Law and Policy in Post-Colorblind Mexico: Lessons from the United States’ Multicultural Experience
By Eliel Sanchez Acevedo
The momentum of legal multiculturalism in the United States seems to be on the brink of exhaustion. Although legal challenges to race-conscious policies are not new, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023) foreclosed any possible use of race as a means for diversity in the admissions process, thus making any challenge to inclusion-driven measures more likely to succeed. Given the proximity of race and culture in the construction of law, these challenges may send the scaffolding of regulations and policies that give legal effectiveness to cultural identity crumbling. As a result, the American legal system may enter a new era of colorblindness. In contrast to the United States, several Latin American countries started to systematically dismantle their colorblind legal systems in the 1980s and experienced a resultant multicultural turn (Paschel, 2016, 3; 20-21). In this piece, I use Mexico as a case study to outline three lessons that Mexico, and other Latin American countries that express multicultural assumptions, can take from the United States’ experience with legal multiculturalism.
Like the contemporary U.S. legal system, Latin American law was staunchly hostile to giving racial categories any legal validity during most of the nineteenth and twentieth centuries (Hernandez, 2013b, 2; 9-11). Latin American elites often showcased this adherence to strict colorblindness as proof of the moral superiority and harmony of their societies, in contrast to the United States and its Jim Crow system (Hernandez, 2013b, 9-10; Hooker, 2017, 3-4). Their pretensions of racial harmony, however, came under intense criticism in the early 1980s (De la Fuente & Andrews, 2018, 2-3; Alberto & Hoffnung-Garskof, 2018, 286-287), and by the end of the decade, several states adopted policies of recognition for Indigenous and Afro-descendant populations. Nowadays, every Latin American nation except for Cuba, El Salvador, and the Dominican Republic has granted legal recognition to Indigenous and Black populations as well as cultural rights that include self-determination, protection of their languages, clothing, ancestral lands, etc. (Paschel, 2016, 11). Brazil and Colombia have also instituted robust racial equality policies, such as affirmative action and racial quotas in higher education (Telles & Paixão, 2013, 10-12; Hernandez, 2013a).
In a way, the United States and Latin America seem to be moving in opposite directions. While Latin American nations are just completing the legal redesign that will allow them to manage differences through multiculturalism, the United States is abandoning this paradigm and veering toward a form of legal colorblindness that may impact several proxies for race, such as culture. What can the United States and Latin America learn from each other regarding the effectiveness of legal multiculturalism in achieving racial justice?
Mexico, the focus of this case study, was one of the first Latin American nations to recognize indigenous peoples in its constitution but one of the last to do so for people of African descent. The country’s innovative recognition of indigeneity in its legal system influenced the region’s shift to multiculturalism, although its inclusion of Black policies has largely followed approaches developed by other Latin American nations. Below, I will discuss the three lessons that Mexico should take into account as it moves forward in its efforts toward increased inclusion.
LESSON ONE
When used to address racial inequality and discrimination of Afro-descendant populations, multiculturalist policies tend to legitimize the exclusion of slavery, reparations, and redressing historical discrimination from legal discourse.
Shortly after the U.S. Supreme Court ruled racial segregation in public schools unconstitutional in its landmark decision Brown et al. v. Board of Education of Topeka, Shawnee County, Kan., et al., 347 U.S. 483 (1954), several universities instituted affirmative action programs (Ball, 2000, 1-21). One of the main rationales behind these programs was addressing and correcting past societal discrimination, especially the legacies of slavery and Jim Crow. These programs were subsequently challenged and, in 1978, the Supreme Court ruled in Regents of the University of California v. Bakke, 428 U.S. 265 (1978) that racial quotas in higher education and affirmative action programs that aimed to remedy broad or abstract “effects of societal discrimination” were impermissible. The Court did decide, however, that attaining a diverse student body was a constitutionally permissible goal.
The effect Bakke had on racial justice discourse was twofold: on the one hand, it allowed universities to tackle racial inequality using the language of diversity, which, at the time, was more acceptable to social sectors traditionally hostile to color-conscious policies. On the other hand, it also rendered racial inequality as a matter of ahistorical cultural representation. Post-Bakke affirmative action made it impermissible to link the legal effects of diversity with redressing racial injustice produced by slavery and Jim Crow, effectively reframing racial inequality as a failure in granting representation and spaces of cultural performance and exchange to some sectors of a heterogeneous society.
Some Latin American countries are taking a similar path by using recognition of cultural diversity to grant special rights to people of African descent while obscuring the historical specificity of these populations. For instance, in 2019, Mexico amended its constitution to recognize Mexicans of African descent (Juárez, 2024). The amendment recognized this population as an integral part of the nation’s multicultural landscape and effectively granted them the same rights that indigenous peoples enjoy. As could be expected, the legal text did not reflect the historical difference between these two populations: Black people arrived in colonial Mexico mostly enslaved, whereas indigenous peoples, with punctual exceptions, were not subject to enslavement (Martinez, 2008, 97; Bennett, 2009, 4). The rights enshrined in the Mexican Constitution neither respond to the historically constructed issues of Afro-Mexicans nor tackle questions about reparations and issues of racial discrimination.
