This volume, edited by Reid Cramer and S. Melody Frierson, is the product of the collective efforts of the 2017-18 Millennial Public Policy Fellows and their colleagues in the Millennials Initiative and throughout New America. It begins with an article making the case for crafting a public policy agenda informed by the experience of those coming of age in the wake of the Great Recession. Part I presents material from the one-day April 2018 symposium focused on the cross-cutting issues of care, community, technology, and civic engagement, including summaries of the proceedings and panel discussions. Part II features the policy research of the Millennial Fellows, with each paper highlighting a pressing national issue, analysis of prevailing dynamics, and a set of policy recommendations. Finally, Part III includes short biographical sketches of each fellow and selections from The Direct Message, the blog of the Millennial Initiative.

by Reid Cramer

Millennials have come of age in a time of economic uncertainty. Even though they bear no responsibility for the financial crisis and subsequent Great Recession, which began over a decade ago, they have to live with its consequences. The precariousness unleashed by stagnant incomes, rising debts, and eroded assets has complicated life decisions, reordered aspirations, and made navigating the road to adulthood more arduous. Dramatically altered prospects for an entire cohort of young Americans is setting up a generational reckoning that may eventually rewrite the social contract.

Crucially, Millennials’ issues are everyone’s issues. Millennials are not just the future—they’re already here and poised to exert their influence as the largest generation. They’re the young adults powering our workforce. They’re the consumers and, increasingly, the producers steering our economy. They’re the people deciding if, when, and how to start families, and assuming responsibility for raising the country’s most prized resource: the children of the next generation.

Dramatically altered prospects for an entire cohort of young Americans is setting up a generational reckoning that may eventually rewrite the social contract.

Despite this outsized role, there’s a growing disconnect between the conditions facing Millennials and prevailing public policy. Individuals are increasingly saddled with risks that had previously been collectivized, and the economy is seemingly erecting more roadblocks to financial security rather than opportunities to build wealth. This misalignment between social policy and lived experience threatens to undermine the potential of an entire generation. Consequently, there’s a growing imperative to develop a set of policy ideas that can respond to current conditions, align with prevailing attitudes and behaviors, and create new pathways of progress for the rising generations.

Insights and Obfuscations of a Generational Lens

Looking at the world through the perspective of birth cohorts has both value and inherent limitations, especially as a basis for crafting public policy. The Pew Research Center has taken a data-driven approach to exploring the generational experience, defining Millennials as those born between 1981 and 1996, making the youngest 21 and the oldest 37.¹ Even though this is a large spread capturing different parts of the life course, it facilitates a comparative analysis. From a number of perspectives, it’s apparent that Millennials are outpacing their elders. Today, Millennials make up 22 percent of the total population, 30 percent of potential voters, and 38 percent of working-age adults.² By 2025 they will comprise 75 percent of the workforce.³ They’re not just going to make their mark; they will re-paint the canvas.

Shared formative experiences shape priorities and opinions in ways that distinguish generations from one another. For Millennials, there were early memories of confusing social disruption, such as the Oklahoma City Bombing in 1995 and Columbine School Shooting in 1999 as well as political disputes associated with sharpening political polarization, memorialized by the impeachment and acquittal of President Clinton in 1998. Most Millennials were between 5 and 20 years old when the 9/11 terrorists attacks occurred, followed by the extended wars in Iraq and Afghanistan. Seven years later, they were between 12 and 27 years old during the 2008 election campaign, when the force of the youth vote helped elect Barack Obama, the first Black president. Their subsequent adolescence and early adulthood was spent in the shadow of the Great Recession, with an economy wracked by job losses, business failures, wage stagnation, and a slow recovery. The unexpected results of the 2016 election were relatively unpopular among Millennials, creating a new political landscape they are collectively navigating to this day.

In designing policies that meet the moment, it matters what those who are impacted think about current affairs and how they participate in the political process. In the years ahead, Millennials will lead shifts in public opinion, creating opportunities for large-scale policy change. They are already having an impact on a number of social-issue policy debates—such as marijuana legalization, gun control, and gay rights—as they express their preferences in ways that diverge from older Americans. As a cohort, Millennials remain skeptical of political parties; 44 percent identified as political independents in 2017, far exceeding GenX-ers (39 percent) and Baby Boomers (32 percent).⁴ Yet, as a group, they tilt toward the liberal side of the political spectrum. When “lean” is considered in survey answers, more Millennials associate themselves with the Democratic Party (59 percent) than the Republican Party (32 percent); the 27 percent spread exceeds GenX (6 percent) and Boomers (2 percent), as of 2017.⁵ Still, only 49 percent of Americans ages 18 to 35 voted in the last presidential election, compared to about 70 percent of Boomers.⁶

In designing policies that meet the moment, it matters what those who are impacted think about current affairs and how they participate in the political process.

While Millennials share cultural touchstones that distinguish them from older generations, broad generalizations about their preferences and behaviors will miss their diverse experiences. In fact, the Millennial generation is defined by its diversity. Forty-four percent of Millennials identify as something other than non-Hispanic white, greatly exceeding the minority share of previous generations.⁷

Specifically, the Hispanic slice of the population pie is dramatically increasing. While 9 percent of Boomers identify as of Hispanic, 19 percent of Millennials identify as being of Hispanic (or Latinx) origin.⁸ Given demographic trends, this transition to a country with more color will continue. In fact, without the growth of Hispanic children, the nation’s child population would have declined from 2000 to 2010.⁹ In 2011, the majority of babies born in the United States had parents who were traditionally seen as minorities, and in only a few more years, most children in the United States will identify as non-white.¹⁰ By many metrics, Millennials are serving as the bridge to a more diverse America.

Though 75 percent of older Americans—those over age 55—are white, this percentage drops to half for children under the age of 5.¹¹ In the near term, the working population will increasingly be made up of people of color and the nonworking population will be overwhelmingly white Baby Boomers, widening an already existing cultural gap. In the long term, this new demography will undermine generalizations, remake institutions, and change the country.

Rising Inequality and Growing Divides

Unfortunately, this diversity has become a foundation for rising generational inequality, with the reality of an older, whiter America contrasted with more diverse rising generations. To acknowledge this diversity is to acknowledge that the experiences of Millennials of color are particularly distinct—and perilous. According to the Black Youth Project, unemployment rates are substantially higher, living in poverty is more prevalent, experiencing violent crime is more likely, and being involved in the criminal justice system is much more likely for Black and Latinx youth than for their white counterparts.¹²

In this light, examining differences among demographic groups must be an essential component of any generational analysis. The GenForward Survey, directed by political scientist Cathy Cohen at the University of Chicago, is facilitating this type of analysis through a nationally representative sample of young adults that applies an intersectional lens and pays special attention to how race, gender, and sexuality influence their view of the world.¹³ Their survey findings offer an opportunity to break down monolithic explanations of universal experience and heed the diversity of the Millennial generation. Their data clarify when and how race and ethnicity are associated with different beliefs or experiences. For example, when probing the contours of a persistent economic opportunity gap, they dig deeper than reporting relative levels of employment and ask about the ability to pay bills, cover an unexpected expense, or ask family for financial support. The GenForward Survey approach prompts us to examine disparities and identify places where policy is not adequately responding to changing conditions in a variety of consequential areas.

A Remade Socio-Economic Landscape

Consider how dramatically the educational landscape has changed, and its pernicious consequences. Among Millennials, there are more degrees and credentials—having tripled since the 1960s—but also higher tuition and more student debt.¹⁴ Students have taken on at least 300 percent more debt than their parents, but, unfortunately, it hasn’t always led to a degree.¹⁵ Among college graduates with a bachelor’s degree, student loans average almost $30,000, triple the figure for the same group in 1993.¹⁶ This debt, the state of their finances generally, and other factors are changing Millennials’ behavior over the life course. Fifty-six percent of Millennials with student loans report having delayed a major life event because of their debt.¹⁷

Students have taken on at least 300 percent more debt than their parents, but, unfortunately, it hasn’t always led to a degree.

The data shows that the milestones of adulthood are indeed changing. Millennials are less likely to marry than their parents. When they do, they do so later. The median age for a first marriage today is about five years older than it was in the 1950s and 1960s.¹⁸ Cohabitation with a committed partner among 18 to 29 year olds is increasingly common, rising to over 9 percent today from around 6 percent in 1997.¹⁹ Regardless of marital status, having children has become less prevalent. Although teen pregnancy and childbirth have declined significantly, so too has the overall birth rate, which was at a record low in 2017 after dropping for the sixth straight year.²⁰ Today, only 29 percent of women ages 18 to 29 have ever had children, down from 41 percent in 1998.²¹ 

Entering adulthood in the wake of the Great Recession has been economically devastating. In 2007, more than 50 percent of college graduates had a job offer lined up; yet for the class of 2009, fewer than 20 percent did.²² The large-scale loss of jobs in the years following the recession and the slow recovery have depressed incomes and undermined workforce attachment. Even as the recession recedes from vivid memory, its effects linger. Over half of the unemployed today are young adults, greatly exceeding their share of the workforce. While unemployment rates have come down in recent years, the labor force participation rate for those between the ages of 18 and 34, remains near its lowest level in four decades.²³ The labor market consequences of entering the workforce during a downturn are large, negative, and long lasting.²⁴

In the aggregate, Millennials currently earn 20 percent less than Boomers did at the same stage of life, despite being better educated.²⁵ Specifically, the median earnings today for 18- to 34-year-olds are lower than they were in 1980 and income flows are more volatile.²⁶ Between 1970 and 2002, the probability that a working-age American would unexpectedly lose at least half her family income more than doubled.²⁷ A rise in freelance and contract work associated with employers’ drive for flexibility has shortened employment tenure and contributed to an overall decline in income. Poverty remains pervasive, with one in five Millennials officially classified as poor.²⁸ From 1979 to 2014, the poverty rate among young workers with only a high school diploma more than tripled to 22 percent.²⁹ 

Since the Great Recession, the number of young people who own homes has plummeted. Young adults today are half as likely to own a home as young adults were in 1975. Since 2005, the decline has been dramatic. The homeownership rate for the under-35 households fell from 43 percent in 2005 to a historic low of 31 percent in 2015.³⁰ More people are renting homes now than at any other time since the late 1960s. But rents are up, and the number of households spending over half their income on rent has grown by more than 50 percent over the last 15 years.³¹

Growing Gaps of Wealth and Opportunity

Without home equity to bolster their balance sheets, younger Americans are significantly behind older generations in terms of wealth accumulation. In 2016, after years of decline, the median household net worth for all families—the difference between families’ gross assets and their liabilities—rose to $97,300 in 2016, which, when adjusted for inflation, is 16 percent higher than the 2013 figure of $83,600 (although still 30 percent below the 2007 peak).³² Young families didn’t fare as well: The median net worth for families headed by a person under the age of 35 is $10,900, which is a 2 percent rise over the last three years but still $8,000 less than it was in 1995, a 41 percent decline (in 2016 dollars).³³ In contrast, households over age 75 have seen their wealth dramatically rebound, rising 32 percent in the last three years to $264,000.³⁴ This is the Millennial wealth gap, and its emergence should be alarming.

Even though we expect wealth to rise with age before plateauing as people leave the workforce, the impact of sustained low wealth holdings over time can be severe. Not only does it amplify financial insecurity, but also it corrodes the ability to plan for the future. Clearly, the prevailing economic realities in America today are complicating how young people assemble the traditional building blocks of success.

Without home equity to bolster their balance sheets, younger Americans are significantly behind older generations in terms of wealth accumulation.

The Millennial wealth gap is even more devastating when combined with our historic racial wealth gap. Throughout U.S. history, almost every means of wealth creation—higher education, homeownership, access to credit—has been systematically denied to minorities. The Great Recession has amplified previous disparities. In 2016, the median net worth of non-Hispanic white households was approximately nine times the net worth of Black and Latinx households—$171,000 versus $19,000, according to the Federal Reserve Board’s Survey of Consumer Finances.³⁵ This makes the racial wealth gap larger today than it was in the early 2000s, when the average non-Hispanic white household had “only” six to seven times the wealth of the average African American household.

Divergent experiences with homeownership are among the key drivers of these disparities. For decades, homeownership was how the majority of (white) American families traditionally built their wealth. Discrimination by banks and early federal homeownership programs that began in the 1930s prevented minorities from accessing mortgage financing that enabled white families to build their wealth through housing equity. The Fair Housing Act of 1968, passed in the days following the assassination of Martin Luther King, Jr., made this discrimination illegal, and modest gains in homeownership for families of color eventually followed. Unfortunately, less attention was paid to policing the financial services marketplace, which allowed predatory lending practices and poor mortgage underwriting to spread without oversight. The housing boom burst with the advent of the Great Recession, wiping out significant assets on the family balance sheet.

As the housing market collapsed, Black homeownership rates fell more than non-Hispanic whites’, and their houses lost more value. Last year, the homeownership for Black American households was 28 percent lower than it was for non-Hispanic whites, and many of the gains in Black homeownership since the Fair Housing Act was passed have been erased.³⁶ Additionally, declines in homeownership have been most pronounced for younger Black households. According to the Urban Institute, the homeownership rate for families headed by Black Americans between the ages of 35 and 44 fell from 45 percent in 1990 to 33 percent in 2015, lower than the Black homeownership rate in 1960.³⁷ On top of that, in recent years, only 22 percent of younger Black Americans aged 24 to 34 were homeowners.³⁸

If the rising cohort of young adults, especially those from historically disadvantaged groups, can’t improve their financial balance sheets by earning more, increasing their assets, and lowering their liabilities, their climb up the economic ladder won’t be delayed but rather won’t occur at all. The diminishing prospects for economic mobility have made financial security itself a primary goal for many young adults, rather than the more aspirational features of the American Dream. Absent a concerted policy response, the troubling disparities in wealth and opportunity will persist for years to come.

Constructing a Millennial Policy Response

There’s little doubt that the current political moment presents major challenges in crafting a Millennial public policy agenda. The weakening of norms during a period of entrenched political polarization is undermining our system of governance. Still, there is value in the task of identifying durable policy solutions that respond to current conditions and can be effective when implemented at scale.

As society attempts to grapple with the present and future of this generation, it must bring any social policy ambitions in line with the reality of unprecedented diversity. Policies explicitly designed to create these avenues of economic opportunity for Millennials will be as diverse as the generation. These policies should be expected to increase economic security by creating the means to access educational and training opportunities, grow incomes, and build wealth; additional policies will be needed to support raising healthy families and facilitating civic engagement. This agenda should be ambitious.

We must find more successful ways to support, care, and educate our diverse populations. Given changes in the economy, evolving gender roles, expectations of families and employers, we have new insights into what it takes to build communities of care. There will be challenges and opportunities associated with technological innovation and change. Political engagement will be required to make policy change happen. We’ll need to find better ways to govern the civic spaces where policy and politics meet, especially by including new and diverse voices to help drive this ideas-generation process. For this process to be successful, it will be essential for the young and diverse generation of Millennials to have a seat at the policy-making table. Their time has come, and we all must ensure that it is not too late.

Part I features session summaries and proceedings from the April 2018 Millennial Public Policy Symposium at New America. Joined by an esteemed group of activists, academics, and policy makers, the Millennial Fellows used their one-day symposium to elevate new voices and crosscutting policy ideas.

The aim for our April 26, 2018 Millennial Public Policy Symposium: New Voices and Ideas on Care, Community, Technology, and Civic Engagement was to elevate some of the most consequential issues facing the rising generations by promoting cross-cutting conversations that advance policy solutions with the potential to make a difference in the lives of young adults.

This convening was designed to raise big questions and make the case for meaningful change by asking:

• What are the collective responsibilities for care given changes in the economy, evolving gender roles, and expectations of families, employers, and educators?
• How can we implement technological solutions in an era of big data that don’t undermine individual rights or public goods?
• How do we expand the policymaking table to include new voices and the underrepresented and foster the political engagement necessary to make policy change happen?

These questions are posed at a time when new economic realities are complicating how young people assemble the traditional building blocks of success. The prevailing public policy framework is increasingly out of step with the experience of Millennials, creating a social and economic precariousness that is undermining the potential of an entire generation. This is a problem for us all. We know our economy can do better to share prosperity, and our society can be more just, but we will need a new set of forward-looking policy ideas to meet the moment.

Because effective policy should align with prevailing attitudes, preferences, and behaviors, we need the engagement of Millennials to help drive this ideas-generation process. This was part of thinking behind creating a Millennial Public Policy Fellowship at New America. Since their arrival in August 2017, our ten Millennial Fellows have been engaged in focused policy research. They are outstanding individually and as a group. It has been my pleasure to work with them throughout this year, and this program is the fruit of their seeding.

I’m extremely thankful to the Citi Foundation for their financial support of this fellowship program and their substantive engagement in promoting pathways to progress for a diverse set of opportunity youth. Their President Brandee McHale and her team are leaders in the field and truly committed to supporting a new generation of leaders.

In that spirit, this symposium was an opportunity to explore how the world and our society are changing and to think harder about how a policy response can create new pathways to progress for the rising generations.

Thank you for your engagement.

Reid Cramer, Ph.D.

Director, Millennials Initiative, New America

Consisting of a pair of short conversations facilitated by Millennial Fellows Myacah Sampson, Roselyn Miller, and Jenny Muñiz, this session advanced past justifying why inclusive care and education policies matter and toward implementing solutions that address the needs and aspirations of low-income communities of color. Speakers from New America’s Family-Centered Social Policy program, Better Life Lab, and Education Policy teams strategized best practices for how to reduce systemic barriers, build robust programs that encourage engagement, and lay the groundwork for equitable policy.

Part I:

• Myacah Sampson, Millennial Fellow, Family-Centered Social Policy, New America
• Roselyn Miller, Millennial Fellow, Better Life Lab, New America
• Alieza Durana, Senior Policy Analyst, Better Life Lab, New America

Alleviating or Exacerbating Inequality?

Jenny Muñiz

#HandsOffSNAP is among this month’s most notable Twitter hashtags. Those using it are giving Republican lawmakers considerable flak for proposing a Farm Bill that would gut the country’s premier anti-hunger program, the Supplemental Nutrition Assistance Program, or SNAP. This assault on SNAP is the latest in a series of attempts to scrap vital safety net programs that Americans use in times of need, including after-school meals for students, home-delivered meals for incapacitated recipients, and health care for seniors.

In light of the alarming resurgence of so-called “entitlement reform” it seems an odd time to have conversations about expanding the social safety net. But such a conversation is possible, at least in the case of paid family leave—a traditionally Democrat-backed program that recently won a surprising endorsement from Marco Rubio and the First Daughter, Ivanka Trump. This rare move toward consensus about the value of paid family leave allows us to sidestep the usual debate about justification of safety net programs and, instead, delve into the weeds of program design. Although it remains unclear whether Marco Rubio or Ivanka Trump will be effective backers, it is important to begin considering what an effective federal paid family leave program should look like.

As part of the Millennial Public Policy Symposium: New Voices and Ideas on Care, Community, Technology, and Civic Engagement, Roselyn Miller and Alieza Durana, members of New America’s Better Life Lab, along with Myacah Sampson, Millennial Fellow with New America’s Family-Centered Social Policy program, led this very conversation. As Durana explained, despite the bipartisan support for paid family leave, lawmakers on both sides of the aisle remain widely divided about the program’s design. While the Democrats’ FAMILY Act would create a social insurance fund that allows workers to pool money that they can later access after the birth of a child or during family illness, the Republican plan would allow new parents to borrow from Social Security after the birth of a child, delaying their retirement.

Despite the bipartisan support for paid family leave, lawmakers on both sides of the aisle remain widely divided about the program’s design.

Not only is Rubio and the Republicans’ plan troublesome because it blunts the Social Security program, as Durana explained, it is particularly nefarious because of who it leaves out. Their plan would only allow parents to take time off for a new child and would not cover those who need to take time off for other family-related issues including sickness. Their proposal would also be an unfair burden for low-wage workers and for those who work physically demanding jobs. These workers, too, need to take time off and may be especially hurt by a delayed retirement. What’s more, the panelists pointed out that the proposal leaves little room for non-traditional families and could potentially exacerbate the gender wage gap.

The conversation between Durana, Miller, and Sampson also shed light on a broader question of how well-intentioned policies run the risk of overlooked negative consequences. To this end, history can be instructive. The Family Medical Leave Act, for instance, allowed affluent white families to take unpaid time off, which further exacerbated inequality. To avoid replicating programs that leave out communities by design, or worse, cause undue harm, Durana suggested asking: “How would this policy affect marginalized communities? By gender? By Race? At the intersection of those two?”

Part II:

• Jenny Muñiz, Millennial Fellow, Education Policy, New America
• Abigail Swisher, Program Associate, Education Policy, New America
• Ernest Ezeugo, Program Associate, Education Policy, New America

Intervening with Care: Why Inclusive Education Policies Matter

Dillon Roseen

As policymakers and researchers look to optimize outcomes for innovative social and educational policies, they must be mindful of whether their policies equitably meet the needs of affected communities. To that end, thoughtful policy leadership starts and ends with the following questions:

How do you intervene with care? And, how do you design policies with different communities in mind to minimize unintended consequences that could actually lead to inequitable outcomes?

At the Millennial Public Policy Symposium in April, Millennial Public Policy Fellow Jenny Muñiz tackled these questions as they relate to education policy alongside two of her colleagues from the education program at New America— Abigail Swisher, whose work centers on college and career readiness through youth apprenticeship, and Ernest Ezeugo, whose research explores the use of predictive analytics and algorithms in higher education. Specifically, they presented a powerful argument as to why inclusive education policies matter and, building off this argument, offered strategies and solutions for addressing the needs and aspirations of low-income communities of color.

Youth apprenticeship, Swisher explained, is a partnership between a high school, a post-secondary partner, and an industry player that provides students with paid, on-the-job mentorship in combination with early access to post-secondary, for-credit classroom training. Apprenticeship programs, if done right, should provide individuals with a family-sustaining wage and a clear path forward in a specific industry. But as Swisher explicated when describing the equity dimensions of youth apprenticeship, there is a pernicious history surrounding vocational programs in the United States. This history is rife with discrimination. As Jeannie Oakes writes in her book Keeping Track, “An underlying function of vocational education has been to segregate poor and minority students into occupational training programs in order to preserve the academic curriculum for middle- and upper-class students.”

How do you design policies with different communities in mind to minimize unintended consequences that could actually lead to inequitable outcomes?

Given this history, proposals for expanding apprenticeship opportunities that lead toward vocational occupations are rightfully met with increased scrutiny, even if the overarching intention behind such programs is good and these programs show great promise. Muñiz summarized these quandaries by describing the thin line that can cause even well-intentioned policies to reinforce deficit perspectives and stereotypes that track low-income and minority communities. Similarly, Ezeugo warned of the potential unintended consequences of using algorithms and predictive analytics to forecast expected behaviors, a system that often disproportionately targets and tracks underserved populations.

Building on Virginia Eubanks and Cathy O’Neil’s research on the destructive power of algorithms, Ezeugo made the case that algorithms have historically tended to benefit richer and whiter communities, while being forced onto lower-income communities and communities of color. Specific examples illustrate how algorithms can propagate racist stereotypes around Black criminality, exclude job applicants based on gender, race, age, disability, or military service, and, ultimately, perpetuate poverty.

Despite these legitimate warnings, there is still incredible promise if strategies are approached thoughtfully and data is used both ethically and effectively. Critically, human interventions are needed to understand how data is unfairly deployed and interpreted, such that inequity-reinforcing biases are mitigated before being scaled across entire systems.

Swisher offered an equitable framework to achieve this goal. She emphasized, first, being able to articulate who programs are designed for, then making sure those individuals’ voices are at the table while creating programs. Throughout a program’s development, policymakers must take care to fully understand the scope of data being collected, quickly report the impacts of using this data, and adjust approaches before programs are scaled.

Ezeugo gave a specific example of a program at Georgia State University that has successfully implemented such an equity framework. The university created a program that uses predictive analytics to provide key insights on early interventions that can support struggling students. Rather than relying on entrenched, black-box algorithms to make decisions, the program continues to emphasize human interaction and iteration based on in-person feedback from students directly impacted by the program. Part of this strategy led Georgia State to invest in a robust counseling system, reducing the student-to-counselor ratio from 700 students per counselor to 300 students per counselor.

A key theme from this conversation is that innovations in education policy, founded on the ethical and effective use of data, can be used to teach us more about student success than we have ever known. This introduces new possibilities for promising interventions that would support individuals throughout their education. Being mindful of the risks, policymakers should embrace equitable and targeted frameworks that better deliver education outcomes to historically underserved communities.

How can data and technology be used to strengthen policy? What are the benefits, risks, and challenges associated with data and technology-driven policymaking? This session sought to answer these questions within the context of CVE (Countering Violent Extremism), health care, and the role of technologists in decision-making processes by having Millennial Fellows Emma Coleman, Spandana Singh, and Dillon Roseen each facilitate distinct conversations with their fields’ leading experts.

Introduction

• Braxton Bridgers, Millennial Fellow, Resource Security, New America
• Cecilia Muñoz, Vice President, Public Interest Technology and Public Interests, New America

Big Data, Bigger Challenges

Myacah Sampson & Aaron Noffke

It’s a question we ask frequently at New America: How can we leverage technology and data to better solve public problems? It’s also a question gaining more urgency as we rapidly reconsider the role of technology in public life. From Facebook’s data misuse to the proliferation of high-tech surveillance on marginalized communities, it has become apparent that we must transition away from the mindset that data collection and technological development turned loose in the world will bring about the changes we’d like to see in public policy.

In addition to serving as New America’s vice president of Public Interest Technology and Public Interest, Cecilia Muñoz has been at the helm of a new era where tech and policy experts come together to address inequities exacerbated by technology while developing effective tools to build a more connected and equitable world. It was only fitting that she introduce the second portion of the Millennial Public Policy Symposium, titled “Promises and Perils of Technology and Big Data,” a series of short conversations facilitated Millennial Fellows across the Public Interest Technology, Cybersecurity Initiative and Open Technology Institute programs.

Muñoz emphasized the need to place a greater value on collaboration across skill sets, especially policy analysis and tech product development. Policy experts and elected officials alike might have a great deal of expertise on how a particular public service operates, but because of a lack of digital literacy may not possess the full skill set needed to effectively design legislation that pushes tech to work for the public interest. As Muñoz spoke, we could not help but think of how evident this was last month as senators grilled Facebook CEO Mark Zuckerberg with a series of non-starter questions like, “Is Twitter the same as what you do?” or whether Facebook is capable of deploying targeted advertising based on what one might say in WhatsApp. It is apparent that our current policymakers need to better acquaint themselves with digital tools.

Tech experts on the other hand, might possess a trove of knowledge about gaps in public services and infrastructure, but lack the perspective of a policymaker on the implications a new technological tool may have on existing government services. An example that comes to mind is when ride-sharing company Lyft announced a pilot service called Lyft Shuttle—a fixed-route van that arrives at optimal meeting points in a city. If this sounds like a public bus to you, you’re not alone. Twitter users quickly derided Lyft Shuttle as a pompous Silicon Valley reinvention. Without mindful collaboration, tech might not only duplicate public services but create additional public policy challenges as well.

It is apparent that our current policymakers need to better acquaint themselves with digital tools.

Muñoz’s past work demonstrates that tech and policy experts do not need to be enemies. When they come together under effective management, useful tools that foster transparency and equity emerge. She recounted how programmers were brought in from the private sector to assist in the creation of tech policy during her tenure as Director of Intergovernmental Affairs, and later as Director of the Domestic Policy Council under President Obama. Bringing together policy experts with engineers and product developers, Muñoz spearheaded the creation of the College Scorecard, a digital college rating tool, and the Opportunity Project, an agency dedicated to bringing in tech to solve big and small public problems alike. To grow this transformative work, Muñoz said that organizations working for the public good “must operate with the same technological capacity as the private sector.”

To be frank, we haven’t quite figured out how this will work yet. Instead, we see the perils of big data—from racialized, predictive policing in Los Angeles to automated welfare programs in Indiana that kick our most vulnerable community members off public assistance. No doubt, technology does not inherently make our political systems more just. On their own, they can only reflect or exacerbate our established ways of running government. But, as Muñoz emphasized, in collaboration with those that truly know the impacts and outcomes of our public and civil institutions, we can better identify when disparities are happening and better understand what to do about them.

And so thinking about technology as another tool for the public interest is essential. “The way we protect voting rights in America is primarily through litigation…it’s never been a perfect tool, and it’s not going to become one. That’s why we need additional tools.” As technology transforms more aspects of daily life, how technology can address public problems becomes a question that can’t be ignored.

Why We Need Technologists at the Policy Table

• Emma Coleman, Millennial Fellow, Public Interest Technology, New America
• Dipayan Ghosh, Fellow, Public Interest Technology and Open Technology Institute, New America

Why Policymakers Need Technologists

Spandana Singh

In early April, following the onset of the Cambridge Analytica controversy, Facebook CEO Mark Zuckerberg testified in front of Congress. Many heralded Zuckerberg’s rare appearance in Washington, D.C., as an opportunity for lawmakers in the United States to get answers from Facebook on important issues such as consumer privacy, information manipulation, election integrity, and its supposed commitment to its users. However, following the two-day marathon of hearings, it became clear that policymakers had failed to elicit useful information from Zuckerberg, as they lacked the appropriate technical knowledge and expertise to do so.

Aside from sparking the creation of a number of noteworthy memes that highlight the derelict technical education most of America’s policymakers have, the Zuckerberg hearings also revived a long-standing discussion on why it is important to have technologists involved in the policymaking process.

At New America’s Millennial Public Policy Symposium, Millennial Fellow Emma Coleman and Dipayan Ghosh, a fellow at New America and the Shorenstein Center at Harvard Kennedy School, dove into this issue further. Ghosh, a technologist who has worked for both Facebook and the White House, explained that as technology has become an integral aspect of our daily lives, it has created a number of opportunities for economic growth and access. Simultaneously, however, it has also given rise to a number of tensions and inequalities that need to be appropriately navigated. Without technologists who are capable of explaining these opportunities and resolving these tensions in the room when decisions are made, resulting technology policies cannot and will not be successful.

There are currently a handful of organizations that are working to remedy this gap in technology expertise in the United States. One of them is TechCongress, which has been working since 2016 to provide talented technologists with one-year Congressional Innovation Fellowships with Members of Congress or Congressional Committees. These fellowships provide technologists with the opportunity to gain policymaking experience and to shape the future of technology policy in Washington, D.C., while also offering much-needed tech expertise to congressional offices.

