Eddie Murphy and the Dangers of Counterfactual Causal Thinking About Detecting Racial Discrimination

tags

Causal Inference

Race is not a causal variable that can be controlled for, as audit studies try to do.

cf Direct Effects

Notes

The model of discrimination animating some of the most common approaches to detecting discrimination in both law and social science—the counterfactual causal model—is wrong.

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treatment is conceptualized as manipulating the raced status of otherwise identical units (e.g., a person, a neighborhood, a school).

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the entire genre of audit and correspondence studies.

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to fit the rigor of the counterfactual model of a clearly defined treatment on otherwise identical units, we must reduce race to only the signs of the category, meaning we must think race is skin color, or phenotype, or other ways we identify group status. And that is a concept mistake if one subscribes to a constructivist, as opposed to a biological or genetic, conception of race.

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hiring two auditors, Mr. Rivera and Mr. Valdez, to sit in parked cars on select roadways, observe passing cars, count which were violating North Carolina traffic laws, and look at drivers to see “who ‘appeared to be’ or ‘looked’ Hispanic.”

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were comparing “African-American drivers, not Hispanic drivers, to non-African-American drivers,” which, his reasoning implied, presented obvious and unproblematic indicia of racial status.

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How do we know when a particular act, practice, or policy is an instance of DISCRIMINATION?

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Discrimination, on this account, is detected by measuring the “treatment effect of race,” where treatment is conceptualized as manipulating the raced status of otherwise identical units

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The counterfactual model has the allure of precision and the security of seemingly obvious divisions or natural facts.

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based on a flawed theory of (1) what the concept RACE references and how it produces effects in the world, and (2) what we mean when we say it is bad to make important decisions “because of race.”

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race can be a treatment on units only if manipulating it does not entail fundamental changes to other aspects of the unit.

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social constructivist theory of race, which holds that the racial categories as we currently know them are not inevitable distinctions that naturally arise from objective biological differences, but instead are the product of contingent historical social processes.

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“race” cannot refer to an attribute, a genetically produced trait, or a signifier—level of melanin in skin, phenotype, distinctive names or speech—that people just have and thereby obviously belong to a designated racial group. The term references a complexly constituted social fact,

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moral philosopher Bernard Williams, who coined the phrase “thick ethical concept” for terms that simultaneously describe and evaluate the object to which they are applied.

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Discrimination is a thick ethical concept that can only be comprehended with access to situated cultural knowledge

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any discrimination-detecting exercise must proceed from some moral theory—often implicit—of what is fair or just

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constitutive explanation,

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A constitutive claim accounts for the capacities of complex systems by reference to their constitutive elements: the parts and organization that make the system what it is.

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To identify something as discrimination when it happened because of race or ethnicity is to offer a constitutive claim that explains how an action or practice can be morally objectionable by virtue of the complex of social meanings and relations that constitute the social category.

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definition of discrimination as an action or practice that acts on or reproduces an aspect of the category in a way that is morally objectionable.

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approach detecting discrimination as an exercise measuring the counterfactual causal effect of race-qua-treatment, looking for complex methods to strip away confounding variables to get at a solid state of race and race alone.

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what we are arguing about when we argue about whether or not statistical evidence provides proof of discrimination is precisely what we mean by the concept DISCRIMINATION. We are arguing about the social meaning of race and how it structures outcomes of interest.

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these formulations only make sense if one defines race as the visual or social cues associated with the category:

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it is nonsensical to talk about constitutive practices as somehow being race-neutral things.

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if one subscribes to the constructivist theory of the category of race, then it is incoherent to understand the legal proscription against discrimination as anything but a project to remake the very meanings of social categories

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I. PRIMER: THICK ETHICAL CONCEPTS AND CONSTITUTIVE EXPLANATIONS

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Discrimination is, to borrow from Bernard Williams, a “thick ethical concept” that simultaneously describes and evaluates the object to which it is applied.

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One also needs a normative theory about the fair and just basis for making decisions, which can be advanced only in light of the sociological or anthropological facts that make race or ethnicity a meaningful category whereby it is discriminatory—as opposed to just irrational or idiosyncratic—to act on it.

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the act ought to be condemned because of the manner in which it relies upon meanings or perpetuates understandings that make out the social kind WHITE.

