Excerpted from: Susan D. Carle, Acting Differently: How Science on the Social Brain Can Inform Antidiscrimination Law, 73 University of Miami Law Review 655 (Spring, 2019) (451 Footnotes) (Full Document)

SusanCarleIn one of many extraordinary moments in the last U.S. presidential campaign, then-candidate Donald Trump mocked the arm movements of a reporter with a condition that causes bent wrists. Holding his hands in a twisted position, Trump proclaimed, “You gotta see this guy,” and flailed his arms to “imitate” the reporter's disability. This was far from the only time Trump ridiculed or condemned others for allegedly acting differently. Trump falsely characterized social groups as acting differently in many ways. His campaign rhetoric included repeated claims that Mexicans commit crime, engage in drug dealing, and commit rapes and murders. Trump characterized Syrian refugees as supporting ISIS, Muslims as supporting terrorism, and African Americans as well as Latinos as committing the “overwhelming amount of violent crime in our major cities.” In all of these and many more instances, Trump linked a social category with allegedly aberrant ways of acting; in other words, he reviled people for acting differently.

Social scientists correlate Trump's rhetoric with a rise in the social acceptability of expressing prejudiced opinions. Hate-watch groups document a significant uptick in the incidence of hate crimes throughout the United States. Even more disturbingly, Trump's rhetoric against those who allegedly act differently may have helped rather than hurt him in the polls in 2016. Something about mocking others based on behavioral stereotypes appealed to many voters.

It comes as no surprise that people may be reviled based on perceived conduct differences. Examples from classic racist, anti-Semitic, and homophobic rhetoric vividly illustrate this. Reconstruction Era racist Ben Davis described the “Jim Crow Negro” as “an abnormal product” who lives “in the realm of the superficial,” lacks good character and respectability, and is an “idle, educated misfit.” Nazi Reich Minister of Propaganda Joseph Goebbels condemned Jews as “instigators, rabble-rousers and slave drivers,” who are “bloodthirsty and vengeful agitators and political lunatics,” exhibit “rage and deep hatred,” “follow a different moral code,” and engage in “countless crimes.” In 1978, best-selling author Tim LaHaye described gay people's behavior as angry, obsessively selfish, and exhibiting a “sinful life style that contagiously reaches into the minds of otherwise normal young people,” while California Senator John Briggs argued for firing all gay teachers because “most of them are seducing young boys in toilets.” I need not further belabor this disturbing point: “othering”--or rendering subhuman a reviled out-group--often involves characterizing that group's behavior as abhorrently different.

Perceived difference in the way people act can trigger ill treatment in several ways. One involves actual differences in human beings' biological makeup, as in the example involving the reporter Trump mocked for having a physiological difference. Disability advocates have begun to use the term neurodiversity to capture these biologically based human variations. I have previously written on discrimination based on neurologically based differences in how people behave socially, so here I will not focus on that topic--i.e., on discrimination on the basis of acting differently that generally falls within the ambit of disability rights law. My prior analysis in that article, however, provides an important building block for the arguments I present here. It matters not whether behavioral difference arises from an “impairment” or any other source: such difference often constitutes a basis for invidious discrimination.

The examples of racist, anti-Semitic, and homophobic rhetoric I just offered involve another kind of acting differently. In those examples, hatemongers use allegations that social out-groups act differently as a reason to revile them. Just as perceptions that someone acts differently can produce discrimination in the disability law context, perceptions on the basis of group identity can generate discrimination against any social out-group whose members are perceived as different based on socially constructed meanings attached to perceived behavior.

A third type of discrimination arises from negative reactions to individuals or groups who act differently as a means of protest. Dissidents exemplify this third kind of acting differently; included in this category are whistleblowers, who buck codes of loyalty and secrecy in work groups to expose organizational wrongdoing. In this Article, I argue that retaliation against dissenters involves another form of discrimination based on acting differently.

Antidiscrimination law currently treats acts of discrimination against persons with social disabilities, members of social outgroups, and dissenters largely as separate forms of discrimination. My argument, based on social neuroscience, is that, at bottom, each of these three varieties of illegal discrimination are much the same. All arise from similar, neurally based phenomena. Antidiscrimination law should better recognize this.

This Article is the last in a series of three I have devoted to the general topic of antidiscrimination law and human beings acting differently. My prior articles focused primarily on legal doctrine, as well as its development as a matter of civil rights history. This Article steps away from the details of law and legal history to take a broader, tentative interdisciplinary social science perspective. With the eyes of a neophyte, I explore the insights of experimental science--especially the relatively new interdisciplinary field called social neuroscience, which explores (among many other topics) how and why the brain tends unconsciously to discriminate against others perceived to have behavioral differences.

