Disparity's Relationship to Discrimination

Anyone with a conscience (or a pulse) knows that discrimination based on, among other things, race, ethnicity, religion, sexual orientation, gender, or gender identity, is abhorrent and has no place in a civilized society. Indeed, inequality of opportunity and access is antithetical to the very freedom, liberty, and dignity that the Constitution requires and that every human being deserves.  

But disparate outcomes among groups do not always reflect discrimination.

In his book Discrimination and Disparities, Thomas Sowell, a senior fellow at Stanford University’s Hoover Institution, argues persuasively that disparate outcomes are often attributable to non-discriminatory factors. Indeed, as Sowell notes, even in the absence of discrimination, disparate outcomes among groups nonetheless result, thus undermining the conclusion that disparity reflects discrimination.[1]

I.    Disparity does not equal discrimination.

Disparities among groups do not always reflect discrimination because: (1) in many contexts, the disparity is attributable to other factors; (2) disparities exist within groups for reasons unrelated to discrimination; (3) disparity still results when objective and non-discriminatory measures are used to evaluate performance; and (4) disparities exist because individuals and groups self-select into different professions and make different life choices.

    A.    In many areas, disparity cannot be attributed to discrimination.

Disparities exist everywhere. For example:

The majority of law professors identify as liberal, and conservatives comprise a distinct minority on most law school faculties.[2]

The majority of legal writing professors are female.[3]

The overwhelming majority of individuals convicted of violent crimes are men.[4]

The majority of nurses are female.[5]

The majority of professional football and basketball players are African-American.[6]

The majority of professional baseball players are white.[7]

The majority of methamphetamine users are white.[8]

Let’s analyze just a few of these examples. Do these facts suggest that the National Football League and National Basketball Association are discriminating against whites? Of course not. Do they suggest that law enforcement officers are racially biased against white methamphetamine users? No. A more plausible explanation is that whites predominantly use and sell methamphetamines. Do they suggest that law schools discriminate against conservative faculty candidates? According to one study, the answer might be yes.[9] And this illustrates the broader point: academics, courts, and policymakers should distinguish between those instances where disparity results from discrimination and those where it does not. In other words, they should use empirical data to exclude other possible causes of disparate outcomes rather than assuming that such outcomes reflect discrimination.

Put simply, identifying a disparity in a particular context proves nothing.

    B.    Disparities exist within groups based on cultural and other factors unrelated to discrimination.

The disparity narrative disregards the fact that disparate outcomes occur within groups. For example, a study of individuals with an IQ in the top 1% discovered widely disparate levels of achievement within this group.[10] What did social scientists identify as the reason for the disparity?

The quality of a person’s family upbringing.

Likewise, income disparities exist within racial groups for reasons that discrimination cannot explain. Sowell explains as follows:

[I]n 2012 the US poverty rate for Jamaicans was reported as 14.8 percent, Ethiopians 19.7 percent, and Nigerians 12.8 percent. All the rates were significantly lower than the rate of 28 percent for blacks as a whole.[11]

Additionally, “these three ancestry groups had significantly lower rates of poverty and higher median incomes than the Hispanic population.” Sowell further states:

How were these people of color, often without the benefit of growing up in America, able to clear the “barriers” of a discriminatory “system” far better than other people of color? Culture unquestionably plays a role in income and poverty disparities, even in situations comparing people of color where “discrimination” can be ruled out.”[12]

Furthermore, regarding income inequality, “examining the average age differences among different demographics can explain away a portion of the income inequality that intellectuals proclaim exists due to discrimination.”[13] Indeed, “races and nationalities with older average ages would naturally boast higher average incomes due to being more experienced.”[14]

In other words, not all – or even most – disparities are reducible to racism

    C.    When objective and non-discriminatory measures are used, disparate outcomes still result.

In many instances where objective and non-discriminatory measures are used to evaluate performance, disparity still results. For example, from 2001 to 2012, the home run leader in the American League had a Hispanic surname.[15] From 2008-2014, the National Spelling Bee winner was a child whose parents were of Indian ancestry.[16] In 2012, sixty-eight of the top 100 marathon runners were Kenyan. The best-selling brands of beer are made by people of German ancestry.[17] And although African Americans are overrepresented in the National Football League, an overwhelming majority of NFL kickers are white.[18]

Does this mean that the NFL is discriminating against African American kickers? Of course not.

