorical and cultural force.

Whenever equal protection analysis sets up a dichotomy between individual and group rights, individual rights have the upper hand. For example, in the recent line of affirmative action cases, Wygant v. Jackson Board of Education, City of Richmond v. J.A. Croson Co., and Adarand Constructors, Inc. v. Pena, the Court has adopted a more skeptical stance toward affirmative action programs, shifting to a strict scrutiny review of governmental programs aimed at remedying past and current racial discrimination. This development is anchored in the Court's claim that equal protection is fundamentally an individual right. As stated in Croson, "the 'rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights."' In these cases, the Court applies the principle of individualism to require reliance on a "color blind doctrine" that all individuals, regardless of race, ethnicity, or gender be treated the same under the law. Second, under Adarand, the Court has held that race or other general, class-based characteristics for distribution of government benefits cannot be used as a proxy. Third, the Court has determined that employing a governmental remedial program without adequate rationales "stigmatizes" minority individuals because the program "inevitably is perceived by many as resting on an assumption that those who are granted this special preference are less qualified in some respect that is identified purely by their race." The opinions rely on individualist ideology to justify a simple result in cases that involve complex race relations. By referencing such a powerful ideological cultural value, these decisions are self-legitimating and succeed in masking that these decisions decontextualize African-American and White social identity.=

b. Merit

The second core belief is merit, that the American system metes out just rewards for those who work hard. Narratives about our mythical heroes, such as Benjamin Franklin, Abraham Lincoln, and Horatio Alger, provide us with proof that hard work leads to success. The sociologists in Habits of the Heart observe that "[t]he demand to 'make something of yourself' through work is one that Americans coming of age hear as often from themselves as from others." Sociologist Jennifer Hochschild reports that both African-Americans and Whites believe that the key to success lies in their own ability and willingness to work hard. Even though African-Americans recognize increasingly that they are the victims of discrimination, which may thwart their ability to succeed, they continue to believe in the American Dream. This dissonance, Hochschild concludes, leads to African-Americans being more likely to blame themselves for their failures, rather than luck or societal and economic circumstances. From a utilitarian perspective, the pursuit of the American Dream often becomes translated as the pursuit of material success. De Tocqueville reported that Americans "pursue prosperity" with "feverish ardor." From a moral perspective, hard work and success are linked to personal virtue. From a political perspective, the current attack on affirmative action is based on the argument that group rights violate the principle of merit, that individuals should be judged, according to Martin Luther King, Jr.'s aphorism, on the "content of character and not the color of skin." In Wygant, Croson, and Adarand, the Court makes the claim that a "color-blind" doctrine is necessary because only in that way can all individuals, both White and minority, be judged on their own individual merit. This constitutional narrative recalls the meritocracy myth.

c. Fairness

Third, we believe in fairness, that the American political and market systems function fairly, and also that we are fair people. In popular vernacular, "we believe in the system." Both Whites and African- Americans are committed to pursuing the American Dream. Over the last five decades, through the apogee of segregation and antimiscegenation laws, civil rights demonstrations, and the continued gap between Whites' and African-Americans' economic welfare, two-thirds of Whites have consistently believed that African-Americans are treated fairly. In the law, the presumption of fairness plays out in antidiscrimination law's insistence on an intent requirement. The Court has outlined a very narrow doctrinal construction requiring a showing of deliberate discrimination to establish a violation of the Equal Protection Clause. In employment antidiscrimination law, the Court has also downplayed the relevance of unconscious discrimination. More generally, the Court has required a focus on "perpetrators" rather than on "victims." This presumption of fairness also supports the Court's current decontextualization of race under its "color-blind" approach.

d. Exceptionality

Fourth, Americans believe in their exceptionality, that triumph is possible over any adversity. The sociologists who wrote Habits of the Heart observed that "[w]e have imagined ourselves a special creation, set apart from other humans." Carlos Fuentes, a Mexican novelist, takes a comparative turn and calls this Americans' lack of fatalism. He contrasts it with Mexican imagination, influenced by Mexican Catholicism's and Aztec nativism's belief that destiny cannot be brought to heed to the will of humankind. An opinion poll translates the American view into a belief in the special moral status and mission of America. As expressed by historians and American presidents, it is the faith that Americans are deserving of blessings and a "manifest destiny." President Clinton's inaugural speech reflects this faith in American exceptionality: Our history is an inevistraight line progression towards a special destiny; America is a special place where exceptional triumphs took place; the mistakes that happened along the way, like slavery and the marginalization of women, have been cured by American genius.