Legal scholars have long mined the findings of psychology to assist them in constructing legal doctrine. Over the past few decades, they have begun exploring the research on implicit bias to help explain why illegal discrimination continues to be rampant despite decades of prohibition. It is important to point out at the outset that implicit bias does not completely explain discrimination. It does not, for example, capture the many complex historical and structural forces that present “built-in headwinds” for traditionally excluded outsiders. But the science on implicit bias can provide part of the explanation for the complex phenomenon of persistent discrimination in U.S. society.

In this Article, I mine social neuroscientists' work on how and why implicit bias occurs, focusing on the science about how the brain automatically and non-volitionally processes cues that mark persons as in-group versus out-group members. What often matters to the brain is not status or identity per se, but what the brain perceives about how a person's behavior reflects identity. These findings suggest that antidiscrimination law, too, should focus more on the links between perceptions of behavior--or “acting differently,” as I will put it throughout this Article--and discrimination.

The normative arguments that arise from this focus can produce both modest and more far-reaching proposals. Modest proposals call on judges, lawyers, scholars, legislators and others to focus on how persons may be discriminated against based on how they are perceived to act in relation to their identities. In U.S. law today, statutory prohibitions on discrimination in employment--the area of antidiscrimination law on which I will focus here limited to a handful of types of status distinctions. In federal antidiscrimination law, these protected statuses are race and color, sex, national origin, religion, age, and disability. In the eyes of Congress, only discrimination based on these statuses raises sufficient concerns to warrant antidiscrimination protections, usually because of the severity of the nation's history of mistreatment against these identity groups. Put most simply, it is illegal for an employer to discriminate against persons based on their status as members of traditional outsider categories.

To be sure, illegal discrimination continues to occur based solely on perceived status, i.e., based on visible markers connecting a person with a traditional outsider group. However, as many antidiscrimination theorists point out, much of this stark “first-generation” discrimination has gone underground. In today's second- (or even third- or fourth-) generation landscape, discrimination often takes place in a manner that is more subtle and complex.

Social neuroscience adds science-based, empirically derived discoveries about how the brain works, showing that it is often perceptions of behavior-- i.e., acting differently--rather than social identity per se, that triggers bias. These findings lend support to longstanding reform proposals that would turn courts and other policy influencers' attention toward the performance of identity, rather than identity per se, in detecting and rectifying illegal discrimination. These findings suggest some other relatively modest doctrinal reforms as well, as I will discuss in Section II.A.

A more far-reaching proposal would call on policy influencers to embrace a general human right “to act differently.” The broad principle of promoting greater tolerance for human difference emerges as a key point of consilience--meaning “agreement between the approaches to a topic of different academic subjects, especially science and the humanities” social neuroscience and legal theory. Just as this principle emerges from social neuroscience, disparate legal scholars, writing in a variety of subfields spanning antidiscrimination theory to civil rights history, have moved toward such a concept.

As I will show in Part II, leading scholars in these fields have in recent decades begun to explore the right to act differently, at least in an abstract, aspirational way.

Current U.S. law comes nowhere near supporting such a broad right, however, and it might be unworkable and even counterproductive to try to legislate tolerance in any event. Recognition of a general human right to act differently thus may not be best achieved through legal prescription. Instead, valuing a general human right to act differently may be an aspirational norm toward which antidiscrimination law can “nudge” society even without a direct, formal, or “hard law” mandate. The time appears ripe to explore these possibilities arising from the emerging consilience between fields. This Article sets out to do so.

This Article proceeds as follows.

After this introduction, Part I lays out the basic social neuroscience findings relevant to my argument.

Part II links this social neuroscience to the ongoing conversation among legal antidiscrimination scholars, and traces the insights that emerge from such a mapping in order to discern fruitful paths forward for antidiscrimination law and policy. Specifically, it recommends (1) expanding recognition of discrimination based not only on protected status but also how persons are perceived as acting differently; and (2) promoting antidiscrimination law's broad principle--if not, at this point, doctrine itself--recognizing a general right to “act differently” within reasonable bounds.

