The Debate Over Raising Chinese Labor Standards Goes International

Posted 1873 days ago by HLPRonline editorial staff

by Aaron Halegua*

“U.S.-based corporations are opposing legislation to give Chinese workers new labor rights.”1 Global Labor Strategies, a non-profit center based in Boston, offered this appraisal of U.S. companies in China that suggested amending the hotly contested Chinese draft Labor Contract Law (LCL). An October 13 article in the New York Times quoted sources alleging that the American Chamber of Commerce (AmCham) in Shanghai threatened that U.S. companies would divest from China if the law was passed.2 Is this response by these U.S. corporations justified? Was this even their actual response? Are their criticisms of this legislation legitimate? Are accusations that they are working to keep down Chinese labor standards accurate? The labor conditions faced by Chinese workers are rightfully a subject of great concern, as is the role that U.S. corporations play in affecting these standards. However, before such questions can be fairly answered, it is necessary to understand the current labor situation in China, exactly what the draft law proposed, and what the likely effects of passing the law would be.

The Plight of Chinese Workers: A Problem of Low Enforcement, Not Low Standards

Few would contest the terrible conditions faced by many Chinese workers – especially the 150 million members of the “floating population,” who migrate to urban areas from their poor homes in the countryside. These men, women and children often work without written contracts in dangerous conditions for up to eighteen hours per day and under $100 per month. They often receive no vacation and no overtime pay. Moreover, these meager salaries are usually paid late, and even then, are frequently not paid in full.3

But the problem is not that Chinese labor standards are too low. The 1994 Labor Law requires that employers sign contracts with workers and provides for a minimum wage, the monthly distribution of wages, a forty-four-hour work week, mandatory rest and vacation, and overtime pay. The 1994 Law furthermore enumerates a host of civil and criminal penalties to be imposed on non compliant employers. On paper, many of China’s labor standards are more generous than standards in some developed countries. But these standards are largely ignored, both by employers and by the government agencies responsible for their enforcement.

The primary reason that labor standards are not enforced is that local officials lack any real incentive for doing so. Local officials’ performance evaluations, which determine their salary and chances for promotion, focus primarily on economic growth. These officials may also benefit directly from local businesses’ success through personal investments, tax collection, or bribes. These motives generally trump any interest in protecting an easily replaceable, uneducated worker from another province. Thus, local officials – and the local labor bureaus which they oversee and control – are loathe to upset employers by vigorously enforcing labor standards.

How Does the LCL Address this Problem?

The draft law does little to address this problem. Like the laws already on the books, the primary focus of the draft law is on labor standards. It restates many existing standards, modifies others, and introduces some standards in new areas. For instance, it tightens regulations on probationary periods and on non-compete clauses, it grants more rights to workers with fixed-term contracts, and it requires ambiguous contract terms to be interpreted in favor of the employee. However, the rights and standards which Beijing writes on paper do not help workers unless they are enforced throughout the country. So how does the draft law help to ensure that workers actually enjoy these rights?

The LCL’s strategy for protecting workers is to increase the role of labor unions in decision making. For instance, the law would require union approval of changes to company regulations or policies, including those on training, rest and vacation. Union approval is also required to dismiss more than fifty employees at once. For any employee who is fired, employers are required to notify the union, which may challenge the legality of the firing and oblige the employer to provide a written response. Unfortunately, however, these provisions are unlikely to have a meaningful impact given the current state of labor unions in China.

The first problem is that no labor unions exist in a substantial portion of enterprises in China. The New York Times reports union membership dropped during the 1990s from 130 million to about ninety million by 1999.4 While unions exist in virtually all state-owned enterprises, the number of such companies has been shrinking throughout the reform era. Privately owned and foreign invested enterprises, which compose a growing proportion of the Chinese economy, are far less likely to have unions. Further, it is in these latter types of enterprises that China’s most vulnerable laborers, migrant workers, are often employed.

The second, and far more substantial problem, is that Chinese labor unions are rarely more than tools of local officials and management. In China, there is only one legally-sanctioned union – the All-China Federation of Trade Unions (ACFTU) – whose branches all answer to the local government and the Chinese Communist Party. The primary interest of the ACFTU is not in fostering class conflict but in preserving social stability. Most union officials answer to the employer, who pays their wages and is able to fire them at will. Far from being elected representatives of the workers, union officials are often relatives and friends of the employers or other managers within the company. Such unions are obviously quite different from the western model and quite unlikely to vociferously represent workers’ interests by challenging employers. Indeed, both officials and employers believe the unions’ purpose is to help placate workers and discourage them from protesting.5

Unions have already tried and failed to serve as workers’ advocates. Under the 1994 Labor Law, collective labor contracts must be signed by labor unions. However, reports suggest that union officials often sign the contract prepared by the employer or labor bureau without question. It seems improbable that employers’ friends will behave any differently simply because the new law grants unions the right to “bargain on an equal basis” with management. The manager of a Chinese firm which has a union explained to the Guardian why he is not worried about the new law. “[I]t is impossible for the trade union to act against me. . . . Even if the new law strengthens its power, it’s me who pays their wages. If the chairman of the trade union raises a strike, I’ll dismiss him.”6

There are signs that the ACFTU will try to expand the number of workers and enterprises that it reaches. In fact, it has explicitly set goals of increasing unionization in foreign-invested enterprises and of unionizing migrant workers.7 Its establishment of unions in Wal-Mart stores throughout China could be interpreted as a victory in this effort. Some have suggested that adopting the LCL could also catalyze the formation of unions, as compliance with the law would be impossible for companies lacking unions. However, any expansion of union presence and rights will do little to help Chinese workers if these unions remain mere rubber stamps. Moreover, unions formed in response to the law are likely to be created by management in a top-down manner which reinforces their lack of independence and inability to meaningfully advocate for workers.

The Substance of U.S. Corporations’ Response to the LCL

Given the above assessment of the draft law’s impotence, it may seem odd that U.S. corporations would be so opposed to it. As Global Labor Strategies alleges, “foreign corporations are attacking the legislation not because it provides workers too little protection, but because it provides them too much.”8 The reason for this opposition is that U.S. firms are not free to simply ignore labor regulations as are their Chinese counterparts. While neither group of companies is significantly pressured by Chinese authorities or unions to comply with labor standards, U.S. corporations do receive some domestic pressure to, at the very least, not violate Chinese law. Thus, U.S. corporations are in the minority of businesses in China that will actually be forced to implement any new laws and will thus feel the effects of any such legislation.

Two associations which represent U.S. companies’ business interests in China, the U.S.-China Business Council (USCBC) and the American Chamber of Commerce in Shanghai, have submitted written proposals to China’s top legislative body for amending the LCL.9 Many of the comments submitted by these organizations do not simply seek to amend the law in employers’ favor but raise legitimate concerns. One such set of concerns is that several terms of the draft law are too vague to understand or implement. For instance, three different maximum probationary periods are set for “senior technical professional,” “technical” and “non-technical” workers, but no further definition of these terms is provided. Similarly, labor unions are given the right to veto all rules “concerning the immediate interests” of the laborers. Employers are required to pay an employee’s annual salary to enforce non-compete clauses, but does this mean just their basic wage or include benefits and bonuses as well?10 The proposals call for the legislature to use greater clarity and specificity in defining these terms.11

Another set of recommendations by the two U.S. organizations proposes correcting what appear to be the excesses or, perhaps, oversights of this pro-worker legislation. For example, while the 1994 Labor Law voids contracts when either the employer or employee commits fraud, the LCL only invalidates contracts when the employer acts fraudulently. Also, the LCL seems to indiscriminately create non-fixed term contracts when a labor contract is not formed and to demand severance payments when contracts are not renewed. Thus, it appears that even if an employee refuses to renew her expired contract, the enterprise still owes her a severance payment. Both organizations also object to the requirement that any discrepancy in a labor contract be interpreted in the worker’s favor. Instead, AmCham’s report suggests that external, objective criteria be provided for judging and defining labor relationships.

The organizations also argue that, in addition to being vague or unfair, certain provisions could have negative repercussions for China’s economic growth, its ability to attract investment, or its workers. For instance, they claim that capping non-compete clauses and limiting the training costs for which employees can be held liable will make foreign companies reluctant to bring advanced technology into China or to invest heavily in training workers. The LCL also regulates the use of labor brokers, which is likely to discourage employers from using them.12 If a company hires an employee through a labor broker, it may only sign one fixed-term contract with that employee and then must hire the employee directly; if it does not, the company may not use a labor broker to hire another individual for the same position. The USCBC contends that this provision will limit companies’ ability to find the best person. Further, it argues that the provision ignores the seasonal or temporary nature of the work for which labor brokers provide a valuable service and could mean fewer job opportunities for the migrant workers who use these services.

Another, more compelling concern of American corporations is that they are put at a relative disadvantage with Chinese firms by increased and asymmetrically enforced labor standards. As AmCham argues, adopting the LCL would perpetuate the current situation in which “the one who violates laws remains unpunished while the one who observes laws is punished.” Instead, they argue – and correctly – that the real key to stopping the abuse of Chinese workers lies in improving enforcement of the laws and standards already in place.

