My colleague Tom Traina has an interesting piece about a recent case in New York wherein a judge rejected actuarial tables because they make racial distinctions.
Staten Island ferry passenger James McMillan was injured when the ferry crashed into a pier. When calculating damages, the state of New York presented actuarial evidence that suggested that M. McMillan, as a black man in New York, has a lower-than-average life expectancy. However, in the opinion of Judge Jack Weinstein, the use of race-specific actuarial tables was improper.
Judge Weinstein gave three reasons in his opinion for the exclusion of race-specific tables. The first was his conclusion that race-based tables were an inadequate as a matter of science, and a violation of the Fourteenth Amendment to boot. First, the judge pointed to the lack of a biological definition of “race”, and concluded that race is a social construct rather than a biological trait. From this assertion, the judge concludes that race-based tables are inadequate not only as a matter of law, but as a matter of science.
He concludes that:
By forcing life actuaries to move away from a more accurate predictor of lifespan towards one that’s politically correct, the court is implicitly placing its own notions of racial justice at a higher priority than accurately assessing damage done to the plaintiff. As a social policy, this might be an acceptable trade-off, but it’s a trade-off that the legislature should make, not the courts.
I myself don’t have much of a problem with a judge making this ruling. The judge ruled in this case that, in essence, there’s no way to scientifically define someone’s race, and therefore no race-based actuarial table could be accurate. That’s certainly a finding of fact within the judge’s purview on this matter. And if race-based actuarial tables can’t be reliably applied to individuals, then using them in some instances is a violation of due process.