These core beliefs comprise the ideological basis of the homogeneity assumption: we are one people, united, equal, involved in the pursuit of merit and achievement. They form a myth about Americans, a common narrative that explains who we are and why we are here, and construct a basis for understanding who belong and who does not in the cultural community.

The American myth is capacious in content, which makes it possible for there to be competing versions of the American myth. Some individuals and some groups, because of their race experience or culture, shape the American myth to reflect their own sense of identity and their own different social experience. Both Whites and African Americans believe in the American Dream, yet there are subtle and important differences. American mythology accommodates these various versions and yet remains sufficiently familiar and unified as to a set of core common beliefs that inform our understanding of the social world around us.

B. The White Ethnic Narrative as Hegemonic Ideology

This section argues that the homogeneity assumption is firmly entrenched because it incorporates and gives meaning to the cultural values described in Part II.A as American cultural ideology. The modern vehicle for its articulation is the White ethnic immigrant narrative. This is the mostrecent narrative of success, one that connects the majority of Whites to their immediate past. Socioeconomically and attitudinally, the Euro-White ethnic identity now dominates White sociological identity. Sociologist Richard Alba has documented that the old ethnic groupings, such as Irish-Americans and Italian-Americans, have converged into a new "European-American identity." The White ethnic immigrant myth connects White ethnics to a heroic story of the immigrant, who arrived poor and was discriminated against, but worked hard and eventually made it. This myth embodies, reaffirms, and legitimizes America's cultural ideological values of individualism, merit, fairness, and exceptionality. The White ethnic narrative has come to dominate the American imagination because it vividly communicates what we currently understand to be American values.

However, the White ethnic myth also constructs hegemony: 1) the immigrants' success "proves" that race and racism can be overcome--therefore, race and racism exist in the past; 2) to be part of America requires that distinct groups accept and follow the mandate to assimilate; 3) immigrants' partial or complete attainment of the American Dream demonstrates that failure to advance is due to lack of willingness to work hard and therefore lack of virtue. By capturing the narrative of American ideological values, the White ethnic narrative has constructed for itself a heroic, superior status in contrast to the racial antinomy.

1. Race and Racism Exist Only in Our Past

The White ethnic immigrant narrative has helped to construct and reinforce a version of racism under which, subtly and unassailably, Whites claim racial innocence. Americans know that our history contains ugly episodes of prejudice and discrimination towards newly arrived immigrants, when signs like "Irish need not apply" were posted outside storefronts and immigrants were considered akin to "nuisances." Perhaps, we may not know about some of the most distasteful incidents: lynchings that targeted Italians, other dark-skinned Southern Europeans, and Jews; and burnings that razed synagogues. This is the kind of prejudice that we know and can recognize. I will call such prejudice "Bull Connor" racism. The image that I wish to draw upon is the TV picture that we have all seen of the Alabama police commissioner, Bull Connor, and the Alabama police, clubbing and hosing down the freedom riders. It is a black and white TV picture--young men in Blues Brothers' outfits and women in nicely coiffed hairdos and Jackie Kennedy pearls--an image that is remote and removed from our present day reality, like TV pictures of Father Knows Best and white-hooded Ku Klux Klan characters riding in the night. Such blatant racism was remote from us. It was said to be conduct engaged in only by other (uneducated, mostly Southern, and morally reprehensible) Whites.

Our parents, grandparents, and great-grandparents may have experienced some form of Bull Connor racism. However, they advanced, and their children and their children's children have also advanced socioeconomically. We may be aware that not every ethnic group has been able to access socioeconomic success. For example, the upper echelons of wealth and power still remain largely the reserve of Protestant Anglo-American men. But enough progress has been made to validate our belief in the fairness of the system and to reinforce the myth of American exceptionality.

