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Notes -
On disparate impact, prejudice, American civil rights law, and academic vs. lay definitions of words.
(Or, why HBD won’t save you.)
This is an adaptation of a couple of long replies I made to a mutual on Tumblr, relevant to some recent arguments made here. Specifically, how sophisticated academic and legal arguments can differ from the version that trickles out through journalism and politics into the general population, and how people misunderstand the post-Griggs “disparate impact” regime (further cemented by the 1991 civil rights act), which is at once less ridiculous and yet more extreme in its implications than many of its critics think.
I saw someone here recently characterize said doctrine as the idea that “if a process produces disparate impact, then someone somewhere must have done something discriminatory.” But this itself can mean very different things depending on how one defines “something discriminatory.” Are we referring to treating individuals differently, or to treating groups differently? At one end, you get a kind of unfalsifiable “blood libel” reminiscent of classic antisemitic tropes about Jewish “elite overrepresentation,” and at the other, you get a tautology.
A major of the problem is essentially a conflict over definitions; that too many people mean too many different things when they use terms like “racism.” So I’m going to go ahead and do the thing around these parts of “tabooing” the term to start with. Instead, I’m going to talk about two distinct things. First, there’s “invidious discrimination.” That is, discrimination motivated by racial prejudice and stereotypes — treating individuals differently due to their race (judging by “color of their skin” rather than “content of their character,” as it were); what most ordinary people, especially those on the center right or the older left, are thinking of when they think of “racism.” Then there’s “disparate impact” — the existence of statistical differences between racial and ethnic group outcomes.
The standard criticism of Griggs v Duke Power is that it came to the ridiculous conclusion that disparate impact is itself presumptively evidence of invidious discrimination by someone, somewhere, in the hiring process until proven otherwise. Not too long ago, I saw someone (I think it was on Tumblr) who argued that yes, this would be a stupid thing for a court to conclude… but that this is not, in fact, what the court found in that case. Instead, they essentially deferred (as the courts usually do) to the EEOC’s own understanding of their mission. And what was that? Remember, they are the Equal Employment Opportunity Commission.
Well, what does equal opportunity mean in the context of employment? The answer the EEOC came to is, essentially, that “equal opportunity” means you are equally likely to be hired, which means that the rate at which a racial or ethnic group gets hired should be roughly in proportion to their prevalence in society. That is, anything which makes blacks less likely to be hired constitutes a lack of equal opportunity. That using an IQ test results in disparate impact is itself the problem. It doesn’t matter why. it doesn’t matter that the employer has no discriminatory intent. It doesn’t matter whether or not the makers of the IQ test had any racist stereotypes or ideas about blacks, conscious or unconscious. It could well be because blacks just have lower IQs. That last is not an excuse for hiring blacks less, it is simply an explanation as to how and why IQ tests deny blacks equal employment opportunity. All that matters, for the purpose of civil rights law, is that if it causes a minority group to be less likely to be hired on average, it is presumptively forbidden (unless proven absolutely essential).
To go back to “something discriminatory,” the argument is that a thing is racially discriminatory if it produces statistically distinct outcomes for different racial groups — that is, it gives rise to disparate impact. As I said before, with this definition, “if a process produces disparate impact, then someone somewhere must have done something discriminatory” becomes a tautological statement.
This is very much in line with the academic consensus. Ibram X. Kendi makes it quite clear in his glossaries, when he defines racism and anti-racism in terms of racial equity and racial inequity, which he in turn essentially defines in terms of disparate impact. That is, “anti-racism” is anything which narrows or eliminates disparate impact. And anything that doesn’t — that is, not only things which increase disparate impact, but anything that maintains it — is racist. Invidious discrimination is, ultimately, irrelevant.
Back when I used to do some math and physics blogging on Wordpress over a decade ago, I’d occasionally get crank comments about some piece of jargon which also has a different meaning in colloquial usage, and how consequently, physicists or mathematicians are “using the word wrong” and need to stop. I don’t quite recall the math examples (except that one was in group theory), but for physics, the most memorable example was the angry comments holding forth the position that “you can’t taste quarks” therefore speaking of “flavors” of quarks is wrong, and physicists must stop. I’m pretty sure there are also words whose usage as legal terms differ in important ways from the layman’s ordinary usage.
