"The government's action was race-neutral on its face because the decision to set aside the test results did not in and of itself involve any racial distinctions; those who passed had their pending promotions set aside regardless of their race."

This is sheer sophistry.


Maybe, but it is "sophistry" that matters to the Supreme Court, which for over 100 years has distinguished between government policies that discriminate openly and those that are facially neutral, but may have been enacted for racial reasons.

The key question is really whether the court has any clue to what laws the Equal Protection Clause speaks of. Not holding my breath the court has evolved to the level of being able to comprehend the words and why they are found under the 14th.

I spent ten years as a white firefighter and I can verify that FIRE doesn't care whose house it burns down nor who is holding the hose that puts it out. Nature is in original race-neutral force.

BTW, the S. Ct's "line drawing" IS sophistry.

Unfortunately, they often succumb to such half-way measures because they fear confrontation with the Congress. The Constitution suffers, but no one in DC seems to care (and the cocktail party circuit continues to include Justices).

Unless I'm confusing it with another case, the practice in Grutter was upheld because it involved schools looking closely at each candidate to see whether or not they would actually bring diversity, rather than schools favoring a candidate simply because they are a minority (which was explicitly struck down in a companion case).

In this case, it seems like the test results are thrown out based on pure race of the people involved, not after a careful scrutiny of just how diverse candidates are.

Thus, under the standard of those two cases, it seems to be a pretty clear cut violation of equal protection.

Thank you for the posted article. The courts will continue to be pressed by this question until they make a "discovery" on the question. Americans may not like the answer but will certainly appreciate the removed ambiguity. I enclose my two cents...

http://thenaturalbornpresidency.blogspot.com/

Wouldn't it be discriminatory because white applicants' promotions were set aside in greater proportion than their representation in the population, so it was not race-neutral? That is, if, in the city concerned, the population was 60% white and 40% minorities, but 90% of the passing grades went to whites and 10% minorities, then only 60% of the set asides should have come from whites...

(And of course it's all about race; any attempt at another reading is pure BS.)

And Libertarians -- the big question is if the polity will stand for racial preferences being granted to illegal aliens who become citizens under an amnesty. Linda Chavez, who strongly favors amnesty, herself has pointed out that such preferences will be untenable, and has called for a ban on AA for illegal aliens and their children.

How far along on O'Connor's 25-year AA runout timeline are we now?

This is also a problem in Chesapeake, VA.

Both Virginia Beach and Chesapeake police departments were sued by the far-right-wing Bush Justice Dept. because not enough black people were passing their advancement exams. Applicants couldn't do elementary-school-level arithmetic problems, and the expectation that they should was deemed racial bias.

ISTM that there's no real evidence that racial diversity makes a university better. OTOH, there's a lot of evidence that admitting underqualified minorities has worsened universities. If the courts could ignore the evidence in Grutter v. Bollenger, they can ignore the evidence in Ricci v. DeStefano.

ISTM that there's no real evidence that racial diversity makes a university better. OTOH, there's a lot of evidence that admitting underqualified minorities has worsened universities. If the courts could ignore the evidence in Grutter v. Bollenger, they can ignore the evidence in Ricci v. DeStefano.

See, I think a lot of the AA critics in this thread don't seem to understand Grutter. Grutter doesn't stand for the idea that diversity alone is a compelling interest. What Grutter allows is for schools to use racial diversity as one factor out of many. And, iirc, it has to be actual diversity -- they can't give a wealthy black individual bonus points for diversity on race alone, but rather must look to what actual diversity of experiences etc. he would bring.

The straw man version of Grutter that many posters in this thread condemn has also been condemned by the Supreme Court on multiple occasions, and it won't be back until Obama can replace one of the conservatives on the court -- which of course he probably will.

Unfortunately this post did not identify the key issue in this case. If the city had certified the test results, the minority firefighters would have sued them under the "disparate impact" provision of Title VII of the Civil Rights Act. And such a lawsuit would not have been frivolous -- the test results were so racially skewed that the minority firefighters as a legal matter would have made out a prima facie case of a Title VII violation, which means the city would have had the burden of proving that their test was valid.

