discrimination Archives - Prindle Institute

July 24, 2023July 24, 2023

Is Students for Fair Admissions Good Constitutional Law?

photograph of college gates with students beyond

Last month’s Supreme Court decision invalidating the affirmative action programs used by Harvard University and the University of North Carolina to make undergraduate admissions decisions has, of course, generated a great deal of commentary – so much, indeed, that it easy to lose sight of two important issues: first, what were the arguments by which the Court arrived at its conclusion, and second, whether those arguments are any good in constitutional terms. As it turns out, both issues are more complicated than one might have thought based on the bite-sized encapsulations the media tends to provide.

Given that even the dissenting opinion in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, written by Justice Sonya Sotomayor, accuses the Court of “upend[ing] the status quo based on their policy preferences about what race in America should be like,” it is worth asking at the outset whether the Court’s arguments even merit close examination. Are they not, as the Court’s opponents tend to believe, mere post hoc rationalizations for imposing the policy preferences of the Court’s conservative wing? This complaint rings somewhat hollow coming from critics who generally countenance a place for judicial value judgments in constitutional jurisprudence; and in any case, it is mostly irrelevant. Whatever the Justices’ policy preferences or value judgments, they recognize that they are constrained to furnish public justifications for their decisions in terms of the doctrines and canons of judicial reasoning that constitute the tradition of American constitutional thought. Even if the public justifications are post hoc, they – and not the Justices’ policy preferences or value judgments – are what the public sees, and what judges and lawyers must rely upon, and ultimately the Court’s decisions stand or fall with them.

The Court’s argument that Harvard’s and UNC’s race-conscious policies are unconstitutional is simple in outline: the Equal Protection Clause of the Fourteenth Amendment prohibits racial discrimination by the states unless it is narrowly tailored to further a compelling government interest (this test is known as “strict scrutiny”); the colleges’ policies are racial discrimination, thus subject to strict scrutiny; they do not further a compelling government interest and are not narrowly tailored; therefore, they are unconstitutional.

No one disputes the argument’s first premise – that the Equal Protection Clause prohibits racial discrimination unless it passes the strict scrutiny test. This actually turns out to be important, because it means that everyone agrees racial discrimination by the states could be permissible. One need not read the Clause this way: it says simply that no state shall “deny to any person . . . the equal protection of the laws.” This categorical-sounding language could be interpreted as imposing an absolute ban on racial discrimination. The Court has chosen not to interpret it as an unqualified ban, and instead has allowed racial discrimination in a number of contexts – for example, segregating prison inmates by race to prevent imminent, serious harm from a race riot. And that means that the Court must consider whether the state’s interest is sufficiently compelling to justify racial discrimination.

It is less clear whether everyone on the Court agrees that Harvard’s and UNC’s affirmative action programs are racial discrimination in the sense that triggers strict scrutiny. Although Justice Sotomayor’s dissenting opinion purports to show why they pass strict scrutiny, thus implying that they are racial discrimination subject to this test, this may be because Justice Sotomayor chose not to contest the Court’s practice, which goes back to the first affirmative action cases, of analyzing affirmative action programs as if they were a form of racial discrimination. Indeed, in a way this question of whether affirmative action programs are racial discrimination gets to the heart of the disagreement between the majority and dissenting opinions, which concerns the meaning of the Equal Protection Clause itself.

For the majority, the Clause stands for the proposition that the Constitution “should not permit any distinctions of law based on race or color.” In other words, for the majority the Constitution presumptively forbids any law, policy, or regulation that classifies people by race and distributes benefits and burdens on that basis, on the theory that such classifications are inherently arbitrary and unjust. Thus, the Court approvingly quotes Brown v. Board of Education (1954) as saying that segregation in public schools would be wrongful “even though the physical facilities and other ‘tangible’ factors may be equal” – the “mere act of separating” is bad enough. The remedy is that the law should be formally colorblind.

By contrast, the dissenting opinion presents a view of equal protection that is less formalistic and more functionalist. According to this view, equal protection aims to eliminate racial “caste” systems, which are partly maintained through the state’s treatment of racial minorities in ways “denoting ‘inferiority as to their status in the community.’” On this view, racial classifications may only become problematic when they function to perpetuate or express the racial values of the caste system. Assuming that affirmative action programs do not do this, it might be argued that they do not even count as racial discrimination, and so are not subject to strict scrutiny at all. Again, the dissenting opinions do not go quite this far, but it is an implication that follows logically from their interpretation.

Who is right here? It is important to recognize that to be “right” in this context is not, at least in the first instance, a matter of moral judgment. Instead, it is about the proper interpretation of the Equal Protection Clause. In a sense, the issue is what ideal – the law as colorblind or as eliminating racial caste – was guiding those who drafted or ratified the Fourteenth Amendment, Congressmen who legislated during and just after it was passed, and others who might have insight into how it was understood at that time. The dissenting opinion can, and does, point to numerous examples of contemporaneous laws passed by Congress, such as the law creating the Freedman’s Bureau, as evidence that equal protection was thought to be fully compatible with color-consciousness. But that evidence is only so persuasive, given that these laws were largely addressed to ex-slaves, not Blacks as such; and more importantly, both sides agree that the Constitution’s bar on racial discrimination is merely (though strongly) presumptive. In other words, since the majority concedes that some racial discrimination passes strict scrutiny, the obvious reply is that, for example, the law creating the Freedman’s Bureau was racial discrimination and was perhaps understood as such, but it was thought to be necessary to meet the compelling needs of newly-freed slaves. Since no one in 1868 talked about these issues using terms like “strict scrutiny,” “race conscious,” or “colorblindness,” and since Congress was addressing a set of issues very different from those we now confront, it is difficult to be sure whether the congressional proponents of apparently race conscious laws saw them as justified racial discrimination or not racial discrimination at all. That is a somewhat fine distinction for your average Congressman.

In any case, as I mentioned, the Court’s opinion presumes that affirmative action is racial discrimination subject to strict scrutiny, and the dissent does not strongly contest that claim. So, let us consider why the Court held that affirmative action fails strict scrutiny. Its principal argument is that in order to justify racial discrimination, the government’s interest, or the goal it is trying to achieve, must be sufficiently “coherent” and “measurable” to be “subjected to meaningful judicial review”; and racial discrimination must be necessary to achieve the goal. According to the Court, the Harvard and UNC programs fail on both counts. Harvard identified the following educational benefits that its program helps facilitate: “training future leaders in the public and private sectors”; preparing graduates to “adapt to an increasingly pluralistic society”; “better educating its students through diversity”; and “producing new knowledge stemming from diverse outlooks.” Although the Court calls these aims “commendable,” it complains that “it is unclear how courts are supposed to measure any of these goals.” And even if they could be measured, the Court asks, “how is a court to know when they have been reached[?]” In addition, the Court questions whether assigning students to racial categories “furthers the educational benefits that the universities claim to pursue.” The Court’s point here, which is consistent with the racial skepticism evinced by a number of Justices during oral argument, is that racial categories are arbitrary and say relatively little about a person’s outlook or experience. Indeed, the Court also accuses Harvard and UNC of engaging in racial stereotyping, assuming that “[students] of a particular race, because of their race, think alike.”

On its face, these criticisms seem to have some merit. In the context of the rest of the Court’s constitutional jurisprudence, however, it is difficult to resist Justice Sotomayor’s claim that the Court here “moves the goalposts” of strict scrutiny in order to arrive at its preferred conclusion. Prima facie, the Court should consider the diversity goals of affirmative action programs sufficiently concrete to be compelling because it has in the past, in Regents of the University of California v. Bakke (1978), Grutter v. Bollinger (2003), and Fisher v. University of Texas at Austin (2013). The Court also previously found the “plus factor” approach to affirmative action sufficiently well-connected to those goals. In other contexts, the Court has approved of such nebulous compelling interests as “protecting the integrity of the Medal of Honor,” “public confidence in the judiciary,” or “maintaining solemnity and decorum in the executive chamber.” The Court could reply that it seriously misapplied strict scrutiny in the past, although in its opinion it claims that it “never permitted” admissions programs like Harvard’s and UNC’s, without explaining in detail how the programs at issue in Bakke, Grutter, or Fisher were relevantly different (Justice Gorsuch’s concurrence is less cagey about the fact that SFFA overrules the earlier cases). It could also claim that the standards of concreteness or measurability are higher in the equal protection context because the Constitution so disfavors racial discrimination, but that, too, would represent a departure from the Court’s previous approach.

On the whole, the Court’s reasoning in SFFA is unconvincing. The Court plumps for a formalistic conception of the Equal Protection Clause that focuses on a particular means – racial classification – divorced from an appreciation of its substantive end. In a different world, the Court might have decided long ago that affirmative action programs do not even qualify as racial discrimination in the sense relevant to triggering strict scrutiny. Even if they do, the Court’s strict scrutiny analysis places high hurdles in front of affirmative action programs that the Court has not used in other contexts.

All of that said, no one can be surprised at the demise of affirmative action. Starting with Bakke, the Court has never shown much enthusiasm for it. First, it decided that strict scrutiny applies, which in any context imposes a tough burden on the government to justify the law under review. Second, it held that remedying the effects of past discrimination is not a compelling government interest because it is an “amorphous concept of injury that may be ageless in its reach into the past.” This forced institutions like Harvard to rely on the argument that affirmative action is necessary to achieve the educational benefits of a diverse student body, which is perhaps a less compelling rationale. Boxed in by these two moves, the defenders of affirmative action were always fighting uphill.

July 12, 2023

Privacy, Discrimination, and Facial Recognition at Airports

photograph of line of people with luggage at airport

If you find yourself traveling, you may notice that your identity is being verified in a new and different way. Instead of showing your ID to an employee in the security line, you may find that you’re asked to insert it into a machine while a camera captures your image. The machine software will then determine whether that image matches the person on your ID. Some airports use databases for identification so that the ID does not even need to be scanned.

The technology has been developed by the transportation security administration, and they’ve been quietly rolling it out at airports across the country. The primary advantages are that this system is potentially faster, easier, and more accurate. Airline travel in the middle of the 20th century was advertised as glamorous and comfortable. There now seems to be no end to the inconveniences travelers have to endure. To some, anything that makes the process less like an interrogation would count as an improvement.

On the other hand, many are alarmed to see this technology emerge without much warning. Some are concerned about the government having access to this kind of data. They are now allegedly using it to make airline travel easier, but there are lingering suspicions about what it could be used for in the future. It has become commonplace for people to become aware that a corporation has used their data for purposes to which they did not knowingly consent; data is sold to third parties and used for targeted advertising. For many, these concerns are even more troubling when the entity gathering the information is the government. The government could potentially build a database of everyone’s faces and use it in settings in which citizens would not be comfortable. For instance, while smart buildings offer significant potential for more environmentally friendly institutions, some are also designed with facial recognition technology. Some argue that this would be an improvement — the technology could recognize potential threats or disgruntled former employees before acts of violence can take place. Others respond that this benefit would not be worth the violation of privacy that would result — the government could potentially know where people are all the time, at least when they are in or near government buildings. If the moral right to privacy involves maintaining control over one’s own body, that right seems to be substantially violated when corporations and the government are cyberstalking people all of the time.