But, as Ghosh pointed out, in order for tangible change to be made in this space in the long term, policymakers need to recognize the importance of having technologists at the decision-making table. Currently, technical expertise is not considered one of the primary specialties needed on the Hill, and with limited budgets, this often means that members of Congress end up lacking staffers with the expertise to guide them through the increasingly complex world of technology policy. In addition, as outlined in a report on the flow of technology talent into the public sector commissioned by the Ford Foundation, as salaries and employment benefits in the traditional technology sector continue to grow and expand, it is also becoming increasingly difficult to convince technologists to join government or other policymaking spaces, where salaries and benefits are more moderate.

In order for tangible change to be made in this space in the long term, policymakers need to recognize the importance of having technologists at the decision-making table.

As we head into the latter half of 2018, a number of technology policy issues are at the forefront of public attention, including the Honest Ads Act on online political advertising, discussions on intermediary liability for online platforms and fake news, and the FCC’s alterations to the Lifeline program. There is a critical need for technologists in the policymaking space. The onus now falls on both lawmakers and technologists to come together to educate each other and collaborate in order to ensure that the next time a major technology sector executive comes to town or the next time major technology legislation is proposed, lawmakers are ready.

Countering Violent Extremism Online: How We Can Leverage Data, Transparency and Metrics to Build a Safer Internet

• Spandana Singh, Millennial Fellow, Open Technology Institute, New America
• Evanna Hu, Partner and CEO, Omelas; and Fellow, International Security, New America

Building Metrics for Success When Combating Extremism Online

Braxton Bridgers

In January, representatives from the nation’s most influential tech companies convened on Capitol Hill to discuss methods for combating the publication of violent and extremist content on their respective platforms. Leaders of Companies such as Facebook, Twitter, and YouTube highlighted their work in Countering Violence and Extremism (CVE)—a term that encompasses campaigns meant to counter extremist rhetoric—online. During the hearing aptly titled “#IsBigTechDoingEnough,” high-level business officials were quick to shine a spotlight on various statistics as metrics for success, citing an increase in workers to scan extremist content, as well as the large amount of extremist content their companies have taken down. But do these numbers truly illustrate the effectiveness of Silicon Valley’s campaign to combat the presence of such content online?

During New America’s Millennial Public Policy Symposium, Spandi Singh, a Millennial Fellow with the Open Technology Institute, hosted a discussion with New America International Security Fellow Evanna Hu that explored the role of data in enhancing the field of CVE, as well as the validity of content takedown statistics that are often referred to by tech companies as metrics for success. Both Singh and Hu began the conversation by establishing that it is extremely difficult to equate actions pertaining to CVE as a direct cause for the disruption of extremist activity. For this reason, legislators are eager to consume data—such as click-through rates, shares, and likes—that may seem impressive on the surface, but does not necessarily represent progress in countering extremist narratives.

It is extremely difficult to equate actions pertaining to CVE as a direct cause for the disruption of extremist activity.

The discussion also drew attention to the disconnect between the threshold for success established by legislators on Capitol Hill and their understanding of the technologies companies use to engage in CVE. Last month, Facebook co-founder and CEO Mark Zuckerberg attended a heavily publicized congressional hearing following the company’s data-breach scandal. While the focus of the hearing revolved around Facebook’s capabilities to protect the data of it users, Zuckerberg was also questioned about the company’s practices regarding the censorship of violent and extremist content. Facebook’s CEO proudly illustrated the company’s capabilities to address such content by highlighting the fact that 99 percent of ISIS and Al Qaida content taken down from the platform is identified by Artificial Intelligence (AI).

However, research conducted by Omelas, an advisory firm co-founded by Hu that maps the online information environment for security assessments, revealed that large swaths of extremist content can go undetected for a significant span of time, even under the watchful eye of AI programs. Unfortunately, legislators have traditionally found a false sense of comfort in surface-level metrics provided by tech companies, stifling their ability to truly measure the success of CVE campaigns. What’s more, the technical illiteracy of legislators at the highest level of government drives the creation of insufficient indicators of success in the CVE space.

Singh and Hu also explored the consequences of tech companies operating unproven CVE programs. Not only do unproven CVE methods have the potential to further marginalize legitimate voices through censorship, they can also further radicalize target audiences. Additionally, CVE programs tend to emphasize content takedown of larger extremist organizations, such ISIS and Al Qaida, creating an avenue for smaller organizations to increase their presence online.

The discussion closed by identifying steps that can be taken to strengthen the field of CVE. While tech companies are moving in the right direction by providing transparency reporting on actions associated with CVE, a neutral party functioning as an independent auditor has the potential to illustrate the state of online information environments beyond non-descriptive statistics. Lastly, Hu highlighted the potential of civil society organizations in developing strong metrics for success in the CVE space, by educating organizations to become literate in CVE terminology and breaking the current threshold established by legislators lacking sufficient knowledge of the field.

The Rise of Health Care Data: Why We Should Be Both Excited and Concerned

• Dillon Roseen, Millennial Fellow, Cybersecurity Initiative, New America
• Robert Lord, Co-Founder and President, Protenus; and Fellow, Cybersecurity Initiative, New America
• Sonia Sarkar, Chief Policy and Engagement Officer, Baltimore City Health Department; and Fellow, Public Interest Technology, New America

Patient Care, Security, and Equity: Toward a More Holistic Framework for Health Care

Becky Chao

Whenever I walk into a new doctor’s office for the first time, the receptionist hands me a stack of paperwork to complete. I’ve learned to anticipate these forms and their thorough questions now; they list questions about my medical history, current medication, insurance information, and emergency contact. Usually at the bottom of the stack are pages about the office’s privacy practices and a request for authorizing the release of identifying health information, with dotted lines for my signature. I sign away—the potential that I may be, in the words of New America’s Cybersecurity Initiative Fellow Robert Lord, “essentially giving all the rights away to every one of the most sensitive pieces of data that might be in [my] life” isn’t exactly top of mind for me as a patient seeking care. I’ve given little thought to who has access to my health care records, and what they could possibly be doing with this data.

Other patients and stakeholders, however, have raised these very questions to health care providers. Lord and Sonia Sarkar, New America’s Public Interest Technology Fellow, spoke about the questions they heard while working in Baltimore, Maryland, with Millennial Public Policy Fellow Dillon Roseen at New America’s Millennial Public Policy Symposium in April. As a first-year medical student working at an HIV clinic, Lord was shocked that he had access to this sensitive patient data—in fact, in most hospitals across the nation, it may be the case that even volunteers would have access. Understandably, patients were hesitant to share information that would then be recorded in their health records. Similarly, in her former role as the chief policy and engagement officer for the Baltimore City Health Department, Sarkar participated in a coalition of health care and social program providers in which a representative from House of Ruth Maryland, an organization that does work around domestic violence, raised questions about the extent of data collection and the mechanisms in place to ensure that the right level of data was getting to the right people.

I’ve given little thought to who has access to my health care records, and what they could possibly be doing with this data.

Unfortunately, these issues of consent and security do not appear to be a top priority within the health care industry. Lord pointed out that while most comparable industries dedicate about 8 percent of their budgets to addressing basic cybersecurity hygiene and protection, the health care industry dedicates only about half a percentage. Despite these risks to patient privacy, the move from paper to electronic health records (EHR) has been transformative, with increased opportunities for collaboration that make a critical difference in patients’ health.

With much of what impacts health outcomes—things like diet, work, and transportation—lying outside the medical care system, the opportunities for leveraging technology and data to provide more holistic care are certainly exciting. Through programs like Accountable Health Communities implemented by the Baltimore City Health Department, EHR can increase collaboration between the health care network and social services to more comprehensively address individuals’ health-related social needs. For a patient at a clinic in East Baltimore, a community where there are significant health disparities, having a module in the EHR for food needs helps identify a patient’s social needs, enabling the clinic to refer them to government programs and resources in the community such as a local food bank or an urban garden program. By addressing an individual’s overall health as a person and not just as a patient, Sarkar noted, we can link health care issues to food advocacy efforts around food deserts and disparities that send individuals struggling to put food on the table at the end of the month to the emergency room, integrating information about social programs into health care providers’ standard of care.

Similarly, community organizations are interested in this data as well. Health issues may also be related to housing access, and using technology in the health care system may be one way to track the number of referrals to housing assistance programs that are being met. This holistic approach to health care, Sarkar said, may also inspire unlikely allies at hospitals and clinics who may not be actively involved in housing advocacy work.

By addressing an individual’s overall health as a person and not just as a patient, we can link health care issues to food advocacy efforts around food deserts and disparities that send individuals struggling to put food on the table at the end of the month to the emergency room.

Lord pointed to this culture of open collaboration in health care as being responsible in part for the prevalence of security risks in the field. The lack of protections can also be contributed to the urgency of some health care scenarios; the medical team may need access to a patient’s EHR to check for allergies to certain medications before administering it. In other words, health care systems would prefer the risk of an insider threat to patient privacy and security over a patient’s death—especially one that would’ve been easily avoidable.

The question that remains is: How do we manage these risks while still leveraging the benefits of technology and data in health care? One problem, Lord noted, is that the usual security protocols for protecting data in institutions do not apply to the health care setting because of the complex nature of health care workflows. In other sectors, it might make sense to grant permission settings according to an employee’s role and the level of access needed to complete his or her job effectively. This segmenting is called role-based access control (RBAC). In health care, nurses and doctors work across a variety of practices, from inpatient care to outpatient care, in oncology wards and operating rooms, each dealing with different contexts and different types of patients. These differentiated roles might seem like the perfect opportunity to implement the traditional RBACs that are used in other sectors. However, this doesn’t work in health care given the legitimate need to keep patient records readily available in case of emergency.

Nonetheless, the ways that the health care industry already uses data to improve outcomes and perform clinically-focused analytics could also be leveraged to protect data. In this vein, Lord is working on using artificial intelligence to defend health care institutions with his company, Protenus.

Just as importantly, Sarkar reminded us of the importance of listening to both patients and subject-matter experts. Technology can be a force for good by lifting up patient voices. In collecting data on health and social services, the health care system can also provide patients with the opportunity to voice opinions on whether those services are or are not meeting their needs. Technologists must join the conversation in a mode of learning instead of a mode of designing technological solutions. Lord echoed this sentiment and warned entrepreneurs to be mindful of cultural norms, challenges, and, especially, nomenclature—no surgeon wants to hear that someone is going to “disrupt” their hospital, after all.

This panel discussion focused on the political and historical context, myths and realities, and political possibilities surrounding youth activism. Featuring Millennial Fellows Christian Hosam and Aaron Noffke in conversation with Georgetown Professor and New America National Fellow Marcia Chatelain and Split This Rock Youth Coordinator Joseph Green, this panel addressed the contemporary challenges and unforeseen strengths of centering young people in political activism.

• Aaron Noffke, Millennial Fellow, New America
• Christian Hosam, Millennial Fellow, Political Reform, New America
• Dr. Marcia Chatelain, Associate Professor, Georgetown University; and Wendy and Eric Schmidt Fellow, New America
• Joseph Green, Director of Youth Programs, Split this Rock

What Happens When Young People are Centered in Political Activism?

Roselyn Miller

From the establishment of the Black Panther Party at Merritt College in 1966 to the recent March for Our Lives activism displayed by the Parkland students, youth activism serves as an important tool for political change. Young people participating in social change leads to new perspectives gaining traction, as well as new models for political organizing. However, it is important to take a broader historical view on youth activism to ensure that youth-led movements maintain momentum and remain grounded in tangible change.

During the “Policy Engagement and Political Activism” panel at the Millennial Public Policy Symposium in April, Millennial Public Policy Fellows Christian Hosam and Aaron Noffke were in conversation with Marcia Chatelain, a professor and historian at Georgetown University and a New America National Fellow, and Joseph Green, a nationally recognized poet and director of youth programs for Split This Rock, to discuss how political organizations could serve and empower young people.

Young people participating in social change leads to new perspectives gaining traction, as well as new models for political organizing.

Noffke framed the conversation by emphasizing the impact of lived experience on social movements, stating “rather than approach the concept of youth activism as an inherently progressive or transformative force, it is perhaps more valuable to think of young people as a cohort shaped by laws, institutions, and political events that have transpired in their lifetimes.” From the LA riots of the early 90s to today’s Black Lives Matter movement, young people’s experiences continue to shape discussions and policies on race, income, and inequality in America.

Centering young people in political activism comes with opportunities and challenges; moving from lived experience to action requires education on social movements as well as a platform to market and leverage ideas. Chatelain noted how people today put so much faith in sponsors, like private corporations, or institutions, like the church, that often when communities fail to meet their own needs they start to blame the community, and not a larger structural or institutional failure. This idea limits the amount of individual agency young people think they can take. Green added that youth activism is most successful when young people can create a space for themselves to push continuously for the change they care about, even without institutional permission.

Hosam pointed out that the financial aspirations, rather than foundations, that young people have lead to different approaches to political activism in determining what areas of change might be the most interesting, impactful, and timely. Because of this financial insecurity, seemingly non-political factors, like access to secure housing, lead young people to engage with political activism because of the individual impact these experiences have had on their lives. Chatelain noted the importance of acknowledging this financial insecurity as a generational divide, and warned against turning social change into a leisure-class activity. In order for youth activism to have an impact, people must move beyond applauding young people’s energy and initiative to listening to their concerns, educating themselves on the historical political landscape, and recognizing their position in a broader progressive social movement. Green found that in order to reignite a historically rooted campaign, such as Dr. Martin Luther King Jr.’s Poor People’s Campaign, then “it has to be reinvigorated with the problems and the issues and the blood of the people who are trying to deal with the issues that are happening to them right now.”

In order for youth activism to have an impact, people must move beyond applauding young people’s energy and initiative to listening to their concerns and recognizing their position in a broader progressive social movement.

In that sense, youth-led movements should be understood as both deeply personal and community-driven actions, as well as historically rooted and influenced. To better serve the political education of young people, older generations must lead by example, broadcast better decisions by explaining their reasoning, and change ideas of what security means in terms of finances, success, and vulnerability in spaces. By allowing youth to take initiative not only in leading movements but also determining and then fighting for the causes that affect them most, historically impacted issues can continue to gain traction.

This interactive panel highlighted the work of youth activists around some of the most critical issues that affect both contemporary and future public policy. In particular, this panel focused specifically on immigration and gun control from often underreported perspectives and engaged with the audience on how to practically build movements of change. NAKASEC community organizer Sumi Yi, University of Maryland American Studies PhD candidate Tatiana Benjamin, and youth poet and activist Asha Gardner from Split This Rock were in conversation with Better Life Lab’s Millennial Fellow Roselyn Miller.

• Roselyn Miller, Millennial Fellow, Better Life Lab, New America
• Tatiana Benjamin, American Studies PhD Candidate, University of Maryland – College Park
• Sumi Yi, Community Organizer, National Korean American Service & Education Consortium, Virginia (NAKASEC-VA)
• Asha Gardner, Poet-Activist, Split This Rock

Expanding the Table: Millennials Aren’t Just Asking for a Seat at the Table–They’re Expanding It

Christian Hosam

Though the massacre at Marjory Stoneman Douglas High School in Parkland, Florida, took place in February, it is already receding into the past. There is a near irresistibility of our media landscape to move on to the next calamity or the next development within the ongoing sagas of our current political moment. However, it might be instructive to realize that while the media coverage might have waned, the activism sparked and led by Marjory Stoneman Douglas High School students has only just begun.

There are national marches planned for the month of June as a follow-up to the March for Our Lives that took place in April. The Marjory Stoneman Douglas High School students have begun conducting voter registration drives themselves to realize a formal kind of political power at the ballot box that has, at least up until now, remained informal. And beyond the direct politicization of the Parkland students, there is a slowly growing, yet unmistakable, shift for young people’s political engagement.

Indeed, over a year before Parkland, the 2016 presidential election served as an inflection point for young people, with the GenForward reporting that a majority of young adults in every major racial and ethnic group claimed to have participated in at least one political activity since the election.

While the media coverage might have waned, the activism sparked and led by Marjory Stoneman Douglas High School students has only just begun.

It was in this spirit that the final session at New America’s Millennial Public Policy Symposium, “Expanding the Table: Intergenerational Activism and Policy Change,” was held. By highlighting the work of activists on the ground, “Expanding the Table” was designed to show that young people aren’t waiting for permission to engage with politics. As a result of this more unrepentant activism, the cast of characters that enters into the ever-expanding “political” space is more diverse and more unapologetic than ever.

As the session progressed, each panelist touched on the tension between self-advocacy and the needs of those with more social power and influence to also step in and stand up for the issues critical to young people. Tatiana Benjamin, an American Studies PhD from the University of Maryland, identified the fact that the burden of social justice cannot completely be borne by those who are the most marginalized. She shared the story of deportation within her own family and community, and how having access to nationalistic privilege spurred her to organize around issues of undocumented Black communities. Similarly, panelist Sumi Yi from the National Korean American Service & Education Consortium, or NAKASEC, recounted a story about the struggles of living with Deferred Action immigration status from a close friend that led her to join the organization.

It is important to note that the event was crafted out of a desire to think about what kinds of voices would be necessary to even begin to capture the activist orientations of young people at this political moment. Elevating the voices of three women of color all representing issues that highlight the intersections of issues that cut across various populations of young people is instructive. As Split this Rock poet-activist Asha Gardner remarked, it was having her voice centered by those that she looked up to as poets that both inspired her and gave her the efficacy to step into leadership and support the development of other young people’s critical consciousness.

The burden of social justice cannot completely be borne by those who are the most marginalized.

The key points of political contention that activate the young electorate are shifting and expanding over time. Issues such as immigration, racism, net neutrality, and environmental degradation, and, even more specifically, how the consequences of those issues are meted out to different marginalized populations are creating the raw material for organizing young people. While no generation is ever single-issue, the activists on stage argued that all issues are intersectional and cross-cutting.

This foregrounding of multifaceted issues speaks to a larger critical point that they all spoke to in one way or another and was described explicitly by the moderator, Millennial Public Policy Fellow Roselyn Miller: Culture change is not separate from policy change, but in fact emerges in tandem with it. That young people are not waiting or asking permission is important because it speaks to cultural shifts. The role of public policy is to facilitate that agency and to help develop it.

How do we, as the session description stated, practically build movements of change? An answer gleaned from the event’s powerful conversation is that we must understand and remember that lasting change and purposeful, impactful movements are loud, inconvenient, and insistent on their righteousness. Millennials (and younger folk) are showing this more and more.

Beyond the Symposium: What Now?

Emma Coleman

D.C. is full of exciting and interesting events. Every week, I get invited to at least a dozen workshops, panels, and public forums at nearby think tanks, universities, and nonprofits. In my opinion, it’s one of the best parts of living in D.C.—the chance to hear from and meet so many fascinating people who are pushing their respective policy fields forward.

But what often accompanies the excitement of these opportunities is an element of frustration. After listening to someone outline their vision for a better world, I always want to know: What now?

As the Millennial Fellows designed our symposium, “New Voices and Ideas on Care, Community, Technology, and Civic Engagement,” we were conscious of this itch to get further involved with what we heard on stage from our panelists. So, in order to expand the work we saw represented at our symposium to our audience, we put together a list of action items for anyone looking to get involved. These options are meant to suit whatever you have to give—time, money, or even just a follow on social media. The title of our symposium reflects the engagement we want to see, and we welcome all new voices and ideas on the topics presented last month.

For those with time to read and do both personal online activism, or for those who want to speak with their Congressperson about ad tech policy, we recommend perusing Dipayan Ghosh’s recent report, Digital Deceit: The Technologies Behind Precision Propaganda on the Internet. In addition to covering why we need technologists in policy, as he did during our panel “Promises and Perils of Technology and Big Data,” Ghosh also notes in the report how to recognize when you might be seeing biased content online and what you can urge politicians to do to regulate it.

After listening to someone outline their vision for a better world, I always want to know: What now?

For those looking to become involved with community activism, our panel “Expanding the Table: Intergenerational Activism and Policy Change” provided three fantastic options for nonprofit work the D.C. area. The Southeast Asia Resource Action Center (SEARAC) is a civil rights organization that empowers Cambodian, Laotian, and Vietnamese American communities to create a socially just and equitable society. Their Take Action resources make it clear how you can become involved. You can also become involved with the campaign for immigrant rights of the National Korean American Service & Education Consortium (NAKASEC) by filling out their volunteer form. For those who like to combine activism with art, our last panel also featured a poet from Split This Rock, D.C.’s youth poetry organization that holds public events you can attend.

For those interested in policy work, our panel “New Perspectives on Communities of Care” brought Better Life Lab’s Alieza Durana to the stage to discuss U.S. paid family leave policies. For the latest on this subject, follow PL+US to learn how you can get involved.

Finally, for those with the financial capability to make a donation, consider UndocuBlack, a group of currently and formerly undocumented Black people that organizes within communities to ensure their safety, facilitate resources, and provide support.

Hopefully these resources prove helpful as you take the step beyond the symposium and answer the question “what now?”

Part II features the policy research of the Millennial Fellows, with each paper highlighting a pressing national issue, analysis of prevailing dynamics, and a set of policy recommendations. 

• Independent, Not Alone: Breaking the Poverty Cycle through Transition-Age Foster Care Reform by Roselyn Miller
• Data Sharing as Social Justice: How an Improved Reentry Process Can Smooth the Transition for Formerly Justice-Involved People by Emma Coleman
• Making the Case for Culturally Responsive Teaching and Supportive Teaching Standards by Jenny Muñiz
• The Context of Tradition: Evolving Challenges in Federal Indian Policy by Myacah Sampson
• Public Policy and the Poor People’s Campaign: Reducing Inequality through Political Action by Aaron Noffke
• A Public Interest Test in Merger Review by Becky Chao
• Beyond Access: The Future of Voting Rights in the United States by Christian Hosam
• Solutions for the Health Care Cybersecurity Workforce of the Digital Age by Dillon Roseen
• Taking Down Terrorism: Strategies for Evaluating the Moderation and Removal of Extremist Content and Accounts by Spandana Singh
• Gridlock: Enhancing Disaster Response Efforts Through Data Transparency in the Electric Utility Sector by Braxton Bridgers

by Roselyn Miller

In recent years, the number of children entering the foster system has steadily increased due to multiple sociocultural and systemic issues, such as the opioid epidemic, mass incarceration, immigration separation, and poverty-based neglect. While there have been some necessary and long-overdue changes to the child welfare system that focus on primary prevention efforts and long-term poverty alleviation, steps need to be taken to mitigate negative outcomes for youth aging out of care immediately in order to ensure more secure and equitable futures for them and their families. In order to design inclusive and effective policy for young adults transitioning from foster care to independent living, we must work to reduce the stigma created by reductivist poverty narratives, center youth with lived experiences authentically as leaders in the design process of policy, reduce program participation requirements to catch more youth in need of services, and structure a guided route toward self-sufficiency as young adults learn to navigate adulthood. In order to do this, policymakers should change descriptive words and language when working with young adults formerly in the foster system, streamline application processes and extend supportive services at least until age 21, and invest in researching and evaluating cash assistance programs to provide youth aging out with more autonomy and flexibility in developing an individualized transition plan for adulthood.

Background

Not all young adults formerly in the foster system know about or have access to programs meant to support them:

“I don’t really have anyone. From age 18, I’ve been staying on my own, taking care of myself, feeding myself. I have to do what I have to do to make ends meet. My sister went straight from our foster home to college, and her school let her know all of the different opportunities she had being a foster youth. I went straight to work. They don’t keep track of that kind of stuff. I went into survival mode. I didn’t know those options were available to me.”
Daisha Walls, age 24, Detroit, Michigan. Aged out at 18.

Even with access to mentors and supportive services, many find difficulty maneuvering through independence as well as complicated eligibility and reporting requirements while in a difficult, stigmatized home environment:

“My friend’s family took me in unofficially as an adult at 21. It took me four years to take seriously that they were there for me. I went back to school, worked multiple jobs, I was homeless. But I realized it was my environment that played such a deep part in that. We’re required when we age out to become adults like that; we’re expected to finish school, to work, to know all of these things when they’re not a part of our foundation, at the same time being pushed and shoved everywhere like kids. You have all these negative outcomes just waiting for you, in health and in society.”
Tanisha Saunders, age 28, Compton, California. Aged out at 18.

Each year approximately 20,532 musicians, soccer players, videogame lovers, cooks, math prodigies, and creative problem-solvers emancipate, or age out, of the foster system.³⁹ Many more transition-age youth will be adopted, only to be abandoned at age 18, or run away before aging out because accepting financial, mental, and emotional insecurity is worth immediate independence from traumatic or difficult home environments.⁴⁰ Some youth enter care and have a positive experience, but many more do not, and the negative outcomes these young adults face almost immediately after leaving the system speak to the need for a stronger support network.

No two young adults who age out of the foster system share the exact same story, and, as a result, young adults with lived experience sometimes hold contradicting opinions about where to start and what to change, and how much agency youth should have during that process. However, after asking dozens of foster care professionals in policy, education, nonprofits, and social work, and young adults formerly in foster care if the foster system did enough to support transition-age youth, they agreed that while there are some supports for youth in care, and some additional supports for independent youth in college, more could be done to improve the consistency and quality of programs. Too many young adults fall through the cracks and do not qualify for, or ever hear about, supportive services. Young adults leaving care then end up receiving little to no services right as they exit the system and need them most. Early intervention mentorship and evidence-based streamlined services should be complemented with agile services like cash assistance programs in order to produce better outcomes for transition age youth. This combination will give young adults formerly in the foster care system maximum agency and a clear route toward stability.

Many more transition-age youth will be adopted, only to be abandoned at age 18, or run away before aging out because accepting financial, mental, and emotional insecurity is worth immediate independence from traumatic or difficult home environments.

The foster system was designed to take children out of abusive or neglectful homes and place them temporarily in the care of their state under the supervision of trained foster parents. However, the inconsistency of available programs within the system, the cyclical nature of poverty, and the disempowerment of young adults often generates more problems for the youth who were promised a better life and better outcomes.

In general, adults in their 20s face economic instability⁴¹ and many rely on parental support, with about 40 percent of young adults receiving an average of $3,000 in financial assistance from their parents up to ages 22 through 24.⁴² Independent young adults aging out of the foster system do not have parents to rely on in case of a financial emergency or for mentorship and coaching as they figure out housing, employment, higher education, and health care. The case for a cash assistance program for those formerly in the foster care system is strong. Since these youth experience worse financial instability than their peers due to lack of parental support, cash assistance programs would serve as a foundational route toward financial stability and independence. While inspiring stories from youth with experience in the foster system show their resilience and strength as individuals,⁴³ no amount of positivism and individualist spirit overpowers the vastly unequal formative experiences and institutional oppression this population generally experiences. Soon after exiting the government’s supportive services, many are pushed back into it, with some studies showing one in five becoming homeless after age 18,⁴⁴ more than half unemployed at age 26,⁴⁵ and one in four experiencing post-traumatic stress disorder after exiting the system.⁴⁶ In addition, almost one in four young adults leaving the foster care system ends up involved in the criminal justice system within two years of exiting care.⁴⁷ Compared to the general population in nearly every outcome area, young adults aging out of care face more barriers to secure, stable, and independent lives. Cash assistance paired with mentorship, planning, and programmatic support would have a significant impact on closing the equity gap between youth formerly in foster care and their peers.

No amount of positivism and individualist spirit overpowers the vastly unequal formative experiences and institutional oppression this population generally experiences.

Aside from personal negative outcomes, each young adult that ages out of the foster system costs taxpayers and communities approximately $300,000 over that individual’s lifetime in public assistance needs, incarceration costs, and unemployment.⁴⁸ Designing programs and policy that spend tax dollars more efficiently on evidence-based preventative services for individuals rather than reactionary and punitive measures would reduce the costs of aging out and improve each individual’s quality of life. The policy design process should include steps for adequate longitudinal evaluation, monitor program utilization rates, and train caseworkers to partner with youth formerly in care to determine a long-term plan for cash assistance as soon as they are identified as at-risk of aging out.

Because the foster care system does not currently provide enough robust support for housing, mental health, and independent-living skills for all independent young adults, people exiting the system often reenter poverty and inadvertently fall into a toxic environment that continues from one generation to the next. While little data exists documenting intergenerational entry into foster care, it is estimated that between 8 to 22 percent of children of foster care alumni spend time in the foster system as well.⁴⁹ The negative impacts of the foster system will continue if nothing more is done in both primary poverty-prevention efforts for families and poverty alleviation programs for transition-age adults. There is an urgent and imperative need to improve services for transition-age youth in order to give families caught in the systemic cycle of poverty a chance at equitable outcomes.

The quotes featured were collected from several interviews from young adults with lived experience in the foster system, and they have been condensed and edited for clarity. The research process for this paper included interviewing members of the Foster Care Alumni of America and the National Foster Youth Initiative, reaching out to United Friends of the Children, collecting background information from staff at Casey Family Programs as well as the Illinois’ Department of Children and Family Services, attending Child Welfare and Foster Care events at Brookings and the American Enterprise Institute, and speaking with members of the Congressional Caucus on Foster Youth. While all of these programs and organizations take different approaches to fixing the foster system, they all agree that the process should center children and families. Experts also generally agree reforming child welfare systems must begin with poverty alleviation efforts for families, especially for those experiencing generational poverty, in order to prevent initial entry into the foster system. In order to keep families together, after decades of inaction and underfunding child welfare with fewer families qualifying for help over time,⁵⁰ the federal government passed the Family First Prevention Services Act as part of the Bipartisan Budget Act in 2018, allowing states more flexibility with federal reimbursements to fund poverty-prevention services for at-risk families.⁵¹ While this legislation presented an important shift in focus to support families, it is a small, long-overdue step toward breaking the cycle of poverty.

The negative impacts of the foster system will continue if nothing more is done in both primary poverty-prevention efforts for families and poverty alleviation programs for transition-age adults.

With prevention efforts, institutional reform, and poverty alleviation as the long-term goal, governments, child welfare agencies, and members of the media should take steps in the short term to aid the thousands of young adults entering independence now. Young adults from different states and foster families might have vastly different experiences in the foster system. Policy-creation processes will serve this population best if they authentically engage, incorporate, and acknowledge insight from multiple alumni of foster care rather than base policy decisions on assumptions and stigmatized perceptions. By combatting the cultural stigma young adults formerly in care face and using that framework to design empowering and comprehensive policy, foster care will change from a system youth feel lucky to survive through to a structured support system that helps low-income youth thrive.

Identifying the Problem

Problem #1: Youth in foster care deal with stigma and unequal formative environments early in life, which results in negative outcomes as they transition out of care.

