Timely New Book on Racial Reconciliation Initiative

This post reviews a wonderful new book, the “new edition” of America’s Peacemakers:  The Community Relations Service and Civil Rights by Bertram Levine and Grande Lum, published by the University of Missouri Press.  Levine, who died in 2006, published the first edition covering events up to 1990 in Part I.  Lum discusses events since then, in Part II.  Here’s a flyer for the book with a code for a 40% discount.

Levine was an associate director of the U.S. Department of Justice’s Community Relations Service (CRS).  Grande was the CRS Director from 2012-2016 and is familiar to many of us as the former director of Hastings’s Center for Negotiation and Dispute Resolution (CNDR), and Ohio State’s Divided Community Project.  He now is Provost and Vice President of Academic Affairs at Menlo College in Atherton, CA, near Palo Alto.  Here’s a photo of him with President Obama in 2014 at the Department of Justice.

This post concludes with a discussion of the appropriate role of litigation, conciliation, and political processes to remedy major social injustices.

Here’s the video of Grande talking about the book at the Hastings CNDR event, Working on Community-Wide Reconciliation, on October 14.

Considering the increased focus on racial injustice in the wake of the killings of George Floyd and many other Black people, faculty might invite your students to read this post and attend Grande’s talk.

Overview of the Book

Here’s the publisher’s description of the book:

America’s Peacemakers: The Community Relations Service and Civil Rights tells the behind-the-scenes story of a small federal agency that made a big difference in civil rights conflicts over the last half century.  In this second edition of Resolving Racial Conflict: The Community Relations Service and Civil Rights, 1964–1989, Grande Lum continues Bertram Levine’s excellent scholarship, expanding the narrative to consider the history of the Community Relations Service (CRS) of the U.S. Department of Justice over the course of the last three decades.  That the Trump administration has sought to eliminate CRS gives this book increased urgency and relevance.

Covered in this expanded edition are the post–9/11 efforts of the CRS to prevent violence and hate crimes against those perceived as Middle Eastern.  Also discussed are the cross-border Elián González custody dispute and the notable tragedies of Trayvon Martin and Michael Brown, both of which brought police interaction with communities of color back into the spotlight.

The 2009 Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act substantially altered CRS’s jurisdiction, which began to focus on gender, gender identity, religion, sexual orientation, and disability in addition to race, color, and national origin.  Lum’s documentation of this expanded jurisdiction provides insight into the progression of civil rights.  The ongoing story of the Community Relations Service is a crucial component of the national narrative on civil rights and conflict resolution.  This new edition will be highly informative to all readers and useful to professionals and academics in the civil rights, dispute resolution, domestic and international peacemaking, and law enforcement-community relations fields.

Running Toward Trouble

This inspiring book makes me proud to be part of our field.  It tells stories of many unsung heroes who ran toward – not away – from explosive social conflicts for more than half a century.  They were our social first-responders who jumped on planes as soon as they heard of volatile situations, sometimes putting themselves in harm’s way.

They intervened in thousands of conflicts.  Some were highly publicized and lasted for months.  Most interventions were much shorter and received much less attention.  Generally, conciliators got no attention, reflecting a culture of behind-the-scenes work where publicity would be inappropriate and counterproductive.  Now that these cases have long been resolved, America’s Peacemakers can analyze interactions that necessarily were confidential when they occurred.

This book is a case study at four levels.  It provides detailed descriptions of (1) many specific cases, (2) categories of conflicts, (3)  techniques used, and (4) the evolution of the organization as a whole.  The descriptions of cases illustrate the other levels of analysis.

The book devotes separate chapters dealing with different categories of problems including “eruptions” in cities, police-minority relations, conflicts about public education, conflicts involving minorities other than Blacks, coverage of minorities in the media, conflicts involving neo-Nazis, and hatred related to sexual orientation, gender identity, religion, or disability.

CRS Techniques

CRS uses the term “conciliation” to include all its conflict resolution services including “facilitation, mediation, training, and consulting through technical assistance.”  After an initial period of seat-of-the-pants interventions, CRS employees reflected on their techniques.  These included “establishing a ‘federal presence’;  employing fact-finding and assessment;  evoking peer pressure;  activating higher authority;  energizing civic responsibility;  and motivating the power elite.”  They developed guidance about

how to enter a community, on request or on CRS’s own motion;  strategies for fact finding;  when and how to use or avoid use of the media;  how to level the playing field for negotiation between parties of disparate strength;  when to involve third parties;  when and how to call on other federal resources;  tactics for using an “end run” to circumvent an impasse;  when, where, and how to engage the power elite;  how to move name-calling and harangue to genuine communication, to dialogue, to negotiation.