Other Actors’ Concerns about the LCL

Even if many Chinese corporations have not vocalized their opposition to the draft law, it is not the case – despite what some reports seem to suggest – that U.S. corporations are alone in their opposition to the proposed legislation. Organizations representing other foreign businesses, such as the EU Chamber of Commerce, have taken similar positions.13 Far more significant, though, is that actors within China, including non-business interests, have openly criticized the law. Some have criticized specific provisions in the draft. For instance, one very pro-labor law professor from Sichuan University has recommended striking a seniority provision which requires that newer employees be laid off before older ones. She argues that this discriminates against younger employees, who need jobs just as badly as older workers.14

More fundamentally, some Chinese academics oppose the whole practice of setting new, higher labor standards. Dong Baohua, a labor law professor from Shanghai, argues that even current standards are too high for China’s present level of economic development, which makes compliance prohibitively costly. One must wonder what good results from having high labor standards on paper which virtually nobody enforces. Certain negative consequences of such an arrangement seem clear though, such as decreasing respect for the rule of law.

Academics, officials, and workers also question the efficacy of the LCL’s focus on the labor union as the mechanism for ensuring Chinese workers’ rights. Even many within the ACFTU bureaucracy criticize unions’ deference to local officials and company managers. There is increasing recognition that if unions are not inspired by workers and created in a bottom-up manner, they will remain toothless. In one conversation with the author, Dong Baohua was emphatic that rights should be given to the workers, who should then choose whether to transfer these rights to unions of their own creation. He believes that “giving these rights to the union directly is like not giving them at all.”15

The Form of U.S. Corporations’ Response to the LCL

Even if some are not sympathetic to the actual positions advanced by these American corporations, the means by which they are promoting them are noteworthy. The process by which the National People’s Congress (NPC), China’s top legislative organ, drafted and considered the LCL has been remarkably democratic and open for that body.16 In writing the law, teams of academics and other experts were brought in to offer expertise and even invited to submit drafts. In March 2006, once a draft was ready, the NPC not only made it public but invited the public to comment on it. During the following month, nearly 200,000 comments were received, with 65% of them from ordinary workers.

Participation by AmCham and the USCBC has been supportive of this process. The two organizations submitted written comments to the NPC consistent with the established procedure. Representatives of various U.S. corporations also testified before the NPC on the potential impacts of the LCL. The overworked and understaffed NPC was very much seeking the opinions and advice of outside labor experts and these multinational companies offered their suggestions. Moreover, whatever the Chinese legislature finally decides – whether it adopts their suggestions or not – few have doubted that these companies will then comply with the new regulations.

Such participation is far preferable to what most Chinese companies are doing. Insiders suggest that many Chinese companies view passing this law as a government priority and fear that voicing any criticism or opposition to the draft would threaten their relationships with top officials. Therefore, they say nothing about this law that hurts their interests, and instead, if the law is passed, they plan to rely on their government relationships to evade any new requirements. Thus, they will not participate in the democratic exercise of seeking to draft a good, fair law, but will work to undermine the whole exercise by refusing to enforce whatever standards are eventually agreed upon.

Such a rosy picture of U.S. corporations’ involvement in the legislative process is somewhat tarnished by the allegation that these companies threatened to divest from China if the law is passed as currently drafted. This accusation seems to be based on two sources: first are the suggestions by AmCham and similar groups that passage of the draft law might negatively impact China’s investment environment; second is a claim that 20 AmCham representatives stormed into a meeting of scholars about the law, demanded the floor, and made such threats. Starting with the latter, AmCham has denied that these people actually represent the organization in any official capacity. It does seem a bit surprising that AmCham would be preparing a forty-two-page written response to the NPC and simultaneously sanction such a rash and brazen action.17 Nonetheless, if AmCham did in fact organize such actions, such behavior and tactics are reprehensible.

As for the more subtle threat, in which U.S. companies suggest that raising labor standards may negatively effect China’s investment environment, this seems to be a mere statement of fact on how multinational corporations operate. Corporations will always migrate to the country with the most favorable economic conditions. To pretend that labor standards do not matter in this calculation would be misleading. Thus, it seems fair to make this an element in the debate over the LCL. Those involved in the drafting process have suggested that the current draft was basically written by the ACFTU and pro-labor academics. The content of the LCL suggests this is likely. It seems appropriate that somebody voice the concerns of the business community as well. Whatever the legislature decides to do in the end, the Chinese government would be grossly negligent if it were not at least thinking hard about how any new legislation would impact the foreign investment which is responsible for so many Chinese jobs.

Assessing the NPC’s Revisions to the LCL

Now that a revised draft of the LCL has been completed, it seems that the comment process helped to improve the clarity and structure of the draft law. For instance, the maximum length of probationary periods is no longer determined by how “technical” the job is, which is hard to define, but by the more objective measure of the length of the contract. The new draft also clarifies which company rules qualify as involving employees’ “vital interests” and thus cannot be changed without consulting workers. Instead of having a few scattered sections that address labor brokerage, the revised draft has a chapter of 11 sections that sets stricter regulations on these companies, delineates the legal relationship between and relative responsibilities of labor brokers and the employing companies, and clarifies the rights of the workers in such arrangements (for instance, affirming their right to join unions).

Although the recommendations of AmCham and USCBS were adopted in certain areas, not all changes favored employers. For example, the ceiling on penalties for non-compete clauses was removed, but the scope of their use was limited to senior managers and technicians and the two-year maximum remains. The revised draft allows employers to require a period of employment for workers that receive one month of training (instead of six), but it also explicitly requires that workers receive appropriate wage raises during the training period. Many provisions of the revised draft actually seem even more pro-worker than the original. When laying-off workers, employers are no longer required to reach consensus with the trade union, but must merely explain the situation to them. However, the NPC did maintain the provision protecting more senior workers and now requires employers to consult with the union when dismissing 20 workers, not 50.

Most importantly, the revised draft responds to calls to ensure enforcement of new and existing labor standards. More responsibility is placed upon labor officials at the county levels, as opposed to the village and township levels, presumably to overcome corruption and local protectionism. Specific financial penalties have been added for an employer’s violation of certain provisions, such as the failure to conclude a written contract with an employee. Further, if an employer fails to pay an employee on time, the revised draft also allows that worker to file a lawsuit directly with the local court.18 Finally, the revised draft gives some teeth to labor unions. Instead of simply granting unions the power to “supervise” the employer’s compliance with legal and contractual provisions, the revised draft empowers them to bring a claim when such a violation occurs and to support individual employees that bring cases to arbitration or court.

Given the intense debate about the LCL amongst Chinese actors, it is difficult to assess how influential AmCham, USCBC, or other foreign actors were in bringing about these revisions. Nonetheless, AmCham has already prepared a new set of comments on the revised draft; however, this time the document has only been made available to AmCham’s members instead of posted on its website. Despite this measure, labor groups are likely to still obtain a copy and criticisms of AmCham and its members will follow soon after. But if the goal is to really improve the situation of Chinese workers, the focus cannot be exclusively on U.S. corporations and their lobbying activities. The critical issue is how to make Chinese companies comply with labor standards.

Helping Chinese Workers Requires Focusing on Chinese Companies

Reports suggest that the compliance rates for U.S. companies that hire Chinese employees directly are actually quite high. The problem lies in the fact that much of the manufacturing of goods for export is performed by Chinese factories to which U.S. corporations subcontract the work. Most U.S. companies demand that these Chinese factories meet certain standards, which at least require that China’s minimum legal standards be met, and conduct routine audits to ensure compliance.19 However, Chinese factory managers often keep two sets of books, instruct child laborers to hide from inspectors and employ other tactics to deceive U.S. companies into believing that their standards are being met. One experienced compliance manager for a multinational company “estimates that only twenty percent of Chinese suppliers comply with wage rules, while just five percent obey hour limitations.”20 Given the government’s unwillingness to crack down on these factories and the powerlessness of unions, U.S. corporations may actually be the workers’ most active ally in such cases.

This is not to say that U.S. corporations in China should be immune from criticism. They could always do more to ensure that the factories they work with are not violating the law and they could always be more generous to the employees they hire directly – which is probably true of corporations everywhere, not only in China. Moreover, the persistent demand for goods at rock bottom prices by companies such as Wal-Mart certainly puts pressure on Chinese suppliers to cut corners and violate labor standards.

Nonetheless, demonizing U.S. corporations by characterizing them as opposing better conditions for Chinese workers or even “lobbying for the maintenance of sweatshop conditions”21 because of their stance on the LCL is somewhat unfair. These companies have not called for totally abandoning the law, but rather recommended several specific amendments at the invitation of the government. While these suggestions are consistent with these corporations’ economic interests, many are also legitimate criticisms of the current draft and are shared by other actors in Chinese society. Finally, one can not help but agree with AmCham’s appraisal that passage of the law would do little to help the vast majority of Chinese workers and those who most need help. The most significant effect probably will be to punish the few companies that already comply with labor standards and leave the vast number of non-compliant companies untouched. Chinese workers’ greatest enemies are employers who do not follow the law and the officials that let them get away with it. Improving the situation of Chinese workers does not require raising labor standards; it requires finding ways to enforce the ones that already exist.

