Balkinization: Why I’m not running in the New Haven Labor Day Road Race?

Why I’m not running in the New Haven Labor Day Road Race?

Ian Ayres

Tommorrow is the 28th running of the New Haven Labor Day Road Race – the premier 20k contest in our country. I love the race and have had some of my happiest memories as a runner competing in the event over the years as a denizen of the elm city.

But I’ve stopped running the race because the race discriminates against non-citizens. Anyone is allowed to enter, but the prize money is only open to U.S. citizens.

This citizenship disparate treatment is troubling – but I am not against all citizenship discrimination.

No, the reason I am not running is because of the racial disparate impact of the rule.

In the old days, the bulk of the prize money for male runners year after year went to Africans runners.

You could rest assured that come the Tuesday morning after Labor Day, the New Haven Register would show a photograph of two or three Africans battling out at the finish line.

But all that changed about 5 years back when the race refused to pay any prize money to African runners – no matter how much faster they ran.

Since the change, the winners have gotten both slower and whiter.

I am not claiming that the road race official made the change because it would predictably hurt African runners – but they certainly knew what would happen. (And it’s possible that it’s easier to generate sponsorship dollars for a race that white will win).

But how should we think about this disparate racial impact?

Well the legal standard is actually not a bad place to start. Not all employer rules that have a disparate racial impact violate our civil rights laws. A decisionmaker can avoid liability if it can show that (i) the rule has some legitimate justification and (ii) there is no alternative rule that accomplishes the same objectives with a lesser disparate impact.

I worry that the American-only rule does badly on both of these grounds.

First, I am skeptical of the claim that it is necessary to discriminate against foreigners in order to grow better U.S. athletes. I’m not crazy about the privileging of U.S. athletes in the first place. But even if we want to, there is no compelling evidence that giving them chances of winning money in rigged races (with intentionally weak competition) is a good way too get them ready for the Olympics.

Let’s be clear this is an antimeritocratic rule – slower runners get to have a crack at $38k in prize money. This is old-fashion protectionism plain and simple. We should be skeptical about a claim that it is necessary to sacrifice both merit and equality. We should be skeptical of a rule that reduces quality and clearly burdens minorities.

But even if we think that U.S. runners need financial support more than the African runners (who are much more likely to come from families with truly dire poverty), the extreme nature of the rule fails the second standard justification test – which asks whether there are less exclusionary rules that could achieve the same results.

Disparate impact analysis does not require extremes. I wouldn’t have a problem if the Road Race set aside some money for the first American runners. In fact, I used to run in the race when it had this system (but the “US only” money was appropriately less than the prize money for really coming in first). I’d even be open to considering a system where the race added a penalty to the time of foreign runners – at least this would give true merit a chance. But imagine how unpalatable this system would be. Yet somehow the public accepts an even more extreme form of discrimination – effectively an infinite time penalty.

Imagine that major league baseball imposed a rule that only US citizens could get paid – would the public support the predictable racial impact as justified? I would not.

Some people might reasonably ask why anyone should be worried at all about this admittedly nonproblem, when there are people dying in the street in New Orleans. But on reflection, the government’s nonresponse to Katrina also has had predictable racial impacts that also intersect powerfully with poverty.

Being mindful of unjustified disparate impacts is not just for the other guy. The choices that we make in our own daily lives are good places to start.

So I’ll be sitting this race out and looking again at the front page of the New Haven Register come Tuesday. I’ll bet dollars to doughnuts that the top three finishers will be white.

Posted 10:10 PM by Ian Ayres [link]

Comments:

Do you think it's ever justifiable to open a contest or event only to U.S. citizens purely on the ground that American nationality constitutes a community which is worth supporting, qua community, and which may legitimately hold members-only events as a way of instantiating and fostering that community? I'm not sure, but it seems at least plausible to me.

As an analogy: surely someone could legitimately hold a contest open only to, say, his or her own family. A grandfather has his grandkids run in a race, with ample time for them to train, and he promises the winner $500. Surely this would be justified even apart from any instrumental benefit to the kids' fitness, just as a fun sort of thing for a family to do. (A rich family, obviously.)

Is nationality not a legitimate community like family? I don't know. Probably sometimes it is, and sometimes it isn't. Personally, the idea of holding a citizens-only race doesn't bother me much in and of itself, though I would be somewhat troubled by the lack of comparable opportunities for non-citizens.

Another point: discrimination against non-citizens bothers me much more on the local level than on the state or federal level. I have long thought that non-U.S.-citizens ought nevertheless to be considered "citizens" of the cities or localities where they live.

# posted by

anacoluthons : 10:25 PM

in answer to iridium question as to whether or not it's ever justifiable to open a contest or event only to U.S. citizens, etc., we already do have such a sporting event in which citizenship is a requirement, and nobody complains, nor do i believe they should. it's called the olympic trials. there are events in which surface discrimination is acceptable. i'm not quite sure that the new haven 20k is one of those, and like ian, would prefer to see some sort of lesser prize available to the first american citizen finisher.

once again, the organizers of the race seem to have missed the point. most atheletes who compete in these races do not do so for the prize money, they do it for the fun and the camradarie of being there. it is a thrill for them to see and be able to say they were in a race with the best in the world, which in this case and these days generally means the african nation distance runners. the organizers zeal to award american runners therefore punishes two classes, the americans who want to participate with the best, and the best, who realize they are not wanted there, and will now not show up.

# posted by

phg : 7:47 AM

Good News . . . Kind of

Yesterday, the "American only prize" rule did not have as strong a racial disparate impact as I predicted.

The race was run by an African-American man Abdi abdirahaman (and duly reported with picture in the New Haven register (see http://www.nhregister.com/site/news.cfm?newsid=15159373&BRD=1281&PAG=461&dept_id=7592&rfi=6). The other top male runners were white.

But even the victory of Abdiraham suggests the real mechanism by which the American-only rule improves the quality of American runners. The requirement (which is applied by several races) induces Africans to become U.S. citizens.

You see Abdirahman was born in
Somalia, and only became a US citizen in 2000.

http://www.somalilandtimes.net/2003/60/6013.htm

The good news is that the prize limitation has a smaller racial impact (because of the citizenship switching bribe). But the concern is whether bribing Africans to become U.S. citizens is a legitimate rationale to justify excluding those even better runners who are unable to naturalize. The U.S. olympics team becomes a bit like the Yankees -- the best team money can buy.

# posted by

Ian Ayres : 12:01 PM