All posts by Marc Brenman

ADR ADVISOR Marc Brenman served as Exec. Director of the Washington State Human Rights Commission and as Senior Policy Advisor for Civil Rights at the U.S. Dept. of Transportation. He held several positions with the Office for Civil Rights, U.S. Dept. of Education, served on the Diversity Standards Task Force of the Society for Human Resources Management and ASTM. He's on the Board of Advisors of The City Project/Los Angeles which focuses on health disparities. He also served on the President's Commission on Asian-Americans and Pacific Islanders.

U.S. Indian Boarding School Report – by Marc Brenman

In April 2022, the U.S. Department of the Interior issued the Federal Indian Boarding School Initiative Investigative Report. The report was probably prompted by several year’s ago Canadian report on First Peoples boarding schools, and by the appointment of the first Native American Secretary of the Interior. The Canadian report was issues by the National Centre for Truth and Reconciliation in 2015. 

The U.S. report has much interesting information on cultural eradication. Native American children were forced from their families and into schools that were little better than prisons, beginning in the early years of the American Republic. Esteemed Founding Fathers like Thomas Jefferson and Benjamin Franklin expressed anti-Indian beliefs. Interestingly, these sentiments were sometimes expressed in confidential memos to Congress, as if it was known even then that the actions were morally reprehensible. 

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Anti-abortion and the Descent into Fascism – by Marc Brenman

What can be said about the anticipated anti-abortion decision from the US Supreme Court that hasn’t been said already? From a civil rights and social justice perspective, the reasoning in Justice Alito’s draft opinion is dangerous. It presages and exemplifies anti-democratic tendencies already present and vigorous on the American right. There are many “rights” that are not mentioned explicitly in the Constitution. Even though Alito’s draft says the decision should not be used as precedent in restricting other rights, the effort is already underway to do so. These include privacy, LGBT rights, the rights of people with disabilities, and the education of non-citizen children in public schools. And of course, the rights of women, educational rights, and the right to housing, to eat, and to live in a clean environment. Although we hear about it relatively little, the Equal Rights Amendment has never been added to the Constitution. However, there are many laws from Congress on protecting women, people with disabilities, and the environment. Women’s health advocates want Congress to pass similar laws protecting abortion. This is unlikely to occur, with the close division between the parties in the Senate, and the likely loss of Democratic House seats in the mid-term election. In addition, the Supreme Court can overturn acts of Congress if they believe the laws are not rooted in the Constitution. 

Nothing stops a conservative Supreme Court from declaring that statutes that provide rights not mentioned in the Constitution are not constitutional. Even school integration, required by Brown v. Board of Education in 1954, can be declared bad law. The Supreme Court has already pulled the teeth of the Voting Rights Act, making voter suppression easier, and already provided religious rights mentioned nowhere in the Constitution. In an act of supreme hypocrisy, the Court has enabled Christian believers, organizations, and corporations to impose their beliefs on others. The Constitution, in its mention of the separation of church and state, nowhere permits such imposition. And of course the Court has protected and enhanced only extreme Christian beliefs, leaving out the many other religions and their belief sets. Another example is gun rights, where the Constitution refers to a “well-regulated militia,” but the federal courts studiously ignore this phrase, and let unregulated shooters run rampant. 

Although the accusation has perhaps been overused, these tendencies of the rightwing are very similar to the tenets of fascism. When democracy is eroded, the vacancy invites in fascism, anarchy, libertarianism or communism. Social media does sometimes feel like anarchy, and with Elon Musk’s takeover of Twitter, it will probably feel more like libertarianism. We’re already seeing the victory of libertarianism in the legalization and decriminalization of marijuana growing and use. The Supreme Court, if it was consistent, could do some good in doing away with some bad old court decisions, such as the one from 1911 that declared that corporations are people. But we cannot expect consistency from this Court. They are ideologically driven. 