There are also serious concerns about how these systems will determine which individuals count as threats. People are concerned about what’s become familiar forms of algorithm bias. There is data to support the idea that facial recognition programs do less well identifying the faces of people of color. A recent study concluded that Native American, Black, and Asian people were 100% more likely to be misidentified than their white counterparts, and women were much more likely to be misidentified than men. (Middle-aged men had the highest accuracy rate of identification overall.) People of color already encounter racial profiling at airports, and this policy has the potential to make these problems worse. Our current political circumstances make discrimination even more likely. Heated political rhetoric has made life more challenging for Muslims and Chinese people, especially at airports. Further, concerns about being misidentified by AI airport security may create a chilling effect on travel for members of these groups, constituting a form of systemic racial oppression.

Those who defend the system point out that travelers can opt out of facial recognition by simply saying, “Please don’t take my photo.” If this is the case, the argument is that the government isn’t really violating people’s autonomy — they have the right to say “no.” There are, however, a number of responses to this argument. First, travelers may be concerned about what might happen to them if they refuse to comply. Travel is a critical human need, especially as our experience is increasingly globalized and our loved ones and livelihoods are more likely to be scattered across states, countries, and even continents. If a person is detained by security, they might miss the birth of a child or saying goodbye to a dying relative. The circumstances at airports are inherently coercive and people might be deeply concerned that they won’t get to their location unless they go along. Second, a person may have a right to say “no” as a matter of policy, but it is very unlikely that any particular passenger will know that they have it. Finally, a person is unlikely to want to make waves, delay other travelers, and potentially embarrass themselves. If a “right of refusal” policy is coercive and lacks transparency, citizens cannot give fully free and informed consent.

Like so many recent developments in technology, facial recognition motivates questions about authority and political legitimacy. Who gets to make these decisions and why? The answers to these questions are far from obvious. Allowing those who stand to gain the most power or earn the greatest profit to dictate protocols seems like a bad idea. Instead, we may have to trust our elected representatives to craft policy. The problem with this approach is that, for many legislators, winning re-election takes precedence over any policy issue, no matter how dire. We need look no further than lack of progress on climate policy to see that this is the case. Alternatively, we could bring questions of the greatest existential import to public referendum and decide them by a direct democratic process. The problem with this is the standard problem for democracy posed by philosophers for decades — the population as a whole can be woefully underinformed and act tyrannically.

One lesson that we’re left with is that we shouldn’t let these major changes blow by without comment or criticism. It’s easy to adopt a kind of cynicism that causes us to believe in technological determinism — the view that any development that can happen will happen. But policies are made by people. And one of the most important roles that sound public philosophy can play is to demand justification and ensure that policy is supported by deliberate and defensible moral principles.

June 19, 2023June 28, 2023

Nowhere to Hide: Extracting DNA from Air, Water, and Sand

photograph of gloved hand taking water sample

David Duffy and his team from the University of Florida recently discovered a groundbreaking method for tracking the health and whereabouts of sea turtles. As the turtles represent an endangered species, the scientists’ goal was to study their migration patterns and to identify the environmental factors that might be influencing their health and well-being. Researchers found that they were able to extract meaningful DNA samples from air, water, and sand at the beach. Those samples allowed researchers to draw conclusions about sub-populations and to test for the presence of pathogens that lead to a particularly deadly form of cancer in sea turtles.

The discovery that significant DNA information could be extracted from these sources is great news for conservation scientists as well as for people who care about the preservation and well-being of animals more broadly. Scientists can use genetic information about animals without disturbing them in their natural habitats; they can wait until an animal has vacated a space before using the genetic material left behind to learn more about the creature and that creature’s community.

Researchers also learned something with more controversial consequences. Meaningful amounts of human DNA were extracted from air, water, and sand as well — amounts of DNA that can pick out the genetic code of specific individuals. This means that human beings, like other animals, leave behind genetic information essentially everywhere we go. This discovery gives rise to many important moral questions.

One such question is: who owns discarded pieces of a person’s body? Does the person still have some rights of ownership over physical matter that comes from their own body? If so, do these ownership rights entail a corresponding right to decide what can be done with the matter? Or, instead, are discarded cells like trash — once we’ve shed them, we no longer have any reasonable claim to ownership over them? Should we adopt a “finders keepers” attitude when it comes to discarded genetic material?

One response may be that treating small bits of discarded material as part of a person’s body is impractical and unrealistic. If shedding cells is something we do everywhere we go, there can be no returning discarded cells. At that point, the living source has lost any control. It might be tempting to think that there isn’t much at stake here.

That said, humans don’t have the best track record when it comes to using genetic material in morally responsible ways. For example, in one famous case, a woman named Henrietta Lacks consented to a biopsy as part of her cancer treatment. Scientists used her genetic material for research and found that her cells — now called HeLa cells — had remarkable properties that led to major advances in medical treatment. For decades, Lacks’ family was not compensated in any way for their matriarch’s contribution. One reason to be concerned about Duffy’s discovery is that a person’s cells could easily be used to profit others without any compensation accruing to the source. If this is the case, a person’s discarded genetic material may just be a new capitalist frontier to commodify and exploit.

But there are other reasons to be concerned that genetic information will be misused. For instance, in the late 1980s, members of the Havasupi Tribe provided their genetic material for the purposes of studying Type II Diabetes, a condition from which many members of the tribe suffered. Unbeknownst to the donors, the genetic information was used to research migration patterns, inbreeding, and schizophrenia within the tribe. Migration studies of tribal members, in particular, could potentially disrupt the already tenuous relationship that Native Persons have with the land and provide another avenue for governmental exploitation. When genetic material is collected or used without consent, it can lead to further discrimination and racism.

In addition to these concerns, we also tend to think that a person is entitled to privacy when it comes to details about their own body. When we shed our DNA, we don’t do so intentionally; we don’t give consent. But if an institution or individual was able to extract DNA from a location where we unwittingly shed it, they could come to know all kinds of details about any of us. The right to privacy begins within the borders of one’s own body even if those borders might shift or extend.

Then, of course, there are the implications for forensic science. Since its discovery, DNA has changed the landscape in criminal justice. There is no doubt this has had some tremendous positive consequences. Killers who had gone free for decades to commit all sorts of atrocities were eventually captured using DNA, sometimes through the use of unconventional methods. That said, the presence of DNA is not always evidence that a specific individual committed a crime. Sometimes context gets lost when DNA evidence is found. Finding a person’s DNA at a scene, even when there is a harmless explanation for that fact, can blind investigators to other explanations and prevent them from looking into other viable suspects whose DNA was, for whatever reason, not extracted.

Duffy’s discovery encourages speculation about a future in which it is impossible to get away with committing a crime — one in which there will always be genetic evidence to connect a person to a scene at the time a crime was committed. In such a world, we might wonder, what happens to Fourth Amendment rights? We might be looking at a future in which the genetic tapestry of any space is, in a sense, open access. In such a world, what would it mean for search and seizure to be “unreasonable”?

Finally, we can ask the question about this technology that we find ourselves asking over and over in this age: is this knowledge worth pursuing, or are we opening Pandora’s Box which can never be closed? We tend to treat all technological knowledge as intrinsically valuable, as if we are always justified in pursuing new frontiers. It may be the case, however, that some knowledge is not worth having, such as the number of blades of grass on a lawn or the number of grains of sand on a beach. Other knowledge is worse than neutral or useless, it is all things considered harmful. Consider, for example, knowledge of how to construct biological weapons or weapons of mass destruction. We treat pursuit of this kind of information as if it is inevitable, but it really isn’t. Should we view ourselves as subject to some kind of irresistible technological determinism such that if it is possible to create new tech, we are powerless to stop it? Instead, we might do well to consider carefully the implications of our discoveries and regulate the technology in ways that respect fundamental values.

December 12, 2022December 14, 2022

Rejecting the Caste System and Discrimination Based on Religion

photograph of students milling in front of university library

In December 2022, Brown University became the latest institution of higher education and the first Ivy League institution in the United States to explicitly ban discrimination on the basis of caste. Brown has existing protections that prohibit discrimination on the basis of race, gender, sex, religion, and sexual orientation, and it may seem that these protections are sufficient to cover discrimination on the basis of caste. However, in an increasingly globalized world, an expanding number of international students are coming to study at American universities. Many Americans are unfamiliar with the caste system and, as a result, caste-based discrimination and micro-aggressions can go largely unnoticed but remain tremendously harmful in learning environments.

In Hinduism, the caste system is a hierarchical system based on hereditary groupings. Some groups are perceived as less spiritually pure than others. The caste to which one belongs impacts the kinds of work that person is permitted to do, the kinds of food it is viewed as appropriate for them to eat, the extent to which education is deemed appropriate for them, whom they may marry, and even the people with whom they are allowed to have physical contact. The designations are often based on ancestral relations to people who engaged in certain kinds of labor. One’s caste designation is settled for life upon birth and limits one’s ability to move up the social ladder or to improve one’s lot in life. The system is enforced by social custom and, in the minds of many, supported and justified by religion — violating caste expectations is not just a violation of cultural norms, but a violation of spiritual principles as well.

The caste system refers to a very specific spiritual and cultural practice within Hinduism, primarily in India. That said, it is not uncommon to hear the term used to refer to other social systems in which people’s roles in society are rigidly designated by factors like race, ethnicity, sex, and religion. Many philosophers through the years, including no less significant a figure than Plato, have advocated in their writing for societies organized in such a way that every individual has their place and does all and only the work designated by members of their class. We’ve come to see this kind of societal organization as contributing to serious human rights violations — providing significant obstacles in the path of human beings to pursue the good life as they see it: to autonomously choose for themselves the kind of labor that seems meaningful to them, to marry a consenting adult whom they love, to assemble, befriend, and share ideas with a rich variety of other human beings, and to engage in the intimacy of physical touch so essential to human health and happiness. Depriving a human being of navigating the world on their own in this way is depriving them of the ability to live lives that they find subjectively meaningful and worth living.

Given the obstacles caste places on human development, it is, perhaps, wise for institutions of higher education to prohibit discrimination on this basis specifically, if only to highlight the unique potential for harm that it poses and to make people more likely to recognize caste discrimination on campus when they see it. A study conducted by Equality Labs revealed that members of the “Dalit” class, the class perceived as lowest on the social hierarchy and once referred to as “Untouchables” report frequent discrimination on campus — 25% of them report having experienced verbal or physical assault on the basis of their caste.