After a short time, CRS devoted three-quarters of its capacity to conflict prevention:

The mission was to help in the creation and strengthening of minority institutions and the strengthening of minority influence in majority enterprises.  Some called it minority empowerment.  This endeavor was largely catalytic:  brokering alliances between Party A and Party B, with Party A being a minority entity familiar with a specific need but short on expertise and financial resources and Party B being a white institution (corporation, foundation, university) capable of supplying both.  The objectives of these alliances – some of which were successful and some of which never left the ground – covered a wide range of institutions and activities. These included: minority economic development corporations, inner city credit unions, tenant management associations, housing cooperatives, and public housing security agencies.  Some community groups were schooled in federal communications law.  They learned how to challenge the licenses of radio and television stations when they came up for periodic renewal required by the Federal Communications Commission and use this as a weapon to influence better minority employment and programming arrangements.  Minority consortiums found technical assistance to help them bid on television cable franchises.  Minority groups began to challenge and change the nature of police practices.  The result was a strengthening of minority police officer associations, community support of police minority recruitment programs, special minority training for police promotional exams, and community challenges to culturally biased civil service examinations.

CRS sometimes conducted formal mediations, though CRS used mediation sparingly because generally it is five times as expensive as more typical conciliations:

In contrast to the wide-ranging, flexible forms of intervention permitted by conciliation, the activities called for in mediation were prescribed, disciplined, and tightly choreographed.  Mediation consisted of formal crosstable negotiations between the conflicting parties, presided over by a trained mediator, following specific rules of procedure and with the intention of producing a binding written agreement for the solution of specific predetermined issues.

Dispute System Design and Evaluation

The first chapter provides a fascinating account about how CRS was enacted as part of the 1964 Civil Rights Act – and how it almost didn’t make it into the final bill.  It portrays Lyndon Johnson as a critically important, long-time proponent of CRS during his service as senator, vice president, and president.  As a savvy Southern politician, he was keenly aware of what would and would not be possible to enact.

In CRS’s early days, some people were concerned whether conciliation would be an appropriate method of dealing with civil rights issues.  Some top officials “mistrusted conciliated solutions that weren’t bound to verdicts and court orders. They questioned how the government could be conciliatory with respect to those things the Constitution required.  They feared that CRS might pursue peace rather than justice.” (Footnote omitted).  Some in the agency had similar concerns:

In the early years, some CRS workers were troubled by what they saw as an ethical dilemma.  In a conflict between civil rights advocates, who demanded change, and those who resisted change, how could you be a neutral mediator if, deep down, you believed in racial justice?  In time they recognized that this was not a valid dilemma.  Both parties expected CRS to be an advocate for compliance with the law.  Neutrality had nothing to do with the mediator’s feelings about civil rights; it had only to do with the peacemaker’s objectivity, honesty, and fairness in guiding the process so that both parties in a conflict would be able to negotiate the best deal they could consistent with the law.  Those CRS staff members who longed to be agents of change had to get their satisfaction from knowing that almost all settlements represented movement away from the status quo and toward a situation of greater equality.

The final chapter provides an assessment of the agency’s work:

[T]he federal troubleshooters, the hand-holders, the community problem solvers could not have done their job for more than half a century without having some impact on history.  A review of the record finds presumptive evidence that had there not been a CRS, many changes that took place would have occurred more slowly, many would have been worked out less well, and some might never have occurred.  We have seen how CRS, in responding over decades to thousands of community conflicts involving police use of deadly force, became a catalyst for improved police practice in hundreds of cities.  The resulting national change in standards has undoubtedly helped to bring about a qualitative change in how police relate to minorities.  We have also seen that, without CRS assistance to thousands of school districts, the process of school desegregation would have been a far more violent chapter in American history than it has, in fact, turned out to be.  In addition, CRS helped to sound the reveille that awakened the broadcast and print media to the need for opening economic opportunities to minorities and for a fuller and fairer portrayal of minorities in American life.

This chapter also describes how the agency navigated the treacherous political environment in the federal government and formalized its process for managing and evaluating its workflow.

Should Brown v. Board of Education Have Been Mediated?

Some people, including some in our field, have asked this rhetorical question implying that it is inappropriate to negotiate or mediate cases involving significant legal or social issues.

In Yale Law Professor Owen Fiss’s (in)famous critique, Against Settlement, he makes this explicit, writing that, in Brown, “the judicial power is used to eradicate the caste structure.”  This statement was extremely naive when it was published in 1984, and it is even more so today.

America’s Peacemakers demonstrates that the idea that cases like Brown shouldn’t be settled is based on at least three problematic assumptions:  First, negotiation, mediation, and adjudication are mutually exclusive ways of handling problems.  Second, Brown clearly advanced the cause of civil rights protection.  Third, adjudication is the best method of producing legal doctrine and social progress.

In many CRS cases – and all sorts of other cases – negotiation and litigation simultaneously proceed in parallel tracks.  This is normal and often quite desirable.  For example, America’s Peacemakers provides a detailed account of the Skokie case where a group of neo-Nazis threatened to march through Skokie, Illinois, where many Holocaust survivors lived.  State and local officials tried to prevent the neo-Nazis from marching and adopted clearly unconstitutional measures.  The ACLU represented the neo-Nazis and obtained court decisions upholding their First Amendment rights.  CRS negotiated with stakeholders throughout the litigation.   CRS reached accommodations that protected the neo-Nazis’ rights who marched in Chicago, avoided violent confrontations with many counter-protesters, and protected Skokie residents from having the offensive march in their community.  This case also illustrates that adjudication will not necessarily produce doctrine or results to the liking of Warren Court admirers.