The descent into fascism is part of a larger trend toward the manifestation of evil in society. Elements include too many guns, lying, hypocrisy, conspiracy thinking, hate, misogyny, xenophobia, antisemitism, homophobia, ablism, and racism. Trump, the Antichrist, manifests all of these. His followers enable and support him. We are observing in the Ukraine what can happen when a regime like communism is replaced with fascism—genocide, mass murder, crimes against humanity. And recall that Trump worships Putin. 

What prevents that from happening in the United States? Already we’ve heard from some scholars that civil war could occur in the US. Recall that we had a civil war here, in which the nominally losing side fought to preserve slavery and the benefits it drew from slavery. But the Confederacy did not really lose. Rather, it morphed into domestic terrorism and guerilla warfare, through the KKK, White Citizens Councils, Jim Crow laws, lynching, redlining, etc. Now those with nostalgia for slavery wish to enslave women, LGBT people, and immigrants. The enablers include those who vote against their self-interest, such as the 52% of white women who voted for Trump, the half of people with disabilities who vote Republican, and the increasing number of Hispanic men who vote Republican. We who have tried to educate people about civil rights and social justice have made some very bad mistakes, including telling people they should not just vote their self-interest. Unfortunately, we were listened to, and many people today vote their conscience of conspiracy and their warped moral judgments. A marginally more moral and ethical case can be made for anti-abortion if those on the right were to guarantee healthcare, education, housing, and food for all children. And to clamp down hard on men who rape, who commit incest, who do not support the children they have been instrumental into bringing into the world, who do not support the women they have forced into childbearing. 

What is to be done? Marching and demonstrating don’t help much. Signing petitions has almost no effect. Only a few actions will help much, including voting for liberal and progressive Democrats all up and down the ballot, and contributing money to their campaigns. Some actions are almost guaranteed not to help, such as racial, sexual, and LGBT essentialism. Manifestations of this include the idea that unless you look like me and have my preferences, I don’t want you as an ally. We see other “shoot yourself in the foot” phenomena such as the belief among some progressives that merit does not exist. We see extreme manifestations of rights such as insisting that transgender minors can use the bathroom of their choice, the idea of “neurodiversity,” and the imposition of required ethnic studies programs in public schools while the pandemic has set educational attendance and achievement back by two years. In an ideal world, all these concepts might be marginally good, but we don’t live in an ideal world. We live in a world under extreme threat and real and present danger. The movement against the right to abortion and women’s health care is yet another area of discrimination against women, added to existing disparities such as lack of pay comparable to men, the glass ceiling in employment, and lack of pay for work that mostly women provide, such as daycare. 

Awhile back, I was researching a project on how to draw some Trump voters back toward the political center. I asked the question, and added a second one, roughly should progressives and liberals negotiate and/or compromise with those on the right? I received such angry feedback from progressives that I stopped asking the second question. If no compromise is possible, then we may well end up with two Americas—one a democracy and one a fascist empire. In addition to what we are already seeing as many women flee to states where abortion is legal and available, we may see “democracy refugees” of African-Americans making a new journey to the North. 

A Primer on Race Identification in America – by Marc Brenman

Advisory Board - Marc Brenman
ADR Advisor Marc Brenman

There is much discussion in the United States of what race is, how it can be and is used for good and ill, and how it can be used permissibly from a legal perspective of “environmental justice” and “race neutrality” as a political initiative. These discussions can become quite heated. This article is an attempt to “disambiguate” the discussion, as the post-modern literary critics say.

There are various uses of race:

1. To Define Protected Classes

As a statement on protected classes, as in Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, and national origin by recipients of federal financial assistance. This includes all public schools, almost all colleges and universities, all public transit providers, most police departments, and a great many other infrastructure entities. “Protected” means the particular focus of nondiscrimination laws. However, all races and national origins are covered by federal civil rights laws.

2. To Indicate or Screen

As an “indicator,” that is, helping to identify where issues of particular groups need addressing. Examples include use in Environmental Justice Screens and Geographic Information System (GIS) overlays used by some states such as California, and by the U.S. Environmental Protection Agency. These are visual representations of data.

3. To Analyze Survey Results

For statistical analysis purposes, like in a survey where at the end it asks you your race. Providing this information is voluntary on your part.

