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Excerpted From: Anita Sinha, A Lineage of Family Separation, 87 Brooklyn Law Review 445 (Winter, 2022) (325 Footnotes) (Full Document)


AnitaSinha“History, as nearly no one seems to know, is not merely something to be read. And it does not refer merely, or even principally, to the past. On the contrary, the great force of history comes from the fact that we carry it within us ....”

This article is rooted in the belief that the articulation of shared narrative histories advances the pursuit of justice. Acknowledging shared histories, including narratives that justify unjust practices has been a shortcoming in the United States, particularly when it comes to racial injustice. Included in this oversight is the history of executing and sanctioning family separation. The US government's separation of families under the “zero tolerance” policy, which was in effect over approximately two and a half months, drew national and international criticism. In total, the Trump administration separated over five thousand migrant children from their parents before, after, and during the time when the zero tolerance policy officially was in effect. The sense of shock, however, belied the historical repetition of the practice in the United States.

There are examples of deliberate family separation throughout US history, when the government or private actors intentionally separated children from their parents, caretakers, and communities. These actors' motivations included white nationalism, profit, and charity. The narratives justifying these practices created political, social, and legal conditions for family separation to be deemed acceptable. These justification narratives comprise what philosopher Hilde Lindemann calls “master narratives.” Such narratives include those that constitute “oppressive narrative formations,” with the purpose of “reinforc[ing] unjust distributions of social power by pretending to justify them.” The justification narratives accompanying the different family separation policies throughout US history share certain themes, such as racial superiority of those executing the separations and moral depravity of separated parents and, in some cases, of the children themselves.

These historical family separation policies eventually came to an end, in part due to the production and dissemination of narratives of the harm experienced by children, parents, and communities. Importantly, however, the success of these “counterstories” in each example was facilitated by a sociopolitical context that ultimately rendered the justifications unacceptable. And so, while counternarratives played an important role, an essential component to their success was the telling of these stories in alignment with a broader movement for social change--an alignment that finally gave these narratives potency.

In the context of vast power differentials, coupled with racism and xenophobia directed towards the affected families, the ability to generate counterstories that contribute to ending family separation has been a challenging endeavor, allowing devastating practices to persist for prolonged periods. families endured hundreds of years of forced family separations. Government policies deliberately separated Indigenous families for almost a century. Private charities through the “orphan trains” movement separated predominately impoverished immigrants for a quarter of a century.

In this context, the end of separating families under the Trump administration's zero tolerance policy happened quickly. Several factors aligned to contribute to this outcome. The advocacy was impressively rapid, was committed to multiple legal strategies, and was covered by largely sympathetic media outlets. Government officials were explicit about deliberately separating migrant families in order to deter migration from Central America, which drew public condemnation of the policy. Moreover, zero tolerance may have been a low-hanging fruit insofar as the US government admitting culpability, given that it was a discrete policy of family separation within an immigration system that generally (and continually) separates noncitizen parents from citizen and noncitizen family members.

This history, both distant and recent, brings us to ongoing examples of family separation. The justifications of punishment and deterrence that fuel today's US immigration and criminal legal systems have rendered acceptable the continuation of family separation on a substantial scale. The families separated as a collateral consequence of mass incarceration and widespread detention and deportation largely represent the same communities impacted by deliberate family separation practices. This makes the distinction between deliberate and collateral family separation suspect, and whether the separation is intentional or not does not alter the severe harm it inflicts upon children, parents, and communities. As demonstrated by the historical examples of deliberate family separation policies, narratives from those harmed play an important role in impacting societal understanding and appealing to its values. These counternarratives, however, need to align with a movement for social change to challenge the justifications for the continued separation of mostly marginalized children from their parents.

[. . .]

The lineage of US family separation traces back to the American slave system. In part as a reaction to the formal end of slavery centuries later, the US government began the systematic removal of Indigenous children from their caretakers and communities. Overlapping with Indigenous family separation was the privately-run “orphan train” movement that removed from urban areas approximately a quarter of a million children who were predominantly from impoverished immigrant families. The separation of migrant families under the Trump administration's zero-tolerance policy was reminiscent of these family separation histories.

The narratives justifying the separation of children from their parents share common themes such as racial superiority of those executing family separation and moral depravity of the families subjected to the policies. In the context of enslaved and Indigenous family separation, counternarratives of the harm caused by the policies played an important role in bringing them to an end. These stories, however, only gained potency when they aligned with a broader movement for social change. The end of the orphan train movement came about through narrative shifts in the early twentieth century that changed the meanings of child welfare, charity, and social work. For each historical example, therefore, what ended family separation was an alignment of narratives with structural change.

The production and dissemination of counterstories of harm to swiftly end the Trump administration's zero tolerance policy was simultaneously momentous and limited. These narratives played a crucial part in putting a swift end to the particular policy, at a time when there was momentum in US society to limit the explicitly xenophobic and white nationalist agenda of a new administration. The public condemnation, however, did not extend to challenging the widespread separation of families caused by the US immigration system more broadly, and by mass incarceration in the US criminal legal system. This could be because of a perceived moral distinction between deliberate and collateral family separation. It could also, or alternatively, be because the justifications of deterrence and punishment represent widely held values that are greater than the cost of separating families. The devastating consequences of continuing widespread family separation in the United States are evident through the narratives of the children, parents, and communities that are harmed. The lineage of US family separation could come to an end if these stories are aligned with societal will to challenge the legitimacy of the systems that continue to separate marginalized families.

Associate Professor of Law and Director, International Human Rights Law Clinic, American University's Washington College of Law (WCL).

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