On “Color-blind” and the Algorithm
“Earthling?”
I jump and bump my head on the underside of a bookshelf. It is a quiet Monday in late summer, right before the start of the school year. I am unpacking boxes of books. To suggest that I am distracted would be an understatement. Yet, when I hear that airy call behind me, I know who it is.
“AJ, hello,” I call out as I turn to open yet another box of books. “What brings you back to visit me on this planet?”
“Earthling, I have been quite interested to learn more about race, algorithms, and law after our last conversation. Footnote #1 content: For more on AJ’s first visit to my office, see Jessica M. Eaglin, When Critical Race Theory Enters the Law & Technology Frame, 26 MICH. J. RACE & L. (SPECIAL ISSUE) 151, 151–54, 168 (2021). I need your help.”
I sigh. It’s very early in the day for such a conversation. But such is the way with this curious alien, who likes to appear before (or, in this instance, behind) me at inopportune times.
“If everyone knows race in society, why does it matter whether an algorithm ‘knows’ race in law?”
“Well, everyone is aware of race in society. But most people do not understand race at all. That’s part of what my research considers in the context of criminal law reforms.” I begin to stand up. “In law—”
You might think the presence of an alien would startle me. It did not. But when I turn around to address AJ directly, I jump. The alien no longer looks like an alien to me. It looks, instead, a bit like a human.
“AJ, I don’t mean to be rude here, but what happened to your green skin and your three eyeballs? Why aren’t you hovering in the air like before? Today you look like …a human.”
“Earthling, I take many forms. My people operate mostly through what you might call sensory engagement. You sensed me as a three-eyed green thing the last time we spoke. Those features informed you that I am not of your world, and so that is how I appeared to you. I wish to communicate with you, and so you ‘hear’ me in your language, though my words are not audible to others.
“Today, I have decided to take another form. I am trying to understand your people and their relationship to technology and law, so I decided to try to look like one of your people, too. And since I am engaging with you, I thought I might as well look like you.”
How strange. The alien does look a bit like me. It is a little shorter than me. It has the same tightly coiled hair. It has brown skin like mine, though of a slightly different shade. While my brown eyes are bespectacled with thick black glasses, it has no eyes. Rather, empty blue light shines from the spaces that would be eyeballs on a human face. Each gaping hole shines brightly, like a beacon from a lighthouse. Where the third eye once sat on its forehead, a blue amethyst jewel now rests. Footnote #2 content: See Paul Lewin, Cover Art for the Limited Edition of N.K. JEMISIN, HOW LONG ‘TIL BLACK FUTURE MONTH? (Subterranean Press 2020) (2018), https://subterraneanpress.com/how-long-til-black- future-month-1/ [https://perma.cc/DZN7-FB7N] (last visited Apr. 14, 2024).
I take a deep sigh. It will be a little more challenging to “talk” to AJ now. When AJ looks like an alien, it is easier to remember that we do not share the same sets of assumptions about the world. Footnote #3 content: Easier, but not easy. See Eaglin, supra note 1, at 153–54 (struggling to explain race to the alien without shared social assumptions). Science fiction is a mode through which we grapple with and imagine the intersection between science, technology, and society. Cf. Sheila Jasanoff, Future Imperfect: Science, Technology, and the Imaginations of Modernity, in DREAMSCAPES OF MODERNITY: SOCIOTECHNICAL IMAGINARIES AND THE FABRICATION OF POWER 1, 1–2 (Sheila Jasanoff & Sang-Hyun Kim eds., 2015) (“[W]orks in this [science fiction] genre are also fabulations of social worlds, both utopic and dystopic.”). Shapeshifting is a common trope through which defamiliarization occurs in the fantasy and science fiction genres that undergird some threads of Afrofuturism. See generally, e.g., N.K. JEMISIN, THE BROKEN KINGDOMS (2010). Defamiliarization “refers to the many ways that an author can make a familiar thing seem strange or different so that this familiar thing moves from mundane and predictable to surprising, interesting, and thought-provoking.” SAMI SCHALK, BODYMINDS REIMAGINED: (DIS)ABILITY, RACE, AND GENDER IN BLACK WOMEN’S SPECULATIVE FICTION 114 (2018). It is “a major nonrealist method through which black women’s speculative fiction reimagines the possibilities and meanings of the categories of (dis)ability, race, gender, and sexuality and thereby change the rules of interpretation and analysis.” Id. In deploying speculative fiction within legal storytelling, I consciously build upon the work of critical race legal scholars who infuse narrative and perspective into legal scholarship as a means to challenge powerful assumptions that shape legal discourse. See, e.g., Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 MICH. L. REV. 2411, 2413 (1989) (“Stories, parables, chronicles, and narratives are powerful means for destroying mindset — the bundle of presuppositions, received wisdoms, and shared understandings against a background of which legal and political discourse takes place.”); PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS 7–8 (1991) (“I would like to write in a way that reveals the intersubjectivity of legal constructions, that forces the reader to both participate in the construction of meaning and to be conscious of that process. . . . To this end, I exploit all sorts of literary devices, including parody, parable, and poetry.”); DERRICK BELL, FACES AT THE BOTTOM OF THE WELL: THE PERMANENCE OF RACISM 158–94 (1992); I. Bennett Capers, Afrofuturism, Critical Race Theory, and Policing in the Year 2044, 94 N.Y.U. L. REV. 1, 26–29 (2019). Fusing speculative fiction and legal storytelling offers a lens to surface and interrogate open-ended, collective belief formation in the United States. With AJ in human form, I may quickly forget. But who am I to impose a specific body form on a visiting alien? I’ll just have to make do.
