Israel Law Review

http://journals.cambridge.org/ISR

Additional services for Israel Law Review:

Email alerts: Click here

Subscriptions: Click here
Commercial reprints: Click here
Terms of use : Click here

Minority Rights for Immigrants? Multiculturalism

versus Antidiscrimination

Christian Joppke

Israel Law Review / Volume 43 / Issue 01 / January 2010, pp 49 - 66

DOI: 10.1017/S0021223700000042, Published online: 19 March 2012

Link to this article: http://journals.cambridge.org/abstract_S0021223700000042

How to cite this article:

Christian Joppke (2010). Minority Rights for Immigrants? Multiculturalism versus
Antidiscrimination. Israel Law Review, 43, pp 49-66 doi:10.1017/
S0021223700000042

Request Permissions : Click here

Downloaded from http://journals.cambridge.org/ISR, IP address: 203.64.11.45 on 14 Mar 2015

 Christian Joppke'
Contemporav immigration has reinforced calls for minority rights in liberal states, which
accrue to immigrants (but also to citizens) qua member of an ethnic minorify group. It is often
overlooked that such minority rights may be of two kinds: multicultural rights that protect
cultural dzflerences or antidiscrimination rights that attack discrimination on these grounds. I
argue that the importance of multicultural rights has been greatly exaggerated, and that much
of the work attributed to them has in fact been accomplished by group-ind~ferentindividual
rights. By contrast, antidiscrimination rights are growing stronger; even in Europe. However;
to the degree that it tackles indirect discrimination, antidiscrimination cannot but be factually
group-making, even in states that reject multiculturalism.

By bearing or adhering to a distinct ethnicity, race, or religion, immigrants often

constitute a minority group in the society into which they move. A classic text by
Chicago sociologist Louis Wirth defined a minority group as "a group of people who,
because of their physical or cultural characteristics, are singled out from the others in
the society in which they live for differential and unequal treatment, and who therefore
regard themselves as objects of collective discrimination."' Wirth's definition aptly
captures the role of discrimination and inequality in the making of a minority. In this
view, a minority only arises out of the discrimination inflicted on it by the majority.
Extrapolating from Wirth, one may conceive of minority rights as protections from
physical or cultural discrimination.
By the same token, Wirth2 may overstate the other-defined, discriminatory origins
of minority groups. For instance, Mary Waters found that the ethnic identifications
today of Americans of European origin are entirely self-made and optional, and she
distinguishes their "symbolic ethnicity" sharply from the "real and often hurtful"

Professor of Politics, The American University of Paris.

' Louis Wirth, The Problem ofMinority Groups, in T H ESCIENCEOF MANIN THE WORLDCRISIS347,
347 (Ralph Linton ed., 1940).
Id.
consequences of "being Asian or Hispanic or b l a ~ k . " ~ Of course, one may refrain
from calling self-defined Italian or Polish-Americans a "minority group," as Waters
does herself; she prefers to call them an "ethnic group" i n ~ t e a d .But
~ it would be
unhelpful to make the modicum of self-definition that even in Wirth's5 account is
required for being a minority solely a function of external discrimination. Witness
the recent re-labeling of American blacks into "African-Americans," which shows
the need for positive self-definition even among a group that would not exist except
for the gross discrimination that is slavery. There is likely to be a continuum between
positive self-definition and negative other-definition in the making of a minority, and
it is implausible to eradicate from it a positive sense of collective self that is not
reducible to discrimination but that articulates a shared ethnicity, language, religion,
or history.
The distinction between positive self-definition and negative other-definition in
the making of a minority is not just academic. It points to a fundamental ambiguity
of how the state should respond or relate to the minority: Should it be protected or
should it be abolished in the name of equality? This alternative is often slighted,
perhaps because immigrants themselves often slight it. In her valuable study of
how immigrants "negotiate identities" in France and Germany, Riva Kastoryano, for
instance, claims that immigrants struggle "against every form of exclusion . . . which
ends in a demand for re~ognition."~ This may well be, but there still is a distinction
between both types of politics and concomitant state response, inclusion undoing the
group qua group and recognition perpetuating it. In this Article, I refer to the first
response as "antidiscrimination" and to the second as "multiculturalism," and I map
out the rather different logics of both. However, even notionally group-destroying
antidiscrimination cannot but be factually group-making, so that a modicum of de
facto multiculturalism will persist even where there has been a philosophical rejection
of it.

' MARYWATERS,ETHNICOPTIONS:
C H O O S ~ GIDENTITIES IN AMERICA
156 (1990).
Id. at 157. Mary Waters's distinction between ethnic and racial groups, the former being
positively self- and the latter negatively other-defined, echoes Max Weber's famous discussion on
"ethnic relations" (ethnische Gemeinschafisbeziehungen) in his WIRTSCHAFT UND GESELLSCWFT:
GRLR'IDIUSS DER VERSTEHENDEN SOZIOLOGIE 234-244 (1976).
Wirth, supra note 1.
IZIVAKASTORYANO, NEGOTIATING IDENTITIES:STATES AND IMMIGRANTS IN FRANCE
AND GERMANY 140
(Barbara Harshav trans., Princeton University Press, 2002).
20 lo] MINORITY
RIGHTS FOR IMMIGRANTS?

