Scholars have long critiqued the principles that animate what I have termed the equal protection right to compete. Less attention, however, has been paid to whether existing doctrine actually promotes this vision of equality. One might presume that it does. Yet empirical findings spanning employment, law enforcement, and education suggest the opposite. Specifically, scholarship from the mind sciences reveals that common facially neutral evaluative tools—such as human judgment, standardized tests, and predictive algorithms—can systematically mismeasure an individual’s existing talent and potential (that is, merit) because of her race. Accordingly, when decisionmakers rely on such “racial mismeasures” to determine whom to hire or admit, they effectively compromise each candidate’s right to an individualized, meritocratic, and race-free review.
Equal Protection Design Defects
Volume 91, No. 3, Spring 2019