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Policing the Polity
Get PDFThe era of Chinese Exclusion left a legacy of race-based deportation. Yet it also had an impact that reached well beyond removal. In a seminal decision, the U.S. Supreme Court upheld a law that required people of “Chinese descent” living in the United States to display a certificate of residence on demand or risk arrest, detention, and possible deportation. Immigration control provided the stated rationale for singling out a particular group of U.S. residents and subjecting them to race-based domestic policing. By treating these policing practices as part and parcel of the process of deportation, the Court obscured the full reach of the law and its impact on U.S.communities. Through case studies of immigration policing and “anti-illegal immigrant” nuisance ordinances, this Essay argues that a “deportation-centric” framework continues to provide too limited a lens to recognize and redress unjustified surveillance within the United States. It argues for adopting what I call a “polity-centric” framework, which treats immigration status as necessarily fluid rather than fixed, and which considers the impact of front-end enforcement practices — including race-based demands to justify one’s presence — in light of the aim of building an integrate dpolitical community. This Essay closes by considering how a polity-centric framework could reorient how we understand the reach of immigration enforcement as it relates to antidiscrimination and Fourth Amendment doctrine
The Perfect Storm? Opioid Epidemic Meets COVID-19 Pandemic: Reevaluating the Role the Ryan Haight Act and the DEA Play in the Future of Safe Access to Virtual Healthcare
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What\u27s Not to Like?: The EU\u27s Case Against Big Tech and Important Lessons for the United States
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Does U.S. Federal Employment Law Now Cover Caste Discrimination Based on Untouchability?: If All Else Fails, There is the Possible Application of \u3ci\u3eBostock v. Clayton County\u3c/i\u3e
Get PDFThis article discusses the issue of whether a victim of caste discrimination based on untouchability can assert a claim of intentional employment discrimination under Title VII or Section 1981. This article contends that there are legitimate arguments that this form of discrimination is a form of religious discrimination under Title VII. The question of whether caste discrimination is a form of race or national origin discrimination under Title VII or Section 1981 depends upon how the courts apply these definitions to caste discrimination based on untouchability. There are legitimate arguments that this form of discrimination is recognized within the concept of race discrimination or national origin discrimination under Title VII or race discrimination under Section 1981. However, if courts reject these conclusions, the approach adopted by the Supreme Court in its June 2020 decision in Bostock v. Clayton County would provide another potent legal argument for recognizing such discrimination.
The Bostock approach avoids the question of whether caste discrimination based on untouchability is a form of national origin or racial discrimination. This approach draws on the Supreme Court’s recognition that the “but-for” causation standard applies under both Title VII and Section 1981. The but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause. And multiple but-for causes can exist. Applying this approach to intentional employment discrimination against gays, lesbians, or transgender individuals, the Supreme Court pointed out that such a person’s sex is inextricably intertwined with their other status. The Court concluded that discrimination against a person because they are gay, lesbian, or transgender means that you are discriminating against such a person based on that status, which is not protected, and their sex, which is. Thus, under the Bostock approach, because all of those who are victims of caste discrimination based on untouchability are from Asia, their caste is inextricably intertwined with their race. As a result, when Dalits are victims of intentional discrimination based on untouchability, the discriminator is motivated to discriminate against them because of their caste, which is not a protected trait, and their race, which is. Thus, intentional caste discrimination inevitably also involves race discrimination under both Title VII and Section 1981