Vol. 15 No.11 (November 2005), pp.959-962

COLLISION COURSE: THE STRANGE CONVERGENCE OF AFFIRMATIVE ACTION AND IMMIGRATION POLICY IN AMERICA, by Hugh Davis Graham. New York: Oxford University Press, 2003. 260pp. Paper $16.95. ISBN: 0-19-516889-5.

Reviewed by Martin J. Sweet, Honors College, Florida Atlantic University. Email: msweet4 [at] fau.edu.

Seeing NATIONAL REVIEW, COMMENTARY, and the WALL STREET JOURNAL on the back cover of the late Hugh Davis Graham’s final book lauding its contents may, but should not, give pause to scholars of law and policy development. In the first six chapters, Graham presents a fascinating tale of interest group politics, agency capture, iron triangles, strange political bedfellows, demographic shifts, and unintended consequences – and how each of these political elements weave their way through both affirmative action and immigration policy. As I explain below, this material is generally insightful, accurate, and compelling. The last chapter, however, is a strange ending to an otherwise fine piece of work. It is filled with unwarranted – or at least not compelled – moralizing conclusions that do not appear to follow from the evidence carefully marshaled in COLLISION COURSE. The ideological bent of the institutional reviews on the book’s jacket, however, should in no way dissuade those interested in law and policy development. In fact, this book is highly recommended to scholars of, and an ideal addition to courses on, American legal, and/or political development.

The main thrust of COLLISION COURSE is that both affirmative action and the liberalization of immigration policy in America are the products of similar civil rights ideologies, and many of the cases were championed by similar groups. Yet the mass immigration of Latinos and Asians and their inclusion as affirmative action beneficiaries has limited the possible gains for the primary target group of the program, with little or no opposition from African American affirmative action constituencies. Graham argues that benefits that should be accorded to deserving African Americans are being diverted to unintended beneficiaries.

Graham’s story of the origins and rise of affirmative action and liberal immigration reform is one of interest group politics (p.5). His version of how affirmative action policy began retells the story he related in THE CIVIL RIGHTS ERA. Graham also includes a review of Jonathan Skrentny’s (1996) interpretation, observing that the words “affirmative action” first appeared in the Wagner Act of 1935, to empower the NLRB “to take such affirmative action, including reinstatement of employees with or without back pay” (p.29), that Davis-Bacon presaged the Philadelphia Plan by including non-technical requirements (e.g., “prevailing wages”) in responsive government contract bids (p.29), and that the standard of review used by the courts in post-CROSON (1989) litigation came from the U.S. Department of Labor’s contract compliance regulations (p.73). Graham [*960] paints a picture of a liberal coalition that should have frayed when immigrants were included in affirmative action formulae, but that has largely remained united. Graham seeks to explain the causes and consequences of immigrant eligibility for affirmative action programs. While most of us have witnessed political activities that have been simultaneously anti-affirmative action and anti-immigration (consider California referendum history of the 1990s), Graham interestingly asks why pro-affirmative action forces never mobilized against immigrant eligibility for affirmative action.

Immigration policy prior to the 1960s utilized national origin quotas allowing mostly western and northern European immigration. These quotas – stemming from Progressive Era reforms - were antithetical to the same civil rights activists that would champion affirmative action policies developed by the Kennedy and Johnson administrations. Just as the ascendance of Republicans in the south hastened with the death of Democratic Senators, immigration reform was enabled by the death of House Immigration Committee Chair, Francis Walter, who had earlier co-sponsored legislation reaffirming the McCarran-Walter Act of 1952 (p.55). President Kennedy within one month of Walter’s demise sent his immigration bill to Congress – a bill that had been drafted two years earlier and kept under wraps. Kennedy’s death and Johnson’s priorities (civil rights, tax cut, and anti-poverty legislation) delayed Congressional action, but such delay also allowed the Democrats to amass larger majorities in both Houses, and Congress finally passed The Immigration and Naturalization Act of 1965. Interestingly, the 1965 Act was touted by liberals as largely symbolic, because it would not likely change the underlying fundamentals of immigration. Pro-labor forces, who may have feared competition for jobs from new arrivals, rejoiced over their efforts to increase the importance of the Act’s “family reunification” provisions, and to decrease the importance of occupational immigration. African-Americans defended the non-discrimination principles of the Act; and big business did not fear the Act’s reforms as civil rights reforms and population growth had already provided a new supply of labor. Both the WALL STREET JOURNAL and Senator Edward Kennedy proclaimed that this new Act would be conservative, leaving the existing system largely unchanged. Such wide-spread support dissipated when the unforeseen consequences of the Act became apparent.