Caste can potentially create pronounced problems in an educational setting in particular, where the ability to interact with people from all sorts of backgrounds in ways that celebrate shared humanity and reasonableness is especially important. Nevertheless, some have responded to this policy by claiming that it violates religious liberty. A similar policy enacted in the Cal State system motivated a lawsuit brought by two Hindu professors. The Hindu American Foundation is representing the professors in their suit. Their concern is nuanced and is based on two claims. First, they are concerned that the policy defines the caste system as an element of Hinduism — a claim with which they disagree. They argue that universities ought not to be in the business of defining the core tenets of religion in order to make policies against them. They point out that many religions and cultures operate according to caste systems, not just Hinduism. Second, they argue that the only way to determine whether a Hindu is being discriminated against on the basis of caste is to assign Hindus on campus a caste—a practice to which they also object.

Even in light of this objection, to many it seems obvious that in that in the United States, we simply must be respectful of individual liberty and that the caste system is fundamentally inconsistent with that. That said, it can be easier to see the harms caused by the practices of other cultures than those caused by our own. Many of the same people who may think that the Hindu caste system is transparently inhumane are also supportive of a business owner’s right to deny services to a customer on the basis of their sexual orientation. This month, the United States Supreme Court heard a case challenging a Colorado antidiscrimination law that prohibits businesses from refusing services on the basis of sexual orientation. In the case in question, a Christian website designer is asserting religious liberty to deny same-sex couples services related to weddings.

In both cases, the question is: do we have an obligation to see to it that our institutions refrain from discrimination? Even those that object to campus policies regarding caste don’t seem to disagree that discrimination is wrong; indeed, that recognition is the basis for their arguments. The caste case provides a clear window to the insight: if discrimination is wrong, the fact that it has its origin in religion can’t make it right, nor can the claim that the policy is religious in nature undermine the idea that the behavior in question is discrimination. To insist that we ought not to discriminate against a person based on the circumstances of their birth is to insist that everyone is entitled to be treated with dignity and respect and to pursue their own happiness without undue interference from others.

February 17, 2022December 14, 2022

The Nomination of an African American Woman to SCOTUS Is More Than a Promise

photograph of Supreme Court facade "equal justice under law"

Now that Justice Breyer has announced his retirement, President Biden has decided to fulfill his promise to nominate an African American woman for the Supreme Court of the U.S. (a.k.a. SCOTUS). Many Republicans and conservatives have criticized his decision, offering one or more of the following reasons. For example, libertarian scholar Ilya Shapiro contends that the president is not committed to nominating the “objectively best person” for the job but rather a less qualified African American woman. Others criticize the president’s decision by focusing on a poll indicating that about 76% of Americans wish the president considers “all possible nominees,” and only 23% prefer that he follows through on his promise. Still, others, be they liberal or conservative, might claim that by committing himself to nominating an African American woman, he is discriminating against better qualified candidates.

I will argue that President Biden has not only the right to nominate an African American woman for SCOTUS, but, if he chooses a suitable candidate, he will be doing a great service to our country. The appointment of an African American woman to SCOTUS will offer a neglected but important perspective to help our nation grapple with present and forthcoming challenging decisions. Since Supreme Court Justices address highly controversial and politically sensitive issues that affect everyone, I maintain that a suitable candidate must possess, above all, moral integrity and good judgment for doing the job right.

Unlike our elected officials whose moral integrity, while desirable, is not necessary for performing well in office, we expect Supreme Court Justices to transcend their personal biases and prejudices in rendering impartial and fair decisions. Regrettably, oftentimes they fail to do so. Despite these failures, the justices abhor being perceived as politicians because presumably they do not aim at promoting policy outcomes to benefit most citizens or the interests of some. Instead, they justify their decisions by recognizing people’s political rights as found in the letter and/or the spirit of the constitutional text.

How can the president, his advisers and the Senate ascertain whether a nominee possesses moral integrity and good judgment? If the nominee be a judge, which in fact she need not be, those doing the vetting can look into her past judicial record. Also, they might go about querying those who have known the nominee in her different social roles to ascertain her moral character. Given the polarized nature of the Senate, lawmakers – especially Republicans – will try to find fault with a candidate’s moral standing, question her judicial decisions, and scrutinize her judicial philosophy. Despite its shortcomings, I can think of no better approach because, like our adversarial legal system, more often than not it works. For some, such a partisan and inquisitorial approach might not live up to their ideal for selecting “the objectively best candidate,” but we are not living in an ideal republic. We are living in an imperfect, but still perfectible democracy.

Some insist on what they conceive of as “the objectively best Supreme Court candidate.” Their conception, however, is just a sham. There are only better or worse candidates. In what sense could we claim that a person is a better candidate than another? In the sense of someone having a superior educational pedigree, for example, by having graduated summa cum laude from a prestigious law school. Or she might have clerked for a reputable judge. Or she is a prolific legal scholar. Or she possesses an envious intellectual IQ. But “better” could also mean having an exceptional emotional intelligence evidenced by exercising good judgment in her legal decisions and/or in her legal scholarship. Or she might have shown exemplary moral integrity in her different roles in society. Or she has demonstrated commitment to living up to the ideals expressed not only in the Constitution but also in the Declaration of Independence to make this a better world for all.

Of course, some might argue that the above is a false dilemma. The president could nominate a person who meets all of the already-mentioned conditions: better credentials, exceptional moral judgment, and integrity. Perhaps, but our moral judgments and integrity are conditioned, in part, by who we are and by our lived experiences. And the unique voice of African American women has been conspicuously absent from SCOTUS.

Suppose that we need to select between two candidates for SCOTUS. One has an extraordinary intellectual IQ with an exceptional educational pedigree. However, one candidate has shown substantive moral failures, such as having engaged in ubiquitous plagiarism while in law school, or having expressed racist, misogynist, or xenophobic views, or having supported special interest groups at the expense of the greater good. The other candidate has an average intellectual IQ with a solid, but not necessarily extraordinary educational pedigree. Yet she is known for having impeccable moral integrity and good judgment in her public and private life. Whom should we choose for SCOTUS? I would choose the latter because extraordinary intellectual virtues do not guarantee having moral integrity and sound moral judgment.

Next, I argue that those who prefer that the president listens to how most Americans feel about considering “all possible nominees” rather than an African American woman are not offering a compelling argument. First, they could be mistaken about their beliefs, or they might be biased against selecting an African American woman. The president’s advisers and members of the Senate are in a better position to determine who the suitable candidate would be for the greater good of the nation. Since the president has the right to nominate any candidate for SCOTUS that he thinks would be best for all, he can reasonably use race and gender, among other criteria, to narrow the pool of suitable candidates. He can justifiably do so by offering the following two reasons. He might argue that by selecting an African American woman for SCOTUS he is remedying past wrongdoings, and that by having a diverse composition of SCOTUS that mirrors our cultural milieu he is promoting the greater good of an inclusive society.

To those who argue that, by having made such a promise, the president is politicizing and discriminating against other better qualified candidates, I will offer the following two responses. First, nominating a Supreme Court candidate has always been political. And second, in approving any nominee, one would be discriminating against other potential nominees who were not considered or selected. Discrimination is unavoidable. The issue is whether such a discrimination is justified for our greater good. Part of the greater good is to try to correct past injustices against members of excluded groups, such as African American women, who have been substantively harmed. The president and members of the Senate have not only the legal right to try to overcome past wrongs against any unfairly treated groups but, more importantly, they have the moral duty to do so.

Lastly, one would be ill-informed to suggest that there is an insufficiently large pool of African American women from which to choose a suitable candidate for SCOTUS. I have reason to believe that such a pool exists. Also, I am sure that there are other potentially well deserving nominees who could represent the rich and diverse cultural experience of our nation, such as Native or Asian Americans, Latinx, or members of the LGTBQ+ community, to mention only a few.

An African American woman will bring a unique experience to SCOTUS to address many of our pressing legal and political issues for generations to come. To those who are skeptical about considering race or gender for membership in SCOTUS I can only say that, given our racist and misogynistic history, race and gender have mattered for the wrong reasons in the past. I can only hope that both might matter for the right reasons nowadays: to bring an important and neglected voice to SCOTUS for the benefit of all. Even if we were to accept that our Constitution is race- and gender-blind, those who have the power to interpret it are not.

February 4, 2022July 26, 2023

Brian Flores, Equal Opportunity, and Affirmative Action

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We need to talk about Brian Flores’s lawsuit – the ex-Miami Dolphins head coach alleging racial discrimination and, once again, highlighting the lack of diversity in owners’ boxes and front offices around the league. But this isn’t a story about the NFL. It isn’t even about sports. Instead, this is a story about affirmative action; it’s a story about the relationship between equality of opportunity and equality of outcome, between fairness and equity.

The NFL has a problem (okay, the NFL has a few problems). One of the most obvious ways to see this is in representation. African Americans make up 70% of the NFL’s player base, but there is only one Black head coach working in the league today. (And there are even fewer Black owners.) While any result that fails to produce absolute statistical proportionality need not suggest nefarious intent, the degree to which these figures diverge warrants at least a raised eyebrow. It’s difficult to explain why so few Black players make the transition from the field to the front office. You’d think that at least some of the skills that made for a stand-out player might also translate to their proficiency with X’s and O’s. More generally, you’d expect that the same interest and commitment that leads so many African Americans to play the game at a professional level would produce a corresponding number of others deeply invested in coaching or managing.

Enter: the Rooney Rule. In an attempt to shake up this monochrome landscape, league officials implemented a policy requiring teams to interview at least one (now two) minority candidates for any head coaching vacancy (now coordinator positions as well). The hope was that by guaranteeing that a more diverse pool of finalists gets the opportunity to make their pitch, diversity in the coaching ranks would soon follow. It was assumed that all these candidates needed was to be given the chance to change hearts and minds in person. At long last, progress might finally be made in erasing the vast differences in the way white and non-white coaches have historically been evaluated.

The details of Flores’ lawsuit confirm that no such revolution has come to pass. Owners and general managers treat the Rooney Rule as a mere formality – another hoop that must be jumped, another box that must be ticked. The organizations identified in Flores’s suit scheduled a sit-down as formally required, but apparently couldn’t bring themselves to take him or the interview seriously. The results of their deliberations had been decided long before Flores walked into the room. These executives were playacting, but couldn’t even be bothered to try to disguise it. That said, Flores’s allegations aren’t about a failure of etiquette or good manners, they concern a league that still refuses to acknowledge even the appearance of racial bias, let alone the existence of an actual, pervasive problem. It seems the Rooney Rule may have been doomed from the start; as it turns out, the problem runs much deeper than simply putting a face with a name.

So who – if anyone – might be to blame for the NFL’s present predicament?

A not insignificant number of folks will answer: no one. Brian Flores isn’t owed a head coaching gig. These organizations are free to hire whomever they so choose. Head coaches represent a significant investment of time and resources, and it would be absurd for anyone to dictate to NFL teams who is and is not the most qualified person for the job. Jim Trotter, for example, recently recounted his interchange with an owner who suggested that anybody griping about the lack of representation in the NFL “should go buy their own team and hire who they want to hire.”

Others, meanwhile, will be inclined to point to race-conscious policies (like the Rooney Rule) as the guilty party. To these voices, it seems completely wrong-headed to pick some number out of thin air and then complain when we fail to reach that arbitrary diversity benchmark. Looking at race is precisely what got us into this mess, so surely it’s absolute folly to think that intentionally putting our thumb on the scale could get us out of it.

