Become a Patron! 



 excerpted from: Dagmar Rita Myslinska, Contemporary First-generation European Americans: The Unbearable “Whiteness” of Being, 88 Tulane Law Review 559 (February, 2014) (347 Footnotes) (Full Document)


Dagmar Rita MyslinskaImmigrants tend to be racialized. That is, public and scholarly discussions focus on the salience of their races than the white race, which is deemed to be invisible. Scholars  frequently address how racial minority immigrants' economic, social, and political positions are monitored and circumscribed due to their race. This stems from th fact that they lack consistent access to white privilege that average American-born Caucasians have. But what does it mean if an immigrant group is not a racial minority, yet does not easily fit within the white norm? What traits do European-born immigrants share with other disadvantaged groups, yet how are they distinct from them?

All immigrant groups are perceived as foreign, at least at some point. “In the United States, wherever there is foreignness, there is also a negative reaction to foreignness.” People often assume that foreigners only include immigrant groups of Asian, Latino, or Arab descent. But all foreign-born Americans have faced a history of prejudice, inequality, and discrimination in the United States, and all differ from the American norm in some way. European-born immigrants are not precluded from some of the issues affecting all immigrants--regardless of how their “race” is perceived.

Whenever native-born Americans notice European immigrants' accented speech, non-American mannerisms, names, or dress style, they become visible as members of a separate group that is not the white norm. This triggers reactions in native-born whites: at best, preferences (such as being preferred by some employers due to their “immigrant work ethic”), and at worst, prejudices and discrimination. Sometimes they tend to be merely overlooked (such as when schools' admissions policies tend to ignore their unique backgrounds). They are more likely to evoke negative reactions when they are perceived to be competing for limited resources or opportunities (such as in the employment context, particularly during periods of slowed-down economic growth). But even being marked with positive stereotypes is a burden because it imposes a definition that is not created by the subjects themselves.

Scholars, the media, and popular discussions have been filled with references to immigrants who are “raced.” But “race” is a social construct. It is imposed through law, politics, and the dominant culture and acted out by those who are excluded from the privileged white-American norm. Critical race theory scholars have preoccupied themselves with the experiences and societal position of whites who are the privileged invisible norm. The reference point is always whites who are nonethnic (aside from having feelings of ethnic pride for the lands of their ancestors) and who benefit from middle-class social, economic, and cultural advantages. Being heterosexual, physically and mentally able, youthful, thin, Christian, and male further facilitate full access to white privilege. The status of those belonging to the white norm is validated when others perceive them as such. Unlike the rest of us, those truly privileged have no multiple, oscillatory identities of dominance and subordination, advantage and disadvantage. Instead, they are always the dominant norm. Thus, the concept of “whiteness” is very circumscribed.

Being a construct, racial “[c]ategories are situational. They can alter over time.” The notion of “whiteness” itself has undergone a significant transformation in the early 1900s as non-Anglo-Saxon immigrants challenged and expanded the concept of “white.” Transformations in the definition of “race” are affected by historical, political, and economic factors. Class has been the most frequently discussed intraracial factor that affects the construction of “whiteness.” No matter what their class, however, contemporary European immigrants continue to challenge the falsely assumed uniformity of “whiteness” further, while exposing the relative significance of foreignness--as opposed to race--in how immigrants are perceived.

B. European Immigrants: Then and Now

Several factors help to explain why, post-1965, permanent European immigrants tend to be invisible in public discussions, politics, and legal scholarship: (1) their small numbers (relative to the overall foreign-born population of the United States), (2) the assumed ease of their assimilation into the mainstream “white American” norm, (3) little sociopolitical or economic conflict with other groups, and (4) their partial invisibility (until markings of their foreignness--such as accented speech--appear). Immigration today tends to be discussed in the context of increasing numbers of arrivals from Asia and Latin America, who are more physically distinct from the white-American norm and thus dreaded more. Unlike Caucasian immigrants, racialized immigrant groups are more easily perceived as having foreign (that is, non-Anglo-Saxon) origins, contributing to the notion of being “perpetual foreigners.”