In the post-WWII era, Western states abstained from forcing immigrants to abandon
their culture of origin as a price for admission. The mantra was "integration not
assimilation," which lei? the cultural integrity of immigrants intact. The only question
was whether such integration could be achieved within the established rules of
private and public, or whether the line dividing both spheres had to be redrawn. More
concretely, were immigrants free to follow their cultural ways in private and had the
state to stay neutral on such matters or was a further, proactive stance on part ofthe state
required to reshuffle the existing private-public distinction? Multiculturalism proper
is the second response, according to which the state should not stay aloof but publicly
recognize the minority group. To a certain degree, even international law has moved
in this direction. One of the first post-WWII codifications of minority rights, the 1966
International Covenant on Civil and Political Rights, only asked states to refrain from
certain actions, namely that minorities "shall not be denied the right" to their culture,
religion, or language.' The 1992 Declaration on the Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic Minorities contains stronger and more
proactive language that states shall "protect" and "promote" these minoritie~.~ This
may mean little change in reality,9 but the distinctly more multicultural diction in the
1992 declaration is unmistakable.
What marks multiculturalism as a political stance has been influentially formulated
by Charles Taylor.lo Multiculturalism is depicted as expression of the "modem
preoccupation with identity and recognition," which derives from modernity's collapse
of social hierarchies and a new ideal of authenticity." The novelty is not the quest
for identity and recognition, which is grounded in the "dialogical" nature of human
life. What is new is that this quest can fail, because identity is no longer immutably
fixed by one's social position.I2 Under modem conditions, recognition engenders two

' International Covenant on Civil and Political Rights, art. 27. Dec. 16, 1966, 999 U.N.T.S. 171.
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic
Minorities, G.A. Res. 471135, art. 1, annex, 47 U.N. GAOR Supp. No. 49 at 210, U.N. Doc. A147149
(Dec. 18, 1992) states: "States shall protect the existence and the national or ethnic, cultural, religious
and linguistic identity of minorities within their respective territories and shall encourage conditions
for the promotion of that identity."
See the critique by WILLKYMLICKA, MULTICULTURAL ODYSSEYS (2007).
'"CHARLES TAYLOR,MULTICULTURALISM AND "THEPOLITICS OF RECOGNITION" (1992).
Id. at 26.
l 2 Id. at 35.
different kinds of politics: a "politics of universalism" that strives for the equal dignity
of all individuals and "politics of difference" that asks to recognize the unique identity
of this individual or group. Both politics are internally connected, as "[tlhe universal
demand powers an acknowledgment of specificity."13 However, and this is the rub, the
politics of difference operates as a polemic against the politics of universalism, which
is accused of being a "particularism masquerading as the universal" and of "imposing
a false homogeneity."14 While such a stance can be found in radical feminism, Taylor
traces it to Frantz Fanon's indigenous critique of colonialism. Much like Fanon's
The Damned of the Earth, multiculturalism attacks "the imposition of some cultures
on others, and ... the assumed superiority that powers this imposition."I5 Positively
phrased, multiculturalism, at least in the Taylorian variant, asks for the "presumption"
of "equal worth" of the cultures denigrated by the West.I6
Of course, this is only a variant of multiculturalism and one in which it is a radical
alternative to, and critique of, liberali~m.'~In addition, there is a liberal variant, in
which multicultural minority rights complement rather than substitute liberal rights
and citizenship.'* But constitutive for all variants is that minority identities have to
be publicly recognized in a kind of special deal apart from the general rule of law,
which does not know group distinctions. Even in Kymlicka's liberal variant, "benign
neglect," the classical liberal state stance on religion does not work with respect to
culture.19 Try as it might, the liberal state can never be neutral in the choice of its
public language, holidays, and symbols, which inevitably privileges the majority
group. If equal justice is to prevail, the culture of minority groups needs special
protection by the state.
To have one's identity recognized by the state has always been an implausible
stance, not only with respect to immigrants. As Chandran Kukathas retorted to Taylor
and Kymlicka alike, "recognition" is not something the liberal state can deliver:
The liberal state .. . should take no interest in the character or identity
of individuals; nor should it be concerned directly to promote
human flourishing: it should have no collective projects; it should

l3 Id. at 39.
l4 Id. at 44.
I S Id. at 63.
l 6 Id. at 68.
I 7 For another influential radical variant, which is inspired not by anticolonialism but by feminism,
see IRIS MARION YOUNG,JUSTICEAND THE POLITICS OF DIFFERENCE (1990).
'WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS(1 995);
see also Christian Joppke, Multicultural Citizenship: A Critique. 42 EUR. J . SOC. 431 (2001).
l 9 KYMLICKA, supra note 18, at 108-15.
 express no group preferences; and it should promote no particular
individuals or individual interests. Its only concern ought to be
with upholding the framework of law within which individuals and
groups can function
Liberalism, Kukathas sums it up, should be at heart a "politics of indifferen~e."~'
What Kukathas formulated as an "ought to" captures well the factual uneasiness
that has always surrounded liberal state responses to multicultural claims. By definition
an asymmetrical stance, recognition, in singling out one group, must whet the appetite
of other putative groups to be recognized as well. Recognition, thus, not only vitiates
the symmetry of the rule of law but is "almost always dangerous" in the real world,
as Kukathas argues with an eye on the rougher quarters of South East Asia.22 In fact,
groups are often only called into existence by the recognition game itself. And this is
a game that helps transform mundane interests, which are open to compromise, into
ethereal identities that are not.
While an unlikely stance to take in the liberal state at large, recognition becomes
especially implausible if applied to immigrants. Kymlicka actually admits this in his
pragmatic concession that immigrants, by voluntarily leaving their homeland, have
"waived" the right to have their culture and identityresurrected abroad.23The "polyethnic"
rights that are granted to immigrants, such as exemptions fiom general laws that unduly
restrict their cultural or religious ways or public funding for their cultural practices, are
intended to promote "integration into the larger society, not self-g~vernment."~~ Only,
in this healthily minimalist account it is not clear why such measures are couched in the
language of rights; perhaps they are better conceived of as pragmatic concessions by
means of which states seek to further the integration of immigrants.
The rights worthy of the name "rights" with respect to accommodating immigrants
as cultural minorities are not special "polyethnic" rights, granted only to them and
not to others. Instead, the most effective protections are the general rights of free
expression and association, of privacy and family life, and of religious belief and
practice that the liberal state grants to all individuals, immigrants and natives, residents
and citizens.25 For instance, much of Muslims' accommodation in liberal societies