Therefore, it is a bit misleading to say that the city took a facially race neutral action but was "motivated" by race. Instead, the city was probably motivated by its legal obligation to comply with Title VII and its reasonable desire to avoid being sued for violating Title VII.

If Title VII's disparate impact provision did not exist, then it would be reasonable to say that the city set aside the test results for racial reasons and ask whether they had a compelling interest to do so. But in light of the city's Title VII liability if they had used the test scores to promote the white firefighters, the strict scrutiny compelling interest test does not make sense. Or, at the very least, the question is not whether there is a compelling interest in "diversity" -- it's whether there is a compelling interest in complying with federal civil rights law!

Consider the consequences if the city loses this case. If test results show a disparate impact on minority applicants, an employer will know it's going to be sued AND have the burden of proof no matter which group files the lawsuit. If the employer cancels the test scores, the higher-scoring racial group will sue the employer for being "motivated" by race in making that decision, and the employer will have to satisfy the strict scrutiny test. And if the employer does not cancel the test scores, the lower-scoring racial group will sue the employer for violating the disparate impact provision of Title VII, and the employer will have to prove (through expensive validation studies, hiring experts, etc.) that its test was valid despite the racially disparate results. That sounds like an unworkable legal framework, especially if you think there should be less employment litigation rather than more.

IMO the social stability we gain from doing so outweighs any loss of liberty.

Especially since Hadur isn't the one losing liberty.

Did conservative opposition to race-based discrimination begin with the adoption of affirmative action remedies which impacted whites? If not, where could one find evidence of such opposition?

What Grutter allows is for schools to use racial diversity as one factor out of many.

Haha. That "one factor" is as big as it needs to be to get the numbers right. The assertion that opposition to AA is based on the belief that race is the only factor is pure BS. The problem is that it denies equal treatment before the law based of race.

Sophistry schmofistry. The city's action simply wasn't race-neutral. A group of people had their promotions canceled because it was too heavily white. How's that race neutral again?

I mean, if I don't want to hire black people can I just decide not to hire any applicants that applied on any day that a black person applied? I don't think so.

If intent is held to trump facial neutrality, does that mean that Texas's 10% Plan -- offering guaranteed admission to the top 10% of Texas high school graduates -- for the clear purpose of increasing the number of of minorities in the freshman classes is also unconstitutional? Would it be necessary to show that that plan had a "disparate impact" on white and Asian applicants? Finally, as others have asked, why is throwing out a test because too many whites and not enough blacks passed any less of a "pretext" for "traditional" racial discrimination than the Grandfather Clauses adopted by some Southern states to keep blacks from voting?

Disparate impact needs to go. If there is no actual intentional discrimination, there's no discrimination.

Disparate impact does not automatically mean that there was unlawful discrimination. There are quite a number of qualification procedures used that generate highly disparate outcomes that are nevertheless upheld by the courts.

Moreover, the promise of Title VII was never limited to "intentional discrimination". I hardly believe that a person wrongfully excluded from a position should care at all whether her rejection was the product of intentional animus, unintentional prejudice or just plain institutional inertia. All of those are rightfully the province of Congress to prohibit (of course, Congress could chose otherwise, and you might better spend your energy lobbying them to do so).

Finally, the conduct in question does not constitute "intentional discrimination", the test you suggested, because the avowed and accepted (at least for the purposes of summary judgment) motivation was purely legal (not racial) -- had the city accepted the result of the test then they would likely be guilty of discrimination.

Finally, as others have asked, why is throwing out a test because too many whites and not enough blacks passed any less of a "pretext" for "traditional" racial discrimination than the Grandfather Clauses adopted by some Southern states to keep blacks from voting?

Supposing, arguendo, that I'm correct that the only motivation the City had was to avoid liability that would have likely ensued had they accepted the result of the test. Then there is no racial pretext and, presumably, this is OK?

