Ilios Spring 2016 by Ilios Journal of Political Science and Philosophy

ILIOS An Undergraduate Journal of Political Science and Philosophy

JUSTICE

Volume 1, No. 1 Spring 2016

ILIOS An Undergraduate Journal of Political Science and Philosophy

Contents Letter from the Editors

More Ideals, More Problems: Examining The Failures of Plato’s “City in Speech” As A Political Ideal Ariana Aboulafia

Consumerism: The Y2K of The Human Soul Sam Fishman

Autonomy of the People: Discourses on Indigenous Identity, Land Tenure, and Human Rights in San Miguel Ixtahuacán, Guatemala William Kakenmaster

Criminal Records and College Admissions Rebecca Heilweil

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Letter from the Editors “What is justice?” Such a question has been the source of many arguments made by esteemed thinkers such as Plato, Aristotle, Kant, and Machiavelli. Yet, even their answers have still left contemporary audiences wondering about where the true essence of justice lies. The papers found in this issue of Ilios reveal that, perhaps, there is no straightforward or universal answer to the ever-present question of justice. The variety of issues and subsequent answers explored by the authors expose this ambiguity. Ultimately, the plethora of unique perspectives on this topic speaks to the notion that uncovering the definition of what justice is may simply be the catalyst that sparks the discourse that answers a much larger, more important question. “What is Justice” ought to be followed up with identifying who is asking this question, who represents that person’s targeted audience, and what their particular motives, desires, and aspirations are—all with hopes of figuring out what one ought to do with justice. Attempting to figure out the latter is the chief way to either wield power or catalyze change. Ultimately, the exploration of justice is not only important, but also necessary. The following four authors have taken on the difficult task of attempting to identify its essence. We hope that you find their work as enlightening as we did. The editors of Ilios would like to thank each of the authors for their contribution to this issue. Additionally, we would like to give a special thanks to our academic advisor, Anthony Kammas. This issue would not have been made possible without his support, guidance, and wisdom. Sincerely, Karen, Daniel, and Ben Executive Editors

More Ideals, More Problems: Examining The Failures of Plato’s “City in Speech” As A Political Ideal Ariana Aboulafia University of Southern California Plato’s Republic is a revolutionary work, in every sense of the word. At once a loving tribute to the deceased philosopher Socrates from his devoted student Plato and a critique of the fall of Athens to Spartan society, the Republic creates not only the first utopia, but also perhaps several of the underlying principles that guide our social and political lives, even today. One of the most interesting aspects of the Republic is that one is able to learn just as much from the actual dialogue in the book as from the structure of the book itself; each thing that the main character, Socrates, says via dialogue can either be supported or refuted through his actions in the structural parts of the book. By analyzing not only what Plato (through his Socratic mask) says but also what he does, a reader is able to truly discern what Plato’s philosophical viewpoints were. The theoretical creation of the perfect city purportedly began as an exercise in the Republic–a way for Socrates (and, by extension, Plato) to explain to the men gathered around him (and, symbolically, for Plato to explain to his readers, which likely were composed of Greeks living under Spartan rule) the difference between justness and unjustness. Socrates’s listeners (and Plato’s readers) were deemed unable to understand justness in the philosophical sense, for its own sake; likewise, they were deemed to be unable to understand the just man. So, Socrates created the just city–a large-scale model that could be used to teach even Glaucon (the most intellectually stunted of his listeners) about true justice. The most important part of “Socrates’s” perfect city is that it is ruled by a philosopher-king, whose knowledge keeps the Republic–a “city in speech”– functioning well, even perfectly. Socrates says throughout the

Republic that he believes that a city ruled by wisdom is the healthiest city of all–but does he truly mean it? I believe that there is significant evidence present throughout the structure and dialogue of Plato’s Republic that points to the contrary–a city of speech is not only unrealistic, but even its existence as an ideal can lead to significant social problems. The “republic” created by Plato via Socrates–the city in speech, ruled by the philosopherking–was never really meant to be a real place; and, there are too many loopholes that can be found in its creation and in its everyday functioning for it to ever be a real place. And, interestingly, the most unrealistic aspect of the city in speech is the ruling of the philosopherking itself, one of the most important aspects of the city. The “republic” is supposed to be ruled by moderation in all aspects of civilian life–citizens (or, more accurately, subjects) of the “republic” are supposed to moderately partake in sport and music, and poetry has essentially been banned from the entire city because it encourages immoderate actions. Socrates says, time and time again throughout the Republic, that moderation is key to a functional society. But, if a reader looks closer at the structure of the city of speech, a different message seems to crystalize: philosophy itself, in Greek, means a love of wisdom, and love in its very nature is an immoderate feeling. So, if moderation rules above all, how can a man that has given in to a love–albeit a love of wisdom, but a love nonetheless–be a viable choice for king? Perhaps one could argue that the city in speech requires moderation out of all except those that have proven themselves to be able to take on the responsibility of a lack of moderation–those born with gold in their souls, as Socrates puts it in Book 3. But, Socrates even says that the idea that some are more suited for ruling (those made of gold) and some are more suited for fighting in war (those made of silver) and some for working as shoemakers or carpenters (those made of iron) is a myth–it is a myth that he deems acceptable to tell people in

order to make the city better, but it is a myth nonetheless. So, knowing that this is a myth, what happens when those who have been chosen to rule and given the power to live immoderately–the ones who are told that they have gold in their souls–become immoderate in something other than the love and study of wisdom? Knowing that these people are not all destined for ruling, as the myth says they are, doesn’t it seem like not only a possibility, but also a statistical likelihood that eventually this power of immoderation will be placed in the wrong hands? What happens then? The answer to this, it seems, is found in Book 8, when Socrates explains how one type of government devolves into another type–when something goes wrong in an aristocracy (which is what Socrates considers the “republic” to be) it turns into a timocracy, which then turns into an oligarchy, then a democracy, and then a tyranny. Plotted linearly (as perhaps a timeline), the tyranny is the furthest thing from the aristocracy, as Socrates seems to say they are; but plotted circularly (as, let’s say, a cycle of governments), the tyranny and the aristocracy end up right next to each other, if not on top of each other. This exercise illustrates the greatest danger of the city in speech; if the ruler, who is given the considerable power of living without moderation, chooses to orient his ruling in a particular way–if he devotes his love, for example, to money or power instead of wisdom–he ceases being a philosopher-king and turns into a tyrant, just like that. The potential for the philosopher-king to become a tyrant is there all along; all it takes is a slight misstep for the “republic” to become a tyranny. Socrates himself, in Book 9 of Plato’s Republic, says that he doesn’t think his “republic” could exist in the real world. Greek playwright Aristophanes, too, saw the rule of the philosopher as incredibly unrealistic; in his play Clouds he depicts students of philosophy and philosophers themselves (particularly Socrates) as being incredibly out of touch with reality–they have their “heads in the clouds,” so to speak, and are so caught up in the cerebral analysis of unimportant

thoughts that they ignore any question of true import, like the ones that they’d have to answer if they were ever in a position of political power. But, it is not only the unrealistic nature of the city and its philosopher-king that make the “republic” dangerous–even upholding the “republic” as an ideal can be harmful to the people that are living in any city that actually is real, whether that real city is in Athens under Spartan rule or modern-day America. This is partially because the city in speech is so unstable, so close to utter tyranny that even using it as an ideal could push an actual city towards tyranny itself, which is unfortunately a very plausible and realistic outcome for a city. However, holding up the city in speech as an ideal is dangerous for other reasons, mainly because it–as all ideals do–serves as a distraction from the negative aspects of a society, and keeps people living in those societies from examining those negative aspects truthfully, understanding them and the society in which they live, and governing themselves accordingly. Consider, for example, some of the ideals of modern American society, like the importance of freedom, justice, and equality. We have sustained several wars overseas using a military comprised solely men and women who voluntarily risk their lives because they so deeply believe in these ideals. No one (or at least very few people, certainly not enough to comprise the most powerful military in the entire world) would risk their lives for the economic gains of their country’s government, or to send a political message. But, when any conflict is construed as a fight for ideals – or a fight against those who do not share our ideals, who believe that freedom, justice, and equality are not important – suddenly you have mass quantities of people that are quite literally willing to die to ensure that our ideals are upheld. American society frames this as a good thing, that dying for America (more accurately, for American ideals) is honorable and patriotic. But, in reality, this power that is wielded over us–the power of ideals–is

incredibly dangerous because it clouds our vision and keeps us from seeing things as they truly are, sometimes to the detriment of our very lives. In Book 7 of the Republic, Plato (via Socrates) tells his listeners and readers a story (referred to as the allegory of the cave) that can be used to illustrate the dangers of idealism. In this story, Socrates asks his listeners to imagine that all people–in a city, let’s say, or in humanity itself–live in a dark cave, with the only light coming from several fires that create all sorts of shadows and shapes on the walls of the cave. Everyone in the cave is stuck there–they are all chained to the walls and floors of the cave, and have been since childhood. No one in the cave really knows anything about what they look like, what the people around them look like, or even what the cave itself looks like because it’s always so dark; furthermore, everyone in the cave believes that the shadows on the cave wall are accurate depictions of things, instead of distorted images that are inherently inaccurate, because the cave will never provide the people with enough light to see anything clearly. One person eventually breaks free of his chains and leaves the cave, where he literally sees the light and learns of the deceit of the shadows–he then returns back to the cave, where he attempts to slowly integrate his knowledge of the outside world into the everyday functioning of life within the cave. In terms of the dangers of idealism, the cave can be used to represent the social and political structure of a city or a country that purposely keeps its inhabitants “in the dark”; the ideals are the fires in the cave, which distort reality while at once purporting to enlighten. The chains may seem like the most important part of this story, since it is the chains that keep us living in this distorted reality. But, the truth of the matter is that by virtue of living, we are living in a cave; different caves might have different fires, or ideals, that distort our realities and shift our perceptions in one way or another, but all of life is a cave. No one has the choice to break

free of their chains and live outside of the cave–but, that’s not the goal, because even if you did break free (according to Socrates) it would be your duty to return to the cave anyway, to bring truth to the rest of the inhabitants who were not as lucky as you were. It is not realistic to desire living outside of the cave; we all must exist in the cave, but we do not have to exist of the cave. The man who has broken free, who has seen the light and understands the distortions of the shadows, goes back and lives in the cave, but because he knows truth, he will never again be of the cave. This is the danger of idealism; it does not necessarily keep us in the cave, but it distracts us from a critical analysis of our societies and keeps us beholden to the thoughts, myths, and rules of those societies, keeping us of the cave in the worst way. In his essay entitled “The Question Concerning Technology,” German philosopher Martin Heidegger discussed his belief that all people are little more than products of their social situations, or “enframements.” Idealism plays a huge role in this–it is a society’s ideals, perhaps more than anything else, that are used to socially condition its inhabitants and produce the types of people that that society deems necessary or useful. And, if idealism is what enframes us–what keeps us from seeing the light, from understanding the inherent lie of the shadows on the cave walls–then both Heidegger and Plato, it seems, would agree that it is something that must be questioned, and questioned frequently, if one desires to live a truthful life. Heidegger and Plato, too, it seems, would both argue that the path towards a truthful and enlightened life does not have to include a complete break from society, if this is even possible–the danger is not living in the cave, or being socially conditioned, because everyone lives in the cave and everyone is socially conditioned in some way. The danger, rather, lies in the blind acceptance of what society tells you–the acceptance of the shadows on the cave wall, or of the noble myth that some are

destined to rule because of the gold in their souls, or of any of the hundreds of other rules and thoughts and lies and ideals that we are socially conditioned to believe as truth–as actual truth. The way, then, to break free–to become more than a simple product of social engineering, more than someone who views shadow as light–is to question, to look closer; to still live in the cave, but not become of it. Holding up anything–equality, justice, freedom, or a utopic city–as an ideal is simply a well-designed way for a social structure to constrain its inhabitants–how fitting it is, then, that idealism and politics, yet another aspect to social structure, go so well together in Plato’s Republic. In the case of the city in speech, there are inherent flaws to the city itself– mainly, its incredible vulnerability to tyranny–that make it an unrealistic and unstable place, even as an ideal. But, the greater question in the examination of the proper role of the city in speech as a political ideal is not about the city in speech at all–it is about idealism itself, a force that has been used throughout history (and is still used today) to constrain, socially condition, and control all members of society who do not or will not question it.

Consumerism: The Y2K of The Human Soul Sam Fishman University of Southern California Consumerism is America’s zeitgeist. Sean Penn’s Into The Wild and David Fincher’s Fight Club explore our generation’s material value system of obsession with brand-name consumerism and the domination of corporate America. In Into The Wild, Chris McCandless renounces association with consumerism as he tries to shake himself out of his torpid existence—he enters the wild to live free of corporate capitalism. In Fight Club, Jack and Tyler Durden become so saturated with capitalist gluttony that they turn to beating it out of one another as a means of regressive catharsis. Both films focus on characters trapped within our capitalist system in which commodities take part in social interactions that render us commodities, leaving us estranged from our own labor and alienated from ourselves. These characters want to escape from their indolent, 21st century lives and return to Thoreau’s natural state of man—the films suggest that there is such a possibility of returning to this primal state of intrinsic value and beauty1 that is not defiled by capitalistic domination. Ultimately, Chris’ journey in Into The Wild shows us that while today’s society renders it impossible to empirically exist outside of power and ideology, we can stage a refusal as a revolutionary form of resistance to renew the importance of lost emotional relationships and shared experiences. Fight Club, on the other hand, responds to the limitations of Into The Wild, going further than the other film is willing to. Where Chris’ interest in self-preservation and unwillingness to renounce selfhood conduce a stilted rebellion, Jack and Tyler move past any inhibitions as they undermine capitalism by destroying the corrupted self. Through its mass masochism, Fight Club attacks the nerve of 1

Thoreau asserts that in an undefiled state of nature, human existence is very different; removed from the material world, we exist in a state of primal beauty. The films do not directly allude to Thoreau—I invoke Thoreau in the essay to make a claim about the films.

Generation X and its “deeper and darker underlying sense of despair and paralysis and numbness in the face of the overwhelming onslaught of media information that we've received from the cradle” (Norton 4). This radically ends with the absolute reversion of man back to Thoreau’s primal state through the erasing of the debt record and the destruction of corporate America. Into The Wild explicitly explores this struggle between the rejection of and the obsession with consumerism through the motif of cars. As a student at Emory University, Chris leads a life of utter disillusionment: he is disillusioned with his parents’ superficiality, disillusioned by starvation in Africa, disillusioned by whatever it is that is making his life mundane. When his parents express their desire to buy him a new car as a college graduation gift, he responds: “Are you guys crazy? It's a great car. I don't need a new car. I don't want a new car. I don't want anything. These things, things, things, things” (Into The Wild). We hear the exasperation in Chris’ response as his tone rises with anger at the notion of exchanging his perfectly functional, beloved car for a new one. Here, cars represent expensive objects and classist fixtures. Chris views the car only for its functional value, resisting the overwhelming urge to deluge himself with new, unnecessary objects that satiate a consumer appetite or help climb the social ladder. This is in direct contrast with the scene where Chris’ parents flaunt their new car to the neighbors. As Karl Marx suggests, “the objectivity of commodities as values is the purely social existence of these things, it can only be expressed through the whole range of their social relations” (Marx, Capital: Critique of Political Economy 159). The utilitarian value of commodities has corroded as they are now purchased, exchanged, and traded merely because of infatuation or because of their social and class implications, as seen when Chris’ parents are enthused by purchasing new cars for these exact reasons. Chris realizes that consumerism within capitalist society has swallowed his life and the world around him. After this realization, Chris

embarks on his journey into the Alaskan wilderness to estrange himself from these things that have caused his overwhelming disillusionment. Chris proceeds to abandon all of his possessions and burn his money to disentangle himself from such consumerist vices and begin his resistance. As he parts with more and more of his things, his commitment to the cause of his pilgrimage becomes more serious. Despite his attachment to his car for its functionality and dependability, it represents one of the holy grails of consumerism, so he dumps it. Following this point, Chris succeeds in removing himself from as many of these material objects tainted by society and corporation as possible. As he progresses in this purification, he replaces his reliance on and love for objects with reliance on and love for all of the new people he meets along the way. When Chris meets Jan and Rainey Burres, an itinerant, hippy couple who live on the land, Jan takes a special interest in Chris because of her estrangement from her own son. Chris spends a good length of time living with them, and they develop a very close relationship before he sets off to the next stop on his journey. At one point while living with Jan and Rainey, Chris sells second hand books. While some might say that he mars the meaning behind his pilgrimage by doing so, this should not be seen as a regression back to the capitalist market economy. In this scene, Chris is not selling commodities, but rather knowledge and enlightenment from the words on these pages. Such is a key distinction. When Chris later meets Ronald Franz en route to the Alaskan wilderness, they too develop an extremely close, almost familial relationship. In a symbolic scene occurring during this time Chris and Ron live together, together, the two of them climb a mountain. As they reach the top together, we see Chris symbolically conquering capitalism as he scales the obstruction which is confronting him.

