Law & the Courts

Rashida Tlaib Succumbs to the Group-Membership Fallacy

Rep. Rashida Tlaib (D-MI) at a House Oversight and Reform Committee hearing on Capitol Hill, July 18, 2019. (Joshua Roberts/Reuters)
The congresswoman told the Detroit police department that non-blacks should be barred from working as analysts in the bureau’s facial-recognition unit.

Representative Rashida Tlaib (D., Mich.) recently told the Detroit police department that non-blacks should be barred from working as analysts in the bureau’s facial-recognition unit. Why? Because “non-African Americans,” she insisted, “think African Americans all look the same.”

Is that right? Here, Tlaib takes a nasty sentiment held by an archetypal racist in the antebellum South, superimposes it onto the country today as if nothing has changed in the intervening 200 years, and casts aspersions on groups on the basis of that error.

Non-blacks, as a group, think that “African Americans all look the same”? I’m not sure that this was true in 1819, let alone today. Facial recognition “analysts need to be African American,” the freshman congresswoman demanded, to the visible dismay of the black police chief, “not people that are not.”

How, in the world of Tlaib’s making, will we determine who gets counted as an “African American” for purposes of employment at the Detroit Police Department? DNA tests? Self-identification? The one-drop rule?

Sure, the use of facial recognition software in criminal investigations is fraught. It raises a number of potential procedural issues given the software’s yet-uncertain accuracy. The human intermediaries employed by law enforcement to parse the software’s results are, no doubt, subject to their own biases. But even with that said, it’s unclear why people of a certain melanin count should be unilaterally barred from the profession. What would Tlaib have the police department do? Ignore federal non-discrimination law because she, a freshman congresswoman from Michigan, happens to have a low opinion of non-black facial-recognition analysts?

Detroit police chief James Craig (who, as it happens, is black) rebuked Tlaib’s proposal, saying that he puts his “trust” in “people who are trained regardless of race and regardless of gender.” He later said: “The fact that she made that statement, what does that say to the members of this department who are analysts, who are trained, who are white? That they in some way can’t do their job professionally? That’s insulting.”

Tlaib posted a response Wednesday, doubling down on her initial claim — to no one’s surprise. She invoked social science which purports to demonstrate that facial recognition rates are lower across races than among one’s own racial group. Since Detroit is a heavily black area, the logic goes, only black police officers should analyze the facial recognition data.

Assuming, for argument’s sake, the studies she cites are accurate, Tlaib seems to suggest that race is a “bona-fide occupational qualification” for certain law-enforcement roles in Detroit — an available exemption to the non-discrimination principle set forth in Title VII of the 1964 Civil Rights Act.

But can membership in a racial group really be an occupational qualification for law enforcement in the same way being a woman is an occupational qualification for Hooters waitresses, or being Catholic is an occupational qualification for parochial school principals? Tlaib appears to suggest that group disparities on facial-recognition tests should bar members of those groups from participating in Detroit’s facial-recognition unit. Obviously, inter-group disparities should not be used to disqualify broad classes of people from jobs they might well be individually qualified for.

There are certain things that might legitimately disqualify a person from holding this job. Demonstrated racial animus, for instance, would seem a fine reason to deem someone unfit. Like Spike Lee, for instance: “I give interracial couples a look,” the putative civil-rights hero told Esquire in 1992, “Daggers. They get uncomfortable when they see me on the street.”

Indeed, it would seem reasonable to avoid hiring someone who shares Mr. Lee’s views for a job on the local police department’s face-recognition software unit, because it’s not clear that his biases won’t color the way he “looks” at the relevant surveillance footage and head-shot database. But it’s because of how he looks — the verb — not what he looks like.

Perhaps Rashida Tlaib would prefer we lived in a world in which the hiring policies of the nation’s police bureaus were subject to whatever it is that she happens to “think” about the qualifications of various racial groups on random Mondays in September. Thankfully, we do not. But we now know how Rashida Tlaib presumes non-black people view their African-American neighbors.

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