4. To Identify Oneself as Belonging to a Particular Group.

For individual self-identification. A person is free to identify in any way they choose, but when such identification comes to public attention, the person may be criticized if the group chosen appears “wrong” or inappropriate or chosen for a craven reason. An example is the criticism of Senator Elizabeth Warren for once stating on an application form that she was Native American. She was heavily criticized, in part because some critics thought she had entered this information in order to obtain an advantage in a hiring process. In defense, she noted that she does have Native American ancestors. Some of the critics felt that she was not sufficiently Native American. The issue of Native American identity is particularly fraught, because each tribe decides its own membership criteria, although at some points in the past the U.S. Government has encouraged use of “blood quanta” or percent of Nation American “blood,” close to what we might today call DNA or genetic markers. This also resonates with determinations of Blackness by racist governments in the past, where the “one drop rule” sometimes applied. This meant that if a person had even one Black ancestor, they were considered Black for discrimination and exclusion purposes. Today, with an increasing number and percent of people being multi-racial, the choice of an identifier has become more rather than less difficult.

5. To Act as a Part of Intersectionality

Many people are not one “thing.” There are issues of intersectionality, where a person belongs to various groups, and can suffer increased adverse effect from that belonging. Examples include being a Black non-binary person with a disability.

6. To Engage in Traditional Naming Conventions

The use of “old-fashioned” words can appear in the names of some traditional organizations, such as the National Association for the Advancement of Colored People (NAACP) and the NAACP/Legal Defense Fund. The groups maintain these names for traditional and historical reasons. Other names are misnomers, such as the Nation of Islam, which is not Islamic, but is rather a separatist African-American group.

7. To Show what a Group is Interested in

Use of racialized terms can be used as an indicator of the primary interest of an organization, as in Black Students Unions in colleges and universities. Even this is subject to controversy as some such groups seek university recognition as an official organization on campus. But university regulations usually require that officially recognized groups be nondiscriminatory. So what happens when a white person wants to join the Black Student Union? This can result in difficulties and controversies on campus if that person is denied membership.

8. To Fulfill the Constitutional Requirement for a Census

For Census purposes, information on race, self-identified, is used to gain information about groups within an entire population. For example, such information was formerly used in Voting Rights Act cases, to help determine majority-minority congressional districts and for pre-clearance purposes of state redistricting plans, until these elements were struck down by the Supreme Court. Previously, a state had to obtain the permission of the Department of Justice before institution changes in congressional districts.

9. To Focus Services and Benefits

Race is used to help provide focused services and benefits to a particular demographic group. If the particular group is designated by race, and governments are providing the service, then the method may have to go through the process of strict scrutiny as described below.

10. To Provide Medical and Health Services

Race is used in medical studies, for research, treatment, and to show disparities. The first is controversial because of tragedies like the Tuskegee Study, where African-American men were left untreated for syphilis, and the second because of debates about the efficacy of certain medicines disaggregated by the race of the patient. It has been shown that certain blood types are more prevalent among certain races, and that some genetic disorders appear more commonly among certain racial/ethnic/religious groups, such as Tay-Sachs Disease among Ashkenazi Jews. But see the discussion below of the controversy surrounding whether Jews are a racial/ethnic group. The third area is less controversial, because of well-known diseases like sickle cell, which appears among African-Americans at a much higher rate than among other races. There are many other health disparities that affect people of color more adversely than whites. Some are not related to income or wealth, such as infant and mother mortality among African-American women, which has low correlation with economic class.

11. To Conduct Modern DNA Testing for Individuals

Today it is very popular for people to test themselves for their genetic makeup, such as “23 and Me.” A cheek swab is sent into a lab, which purports to report back to the person what race and ethnicity they are, sometimes with startling and incorrect specificity, such as showing origins in a particular tribe in Africa. In these self-administered DNA tests, the results come back showing what percent a person is of various “races.” Many of these tests are not scientifically verified, since there are no academically accepted markers of race.