The Immigration and Naturalization Act of 1965 provided a prioritized list of reasons to allow immigration, including employment needs, but largely focused on family reunification. What has transpired over the last forty years has been an effective 1-2 punch regarding the use of these priorities – assisted by immigration lawyers and word-of-mouth communication. New immigrants arriving under the employment priority have pursued citizenship and then routinely sent for their entire families. These same individuals have also used the family reunification provision to extend the reach of such exceptions. Scholars and journalists have documented what amounts to the wholesale importation of entire villages from Mexico and China (pp.118-119). According to Graham, this double-dipping [*961] on the priority list, combined with massive illegal immigration from Mexico, China, and elsewhere, has swamped many affirmative action programs – federal, state and local.

In Chapter 6, Graham returns to the question regarding why affirmative action programs include immigrant Latinos and Asians. Graham attributes their inclusion to (1) agency capture by officially designated minorities, thus serving political, rather than ideological interests (p.140), (2) a congruence with “justice” claims regarding affirmative action (p.150), and (3) pervasive implementation issues (e.g., local governments need “available” minority contractors to justify extension of the program, which gives political cover to local officials) (pp.150-152). He notes that several groups have petitioned for inclusion into the federal categories with mixed success (Indonesians – yes; Hasidic Jews – no; Iranians – no) (pp.147-148). But anti-affirmative action efforts have focused on the program writ large, rather than attempting to fence out particular groups.

In the last chapter, Graham attempts to digest the implications of his work, but this represents the weakest section of the book. Graham overlooks a burgeoning literature on the economic consequences of affirmative action, and instead constructs an argument based upon faulty logic. He declares that “elected officials at national, state, and local levels in both parties proved reluctant to offend the well-organized constituencies of the rights revolution” (p.165), that affirmative action “by and large . . . accomplished . . . [the] redistribution of jobs and income to African-Americans . . . and [expanded] the black middle class (pp.166-167).   “[F]or poor blacks as well as for poor whites, affirmative action has been at best economically irrelevant and at worst harmful” (p.170). All of these are empirical claims that may be true, but do not match the evidence offered in the book. First, there are now in excess of 200 studies – most of which find little to show for affirmative action – which could have aided Graham in substantiating (or possibly refuting) his claims (Holzer and Neumark 2000). And second, Graham seems to have a short-term definition of “interests” in mind when deriding the inclusion of immigrant Latinos and Asians in affirmative action programs. While it is true that having fewer dollars, jobs, or admission seats available for intended affirmative action beneficiaries is a short-term loss, it is certainly possible that accepting immigrants into the beneficiary pool stems from a fear of opening debate about the inclusion of other sub-sets of groups, or from encouraging attacks upon the entire program. It may be more rational to lose a few dollars, jobs, or admission seats, than to risk losing them all.

COLLISION COURSE presents an important story of legal and policy development over the last forty years. Its detailed discussion of Congress, interest groups, the bureaucracy, and, to a lesser extent, the courts, presents an excellent example of “separate institutions, sharing power.” Graham brings to life many of the key concepts in American government, although the book would be most appropriate for advanced undergraduates in American Legal/Political Development and for graduate students. The faults I have noted should not dissuade anyone from [*962] using it in the classroom or in scholarship.

REFERENCES:

Graham, Hugh Davis. 1990. THE CIVIL RIGHTS ERA: ORIGINS AND DEVELOPMENT OF NATIONAL POLICY, 1960-1972. New York: Oxford University Press.

Holzer, Harry, and David Neumark. 2000. “Assessing Affirmative Action.” 38 JOURNAL OF ECONOMIC LITERATURE 483-568.

Skrentny, John David. 1996. THE IRONIES OF AFFIRMATIVE ACTION. Chicago: The University of Chicago Press.

CASE REFERENCES:

CITY OF RICHMOND v. CROSON, 488 US 469 (1989).

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© Copyright 2005 by the author, Martin J. Sweet.