Link to the full Poverty & Race Journal (May-September 2026)
by Jon C. Dubin
Introduction
Last year marked the 90th Anniversary of the Social Security Act of 1935. The Act created America’s largest social welfare cash benefit income security programs, eventually affecting over 96 percent of all Americans. They provide a lifeline for many, taking more Americans out of poverty than any other programs. These programs were the “cornerstone” or “crown jewel” of President Franklin Delano Roosevelt’s (FDR’s) New Deal; they were intended to provide a safety net and a baseline of economic rights and income security commencing at a time when material human suffering was at its zenith during the country’s greatest depression. Although FDR publicly touted this legislation’s “main objectives” as protecting “the security of the men, women, and children of the Nation against certain hazards and vicissitudes of life” and providing a “more equitable . . . means” for addressing “the consequence of economic insecurity,” history has shown that the Social Security cash assistance programs have fallen short in delivering on this promise of equitable or equal economic security for African Americans and other historically subordinated and underserved communities of color.
Among the various forms of government social welfare programs established by the Social Security Act and its amendments and administered by the Social Security Administration (SSA), Social Security is a social insurance program. It is also known as Old Age, Survivors, and Disability Insurance (OASDI). It is financed from separate trust funds for the Disability Insurance (DI) and the Old Age and Survivors’ Insurance (OASI) programs and supported by payroll taxes on the earnings of insured workers. Premiums in the form of Federal Insurance Contribution Act (FICA) taxes are automatically withheld from most workers’ pay-checks, enabling workers and certain family members to receive monthly benefits if the worker retires, dies, or becomes disabled. Both employees and employers pay FICA taxes of 6.2 percent on earnings up to a cap of $184,500 in 2026. FDR is reputed to have characterized the Social Security program as politically untouchable because of its contributory nature based on taxes from earnings; he famously declared: “with those taxes in there, no damn politician can ever scrap my Social Security program.”
When approaching retirement, old age, or death of a principal family wage earner, or confronting debilitating disabilities, the income supports from social security programs are particularly critical in communities of color. This is due to myriad factors grounded in a legacy of racial subordination and structural discrimination in several social systems and basic areas contributing to well-documented substantial disparities in generational and accumulated wealth and savings, lower and less consistent employment income, lesser access to other retirement assets from employment generating 401(k)-type plans and contributions or pensions, and disparate levels of poverty, extreme poverty, unemployment and indebtedness. This includes the consequences of systemic discrimination in: 1) employment—occupational segregation, greater dependence on employment involving arduous physical labor and unskilled low wage work; and ongoing discrimination in the labor market including in the lower wage, lower skill job market applicable for most Social Security claimants of color; 2) health care—including lesser access to quality and consistent health care and health insurance; 3) criminal justice—the debilitating consequences of racialized policing and mass incarceration; 4) housing and real estate—including pervasive housing discrimination, redlining and exclusionary zoning with resulting loss of generational housing wealth and the many disadvantages stemming from residential segregation and spatial isolation; and 5) education—segregation, disparate school financing, and resulting lesser formal educational attainment and opportunity, further limiting employment and remunerative choices.
Yet despite great reliance on and need for social security pensions and support in communities of color and a progressive contributory benefits formula that returns a greater portion of contributions to lower earners—the benefits formula still reinforces and locks in the consequences of those racially disparate structural legacies in other social systems by basing benefit levels on earnings and earning consistency. Moreover, Congress and sometimes the Social Security Administration (SSA) itself have further limited (or threatened further restrictions), in crucial access to available benefits producing even greater racial disparities. Admittedly, a focus now on Social Security’s racially distributional deficiencies can easily be overshadowed by unprecedented existential threats to both the social security programs and to the pursuit of racial justice more broadly through the MAGA agenda of the second Trump Administration and MAGA-leaning Republican majorities in both houses of Congress.