An Alternative Approach: Empowering Workers

One path towards enforcing the rights that already exist is to empower workers. Workers are proving to be increasingly interested in protecting their rights and improving the workplace, but they lack the knowledge and channels to effectuate such change. This has been recognized even by those organizations that have sought to enforce labor standards primarily through conducting compliance audits. Such programs make managers very defensive and are limited by the amount of time the inspector is physically present at the factory. These organizations are now adding programs that teach workers about their rights and help them to establish constructive dialogues with managers. This strategy is proving effective.22 The international labor movement ought to be increasingly focused on such efforts that seek to empower workers.

Strengthening organized labor is a good way of empowering workers. Some organized labor groups in the U.S., particularly the AFL-CIO, refuse to recognize or work with the ACFTU because of its lack of independence from the government. However, the ACFTU is the only show in town and as the LCL reveals, the Chinese government sees the ACFTU as the engine of labor reform. Moreover, the ACFTU may itself be reforming. Anita Chan notes that in the recent establishment of union branches in several Chinese Wal-Mart’s, the ACFTU was forced to break from its traditional, top-down model of organizing because management was unwilling to cooperate.23 After grassroots mobilization techniques succeeded in establishing unions anyway, an editorial on the ACFTU’s website celebrated this achievement and the “new line of thinking” about organizing.24

U.S. labor organizations are particularly well-suited to offer assistance and share experiences in grassroots organizing and union management. An opportunity exists to support reformers within the ACFTU, reformers that want to shape it into a more independent, proactive body – exactly the type that the AFL-CIO criticizes it for not being. SEIU has already decided on a strategy of engagement and cooperation. Perhaps the international labor movement ought to be criticizing U.S. labor groups that do nothing to help Chinese workers just as they go after U.S. companies that are exploiting Chinese workers.

Of course, the ACFTU will not overhaul itself overnight. But, similarly, merely passing new laws will not cause instantaneous improvements either. The international labor movement should have a multi-pronged approach to advancing the labor situation in China, an important part of which focuses on better educating, organizing, and empowering workers to translate legal rights into meaningful changes on the factory floor.

* Aaron Halegua is a first-year student at Harvard Law School. Prior to law school he worked for Yale Law School’s China Law Center in Beijing. This analysis relies on a translation of the revised draft prepared by the Beijing office of Squire, Sanders & Dempsey LLP.

1 David Barboza, China Drafts Law to Empower Unions and End Abuse, N.Y. TIMES, Oct. 13, 2006, at A1.

2 Id.

3 For a fairly comprehensive description of the difficulties faced by migrant workers in China, see AM. FED’N OF LABOR AND CONG. OF INDUS. ORG., BENJAMIN L. CARDIN & CHRISTOPHER H. SMITH, SECTION 301 PETITION 55-106 (2006),

http://www.aflcio.org/issues/jobseconomy/globaleconomy/upload/china_petition.pdf.

4 Erik Eckholm, Workers’ Rights are Suffering in China as Manufacturing Goes Capitalist, N.Y. TIMES, Aug. 22, 2001, at A8.

5 In fact, the official slogan of the ACFTU is “defusing contradictions, strengthening unity, promoting production and stabilizing situations.” Feng Chen, Between the State and Labour: The Conflict of Chinese Trade Unions’ Double Identity in Market Reform, 176 CHINA Q. 1013 (2003).

6 Chris Gill, Work: Come the Revolution: ‘Made in China’ Often Means Long Hours and Low Pay for Its Workers. But Labour Law Reform Could Mean That Soon They’ll Have More Rights Than UK Employees, THE GUARDIAN, June 24, 2006, at 3.

7 Guan Xiaofeng, “70% Target for Unions in Foreign Firms,” CHINA DAILY, Jan. 5, 2007, at 3, available at http://chinadaily.com.cn/china/2007-01/05/content_775133.htm.

8 GLOBAL LABOR STRATEGIES, BEHIND THE GREAT WALL OF CHINA: U.S. CORPORATIONS OPPOSING NEW RIGHTS FOR CHINESE WORKERS 2 (2006), at 2, available at

http://laborstrategies.blogs.com/global_labor_strategies/files/behind_the_great_wall_of_china.pdf.

9 See THE AMERICAN CHAMBER OF COMMERCE IN SHANGHAI, COMMENTS AND SUGGESTIONS ON REVISION TO LABOR CONTRACT LAW (2006), http://www.amcham-shanghai.org/NR/rdonlyres/A18F268D-6EE8-4221-B075-4F00282E8623/1427/

AmChamShanghailaborcontractlawcommentstoNPCApr2006.pdf; U.S.-CHINA BUSINESS COUNCIL, U.S.-CHINA BUSINESS COUNCIL COMMENTS ON THE DRAFT LABOR CONTRACT LAW OF THE PEOPLE’S REPUBLIC OF CHINA (2006), http://www.uschina.org/public/documents/2006/04/uscbc-comments-labor-law.pdf.

10 For a discussion of other provisions in the LCL that could prove costly for U.S. companies, see Alexander May & Tong Jia, China’s Onerous New Labor Law, FAR EASTERN ECON. REV. (Jan./Feb. 2007) 36-38.

11 It is actually quite common for China’s legislature to pass laws with vague provisions and then rely on the ministries, courts, and other bodies to later issue regulations that specify their meaning. However, if the legislature hopes to get meaningful comments and debate on the draft law, then there is good reason to put more of the “meat” into the law itself.

12 Labor brokers are similar to headhunters or temp agencies in the U.S. and are widely used in China. Workers found in this way often have no contract with either the employer or the labor broker. It is particularly difficult for such workers to seek legal redress because courts are often unclear as to whether the broker or the hiring company is the real “employer” and to what the respective responsibilities of each should be.

13 For the official position of the E.U. Chamber of Commerce in China, see EUROPEAN CHAMBER OF COMMERCE IN CHINA, STATEMENT ON THE DRAFT LABOR CONTRACT LAW (2006), http://www.europeanchamber.com.cn/events/news.php?id=286.

14 Wang Jianjun, “Lao dong he tong fa” bu neng cheng shou zhi zhong – dui jiu ye quan de li xiang bao hu [The "Labor Contract Law" Cannot Support the Burden - On the Ideal Protection of the Right to Employment], CHINA’S LABOR AND SOCIAL SECURITY LAW NET, Nov. 12, 2006, available at http://www.cnlsslaw.com/list.asp?Unid=1894.

15 Interview with Dong Baohua, in Cambridge, MA (Oct 23, 2006).

16 In July 2005, the NPC had made a draft of the highly controversial Property Law public and official sources report that 15,000 comments were received. Draft Property Law Tabled to Legislature for 7th Reading, http://www.china.org.cn/english/MATERIAL/192718.htm.

17 See Apo Leong, A New Class War is Brewing in China, 59 ASIAN LAB. UPDATE (2006), available at http://www.amrc.org.hk/5903.htm (discussing the identity of the alleged representatives).

18 Generally, workers are first required to bring such claims to a labor arbitration committee, the decision of which can then be appealed to the court. This provision should therefore reduce the time and money a worker must spend to enforce a labor contract.

19 The research of Anita Chan actually suggests that the pay and conditions in Western-invested enterprises are far better than in Asian-invested factories (for example, investors from Korea, Hong Kong and Taiwan), which have a reputation for mistreating workers. ANITA CHAN, CHINA’S WORKERS UNDER ASSAULT: THE EXPLOITATION OF LABOR IN A GLOBALIZING ECONOMY 11 (2001).

20 Dexter Roberts & Pete Engardio, Secrets, Lies, and Sweatshops, BUS. WK., Nov. 27, 2006, at 53.

21 INTERNATIONAL UNION OF FOOD, AGRICULTURAL, HOTEL, RESTAURANT, CATERING, TOBACCAO, AND ALLIED WORKERS’ UNION, CHINA AND THE GLOBAL SWEATSHOP LOBBY, http://www.iuf.org/cgi-bin/editorials/db.cgi?db=default&uid=default&ID

=505&view_records=1&ww=1&en=1.

22 See CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA ROUNDTABLE, WORKING CONDITIONS IN CHINA: JUST AND FAVORABLE? (2005), http://frwebgate.access.gpo.gov/

cgi-bin/getdoc.cgi?dbname=109_house_hearings&docid=f:26031.pdf , at 4-6 (discussing the new types of programs which Social Accountability International (SAI) and Verité are conducting in China).

23 Anita Chan, Organizing Wal-Mart: The Chinese Trade Union at a Crossroads, JAPAN FOCUS, Sept. 8, 2006, available at http://www.japanfocus.org/products/details/2217.

24 Id. Some have suggested that it was actually the pressure exerted by high-powered government officials – and not the workers – that forced Wal-Mart to allow the formation of unions. Nonetheless, the incident can still have an important impact if it is perceived as being bottom-up and has influenced the thinking of ACFTU officials.

