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"What Really Happened" in Ricci:

Stuart Taylor may "admire many things about Judge Sonia Sotomayor," but his latest column raises concerns about the handling of Ricci v. DeStefano.

The panel's decision to adopt as its own U.S. District Judge Janet Arterton's opinion in the case looks much less defensible up close than it does in most media accounts. One reason is that the detailed factual record strongly suggests that -- contrary to Sotomayor's position -- the Connecticut city's decision to kill the promotions was driven less by its purported legal concerns than by raw racial politics.

Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed Arterton opinion.

Judge Jose Cabranes, Sotomayor's onetime mentor, accurately described the implication of this logic in his dissent from a 7-6 vote in which the full U.S. Court of Appeals for the 2nd Circuit refused to reconsider the panel's ruling.

"Municipal employers could reject the results of an employment examination whenever those results failed to yield a desired racial outcome -- i.e., failed to satisfy a racial quota," Cabranes wrote.

The Sotomayor-endorsed position allowed such a "race-based employment decision," Cabranes added, even though the New Haven exams were "carefully constructed to ensure race-neutrality" and even though the city had neither found nor tried to find a more job-related test.

The Cabranes dissent and the voluminous factual record that was before the Sotomayor panel flatly contradict the widely stated view that her position was justified by evidence that the exams were not job-related and that they discriminated against blacks in violation of the "disparate-impact" provisions of federal civil-rights law.

In fact, neither Sotomayor nor any other judge has ever found that the exams -- one for would-be fire lieutenants, one for would-be captains -- were invalid or unfair. Nor has any judge found that allowing the promotions would have violated disparate-impact law.

Rather, the Sotomayor-endorsed position was that under 2nd Circuit precedents, New Haven's discrimination against high-scoring whites must be upheld based solely on the fact that disproportionate numbers of blacks had failed to qualify for promotion and might file a disparate-impact lawsuit -- regardless of whether they could win it.

In my prior posts, I've raised greater concerns about the procedural handling of the case than the substance, but the two are related. Insofar as a ruling for the city could establish an extreme precedent -- which is Taylor's argument -- the belated switch from an unpublished affirmance without precedential effect to a published per curiam affirmance that would establish binding circuit precedent without any explanatory opinion, is harder to justify. I don't know how much Judge Sotomayor can say about how the case was handled during her hearings, but she is sure to be questioned about it, particularly due to news reports suggesting why the case was handled this way.

Related Posts (on one page):

  1. How Ricci Almost Disappeared:
  2. "What Really Happened" in Ricci:
  3. Ricci Revisited:
AF:
I will be surprised if a single justice explicitly approves the . . . logic of the Sotomayor-endorsed Arterton opinion.

I'll take that bet.
6.12.2009 12:05pm
ruuffles (mail) (www):

I will be surprised if a single justice explicitly approves


a 7-6 vote in which the full U.S. Court of Appeals for the 2nd Circuit refused to reconsider the panel's ruling

Is the 2nd ct the new 9th?
6.12.2009 12:07pm
Jim Hu:
Interesting article. Taylor mentions that no one proposed a more race-neutral alternative. Here's an idea, and I'm interested in what the Conspirators and commenters think about it in this kind of case as well as in university admissions:

Taking the top scorers for promotion/admissions etc. is premised on the idea that the test measures some unidimensional average/composite over many qualities of the test-taker that should determine who gets promoted or accepted. I believe that test performance is correlated to future performance, but not so strongly as to correctly predict the performance among cohorts who have similar scores. So, why not treat the test as a state function rather than a ranking. If you get a qualifying score, however that's chosen, you go into a lottery and the admissions/promotions are made randomly. Or, perhaps by seniority, in the case of firefighters.

I suspect that this idea will strike many as unjust, but I'm wondering if it really is.
6.12.2009 12:24pm
Jake LaRow (mail):
I had a girlfriend that I debated on more than one occassion on how tests might be biased against one "race" or another. She is a teacher and I wasn't so I never won that argument nor got a reasoned response. How does a test for a firefighter exactly discriminate? Pardon my igorance, but can someone pithily explain how that occurs?
6.12.2009 12:26pm
AF:
In fact, neither Sotomayor nor any other judge has ever found that the exams -- one for would-be fire lieutenants, one for would-be captains -- were invalid or unfair. Nor has any judge found that allowing the promotions would have violated disparate-impact law.

So according to Stuart Taylor an employer has to lose a disparate-impact suit before it can abandon a test with a prima facie disparate impact. "I will be surprised if a single justice explicitly approves" that.
6.12.2009 12:27pm
Soronel Haetir (mail):
Jim Hu,

I believe that is why the X positions were to be filled from the top Y performers. IE, 6 slots picked from 9 contenders, so that factors other than just raw test performance were to count. Not exactly the system you advocate but not a test takes it all either.
6.12.2009 12:34pm
RPT (mail):
Imagine how SS would be criticized if she had actually written an opinion! Taylor will beat this horse until....
6.12.2009 12:37pm
Steve:
Strange, the panel ruling was unanimous, 7 judges voted to deny rehearing, but these blog posts all make it seem so obvious that the ruling was incredibly misguided! One wonders if there could possibly be another side to the argument...
6.12.2009 12:42pm
Jim Hu:
Soronel Haetir,

I must have missed that in the coverage. Thanks (do you have a link?)! As it happens. that's about where I would put the cutoff.

Jake LaRow,

My sense of Taylor's article is that the test used was about as unbiased as one can hope for, but the basic idea is in the preface to this short post at the Freakonomics blog.
6.12.2009 12:47pm
Don de Drain:
Prof. Adler--

I have not read the opinions in the Ricci case. I thus have no opinion as to whether Sotomayor's ruling was good, bad or somewhere in between. My sense is that she has sufficient qualifications to be confirmed and that she will (like Obama- witness the brief his administration has just filed to support DOMA and witness his actions with respect to the FOIA lawsuit seeking disclosure of "torture photos") will turn out to be quite mainstream and in some respects a disappointment to progressives, after she joins the Supremes.

But I do have a question for you. Suppose that Scalia had, while sitting on a Court of Appeals, penned an opinion similar to the majority opinion in Bush v Gore, using the same "logic" used by the majority opinion. Would the penning of such an intellectually dishonest opinion have been a valid reason to vote against his nomination to the Supreme Court?
6.12.2009 12:48pm
richard1 (mail):
I had a girlfriend that I debated on more than one occassion on how tests might be biased against one "race" or another. She is a teacher and I wasn't so I never won that argument nor got a reasoned response. How does a test for a firefighter exactly discriminate? Pardon my igorance, but can someone pithily explain how that occurs?

I know nothing about the test in Ricci but I think a test that is only geared toward academic questions - the chemistry of fires, the mechanics of fire trucks, etc - rather than what fire fighters actually do in their job and what supervisors actually do could be such a test. I have seen tests for advancement in certain fields - teachers, police officers - that seem unrelated to whether the test taker would make a good supervisor (whether they discriminate on the basis of race is a different question). The fact that a person has great academic knowledge about a subject does not mean that he would be a good supervisor and if one is promoted to supervisor solely on the basis of the test results, that seems to be a poor management decision
6.12.2009 12:52pm
A. Zarkov (mail):
Jim Hu:

I analyzed the outcomes of a pure lottery system, where you draw a random sample of 9 from the 41 applicants for captain positions. More than 70% of the time this lottery will violate the "four-fifths rule," and 8.3% of the time zero blacks will appear sample. This is not exactly your idea but it comes close.
6.12.2009 12:56pm
SeaDrive:

More than 70% of the time this lottery will violate the "four-fifths rule," and 8.3% of the time zero blacks will appear sample.


I'm shocked - shocked! - to learn that random sampling was misunderstood in a political/legal process.
6.12.2009 1:17pm
A. Zarkov (mail):
"How does a test for a firefighter exactly discriminate? Pardon my igorance, but can someone pithily explain how that occurs?"

The fireman tests discriminate according to the time and effort applicants put in, but I assume you mean invidious racial discrimination. It would be difficult to make a test of acquired skills, knowledge and ability racially discriminatory, but it's theoretically possible. For example one could make the exam a test of English vocabulary, in which case the people taking the test whose first language is not English might be put at a disadvantage. Of course that would be discrimination on the basis of national origin, and not race. I heard it argued that blacks have a different vocabulary set than whites, and one could exploit that difference to create a biased test. But in any case such a test would be obvious on its face. Not only that, a fireman, especially a captain, needs to have a certain vocabulary to function well.

In short everyone with any sense knows there is nothing wrong with the New Haven fireman promotion test. All this talk about the results showing disparate impact is a smokescreen for overt, politically motivated, invidious discrimination against the white applicants. The sample sizes are too small to use the "four fifths rule," and the guidelines for using the rule clearly state that. Are the sample sizes too small in the Ricca case. Yes. My own calculations show that. Others have come to the same conclusion as discussed on a prior thread here. See my posts for the links and data.
6.12.2009 1:17pm
ShelbyC:

Strange, the panel ruling was unanimous, 7 judges voted to deny rehearing, but these blog posts all make it seem so obvious that the ruling was incredibly misguided! One wonders if there could possibly be another side to the argument...


Probably, but for it to appear on these posts someone has to actually post it, not just speculate about its existance :-).
6.12.2009 1:22pm
Henry679 (mail):
This desperate hunt for matches leads me to believe there is no fire.
6.12.2009 1:27pm
Edmund Unneland (mail):
Remember, it was a test for supervisory work (Lieutentant and Captain), not an entry-level test.
6.12.2009 1:29pm
David M. Nieporent (www):
So according to Stuart Taylor an employer has to lose a disparate-impact suit before it can abandon a test with a prima facie disparate impact. "I will be surprised if a single justice explicitly approves" that.
That's not actually what he said at all, if you go on to read the next few paragraphs. He didn't explicitly propose a standard, but implicitly adopted the one suggested by many observers: that there has to at least be a good faith basis for believing one would lose such a suit.

Otherwise, one is allowing a de facto quota. A "prima facie" case of disparate impact simply means that the results aren't perfectly proportionate to the population. One could keep testing and throwing out the results until one gets results exactly proportioned, regardless of the tests' relationship to the job and business necessity.
6.12.2009 1:31pm
Sara:
The Circuit voted 7-6 to deny rehearing en banc, with all six dissenters signing an opinion that questioned the panel's judgment and highlighted the issue for the Supreme Court.
6.12.2009 1:33pm
Gabriel McCall (mail):
In fact, neither Sotomayor nor any other judge has ever found that the exams -- one for would-be fire lieutenants, one for would-be captains -- were invalid or unfair. Nor has any judge found that allowing the promotions would have violated disparate-impact law.

Not a "finding" as such, but Sotomayor is definitely assuming- taking for granted- that the test is unfair.

From oral arguments (transcript here):


But if your test is always going to put a certain group at the bottom of the pass rate so they're never ever going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn't the city have an opportunity to try and look and see if it can develop that?


In other words, the test is unfair, a priori, because the black firefighters do not score as highly as the whites. No investigation into the actual capabilities or preparation of the individuals involved is necessary. A fair test cannot possibly return a racially disparate result, and if it does return a racially disparate result then it is not measuring knowledge in a "substantive way".
6.12.2009 1:44pm
AF:
That's not actually what he said at all, if you go on to read the next few paragraphs. He didn't explicitly propose a standard, but implicitly adopted the one suggested by many observers: that there has to at least be a good faith basis for believing one would lose such a suit.

We've had this argument before. When a specific employment practice has a prima facie disparate impact, an employer will be liable unless (1) there is business necessity and (2) there is no alternative policy with a lesser impact.

In the real world, how can an employer possibly know whether there is an alternative policy with a lesser impact unless it puts the first one on hold and investigates alternative policies?
6.12.2009 1:51pm
AJK:

The Circuit voted 7-6 to deny rehearing en banc, with all six dissenters signing an opinion that questioned the panel's judgment and highlighted the issue for the Supreme Court.



Thank you for sharing.
6.12.2009 1:51pm
Anton Sirius (mail) (www):

I had a girlfriend that I debated on more than one occassion on how tests might be biased against one "race" or another. She is a teacher and I wasn't so I never won that argument nor got a reasoned response. How does a test for a firefighter exactly discriminate? Pardon my igorance, but can someone pithily explain how that occurs?



The general argument about minority (specifically African-American and Hispanic) underperformance on written/academic tests has little to do with the qualities of the tests themselves, and everything to do with the candidates' expectations about how they will do.

Basically, minorities have internalized that minorities "don't do well on tests", and thus don't do well on tests. If you believe that theory, then the government's results-oriented position actually makes sense -- the only way to know that such an effect has been overcome is when minorities do well on tests. If they don't, then a priori the mere act of giving the test created bias.

(Interesting side point: a study that has yet to be backed up indicated that Obama's election may help undo that effect -- minority students performed statistically better on a basic civics test post-election win, and post-inauguration, than they did prior to Obama's win...)
6.12.2009 2:09pm
eric (mail):
A lot of people dance around the truth on these sort of things. The truth is that blacks generally score lower than whites on tests, firefighter or SAT. Sounds racist, but it is empirically true.
6.12.2009 2:24pm
Anderson (mail):
Sotomayor is definitely assuming- taking for granted- that the test is unfair

Consult your dictionary on that word "if" that she used in the quotation you provide.
6.12.2009 2:31pm
Brett Bellmore:

Basically, minorities have internalized that minorities "don't do well on tests", and thus don't do well on tests.


The alternative explaination is that they don't do well on the tests because they were affirmative action hires in the first place, and the tests merely expose the fact that there was a thumb on the scale when they were initially hired.