But even after the development of these relationships and his gradual overtaking of overt capitalist influences, there still remains another great obstacle in Chris’ journey before his goals of consumer resistance can come to fruition. Chris is still very ego-driven and must relinquish this attitude in order to truly come full circle. We see this attitude in his selfishly allowing his parents to suffer in anguish without ever contacting them and in his ego-laced, self-important journal entries like, “DAY 100 - MADE IT. BUT IN WEAKEST CONDITION OF LIFE. TOO WEAK TO WALK OUT. HAVE LITERALLY BECOME TRAPPED IN THE WILD—NO GAME IN SIGHT” (Into The Wild). It is not only that Chris has a difficult time maturing beyond this self-centeredness, but that he has a difficult time even coming to be aware of his own frame of mind. Such an attitude of egocentricity is what lies at the merciless heart of capitalism, so until Chris finds the ability to recognize and relinquish it, he is not able to call his hajj complete. Finally, at the end of his journey, alone and on the brink of death in the Alaskan wilderness, Chris has his long-awaited epiphany—these adverse consumer influences, wash away and take the place of our human relationships. Nearly frozen to death, he writes in his journal, “HAPPINESS ONLY REAL WHEN SHARED” (Into The Wild). Unlike his previous journal entries which are entirely self oriented and littered with “I” statements, there is no agent in this sentence. Chris is finally able to discard his attitude of self-importance and look through a new lens: the lens of the collective rather than the lens of the individual. Awaiting death, he emotionally renews his relationship with his family as he imagines running into his parents’ arms. The space that grew between him and his parents, which spurred his hatred for them, was occupied by a clutter of all these things, these meaningless objects. When Chris casts material concerns aside, he realizes that our love for objects interferes with and even replaces our love for people. Graham Hill, a highly successful internet entrepreneur who discovered this himself,

downsized his multimillion dollar, lavish existence to just a 420-square-foot studio with minimal material things. Hill writes, “The gadgets I was collecting in my loft were part of an aberrant or antisocial behavior plan… Intuitively, we know that the best stuff in life isn’t stuff at all, and that relationships, experiences and meaningful work are the staples of a happy life” (Hill 23). When we hoard these products as our culture manipulates consumers to continually buy, the consumers become just as interchangeable and inanimate as the products themselves. Marx’s theory of “commodity fetishism”2 leads to “reification”3 of social relationships, making us perceive intrinsic value in objects and social relationships among money and commodities instead of between people. In the end, our deep-seated consumer proclivities erode the transcendental, Thoreau-esque spirit of humanity that Chris subscribes to: it inhibits us from our natural state of intrinsic value and beauty. Ultimately, while Chris does stage a powerful refusal that leads him to reinvigorating the beauty of human companionships within himself, he does in many ways undermine his own cause. If Chris truly desired to drop off the map, why would he keep detailed journals and take numerous photographs of his journey? Despite physically relinquishing capitalist society by estranging himself from material objects, he is unable to escape capitalism entirely because it constitutes his selfhood. He ultimately retains it inwardly as his audience for these journals and photographs. While he is able to stage a powerful refusal to the damaging consumerist tendencies of society, he still dies intertwined with these forces. Although we possess the ability to demur consumerism, capitalism, and corporation, the mere existence of our society makes estranging ourselves from them entirely impossible. We can only navigate within power, not 2

Karl Marx, Capital: Critique of Political Economy, Capital Volume I

3 Georg Lukacs, History and Class Consciousness, “Reification and the Consciousness of the

Proletariat”

exist outside of it altogether. Fight Club notes this as well, and as we will come to see, addresses it very differently. Jack and Tyler neither attempt to navigate within power nor attempt to exist outside of it: they attempt to destroy it. In order to succeed in today’s society, our constant foci must be profit, objects, and classism. Capitalism and the free market reign have instilled an inescapable, systemic fixation on consumerism and material objects as driving societal forces. Consequently, before we can change our individual values, there must be a concerted effort to base society on human interactions and relationships instead of on materials. “The materialist doctrine,” writes Marx, “that men are products of circumstances and upbringing, and that, therefore, changed men are products of other circumstances and changed upbringing, forgets that it is men who change circumstances” (Marx, “Theses On Feuerbach” 13). In order to truly reduce our reliance on consumerism and material objects, we must make an overarching cultural, societal, and systemic change that reifies a new value system. But just as Chris is only able to return to his parents’ arms in fantasy, not in reality, the film begs the question: is this pragmatic or even possible? Like Chris’ initial state of mind, in the beginning of Fight Club, Jack’s obsessive investment in brand-name consumerism leads him to slip into oblivion. “Like so many others,” he narrates, “I had become a slave to the IKEA nesting instinct” (Fight Club). We see Jack’s apartment become an IKEA showroom as it fills up with furniture. Flipping through the catalogue, he wonders, “what kind of dining set defines me as a person?” (Fight Club) These consumer instincts enslave Jack—they are his every desire, his means of self-definition, his overwhelming infatuation. At this point in his life, he is also a soulless insomniac. Unable to sleep, cry, or feel at all, he is no longer even human. Jack is the living expression of Max Horkheimer’s theory that as we continuously purchase, we become just as interchangeable,

inanimate, and lifeless as the products themselves4. As Tyler Durden comes to tell him, “The things you own, they end up owning you” (Fight Club). In order to reconnect himself with humanity and human emotion, Jack begins attending support groups for maladies he is not afflicted with. The people in these support groups display genuine human emotions in response to their illnesses. Exposure to this humanity resurrects Jack. He is finally able to cry again, able to feel again, able to sleep again. Going home after attending his first support group, he narrates, “Babies don't sleep this well” (Fight Club). But this emotional reconnection is only an artificial one: Jack says, “Every evening I died, and every evening I was born again” (Fight Club). At this point he hovers on the brink of insanity, alternating between (emotionally) living and dying each day. Then Marla Singer, another “faker,” starts attending these groups. A mess of a woman with a death wish, her presence destroys the sanctity of the groups for Jack and pushes him back into psychosomatic free fall. In order to once again artificially mend his emotional being, Jack and Marla divvy up the support groups so that each attend different ones. Following this somnambulistic point in Jack’s being, he snaps out of his stupor when he meets the mysterious Tyler Durden on an airplane and Tyler reveals the detriments of his consumer vices. Tyler, effortlessly cool and dangerously charismatic, is the living embodiment of Freud’s id5: uninhibitedly impulsive, libidinally sexual, irrationally sociopathic. He represents everything Jack lacks and covets—Tyler says to Jack at the end of the film, “All the ways you wished you could be...that's me! I look like you wanna look... I'm smart, capable and most importantly, I'm free in all the ways that you are not” (Fight Club). After their “single-serving” (Fight Club) friendship on the flight, Jack comes to be inextricably linked to Tyler for the rest of 4 5

Max Horkheimer, Dialectic of Enlightenment, 94 Sigmund Freud, The Freud Reader, 631-637

the film. Jack proceeds to lose his luggage at the airport and find out that his apartment has blown up. Sitting in a tavern with Tyler after receiving this news comes the turning point in Jack’s character. He expresses his distress over the situation and over his lost material possessions: “I had it all. I had a stereo that was very decent, a wardrobe that was getting very respectable. I was so close to being complete” (Fight Club). Tyler responds to this with a sagacious enlightenment: “We're consumers. We're by-products of a lifestyle obsession. Murder, crime, poverty—these things don't concern me. What concerns me is celebrity magazines, television with five hundred channels, some guy's name on my underwear. Rogaine, Viagra, Olestra” (Fight Club). Here we get a burst of unmufflered Tyler as he strikes a generational chord. Where most lie to themselves about our conditioned apathy toward truly important things, Tyler is willing to come right out and admit it. Such unrestraint and openness about one’s own shortcomings is rarely seen, and through its shock value, this candidness reconnects Jack with his inner, untarnished soul, liberating him. Up until this point, material objects have made up Jack’s entire being. With them he was on the brink of “completion,” without them he is undone, back to square one. Where he could never find the nerve of his emotionally enervated being, Tyler finally exposes it to him. Rid of all the IKEA baggage that exploded with his apartment, Jack removes his consumerist shackles: “It’s just stuff,” he finally realizes (Fight Club). When Jack and Tyler leave the tavern and spontaneously begin punching one another in the parking lot, Jack feels sweet release as they beat capitalism and their consumerism instincts out of each other. Passersby see this purgation and join in, and soon after Fight Club is born. Having risen to be an organized underground society, Fight Club allows its members to step outside of their indolent lives and rejuvenate themselves through its primal masochism.

Unlike Chris in Into The Wild, these men are not only willing to destroy capitalism and consumerism around them, they are willing to destroy it within themselves. Slaves to this commodity culture, these men reassert mastery over themselves by willful deconstruction of the self. As Tyler says, “Self-improvement is masturbation. Now self-destruction…” (Fight Club) Their derivation of pleasure from this bodily mutilation is seen as they come out of every flight bloodied and beaten to a pulp, but smiling and feeling stronger and more empowered than ever. Jack explicitly expresses his desire for this loss of self, saying, “Lost in oblivion. Dark and silent and complete. I found freedom. Losing all hope was freedom” (Fight Club). That he finds this enjoyable manifests his submission to the masochistic pleasure principle rooted in selfrenunciation. Tyler’s creation champions the Nietzschean übermensch6—liberation of the human soul through the destruction of the engrained value systems that are enslaving us. Tyler says, “Look at the guys in fight club. The strongest and smartest men who have ever lived…A whole generation working in jobs they hate, just so they can buy shit they don't really need” (Fight Club). Every punch the fighters take destroys their consumer vices and temporarily liberates them from materialistic self-enslavement until they leave the realm of Fight Club to return to their regular lives. The bare knuckle, no holds barred brawls are a cathartic regression back to a primal realm. Within this Neanderthal state it is purely mano e mano. Possessions and jobs do not exist. There are no boxing gloves, weapons, or other societal distractions. In this realm of Fight Club, “You are not your job...you are not how much money you have in the bank...not the car you drive...not the contents of your wallet.” (Fight Club). Fight Club is a revolt against the capitalist notion that laborers create “social use-values” (Marx, Capital: Critique of Political Economy 131), not commodities; it is a revolt against the deep-seated consumer proclivities that 6

Omnipresent in Nietzsche’s Thus Spoke Zarathustra is the superman (übermensch)—an individual who has achieve his full power through the self-overcoming of his shortcomings.

capitalism has forced upon us; it is a revolt against the erosion of our transcendental, Thoreauesque humanity. In the essence of Fight Club’s masochistic response to capitalism, its resistance strategy is similar to that of a strike. In response to the exploitation of the proletariat by the bourgeoisie that is fostered by a capitalist system, a strike destroys the institution its workers are a part of by suspending their participation in such institution. While many resistance programs can be appropriated by pop culture and therefore neutralized, such revolts like Fight Club and strikes employ this concept of being in flux in attempt to evade such a fate. It is difficult to tame something that is constantly in motion, so their fluid nature helps the political programs they are fighting against remain unsettled and never comfortable. Just as strikes are constantly in flux— there is always the possibility of one anytime and anywhere laborers are unionized—Fight Club too accomplishes this through its rapid growth. As the cause spreads, different units of this underground organization continually spring up throughout the country independent of Tyler and Jack’s help. The cause takes on a free-formed life of its own as it grows and grows. This fluxional nature of Fight Club is fully realized in a conversation between Jack and Tyler in the latter half of the film: Jack: Did you know there's a fight club up in Delaware City? Tyler: Yeah, I heard. Jack: There's one in Penn's Grove, too. Jack: Bob, even found one in Newcastle. Tyler: Yeah, did you start that one? Jack: No, I thought you did. Tyler: Nah... (Fight Club)

Although Jack and Tyler created Fight Club, it now belongs to the masses. As Jack narrates, “Fight club—this was mine and Tyler's gift…our gift to the world” (Fight Club). It belongs to everyone but at the same time belongs to no one: everyone participates in it but no one can contain it. This amorphousness of Fight Club makes it difficult to be tamed: attempting to do so is like attempting to catch a ghost in a fishnet. Ultimately, Fight Club evolves into Project Mayhem—a regimented, “fascist militia”7 bent on blowing up the headquarters of the major credit card companies to achieve “economic equilibrium”—and undermines its own intent. Tyler has recruited thousands upon thousands of brainwashed followers who execute this resetting of the debt record in zombie-like fashion. The emotional liberation that Fight Club provided has vanished, only to be replaced by this indoctrination in Project Mayhem. At this point in the film, it is apparent that Tyler’s rebellion against capitalist systems has gone too far and in effect perpetuated the issue it was meant to combat, as his followers have been re-enslaved. This begs the question: what are the limitations of such a nihilist credo? As we see in the beginning, such nihilistic rejection of consumerism is liberating to a point, but taken to the utter extreme of Project Mayhem, the practical applications of it start to dehumanize people just as much as the things they are critiquing. Thus, we need not repudiate capitalism and government systems in their entirety because doing so returns us to the same problem. We need to devise a system that is not so invasive as to overrun our humanity like the unregulated free-market capitalist reign has, but one with structure enough to guide and progress society without dominating it.

Olivia Burgess, Utopian Studies, 268

Works Cited Burgess, Olivia. “Revolutionary Bodies in Chuck Palahniuk’s Fight Club.” Utopian Studies 23.1 (2012): 263-280. Fight Club. Dir. David Fincher. Perf. Edward Norton and Brad Pitt. 20th Century Fox, 1999. DVD. Freud, Sigmund, and Peter Gay. "The Ego And The Id." The Freud Reader. New York: W.W. Norton, 1989. 631-37. Print. Hill, Graham. "Living With Less. A Lot Less." The New York Times 10 Mar. 2013, Opinion sec.: SR1. Print. Horkheimer, Max, and Theodor W. Adorno. "The Culture Industry: Enlightenment as Mass Deception." Dialectic Of Enlightenment: Philosophical Fragments. Stanford, CA: Stanford UP, 2002. 94-95. Print. Into The Wild. Dir. Sean Penn. Perf. Emile Hirsch. Paramount Vantage, 2007. DVD. Lukacs, Georg. “Reification and the Consciousness of the Proletariat.” History and Class Consciousness. Translated by Rodney Livingstone. Marx, Karl, and Friedrich Engels. Capital: Critique of Political Economy. Chicago: C.H. Kerr &, 1907. Print. Marx, Karl, and Frederick Engels. "Theses On Feuerbach." Marx Engels Selected Works. Vol. 1. Moscow: Progress, 1982. 13. Print. Nietzsche, Friedrich Wilhelm, and Walter Arnold. Kaufmann. Thus Spoke Zarathustra: A Book for All and None. New York: Modern Library, 1995. Print. Norton, Edward. "Fighting Talk." Interview by Graham Fuller. Interview Magazine Nov. 1999: n. pag. Print. Thoreau, Henry David. "October, 1860." The Journal of Henry David Thoreau. Boston: Houghton Mifflin, 1906. 119. Print.

Autonomy of the People: Discourses on Indigenous Identity, Land Tenure, and Human Rights in San Miguel Ixtahuacán, Guatemala William Kakenmaster American University Introduction San Miguel Ixtahuacán, in the northwestern Guatemalan highlands, first encountered Goldcorp, Inc. in 2005 when the company began operating the Marlin Mine through its subsidiary, Montana Explorada. San Miguel Ixtahuacán is a small, rural indigenous community in Guatemala’s highlands. According to the community’s development office, the municipality was officially founded in 1800 by indigenous Maya Mam people before Spanish colonialists settled in the area.8 The municipality claimed approximately 35,000 total residents in 2010, 91.4% of whom belonged to rural pueblos, and 97% of whom are indigenous Maya Mam.9 Additionally, residents of San Miguel Ixtahuacán face disparate levels of poverty; 87% of all residents live in poverty while 33% endure extreme poverty defined by international standards.10 Goldcorp, in contrast, represents transnational corporate mining interests and large profit shares removed from rural poverty. In 2010, Goldcorp employed over 11,000 people and earned $2.7 billion in revenue from its operations in Canada, the U.S., Mexico, and Guatemala.11 The company has been signatory to the United Nations Global Compact since 2009 and a member of International Committee on Mining and Metals since the same year. The company’s largest mine is Marlin I, about 85% of which is located in San Miguel Ixtahuacán, and 15% in neighboring 8

Ovidio Joel Domingo Bámaca, Karin Slowing Umaña, Ana Patricia Monge Cabrera, Juan Jacobo Dardón Sosa, and Roy Walter Villacinda. Plan de Desarrollo. (San Miguel Ixtahuacán: Consejo Municipal de Desarrollo, 2010), 11-15. 9 Ibid. 10 Ibid. 11 Irene Sosa. 2011. "Responsible Investment Case Studies: Newmont and Goldcorp." In Governance Ecosystems: CSR in the Latin American Mining Sector, eds. Julia Sagebien and Nicole Marie Lindsay. (London: Palgrave MacMillan, 2011), 208.