“There’s a stigma. Sometimes people think that because you’re a single parent out of foster care that you shouldn’t be given the same opportunities that someone who is “single” is given. But everyone wants opportunities; everyone wants to be able to try to improve their lives, not only for them, but especially for their children…
…When I entered the foster system, I ended up getting pregnant and entering a group home. I didn’t have any clothing, so my foster family got a stipend so I could get some clothes. But, when I got in, they disbursed the money among all the kids, even though it was for me. When kids get stipends, if there is any way to make sure that could go directly to the child that would be better.”
Yolonda Washburn, age 27, Providence, Rhode Island. Aged out at 18, received services until 21.

The current foster-care policy and research landscape prioritizes prevention efforts, which take a systemic approach to poverty alleviation by starting with early intervention for families in poverty with young children. The important goal of this work is to prevent entry into the foster system by ensuring families have basic needs met, such as food, health care, and housing. Experts looking for long-term solutions for decreasing the number of children that enter the child welfare system have identified several policy reforms that could make an impact over time. These include redefining how social workers measure abuse and neglect,⁵² providing additional support for community-based care and prevention efforts like housing vouchers and food benefits, and researching universal child cash assistance benefits⁵³ or negative income taxes.⁵⁴ These efforts and the continuous research and evaluation of them are vital to disrupting the overall cycle of poverty, particularly for achieving equitable outcomes for low-income marginalized communities. However, while experts debate one safety net program over another, each year approximately 273,539 youth enter care,⁵⁵ a number that continues to grow due to the opioid epidemic,⁵⁶ and only about half will meet the goal of the foster system and reunite with their original families.⁵⁷ To provide the best possible outcomes for youth that transition out of the system, inclusive evidence-based supportive services that guide youth should be paired with flexible cash assistance programs that give youth agency as they transition out of foster care.

Problem #2: There are too many programs with different eligibility requirements, so young adults with non-traditional aging out stories fall through the cracks.

“I left the system when I was 14. I was adopted by my foster parents at the time. When I turned 18 they didn’t want anything to do with me anymore, and so I actually transitioned to college without a forever family. I felt like I was invisible, and I didn’t qualify for a lot of the funding and resources that could have helped me. My mental health took a huge hit. My sister ended up re-entering the foster system, so I stepped up and took care of her until she turned 18 while I was a full-time student.”
Angellica Cox, age 23, Lansing, Michigan. Adopted from care at 14.

The U.S. federal government controls funding streams for transitional services but allows states to ascertain what types of programs to offer and how to determine eligibility. Because the funds are often insufficient or the requirements to access funds are too limiting,⁵⁸ some states opt to pay into independent-living programs instead of or beyond the matching dollars available through the John H. Chafee Foster Care Independence Program,⁵⁹ which offers different levels of funding to youth likely to age out of care, youth who age out of care at 18, and youth who leave care for a kinship guardianship program or adoption.⁶⁰

The federal government identified several key services that link youth transitioning out of care with better outcomes as a direct result of implementing relatively new cohort analysis surveys. Opportunity areas to improve the experience of youth exiting care include:

• extending foster care to age 21,⁶¹
• post-secondary education support,⁶²
• financial coaching,⁶³
• housing,⁶⁴
• health and mental health care,⁶⁵
• mentorship,⁶⁶ and
• direct youth engagement.⁶⁷

Even in states that have chosen to extend foster care to age 21, youth aging out of the system still often leave at age 18, and programs related to housing, health, and other safety net services are typically underutilized.⁶⁸ Programs are underutilized because a lot of youth aging out have difficulty collecting the necessary paperwork, miss an age requirement, move, are unaware of the available programs,⁶⁹ or are eager to leave suffocating environments and bureaucratic hoops behind in search of independence.⁷⁰

Problem #3: Because of the complicated landscape of supportive services and their eligibility requirements, youth struggle without mentorship and guidance in developing a transition plan.

“The problem is we have so many different organizations lobbying for contracts and setting rules. Like in Tennessee, the public child welfare agency did not make a policy saying independent–living services could only be given to people who were not juvenile delinquents, but the group who they contracted with made it so juvenile delinquents couldn’t access the services. I was someone who was doing AP classes while I was in juvy, yet somehow I am supposed to be ineligible, even though the reason I went into juvy was because foster care was not intervening. Actually juvy was the best weeks of my life, because I had so much trauma and I was living such a toxic lifestyle. I got arrested so I could have more structure.”
David Hall, age 22, Oklahoma City, Oklahoma. Aged out at 18.

In 2010, states began collecting data for the National Youth in Transition Database, which collects demographic and outcome information and conducts cohort analysis for youth age 17 and 19 who age out of foster care.⁷¹ This database was implemented to track the effects of programs on the outcomes experienced by youth immediately after exiting care and determine the areas in need of improvement. The federal government also requires caseworkers to establish youth-led transition plans, a personalized document listing goals and available support options like housing and health insurance,⁷² when permanency plans, such as paths toward adoption or kinship guardianship, are not an option. However, the reporting requirements for this are unknown, and the level of detail expected from the transition plan varies by state.⁷³ States offer and develop programs differently, which adds another challenge to evaluating program effectiveness.

State-specific and cross-state comparative studies provide more insight into the youth who access and benefit from transitional supportive services. The state of Virginia became the twenty-fourth state to formally extend foster care services to age 21 in 2016 through Title IV-e funds.⁷⁴ Virginia created a wide breadth of new programs available for youth transitioning out of care, but the implementation and availability of these untested programs were inconsistent and varied within the state, with about half of the services, like housing, only available in certain geographic areas.⁷⁵ Cross-state and regional surveys, such as the Northwest Foster Care Alumni Study, show that evidence-based programs that incorporate feedback from youth with lived experiences and that prioritize developmentally appropriate and concrete transition plans lead to the best outcomes.⁷⁶

Problem #4: Transition-age youth require different supports at different times, and unlike cash assistance programs, inconsistent voucher-based programs are too slow and restrictive to meet individual needs.

“We find ourselves needing immediate support. When it comes to the requirements, no two programs have the same ones. It’s hard for us to have our information, such as birth certificates, proof of employment, proof of school; it is hard to coordinate these things each and every time we go in for help. It should already be understood that we need more support than what is given to us. We’re not out here trying to scam any systems; we’re out here fighting for our most basic needs.”
Tanisha Saunders, age 28, Compton, California. Aged out at 18.

The Midwest Evaluation of the Adult Functioning of Former Foster Youth report shows that for the transition-age adults in Illinois, Iowa, and Wisconsin, programs that addressed the main issue areas identified by the federal government—like housing, mentorship, educational training, and supportive services—were not enough.⁷⁷ They concluded that expecting youth formerly in care to succeed without the financial and emotional resources their peers receive from their parents, even after the age of 21, is unrealistic.⁷⁸ Forty percent of young people in the Midwest leaving foster care experienced homelessness and other unequal outcomes, with many young men experiencing incarceration and many young women raising children alone with limited resources.⁷⁹

Within states and across regions, young adults receive inconsistent services, and the impact of these services on their outcomes is largely unknown. Different states incorporate feedback from young adults with lived experience to different degrees, but access to support and equitable opportunities should not depend on geographic luck. Although youth formerly in care have been identified to have similar needs, whether young adults have access to either very few programs or a wide array of programs, all of which have vastly different eligibility requirements related to work, education, time in care, and social standing, depends on the state in which one enters the child welfare system.⁸⁰ While many young adults formerly in foster care rely on different types of voucher programs, there is a near-universal value in increasing access to a cash assistance program where benefits are delivered directly to them. Policies like cash assistance allow young adults exiting foster care to choose which additional services they need and acquire those services much more flexibly.

The Solutions: Addressing cultural stigma and implementing empowering policy

“Exiting foster care was a tough reality check because I had a relatively good time in care. My caseworker made sure I was advocating for myself, and he was also very transparent about what supports were available for me, he help set me up with an independent–living stipend. But I started to learn peers of mine didn’t share those experiences. We shouldn’t have to fight so hard. We should create a system that accommodates us, and meets us where we are when we need them, instead of us having to run around. It’s challenging, but I’m happy to be part of the advocacy for that.”
Scout Hartley, age 26, Jackson, New Jersey. Aged out at 21.

In order to better understand the experiences of young adults exiting care, efficiently meet individual needs through policy, and transparently incorporate feedback from those with lived experience, policymakers must work toward deconstructing the stigma associated with foster care and move toward centering qualitative narratives that show the nuanced needs of individuals with diverse experiences during the design and implementation of policy.

Foster care policy and advocacy workers who interact directly with young adults with lived experiences in care speak about the population very intentionally because words matter. The wrong phrases lead to stereotypes that have long-term effects on the way the public views these young adults and what policy supports gain traction. Rather than referring to the population as foster youth or former foster kids, it is important to think of the transition-age population as young adults or independent adults with experience in the foster system. This phrasing better aligns with the intended temporary nature of foster care and credits them for their subject-matter experience. In order to understand the impact of stigma, a study presented the same vignettes of a young child with the same neutral description and changed only one descriptive factor: in one case, the child was in his biological home and, in the other, he was fostered. The study found that participants held negative perceptions against youth with experience in foster care, connecting them with experiencing more negative emotions as children, creating unhealthy relationships and habits as teens, and experiencing poverty, mental health issues, drug abuse problems, and general social insecurity as adults.⁸¹

The wrong phrases lead to stereotypes that have long-term effects on the way the public views these young adults and what policy supports gain traction.

Oversimplified poverty narratives lead to inaccurate and incomplete understandings of the needs of the population and label individuals in poverty as either: 1) deserving all of the blame for their situation, 2) having no agency as a helpless victim, or 3) displaying remarkable strength and individual will to achieve the American dream.⁸² Youth with experience in foster care do not need to be fixed, nor should their experiences be erased in order to acknowledge their humanity and agency. When people believe poverty is a state of mind and success is just a product of motivation, governments pull back on much-needed assistance programs. And on the other end, when people believe young adults formerly in care are simply traumatized adult-children, the misinformed policy created invalidates the value of their experience, spreads mistrust of their intentions, and patronizes young adults, requiring them to jump through a maze of bureaucratic eligibility requirements to meet their basic needs.

In congruence with changing the cultural understanding of narratives about young adults exiting care, in order to improve outcomes for youth aging out of foster care, policymakers must:

• Collaborate on the federal level to develop best practices for consistent, inclusive, and minimal eligibility requirements for young adults aging out of, or adopted from, the foster system seeking public assistance.
• Increase the capacity of caseworkers to provide more individualized support and guidance to assist youth still in care with developing a transition and mentorship plan earlier in life.
• Provide cash assistance programs that create more autonomy and flexibility for young adults formerly in foster care, refining this intervention with a large-scale research and evaluation program.

The policy recommendations listed above all serve the purpose of creating structures that mentor, guide, and support the autonomy of young adults as they learn independent-living skills and determine structured goals as soon as aging out of the system becomes a possibility. Acknowledging that young adults exiting care seek independence and autonomy is essential to creating accessible programs that more young adults in need will want to utilize. A comprehensive policy agenda that pairs mentorship and early intervention planning with direct cash assistance will help young adults exiting care develop a stable foundation in order to pursue independence with the freedom to choose the services they need to succeed.

Conclusion

“When I got my own apartment, I ended up going back to the group home I lived in and becoming staff there. I helped implement some educational things for the pregnant moms because I’d been there. I basically made a binder to help with gathering resources for the girls to get their GED and things like that.”
Yolonda Washburn, age 27, Providence, Rhode Island. Aged out at 18, received services until 21.

“With my experience in the foster care system and in financial planning, I’m actually going to start my own nonprofit. I want to start a movement in Michigan that’s foster–care–alumni run, to empower foster youth to use their voices to make change in policies, to better our foster care system. I want to lead a movement like that, but it doesn’t exist so I have to start it myself.”
Angellica Cox, age 23, Lansing, Michigan. Adopted from care at 14.

Overwhelmingly, youth with lived experience in the foster system seek opportunities to advocate for their peers, to lift up others in tough situations, and to renew and improve the system that intends to provide more secure futures for children with nowhere else to go. Shifting the popular narrative on what it looks like to have been formerly in foster care begins with centering and empowering the individual to live a life they choose, both in spite of and inspired by the situations they were given. That said, in order to understand adulthood and develop a stable foundation, young adults exiting care need guidance and resources to develop an independence plan, just like any other peer their age. A holistic approach will fix the foster system over time and support the immediate needs of young adults now. If policymakers support primary prevention efforts to keep children out of the child welfare system and empower youth already in the system to build positive environments through inclusive and accessible safety net policies, then the benefits will extend well beyond the positive impact on individuals’ lives. Young adults exiting care may be independent, but they do not have to be alone.

Roselyn Miller is a 2017-18 Millennial Fellow with the Better Life Lab at New America. She would like to thank the many organizations and individuals, notably those formerly in the foster system, that contributed thoughtfully to the ideas and development process of her paper. She would like to specially thank the Millennial Public Policy Fellowship, particularly Reid Cramer and Melody Frierson, and the Better Life Lab, specifically Alieza Durana, for guidance and mentorship throughout.

by Emma Coleman

Bipartisan support for criminal justice reform is evident. Apart from those who benefit from rising incarceration rates, like stakeholders and owners of private prisons, we can unite under the shared goals of reducing the prison and jail populations, diverting justice-involved people away from incarceration when possible, and focusing resources on rehabilitation upon release. The reentry experience is a critical link in reducing the societal and personal effects of mass incarceration and, with closer attention, it can provide a solid path for a safer and more just society.

The initial reentry period is a crucial time in the lives of formerly justice-involved people. Often, there are strict limitations on the jobs that are available, the geographic locations that they are allowed to live in, and the people with whom they are allowed to associate. Hundreds of thousands of people released from prisons and jails each year face these challenges in isolation, leading to a high recidivism rate. Within three years of release, over 65 percent of formerly justice-involved people are rearrested, and, within five years, that figure climbs to 75 percent.⁸³ In some places, and for some particularly vulnerable groups, the results are even more extreme. Washington, D.C., for example, sends almost 40 percent of its formerly justice-involved population back to prison, a more severe measure than a rearrest, within just 36 months.⁸⁴

The initial reentry period is a crucial time in the lives of formerly justice-involved people.

While many conversations about reentry focus on the tension between individual responsibility and community assistance, this paper will not seek to find a curative solution. Instead, given the magnitude of people affected by this system on a daily basis, we must ask how we can improve current procedures to reduce the number of people who recidivate and legitimize their ability to pursue full lives that build on their past rather than shaming it. One way to do this is through a comprehensive empowerment of reentry service providers, so that they might better serve their clients’ individualized needs and encourage them to leverage their strongest abilities.

Reentry service providers play a critical role in combating the serious logistical concerns of reentry—such as job and housing insecurity, inaccessibility of childcare, drug and alcohol rehabilitation, and adjustment to new technology, among others. Effective nonprofits provide the requisite support for a smooth path to successful reentry, but they often lack the data to appropriately serve their clients’ needs immediately after release. In current practice, there are no formalized and universally applied standards for data sharing between correctional facilities and nonprofit reentry organizations. Because of this, nonprofits are largely responsible for collecting all the data they might need about their clients, including vital information like time spent incarcerated, employment history, courses taken while incarcerated, child care responsibilities, and locations in which they are allowed to live. There is no guarantee that nonprofits will receive this information prior to a client arriving at their organization seeking services unless that nonprofit maintains an active and regular presence in a correctional facility and are allowed to do client intakes prior to clients’ release.

The process of relaying personal history information manually to a caseworker from a nonprofit can be traumatic and often provides an incomplete picture. Perhaps most concerning, however, when considering the number of people who access services from these nonprofits each day, is the inefficiency of this process; if the data already exists within the criminal justice system and can be transferred to nonprofit case workers so that they have a general understanding of their clients’ needs before they arise, the relevant information should be transferred. A process that aims to efficiently and effectively provide client information to case managers could be hugely impactful. Such an improved process could save caseworkers’ valuable time, allow for more personal client interactions, and most importantly, ensure clients get the critical services they need immediately upon release.

There is no guarantee that nonprofits will receive this information prior to a client arriving at their organization seeking services unless that nonprofit maintains an active and regular presence in a correctional facility and are allowed to do client intakes prior to clients’ release.

In order for such a process to be successful, however, there are several structural changes needed from both correctional facilities and nonprofits. Establishing a comprehensive data-sharing system will require process reengineering for the release procedure of justice-involved people, signing data agreements between specific nonprofits and the correctional facilities around them, the implementation of sophisticated data-management systems within these nonprofits, and the creation of privacy terms and conditions to ensure client security. By completing these steps, reentry coordinators and case managers can better assess client needs, provide faster and stronger targeted support, and set an actionable, individualized path forward for each person.

Notes on Terminology

Since the objective of reentry is to encourage rehabilitation and forward progress from past wrongs, there is value in abstaining from passing judgment on crimes committed by those reentering society, unless it is directly relevant to their rehabilitation. Therefore, in order to avoid the intense stigmatization of crime and incarceration, this paper avoids use of the term “felon” and “ex-felon” to refer to those currently serving time in a correctional facility and those who have left them, respectively. Instead, the terms justice-involved and formerly justice-involved take the place of felon and ex-felon.

It is also necessary to understand the difference between the various types of correctional facilities. A jail is a small, community-operated holding place usually meant for those with short sentences (less than a year) or those being held as they await trial. These are run by sheriffs or county governments, which is why they are often referred to as “county jails.” Jails are occasionally called detention centers.

A prison is a facility run by either the state or federal government, which usually holds those serving longer sentences. Within prisons, there exist two types: federal and state. Federal prisons are institutions run by the Federal Bureau of Prisons (BOP), leaving them under the jurisdiction of the federal government. People in these prisons are “awaiting trial for violating federal laws or those who have already been convicted of committing a federal crime.”⁸⁵ Federal prisons tend to house those who have committed “white collar crimes,” because the most commonly prosecuted federal crimes are conspiracy and fraud. State prisons function similarly to federal prisons, but are run at the state level for state crimes, which vary in severity and sentencing across the country. Prisons are referred to by varying names, such as correctional treatment facilities, correctional centers, and penitentiaries.

Both federal and state prisons can be either government-run or private. Private prisons are facilities run by a for-profit company that has been contracted by the federal or state government to oversee all day-to-day operations. Technically, these prisons are bound by the same regulations that the state and federal government enforce in all their other facilities. As of 2015, private prisons are responsible for 7 percent of state prisoners and 18 percent of federal prisoners, along with a handful of local jails.⁸⁶

As people transition from being justice-involved (held in a correctional facility) to formerly justice-involved, they go through a process called reentry. Reentry processes vary from state to state and from facility to facility. Some states employ parole, during which a person can serve the remainder of their sentence in the community. Recidivism is the process of rearrest, reconviction, and potentially a return to prison after a person has been released.

Reentry service providers are organizations that help with formerly justice-involved people’s adjustment upon their release. These are most often nonprofits, religious organizations, or government-sponsored programs. Residential reentry centers, commonly referred to as RRCs and previously referred to as “halfway houses,” are BOP-contracted reentry service providers that specifically provide housing. They may also offer other services like job training and child care programming, or they may focus solely on providing beds.

Challenges of Reentry and Promises of Rehabilitation

Every year, more than 600,000 people return to society after time spent in prison—averaging out to more than 1,600 people per day across the country.⁸⁷ The challenges faced upon reentry are staggering. As of March 2018, the National Inventory of the Collateral Consequences of Conviction had amassed over 48,000 restrictions placed on formerly justice-involved people by federal and state laws.⁸⁸ These restrictions vary in severity and by state or district, but all represent major logistical challenges to the process of reentry and rehabilitation. For example, someone returning to D.C. is ineligible to serve as a live-in aide, gain or reinstate a real estate license, qualify for medical marijuana, and reside in an adoptive family home, amongst hundreds of other extremely specific regulations.⁸⁹

The greatest challenges that are applied nearly universally to justice-involved people include ineligibility for public benefits like housing and food stamps, curtailed civil liberties for things like voting, restrictions on where and with whom they can live, and an inability to apply for student loans, certain grants, and lines of credit.⁹⁰ Above all this, there also hangs an intense cultural stigma that leads to discrimination against formerly justice-involved people by landlords, employers, and the general public.

The challenges faced upon reentry are staggering. 

While the odds against a successful reentry may seem difficult to overcome, strong rehabilitation efforts have produced promising results, especially amongst those coming from federal prisons. In a study conducted over four years with 262,000 recently released people, it was found that 93 percent of those who found employment during the period of their supervised release did not recidivate; by contrast, 50 percent of those who struggled to find housing returned to prison shortly after release.⁹¹ The importance of support services that help formerly justice-involved find housing and employment specifically cannot be overstated. The benefits of coordinated rehabilitation and supportive reentry are clear: they prevent recidivism and promote healthier lives for formerly incarcerated people.

Mapping the reentry landscape

Figure: Immediate reentry needs provided by caseworkers

In order to understand why reforms to the reentry system are necessary, it is important to understand the current landscape of the reentry process and its inherent inefficiencies. As a person prepares to exit a correctional facility, they will often consult with a case manager from a visiting nonprofit. Depending on the type of facility, individuals may already be familiar with these case managers. In jails that are located in centralized areas, nonprofit case managers may visit several times a month in order to present on the services they offer and meet with potential future clients to screen them for eligibility or complete intake forms before they are formally released. In more isolated facilities like federal and state prisons, which are often located far from the city centers or towns that most of their residents will return to, case managers may only visit once every few months and will mainly interact with those slotted for imminent release.

Upon release, people have the opportunity to reconnect with these nonprofits for a variety of immediate needs, like housing and health care, as well as long-term services, like job training and child care. Most often, one nonprofit will not offer every service that a client needs, so they refer out to other nonprofits that may provide that type of support. Many nonprofits maintain strong working relationships with one another; in fact, in Washington, D.C., there is a coalition of nonprofits in the reentry space who share clients regularly and use a common data-sharing platform, called Efforts to Outcomes, for client- and grant-tracking purposes.

In more isolated facilities like federal and state prisons, case managers may only visit once every few months and will mainly interact with those slotted for imminent release.

Residential Reentry Centers (RRCs) are distinct from direct service nonprofits in the BOP space. Specifically, RRCs are locations where those returning from prison can serve the remainder of their sentence in a setting that helps them transition back into society. There are currently 161 RRCs nationwide that are contracted with the BOP.⁹² While most states have between three and five houses, states with a larger population of those in federal prisons may have up to ten. In Washington, D.C., where between 1,400-2,000 people return from a federal prison every year,⁹³ there are two contracted RRCS—Fairview and Hope Village—with a combined total of 420 beds.⁹⁴⁹⁵ Not all of these beds are available to those returning from federal prison, however, as many RRCs contract with both the BOP and their local state jails. BOP contracts with these RRCs are massive. Hope Village, for example, has two contracts with the BOP that total about $5.5 million annually, or roughly $100 per bed, per day.⁹⁶

It is not uncommon for data sharing between the BOP and RRCs to be much more advanced than data sharing with other nonprofit services, even those that provide housing. Since RRCs have federal contracts, some also have established memorandums of understanding (MOUs) with the BOP facilities from which most of their clients return. This distinctly disadvantages nonprofits that provide housing but are not RRCs because there is no guarantee they will receive the information they need. One affordable housing nonprofit in Washington, D.C., for example, is not an RRC, but owns and operates two apartment buildings for formerly justice-involved people to live in immediately upon their release. Their case managers often struggle to get the information they need from BOP facilities, such as up-to-date psychological evaluations, medication records, and similarly vital data.

The poor coordination between reentry service providers and the BOP is born of many factors, but one of the most obvious challenges is the lack of information sharing as justice-involved people approach release. Without a strong precedent for and agreements to data share, the reentry process will continue to be a frustrating experience of tracking down needed information for both case managers and justice-involved people alike.

Create a Data-sharing Protocol for the Federal Bureau of Prisons and Beyond

For a pilot of standardized data sharing agreements, the Federal Bureau of Prisons (BOP) is the most obvious first choice. Though it is geographically sparse, the BOP has a centralized system that is more closely monitored than most states, and has been taking significant steps to reevaluate their reentry protocol since 2016. During this time of improvement, it would be prudent to incorporate all possible technological advancements, with data-sharing lying at the center of them.

As of December 2017, the BOP holds about 184,000 justice-involved people in 122 prisons across the country.⁹⁷ The BOP has a responsibility to ensure that these people successfully transition back into society and avoid repeat behavior that could lead to recidivism. Starting with a pilot in one city and then scaling to the rest of the BOP’s locations, data-sharing agreements should be the norm for correctional facilities and nonprofit service agencies. Agreements should expand beyond the typical laissez-faire approach that currently exists between certain BOP facilities and RRCs. Those involved in the process of creating new protocols should be the leaders of local nonprofits, the reentry affairs coordinators that sit at individual BOP locations, the National Reentry Service Division of the BOP located in D.C., and a technical team made up of either U.S. Digital Service employees or consultants familiar with the reentry space.

The BOP has a centralized system that is more closely monitored than most states, and has been taking significant steps to reevaluate their reentry protocol since 2016.

The BOP should work collaboratively with a nonprofit reentry network in one city to complete a research sprint that would identify the full scope of services that these organizations provide. After classifying these organizations into buckets based on what information they need to provide services effectively and efficiently, the BOP should map where this information is stored, how long it takes to access, and the federal guidelines around information privacy for each piece of information. For example, nonprofits that provide housing need information about their clients’ medications but those who provide job training do not. It is important to only share the minimum amount of information necessary to protect the privacy of formerly justice-involved people, so bucketing services will make data agreements safer and more manageable. With this knowledge in hand, the BOP can create a set of standardized MOUs for distribution to its correctional facilities, each one correlating to a type of service provided. Standardization will make partnering with local nonprofits infinitely easier for federal prisons; but, beyond this, it should also become a requirement for every nonprofit with which the prison currently has an informal partnership and the standard of practice going forward for new partnerships.

Washington, D.C., would be an excellent pilot location because the BOP’s headquarters are located there, and the reentry service nonprofits in the city already have the capacity to share data between agencies and meet frequently to discuss policy issues. The BOP also has a current data-management tool called R3M, which streamlines the referral process to RRCs, and integrating this tool with the Washington, D.C., reentry network system could create a better case-management protocol.⁹⁸ Washington, D.C., is also an ideal location because many national nonprofits that provide reentry services are headquartered here as well. The BOP should establish national MOUs as much as possible and then create individual task orders for the local offices.

It is incredibly important to pilot these protocols before spreading them across the BOP. Learnings generated from a pilot program can help the BOP identify best practices, understand where the work needs to pivot, and have their progress reviewed by the Federal Interagency Reentry Council (FIRC). Once the initial pilot is completed, the standardized MOUs and requirements for data sharing can be rolled out throughout the BOP. The progress represented by this policy change fits well into the BOP’s plans for future success. The BOP went through an intense period of scrutiny in 2016 in order to reduce the recidivism rates amongst formerly justice-involved people who were once in BOP custody. From this, one of the recommendations was to make the BOP’s model for reentry more effective by creating new partnerships, testing new operating models, and providing the resources necessary to sustain successful models in the future.⁹⁹ Given that the BOP has already taken steps to do this with RRCs by creating better pathways for data interoperability, expanding the initiatives to other service agencies should be an easier process. Establishing data-sharing protocols and agreements would align well with the BOP’s organizational goals and current projects.

Learnings generated from a pilot program can help the BOP identify best practices, understand where the work needs to pivot, and have their progress reviewed by the Federal Interagency Reentry Council.

The BOP’s progress should be continuously monitored and the outcomes of individual formerly justice-involved people tracked. If the program is showing success, it would be beneficial to create an explanatory review so that states and localities can begin to implement similar programs in their individual corrections departments. It may not be as difficult a task as it seems to spread this practice from the BOP, should the pilot prove successful. There are a plethora of resources for organizations trying to partner with correctional facilities, and many outline how to approach the topic of information sharing. As noted in The Urban Institute’s guide for community organizations attempting to establish partnerships with local jails, “Information sharing with correctional staff, though often neglected, is a key point of the partnership-building process.”¹⁰⁰ They suggest developing clear protocols and using them to provide discharge planning services, allowing organizations to better serve their target population “by engaging them sooner and knowing who most warrants scarce resources.”¹⁰¹

There also exist examples of successful programs at the county and city level, which can serve as informative foundations for other localities implementing similar methods. In Montgomery County, Maryland, there are biweekly meetings of the Re-Entry Collaborative Case Management group, which develops comprehensive plans for people from the Montgomery County Correctional Facility who are considered “high risk” for recidivating. The group represents a wide variety of stakeholders, including correctional staff (case managers, social workers, and treatment staff), local law enforcement, parole and probation offers, human service agency officials, and community service providers. By coordinating services and openly sharing information, the group is able to much more effectively provide a continuum of services during reentry.¹⁰²

An additional element that may be helpful for the dissemination of these policies from the BOP to states and counties is the recent renewal of the Federal Interagency Reentry Council (FIRC). It has been moved from where it previously stood in the Department of Justice (DOJ) to the White House and staffed with the heads of eleven government departments and agencies.¹⁰³ While it is currently co-chaired by the senior advisor in charge of the White House Office of American Innovation, the committee lacks a strong technical perspective. In order to remedy this, it would be advisable to add a representative from the Office of Science and Technology Policy (OSTP) and potentially create a U.S. Digital Service team dedicated to helping the Council layout implementation plans for their technological projects. It is within the mandate of the council to engage with key stakeholders in order to “improve collaboration between federal, state, local, and tribal governments through dissemination of evidence-based best practices to reduce the rate of recidivism” by considering “available partnerships with…community organizations.”¹⁰⁴ From this mandate, it would be appropriate for the Council to more fully investigate the role of technology in partnerships with community organizations, with standardized data transfer agreements playing a pivotal role.

There are a plethora of resources for organizations trying to partner with correctional facilities, and many outline how to approach the topic of information sharing.

It is important to remember that the benefits of lowered recidivism cannot be undervalued. As noted by FIRC, “The high cost of incarceration directly impacts states’ abilities to fund other needed services and programs in the community, creating a cycle of community disinvestment.”¹⁰⁵ If a pilot of data-sharing and cooperation agreements works well at the BOP level, it could be implemented at the state level. These changes may, in fact, end up paying for themselves; although the initial funding to change the system would represent an increase in budget, the overall savings of lowered recidivism could fund the continuation and updates needed to maintain a well-functioning data transfer system.