20 CHANDRAN KUKATHAS, LIBERAL ARCHIPELAGO: A THEORY OF DIVERSITY AND FREEDOM 249 (2003).
21 Id at 250.
22 Id. at 251.
23 KYMLICKA, supra note 18, at 86-87.
24 Id. at 31.

25 One of the few rights with a cultural inflection, which are available to immigrant minorities

but not to members of the majority group, is the so-called "cultural defense" in criminal law, which
has proceeded along this individual rights track. This has regularly brought courts,
as the defenders of individual rights, into conflict with rights-constricting public
authorities, with courts and their minority clients getting the upper-hand most of the
time. Especially in continental Europe, with entrenched systems of judicial review
and written constitutions, courts have routinely consented to Muslim parents' wishes
to exempt their daughters from parts of the school curriculum that are considered in
violation of their religious beliefs; allowed exemptions from animal protection laws
that stand in the way of a religious diet; or forced public and private employers to
accommodate the ritual needs of their Muslim employees.26
A particular case in point is the accommodation of the Muslim veil.*' If wearing
it is allowed, even for state agents who are expected to be neutral in their appearance,
this is because the right of free religious expression is deemed superior to the rights
of other involved parties or public order concerns. By the same token, if the veil is
prohibited, as it has been for public school students under the French anti-veiling law
of 2004 and for public school teachers in several regional anti-veiling laws in Germany
in 2004 and 2005, this is because third-party rights or public order considerations have
won the upper hand.28 Overall, the highly publicized headscarf restrictions, all passed
in the turmoil after 2001 and the global proliferation of Islamic terror, obscure the
silent accommodation of most Muslim claims (including the claim to wear the veil)
by the legal systems of Western states. The individual rights provisions of the liberal
state have done much of the work that multiculturalists have wrongly charged their
grander "recognition" campaigns with, only more quietly and effectively.

Whereas the thrust of multiculturalism is particularistic, seeking to perpetuate minority

groups, the opposite thrust of antidiscrimination is universalistic, seeking to render
minority groups invisible and in this sense to destroy them. The great ancestor of all
contemporary antidiscrimination policies are the American civil rights laws, passed

reduces the culpability of offenders who are deemed conditioned by their origin cultures (see ALISON
DUNDES RENTELN, TCIE CULTURAL DEFENSE (2005).
26 See Christian Joppke, Successes and Failures of Muslim Integralion in France and Germany.
in BRINGING OUTSIDERS IN:TRANSATLANTIC PERSPECTIVES ON IMMIGRANT POLITICAL INCORPORATION 115,
120-125 (Jennifer L. Mochschild & John H. Mollenkopf eds.. 2009).
" See, e.g., in this issue, Gila Stopler, Rights in Immigration: The Veil as a Test Case. 43 ISR.L.
REV.183 (20 10).
28 See CHRISTIAN JOPPKE, VEIL:MIRROR OF IDENTITY (2009).
 MINORITY
RIGHTSFOR IMMIGRANTS?

in the early to mid-1960s in order to end the racial segregation of American blacks.
Their target is not "expressive racism," such as defamation or assault, but "access
r a ~ i s m , " ?which
~ denies minorities equal participation in key societal sectors such
as employment, education, and housing. If multiculturalism is situated in the lofty
realm of culture and identity, antidiscrimination moves us into the mundane world of
interest conflict over scarce resources.
It is safe to say that in the wake ofpost-WWII immigration, antidiscrimination laws
and policies have massively increased throughout the Western world. Of particular
significance is its development in the U.S., where a policy that had originally been
conceived as a color-blind measure to combat discrimination against "any individual"
on the basis of their "race, color, religion, sex, or national origin"30quickly turned
into color-conscious affirmative action, in which specific, historically disadvantaged
groups are selected for preferential access to important societal resources, most notably
employment, business contracts, and higher education. U.S. antidiscrimination
policies, thus, transformed from a notionally group-destroying into a factually group-
making measure, no longer content with securing "equal opportunity" but rather
aiming at "equal results" by means of quota and strict time-tables.31
While this transformation was accomplished by an obvious change of philosophy,
it was still more the product of accident than of design. As the historian Hugh Davis
Graham showed, the change from color-blindness to color-consciousness stemmed
fiom the difficulties that federal agencies faced in effectively implementing the
civil rights laws: "The problems and politics of implementation produced a shift
of administrative and judicial enforcement from a goal of equal treatment to one
of equal results."32 It was much easier to identify discrimination by its (presumed)
result than by its motivation. The watershed in this shift was in 1971 in the Supreme
Court ruling of Griggs v. Duke Power Company that invalidated hiring practices
and intra-company promotion schemes that were "fair in form, but discriminatory
in operation."33 Thus, the notion of indirect discrimination was born. It did not

l9 I borrow the useful distinction between "expressive" and "access" racism from ERIKBLEICH,
RACEPOLITICS
IN BRITAIN
AND FRANCE:
IDEAS
AND POLICYMAKING
SMCE THE 1960s 12-13 (2003).
lo Civil Rights Act of 1964 title VII, sec. 701(b), July 2, 1964, 78 Stat. 241, which targets
"unlawful employment practices."
) ' Still best on the distinction between equality of opportunity and equality of results is DANIEL