    D.    Disparities result because individuals self-select into different professions.

Within and among groups, disparities result because individuals self-select into different professions and, more broadly, make different life choices.[19] As Sowell explains:

There are many decisions wholly within the discretion of those concerned, where discrimination by others is not a factor—the choice of television programs to watch, opinions to express to poll takers, or the age at which to marry, for example. All these show pronounced patterns that differ from group to group.[20]

To be sure, “[a]mong the many reasons for gross disparities in many fields, and at different income levels, is that human beings differ in what they want to do, quite aside from any differences in what they are capable of doing, or what others permit them to do.”[21] 

Simply put, in many instances, disparate outcomes have nothing to do with discrimination.

II.    The solution – use empirical data to exclude non-discriminatory causes of disparity.

As stated above, discrimination based on, among other things, race, ethnicity, religion, sexual orientation, gender, or gender identity is reprehensible. But that doesn’t mean that disparate outcomes always reflect discrimination.

As Sowell notes, some disparities result from non-discriminatory factors and thus have no relationship to inequality or injustice. As such, scholars and policymakers should avoid assuming that disparity reflects discrimination. Instead, they should rely on empirical data to exclude other causal factors, thus more firmly supporting their arguments. In so doing, scholars will likely discover that some disparities reflect discrimination and some do not. This is the first step toward embracing an intellectually honest and fact-driven approach to solving the problems affecting the United States and to improving the nation’s discourse on matters of public policy.

[1] See Thomas Sowell, Discrimination and Disparities (Basic Books, 2019), available at: Amazon.com: Discrimination and Disparities: 9781541645639: Sowell, Thomas: Books; see also Coleman Hughes, The Empirical Problems With Systemic Racism, available at: Coleman Hughes: The Empirical Problems with Systemic Racism - YouTube

[2] See Bonica, et al., The Legal Academy’s Ideological Uniformity (2017) available at: The Legal Academy’s Ideological Uniformity (harvard.edu)

[3] See Legal Writing Professor Demographics and Statistics [2022]: Number Of Legal Writing Professors In The US (zippia.com)

[4] See Gender and Crime, Differences between Male and Female Offending Patterns, available at: Gender and Crime - Differences Between Male And Female Offending Patterns - Categories, Women, Crimes, and Arrests - JRank Articles

[5] See Registered Nurse Demographics and Statistics (2022), available at:  Registered Nurse Demographics and Statistics [2022]: Number Of Registered Nurses In The US (zippia.com)

[6] See 18 Fascinating NFL Demographics, available at: 18 Fascinating NFL Player Demographics - BrandonGaille.com; NBA players by ethnicity 2020 | Statista

[7]  See Professional  Baseball Statistics By Gender, available at: Professional Baseball Player Demographics and Statistics [2022]: Number Of Professional Baseball Players In The US (zippia.com)

[8] trends of meth use by ethnicity and gender by www.drug-rehabs.org

[9] See Michael Conklin, Political Ideology and Law School Rankings: Measuring the Conservative Penalty and Liberal Bonus, 2020 U. ILL. L. REV. ONLINE 178, 179 (2020) (emphasis added)

[10] See Discrimination and Disparities With Thomas Sowell, available at: Discrimination and Disparities with Thomas Sowell - YouTube

[11] See Bradley Thomas, Statistical Disparities Among Groups Are Not Proof of Discrimination, (May 21, 2019), available at: Statistical Disparities Among Groups Are Not Proof of Discrimination - Foundation for Economic Education (fee.org)

[12] See id.

[13] See id.

[14] See id.

[15] See Thomas Sowell, Disparate Outcomes Do Not Imply Discrimination (October 5, 2015), available at: Disparate Outcomes Do Not Imply Discrimination | National Review

[16] See id.

[17] See id.

[18] See id.

[19] See Bradley Thomas, Statistical Disparities Among Groups Are Not Proof of Discrimination, (May 21, 2019), available at: Statistical Disparities Among Groups Are Not Proof of Discrimination - Foundation for Economic Education (fee.org)

[20] See id.

[21] See Thomas Sowell, Disparate Outcomes Do Not Imply Discrimination (October 5, 2015), available at: Disparate Outcomes Do Not Imply Discrimination | National Review

[22] See Discrimination and Disparities With Thomas Sowell, available at: Discrimination and Disparities with Thomas Sowell - YouTube