An Open Letter to the Michigan Civil Rights Commission on Their Report: “Systemic Racism Through the Lens of Flint” (Black Agenda Report)

by Tom Stephens

There were some positive aspects to the report on the poisoning of Flint, Michigan. But, the commission left the responsible officials off the hook, as if “racism” exists without “racists.” The Governor and his men knew exactly what they were doing to the people of Flint, just as they knew what they were doing to the people of Detroit, through their Emergency Financial Manager regimes. “There’s nothing unconscious about their racist evil.”

An Open Letter to the Michigan Civil Rights Commission on Their Report: “Systemic Racism Through the Lens of Flint”

by Tom Stephens

“It blatantly let top policy makers who are responsible for poisoning Flint off the hook for what they did and why.”

First, the Good News

There’s much to applaud in the Michigan Civil Rights Commission’s recent report (February 17, 2017) regarding the deep historical and social origins of the now-notorious Flint water poisoning catastrophe.

This includes:

1. Exposing the historical story of implicit bias, structural and systemic racialization behind this atrocity adds official recognition to the critical dynamics, particularly the “cumulative and compounding effects” of all discrimination and environmental racism (P. 82), far beyond and much better than the simplistic and limiting notions of individuals’ intentional, subjective racial prejudice that undermine our civil rights laws. This is a notable achievement for an official government body -- especially if it’s followed by policy actions to prevent repetition of such abuses in the future. I don’t want to be misinterpreted as dismissing this positive aspect of the commission’s work;

2. Calls for specific reforms of the emergency manager statutes to avoid future cases of destruction of local democracy, accountability and the rule of law at the local level are welcome; and

3. The Commission’s acknowledgement of its own failure to intervene on a timely basis for the benefit of the People of Flint, and their vow to do better in the future, displays sincere reflection and commitment. It is appreciated.

I don’t want to minimize these good things in the report. But as a lifelong Michigander who submitted written testimony to the commission that, although uncited, is very much in line with their ultimate findings,[ii] I feel morally compelled to say that I am seriously dissatisfied with the report.

In brief, I believe it misapplies complex, historical analysis of flexible and only partially developed environmental justice concepts, and especially the distinction between implicit and intentional racism, to blatantly let top policy makers who are responsible for poisoning Flint off the hook for what they did and why. Let me explain.

Racism without Racists, Poisoning without Culpability

The commission’s “implicit bias” narrative, based on the brilliant work of native-born Detroiter and leading critical race scholar john a. powell, reflects a sophisticated, contemporary and deeply insightful view of the way that racialization works to oppress People of color (and, as the commission notes, to injure Whites as well). But that welcome perspective should never be employed as a shield for government officials whose implementation of state policies and actions causes harm. The commission stumbles badly on this vital point of accountability.

The key flaw in the commission’s reasoning runs throughout the report. It is perhaps most evident in the commission’s express adoption of the word “racism,” but avoidance of the term “racist” in their report, because of “a lack of consensus on the common definition of the [latter] term.” (P. 21) Much later, near the end of its report, the Commission states that “Racial disparities are too often sustained by structures and systems that repeat patterns of exclusion.” (P. 127) Unfortunately, the commission’s misapplication of implicit bias theory, and structural and strategic racialization, to excuse policy makers whose unconscious prejudices, ideological biases and plain incompetence and arrogance poisoned Flint, effectively sustains and repeats those very patterns of exclusion. This is completely unacceptable.

Excusing Official Misconduct

The commissions “racism without racists” construct takes back with one hand whatever positive effect it achieved with the other, via their exhaustive discussion of implicit bias, structural and strategic racialization. While these concepts offer much promise in understanding the attitudes, actions and conflicts experienced by People in our communities, applying them to the acts of policy makers responsible for poisoning Flint is a cop out.

The Governor and his men claimed, in their campaigns for office and in their “emergency management” policies, policies they re-enacted even after being rejected by public referendum, that they knew what they were doing. (As Michigan’s great public citizen and Governor Frank Murphy observed in the era of the great depression: Sacrificing all issues for the sake of balancing the budget is fanaticism. That’s what they were doing.) Implicit bias, structural and strategic racialization should never be allowed as a defense to such official misconduct. The commission’s failure to recognize this fundamental distinction between ordinary People’s implicit personal social attitudes, and the awful consequences of official actions by policy makers, converts their report in substantial degree from a needed exposé into an unjust, structurally racist cover-up.

“Implicit bias, structural and strategic racialization should never be allowed as a defense to such official misconduct.”

The commission’s inability to place well-deserved blame where it lies with state government leaders is even further exemplified by their rather shocking statement: “We have neither seen nor heard anything that would lead us to believe that anyone in government permitted something they believed to be harmful to continue because of the racial makeup of Flint.” (P. 12) One must ask in this context, what in the world would it take?

