Thursday, June 4, 2015

Strange Bedfellows #2: Eugenics All Over The Place

It’s well known that Buck v. Bell (1927) and Skinner v. Oklahoma (1942) are the leading SCOTUS cases on the constitutionality of eugenic sterilization laws.  But the legacy of the eugenics movement appears elsewhere in the Con Law canon—including such greatest hits as Loving v. Virginia (1967), Washington v. Davis (1976), and Cleburne Living Center (1985).

To best see the connections, it helps to know some of the history of intelligence testing.  Researchers in the early 20th century attached a number of terms, intended to be clinical, to levels of intellectual development considered abnormally low.  The two original terms were idiot and imbecile.  An idiot was pre-verbal, with no more intelligence than an infant.  An imbecile could use language, but had the intelligence only of a pre-pubescent child.  Later researchers became concerned that there was a class of adults who could speak and function above the imbecile level, but should still be categorized as abnormally stupid.  They might be good for factory labor, but they tended to be "immoral" and prone to "criminality."  These were the morons.  When Oliver Wendell Holmes, speaking of Carrie Buck’s genealogy, said that “three generations of imbeciles are enough,” he misspoke: at best, the allegation was that Carrie Buck was one of generations of morons.  And she wasn’t one of those either.  See Paul Lombardo, Three Generations, No Imbeciles, 60 NYU L. Rev. 30 (1985).  The blanket category for idiots, imbeciles, and morons was feeble-minded.

The quest to develop reliable tools to measure intellectual ability led to a number of tools still used today.  Some of these involve advanced statistics (as explained in Stephen Jay Gould’s 1981 book The Mismeasure of Man) but one of them is known to us all: the multiple choice test.  Psychological researchers were so convinced of the value of the technique that they convinced the US Army during WWI to give the new multiple-choice intelligence tests to draftees as a method of deciding who should be promoted to positions of command.  The officers were never convinced that the results would be valid for that purpose, but the researchers continued to hype the results, including at Congressional hearings.  Their alarming conclusion:  the United States was “a nation of morons.”

Their conclusions were based on draftees’ responses to questions like these:

The Orpington is a kind of:
A. fowl
B. horse
C. granite
D. cattle

An air-cooled engine is used in the:
A. Buick
B. Packard
C. Franklin
D. Ford

Why is beef better food than cabbage? Because
A. it tastes better
B. it is more nourishing
C. it is harder to obtain

Researchers at the time did not recognize that their questions tested culture, not native intelligence.  An extremely bright draftee raised in poverty on a farm in the 1910s might be forgiven for not poring over the advertising copy for cars he could never afford and committing their features and brand names to memory.  Yet many were convinced that the nation would be better off if we could extirpate from future generations the morons who failed this and similar tests.

The nation’s flirtation with eugenics appears fleetingly on the surface of Cleburne and Loving.  In Cleburne, a city denied a zoning variance to a group home that fit within the city code’s definition of a “hospital for the insane or feeble-minded.”  As Justice Marshall’s carefully-researched dissent explained, this term was drawn from a Dallas zoning ordinance from 1929, during the thick of the eugenics movement.  473 U.S. at 467 n. 19.  The opinion in Loving indicates that Virginia’s then-existing statutory ban on interracial marriage was found in the Racial Integrity Act of 1924, a law “passed during the period of extreme nativism which followed the end of the First World War.”  The eugenic sterilization law upheld in Buck was passed by the Virginia legislature during the same legislative session, and for the same purpose: to ensure that future generations of Virginians would fit the current generation’s vision of genetic adequacy.

The connection to eugenics appears nowhere on the surface of Washington v. Davis, but to my mind it is equally strong.  That case challenged the Washington DC police force’s reliance on Civil Service Test 21 as part of its application process, even though the test was not validated to measure competence as a police officer and had disparate impact on the basis of race.  The opinion does not describe Test 21 in any detail. 

My casebook includes some of the questions, which bear an obvious similarity to the WWI intelligence tests:

Of the following reasons, the one that best explains the continued sale of records in spite of the popularity of the radio is that the:
A) records make available the particular selections desired when they are desired
B) appreciation of records is more widespread than appreciation of radio
C) collection of records provides an interesting hobby
D) newest records are almost unbreakable
E) sound effect of records is superior to that of the radio.

Laws restricting hunting to certain regions and to a specific time of the year were passed chiefly to:
A) prevent people from endangering their lives by hunting
B) keep our forests more beautiful
C) raise funds from the sale of hunting licenses
D) prevent complete destruction of certain kinds of animals
E) preserve certain game for eating purposes

PROMONTORY means most nearly:
A) Marsh
B) Monument
C) Headland
D) Boundary
E) Plateau

Such questions are about as well-suited for the task of selecting police officers as the question about the Orpington (it’s a kind of chicken) was suited for selecting military officers.  Next time you get pulled over by the highway patrol, be sure to use “promontory” in a sentence; the officer will sense a kinship and let you off with a warning.  Although Test 21 was never used as a tool for shaping genetics, the DC Police Department shared a eugenicist’s assumption that a unitary form of intelligence can be detected and precisely ranked as a basis for making important life decisions.

Scores on employment tests also appear in the facts of Griggs v. Duke Power (1971), Personnel Administrator v. Feeney (1979) and Ricci v. DeStefano (2009), but the opinions do not describe the questions asked.  If anyone knows the contents of those tests, please share them!

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