12. To Target Outreach and Recruiting in Employment

Some organizations go to specific places and organizations seeking to diversity their employment profile. For example, organizations can recruit at Historically Black Colleges and Universities (HBCUs) without incurring legal jeopardy.

13. To Conduct Affirmative Action in Higher Education Admissions

As one factor among many, race and ethnicity can be used in higher education affirmative action admissions programs. This is currently being challenged in the US Supreme Court, primarily by some Asian-American groups, which feel that their children should be more highly represented at prestigious colleges such as Harvard.

14, To Prove Disparate Impact Discrimination

Race is used as one element to show disparate impact discrimination. Disparate impact is disproportionate adverse effects on one protected class even when the nominal rules are neutral. It is distinct from intentional discrimination, where treating certain racial and ethnic groups badly is done on purpose, due to hate, bias, and prejudice.

15. To Settle Legal Claims

Race sometimes appears as an element of a settlement agreement or court order following a trial where alleged discrimination against a class of people is the issue, as in the old employment cases in some fire and police departments, where some settlements or court orders required an African-American to be hired for every white hired, after proof was offered of intentional race discrimination. The allegations, as proven in court, were that the fire and police departments consciously did not hire African-Americans.

16. To Carry Out Illegal and/or Invidious Discrimination

Race was used as a means for showing and carrying out bias, as in Jim Crow laws and de jure (by law) segregation. These are illegal on their face. Jim Crow laws were in primarily Southern states between the end of slavery in 1865 and the successes of the Civil Rights Movement, to separate Blacks from Whites and deny goods, services, and rights to Blacks. De jure segregation was providing separate facilities to Blacks and whites, such as schools, on the basis of race. This was found to be illegal in the famous Brown v. Board of Education decision in 1954. However, it suffered from lack of implementation in many places primarily in the South, until the 1970’s. Today, resegregation of schools is occurring, not by law, but by implementation of poor policy, as in allowing charter schools to pick their own curricula, locations, and students.

17. To Create Economic Opportunities for Disadvantaged Business Enterprises

Race is used as an absolute filter or preference or exclusionary factor in such programs to establish eligibility. An example is disadvantaged business enterprise programs (DBE), sometimes called Minority Business Enterprise, where an owner being African-American, Hispanic, Asian-American, or Native American constitutes an eligibility factor and a presumptive factor that a business controlled by such individuals is eligible for contractual set-asides. These programs were established to provide more economic development to minority-owned businesses, which weren’t getting government contracts. However, even with these, there is a knock-out factor requiring less than a certain net worth of the company. That is to say, a high economic status would make such a business ineligible, even if controlled by a presumptively disadvantaged person.

18. To Fulfill Constitutional Tests

Of the various categories listed above, only the filtering and preference factors are Constitutionally suspect and subject to strict scrutiny. Strict scrutiny is a Constitutional test requiring a showing of compelling government interest, a history of discrimination, a narrowly tailored remedy, and attempts to fulfill the governmental interest without racially-based measures. This is because race is considered an invidious category under the Constitution, which has assumptions for the desirability of non-race based criteria for governmental interventions. Strict scrutiny is the highest standard for examining government programs. The burden is on the program provider to justify the use of race-based criteria. Certain exclusions can also be illegal on their face, such as holding diversity training only for whites, or math classes only for Blacks.

19. To Address the Social Construction of Race

Note that “race” is not an absolute, since academics often refer to it as “socially constructed.” That is to say, people invent the concept of race. There is no a priori concept of race floating around in the universe, like gravity or entropy or the speed of light. There also are groups that may or may not be considered a “race,” such as Jews, where there is a long and protracted debate on the subject, confused recently by an Executive Order issued under Donald Trump, which moved the needle of government considerations toward considering Jews a race. However, Jews are of every race, color, and nationality. The issue is today still very controversial, as when the comedian Whoopi Goldberg recently was criticized strongly for saying Jews are not a race. One of the criticism of her statement was the idea that the Nazis in the Holocaust did consider Jews a race. One might think it absurd to use the views of mass genocidal murderers to identify oneself. Nevertheless, the effect of racial identification is often felt on innocent people due to its use by hateful enemies. We often have no choice but to be identified by our enemies.