This is just another way to "race norm" the results so you get the number of dark faces you want. In the good old days you could just pad minority scores to pass them, but -- ooops! -- that's now illegal, so you accomplish the same thing by dividing the applicants into racial and gender "pools" where they compete only with members of the same group. The size of each pool is determined before anyone applies or takes a test, which of course amounts to the same thing.

Hard to say this has nothing to do with race.

That said, I've been a critic of the Supreme's affirmative action jurisprudence for similar reasons that I've been a critic of judicial activism generally. I don't believe considerations of race -- or sex -- are always evil, and while striking down the extreme of a rigid caste system is well within the Equal Protection Clause's intent, saying such things should never be considered even regarding such institutions as marriage strikes me as rigid personal ideology rather than constitutional interpretation. I think affirmative action is constitutionally reasonable -- whether or not I would personally support it as policy -- for the same reason I think heterosexual marriage laws are constitutionally reasonable -- the state in fact has some interest in maintaining diversity in certain aspects of society, and it has the right to give that interest some weight. When the Supreme Court undertakes to decide which interests are "important", which are "compelling", etc. and attempts to set exact, excruciatingly neat and difficult-to-decipher boundaries, it is playing legislature. It is making decisions which are political rather than constitutional in their essence.

Moreover, the promise of Title VII was never limited to "intentional discrimination". I hardly believe that a person wrongfully excluded from a position should care at all whether her rejection was the product of intentional animus, unintentional prejudice or just plain institutional inertia. All of those are rightfully the province of Congress to prohibit (of course, Congress could chose otherwise, and you might better spend your energy lobbying them to do so).

1) What on earth is "unintentional prejudice"?
2) When you say, "...a person wrongfully excluded from a position should care at all..." you're simply begging the question. If it isn't the result of prejudice/animus, in what way is it "wrongful"?

How can the City of New Haven claim an interest is compelling when the Connecticut Supreme Court has said that in Connecticut, it isn't especially important?

I am not aware of the issue ever being raised in a State-law context.

1) What on earth is "unintentional prejudice"?

When an employer (or similar) discriminates against a minority without specific animus. For instance, the University of Chicago did a study that largely confirms that, consciously or not, applicants with ethnic-sounding names are not followed up as often.

2) When you say, "...a person wrongfully excluded from a position should care at all..." you're simply begging the question. If it isn't the result of prejudice/animus, in what way is it "wrongful"?

See above.

An overwhelmingly white police department in a city with a large minority population might find it difficult to secure needed cooperation from the citizenry.

The same state interest argument can be made against some of the gender neutral rules imposed on police and fire departments, and the military.

And should be.

In places where Liberty is to prevail over all, no legislative act may be subject to do's and don'ts. It sounds foreign for many, but such is the case of all those who are truly free. The only subject of legislation, would be that of consequence of inflicting harm or damage upon another, which a loss is had, and retribution is the only Justice that matters. Never excessive, and the best example of equality that can ever represent true Liberty.

It isn't fair to a person who is an excellent mechanic to be passed over in the name of racial or any other unimportant factors in the name of 'equality'. It's not equal when you tip the scales in any direction.

Justice requires Laws, Liberty requires Laws of Truth.

When an employer (or similar) discriminates against a minority without specific animus. For instance, the University of Chicago did a study that largely confirms that, consciously or not, applicants with ethnic-sounding names are not followed up as often.

Let's set aside the question of whether the study actually showed that; what makes you think it showed anything about "intent" or "animus"?

2) When you say, "...a person wrongfully excluded from a position should care at all..." you're simply begging the question. If it isn't the result of prejudice/animus, in what way is it "wrongful"?

See above.

I don't see the answer above. What makes it wrongful? Why is using a test that has a "disparate impact" "wrongful" if the test was not chosen based on animus?

For Bill Poser @ 5:46 pm

I can relate my personal experience with law enforcement civil service exams and how they morphed under affirmative action impetus. I presume the firefighter's promotional would have a similar evolution.