BELL,THECOMING OF POST-INDUSTRIAL SOCIETY408-455 (1 973).

l2 HUGHDAVIS GRAHAM, THECIVILRIGHTS ERA:ORIGINS AND DEVELOPMENT OF NATIONAL POLICY,
196&1972,456 ( I 990). See also JOHNDAVID SKRENTNY, THEIRONIES OF AFFIRMATIVE ACTION ( I 996),
who similarly grounds the rise of affirmative action in "administrative pragmatism."
33 Griggs V. Duke Power Co., 401 U.S. 424,431 (1971).
require identifying a discriminatory intention on the part of the employer; instead,
the statistical under-representation of the discriminated group in the workforce was
sufficient. Of course, such statistical discrimination, which happens whenever there
is a "disproportionate" negative impact of a facially neutral measure on a minority
group, is still attributed to originally overt discrimination. As the U.S. Supreme Court
stated in Griggs, employment practices with such impact "operate to 'freeze' the status
quo of prior discriminatory employment practice^."^^ This is a rather daring leap of
faith because zoomed out are innumerous other factors that might cause the statistical
under-representation of a minority group.
But the crucial matter in Griggs's invention, not of the name but of the concept
of indirect dis~rimination>~ is "abolishing the analytical distinction between
antidiscrimination and affirmative action."36 Remember that antidiscrimination,
being color-blind, cuts both ways, prohibiting discrimination against whites as well.
Affirmative action necessarily discriminates against whites (which is dubbed "reverse
discrimination"). Prohibiting indirect discrimination erases the distinction between
antidiscrimination and affirmative action, in that antidiscrimination now "requires
selection of a limited number of reference groups within which all individuals will
enjoy a specific kind of protection not available to members of other conceivable
gro~ps."'~There can be no statistical under-representation without a preformed sense
of the "groups" that are subject to this. And these groups are precisely those that
once were targeted for overt, intentional discrimination. In a nutshell, there cannot
be a fight against indirect discrimination that is not group-making or at least group-
reinforcing.
The impetus of the transformation from antidiscrimination into affirmative action,
much as of the original civil rights laws, was to help out the original victims and
today's most disadvantaged members ofAmerican society, the descendants ofAfrican-
American slaves. However, affirmative action was immediately extended to other
historically disadvantaged groups: American Indians, Hispanics, and Asians (as well
as women, not further considered here). The logic of this extension has never quite
been unveiled. In John David Skrentny's stellar account of the American "minority
rights revolution," it is not the pressure of social movements but the "anticipatory

'' Id. at 430.

The words "indirect discrimination" do not appear in Griggs v. Duke Power Co., id.
l6 DANIELSABBAGH, E Q U A LA NI D~ TRANSPARENCY:
A STRATEGIC PERSPECTIVEON AFFIRMATIVEACTION
I N AMERICANLAW123 (2007).
" Id.
20 101 MINORITY
RIGHTS
FOR IMMIGRANTS? 57

politics" by enlightened state administrators that is responsible for this e x t e n s i ~ n . ~ ~

Administrators included groups "analogous to blacks," following a mostly implicit
"logic of appropriateness" not unlike that of "bugs are not food."39 All non-black
groups ''were all basically free rides, requiring virtually no lobbying or protest at
all."40 And if white ethnics, such as the working-class descendants of Polish or Italian
immigrants who had heavily lobbied for inclusion in affirmative action between
1965 and 1975, were shown the door, this is because "they simply had not suffered
enough."-"
Regardless of the logic of carving out and delimiting the American affirmative
action universe, immigrants who matched one of the protected groups were in it from
the start.42 This is because constitutional and statutory rights protections, including
those provided by the 1964 Civil Rights Act and its creative reinterpretation by the civil
rights bureaucracy, have always targeted "persons," not just "citizens." This meant
that seventy percent of the 20 million immigrants entering America between 1965
and 1995 immediately profited from affirmative action.43This is because, after the
de-racialization of U.S. immigration law in 1965, most newcomers would come from
Latin America and Asia. They thus filled the "Hispanic" and "Asian" racial categories
that are entitled to affirmative action, even though these newcomers themselves could
not point to a history of injustice at the hands of white America.
However, the justification of affirmative action underwent a momentous shift in
the U.S. Supreme Court's Bakke decision of 1978.44 The famous swing opinion by
Justice Powell, which tilted an evenly divided Supreme Court to support a qualified
version of affirmative action, radically departed from the previous paradigm of
corrective justice for minorities. As Powell pointed out, the "white 'majority' itself
is composed of various minority groups, most of which can lay claim to a history
of prior discrimination."45 If anything, the U.S. was a "[nlation of minorities",
each having had "to struggle-and to some extent [struggling] still-to overcome
the prejudices not of a monolithic majority, but of a 'majority' composed of various

'' JOHNDAVIDSKRENTNY,
THEMmown RIGHTSREVOLUTION
(2002).
j9 Id. at 9-12.
40 Id. at 141.
4 1 Id. at 264.

