On Monday, I received press release from the law firm of Zuckerman Spaeder, the representatives of former NFL players Kevin Henry and Najeh Davenport, who are suing the league for racial discrimination. A federal court had just tossed their case and instead ordered mediation to resolve the dispute, to the chagrin of the firm. This lawsuit had revolved around Henry and Davenport’s contention that the league’s landmark, $1 billion concussion settlement doles out less to Black players because of a practice known as “race norming.” The “mediation” called for by the judge would not include representatives for the Black athletes, and instead involve just the league and the courts quietly scrubbing this practice, away from prying eyes.
I saw articles about this lawsuit as well in the lead-up to the Super Bowl, and a question had crawled into my brain over the last month: What the hell is “race norming,” and why is it being used to determine benefits for the concussion settlement?
The practice of “race norming” harkens back 40 years, when aptitude scores, as a part of federal jobs’ applications, were adjusted to account for the race and ethnicity of the person taking the test. It was an admission that these tests were in fact racially biased. “Race norming” was first used by the Carter Administration and then further implemented and extended by Reagan in 1981 (RINO!) before being subsequently outlawed by George H.W. Bush’s so-called “Civil Rights Act” of 1991. Again, the purpose of “race norming” was actually to counteract racial bias in aptitude tests. In other words, its goal was to correct racist practices, not to implement them. “Race norming” soon became a juicy target for the right wing, called by George Will “liberalism’s apartheid of compassion.” The bow-tied one further wrote in his 1991 syndicated column that “such ‘remedies’ so obviously poison society.” For Will and his ilk, attempted cures are always the scourge, while racism itself gets to fester without even a scant critique.
Yet here is “race norming”—supposedly a civil rights violation against white people—being used not to correct racial imbalances but to codify and exploit them. Because Black people have a higher rate of dementia as seniors—just a part of the poorer health statistics that haunt the Black community as a result of institutionalized racism—the league’s testing starts with the assumption that Black athletes have a lower cognitive functioning baseline. This makes it more difficult to show the effects of post-concussive syndromes and qualify for the settlement. This is racist as hell.
Henry and Davenport’s lawsuit has contended that if white, they would have received their share of the settlement, but were shut out because of the 19th century logic that, as Black people, their cognitive functioning was probably already impaired before they ever took the field. This contention wasn’t first made by Henry and Davenport. It was the clinicians who evaluate the former players for compensatory damages. who blew the whistle. They are the ones who feel hamstrung by the “race norming” barometers set forth and have admitted to one another that they are implementing a discriminatory process.
Roger Goodell’s response to this, made during Super Bowl week, was openness to changing the process, but he was also quick to say, “The federal court is overseeing the operation and implementation of that settlement, and we are not part of selecting the clinicians, the medical experts, who are making decisions on a day-to-day basis.”
However, there is a sleight of hand at play in Goodell’s comments, which are too slick by half. Yes, it’s true that the clinicians are not from the NFL, but it is their “Baseline Assessment Program” that chooses and pays for these “independent clinicians.” Also, it is the NFL’s concussion settlement program manual that makes the recommendation for clinicians to use what the manual calls a “full demographic correction,” where the cognitive score of players is measured up against people of the same “race.”
According to an e-mail attained by ABC news, one clinician wrote to another, “I’m realizing and feeling regretful for my culpability in this inadvertent systemic racism issue. As a group we could have been better advocates.”
Or as Najeh Davenport said to ABC News, “What the NFL is doing to us right now…when they use a different scale for African-Americans versus any other race? That’s literally the definition of systematic racism.”
The fact that the NFL in any form, approved of this practice in the determination of concussion benefits is in and of itself a scandal. It speaks to far grander problems in a league that depends upon the sacrifice of Black bodies and minds to survive, yet offers up few high-profile off-the-field job opportunities for any Black people, former players or not. The number of Black executives and head coaches combined can be counted on two hands, and the number of Black franchise owners stands at less than one. Their comfort with “race norming” feels more like a part of a bigger picture than an outdated manual or a clinician’s snafu. It demands nothing short of utter eradication. That a federal judge has called for the NFL to clean this up in the shadows of mediation, away from the eyes of player advocates, only speaks to how repugnant the practice has been.