The thing is, with certain minorities having, on average, lower educational achievement, it's inevitable that they will, on average, do worse on perfectly fair tests of merit. If one employer gets enough of the high achievers to honestly make the grade, somebody else somewhere will HAVE to fall short, there not being enough of them to go around. The 80% rule encourages (is intended to, maybe!) the use of quotas to obscure that.
6.12.2009 2:38pm
Javert:
So "disparate-impact" is the test for racial discrimination, and the trigger for race-based remedies? Time to file suit against the NBA.
6.12.2009 2:45pm
J.R.L.:

I know nothing about the test in Ricci but I think a test that is only geared toward academic questions - the chemistry of fires, the mechanics of fire trucks, etc - rather than what fire fighters actually do in their job and what supervisors actually do could be such a test.

Please tell me you did not just say this.
6.12.2009 2:45pm
sbron:
I wonder if the victims of the massive wildfires in the last few years in Southern California spent even a minute worrying about the racial makeup of the Fire Dept. captains?
6.12.2009 2:46pm
davod (mail):
The white guy who took the action was dyslexic and stated he took extraordinary steps to study for the exam. He passed high enough to get one of the open slots.
6.12.2009 2:55pm
Soronel Haetir (mail):
One downside I see here, even assuming Ricci were to win at the SCOTUS level and then prevail on remand, how many employers want to hire someone who has proven themselves to be a troublemaker?
6.12.2009 2:59pm
ruuffles (mail) (www):

The white guy who took the action was dyslexic and stated he took extraordinary steps to study for the exam. He passed high enough to get one of the open slots.

My empathaometer just went through the roof.
6.12.2009 3:05pm
Potted Plant (mail):
The Ricci case really is interesting. I understand the argument (upheld by the Second Circuit) that refusing to use the test results because of fear of incurring Title VII liability is a valid defense to a claim of reverse discrimination. But that rationale splits hairs in a very fine manner, especially when the decision that the test results were a problem was made only after-the-fact.

I think that the real underlying problem is the whole idea of "disparate impact" analysis, which just invites this sort of race-conscious post-hoc analysis.
6.12.2009 3:12pm
David M. Nieporent (www):
In the real world, how can an employer possibly know whether there is an alternative policy with a lesser impact unless it puts the first one on hold and investigates alternative policies?
First, the burden in a disparate impact suit is on the party claiming disparate impact to produce evidence of an alternative policy with a lesser impact. That makes sense, because there's no possible way the employer (or Ricci, in this case) to prove that no alternative policy can possibly exist. There are an infinite number of other possibilities.

Second, the issue here is not that New Haven wanted to "put the first one on hold and investigate" -- if that's all that happened, there wouldn't have been a lawsuit -- but that it did investigate, did not find anything wrong, and ignored that lack of finding.

To the extent that Title VII allows this, then Title VII violates the 14th amendment.
6.12.2009 3:27pm
geokstr (mail):
What would have happened if the black and Latino candidates had formed a study group and put in a lot of effort to prepare for the test, so that they all had higher grades than all the whites? That would have put their proportion of the promotions totally out of line with their racial ratios in the candidate pool, in their favor instead of detriment.

Does anyone really believe that there would have been any complaints from the whites about about "racial" bias in the testing, or any worries about lawsuits for "disparate impact"? Does this "disparate impact" legal doctrine only go one way?
6.12.2009 3:31pm
AF:
I think that the real underlying problem is the whole idea of "disparate impact" analysis . . . .

I couldn't agree more. If you believe, as I do, that Title VII's prohibition on disparate impact is unquestionably constitutional, the Second Circuit is correct. If, on the other hand, you believe the Second Circuit is wrong, then you believe that disparate impact prohibitions are constitutionally questionable.

To be clear, it is possible to write an opinion overturning the Second Circuit's opinion without striking down disparate impact. In fact, that is exactly what the Supreme Court is going to do. But it is going to turn disparate impact compliance into a constitutional minefield much like affirmative action already is.

No matter what your position is on the merits of this imminent change, there is no denying that it is will be a change in the law, and a fairly radical one at that.
6.12.2009 3:32pm
Cato The Elder (mail):
For the first time, like ever, I have finally observed right-wing bias in the media!

Ahem.

I searched "Sotomayor" in Google News and Fox News' website is running the article, "Did Firefighters Stand a Chance Against Sotomayor?"

I will take a stand - I do not approve.
6.12.2009 3:36pm
AF:
First, the burden in a disparate impact suit is on the party claiming disparate impact to produce evidence of an alternative policy with a lesser impact. That makes sense, because there's no possible way the employer (or Ricci, in this case) to prove that no alternative policy can possibly exist. There are an infinite number of other possibilities.

An employer who has not tried any alternatives is not going to be in a good position to rebut a plaintiff's argument that an alternative would have been acceptable. At best, they will be at the mercy of a jury.

Second, the issue here is not that New Haven wanted to "put the first one on hold and investigate" -- if that's all that happened, there wouldn't have been a lawsuit -- but that it did investigate, did not find anything wrong, and ignored that lack of finding.

New Haven did not try any alternative tests. On the contrary, it conceded on appeal that had if it tried alternatives and abandoned them because of disparate impact, it would lose because then it would not have a reasonable basis for fearing a disparate impact suit. (I disagree with that concession.)
6.12.2009 3:41pm
Steve H (mail):

But that rationale splits hairs in a very fine manner, especially when the decision that the test results were a problem was made only after-the-fact.


This raises an interesting point. How would or should it be different if the decision to reject the test results was not made "after-the-fact"? What if the decision to reject the results was made before the test results came in? What if they decided to scuttle the test on the morning it was supposed to be taken? In either of those situations, Ricci still would have wasted his time and money preparing for a test that ended up not being considered.

What if the Fire Department considered doing the test but rejected it before any public announcement? Would Ricci still have a claim? Does he have had a right to require the Fire Department to use a particular test to determine promotions? If not, how does taking the test give him that right?


Anyway, based on Stuart Taylor's crusade against Sotomayor, is there any reason to think that he truly admires many things about her?
6.12.2009 3:53pm
CMB (mail):
Jake LaRow:

Exactly! I would love someone to explain how the test is UNFAIRLY biased. What am I missing? Seems like an excuse to throw out a standard test simply because minorities performed relatively poorly.

This is not about being TREATED differently. This is really about races PERFORMING differently.
6.12.2009 3:53pm
guest (mail):
Jake, it's biased towards those who study 13 hours a day, hire tutors, and hire others to record texts so they can review them, like Ricci.

Curses, my empathyometer just redlined. Perhaps I'll be more sympathetic to the failures if I find some article on their study habits.
6.12.2009 4:44pm
Jake LaRow (mail):
I just finished reading all the comments after my first posting and still am unsure on how there can be any disagreement on how this case should be decided. I realize that some or perhaps most here are graduates of law school and just maybe that is part of the problem.

Is it naive of me to think this is more cut and dry than others are letting on? I mean if all were firefighters taking a test for a promotion and there is no evidence with tampering or outside help to the whites other than their own faculties then how is this even debatable?

I work for a municipality that conducts tests for various positions in the city and it uses a third party to conduct the tests as well. The company is chosen by the city AND the union to which we belong presumably to prevent something like this from happening and to maintain impartiallity.

Any word if their union has said anything about this or taken sides?
6.12.2009 5:15pm
AF:
I mean if all were firefighters taking a test for a promotion and there is no evidence with tampering or outside help to the whites other than their own faculties then how is this even debatable?

Because a test can violate Title VII even if there is no intent to discriminate.
6.12.2009 5:28pm
Kingsley Browne (mail):
First, the burden in a disparate impact suit is on the party claiming disparate impact to produce evidence of an alternative policy with a lesser impact. That makes sense, because there's no possible way the employer (or Ricci, in this case) to prove that no alternative policy can possibly exist. There are an infinite number of other possibilities.




An employer who has not tried any alternatives is not going to be in a good position to rebut a plaintiff's argument that an alternative would have been acceptable. At best, they will be at the mercy of a jury.



Two things about that:

First, the statute does not place an obligation on employers to discover alternatives. It says that if an employer adopts a job-related practice with a disparate impact, the plaintiff may still prevail by demonstrating that an alternative with a lesser impact would serve the employer as well and the employer "refuses" to adopt it.

Second, no jury trial is available in disparate-impact cases.
6.12.2009 5:50pm
Steve H (mail):

Is it naive of me to think this is more cut and dry than others are letting on?


Usually, the answer to a question like this is "yes."
6.12.2009 6:05pm
Nunzio:
Maybe it's time for Congress to repeal disparate impact. This case is a far cry from Griggs.
6.12.2009 6:08pm
geokstr (mail):

Nunzio:
Maybe it's time for Congress to repeal disparate impact.

Yeah, right. Highly likely to happen under this Congress and this administration.
6.12.2009 7:22pm
Kazinski:
The City went out of its was in coming up with the test to make sure it was racially neutral. Which makes the fact that they threw out the results especially egregious.

Then their argument is basically: we can legitimately discriminate against the white (and Latino) firefighters, because we fear a discrimination suit from minority firefighters.

In other words if they fear being sued because there was not a specific quota of promotions set aside for minority firefighters, then they are justified in setting aside a quota of promotions for minority firefighters.

There may be those that dispute that the city is trying to impose a quota system, but if they refuse to implement any process that does not meet the quota, and are determined to keeps searching for a process until they find one that does meet the quota, then what else can you call it?
6.12.2009 7:26pm
Jake LaRow (mail):
Steve H-

Thanks for the clarification!
6.12.2009 7:45pm
Cobra (mail) (www):
Jake Larow writes:

"I mean if all were firefighters taking a test for a promotion and there is no evidence with tampering or outside help to the whites other than their own faculties then how is this even debatable?




Because that's not how the story went down back then, Jake.

"NEW HAVEN - A group of black city firefighters believe that some white co-workers had advanced knowledge of the contents of two recent promotional tests.

While the specter of cheating has been whispered around firehouses for weeks, a civil rights lawyer hired by the group put it on the table Thursday.

"We have witnesses who can confirm that some people were given advance information - these are going to be the texts, these are going to be the issues," said New Haven attorney John Williams. "Apparently, some people - certain people - decided who would get promoted."

Williams would not elaborate or say who those people were.

A top city official said she'd heard rumors of alleged cheating and urged anyone with information to tell the city.

"I don't know that to be true. I would encourage if people want to come forward with that, that they come forward," said city Chief Administrative Officer Karen DuBois-Walton. "At this point, that's not been brought to me in any form.

"That alone would be a reason to question the results" of the examinations, she said."




There's always more to these stories. I just want to know that in a nation where sensitive national security information gets leaked, misplaced or absconded by spies at an alarming rate, the prospect of getting prior access to a civil servants exam, (much like fraternities having copies of a professor's mid-terms or finals) is such an implausible theme to many here.

Fraud may or may not have occurred in the New Haven Fireman's exam, but it's irrefutable that an accusation of fraud had been made, which should at least raise the question.

--Cobra
6.12.2009 7:49pm
Kazinski:
Cobra,
Then why isn't that in the briefs?

If that was a legitimate issue in the case, then it would be extremely easy to justify throwing the tests out. The fact that it was not raised by the city as an issue to justify throwing the the tests out, suggests it was a red herring raised by an advocate after the fact to provide an alternative reason to throw the tests out.
6.12.2009 8:13pm
Soronel Haetir (mail):
Ummm, as for "these will be the texts" I believe that has been conceeded. Ricci claims part of his harm stems from having purchased a large number of books and having them transcribed to audio to overcome his dyslexia. Unless the black firefighters weren't told "Hey, study this material if you want a chance at promotion" I don't see how that has any basis.

I would think test contents of this nature would in fact be known in broad terms well before any such test. It would be akin to taking a bar exam with no foreknowledge of the requirments for passing.
6.12.2009 8:28pm
CMB (mail):
Why do I feel as if there is the most ginormous elephant in the room.
6.12.2009 8:38pm
Abdul Abulbul Amir (mail):


Basically, minorities have internalized that minorities "don't do well on tests", and thus don't do well on tests.


OTOH, what may have been internalized is that as a member of a Democrat part core constituency you don't need to do as well since slots will be reserved for you.
6.12.2009 10:14pm
Cato The Elder (mail):
Allegations that white fire-fighters got the tests ahead of time, playing upon an image of a connected, racist, brotherhood? When the image of the city administration is being tarred in the newspapers, it's shocking that this would emerge now, simply shocking.
6.12.2009 10:16pm
jccamp (mail):
Having dealt with similar affirmative action hiring and promotional schemes for many years, I'd like to add my insight.

The hiring process tests are similarly constructed (like the promotional tests) to achieve a goal of percentage of minority hires, normally something akin to the per cent of that ethnic group within the general population. In other words, minority hires typically achieve a lower entrance test score than corresponding white/anglo hires. It should not be too surprising that years later, the same minority employees display a similar record of comparable test scores when compared to the exact same group of white employees. In today's society, there is a great deal of competition for minority and/or bilingual candidates who also demonstrate higher levels of reading comprehension and writing skills. Skilled minority candidates don't need to join the Fire or Police Department. They can probably do better in private industry.