Precedence for Data Sharing

Data sharing within other government agencies has seen positive results. The Department of Health and Human Services (HHS) recently piloted an increased data-sharing protocol with state and local human services agencies that provide access to various federal programs. The program had great success improving administrative efficiency and client services and, most relevant to any potential partnership between the BOP and local nonprofits, increased data sharing made the work of individual case managers much easier. Case managers from New York City and Allegheny County, Pennsylvania, noted that data sharing made obtaining client information much quicker and helped them make decisions that were better informed by their clients’ needs.¹⁰⁶

The main concern over data sharing, understandably, was privacy, which they mitigated through an extensive process for determining who would be granted access to information that they needed to perform their jobs. New York City’s data-sharing initiative worked with program officials, department attorneys, and other relevant stakeholders to define 34 different user groups and then segmented data access under these categories to ensure only those who needed the information had the legal authority to do so. They also employed security measures individualized to their organizations, including user training, password protection, and audit trails. Additionally, all the sites in the HHS study created multiple data-sharing agreements to define exactly what information was shared, with whom, how, and for what purpose. These data-sharing agreements were between service agencies and also were in place with external government entities.

Data sharing made obtaining client information much quicker and helped them make decisions that were better informed by their clients’ needs.

The pilot additionally provided an interesting funding model. Allegheny County, instead of relying on support from HHS, worked with 12 local funders to form a coalition that provided the funding required to start a data warehouse and long-term support for improvements and requisite updates. The success of this pilot experience proves not only that data sharing can be done but also that service provision clearly benefited from its establishment while taking the necessary measures to consider long-term success.

Implementation Challenges

The challenges to a comprehensive data-sharing plan are substantial, but not insurmountable. Primarily, such an adjustment requires an unprecedented synchronization between correctional facilities and nonprofits, most of which use different data-management tools. In order for this to happen most rapidly, the data may have to at first come via the system that the correctional facility has in place, which would most likely be paper records that they have on hand. For more sensitive data, like psychological evaluations and medical information, which are required by most residential reentry nonprofits, it is possible that this information is stored at a central office but not at the correctional facility itself, presenting another challenge to implementation. In order to adjust for this, creating protocols that require all records for returning people be automatically delivered to and accumulated in their facility three months prior to their release could give ample time for transfer of that information to the relevant service nonprofits.

In an ideal world, records that the correctional facility collects would be entirely electronic, and the information relevant to nonprofit case managers, including specific medical information, history of courses taken or degrees earned during incarceration, and whether or not the individual is being released on parole, would be sent to them with the individual’s consent before their release. This would allow nonprofits to take additional time to prepare for each client’s arrival. This would require correctional facilities and nonprofits to use similar data-management systems, so as to ease the transfer of data in accessible formats on both sides. Many reentry nonprofits in D.C. use different case management systems, such as Penelope and Apricot, for their in-house needs, and use Efforts to Outcomes when communicating with other nonprofits about shared clients. Transferring data to nonprofits through Efforts to Outcomes in D.C., and in similar coalition-based data-management systems throughout the country, could be a proactive step for uniting correctional facilities and nonprofits.

Perhaps the greatest concern of all, however, is the issue of data privacy and dignity. Data breaches are relatively common, and both government agencies and nonprofit organizations often lack the capacity to upgrade to the most up-to-date security features. Formerly justice-involved people are particularly vulnerable, and therefore their data requires an additional element of security that will be difficult to manage at scale. It is therefore necessary for both correctional facilities and nonprofits to take relatively simple steps to minimize data abuse and potential harm for returning individuals. First, each nonprofit should compile a list of the data they require from their potential clients for their given services. They should receive only this information and nothing more. For example, if an individual is working with one nonprofit for housing and one nonprofit for job training, the psychological evaluation required for housing should only be given to the former nonprofit, and the history of courses taken during incarceration should only be given to the latter. By employing this approach, the spread of sensitive information is minimized to only those on a need-to-know basis. This also protects client dignity, allowing them to disclose information only to those they trust with sensitive services. In addition to limiting what information is shared, nonprofits can integrate tools like two-factor authentication into their data-management systems, increasing digital security at little to no cost for the organization.

It is necessary for both correctional facilities and nonprofits to take relatively simple steps to minimize data abuse and potential harm for returning individuals.

Furthermore, when correctional facilities and nonprofits enter into data-sharing agreements with one another, it must be a stipulation that nonprofits cannot share any information outside their organization without the written consent of the individual. When an organization refers a client to another nonprofit for particular services, basic intake information should be shared freely to quickly get the client what they need, but anything given by the correctional facility should be approved by the client themselves. Here is where examples from New York City and Allegheny County become particularly relevant, as the nonprofits who established data-sharing agreements with HHS were all able to upgrade their data security with minimal cost and were able to identify funders who helped them establish a data warehouse. By sharing knowledge across fields, nonprofits and coalitions in the reentry space could employ the same strategies seen in other places around the country to safeguard their data.

Benefits of this Approach

The benefits of data-sharing agreements between correctional facilities and nonprofits can be summarized into three major categories. First, this process can smooth the path from incarceration to services to independent living. When case managers can spend less time gathering information from clients, they are instead able to devote themselves to more intensive case management and other tasks that they may not currently have the capacity to undertake. It also means that case managers can be more prepared to help their clients upon arrival, instead of having to do time-consuming intakes and information gathering from various sources to verify that a client is eligible for and accepted into a given benefits program.

By standardizing the data that they receive from correctional facilities, case managers will be able to more effectively target their programming. When orally retelling personal histories, it is common for people to forget things or accidentally omit information that could be helpful for their reentry. For example, if a case manager is able to know in advance a client’s history of courses, degrees, and job training programs that they may have engaged with during incarceration, they can adequately prepare programming that will benefit the maximum number of clients.

This process can smooth the path from incarceration to services to independent living.

Finally, by transferring this data in advance of a client’s arrival, their experience with the nonprofit can feel more like a benefits program and less like a transition out of incarceration. Having to retell personal history details of time spent incarcerated can be a traumatic experience, one which is easily prevented by a data transfer system. Empowering clients to move forward can be a powerful tool in the reentry process.

It is important to acknowledge that this solution represents a palliative, not curative, approach. Implementing such a system does not solve the problem of mass incarceration, and supporting the current system by making it more streamlined can be seen as a detriment to progress. With that said, there are thousands of people who return home each month who need support now. There are thousands of case managers trying their best to help them but struggling with an inefficient system that requires a great deal of time and energy to navigate. We have potential opportunities to support them, and data sharing can play a small, but significant, role in that.

Emma Coleman is a 2017-18 Millennial Fellow with the Public Interest Technology initiative at New America. She would like to thank the numerous nonprofits in D.C. who spoke to her about their work within the criminal justice system for her report, as well as the Public Interest Technology team and the Millennial Public Policy program for their support.

by Jenny Muñiz

For the first time, students of color account for the majority of students in U.S. public schools.¹⁰⁷  There is growing recognition that the unique experiences and perspectives these students bring to learning can benefit everyone in the classroom.¹⁰⁸ Taking advantage of this opportunity, however, requires that schools meet these students’ unique needs. It is of chief importance that all students have access to well-resourced schools where they can enjoy positive school climates, high expectations, and meaningful relationships with quality educators with whom they can relate. Of equal importance, schools must usher in new instructional approaches, curricula, and communication styles that better reflect students’ experiences, backgrounds, and strengths. Unfortunately, preparing teachers to serve increasingly diverse populations of students has proven to be one of the most formidable challenges facing our education system.

Enduring opportunity gaps in the education system have been widely documented, but they are worth emphasizing: African American, Latino, and Native American students are more likely to attend racially segregated schools, where they receive vastly inferior learning experiences compared to their white and high-income peers.¹⁰⁹ They are more likely to experience hostile school environments, rigid instructional approaches, and narrow curricula that often do not reflect their background and culture.¹¹⁰ Additionally, students of color are overwhelmingly taught by the least-experienced teachers and often have limited access to teachers of color who can serve as valuable role models.¹¹¹ Indeed, most recent federal government data suggest that about 80 percent of public school teachers are white. These gaps contribute to the many disparities between students of color and their white peers on a range of academic success indicators.¹¹²

To improve the learning outcomes for students of color, future reform efforts should have a core focus on cultivating a culturally responsive teaching workforce. It is critical to revisit teacher quality reform efforts to ensure they embed a racial equity lens that pays credence to the ways race and ethnicity shape the learning and life experiences of students of color. This brief aims to provide a rationale for culturally responsive teaching by outlining current blind spots in teacher education and offering a definition of culturally responsive teaching. The brief ends with a call for states to leverage their statewide professional teaching standards to embed a focus on culturally relevant competency throughout teachers’ careers.

Preparing teachers to serve increasingly diverse populations of students has proven to be one of the most formidable challenges facing our education system.

The intent is not to present a comprehensive account of states’ efforts to adopt culturally responsive teaching, nor to provide a detailed account of the ways states are currently embedding culturally responsive teaching into their statewide standards for teachers. Rather, this brief should serve as a catalyst for further discussion about how one policy lever—professional teaching standards—can be utilized to ensure all students have access to teaching that meets their needs.

Developing Teachers to Thrive in Diverse Classrooms

Teachers have little control over many of the in-school factors (e.g., district funding, school leaders, work climates) and out-of-school factors (e.g., poverty, housing segregation, a dearth of health care access) that directly and indirectly shape the learning environments of many minority students. Nevertheless, many of the changes needed to address opportunity gaps are within the purview of teachers. Teachers play a central role in selecting and supplementing curriculum, implementing instructional strategies, and fostering positive learning environments, caring relationships, and high expectations for their students. Increasingly, their role extends beyond the classroom, as they participate in professional learning communities, nurture partnerships with the community, and take on advocacy activities that support students and the teaching profession.

Although teacher development has long been a critical focus of education reform efforts, these endeavors have traditionally paid insufficient attention to preparing teachers to affirm and respond to cultural diversity in the classroom. In particular, there has been little focus on preparing, coaching, and assessing teachers in ways that spur critical reflection about their own intentional and unintentional biases toward students of color. Less attention has also been paid to vital, if uncomfortable, discussions about how the education system privileges white students over their peers. Indeed, scholars maintain teacher education systems are far from achieving the “ideological shift” necessary to yield a teaching workforce that is genuinely able to excel in working with students of color.¹¹³

Current Gaps in Teacher Education

Over recent decades, many changes have been made to the way teachers are prepared, supported, and evaluated in an effort to redress racial achievement gaps. These efforts to improve teacher quality have been laser-focused on preparing teachers to raise student achievement on a narrow set of measures for student performance.¹¹⁴ As a result, issues related to race, ethnicity, multiculturalism, socio-emotional health, and school climate have been sidelined.¹¹⁵ The result of this long-standing gap in teacher education is that many teachers are not prepared to affirm racial diversity or address the racial opportunity gap head on.¹¹⁶

Educators report feeling unprepared to work with racially diverse students, even after taking coursework in multicultural education.¹¹⁷ Many educators also have little understanding of how individual and larger social structures drive the unparalleled treatment of minority students in and out of school.¹¹⁸ It is particularly troubling that educators can actively reject information about social inequality by becoming emotional, avoidant, and defensive.¹¹⁹ Without knowledge of structural barriers and an understanding of how their own experiences and identity shape the learning experiences they create for students of color, well-intentioned teachers can adopt practices that range from ineffective to damaging.

Unexamined teacher beliefs can help sustain stereotypes and deficit preconceptions about students of color. If a teacher is never prompted to ask critical questions of themselves—such as: Am I giving harsher consequences to some students for the same behavior as other students? They shouldn’t be expected to change their behavior. Evidence of enduring implicit biases can be found in the disparities between students of color and their white peers when it comes to teacher expectations¹²⁰ and discipline choices.¹²¹ These biases are also reflected in the markup of the special education population, where students of color are overrepresented,¹²² and in the gifted-and-talented programs, where students of color are underrepresented.¹²³

Without knowledge of structural barriers and an understanding of how their own experiences and identity shape the learning experiences they create for students of color, well-intentioned teachers can adopt practices that range from ineffective to damaging.

When teachers are presented with these racial equity gaps, rather than reflect on their own beliefs and practices, teachers may say that they treat all students equally because they “don’t see color.”¹²⁴ The problem with the colorblind strategy, however, is that it often leads teachers to silence conversations about skin color and inequality when students bring them up. This conveys to students that they, too, should be cautious to notice skin color and that bringing up difference is inappropriate for the classroom. For students of color, the consequences can be worse. These students may experience unfair treatment because of how they look, and ignoring this reality fails to prepare them to overcome these challenges. Being taught that “color” has no bearing, but later experiencing challenges due to the color of their skin, can have long-term consequences for young people of color, including lower self-esteem,¹²⁵ decreased academic outcomes,¹²⁶ and a higher likelihood of engaging in risky behavior.¹²⁷

The reality is that kids notice racial differences from a young age.¹²⁸ Young people also see, if not experience, prejudice and discrimination. Rather than dismiss this reality, teachers should foster students’ natural curiosity to learn about race and the experience of people from different cultural backgrounds. This is a valuable part of the educational process and should be a foundation for learning in the United States today. Transforming educator practices to be more in line with what historically underserved students need will require states and teacher preparation programs to maintain an unflinching commitment to transparency about these existing biases that are endemic to our education system.

By ensuring teachers are equipped with the necessary skills, competencies, and dispositions essential to working with students of color, culturally responsive teaching has the potential to help meet this commitment. Unfortunately, despite the recent uptick in the number of available and required courses on culturally responsive teaching for prospective and practicing teachers, the approach is still regarded as auxiliary.¹²⁹ Seldom is culturally responsive teaching included as part of a long-term effort to improve school culture and climate. Teachers are also rarely afforded the opportunity to practice or receive critical feedback and mentoring to enhance their expertise in culturally responsive practices.

Many steps are needed to ensure culturally responsive teaching has a central role in teacher development. To be most effective, the focus on culturally responsive teaching should carry over at every step in a teacher’s career. This means that aspiring teachers should have access to relevant coursework and receive proper coaching in culturally responsive teaching approaches during their student teaching; new teachers should receive ongoing mentoring in culturally responsive teaching during their induction years; experienced teachers should be able to extend their skills through professional learning and have opportunities to advance along the career ladder when they demonstrate high levels of competency.

Teachers are rarely afforded the opportunity to practice or receive critical feedback and mentoring to enhance their expertise in culturally responsive practices.

No one policy solution will produce the cohesive system necessary; instead, ensuring that the focus on culturally responsive teaching is embedded across teachers’ career continuum requires state policymakers to make improvements in multiple related policy areas, including certification requirements, educator evaluation, professional learning, compensation, and career ladders. This is no easy feat, especially considering the numerous institutions that play a role in teacher effectiveness, which often function in a siloed fashion. Nonetheless, it is imperative that the numerous institutions involved in educating, training, and supporting teachers throughout their careers share a common vision for culturally responsive teaching. Continuing to sidestep culturally responsive education in teacher development, or relegating it to only a few courses and professional development sessions throughout a teacher’s career, will not engender the systemic change necessary to confront the racial opportunity gap.

Defining Culturally Responsive Teaching

Even as the term “culturally responsive teaching” has gained popularity in recent years, interpretations of this approach vary widely. It is perhaps easiest to begin defining culturally responsive teaching by describing what it is not. Culturally responsive teaching is not simply a curricular change that aims to incorporate the culture of students. It is not a “check-the-box” activity whereby teachers devise a one-off lesson on Black History Month but never engage in an examination of their own potential biases and prejudices as they relate to Black students. Instead, culturally responsive teaching is a comprehensive set of practices that allows teachers to reflect on questions of power, ask critical questions about race and identity, and uncover their own unconscious biases while simultaneously supporting students’ social, emotional, and academic growth.

This definition of culturally responsive teaching draws on the work of several innovative scholars, including Gloria Ladson-Billings, Geneva Gay, Sonia Nieto, and Tara Yosso. While their emphasis may vary, they collectively contribute to a valuable framework that could help guide teacher development and classroom practice. Given the long-standing racial disparities in education, the focus of these scholars is on improving teachers’ capacity to work with students of color, but culturally responsive teaching can benefit all students,¹³⁰ and the approach has been broadened to consider the many other social identifiers that can define students, including gender, socioeconomic status, sexual orientation, language, and ability.¹³¹

Culturally responsive teaching is a comprehensive set of practices that allows teachers to reflect on questions of power, ask critical questions about race and identity, and uncover their own unconscious biases while simultaneously supporting students’ social, emotional, and academic growth.

Currently, culturally responsive teaching is most commonly understood as a strategy for improving curriculum and instructional choices. This is true, in part. Gay defines culturally responsive teaching as “using the cultural knowledge, prior experiences, frames of reference, and performance styles of ethnically diverse students to make learning encounters more relevant to and effective for them.”¹³² In short, Gay purports that teachers use their knowledge of students to bridge and facilitate learning. She maintains that teachers should select books, instructional materials, and assessments that validate students’ interests and existing funds of knowledge, and suggests that teachers build on student’s existing connections to their home and community life when they design and deliver lessons. Yosso makes the case that teachers who make these informed instructional decisions have the core belief that students of color bring different assets to learning, including community cultural wealth.¹³³

Culturally responsive teaching also calls for supportive classroom environments and meaningful student-teacher relationships.¹³⁴ The need for stronger student-teacher relationships has taken on particular importance recently in light of mounting evidence that students of color do not experience the same relationships with their teachers that their white peers do.¹³⁵ Emerging research also points to an uptick in race-related bullying in schools, a sign that teachers are facing new challenges as they try to promote a sense of safety and belonging among all of their students.¹³⁶

One of the most overlooked elements of culturally responsive teaching is self-reflection. Culturally responsive teachers analyze their beliefs, personal and family histories, and their membership in different groups. Critical self-reflection is an essential step in helping teachers begin to reconcile deficit conceptions, prejudices, or racial assumptions they may have toward specific groups.¹³⁷ In addition to self-reflection, culturally responsive teachers question existing unequal policies and practices that deter student success. Teachers, Nieto argues, should continuously scrutinize “school policies and practices—the curriculum, textbooks and materials, instructional strategies, tracking, recruitment and hiring of staff, and parent involvement strategies—that devalue the identities of some students while overvaluing others.”¹³⁸ Nieto also contends that a core purpose of teacher education should be to support teachers to “undergo a process of personal transformation based on their own identities and experiences.”¹³⁹ Only by undergoing this personal development can teachers indeed begin to develop trusting relationships with all students and create learning environments where all students can thrive.

Although more evidence of the positive impact of culturally responsive teaching is needed, existing research evidence is promising.¹⁴⁰ Encouragingly, high expectations from teachers have been linked to positive student academic outcomes,¹⁴¹ and higher multicultural awareness from teachers has been shown to promote more nurturing classroom environments.¹⁴² Research is also increasingly demonstrating that building on students’ prior knowledge and experiences can spark future motivation for learning.¹⁴³ Additionally, among other evidence-based culturally responsive practices,¹⁴⁴ the use of relevant learning materials has been shown to increase comprehension.¹⁴⁵

Critical self-reflection is an essential step in helping teachers begin to reconcile deficit conceptions, prejudices, or racial assumptions they may have toward specific groups.

Far too often, culturally responsive teaching is espoused by states, districts, schools, and teacher preparation programs, but little is done to outline the day-to-day practices that it requires. Only a few states stand out for synthesizing research findings into guides for their teachers. Wisconsin, for example, developed Wisconsin’s Model to Inform Culturally Responsive Practices, which outlines eight actions for culturally responsive teachers to consider, such as becoming self-aware, examining the system’s impact on families and students, and adopting the belief that all students can learn.¹⁴⁶

Education leaders should continue to draw from existing research to develop a clearer picture of what culturally responsive teaching looks like in practice.¹⁴⁷ They should seek to develop a framework that outlines a continuum of teaching behavior, ideally across a multi-level continuum, that enables teachers to identify areas for growth throughout their careers. Ultimately, teachers can only become competent in culturally responsive teaching if they have clear a measuring stick and multiple opportunities to improve their competencies throughout their careers.

Professional Teaching Standards

A first step state education leaders can take to support culturally responsive teaching is to integrate this approach into their statewide standards for teaching. Statewide professional teaching standards broadly outline states’ conceptions of what knowledge, skills, and dispositions they value in a competent teacher. Nearly every state in the country has adopted teaching standards; however, the exact purpose of each state’s teaching standards varies significantly.¹⁴⁸ In a number of states, teaching standards are only used as the basis for teacher preparation and licensure (called “licensure standards”). Other states have developed performance standards that define not just what teacher should know and be able to do but also what performance looks like across different levels. Such standards can be used as tools for self-reflection and ongoing mentoring during early induction years, or as the basis for evaluation systems, professional growth plans, and ongoing professional learning.¹⁴⁹

Several states have revised their policies to ensure that teaching standards address these purposes in a more integrated, coherent way.¹⁵⁰ In a few states, teacher preparation programs and school districts share standards, ensuring that teachers are prepared and coached using the same expectations by which they will be evaluated and supported as practicing teachers. In Massachusetts, for example, the Massachusetts Professional Standards (PSTs) for Teachers help shape the program design and course offerings of teacher preparation programs. They help teacher candidates receive purposeful feedback and set growth goals. Additionally, the PSTs are aligned to Massachusetts’ educator evaluation system, which allows in-service teachers to grow throughout their careers.¹⁵¹

New Mexico’s standards are a core part of the state’s three-tiered licensure system, which incentivizes educators to develop and improve their performance as they advance in the career ladder from “Provisional” to “Professional” to “Master.” Progress through each tier hinges on teachers’ demonstrated mastery on the annual evaluation system, the Professional Development Dossier (PPD), which is partly based on the state’s teacher performance framework, the NM Teacher Competencies. The state stands out as one of the few where multi-tiered licensure is tied to compensation.¹⁵²

A first step state education leaders can take to support culturally responsive teaching is to integrate this approach into their statewide standards for teaching.

Although some states have made headway in aligning the teacher-career continuum, there is room to improve, especially in ways that will support advances in culturally responsive teaching. In many states, the various components of the teacher career continuum are uncoordinated, often requiring similar, but unaligned, expectations. The most common missed opportunity involves states adopting rigorous standards for teacher preparation and licensure, but not using or aligning these standards to requirements across a teacher’s career. States should seek to identify areas for alignment or, at the very least, adopt alignment documents that clarify how expectations for teachers remain consistent throughout their career. Ultimately, teaching standards will only raise the bar of teaching–and culturally responsive teaching in particular–if they are embedded within a cohesive and aligned system of teacher preparation and ongoing learning.

The national standards developed by the Interstate Teacher and Assessment Support Consortium (InTASC),¹⁵³ provide a model for how to integrate culturally relevant practices into state teaching standards.¹⁵⁴ Notably, this national model takes into account the need for teachers to have the appropriate dispositions to work with diverse student populations. The InTASC standards contain one standard explicitly dedicated to outlining the knowledge and skills needed to work with diverse learners. The standards, titled “Learner Differences,” suggest teachers should use their “understanding of individual differences and diverse cultures and communities to ensure inclusive learning environments that enable each learner to meet high standards.”¹⁵⁵ These standards also encourage inquiry into potential teacher biases: “The teacher reflects on his/her personal biases and accesses resources to deepen his/her own understanding of cultural, ethnic, gender, and learning differences to build stronger relationships and create more relevant learning experiences.”¹⁵⁶

The extent to which states’ standards currently incorporate culturally responsive teaching should be further explored. A 2005 analysis found that only 16 states explicitly referred to cultural competencies in their teaching standards. Additionally, 28 states addressed culture, while 11 referred to race and ethnicity in some way.¹⁵⁷ Most recently, states have worked to better incorporate issues of student diversity in teaching standards. The CEEDAR Center found that most states included some language about supporting diverse students through quality instruction and positive learning environments, but the way states addressed student diversity was not directly defined.¹⁵⁸

Despite the influence of promising models, states’ standards currently vary in the way they incorporate issues related to culturally responsive teaching. Further, there are gaps in knowledge as to whether existing state standards include key references to potential individual and institutional biases. In response, states should analyze their current standards and begin work to ensure these standards place value on the various aspects of culturally responsive teaching.

Conclusion

Ensuring students of color succeed is crucial to the United States’ future prosperity. Culturally responsive teaching offers one opportunity to better support these students by ushering greater racial equity to teacher attitudes, teacher practices, and learning environments. While educational leaders and practitioners are increasingly recognizing the value of culturally responsive teaching, a range of policy changes are needed to ensure that a focus on culturally responsive teaching is endemic to every teacher preparation program, district, school, and classroom.

To propel this vision, state education leaders can begin by coming to a consensus on what culturally responsive teaching looks like in practice and developing relevant teaching standards. State education leaders should undertake an analysis of their current statewide teaching standards to determine how well they integrate culturally responsive teaching and whether their standards currently form part of an aligned, cohesive system of continuous professional growth. This assessment can serve as a foundation for reform recommendations, which may include revising teaching standards, piloting a stand-alone set of culturally responsive standards, or developing metrics, rubrics, and guidance documents.

More urgency is needed around implementing culturally responsive teaching. Due to the vast chasm between students of color and their white peers, states should get serious about helping teachers strengthen their knowledge, skills, and dispositions so that they can be in a better position to support minority students. Investing in culturally responsive teaching can be an important step in bridging the opportunity gap and ensuring students of color have a fair opportunity to succeed.

Jenny Muñiz is a 2017-18 Millennial Fellow with the Education Policy program at New America. She would like to thank her New America colleagues Reid Cramer, Amaya Garcia, Elena Silva, and Emma Coleman for their support and insight.

by Myacah Sampson

“Tradition is not without a political context.”¹⁵⁹

– Jennifer Denetdale, Associate Professor of American Studies at the University of New Mexico

In 2014, then-Navajo Nation President Ben Shelly spoke to a crowd of tribal leaders and community members in an annual public acknowledgement of the signing of the 1868 Treaty of Bosque Redondo—the treaty that allowed the Navajo people to return to a reduced portion of their homeland following an attempted genocide led by the government of the United States.¹⁶⁰ Shelly offered his reflections on the ways in which the attempted genocide, which involved American military officials deporting and marching Navajo people more than 300 miles and containing the survivors in an internment camp for four years, shaped Navajo identity and their life philosophy. According to the president, prior to the forced removal, the Navajo people lived in accordance with a mindset of t’áá hwó ájít’ éego or “self-reliance,” which then shifted “into one of dependence upon the federal government” following their return.¹⁶¹ Shelly called upon the Navajo people to return to the concept of t’áá hwó ájít’ éego as a principle for Navajo self-determination, and this idea served as a core component of his administration’s State of the Navajo Nation address delivered earlier in the year.^{162 163}

Though Shelly claimed t’áá hwó ájít’ éego was a traditional, non-Western philosophy that Navajo elders had passed down since the attempted genocide, the phrase and philosophy is of more recent origin in the Navajo Nation. It was developed during welfare reform in the 1990s and used as the guiding philosophy for the Navajo Nation’s Temporary Assistance for Needy Families cash transfer program—the Navajo Nation Program for Self-Reliance.¹⁶⁴ Both in Shelly’s speech and in the Office for Self-Reliance, t’áá hwó ájít’ éego is deployed as a shared, long-standing value among the Navajo people. In reality, t’áá hwó ájít’ éego is merely a translation of the rhetoric that informed the Personal Responsibility and Work-Opportunity Reconciliation Act (PRWORA) of 1996 and is an example of the ways in which federal Indian policy has embedded the neoliberal value of “personal responsibility” behind a culturally affirming veneer.

According to the president, prior to the forced removal, the Navajo people lived in accordance with a mindset of t’áá hwó ájít’ éego or “self-reliance,” which then shifted “into one of dependence upon the federal government” following their return.

In this paper, I aim to examine how the rhetoric of tradition is deployed in the Navajo Nation Program for Self-Reliance. When exploring the design of the Navajo social safety net programs, I contrast the t’áá hwó ájít’ éego, a contrived, politically motivated idea premised on the pathologization of poverty, with the principle of k’é, a historically verified Navajo value of interdependence. I outline the trajectory of historical and political changes that allowed for the burial of k’é to occur, characterized by the federal government’s shift away from overtly genocidal and assimilative policies to the establishment of federally recognized tribal governments and rhetoric of cultural affirmation set forth by the Meriam Report and the Indian Reorganization Act of 1934. I propose that the Navajo Nation’s social safety net of the future be guided by the Navajo concept of interdependence, or k’é—a component of Navajo philosophy that predates American arrival—rather than the recently developed t’áá hwó ájít’ éego.

Contemporary Economic Conditions of the Navajo Nation and Their Origins in Federal Indian Policy

The Navajo Nation is roughly the size of West Virginia, crossing portions of Utah, New Mexico, and Arizona. It is the second-largest tribe in the country, with a population of 332,129 enrolled members as of the 2010 Census.¹⁶⁵ One hundred and forty-five thousand Navajo people reside on the reservation, 80,000 live in towns that border the reservation, and the remainder live in a variety of urban and rural settings in different parts of the United States and abroad.¹⁶⁶ Forty-three percent of Navajo people live below the federal government’s official poverty line and the average per-capita income is $7,300.¹⁶⁷ Fifty-six percent of Navajo adults over the age of 25 possess a high school diploma or equivalency, and 7 percent have a college degree.¹⁶⁸

Unemployment in the Navajo Nation remains over 50 percent, with most employment opportunities being seasonal or associated with tourism.¹⁶⁹ Major employers include the Navajo Nation Government, Indian Health Services, and the Bureau of Indian Affairs. Private sector employment includes work in coal mines, power plants, economic development projects, and a handful of small retail businesses. Nearly 51 percent of the Navajo Nation’s annual revenue comes from mining, but many of its mines and power-generating stations are slated to cease operations within the next few years as they have been outpaced by the rapid development of cheaper and more abundant natural gas and oil fracking enterprises.¹⁷⁰

Forty-three percent of Navajo people live below the federal government’s official poverty line and the average per-capita income is $7,300.