Long before they admitted it, the top state government officials had significant information that would convince any reasonable person that 1) Polluted water is harmful; 2) Most People in Flint are of color and poor; and 3) They were being forced to use polluted water. Avoiding the conclusion that “government permitted something they believed to be harmful to continue because of the racial makeup of Flint” under these circumstances is apologizing for decisions and actions that implemented structural and systemic racism, of which these top officials should have known and which it was their duty to avoid and later stop. The commission’s failure to reach this inevitable, common sense conclusion is an extremely grave, unconscionable error.

Ignoring Critical Relevant Evidence

One of the ways the commission achieves this myopic result is by completely ignoring -- in spite of their otherwise comprehensive historical overview -- the damning official history of government attacks on environmental justice in the 1980s and 90s, centered around Flint and Genesee County. As I stated in my written testimony (note 2, below):

“Some 20 years ago, the issues of environmental racism and environmental justice -- the disproportionate adverse exposure of People of color communities and the poor to pollution and other environmental dangers -- were addressed by environmental agencies and courts in two (2) major cases that arose in Flint: 1) The Genesee Power Station (GPS) case; and 2) The Select Steel case

The GPS case involved a wood-burning incinerator sited near Flint’s impoverished north end, a community already swamped with other toxic, heavy industrial sources of pollution. Negotiations with the incinerator resulted in an agreement to significantly reduce the amount of lead paint-contaminated construction and demolition wood the incinerator was allowed to burn. (They originally described their business to state environmental officials as “burning demolished Detroit crack houses”.)

After that partial settlement, the Michigan Department of Environmental Quality (DEQ) under Gov. John Engler and Director Russell Harding insisted on a historic environmental justice trial of the allegation that they violated Michigan’s Elliott-Larsen Civil Rights Act by permitting the GPS, the first such trial ever. The Genesee County Circuit Court, Hon. Archie Hayman, entered an injunction against granting more air pollution permits in Genesee County after a 1997 trial that included lots of evidence of increased lead poisoning in Flint because of the GPS; the injunction was subsequently reversed on appeal for a procedural technicality.

The Plaintiffs in the GPS case had also filed the first administrative Title VI environmental racism claim with the US Environmental Protection Agency (EPA) in 1992. After initially losing the file, EPA later found it and opened an investigation, but they have never issued any decision. Meanwhile, 3 of the 4 Plaintiffs died.

“EPA rendered a decision against environmental justice that abandoned any meaningful attempts to remedy environmental racism.”

A second major environmental justice case arising in Flint was decided adversely after a bogus, pro forma investigation in 1998 by EPA: the infamous Select Steel decision. In Select Steel, the same plaintiffs complained about a proposed (never built) steel recycling facility that would further pollute their already overburdened community. EPA came under heavy political pressure in both Michigan and Washington, DC, including explicit threats to zero out the budget of their Office of Civil Rights. EPA rendered a decision against environmental justice that abandoned any meaningful attempts to remedy environmental racism, refusing to use their power to bring public health and environmental quality in Flint up to standards enjoyed in white suburban communities.

In significant part as a result of the Flint Select Steel precedent, environmental racism has found no legal remedy at EPA.

Why did these regulators ignore the pleas of Flint residents who were forced to drink smelly, foul and discolored water for a year and a half? Because that was the policy of allowing substandard environmental and public health conditions in communities like Flint, conditions that would never be allowed in whiter, more affluent communities. And that precedent was largely established in Flint in the 1990s. The ongoing Flint River scandal was the result of emergency management and the Snyder administration’s depraved indifference to health of People in Flint, as well as longstanding, established de facto environmental policy to allow such pollution in these communities.

The Flint River’s lead poisoning is just an extreme case

Ironically, on January 19, 2017, EPA finally issued their administrative Title VI decision in the GPS case. They found the state violated Title VI in their permit process. “… EPA finds that the preponderance of evidence supports a finding of discriminatory treatment of African Americans by MDEQ in the public participation process for the GPS permit considered and issued from 1992 to 1994.” 25 years later, it’s a textbook case of “justice delayed is justice denied.” The commission should not have ignored this evidence.

Leaving out Flint’s important role in the attack and rollback against environmental justice perpetuates the very exclusion the commission decries, and allows current state leadership off the hook for implementing racist abuses in Flint in 2014-15. This seriously compounds the commission’s admitted failure to come to the aid of the People of Flint in their hour of need. That is why I feel compelled to write this response.

Racist Restructuring is not only about Flint

In addition to erasing the significant history of anti-environmental justice state actions in and around Flint, the commission’s selective application of history leads to other major contradictions. For example, Detroit’s decline and revitalization is a product of the same history of structural and systemic racism, suburbanization, housing and employment discrimination, capital flight and separate and unequal benefits of crucial infrastructure, all rooted in regional development shaped by implicit bias, that the commission details in Flint. Indeed, the two cities’ histories of abuse by such structural, systemic forces are inextricably related.