In the past year, the Administration’s makeshift Department of Government Efficiency (DOGE) fired or pressured out thousands of SSA staffers and 140 senior SSA executives. It has also substantially diminished SSA services to the public such as discontinuing phone service and placed all putative social security beneficiaries in jeopardy by providing DOGE’s staff with access to Social Security cardholders’ available private and personal work, medical, and other information leading a prominent member of the bi-partisan Social Security Advisory Board to label Trump Administration and DOGE’s actions as “The Greatest Threat to Social Security in its 90-Year History.” By the end of 2025, the Washington Post characterized the Trump Administration’s actions on the Social Security Administration (SSA)—“the sprawling federal agency that delivers retirement, disability and survivor benefits to 74 million Americans”—as a “hostile takeover” which concluded the 2025 calendar year “in turmoil.” The Washington Post’s examination revealed that the SSA’s “diminished workforce has struggled to respond to up to 6 million pending cases in its processing centers and 12 million transactions in its field offices — record backlogs that have delayed basic services to millions of customers, according to internal agency documents and dozens of interviews.”
The Trump Administration and DOGE have also made the Social Security Insurance program more politically vulnerable to assaults on its integrity or significant cut backs by labelling it a “Ponzi scheme” and a program riddled with “massive fraud” alleging at various times that “as high as 40 percent” of all callers to Social Security phone lines have been placed by alleged “scammers.” The President has amplified the Social Security fraud narrative with the assertion of “shocking levels of incompetence and probable fraud in the Social Security program” and the false claim that “millions of senior citizens over age 100—including some he maintained were older than 160—were collecting Social Security checks.” In addition, the Administration’s signature legislation of last summer—through the absurdly named “One Big Beautiful Bill Act” (OBBBA) of 2025—provided enormous tax cuts for the wealthy and massive reductions in funding to essential Medicaid, Affordable Care Act, Supplemental Nutrition Assistance (SNAP, formerly food stamps), and other social welfare-based programs. These cuts placed further direct and indirect pressure on the Social Security insurance programs, including through the loss of trust fund tax revenue, at a time when further supports are needed to avert impending trust fund insolvency and the inability to pay full benefits by 2032 according to the June 2026 report of the Social Security Trustees—a trend also substantially exacerbated by increasing income inequality.
At the same time, the Administration has launched a war on programs designed to address and ameliorate the country’s legacy of structural racial discrimination stemming from slavery, Jim Crow exclusion, racialized economic exploitation and segregation, redlining, and pervasive racial discrimination in housing, employment, voting, education and credit with resulting enhanced generational racial disparities in wealth, income and opportunity. The Administration has issued a series of Executive Orders prohibiting all efforts at racial diversity, equity and inclusion by programs and entities supported by federal funds and taking “all appropriate actions” to achieve the same result in the private sector. It has also directed the Department of Justice (DOJ) to pursue anti-DEI legal and law enforcement actions more broadly. The DOJ has since abandoned efforts at traditional civil rights enforcement actions on behalf of Black and historically subordinated groups and communities and has instead focused its resources on protecting and advancing the position of historically dominant white Americans. It has also taken a series of actions to sanitize and erase Black history and diminish and deemphasize the accomplishments and contributions of persons of color and women.
Notwithstanding the regressive currents of this temporal moment, American democracy ultimately requires a deeper understanding both of our racialized history and its ongoing, adverse distributional legacies embodied in law and policy and engrained in American life. Along those lines, efforts to chill or even erase African American history, including legal history, remains a serious impediment to progress towards a true multi-racial democracy. To do so requires exploration of distributional inequities in society including those within the enormous social security benefit programs even as these programs face unprecedented challenges. Indeed, awareness of such inequities may be most important in devising ways to strengthen and protect social security to vindicate the programs’ goals of enhancing economic security for all in times of the greatest threats to program sustainability and integrity.
