Sex, Causation, and Algorithms: How Equal Protection Prohibits Compounding Prior Injustice

U.S. constitutional law prohibits the use of sex as a proxy for other traits in most instances. For example, the Virginia Military Institute (VMI) may not use sex as a proxy for having the “will and capacity” to be a successful student. At the same time, sex-based classifications are constitutionally permissible when they track so-called “real differences” between men and women. Women and men at VMI may be subject to different training requirements, for example. Yet, it is surprisingly unclear when and why some sex-based classifications are permissible and others not. This question is especially important to examine now as the use of predictive algorithms, some of which rely on sex-based classifications, is growing increasingly common. If sex is predictive of some trait of interest, may the state— consistent with equal protection—rely on an algorithm that uses a sex-based classification? This Article presents a new normative principle to guide the analysis. I argue that courts ought to ask why sex is a good proxy for the trait of interest. If prior injustice is the likely reason for the observed correlation, then the use of the sex classification should be presumptively prohibited. This Anti-Compounding Injustice principle both explains and justifies current doctrine better than the hodge-podge of existing rules and concepts and provides a useful lens through which to approach new cases

The Epistemic Function of Fusing Equal Protection and Due Process

The fusion of equal protection and due process has attracted significant attention with scholars offering varied accounts of its purpose and function. Some see the combination as productive, creating a constitutional violation that neither clause would generate alone. Others see the combination as merely strategic, offered to make a claim acceptable at a particular historical moment but not genuinely necessary. This Article offers a third alternative. Judges have and should bring both equal protection and due process together to learn what each clause independently requires. On this Epistemic vision of constitutional fusion, a focus on equality helps judges learn what rights are truly fundamental, and a focus on who lacks fundamental liberties helps judges learn which groups need the special protection of heightened review under the Equal Protection Clause

Ethical practice in the work lives of Iowa public high school principals

This study investigated how high school principals make meaning of the ethical issues they face. Sixteen Iowa public high school principals were selected by gender and district size. Each participated in a one-hour face-to-face interview with the researcher who had five years of building-level administrative experience at the middle and secondary level.;Narratives were analyzed identifying major categories of educational beliefs and values, ethical issues, and ethical dilemmas. Kidder\u27s Resolution Principals of Ends-based Thinking, Rule-based Thinking, and Care-based Thinking were evident as participants balanced personal and professional ethics and described decisions made. Which principles were used most often and in what situations varied with no patterns emerging by years of administrative or teaching experience, gender, or district size. It was found that the three Dilemma Paradigms of Individual versus Community, Short-term versus Long-term, and Justice versus Mercy together play a consistently central role in how high school principals manage discipline issues. Principals reported a frequent overlap of discipline issues, special education, and decisions about allocation of resources. The Dilemma Paradigm of Truth versus Loyalty was reported to occur less frequently, but to be exceptionally difficult, disrupting communication and interfering with professional and emotional support. No gender differences were found in how school administrators face ethical issues in schools. However, what issues were identified as ethical issues did vary by gender. Zero of eight male participants compared to six of eight female participants identified gender in the daily work life of school administrators as an ethical issue.;There is a disjunction between administrators\u27 expressed need to talk and constraints not to do so, increasing feelings of isolation. This is often due to issues of confidentiality, but also to the need to maintain the school and district in a positive light. Principals in medium and small districts were likely to report a cautious communication style of self-silencing because of the multiple overlapping social relationships in smaller communities.;The concept of shared reliance is discussed related to the social nature of learning, the value of egalitarian co-mentoring, and learning in cohort groups

It\u27s Not the Thought that Counts

The article considers a central question about discrimination – are an actor’s intentions relevant to whether an action wrongfully discriminates – and takes issue with a familiar answer to this question. If one thinks of “discrimination” in its literal sense, as simply drawing distinctions among people on the basis of possessing or lacking some trait, it becomes clear that discrimination is ubiquitous and often benign. The challenge is to distinguish when discrimination is permissible and when it is not. One common answer to this question is that it is the intentions of the actor who adopts or enacts a law, policy or decision that are crucial. Legal doctrine, both constitutional and statutory, reflects this view by treating the actor’s intentions as centrally important. But is the moral claim on which it rests defensible; are intentions morally relevant to whether discrimination is wrong? The article argues that the actor’s intent in enacting a law, adopting a policy or making a decision is irrelevant to the moral assessment of whether the law, policy or decision wrongfully discriminates. The article begins in Part I by drawing an analogy to a debate in the philosophical literature about the Doctrine of Double Effect in order to press the point that the focus on intentions confuses assessment of the wrongfulness of the action with assessment of the moral blameworthiness of the actor. The article goes on to argue that when we look more closely at instances of discrimination, we see that it is not the aims of the actor that render the action wrongful, rather it is what the actor does, whether intentional or unintentional, that matters. Parts II and III raise and reply to objections to the arguments advanced in Part I. In particular, Part II explores the argument that the actor’s intent is necessary to determine whether or not a law or policy distinguishes among people on the basis of a suspect trait. Part III explores objections meant to show that bad intentions contribute, at the very least, to rendering an action wrongful. The article finishes by concluding that, as far as discrimination is concerned, it is not the thought that counts

Rationing and Disability: The Civil Rights and Wrongs of State Triage Protocols

The COVID-19 pandemic and the unprecedented natural disasters of 2020 remind us of the importance of emergency preparedness. This Article contributes to our legal and ethical readiness by examining state “Crisis Standards of Care,” which are the standards that determine how medical resources are allocated in times of scarcity. The Article identifies a flaw in the policy choice at the heart of the standards: the standards focus on saving as many lives as possible but, in so doing, will predictably disadvantage the ability of people with disabilities and racial minorities to access life-saving care. To date, scholarly attention has focused on explicit exclusions of people with particular medical conditions or the standards’ failure to be sufficiently individualized. Amending the protocols to address these concerns, while important, will simply tinker at the margins. The more consequential and harder question is how states should balance the demand to save as many lives as possible while also ensuring that people with disabilities and other vulnerable groups are treated fairly. To answer that question, this Article distills and analyzes four rationing principles that animate the state standards and contends that none ultimately balances these two important aims in a manner consistent with the Americans with Disabilities Act (ADA) and the moral commitments on which it rests. It thus provides a moral and legal framework to guide the ongoing revision of the standards. The Article concludes by proposing a novel, alternative rationing system that reserves resources to accommodate both efficiency and equity, thereby better instantiating the balance that undergirds the ADA