Detroit, like Flint, was subjected to Governor Snyder’s racist and undemocratic “emergency management” restructuring and asset-extraction policies; instead of contaminated water, Detroit’s structural adjustment involved mass denial of water via shut offs to tens of thousands of families comprising well over a hundred thousand individuals, an atrocity that was condemned by UN representatives as a human rights violation. This dubious achievement has been widely celebrated in the corporate media as Detroit’s “resurrection.” [iii] It is not critiqued by the commission, although it represents another manifestation of the same deep history of implicit bias, structural and strategic racism that is their primary focus.

Ignoring Agency and Power

In political terms, emergency management deprived predominantly African American citizens in the managed communities of their agency in democracy. Now the commission’s “racism without racists” reframing of the Flint River scandal lets the perpetrators off the hook for their abuses and crimes, by excusing their agency because it “merely" reflected implicit bias the commission believes they shouldn’t be called out on, because it supposedly did not rise to the level of intentional, willful prejudice embodied in state policy. In addition to devastating democracy by ignoring the crucial role of agency, this is far too charitable to the structurally racist miscreants at the top of Michigan’s power systems. For the record, neither Snyder nor any of his Republican enablers in the state legislature have lifted a finger to date to fix the deadly problems caused by Michigan’s unprecedented emergency management statute. There’s nothing unconscious about their racist evil.

Coincidentally, the release of the commission’s report coincides with the release of the justly acclaimed James Baldwin documentary film, “I Am Not Your Negro.” Baldwin’s simultaneously blunt and eloquent message to American White People perfectly captures the moral blame that should be cast for poisoning Flint, and should serve as a useful corrective to the commission’s tragic evasions of official culpability:

“What white people have to do, is try and find out in their own hearts why it was necessary to have a nigger in the first place. Because I’m not a nigger. I’m a man, but if you think I’m a nigger, it means you need it. . . . If I’m not a nigger here and you invented him — you, the white people, invented him — then you’ve got to find out why. And the future of the country depends on that. Whether or not it’s able to ask that question.”[iv]

It is long past the time to stop the “relentless poisonous action” of Snyder and his associates; the systemic, structural and implicit nature of the racist bias underlying their shocking, depraved actions should not be an excuse.

Tom Stephens is a people’s lawyer living in Detroit.

NOTES:

[i] The Flint Water Crisis: Systemic Racism Through the Lens of Flint (link)

[ii] The Flint River Lead Poisoning Catastrophe in Historical Perspective (link)

I also drafted the original, much stronger version of the Michigan State Environmental Justice Policy that was disastrously watered down by DEQ bureaucrats in 2009-10, under pressure from corporate and white supremacist special interests. That “Executive Directive” is discussed at length by the commission beginning on P. 100. The commission’s analysis of this farcical process and the meaningless document it produced is pure tautology: If Michigan had an effective policy against environmental racism, then there would have been a policy against environmental racism that might have been effective. True. But that’s not the question. The question is why the state government’s bad actors did what they did.

Lansing’s systematic inattention to issues addressed in our communities’ original draft environmental justice executive order, like the precautionary principle, cumulative impact of multiple pollution sources, communities’ rights to directly petition the state to investigate and remedy environmental injustice, and environmental racism (as well as feral, unregulated capitalism) itself, came after fighting tooth-and-nail against grassroots groups seeking such policies for 30 years. This notice-and-refusal-to-correct-injustice evidence adds culpability – even willful depravity, in the unprecedented circumstances of Flint in 2014-15 - to the depths of unconscious, implicit bias that undoubtedly plague all levels of the Snyder administration. This is precisely why I reject the commission’s reasoning and conclusion; they seem to be saying that, since structural and systemic bias are overwhelmingly implicit and unconscious (Nobody in state government endorses “I am a racist”), it would be unduly hurtful to attribute blame where blame would otherwise be due. I respectfully dissent.

Flip the script: The policies and actions of high officials like Governor Rick Snyder, Transformation Manager Richard Baird, and Treasury Secretary Andy Dillon that exposed the People of Flint to contaminated water were racist. Fundamentally, environmental racism is the state’s policy. The Flint River crisis proves it beyond doubt.

[iii] This uncritical corporate and white supremacist backslapping has been debunked by scholarship. Detroit's Recovery; The Glass is Half Full at Most “…[B]y a number of measures Detroit continues to decline, and even when positive change has occurred, growth has been much less robust than many narratives would suggest. Second, within the city recovery has been highly uneven, resulting in increasing inequality. … Overall, citywide data suggest Detroit is continuing to experience decline that makes it worse off than it was in 2000 or even 2010 in the depths of the national recession. Population, employment and incomes continue to decrease, while vacancies and poverty have increased.” (emphasis added)

[iv] I Am Not Your Negro; James Baldwin's Lesson for White America Still Hits Home 50 Years Later