Originally, the exams would be posted about a year in advance, along with a list of between 6 and 10 text books, the state statutes, organization rules and regs, civil service regulations, things that could reasonably be considered job related. Consider that a supervisor would need both specific job knowledge germane to law enforcement, and that awareness of personnel rules allowing him or her to be an effective supervisor and manager. The text books were standard fare, typical of what would be encountered in a college undergraduate class, relating to criminology, constitutional law, entry-level abnormal psychology and forensic science, etc. The written portion of the test would have constituted about 85% of the total grade, and seniority on a sliding scale the remaining 15%. Typical of civil service, nowhere was there a provision for job ratings affecting the score. AS in the OP, members of so-called "affected classes" often did poorly on classic written tests which called for reading comprehension and writing skills as much as they tested actual job knowledge peculiar to the job itself. The first attempt to level the scores between white candidates and most other groups was to add a verbal interview component, which hopefully would remove the unintended emphasis on reading and writing, and instead, test the genuine job knowledge intrinsic to - in this case - law enforcement. The written test was reduced to something like 50% of total score, and the interview process put at 35%. The interviews were actually small acted-out scenarios, in which each candidate would be put in a simulated crisis environment and rated for reaction and response.
For whatever reason, the affected classes continued to do poorly on promotional exams. Even after the so-called "job knowledge" (written) portion was reduced to something like 1/3 of the total score, white males continued to dominate the registers. In case one might be suspicious the testing or interview process was somehow skewed by racism, the University of Chicago designed the written test, and several different African American groups were hired to administer the oral interviews (scenarios). The municipality, which was sued regularly for racial discrimination after every single promotional test, then added a so-called psychological component. Each candidate was administered a '60's era standard industrial psychological test. Obviously, there are no correct or incorrect answers in a psych profile test; there are merely different profiles which can be screened for. In the case of my municipality, what they did was make only one profile desirable for white candidates, say, while two profiles were acceptable for female candidates, three profiles for Hispanic and so on. We only discovered this during the discovery process in litigation. it was called 'adjusting the profiles for disparate ethnic impact."
By the end of my career, the agency maintained a number of different registers for each promotional exam. One for white males, one for Hispanic males, etc. Scores were not released, only relative rankings on your ethnic register. Promotions were then made based on the ratio of ethnicity and (to a lesser degree), gender within the population of the municipal corporation.
I agree that the original tests, based almost completely on an ability to read and write, might have missed people who could have been effective but were deficient with traditional primary school-taught skills. However, the resulting mess is widely recognized as nothing but hypocritical, and worse, is totally ineffective at screening applicants for ability to supervise and/or manage.

So, in a very long winded reply to your question, the exam should test for job knowledge, but almost certainly fails to do that in any meaningful fashion if it can pass muster under present AA standards. The exam cited in the OP failed to generate the desired results in terms of ethnic make-up, although that does not automatically mean it genuinely tested for job knowledge.

In that case, they have failed to assimilate traditional American values, and need to do so.

Or perhaps we need fewer people prescribing what sort of values people"need" to hold.

Moreover, as I said before, tests with disparate impact can and often are perfectly lawful if the test is strongly related to the actual duties to be performed by the individual. To the extent that they are testing police officers with a written test (just as an example) when the actual duties of a police officer are much more varied that just paperwork, then the test just isn't reflective of the job to be done.

A discrimination suit is non-frivolous under McDonnell Douglas if it can pass the first hurdle of "disparate impact", and almost every test -- at least almost every test not rigged by racial outcome -- has outcomes which differ by race.

Thus an employer can always cite fear of litigation to justify dropping a test rather than having to defend it. It's certainly true that this can be done collusively: entities such as New Haven can always find friendly plaintiffs willing to sue to get them to consent to the result they would like to do in the first place. But there is nonetheless a real problem: If the employer can be sued for dropping the test, there is damned-if-you-do, damned-if-you-don't problem where an employer must a defend a non-frivolous suit no matter what it does.