42 See HUGHDAVIS GRAHAM, COLLISION

COURSE: THESTRANGE CONVERGENCE
OF AFFIRMATIVE
ACTIONAND IMMIGRATION POLICY R\l AMERICA
(2002).
SABBAGH, supra note 36, at 39.
" Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
I'Id. at 295.
minority If everyone was a minority, there was no longer any basis for
preferential treatment. The only way in which "race" could be salvaged as a positive
factor in college admissions was as a "plus" that helped universities build a "diverse
student body" that was conducive to its educational mission of fostering a "robust
exchange of ideas."47Thus, "diversity" was born, which has since become the main
justification of affirmative action.
The new diversity paradigm had several advantages. As Justice Powell outlined in
Bakke, it dispensed with "the kind of variable sociological and political analysis" that
was required for determining who was "minority" or "majority" at any point in time,
which was beyond the scope of "judicial competence" and better accomplished by
C o n g r e s ~ Diversity
.~~ was, as Daniel Sabbagh sharply observed, a device for keeping
race and antidiscrimination in the legal-as opposed to the political-arena. But, in
addition to this strategic advantage, there were other, more substantive advantage^.^^
Most importantly, only in the diversity paradigm did the inclusion of immigrants in
affirmative action not constitute an anomaly.50 Moreover, diversity legitimized the
inherent tendency of affirmative action, fed by the apparatus engendered by it, to be
in for the long haul, as now there was no need to identify the (necessary if impossible)
moment when the last trace of past injustice would have been eradicated.
Finally, diversity provided the "missing l i n k between antidiscrimination and
multi~ulturalism.~~ It had always been more than a coincidence that aflirmative action
had evolved side-by-side with multiculturalism, which in the U.S. is institutionalized
above all in "minoritized" public-school and college curricula, and in a plethora of
women's and ethnic and racial studies programs at the country's universities, especially
the better ones. Through Sabbagh's rather dark lens, American multiculturalism-
with its penchant for fostering "self-esteem" through ethno-racial perspectivism-is
a "rationalization of the failure" that many an affirmative action students experienced
at the elite university into which she or he was admitted.52 This is most certainly
e ~ a g g e r a t e d .However,
~~ diversity's foot in both camps is evident in Justice Powell's

46 Id. at 292.
47 Id. at 3 1 1 and 3 13, respectively.
48 Id. at 297.

49 SABBAGH, supra note 36, at 38.

50 Id. at 43.

5' Id. at 163.

52 Id. at 156.

" See Mary Waters & Zoua M. Vang, The Challenges of Immigration to Race-Based Diversify
Policies in the United States, in 3 BEI.ONGING? RECOGNITION
DIVERSITY, AND SHARED CITIZENSHIPIN
 MINORITY RIGHTS
FOR IMMIGRANTS?

strange inference from race to a viewpoint and the ensuing equation of race with
culture, which is a staple of multicultural discourse. To the degree that Bakke helped
boost the multicultural notion of viewpoint diversity, American multiculturalism
is indeed "partly a side effect of the juridicialization of political conflicts over the
reduction of race-based ineq~a1it-y."~~
Let us turn to Europe, in which antidiscrimination has never had similarly strong
grounding in the domestic race issue. In Europe there is no legacy of domestic slavery
and Jim Crow racism, which might have whipped European states onto the road of
result-oriented racial equality. In fact, the command never, never to morph into
affirmative action has from the start accompanied the first European antidiscrimination
policy, which is the one of Britain.55 While European antidiscrimination policies
mostly concern immigrants and their descendents, it is still noteworthy that their
earliest incarnations all occurred in societies where immigrants, through colonial
linkages, either amved as citizens or were able to acquire citizenship easily. Only if
there is a sense that racial discrimination happens "within the political community,"
which again is conditional on "open citizenship laws,"56is there a likely push toward
antidiscrimination. Accordingly, Germany-until recently a country with closed
citizenship laws that kept immigrants and their descendents out of the political
community-moved toward antidiscrimination only belatedly. In fact, Germany
adopted an antidiscrimination law only due to external pressure by European Union
law. How contested this move was, one may see in the fact that an otherwise moderate
mind denounced it as "legal vandali~m."~'
Only in European states with a colonial legacy and historically open citizenship
laws does antidiscrimination have domestic roots. In all other European states,
antidiscrimination took hold only after the EU Race Directive was passed in 2000,
which imposes the Anglo-Saxon type of civil-law based fight against "access
racism" also on countries that had previously proceeded differently on the matter

CANADA 433 (Keith Banting, Thomas J. Courchene & F. Leslie Seidle eds., 2007), who cite evidence
that by means ofaffirmative action minorities have made "remarkable strides in education, particularly
post-secondary education."
54 SABBAGH, supra note 36, at 162.
55 Steven M. Teles, Why is There No Afirmative Action in Britain? 41 AM.BEHAV. SCI. 1004
(1998).
5 6 Jacqueline S. Gehring, Hidden Connections: Citizenship and Anti-Discrimination Policy in