What’s worse, mandating that teams do their due diligence – and, more specifically, demanding that due diligence take the particular form of race-conscious interviewing practices – reduces people of color to tokens. It’s no wonder Flores reports feeling embarrassed – these folks will say – the Rooney Rule set him up, time and time again, to be treated as nothing more than a courtesy invite. Flores was required to go on performing while everyone else in the room was in on the joke. And we should expect none of that behavior to change, they’ll say, if we continue to force hiring committees to go through the motions when they’ve already made up their minds.

This, critics will tell you, is precisely the trouble with initiatives so enamored with equality of outcome – or equity – where an attempt is made to jerry-rig some result built to suit our preferred optics (say, having management roles more accurately reflect teams’ composition). We shouldn’t focus all our attention on meticulously shaping some preferred result; we can’t elevate some and demote others all according to irrelevant and impersonal considerations based in appearances. Any such effort refuses to appreciate the role of individual choice – of freedom, responsibility, and merit. (Owners don’t want to be told how they have to go about picking a winner, they know exactly what winners look like.) As long as we can maintain the right conditions – a level playing field of equal opportunity where everyone receives a fair shake – then we have no cause to wring our hands over the (mis)perception of unequal outcomes. There’s no need to invoke the dreaded language of “quotas,” there’s no cause for infringing on the people in charge’s freedom to choose. You simply call the game, deal the cards, and let the chips fall where they may.

Brian Flores’s lawsuit, however, insists that the deck is stacked against him and others like him. Indeed, Flores’s claim is that equality of opportunity does not exist. He’s alleging that he’s been passed over in the coaching carousel specifically because he is Black. Flores supports these claims with his personal experience of sham interviews and by pointing to a double standard evidenced by the accelerated rise of white coaches in comparison to their more accomplished Black counterparts. In essence, Flores argues these experiences and findings (as well as the individual accounts of some 40 other Black coaches, coordinators, and managers) all indicate racial discrimination is an all-too-real force in the NFL. Without an intentional and forceful intervention, business as usual will continue.

Given this fresh round of accusations, the NFL can’t continue to take a hands-off approach to the problem of representation; it clearly isn’t going to work itself out. Even the meager measures the league put in place to support equal opportunity are not being followed. The Rooney Rule has no teeth and seems to have resulted in no tangible gains. In the end, the policy relies on honorable intentions, personal commitments, and good-faith efforts. As Stephen Holder of The Athletic writes,

We just have to come to terms with an undeniable and inconvenient truth: You can encourage and even incentivize people to do the right thing. But what you cannot do is make them want to do the right thing.

The only way things change is if the people in power take the policy seriously, and it’s not clear that the appropriate carrots or sticks exist for encouraging teams to comply with the letter of the law – let alone embrace its spirit. Achieving the desired result demands an alternative approach. At some point outcomes have to matter.

So, where does that leave us? What have we learned? Where do we go from here? It’s difficult to know how to go about balancing two competing convictions: 1) focusing solely on equality of outcomes disrespects individuality 2) relying solely on equality of opportunity assumes an unbiased system. Or, perhaps more pointedly: 1) it’s wrong to reduce people solely to their various group identities, but 2) it’s also wrong to fail to appreciate the way people, organizations, institutions reduce people solely to their various group identities.

There is no obvious way to bridge the chasm between these two commitments. But maybe we could start by acknowledging that it isn’t hopelessly reductive to think that it might be best if, for instance, the next Supreme Court Justice wasn’t another white man; to think that no single group identity is so inherently qualified as to explain an absolute stranglehold on the positions of power and privilege; to think that for only the eighth time in 230+ years it might be best to break with tradition. Because, if the Rooney Rule has taught us anything, it’s that if you don’t ever actually commit to change, it doesn’t ever actually happen.

March 29, 2021December 14, 2022

A Chicago Suburb Tries Reparations

aerial photograph of Chicago lakefront skyline

Last week, the Chicago suburb of Evanston, home of Northwestern University, introduced the nation’s first government reparations program for African Americans. It was a momentous event regardless of one’s political views, and advocates hope that it will have a “snowball effect” on proposed federal legislation that would create a national commission to study potential reparations. Nevertheless, Evanston’s program, and the broader subject of reparations, remain extremely controversial.

Evanston’s $400,000 program, approved to acknowledge the harm caused by discriminatory housing policies, practices, and inaction going back more than a century, will issue grants up to $25,000 directly to financial institutions or vendors to help with mortgage costs, down payments, and home improvements for qualified applicants. The program will be paid out of Evanston’s $10 million Local Reparations Fund, which will disburse funds collected through annual cannabis taxes over the next decade. Qualifications for the payments include sufficient proof of “origins in any of the Black racial and ethnic groups of Africa,” proof of residency in Evanston between 1919 and 1969 or direct descendance of someone who meets that criterion, or proof of having experienced housing discrimination due to the city’s housing policies or practices after 1969. Beyond repairing past wrongs, the program is also designed to address the declining Black share of the population of Evanston, which fell from 22.5% in 2000 to 16.9% in 2017 according to U.S. census data.

Critics of the program say that it’s little more than an insubstantial gesture and that it benefits the very financial institutions that engaged in discriminatory practices in the past. Perhaps the most damning criticism is that, by denying Black families direct cash payments and the opportunity to decide how to manage their own money, the program is, in the words of Evanston alderwoman Cicely Fleming, a “prime example of white paternalism.” Although a supporter of reparations, she was the lone dissenting vote against the program on Evanston’s City Council. “We have prioritized so-called progressives’ interests in looking virtuous rather than reversing the harm done to Black people for generations,” she wrote in the Chicago Tribune. “I voted ‘no’ as an obligation to my ancestors, my Black family across the nation and my own family in Evanston.” She also pointed out that the program may be under-inclusive in not covering those who may be due reparations but either don’t own a home or don’t plan to purchase one.

There are also potential legal challenges. In a 1995 case called Adarand v. Peña, the Supreme Court held that strict scrutiny applies to all racial classifications imposed by federal, state, or local governments. “Strict scrutiny” means that the program must be narrowly tailored to serve a compelling government interest. In a March 18 letter to the Mayor and members of the City Council, a Washington, D.C. attorney representing the Project on Fair Representation, a conservative not-for-profit legal defense foundation, argued that Evanston’s program fails on both counts: it neither serves a compelling interest nor is narrowly tailored. Only time will tell whether Evanston’s program will actually face a serious legal challenge in the years ahead.

Whatever the particular shortcomings of Evanston’s program, there are more general philosophical objections to reparations that are worth addressing. First, there is what I will call the “anti-classification” argument, ably articulated by Justice Clarence Thomas, who wrote that “there is a moral and constitutional equivalence between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality.” Why is there this equivalence? Because, say the proponents of anti-classification, both kinds of law classify people by race for some purpose. But there is an obvious reply to this objection: while both kinds of law classify people by race, they do not do so for the same purpose, and this difference in purpose is morally relevant. Even if reparations programs are ultimately futile or wrong for some further reason, the notion that there is no intrinsic moral difference between laws that aim to oppress people based on their race and laws that aim to uplift them seems morally obtuse at best.

The second argument is based on the very plausible premise that individuals living today do not bear moral responsibility for the misdeeds of their ancestors. If this is true, and if reparations programs were premised on the idea that they do, then reparations programs would be morally indefensible. But it is important to note that the Evanston program does not rest on the premise that any single individual is responsible for the unequal treatment of Blacks in the past, but rather that the city as a corporate entity bears this responsibility. And this seems much more plausible: a corporate entity can persistently bear moral obligations even if the individuals that make up that entity change over time. For example, if corporation A pollutes a river, then — putting aside the statute of limitations — it may be legally responsible for cleaning up the river even if, by the time it is held to account, no member of its board was alive when the river was polluted.

The final, and perhaps strongest, argument against reparations is based on the fact that nationally, the idea of reparations continues to be extremely unpopular. This is a particularly difficult problem for advocates who would like the federal government to open its vast coffers to reparations programs. Given their unpopularity, reparations programs have the potential to stoke white resentment which, while not grounded in any good argument, has the potential to set back racial progress more than reparations programs would advance it. Yet the possibility of racial backlash was also cited as a reason for activists to moderate their demands and tone down their tactics during the civil rights movement of the 1950s and 1960s, a fact that should make us wary of invoking this concern again. In any case, the Evanston program will be a good trial balloon to see if white residents of that college town are truly as progressive as they claim to be.

In sum, Evanston’s program is a small step forward for the cause of reparations in America. Nevertheless, the program itself, and reparations proposals more generally, face serious challenges from critics on both sides of the aisle.

October 8, 2020December 14, 2022

Confirming Amy Coney Barrett: Against Secularism or For Religious Freedom?

photograph of Trump and Judge Barrett at nomination ceremony

On September 26, President Trump announced he would be nominating Amy Coney Barrett to fill the Supreme Court seat recently vacated by the departed Justice Ruth Bade Ginsburg. This decision is not only controversial considering the fact that recent political precedent would imply that the winner of the upcoming election should choose the next Justice, but also because of the perception that Barrett is not only under qualified to sit on the Court, but also potentially unfit considering her strong religious views. Barrett is a stout Catholic, member of the spiritual group People of Praise, and has been vocal about the i nfluence of faith on judicial ethos. Various politicians, activists, and even those with personal ties to Barrett have expressed staunch opposition to her nomination, most strongly on the basis of her perceived bias. However, in response to this criticism, many have come to her defense, arguing that not confirming Barrett on the basis of her religion is in fact religious discrimination.

Are these critics right to assert Barrett’s religious views are a conflict of interest? Are her defenders right to argue religious discrimination? And which is the correct interpretation of the First Amendment: secularism or religious freedom?

Secularism is informed by secular ethics, which derives morality from the human experience and rationale, rather than perceived higher powers or specific religious text or tradition. Secular states are countries guided by secular values in the political and governance process, neither favoring nor discriminating against any specific religion. The majority of countries in the world are considered secular states, including the United States.

The majority of the arguments over Barrett concern different interpretations of the principle of secularism. The principle of secularism aims to separate the state from any religious guidance or influence. In the United States, this concept is often boiled down to the “religious freedom” communicated in the First Amendment of the United States Constitution. Republicans, and others defending Barrett argue that to use her faith, or its influence on her, as a ground for not approving her is in itself religious discrimination. Critics, though not Senate Democrats specifically, are wary of Barrett because of their concern that her entire judicial philosophy is anti-secular if it is influenced by her faith.