20. To Differentiate Issues of Color

There also are issues of color, which are sometimes race-related, and sometimes not. For example, many older people from India consider themselves Aryan, even though their skin may appear to be non-white. The concept of “Aryan” is an ancient one that was brought to the fore by the Nazis. Aryans were considered the archetypal “white” people. There also are people who look “white,” but who identify as Black. Once in awhile, such identifications present controversies, as in the woman in Spokane, Washington, who identified as Black and was active in the local NAACP chapter, but whose family was clearly and historically white. She was the biological offspring of this family, and not adopted.

21. To Identify as Multi-Racial and being Forced to Identify

There are also multi-racial people. There used to be a tradition for some people in the US to “pass” as white, in order to obtain the privileges of the dominant group. In the 1920’s in Virginia, the First Peoples of Virginia were forced to identify on a State census as white or Black. Many chose white because of the perceived (and real) privilege accruing to whites in Virginia at that time. This had negative downstream consequences because it meant that there were no federally recognized tribes in Virginia until about 15 years ago.

22. To Distinguish Caste from Race

Yet another related category is caste, recently made popular for discussion in the US in Isabelle Wilkerson’s best selling book. Caste has elements of socioeconomics and class, as well as race, in Wilkerson’s analysis. The concept and use of caste originated in India, where it is today nominally illegal but continues to exist, be practiced, and have adverse effects on “low caste” people. In India and the UK, caste is not related to race, though there are indigenous people in India who suffer from both race and caste discrimination.

23. To Accomplish Bad Goals without using Racial Words

There are also proxy measures for race, such as factors used in voter suppression in some states, and “dog whistles,” where a person or group does not refer to race explicitly, but uses terms widely known to be disparaging, such as “welfare queen.”

Conclusion

This list and discussion have shown that there are many ways that race as a word, term, and concept is used in the United States. Some are legal, some illegal, some serve good purposes, some are neutral, and some serve bad purposes. If we are careful, we can at least have discussions based on common understandings. This might help to lower the emotional tone of discussions involving race. While this discussion is not meant to be exhaustive because the topic is essentially endless and changing daily, it points out some complexities in discussing race from a public policy perspective. It will help us in our work and life in society if we are clear about what we mean.

Environmental Justice: Apocalypse Now? – by Marc Brenman

The topic of environmental justice (EJ) has become popular. We find it expressed in President Biden’s equity program, for example. I’ve been working with a group of advocates on the topic for about twelve years. Before that I helped write one of the first EJ programs for a federal agency while at the US Department of Transportation in the late 1980’s. At the time I knew nothing about the issue. I mentioned my ignorance to Bob Bullard, one of the fathers of the concept. He told me to read his books. Now I’ve become an expert, with books and essays, including one on the aftermath of Hurricane Katrina in New Orleans in 2005.

EJ has been overtaken by events, and today is sometimes called “environmental racism.” We now recognize the climate as a problem, and not as benign Mother Nature. EJ is the confluence of environmental issues with civil rights, resulting in health disparities for many people of color and low income people. They tend to live in lower marshy areas that are more subject to ocean level rise, flooding, and extreme storms. Even today, many lack air conditioning and are therefore more endangered by extreme heat. Many farmworkers live in rural towns in the West under extreme drought conditions. African-Americans own cars at the lowest level of any demographic group in the United States, and hence can’t escape in an evacuation order. Many African-Americans in Southern and Border states live near hog and chicken waste ponds and power stations and dumps that spew noxious fumes.

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How I’m Trying to Make a Positive Difference – by Marc Brenman

I’m trying to make a positive difference in American political life by investigating whether and how it’s possible to draw some Trump voters toward the political center. In November 2020, about 48% of American voters voted for Trump. Voting for Trump is a proxy measure for rightwing feelings and beliefs. Many of these beliefs are extreme. None contribute to the American Dream of fairness, equity, opportunity, equality, and compassion, or the Good Society. Do we want to live in a permanently ideologically divided country, with the risk of civil war?
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The Future: Coming Trends – by Marc Brenman

We don’t know yet what the future will bring. We never know what the future will bring. Analysts often say it’s a mistake to predict the future by extrapolating the trends of the past. The world is too complicated a place. With the current pandemic, it’s been “up jump the Devil.” But never in our lifetimes has a Devil occupied the White House. Will we forget an important lesson we should have learned—that Evil exists, and walks among us? I’ve said for years that many people believe in good, but deny that evil exists also. Yet there can be no good without evil.