Reading the actual District Court decision, it appears that New Haven had been experimenting with different test scenarios for years, trying to achieve results that promoted minorities in some desired number. The discarded test was the result of a long and expensive validation process by a company that does nothing but design government civil service tests to achieve minority success in some tailored number for the respective application. A book list was publicized, detailed down to specific chapters which would be covered by the exam. The book list included both theory and practice of fire fighting, local government rules, and management and supervision theory and practice. The written test was only 60% of the final grade. Each candidate was interviewed by an oral board, consisting of one white, one minority and one Hispanic from other fire departments. The oral interview was 40% of the final score. The oral board gave the candidates practical exercises and work-related questions. The 60/40% split was per labor contract with the firefighters.

Several quotes from the DC decision:
From Dr. Janet Helms, a professor of counseling psychology and the Director of the Institute for the Study and Promotion of Race and Culture at Boston College, "Dr. Helms from Boston College testified that the racial disparity on the exams at issue were not significantly different from the statistical
disparities apparent on standardized tests nationwide." This from a witness in favor of discarding the test.

Testimony from several firefighters who scored high included the fact that they spent $1,000 buying the textbooks to study from. Testimony from minority firefighters who failed or scored low complained that the textbooks were not available for study within the firehouses, so they didn't get to study the texts.

From Christopher Hornick, Ph.D., an industrial/organizational psychologist from Texas who runs a consulting business in competition with IOS (the company that prepared the test): "he had "not had time to study the test at
length or in detail." but concluded that "we're seeing relatively high adverse impact" from the IOS tests. He also said "we know that" a written test is "not as valid as other procedures that exist (to test firefighters)." Dr Hornick said he obtained some of his information about the test from reading the local newspapers.

And I love this one from the judge: "Finally, plaintiffs cannot show that defendants acted out of an intentionally discriminatory purpose...Nothing in the record in this case suggests that the City defendants or CSB (Civil Service Board) acted "because of" discriminatory animus toward plaintiffs or other non-minority applicants for promotion." So, the burden to be met to disqualify the exam was "disparate impact", regardless of intent, good faith, etc. But the plaintiffs had to actually prove "discriminatory animus."

BTW, in my experience, the only way out of this box is for New Haven to design a test that any moron could pass, i.e.
1. What Department do you work for?
2. What color are the trucks of the Fire Department?
etc.
and then institute a pass/fail list, with persons to be promoted selected "randomly" and coincidentally in the exact desired ratio. That's how most hiring is done these days. We don't hire the best; we lump everyone together that passed, and then consider random groups form the overall list.

Instead of providing support and/or assistance to those who don't test well, and trying to elevate the weaker students, we're simply dropping to the lowest common denominator.
6.12.2009 10:21pm
A. Zarkov (mail):
The statistics for the July 2005 California Bar exam are here. The pass rates for first time takers (ABA approved law schools) broken down by race are as follows.

White 75.0%
Black 46.4%
Hispanic 57.5%
Asian 67.0%

So the California Bar exam flunks the "four fifths rule."

Thus a law firm that requires its newly hired associates to pass the exam as a condition of employment would seemingly ru afoul of "disparate impact." The Bar exam like the New Haven Fireman's exam is a test of acquired knowledge. If you don't study for the Bar you can flunk. Even quite accomplished people can fail. The dean of Standford Law School failed the Bar a few years ago. Jerry Brown flunked the exam. I think Pete Wilson flunked twice. The Hispanic mayor of Los Angeles, Antonio Villaraigosa failed 4 times and then gave up. Poor Antonio he's yet another Hispanic victim of a disparate impact test.

My daughter passed the Bar few years ago, and she told me the test was easy. But she studied. I guess her whiteness did the trick.
6.12.2009 10:32pm
Cobra (mail) (www):
Kasinki writes:

"Then why isn't that in the briefs?"




That's a great question. Another great question I have is why haven't the details of the City Board meetings reviewing the test been discussed in greater detail?

Tim Wise compiled some facts here that haven't been discussed often in the mainstream media:

"Importantly, the decision to disregard the exam was not made in haste. Instead, the city, concerned by the red flags raised as a result of the large racial disparity on the test, opted for a scrupulously fair and methodical process of evaluation before choosing to throw out the scores. First, they turned the decision over to a civil service review board. Then, at the request of those who wanted to use the scores, the only African American member of that board voluntarily recused himself from the process. As a side note, that such a request was even made indicates the depths of white privilege that permeated this process...

...Then the Board held five days of public hearings, during which they heard testimony from supporters and opponents of the testing procedure, including experts on both sides of the issue. One of the experts, an industrial psychologist (which is the very field whose practitioners develop tests like the one for the New Haven fire department) noted how surprised he was by the extent of the racial disparity on this particular test. Although such exams often produce racial differences in outcomes, they are rarely if ever this pronounced, he explained. Indeed, in this particular case, black test-takers who had previously ranked 3rd and 5th on exams for the same positions (and who had just missed being promoted in the past) only managed to rank 13th and 15th respectively: one on the lieutenant's test, and another on the test for captain. That such a regression would occur for persons who had previously done so well was another reason the test's validity seemed questionable.




Remember, Frank Ricci ranked 6th in this particular exam, so the notion that "Blacks just don't do well on these tests" is bullocks. And it gets even more interesting. Remember, New Haven is a "donut-city", where Whites have mostly fled to the suburbs, leaving mostly Blacks and Hispanics in town. Frank Ricci, for example, is not a resident of New Haven, but of Wallingford, CT

Would the structuring of the test make "correct" answers more apparent to non-residents? Wise notes from the testimony:

""Also, according to testimony offered by several experienced firefighters, there were several problems with the content of the exam. First, some material on the test was completely inapplicable to the New Haven community, and other questions actually had correct answers that were contrary to local firefighting policy. For instance, one question asked whether it was best to approach an emergency from uptown or downtown--terminology with no valid meaning in New Haven given the way in which the community is constructed--and another offered several multiple choice options among its answers, none of which happened to be the correct answer, in line with New Haven policy."




I have NEVER heard this on either network television coverage, or the opinion pages of major newspapers. Have you?

And perhaps the most interesting facet:

"Alternative tests, which would test for "situational judgment," were explained by the industrial psychology expert to be far superior in such cases, as were other alternatives. Interestingly, had the city simply altered the test by requiring passage on both the oral and written sections separately--rather than allowing poor oral skills to be compensated for by high written scores--a black test-taker would have qualified for promotion and two of the whites who did would not have. Likewise, had they been allowed to round scores up to the nearest full integer (reflecting the commonly understood social science truth that fractional score differences can result from random chance and say nothing about real aptitude), four blacks would have qualified. And if they had merely weighted the test differently, as other communities have done, giving more weight to the oral exam than the written, two black test takers would have been in the running for a lieutenant position, and one would have been in the mix for captain."



Do you see how the arbitrary nature of this one test can be open to the litigation that we see before us? This is why the simple "reverse discrimination" angle just doesn't wash for me here. This is a very thick and complex case, and I don't believe enough people are seeing the complete issue.

--Cobra
6.12.2009 11:02pm
David M. Nieporent (www):
An employer who has not tried any alternatives is not going to be in a good position to rebut a plaintiff's argument that an alternative would have been acceptable. At best, they will be at the mercy of a jury.
The plaintiff has to provide proof, not merely "argue" that there might be some alternative. As I said, there are an infinite number of possible alternatives. That's why the requirement is for the plaintiff to show that one of these alternatives would have less disparate impact.

There is certainly no requirement in Title VII -- it would be loony if there were -- that any time a test has a disparate impact, after the employer has already validated that test and shown that it's job-related, the employer must discard that test, "try" another one, and then go back to the first test only if the second test results turn out not to be "better."

Second, the issue here is not that New Haven wanted to "put the first one on hold and investigate" -- if that's all that happened, there wouldn't have been a lawsuit -- but that it did investigate, did not find anything wrong, and ignored that lack of finding.

New Haven did not try any alternative tests.
Right; that's not New Haven's job. New Haven investigated whether this test was job-related vel non, couldn't find any flaws, and discarded it anyway because it didn't want too many whites to be promoted.
On the contrary, it conceded on appeal that had if it tried alternatives and abandoned them because of disparate impact, it would lose because then it would not have a reasonable basis for fearing a disparate impact suit. (I disagree with that concession.)
You lost me somewhat with some of your pronouns, but apparently you think disparate impact is some sort of trump card. But as the plaintiffs pointed out in Ricci, every test has disparate impact. Disparate impact is not an excuse by itself for throwing out a test.

(And, of course, there's a factual issue in this case as to whether fear of a disparate impact suit was mere pretext for crass racial politics.)
6.12.2009 11:12pm
David M. Nieporent (www):
Cobra, Tim Wise is a liar. He claims that the black member of the CSB was forced to recuse herself because black people can't be trusted to be impartial; in fact, she was forced to recuse herself because her brother was one of the test-takers.

As for "some material on the test" being inapplicable, the "for example" is actually all there is -- it literally refers to 2 of 200 questions, and has absolutely nothing to do with the rankings of the candidates. Everyone who examined the test said it was fair and accurate. Except, of course, the sore loser candidates who didn't do as well.
6.12.2009 11:24pm
CMB (mail):
Cobra,

The weight was determined before the test and everyone took the same exam. So the only remedy is to use the black-maximizing weight distribution next time and not apply it retroactively as you are.

Moreover, I believe during the oral argument it was mentioned that whites dominated all recent tests (just not this much). Assuming this is true, the only difference with this particular test is that because the department was only selecting 16 applicants the department did not reach deep enough into the pool to "catch" a few blacks.

Or it could just be an anomaly — like if you flip a quarter enough times, you will get ten heads in a row. In other words, although whites dominate the tests, there are usually a few blacks, which keeps everyone happy.

So if whites always dominate tests, how can they create a test that ALWAYS does no deviate too far from the norm?
6.12.2009 11:45pm
A. Zarkov (mail):
Cobara:

Those facts (let's assume they are true) that Tim Wise provides don't establish any kind of racial bias in the exam. Let's take a look.

"... black test-takers who had previously ranked 3rd and 5th on exams for the same positions ... only managed to rank 13th and 15th respectively"

That shows they didn't study as hard for the second test.

"Remember, New Haven is a "donut-city", where Whites have mostly fled to the suburbs, leaving mostly Blacks and Hispanics in town."

This is grasping at straws. How does living in a New Haven suburb help you answer the questions? Then we have those black test takers who scored 3rd and 5th on the first test. Did they move to New Haven from the suburbs?

"Likewise, had they been allowed to round scores up to the nearest full integer (reflecting the commonly understood social science truth that fractional score differences can result from random chance and say nothing about real aptitude),..."

This statement makes no sense. Rounding up will introduce a bias, although a small one.

"And if they had merely weighted the test differently, as other communities have done, giving more weight to the oral exam than the written,..."

The 40%-60% weighting of oral-written score was determined by union contract. New Haven had no choice. This set of comments about what would have happen if this and that had been changed suggests the test should have been gamed to increase the ranks of black test takers. No. This is a prescription for chaos. You make the rules and then follow them.

"Do you see how the arbitrary nature of this one test..."

What's arbitrary and how can that possibly affect the racial mix of the results? Even an arbitrary test will likely be racially unbiased. It just won't measure what you want it to.

The entire Wise narrative is laced with insults and polemics. He provides no useful information as one might expect from someone who self describes as follows
Tim Wise is among the most prominent anti-racist writers and activists in the U.S., and has been called, "One of the most brilliant, articulate and courageous critics of white privilege in the nation...
Wow this really give one confidence.
6.13.2009 2:08am
Bruce Hayden (mail):
The Ricci case really is interesting. I understand the argument (upheld by the Second Circuit) that refusing to use the test results because of fear of incurring Title VII liability is a valid defense to a claim of reverse discrimination. But that rationale splits hairs in a very fine manner, especially when the decision that the test results were a problem was made only after-the-fact.

I think that the real underlying problem is the whole idea of "disparate impact" analysis, which just invites this sort of race-conscious post-hoc analysis.
I have a problem here, where the strong suggestion seems to be that Title VII's disparate impact provisions seem to trump the 14th Amendment's Equal Protection guarantee.
I couldn't agree more. If you believe, as I do, that Title VII's prohibition on disparate impact is unquestionably constitutional, the Second Circuit is correct. If, on the other hand, you believe the Second Circuit is wrong, then you believe that disparate impact prohibitions are constitutionally questionable.

To be clear, it is possible to write an opinion overturning the Second Circuit's opinion without striking down disparate impact. In fact, that is exactly what the Supreme Court is going to do. But it is going to turn disparate impact compliance into a constitutional minefield much like affirmative action already is.
But is Title VII Constitutional AS APPLIED? The District Court judge and the 2nd Circuit panel seem to be buying into the argument that Disparate Impact trumps Equal Protection, despite the former being statutory, and the later Constitutional.

I think that the problem is that while Disparate Impact was originally devised as a quick and dirty method of detecting Equal Protection violations (through Title VII, etc.), it has changed over time to have a life of its own, often being used now for just the opposite purpose - race based allocation of spoils. So, I think it necessary to go beyond the question of whether Title VII is Constitutional, and look at how it is being implemented and utilized. And there, I would suggest that in some cases (and this may be one of them), it is being used in an unconstitutional way to defeat the very same Equal Rights guarantee it was designed to protect.

I really don't see a whole lot of difference between Disparate Impact and Affirmative Action. Both seem to strive to allocate public resources on a racially discriminatory basis.

So, yes, if turning Disparate Impact analysis into the Constitutional minefield that AA is happens, I think it for the better.
6.13.2009 2:26am
Desiderius:
jccamp,

"That's how most hiring is done these days. We don't hire the best; we lump everyone together that passed, and then consider random groups form the overall list.

Instead of providing support and/or assistance to those who don't test well, and trying to elevate the weaker students, we're simply dropping to the lowest common denominator."

