by Sherry F. Colb
In my Verdict column for this week, I discuss a practice that some courts have accepted whereby minority defendants' IQ scores are adjusted upward so that they become eligible for execution (despite their initial score that would have placed them in the category of intellectually disabled). Under Atkins v. Virginia, the intellectually disabled are ineligible for execution, so the referenced practice provides a way to execute people who are otherwise exempt from execution, and it does so on the basis of race. In my column, I suggest that this practice is not only a plain violation of the Equal Protection Clause that the Supreme Court should address, but that it is highly vulnerable to satire as well.
In this post, I want to suggest that condemning the raising of IQ scores in the capital context does not carry with it an implicit condemnation of skepticism about such standardized test scores for minority applicants for educational or employment opportunities. People of extremely high intelligence can, because of cultural biases and such phenomena as stereotype threat--where anxiety about one's membership in a stigmatized group can threaten to derail one's performance on a task in which such stigma is most salient--underperform on particular sorts of tests. Indeed, they can underperform on many sorts of tests, a fact that should lead evaluators to be mindful about relying too heavily on tests in deciding when to hire or admit minorities to educational and other institutions. To be mindful is to look at the whole person in these contexts and make sure not to miss the many highly able and promising candidates whose test performance fails to accurately reflect what they would bring to the position for which they are applying.
The practice of upwardly adjusting IQ scores of minorities to make them eligible for execution does exactly the opposite. Rather than looking closely at each person and being mindful of what he or she brings to the table, it renders presumptively intellectually disabled individuals eligible for execution in a categorical and across-the-board fashion. It does so, moreover, without any important goal at issue. Unlike the job market and the educational sphere, death row is not currently plagued with a paucity of "qualified" minority applicants. And indeed, it is not necessary that we execute anyone, though it is plainly necessary that we employ and educate people, and that we do so in a manner that refuses to perpetuate past injustices.
To the extent that anyone might view the upward adjustment of IQ scores for Atkins purposes as a reductio ad absurdum, showing that affirmative action is invalid, his or her conclusion is accordingly flawed.