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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).
Your post is a potent illustration of a point I have made many times that fell upon deaf ears.
HBD is a fact.
Denying it is an erroneous rejection of reality. It's the thing that doesn't go away when you stop believing in it.
The implications, however, are a matter of preference, and further downstream are the policies you wish to enact.
Looking at the same disparity in group IQs, one can:
Use that as a justification for racism, in the strong sense, like disbarring them from the commons. Kicking them out of a country. Banning miscegenation.
Still discriminate, but on more utilitarian grounds, such as by demanding IQ tests of prospective immigrants so that the baseline level of IQ necessary for a wealthy, comfortable and cohesive society does not become diluted into dysfunction. Are you black but still above 100 IQ? You're welcome. It's regrettable that this disqualifies 70% of your compatriots, but it's not personal.
Argue that this justifies more redistribution. After all, we aid the sick and pay for the disabled. Why not prop up those who are cursed to be dumber because of their genes and had no say in the matter?
Or like me, argue that this is a problem to be solved, by means such as genetic engineering and polygenic screening. We know thousands of genes that all weakly contribute to intelligence. We can perform embryo selection, and with iterated embryo selection get nigh arbitrary gains limited only by our knowledge of causative genes and number of cycles we wish to churn through. This will almost certainly pay for itself. There is no fundamental biological reason that skin color should have any correlation with ones intelligence, anymore than painting an F1 car a different shade will change lap times beyond measurement error. I strongly suspect that even facial physiognomy can be conserved as long as you leave enough damn room in the skull for the brains, to head off claims that people have made before. Hooked noses do not make Jews smarter, flatter ones do not make Africans dumber. Melanin production has no reason to affect neuronal function, unless you really screw the pooch and end up with albinism.
I obviously endorse 4. Intelligence is as close to an unalloyed good as it gets. I do not think 1 is a good idea.
2? I can get behind it, at least until root-cause modification can be enacted. Most sane countries have this to a degree, if they privilege educational attainment, which is a decent proxy for intelligence. Not enough, sadly, and they ruin it by letting in "asylum seekers", keeping illegals and so on.
3? Not a fan. Eventually we'll all be economically obsolete, so I certainly would prefer UBI that does not care that I'm OOMs dumber than a hypothetical AGI. But I will tolerate no more redistribution, while humans have to pull their weight, than is absolutely necessary to ensure that people don't starve to death, have a permanent domicile, education and medical care. Not additional participation dollars for being too incompetent, beyond what anyone should receive.
But what remains obvious, for those with eyes to see, is that group differences in intelligence exist, have enormous empirical impact, that denying this inevitably leads to suspicions of systemic racism that's keeping otherwise fine folk down, and all the consequences of a gaping ideological blindspot in one's understanding of the world.
There's a lot of reason to doubt this. I've never seen cats engaged in widespread, highly destructive warfare. I've never seen ants commit infanticide. I've never seen a donkey shoot someone. I've never seen a horse rob a bank. If you're ever in any kind of situation that requires problem solving skills, having intelligence is the best thing you could rely upon, surely. But intelligence is also what produces conflict, disagreement, chaos and dysfunction.
That smelled wrong, and indeed the counterexample was only about 1.5 googles away.
More generally, imputing any sort of capability for non-cruelty to animals does not align with my understanding of the natural world at all. There are examples abound of animals routinely fighting conspecifics to the death, and I'm pretty sure approximately no animals have a notion of private property that extends beyond the reach of the "owner"'s teeth and claws. The best thing you could say is that without intelligence they can't found banks, and their capacity for appreciating their own suffering is low.
Fair enough. However I believe we call that one missing the forest for the trees.
I expanded my post a bit; really, I don't think there is a forest of edenic animal nonviolence there to miss. Since we were already talking about ants, I think I saw a BBC documentary years ago about what exactly happens when an ant colony prevails over another (I think the human terms are somewhere in the space of mass enslavement and genocide?). It's unclear that humans ever destroy more once you control for volume/complexity/economic value of what humans produce. If you actually are tempted to affirm the idea that it is really worse to create banks and then rob them than to never create banks at all, I take it you would also prefer the (education and human development level of the) 30 Years' War over the present situation because the sum total of things that were destroyed back then were fairly worthless by modern standards?
I have absolutely zero idea what in the world this has to do with my original statement.
Your statement, as I understood it, was that intelligence is not an unalloyed good because intelligence enables agents to do more damage. You sought to back this statement up by a list of claims about bad things humans do but animals (as an extreme example of something much dumber) don't.
In response to this, I claimed:
(1) animals still do bad things (that was my first response);
(2) the bad things that animals do are not actually better than the bad things humans do (this was my second response), and hence I disagree with your argument against intelligence being an unalloyed good.
Specifically, I argued (2) by saying that a calculus of badness that says that the bad things that animals do are less bad than the bad things that humans do may have implications that I certainly don't agree with, and I would be surprised if you agree with them either. Is a lion that roars at a weaker lion to chase it away and then steal its prey "better" than a human that robs a bank? If yes, why? If you say this is because the bank is worth much more than the dead antelope, is a marauding band of soldiers in the 17th century that burns down a wooden farmhouse with no plumbing or electricity (worth maybe $50k on the modern market) also better than someone who robs a bank today for $1m?
I think you're reading way too much into my statement. I was making a very simple, [what I'd have thought was a] very uncontroversial point. Intelligent people gave us climate change. Intelligent people gave us World War 2. Intelligent people gave us atomic weapons. Intelligent people gave us Planned Parenthood. Intelligence may 'not' be among the best mother nature has to offer her creatures, since animals live in relative peace of a kind that vastly outstrips the destruction humanity has wrought on itself throughout history. And your first point addresses something I never said, so that's not relevant.
Incidentally, looking back, I don't think it's a good idea to go around trying to stretch and stuff every sentence with $2 words pulled from a thesaurus, because that's what your statements read like to me, and it's very difficult to read them thinking they're meant to be seriously taken, without eye rolls.
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