Although the increasing responsiveness of the Court of Justice of the European Union (the ‘ECJ’) jurisprudence to western Member States’ concerns regarding Central and Eastern European (‘CEE’) nationals’ mobility has garnered academic attention, ECJ discourse has not been scrutinised for how it approaches the CEE region or CEE movers. Applying postcolonial theory, this article seeks to fill this gap and to explore whether there are any indications that ECJ discourse is in line with the historical western-centric inferiorisation of the CEE region. A critical discourse analysis of a set of ECJ judgments and corresponding Advocate General opinions pertaining to CEE nationals illustrates not only how the ECJ adopts numerous discursive strategies to maintain its authority, but also how it tends to prioritise values of the western Member States, while overlooking interests of CEE movers. Its one-sided approach is further reinforced by referring to irrelevant facts and negative assumptions to create an image of CEE nationals as socially and economically inferior to westerners, as not belonging to the proper EU polity and as not quite deserving of EU law’s protections. By silencing CEE nationals’ voices, while disregarding the background of east/west socio-economic and political power differentials and precariousness experienced by many CEE workers in the west, such racialising discourse normalises ethnicity- and class-based stereotypes. These findings also help to contextualise both EU and western policies targeting CEE movers and evidence of their unequal outcomes in the west, and are in line with today’s nuanced expressions of racisms. By illustrating the ECJ’s role in addressing values pertinent to mobile CEE individuals, this study facilitates a fuller appreciation of the ECJ’s power in shaping and reflecting western-centric EU identity and policies. Engaging with such issues will not only allow us to better appreciate—and question—the ECJ’s legitimacy, but might also facilitate a better understanding of power dynamics within the EU. This study also makes significant theoretical and methodological contributions. It expands (and complicates) the application of postcolonial theory to contemporary intra-EU processes, while illustrating the usefulness of applying critical discourse analysis to exploring differentiation, exclusion, subordination and power within legal language.

As a founding principle of the EU, a prerequisite for the exercise of most other EU rights, and a key component of EU integration, the freedom of movement right has carried great political and practical importance. It has also been one of the most contested, politically abused, and poorly understood of EU rights, particularly in the context of mobility of nationals from Central and Eastern Europe (“CEE”). Notably, misinformation regarding the free movement right that was spread by the media, politicians, and the public helped to propel both the UK’s renegotiation of its EU membership and, ultimately, its exit from the Union. Other EU-15 State politicians have also been perpetuating myths about freedom of movement and immigration. Scholars addressing free movement, even in the context of Brexit, have devoted little attention to this right’s conceptualization as it has evolved over time, to how EU branches other than the European Court of Justice have approached it, or to how CEE nationals have been positioned and impacted by mobility’s legal framework. Although some critical scholars have critiqued derogations from the free movement right imposed on CEE nationals in the aftermath of their States’ accession to the EU, they have also failed to situate their analysis within a broader look at the creation and application of the legal framework behind mobility. CEE movers in the UK and other EU-15 States have tended to be racialized by the media, politicians, and the public – that is, described and approached by individuals and institutions in ways which denigrate or assume their inferiority. Hence, several tenets of critical race theory (“CRT”) and critical whiteness studies (“CWS”) that expound the relationship between race, power, society, and law are helpful to the analysis of their mobility. This Article argues that the freedom of movement right has always been limited, and that CEE nationals’ mobility rights have been especially restricted by both EU statutes and case law – and further impeded by restrictive Member State policies. Ultimately, the right of free movement has been created and consistently applied in a way as to benefit EU-15 States’ economies, while approaching CEE movers as mere units of production. This broader understanding of this right is necessary to make Brexit negotiations more meaningful, and debates about intra-EU movers in other EU-15 States more responsible. Moreover, the discussion here also critiques CRT and CWS for overlooking the significance of immigrant background and of white minority ethnicities in the conceptualization and experience of equality. I suggest that both theoretical frameworks need to not only look beyond the black-white binary, but also consider contemporary transnational power dynamics to arrive at a more flexible and nuanced picture of micro-level racial and ethnic power relations in today’s globalized world.