The current economic condition of the Navajo Nation can be traced directly to the U.S. invasion of Navajo lands in 1846, attempted genocide during 1864 through 1868, and subsequent management of Navajo government affairs since the Indian Reorganization Act of 1934. Navajo historian Jennifer Denetdale has outlined how contemporary ventures to develop natural resources, including naturally occurring uranium, coal, and waterways on Navajo land have “not only physically displaced Navajo people,” but “forcibly removed them from participating in an agricultural and livestock-based economy to a wage economy.”¹⁷¹ After two decades of resistance to U.S. colonial forces in the mid-nineteenth century, being forcibly removed to a reservation nearly 300 miles away from their homeland, and eventually negotiating a return to a significantly diminished homeland base, the Navajo established lifestyles based on raising livestock, primarily sheep, until the 1930s. This economy provided more than half of Navajo people’s cash incomes and structured Navajo society in a manner that created an “elite” group of Navajo, who allocated agricultural resources and sponsored community ceremonies.¹⁷²

By 1933, near the start of the U.S. recovery from the Great Depression and the height of the Dust Bowl, federal officials reported that Navajos owned more than 1 million head of livestock, prompting concerns about overgrazing and the potential for soil erosion in the Southwest. Bureau of Indian Affairs Commissioner John Collier ordered the Navajo to reduce their herds by 45 percent by the 1950s, overseen by the federal Livestock Reduction Program.¹⁷³

This program was similar to the crop reduction programs enacted during the Great Depression, but instead was motivated by environmental rather than economic concerns and was carried out in a manner with disparate racial impacts. Though federal officials recognized the economic significance crops bore to white farmers during the Great Depression and provided monetary compensation to them for crop reduction to manage price-depressing surpluses, the Navajo were not given the same consideration. Navajo livestock was as foundational to their wealth as crops were to white farmers; yet, a double standard was applied, and Navajos were not adequately compensated when their livestock was destroyed.¹⁷⁴ Range riders often took livestock by force, slaughtered them without notice, and burned carcasses in front of their owners; families were unable to shear the wool that could be woven into rugs and sold.¹⁷⁵ Given this, Navajo livestock reduction might be thought of as a federally initiated asset-stripping program, as it destroyed Navajo people’s means of income and provided no adequate compensation.

Since the implementation of the Livestock Reduction Program, Navajo peoples’ primary economic options have been either wage labor in off-reservation border towns—where employment discrimination and harassment by the police and non-Native residents are common—jobs in coal mining, energy production, or tribal government positions, or through public assistance programs. The destruction of sheep herds fundamentally altered the social and political organization of Navajo society. This impacted both subsistence populations and of the influential class of “elite” Navajo, who played pivotal roles in the community’s organization of resources and gatherings.¹⁷⁶

The Meriam Report and Indian Reorganization Act of 1934

When this program was implemented on Navajo land, larger shifts in federal approaches to Indian policy that gave little consideration to the economic histories of American Indian communities were already underway. The Meriam Report, commissioned by the Institute for Government Research (later renamed the Brookings Institution) and published in 1928, summarized the ways in which the Bureau of Indian Affairs and federal Indian policy had fostered abject conditions in Native communities across the United States. Yet its analysis grouped all Indian tribes together, citing high English illiteracy rates, rampant abuse at the hands of Christian missionaries in boarding schools, low participation in wage labor, a lack of sanitation infrastructure, and high rates of infectious diseases.¹⁷⁷ Despite its lack of analysis of individual tribes—apart from occasionally distinguishing between “more primitive” and “less primitive” tribes—The Meriam Report findings and recommendations were used to guide the Indian Reorganization Act of 1934, colloquially known as President Roosevelt’s “Indian New Deal,” and consequently shaped federal policy toward the Navajo.

Summarized broadly, the report proposed restructuring the Bureau of Indian Affairs to focus less on an abstract goal of “civilizing” Native peoples through Christian missionaries and more on measurable policy goals developed by social scientists to make the transition “from primitive to modern life.”¹⁷⁸ Like the Moynihan Report decades later, which sought to explain the persistence of poverty in Black communities using pseudo-sociological and economic explanations, the Meriam Report found the conditions present in Native communities to be the result of U.S. policies and perpetuated by what researchers observed to be dysfunctional family structures.¹⁷⁹ Its recommendations included restricting per-capita cash distributions for ordinary living expenses. One section of the report sounds strikingly similar to the motivating ethos behind PRWORA:

The policy of the government should be deliberately directed toward reducing the amount of unearned income available to the able bodied Indian for living expenses. It is a stimulus of idleness and permits of a low standard existence without work. Unearned income should be utilized to increase the economic productivity of the Indians.¹⁸⁰

The Meriam Report promoted the notion that American Indian tribes were simultaneously inept, prone to idleness, and primitive—yet capable to some degree of self-governance. This attitude materialized in the final version of the Indian Reorganization Act, which provided a means for tribes to establish their own forms of government that reflected elements of their cultures. For the Navajo Nation specifically, the form of governance that emerged was nearly identical to the U.S. federal government—that of a three-branch system.¹⁸¹ Federal agents introduced chapters, which were similar to counties or townships, with elected officers who followed parliamentary procedures, and Navajo land was separated into geographic jurisdictions similar to that of states, called agencies.¹⁸² Each of the five agencies, split into chapters where citizens would participate in parliamentary procedures. In the development of this new government, Navajo ideals and traditions were redefined to suit Western norms, while claiming to operate under traditional Navajo philosophy.¹⁸³ As political theorist David Wilkins points out, the only traditional elements present in contemporary Navajo political institutions are the peacemaker’s court, a forum for conflict resolution premised on restoring k’é, the mutual respect and kinship between human beings and natural resources, so that hozho, or harmony, can be achieved. It now operates now as a diversion program under the judiciary branch.¹⁸⁴

The Meriam Report promoted the notion that American Indian tribes were simultaneously inept, prone to idleness, and primitive—yet capable to some degree of self-governance.

This reorganization of Navajo government has led to contested understandings of Navajo traditions and cultural elements. Navajo historian Jennifer Denetdale offers a useful framework for interpreting Navajo traditions within the context of Navajo governance. She writes, “the Navajo Nation’s claims to practice many of the traditions of their ancestors as they administer government must be seen in the light of transformations under colonialism” and that we should recognize the ways in which tradition is claimed “and for what purposes.”¹⁸⁵ Denetdale has extensively examined, for example, the ways gender roles have been reinterpreted through different periods of colonization. She notes that while Native and non-Native scholars alike have noted that Navajo women enjoyed a significant amount of economic and political power prior to Euro-American colonization, when LeNora Fulton announced her candidacy for Navajo Nation president in 1998, she received backlash from Navajo citizens who argued female leadership ran contradictory to Navajo traditions and would lead to chaos in society. She writes that “American notions of gender roles have been integral in the formation of the Navajo Nation where women are symbolized as the culture bearers and mothers of the Nation, yet at the same time, do not have access to all sectors of society, particularly the political realm.” The backlash to Navajo female leadership can be traced back to the Indian Reorganization Act, wherein federal officials looked to Navajo men to fill leadership roles in its new government and to the educational goals outlined in the Meriam Report to train Native women as homemakers.¹⁸⁶

Similarly, the meaning of “self-reliance” as a longstanding Navajo tradition should be examined within the context of “transformations under colonialism,” as “tradition is not without a political context.”¹⁸⁷

In summary, Meriam Report and the legislation it informed—the Indian Reorganization Act—developed a new federal relationship to Native communities in the United States, one that preserved not also the assumptions that Indigenous peoples were primitive and had grown prone to laziness due to federal paternalism also that they achieve Native self-sufficiency in a culturally-affirmative manner. These practices included establishing Native governments recognizable by federal agencies as a means to encourage Native peoples’ participation in the wage economy. These Native governments were erected with the aim to incorporate Indigenous peoples’ cultural values and practices into governance. However, in the case of the Navajo, the resulting government instead mimicked the structure of the American federal government and helped to redefine Navajo traditions as being similar to prevailing American ones.

The Navajo Nation Office for Self-Reliance

The Navajo Nation Office for Self-Reliance is one of the tribal Temporary Assistance for Needy Families (TANF) programs established after the passage of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996. Its key characteristics included imposing time limits on how long people are allowed to receive cash assistance and requiring that adults in the program engage in a minimum amount of work activities. The Navajo Nation Program for Self-Reliance requires that all adults in a participating family engage in at least 24 hours of work per week and that no adult can receive assistance for more than “60 countable months, whether or not consecutive.”¹⁸⁸ In the 2015 fiscal year, an average of 5,936 Navajo children and adults received assistance through the Program for Self-Reliance.¹⁸⁹ These 5,936 children and adults comprised 1,821 family units total.¹⁹⁰

A full survey of all 70 tribal TANF programs that includes data on average benefit amounts, client experiences, and fluctuations in enrollments over time has yet to be completed. However, research conducted by Heather Hahn and her colleagues at the Urban Institute demonstrate that tribes can and often do incorporate aspects of their cultures into program administration.¹⁹¹ In their study of the Navajo Nation Program for Self-Reliance (NNPSR), they found that NNPSR was founded on the belief that only a program led by Navajo people could “attempt to reform welfare dependence by establishing a program that gives responsibility, decision making, and self-reliance back to tribal members.”¹⁹² According to program administrators, “The weak job market and historical legacy of U.S. government and Navajo Nation support have resulted in multigenerational reliance on welfare for a small portion of the Navajo population.”¹⁹³ The NNPSR aims to “dismantle this mindset through intensive casework” and the development of personal responsibility. T’áá hwó ájít’éego, the program’s core principle of “self-reliance,” captures the concept of exercising personal discipline and taking responsibility for one’s life.”¹⁹⁴

A family seeking cash assistance in the Navajo Nation would have likely heard about the program through a Navajo radio ad or flyer and would have had to find transportation or hitchhike to one of ten offices located on the 27,000-square-mile reservation to fill out a paper TANF application in person.¹⁹⁵ Many Navajo TANF clients and applicants lack access to a personal vehicle, making the verification process arduous. In some instances, caseworkers might take personal time to assist their clients with transportation, but this is left to their discretion.¹⁹⁶ In focus groups, clients complained that the verification process was difficult given transportation barriers on the Navajo reservation.¹⁹⁷

A family seeking cash assistance in the Navajo Nation would have likely heard about the program through a Navajo radio ad or flyer and would have had to find transportation or hitchhike to one of ten offices located on the 27,000-square-mile reservation to fill out a paper TANF application in person.

Families are required to also supply the social security cards of all members of their household, birth certificates, photo I.D., income statements and documents verifying their assets, and school enrollment verification documents for children. If a child in the family is eligible for child support, a parent of that child is responsible for verifying that he/she has made an attempt to solicit child support payments from the absent parent.¹⁹⁸ Information about eligibility documents is not clearly displayed on the NNPSR website, and currently there is no way for applicants to submit their documents electronically, so it is likely that some clients would have to make multiple trips to an office to submit a completed application.¹⁹⁹

Clients and potential clients of the Office for Self-Reliance might read through a brochure with phrases that translate t’áá hwó ájít’éego to: “It’s up to you;” “Nobody’s going to do it for you;” “Taking responsibility;” “Be a hard worker;” or “Don’t be lazy.”

Case managers might introduce themselves to new clients in a traditional Navajo fashion by naming the clans of their parents and grandparents before consulting with a family to develop a personal responsibility plan (PRP).²⁰⁰ Each adult in the household is required to adhere to the PRP and spend at least 24 hours per week on activities the caseworker has decided contribute toward the family’s goals of self-sufficiency. These activities might include education or classes at a community college. Unlike state-administered programs, the Navajo Nation TANF program caseworkers might also allow their clients to count participation in counseling or engaging in traditional subsistence activities as valid work activities.²⁰¹ Flexibility in determining what qualifies as a valid work activity may be the reason why Navajo tribal TANF clients have consistently outperformed the TANF clients of neighboring states and exceeded their own participation rate goal of 25 percent from the years of 2008 to 2015, as reflected in the accompanying figure.

Navajo TANF client experiences with caseworkers varied in focus groups; some emphasized the significance of developing personal relationships with their caseworkers to give special consideration to their circumstances, whether they were barriers to transportation or domestic abuse. Other focus group participants voiced that they did not have the opportunity to have personal conversations with their caseworkers and instead received “training focused around money management and personal finance.”²⁰²

In summary, the Navajo Nation Program for Self-Reliance, relative to other tribal TANF programs, places an emphasis on integrating cultural elements into the implementation of the program. It intends to target a group of people in the Navajo community who are presumed to have become intergenerationally dependent on public assistance programs and aims to restructure their orientation towards work with some supports and considerations granted to clients on a discretionary basis. In the next section of this paper, I will demonstrate that the program exemplifies a mode of tribal policy that has emerged since the 1930s that replaced overt attempts at genocide and assimilation with policies that appear to affirm Indigenous cultural values while advancing assimilative goals.

New Modes of Assimilation

Several defining factors of the Navajo Nation Program for Self-Reliance demonstrate that it carries out long-standing federal goals of Native assimilation while appearing to affirm Navajo culture, but which are premised on notions that Indigenous peoples are primitive and in need to guidance to integrate themselves into American culture. These long-standing federal goals include practices that encourage Native peoples to enter the wage economy as a means to end a cycle of poverty and maladjustment. The Program for Self-Reliance targets a group of Navajo people who have been presumed to intergenerationally rely on public assistance and thus are in need of guidance to break them away from dependent mindsets and toward self-sufficiency. This pathologization of persistent poverty on the Navajo Nation finds fault in individuals for historically and systemically produced issues rather than examining the ways the federal seizure of Navajo lands, livestock, and means of living have produced intergenerational trauma and geographic isolation from economic opportunities. Designing a social assistance program around these assumptions results in a program that presumes the worst of its clients and that fails to take full consideration of the causes of intergenerational poverty.

This pathologization of persistent poverty on the Navajo Nation finds fault in individuals for historically and systemically produced issues rather than examining the ways the federal seizure of Navajo lands, livestock, and means of living have produced intergenerational trauma and geographic isolation from economic opportunities

On the other hand, aspects of the Program for Self-Reliance that assume good intentions from clients and are not directly premised on the notion that poverty is pathological are some of the program’s most effective and culturally affirmative components. Expanded definitions of valid work activities grant families the flexibility to stay enrolled in the program for lengths of time they may otherwise not have been able to through a state-administered program. Expanded definitions of work presume that families do not intend to game the public assistance system to subsidize their lifestyles, but rather that each family has its own timeline and unique needs that may not be met through engaging in strict definitions of “work.” Some clients’ praise for caseworker discretion, especially with regards to overcoming transportation barriers, demonstrates that the delivery of social assistance programs from compassionate social workers rather than strict, automated decisions can more effectively meet clients’ needs.

K’é as a Core Social Assistance Philosophy

The Program for Self-Reliance’s core philosophy of t’áá hwó ájít’ éego, or “self-reliance,” was developed specifically for its tribal TANF program in the 1990s, but is promoted as a culturally relevant, long-standing value among the Navajo. In reality, it is a translation of the guiding rhetoric of welfare reform, which presumed there was a national problem of welfare dependency and a need to encourage parents to move from “welfare to work.”²⁰³ A core component of Navajo philosophy that predates American arrival is that of k’é. Roughly translated, k’é is the interdependence between living beings, including that between humans, as well as the natural environment and animals.²⁰⁴

Some aspects of the Program for Self-Reliance affirm principles of k’é, including the program’s expanded definitions of valid work activities. The program’s affirmation that work can take on forms beyond that of wage labor, including counseling or subsistence agricultural activities, allows clients to maintain the interdependent relationships which sustain them personally while materially supporting cultural practices.

Explicitly designing a social safety net in accordance with the Navajo principles of k’é might elevate a different set of policies that emphasize unconditional support programs, like that of universal basic income, paid leave for family and non-family members alike, and universal health care. These policies assume good motivations on the part of the recipients and affirm recipients’ identities as members of the community through their use of the program rather than stigmatizing them for needing assistance. Promoting the goals and philosophies of PRWORA with the Navajo language may seem like a noble attempt at promoting shared cultural values between the United States and the Navajo Nation, but the incommensurability between PRWORA and k’é demonstrate that a more thorough interrogation of our shared histories is needed to develop policy that truly affirms Indigenous cultural values and practices and to bring an end to assimilative policies.

Myacah Sampson is a 2017-18 Millennial Fellow with the Family-Centered Social Policy program at New America. She would like to thank Rachel Black, Melody Frierson, and Reid Cramer for contributing their policy insight and editorial skills to her project. She is also deeply indebted to the ideas and original research conducted by Professor Jennifer Denetdale and Heather Hahn which informs her paper.

by Aaron Noffke

This paper examines the work of progressive, grassroots organizations across America in order to generate a set of policy recommendations for reducing poverty and inequality. Using a case study approach and an assessment of recent poverty statistics, the paper describes the experience of the Poor People’s Campaign: A National Call for Moral Revival and its implications for future policy efforts. In the second section, campaign interviews and written testimony are summarized into four key points, which in turn support three sets of policy recommendations outlined in the final section.

The Poor People’s Campaign: A National Call for Moral Revival is a movement-based organization that aims to challenge policies related to poverty, systemic racism, militarism, and ecological devastation in America, as well as the structures that enable them. On May 14, 2018, the campaign began a six-week period of direct, nonviolent action at over forty state legislative buildings across the country.²⁰⁵ The campaign is a product of a partnership between Repairers of the Breach and the Kairos Center, both faith-based organizations that emphasize coordinated civil protest, political education, and religious and cultural expression as a means for social change. Repairers of the Breach was organized by Reverend William Barber, former president of the NAACP North Carolina chapter and founding member of the Moral Mondays campaign. The Kairos Center is co-directed by Reverend Liz Theoharis, who founded its anti-poverty initiative.

On May 14, 2018, the Poor People’s Campaign began a six-week period of direct, nonviolent action at over forty state legislative buildings across the country.

In 2016, Repairers of the Breach organized a “Moral Revival” tour with the Kairos Center and other key organizations. Through the tour, they identified a network of organizational partners across the United States that was committed to participating in a national campaign. In May 2017, Repairers of the Breach and the Kairos Center announced the formation of a new Poor People’s Campaign, and began a series of mass meetings and political organizing trainings. The leadership team of the Poor People’s Campaign is made up of co-chairs Reverend Theoharis and Reverend Barber, as well as the director of organizing Roz Pelles.

The campaign is a state-based initiative, with each state organizing coordinated actions on a weekly basis. Each state operates with a tri-chair made up of one impacted person, one organizer, and one faith leader. Individuals who work on state campaigns do so voluntarily, with assistance from a national organizing staff. Various labor unions, faith-based groups, anti-war groups, civil rights groups, and environmental justice organizations have publicly endorsed and/or partnered with state chapters of the campaign in preparation for direct actions. The campaign does not endorse or collaborate with any elected officials from either political party, and does not participate in electoral politics.

Poverty, systemic racism, militarism, and ecological devastation are articulated as interlocking issues by the campaign, and current conditions are a source of both moral outrage and political injustice. The campaign employs an expansive concept of poverty, describing it as an economic and political position where individuals are relegated rather than defined by a specific income threshold at a moment in time. Poverty is understood as being produced by prevailing economic structures, and explanations for poverty as a byproduct of cultural habits or norms should be challenged. The campaign rejects the argument that America lacks the necessary resources to meet the basic needs of everyone.

Measuring Poverty

Given its distinct conception of poverty, it was essential for the campaign to offer a more realistic measure of poverty’s reach than currently provided by the federal government’s official poverty measure (OPM). Produced annually, the OPM uses a set of pre-tax income thresholds that vary by household size and composition; it is calculated by multiplying the cost of a minimum food diet in 1955 by three and then adjusting for inflation.²⁰⁶ This anachronistic approach undercounts the extent of poverty because it fails to account for the current cost of goods and services essential for a family to meet their basic needs.

Acknowledging limitations in the OPM, the Census Bureau developed an alternative poverty measure to more accurately reflect the level of resources associated with a minimum level of economic well-being. The supplemental policy measure, or SPM, has been reported since 2010 and is widely considered by researchers to be a more precise measure of poverty. While the SPM still uses income thresholds, these estimates are based on an assessment of what people currently spend on food, clothing, shelter, and utilities rather than just their spending on food. SPM thresholds differ by family size, renter/homeowner status, and geographic location. Unlike the OPM, the SPM takes into account non-cash government benefits, such as tax credits and public assistance, and additionally factors in necessary costs of living, which includes taxes as well as out-of-pocket medical, child care, and transportation expenses.

The campaign rejects the argument that America lacks the necessary resources to meet the basic needs of everyone.

Despite improvements in the SPM over the OPM, researchers have identified circumstances when the SPM underestimates poverty levels by failing to account for the prevailing costs of housing, transportation, health care, and other necessary goods and services. For example, the Economic Policy Institute’s Family Budget Calculator estimates that a two-adult, two-child family living in the Washington, D.C., metro area would need over $105,000 in family income to achieve an adequate standard of living.²⁰⁷ In comparison, the SPM poverty threshold for a two-adult, two-child family renting in the Washington-Arlington-Alexandria area is $33,382.²⁰⁸ Reliable assessments have found that doubling the SPM is a minimum benchmark for meeting a family’s basic needs. Below this amount, families and individuals are forced to make trade-offs between basic needs. As such, the term “low-income” is often used to refer to individuals whose income is below 200 percent of the poverty threshold. This paper uses the term “poor or low-income” to refer to all people living in families with incomes below 200 percent of the SPM poverty threshold.

Based on census recommendations for state-level calculations, which include using five-year averages from 2012 to 2016 for additional statistical reliability, the tables in the appendix present the empirical results.²⁰⁹ Forty-six percent of Americans—140 million people—live in families with incomes that are insufficient to meet their basic needs. In each of the five states with the highest poverty levels, over 51 percent of their populations are poor or low income. The highest rate is in California, where 55.4 percent of people are poor or low-income, accounting for 22.4 million people.

Poor or low-income rates differ significantly by race. As shown in Table 2, white people make up the largest percentage of poor or low-income people, at 49 percent. Yet only 38 percent of white people are poor or low-income. In comparison, Table 3 reveals that 62 percent of people of color (POC) are poor or low-income, and 18 states feature a greater number of poor or low-income people of color compared to white people, despite have a majority white population. Washington, D.C., Arizona, Rhode Island, Wisconsin, and Minnesota have the highest disparity between white and POC poor or low-income rates. Gender disparities exist as well, as reflected in Table 4. Forty-eight percent of women and girls are poor or low-income, with rates in the top quintile over 52 percent; and 56 percent of children are poor or low-income.²¹⁰

These numbers demonstrate that poverty is a widespread experience in America. In some states, the majority of people are poor or low-income. Disparities by race, gender, and age are evident in every state, with racial differences particularly stark. Poverty statistics themselves, however, do not reveal the full extent of economic suffering, much less the causes and potential solutions. While disparities in poor or low-income rates are important to recognize, simple cross tabulations do not explain the relationship between poverty, systemic racism, militarism, and ecological devastation. A singular focus on disparities reveals little about how patterns of inequality are institutionally structured. To advance an understanding of these relationships, it is valuable to elevate the perspectives of political organizers and activists working in the field to address poverty and inequality in America. In the following section, SPM numbers are augmented with insights from people engaged in grassroots political activism and anti-poverty work.

Evidence from the Field

In April 2018, The Poor People’s Campaign and the Institute for Policy Studies published The Souls of Poor Folk: Auditing America’s History 50 years after the Poor People’s Campaign Challenged Racism, Poverty, The War Economy/Militarism, and Our National Morality, tracing policy trajectories from 1968 onward that have exacerbated poverty and inequality.²¹¹ As part of this project, individuals from over a dozen political organizations were interviewed, some of whom had participated in the original 1968 Poor People’s Campaign. Their backgrounds include work in welfare, organizing, immigrant rights, water rights, health care, housing, civil rights, workers’ rights, ecological justice, and anti-war activism. Additional written testimony was acquired from seventeen other individuals. Nearly all of these individuals were from organizations and communities made up of poor people and represented conditions and experiences of millions in America. Interviews took place over the phone and lasted approximately one hour. An analysis of these interviews and written testimony reveal four key themes/conclusions about prevailing trends about poverty and inequality in America.

Cuts in Social Safety Net Spending Have Increased the Number of People Unable to Meet Basic Needs.

Interviewees described the effects of federal and state social safety net cuts since the 1970s. For example, from 1978 to 1989, funding for housing assistance delivered by the Department of Housing and Urban Development (HUD) dropped from $57 billion to $9 billion, with similar cuts made to education, health, transportation, and various urban aid programs.²¹² Paul Boden, director of the Western Regional Advocacy Program, highlights housing, saying, “there was a direct connection between the people that were living in subsidized housing, the massive cuts to affordable housing, and the need to open emergency shelter programs. The correlation is unmistakable.” Similar statements were made by welfare rights organizers who witnessed the impact of Welfare Reform legislation passed in 1996. Mary Grant, campaign director for Food and Water Watch, observed that since public infrastructure funding began to decline in 1977, water rates and cut-offs have increased, with a greater number of individuals at risk of losing access to water.

From 1978 to 1989, funding for housing assistance delivered by the Department of Housing and Urban Development (HUD) dropped from $57 billion to $9 billion, with similar cuts made to education, health, transportation, and various urban aid programs.

Decreases in public welfare spending were put into context alongside other economic policies, such as The North American Free Trade Act, the proliferation of tax increment financing and public-private partnerships for economic development, privatization of public services, sectoral shifts in the economy, and federal income and corporate tax cuts. These policies were identified as sources of rising poverty and inequality. In contrast, increases in military, law enforcement, and mass incarceration spending were described as factors that reinforced poverty and inequality.

Federal cuts to the social safety net also hampered political activism. Many improvements to social welfare policies were secured through grassroots political activism in the 1960s.²¹³ In turn, these organizing efforts provided individuals with more time and resources for political involvement, and a greater sense that political engagement could change policies. As significant cuts were made, the opposite dynamic took hold. Sylvia Orduño states that through the enforcement of workfare requirements, time limits, and funding cuts, the network of welfare rights organizations shrank from over 500 chapters to less than two dozen. The political effects of these cuts have continued, with an upward redistribution of wealth resulting in a weakened working class that faces barriers to political activity. Simultaneously, political decision-making increasingly favors a smaller set of wealthy and corporate interests.²¹⁴

Race and Gender Help to Structure Patterns of Economic Inequality, With Militarism and Environmental Injustice Multiplying the Effects of These Structures

Every interviewee remarked that race and gender play a role in the structure of economic inequality. Voter suppression laws that target Black and Brown communities result in policies that limit poor or low-income people’s ability to participate in electoral politics. Border control and detainment efforts have increased worker exploitation, with average incomes in some border communities ranging from $8,000 to $12,000 dollars. Women are disproportionately represented among the poor, based in large part on the devaluing of care work. The question of how resources are allocated in the economy is negotiated through race and gender, with racism and misogyny deepening the impact and reach of poverty in America.

Interviewees describe how racism and misogyny have historically divided groups with otherwise common political interests. Racism was identified as a common barrier in organizing low-wage workers in the south. Interviewees spoke about how these barriers must be addressed within the work rather than assumed away through victories. Paul Boden observed challenges to organizing around housing rights:

“I don’t think we can build power and wait until we have power, and then talk about racism. You’re not going to get power unless you address the race and class issues in the organizing that you are doing. I think a lot of groups make that mistake. You have to make sure that’s part of the internal work you are doing.”

Militarism and ecological devastation are positioned as intensifiers of economic conditions. Jacqui Patterson of the NAACP’s Environmental and Climate Justice Program stated that communities that are already facing challenges related to employment opportunities are more vulnerable when natural disasters hit their communities. Women’s health and safety were lifted up as an often overlooked natural disaster issue, as rises in domestic violence and sexual assault occur during these periods. Similar statements were made by Jesús Vázquez of Organización Boricuá de Agricultura Ecológica in regards to food security in Puerto Rico, where previous inequalities were exacerbated by Hurricane Maria. Interviewees also linked the relationship between ecological devastation and militarism through the pursuit and extraction of natural resources, a leading cause of war and of environmental harm.

Military violence as a method of social control was highlighted as an intensifier of inequality. Fernando Garcia of the Border Network describes militarization at the border as a response to the racist narrative of immigrants as a security threat. He states:

“When the border is portrayed as the opposite of lawful, it becomes especially criminal…over time, we have seen an expanded militarization into the United States…we saw that they learned out of the border experience how to militarize a police department and give them the tools to repress and persecute people in the interior of the United States.”

The criminalization of Black, Brown, and low-income communities was equally observed in cities, especially with regard to homeless people. The increase in gender-based violence in the military—both among women in the service and civilians overseas—was also linked with the rise in military spending. In their attempts to organize, some interviewees shared personal experiences of being targeted by law enforcement.

Human Rights Are a Useful Framework for Understanding Poverty—and for Ending It

Most interviewees utilized rights-based frameworks in their work, which provide the opportunity to link people’s experiences across issue areas. Nijmie Dzurinko of Put People First! PA describes how an unmet essential need in an individual’s life has an impact on a host of other needs. Referring to health care, she states:

People are choosing between paying for medications and paying for utilities. They are stretching out medications, choosing between buying food and getting health care for their kids. This makes life very hard, when you need to choose between one need or another need, when they’re really all needs. People are saying they are forced to stay in relationships because of insurance because otherwise they won’t have benefits. It’s also a real question for workers, who are constantly bargaining away their other rights for their health care.

The question of how resources are allocated in the economy is negotiated through race and gender, with racism and misogyny deepening the impact and reach of poverty in America.

Contrasted with means-tested programs, rights-based approaches are useful in that they ensure that everyone can meet human needs, regardless of income or civil/social status. For these reasons, rights-based claims have been critical in linking together specific needs that poor or low-income people face and in connecting people across regional and demographic differences through shared experience.

Rights-based claims have been used as an alternative to a paradigm of governance that emphasizes profit motives at the expense of human welfare. Decisions to privatize basic infrastructure and health systems, reduce services, and increase fees are primarily made within a set of fiscal incentives that does not necessarily take into account human impact. In other cases, the pursuit of profits has resulted in the restriction of basic rights through unequal enforcement of laws, such as the forced removal of homeless folks from urban city centers. By framing policy issues as human rights issues, interviewees describe a system of governance that ought to be framed around the experiences of people, rather than profit.

Poverty Is Political, and Political Organizing Is Necessary

Rather than a natural outcome of a just economic system, a set of beliefs or attitudes, or a series of unfortunate circumstances, interviewees describe poverty as an explicitly political problem. Laws and institutions uphold an unequal distribution of rights that benefit some at the expense of others. Political organizing—understood as the process in which a constituency builds power by mobilizing members to act—becomes a necessary tool for eliminating poverty. Most often, traditional political infrastructure doesn’t engage with poor communities. Interviewees expressed criticism of the Democratic and Republican parties’ efforts to take poverty seriously.

Political organizing is essential for reframing poverty as a political issue. Uniting common experiences across demographic differences is a major obstacle for organizations, with perhaps the most emphasized difference being between rural and urban areas. Most nonprofit organizations are located in cities, with rural areas and small towns lacking access to community organizing groups. This imbalance is often credited to the density of urban areas, which makes outreach more efficient. Interviewees articulate real differences in terms of living in an unincorporated area compared to a metropolitan city and named policies designed to benefit one setting over another. Nonetheless, interviewees expressed a need to link impactful economic processes, such as public divestment, unemployment, deindustrialization, and redistribution of wealth, across urban and rural landscapes. These experiences are often mutually shared and can form a basis for solidarity. As Catherine Flowers of the Alabama Center for Rural Enterprise states:

The water issues we see in Standing Rock are connected to the ones we see in places like Flint, in Detroit, and in Lowndes County. Traveling to California, I saw migrant farm communities with poisoned water. In Arizona, people’s water has been poisoned by uranium … they try this in poor communities first, because there is going to be fewer resistance, and they don’t have as much of a voice. But ultimately, what these people are talking about is sinister and it’s going to impact everybody.