Europe, in C I ~ Z E N S H
POLICIES
IP INTHE AGEOF DIVERSITY: EUROPE AT THE CROSSROADS (Ricard Zapata-
Barrero ed., 2009).
57 Karl-Heinz Ladeur, The German Proposalfor an 'Anti-Discrimination '-law: Anticonstitutional
anddnti-Common Sense. A Response to Nicola Vennemann, 3 GER.L.J. 1 (2002).
of dis~rimination,~~ if at all. The EU Race Directive requires member states to pass
legislation that outlaws "direct or indirect discrimination based on racial or ethnic
origin" within a narrow time Its scope is sweeping, including employment,
education, social protection, health care, and access to vital private goods and services
such as housing and insurance. As with the British antidiscrimination law on which
the European law is modeled, the burden of proof is on the accused party to rebut
"presumed" discrimination, and member states are obliged to create "a body or bodies
for the promotion of equal treatment."60
The most important feature of the EU-led fight against discrimination is its inclusion
of indirect dis~rimination.~'This raises the question whether Europe is destined to
go down the American road of latently group-making antidiscrimination policies.
Interestingly, the EU Race Directive is at best permissive about the next logical step
to tackling indirect discrimination, namely "positive action," which member states are
"not prevent(ed)" from taking but also not mandated to do.62 France, with its long-
standing, Republican aversion to recognizing groups that stand in between the citizen
and the state, deems itself immune to the virus of group recognition that is inherent in
the principle of indirect discrimination. This is because of a clause inserted at France's
behest in the Race Directive, which leaves "(t)he appreciation of the facts" about
direct or indirect discrimination "a matter for national judicial or other competent
bodies, in accordance with rules of national law or pra~tice."~'In short, France does
acknowledge the existence of indirect discrimination but is not forced to collect the
requisite statistical evidence to corroborate this fact." But if one considers the EU
campaign to "promote d i ~ e r s i t y , "which
~ ~ has accompanied the European foray into
antidiscrimination, there is no doubt that the latter cannot but be eventually group-

58 Especially France, which earlier used the penal law to combat "expressive" racism (see BLEICH,

supra note 29, at chs. 5 & 6). Why France would strongly support a measure foreign to its legal
tradition is persuasively explained by Virginie Guiraudon, Constmire une Politique Europe'enne de
Lutte contre les Discriminations: L'Histoire de la Directive Race, 53 SocrtrBs CONTEMPORAINES 11
(2004).
59 Council Directive 2000143lEC of June 29,2000 implementing the principle of equal treatment

between persons irrespective of racial or ethnic origin (2000 O.J. 22-26).

60 Id at art. 13.

6' Id. at art. 2.2(b).

62 Id. at art. 5 .

Id. at preamble, "whereas."

See Christian Joppke, Transformation of Immigrant Integration: Civic Integration and
Antidiscrimination in the Netherlands, France, and Germany, 59 WORLD POL. 243, 262 (2007).
65 European Commission, Promoting Diversity. DG4 Employment and Social Affairs 2002.
recognizing. This is simply inherent in the notion of diversity that has branched out
from North America to Europe.
The so-called Veil Committee (chaired by femme d'Etat Simone Veil), charged
with advising the current French President, Nicolas Sarkozy, on the wisdom of
inserting a "diversity" clause into the French constitution that would allow him to
venture toward "positive discrimination," recently rejected such a move resoundingly.
The committee argued that the official recognition of race and ethnicity was a vestige
of countries that had once practiced legal racial segregation. In France, by contrast,
it threatened to "weaken national unity" (afiiblissement du vivre-ensemble) and
to foster group conflict.66 However, this defensive stance faces triple pressure by
ethno-racial organizations, such as the Conseil reprksentative des associations noires
(CRAN); by statisticians and demographers who ask for ethnicity-and race-sensitive
measurements; and by corporations that push for "ethnic marketing" strategies and
diversity as a tool to enhance their competiti~eness.~~ Above all, the French President
himself has vowed to continue with his project of injecting more "diversity" into the
government and top-level public functions: "I am not in favor of quotas, which make
no sense. But one can also not pretend that [a better representation of minorities in
the French elites] will happen by itself, it will not happen by itself."68 Interestingly,
as the U.S. is increasingly questioning the wisdom of race-focused affirmative action,
France, which had long prided itself on avoiding the Anglo-Saxon ways, is now
cautiously, but steadily, moving in the American direction.

This leaves us with the startling fact that multiculturalism is in retreat, while
antidiscrimination is on the rise. This contrast is especially marked in Europe.
Consider that the few European countries that had pursued official multiculturalism
policies in the past have recently shifted to civic integration policies; at the same time,
European Union law and domestic pressures have boosted antidiscrimination to an
unprecedented degree.69 The ultimate source of the cooling down on multiculturalism
-