Preferred Citation: Aaron Halegua, The Debate Over Raising Chinese Labor Standards Goes International, 1 HARV. L. POL’Y REV. (Online) (April 5, 2007),

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Immigration: Youth Adapt to Change

Posted 1873 days ago by HLPRonline editorial staff

by MARCELO SUÁREZ-OROZCO & CAROLA SUÁREZ-OROZCO*

I. Introduction

In the first decade of the new millennium a new cycle of public concern about the benefits and harms of immigration has erupted. In mid-2006, exactly twenty years after the last major U.S. immigration overhaul (the United States Immigration Reform and Control Act of 19861), the quiescent public discourse regarding immigration began rumbling and eventually erupted into a full-throated national debate. Suddenly, immigration talk saturated the airwaves: popular television and radio commentators hyperventilated about broken borders and the illegal-alien invasion. At about the same time, by the end of May 2006, millions of people–especially undocumented immigrants and significant numbers of children of immigrants–had taken to the streets of major American cities, clamoring for the right to stay in the United States.

The harsh spotlight on border controls has blinded us to the broader picture, however. To a large extent, we have failed to consider how immigration is transforming our society: immigrant-origin children are the largest growing segment of the U.S. child population, now constituting twenty percent of our nation’s children and projected by year 2040 to make up a third of our children.2 Nevertheless, the United States has virtually no policy at all to smooth the transition of immigrant families to their new society. We need to develop an ambitious, workable, and humane approach to immigration that considers the integration of youth and that addresses the realities of the twenty-first century.

Young immigrants today are extraordinarily diverse and their experiences defy facile generalizations.3 They arrive from multiple points of origin and add new threads of cultural, linguistic, religious, and racial difference to the American tapestry. Some are the children of educated professional parents while others have parents who are illiterate. Some have received excellent schooling while others arrive from educational systems that are in shambles. Some are escaping political, religious, or ethnic persecution; others are motivated by the promise of better jobs and the hope for better educational opportunities. Some are documented migrants while others, estimated at 1.8 million, are unauthorized young migrants.4 Some settle in well-established communities with dense social supports that ease the transition of youth into the new educational system. Others move from one migrant setting to another, forcing students to change schools frequently. The social and educational outcomes of immigrant youth will thus vary substantially depending upon their settlement context and the specific constellation of resources available to them.5

Immigrant youth’s level of academic success dramatically affects their future wellbeing. The global economy is largely unforgiving to those who do not achieve post-secondary education and beyond; as a result, schooling processes and outcomes shape socio-economic mobility. The average annual earnings of those without a high school diploma are only $19,169. The average college graduate earns $51,554 with a bachelor’s degree, and $78,093 with an advanced degree.6

Immigrants defy easy educational generalizations. Recent studies suggest that, while some immigrant youth are successfully navigating the American educational system, large numbers struggle academically. Those who struggle then often leave schools without acquiring the tools that will enable them to function in the highly competitive labor market and ever more complex society.7

The Longitudinal Immigrant Student Adaptation (LISA) study we co-directed at Harvard (1997-2003) assessed over time the academic performance and engagement of recently arrived immigrant youth from Asia (born in China), the Caribbean (born in the Dominican Republic and in Haiti) and Latin America (born in Mexico and in various Central American countries).8 Strikingly, over time the achievement (including grade point average (GPA)) of students coming from Mexico, Central America, Haiti, and the Dominican Republic all declined in a statistically significant manner. A similar trend emerged for the Chinese-origin students, although the decline did not reach statistical significance. Specifically, immigrant girls consistently have statistically significant higher GPAs than boys throughout the five-year period, and the GPAs of immigrant boys declined significantly more than that of girls for all groups. For both girls and boys, their grades in the first two years are considerably higher than their grades in the last three years, peaking in the second year and declining steadily from the third year on.9

II. Critical Factors

Based on existing social science research, the ten factors outlined below have the strongest implications for the trends in schooling performance and social adaptation of immigrant children identified in by LISA and other studies.

1. Educational background

Immigrant youth arrive in American neighborhoods and schools with varied educational skills. On one end of the spectrum, we find youth from upper-status urban backgrounds. They are typically highly literate and have well-developed study skills. Their more educated parents are well equipped to both provide resources including additional books, a home computer, Internet access, and tutors. They can guide their children in how to study, access, and make meaning of data and information. In sharp contrast are those youth whose parents have little or no formal educational experience. Equally disadvantaged are the children who arrive from countries with compromised educational infrastructures having missed critical years of classroom experience and often unable to read and write in their native language. Such varied experiences and backgrounds have profound implications for immigrant children’s transition to the U.S. setting. Unsurprisingly, those arriving with lower levels of education tend to decline academically more markedly once they settle in the United States.10

2. Poverty

Although some immigrant youth come from privileged backgrounds, large numbers of them must face the challenges associated with poverty. Immigrant children are more than four times as likely as native-born children to live in crowded housing conditions and three times as likely to be uninsured.11 Poverty frequently coexists with other factors that augment risks such as single-parenthood, residence in suboptimal neighborhoods, as well as schools that are segregated, overcrowded, and understaffed. Children raised in circumstances of poverty are more vulnerable to an array of psychological distresses including difficulties concentrating and sleeping, anxiety, and depression as well as a heightened propensity for delinquency and violence–all of which have implications for educational outcomes.

3. Segregation

Where immigrant families settle shapes the overall immigrant journey and the specific experiences and adaptations of children. Latino immigrants in particular tend to settle in segregated, deeply impoverished, urban settings. In such neighborhoods with few opportunities in the formal economy, informal and underground activities tend to flourish. Immigrants of color who settle in predominantly minority neighborhoods will have virtually no direct, systematic, and intimate contact with middle-class White Americans. This, in turn, affects a host of experiences including cultural and linguistic isolation from the mainstream. A pattern of triple segregation–by race, language, and poverty–shapes the lives of many new immigrants, especially those originating in Latin America and the Caribbean.

Segregated and poor neighborhoods are more likely to have dysfunctional schools characterized by ever-present fear of violence, distrust, low expectations, and institutional anomie. Lacking English skills, many immigrant students are often enrolled in the least demanding classes that eventually exclude them from courses needed for college preparation. Such settings undermine students’ ability to sustain motivation and academic engagement. The least engaged students are most likely to decline in their academic performance over time.12

4. Undocumented status

Today there are approximately 1.8 million youth living in the United States without proper documentation, and an estimated 3.1 million are living in households headed by at least one undocumented immigrant.13 Research suggests that undocumented youth and their families resemble other immigrant families in basic ways. Many waited patiently for years for their visas to be approved so they could be reunited with family members already in the United States. Frustrated by the seemingly interminable waiting lists–over five years in many cases–many immigrant youth finally venture forth without the required papers.14 LISA data suggest that undocumented students often arrive after multiple family separations and traumatic border crossings. Once settled, they may continue to experience fear and anxiety about being apprehended, being separated again from their parents, and being deported. Such psychological and emotional duress can take its toll on the academic experiences of undocumented youth. Undocumented students with dreams of graduating from high school and going on to college will also find that their legal status stands in the way of their access to post-secondary education.15

5. English language acquisition

Most immigrant children are second language learners. English language difficulties present particular challenges for optimal performance on high-stakes tests. Performance on tests such as the Texas Assessment of Knowledge and Skills (TAKS), the Regents Exams in New York, and the MCAS in Massachusetts has real implications for college access. Second language acquisition issues can serve to mask actual skills and knowledge. Even when immigrant students are able to enter colleges while they are still refining their language skills, they may miss subtleties in lectures and discussions. They may read more slowly than native speakers and may have difficulty expressing more complex thoughts on written assignments. This is likely to bring down their grades, in turn impacting access to graduate or professional schools.

In many schools, the separation and segregation between the immigrant English language learners and their native-born peers is nearly complete. The hermetic status quo results in less exposure to the linguistic modeling their U.S.-born peers could provide, and U.S. students, in need of knowledge about the world beyond our borders, also miss out. Conversely, the data show that immigrant youth who report having even one native English-speaking friend acquire English skills more quickly and proficiently.16

6. Promoting academic engagement

Healthy social support networks are linked to better adjustment. Interpersonal relationships and social companionship maintain and enhance self-esteem, acceptance, and approval. Instrumental social support provides individuals and their families with tangible aid such as language tutoring, as well as guidance and advice about good teachers and supportive counselors. Instrumental supports are particularly critical for disoriented immigrant newcomer youth. LISA data suggest that social supports also can play a role in moderating negative influences.17

7. Family

Family cohesion and the maintenance of a well-functioning system of supervision, authority, and mutuality are perhaps the most powerful factors in shaping the well-being and future outcomes of all children. Families can support children’s schooling by establishing the value of education and promoting high expectations. They can also actively support children as they complete assignments. Immigrant parents who work long hours and who may have limited schooling are at a distinct disadvantage in this regard. Aside from logistical difficulties, immigrant parents are often unable to support their children in ways that are congruent with American cultural models and expectations. Many come from traditions that revere school authorities and expect parents to keep a distance from the day-to-day workings of their child’s education. This stands in sharp contrast to U.S. expectations of parental involvement.