No, the experts are not going to change their established terminology to assuage the linguistic prescriptivism of random cranks asserting the absolute supremacy of lay definitions.
To an ordinary person for whom the term “racism” refers primarily to invidious discrimination and prejudice, statements like “colorblind racism” and “you can be prejudiced against white people, but can’t be racist against them” (I remember someone giving a quote to this effect from the show “Dear White People”) make no sense. Which implies that those making such statement are using a different definition (particularly the latter statement). If instead, you define “racism” as meaning disparate impact, then those become quite straightforward, even obvious. Does “colorblindness” reduce or maintain differences in racial outcomes? Note that ignoring a thing seldom makes it go away. Does issuing covid vaccines on racial lines increase or decrease the white-black gap in health outcomes? (This last example remains perhaps the biggest “red flag” issue for my mutual.) Does openly discriminating against whites, asians, and jews (my mutuals go-to acronym here is JAW, in contrast to BIPOC) make the aggregate outcome differences between them and BIPOC bigger or smaller?
As one can see from the likes of Kendi, this latter is the academic definition, the term as used by the technical “experts” in the field. Further, if you buy the argument about Griggs, it’s also the legal definition — the definition used by the people who enforce civil rights law and policies “against racism.” And just like with quark flavors, you, the random layman, are not going to get them to change. Yes, one can argue that the term “racism” carries serous moral and legal weight in the way “flavor” does not, that definitional mismatch about such an emotionally-loaded term allows way too much “strategic equivocation” and other such games to let pass, and that a rectification of names is needed, but even then one shouldn’t expect the lay definition of the masses to win out over the elite definition.
One can also assert that the original intent of the civil rights law that created this system was to eliminate invidious discrimination, not to eliminate disparate impact, but this is disputed. (For example, Tim Wise does so here: “No, Precious, No One “Changed” the Meaning of Racism.”) In particular, there was a narrative in the early days that held that disparate impact was fully downstream from invidious discrimination, thus allowing the conflation of the two definitions of “racism.” If one did care more about ending disparate impact itself, well, then banning invidious discrimination was still the way to go about solving it. Except, of course, it was becoming clear by the time of Griggs that this didn’t hold. That eliminating Jim Crow and making things “colorblind” wouldn’t fully close the gaps. Hence the definition split.
(IIRC, it was @Hoffmeister25, either here or at the old place, who said that, in his experience as a white left-winger talking to blacks about these sorts of issues, American blacks were indeed mostly this latter set. That, to the extent they signed on to “colorblindness,” it was because they thought it would fully solve the outcome gap — which was always what they really cared about — and once it became clear that it wouldn’t do that, they increasingly moved on in search of something that would.)
I believe it is in Stamped from the Beginning that Kendi specifically addresses and rejects this narrative. Racist ideas do not produce racist institutions, he has argued, but instead it’s the other way around. Our institutions result in disparate outcomes between races — have done so since the first blacks arrived in any notable numbers in Western societies (hence “from the beginning”) — and people come up with ideas to explain it, and when those ideas propose that the “problem” to be “fixed” lies somewhere with the underperforming minorities themselves, rather than the system, those are racist ideas.
Earlier in the original Tumblr thread, the other party said the following:
…
This is where that example, and the Ozempic analogy comes in. Because that method of addressing different life outcomes between “thin” and “fat” treats obesity as the thing to be fixed, not that the obese have different outcomes. Sure, this might be okay to hold in the case of something like obesity — but even then, note my past comments, here and here, on Carleton University's Fady Shanouda attacking said medication as "fatphobia”, even "the elimination of fat bodies”, and “that treatments for "the so-called obesity epidemic" were "steeped in fat-hatred.”” But for people like Kendi, it’s never okay in the case of racial groups.