Although Brown provided an inspiring statement of doctrine and principle, it was counter-productive in many ways.  As described in America’s Peacemakers:

Local refusal to implement the Supreme Court’s 1954 school desegregation requirements had produced firestorms of community controversy throughout the nation for two decades.  Throughout the South, under the banner of “massive resistance,” state and local governments, private and religious organizations, newspapers, and broadcast media linked arms in a die-hard defense of racially separate schooling.  The region’s leading citizens mobilized for resistance through newly formed White Citizens Councils, while many of the hoi polloi rallied behind the banners of a resurgent Ku Klux Klan, which again lighted the fires of terror and intimidation.  In many jurisdictions private academies were formed for the education of white children, and some school districts even closed their schools, leaving Black children and some whites with no education whatsoever, while most white families managed some private arrangement.  Some states pursued the spurious legal doctrine of interposition in a vain attempt to shield local districts from the reach of federal courts.

Indeed, proponents of CRS legislation had these experiences very much in mind as they correctly anticipated resistance to the 1964 Civil Rights Act.  As expected, there was tremendous conflict in the wake of its enactment.  However, the destructive consequences would have been much worse if the CRS had not intervened.

In The Hollow Hope: Can Courts Bring About Social Change?, political scientist Gerald Rosenberg found that the Brown decision had very little causal effect, directly or indirectly, in the deep South (though it appeared to have some effect in border states).  Schools in the deep South generally remained segregated until the mid- to late-1960s, when a combination of other forces led to dramatic increases in school integration.  These other forces included civil rights protests, the 1964 Civil Rights Act, active federal enforcement of the new law, financial incentives for compliance, increased support and/or reduced opposition of state and local leaders, and threats by businesses to leave cities with segregated schools.  CRS facilitated employment of some of these forces.

More generally, Jeffrey R. Seul’s excellent article, Settling Significant Cases, demonstrates that it can be quite appropriate to negotiate significant cases.

It is tempting to expect courts, especially the US Supreme Court, to produce wise social policies to solve fundamental political and social conflicts.  This desire is understandable considering the increased polarization in our society and the frequent inability of the political branches of government to develop such policies.  In some cases, judicial decisions are necessary to resolve such issues.

In general, however, it is better if major policies come from Congress, the president, and the normal political processes, particularly if they can produce broad public consensus.  Those resolutions are more likely to be perceived as legitimate, survive efforts to reverse the policies, and be effective in promoting the policy goals.

Moving Forward

At this moment, in the heat of the 2020 election campaign and controversial Supreme Court nomination process, the prospect of building broad consensus seems hard to imagine.  However, without some reconciliation, it is hard to imagine a way out of our downward spiral of hyper-partisan warfare.

America’s Peacemakers paints a picture of CRS as a combination of emergency room doctor and social worker for our social ills.  Its efforts – as well as those promoted by the Divided Community Project – are essential.  But insufficient.  They can provide a social band-aid, but not a cure.  For that, we need to come to grips with systemic injustices.

In February 1968, the Kerner Commission issued a report detailing problems of systemic racial injustice and recommending major strategies to remedy these problems.  There has been significant progress since then, but too many problems they documented are too familiar in today’s world.  Here’s part of Wikipedia’s summary:

The report berated federal and state governments for failed housing, education and social-service policies.  The report also aimed some of its sharpest criticism at the media.  “The press has too long basked in a white world looking out of it, if at all, with white men’s eyes and white perspective.”

The report’s best known passage warned:  “Our nation is moving toward two societies, one black, one white — separate and unequal.”  The report was a strong indictment of white America:  “What white Americans have never fully understood — but what the Negro can never forget — is that white society is deeply implicated in the ghetto.  White institutions created it, white institutions maintain it, and white society condones it.”  (Footnote omitted)

Its results suggested that one main cause of urban violence was white racism and suggested that white America bore much of the responsibility for black rioting and rebellion.  It called to create new jobs, construct new housing, and put a stop to de facto segregation in order to wipe out the destructive ghetto environment.  In order to do so, the report recommended for government programs to provide needed services, to hire more diverse and sensitive police forces and, most notably, to invest billions in housing programs aimed at breaking up residential segregation.

Unfortunately, the Kerner Commission’s recommendations weren’t implemented due to political turmoil and lack of funding related to the American War in Viet Nam.  In November 1968, Richard Nixon was elected president, and redressing systemic injustice was not on his agenda.  Indeed, his “Southern strategy” and “law and order” policies exacerbated racial tensions.

Today, we would benefit from national, state, and local efforts like the Kerner Commission to understand our history from the perspective of all relevant stakeholder groups and to address our deep-seated problems.  Even if that happens – and especially if it doesn’t – we will need the CRS to help us manage them.

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