Social Security’s racially exclusionary history and current disparities in benefit levels
The Social Security social insurance program’s inequitable legacy dates back to its New Deal origins in the 1935 Social Security Act’s exclusion of the disproportionately Black agricultural and domestic workforce from coverage. The racially adverse and disparate impact of these occupational exclusion provisions—excluding approximately 2/3 of the entire Black 1930’s workforce from social security insurance coverage — were well known at the time. The reasons for these exclusions and the resulting disparate racial impact were numerous and are vigorously debated to this day. Scholars who fully reject the significance of race and racial considerations, (including the SSA’s Public Historian in an article prominently displayed on the SSA’s current website), principally point to factors such as the exclusion provision’s origin as an amendment from Treasury Secretary Tom Morgenthau and his articulation of administrative and functional concerns and difficulty collecting social security taxes in these occupational categories.
Scholars who emphasize the primacy of racial considerations highlight factors such as the blatantly racialized and exploitative rhetoric of Southern legislators in debates on the Act considering their outsized power in Congress through leadership on most all of the major committees. Some of their comments candidly expressed a need to protect the postbellum Southern plantation agricultural economy and labor availability by withholding old age pensions and financial support from Blacks at least in the Act’s Title I welfare provisions, as well as adopting these same racially disparate occupational exclusions in New Deal labor law protections and using similar racialized rhetoric and rationales for labor protection exclusions. For example, Virginia Congressman Howard Smith, an avowed white supremacist, explained the economic motives behind denying or limiting life-support benefits under the Act, thereby keeping Black sharecroppers and domestic workers vulnerable and dependent on farm owners and other employers:
You take the average laborer on the farm, let us say, all through the country districts, and his earning capacity on an average over the past times has been from $20 to $30 a month. To put him on a pension at 65 of $30 a month is not only going to take care of him, but a great many of his dependents, relatives, and so on, who could much better be employed working on a farm.… Of course in the South we have a great many colored people and they are largely of the laboring class.
Southern commentators amplified Congressman Smith’s concerns about the Social Security legislation. An editorial in the Jackson Daily News—“the great champion of” Mississippi Senator Pat Harrison, Chairman of the powerful Senate Finance Committee overseeing the then-pending social security legislation, stated more bluntly:
The average Mississippian . . . can’t imagine himself chipping in to pay pensions for able-bodied Negroes to sit around in idleness on front galleries, supporting all their kinfolks on pensions, while cotton and corn crops are crying for workers to get them out of the grass.
Scholars emphasizing racial considerations influencing the Act’s exclusions, also point to Congress’s unquestioned knowledge and awareness of the substantial disparate impact on Black workers of the exclusion amendment as well as Congress’s disregard of Black community leaders’ advocacy against the exclusions in Congressional testimony. Some also de-emphasize or challenge the seriousness or presumed unmanageability of administrative obstacles to coverage of these worker categories. They reference other countries’ experiences in surmounting the suggested occupational category obstacles in comparable social insurance legislation prior to the 1935 Act and the ability of Congress and the Administration to do so as well through the Act’s inclusion amendments in the 1950s. Some also point to racially tinged rhetoric in opposition to the 1954 inclusion amendment providing the broadest reversals of the occupational exclusions to Title II of the 1935 Act, from members of the same Southern legislative block who had offered racialized opposition to anti-discrimination provisions in the public assistance/welfare provisions in Title I of the 1935 Act and who supported the original 1935 occupational exclusions in Title II old age insurance, and then later vigorously opposed the landmark civil rights legislation of the 1960’s. For example, Senator John Stennis from Mississippi unsuccessfully fought against the 1954 social security inclusion amendment, referencing the disproportionately Black domestic and agricultural workers proposed finally to be fully included in the Act as “reckless and irresponsible workers, who will pay virtually nothing . . . and those workers will get a vested right in the fund to which they will contribute very little.”