It’s like the stupid “positive action/self-esteem” shit we got in elementary school, about how “you’re fine just the way you are" (even back then, I knew that I was in some way broken and defective). It doesn’t matter if you think the “problem” is inborn, or cultural (the classic black conservative ‘stop listening to the rap music, get married and adopt bourgeois norms’ position), it’s still a racist idea if it holds that underperforming groups aren’t “fine just the way they are.”
Years ago, left-wing mixed-race HBD blogger Jayman was making pretty much the same argument, even as he asserted that the outcome gaps were almost entirely genetic. It’s the duty of society, he argued, to perpetually redistribute from the genetic “haves” to the genetic “have-nots” along racial lines, until racial equity is achieved. Genetic engineering to fix those genetic have nots — even of the IVF with genetic screening kind — is “Nazi stuff.” (My mutual is very bullish on these technologies.) Crime rate differences between races are because blacks are genetically predisposed to crime… and therefore it’s not their fault, and the solution is to punish blacks less often and less harshly for the same criminal acts as whites, until their fraction of the prison population matches their fraction of the general population. Yes, it means white people accepting continuing victimization by black criminals — at one point in HBDChick’s comments section, Jayman described the contemporary situation as a “one-sided race war” by blacks against JAWs… and then asserted that “a two-sided war is always worse” than a one-sided war.
Other writings of his in a similar vein point to a couple of analogies — mine, not his. First, the classic injunction that a man must never hit a woman… even if she’s hitting him, first. He can try to gently restrain her, but otherwise, he’s obligated to stand there and take it… because he’s stronger and she’s weaker. Even more extreme, but also more broadly accepted: if you’re an adult, and a small child throwing a tantrum is pounding on your leg with their tiny fists, you definitely aren’t allowed to “hit them back,” no matter what. You stand there and take it because you can take it, and hitting back would do far, far more damage. Cue classic “when white people riot” meme with pictures of the Third Reich. BIPOC, due to their ‘genetic disprivilege,’ can’t do as much damage as JAWs can, and JAWs can also collectively *absorb( more attacks thanks to their ‘genetic privilege.’ Thus, they have a duty to “stand there and take it” with regards to racialized wealth redistribution, racialized vaccine distribution, or random subway shovings, and just as any adult man who “hits back” against a woman or a child is a brute, any white person who won’t simply accept this sort of thing as the price of their superior genes is a racist Klansman Nazi who will be dealt with accordingly. The goal is, as with Kendi, to ensure statistically equal outcomes for racial groups as they currently exist, and anyone who opposes that is racist.
Now, plenty of people have called for changes to current civil rights law to address this definitional issue and change things “back” to fighting invidious discrimination rather than fighting disparate impact. But the proposals won’t work, because they tend to miss how we got here. I think it was Chris Rufo who, while holding up Nixon of all people as the example to follow, called for the creation of a new Federal task force to track down and punish “anti-white discrimination” in the institutions. Given the nature of how people are hired for Federal bureaucracies, the nature of our credential-issuing institutions, and such, just who will end up running said institution in the long run?
I also recall reading recently about a British think-tank created in the wake of the Rotherham scandal to specifically address Islamic radicalization and lack of assimilation. Why were they being brought up? Because their most recent action was to release a book list with a warning of ‘if someone you know is reading these books, they may be on the path of radicalization to becoming a white supremacist.’ The list included works by Orwell, CS Lewis, and a book on the Rotherham scandal. So this institution, despite its founding mission, has decided that the real problem they need to fight is ‘Islamophobic white supremacy’ amongst the native British population.
Personnel is policy. The same thing applies with attempts to “repeal and replace” civil rights law to “get back” (again, see Tim Wise) to the lay “racism=discrimination” definition and away from the academic “racism=disparate impact” definition. Laws are but words on a page unless they’re enforced. And no matter how much we might say “this time when we say ‘fighting discrimination’ we really mean fighting discrimination, including against white people, not “disparate impact,”’ so long as the people who interpret and enforce it are the same bunch as we have now — who all belong to the same academic consensus understanding as to what what “racism” is and what their mission to fight it means — you’re going to keep getting the same results as we do now. And there is no (peaceful, legal) mechanism to replace that personnel.