The "my parents overcame racism" story reinforces the myth that racism metamorphisizes and eventually melts away into the White ethnic identity; that it is not a serious injury or harm that can persist through history; and that racism and racist attitudes are not entrenched in current economic structures and social norms. This mythology also supports the view that the law must proscribe only intentional, culpable, and episodic racism, because it is an individual fault that can be overcome. However, such a construction of racism permits its decontextualization, unlinks race from its historical roots, and limits conceptually its current social and economic forms. This construction supports and reaffirms "White innocence," reaffirming racism as something in which initially only others engage.

On the other hand, minorities experience racism very differently, as an endemic, permanent, and continuous phenomena. Some African-Americans' belief in conspiracies, that Whites conspire to do harm to the African- American community and "set up" African-Americans for failure, appears farfetched to many Whites. However, it reflects not only distrust based on past racial harms perpetrated by large organizations, like the U.S. government, but also frustration with a political system that has failed to do anything about African-Americans' structural economic inequality. For minorities the most important life coping skill may be learning to handle the implications of the racial social identity.

The gap in conceptions of racism goes beyond systemic discrimination and structural inequality. It is also rooted in what each group "knows" because of their own experience with discrimination. Twenty-five percent of all African- Americans report acts of discrimination "almost every day," as a variety of daily racial "microaggresions" that effectively, even if subtly, communicate negative stereotypes. By contrast, only four percent of Whites report experiencing some form of discrimination, generally as a remark based on ethnic stereotypes.

Whiteness is a privilege that sociologist Ruth Frankenberg describes as a series of cultural practices that permit Whites to not be aware of the privileges and dominance into which they are born. Whites do not notice that their daily environments are generally made up almost entirely of other Whites; even in homogeneous environments, Whites believe themselves to be diverse. Whites' own ability to perceive the privileges attached to being White, and the consequent unprivileging of being non-White, is limited. White privilege means having entry to structures and institutions that mete out important economic opportunities; having access to neighborhoods, jobs, credit, and tax benefits that by and large are off limits or available in limited fashion to minorities; it means being presumed competent, intelligent, and hardworking; it means not being discriminated against daily be anyone ranging from a restaurant attendant to a car salesperson. Finally, it is the advantage of not having to think of yourself as different, not having to acknowledge the perquisites that you have gained because of your social racial identity. Being White means that the standards and norms peculiar to Whites and White Euro-ethnicity become the implicit standard by which all other members of our society are measured. Whites need not confront the dissonance between their egalitarian beliefs and what psychological studies have measured, unconscious harsh discriminatory treatment of minorities, because their rationalizations are not contested. This leaves a large racial reality gulf, which Whites become aware of only with the occasional socially impacting event.

Justice Scalia's affirmative action narrative in his Croson concurrence illustrates how the White ethnic immigrant narrative dismisses African-Americans' experience and supports Whites' highly attenuated relationship to race and racism. Prior to becoming a member of the Supreme Court, Scalia, in a law review symposium, attacked the remedial rationale of affirmative action programs by citing the story of his immigrant father. He related that his father probably "had [n]ever seen a [B]lack man." With this rhetorical distancing, his father, the White Italian immigrant, cannot help but be seen as innocent from past acts of racism. By the logic of "I am not responsible for [White Southerners'] past acts," race and racism become distanced from the present circumstances of the descendant of the White ethnic immigrant. Thus, to connect past acts of racism to present acts violates the principle of individualism. For full symmetry, past discrimination becomes the individual's act; as Justice Scalia stated in his Croson concurrence, "[t]he relevant proposition is not that it was [B]lacks, or Jews, or Irish who were discriminated against, but that it was individual men and women." Scalia rhetorically paints remedial efforts that attempt to connect past discrimination to the present as a kind of racism that is as violent and dehumanizing. He quoted Professor Bickel, saying that "'a racial quota derogates the human dignity and individuality . . . [it] is a divider of society, a creator of castes."' Finally, Scalia rhetorically equated the "racism" of the Croson minority contractor set-aside program with the "Bull Connor" racism of Ku Klux Klan cross-burnings. "When we depart from this American principle [of racial neutrality] we play with fire, and much more than an occasional . . . Croson burns."