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if you changed the parts and organization of the system, it would have different causal capacities or dispositional properties. But it would also be a different system; the category doing the causing would be a different category,

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counterfactual causal claims track an etiological dependence, whereas constitutive causal claims track the dependence of capacities of systems to the precise “properties of parts and/or their organization,” which make the system what it is.

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the possibility of thinking of race as an isolated unit attribute that can be manipulated without diffusing the very meaning of the unit for purposes of detecting discrimination is only possible because of our own “prenotions” about the category from living in a deeply racialized society.41 If we properly understand the category, then it is impossible to think of it in terms of an isolated treatment.

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A lot of things change if she makes that manipulation in this society: namely, people no longer perceive a Royal to be walking down the sidewalk! It is only possible for those in the culture to react to the category of Royal because they recognize the indices of Royal to mean something significant beyond the holding of a stick or wearing of a cape.

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make this action recognizable as non-Royal debasement, as opposed to spontaneous adjustment to scarce sidewalk space or randomly distributed preferences for when to walk on the sidewalk versus the road.

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II. THE COUNTERFACTUAL CAUSAL MODEL OF DISCRIMINATION IN SOCIAL SCIENCE AND LAW

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quantitative methods for detecting discrimination filling in a substantive meaning of the concept DISCRIMINATION that is otherwise lacking with indeterminate formal formulations such as “equal protection,” “treating like cases alike,” or “similarly situated.”

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these studies often proceed as if the aim of the exercise is to get at a pure treatment effect of race or ethnicity presuming there is an objective trait there to be gotten at after stripping away confounders.

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must show that the practice had discriminatory effects and that the decision- maker intended to discriminate. Circularity at its finest: Discrimination = discriminatory effect + discriminatory intent.

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problem with defining unlawful discrimination under the Fourteenth Amendment as synonymous with functional irrationality is that it undercuts the entire logic of equal protection jurisprudence’s graded scrutiny scale under which allegations of racial discrimination are subject to the most exacting demands for rationality.

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the most concerning forms of discrimination cannot be defined as decision-making on the basis of “irrelevant” factors.

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litigants faced with this evidentiary burden often turn to quantitative methods to attempt to show both that there are differential outcomes by group and that, if those groups are otherwise similarly situated with respect to all other relevant characteristics or traits, race was the “cause” by elimination.

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The challenge for litigants to demonstrate “similarly situated” units is most pronounced when the historical forces of racial and ethnic group formation have created separate social and physical worlds for different groups.

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easily construct a post hoc list of variables that are unequally distributed by race or ethnicity (making it very difficult, if not impossible, to find the applicable counterfactual) that could theoretically “justify” the disparate treatment.

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policy could not be explained by “legitimate” bases for police decisions, such as high crime rates in minority neighborhoods.

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demonstrating that the correlation between minority composition (at the precinct or census-tract level) and SQF rates survived the inclusion of a bevy of other variables plausibly relevant

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same analysis might not succeed in a hypersegregated city

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[plaintiff] presents no evidence of Caucasian defendants similarly situated to defendant Jones evading diversion

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defendants’ motions on the grounds that they could not prove that “similarly situated” whites were not targeted.

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did not point to incredibly specific evidence that “any white person who had been sentenced under the Robbery Guidelines, or who had served time in a New York state prison for a violent felony, ever told a DEA informant about past involvement in robbing drug dealers but was not targeted for a sting operation.”

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it is not difficult for law enforcement to come forward with plausible bases to distinguish potential targets as not “similarly situated,” especially post hoc and especially when there are highly unequal distributions

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The counterfactual causal model proceeds as if race consists in only its signifiers—say an attribute A—and discrimination is defined as the effect of that A on an outcome when everything else—call them all of the other Xs— are held constant. If there is no prior sociological account of the distribution and meaning of the Xs by different racial/ethnic groups and no prior moral equality-of-what theory designating in what fairness consists of given the differential distribution and meaning of Xs by group, then there is no limiting principle on what should or should not be stripped away in order to get at some imagined solid state of race or ethnicity.

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Declaring that the enforcement action happens because of the underlying offending conduct— and not because of race or ethnicity—is simply question-begging. The entire premise of the discriminatory effects inquiry is to designate criteria by which a policy that does not on its face classify by race or ethnicity produces patterns that will be recognized as DISCRIMINATORY.