And the more "Progressive" one's institution, the more likely that this goes on. One seeking to undermine such institutions would be hard-pressed to devise a more effective strategy.

No person left behind.
6.13.2009 8:36am
AF:
There is certainly no requirement in Title VII -- it would be loony if there were -- that any time a test has a disparate impact, after the employer has already validated that test and shown that it's job-related, the employer must discard that test, "try" another one, and then go back to the first test only if the second test results turn out not to be "better."

Title VII doesn't require it, but it is an eminently practical way of complying with the statute.

You lost me somewhat with some of your pronouns, but apparently you think disparate impact is some sort of trump card. But as the plaintiffs pointed out in Ricci, every test has disparate impact. Disparate impact is not an excuse by itself for throwing out a test.

And there, I would suggest that in some cases (and this may be one of them), it is being used in an unconstitutional way to defeat the very same Equal Rights guarantee it was designed to protect.


These points beg the question. What is this equal protection "guarantee" that would require an "excuse" for throwing out a test with a racially disparate impact?

Whatever it is, is a novel guarantee that does not presently exist in the case law.

The Equal Protection Clause has never before been interpreted to forbid governments from choosing to avoid racially disparate impacts -- even racially disparate impacts that do no violate Title VII -- or, for that matter, from trying to help minorities, in the absence of a racial classification. (And keeping data on race has never been seen as a racial classification.) Put another way, avoiding disparate impacts or helping minorities have never been considered among the invidious purposes banned by Arlington Heights. The Roberts Court is clearly heading in that direction. I vehemently disagree with that imminent change. Others may agree with it. But I think we can all agree that it is a change.
6.13.2009 11:42am
Cobra (mail) (www):
David M. Nieoporent writes:

" He claims that the black member of the CSB was forced to recuse herself because black people can't be trusted to be impartial; in fact, she was forced to recuse herself because her brother was one of the test-takers.




Right....because there can only be one black member of a civil service board at a time in a city that is majority minority. Of course, this wouldn't matter to those who hold the view that the presence of non-whites in managerial, supervisory or judicial roles is irrelevant. I've posted with you many times before Dave, so I'm not accusing you of this, but...
Come to think of it, that's one of the arguments some use against Judge Sotomayor in the first place.

A Zarkov writes:

"That shows they didn't study as hard for the second test."




And you're basing this on the access you have to the test results, which include oral and written portions from all participants for evaluation? Or are you just making an assumption? Even Assistant Drillmaster Rene Cordova, President of the New Haven Hispanic Firefighters Association, who's supporting the New Haven 20, says this:

"The pair contended that the real issue isn't about race: Instead, they argued that the way the test was designed favored "fire buffs" who have spent their whole lives reading fire suppression manuals, and studied like maniacs for the exam. Incidentally, most firefighters matching that description happened to be white, they said...

...Instead of focusing on the race question, Cordova and his board member were more concerned about creating a better test. The last one, they said, was drawn from material that included passages that weren't relevant to New Haven firefighting. It included a variety of books, including one from a New York City-based author that didn't seem germane to their territory.

They said the performance differential stemmed not from race, but from studying habits.

Those who aced the test were nerds who read fire-fighting books just for fun, said Cordova's cohort. "These kids will get together" and pay famous authors, like text prep manual writer Norman Hall, to come to New Haven to speak. "They think he's superman."

He said those firemen aced the test by memorizing all the books — including passages that others overlooked because they didn't find them pertinent.




A. Zarkov writes:

"The 40%-60% weighting of oral-written score was determined by union contract."





Yes, the predominantly White New Haven Firefighters Union, Local 825 determined the weighting of the exam by contract.
And when an outside firm was hired to design the test itself:

"After I/O Solutions was hired, representatives visited firehouses, interviewing officers on what skills and qualities they viewed as important for the New Haven department. The company also created a questionnaire for them.


Candidates seeking promotion received a syllabus of required reading and some members of the department complained that the text didn't relate well to New Haven.


When Civil Service Commission Chairman James Segaloff asked Legel why some of the exam seemed questionable, the consultant explained that "the test development process is by no means perfect."





Which New Haven Fire Department Officers were interviewed to design this test? The White Leaders of Local 825, in an historically White New Haven Fire Department (First Black 1957)? Why is it so hard for many of my anti-affirmative action-type friends to see the "old boy networking" going on here? Weigh the test on the written side, throw in irrelevant or outdated questions that only one who had studied (selective mentoring/study groups/hired guest speakers) for said irrelevant and outdated material would have the correct answers to—which could quite possibly make up the difference in placing 10th verses 14th or 21st. (Without acutally scores being posted, we really don't know what the #1 score was, now do we? We only know from records that "passing" was 70.)

We also have, irony or ironies, a "victim" in Frank Ricci who apparently, is very familiar with discrimination lawsuits:

"Frank Ricci had filed a previous federal discrimination lawsuit against the New Haven Fire Department in 1995, alleging that the City had passed him over for a job due to his dyslexia. He withdrew that lawsuit two years later in exchange for a job with the fire department and $11,143 in attorney's fees.[6] Ricci was represented in his disability discrimination lawsuit by Garrison &Arterton, the law firm of future Federal District Court Judge Janet Arterton, who later presided over Ricci v. DeStefano. [6] (Judge Arterton had no recollection of her firm's representation of Ricci, and so did not recuse herself.[6])"






Do I have faith that the White Male Dominated SCOTUS will come to a wise decision on this matter?

Nope.

—Cobra
6.13.2009 12:03pm
Tony Tutins (mail):
The panel's decision to adopt as its own U.S. District Judge Janet Arterton's opinion in the case looks much less defensible up close than it does in most media accounts.

Then let's look into a mirror image case in which an Eight Circuit panel decided to adopt as its own the U.S. District Court opinion, in Stewart v. City of St. Louis. Only, here the plaintiffs were black firefighters who were denied promotion, even though they had passed the test. The only promotions went to whites. The district court had held that the whites' pass rate of double that of the black firefighters was not statistically significant. A 2:1 ratio does not establish disparate impact in the Eighth Circuit.

This is not some obscure case, either -- the white firefighters in Ricci rely on it to make part of their case. So why is the decision of a panel to adopt the opinion of a district court defensible if whites are promoted instead of blacks, but less defensible if no one gets promoted?
6.13.2009 12:36pm
sbron:
Here's an appropriate response to this whole Ricci/AA/Sotomayor madness.


But if we ever get out of this place alive, if there is a planet that would take mishuganas like us, the first thing we should check before settling there is if they handle their children with care and assure their offspring they are all unique. Unless they have a law on their books that makes the demand for equal outcome illegal, we should keep looking for another place to go. Ideally, it should be a planet that requires citizens to sign a consent form:

We, the undersigned, have been informed that all people are created different and that engineering equality of outcome is a crime against humanity punished by execution or exile.
6.13.2009 1:08pm
Jim Hu:
Right....because there can only be one black member of a civil service board at a time in a city that is majority minority.

From what I can tell there are only four commissioners on that board. Wikipedia's description of census data says New Haven may be majority minority, but it is not majority black. One out of four would be surprising in Detroit, but it doesn't raise my eyebrows in New Haven.

You raise some interesting points about some difficult kinds of disparate impact, such as how the emphasis on expensive study materials affects both the cost of doing well and the nature of what is valued in the scoring. Those of us who have anything to do with university admissions and search committees would do well to think hard about those things, no matter what the outcome of Ricci.

Your argument about the unions is also interesting, but is probably way too politically radioactive to be mentioned at all in the confirmation hearings or the MSM coverage.
6.13.2009 2:17pm
Guest In the Know (Unlike Cobra and Wise):
My Lord - some of you folks (Wise and Cobra notably) have their facts SO wrong. FYI, it is right in the court record that the allegations of cheating by whites were utterly false and had been fabricated, and admitted as such by the city. When the couple of failing candidates who had spread those rumors were asked for their evidence of that malicious allegation, they ran for the hills - and their lawyer who had irresponsibly published those allegations in the local press squirreled away, never to be heard from again. An irresponsible poster, obviously ignorant of the court record on this issue, has regrettably repeated these allegations on this site. Second, there were 4, not 5 board meetings (not "hearings") and there was no "testimony". No witnesses were "sworn" (the city's lawyer refused to allow that; all speakers were subject to a two-minute speaking limit and there was no adversary procedure - no cross-examination). None of these "witnesses" testified in the district court proceeding (if they had, they would have been destroyed in cross-examination - which is why they disappeared come litigation time). Third, the undeniable statistics showed the same pass rates and the same adverse impact ratios across multiple tests - not only in the fire department but the city's police department, in one case leading blacks to sue for disparate impact (they lost in court - so much for the assertion that disparate impact alone means a Title VII violation). The outcome of the Ricci exams was no different. Every civil service test in New Haven revealed the same race-based disparities, as relatively uneducated race-based, entry-level hires later compete with highly credentialed, educated and degreed white candidates. The city's racial quota entry hiring (based on a since court-enjoined practice of entry-level hiring without regard to exam scores - i.e., hiring from the bottom of the list for reasons of race) contributes greatly to the problem with promotional exams. Fourth, one of you guys has the nerve to say that largely white union members controlled the job-analysis-interviews during the exam development process? Geez, can't you read a record or a brief? Quite to the contrary, the test developer deliberately over-represented minorities in that process - and the second highest-ranking person in the department, a black man, assisted the test consultant in selecting the exam syllabi and he thought the test was fair and valid, but the city did not allow the civil service board to hear from him (big surprise). Lastly, it is utter nonsense that the city heard competent evidence of question flaws. One candidate (belatedly I might add) complained about a question that used the terms "uptown-downtown" and said those were "New York" terms and there was no "uptown-downtown" in New Haven. Had this candidate bothered to read two basic exam texts, he would have realized (like passing candidates did) that those are not "New York" terms but staging terms used to describe established tactical protocols in staging a response to a fire or incident on a congested one-way street. Not to mention the city never once asserted exam flaws in the lower courts, undoubtedly because the only "evidence" was an asinine complaint from a candidate about two questions, neither of which he even accurately recounted to the board. Even were we to discount the two questions, you would have the same result in terms of candidate rankings, so what, pray tell, is your point?? Enough facts for ya Mssrs. Cobra and Wise??? Now please do go away.
6.13.2009 4:27pm
Desiderius:
In the know,

Paragraphs?

I don't know - Cobra seems to making some sense in this thread.

Jim Hu,

"Your argument about the unions is also interesting, but is probably way too politically radioactive to be mentioned at all in the confirmation hearings or the MSM coverage."

You mean bringing home the David-Bacon and Progressive goals are not in perfect alignment? Heresy! Maybe Cobra and his buds should take over the local Republican Party to Fight the local Good-Old Boy Power. Doubt its being much used at the moment.
6.13.2009 4:59pm
Desiderius:
Davis
6.13.2009 5:00pm
David M. Nieporent (www):
There is certainly no requirement in Title VII -- it would be loony if there were -- that any time a test has a disparate impact, after the employer has already validated that test and shown that it's job-related, the employer must discard that test, "try" another one, and then go back to the first test only if the second test results turn out not to be "better."

Title VII doesn't require it, but it is an eminently practical way of complying with the statute.
Developing and administering two tests every time one wants to hire or promote someone is "practical"?

These points beg the question. What is this equal protection "guarantee" that would require an "excuse" for throwing out a test with a racially disparate impact?

Whatever it is, is a novel guarantee that does not presently exist in the case law.
Non-discrimination. "You're white, so even though you're qualified we won't promote you" is classic disparate treatment, banned not just by Title VII but by the equal protection clause.

The Equal Protection Clause has never before been interpreted to forbid governments from choosing to avoid racially disparate impacts -- even racially disparate impacts that do no violate Title VII -- or, for that matter, from trying to help minorities, in the absence of a racial classification.
But this is a racial classification. They decided not to promote firefighters after they determined what race the firefighters were. That's the part you're missing.
(And keeping data on race has never been seen as a racial classification.) Put another way, avoiding disparate impacts or helping minorities have never been considered among the invidious purposes banned by Arlington Heights.
I don't understand the reference; is there an "Arlington Heights" case I'm unfamiliar with? Nothing was "banned" by the Supreme Court's decision in that case, and it didn't involve a racial classification at all, so I don't see how it's even relevant.
The Roberts Court is clearly heading in that direction. I vehemently disagree with that imminent change. Others may agree with it. But I think we can all agree that it is a change.
We can't. What's a change is the use, by New Haven, of disparate impact not as a cause of action, but as a weapon, as an excuse for reverse discrimination.
6.13.2009 6:17pm
geokstr (mail):

Desiderius:

In the know,

I don't know - Cobra seems to making some sense in this thread.


Geez, very little of what "Guest In the Know" is saying appears to this non-lawyer to be opinions, but instead what he is listing are some facts that are not being considered. Like for instance, a number of key points your side is using to make "sense" happen to be contradicted in the actual documents.

I haven't read them myself, but it would seem incumbent on you to actually refute his statement that these are the actual facts, otherwise they make a bit of hash out of your conclusions.
6.13.2009 6:56pm
Tony Tutins (mail):

But this is a racial classification. They decided not to promote firefighters after they determined what race the firefighters were.

There's a racial disparity but not a racial classification. They decided not to promote firefighters after they determined to their own satisfaction that the test gave different results for different races.

How could you determine if a test is race-neutral if you couldn't compare performance by race? The statute requires you to compare performance by race. Don't like it? Change the statute.

