A fascinating article on racism recently appeared in the news. It challenges our perceptions of our modern society and raises questions. The headline, "How race-based formulas are interfering with concussion lawsuits," was eye-catching. So much so that one might have suspected it of being "clickbait," except it was on a respected news site, the British Broadcasting Corporation (BBC). A handful of American news sources have also visited the subject, such as the NY Times, Reuters, and ABC News (though some of those are accessible only to subscribers).
The crux of the BBC article is that the NFL has been using "race-based formulas" in negotiating settlements in the long-running concussion litigation. To date, about "$856 million" has been paid "to compensate victims." The BBC reports, that these formulas "assume black players have lower cognitive function." The implication is that these formulas have resulted in lower, or no, payments to some players. In a word, when a decision is based upon race, it is racist. Merriam-Webster says racism is:
"a belief that race is a fundamental determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race."
The article explains that averages are used to establish standards, referred to as "race norming." The standard is used as a foundation, it seems, so that a particular player's present cognitive function test results are compared to some thusly determined "norm." The practice predates the concussion allegations and settlement. The BBC says that it was initially conceived "to forestall racial bias in aptitude tests." This is suggestive that it was conceived to discriminate, but designed for an effect different from what is being effected presently.
The process was said to be used regarding applicants for federal jobs, and various aptitude scores "were adjusted to account for the test takers' race and ethnicity." Apparently, until "the Civil Rights Act of 1991," there were race-based assumptions made about cognitive function. The practice then was to use this process "as a means of counteracting racist practices," but that process or practice is not fully detailed in the article.
The BBC notes that the NFL is not alone or even first in the use of this "standard." It notes that this "standard has been used in a variety of medical applications." A neuropsychologist professor from California notes that race "is associated with all kinds of disadvantages," including access to education and healthcare. She defends consideration of race.
This professor defends "the practice of race norming" as "a band-aid solution that didn't come out of a desire to be racist." She contends, instead, that it is a process that makes broad assumptions based on race to "prevent clinicians from 'over-diagnosing and over-pathologizing cognitive impairment in black people.'" There is recognition by some, however, that the "use of race norms . . . perpetuates a false idea that there are genetic differences in intelligence that fall along race lines and that's simply not true." That clinician contends that "there are differences on average between blacks and whites." However, this is "because of differences in social experience," not because of genetics.
Reuters, however, quotes an NFL spokesperson concluding:
“Everyone agrees race-based norms should be replaced, but no off-the-shelf alternative exists and that’s why these experts are working to solve this decades-old issue”
Thus, a more definite ("everyone") and absolute acknowledgment that "race-based norms" are inappropriate.
The BBC explains that a neurologist conceived a "race-based adjustment" system for test scores, and they came to be repeatedly employed. The NFL has apparently used the system as part of its "basis of determining the size of payouts from the NFL's compensation scheme." Essentially, there is an assumption here that black player cognitive test scores must be "lower than white players" in order to qualify for payments in the settlement.
There are specific allegations noted. Some former players allege that they were denied compensation because of this racist tool. One lawsuit based on the allegations has been dismissed. The NFL "has defended itself by arguing the settlement scheme was developed" through collaboration with scientists and based upon "widely accepted and long-established cognitive tests and scoring methodologies." It seemingly protests the perception that the use of this standard is mandated or required of the clinicians who diagnose and assess these function issues.
The BBC reports that at least some "clinicians have disagreed" with the voluntary characterization of employing these standards. The conclusion seems to be that there are some involved who believe they are required to apply the racist standard in assessing function. As a result of their perceptions, the press coverage, or both, the NFL recently concluded to "halt the use of race norming." According to Reuters, this will impact prospective claims and result in "rescoring claims where they were applied."
Interestingly, as mentioned above, the process was abandoned in U.S. federal employment some thirty years ago (1991). Reuters quotes an NFL spokesperson stating the practice's "origins were to stop bias in testing, not perpetuate it." And, thirty years after the government elected to abandon this practice, perhaps the publicity here will mean an end to such practices altogether? That science and medicine ever accepted this premise is shocking; that it persists is only more so.
As an alternative, some now advocate "more precise approaches that consider a person's lived experience." Thus, psychologists, neurologists, etc. would consider someone's historical access to medical care, educational opportunities, and perhaps general living environment in order to adjust what cognitive function might be expected from that person, seemingly regardless of race or national origin (or perhaps any potential immutable characteristic of a human being). The resulting expectation for that person could then be calculated or estimated, or conjectured. That result or prediction could then be compared to the present test result for that person in determining loss of cognitive function as a result of some injury or illness.
Herein is a fundamental challenge of the sciences. Science and medicine are complex. The law recognizes that in various forms, notably in the admission of expert testimony and opinions. Opinions from the learned are allowed by rules if they "will help the trier of fact (judge or jury) to understand the evidence or to determine a fact in issue." Federal Rule of Evidence 702. This is a recognition that those of us who are not scientists, engineers, or other scientific professionals may need help from their expertise. It is disturbing to learn that science has been complicit in racism and racial bias, and that the practice has been perpetuated recently.
We are encouraged persistently to "follow the science." In Consensus in the Absence of Proof (January 2021), I note the challenges that we may face when many learned people agree on some question, that is reach consensus. The scientific method of hypothesis, testing, data, and reproducible results is worthy of our attention and consideration. But, consensus and agreement may not be. When that consensus is a "band aid" of systemic racism, it is not worthy of deference.
