Othering, Belonging, And Structural Marginalization Racialization
Othering, Belonging, andStructural AL SUPPORTjohn a. powellMay 17, 2017Alyson Reimer, Stephen Menendian
Race & Law: Individuals & IntentThe Law is fundamentally individualistic The conception of racial discrimination under law is also individualistic Under law, racism is an event that occurs between discrete individualswith a focus on the psychological motivation of the prejudicial actor. Traditional Discrimination Model (3 parts) Victim/perpetrator Intent (purpose or motive) Decision-maker self awarenessCredit: Stephen Menendian, “Innovating Inclusion: Advancing Racial Equity in an era of Structural Racism.”
Race & Life: Systems & Outcomes But must of racial and other forms ofinequity are caused by systems andstructures more than individual “badapples.” These practices, cultural norms andinstitutional arrangements help createand maintain (unfair) racializedoutcomes Structural racialization refers to the waysin which the joint operation ofinstitutions produce racialized outcomes In this analysis, outcomes mattermore than intentCredit: Stephen Menendian, “Innovating Inclusion: Advancing Racial Equity in an era of Structural Racism.”
Race & Life, continued The law has, at times, recognized this reality. Disparate Impact claims do not requireintent, and recognize how inter-institutionalarrangements can produce disparateoutcomes. See Griggs & ICP v. Texas DHCA. International law – including theConvention on the Elimination of RacialDiscrimination (CERD) – which the US hassigned & ratified – takes a view that intent isnot necessary for a remedy.In order to improve the law, it is crucial to understand the roles of structuresand systems in perpetuating racialized outcomes and better understand themind.
Understanding Structures as SystemsWe are all situated within structures but not evenly. Structures interact inways that produce a differential in outcome. Structures unevenly distributebenefits and burdens to various groups. Institutions can operate jointly toproduce negative outcomes.Physical StructuresOutcomesSocial StructuresCultural Structures
Systems, Structures and SituatednessNot only are peoplesituated differently withregard to institutions:people are situateddifferently with regardto infrastructure.People are impactedby the relationshipsbetween institutionsand systems butpeople also impactthese relationshipsand can change thestructure of thesystem.
Place Matters Decades of empirical research validate& illustrate a powerful series ofrelationships between family residenceand an individual’s projected lifechances along a number of scales. The geographically varying set ofinstitutions, systems and marketsdramatically influence a person’sachieved socioeconomic status.Together, these institutions, systemsand markets constitute the“opportunity structure.”
Opportunity Structures:Space, Place, & Life Outcomes Opportunity structures are the web of influences beyond our individualcontrol that enhance and constrain our ability to succeed and excel Life changes are shaped by opportunity structures, and those structures arejust as important, if not more so, than the choices that individuals make.Indeed they effect our choices.
Structural Racialization Structural Racism: This is a claim that these opportunity structures areracialized, meaning that they produce and reinforce racial advantagesand disadvantages. Structural Racialization: This is a term that acknowledges how race andracialized outcome can be produce without individual intentional acts.Structural racialization leads to marginalization (race, gender, ability,etc.) and blocked access to opportunity Although invidious discrimination persists, structural exclusion is theunderlying problem. E.g., not enough teachers of color in the “pipeline” or enoughworkers of “color” in the labor market.Credit: Stephen Menendian, “Innovating Inclusion: Advancing Racial Equity in an era of Structural Racism.”
Structural Racialization, continued 1. Not dependent on individual racialization2. Beyond the practices and procedures with any one institution3. Way in which various institutions interact and arrange themselves4. Can produce both predictable and unpredictabe unjust outcomesthat are cumulative
Introducing Systems ThinkingWe need to think about the ways in which the institutions thatmediate opportunity are arranged – systems thinking.11
Introducing Systems Thinking, continued.Example: A bird in a cageExamining one wire cannotexplain why a bird cannot fly.But multiple wires, arrangedin specific ways, reinforceeach other and trap the bird.Now think of the wires asinteractive and dynamic12
A More Complex UnderstandingOne Dimensional:One variable explains differentialoutcomesMultidimensional:The individual bars workingtogether to cage the bird to an understanding ofprocesses and relationships13
Complex Change ProcessesRelationships are neitherstatic nor discreteThink in loops, not justcause & effectDisparities may bereinforcingGains in one area areoften undone over timebecause of structures –not intent
Wealth Segregation& Opportunity
Spatial Racismin SE Michigan
Structural Racialization and Othering?Structural Racialization strongly related to Othering.The problem of Othering is the problem of the 21st century.