How can employers avoid having to defend lawsuits over every decision they make involving tests? How can it, at the same time, prevent collusive manipulation? The Court may need to provide some sort of guidance.

Already far too large a percentage of complaints and lawsuit are frivolous.

ReaderY -

The profiles are not obviously applicable to the job position. The City, faced with litigation over every promotional exam since they had been incapable of designing a test which procured the results they needed to avoid lawsuits, i.e. 50% Hispanic, 35% African American, 51% female, decided to create, in effect, a curve. By taking historical data from years of written tests, they simply added profiles to each affected category so that some groups could answer in any pattern, and receive credit for a correct answer, while other groups were limited to smaller number of correct answers (correct answers being defined not as accurate but as being within an identified profile.). The profiles themselves were meaningless. The profiles were used as a device to negate book-based sections of the examination process.

Oren -

I am simply offering my personal experience. Despite using several different universities, our municipality was unable to construct a testing procedure that did not result in over-representation in higher grades by some ethnic groups at the expense of others. A "wildly disparate impact" does not automatically disqualify itself as unreflective of actual job skills. In fact, when referring to law enforcement only, it usually demonstrates for those achieving higher scores a positive in areas not necessarily reflective of specific job skills, like reading skills. Unfortunately, in practice, what this means is that the examinations have been lowered to the degree than a moron could pass them, generally lowering the quality of management. Instead of elevating the candidates, we have destroyed the process.

Moreover, the promise of Title VII was never limited to "intentional discrimination". I hardly believe that a person wrongfully excluded from a position should care at all whether her rejection was the product of intentional animus, unintentional prejudice or just plain institutional inertia. All of those are rightfully the province of Congress to prohibit (of course, Congress could chose otherwise, and you might better spend your energy lobbying them to do so).

Except that when you start talking discrimination on the basis of race, you are also talking the 14th Amdt.

In other words, you are suggesting that because Title VII mandates discrimination based on race, that such discrimination is required, and the only recourse is to amend that law.

I do not see the current majority signing on to your proposed solution of deferring to Congress and saying that since the city would have been sued under Title VII, then it was ok to ignore the overtly racial motivation for the action. Rather, I suspect that they will sidestep the issue and ignore your Title VII argument. The alternative of saying that racial actions can be made if condoned by Congress I think is unlikely to be attractive to the current majority.

I ditch cocktail parties every chance I get. In my set, it's more likely to be BYO beer parties, but the general rule still applies. Major tedium there.

For another personal observation, I offer the case of my former office. We had a mid-sized clerical staff, which included one white woman in a group that was otherwise made up entirely of African American women.

The white woman decided to pursue further education so that she could be promoted out of the clerical ranks. The trouble is, management was then unwilling to promote her unless they could find at least one black woman to promote as well. It took about 2 years before they could cajole someone into assembling the credentials necessary for promotion. The white woman in question had to wait all that time.

I don't mean this particularly as a racial zinger. The white woman in question was the oldest clerical worker by far, with college-age children and time to devote to her own education. The black women were mostly in their 20s and early 30s, with small children. Some were single parents. Their priorities were different, and clerical jobs that let them leave at 4:30 probably met their needs. That might have changed as they got older.

But the way our management handled this was intolerable. It was all about the potential racial backlash, and there wasn't even any information to indicate that such a backlash would take place. Also, it didn't take into account any of the other differences among individuals. Idiotic all around.

The problem is that no once can devise a promotion test which both predicts job performance well and produces the desired racial mix of top-scorers. Such a test is impossible because the best predictor of performance is IQ, and there are large racial differences in mean IQ (differences intractable in the short run).