This is not the first time that Barrett’s religious views have been brought up in the context of her judicial discretion. In 2017, Barrett was nominated for a federal judicial appointment by President Trump. During her confirmation hearing, Democratic Senator Barbara Feinstein expressed the concern that “The dogma lives loudly” within Barrett. Feinstein’s comment was simultaneously blasted as an expression of religious discrimination and rebranded by Catholics across the internet proudly. After Barrett’s nomination, this interaction has been visited again by Democrats and Republicans alike, by the former to reassert concern for her religious bias and by the latter to imply that much of the criticism of Barrett results from religious intolerance. Both of these concerns can be backed up by evidence. On the one hand, the current Supreme Court hosts 5 Catholics, by far more than any other religion. Despite this newfound domination of the bench, historically only 13 Catholics have ever sat on the Supreme Court, despite making up roughly 20% of the United States population. Some, such as law professor Cathleen Kaveny argue that the recent appointment of so many Catholics to the Supreme Court is a “victory over historic prejudice.” While Catholics do not face much modern day social persecution in the United States, that has not always been the case. Between the late 19th century and early 20th century, Catholicism in America was associated mainly with immigrants from Northern and Eastern Europe. These groups were discriminated against not only due to their immigrant and ethnic status, but also on the basis that Catholicism was morally perverse. Historically, Catholics were one of the groups targeted by the Ku Klux Klan, though this is not necessarily the case in modern times.

On the other hand, a Supreme Court made up of staunchly religious Justices, or too many from a certain religious faith, arguably stands in direct opposition to the principle of secularism. This guiding principle, most commonly associated with the separation of church and state, has been highly regarded since the formation of the United States. While the separation of church and state is often brought up in reference to legislative attempts to favor or discriminate on the basis of religion, the Supreme Court’s role in consistent affirmation of secularism is paramount to its existence. The Court regularly makes judicial decisions which involve the First Amendment, for example, recently in American Legion et al. v. American Humanist Assn. et al. Having a court made up with even a few deeply religious justices could impact the judicial philosophy of the most powerful court in this country. This alone a cause for concern considering the fact that certain religious traditions take hard, and sometimes unpopular stances on highly debatable moral issues. This is especially true of the religious group that Barrett identifies with, the People of Praise, which has been criticized for its reinforcement of gender roles and female subordination.

Outside of her possible beliefs, Barrett has been vocal about how her faith guides her stance on abortion, despite the fact that the majority of Americans support a woman’s right to choose. While the popularity of a certain legal stance does not necessarily speak to its morality, there is certainly an ethical value in having a judicial system which is fairly representative of the moral inclinations of the majority of the population. While the Supreme Court is not meant to be a political or moral institution, there are certainly righteous ethical concerns about our Justices sitting on the extreme end of the moral spectrum and serving to guide the legal interpretation and judicial discretion in every courtroom in America.

Barrett’s faith is not the only aspect about her which could guide one’s moral stance on her fitness to serve on the Supreme Court. Her age, gender, and even personal life might also be taken into account when deciding how one feels about her nomination. However, as long as discussions about her faith dominate political and media debate, our moral inclinations about her religious views will likely guide whether or not we believe she should be confirmed.

September 2, 2020August 8, 2023

Stereotyping and Statistical Generalization

photograph of three different multi-colored pie charts

Let’s look at three different stories and use them to investigate statistical generalizations.

Story 1

This semester I’m teaching a Reasoning and Critical Thinking course. During the first class, I ran through various questions designed to show that human thinking is subject to predictable and systematic errors. Everything was going swimmingly. Most students committed the conjunction fallacy, ignored regression towards the mean, and failed the Wason selection task.

I then came to one of my favorite examples from Kahneman and Tversky: base rate neglect. I told the students that “Steve is very shy and withdrawn, invariably helpful but with little interest in people or in the world of reality. A meek and tidy soul, he has a need for order and structure, and a passion for detail,” and then asked how much more likely it is that Steve is a librarian than a farmer. Most students thought it was moderately more likely that Steve was a librarian.

Delighted with this result, I explained the mistake. While Steve is more representative of a librarian, you need to factor in base-rates to conclude he is more likely to actually be a librarian. In the U.S. there are about two million farmers and less than one hundred and fifty thousand librarians. Additionally, while 70% of farmers are male, only about 20% of librarians are. So for every one librarian named Steve you should assume there are at least forty-five farmers so named.

This culminated in my exciting reveal: even if you think that librarians are twenty times more likely than farmers to fit the personality sketch, you should still think Steve is more than twice as likely to be a farmer.

This is counter-intuitive, and I expected pushback. But then a student asked a question I had not anticipated. The student didn’t challenge my claim’s statistically illegitimacy, he challenged its moral illegitimacy. Wasn’t this a troubling generalization from gender stereotypes? And isn’t reasoning from stereotypes wrong?

It was a good question, and in the moment I gave an only so-so reply. I acknowledged that judging based on stereotypes is wrong, and then I…

(1) distinguished stereotypes proper from empirically informed statistical generalizations (explaining the psychological literature suggesting stereotypes are not statistical generalizations, but unquantified generics that the human brain attributes to intrinsic essences);

(2) explained how the most pernicious stereotypes are statistically misleading (e.g., we accept generic generalizations at low statistical frequencies about stuff we fear), and so would likely be weakened by explicit reasoning from rigorous base-rates rather than intuitive resemblances;

(3) and pointed out that racial disparities present in statistical generalizations act as important clarion calls for political reform.

I doubt my response satisfied every student — nor should it have. What I said was too simple. Acting on dubious stereotypes is often wrong, but acting on rigorous statistical generalizations can also be unjust. Consider a story recounted in Bryan Stevenson’s Just Mercy:

Story 2

“Once I was preparing to do a hearing in a trial court in the Midwest and was sitting at counsel table in an empty courtroom before the hearing. I was wearing a dark suit, white shirt, and tie. The judge and the prosecutor entered through a door in the back of the courtroom laughing about something.

When the judge saw me sitting at the defense table, he said to me harshly, ‘Hey, you shouldn’t be in here without counsel. Go back outside and wait in the hallway until your lawyer arrives.’

I stood up and smiled broadly. I said, ‘Oh, I’m sorry, Your Honor, we haven’t met. My name is Bryan Stevenson, I am the lawyer on the case set for hearing this morning.’

The judge laughed at his mistake, and the prosecutor joined in. I forced myself to laugh because I didn’t want my young client, a white child who had been prosecuted as an adult, to be disadvantaged by a conflict I had created with the judge before the hearing.”

This judge did something wrong. Because Bryan Stevenson is black, the judge assumed he was the defendant, not the defense. Now, I expect the judge acted on an implicit racist stereotype, but suppose the judge had instead reasoned from true statistical background data. It is conceivable that more of the Black people who enter that judge’s courtroom — even those dressed in suit and tie — are defendants than defense attorneys. Would shifting from stereotypes to statistics make the judge’s behavior ok?

No. The harm done had nothing to do with the outburst’s mental origins, whether it originated in statistics or stereotypes. Stevenson explains that what is destructive is the “accumulated insults and indignations caused by racial presumptions,” the burden of “constantly being suspected, accused, watched, doubted, distrusted, presumed guilty, and even feared.” This harm is present whether the judge acted on ill-formed stereotypes or statistically accurate knowledge of base-rates.

So, my own inference about Steve is not justified merely because it was grounded in a true statistical generalization. Still, I think I was right and the judge was wrong. Here is one difference between my inference and judge’s. I didn’t act as though I knew Steve was a farmer — I just concluded it was more likely he was. The judge didn’t act the way he would if he thought it was merely likely Stevenson was the defendant. The judge acted as though he knew Stevenson was the defendant. But the statistical generalizations we are considering cannot secure such knowledge.

The knowledge someone is a defendant justifies different behavior than the thought someone is likely a defendant. The latter might justify politely asking Stevenson if he is the defense attorney. But the latter couldn’t justify the judge’s actual behavior, behavior unjustifiable unless the judge knows Stevenson is not an attorney (and dubious even then). A curious fact about ethics is that certain actions (like asserting or punishing a criminal) require, not just high subjective credence, but knowledge. And since mere statistical information cannot secure knowledge, statistical generalizations are unsuitable justifications for some actions.

Statistical disparities can justify some differential treatment. For instance, seeing that so few of the Black people in his courtroom are attorneys could justify the judge in funding mock trial programs only at majority Black public schools. Indeed, it might even justify the judge, in these situations, only asking Black people if they are new defense attorneys (and just assuming white people are). But it cannot justify behavior, like harsh chastisement, that requires knowledge the person did something wrong.

I didn’t do anything that required knowledge that Steve was a farmer. So does this mean I’m in the clear? Maybe. But let’s consider one final story from the recent news:

Story 3

Due to COVID-19 the UK canceled A-level exams — a primary determinant of UK college admissions. (If you’re unfamiliar with the A-levels they are sort of like really difficult subject-specific SAT exams.) The UK replaced the exams with a statistical generalization. They subjected the grades that teachers and schools submitted to a statistical normalization based on the historical performance of the student’s school. Why did the Ofqual (Office of Qualifications and Examinations Regulation) feel the need to normalize the results? Well, for one thing, the predicted grades that teachers submitted were 12% higher than last year’s scores (unsurprising without any external test to check teacher optimism).

The normalization, then, adjusted many scores downward. If the Ofqual predicted, based on historical data, that at least one student in a class would have failed the exam then the lowest scoring student’s grade was adjusted to that failing grade (irrespective of how well the teacher predicted the student would have done).

Unsurprisingly, this sparked outrage and the UK walked back the policy. Student’s felt the system was unfair since they had no opportunity to prove they would have bucked the trend. Additionally since wealthier schools tended to perform better on the A-levels in previous years, the downgrading hurt students in poorer schools at a higher rate.

Now, this feels unfair. (And since justifiability to the people matters for government policy, I think the government made the right choice in walking back the policy.) But was it actually unfair? And if so, why?

It’s not an issue of stereotypes — the changes weren’t based on hasty stereotypes, but rather on a reasonable statistical generalization. It’s not an issue of compounding algorithmic bias (of the sort described in O’Neil’s book) as the algorithm didn’t produce results more unequal than actual test results. Nor was the statistical generalization used in a way that requires knowledge. College admissions don’t assume we know one student is better than another. Rather, they use lots of data to make informed guesses about which students will be the fit. The algorithm might sometimes misclassify, but so could any standardized test.

So what feels unfair? My hunch is the algorithm left no space for the exceptional. Suppose four friends who attended a historically poor performing school spent the last two years frantically studying together in a way no previous group had. Had they sat the test, all could have secured top grades — a first for the school. Unfortunately, they couldn’t all sit the test, and because their grades are normalized against previous years the algorithm eliminates their possibility of exceptional performance. (To be fair to the UK, they said students could sit the exams in the fall if they felt they could out-perform their predicted score).

But what is unfair about eliminating the possibility of exceptional success? My further hunch is that seeing someone as having the possibility of exceptional success is part of what it is to see them as an individual (perhaps for Kantian reasons of seeing someone as a free first cause of their own actions). Sure, we can accept that most people will be like most people. We can even be ok with wealthier schools, in the aggregate, consistently doing better on standardized tests. But we aren’t ok with removing the possibility for any individual to be an exception to the trend.