Another topic: I guess the white DC judge was supposed to sympathize with the dyslexic candidate, who had to hire tutors to help him pass the exam. But I'm wondering now, what happens after he's promoted? Will the NHFD have to pay a tutor to explain things to him after he's promoted? Under what authority, the ADA? I'd rather promote a guy who didn't need massive intervention to do well on an exam.
6.13.2009 6:58pm
Tony Tutins (mail):
Geez, very little of what "Guest In the Know" is saying appears to this non-lawyer to be opinions, but instead what he is listing are some facts that are not being considered.

Guest in the Know and Cobra presented two incompatible sets of unsupported assertions. When they cite their sources, we can start figuring out what the facts are.
6.13.2009 7:03pm
sbron:
I'll say this once again, I wish everyone who thinks race should be a criterion for promoting firefighters could experience the terror of a California wildfire. Using anything but the merit criterion that Sotomayor claims she does not understand is suicidal in cases of firefighters, airline pilots and neurosurgeons.
6.13.2009 7:57pm
jccamp (mail):
Cobra -

I must add that the industrial psychologist you cited owns and runs a for-profit company which is on direct competition with the (also for-profit) company which designed and administered the New Haven exam. He is hardly a disinterested observer, or someone speaking as an academic. Also, he qualified his statements with the disclaimer that he didn't have time to review the material thoroughly, and that much of his knowledge came from reading the local newspaper.

One other point: some candidates decided that portions of the material on which the exam was based were unimportant, and that they didn't need to study them. "He said those firemen aced the test by memorizing all the books — including passages that others overlooked because they didn't find them pertinent." Actually, isn't that how anyone is expected to pass any test on any subject, by studying the subject material. Imagine one of your educational courses, telling the professor/teacher/whatever "I ignored those parts of the textbook which seemed unimportant to me, so you shouldn't be able to fail me for getting them wrong." Isn't what we want in our public safety employees, and more, in their commanders, "nerds" who read everything they can and are never satisfied with their knowledge level?

I can't really believe anyone would offer that argument. The books listed were even sub-listed by chapters included in the test material, so that in some instances, candidates didn't have to read an entire book. But the failing/low scoring candidates decided on their own what they needed to know in advance of actually gaining the promotions? That's lame at best.
6.13.2009 8:00pm
davod (mail):
"There's a racial disparity but not a racial classification. They decided not to promote firefighters after they determined to their own satisfaction that the test gave different results for different races."

An independent party developed the test to be race neutral. One of the arguments made was it didn't matter if the test was neutral. If the town did not promote minorities they could be open to litigation.
6.13.2009 8:12pm
David M. Nieporent (www):
But this is a racial classification. They decided not to promote firefighters after they determined what race the firefighters were.

There's a racial disparity but not a racial classification. They decided not to promote firefighters after they determined to their own satisfaction that the test gave different results for different races.
They decided not to promote them because they were white. Had they been black, the city would not have thrown out the test results. That's a racial classification. It's race-conscious.

How could you determine if a test is race-neutral if you couldn't compare performance by race? The statute requires you to compare performance by race. Don't like it? Change the statute.
You don't determine if the test (and by the test, you actually mean the results, not the test, which is obviously race-neutral.) The results don't have to be "race-neutral" in the sense you mean it here. (It can't possibly be, unless talent and preparation are evenly distributed by race across every applicant pool.) The results being not race-neutral is merely the first factor. The second is showing whether the test is job-related. If it is, it doesn't matter what the results are (unless the failed applicants can find some other test with more "neutral" results that's just as job-related.)

The problem is that New Haven took the opposite approach: not caring whether the test was job-related, as long as the results were pc.
6.13.2009 8:24pm
jccamp (mail):
Desiderius -

"And the more "Progressive" one's institution, the more likely that this goes on. One seeking to undermine such institutions would be hard-pressed to devise a more effective strategy. "


I agree with the thrust of your comment, but truthfully, I have found it's most like "the more susceptible to lawsuit, the more likely this goes on (i.e. lowering the standards rather than attempt to raise the candidates' level of achievement). " And you are most correct in that you couldn't find a better way to lower performance levels of the organization if that was the intent (which, of course, it's not). The VC threads are filled with the occasional anger and generally, I guess contempt for law enforcement, specifically among some posters who might also be expected to support this kind of selective hiring and promotion which is detrimental to organization behavior, and not see the contradiction.

Fifty years ago, it was fairly common that minority cops would only be allowed to work within minority neighborhoods. The proper term was "segregation." Somehow, that has been resurrected as a positive, in "only police and fire who look like me can be public servants in my neighborhood." Generally, the accepted goal - not quota, mind you - is that public safety employees match the general population of the government corporation or subdivision in terms of ethnicity. Since the voters would be expected to pretty much match those same percentages, it easy to see how elected city/county officials tend to see disparate impact when there exists a substantial minority voting block.

All of which begs the point of the OP that SS tried to pull a fast one with this case. I agree.
6.13.2009 9:40pm
AF:
But this is a racial classification. They decided not to promote firefighters after they determined what race the firefighters were. That's the part you're missing.

Put differently, they decided not to use the test results after they determined they had a racially disparate impact. It is certainly race-conscious, but there is no precedent for considering it be a racial classification.

Mr. Nieporent, I keep saying this is unprecedented and you keep saying I'm wrong, but you don't cite any precedent. Do you know of a case in which the abandonment of a test with a prima facie disparate impact was found to violate the Equal Protection clause?
6.13.2009 11:11pm
Guest In the Know (Unlike Cobra and Wise):
Cobra is obviously such an leftward ideologue that he has no problem at all manufacturing "facts" in a case where he has no access to the detailed court records. Remember that this record is deep and voluminous - it is cited frequently but not all cites are to the petitioners' or joint appendix but to the actual record. The justices and their clerks have it but Cobra does not (and even if he did, it looks like he'd ignore it anyway).

He says "experienced firefighters" noted question flaws on the exams. This was never argued in the district court. What is in the appendix is the city's admission that they are not claiming test invalidity or flaws and have no basis to impugn the exams. This is because the complaints of these two disgruntled failing candidates were discovered to be utterly without merit. (which is why they never used the post-exam complaint process set up by the testing company that allowed for candidates to challenge questions. These two individuals only complained months later after they saw that they failed.)

Cobra states as fact that one question did not permit the right answer. Again, Cobra does not know what he's talking about. This candidate actually got it wrong before the civil service board!! (Er, it's why he failed the test). If the candidate did find a faulty question and answer, don't you think the Mayor's agents would have followed up provided the docs to the board? After all, they were scratching dirt to find flaws but came up with nothing.

Note that the city in its Supreme Court brief never claimed that the two complaints about two questions actually had any merit. It was pathetic - they mentioned the complaints but then moved on, without any further representations, not mentioning that the complaints were bogus. Interesting form of advocacy. Hmmmm

And Mr. Wise, I know this fact must kill you, but the African-American member of the civil service board who recused was the sister of the very failing candidate who started this entire fight and who lobbied his sister's board for a discarding of the test results. He is also kin to other black city officials. Sorry to destroy your "white club" dogma. Another candidate who joined in that lobbying failed every single promotional exam he's ever taken. (What does that tell you?)

Next fact - the nature of civil service exams, the minimum passing score and the requirement for modified rank ordered selection (the "rule of three) are not rules set by the union. All are required by local and state law, and voters rejected the city's proposal to eliminate them in a ballot referendum (uh, by city voters Cobra and Wise suggest have no white because they all "fled" to the suburbs).

The CT Supreme Court unanimously held that these laws must be strictly complied with (notably in a case challenging the city's race-based promotional practices in which it skipped over high ranking white to promote low-ranking blacks in violation of those law). Now, put two and two together here folks. The city's unprecedented scuttling of exam results occurred for the first time in city history only after they lost that case in the state courts. Their use of Title VII in this case was really a last resort to get around the Connecticut Supreme Court's mandate.

Lastly, the 60/40 weights are common in such testing and, this split was actually retained by the city in its post-Ricci re-negotiation of the firefighters' union contract -with the support of the membership. Nobody wants oral exams - too much cheating and too many subjective thumbs on the scale, especially with a city bent on race-engineering exam outcomes. And really lastly, how dare you make a snarky remark about Ricci's dyslexia. Here's a guy who knows his stuff, just has to learn it differently than others. Instead, you exalt the ones who did not pass and did not make the effort Ricci did? And you dis him for listening to books on tape. You have no class and you are mean to boot.
6.13.2009 11:29pm
Cobra (mail) (www):
jccamp writes:

"Isn't what we want in our public safety employees, and more, in their commanders, "nerds" who read everything they can and are never satisfied with their knowledge level?"



I can stand up and applaud some aspects of that statement, after 8 years of anti-intellectualism was embraced by the highest seats of power in Washington. But to be honest, I would weigh strong leadership skills a bit more heavily than straight "nerdiness", but a hybrid of the two would be my ideal. I mean, jc, repeat to yourself a statement from the logical conclusion to your argument:

"I want the Captain and Lieutenant of my local Fire House to be the biggest nerds in town..." doesn't quite have the same comfort level as "Tax Accessor", "Comptroller", or "School Superintendant."

In the Know writes:
"Third, the undeniable statistics showed the same pass rates and the same adverse impact ratios across multiple tests - not only in the fire department but the city's police department, in one case leading blacks to sue for disparate impact (they lost in court - so much for the assertion that disparate impact alone means a Title VII violation).



Sorry, not gonna wash:

"Changing the weighting of the exams to more accurately
reflect the content of the job almost certainly
would have reduced their adverse impact by reducing
the weight of the written component, and thus
constituted a "less discriminatory alternative" that
the City would have been obligated to use under Title
VII. Had the City given a 30% weighting to the
written component of the examination, more in line
with the nationwide norm, see supra pp. 15-16, the
tests would have had a significantly lower adverse
impact on minority candidates. See Resp. Br. 33
("[I]f the tests were weighted 70%/30% oral/written,
then two African-Americans would have been considered
for lieutenant positions and one for a captain
position."). Indeed, 20 miles down the coast from
New Haven, the fire department in Bridgeport,
Connecticut, has administered tests with less weight
given to the written component (25% for lieutenants
and 33% for captains) and achieved a significant
reduction in adverse impact relative to the NHFD
exam results. See JA64-66.12"



BRIEF OF INDUSTRIAL-ORGANIZATIONAL
PSYCHOLOGISTS AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS

(As an aside to jccamp on a very good question, there was apparently more than ONE psychologist contributing to this brief, with certainly more knowledge and expertise on this subject than either myself or Tim Wise)—listed:



Professor Herman Aguinis is the Mehalchin Term
Professor of Management at the University of Colorado
Denver Business School, Professor Wayne Cascio holds the Robert H. Reynolds
Chair in Global Leadership at the University of
Colorado Denver Business School, Professor Irwin Goldstein is currently Senior Vice
Chancellor for Academic Affairs in the University
System of Maryland, Professor Sheldon Zedeck is Professor of Psychology
at the University of California at Berkeley and
Vice Provost for Academic Affairs and Faculty Welfare.



The Summary of the Argument (already a long enough post, so follow link to read in full.)

"Based on their expertise in the field of
I/O psychology and their experience in employment
test design, amici have identified at least four serious
flaws in the tests that undermined their validity:
(1) their admitted failure to measure critical qualifications
for the job of a fire company officer; (2) the
arbitrary, scientifically unsubstantiated weighting of
the multiple-choice and oral components of the test
battery; (3) the lack of input from local subject matter
experts regarding whether the tests matched
the content of the jobs; and (4) use of strict rank ordering
without sufficient justification. Members of
the Board thus reasonably concluded that it was
unlikely, if not impossible, that the tests could be
demonstrated to be valid."




Obviously, this is a brief in support of the respondants, but when In The Know writes: "Geez, can't you read a record or a brief?"...I'll take it as a rhetorical question in the interest of comity.

—Cobra
6.13.2009 11:54pm
Cato The Elder (mail):
Isn't it seriously crazy how Cobra managed to inject Bush here?
6.14.2009 12:32am
Guest In the Know (Unlike Cobra and Wise):
Sorry to disappoint you again Cobra but pointing to a city's amici is NOT evidence. The five test consultants you cite never saw the exams and had no access to the validation data (or any of the development data). They are business competitors to the company that did develop the test. They were never witnesses in this case or involved in it any way and the petitioners in their reply knocked them out.

Plus, do you really think such professional court witnesses want an outcome that puts an end to the current practice in this country of throwing every civil service exam into the courts for 10 years of fights between warring experts paid by the hour? These professional witnesses would literally be put out of business if the Supreme Court stops this nonsense.

Their views do not represent the Society to which they belong. In fact, their professional organization felt compelled to send out a letter to that effect to counter the notion that the "opinions" of these five in the amicus brief supporting New Haven represent the concensus views of their profession. Their own organization distanced itself from their brief and let it be known these men were only speaking for themselves, not the 6,000 members of their profession. In fact, their views are contoversial in the testing community and strongly criticized by top I/O experts in the field who reject their race-based-results approach to employment testing.

Plus, you might find this depressing to learn. The reason that, as you cite, the City of Bridgport's exams have "less" disparate impact is (wait for it): the scoring results are altered to eliminate it. That is, Bridgeport's exams also have disparate impact - they just race norm the results. And guess who Brideport's test consultant is? Why, a principal author of that very amicus brief supporting New Haven, whose partisan opinions you cite as gospel. (As Gomer Pyle would say, surprise surprise.) Don't you agree it's a little dishonest to assert that another city's test results don't have DI but fail to add that it's only because the city "eliminates" the very DI New Haven routinely sees by re-rigging the score results to boost minority candidates?