8. Peer relationships

Peers often play an important role by sustaining and supporting the development of significant social competencies in youth. Peers can specifically serve to support or detract from academic engagement. By valuing (or devaluing) certain academic outcomes and by modeling specific academic behaviors, peers can establish norms of academic engagement. Peers can tangibly support academic engagement by clarifying readings or lectures, helping one another complete homework assignments, and by exchanging information about, for example, standardized tests, helpful tutors, volunteer positions, and other college pathway knowledge. Because, however, immigrant youth often attend highly segregated poor schools, they may have limited access to knowledgeable networks of peers beyond their immigrant group.

9. Communities and community organizations

Because no family is an island, family cohesion and functioning are enhanced when the family is part of a larger cohesive community. Culturally constituted patterns of community cohesion and supervision can support immigrant youth when they encounter the more socially toxic elements in their new settings. Youth-serving community based organizations, much like churches and some ethnic-owned businesses and extended family networks, can enrich immigrant communities and foster healthy development among its youth through the support they provide to parents and families. Such urban sanctuaries, often affiliated with neighborhood churches, non-profit organizations, and schools provide youth out-of-school time that is not spent in isolation, unsupervised, or on the streets with one’s peers. Community program staff can serve as “culture brokers” for youth, bridging the disparate norms in place in children’s homes and those in place at school. Adults who work in community programs can provide tutoring, educational guidance, advice about the college application process, and job search assistance, information which is often inaccessible to immigrant youth who attend schools with few guidance counselors and whose parents have not navigated the academic system in the United States.

10. Mentoring relationships

In nearly every story of immigrant success there is a caring adult who took an interest in the child and became actively engaged in her life. Connections with non-parent adults–a community leader, teacher, member of the church, or coach–are important in the academic and social adaptation of immigrant adolescents. These children are often undergoing profound shifts in their sense of self and are struggling to negotiate changing circumstances in relationships with their parents and peers. Protective relationships with non-parent adults can provide immigrant youth with compensatory attachments, safe contexts for learning new cultural norms and practices, and information that is vital to success in school.

Additionally, mentoring relationships may have special implications for immigrant youths. During the course of migration, loved ones are often separated from one another and significant attachments are ruptured. LISA data reveal that approximately eighty percent of immigrant youth were separated from one or both parents during the migration to the United States.18 Mentoring relationships can give immigrant youth an opportunity to be involved in reparative relationships engendering new significant attachments. Since immigrant parents may be unavailable due to long work hours or emotional distress, the guidance and affection of a mentor may help to fill the void created by parental absence. The mentor can provide information about and exposure to American cultural and educational institutions and help as the adolescent negotiates developmental transitions. If the mentor is bicultural, he or she can interpret the rules of engagement of the new culture for parents and youth and hence, help to attenuate cultural rigidities. Bicultural mentors can also serve as role models in the challenging process of developing a bicultural identity, exemplifying the ways in which elements of the ethnic identity can be preserved and celebrated even as features of more mainstream American culture are incorporated into youth’s lives.

Taken together, these networks of supports can make a significant difference in immigrant children’s lives. They can help immigrant youth develop healthy bicultural identities, engender motivation, and provide specific information about how to navigate schooling pathways. When successful, these relationships help immigrant youth and their families overcome some of the barriers associated with poverty and discrimination that prevent full participation in the new country’s economic and cultural life.

III. Policy Implications

The research on these ten factors most strongly affecting schooling performance and social adaptation of immigrant children has significant policy implications. Major reforms in the area of immigrant policy must address two critical areas: the status of undocumented immigrants, and the structure of our nation’s schools. Recent policy initiatives have proven ineffectual in the short term, and thus irrelevant to the modern realities of migration in the long term. The U.S. immigration bill, approved by Congress on September 29, 2006 and subsequently signed into law by President Bush, failed to systematically address immigration reform. Nothing in the new bill addressed the fate of the undocumented immigrants already in the United States or the need for more visas and possibly a guest worker program.19 Policies in several states that push newly-arrived immigrant children into the high-stakes world of No Child Left Behind (NCLB) are similarly short-sighted about the realities of immigration for children. Nowhere in any of these policies is there any discussion of how to aid the children of immigrants in becoming integrated and well-functioning members of our society.

We must first develop a formula to regularize the status of undocumented immigrants. Without a clear policy, it will be impossible to develop any comprehensive policies to better the welfare of immigrant children. Regardless of the exact formula, the effects of regularizing status on access to opportunities for undocumented immigrant youth will be significant. Research suggests that undocumented immigrant youth as well as youth growing up in households headed by undocumented parents will most likely remain in the United States, rather than returning to their countries of origin. Without incorporating these millions of children into mainstream society, they are condemned to living in the shadows. The nation will ultimately be forced to bear the social cost of driving these youth deep into the world of illegality. Federal financial aid for higher education is not available to undocumented immigrants, creating ripple effects throughout the lives of immigrant youth. Not only are employment opportunities limited for those with only a high school diploma, some undocumented immigrant youth begin to disengage from high school, knowing there would be know realistic way for them to pursue a college education. Some of these immigrant youngsters are making a premature transition to the labor market.20 Solving the problem of undocumented immigrants is a necessary prerequisite to other viable reforms.

Current proposals in several states requiring newly-arrived immigrant students to be subject to take high-stakes testing after just one year in the United States would have very negative results. Research suggests that the vast majority of immigrant children cannot possibly be expected to master the complex intricacies of academic English in one year of study, particularly in the highly dysfunctional schools where huge numbers of newly arrived immigrant students are concentrated. Submitting newly-arrived immigrant youth to the regular testing regimes required under NCLB would push more youth toward premature disengagement from school. Rather than requiring immediate integration into the testing regime, we need policies that ease the acquisition of English, and school cultures where immigrant and native students are well integrated and can learn from each other. This is the best way to keep children in school and support the development of English language skills. It is important to remember, however, that in our globalized economy multilingualism is an asset. Immigrant bilingualism and its accompanying linguistic diversity are cultural resources to be nourished. We should make normative multilingualism an educational objective for all youth growing up in the global era, immigrant and native alike.

IV. Conclusion

Immigrants arrive sharing an optimism and hope in the future that must be cultivated and harnessed. Almost all recognize that schooling is the key to a better tomorrow. Unfortunately, over time many immigrant youth, especially those enrolling in highly impoverished and deeply segregated schools, face negative odds and uncertain prospects. Too many leave our schools without developing and mastering the kinds of higher order skills needed in today’s global economy and society. The future of our country will in no small measure be tied to the fortunes of these new young Americans. We need a major new policy agenda, backed by sound social science insights, to ease the transition of American newest and littlest arrivals to their new home.

* Marcelo Suárez-Orozco & Carola Suárez-Orozco are co-directors of Immigration Studies at New York University.

1 Pub. L. No. 99-603, 100 Stat. 3359 (Nov. 6, 1986).

2 See Carola & Marcelo Suárez-Orozco, Education, in THE NEW AMERICANS: A GUIDE TO IMMIGRATION SINCE 1965, at 243-57 (Mary C. Waters et al. eds., 2007).

3 In this article we define immigrants as the foreign born population of the United States, now estimated at approximately 36 million people. If we add the generation born in the United States to immigrant parents, there are now over 55 million people in the United States who are either immigrants, usually termed the first generation, and the offspring of immigrants, usually termed the second generation.

4 The total unauthorized immigrant origin population of the United States is estimated to be between 11 and 12 million. See Frank Bean & B. Lindsay Lowell, Unauthorized Migration, in THE NEW AMERICANS: A GUIDE TO IMMIGRATION SINCE 1965, at 70-82 (Mary C. Waters et al. eds., 2007).

5 See ALEJANDRO PORTES & RUBÉN RUMBAUT, LEGACIES: THE STORY OF THE IMMIGRANT SECOND GENERATION (2001).

6 See U.S. Census Bureau, Census Bureau Data Underscore Value of College Degree (2006), available at

http://www.census.gov/Press-Release/www/releases/archives/education/007660.html

7 See CAROLA SUÁREZ-OROZCO & MARCELO SUÁREZ-OROZCO, CHILDREN OF IMMIGRATION (2002). See also PORTES & RUMBAUT, supra note 5.

8 The children participating in the LISA study were all immigrants, meaning that they were foreign born and had spend approximately two-thirds of their lives in the country of their birth before migrating to the United States.

9 See CAROLA SUÁREZ-OROZCO, MARCELO SUÁREZ-OROZCO, & IRINA TODOROVA, LEARNING IN A NEW LAND: IMMIGRANT STUDENTS IN AMERICAN SOCIETY (forthcoming Nov. 2007) (manuscript at Chapter 1, pp.5-8, on file with authors).

10 See id. (manuscript at Chapter 1, p.11, on file with authors).

11 See id. (manuscript at Chapter 3, p.3, on file with authors).

12 See id. (manuscript at Chapter 1, p.21, on file with authors).

13 See JEFFERY S. PASSELL, PEW HISPANIC CENTER, SIZE AND CHARACTERISTICS OF THE UNAUTHORIZED MIGRANT POPULATION IN THE U.S. (2006), available at http://pewhispanic.org/reports/report.php?ReportID=61.