Although the inclusion amendments of the 1950s reversed the formal exclusion of disproportionately Black (and increasingly, Latino/a), workers from social insurance programs after nearly two decades of exclusion, the previously discussed Jim Crow legacy and ongoing influence of pervasive structural discrimination in employment, housing, health care, criminal justice, and education, has contributed to lower earnings and less critical income security and social security benefit levels for Black and Brown retirees. An Urban Institute study focused on adults born between 1996 to 2005 projected the Black-white differential in lifetime social security benefits at 26 percent with average Black beneficiaries receiving $406,700 and average white beneficiaries $546,500, taking into account disparities in annual benefits, benefit commencement ages (early retirement reduced benefits vs. delayed retirement expanded benefits), and longevity. Significant disparities remain even after factoring in social security survivors’ and disability benefits, even though some of those same structural factors including historic and present-day health care discrimination and inequities contribute to greater mortality and disability rates for Blacks vis-a vis whites. Moreover, while 21 percent of social security beneficiaries ages 64-71 receive benefits below the poverty line, a staggering 43 percent of Black beneficiaries do.
With threats of trust fund insolvency as early as 2032 compelling a mandatory 20-24 percent automatic benefits cut if lawmakers fail to act, Congress must take steps to shore up the trust fund and should do so in ways which do not exacerbate present racial and economic disparities. In public polling, there is strong bipartisan consensus for trust fund solutions focusing on raising revenue rather than reducing benefits. For example, several present bills propose expanding the payroll tax base beyond the present limit of $184,500 at which social security taxes are capped and securing greater revenue for the fund from taxes of these wealthier workers as well as including investment income and business pass through income for such taxation. Some of these proposals also call for strengthening the program to provide greater financial security for those most in need, such as increasing the minimum social security benefit, (or the benefit levels and resource rules for SSA’s means-tested SSI program), to raise the floor to at least the poverty line for elderly and disabled beneficiaries. Other proposals that would also increase racial and economic equity include: implementing a somewhat more progressive benefits computation formula that would return a greater percentage of earnings in benefits to the lowest earners; creating caretaker credits for some portion of time for persons out of the labor market due to caretaking duties; and creating a bridge benefit to mitigate the reduction in benefits for early retirement at age 62 for older workers with a history of physically demanding work who can no longer perform that work.
Mass incarceration, racialized policing, and Social Security Act collateral consequences
Additional provisions in the Social Security Act contribute to further racial inequities in benefit receipt. Due to the phenomena of racialized mass incarceration and racial profiling in policing, Social Security legislation from the 1980s through 2009, adding various criminal justice system-involved restrictions on benefit receipt in both the Social Security old age/retirement insurance and disability insurance programs, further disproportionately limit benefits to claimants of color and their families. A law adopted in 1980 and extended in 1983 suspends Social Security insurance benefits (OASDI) for persons incarcerated more than 30 days. It was adopted initially and hastily in 1980 based on revulsion to serial killer “Son of Sam’s” receipt of benefits while in prison, but justified as needed to avoid “double dipping” of support benefits to inmates whose housing, food and basic medical needs would be supported by prison authorities. Lawmakers also suggested that social security benefits could be abused to support an underground prison economy in drugs and undermine prison discipline. Even though unsupported by SSA and the civil rights community as inconsistent with core principles of social insurance benefits under the Act for nearly 50 years—pointing to the program’s contributory character based on earnings and contributions and not subsistence needs (as opposed to the Act’s means-tested subsistence benefit programs)—these restrictions still passed both houses of Congress with scant opposition.
The law has removed much needed benefits from many beneficiaries who have been contributing to rent, mortgage, or property taxes on homes, car payments, or consumer debt payments, or these and other expenses and debt payments necessary for successful re-entry after incarceration; tuition, medical expenses or important needs of family and loved ones; or for unmet needs while incarcerated. In 1980, there were 1,214 persons receiving retirement benefits and 4,300 receiving disability benefits who would be subject to suspension under the laws enacted. By 2020, those figures had mushroomed “fifteenfold” to 17,885 for incarcerated social security old age/retirement program beneficiaries and “tenfold” for incarcerated disability benefits recipients to 39,766 undoubtedly due in significant part to accelerated mass incarceration trends in that time period. Civil rights groups (i.e. ACLU, Lawyers’ Committee for Civil Rights) have long called for repeal of this law or, at least, reform of it to allow for appointment of a representative payee of the inmate such as a prisoner rights non-profit entity, to manage the social security payments on their behalf for such expenses to obviate any imaginary or real concern of benefits diversion to an illicit, underground prison economy and to facilitate re-entry and provide family support.