“Othering,” defined We define othering as aset of processes thatconsciously onunconsciously see aperson or group as notbelonging, different andoften less than in someimportant way. This viewgets reflected in structuresand social resources.
Dimensions of otheringDimensions include but are not limited to, sex, religion, race, ethnicity,socioeconomic status, disability, sexual orientation, and skin tone.
Why do we engage in othering?Individuals, institutions, and structuresengage in othering for many reasons, bothintentionally and unintentionally. The lawfocuses primarily on intentional forms ofothering, largely missing the majority ofothering caused by unintentional factors like: Fear & anxiety categorizing stereotyping implicit bias in-group preference racial anxiety confirmation bias stereotype threat
The role of the unconscious mindThe human brain processes 11 millionbytes of information per second Consciously aware of any 40 of these, atbest Only 2% of emotional cognition isavailable to us consciously Messages can be framed to speak to ourunconscious The process of Othering occurs in ourunconscious network: this can lead toracial, ethnic, or religious biasSee David Brooks, The Social Animal (2011)
The role of the unconscious mind,continued The subconscious mind usesthree processes to make sense ofthe millions of bits of informationthat we perceive1.Sorting into categories2.Creating associations betweenthings3.Filling in the gaps when weonly receive partial information
SchemasThese three processes together add up to schemas – the “frames” throughwhich our brains help us understand and navigate the world. Schemas help us organize information into broader categories.Meanings associated with those category are then activated. Schemas are social. They exist in our environment, language, andmetaphors The unconscious is not just an individual or internal phenomenon. Itis socially habituated both reading and shaping environment.
Face Priming
Face Priming (Slow Motion)
Paternalistic stereotypeAdmirationlow status, not competitivehigh status, not competitiveContemptuous stereotypeEnvious stereotypelow status, competitivehigh status, competitiveSusan Fiske’s Stereotype Content Model
Confirmation biasConfirmation Bias:We judge behavior differentlydepending upon the stereotypesor negative associations.
Implicit Bias & Juror Decision MakingResearch provides powerful evidence of the existence ofimplicit racial bias and their impact in the courtroom.(Levingston & Young, 2010; Kang et al., 2012).Even individuals– including judges, lawyers, and jurors– whoare motivated to be objective are vulnerable to the impact ofimplicit bias. (Smith & Levinson, 2011).Implicit bias can shape decisions that may contribute to thedisconcerting racial disparities we see in the criminal justicesystem. (Levinson & Young, 2010).Credit: Rachel Godsil & Song Richardson; The Perception Institute
Implicit Bias & Juror Decision Making,continued Implicit bias can shape decisions that may contribute to thedisconcerting racial disparities we see in the criminal justicesystem. (Levinson & Young, 2010).However, substantial evidence suggests that the impact ofimplicit bias on juror decision making can be prevented.Credit: Rachel Godsil & Song Richardson; The Perception Institute
Stereotypes & biases:cognitively, we cannot avoid them! Intelligence is associational andemotional: we cannot live withoutschemas Having biases and stereotypes,however, do not make us racist: itmakes us human Working for equity and justicerequires engaging at three levels Structural The conscious The unconsciousStructuralConsciousSubconscious
Race in America: Where Are We Now? Racial attitudes have improvedsignificantly over time We have moved from segregationinto a period of racialegalitarianism Racial minorities report that they are still affected by racial prejudice the black Nationally,unemployment rate is twice as highas the white rate Interracial relationships are becoming more acceptable More elected black officialsA black male born in 2001 has a 32% chance of spending time inprison at some point in his life; aHispanic male has a 17% chance;and a while male has a 6% chance
Acting on Our ValuesOur values andstructures impacteach other.It’s not enough tohave the right values.We need the rightstructures.“We need to make our structures reflect our best values.”