Sipakapa (also majority indigenous and majority rural). Marlin was the subject of the wellknown Human Rights Assessment report commissioned by Goldcorp and strongly opposed by local communities as “racist, exclusive, and discriminatory.”12 The company bought shares of land from 254 individual indigenous landowners for 4,000 quetzals (over $500) per acre, above the average price of up to 1,500 quetzals.13 However, indigenous populations have opposed the mine based on its environmental degradation and disrespect of the land's cultural significance, demonstrating a contending understanding of land as culture rather than land as property.14 Representatives from Goldcorp have, on some occasions, agreed to suspend mining practices.15 However, the Marlin Mine continues to operate under Guatemalan federal law, which repealed precautionary measures recommended by the Inter-American Commission on Human Rights (IACHR) in 2010, which restricted mining.16 In this paper, I analyze official, popular, protest, and other discourses on indigenous ethnicity and land tenure rights from Goldcorp, governmental and intergovernmental organizations, activist groups, and indigenous people, in the context of the Marlin Mine in San Miguel Ixtahuacán, Guatemala from 2005 until the present. Ultimately, I seek to understand how each actor group constructs land tenure and indigenous identity and, in turn, constitutes the social reality of the land tenure and indigenous ethnicity. As actor groups interpret their social realities, they generate norms and patterns of behavior that reinforce or challenge an existing set of assumptions within their own world. Co-constructing the world in this way is hugely important for understanding both the drivers of corporate social investment and its consequences, as well as 12

Ibid., 209. Shin Imai, Ladan Mehranvar, and Jennifer Sander, "Breaching International Law: Canadian Mining in Guatemala," Indigenous Law Journal 6, no. 1 (2007): 109. 14 John Schertow, "Goldcorp in Guatemala: Water Deprivation and Militarized Expansion," Intercontinental Cry. 15 Ibid. 16 "Inter-American Commission on Human Rights Gives in to Pressure from Guatemala," Intercontinental Cry. 13

the drivers of social movements and anti-colonialist sentiment among indigenous populations in Latin America. I argue that discursive agents construct indigenous identity as dependent on the Marlin Mine, governmental institutions, or human rights activism; or as powerful in and of itself. Land tenure is understood in terms of its economic or legal value, or as a means to express culture and heritage in addition to those societal factors. It is significant to understand how each actor within the discourse interprets and reinterprets indigenous ethnicity and mining rights as this constitutes the reality of mining projects and social movements, thereby legitimizing actors’ courses of action.

Literature Review and Human Rights Theory Wary of mining development, social justice scholars suggest that indigenous people are systematically disenfranchised within a neo-colonial economic framework.17 Institutionalists posit that indigenous peoples’ marginalization occurs because of weak legal structures that fail to guarantee their rights.18 Environmental scholars contend that environmental damage done by open-pit mining implicates Goldcorp in the abuse of indigenous people who rely on the natural

Liza Grandia, "On Dispossession: The Work of Studying up, Down, and Sideways in Guatemala’s Indigenous Land Rights Movement," in Up, Down, and Sideways: Anthropologists Trace the Pathways of Power, ed. Rachael Stryker and Roberto González (New York: Bergahn Books, 2014), 85-106; J. P. Laplante and Catherine Nolin, "Consultas and Socially Responsible Investing in Guatemala: A Case Study Examining Maya Perspectives on the Indigenous Right to Free, Prior, and Informed Consent," Society and Natural Resources: An International Journal 27, no. 3 (2014): 234; Catherine Nolin and Jacqui Stephens, ""We Have to Protect the Investors": "Development" and Canadian Mining Companies in Guatemala," Journal of Rural and Community Development 5, no. 3 (2010): 3770. 18 Imai, Mehranvar, and Sander, "Breaching International Law: Canadian Mining in Guatemala," 102-39; Elizabeth Katz, "Social Capital and Natural Capital: A Comparative Analysis of Land Tenure and Natural Resource Management in Guatemala," Land Economics 76, no. 1 (2000): 114-32; Mauro Barelli, "The Interplay between Global and Regional Human Rights Systems in the Construction of the Indigenous Rights Regime," Human Rights Quarterly 32, no. 4 (2010); Simona Yagenova and Rocío Garcia, "Indigenous People's Struggles against Transnational Mining Companies in Guatemala: The Sipakapa People Vs Goldcorp Mining Company," Socialism and Democracy 23, no. 3 (2009): 157-66; Leire Urkidi, "The Defence of Community in the Anti-Mining Movement of Guatemala," Journal of Agrarian Change 11, no. 4 (2011): 556-80.

landscape for their health and livelihood.19

Social Justice School Drawing on pluralist traditions of human rights, social justice scholars assert that the current state of affairs only marginally differs than the colonial order, thus condemning indigenous people to systematic oppression.20 Pluralist theorists posit that human rights are products of cultural context, not providential facts.21 Following from that logic, social justice scholars characterize the influx of mining corporations as an “invasion” of Guatemala, causing exacerbated violence.22 These analyses praise indigenous peoples’ resilience in retaining their landholdings, and simultaneously decry their continued exploitation at the hands of “colonial, liberal, developmentalist, and neoliberal” projects.23 For social justice scholars, the suffering that indigenous communities endured throughout history mirrors their ongoing oppression and justifies protection of indigenous-specific rights.24 19

Lyuba Zarsky and Leonardo Stanley, "Searching for Gold in the Highlands of Guatemala: Economic Benefits and Environmental Risks of the Marlin Mine," (Medford: Global Development and Environment Institute, Tufts University, 2011), 30-41; Niladri Basu and Howard Hu, "Toxic Metals and Indigenous Peoples near the Marlin Mine in Western Guatemala Potential Exposures and Impacts on Health," (Washington: Physicians for Human Rights, 2010), 10-16; Niladri Basu et al., "A Combined Ecological and Epidemiologic Investigation of Metal Exposures Amongst Indigenous Peoples near the Marlin Mine in Western Guatemala," Science of the Total Environment 409, no. 1 (2010): 70-77. 20 Yagenova and Garcia, "Indigenous People's Struggles against Transnational Mining Companies in Guatemala: The Sipakapa People Vs Goldcorp Mining Company," 157. See also: Grandia, "On Dispossession: The Work of Studying up, Down, and Sideways in Guatemala’s Indigenous Land Rights Movement," 87; Imai, Mehranvar, and Sander, "Breaching International Law: Canadian Mining in Guatemala," 102-39. 21 Alison Dundes Renteln, "The Concept of Human Rights," Anthropos 83, no. 4/6 (1988). See also: Makau Mutua, Human Rights: A Political and Cultural Critique (Philadelphia: University of Pennsylvania Press, 2002); Dwight Newman, "Theorizing Collective Indigenous Rights," American Indian Law Review 31, no. 2 (2006/2007): 282; Ellen Messer, "Pluralist Approaches to Human Rights," Journal of Anthropological Research 53, no. 3 (1997). 22 Laplante and Nolin, "Consultas and Socially Responsible Investing in Guatemala: A Case Study Examining Maya Perspectives on the Indigenous Right to Free, Prior, and Informed Consent," 234; Nolin and Stephens, ""We Have to Protect the Investors": "Development" and Canadian Mining Companies in Guatemala," 37-70. 23 Grandia, "On Dispossession: The Work of Studying up, Down, and Sideways in Guatemala’s Indigenous Land Rights Movement," 86. 24 See: Greg Grandin, The Blood of Guatemala: A History of Race and Nation (Durham: Duke University Press, 2000); Stephen Schlesinger and Stephen Kinzer, Bitter Fruit: The Story of the American Coup in Guatemala (Cambridge: Harvard University Press, 2005).

Critics argue that social justice redirects society’s resources towards undeserving outcomes. Friedrich Hayek asserts that “individual moral responsibility” is incompatible with any desired social justice because the “deliberate allocation [of entitlements] to particular people” ignores the effort individuals put into their work, and is unjust as everyone receives equal compensation for unequal work.25 In this paper, I remain skeptical of social justice scholars’ seeming lack of consideration for indigenous people’s power and agency, and of social justice critics’ requirements for equity. Guatemala’s indigenous populations have certainly faced oppressive obstacles, but have also counteracted those obstacles on significant occasions.26

Institutional School In contrast, institutionalists argue that indigenous peoples’ disenfranchisement results from weak governmental structures. Evincing the notion that humans have natural, universal rights, the institutional framework argues that indigenous rights do not depend on systems of historical oppression, but rather on the effectiveness of their governmental protection.27 Shin Imai and others note that governments consider indigenous laws empty of authority until granted formal jurisdiction.28 What is up for debate is “not whether Indigenous law exists,” but whether

Friedrich Hayek, Social Justice, Socialism & Democracy: Three Australian Lectures (Sydney: Centre for Independent Studies, 1979), 4.; Law, Legislation, and Liberty Volume 2: The Mirage of Social Justice (Chicago: University of Chicago Press, 1976), 64. 26 See, for instance: Christian Tomuschat, Otilia Lux de Cotí, and Alfredo Balsells Tojo, Guatemala Memory of Silence: Report of the Commission for Historical Clarification Conclusions and Recommendations (New York: United Nations Commission for Historical Clarification, 1999); Rigoberta Menchú, I, Rigoberta Menchú, 2 ed. (New York: Verso, 2010). 27 Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 2013); Michael J. Perry, The Idea of Human Rights : Four Inquiries (New York: Oxford University Press, 2000), Book, 86; Jack Donnelly, "Human Rights, Democracy, and Development," Human Rights Quarterly 21, no. 3 (1999): 611-12. See also: J. D. Sethi, "Human Rights and Development," ibid.3 (1981): 11; Mauro Barelli, "The Interplay between Global and Regional Human Rights Systems in the Construction of the Indigenous Rights Regime," ibid.32, no. 4 (2010): 956. 28 Imai, Mehranvar, and Sander, "Breaching International Law: Canadian Mining in Guatemala," 116.

or not state law must grant indigenous laws authority before they become effectual.29 Institutional scholars often view the superiority of federal law as problematic for indigenous laws, leading to “no physical enforcement of [existing legal] norms,” due to competition between legal systems.30 The institutional framework posits that governmental inability to “develop adequate mechanisms of representation” causes indigenous peoples to be disproportionately hurt by a broken legal system.31 Critics like Gary Herrigel argue that institutions rely on abstractions, not real-world struggles that challenge their effectiveness.32 “Societies,” Herrigel asserts, are “rich assemblages of historically accumulated dispositions and rule, not coherent complexes of complementary (and constraining) institutions.”33 For Herrigel, actors do not blindly allow themselves to be constrained by rules, but only do so when “those rules solve problems.”34 When actors disapprove of institutions, they “modify the rules or […] ignore them in order to construct new arrangements.”35 To understand how indigenous people make sense of Goldcorp’s mining development and its impact on ethnic identity and landholdings, I align my analysis with Herrigel’s critique and argue that social rules may protect people’s rights, but that people themselves consistently defy, change, or subvert those rules.

Environmental School Environmental analyses find that Goldcorp’s mines cause significant degradation, 29

Ibid. Celia White, "Gold Corp and Subsidiaries: A Critical Comparative Examination Due to International Inspiration," The Collegiate Journal of Anthropology 1 (2011). 31 Yagenova and Garcia, "Indigenous People's Struggles against Transnational Mining Companies in Guatemala: The Sipakapa People vs. Goldcorp Mining Company," 159. 32 Gary Herrigel, "Institutionalists at the Limit of Institutionalism: A Constructivist Critique of Two Edited Volumes from Wolfgang Streeck and Kozo Yamamura," Socio-Economic Review 3 (2005): 559-67. 33 Ibid., 566. 34 Ibid., 565. 35 Ibid. 30

threatening the local residents’ health and their natural surroundings, thus violating their rights to physical and ecological integrity. Among those studied, “individuals residing closest to the mine […] had higher levels of […] urinary mercury, copper, arsenic, [and] zinc when compared to those living further away.”36 Another study concluded that residents of San Miguel Ixtahuacán developed skin rashes, respiratory disorders, and other health-related illnesses due to the mine.37 As compensation for the degradation that endangers indigenous farmers, the Guatemalan government receives about 42% of mining revenue.38 This includes “royalties, taxes, wages, procurement and social investment,” though falling “substantially below best practice in global mining operations.”39 However, environmentalist scholars also find that companies “ready to compensate in money terms” for mining fall on deaf ears concerning those who “insist on the sacredness of the land, or on territorial rights.”40 Others contend that analyses of residents’ physical health downplay psychological trauma caused by Goldcorp. Similar to social justice scholars, Susana Caxaj and her co-authors argue that Goldcorp’s mine may exacerbate mental stressors, which include “loss of familial bonds, anxiety, depression, alcohol consumption/binge drinking, and other ‘high-risk activities.’”41 Given that “[i]ndigenous peoples’ experiences with large-scale mining are uniquely shaped by […] an ongoing legacy of colonial violence,” the current imposition of mining practice

Basu and Hu, "Toxic Metals and Indigenous Peoples near the Marlin Mine in Western Guatemala Potential Exposures and Impacts on Health," 3. 37 Basu et al., "A Combined Ecological and Epidemiologic Investigation of Metal Exposures Amongst Indigenous Peoples near the Marlin Mine in Western Guatemala," 71. 38 Zarsky and Stanley, "Searching for Gold in the Highlands of Guatemala: Economic Benefits and Environmental Risks of the Marlin Mine," 5. 39 Ibid. 40 Joan Martínez-Alier, "Identity and Power in Ecological Conflicts," International Journal of Transdisciplinary Research 2, no. 1: 18. 41 C. Susana Caxaj et al., "Gold Mining on Mayan-Mam Territory: Social Unravelling, Discord and Distress in the Western Highlands of Guatemala," Social Science and Medicine 111 (2014): 51.

compromises the community’s collective psyche.42 While these two arguments do not mutually exclude one another, they bear exceeding relevance in understanding the radical fracturing of indigenous communities’ physical and mental health.

Methodological Considerations and Historical Context I rely on a postmodern conceptualization of language in order to uncover the implicit ways that indigenous identity and land tenure rights are understood across the discourses. Michel Foucault defines discourse as “the group of statements that belongs to a single system of [linguistic] formation” thus expanding the ways in which meaning is communicated to virtually all social practice.43 The groups examined include Goldcorp, governmental and intergovernmental organizations, activist groups in the global North, and indigenous people in San Miguel Ixtahuacán. Goldcorp, defined broadly, encompasses corporate reports, letters, representatives, and employees. Texts related to governance structures refer to letters, public reports, and case law from the United Nations, International Labor Organization, and Guatemalan and Canadian governments. The analysis of activists includes Amnesty International, the Guatemala Human Rights Commission, the Washington Office on Latin America, and others. Finally, indigenous actors consist of those indigenous people who enter into the discourse on Goldcorp and the Marlin Mine. I selected several different types of texts, including protests, interviews, government and corporate reports, advertisements, and awareness campaigns. Texts were selected based on how frequently they were referenced by actors within the discourse, with necessary consideration paid to the texts that referenced them. For instance, all four actor groups reference the IACHR 42 43

Ibid. Michel Foucault, The Archaeology of Knowledge (London Routledge, 2002), 121.

recommendations to implement precautionary measures and suspend mining operations in Guatemala, and therefore, I selected the IACHR report as a key text that influenced the discourses’ development.44 I also interviewed Marselha Gonçalves Margerin, who is Amnesty International USA’s Advocacy Director for the Americas to lend insight into the organization’s role in the Marlin Mine. I analyzed each text’s treatment of indigenous ethnicity and land tenure rights in regard to the Marlin Mine and the meanings they conveyed through tone, mood, written and spoken language, and circumstance. I imported written texts into QSR NVivo and generated word frequency trees that showed which words, concepts, and discourses connected to others, and I used this to inform my analysis discussed later on. Texts were selected from 2005 until 2015.