Now, why does this matter? The answer to that question seems to be ‘because we (for certain elite values of “we”) have come to recognize (i.e. have decided) that it is our biggest issue and highest moral priority as a society, in keeping with the fundamental value of Equality, and, perhaps more importantly, have enshrined this into our law. And why have our elites chosen to define “racism” this way? Well, first there’s all the cynical, power-seeking and power-maintaining reasons for doing so. But even that tends to give way under “generational loss of hypocrisy.” To quote @WhiningCoil:
Thus, many of them probably actually believe it. Why? Well, because, as noted above, it’s what they and all their peers were taught (without “getting the joke” as it were), and it’s what their peer groups enforce as the moral consensus. But also because it fits with Haidt’s “moral foundations.” For people whose moral foundations are based primarily around the “fairness” axis, with the “care/harm” axis as the only other one in their worldview, appeals to “equity” will always have the strongest effect. (See also Moldbug’s “Puritan hypothesis.”)
One may or may not be familiar with the ultimatum game? (If not, I’d recommend take a moment to read about it.) Even though, in terms of one’s personal outcomes, it’s always rationally preferred to take a non-zero split no matter how unfair, most human beings are indeed willing to pay a price in lost opportunity to “punish” a (positive-sum) outcome they find too “unfair.” And, per Haidt, some people are far more sensitive to “unfairness” than others Some people would reject a $51/$49 split. Some might reject a $501/$499 split.
It’s why appeals to aggregate well-being — like in the fatness example, about how redistributing healthcare to equalize lifespans for fit-vs-fat (as opposed to treating the latter with Ozempic) will lead to a net loss of aggregate life-years — tend not to work. Because plenty of people care more about the relative distribution than the absolute aggregate. They see equitable destitution as morally preferable to fabulous prosperity even slightly unequally distributed. In their view, making people worse off in absolute terms is good if it also makes them more equal. This is a matter of terminal goals and moral axioms.
This also appeals to one of humanity’s worst tendencies: envy. Not just wanting what other people have (and you don’t have), but resenting those who have more than you. If your primary drive is that nobody ever have more than you do, then views centering “equity” like this allow you to portray your envy and resentment as moral virtue, which makes those views more attractive than alternatives that don’t.
I hope this helps clarify why the whole “HBD as counter to disparate impact” argument won’t really work. Even if you convince people “blacks have genetically lower average IQs,” or whatever, then you’ve only just explained why IQ tests are racist — because blacks deserve to be hired at proportional rates despite the lower average IQ. And so on. Under the currently-dominant framework of our society, it doesn’t matter how much biology contributes, if any, to current inequality, it is still our legal and moral duty to change “the system” in whatever ways necessary to produce equitable outcomes despite it. The established institutions of our society — government, academia, media, NGOs, etc. — are filled top-to-bottom with true believers who hold this as a terminal value, and it’s not going away until they all do (which is a problem, because there’s no voting them out).
This isn't how ideological groups work. They do not hold power by being all fanatics who would support the same policies regardless of their factual beliefs about the world. Nor do they have unlimited ability to hold onto power if public opinion turns strongly against them. There are some people like that, but they rely on support from the much larger numbers of people who buy into mainstream "anti-racist" arguments premised on factually incorrect beliefs. Most supporters of any ideology are aligned with it by some mixture of traits like factual beliefs, trusted information sources, formal principles, and informal biases. Many of them can be persuaded by chipping away at their factual beliefs and their trust in their current sources of information. If mainstreaming HBD failed it would be because the vast majority continued denying it, not because people accepted it and then just shrugged. Affirmative action doesn't have majority support already, it hangs on through disproportionate elite support, but that doesn't mean it can continue to do so even if you persuade a large chunk of public/elite supporters.