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many courts ruled that public perception of crack as a “black drug” was irrelevant to finding that the 100-to-1 sentencing disparity between crack and powdered cocaine was motivated by discriminatory intent.

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The same statistical facts that must be recognized to defuse the allegation of discriminatory effect—say, a proffered correlation between group membership and the facial target of the enforcement policy—are ignored when interpreting the meaning of acting on the facial target of the enforcement policy.

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III. THE FORMAL MODEL AND RACE AS A TREATMENT

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The individual causal effect of treatment t as measured by outcome variable Y (relative to control state c) on unit u is defined as Yt(u) – Yc(u).

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it must be possible to imagine a treatment on the unit at a given time (time=1) that does not entail a host of other changes to the unit prior to that moment (time<1).

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As Lewis explained, “if the present were different, the past would be different too.”

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the “fundamental problem of causal inference.” 90 We only observe either Yt(u) or Yc(u), so we can never identify the true causal effect. Bummer.

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assignment process whereby there would be no reason to think there is a correlation between the outcome of interest and assignment to the treatment category (known as ignorability),

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retroactively “balance” theoretically relevant variables between the treated and control subgroups.

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A. Is Race a Treatment? The Rubian Statistician’s Objection

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a question like “Did Eddie Murphy’s race cause him to get a free newspaper?” does not have meaning in the counterfactual causal sense.

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The unit must be susceptible of being subject to the two distinct states of treated and nontreated (Z=t and Z=c) such that it is meaningful to talk about the potential outcomes of the same unit in these two states, Yt(u) or Yc(u).

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If Eddie Murphy’s race is an “immutable characteristic” assigned at birth, then it is not meaningful to talk about his race as a cause of an outcome within the counterfactual causal paradigm because it cannot be intervened on at some later point. 94 Race is not a manipulative variable on the unit, but a trait of the unit of interest.

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It is meaningless to talk about, for example, a white Eddie Murphy, because every aspect of Eddie Murphy’s person from birth onwards was formed by living as a black man in the United States of America.

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it is hard to imagine a treatment to his person to be white at, say, age twenty- three, without backtracking a substantial number of other facts about his life that would have been different if he had been born, raised, and perceived to be white his entire life prior to age twenty-three.

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we cannot “control for” or “balance on” all of the theoretically relevant posttreatment intermediate outcomes because, said in fancy statistical language, “controlling for a post-treatment variable messes up the estimate of total treatment effect . . . .”

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B. Is Race a Treatment? The Greiner–Rubin Statistician’s Solution

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switch the unit of analysis from the raced unit (person, aggregation of persons) to the decision-maker confronting the raced units.

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The treatment is the “immutable characteristic” of the candidate as perceived by the decision-maker.

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addresses the temporality of treatment issue by locating the treatment at one salient moment

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some clear concept of what the treatment and the counterfactual to the treatment is.

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decision-maker must have in her or his mind a unitary and discrete concept of BLACK and WHITE (if we are talking about racial binaries) that is triggered by a stimulus, rather than a multidimensional conception of RACEDNESS.

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treatment for all units must be identical, meaning the singular discrete concept of BLACK and WHITE triggered by the stimulus is the same across potential decision-makers.

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noninterference assumption requires that the potential outcome of a particular decision-maker does not depend on the treatment of candidate units assigned to other decision-makers.

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Controlling for differences among drivers that officers learn after making the initial stop is problematic under the Greiner–Rubin framework because they are potentially infected by the treatment, including even perhaps recording of seemingly objective differences like prior criminal record or furtive actions because it could enter as a post hoc justification of discriminatory treatment.

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the process of selecting a method for detecting discrimination is not merely a methodological question with normative overtones. It is the process of defining the concept,

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C. Is Race a Treatment? The Sociologist’s Objection

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The framework definitionally restricts the class of eligible causes to “things that could, in principle, be treatments in experiments,”

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measuring the effects of known causes, not the causes of observed effects.

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Race is a fundamental structuring institution of life chances

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It is not meaningful to talk about an otherwise identical person suddenly swapping racial status

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the statistician’s solution requires decision-makers’ consideration of candidate units that are the exact same units except for race,

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requires us to accept that there is such a thing in potential decision-makers’ minds as unit u that is “treated” by being raced “black” that is conceptually an identical unit when raced “white,” except for that single trait.