“Back to my question, Earthling. If everyone is aware of race because it is socially determined, why does it matter whether and how algorithms are aware of race in law?”
“Interesting question. People do not agree on why it is important, though there is a growing consensus that it is. Footnote #4 content: See, e.g., Sandra G. Mayson, Bias In, Bias Out, 128 YALE L.J. 2218, 2228 (2019) (“As the use of criminal justice risk assessment has spread, concern over its potential racial impact has exploded.”). It may be about legitimacy, efficacy, social justice, or some combination of all three. Legal scholars and policymakers increasingly frame their interventions on the issue through the term ‘colorblind.’ Footnote #5 content: “Colorblind” is a symbolic metaphor that “profoundly shapes popular understandings of race, law, justice, and equality, and for many Americans embodies a kind of collective racial common sense.” MARK GOLUB, IS RACIAL EQUALITY UNCONSTITUTIONAL? 3 (2018). As a metaphor, legal discourse tends to use the term as a single word, often affixed with a suffix. See, e.g., Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 210 (2023) (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 416 (1978) (Stevens, J., concurring in part and dissenting in part)); KHIARA M. BRIDGES, CRITICAL RACE THEORY: A PRIMER 40–41 (2019) (“Traditional civil rights discourse identifies this constant race-thinking as the flaw of the pre-civil rights era. . . . It designates colorblindness as the moral, legal, and political compass that ought to guide the nation.”). For insight into the origin of the “language of color-blindness,” see GOLUB, supra, at 63–93. But I don’t know how much that helps, either. There isn’t a settled meaning to the term in relation to the algorithm.”
“What is color blind, Earthling?”
“‘Color-blind.’ Footnote #6 content: By separating the term into two words, the alien just highlighted that this common metaphor has two parts, color and blind. In contrast, legal and popular discourse tends to treat the two words as a single metaphor. See supra note 5. Throughout this text, I use the term “color-blind” to underscore that this metaphor has two distinct parts, an insight that is easily overlooked in legal and popular discourse. See infra note 81 and accompanying text. Here, the term ‘color’ connotes race.”
“But doesn’t race signify more than skin color?” Footnote #7 content: See Eaglin, supra note 1, at 152.
“Yes.”
“And what is blind?”
“Blind connotes a person who is not sighted. One who cannot see.”
“Your people debate over algorithms through the term ‘color-blind’ because the algorithm cannot ‘see’ race like all humans can?”
“Well, no, algorithms can infer race in society.” Footnote #8 content: See Aaron Rieke, Dan Svirsky, Vincent Southerland & Mingwei Hsu, Imperfect Inferences: A Practical Assessment, 2022 ACM CONF. ON FAIRNESS, ACCOUNTABILITY, & TRANSPARENCY 767, 767.
“Okay. So humans cannot see race in society?”
“Well, no, humans can see race in society too, even though sometimes they will choose not to recognize it.” Footnote #9 content: E.g., Cheryl I. Harris, Equal Treatment and the Reproduction of Inequality, 69 FORDHAM L. REV. 1753, 1758–59 (2001); Neil Gotanda, A Critique of “Our Constitution is Color-Blind,” 44 STAN. L. REV. 1, 6 (1991).
“Alright. But some people are blind and so they cannot see race in society?”
“Well, no, even people who are blind know race.” Footnote #10 content: OSAGIE K. OBASOGIE, BLINDED BY SIGHT: SEEING RACE THROUGH THE EYES OF THE BLIND 3 (2014) (“Despite their physical inability to engage with race on the very visual terms that are thought to define its salience and social significance, blind people’s understanding and experience with race is not unlike that of sighted individuals.”).
I pause. AJ’s head tilts slightly. The alien is waiting for more explanation. I’d better say something.
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