Scalia's Croson opinion is patently a White ethnic immigrant narrative or race. For the African-American reader, Scalia's rhetorical race- based burnings recall a very different experience and a very different suffering from the suffering of the White contractor who loses a contract bid. For African-Americans, affirmative action programs are not Bull Connor racist acts, but rather represent a positive intervention that counterbalances both individual discrimination based on stereotypes and structural inequality. The sole source of support for Scalia's turning a set-aside contract program into Bull Conner racism is White racial ideology of individualism and racial distancing as embodied in the White ethnic immigrant narrative. Scalia's arguments gain persuasive force because they are anchored in the shared ideological values of the White ethnic narrative.

2. Assimilation as a Mandate

Most White ethnic immigrants followed the mandate of assimilation and acculturation willingly. In America, the immigrant from the old country acquired a new identity as an American. The vision of America was a land of new beginnings, where a wide variety of peoples came and found an opportunity to become something they could never be in the old country, participants in the American Dream, Americans who through hard work and ingenuity could succeed and enter the middle class. Once they came, they became transformed, shedding their old identities and merging into the exceptional American persona. Analysts and immigrants describe the immigrants' transformation experience in powerful terms: "intense and extensive rebirth," "momentous personal and irreversible decision," "reformation," and "transcendence." Whether "transformation" represents a rationalization of the immigrant's traumatic experience, a communal norm reinforced among disfavored transplants, putting the best light on a set of hard choices, or simply another iteration of the American Dream, the effect is the same: an enduring ideology central to White ethnic immigrants' belief system that mandates assimilation.

For decades, the assimilation model dominated sociology as well. First Milton Gordon and then Nathan Glazer and Patrick Moynihan reworked the "melting pot" myth into sociological theories that described different processes but nonetheless ended up at the same end point. Assimilation is inevitable. Critics like Howard Kallen and Andrew Greeley assailed the ethnic assimilation model as more ideology than sociology. Nonetheless, the ethnic assimilationist model has remained firmly ensconced in the American imagination.

Sociological data support the view that assimilation has been the dominant dynamic. For some ethnic groups, like German-Americans, no measurable ethnic identification remains. However, assimilation is only part of the story. The process of entry into and formation of American identity is more complex and varied than can be explained by any single concept. Richard Alba's recent work on ethnic identity among Whites shows that eighty percent experience a weak form of ethnic identity, which is primarily symbolic, such as participating in church rituals, going to festivals, eating ethnic foods, or tracing genealogy to immigrant parentage (a form of "ethnic honor"). Andrew Greeley views ethnicity, even if not experienced consciously, as highly correlated to socioeconomic accomplishment and social behavior. Joe and Clarice Feagin critique the assimilation model by emphasizing that minority groups have not structurally assimilated, because they are denied access to important social and economic institutions that act as gatekeepers to greater economic opportunity.

The assimilation mandate, which is a core component of the White ethnic narrative, is highly relevant as ideology. It supports the construction of a subordinated social identity for those who have not become part of the White monolith and the rationalization needed to support White innocence. If White ethnics succeeded through assimilating, and willingly participated in stripping away their own culture, then for others to retain culture, for whatever reason, becomes a sign of unwillingness to participate in the American Dream. Such willingness is an undesirable trait, a purposeful "rebellion" and a refusal to play by the rules of the game. To be different and to remain different, even if the groups' experience of coming to and living in America is very different from the White ethnics', becomes colored with the taint of disloyalty to the American ideal. These groups "threaten" the unitary American identity because they are "unassimilable." The stereotypes that proliferate in American popular culture and political rhetoric of onrushing "yellow" and "brown" hordes evince anxiety caused by the mere presence and visibility of culturally distinct groups. George Washington is reported to have said, "'[T]he more homogeneous our citizens can be made . . . the greater will be our prospect of permanent union."' As Ishmael Reed observes, the visibility of cultural difference challenges the myth of a unitary American identity.