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What sort of thing is “race” under the thought experiment that imagines decision-makers could perceive identical units that differ only in the treatment of racial status? 115 I submit the only way to get that thought experiment off the ground is to conceptualize race as only a signifier stripped of all of its accreted meanings, as something like freckles or bunions that is just the bodily property.

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decision-makers have the capacity to identify the treatment of racial status by perceiving the attribute without triggering the social meanings

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such an account of race as a treatment is incompatible with the constructivist account of race because race is a system of social meanings, not an individual-level attribute.

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isolating the causal effect of COUNTRINESS, which requires that there be such a thing as COUNTRINESS that is distinct and apart from NON- COUNTRINESS

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Decision-makers do not perceive neutral units as bearers of credentials or decision-relevant variables that are then painted over with a racial status any more than they perceive nation-states as neutral units of political territory painted over with flavors of countriness.

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similarly incoherent to conceptualize the causal effect of race by imagining decision-makers to perceive two candidates as otherwise identical but for race

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history, economics, and sociology making race a fundamental structuring category of thought, perception, action, and experience

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IV. EDDIE MURPHY AND THE EXPERIMENTAL IDEAL

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staging randomized encounters to generate the outcome of interest from actual decision-makers

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The strength of randomized studies is internal validity, which refers to the confidence one can have in the estimate of the treatment effect within the sample studied. But their weakness is external validity, which refers to the confidence one can have that the treatment effect estimated from the study sample can be extrapolated to the general population of interest.

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enrolled college students as auditors, who were “matched on the basis of age, race, physical appearance, and general style of self-presentation” and were also assigned “fictitious résumés that reflected equivalent levels of education and work experience.”

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given careful training and instructions so that they would approach the car dealers in the same way and systematically bargain in the same manner; a “script governed both the verbal and nonverbal behavior of the testers.”

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A. Solid State Race

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Audit studies do not measure the objective-isolated treatment effect of race and race alone because there is no such thing to measure.

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the signifiers used to signal treatment into a racial category for auditors inflect the very meanings and substantive relevance of other decision-relevant credentials because that’s what race is: it is a system of social meaning wherein particular cultural cues indicate the stratifying social types operative in a particular place and time.

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not substantively identical candidates that differ only by racial status, but rather differently raced candidates bearing whatever set of formally similar credentials

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presenting decision-makers with candidates signaling different racial status and an identical set of credentials does not mean that decision-makers perceive identical units but for the treatment if the very meanings of the credentials are inflected by the racial status.

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cannot just use credentials to signal the relevant variables if what she is trying to do is make candidates substantively identical because formally identical credentials are interpreted differently with differently raced candidates precisely because of the social fact of race.

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could list a high school diploma on the résumé for each auditor. But the history of racial segregation and state neglect of black schools has created large differences in the mean quality of schools between white and black neighborhoods in most major cities, so a decision-maker might treat the high school diploma signal differently for a black and white auditor based on this knowledge or presumption.

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testers can vary on “unobservables,” those soft skills or interactional tendencies that make people just seem different.

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there is no race-neutral way of proffering credentials because we live in a racially stratified society.

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definition of a treatment in the counterfactual model requires an isolated nonbacktracking manipulation on a unit that can be applied without transforming the unit into a different unit. Unless the researcher is presenting identical candidates but for the treatment in a given encounter, she is not measuring the treatment effect of race alone on otherwise identical units. She is doing something else.

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the standard assumption is that at base what you hit is the brute fact of racial difference, which must mean the signifiers of racial status—e.g., “just” skin color, phenotype, or some other physical difference between bodies—stripped of all of the effects they produced in the social world prior to that encounter and bundled with a note to the decision-maker that any of the negative (or positive) signified meanings that have been attached to those signifiers are not true in this instance.

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There is no public reason—worthy of constitutional amendments, federal and state legislation, various administrative agencies, and extensive public resources—to be concerned with individual-level dislike of certain physical attributes unless we have a theory about how social processes have constructed those signifiers as systemically disfavored through persistent material and symbolic processes and a theory about why that is wrong.