Another Social Security Act provision enacted in the same 1980 legislation permanently excludes consideration of disabling impairments in the disability evaluation process in Social Security Disability cases if they arose “in connection with” commission of a felony. The SSA has interpreted the “in connection with” language as requiring no causal connection between the felony and the disabling impairment; the event producing the disabling impairment only need be close in time and place to the felony. This law also has an inevitably racially disparate application not only due to racialized policing and mass incarceration trends but likely also due to the racially disproportionate imposition of disabling impairment-producing injuries from police misconduct and brutality. The provision vests SSA adjudicators with much discretion and has been interpreted even to extend to a claimant with cocaine in his car who was then the victim of a passerby shooting and disabled by a shooter having no connection to the possession crime since the shooting occurred close in time and place to the possession arrest. Advocates have also argued for repeal of this provision or in the alternative, reform to limit its application with a requirement that the felony be the proximate cause of the impairment.
The SSI territorial exclusion, race, and colonialism’s implications on Social Security programs
The tortured and peculiar 125-plus-year history of the United States’ acquisition and colonial domination of the U.S. territories also reveals racial inequity in access to a vital Social Security program. Although Congress eventually included the territories in the contributory Social Security insurance programs (OASDI) in amendments in 1950 and 1960, at present, the Social Security Act excludes four of the five major territories, Puerto Rico, Virgin Islands, Guam, and American Samoa, from the critically important SSI program—the entirely federal, means-tested public assistance benefits program for children and adults with disabilities and for the elderly. The SSI program was designed as a “supplement” for persons in poverty in those disabled or elderly profiles lacking sufficient earnings and insurance for fulsome OASDI coverage. It has been described by social welfare policy experts as “a core component of the nation’s Social Security system” providing “nothing short of a lifeline for nearly 8 million of the nation’s poorest seniors and disabled people, including more than one million disabled children.” Due to exceptionally high poverty levels in the U.S. territories, its absence is particularly injurious. And the overwhelmingly non-white demographics of territorial resident populations is a factor in the colonial-like history in which the denial of equal rights and benefits for mostly U.S. citizens in the territories has been consistently re-affirmed.
The territories have long suffered under the legacy of the lingering shadow of the overtly racist yet still operative (not yet overruled), Insular Cases. These cases were a series of Supreme Court decisions in the early twentieth century (from the same court to unleash Jim Crow in Plessy v. Ferguson), launching and reinforcing a separate and unequal regime of rights and benefits for territory residents through the construct of indefinite “unincorporated” territory status based on assumptions even conservative Justice Neil Gorsuch has characterized as grounded in “ugly racial stereotypes,” “bigotry” and the “theories of social Darwinists.” In extending only a watered down version of the constitution with only select rights deemed fundamental, the Court had referenced unincorporated territory residents as not governed by “Anglo-Saxon principles” and “peopled with an uncivilized race,” on islands inhabited by “alien races,” “savages,” and “uncivilized tribes.”
In 2020, a unanimous First Circuit in U.S. v. Vaello-Madero, invalidated the territorial SSI exclusion as applied to a resident of Puerto Rico pointing out the inconsistency with equal protection principles of the inequitable treatment of disabled and elderly territorial residents excluded from these critical subsistence benefits. The Supreme Court’s 2022 decision reversing the First Circuit, relied on cases which, in turn, had relied on the Insular Cases to justify an extremely deferential form of equal protection scrutiny, in which decisions treating territorial residents adversely and differently than state residents, requires little meaningful rational justification or connection to the benefits exclusion beyond recognition of the Art. IV Territory Clause’s authorization to Congress to pass “Rules and Regulations respecting the Territory.”