Before continuing, it will be helpful to address some of the likely objections a law-focused audience may raise to this project. The first obvious question is, why turn to social neuroscience To be sure, overreliance on social science (or any other discipline), has many dangers: One need only invoke the Nazis' use of neuroscience to horrific ends to win this point. However, this point does not prove its opposite--i.e., that experimental science may not helpfully inform legal theory. The task is a pragmatic one: to use what is useful, always with an appropriate dose of skepticism and detachment from strong conviction; to discard what is not; and, as the proverb goes, wisely to judge the difference. Whether this Article accomplishes that middle way is up to the reader to decide. What I offer is a contribution to a complex collective project of looking for points for joinder across fields of human knowledge (as well as points for interdisciplinary critique) in times that demand fully mining the best ideas we can find.

Science does not answer value questions; it cannot tell us what kind of society we should strive to achieve. Experimental social science instead adopts a utilitarian moral outlook; it accepts that, from a utilitarian perspective, prejudice is a counter-utilitarian waste of human resources that society could put to higher value use. With these assumptions in place for purposes of establishing a starting place, this Article explores how social neuroscience might help shape antidiscrimination policy and law.

Other pragmatic considerations motivate this project as well. Current political and social conditions call for modes of discourse anchored in information derived from the use of scientific methodologies. In a world of “alternative facts,” establishing verifiable and replicable findings matters far more than it did in the recent past. Whereas two decades ago legal scholars enjoyed exploring postmodern theories on the relativity of truth, today the same scholars find themselves extolling the ideas of the Enlightenment. These ideas include the basic tenets of scientific thinking, which involve generating valid empirical observations, testable hypotheses, and replicable results. Empirically tested, well-documented, peer-reviewed, published, and replicated findings provide an initial groundwork for arguments about policies, principles, and values. They do not end arguments but they should at least figure into the discussion.

Of course, political and ideological predispositions influence experimental social scientists' (as all scholars') interests. But the scientific method's emphases on verification through statistical analysis and replication of findings provides a disciplining check. I therefore rely heavily on leading experts' syntheses of research findings considered highly respected work in the field. From the cautious perspective of an interested outsider with an overlapping research agenda, I turn to recognized experts in social neuroscience subfields to build a conversation between social neuroscience and legal antidiscrimination theory.

Objections to this project can come from the obvious inability of brain-based science to predict individual human behavior, along with the related problems of attempting to use neuroscience evidence in particular legal cases. I hasten to point out that these are not the topics of this Article. Nor do I in general venture into the many thorny questions neuroscientists face about what regions of the brain are involved in various neural functions; problems concerning the locations of various brain-based processes do not matter to the questions I investigate here.

A final likely objection comes from the historical--and current-- association of social neuroscience with a field that scholars now call evolutionary biology. Many progressives oppose evolutionary biology's claims that human social behavior arises from the dictates of evolution. It is certainly the case that many experimental social scientists with a natural science orientation are intellectually committed to a wide range of versions of evolutionary biology. One may reject evolutionary biology--or be agnostic or skeptical (as I am)--and still find the experimentally based, replicated, and statistically significant findings of social neuroscience highly interesting and informative (as I do). In other words, one need not accept all of the intellectual commitments of natural science-based experimental psychology to gain a great deal from an interdisciplinary conversation. With these preliminaries cleared away, I put that conversation in motion below.

[. . .]

This Article has argued that antidiscrimination law should not focus solely on status or identity discrimination, but should also embrace the concept of discrimination based on negative social perceptions of those viewed as acting differently. To support this thesis, I have explored the emerging consilience between the findings of social neuroscience and related fields, on the one hand, and legal antidiscrimination theory, on the other.

Social neuroscience has shown that unconscious, non-volitional processes in the human brain detect subtle, socially relevant behavioral differences. The brain's perception of these subtle cues can activate neural processes involved in warning about potential danger. These automatic processes in turn can lead people to shun, negatively judge, treat badly, and illegally discriminate against persons they perceive to be acting differently--in other words, as “other”--based on whatever differences a society defines as socially salient.

In modern social conditions, human beings often deal with persons who are different from themselves. Indeed, pluralism and labor specialization are keys to creativity and efficiency in complex modern societies. Modern societies, which are politically based on pluralism and economically based on labor specialization, could not exist without a rich variety of differences among people. The non-volitional brain processes that can react negatively to perceived differences are maladaptive in present social conditions.

It is by no means the case that human beings are incapable of interacting across differences. Interacting positively across differences is a perfectly doable--indeed, often a highly enjoyable--activity. The problem is that today's political conditions raise increasing dangers of automatic neural processes being triggered so as to cause discriminatory harms. It thus has become increasingly imperative that antidiscrimination advocates, using evidence-based research, promote appreciation for individuals' “acting differently” (within the bounds of others' rights) as a foundational value in antidiscrimination law.

Professor of Law, American University Washington College of Law (WCL).