When my students resisted my claim that Steve was likely a farmer, they did not resist the generalization itself. They agreed most farmers are men and most librarians are women. But they were uncomfortable moving from that general ratio to a probabilistic judgment about the particular person, Steve. They seemed to worry that applying the generalization to Steve precluded seeing Steve as an exception.

While I think the students were wrong to think the worry applied in this case — factoring in base-rates doesn’t prevent the exceptional from proving their uniqueness — they might be right that there is a tension between seeing someone within a statistical generalization and seeing someone as an individual. It’s a possibility I should have recognized, and a further way acting on even good statistical generalizations might sometimes be wrong.

August 20, 2020December 14, 2022

Life-Life Tradeoffs in the Midst of a Pandemic

photograph of patients' feet standing in line waiting to get tested for COVID

Deciding who gets to live and who gets to die is an emotionally strenuous task, especially for those who are responsible for saving lives. Doctors in pandemic-stricken countries have been making decisions of great ethical significance, faced with the scarcity of ventilators, protective equipment, space in intensive medical care, and medical personnel. Ethical guidelines have been issued, in most of the suffering countries, to facilitate decision-making and the provision of effective treatment, with the most prominent principle being “to increase overall benefits” and “maximize life expectancy.” But are these guidelines as uncontroversial as they initially appear to be?

You walk by a pond and you see a child drowning. You can easily save the child without incurring significant moral sacrifices. Are you obligated to save the child at no great cost to yourself? Utilitarians argue that we would be blameworthy if we failed to prevent suffering at no great cost to ourselves. Now, suppose, that you decide to act upon the utilitarian moral premise and rescue the child. As you prepare to undertake this life-rescuing task, you realize the presence of two drowning children on the other side of the pond. You can save them both – still at no cost to yourself – but you cannot save all three. What is the right thing to do? Two lives count more than one, thus you ought to save the maximum number of people possible. It seems evident that doctors who are faced with similar decisions ought to maximize the number of lives to be saved. What could be wrong with such an ethical prescription?

Does the ‘lonely’ child have reasonable grounds to complain? The answer is yes. If the child happened to be on the other side of the pond, she would have a considerably greater chance of survival. Also, if, as a matter of unfortunate coincidence, the universe conspired and brought closer to her two extra children in need of rescue, she would have an even greater chance of survival – given that three lives count more than two. But, that seems to be entirely unfair. Whether one has a right to be rescued should not be determined by morally arbitrary factors such as one’s location and the number of victims in one’s physical proximity. Rather, one deserves to be rescued simply on the grounds of being a person with inherent moral status. Things beyond your control, and which you are not responsible for, should not affect the status of your moral entitlements. As a result, every child in the pond should have an equal chance of rescue. If we cannot save all of them, we should flip a coin to decide the one(s) that can be affordably saved. By the same logic, if doctors owe their patients equal respect and consideration, they should assign each one of them, regardless of morally arbitrary factors (such as age, gender, race, social status), an equal chance to receive sufficient medical care.

What about life expectancy? A doctor is faced with a choice of prolonging a patient’s life by 20 years and prolonging another patient’s life by 2 months. For many, maximizing life expectancy seems to be the primary moral factor to take into account. But, what if there is a conflict between maximizing lives and maximizing life? Suppose that we can either save a patient with a life expectancy of 20 years or save 20 patients with a life expectancy of 3 months each. Maximizing life expectancy entails saving the former, since 20 years of life count more than 5 years of life, while maximizing lives entails saving the latter. It could be argued that the role of medicine is not merely to prolong life but to enhance its quality; this would explain why we may be inclined to save the person with the longest life expectancy. A life span of 3 months is not an adequate amount of time to make plans and engage in valuable projects, and is also accompanied by a constant fear of death. Does that entail that we should maximize the quality of life as well? Faced with a choice between providing a ventilator to a patient who is expected to recover and lead a healthy and fulfilling life and providing a ventilator to a patient who has an intellectual disability, what should the doctor do? If the role of medicine is merely to maximize life quality, the doctor ought to give the ventilator to the first patient. However, as US disability groups have argued, such a decision would constitute a “deadly form of discrimination,” given that it deprives the disabled of their right to equal respect and consideration.

All in all, reigning over life and death is not as enviable as we might have thought.

June 23, 2020December 14, 2022

How Words Translate to Action: The Ramifications of Trump’s Rhetoric

photograph of packed arena at Trump rally

“[The coronavirus] has more names than any disease in history,” President Donald Trump said at a campaign rally in Tulsa, Oklahoma on Saturday. “I can name kung flu. I can name 19 different versions of names.”

Saturday’s rally was not the first time Trump used racist rhetoric to divert criticisms toward his administration for its mishandling of the coronavirus crisis. Since March, the president has cast China as the “invisible enemy” and bragged about his early ban on Chinese travelers in almost every public appearance. In addition, he repeatedly used the phrase “the Chinese virus” despite concerns from public health experts, and again referred to the coronavirus as “the China virus” in a self-congratulatory tweet in May.

Critics of Trump have argued that his words have contributed to the rise of hate crimes against Asian Americans. From March to April, the New York Police Department documented 25 hate crimes against Asian Americans, marking a stark increase from a total of 3 incidents in 2019. Meanwhile, STOP AAPI HATE — a database that San Francisco State University and Asian advocacy groups created in late March — has recorded more than 1,700 incidents ranging from verbal assaults to stabbing. Still, the president has defended that his words have been anything but racist: “It’s from China. That’s why. It comes from China. I want to be accurate,” he said at a press briefing. How could have his words have translated into real hateful and discriminatory actions?

Although the president argues that he only intended to convey his disapproval of China’s pandemic response, literature on the philosophy of language elucidates the connection between Trump’s words and hateful actions. With the benefit of hindsight, we can study such language — and the phrase “the Chinese virus” in particular — and learn how to respond to similar rhetorical moves as the president escalates his attacks on China and on other minorities.

When Trump justified the phrase “the Chinese virus” in March, he took advantage of the vagueness of language. Compound nouns — like “spa water,” “arm pillow” and the “Chinese virus” — are ambiguous, because the relationship between the two nouns, like “spa” and “water,” is unclear. Although Trump claimed he meant that the disease originates from China, “the Chinese virus” could also signify ‘a virus carried by Chinese people’ or ‘a virus of Chinese people.’ The president acted as if the intention of the speaker — which he promised was not racist — controls how words are understood.

Contrary to Trump’s defense, however, many philosophers of language argue that the meaning and effect of words are also governed by how they are used in society. Of course, in regular conversations, words communicate a speaker’s transparent intent. However, should Trump’s press conferences and tweets — or any politician’s speech for that effect — considered to be in context of a typical conversation? Often in political discourse, words affirm belief systems and the communal practices in which they are embedded.

Specifically, when one uses words that have been shaped by social practices, one legitimizes the connotations and value systems attached to them. One can insist that they only meant the inside of a city when using the phrase “inner city,” but the racist ideology associated with that term persists nevertheless. “There are tools like a hammer or a screwdriver which can be used by one person; and there are tools like a steamship which require the cooperative activity of a number of persons to use,” philosopher Hilary Putnam writes in his paper the Meaning of “Meaning.” “Words have been thought too much on the model of the first sort of tool.”

Philosopher Lynne Tirrell offers a relevant example in her 2012 paper Genocidal Language Games. According to Tirrell, for years preceding the Rwandan genocide, the Hutu majority called their Tutsi counterparts “cockroaches (inyenzi)” and “snakes (inkoza).” These were mindless slurs at first, Tirrell explains, intended to insult an individual rather than to convey the ethnic inferiority of the Tutsis. But these words were said in the context of a culture where snakes are public health dangers and cutting the heads of snakes is considered a rite of passage into manhood. When the conflict between the two groups intensified, these slurs helped connect murdering the Tutsis to a celebrated act of killing snakes. In retrospect, a Hutu calling his Tutsi neighbor a “snake” or “cockroach” was participating a linguistic practice embedded in ethnic discrimination and legitimizing hatred toward the Tutsis. “What we do with our speech acts often outstrips our own mastery, and in cases in which the social functions of speech have been co-opted, we can see that participants might not see the full scope of the games that they are playing,” Tirrell explains.

Tirrell’s account of the Rwandan genocide is instructive not because Asian Americans are at the risk of getting massacred, but because it illuminates how words can activate longstanding discriminatory sentiments and help authorize actions. Like the insults hurled against the Tutsis, Trump’s attacks on China are embedded in the context of oppression against minorities. His administration’s nativist agenda has rekindled centuries of discrimination against Asian Americans, dating from the Chinese Exclusion Act of 1882.

In addition, the phrase “the Chinese virus” draws on a history of nativist attempts to scapegoat immigrants about public health. During a smallpox outbreak in 1900, the government exclusively imposed a quarantine on San Francisco’s Chinatown and called it a “laboratory of infection.” In English, metaphors are often used to compare a nation to a body — such as “head of state,” “body politic” and “arm of the government” — and Trump has frequently equated immigrants to an illness penetrating it. They bring “tremendous infectious disease,” “communicable disease” and a “tremendous medical problem coming into a country,” Trump has said.

“Like the ordinary farmer in Rwanda who did not think that calling his Tutsi neighbors ‘snakes’ and ‘cockroaches’ would help authorize the killing of his neighbors, people who repeat the phrase ‘the Chinese virus’ may not realize its pernicious impact,” Tirrell explains. “I don’t think we should assume that there is a war planned against the Chinese in America but I do think that it sows the seeds of discrimination by connecting Chinese people with the virus.”

By rebaptizing the coronavirus as “the Chinese virus” with the authority of a president and insisting on the phrase, Trump has affirmed the racist and anti-immigrant narratives behind it. Calling coronavirus “the Chinese virus” had the effect of connecting practices one would take against the spreaders of a deadly virus — such as shunning them, kicking them out and even attacking them — to those who appear Chinese. One might argue that this rhetoric convinced people to rationalize discriminatory and hateful actions against Asians as fighting the virus.

The power of words can seem mysterious and insignificant, particularly in light of a rapidly spreading disease that has taken more than a hundred thousand lives. However, literature on the philosophy of language shows that words do make things happen. Though Trump’s coronavirus rhetoric cannot — and most definitely should not — be censored, we must acknowledge and discuss the damages inflicted by his anti-Chinese narrative.

March 24, 2020December 14, 2022

“Chinese Virus”? On the Ethics of Coronavirus Nicknames

image of World Health Organization emblem

The recent Coronavirus outbreak has undoubtedly affected the physical and economic well-being of many Americans and people across the world. With total Coronavirus cases over 300,000 and counting, economies have plunged and hospitals are overloaded with patients. However, amid this crisis, a new controversy has emerged concerning the various Coronavirus nicknames.

Recently, President Trump referred to the Coronavirus as the “Chinese Virus.” Other nicknames for the virus have emerged such as “Wuhan Virus” and “Kung Flu.” These nicknames have drawn criticism from the left, mainstream media, and Asian Americans while the right has called these nicknames appropriate and has criticized the political correctness of the left. To determine the morality of Coronavirus nicknames, it is first necessary to see the current context of Asian discrimination.