Although President Biden supported congressional reversal of the SSI territorial exclusion and included an amendment to the Social Security Act doing so in his Build Back Better (BBB) legislation presented to Congress in 2022, when BBB stalled in the senate by two votes, the much smaller Inflation Reduction Act of 2022, no longer contained the SSI territorial inclusion amendment. A present inclusion bill is pending in Congress. It should be passed (although it will likely take changes in the composition of the present Congress and administration to do so).
Racial bias in the social security disability programs: adjudicative and medical bias, misevaluation of black pain, and the damaging persistence of “biological race”
While not nearly as large in scope as the Social Security old age/retirement programs, the Social Security disability programs nonetheless provide benefits to over 13 million persons at present. Because disability applications, as opposed to those seeking old age/retirement or survivor benefits, are usually carefully examined and contested, an enormous federal bureaucracy has been created to address disability claims, and a significant portion of the federal courts’ docket is attributable to disability program appeals. The SSA’s adjudication system for evaluating disability claims has been touted as the “Mount Everest of bureaucratic structures” and the “largest adjudicative agency in the western world.” Indeed, “there are more SSA Administrative Law Judges (ALJs) adjudicating disability benefits administrative hearings and more such cases than there are judges deciding and presiding over the smaller quantum of all civil and criminal cases and trials in all of the federal courts of the United States.”
The issue of racial disparities in the social security disability insurance (SSDI) and SSI disability (SSID) programs has been the subject of much debate since 1992 when the U.S. General Accounting Office issued a report after years of study finding unexplained racial disparities in SSDI and SSID adjudications. (SSDI and SSID utilize the same statutory definition of disability and are adjudicated by the same agency and process). The 1992 GAO report, which has been touted by scholars and journalists alike as “the single most important study undertaken so far on the issue of impartiality of Social Security decisionmakers” and “the most comprehensive [study] about race and disability ever undertaken by the Government,” reviewed nearly a million cases (700,000 involving white applicants and 245,000 involving Black applicants) and found unexplained statistically significant racial disparities in decision-making principally at the Administrative Law Judge (ALJ) hearing level (where the claimants are typically seen in-person for the first time by disability adjudicators). That report and study found that SSA ALJs granted benefits to 66 percent of white SSDI applicants but only 55 percent of Black SSDI applicants and 60 percent of white SSID applicants as opposed to only 51 percent of Black SSID applicants.
Additional GAO and other studies between 2003 to 2023 have identified additional racial disparities in disability decisions with some studies and critiques also pointing to the difficulty ascertaining any meaningful SSA progress in addressing the problem since 1992 because the agency discontinued collecting decisional data by race. Indeed, in 2022, (in a now-abandoned “Equity Action Plan”), SSA publicly and candidly acknowledged that: “There is evidence that although African American people are more likely to have a disability, they are less likely to be approved for disability benefits than white people.”
Apart from unexplained adjudicative bias with evidence of both explicit and implicit biases by the overwhelmingly white and male federal ALJ corps (measured as less than 1 percent Black as late as 1992), Black claimants experience further obstacles in demonstrating disability due to the explicit and implicit biases of medical professionals often stemming from a legacy of damaging concepts of “biological race.” Race, racial categories and the concept of “Blackness” in American society are not biologically based or scientifically determined. Rather, the 1999 human genome project further concretized the modern-day scientific fact that “[t]here are no human populations with such a high degree of genetic variation that they objectively fall into races[;][t]here is only one human race.” While historical conceptions of biological races, used to elevate white supremacy and to justify slavery, eugenics, sterilization, de jure segregation, social and legal exclusion, systematic discrimination, and other forms of exploitation, have long been scientifically repudiated, persistent, present-day remnants of that biological race legacy contribute to current racial health care inequities and disability benefits disparities.