Policy Recommendations

Given the preceding analysis, three strategic approaches can be identified that, if pursued meaningfully and at an appropriate scale, can dramatically reduce the extent of poverty and inequality in America. All three are broad categories of policy recommendations and are meant to operate in tandem.

Reinvest in the Social Safety Net

The Poor People’s Campaign has pushed for a set of policies that would expand the social safety net and promote economic security and opportunity through public investment. According to activists interviewed by the project, reinvestment in the social safety net is the number one policy recommendation for reducing poverty and inequality. The Poor People’s Campaign has positioned living wage laws, a guaranteed income, and a federal full-employment program as the backbone of an expanded, twenty-first century public policy agenda to address poverty. Free tuition for public higher education, single-payer universal health care, reinvestment and expansion for public housing, and relief from household, consumer, and student debt are additional pillars. Although rarely considered a part of the social safety net, the Poor People’s Campaign emphasizes criminal justice reform, immigration reform, military divestment abroad and at home, and a just transition to 100 percent renewable energy as part of a comprehensive agenda for reducing poverty and inequality. Although not exclusively so, funding sources are linked to a redesigned progressive income and wealth and corporate tax plan.

Demands for equal pay for equal work, equal treatment and service for people with disabilities, and equity in public school and community funding are emphasized as a means to address discrimination and exclusion. Additional universal programs that could strengthen the social safety net and reduce racial and gender inequality include a progressively structured “baby bonds” program, universal childcare, and paid family leave. Adopting a set of principles for policy design that are grounded in the interests and capabilities of those who are most in need of assistance is necessary for any universal social welfare program.

Institute a Human Rights Approach for Accessing Poverty in America

While supplemental policy measure data has improved the measurement of poverty, its method is still hampered by the use of income thresholds. Fundamentally, incomes operate as a means for achieving a dignified standard of living at a moment in time. Its instrumental nature limits its effectiveness for assessing the actual fulfillment of people’s needs and the quality of their lives over time. As economist Amartya Sen writes, “If life consists of various things that people are able to do or be (such as being able to live long, to be in good health, to be able to read and write, and so on), then it is the capability to function that has to be put at the center stage of assessment.”²¹⁵ If poverty is understood as the absence of basic human fulfillments, then a human-rights based measurement is needed to assess poverty in the United States. A federally backed initiative to measure the extent to which people in the United States are incapable of accessing basic needs is the second policy recommendation. This recommendation is in line with interviewees who emphasized a human-rights framework for conceptualizing health care, housing, and other basic needs.

Central to the goals of many interviewees, a positivist human-rights framework inherently contains a theory of justice that emphasizes universality, capacity, and human well-being prioritized over private profit. The United Nations Development Program Human Development Report represents a prominent capabilities approach for measuring poverty that could be incorporated in the United States.²¹⁶ This measurement would serve two functions: First, if properly funded, it would provide a more complete estimate of the extent to which individuals are living in poverty. Second, a human-rights based approach for measuring poverty could provide a new basis for holding relevant actors responsible for decisions that reduce essential human capabilities, such as municipalities and private firms that shut off residents’ water.

Promote Policies That Increase Political Power for Poor or Low-Income People.

As emphasized in interviews, poverty is not only an economic circumstance, but a political position, one in which individuals are disproportionately excluded from political decision making. Currently, there are a number of barriers that limit the role of poor or low-income people in electoral politics. The elimination of voter suppression and disenfranchisement laws, comprehensive voter registration, campaign finance reform, and the strengthening of labor unions have all been identified by the Campaign as important policies for increasing political power for people living in poverty.

Research suggests that institutional change and the promotion of social equality are directly linked to the extent to which poor and low-income people are organized or able to engage in collective action.²¹⁷ Simultaneously, people’s patterns of political engagement are partially shaped by their interactions with public programs.²¹⁸ While policies that aim to reduce barriers to participation in electoral politics are essential, so, too, are policies that create opportunities for direct political engagement. Revising and expanding the role of community action programs under a rubric of community organizing would serve as a direct source of political power for individuals who are most marginalized from today’s political process.

While policies that aim to reduce barriers to participation in electoral politics are essential, so, too, are policies that create opportunities for direct political engagement.

The work of Community Action Agencies, originally formed in the 1960s, has substantially changed over time.²¹⁹ Today, most programs primarily operate as a means for connecting individuals with service providers and for developing new service programs. In addition to this work, a principle of political empowerment that emphasizes leadership development, strategic planning, and network building could be adopted as a means for increasing coordinated political action.²²⁰ Such a principle would harken back to the original “maximum feasible participation” mandate that originally governed the initiative. A reinvigorated Community Action Program approach would fund fully trained community organizers, work across regions to leverage political power at the appropriate level of governance, and use various methods of community outreach to ensure political accountability. Working within the existing network of over a thousand Community Action Agencies, these efforts could serve to bridge divides across geography through an increase in funding for regional coordination.

While all three sets of policy recommendations may be politically infeasible in the current moment, revising Community Action Programs may be the least feasible. This is primarily due to the fact that resources needed for this program would come from a set of structures that would be both targeted for change and also invested in maintaining the political status quo. Nonetheless, anti-poverty programs have, at certain moments, historically guided resources toward successful political organizing.²²¹

Conclusion

This paper has drawn upon the intellectual and field resources informing the Poor People’s Campaign: A National Call for Moral Revival in order to generate policy recommendations for reducing poverty and inequality. Poverty is far from a marginal experience in the United States. In fact, it is the extent of this shared experience that may create opportunities for political mobilization. Unemployment, unaffordable health care and housing, rising household and student debt, incarceration, police violence, polluted water, and workplace harassment and sexual assault are just some of the issues that define the struggle of living in poverty. These issues are negotiated through race and gender and are directly related to laws and institutions that perpetuate inequality. Expanding social welfare policies, institutionalizing positivist human rights, and redistributing political power are necessary tasks for reducing poverty and inequality in America.

Appendix: Distribution of Poor and Low Income Population in the U.S.²²²

Table 1: Poor or Low-Income Population per State

Table 2: Poor or Low-Income Statistics per State for People of Color²²³

Table 3: Poor or Low-Income Statistics per State for Non-Hispanic Whites

Table 4: Poor or Low-income Statistics per State for Women & Girls²²⁴

Aaron Noffke is a 2017-18 Millennial Fellow at New America. He would like to thank all of the organizers and activists whose contributions were featured in this project; their work continues to inspire and impress. This includes Shailly Gupta Barnes, whose tireless efforts at the Poor People’s Campaign made this report possible. He would also like to give a major thank you to Melody Frierson and Reid Cramer for managing the Millennial Fellowship and for edits and feedback on multiple projects. Finally, he would like to thank Saurav Sarkar and the entire Institute for Policy Studies team for all of their lessons, kindness, and support.

by Becky Chao

Concern over the effects of increasing corporate consolidation on competition, inequality, and labor has led to calls for U.S. antitrust law and competition policy to do more.²²⁵ The movement to reinvigorate antitrust enforcement includes potential new antitrust laws, including a package of bills introduced in April 2018 that addresses employment-related issues in mergers.²²⁶ Among other things, the bills seek to prohibit the consideration of so-called “spurious” economic efficiencies—namely, corporate layoffs—to justify anti-competitive mergers,²²⁷ and to provide clarification that the antitrust laws apply not just to monopolies but also to monopsonies.²²⁸ These bills could be interpreted as part of the broader call for antitrust to move toward a public interest standard that would be, proponents argue, better equipped to address the effects of consolidation beyond competition.²²⁹

But, what does the “public interest” mean? The term is used in different settings by government officials, politicians, and advocates alike. It appears almost interchangeable with concepts like the “common good” and “general will,” alluding to the conflicting interests between a group, community, or society and an individual—or, in the case of mergers, the interests of corporations and the interests of the general public.²³⁰ In any case, the meaning of the “public interest” remains unclear.²³¹

This uncertainty permeates the merger review process at the Federal Communications Commission (FCC), which, unlike the antitrust authorities, is charged with a public interest mandate in its review of telecommunications mergers. But while some are calling for antitrust to move toward a public interest standard, the Commission appears to be moving away from one.

In its approval of CenturyLink’s acquisition of Level 3 with conditions in October 2017—the first major transaction approval under Ajit Pai’s tenure as chairman—the Commission signaled three major changes: First, it suggested that the inherent ability to transfer licenses is itself a public interest benefit.²³² Second, it stated that the Commission “will not impose conditions to remedy pre-existing harms or harms that are unrelated to the transaction.”²³³ Third, it suggested a revision to the “balancing test”—the weighing of public interest benefits against public interest harms—it had employed in its merger review up to this point, saying “if the Commission is able to find that narrowly tailored, transaction-specific conditions are able to ameliorate any public interest harms and the transaction is in the public interest, it may approve the transaction as so conditioned.”²³⁴ This last statement signaled a departure from the Commission’s record of imposing transaction-related conditions on transaction parties. Together, these three statements suggested a narrowing of the Commission’s public interest test to focus on competitive effects analysis and to avoid addressing issues related to its broader policy objectives, as it had done in previous proceedings. The CenturyLink/Level 3 Order, and the response to it, is indicative of the tensions and disagreements in the Commission’s implementation of its public interest standard.

While some are calling for antitrust to move toward a public interest standard, the Commission appears to be moving away from one.

The debate at the FCC over its public interest standard may be seen as part of a larger trend in U.S. antitrust toward a focus on competitive effects in the last three decades.²³⁵ The FCC, however, does not have antitrust authority; as a regulatory agency, its authority is broader than of the antitrust enforcement agencies.²³⁶

A public interest standard in merger review has also been discussed and tested in some international domains. Notably, public interest factors are given considerable weight by competition authorities in South Africa, China, and Canada. While competition policies abroad do not solely encompass antitrust laws (just as the FCC’s merger review process does not solely encompass competition nor antitrust), recognizing the international landscape of merger review provides additional context to understanding the implications of a public interest test in merger review generally. In the first section of this report, an examination of public interest approaches to merger review internationally reveals differences in how each country defines the public interest in merger review, and possible mechanisms for preventing the influence of politics on the merger review process.

Next, this report provides an overview of U.S. merger enforcement primarily through antitrust law and explores the application of the public interest standard in the Federal Communications Commission’s merger review. An examination of 31 major transactions reviewed by the Commission under two administrations led by chairmen from different political parties, Democratic Chairman Tom Wheeler from 2013 to 2016 and Republican Chairman Kevin Martin from 2005 to 2009, and the noteworthy Comcast/NBCU merger in 2011 reveals the wide range of non-competition factors that the Commission has considered under its public interest mandate. Through case studies demonstrating how the Commission has addressed three such factors—diversity, universal access, and employment—this paper explores how the evaluation of these factors has led the Commission to exercise significant discretion in its review. Its inconsistent determinations of whether concerns are merger specific and its discretion in imposing conditions on the transaction parties have created much ambiguity in the factors it considers and how it considers them in making decisions.

The FCC does not have antitrust authority; as a regulatory agency, its authority is broader than of the antitrust enforcement agencies.

Finally, this report provides recommendations for how to implement a robust public interest standard in FCC merger review by standardizing its test. Recommendations include identifying factors that should be considered in merger review and codifying the evaluation process. The process can then be institutionalized through guidelines similar to the Department of Justice and Federal Trade Commission’s Horizontal Merger Guidelines, or statutory guidance from Congress.

The Public Interest Debate Abroad

Antitrust scholars Harry First and Eleanor Fox have called the United States “somewhat of an outlier in the international community” because of its rejection of public interest factors in antitrust merger policy.²³⁷ A survey of the international landscape, however, calls into question the degree to which this statement holds true. For one, not every country employs a public interest test, and the ones that do tailor their tests to country-specific social, cultural, and political factors. Competition—with its goals of consumer welfare and efficiency—remains the central goal in most jurisdictions, but public interest tests may be carved out to address non-competition factors in specific sectors. Ultimately, the idea of a public interest test in merger control is not standardized in international jurisprudence, and there are significant concerns regarding the susceptibility of a public interest test to political influence.

A Competition Test May Capture Some Public Interest Factors

In some jurisdictions, public interest factors may already be captured in efficiency analysis under a competition framework. South Korea acknowledges the possibility of examining public interest factors as part of efficiency enhancing effects: an increase in employment, regional economy, development of downstream and upstream markets, stable supply of energy, and improvement of environmental pollution.²³⁸ Canada, on the other hand, does not specify any public interest factors in its Competition Act or Merger Enforcement Guidelines.²³⁹ Its courts, however, have provided guidance on how to treat income redistribution in efficiency analysis.²⁴⁰ The Federal Court of Appeal in Canada (Commissioner of Competition) v. Superior Propane Inc., stated that a “balancing weights” approach that assigns a particular weight to the loss in consumer surplus relative to the gain in producer surplus was better equipped than a total surplus standard to account for income redistribution effects.²⁴¹ In 2012, the Competition Tribunal stated in Canada (Commissioner of Competition) v. Tervita Corp that it must also “determine whether there are likely to be any socially adverse effects associated with a merger” if the Commissioner puts forth arguments in this vein.²⁴²

South Korea and Canada are therefore two examples of efficiency-centered competition regimes that can account for certain public interest factors. In the absence of an explicit public interest framework, competition regimes may think creatively to argue for the consideration of certain factors to be included in merger review under an efficiencies defense.

A Public Interest Test Reflects Country-Specific Goals

The goals of competition policy are contingent on a country’s social, cultural, and political norms. A public interest test in merger review may be structured such that it captures a specific country’s broader policy goals. Generally, developed countries have antitrust laws that focus primarily on efficiency and consumer welfare, whereas developing countries have antitrust laws that also address issues of distribution and power.²⁴³

Competition policy in South Africa, for example, serves a dual role: it stimulates competition toward the goal of market efficiency, but it is also part of a broader suite of policy tools aimed at rectifying structural imbalances and past economic injustices.²⁴⁴ In this vein, public interest grounds considered by South African competition authorities include a merger’s potential effects on a particular industrial sector or region, employment, the ability of businesses controlled or owned by historically disadvantaged persons to become competitive, and the ability of national industries to compete in international markets.²⁴⁵

Similarly, China’s competition policy is structured such that it reflects the country’s broader social and economic goals. Article I of the country’s Anti-Monopoly Law (AML) specifies that the law exists “for the purpose of preventing and restricting monopolistic conduct, protecting fair competition in the market, enhancing economic efficiency, safeguarding the interests of consumers and social public interest, [and] promoting the healthy development of the socialist market economy.”²⁴⁶ Article 15 specifies a non-exhaustive list of public interests exemptions to monopolistic conduct that includes conserving energy, protecting the environment, and relieving disaster victims.²⁴⁷

Each nation faces the challenge of designing and implementing a competition regime that addresses both the market dynamics in their country and the unique aspects of broader policy objectives. That is to say, the variety of approaches seen across the international landscape today indicates continuing uncertainty over how best to achieve these goals.

A Public Interest Test Maybe Tailored to Address Non-Competition Factors in Specific Sectors

Where the primary goal of merger control may be competition, jurisdictions may implement a public interest test restricted to specific sectors. A sector-specific approach accounts for specific non-economic factors that are important to the functioning of a healthy market in the sector in question. For instance, a healthy democracy necessarily requires media pluralism, as without access to a diversity of viewpoints, individuals are less likely to come across ideas from multiple perspectives and make their own informed decisions.²⁴⁸ Sector-specific public interest interests have the advantage of limited reach; they do not apply broadly across industries in which these factors are irrelevant.

The variety of approaches seen across the international landscape today indicates continuing uncertainty over how best to achieve these goals.

In this vein, the European Commission considers the effect of a merger in the media space on the diversity of information sources for the purposes of preserving a plurality of opinion and multiplicity of views.²⁴⁹ Beyond the media sector, the European Union Merger Regulation also addresses security issues—such as the production of or trade in arms, munitions, and war material, the security of supply necessary for population health, and prudential rules relating to the financial sector in merger control.²⁵⁰

In Portugal, the Regulatory Authority for the Media may also overrule the competition-based assessment from the Portuguese Competition Authority on the grounds of protecting the freedom and pluralism of the media.²⁵¹ The Competition Act in Canada specifies that while competition law focuses on a merger’s effects on economic welfare and efficiency, mergers in the finance, transportation, and telecommunications sectors are subject to a public interest test executed by their respective sector regulator.²⁵² Regulators overseeing the finance, communications, and broadcasting industries may also consider public interest factors alongside competition elements in South Korea.²⁵³

Limiting the Susceptibility of a Public Interest Test to Political Influence

A public interest test may exacerbate the chances of undue political influence on regulators’ assessment of a deal, leading to unpredictability and inconsistency in merger control. This concern has driven reform of the merger review process in both Norway and the United Kingdom. Other jurisdictions, such as New Zealand and Germany, implement a public interest test secondary to a competition test, which may be a possible mechanism for curtailing the susceptibility of the merger review process to political influence.

From 2004 to 2016, the Norwegian government could overrule its Competition Authority’s decision to block a merger if it found that the merger involved “questions of principle or interests of major significance to society”—a public interest clause.²⁵⁴ These interests included concerns over job loss or competitive effects in local markets.²⁵⁵ Beginning in 2017, however, the Norwegian Parliament eliminated this public interest exception and established an independent competition complaints board. Policymakers justified the change by arguing that “[p]ublic interest considerations are better served by general regulations than political intervention in specific competition cases where the outcome is subject to the influence of the strongest lobbying interests.”²⁵⁶

Merger control in the United Kingdom has also moved away from a broad public interest test out of concerns over political influence. U.K. antitrust authorities previously reviewed mergers under the Fair Trading Act 1973, which implemented a broad public interest test that included employment and national competitiveness.²⁵⁷ The Enterprise Act of 2002, however, codified a competition-based test toward the goal of greater predictability and elimination of “substantial room for the exercise of political preferences.”²⁵⁸ Under current competition policy, the Competition and Markets Authority relies exclusively on economics in its analysis, but it may inform the secretary of state (SoS) when it believes that a merger raises material public interest factors.²⁵⁹ The SoS may then intervene in mergers on specified public interest grounds of national security, media plurality, and the stability of the financial system.²⁶⁰ Public interest considerations are carefully vetted by Parliament prior to SoS adoption.²⁶¹

Similarly, other jurisdictions conduct a public interest test secondary to a competition test. In New Zealand, antitrust authorities will consider broader public benefits only if it finds that the merger would be likely to substantially lessen competition in a market.²⁶² For the public benefit to be given weight in merger review, it must be transaction-specific.²⁶³ The Federal Cartel Office in Germany assesses mergers solely on the basis of competition, but the minister may permit mergers on non-competition grounds in exceptional cases if they outweigh anticompetitive harms, and if doing so does not jeopardize the market economy.²⁶⁴ This two-stage approach not only limits the ability to consider public interest factors in merger review, it also preserves the autonomy of the Federal Cartel Office and isolates any political pressures to the Ministry.²⁶⁵

A two-stage approach involving a competition test before a public interest test may thus be an effective mechanism for curtailing political influence on the merger review process. The current process in the United Kingdom may be the most effective example, as it ensures that public interest factors are properly vetted and specified prior to its adoption in the merger review process.

A two-stage approach involving a competition test before a public interest test may be an effective mechanism for curtailing political influence on the merger review process.

U.S. Sector Regulators Are Charged with a Public Interest Standard in Merger Review

Congress passed the first antitrust law, the Sherman Act, in 1890, followed by the Federal Trade Commission Act and the Clayton Act in 1914.²⁶⁶ These three core federal antitrust laws prescribe the general conditions under which a merger or certain business practices would be considered unlawful. Courts interpreted these statutes and applied them in decisions based on the merits of each case. The modern interpretation of these statutes is to protect and ensure fair competition and to maximize consumer welfare.²⁶⁷

Two federal government agencies enforce these antitrust laws: the Federal Trade Commission (FTC) and the U.S. Department of Justice (DOJ) Antitrust Division. The agencies will consult with each other before launching an investigation into a proposed merger to avoid duplicating efforts. In their investigations, the agencies focus exclusively on competitive factors. Beyond a public interest in the general sense in the enforcement of the antitrust laws,²⁶⁸ there are no public interest factors taken into account in the merger review process by the agencies.²⁶⁹

Mergers in certain sectors, however, may also be subject to a separate review by other federal agencies charged with a broader public interest mandate that goes beyond the scope of competition. The Committee on Foreign Investment in the United States (CFIUS) may block a merger on national security grounds.²⁷⁰ Two sector-specific regulators, the Federal Energy Regulatory Commission (FERC) and the Federal Communications Commission (FCC), review mergers in the electricity and telecommunications sectors, respectively, with a broader public interest mandate.

FERC regulates the interstate transmission of electricity, and both FERC and DOJ review mergers in the electricity sector.²⁷¹ In accordance with Section 203 of the Federal Power Act, FERC assesses a merger’s effects on competition, rates, and regulation and will approve a merger if it will be “consistent with the public interest.”²⁷²

In the telecommunications sector, the FCC and DOJ generally share concurrent jurisdiction over mergers. The FCC is required to review the transfer of telecommunications licenses and authorizations. In accordance with the Communications Act of 1934, as amended, the agency assesses whether a transaction will serve “the public interest, convenience, and necessity.”²⁷³ This determination includes an assessment of competitive factors, but whereas the antitrust agencies’ standard, set forth by Section 7 of the Clayton Act, is whether the proposed transaction would “substantially lessen competition,” the FCC must assess whether approving the transaction would preserve and enhance competition.²⁷⁴ In addition, the FCC’s public interest standard encompasses the “broad aims of the Communications Act,”²⁷⁵ which include “examin[ing] the likely effects of the transfer on the private sector deployment of advanced services, the diversity of license holders, and the diversity of information sources and services available to the public.”²⁷⁶ The difference in statutory authority and relevant standards has, at times, led to different outcomes in the merger review process when both agencies review a transaction.²⁷⁷

After reviewing the evidence and public input, the Commission issues its decision.²⁷⁸ It may approve the transaction parties’ application to transfer licenses as submitted, or with conditions to ensure that the transaction serves the public interest.²⁷⁹ If the Commission is unable to approve a transaction, it will refer it to an administrative law judge for a hearing.²⁸⁰

The Public Interest Debate at the Federal Communications Commission

The specter of political influence has loomed over the Federal Communications Commission not only because of the revolving door between the Commission and the companies they regulate²⁸¹ but also because of its broad public interest standard in merger review.²⁸² The wide scope of this public interest standard has led some to conclude that the agency is more susceptible to political lobbying in its merger review, especially in comparison to the merger review process at the antitrust authorities that looks at competition exclusively.²⁸³

An examination of recent major transactions reviewed by the Commission reveals several practices that should be clarified and codified to avoid the appearance of arbitrariness and political influence on its merger review process. These practices relate to whether the Commission’s purview is limited to merger-specific or merger-related public interest factors, its discretion in imposing conditions even when pre-existing rules and regulations require similar actions from the transaction parties already, and its balancing of public interest factors against public interest harms. What follows is a discussion of several case studies exploring these issues in the Commission’s assessment of three commonly cited non-competition public interest factors—diversity, universal access, and employment—in its merger review process. Ultimately, these case studies demonstrate the need for clear and consistent standards in implementing a public interest test in merger review.

Table 1. Sampling of Public Interest Factors in FCC Merger Review

Source: Federal Communications Commission Major Transaction Decisions

The Commission Does Not Recognize Workforce Diversity as a Public Interest Factor

The Commission has not recognized workforce diversity as a public interest factor in its merger review for three general reasons: First, it finds that workforce diversity is not a merger-specific benefit—that is, the diversity practices in question do not require the parties to merge. Second, there is a question of jurisdiction; the Commission defers to other government agencies like the National Labor Board Relations and Equal Employment Opportunity Commission to address issues in this regard. Third, the Commission’s ability to consider workforce diversity as a public interest factor is limited by relevant case law.

Transaction parties sometimes argue that their diversity practices are a public interest benefit. In Charter-Time Warner Cable/Bright House, the transaction parties attempted to claim their commitment to diversity and inclusion with regards to supplier commitments and corporate governance as a public interest benefit.²⁸⁴ The companies in AT&T/DIRECTV claimed that the merged company would benefit from the application of AT&T’s “best-in-class diversity values.”²⁸⁵ The Commission, however, rejected this argument in both transactions on the basis that the diversity practices described in the parties’ application are not specific to the transaction; the parties could, in theory, implement the diversity practices independently as separate entities.²⁸⁶

Commenters have also raised concerns over a company’s employment practices with respect to workforce diversity. In Comcast/NBCU, commenters expressed concern over the transaction parties’ lack of diversity within management, drawing a connection between a media producer’s diversity in staff and diversity of programming.²⁸⁷ The Commission, however, deemed the issue to be both unrelated to the transaction and overseen by other government agencies like the National Labor Relations Board, Equal Employment Opportunity Commission, and relevant state authorities.²⁸⁸

In Comcast/NBCU, commenters expressed concern over the transaction parties’ lack of diversity within management, drawing a connection between a media producer’s diversity in staff and diversity of programming.

The efficacy of workforce diversity as a public interest factor, however, is limited by the courts. While the 1973 decision in TV 9, Inc. v. FCC found that the Commission’s public interest statutory mandate granted it discretion to expressly consider race and ethnicity in the adjudication of license applications,²⁸⁹ its ability to consider workforce diversity as a public interest factor, however, was restricted by Lutheran Church-Missouri Synod v. FCC in 1998. In the latter case, the court ruled that the Commission’s Equal Employment Opportunity requirements for hiring minorities and women were unconstitutional and found that the agency only has authority to pass anti-discriminatory measures in which the discrimination in question relates to programming.²⁹⁰ There are nuances in what diversity of programming precludes; namely, there is a difference between programming that serves the interests of minorities and programming created by minority-owned stations. Researchers nonetheless have suggested, at least, an imperfect correlation between the two, and—along with a handful of commissioners, including Michael Copps²⁹¹—have called on the agency to “consider whether a marketplace model that has led to a demonstrable drop in the ownership percentages of minorities truly serves the public interest.”²⁹² To fully account for diversity as a public interest factor in the merger review process at the Commission, then, it may be first necessary to undo the repercussions of Lutheran Church-Missouri Synod v. FCC. Whereas the Commission has discretion in interpreting its public interest mandate, its discretion is restricted by relevant legal factors, such as current case law.

The Commission’s Evaluation of Diversity of Programming as a Public Interest Factor Appears Ambiguous and Inconsistent

The Commission’s evaluation of diversity of programming as a public interest factor across transactions contributes to the perception that its review is inconsistent and ambiguous. First, the Commission exercises discretion in deferring to existing rules and regulations that require certain actions from companies in the industry or imposing conditions that require these actions from the specific transaction parties in response to concerns raised by commenters relating to diversity of programming. This discretion, combined with the Commission’s inconsistent determinations of whether diversity in programming concerns are merger-specific, has created ambiguity in its merger review process. This ambiguity is further exacerbated when the Commission fails to demonstrate that it has verified the weight of these factors in its analysis and the cost-benefit analysis indicating that the merger as approved is clearly in the public interest.

In Charter-Time Warner/Bright House, the Commission found that many of the concerns raised by commenters relating to program carriage decisions—specifically that these decisions would disproportionately affect diverse, minority-owned, or minority-focused video programmers—lacked merger specificity and supporting evidence.²⁹³ Instead, the Commission found that the concerns dealt more with industry-wide issues, and relied on economic analysis submitted by the parties that showed a lack of incentive for the merged company to discriminate against these programmers.²⁹⁴ It therefore deferred to existing program carriage rules to address any allegations of discriminatory conduct that may arise instead of imposing conditions on the transaction parties.²⁹⁵

The Commission found that many of the concerns relating to program carriage decisions—that these decisions would disproportionately affect diverse, minority-owned, or minority-focused video programmers—lacked merger specificity and supporting evidence.

In Comcast/NBCU, however, the Commission imposed conditions on the transaction parties to enhance its Spanish language programming in response to “legitimate concerns expressed in the record by commenters concerning the potential impact of the proposed transaction on localism” within Spanish-language-speaking communities.²⁹⁶ The Commission’s diverging decisions to address diversity of programming concerns raised by commenters in Comcast/NBCU and to reject similar concerns on lack of merger-specificity grounds in Charter-Time Warner/Bright House may give rise to the impression that its merger review process is inconsistent.

But there is one critical difference between the two cases: the concerns raised by commenters in Charter-Time Warner Cable/Bright House alleging New Charter’s ability to foreclose or discriminate in program carriage decisions were general and not based on any specific evidence or analysis.²⁹⁷ In Comcast/NBCU, on the other hand, the Commission relied on evidence submitted by commenters demonstrating harm to Spanish-language viewers when NBC acquired Telemundo in 2002 to preempt similar issues of potential harm to diversity of programming in this transaction.²⁹⁸

Nonetheless, the Commission did not address whether the concern of potential harm to diversity of programming was merger-specific in the Comcast-NBCU Order.²⁹⁹ While the imposed conditions would create public interest benefits by protecting what researchers have called “preference externalities,”³⁰⁰ then-Commissioners Robert M. McDowell and Meredith Attwell Baker objected to weighing these commitments in the Commission’s public interest test on grounds that they were not related to the underlying transaction.³⁰¹ The different responses of the Commission to diversity in programming concerns in Comcast/NBCU and Charter-Time Warner/Bright House contribute to the appearance that the Commission is inconsistent in its merger review. These case studies also raise the question of whether the Commission has the authority to evaluate transactions with broader policy goals in mind and address merger-related public interest concerns toward these goals.

A related issue concerns the Commission’s process of measuring public interest factors and the role that quantifying these factors plays in imposing conditions on transactions. In Sirius/XM Radio, commenters raised concerns that the merger would lead to reduced competition that “would diminish the incentive to innovate and provide diverse programming,” and that the reduced channel capacity would harm diversity of programming.³⁰² The Commission did not address whether these concerns were merger specific in this transaction either, and ultimately found that Sirius/XM Radio’s voluntary commitments to set aside eight percent of channels on both platforms to qualified entities and non-commercial educational use would mitigate the potential harm from a decrease in diversity.³⁰³

These case studies raise the question of whether the Commission has the authority to evaluate transactions with broader policy goals in mind and address merger-related public interest concerns toward these goals.