European immigrants of the bygone era merited a lot of academic discussion as they followed the cycle from their initial (often “race” -based) exclusion, poverty, and homogeneity within their specific ethnic or cultural groups to a status marked by assimilation, socioeconomic success, and full inclusion. Although today's European immigrants are not as likely to start out their American lives in poverty and are more likely to integrate with members of other groups, they do suffer prejudice and occasional exclusion, and they lack sociopolitical power before they become invisible by being assimilated into the white-American norm. Yet there is little sociocultural, critical, or legal acknowledgement of this fact. In addition, due to the white-black cultural dichotomy, whites who are not members of the privileged norm rarely voice their concerns or file legal claims. The legal system can be less accessible to immigrants, especially if they do not have socioeconomic power, do not speak English well, or come from cultures that are less individualistic or less litigious than the United States. Moreover, even simply acknowledging that they have been discriminated against or victimized because of their national origin can be particularly unsettling to white immigrants because it is an outward acknowledgment of not assimilating into the norm--despite intending to and being expected to assimilate, at least eventually. Many might find it difficult to conceptualize that they have been victimized in this “land of the free.” After all, acknowledging victimization or adverse circumstances here might lead to feelings of regret about the decision to emigrate. For some, it is simply too embarrassing to admit that they have been victimized due to their national origin.

There is no “-ism” to describe these immigrants. This reinforces their feelings of invisibility and helplessness, because they are expected to melt into the masses of America without facing any challenges that would merit attention. On the other hand, this emptiness allows them to start describing their experience in their own voices without having their identity imposed on them by others. “The process of finding oneself in the face of invisibility, [[and] silence . . . is not an easy one.” If European immigrants do not speak for them-selves, however, others will, creating and controlling them as subjects. Others' perception of European immigrants is likely to be inaccurate: Those with either greater or less access to white privilege might perceive Caucasian immigrants' challenges as negligible and insignificant, in part due to their skin color. The implications of being a different shade of “white” are not insignificant to me, however. As a European-born American myself, I feel well-suited to begin this conversation.

C. Roadmap

In Part II, this Article describes some aspects of the experience of contemporary European immigrants, exposing how they do not fully partake of white privilege, oscillating between being invisible and being seen as foreign. It then focuses on illustrating this experience in the employment context, revealing some unique challenges faced by Caucasian immigrants. The Article then addresses the scope of protections from employment discrimination on the basis of national origin, concentrating on Title VII and 42 U.S.C. § 1981.

Part III continues to highlight the invisibility of today's European immigrants in both public discussions and legal analysis. By examining national-origin discrimination in employment (including discrimination based on accented speech), the Article exposes how we have a higher level of tolerance for discrimination based on national origin as opposed to based on other protected grounds. An unstable definition of “national origin,” at times conflated with race and foreignness, contributes to the inadequacies in the legal protection of European-born employees. This Article suggests why Title VII--as well as § 1981--protections should be expanded to take into account the unique societal position of white immigrants. Throughout this Part, the ongoing salience of the mythical European immigrant story (of struggle, perseverance, and eventual assimilation) is highlighted because it continues to impact contemporary immigrants. The role of the white-black critical framework is also exposed as contributing to the analytical treatment of European immigrants today.

We need to engage in a more nuanced analysis of race, whiteness, and foreignness. Ultimately, this will lead to a greater inclusion and visibility of contemporary European immigrants, adding to the richness of what it means to be an “American” for all of us. “Not everything that is faced can be changed; but nothing can be changed until it is faced.” This Article concludes by calling for a better understanding and a more encompassing application of national-origin protections.