The resulting hegemonic practice is what Maria Lugones and Elizabeth Spelman call "cultural imperialism." Iris Marion Young describes it as follows:

Cultural imperialism involves the universalization of a dominant group's experience and culture, and its establishment as the norm . . . . The culturally dominated undergo a paradoxical oppression, in that they are both marked out by stereotypes and at the same time rendered invisible. As remarkable, deviant beings, the culturally imperialist are stamped with an essence. The stereotypes confine them to a nature which is often attached in some way to their bodies and thus cannot easily be denied. These stereotypes so permeate the society that they are not noticed as contestable. Just as everyone knows that the earth goes around the sun, so everyone knows that gay people are promiscuous, that Indians are alcoholics, and that women are good with children. White males, on the other hand, insofar as they escape group marking, can be individuals. Those living under cultural imperialism find themselves defined from the outside, positioned, placed, in a network of dominant meaning they experience as arising from elsewhere, from those with whom they may not identify and who do not identify with them.

In law, the assimilation mandate delegitimizes the claims of the racially and culturally different. It has the following effects: (a) reluctance to recognize culturally distinctive groups, (b) to recognize race becomes viewed as threatening social stability, and (c) to recognize minority groups becomes contrary to constitutional principles.

a. Courts Are Reluctant to Recognize Culturally Distinctive Groups

that Fall Outside the Black-White Construct

When diversity groups seek recognition of their cultural distinctiveness to stake a claim as equal participants in the polity, these groups come into direct conflict with the myth that Americans are one distinctive identity. The most nochallengers to this myth have been African-Americans. They are the paradigmatic example of a racial minority, having suffered both individual discrimination and prejudice, as well as a "caste" status as a historically, socially, and economically dominated group. The civil rights revolutions in both the 1870s and the 1960s engendered laws and doctrinal approaches designed to address such individual and group harm. The Court developed the antidiscrimination principle, under which racial classifications are inherently suspect and require judicial "strict scrutiny" to determine if such classifications are properly motivated. In Brown v. Board of Education, the Court articulated the outlines of an anti-caste principle when the Court held that African-American children should not be forced to bear the detrimental effects of segregationist practices.

However, outside the Black-White binary construct, equal protection has been limited. Courts have been reluctant to recognize how cultural distinctiveness can become subject to the dynamics of social domination and deprivileging, as Professor Young describes. For example, under Title VII cases as well as equal protection law, the Court finds problematic cases in which racial traits take the form of cultural difference. Individuals from minority ethnic groups find limited protection for speaking accented English or speaking a language other than English on the job. In Hernandez v. New York, the Court declined to extend Batson v. Kentucky to prohibit peremptory challenges to Latinos who spoke and understood Spanish. In a recent controversial child custody case in Texas, a judge forbade a Latino mother from teaching her cultural language to her child.

b. Race is Reconstructed as Irrational and Threatening of Social


Manifestations of such cultural distinctiveness or cultural bonds are perceived as irrational, dangerous, and threatening of racial strife. In Adarand and Croson, Justice O'Connor warned that government programs that favor racial groups may lead to a "politics of racial hostility." Scalia made the point with more rhetorical bluntness. In his Adarand and Croson concurrences, Scalia used the threat of factionalism and social disorder to rhetorically reconstruct consciousness of the racial dimension of minorities' social identity as a threat to American wholeness. In Croson, he painted the Richmond city council's minority set- aside program as a manifestation of the most dangerous kind of factionalism, black-on-white factionalism, and warns of the "danger of oppression from factions."

c. Recognizing Racial Groups Becomes Contrary to Important Constitutional


To recognize multiple cultural groups lays bare the frailty of the White cultural dominance and a monolithic White ethnic identity. In Regents of the University of California v. Bakke, Justice Powell candidly acknowledged the fundamental threat to White identity that would be caused if the Court recognized multiple ethnic and racial groups:


[T]he white "majority" itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals. Not all of these groups can receive preferential treatment . . . for then the only 'majority' left would be a new minority of [W]hite Anglo-Saxon Protestants.