And, to really hammer it home, be advised that the author of that very amicus brief has now caused a third lawsuit to be filed by Bridgeport employees alleging that this amicus test consultant's race-based alteration of test results is illegal and discriminatory. In fact, several city employees recently refused to sit for a promotional exam upon learning that this test consultant was the one in charge of it. Try reading the amicus brief filed by the victims of Brideport's practices (The Merit Inc. brief) which notes these very facts. To make your case, try citing evidence, not the opinions and erronous factual assertions of partisan amici who could not be cross-examined (and who would never want to be based on what is in that brief) Would you care to go find a better source for your arguments Cobra?
6.14.2009 12:32am
In The Know:
The "Boat People" were also among the amici supporting the city. It's only a matter of time before Cobra cites them as witnesses.
6.14.2009 12:44am
jccamp (mail):
Cobra -

"But to be honest, I would weigh strong leadership skills a bit more heavily than straight "nerdiness", but a hybrid of the two would be my ideal."


I agree completely. Unfortunately, there simply is no objective test that can accurately rate leadership. Within the limits of objective testing vehicles, I don't see how someone can fail a written test on specified subject matter, but somehow demonstrate a grasp of the same material in an oral interview - which of course is subject to gaming for desired results, unlike an objective test. The military does rate for leadership and promote on the basis of ratings, through subjective personal recommendations from immediate superiors, who live or die on the accuracy of the same ratings. There is no way the military system could survive in the atmosphere of urban politics.

You could, say, weight for performance rewards and penalties, which are normally based on factual circumstances. However, even allowing the the inevitable (but occasional) granting and/or denial of such based solely on who you are, not what you did, the unions would never stand for it precisely because it can be manipulated. In addition, you would probably find that the top achievers on promotional tests are usually - not always by any stretch, but more often than not - the same overachievers who are heavy with awards and atta-boys. Conversely, the underachievers on promotional tests will also tend to be the sub-par employee who isn't going to get any extra points for job performance. So this wouldn't change anything.

What it comes down is the very nature of Civil Service is to remove political influence from hiring and promotion, which flies in the face of attempts to make the same hinge on the subjective qualities which cannot be measured by objective tests - the same subject matter-based tests that minorities traditionally have trouble with. In the end, there remains no measurable objective fashion to achieve racial goals - you know, quotas - without simply creating formula that ignore everything but the desired ethnicity/gender/whatever. We can either recognize the intrinsic unfairness of the this, and just say "So what?", or accept that affirmative action schemes that penalize based on ethnicity are wrong, no matter which ethnic group is getting hammered this particular age.

And, as in New Haven, it is not uncommon for traditionally disadvantaged civil service employees to have available extra coaching and tutoring. It is also not uncommon that the disadvantaged employees typically ignore these efforts, usually with success, because they know they have to get X% of promotions regardless of score or performance. It's the "adverse impact" lottery. Don't prepare, take a 150 question multiple choice exam, eliminate 1 or 2 possibles on most answers, recognize a few correct answers, and score around the 50% or 60% level. Take the oral portion, collect the maximum allowable points, and then wait to be promoted (out of order). On the other hand, if you're white/anglo/male/whatever, you know going in that if you score anything less than, say, 90% on the written, you're chances for promotion are DOA. You will probably score in the lowest quarter on the oral, and you will be skipped under the rule of three if there is someone non-white/anglo/male/whatever under you on the list within reach.

It is blatantly unfair, and we should cease all the (judicial) semanticist contortions trying to make it appear less so.

Sorry. I've been through a bit of this myself, so I tend to get lathered. I'll go wipe the froth from my mouth now.
6.14.2009 1:42am
Cato The Elder (mail):
Firstly, I personally think it is important to indict people like Cobra, as liars and clueless ideologues, so that people do not take their arguments as stronger than they actually are.

Indeed, there are lots of issues wrong with the Second's decision in Ricci, so I won't dwell on them here. However, I think that rather than simply vacating the decision and remanding to a lower court for retrial, the Supreme Court should apply a strict scrutiny standard and strike down Title VII in whole or in part as unconstitutionally vague, along with a substantial number of cases that have attempted to decide the acceptable scope of adverse impact analysis, since I've found in my personal research that it seems to open the door to plenty of shenanigans, especially within the bureaucracies of the civil service. However, I will leave it to those more facile than I with their legal arguments to formalize those disputes with the law, if Title VII does actually violate it.

For example, did you all know that a "strict rank ordering" on a test is inimical to the concept of merit-based selection, at least according to the amici brief filed by the I/O psychologists? By the way, they do not legally represent the views of the organization whose name they are appropriating, and it seems that there are heated going-ons within one of the trade groups the company belongs to about the appropriateness of that brief, which will undoubtedly be used politically to portray the entirety of their differing views quite generally. Though I only superficially understand the author's comment, see the most recent one on this blog post here.

Unfortunately, I think that AF/Joseph Slater are correct in ruling that this case is unprecedented, and also in saying that there is a substantial indeterminacy in the controlling language, not only with the aforementioned racial classification issues, but also the criterion which employers must prove to avoid adverse-impact lawsuits, requiring them to choose alternatives that present "equal validity, but substantially less adverse impact." Bryant v. City of Chicago, 200 F.3d 1092, 1094 (7th Cir. 2000) The key problem here is the phrase "equal validity"; but applied to which ends?

Two troublesome adjoined and illustrative cases are Johnson v. City of Memphis, 355 F. Supp. 2d 911 (W.D. Tenn. 2005) and Johnson v. City of Memphis, 73 F. App'x 123 (6th Cir. 2003), where black police officers employed by the city of Memphis sued under a disparate impact claim, among other (minor) ones, because of a changed testing regime used by the city, and were accordingly granted partial summary judgment evidenced by apparent prima facie "adverse impact" violations of the newer tests. (The tests violated the EEOC's Uniform Guidelines by failing the Fourth-Fifths Rule) After that result, the circuit court also denied a motion for injunction by the injured white firefighters, those who had benefited from the new rules, to intervene. According to the opinion, the city apparently had a history of giving "discriminatory" tests, which had also previously been challenged on adverse impact grounds. What happened when it attempted to reform and design better ones? From one of Cobra's linked sources, the history is instructive:

In 1996 the city of Memphis developed what the court described as "its first validated" officer promotion process. The process was developed by an I-O psychologist under the oversight of another I-O psychologist retained as a consultant by the United States Justice Department...

...the fact that the 1996 process withstood scrutiny is noteworthy because it set the foundation for a less adverse alternative. Thus, the court would be faced with the question of why the city of Memphis could not have
continued with this or similar alternatives, a very significant contextual issue...the city of Memphis introduced a new process in 2000 that deviated from the one used successfully in 1996. In new process, the written text was used as an initial hurdle. Although this change resulted in some adverse impact, it was not severe in that the four-fifths ratio for African Americans was .77...

...the 2002 process was based on a thorough job analysis and designed to meet professional and legal standards. The court in fact determined that the 2002 process was content valid and appropriate for ranking candidates for promotion. The court also found however that "the 2002 process although more sophisticated resulted in substantial adverse impact." Plaintiffs challenged the 2002 process on the grounds that the 1996 process constituted an equally valid alternative with less adverse impact.


In other words, both Ricci and this case show that disparate impact lawsuits, and the rhetorical hokey justifying them, aren't attempting to build better tests with better methodologies; they are mostly intended to entrench worse ones. There is too much effort sunk into discarded tests, too many test alternatives posed that in effect become little more than pass-fail tests which allow for huge majorities of the candidates to make up the eligible pool, for it to be any other case. Ironically enough, if a city tries to do a better job addressing its historical failures of discrimination, the more potential liability it exposes itself to if it tries far too hard for others' liking. Obviously any employer faced with these perverse incentives would choose to make any test less discriminatory, the good kind of discriminatory, and yet it would be still able to claim that those tests are "still equally valid!" - perhaps so to capricious politicians who get their intended quotas through the use of discretion, but not valid in most of the ways that matter to their customers who rely upon them. Karen Lee Torre is entirely correct, we wouldn't treat lawyers that way, that's classism, and sadly we have also seen the depths to which some will stoop to argue that firefighting and police work aren't skilled trades that require specialized knowledge and talent. Those skills also help better protect the lot of minorities who disproportionately suffer from the ills those public servants help guard against.

Some disagree. To wit, from the opinion in the Johnson case, my emphasis in italics:
this Court has interpreted this provision to mean that...a cutoff score may only be used to eliminate candidates for consideration from promotion where the scores of the eliminated candidates are so low as to make promotion of those candidates impossible[????]... Isabel v. City of Memphis, 2003 WL 23849732, at *7 (W.D. Tenn. Feb. 21, 2003)

Well, you must understand, nothing's impossible, at least with the help of politicians and the DOJ headed by the current Attorney General*. Or is that really his proper title? Only Vonnegut will do:

The year was [2003], and everybody was finally equal. They weren't only equal before God and the law. They were equal every which way. Nobody was smarter than anybody else. Nobody was better looking than anybody else. Nobody was stronger or quicker than anybody else. All this equality was due to the 211th, 212th, and 213th Amendments to the Constitution, and to the unceasing vigilance of agents of the United States Handicapper General.

You see, the civil service tests that are typically given in highly urbanized areas may posses the ability to discriminate very well between say, a cucumber and a human being, and undoubtedly will continue to do so in the future (validity), but they also have little ability to pick "the best" firefighters. Of course, to be fair, that word's use comes laden with many philosophical problems that are inherent in that debate, since only fellow human beings, with widely divergent ideologies, can provide the rules for that normative distinction. However, many people want to obfuscate the moral and practical problems of the current balancing between the interests of diversity and aptitude, by appealing to the innumeracy of the American public, but the numbers tell a tale of their own - see this press release, that details that 17,000 out of nearly 20,400 applicants passed in Chicago's recent fire examination in 2006, a pass rate of 83% (the opinion also notes that the plaintiffs in Johnson appealed to this same procedure on page 25 of the pdf here). Unceasing vigilance indeed. Many of the same people do similar things in conflating the rigor of admissions between legacies and affirmative action admits, whose SAT scores differ by hundreds of points. That is just not what most people envision when they hear the rhetoric justifying the policy. Are the very real risks of the potential damage this law provokes all worth it?

At the same time, I think that Mr. Wise does actually make a decent point when he discusses a hypothetical in which potential White or Asian admits to a university bring a Title VII lawsuit against them for their weightings of GPA, SAT scores, and extracurricular activities as opposed to some non-existent, yet putatively objective, standard. Most people wouldn't like the idea of Princeton missing out some potential Bill Bradley, either. This sort of thing could also happen if Kennedy wimps out and doesn't address the substantive Equal Protection issues.

Also note, that because this question is too ambiguous, in effect, this ambiguity takes power away from employers, who are in the best possible position to determine which sort of qualities are best suited for their workforce needs, and apportions them to the federal judiciary, who have to attempt to understand all the statistical nuances that we laboriously underwent within this thread. Another thing; who here thinks that a federal judge could understand your job responsibilities better than you do yourself? That is another responsibility, or perhaps better put, an entitlement that is created by the previous precedents which require well-meaning judges to in effect divine, or more injudiciously, manipulate, the professional standards of excellence that rise above mere job necessity. This state of events could not persist in equilibrium for long in the private sector, where standards for promotion are intimately tied with those of performance, but most importantly, the bottom line, but it prospers quite soundly in the public one, and according to some of John Lott's research, to lamentable effects.

All of that is notwithstanding the other, equally taxing, responsibilities of federal judges to research the relevant case law, find fact, and apply both towards a decision in these cases. This transfer of power is dangerously anti-democratic, especially considering that the American people are the very least quite tepid about affirmative action as it is currently practiced. Moreover, it's disturbing to see how easily a racially and maliciously motivated employer could invoke the fear of Title VII lawsuits to substantially alter the weighting of exams through some tenuous post-hoc analysis, and it appears this evil would be perfectly tolerated within the law as it stands.

But there is also the genuine need to protect against legitimately biased tests, again, attesting from the issues stemming from politicized civil service work. We certainly wouldn't wanted validated racial discrimination in government, an area where it is often hardest to dislodge. Something attempts to address this by allowing for a "mixed-motives" analysis in the McDonnell-Douglas framework, which Karen Lee Torre alluded to in the transcript of the oral arguments, but she also seemed to imply that there was something lacking in it. If so, it should be fixed, and promptly.

To me, it's extremely important to hem in this leviathan -- and it is one, have no doubt about that, even the plaintiffs' own lawyer was shocked at the implications of her research of the extent of its long arms -- which obviously evokes terrific passions as we have seen, probably some irrational on both sides, so that the issue of legitimate affirmative does not destroy the country when demographic change begins to occur in earnest. Like many others, I want the US to live in an equitable racial harmony, and badly decided law can easily lead to enduring divisions that are not so easy to heal.

I think am going to read through more cases and flesh out my views, to possibly figure out a way to accommodate those who disagree, and better understand the relevant case-law. IANAL, so any pointers by those more knowledgeable than I would be helpful and appreciated.

*: I have nothing against Eric Holder mind you, at least not yet, but I thought the quote fit too well.


...well, this comment certainly grew much longer than I intended it to be.
6.14.2009 6:56am
Cato The Elder (mail):
From the conclusion of the Johnson opinion:

The Court recognizes that the City has expended considerable time, effort and financial resources to come up with promotional processes that would withstand legal challenge and be untainted by racial and gender discrimination. However, as the foregoing analysis makes clear, the City's efforts have fallen short of their goal. If the City is ever to achieve a reliable, legally valid promotion system unburdened by endless legal challenge it must redouble its efforts. Obviously, the City must procure testing design services of the highest caliber. Perhaps more importantly, the City must require from any test design that it be based on the most recognized, rigorous science currently available, even if this requires expending more money than would otherwise be necessary.