Historicity and Context Guatemala’s history of indigenous disenfranchisement and corporate exploitation frames Goldcorp’s involvement in terms of the dispossession historically caused by powerful North American actors. During Guatemala’s national formation, Liberal reforms eliminated indigenous-defined land rights beginning in 1871, leading to land tenure conflict later on.45 Later, the Central Intelligence Agency famously sponsored a 1954 coup ousting President Jacobo Árbenz, whose Decree 900 expropriated land owned by United Fruit to Maya-majority “landless

See, for instance: Dina Aloi, "Letter to Maude Barlow, Council of Canadians Regarding Marlin Mine," (Vancouver: Goldcorp, Inc., 2011); J. T. Haines, Thomas Haines, and Andrew Sherburne, "Gold Fever," (Northland Films, 2013); Dore Ruth del Valle Cobar, "Precautionary Measure (Mc 260-07) in Favour of the Communities of the Mam and Sipakapense Maya Peoples in the Municipalities of Sipacapa and San Miguel Ixtahuacan, Both of the Department of San Marcos," in Ref. P-833-2011/DRDVC/hemj (Guatemala City: Presidential Coordination Commission of the Executive Branch Policy on Human Rights, 2011); Marselha Gonçalves Margerin in discussion with the author, 2015. 45 Greg Grandin, The Blood of Guatemala: A History of Race and Nation (Durham: Duke University Press, 2000), 77-81.

peasants.”46 In his place, the U.S. installed a repressive authoritarian regime that returned the expropriated land.47 Contextuality holds that concepts cannot be understood out of context. For this project, key concepts include land, wealth, and ownership. For many in Guatemala’s highlands, the natural environment cannot be separated from their identity. A prominent Mam community organizer and vocal critic of the Marlin Mine, Diadora Hernandez reflects, “This land is a part of me. It’s where I was born. And it’s where I’ll die,” associating the “sweeping pastureland” with her earthly existence.48 Moreover, monetary or proprietary wealth does not fully encapsulate the value of indigenous landholdings. The context of the land, for many indigenous people, is one of cultural—not just monetary—wealth.49 Finally, ownership implies different capacities of land tenure, not simply variation on who owns land. Goldcorp’s critics often cite indigenous peoples’ right to free, prior, informed, and communal consent to mining development, thus elevating land ownership to a communal level above the individual.50 Perhaps most importantly, I consider my role in the research process as a white, tertiaryeducated male. In San Miguel Ixtahuacán, over 80% of the labor force consists of agriculture, most of whom are subsistence farmers (Bámaca et al. 2010). More importantly, the workforce in San Miguel Ixtahuacán is composed of those aged seven and over (Van de Sandt 2009, 65). I have never worked on a subsistence farm, nor have I worked under age 15. Therefore, I lose the ability to fully appreciate many Maya Mam people’s intense, life-affirming relationship with the land. 46

Stephen Schlesinger and Stephen Kinzer, Bitter Fruit: The Story of the American Coup in Guatemala (Cambridge: Harvard University Press, 2005), 50-55. 47 Ibid., 205-18. 48 David Mercer, "Gold Mine Drives Wedge in Guatemala Community," Al Jazeera. 49 Haines, Haines, and Sherburne, "Gold Fever." 50 "Public Letter: Position of the Front in Defense of San Miguel Ixtahuacán," ed. Goldcorp Out of Guatemala (San Miguel Ixtahuacán: Coalition Against Unjust Mining In Guatemala, 2011).

Goldcorp’s Discursive Strategy Goldcorp constructs indigenous identity as blissfully reliant on the company for economic development. Land enters into Goldcorp’s discursive strategy as a measure of economic wealth owned individually, independent of any broader social context. Finally, human rights emerge from the discourse as objective facts of life that Goldcorp cannot violate in principle or in practice. Indigenous identity, as portrayed by Goldcorp’s advertisements, corporate reports, and public letters, is characterized as powerless, but dependent on mining efforts. Billboards, which Goldcorp designed “to familiarize the public with […] the environmental, social and economic activities and benefits of the Marlin Mine,” mainly depict smiling indigenous miners and farmers. 51 Goldcorp’s depiction of indigenous people conveys little choice in defining one’s identity or happiness as an indigenous person. 52 For instance, an indigenous farmer is portrayed saying, “Because I believe in caring for the environment, I believe in the mine,” thus directly connecting indigenous peoples’ environmentalism to Goldcorp’s willingness to employ environmentally sustainable practices.53 Moreover, Goldcorp’s efforts for transparency generally focus on responding to criticisms brought by activist groups in the global North rather than those

George Blakenship, "Environmental and Social Performance: Annual Monitoring Report," (Guatemala City: Montana Explorada de Guatemala, S. A., 2009). Goldcorp’s advertisement campaign has been the subject of several activist groups’ efforts, which sharply criticize Goldcorp’s manipulation of indigenous identity for corporate policies. See, for instance, Rodríguez, “Goldcorp: Propaganda,” Mi Mundo, 2012. 52 See: Goldcorp, Inc., "Goldcorp’s Response to the Marlin Mine Human Rights Assessment Report," (Vancouver: Goldcorp, Inc., 2010): “Goldcorp believes that the construction and operation of the Marlin Mine has been a positive factor for economic and social development in the Municipalities of San Miguel Ixtahuacán and Sipacapa and for their residents. Goldcorp and Montana are particularly proud of the professional and personal growth of Marlin’s nearly 2,000 Guatemalan employees.” See also: Goldcorp, Inc., "Goldcorp's Second Update to the Marlin Mine Human Rights Assessment Report," (Vancouver: Goldcorp, Inc., 2011). 53 Rodríguez, “Goldcorp: Propaganda.” Translated from the original Spanish.

voiced by the indigenous people most immediately affected by the mine.54 Related to the mine’s benevolent economic capacities, indigenous people appear as a “powerless, helpless innocent” class whose rights have been violated by the state, not by Goldcorp’s model of mining-driven development.55 The smiling faces of Goldcorp’s advertisement campaign also inform the company’s audience that the power to define one’s place in society rests on one’s connection to the Marlin Mine, not on one’s ethnic heritage. Land tenure arises primarily as an individual matter of economic wealth within Goldcorp’s official discourse. In a 2014 letter responding to criticism from Amnesty International, Goldcorp’s Brent Bergeron wrote that land acquisition is “carried out solely on a voluntary basis on behalf of the seller, with the utmost respect for the law and the principle of private property as it is a constitutional precept in Guatemala.”56 However, Bergeron’s best intentions to acquire land legitimately imply two critical assumptions about Goldcorp’s perception of the land. First, the individual emerges as the legitimate owner and seller of the land rather than the community.57 Land is naturally communal, and it is divided up along—for the most part—political lines established by legal interpretations of individual economic proprietorship. The Human Rights Assessment report commissioned by Goldcorp emphasizes that within the communal lands, “individual families could have possession rights over a specific parcel,” thus associating land ownership with the individual components of the indigenous group rather than identifying the group as the legitimate decision-maker itself.58 54

Aloi, "Letter to Maude Barlow, Council of Canadians Regarding Marlin Mine," (Vancouver: Goldcorp, Inc., 2011); Brent Bergeron, "Reply to Amnesty International," (Vancouver: Goldcorp, Inc., 2014). 55 Makau Mutua, "Savages, Victims, and Saviors: The Metaphor of Human Rights," Harvard International Law Journal 42, no. 1 (2001). 56 Bergeron, "Reply to Amnesty International," 1. 57 On Common Ground Consultants Inc., Human Rights Assessment of Goldcorp’s Marlin Mine (Vancouver: Goldcorp, Inc., 2010). 58 On Common Ground Consultants Inc., Human Rights Assessment of Goldcorp’s Marlin Mine, 112.

Secondly, land functions as a marker of economic wealth whose protection should be embodied by legally codified rights. In its official response to the Human Rights Assessment Goldcorp made little effort to address the cultural requirements of land possession, stating that “Montana has taken the recommendation regarding a voluntary moratorium on using the titulacion supletorio [sic] process under consideration and will respond to it in a future report.”59 Rather than a phenomenon that has deep cultural and social implications, land—and the question of its ownership—is raised as a legalistic form of economic wealth that individuals possess as part of a vaguely relevant group. The mining company’s response to criticism, exemplified by these few letters, demonstrates intertextual, political rivalries between corporate stakeholders and activists in the global North.60 In this way, Goldcorp’s representatives build their argument against human rights critics, rather than indigenous arguments. Consider, for instance, Goldcorp’s Vice President of Corporate Social Responsibility Dina Aloi’s reply (2011, 1) to criticism given by Maude Barlow, who represents the activist group Council of Canadians, which reads: I was surprised to read in a news release issued by the Council of Canadians on September 8, 2011, that you were in the vicinity of the Marlin Mine in Guatemala earlier this week. If Goldcorp had been notified of your visit, we could have made arrangements for you to have a tour of the operations and to speak with local employees. We also could have organised a meeting with some of the original petitioners to the Inter-American Commission on Human Rights, who are now participating in the multi-stakeholder dialogue (Mesa de Diálogo) [which…] includes representatives of various Government of Guatemala Ministries, the Presidential Commission on Human Rights, the Municipalities of Sipacapa and San Miguel Ixtahuacán, and representatives of Goldcorp.61 Aloi’s letter implies that, without consulting Goldcorp, activists are out of touch with mining employees and indigenous residents of San Miguel Ixtahuacán. As the letter illustrates, Goldcorp 59

Goldcorp, Inc., Goldcorp’s Response to the Marlin Mine Human Rights Assessment Report, 25. Bergeron, "Reply to Amnesty International."; Aloi, "Letter to Maude Barlow, Council of Canadians Regarding Marlin Mine." 61 Aloi, "Letter to Maude Barlow, Council of Canadians Regarding Marlin Mine,"1. 60

ought to be “notified” so that the company could have made an effort to promote a dialogue between invested parties.62 By building on actions in civil society, Goldcorp shapes the discourse’s power relations so as to imply that the only legitimate dialogue that concerns those affected by the mine occurs through the company. Indeed, by enmeshing itself within the web of activist discourses, Goldcorp’s perception of itself aligns ever closer to the image of the goodwilled savior, upon whom employees rely for contact with civil society. This intertextual linkage positions the back-and-forth within the discourses as a battle of legitimacy between activists and corporate officials, while indigenous voices are left out of the conversation. Perhaps unsurprisingly, Aloi’s letter makes no explicit reference to indigenous ethnicity. Goldcorp approaches human rights as if they were narrowly defined facts that the company cannot violate, similar to institutionalists’ interpretation that “countries [rather than companies] can resolve conflicts between human rights and development strategies,” constructing the responsibility for indigenous rights issues as a distinctly governmental responsibility.63 According to Goldcorp’s Dina Aloi (2011, 1) the company “is committed to […] respecting the human rights of our employees and the residents of the communities in which [it] operate[s].”64 The 2010 Human Rights Assessment mirrors Aloi’s understanding of human rights as artifacts to be respected rather than principles to be violated or not. For the mining company, human rights violations consist of “[a]ction or inaction by the State [which] results in human rights of individuals or groups not being protected or fulfilled.”65 On the other hand, within the human rights discourse, Goldcorp can only “infringe” on or “fail to respect” human rights, absolving the company of any real moral imperative to guarantee the rights of members of the 62

Ibid. Sethi, "Human Rights and Development," 12. 64 Aloi, "Letter to Maude Barlow, Council of Canadians Regarding Marlin Mine,"1. 65 On Common Ground Consultants Inc., Human Rights Assessment of Goldcorp’s Marlin Mine, 191. 63

community.66 Moreover, Goldcorp’s insistence on “respect” for human rights assumes that the power to recognize human rights lies with the company or the government that theoretically enshrined those rights, not the bearers of those rights.67 In other words, respect for a narrowly understood right to the land as private property denies indigenous people the ability to define and claim their right to the land for themselves. Goldcorp’s discursive strategy ultimately produces several contradictions. First, to be indigenous means to be helplessly dependent on the Marlin Mine for economic and social development. Yet, despite the benefit Goldcorp perceives itself to inject into the community, land tenure remains a primarily individual phenomenon isolated from its cultural context. While the company shapes the discourse to emphasize its contributions, it denies responsibility for the negative human rights repercussions of Marlin’s presence. According to Goldcorp’s understanding of the interrelated phenomena of indigenous heritage, land tenure, and human rights, a Canadian mining company only brings development to Guatemala paired with minimal responsibility for respecting the rights of indigenous people.

Governmental Narratives If Goldcorp shifts responsibility for indigenous rights onto the government, then it is necessary to investigate how governmental narratives address similar questions. Overall, governmental and intergovernmental texts construct indigenous identity as a similar condition of victimhood. As victims, Guatemalan policies highlight the process of “individualization,” implying that land ownership—and community identity by extension—ought to become replaced

66 67

Ibid. Goldcorp, Inc., Goldcorp's Second Update to the Marlin Mine Human Rights Assessment Report, 1-4.

by individual possession and composition.68 Finally, governmental narratives emphasize the rule of law to protect individual property rights. Governments vary on Marlin’s legal status, but maintain an imbalance of power, limiting indigenous peoples’ autonomy. Indigenous identity surfaces from the text as conditioned by and dependent on governmental structures, and therefore unable to affect change outside of elite political institutions. A key example of intertextuality in governmental discourses is a letter in which several Members of the European Parliament (MEPs) write to the Guatemalan government to Demonstrate our recognition […] of the suspension of the Marlin Mine’s operating license in accordance with the commitments of International Human Rights Law. For that reason, we call upon the Government to keep us informed on the advances and results of the implementation of said process; inform us of the manner of its compliance with precautionary measures, and on the participation of legal representatives of the communities in the developments of the current stage.69 The MEPs’ legalistic interpretation of the circumstances demonstrates that, similar to Goldcorp, indigenous people exist as part of a vague and imagined community contextually bound by “legal representatives.”70 Indeed, in stark opposition to Herrigel’s critique of institutions, governmental discourses assume indigenous people’s advocacy to be constrained by social rules,

Cobar, "Precautionary Measure (Mc 260-07) in Favour of the Communities of the Mam and Sipakapense Maya Peoples in the Municipalities of Sipacapa and San Miguel Ixtahuacan, Both of the Department of San Marcos," 510. 69 "Carta al Gobierno de Guatemala Sobre las Medidas Cautelares Otorgadas por la Comisión Interamericana de Derechos Humanos a las Comunidades del Pueblo Maya de los Municipios de Sipacapa y San Miguel Ixtahuacán en el Departamento de San Marcos, Guatemala.," (Brussels: European Parliament, 2010). Translated from the original Spanish. 70 Ibid. See also: Final Statement of the Canadian National Contact Point on the Notification Dated December 9, 2009, Concerning the Marlin Mine in Guatemala, Pursuant to the Oecd Guidelines for Multinational Enterprises (Ottawa: Canadian National Contact Point for The OECD Guidelines for Multinational Enterprises, 2011). In 2011, the Canadian National Contact Point issued a statement which recommended that “the parties participate in a constructive dialogue in good faith,” essentially strengthening Goldcorp’s position in the Mesa de Diálogo with local and rural indigenous people (Ibid, 8). In good faith, many indigenous people received lectures on the mine’s benefits from Goldcorp officials rather than a recognized platform to voice their concerns. In this way, the legalist and governmental discourses exacerbated existing power disparities through legitimate institutions.

like the rule of law.71 Furthermore, publications from the Guatemalan government refer to affected “communities,” making little or no reference to their indigenous composition.72 In fact, one publication that actively recognizes communities as distinctly indigenous explicitly considers their identities subject to “individualization.”73 In this sense, the text implicitly acknowledges the collective aspect of indigenous identity, yet unlike the previous governmental texts—which seem to exclusively associate indigenous identity with the community— collectivism is connoted negatively. Governmental narratives make sense of indigenous identity in terms of the law, whether institutionalized by MEPs, defined as exclusively collective, or as developing towards an individualized ideal. Within the governmental discourses, land tenure is shaped by its legal value, through which the land is brought into being as an individual possession defined by space. Spatially, land emerges as a finite, material element, rather than a concept shaped whose meaning is by culture. Consider a 2011 case before Guatemala’s Constitutional Court, which found that the Goldcorp’s process of land acquisition violated articles 44 and 46 of Guatemala’s Constitution.74 The Court held that the Guatemalan Congress cannot regulate indigenous people’s right to consultation during the process of land acquisition.75 Land thus emerges as a physical space to be acquired— whether with consultation or without—rather than a multifaceted assemblage of cultural and 71

Herrigel, "Institutionalists at the Limit of Institutionalism: A Constructivist Critique of Two Edited Volumes from Wolfgang Streeck and Kozo Yamamura." 72 Guillermo Fernando Schell Alvarez, The Process for Temporary Suspension of "Marlin 1" Mining Concession Operations (Guatemala City: Ministry of Energy and Mines, 2011); Guillermo Fernando Schell Alvarez, "Montana Explorada, Sociedad Anonima. File Number Lext-541," in Resolution No. 0104, ed. Ministry of Energy and Mines (Guatemala City: Government of the Republic of Guatemala, 2011); Eugenia Castro Modenesi, "Official LetterMarn-Digarn/541-2011/Ecm/Vem.," ed. Milton Saravia (Guatemala City: Ministry of Environment and Natural Resources, 2011). 73 Cobar, "Precautionary Measure (Mc 260-07) in Favour of the Communities of the Mam and Sipakapense Maya Peoples in the Municipalities of Sipacapa and San Miguel Ixtahuacan, Both of the Department of San Marcos," 510. 74 "Reglamiento para el Proceso de Consulta del Convenio 169 de la OIT," in Expediente 1072-2011, ed. Corte de Constitutionalidad (Guatemala City: Republic of Guatemala, 2011). 75 Ibid., 21-22.

historical worth. Furthermore, a Guatemalan press release which detailed the suspension of all natural resource exploitation licenses, aimed to “generate a more appropriate climate for industrial, social, and environmental development.”76 The climate that the Guatemalan Executive Branch refers to reflects the notion that land is a space to be developed, whether by a mine, or by good social policy. Other governmental texts refer to land as “property” that cannot exist without a spatial understanding.77 Land, as a modicum of property wealth, is understood to be spatially defined and developable, rather than a cultural factor that connects indigenous people on the basis of their heritage, not their geography. Governmental and intergovernmental texts account for indigenous identity as reliant on legal institutions. Rather than an independent ordering of identity features, indigenous people exist within a legally recognized community in the process of becoming individualized. Land tenure, on the other hand, figures as a material possession of property wealth, equally reliant on legal institutions. Therefore, the question of the mine becomes to either suspend mining operations or to continue granting licenses, so long as the government—not the indigenous community—retains authority over the land and the mine’s legitimacy.78 Indeed, governments can regulate property, but not cultural, wealth.