In the voting rights cases, the Court has developed an application of the color-blind doctrine that is based on the premise that there is inherent harm in recognizing a racial group. The Court situates race consciousness as being inapposite to the constitutional principle that individuals should be treated as individuals, regardless of their race, ethnicity, or gender. The Court concludes that strict scrutiny is required for districting plans that "are predominantly motivated by race." Courts now must determine whether a political body "recognized race" in drawing voting districts, or if other factors, such as "shared interests" or political motivations, dominated the state legislature's reasoning in drawing district lines. This is a daunting task. The Court's underlying rationale that race consciousness is a prohibited way of reasoning, and its skepticism in recent prominent cases contesting voting districts, leads to the conclusion that the Court presumes that the recognition of racial groups is suspect and should be avoided. One could interpret this case law as a doctrinal attempt by a predominantly White Court to remove race from the immediate concern of legislatures. Yet, we notice and act on race all the time.

The Court mandates a false American unity by not recognizing the distinct cultural identities of millions of Americans. The sociological text that the Court inserts in these cases has no grounding in the lives experienced by groups that are not White. Rather, it is the sociological text of the White ethnic narrative.

3. The Construction of Innocent White Identity

White ethnicity is a constructed social racial identity, much in the same way that African-Americans, Latinos, Asian-Americans, and Native-Americans possess a constructed racial identity. Construction of social identities is relational. If ethnicity and race are socially constructed, so also must their relational opposite, White ethnic identity, be socially constructed.

The White immigrant success story constructs White ethnic identity as virtuous. First, this reconstruction of the White ethnic identity legitimizes the privileges that attach to White ethnicity. White ethnics individually succeeded through transformation, hard work, perseverance in the face of ethnic racism, and loyalty to a fair system. Second, by constructing a virtuous White ethnic identity, the White immigrant model reconstructs raced identities as nonvirtuous. Other groups who do not succeed fail because they are unwilling to work hard. This rationalization maintains the illusion of White innocence and the transparency of White privilege. This is a rationalization firmly anchored in the White ethnic narrative's construction of core American ideological values of individuality, merit, fairness, and exceptionality.

The construction of Whiteness has not been uniform. For example, for some White immigrant groups, the appropriation of the White relational construct was not immediately within grasp. The Irish, upon arrival, became the "Celtic race." They were stereotyped as "lazy, shiftless, dirty, savage" drunks, who were "the most pushy and obnoxious of the immigrant groups." According to a contemporaneous account, "[t]o be called an 'Irishman' [was] almost as great an insult as to be stigmatized as a 'nigger feller."' Because of the perception that the Irish were "fundamentally inferior," many, primarily Protestant Americans, found it "small wonder that churches were burned and that Catholics were occasionally murdered in riots."

There were also gradations of status and work. Some ethnic immigrant groups had better opportunities for upward mobility than others. While the Irish were relegated to the most difficult types of labor, Scandinavians and English were more likely to arrive at America with the capital required for farming. The exclusion of the Irish from more lucrative employment opportunities was effectuated in part by the proliferation of such tools as the "No Irish Need Apply" sign and an anti-Catholic educational system.

Nonetheless, at a general level, White ethnic groups have followed some form of socioeconomic and political assimilation. Socioeconomically, White ethnics have achieved middle-class acceptability; each generation has better educational and occupational opportunities than the last. Richard Alba's depiction of convergence of distinct European ethnic groups into a White ethnic identity captures White ethnics' assimilation into a distinct and identifiable social and cultural group, even as many in each ethnic subgroup retain weak symbolic ethnic identities.

One of the functions of the White ethnic immigrant "success story" is to enable all White ethnics, regardless of relative socioeconomic success, to participate in the construction of Whiteness and enjoy the benefits of Whiteness. Sociologists and race theorists posit that White immigrants, in great part, attained the American Dream by becoming part of a superior racial social identity--White. Even if the White ethnic immigrants' circumstances were dire and even if they themselves have not gained full access to the American Dream, they succeed in part because they are not at the "bottom of the well." The "raced" become emblematic of those social qualities that Whites do not want to have attached to them. To be African- American is to be intellectually deficient, sexually hyperactive, and aggressive, as well as lazy, lacking a work ethic, and prone to criminal behavior. To be Mexican-American is to be from an inferior culture; more interested in leisure than hard work; endowed with romantic skills; for the most part a drug trafficker or laborer, but not an intellectual; part of an onrushing brown horde.