With no anti-discrimination legislation, strong Confucian-inspired in-group mentality, and a belief in their mono-ethnicity, Japan is marred by a culture of widespread discrimination. Although it has ratified the International Convention for the Elimination of All Forms of Racial Discrimination, and guarantees equality in its Constitution, all those who differ from the closely-circumscribed norm are excluded culturally, and legally. Whites’ position in this milieu is complicated because of the West’s unique historical relationship with Japan, and due to the perception of white global dominance. Although admired and arguably privileged over other outsiders, Caucasians are nevertheless mocked and discriminated against - openly, frequently, and with impunity. The concept of racism, as funneled through critical race theory’s (“CRT”) reliance on homogeneous white privilege, lacks dialectic space to address their experiences of discrimination. Yet both CRT analytical tools and desire for praxis, and Confucian respect for human dignity have much to offer in expanding discrimination discourse, exposing the concept of racism as Western-centric, supporting equality, and giving voice to victims who do not fit the victim norm. In the process, this enlarged theoretical and analytical space can help alleviate Japan’s labor shortage, prompting multi-faceted reforms, and achieving true Confucian harmony and democracy. I propose to create new discourse, situated within expanded CRT and whiteness studies, while providing analytical coverage to a group of Caucasians rarely mentioned in popular or scholarly literature. Definitions of “the other” and “white privilege” need to move away from monolithic notions of race and power, which are white-centric and racist themselves.

Social and cultural capital enable students to more easily access and take advantage of higher education. By lacking access to the social capital of the dominant group, immigrants do not benefit from education on equal terms with those who belong to the norm. High school participation, college preparation, and involvement in college reflect and amplify access to social capital, particularly at elite universities. Colleges’ definition of “merit” in admissions decisions replicates inequalities in access to social capital. While scholars have noted how racial minorities and students of low socioeconomic status are disadvantaged in the educational system, they have overlooked how immigrant status per se limits access to social capital and its benefits. Affirmative-action discussions also tend to be racialized, even if they intersect with immigration-policy debates. In theory, admission preferences are based on the assumption that those not belonging to the dominant group are less effective in the competition for resources, such as education. At its core, this assumption should be defined to include any deficiency in access to social capital. By recontextualizing affirmative-action rhetoric in this way, all immigrants’ challenges can be more easily recognized. At the same time, all immigrants’ contribution to diversity -- the only justification for affirmative-action remaining after the recent decision in Fisher v. University of Texas -- could be more fully recognized, while increasing intra-group diversity. The intersection of whiteness and outsider jurisprudence, in the context of access to social capital, provides a better understanding of how intra-group diversity can be achieved in education, and how we can create a more integrated society, paving way for a more meaningful democracy.

Contemporary European immigrants face unique socio-cultural and legal concerns that go beyond issues of race, class, national origins, or accent discrimination. These concerns are not adequately addressed by laws protecting groups based on their national-origins or ancestries. Scholarship and public discussions are silent on this topic. As a result, European-born Americans fall through the cracks in critical legal theory, not fitting into any of the traditional analytical frameworks. No labels apply to them. Like their predecessors a century ago, they are expected to assimilate easily. At the same time, they are (incorrectly) assumed to always, and uniformly benefit from access to white privilege. In reality, European-born Americans oscillate between being visible as foreigners, and fading into the invisible “white” norm. A closer analysis of their culturally-constructed identity — as illustrated by looking at employment discrimination — exposes the artificiality of the concept of “whiteness.” A more accurate understanding of European immigrants’ experience also calls for a more holistic and consistent definition and application of “national origins” protections under Title VII, and of “race”-based safeguards under section 1981. Looking more critically at the European immigrant experience points to the benefits of separating the concept of foreignness from the study of “race,” which often gets conflated with notions of national-origin and ethnicity.