Human Rights Activists in the Global North 76

"Government Proposes Temporary Suspension of the Granting of New Metallic Mineral Licenses," (Guatemala City: Government of the Republic of Guatemala, 2013). 77 Cobar, "Precautionary Measure (Mc 260-07) in Favour of the Communities of the Mam and Sipakapense Maya Peoples in the Municipalities of Sipacapa and San Miguel Ixtahuacan, Both of the Department of San Marcos."; Final Statement of the Canadian National Contact Point on the Notification Dated December 9, 2009, Concerning the Marlin Mine in Guatemala, Pursuant to the OECD Guidelines for Multinational Enterprises; James Anaya, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People (New York: United Nations, 2011). 78 Alvarez, "Montana Explorada, Sociedad Anonima. File Number Lext-541."; Elizabeth Abi-Mershed, Comunidades del Pueblo Maya (Sipakapense y Mam) de los Municipios de Sipacapa y San Miguel Ixtahuacan en el Departamento de San Marcos (Washington: Inter-American Commission on Human Rights, 2010).

The global North’s myriad human rights organizations aim to balance the “power and solidarity of the individual” against larger actors that violate human rights. 79 Reliant on legalistic interpretations of human rights, activist groups in the global North understand indigenous identity as historically marginalized, and pitted against the government and multinational corporations. Furthermore, activists from groups like Amnesty International are legalists—if not lawyers by training—and thus carve out their discursive territory in relation to governmental discourses. In this way, land is constituted in terms of its material worth and legal classification first, with ancestral value considered secondarily. Within official activist discourses, indigenous identity is constructed to be consistently victimized or criminalized by the Guatemalan state. Amnesty International reported that Diodora Hernandez was “shot point blank in the face […] for speaking out against Goldcorp’s Marlin mine. To date, no one has been arrested or brought to justice for her attack.”80 This description of the shooting parallels similar descriptions of indigenous protests defined in terms of failure that appear in other activist reports and campaigns.81 However, this approach to indigenous protest remains largely silent on indigenous people’s agency. For example, activists’ popular discourse underscores the fact that indigenous “communities have not been consulted about the [mining] plans,” as well as instances of intense violence committed against indigenous people.82 By focusing almost exclusively on the injustices committed against indigenous people, these 79

Margerin, 2015. Mining in Guatemala: Rights at Risk (London: Amnesty International, 2014), 11-12. 81 Maureen Meyer, "Protesters in San Miguel Ixtahuacán, Guatemala Are Intimidated, Beaten, and Robbed: Government Must Ensure Protection of Community Members," ed. Washington Office on Latin America (Washington: 2011); Grupo de Trabajo sobre Minería y Derechos Humanos en América Latina. El Impacto de la Minería Canadiense en América Latina y la Responsabilidad de Canadá: Informe Presentado a la Comisión Interamericana de Derechos Humanos (Washington: Organization of the American States, 2014). 82 Mariela Castañón, "Diez Heridos por Protestas en Áreas Mineras del País," (Goldcorp Out of Guatemala, 2013); "Guardias de Seguridad de la Mina Marlin Dispararon Contra Trabajadores de la Propia Mina," (Goldcorp Out of Guatemala, 2009); Helen Jaccard and Gerry Gordon, "Guatemalans Resist Invasion of North American Mines," in War is a Crime (warisacrime.org, 2013); David Hill, "Welcome to Guatemala: Gold Mine Protester Beaten and Burnt Alive," (Washington: Guatemalan Human Rights Commission, 2014). Translated from the original Spanish. 80

activists construct indigenous identity as powerless and victimized, thus separating indigenous agents claim to their rights from the rights themselves. If indigenous identity is powerless for activist groups, land tenure is thus characterized by the spatial and material definition spelled out by governmental and legal institutions. An activist report presented to the IACHR associates land with market and property wealth, claiming that Goldcorp violates indigenous people’s collective land tenure titles and “voluntary property” rights.83 Official activist positions highlight the importance of indigenous peoples’ “collective rights” to the land, however grounding those rights in legalistic interpretations.84 Popular activist sources similarly highlight the costs and benefits that underpin understandings of the land as material wealth, suggesting that good mining policies “benefit communities, minimize harmful environmental impacts, and direct resources to be used for sustainable development.”85 Activist groups’ emphasis on a legalistic understanding of land as a space that defines economic wealth downplays the intangible cultural wealth associated with holding land as an indigenous person. Similar to institutionalists’ argument that indigenous identity and land tenure economics in Latin America rely on legal protection, activists from the global North define land tenure in terms of its material and spatial value, and indigenous identity as powerless and dependent on the

Grupo de Trabajo sobre Minería y Derechos Humanos en América Latina, El Impacto de la Minería Canadiense en América Latina y la Responsabilidad de Canadá: Informe Presentado a la Comisión Interamericana de Derechos Humanos, 39. Translated from the original Spanish. 84 Margerin, 2015. 85 Ines Saraiva, "Guatemalan Mining Raises Human Rights Concerns," 2011. Blogs, reports, and news updates published by human rights activists in the global North similarly highlight victimhood within the indigenous community, placing the subjects of human rights’ publications in a discursive power-trap whereby their rights are generally considered whenever they have been violated, and not necessarily in instances of their reclamation by indigenous people themselves. See, for instance, Dylan Penner and Grahame Russell, "Council of Canadians & Rights Action Demand Shutdown of Goldcorp's Marlin Mine in Guatemala," (Goldcorp Out of Guatemala, 2011); "Guatemala Stokes Conflict around Mining by Failing to Consult Communities," in Business and Human Rights (Amnesty International, 2014).

law’s protection.86 The official and popular discourses advocating awareness in Guatemala detail instances of violent repression, but remain largely silent when indigenous people successfully assert their rights autonomously. When the global North’s activist groups present the question of indigenous rights and land tenure in Guatemala, it is as a structural matter that relies on Guatemalan and international legal institutions.

Indigenous Voices: Pride, Power, and Culture Not all indigenous people make sense of land tenure and their rights in the same way.87 However, in stark contrast to other actors within the discursive regime, indigenous identity is marked by its proud and powerful claim to cultural traditions and communal life. Many times, indigenous people have affected change in their lives, defining themselves not by the number of times they are repressed, but by instances of powerful defiance of the authority of Goldcorp and formal governance structures.88 Though different members of the indigenous community make sense of their identities and land tenure rights differently, each demonstrates a distinct sense of agency absent in the previous discourses. Indigenous actors, through their forceful claims to land and their protest of Goldcorp’s operations, build their identity on a foundation of proud independence. An outspoken critic of Goldcorp’s operations, Gregoria Crisanta Pérez declared (Rodríguez 2009) during a protest, We demand our rights because we do not want to be killed by the mining 86

Peter Kingstone, The Political Economy of Latin America: Reflections on Neoliberalism and Development (New York: Routledge, 2010). 87 It is important to note that human rights activists oftentimes recognize this as well and, while activists do well to recognize this, indigenous people’s meaning of land tenure rights remains disconnected from an entirely legalistic understanding shared by nearly all activist organizations. During Margerin’s interview, she recognized this point as central to Amnesty International’s ideology, but situated the ideology within the legal land tenure rights framework rather than the indigenous cultural framework. 88 Delfino Bautista and Ovidio Joel Domingo Bámaca, "P-1566-07 and MC-260-07 – Mayas Mam and Sipacapense Town Communities from the Municipalities of San Miguel Ixtahuacán and Sipacapa," ed. Santiago Cantón (San Marcos: Municipalities of San Miguel Ixtahuacán and Sipcapa, 2010).

company. We ask the government to please listen to our demands, as we are the legitimate owners of the territories. We are indigenous people, we were born there, and we should die there. But our death should be decided by God, not by the mining company.89 Indigenous texts further confirm that, whether indigenous people wanted to sell their plots of land to Goldcorp or not, there is great power in the “fight” to define what it means to be an indigenous person.90 Furthermore, indigenous people actively shape the local legal and political landscape, rejecting those who pretend “to be [advisors] to the Municipality’s City Hall, and the communal Mayors from Maya Mam town of San Miguel Ixtahuacán.”91 Protest banners outline indigenous demands for “dignity” and “life,” rather than the previous understandings of indigenous identity as reliant on the benevolence of the mining company, the government, or on activist groups.92 Indigenous residents demonstrate their ability to define themselves as proud and powerful people who will “fight for [their] land” no matter the cost.93 More than just an entitlement to be fought for politically, land tenure is understood as a connection to nature’s intangible worth grounded in centuries of historical and cultural context in addition to its economic valuation. According to local residents’ “worldview,” “this practice of […] making money is completely illogical because it destroys nature,” which “destroy[s] the person’s soul.”94 Diadora Hernandez and others similarly associate the process of holding land with cultural and spiritual wealth.95 Protestors often declare, “No to mining, yes to life,” associating mining with a nebulous, existential peril, rather than the simple threat of economic 89

James Rodríguez, "San Miguel Ixtahuacán Is Waking Up," in Mi Mundo (2009). Haines et al., 2013. 91 Acta No. 14- 2010: Rejection to Sr. Carlos Loarca (San Miguel Ixtahuacán: Alcaldia Comunitaria de San Miguel Ixtahuacán, 2010). 92 Rodríguez, "San Miguel Ixtahuacán Is Waking Up."; James Rodríguez, "Goldcorp: 2009-05 Protest March," in Mi Mundo (Guatemala City: James Rodríguez, 2011); James Rodríguez, "2012-03. The Indigenous, Peasant and Popular March Arrives to Guatemala City," in Mi Mundo (Guatemala City: James Rodríguez, 2012). 93 Haines et al., 2013. 94 Ibid. 95 David Mercer, 2012. "Guatemala Mine Town Sees Surge in Violence," Al Jazeera. Video, (accessed March 2, 2015); Mercer, "Gold Mine Drives Wedge in Guatemala Community." 90

property seizure.96 Mam residents frequently refer to land in official and protest discourses as “Mother Earth,” whose intrinsic natural value does not solely depend on concepts of proprietorship; as one indigenous protestor summarizes: “Water should not be sold, but rather protected.”97 In this case, land serves as a means to express passionate connections to cultural and ancestral wealth. In making sense of their identity and land tenure, indigenous people demonstrate their volition as independent agents operating within Guatemala’s legal environment as well as outside of it in order to claim their rights autonomously. Indeed, the local Mam residents of San Miguel Ixtahuacán resist the Goldcorp through protest and local resistance, public declaration, and municipal legal action.98 The land that indigenous people struggle over bears out as a factor of cultural and communal wealth in addition to its economic and political worth. Indigenous voices powerfully assert their place within the landscape of their heritage as proud, legitimate owners of the land that they continually struggle to claim.

Conclusions Goldcorp still operates its Marlin Mine due to the reversal of IACHR recommendations.99 96

Rodríguez, "Goldcorp: 2009-05 Protest March"; Rodríguez, "2012-03. The Indigenous, Peasant and Popular March Arrives to Guatemala City." 97 "Declaración de la Marcha por la Resistencia, la Dignidad, en Defensa de la Tierra y el Territorio," (Guatemala City: Indigenous, Campesino and Popular March, 2012); Rodríguez, "San Miguel Ixtahuacán Is Waking Up"; "Public Letter: Position of the Front in Defense of San Miguel Ixtahuacán," ed. Goldcorp Out of Guatemala (San Miguel Ixtahuacán: Coalition Against Unjust Mining In Guatemala, 2011). 98 Indeed, indigenous people’s resistance strongly rebuts formal governmental institutions which take a tough stance on civil disobedience. See, for instance, Rodríguez, "San Miguel Ixtahuacán Is Waking Up."; Rodríguez, "Goldcorp: 2009-05 Protest March."; Rodríguez, "2012-03. The Indigenous, Peasant and Popular March Arrives to Guatemala City."; James Rodríguez, "Mining in San Miguel Ixtahuacán: Conflict and Criminalization," in Mi Mundo (San Miguel Ixtahuacán: James Rodríguez, 2008).; Mercer, "Gold Mine Drives Wedge in Guatemala Community."; Mercer, "Guatemala Mine Town Sees Surge in Violence.”; Acta No. 14- 2010: Rejection to Sr. Carlos Loarca.; Bautista and Bámaca, 2010. 99 "IACHR Modifies Marlin Mine Precautionary Measures; Request to Suspend Mine Operations Removed," (Vancouver: Goldcorp, Inc., 2011).

Instances of violence against indigenous people continue partially due to Guatemala’s approximate 70% impunity rate, according to the U.S. Department of State’s Crime and Safety Report.100 Yet the mine’s presence is understood differently across the discursive landscape. For Goldcorp, indigenous people rely on mining to bring profits and thus, economic development to San Miguel Ixtahuacán. Goldcorp’s conception of land tenure emphasizes the environment’s economic capacity and individual property rights.101 If individual rights, economic development, and indigenous helplessness combine, then mining in San Miguel Ixtahuacán becomes both possible and legitimate, despite local opposition.102 Governmental and intergovernmental discourses promote the notion that indigenous identity and land tenure exist in connection to political and legal structures. Official government discourses refer to non-specific communities in San Marcos, with little acknowledgment of indigenous traditions within them.103 Indigenous rights are acknowledged in some ways to be collective, but as part of a process of “individualization.”104 This ethnic anonymity that results from most governmental discourses serves to legitimate the mine’s authority and erode indigenous self-determination. As reliant on the government’s recognition, indigenous land tenure rights and land tenure exist as slips of paper legally codified by governments and this sort

100

Guatemala 2014 Crime and Safety Report (Washington: US Department of State, 2014), 8. Carl L. Bankstonview, "Social Justice: Cultural Origins of a Theory and a Perspective," Independent Review 15, no. 2 (2010). 102 Specific Instance Complaint Submitted to the Canadian National Contact Point Pursuant to the OECD Guidelines for Multinational Enterprises Concerning the Operations of Goldcorp Inc. At the Marlin Mine in the Indigenous Community of San Miguel Ixtahuacán, Guatemala (Washington: Frente de Defensa San Miguelense The Center for International Environmental Law, 2009). 103 Alvarez, The Process for Temporary Suspension of "Marlin 1" Mining Concession Operations; Alvarez, "Montana Explorada, Sociedad Anonima. File Number Lext-541"; Cobar, "Precautionary Measure (Mc 260-07) in Favour of the Communities of the Mam and Sipakapense Maya Peoples in the Municipalities of Sipacapa and San Miguel Ixtahuacan, Both of the Department of San Marcos." 104 Cobar, "Precautionary Measure (Mc 260-07) in Favour of the Communities of the Mam and Sipakapense Maya Peoples in the Municipalities of Sipacapa and San Miguel Ixtahuacan, Both of the Department of San Marcos." 101

of authoritative response materializes in the form of governmental repression or legal action.105 Human rights activists in the global North serve as both a springboard for indigenous peoples’ legal action and as a marginalizer of their activist successes. These organizations highlight the Guatemalan government’s failure to guarantee indigenous rights, and critique the state’s criminalization of protest.106 Human rights groups define indigenous identity in terms of its place within the legal territory of Guatemalan and international institutions.107 Meanwhile, these non-governmental organizations comprehend land tenure in terms of indigenous collective rights, but governmentally-managed and reliant on the rule of law. Activists’ combination of powerless indigenous identity and land tenure as a property right suggests that justice is best carried out by adjusting power imbalances in favor of Mam victims in non-specific and potentially damaging ways.108 It is tempting to say that indigenous voices are entirely left out of the conversation. However, indigenous people demonstrate their ability to autonomously define their identity and land tenure rights. Indigenous identity emerges as a powerful, proud, niche in Guatemala that suffers intense hardship, but continues to fight against a mine that the majority of San Miguel Ixtahuacán sees as an imposition.109 Relatedly, land tenure derives value from cultural and ancestral ties, as opposed to a simplistic, economic value. The clear outcome for many indigenous communities is to drive out the Marlin Mine.110 105

"Guatemala Cracks Down on Anti-Mining Protests," Reuters 2013. "Urgent Action: Anti-Mining Activist Shot, Wounded," Amnesty International 2012. 107 Grahame Russell, "Stop the Criminalization of People in Guatemala Who Are Peacefully Defending Communities from Illegal and Harmful Entry of Canadian (& Other) Mining Companies," in Rights Action (Toronto: Rights Action, 2012). 108 Margerin, 2015. 109 Specific Instance Complaint Submitted to the Canadian National Contact Point Pursuant to the OECD Guidelines for Multinational Enterprises Concerning the Operations of Goldcorp Inc. At the Marlin Mine in the Indigenous Community of San Miguel Ixtahuacán, Guatemala, 2009; Haines et al, 2013. 110 John Schertow, "Guatemalan Court Rules in Favor of Indigenous People over Goldcorp Mining in Sipacapa," Intercontinental Cry 2014; John Schertow, "Goldcorp in Guatemala: Water Deprivation and Militarized Expansion," 106

As an interpretive discourse analysis, this paper does not seek to establish generalizable trends. Therefore, the findings and conclusions here cannot be understood outside of the context in which they have been generated. However, further research may shed light on indigenous civil society movements and the criminalization of protest in Latin America by focusing on discourses related to corporate media campaigns that white-wash the harmful effects of environmental degradation or exploitative labor practices. Research may also investigate labor union discourses and norm-setting in indigenous communities to explicate the worldviews and thought patterns that serve as the drivers of indigenous civil society resistance. When contending worldviews from Goldcorp, governments, activists, and indigenous people intersect around the Marlin Mine, the results can leave communities torn apart, bloodied, and fractured. Upon reflection of our own role as scholars within the human rights discourse, we face the inevitable question of whether or not our will to do good translates into just consequences that respect indigenous people as much as they intend to save them. Understanding land tenure and ethnicity from an indigenous viewpoint—or at least attempting to—serves as the basis for altruistic and truly responsible investment and development policies. If we cannot begin to understand other people’s worldviews, then we force through policies that disrespect the natural environment, indigenous traditions, and human rights. Such is the case with Goldcorp’s Marlin Mine, which exemplifies our good intentions in the way of economic development, but not our capacity for understanding and equality. As Goldcorp continues to operate its Marlin Mine, we ought to remain critical of our approaches to indigenous rights to avoid simply replacing Goldcorp as the benevolent, though misguided savior.