Something about IQ which not everyone understands is the way IQ represents general mental ability. About a century ago psychologists first discovered that nearly all mental abilities tied to problem solving are related in some way: doing well on any particular test of problem solving-- whether it's a math test or an analogies quiz or a jigsaw puzzle, or a mock situation interview-- predicts doing well on others. That enabled psychologists to summarize such abilities in the measure of IQ. This finding has been confirmed ad-nauseam by thousands of studies over the decades. Every young psychologist knows that if s/he could just find some kind of problem-solving ability that doesn't correlate highly with IQ s/he would instantly become the toast of the profession.

Because mental abilities are so highly correlated, while at the same time there are large disparities in IQ by race, it is impossible to devise a test of mental abilities which does not produce "disparate impact" by race.

In fact, the situation is even worse (for municipal promotion boards): whatever kind of test they set up, unless it measures something either innate or irrelevant (or both) like skin color, the smarter applicants will prepare for it (or "game it") more effectively. Those smarter applicants will be disproportionately white.

Many people have noted that when orchestras started to use blind auditions the proportion of women hired to play went up (the applicant plays behind a curtain, so the auditors have to concentrate on the music rather than the applicant's personal appearance). Clearly the new audition procedure defeated sex bias.

The opposite has been going on for years in public-service hiring. Evaluating applications blind always produces "disparate impact" because white applicants are simply smarter on the average than black ones. So hiring agencies have resorted to unstructured, face-to-face interviews purely to give the interviewers free rein to apply race bias.

swedishtom,

I don't think one can get out of the dilemma that easily. The difficulty is that once everyone has a non-frivolous lawsuit no matter what, a city interested in any policy at all could always find a friendly plaintiff -- on either side -- to threaten liability so it could implement that policy "to avoid liability" collusively. Once one gets in a damned-if-you-do-damned-if-you-don't dillemma, it doesn't seem to be so easy to avoid a catch-22 on either side.

It's a simple fact "we didn't want to get sued for discrimination, even though such a suit would be meritless" is not a race-neutral reason. Just like "we don't hire men with afros" is not a race-neutral reason.

It's funny how people will bend over backwards to justify this obvious discrimination. Tell you what, why doesn't everyone who's in favor of this volunteer to give up their job/promotion for the benefit of someone else. It's so easy to be enlightened with someone else's livelihood and career.

Liberals--kind with someone else's money, safety or job. Race-based preferences are simply wrong, and it's quite impossible to square them with the guarantee of Equal Protection.

Rich R -

We did try a geographical limit on applicants, for exactly the reasoning you suggest, that is, a de facto race or ethnicity quota. Unfortunately, since we were competing with a number of other entities for the same very limited pool of qualified applicants, we ended up lowering standards, mainly for past conduct which would rationally disqualify one for employment in law enforcement, i. e. criminal records. That was a tremendous failure, as we created a criminal element with the agency which took years - and multiple scandals - to winnow.

Ultimately though, the greatest harm from this process was to convince everyone involved, whether an individual adversely affected or benefited, that the entire process - and by implication, the government which spawned it - was dishonest and hypocritical. Which, of course, it was.

I can tell you that it was personally discouraging to score at or near a perfect mark on an objective test, and then have persons who received marks at about the 50th percentile - normally a failing grade - promoted ahead of or instead of you. It also did not provide a superior level of management.

But we had to remember, this was not discrimination, as we were told continually. Just bad karma, I suppose.

JCCamp: Unfortunately, that is the outcome I would expect - when standards are lowered. My alternative is to offer incentives for recruits from the problem areas, "skimming the cream" of that thin pool (and encouraging qualified others to locate there). Other officers might resent the pay differential - but anyone can collect: just move into one of those neighborhoods.

mj: How effectively can a police department operate in a socially distinct neighborhood if none of its officers live there, went to school there, have relatives there, shop there, dine there, or drink there?

Police are only human. They are going to exercise their immense necessary discretion more for people they understand than for strangers. Most are not going to make the considerable efforts required to reach across cultural boundaries. Most develop a cynical crust that inhibits such interaction.

There is also a trust issue. Just about every place has some history of ethnic favoritism in government - sometimes explicit and severe. Groups that were on the wrong end of the stick won't trust authorities from which they are still excluded.