14 See SUÁREZ-OROZCO ET AL., supra note 9 (manuscript at Introduction, p.5, on file with authors).

15 See CAROLA SUÁREZ-OROZCO & MARCELO SUÁREZ-OROZCO, CHILDREN OF IMMIGRATION (2002).

16 See SUÁREZ-OROZCO ET AL., supra note 9 (manuscript at Chapter 4, p.15, on file with authors).

17 See id. (manuscript at Chapter 2, p.31, on file with authors).

18 See id. (manuscript at Chapter 2, p.5, on file with authors).

19 The U.S. House of Representatives’ December 2005 immigration bill addressed the issue of undocumented immigrants by proposing to criminalize and deport millions of undocumented immigrants and harshly penalize anyone aiding them. The effects of this proposal – turning 11 to 12 million undocumented immigrants into felons overnight – would have been staggering. See H.R. 4437, 109th Cong. (2005).

20 See SUÁREZ-OROZCO ET AL., supra note 9 (manuscript at Chapter 1, p.3, on file with authors).

Pushing the Struggle Farther

Posted 1873 days ago by HLPRonline editorial staff

by CHARLES J. OGLETREE, JR. & SUSAN EATON*

On December 4th of last year, the nine Justices of the Supreme Court heard oral arguments in a pair of vitally important and largely overlooked cases. The Court’s upcoming decisions in Parents Involved in Community Schools v. Seattle School District, No. 11 and Meredith v. Jefferson County (Louisville) Board of Education,2 will provide public measure of the nation’s commitment to the ideals expressed in Brown v. Board of Education,3 widely considered one of the proudest moments in American jurisprudence.

In Brown, a unanimous Court observed: “Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of citizenship.”4 It is reasonable to fear that an adverse ruling in the Louisville and Seattle cases will undermine these important goals of our educational institutions.

These new cases, fifty-three years after Brown, underline the persistent challenge and defining characteristic of our American public education system. It is inequality, not merely as manifest in the much-lamented “achievement gap,” but inequality of opportunity to learn and to fully prepare for citizenship that prevent too many children in the United States from fulfilling their potential. The avoidance of segregation and its ever-present attendant, concentrated poverty, has been one imperfect and yet, as research demonstrates,5 generally effective and increasingly accepted route toward ameliorating social inequality and connecting disenfranchised children to mainstream opportunity.

The justices will deliver a ruling on the new cases as early as this spring. At issue is whether or not school districts may employ policies specifically designed to avoid racial segregation and create racially diverse schools. Like in many schools districts across the country, local educators in both Louisville and Seattle had developed their desegregation policies without a court order, on the conviction (well-supported by research6) that racial diversity holds benefits for their students and their communities. As federal courts backed away from desegregation in the 1990s, one of the great, untold education stories is about educators on the ground who became increasingly convinced of diversity’s educational benefits and segregation’s harms. Socially concerned educators across the country, officials in Louisville and Seattle among them, consciously worked to reach for Brown’s aspiration through voluntary means even though no court had required them to do so.

Specifically, the educators in Louisville and Seattle sought to achieve racially mixed classrooms by allowing parents a choice of schools. In some rare cases, a child’s first choice of school might be denied if his or her enrollment upset the racial balance. Conservative advocates then took up the cause of some parents whose children had been denied their first choices and sued in federal court. In response, the school districts argue that their voluntary plans work and suggest that eliminating plans for diversity would be going backwards.

With regards to race and class in education, we are, in some ways, indeed going backwards. Georgetown Law Professor Sheryl Cashin shows in her research that the “overall direction of census trends since 1970 . . . has been one of growing economic segmentation of American life space.”7 Demographic studies show a small decline in class segregation during the 1990s, likely the result of a robust economy, Cashin notes. The total number of residents of high-poverty neighborhoods dropped from the 10.4 million peak in 1990 to 7.9 million in 2000.8 It looked like – and was – progress of a sort. But as demographic analyses demonstrates, the level of concentrated poverty in 2000 actually represents an increase from 1970 levels.9 Since 1970, the number of census tracts (a rough approximation of neighborhood) with 40 percent poor residents has nearly doubled, from about 1,300 in 1970 to 2,500 in 2000.10

Public schools mirror and magnify trends in the larger society. Statistically, children of all racial groups are generally more segregated than adults. While some racial minority children might not live in technically high-poverty neighborhoods, they still, in many cases, attend high-poverty schools. This is because childless white people are far more likely than with families with school-age children to live in integrated settings. According to the Civil Rights Project at Harvard, in 2003, a typical Black or Latino student attended a school where nearly half the students were poor. This is more than twice the share of poverty found in the school of a typical white student.11

Since the 1960s, we have known about the problems that concentrated poverty and segregation introduce for schools and the students inside of them. Research shows that the chances of school failure are disproportionately high for children who live in poverty.12 But the chances of failing and dropping out of school are even higher for poor children in high-poverty schools. Generally, high-poverty schools employ less qualified teachers, have higher rates of teacher turnover and register higher rates of suspensions and expulsions. By the time a student reaches high school in such a system, it is likely that even if he were qualified, he still would not be offered higher level Advanced Placement courses that are routine offerings in middle-class schools. In many urban districts that educate disproportionate shares of children of color, graduation rates commonly sink to the thirty to forty percent range.13

So, here we are at a terrible place. We have blatant evidence of continuing, vast inequality but no systematic policy for achieving equal educational opportunity in a nation that prides itself in providing equal life chances to all. The nation’s one route to avoiding segregation may very well be snuffed out by the Supreme Court this spring. So where do we go from here?

First of all, it is important to remember that inequalities we see in education are a reflection of structural inequalities that exist in every segment of American society. The problems manifest in classrooms stem from a variety of tangled forces. This means solutions require the cooperative, connected work of socially concerned scholars, litigators, activists and people on the ground working in local communities to overcome a variety of challenges both inside and outside of schools.

With this recognition in mind, the Charles Hamilton Houston Institute for Race and Justice advocates two principal approaches to ameliorating the inequality plaguing our nation’s schools and the society in which they are situated. Both initiatives recognize that those who are committed to providing equal life chances to children can no longer afford to work in separated, isolated spheres divided by categories such as “health,” “housing,” and “education,” or “environmental science.” As Charles Hamilton Houston, the brilliant litigator and former vice-Dean of Howard Law School once said, “This fight for equality of educational opportunity (was) not an isolated struggle. All our struggles must tie in together and support one another . . . . We must remain on the alert and push the struggle farther with all our might.”14

We do not yet know how the Supreme Court will rule on the cases from Louisville and Seattle. However, the decisions, no matter their content, provide an opportunity to craft a new, responsive equal opportunity agenda for children attending public school and living in the United States. That is why, soon after the decisions come down, the Institute will bring together the most original thinkers from what are often considered separate and discrete arenas of scholarship, jurisprudence, political activism, and community-level programming. We will explore the remaining permissible means by which educators at the local level might be able to achieve racially diverse or at least allow more children to attend predominantly middleclass schools. We will review findings and feasibility of urban-to-suburban transfer programs that have demonstrated promise in such places as Boston, St. Louis, and regions of Connecticut. We will explore the use of “income” or “social class” or “neighborhood” as variables for school assignment that might avoid high-poverty schools, in part by allowing more children to attend predominantly middle class institutions.

The most prominent educational legislation this decade, the No Child Left Behind Act,15 contains within it, a provision that allows children in so-termed “failing” schools to transfer to school that is not failing. However, the provision allows for children to transfer only within their current school district. For far too many children – especially children of color in urban districts – this provides the option only of attending another high-poverty, segregated, overwhelmed school. At the least, the federal government should provide the option for children in failing schools to transfer out of their school district. Other federal policies in housing, for example, including the Moving To Opportunity Program, have recognized the benefits of reducing concentrated poverty. Why then, should we not apply such recognition to our education policies? This small adjustment to No Child Left Behind, coupled with adequate information and counseling and transportation for families interested in transfer, would signal a commitment not just to equal opportunity, but to a policy direction – reduction of concentrated poverty – that has actually shown success.

Meanwhile, much of our contemporary discourse about education is occurring in a vacuum. In other words, we increasingly talk about educational problems within schools as if there are not larger structural, social inequalities that create huge challenges for children, teachers and other educators within schools. For example, Abigail and Stephan Thernstrom’s influential and engaging book No Excuses argues that poverty, single-parenthood, health disparities in impoverished communities and myriad other social inequities are mere “excuses” educators use to deflect blame for low achievement.16 This notion, though it has been embraced by the Bush Administration, flies in the face of social science evidence, the experience of educators in public schools and basic common sense.

A child with an incarcerated father, an overworked mother, living in a neighborhood where street violence is common and healthy food and outdoor recreation difficult to come by, is simply not in a position to rise to her full potential in the classroom or outside it. Thus, in addition to exploring remaining means for creating integrated schools, the Houston Institute is committed to bringing together thinkers from diverse fields to study and put in place research-based, community generated solutions to those social problems and inequalities outside of school that affect a child’s opportunity to excel within schools. This includes work in fields we might not usually associate with “education.”