Compare to libertarians. In theory principle-based libertarians shouldn't even care how effective libertarianism is, right? The justifications are stuff like Freedom and the Non-aggression-principle, not effectiveness. But of course it's not a coincidence that they generally believe libertarianism is effective as well. There's presumably some libertarians who would, for instance, oppose conscription even if they sincerely believed it was the only way to prevent being conquered by a communist nation, or support open-borders even if they thought it would result in statists taking power or otherwise end in disaster. But most wouldn't, and in fact I've noticed a notable number of libertarians and ex-libertarians online who became alienated from hardline libertarianism based on stuff like believing that open-borders would end disastrously for liberty. And once you get into actually trying to set government policy alongside people who don't care about principled libertarianism, of course "Privatizing X will end terribly for everyone, but we should do it anyways because Freedom" isn't an argument anyone makes.
There’s a hidden, well, not so hidden, extra factor that keeps people in line. Open questioning of the narrative is a career limiting move. In fact if you want to get fired, probably the easiest way to do it is to be openly racist. Even if people quietly accept that some versions of HBD are true, they’re by and large isolated from each other and prevented from speaking by the knowledge that fighting the narrative is only going to mean poverty and shame. Even the outspoken critics of the blank slate are pretty careful about their identity unless they are in a position to get money exclusively from HBD adjacent communities. Persuasion doesn’t matter if open beliefs are going to ruin your career.
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Every regime in power by necessity, has to try and create ideological buy-in with the rest of the population, to draw in their support and compliance that provides them with the legitimacy the seek. But it doesn't have to broadly succeed to be able to remain in power. If you look at the approval ratings of the current administration in the US, I think it quite easily spells out that you can rule over your citizens and subjects, despite strong disagreement and not trusting any of their institutional organs.
With libertarians, there's a tradeoff between resilience and efficiency. Libertarianism works very well in near equilibrium systems, but struggles massively with radical shifts and systemic changes. A lot of inadequate solutions to problems that have politically been punted to economists to figure out often fail, because the nature of the solutions are hopelessly mired at the margins. They deal in smooth, frictionless, 'incremental' changes. When time runs out for gradual change to take place to settle to a solution and you need decisive action, you need the scale of change to take place that's truly revolutionary. In the modern technological world we live in, you need strategic top-down, decisive action. And that often comes in the form of centralized power and authority that can make large-scale, sweeping changes take place.
The problem with a lot of democratic societies is that they often show that they're unable of making effective top-down decisions that are proportionate to the severity of the problem. In fact, they were specifically designed to 'prevent' people from taking drastic actions. This is why at heart I'm an authoritarian and don't have problems identifying with fascist ideology.
How much do you suppose the average Tang dynasty farmer approved of the Emperor's bureaucrats? Or how the average Medieval English peasant felt about their local earl? Peasant revolts were not uncommon during the Middle Ages, but the people in charge remained on top (my go-to example of the German Peasants' War is but one of many). Oderint dum metuant. Superior coercive force goes a long way in keeping large numbers of people under one's proverbial boot.
I'm not sure if you're simply adding to my statement or disputing it. I fully agree with the point you're making here.
Adding some reinforcement to the quoted part — that was a rhetorical "you, the reader", not "you, Tretiak" in that first question; I can see, re-reading my comment, how that could be unclear. Sorry about that.
And maybe a bit of disputation on the necessity of "ideological buy-in with the rest of the population." Again, it seems like you mostly just need that from your military/enforcers, not powerless peasants (the long commented correlation between labor-intensity of warfare and levels of "democratization"). I mean, look at any time one group of people have conquered and subjugated another. (How much "ideological buy-in" did the Romans ever get from the Jews?)
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I disagree. "Public opinion" means nothing, "democracy" is a sham, the masses are powerless nobodies, the elite holds all the power…
For quite awhile, a good number of my friends pondered why the habit of empires is so persistent, even in nations that define themselves as free and open societies. The answer really isn't all that complex, I think. Every nation, no matter what character or political system they adopt, wants to maximize their share of power in the world. Why wouldn't they? That's the inherent structure of the international system. It's foundational to international relations theory (IR) as well.
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