Intercontinental Cry, January 29, 2014; John Schertow, "Indigenous Protestors Blockading Mine Owned by Goldcorp Assaulted, Taken Hostage in Guatemala," Intercontinental Cry 2011.

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Bergeron, Brent. "Reply to Amnesty International." Vancouver: Goldcorp, Inc., 2014. Blakenship, George. Environmental and Social Performance: Annual Monitoring Report. Guatemala City: Montana Explorada de Guatemala, S. A., 2009. "Carta al Gobierno de Guatemala Sobre las Medidas Cautelares Otorgadas por la Comisión Interamericana de Derechos Humanos a las Comunidades del Pueblo Maya de los Municipios de Sipacapa y San Miguel Ixtahuacán en el Departamento de San Marcos, Guatemala.” Brussels: European Parliament, 2010. Canadian National Contact Point. Final Statement on the Notification Dated December 9, 2009, Concerning the Marlin Mine in Guatemala, Pursuant to the OECD Guidelines for Multinational Enterprises. Ottawa: Canadian National Contact Point for The OECD Guidelines for Multinational Enterprises, 2011. Castañón, Mariela. "Diez Heridos por Protestas en Áreas Mineras del País." 2015: Goldcorp Out of Guatemala, 2013. Caxaj, C. Susana, Helene Berman, Colleen Varcoe, Susan L. Ray and Jean-Paul Restoulec. "Gold Mining on Mayan-Mam Territory: Social Unravelling, Discord and Distress in the Western Highlands of Guatemala." Social Science and Medicine 111, (2014): 50-57. Cobar, Dore Ruth del Valle. Precautionary Measure (Mc 260-07) in Favour of the Communities of the Mam and Sipakapense Maya Peoples in the Municipalities of Sipacapa and San Miguel Ixtahuacan, Both of the Department of San Marcos. Guatemala City: Presidential Coordination Commission of the Executive Branch Policy on Human Rights, 2011. "Declaración de la Marcha por la Resistencia, la Dignidad, en Defensa de la Tierra y el Territorio." Guatemala City: Indigenous, Campesino and Popular March, 2012. "Declaration on the Rights of Indigenous Peoples." In GA 61/295. United Nations, 2008. Donnelly, Jack. "Human Rights, Democracy, and Development." Human Rights Quarterly 21, no. 3 (1999): 608-632. ———. Universal Human Rights in Theory and Practice. Ithaca: Cornell University Press, 2013. Foucault, Michel. The Archaeology of Knowledge. London: Routledge, 2002. Front in Defense of San Miguel Ixtahuacán. 2011. Public Letter: Position of the Front in Defense of San Miguel Ixtahuacán. San Miguel Ixtahuacán: Asociación para el Desarrollo Integral Sanmiguelense. "Government Proposes Temporary Suspension of the Granting of New Metallic Mineral Licenses." Guatemala City: Government of the Republic of Guatemala, 2013. Grandia, Liza. "On Dispossession: The Work of Studying up, Down, and Sideways in Guatemala’s Indigenous Land Rights Movement." In Up, Down, and Sideways: Anthropologists Trace the Pathways of Power, edited by Rachael Stryker and Roberto González. New York: Bergahn Books, 2014.

Grandin, Greg. The Blood of Guatemala: A History of Race and Nation. Durham: Duke University Press, 2000. Grupo de Trabajo sobre Minería y Derechos Humanos en América Latina. El Impacto de la Minería Canadiense en América Latina y la Responsabilidad de Canadá: Informe Presentado a la Comisión Interamericana de Derechos Humanos. Washington: Organization of the American States, 2014. "Guardias de Seguridad de la Mina Marlin Dispararon Contra Trabajadores de la Propia Mina." Goldcorp Out of Guatemala, 2009. Guatemala 2014 Crime and Safety Report. Washington: US Department of State, 2014. "Guatemala Cracks Down on Anti-Mining Protests." Reuters 2013. "Guatemala Stokes Conflict around Mining by Failing to Consult Communities." In Business and Human Rights: Amnesty International, 2014. Haines, J. T., Thomas Haines and Andrew Sherburne. "Gold Fever." Northland Films, 2013. Hayek, Friedrich. Law, Legislation, and Liberty Volume 2: The Mirage of Social Justice. Chicago: University of Chicago Press, 1976. ———. Social Justice, Socialism & Democracy: Three Australian Lectures. Sydney: Centre for Independent Studies, 1979. Herrigel, Gary. "Institutionalists at the Limit of Institutionalism: A Constructivist Critique of Two Edited Volumes from Wolfgang Streeck and Kozo Yamamura." Socio-Economic Review 3, (2005): 559-567.

Hill, David. "Welcome to Guatemala: Gold Mine Protester Beaten and Burnt Alive." Washington: Guatemalan Human Rights Commission, 2014. Goldcorp, Inc. "IACHR Modifies Marlin Mine Precautionary Measures; Request to Suspend Mine Operations Removed." Vancouver: Goldcorp, Inc., 2011. ———. Goldcorp’s Response to the Marlin Mine Human Rights Assessment Report. Vancouver: Goldcorp, Inc., 2010. ———. Goldcorp's Second Update to the Marlin Mine Human Rights Assessment Report. Vancouver: Goldcorp, Inc., 2011. Imai, Shin, Ladan Mehranvar and Jennifer Sander. "Breaching International Law: Canadian Mining in Guatemala." Indigenous Law Journal 6, no. 1 (2007): 101-139. Jaccard, Helen and Gerry Gordon. "Guatemalans Resist Invasion of North American Mines." In War Is A Crime: warisacrime.org, 2013. Katz, Elizabeth. "Social Capital and Natural Capital: A Comparative Analysis of Land Tenure and Natural Resource Management in Guatemala." Land Economics 76, no. 1 (2000): 114-132.

Kingstone, Peter. The Political Economy of Latin America: Reflections on Neoliberalism and Development. New York: Routledge, 2010. Laplante, J. P. and Catherine Nolin. "Consultas and Socially Responsible Investing in Guatemala: A Case Study Examining Maya Perspectives on the Indigenous Right to Free, Prior, and Informed Consent." Society and Natural Resources: An International Journal 27, no. 3 (2014): 231-248. Margerin, Marselha Gonçalves in discussion with the author, 2015. Martínez-Alier, Joan. "Identity and Power in Ecological Conflicts." International Journal of Transdisciplinary Research 2, no. 1: 17-41. Menchú, Rigoberta. I, Rigoberta Menchú. 2nd ed. New York: Verso, 2010. Mercer, David. "Gold Mine Drives Wedge in Guatemala Community." Al Jazeera, October 25, 2012. ———. 2012. "Guatemala Mine Town Sees Surge in Violence," Al Jazeera. Video, (accessed March 2, 2015). Messer, Ellen. "Pluralist Approaches to Human Rights." Journal of Anthropological Research 53, no. 3 (1997): 293-317. Meyer, Maureen. "Protesters in San Miguel Ixtahuacán, Guatemala Are Intimidated, Beaten, and Robbed: Government Must Ensure Protection of Community Members." edited by Washington Office On Latin America. Washington, 2011. Modenesi, Eugenia Castro. "Official Letter-Marn-Digarn/541-2011/Ecm/Vem,” edited by Milton Saravia. Guatemala City: Ministry of Environment and Natural Resources, 2011. Mutua, Makau. "Savages, Victims, and Saviors: The Metaphor of Human Rights." Harvard International Law Journal 42, no. 1 (2001): 201-209. ———. Human Rights: A Political and Cultural Critique. Philadelphia: University of Pennsylvania Press, 2002. Newman, Dwight. "Theorizing Collective Indigenous Rights." American Indian Law Review 31, no. 2 (2006/2007): 273-289. Nolin, Catherine and Jacqui Stephens. ""We Have to Protect the Investors": "Development" and Canadian Mining Companies in Guatemala." Journal of Rural and Community Development 5, no. 3 (2010): 37-70. On Common Ground Consultants Inc. Human Rights Assessment of Goldcorp’s Marlin Mine. Vancouver: Goldcorp, Inc., 2010. Penner, Dylan and Grahame Russell. "Council of Canadians & Rights Action Demand Shutdown of Goldcorp's Marlin Mine in Guatemala." Goldcorp Out of Guatemala, 2011. Perry, Michael J. The Idea of Human Rights : Four Inquiries. New York: Oxford University Press, 2000.

"Reglamiento para el Proceso de Consulta del Convenio 169 de la OIT." In Expediente 10722011, Corte de Constitutionalidad. Guatemala City: Republic of Guatemala, 2011. Renteln, Alison Dundes. "The Concept of Human Rights." Anthropos 83, no. 4/6 (1988): 343364. Rodríguez, James. "Mining in San Miguel Ixtahuacán: Conflict and Criminalization." In Mi Mundo. San Miguel Ixtahuacán: James Rodríguez, 2008. ———. "San Miguel Ixtahuacán Is Waking Up." In Mi Mundo, 2015. Guatemala City: James Rodríguez, 2009. ———. "Goldcorp: 2009-05 Protest March." In Mi Mundo, 2015. Guatemala City: James Rodríguez, 2011. ———. "Goldcorp: Propaganda." In Mi Mundo, 2015. Guatemala City: James Rodríguez, 2012. ———. "2012-03. The Indigenous, Peasant and Popular March Arrives to Guatemala City." In Mi Mundo, 2015. Guatemala City: James Rodríguez, 2012. ———. Rodríguez, James. "Goldcorp: Propaganda." In Mi Mundo, 2015. Guatemala City: James Rodríguez, 2012. Russell, Grahame. "Stop the Criminalization of People in Guatemala Who Are Peacefully Defending Communities from Illegal and Harmful Entry of Canadian (& Other) Mining Companies." In Rights Action. Toronto: Rights Action, 2012. Saraiva, Ines. "Guatemalan Mining Raises Human Rights Concerns." Washington: Washington Office on Latin America, 2011. Schertow, John. "Indigenous Protestors Blockading Mine Owned by Goldcorp Assaulted, Taken Hostage in Guatemala." Intercontinental Cry, March 1, 2011. ———. "Inter-American Commission on Human Rights Gives in to Pressure from Guatemala." Intercontinental Cry, January 5, 2012. ———. "Goldcorp in Guatemala: Water Deprivation and Militarized Expansion." Intercontinental Cry, January 29, 2014. ———. "Guatemalan Court Rules in Favor of Indigenous People over Goldcorp Mining in Sipacapa." Intercontinental Cry, August 1, 2014. Schlesinger, Stephen and Stephen Kinzer. Bitter Fruit: The Story of the American Coup in Guatemala. Cambridge: Harvard University Press, 2005. Sethi, J. D. "Human Rights and Development." Human Rights Quarterly 3, no. 3 (1981): 11-24. Sosa, Irene. 2011. "Responsible InvestmentCase Studies: Newmont andGoldcorp." In Governance Ecosystems: CSR in the Latin American Mining Sector, edited by Julia Sagebien and Nicole Marie Lindsay. London: Palgrave MacMillan. Specific Instance Complaint Submitted to the Canadian National Contact Point Pursuant to the OECD Guidelines for Multinational Enterprises Concerning the Operations of Goldcorp

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Criminal Records and College Admissions Rebecca Heilweil University of Pennsylvania Intro In 2007, the University of Pennsylvania discovered that a 25-year-old sex offender had been attending graduate courses while serving his time for a felony sentence. Kurt E. Mitman, who had won a Marshall Scholarship to study at Oxford, was charged in 2004 with sexual assault of a minor after having sex with a fourteen-year-old boy. According to Jeff Price of the Philadelphia Inquirer, “Mitman testified he had not told Penn officials of his criminal record when he applied in December 2005, nor when he met with them after his acceptance.”1 Upon the mother of his victim discovering his attendance at Penn, Judge C. Theodore Fritsch Jr. suspended Mitman’s participation in the Bucks County academic-release program. While the criminal justice system’s procedure was clear, Penn’s response was almost indiscernible. Penn spokeswoman Phyllis Holtzman told the Daily Free Press that, “If [Mitman] asked to re-enroll, we would consider it, but it would be dependent on him maintaining certain conditions.” 2 Like many universities, Penn’s approach to student criminal records is murky and context-oriented, and has no hard policy regarding a particular crime. “Everybody is individually evaluated,” she said. By 2014, Mitman had earned a PhD in Economics from Penn, ten years after his initial charge. 3 Yet Penn’s policy regarding disclosure of criminal records on its application remained vague.

Jeff Price, “Molester went from jail to Penn Until last week, the college didn't know that grad student Kurt E. Mitman was a sex offender, held in a Bucks prison.” Philadelphia Inquirer, January 18, 2007. 2 David Brand and Jessica Li, “Penn weighs readmitting sex offender,” Daily Free Press, October 3, 2007. 3 Kurt Mitman CV. Accessed December 12, 2015, at: https://www.dropbox.com/s/n70h6f2jivp3iz2/KurtMitmanCV.pdf?dl=0

In 2007, Ohio State’s student newspaper, The Lantern, reported that the university had admitted three sex offenders, charged with downloading and creating child pornography, as well as sexual battery.4 A following search revealed that five undergraduates were also registered sex offenders, whose charges included “importuning, gross sexual imposition, unlawful sexual conduct with a minor, sexual battery and attempted sexual conduct with a minor.” The College scrambled to respond; it was legally and morally unclear whether the students had done anything wrong in failing to report their past mistakes. To thrive in university after a criminal conviction is rare, and involves overcoming undefined policy and structural, often racial, inequities. The students who demonstrate such fervor in applying to college, however, are often most likely to succeed. But while significant research has been done on requiring criminal background checks as portion of a job application, criminal background checks for undergraduate students are rarely studied. Admissions committees are notoriously secretive, while collecting aggregate data on students applying to multiple schools, often from across the country, is incredibly difficult. Still, during discussions regarding overcriminalization of minorities, the school-to-prison pipeline, and mass incarceration, it is useful to look at the much ignored, but incredibly important, phenomenon of criminal background checks applied to students. The connection between collegiate studies and the workforce is especially relevant, given the strong correlation between undergraduate success and earnings.5 Moreover, estimates project that the U.S. will be short millions of workers needed for jobs that require college degrees by the

4 5

Amanda Dolanksi, “Admitted,” The Lantern, November 13, 2007. Brian Bursed, “How Higher Education Affects Life-time Salary,” U.S. News and World Report, August 5, 2011.

year 2020. 6 It is challenging to gage what affects college decisions since admissions offices are infamously elusive. In a new world of “holistic admissions” that take into account personal qualities and qualitative talents, criminal records can take on a new role.7 Moreover, while a more inclusive and dynamic admissions process potentially allows students with criminal records to contextualize their pasts and demonstrate personal growth, standards that look at future community membership, disposition, and personality also invite a strong potential for bias among admissions committee members. And, while employment discrimination is often studied, regulated, and investigated by the Equal Employment Opportunity Commission (EEOC), the federal government has invested fewer, if no, resources into investigating inequities among college applications. The debate over admission of those with criminal pasts is complicated; institutions maintain two primary motives for considering criminal records, which are often justified in tandem. Schools defend past criminal records as a useful indication of student character or potential threat to campus safety. However, both of these arguments are based on questionable assumptions and an imperfect method of retrieving criminal record information. For instance, on March 14, 2015, the New York Times called for an end to criminal background checks for college applications. The Editorial Board wrote, “people who check “yes” on the felony box can find themselves trapped in a Kafkaesque world where they are peppered with Inquisition-style questions and repeatedly asked to find documents that do not exist or are impossible to provide.” Some trace the origin of student criminal background check questions to the 1990 Clery campus security Act, which was considered a win for both campus security and consumer 6

Patricia McDonough, “Counseling and College Counseling in America’s High Schools,” National Association for College Admissions Counseling, accessed December 21, 2015 at http://www.nacacnet.org/research/researchdata/Documents/WhitePaper_McDonough.pdf 7 Phoebe Matlz Bovy, “The False Promise of Holistic College Admissions,” The Atlantic, December 17, 2013.

protection. After a 19-year-old Lehigh University student was murdered by a classmate, Congress passed the statute to ensure public reporting of on-campus violence by universities. According to the Clery Center for Security on Campus, the Act mandates that “all colleges and universities who receive federal funding to share information about crime on campus and their efforts to improve campus safety as well as inform the public of crime in or around campus. This information is made publicly accessible through the university's annual security report.”8 The Act has taken on a new importance in the context of growing on-campus sexual assault awareness. 9 10

The law represents a common argument for reviewing student criminal records. Many

defend the prioritization of student security, and forward that accepting those with criminal convictions threatens the wellbeing of others. Moreover, these concerns become more relevant when students live with each other and pursue campus leadership positions, even taking on positions of power through teaching assistant roles. Darby Dickinson of Stetson University explains that “background checks will not prevent all crime or injury on campus. But they likely will prevent some, and also will impact the culture by signaling that the university is concerned about student safety and is working to create a reasonably safe learning and living environment.” Others contend that inquiring about criminal records dissuades a large number of applicants who pose no danger to others, are unlikely to recidivate, and can academically flourish. 11 But more recent responses to on-campus crimes have been more direct. After the 2004 murder of a 8

“Summary of the Jeanne Clery Act,” The Clery Center for Security on Campus, accessed December 21, 2015, http://clerycenter.org/summary-jeanne-clery-act. 9 Ibid. 10 Darby Dickerson, “Background Checks and the University Admissions Process” presented at the National Association of College and University Attorneys convention, June 27-30, accessed November 15, 2015, http://wwwlocal.legal.uillinois.edu/nacua10/presentations/9F_handout.pdf. 11 New York Times Editorial Board, “College Applications and Criminal Records,” The New York Times, March 15, 2015.