66 SIMONE VEIL,C O M I DE
T ~WFLEXION SUR LE PREAMBULE DE LA CONSTITUTION : RAPPORTAU PR~SIDENT
DE LA UPUBLIQUE, Dec., 2008, at 57.
67 Cecilia Gabizon, La France dit non aujchage ethnique, LE FIGARO, Dec. 9,2008, at 2.
NicoIas Sarkozy, quoted in id.
69 These developments are discussed in Joppke, Multicultural Citizenship, supra note 18;
Christian Joppke, The Retreat ofMulticulturalisrn in the Liberal State: Theoqi and Policy, 55 BRIT.
is that liberal states are intrinsically geared "to treat people as individuals rather than
as members of a class,"7oleaving the constitution of social groups to the individuals
themselves. This is the gist of universalistic citizenship that had once replaced the
particularism of groups under feudalism. At the same time, liberal states seek to
rectify inequalities and injustices, driven by their commitment to equality. This makes
them favor antidiscrimination.
However, the distinction between multiculturalism and antidiscrimination is not
as neat as it appears. This is because antidiscrimination tilts liberal states in the
direction of group recognition that they philosophically abhor, forcing them to accept
an unavoidable de facto multiculturalism.
Let us explore this paradox further. The fact that discrimination and inequality
often "follow cultural boundaries" makes liberal states captive to a "dilemma of
re~ognition."~~ If they embark on "targeted redistribution policies," examples for
which are affirmative action in the U.S. or the positive discrimination that even
France is poised to take, states cannot but engage in "definition, recognition, and
even mobilization of the groups concerned," which often accentuates the ethnic or
racial distinctions that the policies seek to attenuate or even eradi~ate.'~ As De Zwart
argues, states have three possibilities to cope with the dilemma of recognition: They
can "accommodate," which is multiculturalism; they can "deny," which is liberal
color-blindness; or they can "replace" ethno-racial group distinctions with artificial
proxy categories that avoid the freezing of ethno-racial distinctions that seems to be
the drawback of accommodation. As both multicultural accommodation and liberal
denial apparently proved inadequate to redress discrimination and inequality, states
are increasingly pushed toward replacement strategies. Examples for replacement are
the re-focusing of affirmative action from race to class, which is gaining ground in the
U.S. or the use of geographic and socioeconomic proxies that France has long resorted
to in her aversion to ethnicity and race (and now curiously finds insufficient), and
which the Netherlands recently adopted in lieu of its old ethnic minorities' policy.
However, De Zwart's7' global review of replacement strategies finds them
incapable of resolving the dilemma of recognition. In the Netherlands, for instance,

J. Soc. 237 (2004); Joppke, Transformation, supra note 64; and Christian Joppke, Beyond National
Models: Civic Integration Policiesfor Immigrants in Western Europe, 30 W . EUR. POL. 1 (2007).
Paul Starr, Social Categories and Claims in the Liberal State, in How CLASS~FICATION
WORKS
156 (Mary Douglas & David Hull eds., 1992).
7 1 Frank De Zwart, The Dilemma of Recognition: Administrative Categories and Culhrral

Diversity. 34 THEORY & SOC.137, 142-144 (2005).

72 Id. at 137.
73 Id.
the citizenship-focused "general policy" that replaced the group-focused "categorical
policy" in the 1990s has foundered over the need to identify target populations for
effective policy i n t e ~ e n t i o n The
. ~ ~ Mayor ofAmsterdam explained why subsidies for
ethnic and subethnic "self-organizations" persisted despite the nominal withdrawal
from them: "[Wle needed to contact society and in the process we as government .. .
created the self-organizations ourselves, as it were"75 and the groups that emerged
were exactly those that stood to be replaced!
By the same token, the modicum of group recognition that persists with
antidiscrimination is pragmatic, not philosophical; it is recognition by default in
the pursuit of effective remedies to discrimination, especially at local Such
pragmatic recognition is a far cry from the principled "politics of recognition" decreed
by Charles Taylor.77 Recognition proper does have its field of application, but it is
much narrower drawn than propagated by the multiculturalists. In fact, it closely
overlaps with the politics of reparations, by means of which states have redressed
historical injustice to particular groups.78 The mistake was to prolong this paradigm
to immigrants. Their very mobility has shown immigrants to be actors, not victims.
And, as we have seen, they are actors with individual rights, which obliterate the
group-focused program of multiculturalism.

This Article sharply contrasted multiculturalism and antidiscrimination as distinct

ways of dispensing minority rights on immigrants. Using Charles Taylor's distinction
between the politics of recognition and the politics of equal dignity, one could argue
that multiculturalism follows the first, while antidiscrimination is part of the second.79
The obvious riposte is that there is no clear distinction between the two, witness the
author's own claims about the group-making implications of antidiscrimination. The
American experience is indeed one where multiculturalism and antidiscrimination are

74 See Frank De Zwart & Caelesta Poppelaars, Redistribution and Ethnic Diversity in the

Netherlands: Accommodation, Denial and Replacement, 50 ACTASOCIOLOGICA 387 (2007).

75 Quoted in De Zwart, The Dilemma of Recognition, supra note 7 1, at 155.

76 See also Caelesta Poppelaars & Peter Scholten, Two Worlds Apart: The Divergence ofNational
andLocal Immigrant Integration Policies in the Netherlands, 40 ADMIN. & SOC.335 (2008).
77 TAYLOR, MULTICULNRALISM, supra note 10.
78 JOHNTORPEY, n/tZm~ WHOLE WHATHASBEENSMASHED: ON REPARATIONS POLITICS (2005).
79 With customary lucidity, Steven Lukes has laid out this argument in a 1993 unpublished paper,
"The Politics of Equal Dignity and the Politics of Recognition" (on file with the author).
closely interlinked; the former providing the rationale for the latter's turn from color-
blindness to color-consciousness. More generally, multiculturalism, from Fanon on, is
not conceivable outside of a context of discrimination, and, as Charles Taylor astutely
pointed out, it thrives on a universalistic impulse of equality that it simultaneously
undercuts. So can one really locate multiculturalism and antidiscrimination on
opposite ends of the particularism vs. universalism spectrum, as suggested here?
The fact remains that multiculturalism is in retreat, while antidiscrimination is
going from strength to strength-a duality that, to repeat, is especially noticeable
in Europe. But, perhaps, multiculturalism's retreat is in name only, and it is alive
and kicking under the new label of "di~ersity."~~ This claim trivializes real policy
change that has occurred in previous strongholds of official multiculturalism, most
notably the Netherlands. In fact, across liberal states there has been a new emphasis
on binding immigrants into mainstream institutions and values instead of letting them
drift apart in separate worlds. For this stand the new policy of civic integration and
the reinforcement of citizenship as main instrument and end-point of integration.
Secondly, a facile equation of diversity with multiculturalism obscures the new
diversity discourse's subtle destruction of multiculturalism's minority-majority
dualism and restitutive justice orientation, so that "a farm boy from Idaho" figures no
differently than a black ghetto kid on the front of "achieving . . . educational diversity
[at] Harvard College," to quote from Justice Powell's famous opinion in the U.S.
Supreme Court's Bakke d e c i s i ~ n . ~Finally,
' the simple name-change claim sits oddly
with the fact that "diversity" is elastic enough to have become a new management
philosophy, in France no less than in the U.Sa2
The frontier of research is to investigate more closely the group-making that
still occurs as a result of effective antidiscrimination in this changed context,
which is philosophically individualistic and anti-groupist, in some places (like the
Netherlands) not-so-subtly nationalistic. As suggested above, Europe is not poised to
take the American road: a historical repeat of mutually reinforcing multiculturalism