Ishmael Reed calls the racial privilege from which White immigrants benefit "unearned." Instead, the White ethnic immigrant story portrays America as a classless and raceless society, and it hides that individuals from a lower class and with subordinated racial social identities have very different life chances from those who can claim Whiteness. As Ishmael Reed states, this story "becomes a narcotic which permits 'White America' from dealing with its problems." Racial minorities become the targets for all of America's ills. Not surprisingly, Whites have very little empathy for racial minorities and the poor which allows them to distance themselves from the problems of race and poverty.

To summarize, this Part II has explored the significance of cultural ideology in how we make sense of and construct the social world around us. The White ethnic narrative dominates the American imagination because it so effectively embodies the values in which we believe as a culture. This narrative not only analytically assumes sameness, but finds heterogeneity to be threatening, disloyal, and contrary to goals and ideologies that are distinctly American. In key Supreme Court decisions that deal with racial and social group conflict, it is this narrative that informs the Court's vision of social text. Because these opinions are based on assumptions that we are all the same, they either mandate sameness or decontextualize the social significance of difference. Cultural ideology, as embodied in the White ethnic narrative, is what in the main supports these very controversial opinions. . . .

. . . . . When Whiteness is examined under the lens of the ongoing canon battles that are taking place in the disciplines of history, sociology, and liberal theory, we can begin to see that Whiteness is a fragile construction that depends a great deal on interweaving ideology of what it means to be an American. In modern context, American cultural ideology draws narrative strength from the White ethnic immigrant story of success, hard work, and transformation into an exceptional American identity. This myth captures the imagination of the White majority, and to some extent also minorities, because it vividly embodies the values that in current American culture we cherish the most--individuality, hard work, faith in a system that metes out just rewards to the virtuous, and trust in the exceptionality of American ideals and the American Dream.

When the Supreme Court asserts that equal protection is an individual right; that we are all one people, American; that to recognize different distinct cultural group per se undermines constitutional values and American tradition, the Court is not interpreting constitutional law. Rather, the Court is asserting American ideology. However, this is not an ideology that is inclusive of all Americans. It is one that constructs hegemony in favor of White Americans and those who can fall within the strictures of the homogeneity assumption and mandate. Those who fall outside the construction of sameness are cast as disloyal, disunifying, nonvirtuous, unwilling to play by the rules of the American enterprise.

The myth of oneness and sameness is an ideological construction that the canon battles taking place in the social sciences and political philosophy have shown us are subject to vigorous contestation. The empirical work of social scientists, particularly psychologists and sociologists, captures how deep our differences are and how the promise of assimilation is a promise that has only been available to White ethnics, and even then not uniformly. Race theory shows us that the construction of sameness is a construction that reinforces social, economic, and political power. For those who are visibly different, or wish to wear kippahs, the consequence of a cultural ideology that mandates sameness is a message that may not be intended but nonetheless is communicated in a myriad of ways: "You are outside of the American canon; you are disloyal, disunifying, unworthy, and rebellious because you do not follow the rules of what it means to be an American."

If we are to live up to the liberal ideals that American constitutional law espouses, we must understand American culture, how ideology constructs it, and how social science debunks it. However, does this process of deconstruction lead us to a deconstruction of the American identity and a nihilistic world in which we become a valueless people without traditions, history, and sense of ourselves? This need not be the end result of deconstruction, and it is not the aim advocated in this project. Rather, exploring how knowledge is formed is the necessary prerequisite to building a better system of analysis, as Dr. Deming's "red ball" demonstration illustrates. Only by knowing how it is that cultural ideology buttresses weak constitutional interpretations that produce rules that exclude and reify the dominance of the majority can we begin to construct other interpretations and analyses that better live up to our shared liberal values of individual dignity and the right "to be . . . be only Me." . . .






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***Assistant Professor of Law, Florida State University College of Law. J.D. 1986, University of Michigan; M.A., Economics 1979, St. Mary's University; B.A. 1977, St. Mary's University.