University of North California at Wilmington student, state universities were required to conduct background checks on applicants with “red flag” records. 12 Campaigns against these criminal records inquiries have also developed. In 2014, students at Princeton University began petitioning for their university to remove questions about criminal history. Students for Prison and Education Reform (SPEAR) argued, writing, "The United States criminal justice system is inequitable and ineffective. In light of the racial and economic discrimination perpetuated by U.S. justice institutions, we believe that past involvement with the justice system should not be used to evaluate personal character or academic potential. We call upon Princeton University to remove the question about past involvement with the justice system from applications for undergraduate admission.”13 SPEAR also contended that "Approximately one-quarter of U.S. adults have a criminal record. A lack of interaction with this stigmatized population fosters deep misunderstandings about the nature of the criminal justice system and those affected by it. We believe that by eliminating questions related to past involvement with the justice system, Princeton can open the door to increased diversity of experience and perspective among the student body without compromising its academic quality or moral character."14 Other groups have noted that looking at previous arrests or convictions does not predict crime on campus. According to the Center for Community Alternatives, no study has shown that screening for criminal records increases safety on campus.15 Moreover, it is unlikely that precollege criminal activity can predict undergraduate misconduct. A study from the University 12

Jennifer Epstein, “Probing Students’ Pasts,” Inside Higher Education, July 1, 2010. “Fact Sheet,” Princeton Students for Prison and Education Reform, accessed December 20, 2015, http://princetonspear.com/fact-sheet/. 14 Ibid. 15 “The Use of Criminal History Records in College Applications: Reconsidered,” The Center for Community Alternatives, Nov. 2010, 6. 13

of Colorado found that “only 3.3% (95% CI 1.0% to 8.0%) of college seniors engaging in college misconduct had reported precollege criminal behaviors on their applications and 8.5% … of applicants with a criminal history engaged in misconduct during college.“16 And, despite that White students are more likely to report drug use before and during college, Black students are more often arrested and incarcerated for drug crimes. 17 Meanwhile, research strongly suggests that educational opportunities can significantly reduce recidivism. A study from the Journal of Correctional Education demonstrated that inmates who earned associate and baccalaureate degrees while incarcerated tend to become law-abiding individuals significantly more often after their release from prison than inmates who had not advanced their education while incarcerated.”18 In October, 2014 New York’s Attorney General convinced three colleges to remove a criminal record question from their applications.19 “An arrest or police stop that did not result in a conviction, or a criminal record that was sealed or expunged, should not – indeed must not – be a standard question on a college application,” he said. “Such a question can serve only to discourage New Yorkers from seeking a higher education." St. John’s University, Five Towns College, and Dowling College agreed to remove the inquiry, prompting considerable discussion of its necessity. 20 Yet despite the back-and-forth regarding the question of criminal pasts and college admissions, many schools have yet to produce transparent and consistent policy for evaluating these applications. 16

Runyan et al., “Can student-perpetrated college crime be predicted based on precollege misconduct,”. Feb 2013. Injury Prevention, accessed at http://injuryprevention.bmj.com/content/early/2013/02/22/injuryprev-2012-040644. 17 “Race/Ethnicity and Gender Differences in Drug Use and Abuse Among College Students,” U.S. National Library of Medicine, May 13, 2008, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2377408/. 18 Daniel J. Stevens and Charles S. Ward, “College Education and Recidivism: Educating Criminals is Meritorious,” Journal of Correctional Education Vol. 48, I. 3 (September, 1997), 1. 19 Ariel Kaminer, “3 New York Colleges to Drop Crime Queries for Applicants” New York Times, October 26, 2014. 20 Ibid.

This paper will approach the issue chronologically, and explore the multiple layers of racial inequity. First, it will analyze the nature of youth crime and divergent approaches to punishment across racial groups. Second, it will explain the nuances and meanings of “criminal record” and “criminal pasts, which complicates the application process. Third, the paper will examine factors that influence and deter college applications from those with criminal pasts. Fourth, it will consider how criminal records are handled by Admissions Committees. A conclusion will look at policy alternatives by some universities, and future areas of study. Pre-Application Inequities When analyzing the racial dynamics of college application criminal record inquiries, it is important to acknowledge educational disparities in the secondary school system. Often tagged “the school-to-prison pipeline,” through a combination of structural disadvantages, overly-harsh policies, and often pure bigotry, Black and other minority students are significantly more likely to be arrested. These rates are true both in and out of school, despite similar rates of criminal activity in their White counterparts. High rates of in-school arrests of Black students are part of a larger web of excessive, racially targeted punishment (As explained later, poor, minority schools are more likely to have police officers on duty during academic hours). According to the American Civil Liberties Union, Black students are expelled three times more than White students.21 These students are then three times more likely to engage with the juvenile justice system in the following year.22 Black students represent 31% of arrests related to school (According to PBS, 70% of in-school

“School to Prison Pipline Infographic,” American Civil Liberties Union, , accessed December 19, 2015, https://www.aclu.org/infographic/school-prison-pipeline-infographic. 22 Ibid.

arrests are of Black or Latino Students). 23 24 Nationally, African-Americans and Latino students are suspended significantly more than their White peers, a gap with potentially life-changing implications for a child’s education. A study by Attendance Works found that “missing three days of school in the month before taking the National Assessment of Educational Progress translated into fourth graders scoring a full grade level lower in reading on this test.”25 A Texas study found that a single suspension or expulsion almost tripled the likelihood that a student would become involved with the juvenile justice system within the same year. 38 “Many under-resourced schools become pipeline gateways by placing increased reliance on police rather than teachers and administrators to maintain discipline. Growing numbers of districts employ school resource officers to patrol school hallways, often with little or no training in working with youth. As a result, children are far more likely to be subject to school-based arrests—the majority of which are for non-violent offenses, such as disruptive behavior—than they were a generation ago. The rise in school-based arrests, the quickest route from the classroom to the jailhouse, most directly exemplifies the criminalization of school children.”26 In urban areas, schools are studied with particular scrutiny. According to the New York Civil Liberties Union, “At the start of the 2008-2009 school year there were 5,055 school safety agents (SSAs) and 191 armed police officers in New York City’s public schools. These numbers would make the NYPD’s School Safety Division the fifth largest police force in the country— larger than the police forces of Washington D.C., Detroit, Boston or Las Vegas.” According to these numbers, New York has more SSAs per student than many cities have police officers per 23

Ibid. “School to Prison Pipeline Fact Sheet,” PBS, December 21, 2015, http://www.pbs.org/wnet/tavissmiley/tsr/education-under-arrest/school-to-prison-pipeline-fact-sheet/. 25 Daniel Losen et al., “Are We Closing the School Discipline Gap,” The Civil Rights Project, February 23, 2015, http://civilrightsproject.ucla.edu/resources/projects/center-for-civil-rights-remedies/school-to-prison-folder/federalreports/are-we-closing-the-school-discipline-gap. 26 American Civil Liberties Union. 24

citizen. That same year, almost 100,000 students passed through metal detectors to go to school. 77% percent of incidents involving police at schools with permanent metal detectors were nonviolent. Schools with metal detectors also consistently receive lower-funding per student that schools without them. These schools also issued 48% more suspensions. These concerning trends continue to other major urban areas. For the 2009 year, the Los Angeles Unified School district reported that 62% of out-of-school suspensions were Hispanic students, while the 33% were Black students, and 5% were either White or Asian. Based on statistics from the Civil Rights Data Collection (see sources below), in 2009, the Los Angeles Unified School District reported the following numbers for out-of-school suspensions: 62% Hispanic students, 33% Black students, 3% White and 2% Asian. LAUSD also reported that of their expulsions, 67% of Hispanic students and 5% of Black students were not offered educational services. 27 The numbers were just as staggering in New Orleans, which reported that expulsions in its school district, “100% Black, with 67% of their school-related arrests being Black students.28 It was also reported that for the RSD-Algiers Charter School Association, “100% of their expulsions under zero tolerance policies and 100% of their school-related arrests were all Black students.” 29 While the district's students were not all African-American, only Black youth were subject to its most harsh punishments. Zero tolerance policies are important to study, especially when investigating how secondary school structures affect college applications. Zero tolerance programs were intended to guarantee school safety, in hopes to mitigate gun violence. These policies require suspension or expulsion for violating codes of conduct, even when students are non-violent. However, 27

PBS. Ibid. 29 Ibid. 28

evidence strongly supports that zero tolerance policies disproportionately affect minority students. In L.A., over three-quarters of expulsions were of Hispanic students under zero tolerance policies. 30 Critiques of zero tolerance are abundant. Within the program, there is still enormous racial bias. According to the Vera Institute, “White students who were referred for disciplinary action received a higher percentage of in-school suspensions and a lower percentage of more serious exclusionary consequences.”31 Zero tolerance policies fail to be context-oriented, and are not proportionate. And minority students are not blind to the inequities in their own school systems. The Vera Institute adds that for “culturally and linguistically diverse students the perceived bias on the part of teachers easily translates into yet another symbol of the barriers to mainstream success they must endure.”32And when minority students are expelled or suspended out of school, they are subject to the mass policing and racial profiling often rampant in urban communities, advancing disparities further. Diversity in Criminal Record Inquiry Formatting and Implications It is important to clarify what criminal past reporting involves, which presents in different forms for different institutions’ applications. Usually, a school will mandate that students take it upon themselves to disclose a criminal record, but rarely conducts independent background checks.33 Further investigation is then only triggered if an applicant has disclosed a criminal record, which can require substantial secondary documentation. While few schools automatically reject students with criminal records, most will take records into consideration. Though it is more 30

PBS. The Vera Institute of Justice, “A Generation Later: What We’ve Learned about Zero Tolerance in Schools,” December, 2013, 2. 32 Ibid, 3. 33 Dickinson, 1. 31

uncommon for a college to deviate from the norm of self-disclosure, St. Augustine’s College in Raleigh, North Carolina, for instance, has continued to require applicants to “to produce a statement from their hometown police department certifying whether they have a criminal record.”34 The American Association of College Registrars and Admissions Officers and the Center for Community Alternatives conducted a study of the process and evaluation of applicant criminal background checks, which will be referenced throughout this paper as a quantitative frame for this issue. While the study could not account for all American universities, it provides a view into the landscape of how criminal past information is used, and how approaches differ based on institutional preference. Of 247 schools, 58.3% reported collecting criminal justice information from all applicants, while inquiries were significantly more likely at private and four-year institutions (Speculatively, students with incarceration or arrest records are more likely to apply community colleges and public universities, where tuitions are potentially lessexpensive). 35 According to the study, more than 18% of institutions collected information that goes “beyond self-disclosure and conduct[ing] criminal background checks on any applicants.”36 62% of surveyed schools consider criminal justice information in their decision, while 13% of institutions maintained an automatic bar for some type of crime. 37 8.1% of 125 schools with an automatic admissions bar are oriented towards felony convictions, while 12.2% automatically reject sex offense convictions. 10.6% of these schools reject students with violent convictions,

“Prospective Students, Additional Admissions Forms, Police Record Check, visited December 24, 2007, http://www.st-aug.edu/prospective/pdfs/Pol ice_Record_Check.pdf. 35 American Association of Collegiate Registrars and Admissions Officers and Center for Community Alternatives Survey, accessed at http://www-local.legal.uillinois.edu/nacua10/presentations/9F_handout.pdf, 2. 36 Ibid, 2. 37 Ibid, 5, Table 8.

and only .4% of schools reject misdemeanor convictions. 38 The study also investigated how type of crime, arrest, and conviction affected an application (shown directly below, Table 10). 39

The timeline of criminal record revelation is not standard. Rarely, students are required to provide criminal background information before they apply. For many institutions, selfdisclosure through the Common Application, a program that aggregates and standardizes hundreds of applications to simplify the application process, is the norm. At others, schools are free to run criminal background checks after applications are submitted.40 These approaches are the hardest to study, as Admissions Committees are unlikely to publicize how they pursue these 38

Ibid 5, Table 8. Ibid, 7. 40 Ibid, 1. 39

checks. According to Dickerson, “if an applicant answers “no” to questions related to criminal and disciplinary history, the inquiry ends; if the applicant answers “yes,” then additional explanation or documentation is required. A majority of respondents to the AACRAO/CCA study indicated that they considered criminal-justice information in making admissions decision, but only a small percentage considered a criminal background as an automatic bar to admission.”41 It also worth noting that some schools necessitate criminal background checks for specific programs (which amount to 3.6% of 247 institutions). 4243 Many universities, hoping to balance efficiency and student privacy, look for specific red-flags which determine whether a student’s criminal past is investigated further, such as unexplained gaps between high school graduation and college application. 44 According to the AACRAO and CCA study, 15.4% of institutions will run background checks on “any applicants within distinct categories.”45Others require criminal background checks only for students living in dormitories. Meanwhile, international students often bypass the entire process.46 Some universities specifically inquire as to whether applicants are registered sex offenders. Often, these schools have instituted a codified ban on sex offenders taking courses with other students, without considering individual context. 47 It is perhaps important to note, here, the diversity of situations that can manifest in requiring an individual to register for a sex offender registry. Taking naked photos of oneself as a minor, visiting a prostitute, public urination, flashing one’s breasts, having consensual sex with a teenager, sleeping with a sibling, 41

Ibid, 2. “Criminal History Background Check Required and FBI Checks Authorized,” NDUS Academic Programs, August 31, 2011, http://www.ndus.edu/uploads/resources/1800/p-511-chbc-required--fbi-authorized-8-11.pdf. 43 American Association of Collegiate Registrars and Admissions Officers and Center for Community Alternatives Survey, 4, Table 7. 44 Ibid, 6. 45 Ibid, 2, Table 4. 46 Ibid, 8. 47 Ibid, 2. 42

and even embracing minors can all qualify as a sexual offense.48 Moreover, many sex offenders remain on registries long after their initial conviction. While it is unclear whether a student will become aware of a college application denial based on his or her criminal record, Dickerson identifies multiple relevant, potential legal concerns, some of which are of particular relevance to race.49 Consideration of criminal records often intersects with issues of arbitrary selection processes and discrimination. 50 He notes that “background-check policies that have a disparate impact on protected classes might be subject information related to arrests that did not lead to conviction have been shown to have a disparate impact on African Americans.”51 It is unlikely, however, that young minority students would have the legal ability or information regarding the rationale of their rejection to pursue a legal challenge to an admissions decision, leaving little room for redress. Still, courts have generally upheld the permissibility of university admissions criminal background checks, given their accordance with federal and state statutes. 52 The question of revealing information on juvenile records is both important and confusing. Various state laws can affect how juvenile records are processed by background checks. Dickerson adds that “Sealed and expunged records pose particular problems. ‘The federal government and nearly every state have enacted some type of statute providing for either the sealing, expungement, or limited access to juvenile records.’ The primary goal underlying these statutes is to allow offenders to start anew by removing the stigma associated with a