When I read the text, the bolded portion in particular, I was struck at how instantly it recalled to mind a certain passage that I had read as a teenager, so I had to look it up for myself. It would obviously be hyperbolic and insulting to call this a direct analogy, yet still, I think there is a lesson there.

The four pigs waited, trembling, with guilt written on every line of their countenances. Napoleon now called upon them to confess their crimes.

...when they had finished their confession, the dogs promptly tore their throats out, and in a terrible voice Napoleon demanded whether any other animal had anything to confess.

...and so the tale of confessions and executions went on, until there was a pile of corpses lying before Napoleon's feet and the air was heavy with the smell of blood, which had been unknown there since the expulsion of Jones.

...in the old days, there had often been scenes of bloodshed equally terrible, but it seemed to them that it was far worse now that it was among themselves.

...for some time nobody spoke. Only Boxer remained on his feet. He fidgeted to and fro, swishing his long black tail against his sides and occasionally uttering a little whinny of surprise. Finally he said:

"I do not understand it. I would have not have believed that such things could happen on our farm. It must be due to some fault in ourselves. The solution, as I see it, is to work harder. From now onwards I shall get up a full hour earlier in the mornings."

- Animal Farm

6.14.2009 10:00am
A. Zarkov (mail):
Objective written tests protect minorities, while subjective oral tests provide vehicles to engage in invidious discrimination against them. The behavior of Steklov Institute in the USSR provides an almost pure example of how oral tests can be used against minorities.

In the USSR Jews were an official minority, and the internal passports everyone was required to carry identified them as such. To get a PhD in mathematics one had to submit to an oral exam given by a member of Steklov. To keep them from getting their degrees, many members of the Institute would ask Jews research level questions in mathematics. Questions so difficult even the professor would likely not know the answer. Even Jewish winners of the The USSR (mathematical) Olympiad were failing their Steklov oral exams. As no written record of the examination was kept, it was hard to prove Jews were being targeted for special treatment. Grigori Freiman (himself a member of the Communist Party) wrote a book called It Seems I am a Jew, detailing how the system produced a Soviet Academy of Sciences that was nearly Judenfrei in mathematics.

Most Americans don't appreciate just how prestigious it was to be a mathematician in the USSR. The consequences of this policay is far from being either obscure or trivial. I find it remarkable to see people in the US trying their best to eliminate objective testing; our first line of defense against discrimination.
6.14.2009 1:18pm
Cobra (mail) (www):
First things first:

Jccamp writes:

"The military does rate for leadership and promote on the basis of ratings, through subjective personal recommendations from immediate superiors, who live or die on the accuracy of the same ratings. There is no way the military system could survive in the atmosphere of urban politics."



This may be true, but it is also true there is no more clear example and advocate of Affirmative Action than the US Military. They truly seem to understand the value of the diverse officer core.

As far as test scores vs. grasp of material and qualificiations, I for one, am glad that John McCain (ranked 894 out of 899 at Annapolis) fought proudly for our country and still serves today in the Senate.

Now--LOL....

Guest In the Know writes:

"Would you care to go find a better source for your arguments Cobra?"



...and Cato the Elder writes:

"Firstly, I personally think it is important to indict people like Cobra, as liars and clueless ideologues, so that people do not take their arguments as stronger than they actually are."



LOL...well, I'm often called lots of things. After all, I'm a liberal, African-American cartoonist who often posts to blogs that lean conservative. I'd be surprised if somebody didn't hurl an invective or two my way given the heat of this current political environment.

Trouble is, Cato and ITK, your real debate isn't with me. It's with the reality that your arguments LOST.

Your arguments LOST at the United States District Court of Connecticut under US District Court Judge Janet Bond Arterton.

Your arguments LOST at the Second Circuit Court of Appeals in a three judge panel consisting of Judges Sonia Sotomayor, Rosemary Pooler, and Robert Sack unanimously upheld the District Court's decision, and when a vote was tallied by the full Appellate to rehear the case en banc, your arguments LOST AGAIN, 7-6.

Now, your arguments go before the SCOTUS, and Justice Kennedy is the only thing standing between Scalia, Alito, Roberts and Thomas taking a judicial activist chainsaw to the Civil Rights Act of 1964's Title VII, as Cato so dearly wishes in his statement here:

"However, I think that rather than simply vacating the decision and remanding to a lower court for retrial, the Supreme Court should apply a strict scrutiny standard and strike down Title VII in whole or in part as unconstitutionally vague, along with a substantial number of cases that have attempted to decide the acceptable scope of adverse impact analysis, since I've found in my personal research that it seems to open the door to plenty of shenanigans, especially within the bureaucracies of the civil service."



To gut, hamstring or even repeal (here) (and here) the Civil Rights Act of 1964 has been one leg of the right wing judicial "triple crown" (alongside abortion and gun control).

This doesn't come as any surprise. Rolling back the clock on Civil Rights before America "browns" any further is utterly predictable. The history of this nation on race and gender is painful and irrefutbale.

What does surprise me is the transparent motivation from and feigned outrage of those who support this pre-CRA revival when they are called on it.


--Cobra
6.14.2009 2:26pm
Cobra (mail) (www):
irrefutable
6.14.2009 2:31pm
An iSteve reader (mail):

My sense of Taylor's article is that the test used was about as unbiased as one can hope for, but the basic idea is in the preface to this short post at the Freakonomics blog.


I would hope that the tests are very discriminatory, actually. They should discriminate against those who would be unqualified (unable) to be a captain or a lieutenant in the fire department.

I would not want my life in the hands of someone who is not capable.
6.14.2009 6:01pm
David M. Nieporent (www):
But this is a racial classification. They decided not to promote firefighters after they determined what race the firefighters were. That's the part you're missing.

Put differently, they decided not to use the test results after they determined they had a racially disparate impact. It is certainly race-conscious, but there is no precedent for considering it be a racial classification.

Mr. Nieporent, I keep saying this is unprecedented and you keep saying I'm wrong, but you don't cite any precedent. Do you know of a case in which the abandonment of a test with a prima facie disparate impact was found to violate the Equal Protection clause?
No, but do you know of a case in which a test was abandoned after the results were in despite it being job-related and there not being any showing that there was a better alternative test out there? It's the actions of New Haven which are unprecedented, not the legal claims of the appellants.

Remember, although I think the very notion of "disparate impact" shorn of discriminatory intent ought to be abandoned, that isn't necessarily at issue here. This is not a case where blacks proved their disparate impact case (*) and whites challenged the finding as discriminatory towards them; this is a case where the city preemptively abandoned a test solely because of a desire for racial balancing.



(*) And no, I don't mean a "prima facie" case, which just means unequal outcomes, which doesn't mean anything at all, since so many tests have unequal outcomes. I mean an actual case, where it's shown that the unequal outcomes are the result of a non-job-related test.
6.14.2009 6:06pm
Tony Tutins (mail):

They decided not to promote them because they were white. Had they been black, the city would not have thrown out the test results. That's a racial classification. It's race-conscious.

This is a supposition, not an argument. Professor Bernstein is skeptical about pet psychics, and I am skeptical about legal psychics. A test on which blacks outperformed whites would receive heavy scrutiny because it would turn whites' expectations on their heads.
6.14.2009 6:54pm
Tony Tutins (mail):

One other point: some candidates decided that portions of the material on which the exam was based were unimportant, and that they didn't need to study them. "He said those firemen aced the test by memorizing all the books — including passages that others overlooked because they didn't find them pertinent." Actually, isn't that how anyone is expected to pass any test on any subject, by studying the subject material. Imagine one of your educational courses, telling the professor/teacher/whatever "I ignored those parts of the textbook which seemed unimportant to me, so you shouldn't be able to fail me for getting them wrong." Isn't what we want in our public safety employees, and more, in their commanders, "nerds" who read everything they can and are never satisfied with their knowledge level?

No. People who can organize and command a group of individuals in an emergency seldom are also masters of technotrivia irrelevant to their jobs. They can tell the forest from the trees, while nerds are categorizing every leaf by shape and size.
6.14.2009 7:04pm
Desiderius:
Cobra,

"abortion and gun control"

You are familiar with the racist roots of your chosen stance on these issues, right?

Affirmative Action along the lines of the Rooney Rule and military recruitment are entirely uncontroversial these days, and should be. Ricci-style straight-up discrimination and the return to the spoils system it bodes are highly unlikely to benefit those you seem to count on it benefiting. Even if somehow it does, in a narrow, Zimbabwean, sense, in the broader sense it beggars us all, as illiberalism has historically done, regardless of the skin-tones of its practitioners.

You're being played like a fiddle.
6.14.2009 7:13pm
Desiderius:
Tutins,

"irrelevant to their jobs"

Beg questions much?

Look, objective tests are not perfect, but the standard is not perfection, but whether existing alternatives are better. Is it your contention that a racial spoils system is likely to produce more just outcomes?
6.14.2009 7:18pm
AF:
No, but do you know of a case in which a test was abandoned after the results were in despite it being job-related and there not being any showing that there was a better alternative test out there?

One example among many would be the state of Alabama's teacher certification exam, which was abandoned for ten years with no showing of an illegal disparate impact. See Allen v. Alabama State Board of Education, 816 F2d 575 (11th Cir. 1986); Allen v. Alabama State Board of Education, 164 F.3d 1347 (11th Cir. 1999).
6.14.2009 8:52pm
A. Zarkov (mail):
I still waiting for someone to produce a question from either of the fireman's exams that that would discriminatory. You might find a few questions that are not particularly pertinent to the job, but how does that show discrimination towards any group? Indeed tell me how one crafts a written question that deals with acquired skills, knowledge and abilities that is discriminatory? It might possible but I submit to would be difficult.

About 6 years have passed since this exam became a legal issue. Evidently in that time no one has collected any more field data on this exam. Why not do an experiment by having firemen or even test subjects of different races take the same exam? Offer a monetary prize based on the total score that rapidly escalates. Ask the participants to log their study time, or better yet control their study time. We need not repeat on the whole exam. but just a part to make things simpler. I'm fairly confident that the scores achieved would correlate with study time to a much greater extent than race. The cost of such an experiment would be trivial compared to the legal fees in this case.

If you want to understand the world measure it!
6.14.2009 10:42pm
A. Zarkov (mail):
Cobra:

You are obviously just trolling through the briefs supporting the Respondent, and reporting what's really advocacy as evidence. You might get away with that kind of thing on a non-legal blog, but not here.
6.14.2009 10:51pm
David M. Nieporent (www):
One example among many would be the state of Alabama's teacher certification exam, which was abandoned for ten years with no showing of an illegal disparate impact. See Allen v. Alabama State Board of Education, 816 F2d 575 (11th Cir. 1986); Allen v. Alabama State Board of Education, 164 F.3d 1347 (11th Cir. 1999).
I don't understand how this is responsive to my request.

In Allen, although there was no showing of illegal disparate impact in the sense of a verdict from a judge or jury, there was a consent decree. (Now, I have my reservations about the use of consent decrees to evade the legislative process, but nevertheless, there it was.)

More important, in Allen, the state did not discard the test results the way it did in New Haven; although it did give failed minority students a passing grade they hadn't earned, it wasn't a zero-sum situation as in New Haven. White students who had passed the certification exam did not have their certifications revoked. And during the time period in which the exam was stayed due to the consent decree, whites were not barred from being certified, as they were in New Haven. That makes it completely inapposite.
6.14.2009 11:21pm
AF:
Allen is an example of an employment practice being abandoned for its prima facie disparate impact with no finding of a violation of Title VII.

Of course, that happens all the time, which is my point.

I thought your proposed constitutional rule was that abandoning an employment practice for the purpose of avoiding its prima facie disparate impact is unconstitutional unless the employment practice actually violates Title VII.

Now I'm not sure what your proposal is.
6.14.2009 11:40pm
Guest Comment (mail):
Look at the exam syllabi for crap's sake - they both specified not only the books and policy manuals from which the test questions were drawn for both the Lt and Cpt exams, but alerted candidates to the specific chapters that the questions were drawn from. In some cases it was only one or two short chapters - what petitioners described as a pointed road map. The specificity allowed them to focus on those chapters, not read everything in every book. They list standard texts on the command and supervision of firefighters, nationally standardized texts on firefighting as well as the NHFD's own local protocols and policy manuals (which supervisors are responsible for enforcing). How the hell can you even suggest this isn't job-related. It's no different than prep for the bar exam -you have your standard sources on torts, contracts, property, etc. Of course you have the same disparate impact on bar exams but no judges dare throw those out. There is a bit of occupational protectionism and elitism here. The bar doesn't want incompetents in their midst. Why did the lower courts fail here to accord the same respect to folks who have a life-endangering job? Classism at its worst.
6.15.2009 1:00am
Guest Comment (mail):
One more thing - have the few radicals here who strain to support this ruling given any thought to its implications? The essential holding is that any occupational exam that produces disparate racial results (or ethnic results if you consider Hispanics) may be tossed and jobs left unfilled until the government (or even a private employer I suppose) figures a way to even the results, even where the statutory requirements of Title VII's (k) section were not met. The ruling is shocking for its opinion that political considerations are relevant - i.e, local officials should not have to take and defend a disparate impact suit (even if meritless) for "political reasons." Geez, that ruling flouts everything the SC has told lower courts respecting governmental use of race. Every civil service exam would be a waste of time with candidates studying and competing for nothing - given the acknowledged academic and achievement gap that is behind the commonality of disparate results. Equating disparate results with discrimination or a statutory violation is just nuts. It effectively turns Title VII into a Congressional mandate for quotas.
6.15.2009 1:10am
eddy:
Complicating the presumption of the 'four-fifths' rule on the Lieutenants and Captains exam is that all applicants are survivors of the 'entry-level' exam. If I correctly interpreting 'In The Know' as far as who is admitted as entry-level firefighters, it sounds as if this population is composed of highly scoring whites and both highly and lower-scoring minorities. With the lower-scoring whites eliminated from the population of potential Lieutenants and Captains, one would expect the rate of white success would be even higher in this pool than the entry-level pool.