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B. How Audit Studies Demonstrate Discrimination

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When we say “Eddie Murphy got a free newspaper because he was white,” “white” is essentially a metonym for a constellation of social meanings produced through a complex history of slavery, immigration, and countless other forces, not a melanin deficit

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Eddie Murphy not in whiteface and otherwise the same had to pay for the newspaper. But that counterfactual is not what identifies the action as discrimination.131 What identifies the bodega worker’s action as discrimination is that we reason about its distinctive wrongfulness only by referencing what constitutes BLACKNESS versus WHITENESS. We can only characterize the action as distinctly discriminatory—as opposed to random, irrational, or just an expression of idiosyncratic preferences of the bodega worker—by relying on our prior social and cultural understandings about what the categories of black and white are, what they mean, in what meanings they consist, etc. The thick moral claim—the label of DISCRIMINATION—is grounded in a constitutive explanation,

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The reason that most of us recognize results from audit studies showing differential treatment by decision-makers of differently raced candidates is because there is widespread agreement that differently raced persons with the specific credentials presented in the study ought to be treated similarly, not because proffering some discrete list of identical credentials or dress somehow makes the candidates “identical persons” except for this trait called “race.”

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if we send out a male and female auditor to apply for jobs carrying identical résumés and dressed in identical skirts, they are not identical candidates but for sex.

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The existence of the category SEX makes the same skirt mean something different for purposes of deciding if differential treatment is discriminatory; and we only know that because we have prior sociological knowledge about what SEX references in this place and time.

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Furthermore, a position that we ought to recognize a lower job-offer rate to the male auditor-candidate as discrimination would be based on sociological and normative arguments advancing that, if we change what sorts of attire differently sexed bodies are expected to wear in workplaces, then we will transform the very meanings of sex in our society to be categorically less capable of producing oppression and inequality.

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C. Gold Standards

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rarely explainable only by reference to individual-level racist dispositions of beat cops or line prosecutors.

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Looking for racial discrimination as the treatment effect of race on discrete decision-making units at a single level of activity would be a deeply theoretically misguided way to determine whether outcomes that are produced in an interactive fashion through many layers of organizational directives, incentives, and discretion are discriminatory.

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strong evidence of very narrow claims.

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“policy transfer” or “contextualization” to capture the fact that narrow causal claims are not directly translatable to larger policy questions. 140 This is true not only because causal effects might differ by subpopulations, but also because treatments—especially scaled-up, systemwide treatments—can alter the very context in which they are applied by transforming how strategic, reflexive actors and institutions interact.

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it takes strong premises to deduce interesting conclusions and strong premises tend not to be widely true.

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There is no a priori reason that every question about the social world must fit into variable-based analysis or experimental logic, and sometimes we do violence to the inquiry at hand by forcing it to conform to the structure of favored methods

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discrimination cases should not become dominated by experts fighting in methodological terms inaccessible to other actors;

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CONCLUSION: WHAT IS TO BE DONE?

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The question of detecting discrimination could be posed in terms of effective strategies—What sort of causal understanding helps us to know if the practices at issue in a discrimination case should be changed?

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information about a particular decision-maker’s idiosyncratic distaste for floating signifiers.

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if a researcher were able to make a person on the street of this society perceive two identical walkers but for purple-cape-wearing and stick-carrying—and significant other meanings about this person’s actions, credentials, or behavior were left unaffected by this manipulation—then there would not be such a thing as ROYAL in the way this society currently knows it.

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If we cannot pick apart THE- TREATMENT from NOT-THE-TREATMENT, then we are not estimating a treatment effect of race and race alone

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disparate treatment versus disparate impact binary, so central to so much of antidiscrimination law and literature, is not a tenable distinction

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an interpretation that “would not require us to imagine a world of sexless individuals, but would instead challenge us to explore the precise ways in which Title VII should alter the norms by which sex is given social meaning.”

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“antidiscrimination project” is necessarily an endeavor in which the state actively undertakes the goal of cultural transformation

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one needs a theory of what constitutes GROUPNESS

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if one accepts the constructivist account of racial groups, then transformation of the constitutive meanings of the relevant groups is all antidiscrimination law could coherently be about. Therefore, antisubordination can make a more forceful claim as the only sound interpretation of antidiscrimination norms for those that reject a biological definition of race.

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