Among the present-day damaging assumptions of biological racial differences with historical antecedents in slavery and 19th century racial studies (including a notorious study by a plantation owning Louisiana physician, Dr. Samuel Cartwright), “one of the most enduring and disturbing” is that Blacks “are impervious to pain.” A 2016 University of Virginia Study of the assumptions and beliefs of medical residents and medical students, found that about half of those surveyed still hold false beliefs about biological differences between Black and white persons such as thicker skin and less pain among Black patients. The study concluded that “individuals with at least some medical training hold and may use false beliefs about biological differences between Blacks and whites to inform medical judgments, which may contribute to racial disparities in pain assessment and treatment” and it “demonstrates that beliefs about biological differences between blacks and whites—beliefs dating back to slavery—are associated with the perception that black people feel less pain than do white people.” It also leads to understated diagnoses and assessments of Black and Brown claimants’ pain, symptoms, diagnoses and limitations for disability benefits purposes. Since pain and subjective symptoms, including psychiatric symptoms, are critical issues in the majority of disability adjudications and defy objective measurement from laboratory or scientific equipment, the recurrent, racialized medical underassessment of pain and impairment symptomology is a significant obstacle to disability benefits eligibility. This problem is compounded by the “double whammy” of implicit and explicit biases by medical professionals, (including those employed by the SSA and coordinating state disability agencies), followed by the additional biases of SSA’s ALJs and adjudicative personnel when assessing claimants’ pain and subjective symptoms.
Recommendations for ameliorating the problem of adjudicative bias include: 1) resumption of race/demographic data collection on SSA disability decisions; 2) creation of an independent non-SSA panel to review a sampling of bias complaints submitted to SSA entities with authority to make recommendations; 3) mandatory implicit bias interventions for all SSA ALJs and adjudicative and medical personnel along the lines of established models created for such programs for state and federal judges and prosecutors; and 4) increased efforts at enhancing diversity within the SSA’s ALJ corps.
The special problem of race norming in medical tools used in SSA Disability assessments
Another widespread medical practice often producing racial inequity in disability decisions is the process of “race-norming” or “race-correction.” Race-norming or “correction” involves the insertion of race into medical clinical decision support tools and diagnostic algorithms that “adjust or correct their outputs on the basis of a patient’s race or ethnicity” predicated on fallacious principles of “biological race.” Race-normed or “corrected” outputs often understate the severity of Black and other minority patients’ conditions or require greater demonstration of illness to receive treatment for a range of severe and sometimes life-threatening conditions. As a result, they also inequitably, illegally and unconstitutionally raise the bar on demonstration of disabling impairment severity for Black claimants and other social security disability claimants of color subject to race-norming.
Impairments that are commonly race-normed include serious lung disease/pulmonary impairments and kidney disease/nephrology disorders, among 11 other impairment systems listed in a groundbreaking 2020 New England Journal of Medicine article focusing significant public attention on this racially deleterious medical practice. Also bringing a significant contemporary, national, high-profile, and heavily publicized spotlight to race-norming and its potentially damaging impacts on Black patients was the 2021 discovery of evidence of the race-norming of neuropsychological testing for cognitive impairment and dementia of Black football players that emerged from the NFL concussion and chronic traumatic encephalopathy (CTE) settlement, and settlement modifications. (The circumstances underlying the lawsuit by former NFL football players against the NFL alleging deliberate concealment of long-term damage from repetitive head trauma was dramatized in the 2015 movie- “Concussion”). To determine the severity of cognitive impairments, “neuropsychologists compare a patient’s test performance to their estimated baseline cognitive abilities” and Black baseline cognitive abilities were presumptively race-corrected downward so that greater cognitive impairment to Black players would be required to demonstrate the same degree of cognitive injury as white players for compensation purposes and Black players were categorically undercompensated. Eventually, the NFL agreed to re-adjust that settlement agreement and replace it with a 2022 modified agreement based on non-racially normed cognitive impairment assessments.