Erin Fuchs,”7 Surprising Things that could make you a Sex Offender,” Business Insider, October 9, 2013. Dickerson, 14. 50 Ibid, 15. 51 Ibid, 15. 52 Ibid, 15. 49

criminal record. But state laws differ regarding “the procedure, criteria, and intended effect of sealing juvenile records.”53 No state bars universities from asking about juvenile records, though “some states...prohibit questioning about expunged records, regardless of context.”54 These numerous difficulties of confusing state laws can deter applicants, and their attorneys and parents. Some universities ask for all criminal background information, despite expungement. Students are often confused as to whether omitting information regarding an expunged, sealed, or juvenile record on a college application qualifies as application misrepresentation or falsification.55 It is not difficult to imagine how, for minority and financially disadvantaged applicants, these questions and legal grey areas can be severely discouraging. Deterrence and the Box For many minority students, approaching and completing a college application poses unique challenges. Americans who have criminal histories are often stymied when they encounter college applications that ask if they have ever been convicted of a crime. The process, which often brings greater scrutiny to people who answer “yes,” drives away large numbers of people who present no danger to campus safety and are capable of succeeding academically. Financial barriers also play a significant role in dissuading underprivileged students from applying. It is difficult to empirically measure how much a question regarding history deters college applicants. Collecting data on applications never submitted involves heavy surveying, and presents several structural challenges. It is even harder to determine a student's reason for 53

Ibid, 17. Ibid, 17. 55 Ibid, 18. 54

not applying to a University. Moreover, in a country where some schools unilaterally reject students with records, while others actively encourage students with past criminal activity to apply, navigating the college application process can be especially confusing. Still, one organization has looked into the problem of college applicants from students with criminal records. According to the Center for Community Alternatives, nearly two-thirds of students who begin college applications and answer yes to having committed a felony will never finish.56 The study was broad, and looked at 60 State University of New York campuses. It is useful here to look at how criminal background checks deter job applications, a more widely studied topic. In November 2015, President Barack Obama directed federal agencies to “ban the box,” a campaign to remove questions regarding past criminal activity. 57 The question was reducing the flow of applications of potentially successful applicants who could thrive with a government job, despite having a criminal record. Financially, incarcerated students and students with criminal records have limited access to federal financial aid support.58 Despite significant public support for increased federal funding for higher education, Pell Grants have failed to keep up with rising tuition costs (though the number of recipients has almost doubled). 59 If an applicant is currently serving time in a federal or state institution, they are ineligible for a Federal Pell grant or federal student loans.60 According to the Department of the Education, “if you were convicted of a drug-related offense or if you are subject to an involuntary civil commitment for a sexual offense, your eligibility may 56

The New York Times Editorial Board. Gregory Korte, “Obama tells Federal Agencies to ‘ban-the-box’ on Federal Job Applications,” USA TODAY, November 3, 2015. 58 “Students with criminal convictions have limited eligibility for federal student aid,” Federal Student Aid, accessed December 21, 2015, https://studentaid.ed.gov/sa/eligibility/criminal-convictions#incarcerated. 59 Suzanne Mettler, “Degrees of Inequality: How the Politics of Higher education Sabotaged the American Dream” (New York: Basic Books, 2014), 40, 53. 60 Federal Student Aid. 57

be limited.”61At some institutions, students are asked to pay for their own criminal background checks. The University of North Carolina at Wilmington requires the ten per cent of students who raise red flags to pay approximately 20 dollars to fund their own check. It is important to contextualize the pure financial cost of a criminal record with the socioeconomic status of those likely to engage with the juvenile justice and prison system at an early age. These economic inequalities have a ripple effect. Students attending the richest ten percent of institutions pay only a fifth of every dollar spent on them, while the at the bottom ten percent, students pay almost 78 percent of funds invested on them. 62 The question also presents another inequity presented before students even answer the criminal past question. Some argue that because many schools only run background checks on students who admit to past criminal activity, the system punishes those who are forthright about their pasts. According to one survey, the most common way of getting criminal record information “was through questions on self-disclosure questions on their own applications or on the Common Application. Of the 144 institutions that reported collecting criminal justice information from all applicants, only ten said they used criminal background checks.” Though students who have lied on applications have been caught in the past, many likely graduate without their university ever discovering their criminal records. Applicants are put in a doublebind: students can be honest about their pasts, and face increasingly unlikely college acceptance chances, or lie and risk being caught for falsifying documents later while pursuing an undergraduate education. In this way, the self-disclosure approach is potentially problematic. For

61 62

Ibid. Mettler, 21.

instance, “a study at the University of Iowa’s law school found a significant percentage of students did not self-report criminal offenses,” according to Dickerson. 63 It is also possible that college advising and guidance access inequities affect how students with criminal records approach these questions. It is not hard to imagine how financial privilege would benefit students, even those with criminal records. Since the mid-1950s, the world of college admissions has pivoted. While a minority of students once pursued higher education, now over 65% of young people apply to college.64 With admissions standards becoming increasingly indiscernible, and the process growing more complicated, the benefit of a college advisor is immeasurable. According to the National Association for College Admissions Counseling, “repeated studies have found that improving counseling would have a significant impact on college access for low-income, rural, and urban students as well as students of color (Gandara and Bial 2001; King, 1996; McDonough, 2004; Plank and Jordan, 2001; Rosenbaum, Miller and Krei, 1996; Venezia et al., 2002).”65 Counselors can play a crucial role for students with criminal records; advisors can serve as guides through a logistically and emotionally grueling admissions process, while also playing a positive role in advocating for students to Admissions Committees, through recommendations. Of 125 institutions, according to the ACCRAO study, 87 have special requirements for students with criminal records. These regulations can include interviews, letters of explanation, letters of reference from probation and corrections officers, completion of community service, residency periods, extra documentation, meetings with school personnel, and official documents. Of 98 schools that allow students to address criminal record concerns during the admissions 63

Dickerson, 21. “The Institutionalization of Racial Profiling Policy: An Examination of Antiprofiling Policy Adoption Among Large Law Enforcement Agencies,” Crime & Delinquency February 2013, 59, accessed December 20, 2015, http://cad.sagepub.com/content/59/1/32.refs. 65 McDonough. 64

process, 61.1% require written or oral statements, 9.2% require official documentation, and 12.2 require something else. But when low-income schools, often overly-policed, are starved of the counseling services necessary, students with criminal records who aspire to an undergraduate education are denied access to one of the most influential individuals in the college admissions process. Problems Racial inequities persist beyond simply filling out the past criminal activity box, or students self-reporting interactions with the justice system. Current practice exacerbates racial biases, lacks paper contextualization, and includes procedural problems. Few admissions committees are trained to properly handle criminal records, and many lack a necessary understanding of the criminal justice system to evaluate candidates. Scott Jaschik investigated this issue in “Checking Up on Your Past,” an article in Inside Higher Education.66 Though the article focused on criminal background checks applied to university employee applications, the piece illuminated important issues of non-experts evaluating information from the criminal justice system. He explained that many schools struggle to properly use the information they receive from criminal background checks. While universities are eager to collect as much material as possible, administrators are usually unsure of how to use it. Ann Franke, a higher education legal risk advisor, has argued that, "Lots of schools are eager to collect the info but then not adept at using it...Who will evaluate the information and make decisions about individuals' suitability for employment or enrollment? What is the impact of a conviction more than 10 years old? How do you judge the relative severity of different types of crimes and plea agreements? I picked up a 66

Epstein.

glossary the other day of terms commonly used in criminal background checks. Do evaluators know the difference between community service and community supervision? Nolle prosequi and nolo contendere?"67 Just as university Human Resource departments struggle to handle the results of a criminal background check, Admissions Committees likely face similar challenges. According to the ACCRAO Study, of 150 institutions, 65.5% of admissions decisions involving criminal records are made only after a review of a special panel or committee, while 19.1% will only come to a decision after a background check. 68 25.5% of 247 schools make decisions using only standard admissions officers, while 74.7% will consult external actors for at least some applicants with criminal records. 37.5% of the institutions consult campus security, while 44% of institutions assembled a special committee. Other actors consulted tend to include housing directors, academic officers (such as a provost or dean), legal counsel, risk assessment personnel, and counseling and mental health staff. 69 When crime is understood in the context of race, stigma is exacerbated. Speaking on NPR, researchers noted that those who evaluate applications tend to have preconceived notions of African-Americans, as well as overestimate the age of Black individuals.70 One 2009 study found that compared to White Americans with criminal records, African-Americans with a clean slate and identical resumes were offered jobs at the same rate. While the issue of bias against Black applicants has not been considered in the context of undergraduate admissions committees (their secrecy would make such a study difficult), it is unlikely admissions officers are immune to common and deeply-ingrained social prejudices. 67

Ibid. American Association of Collegiate Registrars and Admissions Officers and Center for Community Alternatives Survey, 6, Table 9. 69 Ibid. 70 Michel Martin, “Fear of the Black Man: How Racial Bias Could Affect Crime, Labor Rates,” National Public Radio, March 30, 2015. 68

Devah Prager of Northwestern University understands this bias to be a result of pervasive “media images of Black criminals” and high rates of African-American incarceration. In his study analyzing the effect of race on job applications with noted criminal activity, he found that White applicants with criminal records received more favorable treatment than Black applicants with a clean slate. He explained: “Employers, already reluctant to hire Blacks, appear even more wary of Blacks with proven criminal involvement. Despite the fact that these testers [job applicants] were bright articulate college students with effective styles of self-presentation, the cursory review of entry-level applicants leaves little room for these qualities to be noticed. Instead, the employment barriers of minority status and criminal record are compounded, intensifying the stigma toward this group.”71 Problems are exacerbated by untrained admissions committees. According to the New York Times, “Many schools reacted by taking into account minor offenses like alcohol convictions by applicants, who are often asked to produce official rap sheets. These records can contain inaccurate information and show juvenile offenses that have been sealed by the courts, which means they should never be viewed publicly or used in such a process. Schools often fail to train their staff members in how to weigh criminal history information.”72 The procedural complications of background checks also warrant questioning the racial equity of considering criminal records. Some schools have now begun to rely on privatelycontracted criminal background checks, as the process became increasingly inexpensive after the September 11th attacks.73Recently, The Atlantic investigated and summarized several structural 71

Devah Prager, “The Mark of a Criminal Record,” American Journal of Sociology, Volume 108 Number 5 (March 2003), 943. 72 New York Times Editorial Board. 73 Michelle Natividad Rodriguez and Maurice Emsellem, “64 Million ‘Need Not Apply’: THE CASE FOR REFORMING CRIMINAL BACKGROUND CHECKS FOR EMPLOYMENT,” The National Employment Law Project, March 23, 2011.

challenges to routine background checks. First, these investigations frequently contain misinformation, through associating the wrong person based on name similarity, misreporting old offenses, and identifying misdemeanors as felonies, or vice versa.74 Because college applications have limited fluidity beyond the acceptance-denial binary, it is unclear whether students would ever have an opportunity to rectify a criminal background check mistake, or even understand the reason for their rejection. Moreover, criminal record databases are often incomplete. According to a 2013 National Employment Law Project report, roughly 50 percent of the FBI’s criminal history records are incomplete and fail to include information on the final disposition on an arrest, and agencies frequently do not fingerprint everyone they bring in. There is also no uniformity in applicant criminal background checks. According to the ACCRAO/CCA study, of 43 institutions, 20.9% used “a state-operated database that is accessible to the public,” 20.9% used a “single-state [method] requested from a law enforcement agency,” 20.9% used “multi-state [method] requested from a law enforcement agency,” 20.9% conducted a public information search, 16.3% checked an official state repository, and 9.3% relied on a private company. 75.9.3% had “other” methods and 18.6% did not know. 76 The process is problematic, and seems to lack future solvency, partly because it applies to so few students in the grand scheme of college admissions (though it is difficult to account for the number of students deterred from even applying). Through March 6 of the 2013-14 admissions cycle, 3,765 applicants using the Common Application answered they did have some form of criminal past (0.48 percent of applicants). The Director of Communications for the Common Application added that the number was annual incredibly small. The Common 74

Bovy. American Association of Collegiate Registrars and Admissions Officers and Center for Community Alternatives Survey, 3, Table 6. 76 Ibid, 3, Table 6. 75

Application representative posited that in the same way the SAT was potentially racist, criminal record inquiries could be perceived similarly. However, the college application provides an essay to explain disciplinary issues, and speculated that experiences with the criminal justice system could speak to an applicant’s unique experiences. While those thoughts are optimistic, and certainly echoed by racial equality advocates, structural barriers to minority applicants with criminal records likely overwhelms the chances that their pasts will be considered fairly. 77 Future Study and Alternative Policy In the spring of 2015, New York University announced that it would no longer have its admissions officers review student criminal history.78 Instead, a special, separate committee was formed to review records, in hopes to remove any potential for bias on the part of admissions officers. The Admissions committee would only be notified if an applicant’s record demonstrated potential for being a danger to his or her future classmates.79 The University of North Carolina system pursues a similar process, as explained by Dickerson. In October 2006, the University of North Carolina System, drawing heavily from the task force’s recommendations, adopted a detailed “Regulation on Student Applicant Background Checks.” The Regulation provides that certain checks, such as crossreferencing enrollment at other UNC campuses, be conducted for all admitted applicants or all admitted applicants who indicate...intent to attend. With limited exceptions, the Regulation also provides that background checks should be conducted when triggers or “red flags” are raised. If a background check is positive, the Regulation provides guidance about how admissions officers should evaluate the data and emphasizes the importance of attempting to determine whether the applicant poses “a significant threat to campus safety.” Policies like these represent important steps towards improving admissions processing of applications with criminal record applications. 77

Jasmine Garsd, “NYU Changes Its Policy On Reviewing Applicants' Criminal Background,” National Public Radio, May 26, 2015. 78 Ibid. 79 Ibid.

Other procedures could also alleviate the racialized effects of criminal record questions. Simple bias training in other realms of higher education have shown promise, and might be useful in the context of criminal records and admissions officers, though it requires further study. 80

Criminal record information could be revealed to admissions officers after a student’s

application has already been considered, to avoid biasing the evaluation of the application. Another solution might be to compound criminal backgrounds as part of a more dynamic approach to affirmative-action, where experience with the criminal justice system is seen as another way of attaining an experientially diverse class. One of the easiest ways to ameliorate the problem of potential racialization of criminal records is to improve transparency. Student ignorance as to how their criminal records are addressed and handled by various institutions likely increases deterrence and applicant pessimism. Creating a clear process for students to both explain past criminal activity and to understand how that information might affect their application reduces the stigma of an application for many of the country’s most disadvantaged high school students. Moreover, it is unfair, perhaps, to require students with little knowledge of the legal nuances of the criminal justice system to implicitly understand what should and should not be revealed on a college application. Moreover, advertising positive role models of students who attended college with criminal pasts could likely decrease application deterrence. Another approach could be to improve the clarity and specificity of the common application question. Rather than asking about crime, inquiries could only ask about violent felonies or sex offenses. For instance, the Georgia College and State University specifies, “Have you ever been convicted of a crime other than a traffic offense, or are any criminal charges now 80

Mark E. Engberg, “Improving Intergroup Relations in Higher Education: A Critical Examination of the Influence of Educational Interventions on Racial Bias,” Review of Educational Research, Vol. 74, No. 4, (Winter, 2004), 474.

pending against you?”81 Improving the clarity of questions would reduce the chance of discouraging students with minor misdemeanor records and who are unlikely to recommit. Moreover, it would create a space for institutional preference, and reduce the cost of criminal background checks for universities (as the number of red-flagged applications would be filtered and reduced). Transparency also involves informing students of the reason of their rejection, should it be based on a criminal background check. According to the ACCRAO study, only 47% of 247 schools reported that applicants are informed of the reason for their denial, while a little less than half of 144 schools provide a mechanism for an appealing a decision.82 Full transparency regarding the reason for rejection would allow students to more accurately appeal a decision and contextualize and explain their criminal record. Conclusion There is an unfortunate discrepancy between the students criminal record inquiries seek to weed out and the applicants that are actually discouraged. While these questions are aimed at sex-offenders and violent criminals, they ultimately target minority applicants. These barriers then play into pre-existing complicated and unfair structural barriers for many African-American students in secondary and higher educational institutions. Thus, it is more than likely that criminal past inquiries exacerbate inequality, and do little to protect student safety. This paper’s analysis is not all-encompassing, but rather identifies a context for how racial inequity is likely magnified. Future evaluation would be challenging, and require a detailed plan to collect admissions data. Colleges would need to reveal clear processes for how 81

“Ga. Coll. & State Univ., Undergraduate Application for Admission at 10,” http://www.gcsu.edu/admissions/undergraduate/PDF/Undergrad_appl.pdf (last visited Dec. 24, 2007). 82 American Association of Collegiate Registrars and Admissions Officers and Center for Community Alternatives, 9, Table 14.

they currently evaluate criminal records. Moreover, a more expansive study would need to account for problems of measuring student application deterrence. Nevertheless, improving the approach to criminal record is advisable from a utilitarian and social perspective. Individuals with criminal records who apply and are accepted to college are significantly less likely to reoffend, and more likely to become active and contributing members of their communities. Moreover, they carry important experiences and narratives that are both useful and necessary to the diversity of both university and societal discourse.