on such tests can hardly be expected.”
The court also rejected the suggestion that the use of the test—and its racially discriminatory effects—could be justified by some objective job-related requirements, that, in legal terms, the discrimination was necessary to advance a “compelling governmental interest.” “The assertion of predictive value of Test 21 for achievement in Recruit School is based upon a correlation between Test 21 scores and scores on written examinations given during a 17-week training course,” the court noted. “We think this evidence tends to prove nothing more than that a written aptitude test will accurately predict performance on a second round of written examinations, and nothing to counter this hypothesis has been presented to us.” “As long as no one with a score below 40 enters Recruit School,” the court concluded,
as long as all recruits pass Recruit School, as long as the Department’s actions concede that Recruit School average has little value in predicting job performance, and as long as there is no evidence of any correlation between the Recruit School average and job performance, we entertain grave doubts whether any of this type of evidence could be strengthened to the point of satisfying the heavy burden imposed by [the law].
In 1976, the U.S. Supreme Court reversed yet again, reinstating Judge Gesell’s decision. In an opinion that altered the basic fabric of constitutional law—and impossibly hindered, in some views, the legal struggle for equality—the Court held that racially discriminatory effects were not enough to establish a constitutional violation. Rather, the guarantee of “equal protection of the laws” was abridged only by intentional discrimination. Only “purposeful discrimination” could create the type of inequality that required some compelling justification; discriminatory effects required no justification at all. There was, then, no constitutional inequality when black applicants failed Test 21 at four times the rate of their white counterparts; in the absence of proof that the Metropolitan Police Department intended this result, the Constitution was not implicated at all.
Justice Byron White wrote the opinion for the Court. Justice White was the valedictorian of the class of 1938 at the University of Colorado, a Rhodes scholar, and a graduate with high honors from Yale Law School. He was—and is—a very smart man. But Harley and Sellers’s claim, he wrote, left him befuddled: “[W]e have difficulty understanding how a law establishing a racially neutral qualification for employment is nevertheless racially discriminatory and denies ‘any person . . . equal protection of the laws’ simply because a greater proportion of Negroes fail to qualify than members of other racial or ethnic groups.”
Nowhere in his opinion did White explain how he knew that Test 21 was “racially neutral.”
Near the close of his opinion for the Court, White did explain why evidence of a racially disparate impact could not suffice to establish a constitutional claim:
A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.
There are, in short, too many racial disparities for the Constitution to redress without proof of an unlawful intent. The unhappy coincidence that black applicants failed Test 21 at four times the rate of their white counterparts could not alone offend the Constitution: validated or not, Test 21 was “race-neutral” because the Court could not afford to believe otherwise.3
Before the Civil War, every southern state except Tennessee prohibited the instruction of slaves. After a brief period of promise during Reconstruction, black education was effectively suppressed by the violent reactions of Redemption and the gradual entrenchment of the Jim Crow system. Some of the tools of racial hierarchy were legal, some extralegal. As to the former, racial segregation, combined with grotesque disparities in the allocation of educational resources and radical differences in the focus and depth of the curricula, was both pervasive and effective. As to the latter, a relentless scheme of orchestrated violence, directed principally at educated black Americans, achieved for white supremacy what laws alone could not.
Today, America’s white citizens are more likely than its black citizens to receive undergraduate and graduate education, more likely to attend primary and secondary schools in districts with superior resources, and more likely to be enrolled in “advanced” or “college preparatory” courses; its black citizens are more likely to be suspended, expelled, or failed from high school, are more likely to attend overcrowded and underfunded primary and secondary schools, and are more likely to be assigned to remedial education classes, or labeled “mentally retarded.” America’s black citizens are offered fewer math and science courses as primary and secondary school students, are forced to learn with smaller supplies of texts and equipment, materials that are, in any event, more apt to be hopelessly outdated, and are more likely to be led in their educational efforts by underpaid and underqualified “substitute” teachers.4
And white people, for some reason, keep doing better on “race-neutral” tests.
The stories of Carrie Buck and of George Harley and John Sellers are the stories the law usually tells about “smart.” They are not stories of unbridled egalitarianism: no wealth is redistributed, no incompetence rewarded, no unqualified applicant gets the prize, no loser suddenly wins. The stories told by the law are the stories told by the culture at large: the smart people get ahead, the not-so-smart people don’t. The law, truth be told, ensures this result.
This book is about being “smart”—about its meaning and its consequences. It is about attempts to expand its meaning and make it more inclusive, and it is about attempts to preserve its conventional meaning, to maintain its exclusivity. It is a book about the relationship between “intelligence” and “race,” and the way the two phenomena have been created together. It is about the relentless interplay between science and politics in shaping the conventional meaning of both constructs, and the vital role played by law in shielding those conventional meanings from critical scrutiny.
This book, then, is about the deeply rooted cultural myths that surround the concept of smartness: the myths of biology, the myths of merit, and the myths of equality under law. It is about the myths that persuade us, over our better moral judgment, that not all people—and maybe only very few—are smart. It is about, then, the “smart” culture.
The mythology of “smartness” is old: it is an original part of our national fabric. It found full expression during the very founding of the Republic, as a vital part of the effort to reconcile the lofty rhetoric of universal liberty and equality with the undeniable realities of social caste, political exclusion, and chattel slavery. Not all people were in fact created equal, endowed with inalienable rights, and meant to share in the blessings of liberty. What distinguished the included from the excluded were the natural differences in “the faculties of men”: Indians, Africans, women, and the poor all were differentiated by “nature,” and relegated to the lower rungs of the “natural” order.
That was in the beginning. Four score and a few years later, a reconstructed nation abolished slavery and promised all persons the “equal protection of the law.” But the architects of Reconstruction—as a collective whole—were intensely ambivalent, and the promise they offered—of legal equality—was maddeningly ambiguous. Even that promise withered in the face of assertions of natural superiority: separate but equal was in truth only separate, and the inequality was entirely in keeping with the natural order. By the end of the nineteenth century, a new evolutionary science seemed to confirm the inevitability of the American hierarchy: even in a land of unrestrained liberty—and perhaps especially in such a land—only the fittest will thrive. Over a century into the American experiment, social caste and political exclusion remained the general rule,
