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

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.