More commonly, the scores on assessments such as pulmonary function tests (PFTs) for pulmonary/lung impairments or estimated glomerular filtration rates (eGFRs) for kidney impairments, are adjusted or “corrected” by inserting race into the guidelines or algorithms used for measuring the severity of these impairments and often adjusting for race by a factor of around 10-15 percent. The race norming of pulmonary testing has its genesis in the pseudoscience of the same mid-century plantation owning Dr. Cartwright who determined that enslaved black persons experienced lesser pain. Cartwright also concluded that Blacks possessed innately lesser lung capacity so pulmonary function testing (PFT) of “negro lungs” should be adjusted to reflect lesser impairment than whites when producing the same PFT scores.
The practice of race-norming of kidney filtration scores was a later 20th century phenomena. It is based on the over-generalization that Blacks possess greater muscle mass than whites (and the fact that muscle mass reduces kidney filtration rates); therefore, Black kidney estimated glomerular filtration rate (eGFR) scores should be race-corrected to reflect reduction of the apparent severity of kidney impairments. The absurdity of this racialized assumption is manifest using famous entertainers: Self-described scrawny/skinny Black comedian Chris Rock would be deemed to possess great muscle mass relative to white former body builder/actor Arnold Schwarzenegger (in his “Terminator” prime) and would have his kidney (eGFR) scores race-adjusted accordingly.
Between 2021-2026, several expert medical bodies, reflecting 8 of the 13 identified racially normed body systems in the 2020 New England Journal of Medicine article, have called for ending race-norming. This includes the National Kidney Foundation and American Society of Nephrology joint tasks force in late 2021, recommending discontinuation of race-norming eGFR scores, and the 2023 recommendation of the American Thoracic Society (ATS) working group to abandon race normed PFTs. However, these recommendations have not been fully adopted and implemented by hospitals and medical providers. The SSA has only partially determined that it should discontinue reliance on race-normed eGFR scores in disability benefits determinations and has offered no remedy for disability claimants of color previously denied benefits in cases with race adjusted eGFRs. In addition, it has taken no action with respect to ongoing race-normed PFTs or race-norming in any of the 11 other identified body systems employing race-normed clinical support tools or algorithms.
Because SSA’s reliance on or production of race-normed clinical assessments should be deemed illegal if not unconstitutional since intentionally discriminatory and not justified by compelling or important purposes under equal protection doctrine, the practice should be categorically and immediately discontinued in all cases involving all potentially normed impairment body system assessments. Moreover, claimants of color previously denied in cases with racially-normed assessments or other normed medical reports, should be provided notice and the opportunity to have their cases re-opened and re-adjudicated with evidentiary records untainted with racially-normed materials.
Conclusion
While the Social Security Act is undoubtedly the most important and transformative anti-poverty and income security enactment in American history, it has underserved African Americans and other historically subordinated communities of color in myriad ways. Some of these disparities can be addressed by the SSA and our lawmakers and policy makers—admittedly in the hope that we return to (or make significant progress towards) greater democratic functionality when popularly desired and needed reforms can be adopted and serve the will and needs of the people. Others will depend on longer-term movements to eradicate broader structural and systemic discriminatory trends in society-at-large by both government and private industry and parties, in employment, housing, education, voting, criminal justice, and health care access and treatment that cannot be meaningfully addressed solely through reforms in the Social Security system. To some extent, Social Security’s effectiveness as an equitable bulwark against income insecurity is a function of inequity in society at large; it incorporates the racial and other invidious inequalities in several of those other major systems as shown above.
As in the pursuit of racial and economic justice in many other areas such as housing and education, the struggle for more meaningful justice and equity in the social security system is neither linear nor prompt. The challenge is in perseverance. And in recognition that even in the darkest, unlikeliest times, as prophesied by MLK, “the arc of the moral universe is long, but it bends toward justice.” n
Jon C. Dubin is the Board of Governors Distinguished Service Professor, Distinguished Professor of Law, Paul Robeson Scholar, and Director of the Economic Justice Clinic at Rutgers Law School. This article is adapted from the recent book: The Color of Social Security—Race, Retirement, Disability, and Disparity by Jon C. Dubin. Copyright (c) 2026 by Jon C. Dubin; used with permission of the publisher, Cambridge University Press. All rights reserved.