For example, increasing numbers of children suffer from the instability and stress of having a parent either in jail or involved with the criminal justice system. An estimated 1.5 million minor children – two percent of all minors – have a parent in state or federal prison.17 About 7.3 million children – about ten percent of all minor children in the United States – have a parent in prison, jail, on probation or on parole.18 According to experts, the effects of incarceration on children are numerous and cannot help but negatively affect a child’s school performance. In early childhood, a child may have impaired social development, be unable to form bonds with others and have acute reactions to stress, much like that of a trauma victim. By seven to ten years old, a child may have a very poor self-concept and by early adolescence, a child may reject limits on his behavior and continue having more severe so-called trauma-reactive behaviors, such as depression, aggression, concentration and attention problems and withdrawal. By late adolescence, that child will be at great risk for incarceration himself.19

In the coming year, we plan to develop initiatives in selected cities to ease the transition of ex-prisoners who are returning to their communities in desperate need of work and reconnections to family. Such programs not only help the returning ex-prisoner, but the communities in which they live and the children whom they had left behind. Societal solutions, designed to improve educational opportunity and enhance life chances, however, cannot simply dump more responsibility on already overwhelmed public schools. That said, the experience of schoolteachers, administrators, counselors, parents and children within public schools certainly should inform such programs and policies.

In 2003, then-Justice Sandra Day O’Connor cast her vote in Grutter v. Bollinger20 in favor of retaining some affirmative action policies at the higher education level. In her written opinion, however, Justice O’Connor also stated her expectation that in twenty-five years, the use of racial preferences “will no longer be necessary.”21 This sunset provision could be viewed as an unreachable target given the vast divide between the haves and have nots. But Justice O’Connor’s words could also be viewed as a call to arms – an urgent need to make measurable progress not just in education, but on all fronts. At the Houston Institute, we take Justice O’Connor’s words as a motivation, not to lament the considerable backward movement, but to make, in Charles Hamilton Houston’s words, to “push the struggle farther with all our might” and work even harder to ameliorate inequalities that hinder equal opportunity for children here in the richest country in the world.

* Charles J. Ogletree, Jr., is Jesse Climenko Professor of Law and Executive Director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. Susan Eaton is research director at the Institute.

1 426 F.3d 1162 (9th Cir. 2005), cert. granted, 126 S. Ct. 2351 (2006) [hereinafter Parents Involved].

2 360 F.3d 583 (6th Cir. 2004), cert. granted, 126 S. Ct. 2351 (2006).

3 347 U.S. 483 (1954).

4 Id. at 493.

5 See, e.g., Brief of the American Educational Research Association as Amici Curiae Supporting Respondents at 3, Parents Involved, 126 S. Ct. 2351 (2006) (Nos. 05-908 & 05-915) (“Research studies have shown that racial diversity in elementary and secondary education leads to important short-term and long-term benefits for students of all racial backgrounds. Among these benefits are improved cross-racial understanding; the reduction of stereotyping and prejudice; gains in student achievement; a strong sense of civic engagement and willingness to live and work in diverse settings; and better preparation for higher education, work, and participation in a diverse society. Not only do diverse schools benefit students as individuals, they also promote social cohesion and reinforce democratic values that this Court has long recognized as foundations for good citizenship.”)

6 See, e.g., Heidi McGlothlin & Melanie Killen, Intergroup Attitudes of European American Children Attending Ethnically Homogeneous Schools, 77 Child Dev. 1375 (2006); Thomas F. Pettigrew & Linda R. Tropp, A Meta-Analytic Test of Intergroup Contact Theory, 90 J. Personality & Soc. Psychol. 751 (2006).

7 SHERYL CASHIN, THE FAILURES OF INTEGRATION: HOW RACE AND CLASS ARE UNDERMINING THE AMERICAN DREAM 97 (2004).

8 PAUL A. JARGOWSKY, THE BROOKINGS INSTITUTION, STUNNING PROGRESS, HIDDEN PROBLEMS: THE DRAMATIC DECLINE OF CONCENTRATED POVERTY IN THE 1990S (2003).

9 Id.

10 Alexander Polikoff, Racial Inequality and the Black Ghetto, 13 Poverty & Race 6 (2004).

11 ERICA FRANKENBERG, CHUNGMEI LEE & GARY ORFIELD, THE CIVIL RIGHTS PROJECT AT HARVARD, A MULTIRACIAL SOCIETY WITH SEGREGATED SCHOOLS: ARE WE LOSING THE DREAM? 4 (2003).

12 See, e.g., RICHARD ROTHSTEIN, CLASS AND SCHOOLS (2004).

13 See CHRISTOPHER B. SWANSON, THE URBAN INSTITUTE, PROJECTIONS OF 2003-04 HIGH SCHOOL GRADUATES: SUPPLEMENTAL ANALYSES BASED ON FINDINGS FROM WHO GRADUATES? WHO DOESN’T? (2004) (Detroit: 21.7 percent; Baltimore: 38.5 percent; New York City: 38.9 percent; Milwaukee, 43.1 percent; Cleveland, 43.8 percent. Los Angeles, 44.2 percent.)

14 Charles Hamilton Houston, Don’t Shout Too Soon, Crisis 43 (March 1936).

15 Pub. L. No. 107-110, 115 Stat. 1425 (2002) (codified as amended primarily in scattered sections of 20 U.S.C.).

16 ABIGAIL THERNSTROM & STEPHAN THERNSTROM, NO EXCUSES: CLOSING THE RACIAL GAP IN LEARNING (2004).

17 CHRISTOPHER J. MUMOLA, BUREAU OF JUSTICE STATISTICS, INCARCERATED PARENTS AND THEIR CHILDREN, NCJ 182335 (2000).

18 Id.

19 CHILDREN OF INCARCERATED PARENTS (Katherine Gabel & Denise Johnston eds., 1997).

20 539 U.S. 306 (2003).

21 Id. at 322-23.

Local Bans on Trans Fats: A New (and Legal) Way Forward

Posted 1873 days ago by HLPRonline editorial staff

by SARAH ROMERO^*

We seem to have finally reached and surpassed a critical mass in the trans fat debate. Trans fat has been all over the news lately, spurred on by lawsuits and New York City’s highly publicized ban on artificial trans fat that went into effect on December 5, 2006. But really, the trans fat debate has been going on for almost twenty years. Only recently have consumer and public interest groups been successful in getting the word out to the public: trans fat is BAD. So bad, in fact, that in July 2002 the National Academy of Science’s Institute of Medicine concluded that the only safe level of trans fat in the diet is “zero.”¹

Trans fat is a monounsaturated fat that occurs naturally in low levels in milk and beef, but 80 percent of the trans fat Americans consume is from partially hydrogenated vegetable oil. The hydrogenation process creates an artificial “Frankenfat” through an industrial process that causes the hydrogen molecules in unsaturated and polyunsaturated fats to switch over from one side of the carbon chain to the other. Normally unsaturated fatty acids are in a liquid state. But hydrogenation causes the unsaturated fatty acids to solidify at room temperature. The inexpensive oils are attractive to food manufacturers because they have a longer shelf life and longer fry life than other oils. That makes them useful for fried foods like French fries, donuts, and taco shells. And they give baked goods like cookies, crackers, and pies the texture that previously came from lard.

Trans fat, like saturated fat, increases the “bad” (LDL) cholesterol in our blood. And unlike saturated fat, trans fat also decreases the “good” (HDL) cholesterol in blood. It changes the membrane composition of your cells, making the cellular membranes more rigid, in exactly the same way it makes liquid oil turn into a rigid stick of margarine. A Harvard School of Public Health Report estimates that eliminating trans fats from diets could prevent 30,000 to 100,000 deaths in the United States annually.² Partially hydrogenated oils, notwithstanding their harmfulness, are considered by the U.S. Food and Drug Administration (FDA) to be “Generally Recognized As Safe” (GRAS).

In 1994, the Center for Science in the Public Interest (CSPI), a health-advocacy organization, petitioned the FDA to require food manufacturers to disclose trans fat contents in packaged foods. In 2003, the FDA finally agreed, but gave food companies until 2006 to comply. The labeling regulation has spurred many food manufacturers (including Frito-Lay and Kraft) to replace partially hydrogenated vegetable oil with ingredients that do not contain trans fat, simply so that they don’t have to tell consumers that their foods do contain trans fat. Food manufacturers have practically raced to make the switch.

During the 1990s and early 2000s, new studies confirmed that trans fat was even more harmful than other fats and attention turned from prepackaged food to restaurants, yet the FDA has been slow to act. In July 2000, CSPI petitioned the FDA to require restaurants immediately to disclose on menus, menu boards, or signs the presence of artificial trans fat in their foods, but the FDA rejected the petition. On May 6, 2004, CSPI petitioned the FDA to revoke the GRAS status of partially hydrogenated oils. That petition is still pending. Major chains like Wendy’s, Pizza Hut, Subway, and Starbucks are finally starting to replace partially hydrogenated oils with healthier alternatives. Even McDonald’s says it has a “large-scale test market” underway. But some other big chains, like Burger King, and thousands of small restaurants have shown little or no signs of switching. Restaurants are not required to disclose the amounts of trans fats in their foods, meaning there is no labeling incentive. Thus, other incentives are being pursued – namely lawsuits and local bans like the one in New York. Many of these efforts have been successful. In June 2006, for example, CSPI and a private law firm represented a DC physician in a lawsuit against KFC for serving foods that contained large amounts of trans fat. Just a few months later, KFC announced that it would switch from partially hydrogenated oil to healthier oil. CSPI withdrew from the lawsuit.