My hope is that this Article's engagement with outsider jurisprudence that moves beyond critical race theory and whiteness studies will prompt critical discussion and will encourage us to make more deliberate or, at least, more educated choices, affiliations, and policies. Disparate groups of those seen as “foreign,” regardless of their race and of how many generations they are removed from their immigrant ancestors, share some similarities. Collectively, they can form a stronger voice to make their shared concerns known. Further critical scholarship and more nuanced data gathering will hopefully reflect and further support this discussion.

. . .

The challenges and unique experiences of contemporary European-born immigrants allow us to deconstruct the concept of white privilege from an angle not addressed adequately in prior scholarship. European immigrants tend to be invisible in both public discussions and legal analysis, despite having features of their foreignness fade in and out of invisibility. Silence can lead to alienation, disconnect, stunted growth, fear, and violence. It also impacts native-born whites negatively by depriving them of an opportunity to better understand their own “race” and experiences.

As an illustration, employment-discrimination cases expose our higher level of tolerance for discrimination on account of national origin, as opposed to on account of other protected grounds. This is fueled in part by our faulty belief that European immigrants fully partake of white privilege and by our adherence to the fabled European immigrant story. An unstable definition of “national origin”--often conflated with poorly defined notions of race, ethnicity, and foreignness--contributes to inadequacies in Title VII and § 1981 protections.

Analytical approaches to immigrants have been funneled through the black-white dichotomy, which emphasizes the role of white privilege. Critical legal studies and the critical race theory movement and its progeny noted some deficiencies in this model, looking specifically at the experiences of Latinos and Latinas, Asians, and others underrepresented in literature. Many of these groups share some traits of both blacks and whites, in addition to having their unique attributes and concerns. Various binary constructions of race that progressive scholars have offered to replace the black-white analytical paradigm do not, however, fully address all aspects of racism or other types of subordination--such as due to being foreign-born. Contemporary white immigrants stand at the intersection of various racial binaries: Like many minority groups, they do not fit into the white-American norm; have (occasional) markings of foreignness and not belonging, and suffer discrimination; yet, at times, they see themselves as belonging to the white-American majority and even benefit from white privilege. They are not perceived as underprivileged. In fact, racial minorities see them as privileged, as do American-born Caucasians when their markings of foreignness are invisible. Their oscillation between visibility and invisibility, and inconsistencies in how the significance of their “race” is perceived by scholars and courts reveal inadequacies in the construction of various analytical binaries.

The law's focus on race, influenced by the black-white analytical framework, continues to this day to overlook national origin and foreignness as significant factors in social interactions and in the legal treatment of contemporary white immigrants. They are denied adequate antidiscrimination protection because they are assumed to fall neatly within just one side of the white-black or dominant-subordinate dichotomies. This might result in their mistrust of native-born Americans or in a pullback from engagement with civic and political institutions. When their feelings and experiences get invalidated by those belonging to the dominant norm, they are likely to disengage and feel subordinate. It might also slow down their acculturation process. Expanding protections only to racial minorities falling outside the black-white binary is not sufficient. As laudable as those goals are, they might create more categories that limit how we all are seen, reinforce distinctions among subordinated groups, refocus the discussion on new binaries, and leave many of us out. My aim is to encourage practitioners and scholars to advance national-origin, antidiscrimination goals and to be more aware of unique issues faced by foreign-born Caucasians. Hopefully, this will prompt a more detailed and nuanced analysis of how identity variables that are often overlooked in theory and practice interact--be they foreignness, ethnicity, race, or class. Furthermore, immigrants should be educated more--perhaps through English as a second language classes or public service announcements--so that they are better aware of their position and of their rights before they are violated.

Legal scholarship and public discussions have tended to focus on non-Caucasian immigrants--emphasizing their race perpetual foreigners, made to bear the greatest burden of nativist fears. By also studying cultural and legal experiences of European-born immigrants, we can start to dissect the effects of foreignness--as opposed to race--on other immigrant groups. By shedding more light on what it means to be perceived as a “foreigner,” recent European immigrants can illuminate how foreignness is defined, used, and manipulated to describe immigrants of any color. Once the role of foreignness in their lives is understood better, so will the significance of their “race,” adding another dimension to Critical Legal Studies scholarship and its progeny.