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Good Works and Repair of the World- by Marc Brenman

A couple of mornings before Thanksgiving (or Indigenous Heritage Day, depending on how politically correct or “woke” you are) I got a call from a Native American friend who has run into a patch of bad luck. He initiated a conversation on the political situation in the United States, and how he was glad that he could go to sleep and not be afraid of waking up to more craziness by President Trump. My first thought was “It’s a new morning in America.” Only later did I remember that this was a slogan used by Ronald Reagan in his 1984 Presidential campaign.

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Corporate Responses to Diversity Challenges – by Marc Brenman

In the aftermath of tragic police violence and subsequent street protests, many US corporations and other organizations have issued ritualistic and formulaic statements declaring their support for Black Lives Matter and decrying racism. What does this mean, and what will they do to follow through? Many of these companies already have diversity programs and are already required to comply with state and federal nondiscrimination laws and regulations. A number of states, cities, and counties have broader non-discrimination prohibitions than the federal government, for example, to include LGBTQ status.

The larger companies employ Chief Diversity Officers (CDOs) or someone with a different title but similar responsibilities. The vast majority of people in these positions are African-American females. Some are male, and some are Hispanic. A few are white females. Almost none of the CDOs are members of the executive teams of these companies. Diversity does not occupy a place similar to core missions, such as production, operations, marketing/sales/ advertising/branding, finance, legal, logistics, supply chain, health and safety, etc. Only a relatively small percent of companies report their diversity demographics publicly, and almost none disaggregate the figures by level of employment, pay grade, responsibility, etc.

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Should we Defund the Police? – by Marc Brenman

As I write, the current demonstrations against police violence have produced one good slogan: Defund the Police. Is this something we really want to do? About 64% of Americans own houses. When we need police help and call them, do we want them to not come because of a lack of personnel, equipment, or communications? Slogans don’t make good public policy, and are rarely efficacious. They can rile people up in call and response.

The alternative to policing is anarchy and chaos. As a people, we are not good at self-regulation. Do we want to surrender to vigilantes, private security forces, bodyguards, high walls, high noon, “stand your ground,” and Second Amendment advocates who claim to be standing between us and tyranny but who are advocates for their liberty and freedom only? I can imagine classic strategic planning for police, with substantial community input, to decide what to prioritize, what to stop doing, and what to do more of. And classic organizational development, to deal with the organizational culture problem obviously present in too many police departments of the supervisory chain of command losing control of the blue suits, or never establishing control over them in the first place. And classic human resources efforts, to hire the right people—ones without authoritarian traits, high control needs, or racism, and with cultural competency and thoughtful, Constitutionally based responses.

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Reducing Police Violence – by Marc Brenman

It’s a very hard thing to figure out what to do about reducing police violence in the US, especially reducing and eliminating racist violence. These issues keep coming to our attention largely because of undue and inappropriate police violence against unarmed African-American men. Recording of videos on cellphones and subsequent distribution on social media have made these tragedies much more public and apparent. These tragedies have been occurring for a very long time. Progress has been spotty and inadequate.

In classic strategic planning, we talk about what to stop doing, what to do more of, and what to do less of. There appear to be issues of organizational culture, where a substantial number of police departments are disconnected from morals, ethics, humanity, cultural competence, and the surrounding communities. Clearly, if an organization is being overtly discriminatory, they should stop doing that. But most of us aren’t overtly discriminatory, so our connection to the larger society must be producing discriminatory effects. The issues are complicated by the fact of about 19,000 largely independent police departments in the US. Continue reading Reducing Police Violence – by Marc Brenman