On December 5, 2006, the New York City Board of Health approved an amendment to the Health Code requiring the phase-out of trans fats. The Health Code applies to all food service establishments that the Department of Health inspects. First, restaurants within the city will have until July 1, 2007, to make sure that all oils, shortening, and margarine containing artificial trans fat used for frying or for spreads have less than 0.5 grams of trans fat per serving. Oils and shortening used for doughnuts and baked goods are not included in the first deadline. The deadline for those foods is July 1, 2008. By that date, all foods containing artificial trans fat must have less than 0.5 grams of trans fat per serving. Packaged foods served in the manufacturer’s original packaging are exempt.

A Call to Arms

The fight against trans fats has had a measure of success, but much more work needs to be done. State legislatures and City Councils must enact these bans to protect their own citizens. Philadelphia followed New York City’s example in approving a trans fat ban on F³ebruary 8, 2007. These bans are clear, effective, and they will hold up under legal scrutiny. The bans do face two legal hurdles: preemption challenges and Commerce Clause challenges. However, the bans should survive both of these types of legal challenges.

Preemption

The restaurant industry may fight back with a number of legal arguments against a straight-out ban, including federal preemption. But there is no preemption issue here, as the FDA regulations do not address anything other than the GRAS status of trans fat and the labeling requirements. A state is free to set and enforce more rigorous standards than those set or enforced by the federal government.⁴ Thus, absent express preemptive language, the state law must either create a fatal conflict with compliance with federal laws or regulations or be so broad so as to frustrate the purposes of those laws or regulations.⁵

It is true that under Hillside Dairy Inc. v. Lyons, 539 U.S. 59 (2003) stricter state laws on the same point are preempted by the Food, Drug, and Cosmetic Act (FDCA). However, since the only federal laws or regulations in place in the United States regarding trans fat are FDA’s grant of GRAS status and FDA’s regulations requiring the disclosure of trans fats on nutrition labels, any preemption argument would probably focus on some conjectured FDA policy that favors disclosing trans fat in food rather than banning it.⁶ But even the current do-nothing FDA is very unlikely to come out in support of trans fat, so there is only a very slim chance for conflict with federal policy.⁷

State and local governments are legally free to set standards that are more protective of public health than the FDA has established in those areas – such as the safety of food ingredients – for which Congress has not explicitly pre-empted such action. Moreover, there is a basic presumption against preemption of state law.⁸ That presumption is even stronger when state regulation of matters of health and safety are involved,⁹ and when federal regulation would work to preempt state tort remedies.¹⁰

Therefore, any preemption-based argument against local bans on trans fat is almost certain to fail.

Commerce Clause

Under the Commerce Clause of the U.S. Constitution, Congress may regulate the following: (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce or persons or things in interstate commerce, and (3) activities that substantially affect interstate commerce.¹¹

A local ban on trans fat does not violate the Commerce Clause any more than would zoning limits on porn palaces, regulation of plumbers, or speed limits. This is because a ban does not prevent anyone from buying, selling, or trading in interstate commerce and does not discriminate against out-of-state commerce. Mere inconvenience – alternatives to partially hydrogenated oil are generally available – to multi-state restaurant chains does not amount to a violation of the Commerce Clause.

When analyzing a state regulation under the Commerce Clause, the first question is whether the regulation is discriminatory on its face. Such discrimination exists if the regulation treats in-state economic interests differently from economic interests of companies in other states.¹² Discriminatory regulations are subject to a strict scrutiny analysis and have been held to be virtually per se invalid.¹³

Non-discriminatory violations, on the other hand, which have only an incidental impact on interstate commerce, are subject to the balancing test outlined in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). A regulation is a valid exercise of state power unless it imposes a burden on commerce that is “clearly excessive in relation to the putative local benefits.”¹⁴ The issue dividing these two categories is the “overall effect” of the state regulation on “both local and interstate activity.”¹⁵

Even under the Pike balancing test, if one argues only a disparate effect on interstate commerce (there is no facial discrimination here), the ban is unconstitutional only if the burden on interstate commerce “clearly exceeds the local benefit.”¹⁶ Such is not the case here: the cost to some restaurants of using less-deadly oils does not exceed the benefit of saving lives.

“The fact that the burden of a state regulation falls on some interstate companies does not, by itself, establish a claim of discrimination against interstate commerce.”¹⁷ “Unless the law discriminates against interstate commerce expressly or in practical effect, there is no reason to require special justification” for that law.¹⁸ The Commerce Clause invalidates “local laws that impose commercial barriers or discriminate against an article of commerce by reason of its origin or destination out of state.”¹⁹

A ban might touch on interstate commerce in some way, merely by virtue of the fact that certain restaurants have locations both inside and outside New York City and some of those restaurants use trans fats. But any law that merely affects interstate commerce, without being a per se violation or even a law that is neutral on its face but bears more heavily on interstate commerce than local commerce, will survive if it has a rational basis.²⁰

The New York City trans fat ban has no protectionist purpose: it merely affects all restaurants within New York City limits. It does not discriminate against restaurants that have locations both inside and outside of New York City under the Commerce Clause simply because it burdens them with having to use non-trans fat oils in their New York City locations. Such restaurant chains are no more inconvenienced by having to switch oils than those restaurants located only within the city. And the benefit goes to the health of New York City residents, a rational basis indeed for imposing a ban on this artificially created Frankenfat.

Trans fat is bad. Really bad. And so far, the FDA has refused to do anything about the problem beyond requiring disclosure on packaged food labels. Local and state health departments have a duty to protect the health of their citizens, and one very effective way to do so is an outright ban on the use of these fats in public restaurants or at least trans fat disclosure requirements for restaurants. Legal challenges to these bans may be made, but they are unlikely to succeed, making such bans very effective weapons in the battle against trans fat.

* Sarah Romero is a Staff Attorney at the Center for Science in the Public Interest. Stephen Gardner, Director of Litigation, Center for Science in the Public Interest, provided helpful input.
1 NATIONAL ACADEMY OF SCIENCES INSTITUTE OF MEDICINE, LETTER REPORT ON DIETARY REFERENCE INTAKES FOR TRANS FATTY ACIDS (2002), available at http://www.iom.edu/File.aspx?ID=13083.
2 ALBERTO ASCHERIO, MEIR J. STAMPFER & WALTER C. WILLETT, HARVARD SCHOOL OF PUBLIC HEALTH, TRANS FATTY ACIDS AND CORONARY HEART DISEASE 3 (1999), available at http://www.hsph.harvard.edu/reviews/transfats.pdf.
3 Patrick Kerkstra, For Council, a Speedy Session, PHILA. INQUIRIRER, February 16, 2007, at B3.
4 California v. ARC Am. Corp., 490 U.S. 93, 101 (1989).
5 Michigan Canners & Freezers Ass’n v. Agric. Mktg. & Bargaining Bd., 467 U.S. 947, 961 (1984); Merrill, Lynch, Pierce, Fenner & Smith v. Ware, 414 U.S. 117, 127 (1973); Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
6 See, e.g., Grocery Mfrs. of Am., Inc. v. Gerace, 581 F.Supp. 658, 668 (S.D.N.Y. 1984) (state law preempted where it conflicts with FDA purpose to encourage development of nutritious foods).
7 However, in the past the FDA has protected entrenched business interests in the food industry. See In re Farm Raised Salmon Cases, 48 Cal.Rptr.3d 449 (2d Dist. 2006) (claiming federal preemption in lawsuits against fish farmers in California for failing to disclose the use of artificial coloring in salmon).
8 See Maryland v. Louisiana, 451 U.S. 725, 726 (1981).
9 See Hillsborough County v. Automated Med. Labs., 471 U.S. 707, 715 (1985)
10 See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984); Mazur v. Merck & Co., 742 F.Supp. 239, 246 (E.D. Pa. 1990).
11 United States v. Lopez, 514 U.S. 549, 558-59 (1995).
12 Oregon Waste Systems, Inc. v. Dept. of Envtl. Quality, 511 U.S. 93, 99 (1994).
13 Id.
14 Id. (quoting Pike v. Bruce Church, 397 U.S. 137, 142 (1970)).
15 Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986).
16 Pike, 397 U.S. at 142.
17 Exxon Corp. v. Governor of Md., 437 U.S. 117, 126 (1978).
18 Nat’l Paint & Coatings Ass’n v. City of Chicago, 45 F.3d 1124, 1132 (7th Cir. 1995).
19 C & A Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383, 390 (1994).
20 Nat’l Paint, 45 F.3d at 1131.