By injecting more nuances into the analysis of race--be they class, gender, or foreignness--we can better understand racial structures, including the uncertainty of the definition of “whiteness.” Noting weaknesses in white identity threatens its existence, exposing it as a false social and legal construct that holds together the permeable fabric of the mythical white-American monolith. By recontextu-alizing the construction of whiteness, I also hope to circumscribe the concept of white privilege more closely. This will prompt Caucasians who do not fully partake of white privilege to recognize shared areas of concern and will enable them to better understand the experiences of other groups who are not fully encompassed by it. Sociological third-wave whiteness studies, with their emphasis on whiteness as a concept that is flexible, situation-based, and contradictory at times, would also benefit from a closer look at the experience of contemporary European immigrants.

What happens to the construct of “white” when seen through the prism of the recent European immigrant experience? The meaning of “whiteness” is formed, functions, and gets reinforced through the various categories of “non-white.” Recent European arrivals discussed here are not “white” in the sense of belonging, being part of the norm, and being invisible. They are not the norm in various social contexts, at schools, and in the workplace. They do not yet fit into ethnic-revival labels. Being marked as foreign-born on the census is merely one reminder of their outsider status. Yet they are not considered to be a minority group. They look white, because they slip into invisibility at times, imperceptible to both racial minorities and to “white Americans.” Thus, taxi drivers stop for them, rental agents are willing to work with them, and they qualify for loans easily. They can find themselves in predominantly white neighborhoods without setting off any alarm bells. They can try to assimilate into the white norm, or they can assert their unique national origin, seeking out others of their ethnicity. Their ethnicities can also come to the forefront of their lives when they get asked about their “real” backgrounds or when markings of their foreignness become visible. Recent European immigrants can serve to question the boundary between race and ethnicity and to question the concept of “whiteness,” as their predecessors did a hundred years ago. After all, “concepts of race and ethnicity, as realized in American history and life, are largely products of immigration.” More importantly, they can help in dismantling the concept of “white” because their “race” is defined inconsistently--as illustrated by looking at Title VII and § 1981, for example.

Future critical scholarship will hopefully further address where European immigrants fit into the discussion of race and foreignness. Disparate groups of those seen as “foreign,” regardless of their race and of how many generations they are removed from their immigrant ancestors, share some commonalities due to being subordinate to those who fully partake of white privilege. My hope is that they can better understand each other due to those similarities, forming a stronger collective voice.

I use the term “first-generation” to include all foreign-born immigrants who (1)emigrated after completing their education in their countries of origin or (2)were raised and educated in the United States. The latter are sometimes called the “1.5” generation. See, e.g., Rubén G. Rumbaut, Assimilation and Its Discontents: Ironies and Paradoxes, in The Handbook of International Migration: The American Experience 172, 180 (Charles Hirschman et al. eds., 1999) (using the term “1.5” generation to describe foreign-born youths who complete their secondary education in the United States).

Immigrants who are the focus of this Article are permanent, that is, they immigrated with the intention of making the United States their home--as evidenced by their obtaining permanent resident status (green cards) and/or naturalizing. Other categories of immigrants (including temporary visitors, students, and the undocumented) have different attributes, face different challenges, and are treated differently by the legal system and by the public. Although their foreignness shares some characteristics with the subjects of this Article, a thorough analysis of their experience is beyond the scope of this Article. Moreover, as a country, we have an obligation to understand more fully the experiences of those immigrants who arrive in the United States with the intention of making this their home.

I also do not account for the role of factors such as gender, specific national origin, class, or geographic location of residence, which need to be addressed in the future to arrive at a more nuanced understanding of the contemporary European immigrant experience.

Visiting Professor, Temple University Beasley School of Law, Japan Campus. J.D., Columbia University School of Law; B.A., Yale University