What is noticeably absent, however, is an explanation as to why these commitments would offset the potential public interest harms to diversity in programming created by this transaction. Indeed, in his dissent, then-Commissioner Jonathan S. Adelstein noted that,

Granting the merger under this [‘worst-case’ scenario] approach [of assuming that the proposed transaction represents a merger to monopoly] should require significant conditions, proportional to the significant public interest harm assumed, in order to mitigate the extreme concentration of market power. Regrettably, the majority’s acceptance of the Applicants’ ‘voluntary commitments’ fails to meet this professed prophylactic public interest standard because of gaping loopholes in them.³⁰⁴

One of Adelstein’s underlying points is that public interest factors should be measurable. When the Commission fails to verify the weight of these public interest factors in its analysis and demonstrate that the cost-benefit analysis tilts clearly in the public interest, it contributes to the perception that its merger review process is inconsistent.

The Commission Exercises Significant Discretion over Merger-Related Conditions Addressing Universal Access

The Commission exercises significant discretion in assessing—and modifying—transaction parties’ proposed broadband offerings for low-income consumers in line with its larger policy objective of promoting universal access by ensuring that “all Americans have access to robust, affordable broadband and voice services.”³⁰⁵ The Commission’s assessment of whether this aspect of a merger is merger-specific, however, varies. The Commission also holds significant discretion in imposing conditions around the merging parties’ low-income broadband offerings as part of its public interest test, such that it might impose conditions that are deemed to be merger-related.³⁰⁶ Where it draws the line between merger-specificity and merger-relatedness, however, is a question of its regulatory purview; while the Commission sometimes rejects applicants’ proposed broadband offerings for low-income consumers because the transaction parties can independently offer the services without the merger already, it has, at times, modified these services and specified plan requirements in order to deem it a public interest benefit. Whether the Commission can promote the larger goal of universal access in the merger review process insofar as the item is transaction-specific, as opposed to transaction-related, is unclear.

These conditions vary from merger to merger, and have included requirements around plan specifics, including price, program duration, enrollment benchmarks, and enforcement mechanisms;³⁰⁷ standalone broadband offerings;³⁰⁸ and eligibility.³⁰⁹ The variation in plan requirements raises questions about how this public interest benefit is quantified. The Commission’s overall discretion over items that relate to its goal of universal access contributes to the perception that its merger review process is inconsistent.

The Commission sometimes accepts discount offerings for low-income consumers as a public interest benefit arising from the transaction, but it also rejects them in other transactions. In Altice/Cablevision, the Commission accepted Altice’s low-income broadband package proposal as “firm and definite commitments from Altice and, accordingly, credit[ed] them as a benefit to support a finding that the transaction is in the public interest.”³¹⁰ The same year, however, in Charter-Time Warner/Bright House, the Commission found Charter’s proposed plan to offer standalone broadband service to low-income households to be a benefit that is not transaction-specific, as “any of the Applicants could offer a low-income broadband program absent the transaction.”³¹¹ Instead, the Commission imposed enrollment benchmarks at regular intervals and enforcement mechanisms around the program³¹² to “ensure that the public benefits of the transaction outweigh the potential harms.”³¹³ Commissioner Michael P. O’Rielly objected to this specific condition in his statement, saying that “These changes don’t make the program any more relevant to the transaction than it was when the applicants made the initial offer, nor does the item even attempt to justify this as a remedy to any transaction-specific ‘harm.’”³¹⁴

The Commission’s overall discretion over items that relate to its goal of universal access contributes to the perception that its merger review process is inconsistent.

Similarly, in Comcast/NBCU, the Commission relied on imposed conditions and voluntary commitments made by the merging parties to “ensure that the transaction serves the public interest.”³¹⁵ These conditions included broadband adoption and deployment commitments targeted toward serving low-income households made by Comcast.³¹⁶ These commitments toward removing barriers that keep low-income consumers from accessing the internet were in part why then-Commissioner Mignon Clyburn ultimately voted to approve the deal,³¹⁷ but they are also among those singled out by McDowell and Baker for lacking merger specificity.³¹⁸

These examples demonstrate the flexibility that the public interest standard grants the Commission so that it may fulfill its policy objectives to ensure that low-income consumers have access to affordable broadband. Whether the Commission can address this larger goal in the merger review process insofar as the item is transaction-specific, as opposed to transaction-related, is unclear. This difference in priorities may be distinguished along party lines, with Democratic commissioners like Clyburn more inclined to prioritize broader policy objectives in fulfilling the Commission’s public interest standard in merger review, and Republican commissioners like McDowell and Baker, on the other hand, more inclined to ensure that the Commission’s review is limited to merger-specific public interest factors.

The Commission Is Unclear on Whether Employment Is a Public Interest Factor

The Commission has historically considered employment-related issues in its public interest analysis.³¹⁹ These issues include job creation, commitments to honor union bargaining contracts, and efficiencies resulting from workforce reduction. The extent to which employment factors into its public interest analysis, however, is ambiguous. While the Commission has generally found that employment-related issues are often not verifiable, it has signaled support for these factors in its merger review. For example, the Commission has not recognized commitments toward job repatriation as public interest benefits, but it has sometimes accepted them as evidence that a public interest harm from employment-related issues is unlikely to arise. The agency’s different approaches to evaluating employment under the contexts of potential benefits and harm to the public interest may be attributed to an issue of evidence. Nonetheless, the extent to which it counts employment as a public interest factor remains ambiguous.

Perhaps the most noteworthy example of an employment-related issue in FCC merger review is the transaction parties’ voluntary commitment toward job repatriation in AT&T/BellSouth. Though the Order did not evaluate the public interest merits of this commitment—and it clearly noted that while the commitment was enforceable, it was not a “general statement of Commission policy and [did] not alter Commission precedent or bind future Commission policy or rules”—it was well-received by at least one commissioner.³²⁰ In his concurring statement to the Order, then-Commissioner Copps praised this voluntary commitment from the transaction parties:

Because the loss of jobs is so often the first cost-cutting move of any merger, I am pleased at the company’s willingness to repatriate approximately 3,000 jobs from overseas back to the United States, with at least 200 jobs being created in the hurricane-ravaged area of New Orleans. I believe this commitment is the first such job repatriation ever to accompany a telecom merger. While I fear other jobs will be lost, this provides at least some job comfort for the company’s employees.³²¹

Given this positive reception, transaction parties have attempted to argue that similar intentions to repatriate jobs to the United States were a public interest benefit in subsequent mergers. In Charter-Time Warner Cable/Bright House, the parties held that their commitment to increase customer care through domestic investment and insourced jobs (i.e., by bringing thousands of overseas Time Warner Cable jobs back to the United States) was a public interest benefit.³²² However, the Commission found that the transaction parties failed to articulate precise actions in this regard.³²³ These promises were also unverifiable, given the parties’ claims that the merger would bring significant cost-savings efficiencies, specifically by eliminating redundant positions.³²⁴ The Commission therefore concluded that the transaction parties failed to demonstrate the verifiability of their proposed labor practices as a public interest benefit, suggesting that job repatriation under certain contexts could be considered a public interest benefit.³²⁵

While the Commission has not explicitly recognized commitments toward job repatriation as public interest benefits, it has sometimes accepted them as evidence that a public interest harm from employment-related issues is unlikely to arise. Commenters have argued that a public interest harm exists with the potential loss of employment resulting from a transaction. While the Commission dismissed these concerns as speculative in Altice/Cablevision³²⁶ and T-Mobile/MetroPCS,³²⁷ the Commission took a different approach to similar concerns raised by Communications Workers of America (CWA) in Frontier/Verizon.³²⁸ In separate discussions between Frontier and CWA, Frontier committed to “employment security protections, the addition of 150 jobs in California and 60 jobs in Texas, a commitment to a 100 percent U.S. based workforce, operational flexibility to enhance the service experience for customers, and two-year extension of the collective bargaining agreements.”³²⁹ The Commission then accepted these commitments as assurances that the transaction would be unlikely to result in public interest harms related to the loss of employment.³³⁰

Conclusion and Recommendations

Many competition authorities around the world have adopted a public interest framework in merger review to address non-competition public interest factors, such as preserving employment, protecting national security and defense, and promoting opportunities for populations that have been historically disadvantaged. Each of these competition regimes account for country-specific social, economic, and political goals, and the variety of approaches seen across the international landscape today indicates continuing uncertainty over how best to achieve these goals.

There are also legitimate concerns around the use of a public interest test. Because of its amorphous nature, the public interest test may also be susceptible to political influence. Indeed, the prevalence of this concern in Norway and the U.K. led to the elimination and curtailment of their respective public interest tests. Countries like Germany and New Zealand also have grappled with how to balance competition concerns against public interest ones—after all, without proper checks, public interest factors may easily be used to justify competitively harmful mergers.

Each of these competition regimes account for country-specific social, economic, and political goals, and the variety of approaches seen across the international landscape today indicates continuing uncertainty over how best to achieve these goals.

This concern relates to the Federal Communications Commission’s use of its public interest standard. Its statutory mandate is broad and undefined; the Supreme Court has said that it “no doubt leaves wide discretion, and calls for imaginative interpretation.”³³¹ The courts have provided some clarification into how the Commission may apply its public interest mandate toward the interrelated goals of enriching diversity of programming and workforce diversity. The Commission has been less clear, however, on how it considers other public interest factors, such as universal access and employment. The Commission’s standard is further complicated by its ad hoc treatment of universal access and employment issues—especially when these factors manifest as voluntary commitments or imposed conditions against the context of anti-competitive concerns or public interest harms.

The Commission should aim to standardize its public interest test. The Commission should first identify the values that are critical to preserving a healthy media sector, including localism and diversity, from the outset. In deciding whether to adopt a public interest factor in merger review, the intended goals of these factors should be weighed against the goals of competition. The Commission should establish whether the specific factor aligns with national social, cultural, and economic objectives relative to the media sector and therefore made a priority in merger review. To minimize the risk of approving competitively harmful mergers, the Commission should perform a competitive analysis prior to performing a public interest test. These public interest factors should be verified, quantified, and weighed to the best of the regulator’s ability. The process for evaluating these factors should be transparent, with clear indication that the Commission has confirmed and evaluated the public interest factors and conducted a cost-benefits analysis to indicate that the transaction is in the public interest, in order to minimize the suggestion that its review is inconsistent.

To achieve these goals, the Commission could create a set of guidelines for its public interest test that specifies these factors and the process for weighing them against competition, similar to the Horizontal Merger Guidelines adopted by the Department of Justice Antitrust Division and the Federal Trade Commission, for example. Alternatively, Congress may provide statutory guidance by passing clarifying legislation or enacting a national media policy.

This does not mean, however, that a public interest test should be applied uniformly across all merger review in the United States. Each sector is unique, and, therefore, merger review requires greater scrutiny to identify the non-competition values that are critical to that particular sector. As mentioned briefly in this paper, FERC also employs a public interest standard in its review of electricity mergers.³³² But the public interest factors that matter in telecommunications mergers do not necessarily translate to electricity mergers. There may also be other statutes or procedural mechanisms that ensure that its merger review process is clear and consistent. These are areas of potential further research into how a public interest test works in merger review. As the examples from the international landscape of competition policy and the FCC’s merger review demonstrate, regulators must exercise caution in implementing a public interest test in merger review.

Becky Chao is a 2017-18 Millennial Fellow with the Open Technology Institute at New America. She gives many thanks to Sarah Morris, Josh Stager, Sean P. Sullivan, Janet Kim, Caroline Holland, and Matthew Gessesse for their thoughtful and insightful comments on her paper; Open Technology Institute, Melody Frierson, Reid Cramer, and the Millennial Public Policy Fellows for their constant encouragement and support; and Maria Elkin, Angela Spidalette, and the rest of the Communications and Events team for communications and programming support.

by Christian Hosam

“The Act gives a broad interpretation to the right to vote, recognizing that voting includes ‘all action necessary to make a vote effective.’” 

– Earl Warren³³³

Supreme Court Chief Justice Earl Warren wrote this in the 1969 decision Allen v. State Board of Elections. But what exactly does it mean for a vote to be “effective” and how has this changed over time? The Allen decision held that Section 5 of the Voting Rights Act of 1965 (VRA) was designed to help address both the subtle and obvious ways that state regulations took away the vote on the basis of race.³³⁴ This decision extended the logic of the VRA beyond discrimination at the ballot box to the affirmative right of minority voters to have political representation. Today, this remains the terrain upon which many of the thorniest legal battles around voting rights are fought.

Particularly since the 2013 Shelby County v. Holder decision, which substantially weakened Section 5 of the VRA, there have been legal challenges to determine the constitutional limits of racial protection that remain without preclearance requirements to serve as guardrails for both sides.³³⁵ While the Supreme Court has adjudicated many cases, especially within the context of Section 2 claims (the part of the legislation that is focused on the dilution of minority votes), there is no intuitive definition, either before or after Shelby, for a threshold that clearly defines sufficient minority political participation, nor should there be. The Voting Rights Act was not designed—and therefore not equipped—to take up the challenge of determining the best way to ensure that communities of color around the country are able to best and most effectively exercise their constitutional right to vote.

There is no intuitive definition, either before or after Shelby, for a threshold that clearly defines sufficient minority political participation, nor should there be.

This report reviews how the legal remedies used to address disparities in racial minorities’ political representation are ill-equipped to face the realities of current geography and demography, both because they are stuck in a black-white binary and because they depend on a level of geographical segregation that no longer exists. While many of the barriers that make it more difficult for people of color to vote today are similar to those that the VRA was trying to end when it was passed, there are new barriers that are subtler and often poorly discussed by the media, scholars, and policymakers alike.

When the VRA was enacted in 1965, the country had two major racial groups. Consequently, the focus of the legislation was to provide protections for African Americans against disenfranchising voting ID laws and support for the development of majority-minority districts.³³⁶ In the intervening years, the country’s demography has changed. Today’s America is marked by increasing racial and ethnic diversity and unprecedented levels of partisan polarization, which has heightened disputes over voting rights and changed the underlying political terrain. This is the context to consider the advent of new forms of voter suppression that are taking root in different states and cities. Accordingly, voting rights policy needs to respond, and the VRA needs to shift and expand. Voting rights policy should affirm what the right to an “effective” vote means in a diverse, and often politically polarized, society.

Between Protection and Subversion: The Shifting Role of the VRA in Empowering Voters of Color

The Supreme Court’s 2013 ruling on Shelby County V. Holder struck down the Section 4(b) coverage formula of the Voting Rights Act, essentially dismantling the preclearance mechanism created in Section 5 that required approval by either the Department of Justice or a federal court to change election laws in jurisdictions of the Jim Crow South. According to the Supreme Court, the formula used to define which states would have probable discriminatory intent was out of date after 50 years and irrelevant to the practical realities of disenfranchisement schemes. Soon after the decision was handed down, states that had previously met federal resistance were able pass new election laws without federal oversight. Immediately, new barriers to enfranchisement, particularly in communities of color, were erected.

Legendary civil rights movement activist, Senator John Lewis, lamented “This is a very sad and dark moment for our democracy.”³³⁷ This was a painful decision for civil rights activists. But, it was hardly a surprise. Both the courts and the government agencies that enforce the VRA had been weakening minority protections for decades.

Indeed, an assessment of the Voting Rights Act’s impact can be distilled down to the tension between trying to work as a shield for the voting rights of communities of color while simultaneously dealing with the reluctance of American jurisprudence to clearly and explicitly mete out remedies for racial discrimination.

In the decades preceding Shelby County v. Holder, Section 2 of the VRA had a number of amendments and addenda that reflected prevailing assumptions about race as a relevant and actionable form of redress for political participation. A short summary of just a few of these cases illustrates the tension between admitting how important race is to political influence and recommending race-neutral solutions to these problems that are produced by racial discrimination.

In the 1986 Thornburg v. Gingles case, the Supreme Court set forth three general preconditions for a successful Section 2 case to establish a majority-minority district, namely:³³⁸

• a minority group is large enough and lives closely enough together so that a relatively compact district in which the group constitutes a majority can be drawn;
• the minority group has a history of political cohesiveness or voting as a group; and
• the white majority has a history of voting as a group sufficient to usually defeat the minority group’s preferred candidate.

Once these three preconditions are met, a court then examines whether the minority group has less opportunity than other members of the electorate to influence the electoral process and to elect its candidates of choice under the “totality of circumstances.”  This effectively means that there is no clear and replicable test for determining whether those preconditions constitute a successful Section 2 claim on their own. The bar may be higher.

In the 1993 Shaw v. Reno case, the Supreme Court decided that race could not dominate the logic of redistricting, meaning that if a jurisdiction did not meet the first precondition of Thornburg, which is compactness of a racial minority in a geographic area, the Supreme Court would judge the validity of the majority-minority district with strict scrutiny.³³⁹ In 2006, LULAC v. Perry determined that the justification for majority-minority districts had to be decided within the context of the jurisdiction itself and not within the context of how that district would affect the overall representation of minorities in the overall state.³⁴⁰

There is no clear and replicable test for determining whether those preconditions constitute a successful Section 2 claim on their own.

Taken together, this reflects a significant change in jurisprudence. Specifically, even as the VRA protects communities of color within cases, the admissibility of race narrowed as a factor in determining how fairly drawn a jurisdiction is or is not. This moves the law away from an overall orientation toward seeing the necessity of ensuring that each vote has equal power, regardless of where it’s located in a specific state. This reorientation is especially harmful given other trends in the VRA’s implementation, which have eroded other previously existing voter protections.

As described by Jessie Rhodes in his path-breaking book Ballot Blocked, the power of the Voting Rights Act had been blunted over time.³⁴¹ Even as Congressional Republicans reauthorized the Section 4 formula that was overturned by the Shelby decision, they consistently advocated for policies within the federal bureaucracy that narrowed the scope of the VRA. Republican presidents, for example, frequently appointed federal judges who had conservative views on voting rights and appointed officers within the Department of Justice and the Civil Rights Division who actively sought to establish bureaucratic processes that made federal statutes harder to enforce.³⁴² Moreover, many of these changes within the administration of the legislation took place during times when low levels of national media attention were being directed toward voting rights. Clearly, the shrinking protections afforded to racial minorities is a culmination of a years-long campaign to erode the guarantees afforded by the VRA when it was first enacted.

In spite of all of this, the VRA has still been critical in terms of protecting the right to vote, even as it is intended to govern contested policy space. Since its inception, over 200 election schemes were rejected under the preclearance rules, and many more cases were adjudicated in favor of marginalized communities under the auspices of Section 2.³⁴³ The problem with the contemporary focus on Section 2 since Shelby is that it places the burden of proof on the claimant rather than the jurisdiction in question. While this has negative effects for all potential claimants, it has particularly deleterious consequences for those who are new to communities. They, sadly, learn that the political rights to which they are entitled require far more of a fight than they imagined.

What the Voting Rights Act Tells Us About the Black-White Binary in Public Policymaking

A measure on the ballot in the city of Santa Clara, California, seeks to move the city from at-large to district-level elections that would be decided using ranked choice voting.³⁴⁴ The suit arose from frustration due to the Santa Clara City Council having no Asian American representation, despite the city population being almost 40 percent Asian American. The challenges of creating equitable representation for Asian Americans are seen around the country in various forms. Ming Hsu Chen and Taeku Lee write in their UC Irvine Law Review article “Reimagining Democratic Inclusion: Asian Americans and the Voting Rights Act” that Asian Americans remain stubbornly and acutely underrepresented as both voters and as elected officials, well below what would be proportional for their population in the country.³⁴⁵ Relatedly, Latinx voters are subject to significant underrepresentation at the polls and in public office as well.³⁴⁶

Worse still, contemporary jurisprudence around the Voting Rights Act is counter-effective at helping remedy this underrepresentation. As significant media coverage is granted to the notion that we are moving toward becoming a “majority-minority” nation, the configuration of civic power shows the potential limits of there being a concomitant rise in the influence of voters of color.

As previously noted, the ability to consider race as a salient factor in the creation of voting districts is still allowed, but now under more narrowly prescribed conditions. While this approach has harmed Black political power in places where there was a high level of mobility into jurisdictions, this dictum also has severe impacts in Latinx and Asian American communities as well. This is because even as there are rapidly increasing proportions of these communities in the aggregate nationwide, they rarely constitute the majority of currently defined districts. In addition, unlike African American communities, even when there is critical mass, many of the people in these communities are immigrants and often face additional obstacles to secure their rights, especially as new arrivals who are learning the basics of voting eligibility and the terms of civic engagement.

For non-Black people of color, the current American legal infrastructure around voting actually disempowers them from reaching their full political potential. This raises a number of foundational questions that go to the heart of the Voting Rights Act’s purpose. Is the VRA designed simply to protect access to the vote itself? Or, is the VRA supposed to ensure that voters, no matter the community that they are a part of, have an equitable chance of their vote affecting their political preferences? How should VRA jurisprudence consider race, particularly in the cases of non-Black people of color for whom race does not necessarily serve as pretext for political solidarity? More to the point, with such severe underrepresentation of these groups, what type of remedy should the VRA be expected to provide in the future?

The ability to consider race as a salient factor in the creation of voting districts is still allowed, but now under more narrowly prescribed conditions.

We have evidence that the previous answers delivered by the courts have been contradictory at best and deleterious at worse to the promotion of fair political participation. LULAC v. Perry establishes that even as race is something that could be considered in the development of jurisdictions, it must not be assumed that people with similar racial backgrounds have similar cultural backgrounds. This extended the logic that was enacted in Miller v. Johnson (and also Shaw v. Reno), which ruled that majority-minority districts that used race as the “predominant” factor would be judged with strict scrutiny.³⁴⁷

This is troublesome because it shows that while there might be legal protection for racial minority groups that have the potential to develop majorities within a jurisdiction, there is far less in the way of protections for those communities that have substantial populations of minorities. This is because even when they are concentrated, they do not necessarily constitute the compactness prong of the Gingles test that establishes that minority communities are “communities of common interest.”³⁴⁸ So for communities that are rapidly growing, such as Latinx and Asian American communities, any potential gerrymandering schemes that divide up these populations are unlikely to be subject to Section 2 vote dilution claims. This has already been seen in the few Section 2 claims that Asian Americans and Latinx have filed with respect to their political influence in specific areas.

This lack of legal success highlights a deeper problem with American jurisprudence surrounding race. The claims that are successful are those that have a mandate to address issues of explicit racial discrimination. However, as the Court has ruled, racial discrimination is only legible within the context of a black-white paradigm. Those claims that hold merit are almost always in districts with an obvious scheme designed either to shrink access to the ballot box or to dilute the voting power of a critical mass of voters—and within the context of the Supreme Court, African American communities are almost exclusively the communities that have concentration rates high enough to have critical mass). Simultaneously, the Supreme Court is skeptical of making that subtext text because even as it acknowledges that the VRA was enacted in part to address historical legacies of discrimination, cases in subsequent decades have gotten further away from this mandate. With the erosion of the implementation of the law paired with the Supreme Court’s hesitation to clearly state if or how the purpose of the VRA has changed, the validity of using race as a factor in either the legitimacy or illegitimacy of electoral models is always up for grabs depending on the current composition of the Supreme Court.

This tension between the spirit of the law and how it has been implemented over time has direct and ruinous effects for Latinxs, Asian Americans, and other people of color around the country who are still in the process of growing and developing civic capacity and voice. However, as the next section shows, this tension has specific negative effects for African Americans, who in many ways are still the group that benefits most from the VRA.

As the Court has ruled, racial discrimination is only legible within the context of a black-white paradigm.

The Political Geography of VRA Enforcement

When the Voting Rights Act was passed in 1965, there was an understanding that simply protecting access to the ballot would be insufficient to ensure minority voting rights. As a corollary, Congress passed the 1967 Uniform Congressional District Act to mandate the use of single-member districts for all states with more than two seats in the House of Representatives.³⁴⁹ Even though most states already had single-member districts by this time, the legislation was designed to ensure that minority representation could not be undercut by at-large elections that would drown out the will of people of color, and instead allow them to live in majority-minority districts that would afford them descriptive representation or the ability to elect someone with a similar racial/cultural background. Fast forward fifty years and there is a litany of scholarship that forcefully argues that state legislatures’ attempts to “pack” and “crack” communities of color into or out of these districts reduces the communities’ overall ability to enact their will on the state more broadly.³⁵⁰

It is stunning that that the same structures that were used to secure the influence of communities of color can now be used to reduce that same influence. While the VRA did a major service in terms of curtailing attempts to disenfranchise voters from being able to access the ballot box, it didn’t (and couldn’t) protect against the ways that demographic shifts would make the protections that the VRA installed eventually harder to enforce.

Public policy in the United States has historically operated within the context of a black-white binary and this has undermined the democratic capacity of Asian Americans and Latinxs. However, the tension between laws that were enacted for historical redress and the policies that are used to implement them often disenfranchise the very people they were designed to support. Put another way, the black-white binary is itself anti-Black. Laws intended to alleviate damages against African Americans (as well as other people of color) are susceptible to the negative consequences of interpretation that evacuate the power of the original goal of legal restitution for discrimination in lieu of more cosmetic avenues for policy change (e.g. diversity, descriptive representation).

Shifts in the population concentrations of people of color around the country lead to different types of challenges for organizing and political representation. For African Americans this means that as populations transform and evolve, the strength of legal protections that they might have been granted under the Voting Rights Act are chipped away. The types of litigation that would be successful under a Section 2 Voting Rights Act claim in 1982 were quite broad, taking into account the specific history of a particular jurisdiction as well as using overt discrimination as a major factor in political disenfranchisement. What the standards did not do was protect against spillover effects from shifts in the county’s population. Places to which a high number of people are moving should act proactively to ensure the voting rights of new citizen configurations and, yet, the structure of the law often makes it more difficult to do so.

For African Americans this means that as populations transform and evolve, the strength of legal protections that they might have been granted under the Voting Rights Act are chipped away. 

This need for nimbleness is brought into focus when thinking about the mobility flows of African Americans. According to the 2010 U.S. Census, the Black population in the South grew from 53.6 percent to 55 percent between 2000 and 2010, while the Black population in both the Northeast and the Midwest shrank to 17 and 18 percent, respectively.³⁵¹ Additional evidence suggests that two-thirds of African Americans moving from one region to another were moving to the South, and, of those African Americans moving from the Northeast, 82 percent of them were moving to the South, often moving to suburbs rather than cities.³⁵² As noted in a report by Colorlines:

The increased dispersal of black families across municipal boundaries may also impact the election of politicians most willing to address the unique concerns of black constituents. Black concentration in major cities allowed for the election of black mayors, city council members, and congressional representatives in the 1970s, 80s, and 90s. With the black population spreading beyond central city neighborhoods, will black voting power be weakened? This is of specific concern now as states are redistributing and redrawing political districts based on the Census.³⁵³

This type of movement has significant political consequences. As Kimberley Johnson notes, increased Black suburbanization leads to higher levels of political fragmentation, meaning that both the political compactness that often occurs as well as the “urban endowment,” such as access to national bond markets, a geographically dense network of NGOs and nonprofits, and extensive physical infrastructure, are all lost.³⁵⁴ Even with a higher overall number of Blacks moving to the South, their increased dispersal decreases their political power.

How does a situation arise in which a greater Black population actually leads to less political representation? The Uniform Congressional District Act determines that when there is more dispersal across a larger geographical area, only the places where there is a significant concentration of Black residents are afforded special consideration. This creates an incentive for partisan legislatures to create barriers to entry for voting because their party may benefit if they disenfranchise enough voters to help their candidate reach a plurality—as in our first-past-the-post system in which candidates are declared winners when they receive the most votes and do not need a majority.

In reality, this means that nascent and developing populations of newly arrived residents have unique challenges in developing political power because they have both the intuitive challenges of developing community as well as tremendous variation in terms of whether their right to vote will be made more or less difficult, depending on the state, and the locality within certain states, in which they reside. N’Tanya Lee, a former director of Coleman Advocates for Children and Youth, a grassroots organizing and policy advocacy organization in San Francisco, illustrates this dynamic in the Colorlines report, stating:

A black high school student goes to school in San Francisco, stays with an auntie, but their mom lives with her boyfriend in Richmond and grandma lives in Hayward. She kind of lives here; kind of doesn’t,” Lee says, painting a hypothetical picture of the instability. “What’s the anchor? Where’s the ‘home’ to organize around? Parents move to Sacramento and kids still go to school, crash with friends, or live with grandparents. Families are constantly traveling by BART and highways to visit core members of their families, who are spread out.³⁵⁵

While there would be a hope that the Voting Rights Act would help to remedy the situation presented here through legal means, Section 2 actually makes it more difficult. Populations going through shifts have little in the way of legal protections against disenfranchisement schemes because the VRA, as it is applied now, primarily applies to the legality of jurisdictions, not the protection of minority voting power. Indeed, unless there are strong indications that a majority that has partisan cohesiveness as well as racial cohesiveness within a jurisdiction (remember that race cannot, by itself, be seen as the primary determinant for the creation of a majority-minority district), current case law is likely to view those approaches as illegal. This shows that while the VRA might be more effective at protecting against explicit forms of voter discrimination and electioneering, it is a much different story when it comes to supporting the development of political infrastructure (e.g. who the major political officials are, what kinds of local institutions help get out the vote, etc.). It is critical to take these questions of incorporation into account when thinking about the ways in which racial demographic and residential patterns shift and transform communities across the country.

Voting Rights: The Next Generation

How do we create a more equitable society that allows for full and fair citizenship? Through shifts in judicial interpretation and haphazard implementation, the Voting Rights Act has become an obstacle rather than a means to answer this question. That is not to say that there aren’t reforms that can strengthen the VRA. For example, some constructive proposals aim to refocus the burden of proof from the claimants back to the jurisdiction that is making a proposal that could disenfranchise a community; other ideas are to reinstate Section 5 protections with a new formula.³⁵⁶ These would require Congress to amend the law. While certainly worthwhile, these types of reforms suffer from the longer historical trend of legal remedies, which have demonstrated potential to harm as much as they help. As long as jurisprudence does not forcefully state the importance of race in the decision-making process, there is a substantial chance that while it might help in the affected jurisdiction, it can have deleterious externalities in others. Other reforms, which would benefit from greater attention, can be achieved on the local level.

Through shifts in judicial interpretation and haphazard implementation, the Voting Rights Act has become an obstacle rather than a means to answer this question.

Focusing on strengthening civic engagement at the local level in order to empower voters has a number of benefits. There is the immediate impact of having higher levels of civic participation that can create more formal voters and the ancillary impact of making it easier for new community members to be aware of how to navigate disenfranchisement schemes as well as increased collective civic capacity in communities that have often proved successful in overcoming the nefarious aims of electioneering that seeks to weaken political power. Similar to making changes directly to the Voting Rights Act, the following recommendations are not easy, but they have all shown relative success where they have been tried and could have dramatic effects, if implemented at scale, in terms of creating a more diverse, equitable, and accountable electorate nationwide.