Without a doubt, Coronavirus has furthered racist discrimination toward Asians and Asian Americans. In schools, Asian students face xenophobic comments like “stop eating bats” and the infamous “go back to your country.” Additionally, Asian businesses, particularly restaurants, had seen significant drops in sales even before the quarantine happened. There have also been countless cases where Asians are harassed due to Coronavirus. In the media, Fox News commentator, Jesse Walters, went as far as to say, “I’ll tell you why it started in China. They have these markets where they eat raw bats and snakes. They are a very hungry people.” Not only are these blatantly racist generalizations of Chinese people, it is a myth that diseases come only from so called exotic animals. Diseases come from all animals such as pigs (swine flu), cows (mad cow disease), and chickens (bird flu), and two of those diseases had their first cases in the Western world. But these facts have held little sway as Asian discrimination has been widespread on social media with many comments seizing on Walters’ (and even Senator John Cornyn’s) words that all Asians eat bat soup and snakes.

In this context of widespread Asian racism, many people have started to call nicknames such as “Chinese Virus” and “Wuhan Virus” racist. However, critics say there is an established record of naming diseases based on their original location. Just to name a few, there is Ebola fever (Ebola River), Lyme disease (Lyme, Connecticut), West Nile virus, Lassa fever (Lassa, Uganda), and St. Louis encephalitis. Diseases have also been tied to nationality such as German measles, Japanese encephalitis, and the Spanish flu (though the Spanish flu started in Kansas). Therefore, many conservatives have argued that President Trump’s comments only follow an established pattern of naming diseases.

Even though we’ve had a trend of naming diseases based on their origin, it is important to recognize that popularity does not equate to morality; just because we have named diseases by origin in the past, doesn’t mean that we should continue doing so. In fact, the naming of diseases by origin is actually now frowned upon by the medical community. The World Health Organization has set guidelines in which they state, “Terms that should be avoided in disease names include geographic locations.” This guideline was made in 2015 before the Coronavirus pandemic. Unlike critics’ claims as a common scientific practice, geographic locations are now not used by medical organizations. The morality of the nickname “Chinese Virus” can’t be based on the popularity of past disease naming customs, but must instead be considered according to the negative impact it has for society at large. Calling Coronavirus “Chinese Virus” for the sake of accuracy of original location can’t outweigh the potential further perpetuation of Asian discrimination. Given the fact that Chinese and Asian people are unfairly associated with Coronavirus and other negative stereotypes, associating “Chinese” with the Coronavirus would be a dangerous path to take.

To see this it might be helpful to consider the shift in attitude if a virus were to be named “America Virus” in the midst of a global pandemic where Americans were discriminated against while dying by the thousands. It wouldn’t be well-received by the many Americans who are doing everything they can to save fellow American lives. This is what is happening in China: selfless doctors tirelessly work overtime and overwhelmed nurses rush from bed to bed; all of them giving their heart and soul to save human lives. The doctors and nurses sacrifice their time to save their fellow countrymen, all just for the US to slap their Chinese nationality on the virus they are fighting to save their fellow Chinese people. Using the term “Chinese Virus” not only risks further Asian discrimination, it is disrespectful to the Chinese nurses and doctors risking their lives to save their fellow countrymen.

April 12, 2019December 14, 2022

The Ethics of Philosophical Exemptions

photograph of syringe and bottle of antiobiotics

While every state in America has legislation requiring vaccinations for children, every state also allows exemptions. For instance, every state allows a parent to exempt their child from vaccinations for legitimate medical reasons: some children with compromised immune systems, for example, are not required to be vaccinated, since doing so could be potentially harmful. However, many states also allow for exemptions for two other reasons: religious reasons, and “philosophical reasons.” While religious exemptions are standardly granted if one sincerely declares that vaccinations are contrary to their religious beliefs, what a “philosophical reason” might consist in varies depending on the state. For example, Ohio law states that parents can refuse to have their children immunized for “reasons of conscience”; in Maine a general “opposition to the immunization for philosophical reasons” constitutes sufficient ground for exemption; and in Pennsylvania “[c]hildren need not be immunized if the parent, guardian or emancipated child objects in writing to the immunization…on the basis of a strong moral or ethical conviction similar to a religious belief” (a complete list of states and the wordings of the relevant laws can be found on the National Conference of State Legislatures website).

Of course, not all states grant exemptions on the basis of any reason beyond the medical: California, Mississippi, and West Virginia all deny exemptions on the basis of either religious or philosophical reasons. And there seem to be plenty of good reasons to deny exemption except only in the most dire of circumstances, since vaccinations are proven to be overwhelmingly beneficial both to individuals, as well as to the community at large by contributing toward crucial herd immunity for those who are unable to be vaccinated due to medical reasons.

At the same time, one might be concerned that, in general, the law needs to respect the sincere convictions of an individual as much as possible. This is evidenced by the fact that many states provide religious exemptions, not only for vaccinations, but in many other different areas of the law. Of course, while some of these exemptions may seem reasonable, others have become the target of significant controversy. Perhaps most controversial are so called “right to discriminate” conditions that, for example, have been appealed to in order to justify unequal treatment of members of the LGBT community.

While there is much to say about religious exemptions in general, and religious exemptions to vaccinations in particular, here I want to focus on the philosophical exemptions. What are they, and should they be allowed?

As we saw above, the basis for granting philosophical exemptions to vaccinations seems to simply be one’s sincere opposition (how well-informed this opposition is, however, is not part of any exemption criteria). In practical terms, expressing philosophical opposition typically requires the signing of an affidavit confirming said opposition, although in some cases there is the additional requirement that one discuss vaccinations with one’s doctor beforehand (Washington, for example, includes this requirement). In general, though, it is safe to say that it is not difficult to acquire a philosophical exemption.

Should such exemptions exist? We might think that there is at least one reason why they should: if sincere religious conviction is a sufficient basis for exemption (something that is agreed upon by 47 states) then it seems that sincere moral or philosophical conviction should constitute just as good of a basis for exemption. After all, in both cases we are dealing with sincere beliefs in principles that one deems to be contrary to the use of vaccinations, and so it does not seem that one should have to be religious in order for one’s convictions to be taken seriously.

The problem with allowing such exemptions, of course, is the aforementioned serious repercussions of failing to vaccinate one’s children. Indeed, as reported by the PEW research center, there is a significant correlation between those states that present the most opportunity to be exempted – those states that allow both religious and philosophical grounds for exemption – and those that have seen the greatest number of incidents of the outbreak of measles. Here, then, is one reason why we might think that there should be no such philosophical exemptions (and, perhaps, no exemptions at all): allowing such exemptions results in the significant and widespread harm.

The tension between respecting one’s right to act in a way that coincides with one’s convictions and trying to make sure that people act in ways that have the best consequences for themselves and those around them is well-explored in discussions of ethics. The former kinds of concerns are often spelled out in terms of concerns for personal integrity: it seems that whether an action is in line with one’s goals, projects, and general plan for one’s life should be a relevant factor in deciding what ought to be done (for example, it often seems like we shouldn’t force someone to do something they really don’t want to do for the benefit of others). When taking personal integrity into account, then, we can see why we might want there to be room for philosophical exemptions in the law.

On the other hand, when deciding what to do we also have to take into account will have the best overall consequences for everyone affected. When taking this aspect into consideration, it would then seem to be the case that there almost certainly should be only the bare minimum of possibility for exemptions to vaccinations. While it often seems that respecting personal and integrity and trying to ensure the best overall consequences are both relevant moral factors, it is less clear what to do when these factors conflict. To ensure the best consequences when it comes to vaccinations, for example, would require violating the integrity of some, as they would be forced to do something that they think is wrong. On the other hand, taking individual convictions too seriously can result in significantly worse overall consequences, as what an individual takes to be best for themselves might have negative consequences for those around them.

However, there is certainly a limit on how much we can reasonably respect personal integrity when doing so comes at the cost of the well-being of others. I cannot get away with doing whatever I want just because I sincerely believe that I should be able to, regardless of the consequences. And there are also clearly cases in which I should be expected to make a sacrifice if doing so means that a lot of people will be better off. How we can precisely balance the need to respect integrity and the need to try to ensure the best overall consequences is a problem I won’t attempt to solve here. What we can say, though, is that while allowing philosophical exemptions for vaccinations appears to be an attempt at respecting personal integrity, it is one that has produced significant negative consequences for many people. This is one of those cases, then, in which personal conviction needs to take a backseat to the overall well-being of others, and so philosophical reasons should not count qualify as a relevant factor in determining exemptions for vaccinations.

April 5, 2019December 14, 2022

Racist, Sexist Robots: Prejudice in AI

Black and white photograph of two robots with computer displays

The stereotype of robots and artificial intelligence in science fiction is largely of a hyper-rational being, unafflicted by the emotions and social infirmities like biases and prejudices that impair us weak humans. However, there is reason to revise this picture. The more progress we make with AI the more a particular problem comes to the fore: the algorithms keep reflecting parts of our worst selves back to us.

In 2017, research showed compelling evidence that AI picks up deeply ingrained racial- and gender-based prejudices. Current machine learning techniques rely on algorithms interacting with people in order to better predict correct responses over time. Because of the dependence on interacting with humans for standards of correctness, the algorithms cannot detect when bias informs a correct response or when the human is engaging in a non-prejudicial way. Thus, the best working AI algorithms pick up the racist and sexist underpinnings of our society. Some examples: the words “female” and “woman” were more closely associated with arts and humanities occupations and with the home, while “male” and “man” were closer to maths and engineering professions. Europeans were associated with pleasantness and excellence.

In order to prevent discrimination in housing, credit, and employment, Facebook has recently been forced to agree to an overhaul of its ad-targeting algorithms. The functions that determined how to target audiences for ads relating to these areas turned out to be racially discriminatory, not by design – the designers of the algorithms certainly didn’t encode racial prejudices – but because of the way they are implemented. The associations learned by the ad-targeting algorithms led to disparities in the advertising of major life resources. It is not enough to program a “neutral” machine learning algorithm (i.e., one that doesn’t begin with biases). As Facebook learned, the AI must have anti-discrimination parameters built in as well. Characterizing just what this amounts to will be an ongoing conversation. For now, the ad-targeting algorithms cannot take age, zip code, or gender into consideration, as well as legally protected categories.

The issue facing AI is similar to the “wrong kind of reasons” problem in philosophy of action. The AI can’t tell a systemic bias of humans from a reasoned consensus: both make us converge on an answer and support the algorithm to select what we may converge on. It is difficult to say what, in principle, the difference is between the systemic bias and a reasoned consensus is. It is difficult, in other words, to give the machine learning instrument parameters to tell when there is the “right kind of reason” supporting a response and the “wrong kind of reason” supporting the response.