Values vs. RealityOUR VALUES All men are created equal With liberty and justice for all Government of the people, by thepeople, for the people, shall notperish from the earth One person, one voteWarning: Values may not apply unless youare White, Male, Heterosexual, Christian, andRich
Values vs. Reality
The Solution is Structural InclusionStructural inclusion is a process by which institutions work in concert witheach other to both remove barriers to inclusion, as well as developorganizational structures, policies, practices, and procedures that affirmativelyfurther widespread inclusion and actively promote belonging. Here are somebasic examples:Removing Barriers: Make votingtimes and locations more accessible.Actively Promote: HUD’s AFFHRule, (the duty to affirmativelyfurther fair housing.)
Examples of Structural Inclusion in the LawIn response to nearly a century-long history of voter suppression anddiscrimination, Congress passed the Voting Rights Act of 1965. Two key provisions:– Section 2: Prohibits “practices or procedures” that discriminate onthe basis of race.– Section 5: A prophylactic measure that requires coveredjurisdictions to obtain preclearance from federal authorities beforeany change to voting processes and procedures take effect.
Examples of Structural Inclusion in the LawThe Americans with Disabilities Act is a prime example of structural inclusionin the law.Like the VRA, it’s purpose is two-fold: to prohibit discrimination based ondisability, and prevent exclusionary discrimination by requiring affirmativeaction on the part of agencies, institutions, and employers to create accessiblespaces and arrangements for persons with disabilities.
Mechanisms of Structural InclusionTargeted Universalism, Equity 2.0 What is Targeted Universalism?– A framework for achieving universal goals through targetedmeans.o An intervention strategy.o Repairs social cleavages not just distribution. A communications strategy.o Employs strategic communications regarding universalgoals and targeted approaches to inform the allocation ofresources and policy approaches.
Types of dUniversalism Universal programs alone are not truly universal, and areoften based on a non-universal standard.– Example: social security. Able-bodied white malesworking outside the home full-time for pay. Targeted programs alone are not desirable because theyappear to show favoritism toward a certain group, thusstigmatizing them. Targeted universalism recognizes racial disparities, whileacknowledging their presence within a larger inequitable,institutional framework. Set a benchmark for all.
Targeted Universalism, 5 Steps1.2.3.4.5.Articulate a particular goal based upon a robust understanding and analysis ofthe problem at hand.Assess difference of general population from universal goal.Assess particular geographies and population segments divergence from goal.Assess barriers to achieving the goal for each group/geography.Craft targeted processes to each group to reach universal goal.
Envisioning Alternatives Targeted Universalism creates auniversal goal and targets strategiesbased on where and how people aresituated. Equity 1.0 focuses on closing gaps. See the difference?Image credit: Family Futures42
How can we achieve racial and ethnicfairness in the courts?Knowing that structural inclusion,(specifically, racial and ethnicfairness in the courts), is our goal,what strategies and methods shouldwe employ to achieve our goal?The next portion of this presentationwill examine what works and whatdoesn't work with regards toimproving and achieving racial andethnic fairness.
ColorblindnessColorblindness: Whileit seems logical thatpreventing people from“noticing” or talkingabout race wouldpreventracism/racialization,research shows theopposite – race is morelikely to affect ourdecision making whenit’s unacknowledged.Credit: 3 ½ Minutes, Ten Bullets, Discussion Guide, The Perception Institute
Asking questions about race during voir dire.A defendant has aconstitutional right toask questions aboutrace during voir dire incertain circumstances.-SCOTUS case Turner v. Murrayheld that defendants in capitalcases involving interracial crimehave a right under the EightAmendment to voir dire jurorsabout racial bias.
Asking questions about race during voir dire.Voir dire is being used as a promising way of educating jurorsabout implicit bias.There are two approaches 1) open ended asking questions such as“what was your most significant encounter with a person fromanother race?” or explaining the concept of implicit bias to themand asking for their reaction and thoughts on the concept; or 2)more specific questions aimed at eliciting feedback that wouldexpose implicit bias. Recent SCOTUS cases Pena-Rodriguez v. Colorado and Buckv. Davis allow questions about racial bias.
Workplace trainings on Implicit BiasWorkplace trainings on implicit bias have become increasingly popular andcommon place. But, do they work? The answer is that it depends Psychology professor and Director of the Prejudice Lab at University ofWisconsin, Patricia Devine, has spent the last few years developing, testing,and refining trainings that do work.
