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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.”

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.

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.

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This content was originally published here.

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