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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