This is the claim made by Steven Vertovec & Susanne Wessendorf, Assessing the Backlash
against Multiculturalism in Europe, MMG Working Paper 09-04, Max Planck Institute for the Study
of Religious and Ethnic Diversity (2009).
B 1 Regents ofthe University of California v. Bakke, supra note 44, at 3 16.
For the U.S., see Erin Kelly & Frank Dobbin, How Aflrmative Action became Diversity
Management, 41 AM.BEHAV.SCI.960 (1998) ; for France, see Laure Bereni, 'Faire de la Diversite
une Richesse pour I'Entreprise': La Transformation d'une Contrainte J~rridiqueen Categorie
Managdriale, 35 RAISONS POLlTlQUES 87 (2009).
and antidiscrimination is not on offer. In fact, the Veil report rejected a "diversity"
commitment for the French statea3because of a differently textured, less urgent ethno-
racial situation in Europe. But one must also consider that the American experience of
state-level race formation has been critically monitored abroad. If France, so far, has
stayed away fiom ethnic statistics, from positive discrimination, and fiom replacing
its socioeconomic and geographic proxy policies by an explicitly ethnic orientation,
this is not only because of its own Republican aversion to intermediary groups, but
also because there is no support for group-recognizing multiculturalism anywhere
in Europe today. A stronghold for the latter is still the local level, because of ethnic
group entrenchment in urban areas with high immigrant density and a need of local
governments for problem recognition and finding concrete addressees for effective
policy intervention. As Popelaars and Scholten show for the Netherlands, the result
may be a radical divergence between national and local policy, national policy now
being geared to the new civic integration and citizenship idiom, while local policy
stays "multicultural," if more for "pragmatic" than principled reasons.84
When assessing the evolution of minority rights for immigrants, which has been
the focus of this Article, two qualifications have to be made. First, the nucleus of
immigrant rights is alien rights, not minority rights. Alien rights accrue to immigrants
qua immigrants, not qua ethnic group membership. Rights of residence, work,
welfare, and family reunion, one may reasonably argue, are what really matter to
immigrants, and they are dispensed to them on the basis of legal immigrant status,
irrespective of their ethnicity. Under an individual-focused, global human rights
regime, alien rights have significantly expanded after WWII, so much so that some
authors have argued (prematurely in my view) that "citizenship" no longer mattered to
immigrants.85Alien rights, not minority rights, are the true theatre of rights expansion
or contraction for irnmigrant~.~~ Second, with respect to minority rights, immigrants
tap into a domain that has been historically carved out for other groups, most notably
the descendants of African slaves in the US., and national minorities that have seen
state borders move above their heads in Europe. In the U.S., immigrants profited from

" VEIL,supra note 66.

84 Poppelaars & Scholten, supra note 76, at 348-50.
YASEMMSOYSAL,LIMITSOF CITIZMSHIP (1994); DAVIDJACOBSON, RIGHTSACROSSBORDERS
(1996).
86 For rights expansion, see SOYSAL, supra note 85, and JACOBSON, supra note 85; see also
Christian Joppke, The Legal-Domestic Sources ofImmigrant Rights: The United States, Germany,
and the European Union, 34 COMP.POL.STUD. 339 (2001). For rights contraction, especially after
2001, see CHRISTIAN JOPPKE,CITEENSHIP AND IMMIGRATION 91 -95 (201 0).
a historically thin citizenship construct and from the fact that "persons," not "citizens,"
are endowed with key constitutional rights, most notably that of equal protection under
the Fourteenth Amendment. Immigrants' inclusion in affirmative action privileges is
due to this historical accident. In Europe, there has been considerable resistance to
including immigrants in existing minority policies, which had been devised for the
historical victims of nation-state building, and for which international law stipulates
the condition of citizenship in the rights-granting state. This may be the reason for
the shallowness of multiculturalism policies for immigrants in Europe, even at their
historical peak. And note that the reversal of these policies for immigrants has never
extended to their original beneficiaries, national minorities, for whom multicultural
minority rights are as uncontested and firmly in place as ever.
Finally, the thrust of this article was conceptual, not empirical. It contrasted two
modes of minority rights for immigrants, illustrating them with examples drawn fiom
Europe and the U.S. The next step would be a stricter cross-national or cross-regional
comparison, which requires unfolding the many, often conflicting if not contradictory,
national and sub-national, as well as cross-sectional, realities that had to remain hidden
under the "Europe" versus "America" umbrellas.