In philosophy of action, the difficulty of drawing this distinction is illustrated by a case where, for instance, you are offered $50,000 to (sincerely) believe that grass is red. You have a reason to believe, but intuitively this is the wrong kind of reason. Similarly, we could imagine a case where you will be punished unless you (sincerely) desire to eat glass. The offer of money doesn’t show that “grass is red” is true, similarly the threat doesn’t show that eating glass is choice-worthy. But each somehow promote the belief or desire. For the AI, a racist or sexist bias leads to a reliable response in the way that the offer and threat promote a behavior – it is disconnected from a “good” response, but it’s the answer to go with.

For International Women’s Day, Jeanette Winterson suggested that artificial intelligence may have a significantly detrimental effect on women. Women make up 18% of computer science graduates and thus are left out of the design and directing of this new horizon of human development. This exclusion can exacerbate the prejudices that can be inherent in the design of these crucial algorithms that will become more critical to more arenas of life.

June 27, 2018December 14, 2022

A Trump Administration Press Secretary Walks Into a Restaurant

Photograph of the White House and the fence that surrounds it

On Friday, June 22nd, the Trump Administration’s Press Secretary, Sarah Huckabee Sanders, arrived and was seated at the Red Hen restaurant in Lexington, Virginia. Sanders was one guest in a party arriving for a reservation for eight, booked in her husband’s name. When the wait staff realized that Sanders was with the party, they called the owner of the restaurant, Stephanie Wilkinson. Wilkinson dropped everything and rushed to the restaurant. She allowed her employees to vote on a course of action. They voted to ask Sanders to leave. Wilkinson approached Sanders and said, “I’m the owner. I’d like you to come out on the patio with me for a word.” Once they were out of earshot of other customers, Wilkinson explained that the values that Sanders publicly espouses and defends were not consistent with her own and that, as a result, Wilkinson must ask her to leave. Sanders complied with the request. The other guests in the party were invited to stay, but, unsurprisingly, they declined the offer. They had already been served appetizers, and Wilkinson insisted that their bill was on the house. Continue reading “A Trump Administration Press Secretary Walks Into a Restaurant”

June 12, 2018December 14, 2022

The Ethics of the Masterpiece Cake Shop Decision

On June 4, The Supreme Court announced its 7-2 ruling in favor of a baker who refused to bake a cake for the wedding of a same-sex couple. The public response was intense on both sides. People took to the streets and to social media to express their attitudes about the decision. One common misconception in the popular commentary on this topic appears to be that the Court ruled that places of business have the right to discriminate against patrons for religious reasons. The Court’s decision was actually much narrower. It did not create a religious exemption from anti-discrimination laws.

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April 24, 2018December 14, 2022

The Return of the Race Debate

There seems to be a rule among American intellectuals: every five years everyone has to have a huge fight about whether there are innate differences of intelligence that separate the races, and whether there actually are races to begin with. The most recent version of the fight centers around an op-ed in The New York Times by Harvard geneticist David Reich.

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April 20, 2018December 14, 2022

California Has its Own Travel Ban. Is That a Good Thing?

In January 2017, a California law went into effect that prohibits state funding for travel to states that have passed laws that are discriminatory toward members of the LGBTQ community. There are currently eight states on the list: Kansas, North Carolina, Mississippi, Tennessee, Alabama, Kentucky, South Dakota, and Texas. The ban does not limit personal, private travel in any way.

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February 15, 2018December 14, 2022

All Hail the King

image of photographers and fans with actors of the Black Panther film

In 1966, comic creators Stan Lee and Jack Kirby introduced a new character in issue #52 of the Fantastic Four. It all started when Reed Richards, Mr. Fantastic, (the guy who stretches, for those who don’t know) was gifted with a high-tech space craft from a mysterious “African chieftan” and was invited to meet him. Mr. Fantastic and the rest of the Fantastic Four obliged and visited this mysterious African chieftan, only to discover that his true identity was T’Challa, king of an advanced country called Wakanda and possessor of the mantle of the Black Panther.
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January 9, 2018December 14, 2022

CRISPR, Moral Obligations and Editing the Human Genome

A close-up image of a scientist examining DNA test results

As our understanding of the human genome improves, pathways leading in the direction of new and powerful technologies are cleared. In recent years, scientists have developed a new technique called CRISPR, which allows them to edit the genome—adding, subtracting, or deleting pieces of genetic code. This process has the potential to bring about significant changes in human health. CRISPR could prevent children from being born with a wide range of painful or life-threatening conditions. So far, scientists have used this process in attempts to prevent blood disorders, allergies, heart disease, and to mutate the genome in such a way that the resulting person is less likely to get HIV. Continue reading “CRISPR, Moral Obligations and Editing the Human Genome”

April 11, 2017December 14, 2022

Mike Pence’s Marital Practices: Workplace Accommodation or Discrimination?

On March 28th, a Washington Post profile on Mike Pence’s wife, Karen Pence, emphasized the closeness in their marriage by reiterating a controversial policy of theirs: Mike Pence does not eat alone with any woman besides Karen, nor does he attend any event that has alcohol present without her. While some laud this commitment to honoring and protecting his marriage, others have voiced concerns about the practicality of following such a rule and fairly performing the roles of his professional position.

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March 29, 2016December 14, 2022

So I am a racist. What do I do now?

This post originally appeared on October 27, 2015.

Like most human beings, I grew up imbibing racist stereotypes. Since I am Italian, those stereotypes were to some extent different from the kind of stereotypes I would have acquired had I grown up in the United States. For instance, I thought all people “of color” were exotic and more beautiful than “Whites”. This positive, and yet still damaging, stereotype included Black women and men, and Asian men, who in the American dating market are known to be greatly disadvantaged.

My personal attitude was to some extent reflective of Italian culture. The fascination with women of color, for instance, is fairly widespread among Italian men, as you would expect given Italy’s colonial past and its relatively racially homogenous present.

When I started visiting the US academically more ten years ago, I grew accustomed to a much more sophisticated discussion about race, and went through an awkward and often painful process of realization of how implicitly racist I was. I learned that asking “Where are you really from?” to a Seattle native of Korean descent was racist, or at the very least racially insensitive. I realized the tricky undertones of many expressions that I deemed simply descriptive, such as “Black music”. And I found out, much to my surprise, that even my aesthetic appreciation for non-Caucasian people was highly suspicious.

I also discovered that Black women are supposed to be bossy, angry, and dependent on welfare, and that Black men are supposed to be criminals and absent fathers; that East-Asian men are supposed to be unattractive and effeminate, and all Asian women submissive; that Asians in general are good at science… Some of these stereotypes were somewhat in line with my own culture’s, if not necessarily my own, but some were a complete surprise, and that surprise, that sense of “I would never think that” gave me an unwarranted sense of reassurance. When taking the IAT, I even compared positively to White Americans with regard to implicit bias toward Native Americans. So I thought: now that I know all this stuff about race, and given that I am a committed anti-racist, I’ll get rid of all the bad stuff, and I’ll stop being racist!

But, in fact, it didn’t go quite like that… When walking in segregated New Haven, seeing hooded Black men walking behind me made me nervous. I was very aware and ashamed of my own nervousness, but I was nervous nonetheless. Later on, when living in the United Kingdom, I found myself mistaking Black men for store employees. These are only two of the most unnerving instances of my implicit racism surfacing to my uncomfortable consciousness.

And it doesn’t even stop at race: I have become aware of many other forms of discrimination, over the years, and that has greatly increased my capacity at catching myself being implicitly homophobic or transphobic, fattist, ableist, and so forth. But, in fact, it seems to have only increased my awareness, not my ability to be less biased.

Philosopher Robin Zheng, whose research is on moral responsibility and implicit bias, has reassured me that I am not alone. Empirical research confirms that fighting implicit bias require a lot more than just informing people about the reality of discrimination.

This research wouldn’t be surprising to those familiar with more general work on implicit reasoning. For those who are not, I find useful an ancient metaphor from the Buddhist tradition popularized by Jonathan Haidt in his acclaimed pop-psychology book The Happiness Hypothesis. The metaphor describes the human mind as composed by an elephant and its rider. According to Haidt, the elephant roughly corresponds to what has been called System I in dual-processing accounts of reasoning: a system that is old in evolutionary terms, and shared with other animals. This system is comprised of a set of autonomous subsystems that include both innate input modules and domain-specific knowledge acquired by a domain-general learning mechanism. System I is fast, automatic and operates under the level of consciousness. The rider roughly corresponds to System II: a system that is evolutionarily recent and distinctively human. System II permits abstract reasoning and hypothetical thinking, and is slower, controlled and conscious. “The rider evolved to serve the elephant,” says Haidt, and while it may sometimes override it, trick it into obedience, “it cannot order the elephant around against its will” (The Happiness Hypothesis, p. 17).

This tension between the rider and the elephant has many different manifestations, but one that is particularly relevant to the discussion of the implicit biases is the case of mental intrusions. If we are explicitly asked to not think about a white bear, all we can think of is, you guessed it, a white bear. This ironic process of mental control is the consequence of automatic and controlled processes firing at each other: the request of not thinking a certain thought activates System II, which attempts to suppress the thought. System I activates automatic monitoring of one’s progress, which in this case means continuously checking whether one is not thinking about a white bear. That move turns out to be obviously counterproductive, since it reintroduces the thought that one is supposed to ban. But “because controlled processes tire quickly, eventually the inexhaustible automatic processes run unopposed, conjuring up herds of white bears” (The Happiness Hypothesis, p. 20). Dan Wegner, who first studied ironic process in a lab setting, has shown that it affects also people who try to repress unendorsed stereotypes.

While there is interesting research addressing more productive and effective ways of fighting implicit bias and stereotyping, I want to conclude with a remark about the implications of this empirical literature for microaggressions, a topic that has gained much attention recently.

I largely disagree with Haidt’s criticisms of trigger and content warnings in academic settings, for reasons well-articulated by Regina Rini and Kate Manne. But I do share his attention to underlying psychological mechanisms, and I worry that they are sometimes neglected in the political commentary.

Committed anti-racists are unlikely to engage in overtly prejudiced behavior. However, they may still find themselves inadvertently engaging in microaggressions such as those I described at the beginning of the post: inappropriate jokes or questions, or bona fide mistakes stemming from deeply-ingrained stereotypes. The elephant acts against the rider’s wishes, or even awareness: when something that has been internalized as a threat (such as a hooded Black man) appears in view, the elephant doesn’t hesitate, and kicks the rider in the shins, making it jump. The rider will take one or two seconds to realize that there is in fact no threat, and that will be too late: the jump was visible, the offense taken, the harm done. Not fully understanding how powerful these unconscious mechanisms are affects not only our moral assessment of the perpetrators (which can be also self-assessment). It also produces condemnatory reactions that, while appropriate in theory, are not necessarily fertile in practice, such as a certain relatively widespread paralyzing White guilt of well-intentioned liberals, who go around admitting their White privilege without knowing exactly what to do about it. Realizing that some of the mechanisms motivating our behavior are outside of our direct control allows us to focus on indirect ways to modify our behavior, and to shift from a sterile admission of White privilege to a more proactive commitment to changing the institutional injustice that gives rise to it. You can’t order the elephant at will, but you can change the environment it is raised in.