Even if a four-fifths rule based on the general population for 'entry-level' positions is considered legitimate, once the pool is selectively narrowed by 'diversity' hiring, the subsequent legitimacy of the 'four-fifths' rule is compromised and inapt for this pool-within-a-pool.
6.15.2009 2:30am
Tony Tutins (mail):
People seem to want to compare the firefighters' promotion exam to the bar exam.

But consider that (1) the bar exam is pass/fail. No special merit accrues to those who score particularly well. (2) Irrelevant, antiquated, legal trivia is understood by fledgling lawyers to be part of the deal. Only the bar exam could get away with testing such, because the law is built on precedent. Imagine medical boards that tested on pre-Harvey theories of blood circulation. (3) Almost every bar candidate takes a bar review course. After spending over $100K on his education, the cost of a review course is lost in the noise. A fire fighter could reasonably expect that skills and knowledge acquired on the job could carry him through the exam, and would be loath to drop a kilobuck on classes that don't even exist.
6.15.2009 9:59am
Cobra (mail) (www):
A. Zarkov writes:

"You are obviously just trolling through the briefs supporting the Respondent, and reporting what's really advocacy as evidence. You might get away with that kind of thing on a non-legal blog, but not here."



Sure I am. And I'm also reading the conclusion of Judge Arterton, which was upheld by the 2nd Circuit.

I didn't "get away" with anything, because the City of New Haven, the "Respondent", WON. Whether their case is argued effectively enough to your satisfaction on a legal BLOG called "The Volokh Conspiracy" is actually irrelevant.

Desiderius writes:

"You are familiar with the racist roots of your chosen stance on these issues, right?",



Yup. Just as I'm quite sure you're familiar with the racist roots of America.

Desiderius writes:

"Affirmative Action along the lines of the Rooney Rule and military recruitment are entirely uncontroversial these days, and should be."



I wish that was the case, but there is vociferous opposition to the Rooney Rule.


—Cobra
6.15.2009 10:04am
A. Zarkov (mail):
Cobara:

"I didn't "get away" with anything, because the City of New Haven, the "Respondent", WON."

But this case is under Supreme Court review; that's why we're blogging about it. What are you saying? We don't need SCOTUS review here, or ever? The lower courts are always right? Some of us are pointing out possible problems with the lower courts decisions. Moreover, the case never went to trial so the facts alleged in Respondent's briefs have never court scrutiny.
6.15.2009 11:32am
David M. Nieporent (www):
Allen is an example of an employment practice being abandoned for its prima facie disparate impact with no finding of a violation of Title VII.

Of course, that happens all the time, which is my point.
As I said, saying that there was "no finding," while accurate, is incomplete; there was a lawsuit and a settlement enshrined in a consent decree -- in other words, not quite a unilateral decision by the state to abandon the exam.

But even ignoring that issue, Allen doesn't fit the rest of the factors I identified, so it's not apposite.
I thought your proposed constitutional rule was that abandoning an employment practice for the purpose of avoiding its prima facie disparate impact is unconstitutional unless the employment practice actually violates Title VII.
Not at all. Even if there were a theoretical argument to that effect, there wouldn't be any victims with standing to sue in the Allen situation. That's because, unlike in the Ricci fact pattern, nobody in Allen had their passing score revoked. All they did was hand out additional licenses.

In a Ricci-type situation (of which I only know one: Ricci itself), there are specific and identifiable people harmed based on their race.
6.15.2009 11:35am
A. Zarkov (mail):
Tony Tutins:

"A fire fighter could reasonably expect that skills and knowledge acquired on the job could carry him through the exam,..."

I don't think so. If the test were some kind of strictly physical exercise, I might agree with you. But the applicants were given study materials. Some of the applicants had taken a similar exam before. Any but the most clueless, lazy or indifferent knew that they had to put in substantial study time to do well enough on the test to be in the running for promotion.

I agree that the Bar exam might tend to esoterica more than most professional exams, but I don't think that either of us can really say that with any confidence. There are lots of professional exams. But let's say it does. That makes it less job related and more vulnerable to a charge of disparate impact. Of course by law, one must pass the Bar to practice, so by definition it's job related. But I can well imagine activist groups attacking Bar because blacks and Hispanics don't do as well as whites, and therefore it must be biased against them. But as I have said many times, these tests are not aptitude tests and they require substantial preparation. Of course having less aptitude hurts and applicant, it's always better to be smarter.

It would be instructive to look at actuarial exam results. These exams require both preparation and mathematical ability. It's not enough just to study. The advanced exams are pretty difficult and one needs to pass them to advance in the profession. If we did to the actuaries what we are doing to the fireman, the profession would be in turmoil. I suspect the pass rates for minorities are extremely low.
6.15.2009 12:45pm
jccamp (mail):
Tony -

"People who can organize and command a group of individuals in an emergency seldom are also masters of technotrivia irrelevant to their jobs."

You're assuming that there is some "technotrivia irrelevant to the job." Based on what? The test was qualified and cross-checked, validated, and reviewed by experts ad nauseam.

Next point, people who can organize and command a group of individuals usually can perform those individuals' tasks equal to or better than the lower ranking individuals. Command presence derives not necessarily from rank, but from respect as well. Subordinates follow those who know what they're doing. Because they took the time to read the books, instead of skipping sections they deemed too esoteric. At the scene of some emergency, lower ranking personnel look to the commanders for the answers to those sudden important technotrivia issues that don't usually come up. If it was easy being a commander, they would not need book lists and tests, Any moron could do it.

BTW, some of those text books on the exam? They dealt with supervision and command, leadership, arcane concepts like that.
6.15.2009 2:47pm
Desiderius:
Cobra,

"Yup. Just as I'm quite sure you're familiar with the racist roots of America."

And I'm also aware that your roots likely go deeper into the soil than my own. You don't need racial preferences to give you some skin in this game - your ancestors built this country with the sweat of their brow, with no compensation but the far off hope that you would one day enjoy the opportunities that they were cruelly denied, and that you are foolishly blind to.

It's your country, thanks to the joint efforts of that rabble-rouser Washington and your ancestors. Are you so convinced that they would be proud of your efforts to denigrate it today? I'd be willing to wager that I've known more patriotic African-Americans getting their Booker T. on than you've known actual white racists. The latter approve more of your act than the former.

Saw lots of good stuff at the Connerly link, but all he was saying about the Rooney Rule was that Dungy should get his due as a man, not just a black man. Clegg? Meh. If he's all the opposition you can muster, you're home free.
6.15.2009 10:52pm
Cobra (mail) (www):
A Zarkov writes:

"But this case is under Supreme Court review; that's why we're blogging about it. What are you saying?



I never said there was a problem with blogging about this case. My presence alone on this blog is testimony to that.


A Zarkov writes:

"Some of us are pointing out possible problems with the lower courts decisions.



That's fine. I'm happy you just acknowledged that these were decisions made by the LOWER COURTS, namely the US District Court of CT, and 2nd Circuit Court of Appeals...not Cobra. So when I'm called a "liar", "radical", "clueless ideologue", or accused of "being incapable or reading a record or brief", by people supporting the side of this case that LOST, it just makes me wonder what the true motivation of this animus really is...other than bringing a smile to certain members of the anti-affirmative action-type blogosphere. (still luv ya', JR)

So when 2nd Circuit Court Judge BARRINGTON PARKER, supported by Judge CALABRES, Judge POOLER, Judge SACK, and Judge SOTOMAYOR writes against your arguments:


"Insofar as the dissent suggests that the plaintiffs produced evidence of a racial classification or the imposition of a quota, I think it entirely mistaken. Although the City acted out of a concern that certifying the exam results would have an adverse impact on minority candidates—and although, as the panel noted in its decision, the result was understandably frustrating for applicants who passed the test—the City's response, to decline to certify any of the exams, was facially race-neutral. The City did not classify or confer any actual benefit on applicants on the basis of race. The dissent's citations to Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995), and City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989), are therefore inapposite.*fn1 See Hayden, 180 F.3d at 49 (distinguishing those cases as "concerned with select affirmative action tools, such as quota systems, set-aside programs, and differential scoring cutoffs, which utilize express racial classifications and which prevent non-minorities from competing for specific slots or contracts.").

Because there was no racial classification, the plaintiffs bore the burden of persuasion on the issue of discriminatory purpose. Jana-Rock Constr., Inc. v. N.Y. State Dep't of Econ. Dev., 438 F.3d 195, 204 (2d Cir. 2006). Here, however, there was no evidence of a discriminatory purpose; according to the record evidence, the City was motivated by a desire to comply with, and avoid liability under, Title VII and its implementing regulations. See Bushey, 733 F.2d at 226 ("It is settled that voluntary compliance is a preferred means of achieving Title VII's goal of eliminating employment discrimination." (internal quotation marks and alteration omitted)); see also Hayden, 180 F.3d at 51 ("A desire to reduce the adverse impact on [minority] applicants ... is not analogous to an intent to discriminate against non-minority candidates.")…

…The plaintiffs were entitled to a careful and thoughtful review of their claims. The panel decided that the district court had given them just that, and thus adopted the district court's reasoning in its per curiam opinion. Nothing more is required.




…Does this mean that they are now to be considered ""liars", "radicals", "clueless ideologues", or "incapable or reading a record or brief" simply because they came to a different conclusion than those who support the petitioner?

I'm not a lawyer, so I can understand a wee bit of condescending behavior from those who are on these issues. However, when this many Judges on different levels come to an
opposing viewpoint, and these viewpoints can be pulled up verbatim via a simple Google search (findacase.com) by non-lawyers like myself, the name calling tends to only make the name-caller seem small, and their supposed omniscience seem arrogant.

Do you agree with this, A Zarkov?


—-Cobra
6.16.2009 9:44am
A. Zarkov (mail):
Cobra:

Did I ever engage in name calling? Nor did I say there's a problem with blogging about it. But let's be clear that as this case went to summary judgment, the "facts" which you pull from Respondent's briefs and their friends have not been vetted.

As I have written, New Haven had no basis to fail to certify the exam results because that outcome could have arisen by pure chance and was not evidence of disparate impact.
6.16.2009 5:53pm
Guest Comment (mail):
Tony Tutins - your distinguishing the bar exam is superficially appealing but fails on inspection. It is well understood that the PASS rate for blacks is far lower than for whites, not just the range of scores that passing bar-takers get. The point is that we do not invalidate the bar exam and have multiple do-overs until the racial results are equal.

Just imagine any state sending letters to law grads who spent three months studying 12 hours a day and over a thousand dollars for the prep books(very much like the firefighters) which advises those who passed as follows: "Contratulations. You passed but unfortunatley not enough (insert racial group) passed so we are going to to it over again - better luck next time." They'd set the place on fire (no pun intended).
6.16.2009 10:48pm
Guest Comment (mail):
And while we're at it - why isn't anybody looking at the disparate impact of Justice Ginsburg's law clerk hiring criteria. There is nothing more grating on the nerves than a Justice who champions racial quotas (or at least whose rulings seek to have that effect with their liberal approach to disparate impact in hiring) having a decades-long record of hiring only vanilla white Ivy Leaguer law clerks. At her own confirmation hearing, she got red-faced when her racially exclusionary hiring history (on the circuit) was exposed and it doesn't look like she has changed one bit while telling everybody else to hire by the racial numbers.
6.16.2009 10:54pm
Cobra (mail) (www):
A. Zarkov writes:



"Did I ever engage in name calling?"




You prefaced your statement with "Some of us," and not "I". Clearly "some of you" are engaging in ad hominem, and I wanted to know your opinion about that.

A. Zarkov writes:



"As I have written, New Haven had no basis to fail to certify the exam results because that outcome could have arisen by pure chance and was not evidence of disparate impact."




In your opinion.

That wasn't the opinion of US District Court Judge Arterton, or the majority of the 2nd Circuit Court of Appeals. And they cited precedent to support their conclusions.



Judge Barrington PARKER, supported by Judge CALABRES, Judge POOLER, Judge SACK, and Judge SOTOMAYOR:

"At the heart of the dissent from the denial of rehearing en banc is the assertion that there was no Supreme Court or circuit law to guide this district court, or future district courts faced with similar claims. I disagree. The district court correctly observed that this case was unusual. Nonetheless, the district court also recognized that there was controlling authority in our decisions--among them, Hayden v. County of Nassau, 180 F.3d 42 (2d Cir. 1999) and Bushey v. N.Y. State Civil Serv. Comm'n, 733 F.2d 220 (2d Cir. 1984), cert. denied, 469 U.S. 1117, 105 S. Ct. 803, 83 L. Ed. 2d 795 (1985). These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability."





You have the right to disagree, A. Zarkov.
Everyone does.

--Cobra
6.17.2009 12:17am

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