By taking the same route as Bakke, the Mexican Constitution foreclosed any legal effectiveness to political demands rooted in the harm caused by slavery and racial prejudice to Mexicans of African descent. Although legal multiculturalism allows societies traditionally hostile to race-conscious policies to talk about difference and diversity, it also allows them to sanitize their histories by erasing the legacies of slavery, the harms of racial discrimination, and the causes of inequality not related to a lack of diversity.
LESSON TWO
The content of cultural subjectivities is always open to dispute by the people who share them. Insofar as the state needs to recognize a single version of cultural subjectivity or identity to make rights and protection effective, legal multiculturalism requires a certain degree of state-sponsored authenticity (Ford, 2005, 16)
U.S. scholars of race have argued that anti-discrimination law has been hostile to claims demanding protection for cultural performances tied to race (Gulati & Carbado, 2001, 728-729). In fact, courts have been skeptical of claims that establish a link between race and potentially racialized cultural traits, often refusing to give legal effectiveness to arguments based on cultural authenticity or cultural essence. For example, in 1981, the U.S. District Court for the Southern District of New York held in Rogers v. American Airlines, Inc., 527 F.Supp. 229 (S.D.N.Y. 1981) that a grooming policy that prohibited employees from wearing an all-braided hairstyle did not violate the Thirteenth Amendment and did not discriminate against women or Black people. The plaintiff argued that the cornrows hairstyle targeted by the policy was part of the cultural and historical essence of Black women in the United States. The district court, however, avoided deciding whether a cultural trait was essential to Black identity or not.
Similarly, the United States Fifth Circuit Court of Appeals decided in Garcia v. Gloor, 618 F.2d 264 (5th Cir.1980) to uphold an employer’s policy prohibiting the speaking of any language but English in the workplace. The circuit court reasoned that, although Spanish could be perceived as an essential part of the cultural identity of Mexican Americans, anti-discrimination statutes did not consider sociocultural traits as belonging to any protected category such as race or national origin.
While severely restricting the reach of anti-discrimination laws, these courts also avoided engaging in questions of authenticity. Had the courts decided to protect cultural traits due to their “essential” role in determining identity, they would have needed to establish a mechanism to discriminate between essential and non-essential cultural characteristics and would have created legally-sanctioned versions of Black or Mexican American identities. By resisting the push of legal multiculturalism, courts in the United States reviewing discrimination cases prevented state-sponsored micromanagement of cultural subjectivity.
In the case of Mexico, micromanaging cultural subjectivities seems inevitable insofar as culture has been established a priori as the category through which the law will allocate entitlements and rights for Black individuals and communities (López, 2022, 179-181). By using culture as the distinctive marker of Blackness, the Mexican Constitution has transformed access to rights into a quest for authenticity, while at the same time providing inaccurate tools–in the form of a methodology or a standard–to judge such authenticity.
The Mexican Constitution does not contain a definition of Black culture, Black history, or Black distinctiveness. It is implied that Blackness grants access to individual and communal rights, but the Constitution does not establish any link between those rights and a distinctive expression of Blackness. The result can potentially be, as in the case of Rogers and Garcia, a constant struggle within legal spaces to get judges, policymakers, and state officials to recognize certain cultural traits as “authentic” and “essential” in order to grant access to the rights and entitlements enshrined by the Constitution. In time, these struggles may congeal into a state-sanctioned “authentic” script of legal Blackness.
LESSON THREE
Attacks on legal multiculturalism tend to target diversity and inclusion policies that may use non-racial categories as proxies for race. Thus, if successful, these attacks may also dismantle policies that use non-racial categories bona fide, hindering efforts to tackle socioeconomic inequality or foster cultural preservation.
Legal multiculturalism in both the United States and Mexico is premised on using culture as a proxy for race to make the inclusion of color-conscious policies in otherwise colorblind legal systems possible. In Mexico, this maneuver triggered a paradigm shift at a constitutional level, whereas in the United States, it allowed institutions to carve out a place for race-conscious policies in higher education until SFFA v. Harvard was decided (Amponsah & Hamid, 2023). Nevertheless, post-SFFA litigation has started targeting admission policies and internships due to the suspicion that they are engaging in unlawful use of race through proxies. There are serious doubts, however, that all admission systems or internship allocation policies that do not follow strict meritocratic criteria necessarily engage in impermissible racial balancing.
For instance, on February 20, 2024, the U.S. Supreme Court rejected an appeal by a coalition of parents and students who argued that the highly-selective Thomas Jefferson High School for Science and Technology racially discriminates against Asian Americans. The coalition argued that the school’s revised admissions policy, which ended standardized test requirements and instead reserved seats for top students from each public middle school in Fairfax County, Virginia, violates the Equal Protection Clause of the Fourteenth Amendment. The school responded that the revised policy’s goal was to achieve socioeconomic and geographic diversity, which the coalition has deemed a proxy for race (Chung, 2024).