Develop Public Engagement Units (PEU) in Cities Around the Country

In 2015, New York City developed an innovative outreach team to make sure that citizens had access to social services that they were entitled to receive, such as rental subsidies, health care enrollment, and free legal assistance if they were at risk of eviction from their homes.³⁵⁷ The Public Engagement United (PEU) helped develop a level of trust in public assistance, as well as a development of civic infrastructure, that focused specifically on hard-to-reach constituents. In Minnesota, there is a Civic Engagement Committee that has been designed for what they term “meaningful engagement” to empower citizens across the state in ways that have the distinct impact of developing trust and participation in government.³⁵⁸ By having civic engagement centered within the public policy of cities and municipalities, there are a number of districts that can still develop strong, cogent blocs of power that bring representation of people of color much closer to equity within those locations.

Merge Redistricting Commissions with Community Outreach Programs

Thirteen states have independent redistricting commissions that attempt to get away from the partisan incentives that structure the gerrymandering of state legislatures around the country. This approach tries to elevate the voices of people who have an objective perspective on how communities and their political jurisdictions are organized.³⁵⁹ It is designed as an alternative to election commissions, which are split along partisan lines—often in odd-numbered configurations with the majority of seats designated to the party holding a majority of seats in the state legislature). However, in practice, partisan divisions replicate themselves at this level, meaning that while the pace at which gerrymandered districts change is faster, the results are often very similar to states where the legislature have the responsibility for drawing the lines. A way to get closer to the goal of equitable representation would be to center civic equity through actively factoring in the effects of civic participation on the development of these districts. Thinking about how to develop participation for all constituents rather than those who happen to be in the racial and partisan majority would make it more difficult for parties to file claims against communities of color for having “too much” power because parties would then have to address the fact that it was both an independent and bipartisan set of actors that set up the boundaries.

Enact Proportional Representation Around the Country

This is likely the largest change but perhaps the one with the most promise in the contemporary moment. The pending Santa Clara case is instructive because the remedy proposed moves the city to a proportional representation system in which the Asian American residents might be able to control a portion of the seats in the County Council relative to their population density within the city.³⁶⁰ Alternative voting systems, such as ranked choice voting, have taken root in sporadic, yet impactful, ways around the country. While the merits of using this type of voting system over the first-past-the-post system that we currently have at the federal level will not be discussed here, what is critical to note is how first-past-the-post exacerbates the incentives to disenfranchise communities of color.³⁶¹ As noted by Lee Drutman, “Under a proportional system, if you want to live in a big, liberal city in a liberal state, you don’t give up the chance to make a difference with your vote. There is also very little possibility for consequential gerrymandering in proportional representation systems, since districts tend to be so big that there’s not much to gain from alternative line-drawings.”³⁶²

While Drutman primarily proposes that we have proportional representation at the federal level, it may be best to start at the state and local level. For one, it allows people to take greater ownership over their local communities, which is especially helpful for political incorporation purposes, and it creates an awareness of the system, which is currently stymied by the muscularity of the two parties at the federal level.³⁶³ Starting at the local level is critical because it helps build the civic infrastructure that allows for upstream impacts in terms of political engagement and capacity for organizing. The nationalization of two-party politics creates the perception that the local level of politics has a smaller and smaller role in the calculation of why people enter politics. Given what we know about geographic inequities and the impact of public policy on political empowerment, this is not the case. It is the case that the protections that are absent from the Voting Rights Act, if they will not be addressed by the courts, are not going to be addressed by Congress either. What can happen is a deeper investment in local communities that seeks to work around these issues in ways that directly and impactfully empower communities of color.

The nationalization of two-party politics creates the perception that the local level of politics has a smaller and smaller role in the calculation of why people enter politics. 

The purpose of the Voting Rights Act at the time of its passage was to protect access to the ballot by African Americans. A second generation of rights, established through Allen V. State Board of Elections and other subsequent cases, were centered around the right to fair and equal representation and an “undiluted” vote.³⁶⁴ To be sure, assaults against these first two generations of voting rights are still with us, particularly in a post-Shelby world. Election times are being cut, there are new, onerous identification requirements popping up in different parts of the country, and some states (southern states in particular) are being gerrymandered in ways that make it harder for people of color’s votes to have the same outcome that they would in other districts that were drawn with equal representation in mind. Because of these enduring struggles, it is important to note just how important the Voting Rights Act still is to this day.

However, there is a new landscape on which the battles for equitable influence and representation are being waged. For those communities that are growing but do not yet have the numbers to establish majority-minority districts around the country, they do not have the legal assurances that their votes will matter in the same ways as their white counterparts’. For those people who are moving back to regions previously covered by Section 5, which should still be covered by Section 2 of the VRA, the increased dispersal associated with American suburbanization actually makes it harder to access the type of civic power that might be expected by moving to states with higher levels of similarly situated residents. One issue not addressed here is how this relates to the displacement caused by gentrification.³⁶⁵ The “spillover” suburbs that capture those who have been displaced as a result of rising housing costs in highly concentrated urban areas suffer from the same type of civic disinvestment that is seen by those who actively look for better financial opportunities as a result of reverse migration. The intersection of legal protections and political incorporation of new community arrivals constitutes a new generation of voting rights struggles. Emplacing the local and investing in new generations of communities can lead to new models of policy change designed to meet these struggles and those that will meet generations in the future.

Christian Hosam is a 2017-18 Millennial Fellow with the Political Reform program at New America. He would like to thank the entire Political Reform team, particularly Lee Drutman and Mark Schmitt, for their help in framing, refining, and elevating the ideas presented in his paper. Thanks are also due to Marcia Chatelain, Rachel Black, and Didi Kuo for their insightful edits and comments. Special thanks to Ted Johnson, Myrna Pérez, Janelle Wong, Kareem Crayton, and Yamil Velez for their helpful thoughts and feedback. Finally, many thanks to the other Millennial Public Policy Fellows, Reid Cramer, and Melody Frierson for their support during this fellowship year.

by Dillon Roseen

A fundamental principle of medical ethics spanning as far back as the ancient Greek Hippocratic Oath is that it is more essential for a physician not to harm a patient than it is to do them good. Today, emerging technologies are transforming health care, and, as a result, new threats are emerging that could violate this principle, placing patients directly in harm’s way. As our reliance on technology in health care increases, from handling sensitive patient data using electronic health records to receiving vital signals from implanted medical devices, so, too, does the risk inherent in connectivity.

Health data often include the most private and immutable information of our lives, which makes it all the more alarming that the cybersecurity of connected health system is especially vulnerable compared to other sectors. Health care data breaches account for an overwhelming number of the nation’s total breaches. In fact, at 53.1 percent of all the publicly reported data breaches, health care is by far the most breached of all sectors.³⁶⁶ Each of the millions of stolen health records costs health organizations an average of $380, not to mention the time and emotional costs patients must endure following a breach. For comparison, the average cost of a single stolen record for other sectors is $141.³⁶⁷ The total cost of health care data breaches has been estimated to be $1.2 billion, a number that is probably conservative given underreporting and the additional costs associated with negative PR, breach response, and future investments in prevention.³⁶⁸

Emerging technologies are transforming health care, and, as a result, new threats are emerging that could violate this principle, placing patients directly in harm’s way.

In addition to the costs associated with stolen health records, cyber-insecure health systems may be unable to deliver life-supporting care. Connected medical devices can carry lethal cybersecurity vulnerabilities—like a pacemaker that was recently recalled³⁶⁹ by the Food and Drug Administration (FDA)—and become vectors for life-threatening or system-disrupting attacks, as was the case in a major global cyberattack last summer.³⁷⁰ If left unmitigated, these cybersecurity threats leave our health care system and the vulnerable patients it supports in danger of suffering from irreversible financial, reputational, and medical harm. That is why it is critical for policymakers to implement a proactive cybersecurity strategy for the health care sector.

This report builds upon ongoing policy research efforts by the New America Cybersecurity Initiative and highlights key points that are especially pertinent to a cohort that will be forced to grapple with future health care cybersecurity threats: Millennials. According to the New America Cybersecurity Initiative’s Do No Harm 2.0 health care report, improvements in health care cybersecurity should be pursued in the following three areas: technology, workforce, and culture. More specifically, health care cybersecurity efforts should seek to identify technological opportunities and challenges facing the health care sector, build the health care cybersecurity workforce of the future, and crystallize a culture of trust between patient and provider by ensuring the privacy and availability—and, therefore, security—of medical information. Together, these efforts will provide solutions for closing the gaps and patching existing problems. They will also, more importantly, articulate a proactive vision for where the health care industry should be in five years. This agenda is more constructive rather than reactive and serves to improve patient health outcomes and protect patient dignity in the long run.

Because Millennials are often looked to fill the gaps in the health care cybersecurity workforce, yet generally lack robust training opportunities and sufficient resources to succeed as health care cybersecurity professionals, the focus of this paper is on the workforce stream of the Do No Harm 2.0 report. Thus, this report takes a closer look at the workforce recommendations and provides additional context intended for an audience that may not normally focus on cybersecurity policy.

Problem Definition

Understanding the challenges facing the health care cybersecurity workforce starts first with a conversation on the broader national and international cybersecurity workforce landscape. Globally, across all sectors, there is a massive gap between the number of open cybersecurity positions and the number of cybersecurity professionals who are hired to fill those positions. This has led to a so-called ‘cybersecurity workforce gap’ or ‘shortage,’ terms used interchangeably in this paper and broadly meant to describe the unmet demand for cybersecurity professionals in the workforce. The 2017 Global Information Security Workforce Study found that the cybersecurity workforce gap is expected to reach 1.8 million by 2022.³⁷³ In America, the cybersecurity workforce gap is the result of several key factors.

First, and perhaps most discussed, is the hypothesis that there is an inadequate cybersecurity education pipeline that has led to a skills shortage. Generally speaking, this hypothesis goes on to argue that there are too few people receiving cybersecurity educations, either because there are limited opportunities to receive such an education or because people are not interested in studying cybersecurity (or some combination of the two). For health care specifically, cybersecurity education and training programs are not tailored to the idiosyncrasies within the health care environment. Health care cybersecurity specialists must possess a highly unique set of competencies that fall at the intersection of cybersecurity, health care privacy, and security regulation, most notably around HIPAA. This blended skill set creates a sort of “hybrid job” (to borrow terminology from labor market analytics company Burning Glass) that is generally not taught in a single education or training program.³⁷⁴ This makes it difficult to meet baseline competencies required for cybersecurity professionals to succeed in the health care setting.

The 2017 Global Information Security Workforce Study found that the cybersecurity workforce gap is expected to reach 1.8 million by 2022.

Further complicating these issues with training and recruitment, mundane and repetitive tasks occupy much of the time of information security professionals in health care. As a result, retaining cybersecurity talent in health care becomes much more difficult. Policy recommendations aimed at addressing this problem focus on strategies to increase the number of students pursuing a cybersecurity education, including two- and four-year degrees, technical training programs, and apprenticeships, and efforts to create industry-specific tools that would support health care information security professionals.

The second hypothesis regarding the cybersecurity workforce gap suggests that the cybersecurity skills shortage is not actually as bad as it appears. Rather, it argues that there are in fact more qualified individuals with sufficient skills to work in cybersecurity than employers currently appreciate. Put simply, the problem is that there are people in the labor force who have the skills to be employed as cybersecurity professionals, but employers are not hiring them. For instance, many health care providers require applicants to have a specific industry certification, several years’ work experience, and a college degree before hiring them. It is common, however, for individuals to teach themselves the basics of cybersecurity outside of a formal education or certification program; the nature of the profession is very much one of learning through independent self-exploration. Policy recommendations aimed at addressing this problem are centered on aligning hiring practices to better measure the skill level of potential employees and moving away from traditional measures that may underappreciate an individual’s actual level of expertise.

The third factor contributing to these workforce challenges is a problem related to the hiring and promotion of minority candidates.³⁷⁵ Perhaps surprisingly, a recent study found that minority participation in the cybersecurity workforce (26 percent) is actually higher than the workforce participation of minorities in other occupations (21 percent).³⁷⁶ While this initial observation is promising, there are other more insidious factors to consider. For instance, the same study found that the average pay for a cybersecurity professional is $122,000, but is only $115,000 for minorities. This finding is especially problematic when considering that minorities in the cybersecurity workforce have, on average, obtained a higher level of education (62 percent with master’s degrees or higher) than their white counterparts (50 percent with master’s degrees or higher). Still, only 23 percent of minorities hold a position at the director level or above, compared to 30 percent of their white peers. The barriers to equal pay and promotion have particularly pronounced negative impacts on women, who comprise a dismal 14 percent of the total cybersecurity workforce, and in particular on women of color.

Beyond the generally accepted understanding that a workforce should reflect the population it serves, the issues related to diversity in the cybersecurity workforce are problematic for three reasons. First, the anemic workforce needs to recruit and retain talent from every part of society or it misses a deep pool of talent that can help fill the gaps. Second, social science research has demonstrated that heterogeneous teams produce higher quality work than homogenous equivalents.³⁷⁷ Third, from an equity perspective, it is troubling to know that there are systems in place that propagate discriminatory outcomes for minority cybersecurity professionals.

The problem is that there are people in the labor force who have the skills to be employed as cybersecurity professionals, but employers are not hiring them.

A fourth problem contributing to the health care cybersecurity workforce shortage is explicitly linked to the incredibly tight budgets of most health care organizations, especially small- and medium-sized providers. Whereas other industries that handle similarly sensitive information, like financial services, operate on margins of 15 percent or more, health care operates on margins hovering around 3 percent.³⁷⁸ This limitation restricts the ability of health care organizations to invest in robust cybersecurity protections and recruit highly sought-after talent. Moreover, given a number of competing hiring priorities, health care managers are often compelled to spend limited budgets on nurses, physicians, or other high-need positions rather than on cybersecurity staff.

Complex and multifaceted challenges like the cybersecurity workforce shortage require equally complex solutions. Thus, a comprehensive solution to the cybersecurity workforce shortage must present strategies that address the myriad of issues described above and create solutions that anticipate where the health care sector is headed over the next five years. The following sections lay out a series of policy recommendations that do just that.

Existing Programs & Policies Aimed at Improving the Cybersecurity Workforce

Many efforts that attempt to mitigate the challenges present in the overarching cybersecurity workforce are currently underway, however few are designed to specifically address the pernicious issues unique to the health care sector. As a conversation on the health care cybersecurity workforce is couched within the context of the broader cybersecurity workforce landscape, it is important to first note the programs and policies framing the overarching cybersecurity workforce discussion. In this regard, the following tables act as a non-exhaustive list of some of the most commonly cited cybersecurity workforce development programs and policies.

Policy Recommendations

Robust workforce development policies often converge around three distinct aspects of the workforce experience: recruitment, retention, and research. Recruitment strategies are intended to both increase the number of individuals pursuing cybersecurity education programs and also better align health care hiring practices to account for skilled experts who may not have traditional education backgrounds. Retention strategies are focused on supporting diverse hires, who exit the cybersecurity profession at higher rates, and mitigating the “brain drain” through payroll tax incentives. Research strategies are centered on the creation and implementation of health care-specific technologies that would make information security work more meaningful, specifically through existing government innovation funding programs.

Recruitment-Specific Policies

1. The CyberCorps Scholarship for Service program should be amended to allow recipients to serve in specific, critical need sectors like health care.

The CyberCorps Scholarship for Service program is a major federal effort to increase the number of trained cybersecurity professionals who enter the federal government. In exchange for tuition and a living stipend while pursuing a cybersecurity education program, recipients agree to serve in a cybersecurity-related position in a federal, state, local, or tribal government. Only about 3,300 students have entered the scholarship program since 2001, which includes several hundred students who are still in their education programs.³⁸² The placement rate in government for students completing the program is quite high, and about 70 percent of students stay involved in a government position following their service commitment.³⁸³ Still, with nearly 200,000 new openings for cybersecurity-related jobs annually, it is clear that CyberCorps has not even come close to meeting the demand for cybersecurity talent, nor should it be expected to provide the sole source of cybersecurity training.³⁸⁴ For health care in particular, CyberCorps is an especially unreliable source of talent because recipients are required to fulfill their post-award service obligation in the government.

Most health providers in the United States are privately owned and operated; in total, 80 percent of hospitals are privately owned.³⁸⁵ Thus, most health institutions are ineligible. This is problematic because, in addition to there already being a small number of students completing the scholarship program, they are not offered the opportunity to fill high-need positions in non-governmental critical national infrastructures, like health care.

With that said, there are ways in which the CyberCorps Scholarship program can be amended to better serve the needs of critical sectors that are particularly at risk, such as health care. There is a bill currently in the Senate (S.754) that aims to do just that. Specifically, the bill would loosen the requirements for post-award service to also include non-profit critical national infrastructures, as defined by the Critical Infrastructures Protection Act of 2001.³⁸⁶ If the post-award service requirement is expanded to include non-profit critical national infrastructures, health care stands to benefit. Nearly 60 percent of community-owned hospitals (or 2,849 total hospitals) would become eligible institutions for the first time, allowing scholarship recipients to enter into the health care cybersecurity workforce upon graduation.³⁸⁷ Even considering the fact that over 1,000 community hospitals with for-profit status would still be ineligible, the move to include nonprofit critical infrastructures is a needed improvement.

CyberCorps has not even come close to meeting the demand for cybersecurity talent, nor should it be expected to provide the sole source of cybersecurity training.

Going one step further, policymakers in Congress should consider implementing even stronger incentives to encourage more students to pursue careers in health care cybersecurity. They can do this in the text of any proposed legislation by explicitly naming health care as a high-need critical national infrastructure and providing additional post-scholarship monetary incentives to students who choose to enter “high-need” sectors, like health care. Similar federal programs exist that incent doctors and nurses to serve in high-need rural areas.³⁸⁸

2. The DOL, the National Cybersecurity Center of Excellence (NCCoE), and state and local governments should create and subsidize models for cybersecurity-specific apprenticeships in the health care sector.

An apprenticeship, according to the DOL, is “an arrangement that includes a paid-work component and an educational or instructional component, wherein an individual obtains workplace-relevant knowledge and skills.”³⁸⁹ Already, apprenticeships have been used in contemporary industries ranging from manufacturing to hospitality to transportation. Recently, apprenticeships have been heralded as a game-changing training model that can mitigate chronic workforce shortages in the cybersecurity profession and in health care cybersecurity more specifically.

There are many benefits to adopting apprenticeship models that build the health care cybersecurity workforce. Apprenticeships can be particularly effective at addressing recruitment and retention-related challenges in health care cybersecurity for three reasons. First, there is a clear hiring and promotion schedule that attracts individuals seeking upward mobility throughout their career.³⁹⁰ Second, health providers are better able to retain talent because of the “earn-while-you-learn” model that fosters a spirit of loyalty amongst their employees. Third, and particularly relevant for retaining diverse hires, apprenticeships have an engrained mentorship component that supports both training and professional development. Health providers that choose to incorporate apprenticeship training models not only create an alternative pathway into the health care cybersecurity profession, they also lay the groundwork for a more diverse and representative workforce.

Despite these clear benefits, implementation of health care-specific cybersecurity apprenticeships is distant. In fact, even the most generalized cybersecurity apprenticeships that don’t account for health care-specific idiosyncrasies are still in an early stage of development.³⁹¹ There is a tendency for the development of apprenticeship programs to be led by industry players, and for government officials to take a back seat. However, in order to achieve scale, government officials must enact purposeful policy-grounded solutions that encourage a systems-level, public-private approach. To this end, policymakers should develop policies that meet this goal.

Despite these clear benefits, implementation of health care-specific cybersecurity apprenticeships is distant.

First, there needs to be a clear framework that details the requirements of a health care cybersecurity apprenticeship, with guidance on the roles and responsibilities of each relevant actor in the apprenticeship process: intermediaries,³⁹² health care organizations/employers, apprentices, and educational institutions. A critical piece of this process should be creating a set of competencies required for someone to be considered a “health care cybersecurity expert.” NIST’s NCCoE may be best equipped to shape such a standard given its ability to convene a range of stakeholders whose input is critical for success. NCCoE must rely on guidance from a wide range of groups when establishing a standard for health care cybersecurity expertise, including from health care providers, educational institutions, intermediaries, and relevant public-sector entities.

Importantly, there is not a single set of requirements that would be applicable for every apprenticeship across every jurisdiction, and thus these frameworks should largely be viewed as valuable guidance. Policymakers at all levels—federal, state, and local—have an important role to play in shaping the apprenticeship standards that work best for their constituencies, especially considering that around half of these standards are set at the state level. For policymakers looking for a place to start, the DOL’s registered apprenticeships program can serve as a strong example.³⁹³

A second step for creating sustainable health care cybersecurity apprenticeships is providing incentives that would scale successful apprenticeship models. Since health care cybersecurity apprenticeships will be foreign to all but the most progressive health systems, incentives help to ease the transition for employers and intermediaries looking to introduce apprenticeships into their hiring practices and business models. These incentives can be constructed in a number of ways, either by providing subsidies directly to employers to help hire additional talent through an apprenticeship program, through tax breaks for providers or intermediaries who adopt new models, or through some newly constructed public service agreement similar to the CyberCorps Scholarship. A wealth of research has been produced on other effective strategies for scaling apprenticeship capacity, including in the Youth Apprenticeship in America and Connecting Apprenticeship and Higher Education reports.³⁹⁴

Retention-Specific Policies

1. Provide payroll tax incentives to health care providers to address the “brain drain” in health care cybersecurity.

Much of the focus around cybersecurity workforce development is rightly centered on recruitment. This makes sense considering 39 percent of health care hiring managers hope to grow their information security staff by 15 percent or more over the next year, more than any other industry.³⁹⁵ Filling seats is crucial, but it is not the only aspect of creating a robust health care cybersecurity workforce. Another important consideration is how to retain newly hired talent to ensure there isn’t a leaky pipeline, creating a perpetual shortage that leads to increased hiring costs. The so-called health care cybersecurity “brain drain” happens when a health system manager spends a great deal of time and money to train a new cybersecurity professional, only to have them leave quickly for another job, often in a higher-paying industry. This is a very real concern for many health system managers because they often see staff leave shortly after getting brought up to speed.³⁹⁶

Why are health care cybersecurity professionals leaving? Social science research finds that there a number of factors that can affect an employee’s decision to leave, regardless of industry. These factors include pay, work conditions, development opportunities, and the expected level of time and effort required for a job. Additional research on tech-specific retention trends finds that a lack of professional development opportunities, burnout, and a non-inclusive cybersecurity culture can lead to especially high turnover in the tech industry—for instance, average tenure is about three years, with over half of women leaving tech altogether.³⁹⁷

When these lessons are applied to the health care context, it becomes clear why there is a brain drain of cybersecurity talent. Not only are professional development opportunities few and far between, information security specialists in health care often lack a clear promotional path. Moreover, workflows in health care can be particularly tedious, time consuming, and boring. For instance, information security professionals are often required to manually audit EHR access logs by hand, a process taking countless hours and requiring little higher-level thinking. Because information security teams in health care are generally small and compete for funding with other core non-clinical departments, employees face a lot of pressure that can lead quickly to burnout. Additionally, the overarching cybersecurity sector has a documented culture of harassment that can disproportionately affect women, leading many qualified women to exit the field.³⁹⁸ On top of all this, higher-paying tech companies and flashier intelligence agencies often actively recruit cybersecurity talent away from health care, presenting an easy exit for those trained specialists who want out.

A lack of professional development opportunities, burnout, and a non-inclusive cybersecurity culture can lead to especially high turnover in the tech industry.

Given these retention challenges affecting the health care cybersecurity workforce, policymakers should embrace methods to mitigate the factors leading to high turnover. Specifically, policymakers at the federal and state levels should create and fund workforce development programs that provide payroll tax incentives to health care providers who effectively retain cybersecurity talent. Many examples exist that provide models for how to effectively develop these programs, from the 2010 Hiring Incentives to Restore Act to the Tax Cuts and Jobs Act approved by Congress in December 2017. In order to reward health providers who retain cybersecurity talent, payroll tax programs should provide tiered incentives that increase over time. For instance, the longer an individual remains employed in a specific health system, the more money a health system receives as part of the payroll tax program. By creating a tiered model, health providers are incentivized to establish retention programs for their cybersecurity workforce, like professional development or mentorship opportunities. For forward-thinking providers, payroll tax incentives can even be reinvested directly toward the salary of a cybersecurity employee. Reinvesting in this way helps to offset the external pressure from other higher paying industries.

Research-Specific Policies

1. Leverage existing government innovation funding programs to develop next-generation cybersecurity tools specific to the health care sector.

When applications of emerging technologies, like artificial intelligence, quantum computing, blockchain, and natural language processing, are considered in the health care sector, they are most often discussed in terms of how they can help deliver better patient outcomes. It is true that these technologies present incredible opportunities to more accurately diagnose illnesses, empower patients with their own health data, and spot disease outbreaks before they spread. However, the focus on delivering better patient health outcomes misses another equally valuable opportunity for these technologies: better protecting patient data, privacy, and health system cybersecurity. Already, research has demonstrated both theoretical and practical applications of emerging technologies for cybersecurity enhancement. One specific area in the health care sector relates to the tedious and time-consuming task of manually auditing HIPAA access logs, a process that can be largely automated through big data analytics and artificial intelligence. Yet innovations in this space are encumbered by lack of general awareness and limited research funding that enables scaling of promising technological applications across the entire health care ecosystem.

This recommendation assumes health care’s continued enhancement of human-computer interactions to augment employee workflows that are tedious, involve large data sets, and/or necessitate speedy responses. For health care cybersecurity professionals, workflows tend to be all three, creating high-pressure situations that fall onto small teams. Stressful environments like this lead quickly to burnout.

To help address burnout while also increasing employee productivity, health systems should look to adopt emerging technologies that can support employee workflows by automating repetitive tasks and quickly sifting through massive patient data sets. In this way, health care cybersecurity professionals are able to pursue more rewarding security projects, like investigating high-level security incidents, researching best practices from other organizations, and producing strategic organizational security plans on HIPAA compliance and digital hygiene. As a result of this shift away from mundane assignments toward projects that require more high-level thinking, health systems are better able to retain their cybersecurity employees. Health systems must continue to embrace emerging cybersecurity innovations, but government must also encourage continued research into technological innovation and scaling of promising solutions. Government innovation initiatives are common, especially in high-tech industries, and models are easily adapted to spur health care cybersecurity-specific innovation.

The focus on delivering better patient health outcomes misses another equally valuable opportunity for these technologies: better protecting patient data, privacy, and health system cybersecurity.

Government funding initiatives like Small Business Innovation Research (SBIR) programs have proven to be effective at catalyzing innovation and job creation through relatively small government investments, cementing permanent technological advances in critical industries.³⁹⁹ Broadly speaking, SBIR grants are awarded by federal agencies to small businesses conducting promising early-stage research and development in fields that are viewed as too risky for private investors. While a number of government agencies administer SBIR programs, the largest source of funding currently comes from the U.S. Department of Defense.

There are several positive effects of SBIR funding on innovation and workforce development. Evidence shows that government-sponsored SBIR projects are particularly effective at spurring innovations that would not have otherwise happened in the absence of funding.⁴⁰⁰ Moreover, receiving even a nominal SBIR award often leads to additional positive outcomes for award recipients; for instance, SBIRs play a certifying role, signaling to private investors that a project is thoroughly vetted by a trusted government actor. Since private sector investors trust the rigorous SBIR assessment process, many choose to invest even more in an SBIR-funded project. In the absence of a certified SBIR grant, private investors are less inclined to provide additional support.

While SBIR-funded projects do not always succeed in the long-run, even those projects that fail or exit the market create positive economic outcomes. For instance, SBIR-funding is often used to support employees in small businesses, and the training and expertise they gain from an SBIR project will follow them throughout their career. This is especially exciting for health care cybersecurity since the human capital expertise developed through an SBIR project can be leveraged to help address chronic workforce shortages.

Another documented benefit of SBIR-funded projects is a spillover effect that benefits all of society, not just one specific industry. According to research from the National Research Council, SBIR-funded projects create an 84 percent social rate of return.⁴⁰¹ This is much higher than the expected 25 percent social rate of return for projects that fail to receive SBIR funding. In other words, SBIR-funded projects are very likely to provide widespread net benefits to society, well beyond the specific aims of a project.

Despite the fact that SBIRs constitute one of the largest and most effective government-industry partnerships in terms of annual budget, there is not enough focus on critical need areas like health care cybersecurity. The Department of Health and Human Services (HHS) is currently one of 11 federal agencies required to set aside at least 3.2 percent of its research and development budget for SBIR projects; more of these funds should be set aside to specifically research health care cybersecurity innovations.⁴⁰² To achieve this goal, there needs to be a supportive policy framework that encourages the creation of welfare-enhancing cybersecurity technologies in health care. HHS has wide discretion to set funding priorities, and, as such, SBIR funding models should be directed toward the expansion of health care cybersecurity projects. Projects should be selected based on, among other criteria, their potential for commercialization. By increasing SBIR funding in health care cybersecurity in this way, additional tools will be developed that can augment existing technological interventions. Moreover, effective cybersecurity platforms and tools will proliferate throughout the health care sector at a faster rate.

Conclusion

This research report explored various dimensions of the health care cybersecurity workforce gap and presented policy solutions aimed at rectifying deleterious issues. It began with a brief introduction describing why the cybersecurity workforce issue is a critical part of protecting patient privacy, dignity, and safety while continuing to deliver the best patient health outcomes. The paper then went on to define the problems surrounding the health care cybersecurity workforce in more detail. Following this problem definition, the paper explored existing high-level cybersecurity workforce initiatives to help frame health care-specific policy recommendations. Next, the substantive policy section of this paper presented recommendations to improve the health care cybersecurity workforce according to a three-pillared framework: recruitment, retention, and research. These recommendations drew heavily from the New America Cybersecurity Initiative’s Do No Harm 2.0 report, which presents a series of recommendations that also encompass technology and cultural issues in the health care cybersecurity space. For forward-thinking policymakers, this report can serve as a useful study on how to bridge the health care cybersecurity workforce gap, an urgent issue facing one of our nation’s most vulnerable critical national infrastructures.

Dillon Roseen is a 2017-18 Millennial Fellow with the Cybersecurity Initiative at New America. He extends heartfelt thanks to the small-but-mighty Cybersecurity Team: Ian Wallace, Laura Bate, and Robert Morgus. Their support and guidance has been invaluable. He thanks Reid and Melody for building the “MPPF ship” and helping the cohort set sail on this incredible journey.