Publication Date
2023
Publication Title
Harvard Civil Rights-Civil Liberties Law Review
Abstract
The Supreme Court has emphatically and repeatedly rejected efforts to justify otherwise-illegal discrimination against individuals by resort to statistical generalizations about groups. But practices that violate this principle are pervasive and largely ignored or even embraced by courts, lawyers, and law scholars. For example, many health care fields, in seeming contravention of antidiscrimination statutes, make use of explicitly racialized diagnostic algorithms that make it harder for Black patients to access care than non-Black patients with identical symptoms. Moreover, the justice system itself has embraced numerous similar practices, including demographic and “sociocultural” adjustments of intellectual-capacity assessments for defendants facing the death penalty, explicit class- based discrimination in criminal justice risk assessments, and the use of race- and sex-specific actuarial data to calculate tort damages. This Article examines these practices, the law governing them, and the reasons for these disconnects between law and practice.
Recommended Citation
Sonja B. Starr, "Statistical Discrimination," 58 Harvard Civil Rights-Civil Liberties Law Review 579 (2023).