Workplace trainings on Implicit Bias“Trying to ignore differences makes discrimination worse.Humans see age and gender and skin color: That’s vision. Humanshave associations about these categories: That’s culture. Andhuman’s use these associations to make judgements: That’s habitsomething you can engage in without noticing.” – Patricia DevineDevine’s successful workshops have focused on breaking theseharmful habits. To break a habit, you have to be aware of it, bemotivated to change it, and have a strategy for replacing badhabits with new innocuous habits.
Workshops that work.Devine’s successful workshop is asemi-interactive two hour training.The session walks participantsthrough the science of how peoplecan and do act in biased wayswithout realizing it, engagesparticipants in discussion of howthese ideas show up in / relate totheir personal lives, and offersideas for substitute habits andstereotypes to replace harmfulones.
Strategies that work for changing yourown habits of the mind Treat bias for what it is- a behavior to be overcome- not as merely acondition that can be adjusted. Practice, practice, practice. Look for situational reasons for a person’s behavior, rather thanletting unconscious stereotypes about a person’s group drive yourdecision making. Seek out and interact with people who belong to groups unlike yourown. Positive intergroup contact is a powerful way to change ourstereotypes and bad habits of the mind. Question the narratives in the news and media, they are oftenincredibly biased.
Social and Institutional Strategies that work. When engaging with people indialogue on race, avoid blameand personal attacks. Whenpeople feel attacked, they shutdown. Frame bias as normal, butunacceptable. Engage with institutions, not justindividuals. Aim to reinforceideas within broaderorganizations.
4 Ideas for addressing bias in the courts1. Make trainings on implicit bias mandatory.2. Engage potential jurors in discussion on race, bias, and theirpersonal lives.3. Remove barriers to belonging AND practice intentional andaffirmative strategies that promote belonging.4. Utilize structural interventions AS WELL AS individualinterventions.
4 More ideas for addressing bias in thecourts1. Make courtroom personnel reflect the composition of thecommunity.2. Implement affirmative rules for jury pool composition.3. Replace the focus on intent with a focus on impact, e.g. disparateimpact claims.4. Collect, keep, and analyze data.
4 Things you can start doing immediately1.Continue to educateyourself on race andbias.2.Engage in discussionsabout race and bias withother people.3.Commit to inclusion bysigning onto our newSocial Compact.4.Become a change agent.
A New Social Compact
Becoming a Change AgentRecognize limitations: The legal framing of a claim has the potential to restrict inquiry into the natureand depth of a problem Traditional non-discrimination rule enforcement models encourage lawyers andorganizations to see issues as potential legal claims rather than as problems inneed of systemic resolution. Fears of liability may induce firms/institutions to adopt strategies that reduce theshort term risk of legal exposure rather than strategies that address the underlyingproblem Institutional lawyers and general counsel may be more institutionallyconservative than warranted by law. Are you?Credit: Stephen Menendian, “Innovating Inclusion: Advancing Racial Equity in an era of Structural Racism.”
Public Law Even within government institutions, attorneys can serve as change agents.We can work with community groups and in courts to advance institutionalchange. There may be a need for institutional coordination in situations in whichauthority is dispersed among many different institutions. As advocates, we need to be prepared to make multi-institutional argumentsand demonstrate the complex layers of institutional behavior as courts reachliability decisions and consider possible remedies Attorneys also need to be cognizant of the ways in which our work maysupport or undermine efforts to dismantle racialized hierarchies.Credit: Stephen Menendian, “Innovating Inclusion: Advancing Racial Equity in an era of Structural Racism.”
Closing thoughts & remarks
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Face Priming
Face Priming (Slow Motion)
Envisioning Alternatives Targeted Universalism creates auniversal goal and targets strategiesbased on where and how people aresituated. Equity 1.0 focuses on closing gaps. See the difference?Image credit: Family Futures62
But what if therewas no fence?
Targeted Universalism & Equity 2.0Image credit: Family Futures65
Paternalistic stereotypeAdmirationlow status, not competitivehigh status, not competitiveContemptuous stereotypeEnvious stereotypelow status, competitivehigh status, competitiveSusan Fiske’s Stereotype Content Model
Structural racialization leads to marginalization (race, gender, ability, etc.) and blocked access to opportunity Although invidious discrimination persists, structural exclusion is the underlying problem. E.g., not enough teachers of color in the "pipeline" or enough workers of "color"in the labor market. Structural Racialization
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