Although the challenge to the Thomas Jefferson High School’s admissions program was unsuccessful, the attacks on multicultural policies may reach programs that are not related to race. The link between diversity, race, and the seemingly long reach of culture may now work in favor of conservative efforts to link any policy that seeks to tackle inequality to race. Furthermore, such a link could prove fatal for progressive policies now that diversity, deemed a proxy for racial balancing, may have difficulty passing constitutional muster.
In Mexico, the multicultural turn is far from losing vigor. It has been enshrined in the Mexican Constitution, and the policies and statutes to make it effective are only now being drafted. Nevertheless, its critics have warned that race lies behind the seemingly benign language of culture and representation. In 2019, Mexican President Andrés Manuel López Obrador proposed a policy of differentiated access to federal welfare money for older people. The president suggested that Indigenous people could access it at the age of 65, but mestizos (mixed-race individuals) could only access it at the age of 68 (Animal Político, 2019). In response, the conservative opposition labeled the policy as racist and close to Nazism. Race, the opposition argued, has no place in federal policy, especially as a determining factor for accessing welfare (Animal Político, 2019).
As in the United States, multiculturalism has enabled the Mexican state to enact laws and policies that benefit marginalized groups without having to give any legal validity to the category of race. However, the risk of blurring the boundaries between culture and race is that once the detractors of multiculturalism “unmask” this proxy, all non-race-based policies that appear even the slightest bit suspicious can fall alongside multiculturalism.
List of References
Alberto, Paulina & Hoffnunf-Garskof, Jesse. 2018. “‘Racial Democracy’ and Racial Inclusion. Hemispheric Histories.” In Afro-Latin American Studies: An Introduction, edited by Alejandro de la Fuente and George Reid Andrews, 264-316. Cambridge: Cambridge University Press.
Amponsah, Michelle & Hamid, Rahem. 2023. “Harvard Overhauls College Application in Wake of Affirmative Action Decision.” The Harvard Crimson, August 3, 2023.
Animal Político. 2019. “Apoyo diferenciado de AMLO para mestizos e indígenas genera debate sobre racismo.” Yahoo Noticias, November 17, 2019.
Ball, Howard. 2000. The Bakke Case: Race, Education, and Affirmative Action. Lawrence: University Press of Kansas.
Bennett, Herman. 2009. Colonial Blackness: A history of Afro-Mexico. Bloomington: Indiana University Press.
Brown et al. v. Board of Education of Topeka, Shawnee County, Kan., et al., 347 U.S. 483 (1954)
Chung, Andrew. 2024. “US Supreme Court rejects Virginia case over race in high school admissions.” Reuters, February 20, 2024.
De la Fuente, Alejandro & Andrews, George Reid. 2018. “The Making of a Field. Afro-Latin American Studies.” In Afro-Latin American Studies: An Introduction, edited by Alejandro de la Fuente and George Reid Andrews, 1-24. Cambridge: Cambridge University Press.
Ford, Richard. 2005. Racial Culture: A Critique. Princeton: Princeton University Press.
Garcia v. Gloor, 618 F.2d 264 (5th Cir.1980)
Gulati, Mitu & Carbado, Devon. 2001. “The Fifth Black Woman.” Journal of Contemporary Legal Issues 11: 701-729.
Hernandez, Tanya Kateri.
2013a. “Affirmative Action in the Americas.” Americas Quarterly, July 24, 2013.
2013b. Racial Subordination in Latin America: The role of the state, customary law, and the new civil rights response. Cambridge: Cambridge University Press.
Hooker, Juliet. 2017. Theorizing Race in the Americas: Douglass, Sarmiento, DuBois, and Vasconcelos. New York: Oxford University Press.
Juarez, Blanca. 2024. “Reconocimiento del pueblo afromexicano en la Constitución, una deuda histórica.” El Economista, February 10, 2024.
López, Lizbeth. 2022. “El multiculturalismo en la constitución Mexicana. Normalización y homogeneización de los pueblos originarios en México.” Crítica Jurídica 4: 172-192.
Martinez, Maria Elena. 2008. Genealogical Fictions: Limpiza de Sangre, religion, and gender in Colonial Mexico. Stanford: Stanford University Press.
Paschel, Tianna. 2016. Becoming Black Political Subjects: Movements and Ethno-Racial Rights in Colombia and Brazil. Princeton: Princeton University Press.
Regents of the University of California v. Bakke, 428 U.S. 265 (1978)
Rogers v. American Airlines, Inc., 527 F.Supp. 229 (S.D.N.Y. 1981)
Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023)
Telles, Edward and Marcelo Paixão. 2013. “Affirmative Action in Brazil.” LASA Forum 44 (2): 10-12.
Eliel Sanchez Acevedo is a Doctor of Juridical Science (SJD) candidate at Harvard Law School. He received his JD degree and an MA in Communication and Social Change from the Ibero-American University Puebla (Mexico). Eliel also received a Master of Laws (LL.M.) from Harvard Law School in 2019.
Currently, Eliel is writing a doctoral dissertation in the field of legal history, focusing on race and the law in twentieth-century Mexico. He co-coordinates the Afro-Mexico project of the Afro-Latin American Research Institute at Harvard University and works as a teaching fellow at Harvard College.
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